Defend right to offend

Tolerance requires no more than the ability to ignore what is not to one’s liking. But people expect others to be “reasonable” — in other words, be like me. Commanding that women should not wear jeans is a typical example. The test of “reasonableness” of one’s expectations in matters regarded as private or personal should be, whether the action one dislikes can be banned through legislation under our Constitution — if one cannot banish one, bear it. The assumed right to take offence has no place.

I have a cousin living in Saudi Arabia — her husband is employed there. As is well-known, no woman can be seen in any public place without a burqa. Whenever she comes to India, she leaves behind all the gifts of sarees and other dresses because in the country of her residence there is no scope for wearing any of them. There the law prohibits a woman from showing any part of her body. Such a law cannot pass scrutiny under our Constitution.

Need to tolerate actions that we detest arise in myriad ways. Way back in 1983, a few school children belonging to a religious sect, Jehovah’s Witnesses, refused to join others in singing the national anthem at the schools in disobedience of an order by the education department. The children were expelled from the school. The challenge reached the Supreme Court in 1986.

The court held: “We are satisfied, in the present case, that the expulsion of the three children from the school for the reason that because of their conscientiously held religious faith, they do not join the singing of the National Anthem in the morning assembly is a violation of their fundamental right ‘to freedom of conscience and freely to profess, practise and propagate religion.’ (Bijoe Emmanuel & Ors vs State of Kerala & Ors).” The court concluded its judgment with these words, “We only wish to add: our tradition teaches tolerance; our philosophy preaches tolerance; our Constitution practices tolerance; let us not dilute it.”

The judgment was severely criticised, among others, by Mohammad Yunus who was then chairman of the Trade Fair Authority and a very influential political figure. He called the judges who delivered the judgment as neither Indians, nor judges. Contempt of court proceedings were initiated against Yunus which was dismissed by the Supreme Court on a technical ground: of not obtaining the consent of the attorney-general as required by law.

Similarly, the then law minister, P. Shiv Shankar, while addressing a seminar criticised the judgment in seemingly contemptuous terms. He was also made to face the contempt of court proceedings. In that case, the court held: “Administration of justice and judges are open to public criticism and public scrutiny. Judges have their accountability to the society. But the criticism must be fair and reasonable.

Any criticism about the judicial system or the judges which hampers the administration of justice or which erodes the faith in the objective approach of judges and brings administration of justice into ridicule must be prevented. The contempt of court proceedings arise out of that attempt. This is how courts should approach the powers vested in them as judges to punish a person for an alleged contempt, be it by taking notice of the matter suo motu or at the behest of the litigant or a lawyer.” (P.N. Duda vs P. Shiv Shankar & Ors) Shiv Shankar was let off.

There are innumerable cases of contempt of court where the tendency of the court was to tolerate the criticism and let the alleged contemnor go rather than to punish.
Around the same time, in 1984 in Texas, US, one Gregory Lee Johnson, a member of a group called the Revolutionary Communist Youth Brigade, burnt the American flag in public and while spitting on it, danced around the flag on fire. He was punished under the state law, but the Supreme Court of America by a divided verdict of 5:4 acquitted him. The state law under which the original court convicted Johnson was declared as unconstitutional. The verdict of the court was that dishonouring the flag was also a way of expression and that freedom could not be curbed, except in the event of present and imminent danger to the state. The judgment is a lesson on the need to be tolerant.

Television news every day bring out nothing but intolerance. If a minister says that the Bhagwad Gita deserves to be treated as a national book, the denouncement is deafening. The very people who thrived on conversions have loudly condemned a few conversions in Agra. A few days of silence would have stopped that activity totally.

In this context, one recalls an incident in the early Fifties when C. Rajagopalachari was the chief minister of Madras state. Dravida Kazhagam party was carrying on anti-Hindi agitation. The chief minister and home minister Rajaji strictly instructed the police not to take any action against the agitators while guarding public property. The agitators were defacing Hindi signboards with tar. They smeared a few boards and more — they were expecting to be arrested; but the police did nothing more than simply watching. The frustrated activists threw buckets of tar away and dispersed cursing the inefficient police.

A classic example of making a mountain out of a non-issue was the recent answer by the governor of Uttar Pradesh to a journalist’s query, “Will the Ram temple be constructed?” The innocuous and inevitable answer was, “Yes in due course — that is the wish of the people.” The media’s reaction, “Governor is politicking — overstepping the limits” and so on. If he were to answer in the negative, the news would have been monstrous. A repetition of “Have you stopped beating your wife?” situation.

Secularism is one of the biggest humbuggery in the name of which people take offence or pretend to take offence at the smallest possible difference of opinion. It is the pretension which is more dangerous than the real indignation. Taking offense against a movie like PK in the name of your almighty God’s honour, Comedy Central, or cartoons or jokes or mimicry intended to evoke some laughter in this otherwise dreary world are unfortunately becoming all too frequent. Left alone they would have passed off into history without causing any harm to any one, but our intolerance and desire to make non-issues in to sensations makes immortalises them. And makes us lesser mortals, at least from the point of view of our Constitution.

The anthems would survive protests, the flags would continue to flutter despite desecrations and religions would outlast insults. Real ones do last if only we the people do no more than keep recalling the traffic red light that reads, “Relax”.

The writer is a senior advocate of the Supreme Court and former additional solicitor-general of India. He can be reached at knbhat1@gmail.com