There is something poisonous about a democracy in which couples are arrested for kissing. This reaction by the state to the non-violent ‘Kiss of Love’ protest in Kerala proved the protesters’ point very effectively: while those who attack young people and vandalise cafes will go scot-free, the police will choose to lock up peaceful protestors. It does not bode well for freedom of expression in our democracy if intolerant and violent groups are able to leverage state institutions to prevent other citizens from exercising their rights.

A group called the ‘Free Thinkers’ organised the ‘Kiss of Love’ as a protest against increasing moral policing. The Facebook page for the site says of the event that ‘…young bloods join their hands together to prove to the society that kiss is the symbol of love’. The protest was announced after Bharatiya Janata Yuva Morcha volunteers vandalised a cafe in Kozhikode claiming that they were prompted to do so by the “immoral activities” that took place in the cafe. Media speculation indicates that this was a reference to footage of youngsters kissing in the cafe.

The Shiv Sena reportedly declared the protest a new form of ‘love-jihad’ and said that it would cause sexual anarchy in Kerala. In addition to the Shiv Sena, right wing activists from across religious lines including the Yuva Morcha, ABVP, Bajrang Dal, Social Democratic Party of India and radical Hindu and Muslim groups were united in their protests against the ‘Kiss of Love’. Although the Kerala High Court refused a petition to prohibit the event, the police eventually rounded up and locked away over fifty organisers and supporters of the ‘Kiss of Love’.

It is clear from this that the ‘Kiss of Love’ protesters were attacked in two different ways. On one hand, there was the physical threat posed by the right wing ‘anti-kiss’ campaigners. On the other, the state used force to disperse the protest because of the law and order problem created by the anti-protest activists.

Situations where speakers are silenced by the state because an unruly crowd creates pressure through its violence are what American jurist Harry Kalven was trying to describe when he coined the term ‘heckler’s veto’. Kalven pointed out that “if the police can silence the speaker, the law in effect acknowledges a veto power in hecklers who can, by being hostile enough, get the law to silence any speaker of whom they do not approve”.

The Kerala ‘Kiss of Love’ incident is a classic illustration of this veto at work. There was no good reason why the police should have dispersed this non-violent and utterly reasonable protest. However the unruly mob succeeded in creating a sufficiently hostile environment to achieve this. This is not the first time that an aggressive mob has affected the fundamental rights of others in India.

Last month, the Madras High Court had to refuse a demand to ban Tamil films Kaththi and Pulipaarvai by people who felt that these films might be full of anti-Tamil speeches. In June, nine students in Kerala’s Thrissur district were arrested for provocation with intent to cause a riot over a rude anti-Modi crossword clue. In August, St. Xavier’s College retracted an invitation to Dalit activist Sheetal Sathe to speak at their annual festival ‘Malhar’ after the Akhil Bharatiya Vidyarthi Parishad threatened the organisers.

Freedom of expression 

The ‘Kiss of Love’ incident, therefore, follows Salman Rushdie’s aborted appearance at the Jaipur Literary Festival to become a part of the several cases in which extremists are able to stifle expression by threatening violence and disruption.

Restricting speech in the interests of public order was not permissible under the original text of the Indian Constitution. After the Supreme Court refused to allow the use of the ‘national security’ exception to restrain speech in the interest of law and order, the Nehru government added ‘public order’ among the reasons for which the right to free expression may be restricted under our Constitution. This resulted in the Supreme Court permitting prior restraint of speech in the interest of maintaining law and order. For example in Babulal Parate vs State of Maharashtra the court upheld anticipatory restriction of Article 19(1)(a) in the interests of public order, reasoning that ‘public order must be maintained in advance in order to ensure it’.

Over time, the judiciary has become conscious as to how law is leveraged to silence speakers. Although the Supreme Court has never actually used the phrase, it has acknowledged the dilemma that is termed the ‘heckler’s veto’. This was in S. Rangarajan v. P. Jagjivan Ram where it said “freedom of expression cannot be suppressed on account of threat of demonstration and processions or threats of violence… the State cannot plead its inability to handle the hostile audience problem”.

The phrase ‘heckler’s veto’ features in a 2006 Andhra Pradesh High Court judgment, Lakshmi Ganesh Films and Ors. vs Government Of A.P., where the court examined a state government notification suspending the screening of the film The Da Vinci Code. Justice Raghuram’s compelling judgment supports both the right to freedom of expression and the right to receive information. It states categorically “dissenters of speech and expression have no censorial right in respect of the intellectual, moral, religious, dogmatic or other choices of all mankind”, and announces that the State government’s censorship order “mechanically certified the heckler’s veto of a few objectors”. It is hoped that the judiciary continues to protect speech as firmly, and the legal framework is made more resistant to compliance with the heckler’s veto.

United in intolerance 

Last year, a kissing protest was staged in a Turkish metro station in response to a morality campaign by Ankara authorities. The police tried to prevent protestors from going into the station, and Islamists attacked the demonstrators, resulting in the stabbing of one person. A ‘kiss-in’ held in Morocco to protest the arrest of two teenagers for kissing was also attacked by Islamist counter-protestors.

It is a matter of concern how extremists everywhere seem united in their opposition to expressions of affection. Take the Shiv Sena and its terming of the Kerala ‘Kiss of Love’ event as an instance of ‘love jihad’ oblivious to the fact that extreme Islamist groups also support punishing all displays of public affection. Extremist groups have always been present and will always jockey for leverage. What is critical is that the law and the state institutions do not support them as they seek to curtail other citizens’ democratic rights.

Robert Post, eminent First Amendment Scholar and Dean of Yale Law School, wrote that a heckler’s veto creates very bad incentives for those who oppose free expression since it permits an angry mob to use the law to silence speakers. This threatens the open public discussion that is critical to democracy.

The ‘Kiss of Love’ protestors were not the ones causing public disorder. That distinction belongs to the intolerant anti-protest activists who disrespected the protesters’ autonomy. When this extremism is facilitated by the state, through its failure to distinguish between peaceful protestors and the thugs who use law and order problems to threaten them, it becomes clear that our laws are being used to facilitate the heckler’s veto, not to protect citizens’ rights.

(Chinmayi Arun is research director, Centre for Communication Governance, National Law University, Delhi)

http://www.thehindu.com/opinion/op-ed/kiss-of-love-arrests-and-the-hecklers-veto/article6575493.ece