A SENIORSupreme Court advocate, Rajeev Dhavan has been one of the most trenchant critics of censorship. His book Publish and Be Damned: Censorship and Intolerance in India examines the relationship between political and social censorship. On a winter evening in his South Delhi residence, Dhavan, 65, tells Shonali Ghosal why the liberal space can be easily throttled in India.

Are the seven heads under Article 19(2) too open to interpretation by the government to curb freedom of expression (FoE)?
The seven heads of reasonable restriction in Article 19(2) are interpreted mechanically. If it falls into that slot (defamation), the court will say (it’s a) reasonable restraint. Nobody examines defamation and contempt of law as reasonable restraints. Some of these restraints are huge. For example, public order, decency, morality can mean anything; friendly relations with foreign states is also ambiguous. Free speech would be suffocated. Although the Supreme Court has been strong in protecting FoE as in the case of Price and Page Act, 1962 and Bennett and Coleman on advertisements (1972), nevertheless this wooliness in Article 19(2) is over-extended not just by courts but also by civil society. We find a Shiv Sena interpretation, an RSS interpretation, a CM Modi interpretation and, regrettably, a CPM interpretation when it interfered with Taslima Nasrin’s book.
Can there be a realistic litmus test to determine what is or isn’t a reasonable restriction?
No, because all the categories are fungible. One must realise that the right is fundamental and not the restriction. This is why the government and people censoring have to say “is this the least invasive way we can interfere with each other’s speech?” This is a message to civil society that the Constitution is a principled document. Free speech can never be answered with violence. If those concerned with Salman Rushdie have something against The Satanic Verses, which I personally think is a brilliant interpretation, it should be words against words.

But shouldn’t an artist be allowed to contest another person’s right to be offended?
Everyone has a right to contest what anyone says but what one does not know is how, where and in what way will the contestation take place. The Constitution is abused in ways where the State, at times, has taken a lackadaisical approach to free speech. The Satanic Verses was banned under the Custom’s Act, it was never given a chance to be heard. The policy is to ban first and hear later.

Are we killing the liberal space in India by arming and encouraging all objectionists alike?
The so-called liberal space where people talk and reason with each other is very easily throttled. Take the Khushwant Singh versus Maneka Gandhi case, the HC order stood for years until Sanjay Kaul reversed it. Getting injunction from the court on whatever ground is easy like in the cases of Khushboo and MF Husain where criminal complaints have been filed. Even Justice AM Ahmadi refused to aggregate all cases in one court. The process is the punishment — civil or criminal. Just going through the process of arrest, of bail, of being banned is enough to unsettle anyone.

With ‘offended individuals’ filing cases, artists have to keep attending to cases across the country. While protecting the right to object, isn’t the law neglecting the artist?
The unfortunate law is that a case can be filed wherever the offending exercise of free speech reaches. Former editors tell me that people filed cases in Assam just to make it inconvenient. One recent development that is worrying is that Mumbai has become the defamation capital. The reason: outside Maharashtra, the fees you have to pay is ad valorem fee (in proportion to the amount claimed). In Mumbai, the fee levels out so that you can claim huge amounts on low fee as was witnessed in the Justice PB Sawant case where the court ordered 100 crore damages. You don’t have to pay through your nose by way of fees. In Maharashtra, defamation has become a game to intimidate and harass. The corporates do very well on this.

‘The process is the punishment — just going through arrest, bail or being banned can unsettle anyone’

Should there be a distinction between content one can avoid (a book, a television show) and that you can’t (billboards) when citing disrespect or indecency?
Freedom of speech is subject to time and place. If you’re in a crowd and you say something to someone, that’s immediate. You have the option to read or not read a magazine. Many countries mark sections of magazine stores if they stock adult content. But all this content is available on the net. There are ways, at least on TV to restrain channels. Internet access is another thing altogether but you don’t break a walnut with a sledgehammer as Mr Sibal wants to do. These things require debate rather than the knee-jerk reactions of Kapil Sibal and Markandey Katju.

Shouldn’t we define the caveat about incitement of violence much more narrowly?
Categories on which reasonable restrictions can be made have to be reasonably broad but require Constitutional interpretation to ensure that you don’t ban plays like Tamas or a film like Ore Oru Gramathile. The court has been good in the late ’80s and early ’90s, which is evident from cases like The Bandit Queen where the Delhi High Court took a very aggressive view to cut out portions, which would’ve been removed. The Supreme Court reversed the order as it should have. Intolerance to free speech is on the increase and we don’t know how to deal with it.

Shonali Ghosal is a Correspondent with Tehelka.
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