The Back-Benchers' Blog

It is no secret that we are very emotional and sensitive people in India. A mere book is enough for us to set buses and cars on fire. Our sentiments being hurt is all it takes for us to take to streets, stop traffic, cause nuisance, express anger and then go home and sleep. It is this behaviour of us that receives constant flak from the liberals and intellectuals and quite deservedly so I must say. As a society we present a very grim picture about the level of public discourse we can have. That is why, a considerable section of our society has been calling for a serious reform in the norm of freedom of speech that we have in our constitution. Compared to the US or some other liberal countries, we fare very poorly on the freedom that an individual has in speaking up his mind. And as some people say, we require freedom of speech especially to say things that are not pleasing to everyone’s ears. That’s exactly the reason why it must exist.

Enough of preamble. Let’s get down to the point I have in mind. As the title suggests, it’s about the recent turn of events. First, Dr.Subramaniyan Swamy, a man I respect wholeheartedly for more than one reason (getting a publication in Econometrica as a M.Stat student for example) and have no qualms in admitting the same, wrote this in DNA on July 14,2011. It has been removed from the DNA website subsequently. Amongst many controversial things that he wrote, he proposed the following things to wipe out Islamic terrorism -

But still, if any Muslim does so acknowledge his or her Hindu legacy, then we Hindus can accept him or her as a part of the Brihad Hindu Samaj, which is Hindustan. India that is Bharat that is Hindustan is a nation of Hindus and others whose ancestors are Hindus. Even Parsis and Jews in India have Hindu ancestors. Others, who refuse to so acknowledge or those foreigners who become Indian citizens by registration can remain in India, but should not have voting rights (which means they cannot be elected representatives).

Applying these principles, I advocate the following strategy to negate the political goals of Islamic terrorism in India, provided the Muslim community fail to condemn these goals and call them un-Islamic:
Goal 2: Blast our temples and kill Hindu devotees.

Strategy: Remove the masjid in Kashi Vishwanath temple complex, and 300 others in other sites as a tit-for-tat.

Goal 3: Make India into Darul Islam.

Strategy: Implement Uniform Civil Code, make Sanskrit learning compulsory and singing of Vande Mataram mandatory, and declare India as Hindu Rashtra in which only those non-Hindus can vote if they proudly acknowledge that their ancestors are Hindus. Re-name India as Hindustan as a nation of Hindus and those whose ancestors are Hindus.

Now, if you are appalled after reading this, in case you haven’t done so before, then allow me to continue the story.
Apart from being censured all over internet for the article, Dr.Swamy sort of committed an own-goal there by opening a door for himself to be prosecuted for hate-speech. And that’s exactly what happened. A case was filed against Dr.Swamy by various organizations and he was quizzed by Delhi Police for writing an inflammatory article.

And this set a new wave of criticism on Twitter, FB and other social media saying that Dr.Swamy was well within his rights to write that article and a case being filed against him and the authorities entertaining the case just go on to show how weak our norms of freedom of expression actually are.

Now, there is a fundamental problem with this position. The first question is what are the most reasonable norms of free-speech we can have and then does Swamy’s article pass the test? Before we proceed, it is important that we agree on the basic principle that some limits on freedom of speech are necessary. If one takes a position that speech is no action and hence no speech should be curbed then all I say henceforth is irrelevant. I do not subscribe to that thought for reasons that one cannot delve into here.

This Stanford webpage is a short and reasonably detailed discussion on Freedom-of-Speech. The author of this essay mainly discusses Mill’s harm principle in light of freedom of expression and also Feinberg’s offence principle. John Stuart Mill is probably the most influential liberal philosophers we have had in a long time and he has shaped the way we think about freedom of speech today. His essay book called “On Liberty” is a must-read for those who wish to explore it. It’s a terribly complicated book and I had a horrible time reading the first two essays of it. But, without a doubt, no understanding of freedom-of-speech is complete without Mill’s essays. According to Mill,

If all mankind minus one were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person than he, if he had the power, would be justified in silencing mankind.

the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.

Mill then indulges in a detailed discussion on what he means by “harm”. But, to cut the long story short, it is still debatable whether Mill advocates state intervention to curtail hate-speeches at all. The principal argument is that most hate-speeches incite people to commit violence or atrocities of some sort. And so, if one were to regulate hate-speeches that would essentially mean that they are limiting free-speech in order to prevent crimes that might occur but have no certainty. This is a very reasonable position in my opinion. Interestingly, here’s something from the Stanford web-page-

George Kateb (1996), however, has made an interesting argument that runs as follows. If we want to limit speech because of harm then we will have to ban a lot of political speech. Most of it is useless, a lot of it is offensive, and some of it causes harm because it is deceitful, and because it is aimed at discrediting specific groups. It also undermines democratic citizenship and stirs up nationalism and jingoism, which results in harm to citizens of other countries. Even worse than political discourse, according to Kateb, is religious speech; he claims that a lot of religious speech is hateful, useless, dishonest, and ferments war, bigotry and fundamentalism. It also creates bad self-image and feelings of guilt that can haunt persons throughout their lives. Pornography and hate speech, he claims, cause nowhere near as much harm as political and religious speech. His conclusion is that we do not want to ban these forms of speech and the harm principle, therefore, casts its net too far. Kateb’s solution is to abandon the principle in favor of almost unlimited speech.

Essentially, Mill’s argument itself is criticized for being too broad in the sense that it can hardly limit any speech even though a lot of it can eventually harm people. And also, it is narrow in the sense that with harm one can have even psychological harm and then it is rather impossible to ascertain whether a certain speech does cause harm or not.

The next principle that is often used is the “Offence principle” which states that speech should be limited if it is offensive. This is the norm that is exercised in most societies and in India people have a notoriously low pain-tolerance when it comes to psychological pains, thereby curbing the freedom-of-expression considerably. But that’s a problem of the decision-makers as to which claims of someone taking an offence pass the test and which ones don’t. As far as I am concerned, it is hard to imagine a more sensible criterion of freedom of expression.

Why? Because by harm if we mean physical harm then proposals to ban Muslims from getting education can also be viewed as fair. A large part of discrimination is psychological. Making a dalit have a separate water tank for himself does not cause any physical harm to him but is detestable nonetheless. Thus, any reasonable position on freedom of speech should include harms that are beyond physical harms.

But then there’s a problem. No philosopher will ever give an unqualified definition of freedom of expression and will always acknowledge the subjectivity involved in deciding whether to limit a certain form of expression or not. But, most (NOT ALL) e-philosophers are formed through Wikipedia and it creates a very precarious situation for them to accept nuances involved in deciding whether a particular form of expression violates the principles of freedom-of-expression or not. This is so because the most common approach about social commentary on the internet is through reductionism.

Digression apart, if we take subjectivity into account then there’s only one thing that needs to be decided here. That is, whether Swamy’s article can be considered as extremely offensive or not. We can split hairs here and say that this is not offensive. But, a proposal of persecuting a community by forcing it to acknowledge its “Hindu” origins and disenfranchising them should they fail to do so, or bringing down a mosque to counter terrorists seems grossly offensive to me. Moreover, it does not seem to be written without any other motive except for radicalizing the borderling-radicals and fueling social division. Neither would be wrong to say that such ideas, if implemented, would cause no physical harms to Muslims but would certainly be traumatising. Hence, in my opinion this can most certainly be considered as most offensive or even a hate-speech if you like.

Thus, I stand convinced, that Dr.Swamy, a proven intellectual of supreme ability, an ex-Harvard faculty, a Paul Samuelson student, and a man who possesses many other accolades for his intellectual prowess, must, unfortunately, face some penalty for the article. Jail? Probably not.