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Liberal Position Paper - 11 Freedom of Expression and The Right to Know


Part I : Critique Freedom of expression is enshrined in the Constitution of India as a fundamental right under Part III of the Constitution. Nevertheless, there has been a hierarchy of values and a gradation to these rights. The right to property, for instance is considered to be the weakest of these rights and is, at present, only a legal right- not a fundamental right. Even though freedom of expression is a fundamental right, with the passage of time, through several amendments a number of restrictions have been placed on the exercise of this right which have narrowed down their scope considerably. Intimately associated with the freedom of expression is the idea of Human Rights - the basic right of every human being, irrespective of colour, race, gender or status, to live with dignity which means the right to food, clothing, shelter, primary health and education. It also means the right to practice (or not to) religion and the right to dissent. In recent years in India, dissenters have been persecuted and threatened, and in a few cases even physically eliminated. Dissenters who questioned beliefs, especially what were considered accepted practices, were the ones who faced the ire of the intolerant. As in the case of the Hindus. In Hinduism there is flexibility at the philosophical level but not at the sociological level where one confronts the caste system. Even today, the caste system is so rigid that many who break caste rules are punished by what are known as the caste or jaati panchayats. At the religious level, we witness the re-emergence of the cultural police who have no hesitation in issuing fatwas against dissenters. Despite freedom of expression being a fundamental right its unfettered exercise was scuttled even in the days of Jawaharlal Nehru. Even then there was always some form of censorship for the benefit of the rulers. For example, Mr. A. D. Gorwala's column in The Times of India written under the pseudonym "Vivek" was discontinued at Nehru's insistence for it was too critical of him. And no other newspaper was ready to publish Mr. Gorwala's column. This compelled Mr. Gorwala to start his own small weekly which he named Opinion to publicise his views and his right to free expression. The situation got worse over the years and during the (so-called) Emergency of 1975-1977 these freedoms were suspended. A new phenomenon that has developed menacing proportions in recent years is what can be described as cultural policing not only by the party in power but by communal or nonsecular parties who decide what is good or bad for our culture. Fortunately, the judiciary has been a source of protection of freedom of expression. In India, there has been only one case

Contents Liberalism Minoo Masani Liberal Principles Karl R. Popper Liberalism and Democracy Karl-Herrmann Flach The Liberal Agenda for the 21st Century A Liberal International i The Rule of Law C. Rajgopalachari The Evolution of the Liberal Idea Otto Von Lambsdorff Liberalism in India D. V. Gundappa Basic Liberal Values and their Relevance to India in the Current Context An ILG document The Social Market Economy An ILG document The Requirements of Social Justice An ILG document Freedom of Expression and the Right to Know An ILG document Technology and Human Development An ILG document Active Citizenship An ILG document Liberal Priorities for India in the 21st Century A P.E.E/FNSt document The Essence of Democracy Not Majority Rule Minoo Masani

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where the Supreme Court banned a book on the ground of obscenity and that was D. H. Lawerence's Lady Chatterly's Lover. In most cases pornographic books and movies, though they attract legal action under obscenity laws, generally die a natural death. A case in point is the blue films that were screened at a couple of theatres in Bombay. People got tired and ultimately the theatre had to stop screening such films not because of any legal or police action but simply because of the operation of the law of demand and supply. The hurting of religious sensibilities is something that every group alleges when someone says or writes on a religious theme that is not to the liking of the religious group concerned. Unfortunately, those who claim their religious freedom has been affected generally take to the streets. This stifles freedom of expression. On the ground of protecting religious susceptibilities banning of books has become a passion with India's rulers of all hues. Books are banned without reading them, like the Satanic Verses. In fact, India has the dubious distinction of banning this book even before the Islamic countries did so. Pradip Dalvi's play Godse was banned on the ground that it hurt the image of Mahatma Gandhi and justified his assassination. Such censorship is detrimental to the healthy growth of civil society. Even the Mahatma would himself have opposed the ban on the Godse play. The destruction of works of art (the most recent case being the paintings of M. F. Hussain) is also a clear sign of growing intolerance. In a democracy there are civilised ways of expressing one's dissent. On the other hand, the sensible way in which certain Dalit writers like Namdeo Dhasal reacted to Mr. Arun Shourie's book on B. R. Ambedkar is a salutary example of democratic dissent. They opposed the banning of the book as it would go against their earlier stand when they opposed a demand made by caste Hindus for a ban on Dr. B. R. Ambedkar's Riddles of Hinduism. Riddles of Hinduism is a chapter in the Complete Works of Dr. Ambedkar published by the Government of Maharashtra. Liberals need to applaud the stand of the Dalit writers for their mature response to a provocative book by Mr. Arun Shourie. The audio-visual media, especially television and the cinema are showing a growing number of films depicting violence some of which are extremely gory. Though it is not easy to establish a direct correlation between cinema, TV viewing and violence, there can be no denying that such depiction have had ill effects on the immature, adolescent, the unemployed or school dropouts. This has, for example, been responsible according to some for the "Shahrukh Khan phenomeno" where disappointed lovers kill girls who do not reciprocate their love, leaving an already marginalised group like women in a more dangerous public space. A film hero doing such things gets a sort of legitimacy among some sections of the public. The writing of history books has been another major problem

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where the group, for the time being in power, seeks to inject its views, like under Congress rule, the Nehru-Gandhi dynasty sought to marginalise all other leaders including the Mahatma's role in the freedom movement. Even in the regional writings of history, the local heroes are exaggerated to look bigger and greater than they really were. This has led to the creation of sacred cows who cannot be touched. There is therefore need to draw the line between learned research and licence. The recent spurt of celebrating festivals in public, disrupting traffic by erecting pandals on public thoroughfares has intruded into the freedom of expression of citizens who do not wish to participate in such festivals. This has led to the hardship of ordinary citizens who use these roads. But the politicisation of these festivals has led to greater problems. Initially it started, more as a weapon during the freedom movement, with a 10-day Ganpati festival. This festival was largely confined to Maharashtra. But in recent years it has spread to other cities and towns outside Maharashtra. Durga Puja, a 10-day festival in Bengal, equivalent of the Ganpati festival in Maharashtra is now assuming the same importance and duration in Bombay. One would have understood it if this arose from religious fervour. But there is increasing evidence that these festivals are promoted by the politically powerful. For almost a month each year public thoroughfares are at their disposal, not to speak of a variety of gangsters and thugs who patronise these festivals who spend crores of rupees in building plaster of paris and thermocole replicas of well-known monuments and temples. The right to dissent here is not accepted and there is fear of physical retaliation for those who dare to protest; contributions are forced, film songs which are far removed from prayer not only rob the occasion of its solemnity but the loud music goes on round the clock taking the decibel level to an unbearable pitch. Thus the right of dissent is swept away by giving in to a false illusion of a majority that does not exist. The national obsession with secrecy to hide uncomfortable facts is a blot on our democracy. In India this idea of the right to know is closely connected to the freedom of the Press which calls itself the "fourth estate". Till very recently the electronic media was controlled by the state and the newspapers were considered the only free agents. But are they really free? Are they not controlled by caste interests, joint families or joint stock companies. It is the print press that has unearthed a lot and has played the role of the opposition. But they do not have any more rights than ordinary citizens. There have been instances when this right has been misused as a weapon to intimidate the famous where it has degraded to licence and mudslinging. This is no freedom, for freedom entails responsibility which has to be exercised with self restraint and for a social purpose. At the same time, this has led to public offices and institutions becoming more transparent and accountable to the public

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whose money they spend. Citizens groups in Rajasthan have organised protest against the reluctance of officials to part with information and have insisted that they have a right to know how much has been spent on building a bridge, for example. In fact, audit reports once placed on the floor of the House are public documents, but one sees a desperate bureaucracy trying to keep them away from public scrutiny. To begin with, at least all economic documents can be made public for there are no secrets in it that affect state security. With the explosion of technology and the beginning of the information age, the concept of national sovereignty will soon become redundant because no country can control the flow of information on the internet. Then there is the Right to Privacy which should be harmoniously blended with the Right to Know. How justified was the media in prying into the private lives of Princess Diana and President Clinton? Wasn't the Starr Report a waste of public money where the private sexual exploits of two consenting adults disturbed the fabric of American society and almost wrecked the Presidency. Part II : The Liberal Position Freedom of Expression constitutes one of the central principles of liberalism. The Indian Constitution - largely liberal in spirit recognised this inasmuch as "liberty of thought, expression, belief, faith and worship" figures in its admirable preamble. Freedom of Expression is also recognised universally as a Human Right - a basic right of every human being, irrespective of colour, race, gender or status. Since the promulgation of the Indian Constitution, the Right to Freedom of Expression has been under siege, both by the state and certain groups in our society. The First Amendment narrowed the ambit of this freedom. In the last fifty years, this freedom - which should have evolved into a larger one has been more narrowly defined to reduce spaces where freedom can be exercised. Further, in the last few years, greater, and perhaps even dangerous death threats have emanated from extreme groups or parties which have become self-appointed guardians of "morality" in the country. It is they who want to enforce what people can or cannot read, which film or play to be censored or which performer can or cannot appear on stage; or what an artist can portray. In a free society which boasts of democracy, it is the Constitution that should be the supreme law, not fatwas or edicts issued by cultural vigilantes. The destruction of works of art or the banning or burning of books is a clear sign of growing intolerance. In a liberal democratic state, even while such acts should be curbed with an iron hand, there is need to educate people on forms of protest that are consonant with a liberal society.

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There is a genuine concern, with the growing trend in films made for the cinema and TV to depict violence and scenes of rape in a revolting manner. But even here, it is not for the State to interfere. It is the media itself which needs to institute self- regulatory mechanism to check this undesirable trend perhaps on the lines of the Press Council. Threats to freedom of expression appear not only against the media or against widely known authors or artists. There are also growing threats to academic freedom and this is evident particularly in the writing of history. There is an increasing trend encouraged and promoted by fundamentalist and ideologically motivated groups to "invent" pasts which glorify exclusively and exaggeratedly their own specific traditions. This abuse of scholarship and distortion of history needs to be resisted. Freedom of the press - a bastion of a liberal and democratic society - too has been under constant threats and pressures, not only from the State, but from extremists who do not hesitate even to use violence to silence journalists who do not share their beliefs. There is need to develop appropriate measures to protect the privacy of the individual particularly in the context of the intrusive powers of modern communications technology. There is need, further, to inquire into and modify laws relating to the privileges of legislators which have often tended to curb the freedom of the press to report and inform their readers. In addition, the Courts too have not been always helpful, as they could be, in safeguarding the rights of the press. The frequent use of "stay orders" have tended to limit the freedom of the press to inform their readers. The Right to Know is a corollary to the Right to free expression. In a liberal state, citizens can exercise their Rights meaningfully only if they are also adequately informed. An informed citizenry is a pre-condition of responsible citizenship. The Right to Know, however, has acquired significance and relevance in our society, only recently. It is not unsurprising for governments - even the democratically elected ones - to hide uncomfortable facts from the people. The need to safeguard the country's security interests is often the excuse advanced to withhold information. Under the blanket term "state security", numerous acts of omission and commission are hidden from public scrutiny. Liberals should support any legislation which seeks to empower citizens with the Right to Know, particularly in the areas where large financial outlays have been made. In a liberal society, acts of governments should be both transparent and accountable. [Based on a discussion and general acceptance of Part II of this Paper by a National Workshop on Liberalism held in Mangalore from March 26 to 28, 1999]

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