[Reader-list] On Free Speech

[Shuddhabrata Sengupta]

Dear all on the Readers List,

I have been following with some interest the textual duel between the learned 
professors Pandey and Saint, and find myself in sympathy with Neel  (or is it 
Slumbug) who says,

"but I hope we all talk, at least some of you will with me, so that my 
‘doubts’ as to what really constitutes freedom, the civil society...
much more could get a little clarified. "

And I am totally in agreement with Monica who has pointed out that free 
speech brings with itself its own set of responsibilites. 

Although I have  found the learned Professor Pandey's tone a tad strident on 
occasion, I do not agree that a statement that some may consider offensive is 
sufficient reason for anyone to be asked to leave or lapse into silence. A 
caveat, it is equally important, as Monica has pointed out, that we take the 
task of writing seriously, and do not make any flippantly personal remarks, 
especially about people who are not in a position to respond because they are 
not on the list...

There have been earlier debats, or hints of a debate, on speech, silence, and 
the valuation of speech. I remember , in the wake of my posting in the first 
week of March on Arundhati Roy's conviction for contempt of court, Pradip 
Saha asking whether free speech was more important than access to water, and 
Joy Chatterjee asking about the value of silence. Later, when the silence on 
the list prompted Gayatri Chatterjee to ask us all to reflect on why we were 
silence, the same questions returned again.

Clearly, March is the month for thinking about Free Speech.

And so, I have tried to summarize some of my thoughts about what it means to 
speak freely. This is in the form of an essay that is to be published 
elsewhere, but I would like to post this for all your responses and I hope, 
freely offered criticisms. It is kind of long, so please be patient and read 
till the end.

Cheers

Shuddha
_____________________________________________________________
On the Freedom to Speak the Things that Cannot be Said Easily 
Shuddhabrata Sengupta

I would like to speak of a few things that cannot be said easily.

A society that proscribes and censors audio-visual and written material, bans 
books and publications, that blocks television channels, removes works of art 
from galleries, prohibits or limits free broadcasting on radio, that rubber 
stamps maps and atlases and sends writers to prison for their writing, even 
if for a day, is not a free society. 

A society that has laws that provide for the interception of private 
communications, that can send people to jail for distributing or reproducing  
cultural materials without thought of pecuniary gain, that guarantees no 
effective privacy for individuals through sophisticated mechanisms of 
surveillance and at the same time veils the actions of the state and of 
corporations behind the impregnable curtains of official secrecy, is not a 
free society.

A society that criminalizes the right to remain silent, even as it confers on 
to confessions extracted in police custody the status of evidence in law on 
the pretext of fighting terrorism, is not a free society. 

A society that polices spaces where people exchange news or communicate with 
each other in their personal capacities, that allows for the planting of 
officially sanctioned dis-information in the media, that blurs the line 
between editorials, public relations and propaganda, that rewrites history to 
suit a sectarian agenda, that conducts raids on libraries and schools to find 
if there are objectionable and pirated materials available, that requires 
dramatic performances to have prior police permission, and that places 
informers in institutions of higher learning to  watch what people say or 
read or watch or listen to, is not a free society.

A society that needs to generate endless justifications for restrictions on 
the freedom of speech and the right to information in the name of national 
security, the war against terrorism, public order, decency or morality, is 
not a free society. 

Such a society treats its members as if they were all children, or imbeciles, 
or both. It confers on to a select few, an elite, immense powers to determine 
what may or may not be viewed, read, or said. It effectively curtails the 
entire domain of cultural and intellectual life by placing around it a 
plethora of restrictions, and encourages artists and intellectuals to succumb 
to the temptation of seeking the patronage of wealth and power as the sole 
means of pursuing their vocations. It then ratifies all this with regular and 
manipulated electoral excercises, which lends to an effective 
authoritarianism the benign cloak of popular legitimacy. 

In such societies, riots, mobilization for war, the minute dissection of what 
women should or should not wear, and of the honour and the dignity of the 
nation take precedence over the pressing concerns of everyday existence. In 
such societies, the 'sentiments of communities' or of the 'nation',  are 
worth more than human life. Such societies hedge on ratifying international 
conventions on land mines and torture, because no one really talks about land 
mines and torture. In such societies, the engineering of dams, the radiation 
levels in nuclear power plants and uranium mines, and the arcana of the 
public food distribution system remain state secrets, even when people are 
displaced by dams, get cancer from radiation and die of starvation. In such 
societies, environmental activists, laid-off, or striking workers, civil 
libertarians and average, ordinary citizens get accustomed to preventive 
detention, harassment, surveillance, torture, and disappearances.

Does any of this sound even remotely familiar? 

The above description would work for a large number of countries in the world 
today, it would of course have worked for the ex-Soviet Union from the 1930s 
until its demise, and for many respectable Latin American military 
dictatorships, but it is equally applicable (in large measure) to, the 
leaders and the motley led in the current international coalition against 
terror. In its entirety, the above description is applicable to the current 
state of social, political and cultural discourse in the Republic of India.

We are not living in a free society. A battery of laws, (from the first 
amendment to the Indian Constitution restricting freedom of expression as 
read in Article 19  on the grounds of public order onwards) and a variety of 
constitutional and extra-constitutional arrangements, as well as the routine 
methods of operation of state and powerful non-state actors on the ground 
have ensured that, at least from the first years of the republic till today, 
with the emergency, the NSA-ESMA-TADA-AFSPA1 regime of Rajiv Gandhi and the 
current POTA2 led assault on civil liberties as the key high points of 
repression, we have ceased to remain a free society.

Consequently, the sooner we give up the illusion that we are the citizens of 
the worlds largest democracy, and realize that we are in fact living through 
an undeclared emergency at least of similar proportions to what we faced 
between 1975 and 77, the better we will be able to deal with the realities 
that face us today.

I say this not to encourage a paranoiac 'big brother is watching you' 
sensibility to take hold of our public imagination, but only to argue for a 
realistic and pragmatic appraisal of what it means to live in a society that 
has ceased to be free but continues to live under the illusion that it is so. 
If we are able to equip ourselves with this realism, we may also be better 
equipped to deal with the responsibilities of what the actual conditions of 
liberty might entail.

If you read this in print you might say that we are still the kind of society 
that permits ideas of this nature to be freely published and circulated. And 
that this alone is evidence of the fact that we are still animated by a the 
spirit of free expression and enquiry. But, it is one thing for the 
occasional essay on free speech to be published in a journal, and quite 
another for speech to be free. In writing this essay I am merely talking 
about the pre-conditions of liberty itself, not excercising it per-se. Had I 
written a text that advocated the dissolution of lets say, the armed forces 
of the Indian Republic, or investigated and exposed matters that lay veiled 
within the cloak of secrecy that surrounds the nuclear weapons capabilities 
that lie now at the heart of the Indian state, or even discussed openly a 
couple of the more unsavoury of the operations of our internal and external 
intelligence agencies, or questioned the premises that underpin the entity 
called the nation state, it would have been very doubtful as to whether such 
a piece of writing would have found easy publication. 

I am doing none of the above and it is not my intention to do any of the 
above. All I am doing is to explore, in a sense in the abstract, what we mean 
by liberty. I am not, 'taking liberties' with matters that we have grown 
accustomed to hold beyond question. I am not, in this text, being seditious, 
or subversive, I am just wondering aloud about what makes for the fact that 
no one ever is, in our contemporary social and cultural context. 

This is perhaps why, although our newspapers and television channels are full 
of the din of what passes for criticisms of the government and of politics at 
large, of corruption, communalism and human rights abuses, there is at the 
same time, at the heart of the beast that is the media, a profound, 
foundational and consensual silence on basic issues, like the nature of the 
state, the sources of its power, and the character of property relations that 
underwrites it.

When, if ever was the last time you ever heard or read anyone in an Indian 
context, in a newspaper, or anywhere in the media say the following (and let 
me here give you a brief and eclectic checklist of ideas that I have seldom 
seen expressed)

''that the juridical monopoly of violence that the state enjoys is a bulwark 
of the property relations that govern society, 
or that the armed forces, police and paramilitary wings of the state are 
instruments of class rule, and should be abolished,
or that access to housing, unemployment benefits, public transport and high 
quality & free medical care should not be seen as privileges but as rights,
or that any industrial processes that generate toxic emissions should be 
prohibited,
or that workers and employees should be able to govern themselves and 
administer their productive capacities through directly elected councils,
or that capital punishment should be abolished, 
or that there should be no visa restrictions, 
or that it should be legal to burn any national flag or icon of executive 
authority as a symbol of protest against perceived injustice and abuses of 
power,
or that anyone should have the freedom to maintain and operate a radio 
transmitter for purposes of broadcasting his or her views,
or that cars should be abolished to make way for better, cleaner and more 
efficient public transport systems,
or that if there are laws that pertain to proprietorial control of what were 
once held as commons - forests, seeds, squatters rights, songs, stories and 
culture, then these should be challenged in practice, and if that requires 
civil disobedience of the existing legal regimes of copyrights, patents and 
land acquisition laws, then that is necessary to do so in order to protect 
the shrinking space of the commons in our society, 
or that atheists, agnostics and heretics also have sensitivities that may on 
occasion be hurt by overt public assertions of aggressive and invasive 
religiosity, 
or that all public spaces and utilities should be accessible to disabled 
people and that all workplaces should have creches for working mothers,
or that the codes of censorship that proscribe the depiction of full frontal 
nudity in films in India need to be broken in order to give full expression 
to particular artistic visions,
or that safe contraceptive devices should be freely available in high 
schools,  colleges, prisons and public places,
or even that sexual minorities -  gays, lesbians, bisexuals and trans 
gendered individuals should have explicit legal and social guarantees 
protecting their liberties and choice of lifestyles, instead of being 
criminalized or discriminated against in public life,
or that the possession and use of naturally occurring substances such as 
cannabis for recreational and medicinal use should not be criminalized.''

Such ideas (from the broadly political to the narrowly personal) would no 
doubt be considered un-reasonable and marginal, and with good reason, because 
their advocates may at present be small minorities, with little power to 
translate their considered opinions into general public discourse. It is not 
that their advocates do not exist in our society or that they are by nature 
reticent. Nor are these opinions irrelevant; in fact they touch upon very 
fundamental aspects of the realities that we all encounter in our day to day 
lives. It is just that the conservative consensus that dominates intellectual 
and cultural life in this country today ensures that such voices do not get a 
hearing. The knowledge that such voices do not get a hearing, and that the 
mandarins who control the media are such that they will not rock the stagnant 
and comfortable consensus of cultural life also ensures an insidious form of 
self-censorship. Why say what you feel when you know it will not be heard. 
Why say what you feel when you know that you may lose your job, or never be 
able to say anything again, once you say what you feel.

But the true test of a free society lies in whether or not it makes room in 
its cultural and intellectual life for the un-popular, the un-reasonable, the 
marginal and the 'difficult to swallow' kind of opinion or idea. Therein lies 
the difference between the first amendment to the constitution in the United 
States (which to the discomfort of successive American administrations, 
including the current one, has been successful in protecting the rights of 
American citizens to free speech) and the first amendment to the Indian 
constitution (which by adding the clauses of 'public order, unity and 
integrity of the state, and relations with friendly states' to the already 
existing, 'decency and morality', as grounds for reasonable restrictions on 
the right to free speech and expression, laid the foundations for an 
apparatus of repression and a climate of at times overt, but mainly insidious 
censorship. Qualified free speech cannot be free speech, and restrictions, 
especially when imposed by fiat are nothing more than restrictions. 

Today, the illusion that we are the worlds largest democracy actually permits 
the blasé indifference that we have towards the cancer of a burgeoning 
national security state, and a corporatization of the intellect that is 
committed to the creation of a climate in which people will think twice 
before they ask any questions, or speak their minds. Parallel to this is a 
tightening regime of  intellectual property rights that seeks to parcel the 
entire domain of culture into proprietary fragments, with little room for 
creative appropriation of generally available cultural materials. 

We must be grateful for small mercies while we can,  such as the fact that 
the work of say someone like Rabindranath Tagore has at last escaped the 
prison of the copyright law and is a denizen of the public domain again, and 
is now free to be used for all sorts of good, bad and indifferent forms of 
interpretation and re-appropriation. But were someone like Tagore alive 
today, he would find his creative energies considerably curtailed, not only 
by a right wing cultural agenda that would frown upon his syncretist and free 
thinking biases, but also by a copyright regime that would be quite harsh 
with his tendency towards the liberal re-appropriation of existing cultural 
materials. A substantial chunk of the music  of what is called ''Rabindra 
Sangeet'', for instance could, (were it to be composed today, with the same 
openness that it entails to the re-purposing of existing musical material) 
open the doors for extensive litigation under existing copyright law. The 
project of free speech, and of free cultural expression in general stands 
imperiled, precariously perched between the scrutiny of the censor board and 
the fiats of the copyright junta.

But what of ideas and expressions that any reasonable person would find 
repugnant? Does free speech mean that these too should be aired and easily 
available to the general public. I am afraid it does, with a significant 
caveat. Anything that involves coercion in its making should be open to 
restrictions on the grounds that the generation of the work involves a 
violation of liberty. This would mean that specifically, pornography that 
photographically depicts children is a violation of a child's right not to 
have to be the object of adult sexual attention. Similarly any work of art,or 
any form of representation that involves (in its production) people being 
made to do things that they have not consented to, is open to challenge on 
the grounds that its making is dependent on the loss of liberty of those it 
depicts. And should a person say that a work violates their sense of privacy, 
or their liberty, or has reasonable grounds on which to claim that they have 
been defamed through libel, then it could be argued that the work reaching 
the public domain would involve injury and damage to their person that cannot 
be mitigated by the benefits accruing to society from the public exposure of 
the work. On these, and on these grounds alone would I hesitantly countenance 
restrictions on expression.

But in the final instance, the only guarantee that the effects of anything 
that one may consider morally repugnant can be countered, lies in the 
existence of a climate of free debate, in which such works, ideas, or 
representations can be encountered, challenged and criticised openly by other 
ideas and expressions. Material that may be considered offensive will 
circulate no matter how rigidly it is proscribed, and it will circulate in 
conditions of secrecy and anonymity, un-challenged and un-criticized, thereby 
actually retaining a far greater propensity to impact upon the consciousness 
of those who have no resources at hand with which to be able to be think and 
respond critically towards their content. 

Those liberals who plead that we as a society are not 'mature enough' to 
have, for instance, the freedom of all to transmit radio signals because, 
'fascist and communal forces' will vitiate the already tense environment with 
hate speech, abdicate their own responsibilities to enhance their own  
communicative capacity to create arguments that can counter hate speech. As a 
result, hate speech and communal propaganda circulates quite easily, with 
successfully alternating degrees of surreptitiousness and blatant openness in 
our society. 

Those Indian feminists (by no means all feminists) who call for bans on 
certain kinds of films or other visual materials because they degrade women 
through depictions of a sexual nature make a similar mistake. By refusing to 
engage with the task of generating and supporting an eroticism that affirms 
women and their agency as subjects they ensure that the vast majority of 
representations of women that circulate in popular culture are in fact 
anti-women. 

Similarly, the claims of secular intellectuals to be avid votaries of 
openness in culture rings hollow when they apply double standards about what 
can and cannot be censored. While the re-writing of history text books to 
suit the agenda of Hindu fundamentalists is no doubt a matter that deserves 
protest and condemnation, such condemnation, when it comes from those who 
were comatose when the Indian state was the first to ban Salman Rushdie's 
“''Satanic Verses'' to appease bigots who happenned to be Muslims cannot but 
smack of a certain degree of hypocrisy. 

Freedom of speech cannot be parceled out in degrees, it cannot be more for 
some and less for others. It either exists in totality, as the guarantee that 
the most despised or marginal or outlandish opinion can get a hearing so that 
people can make up their own minds about what to believe, or agree or 
disagree with, or it does not exist. There cannot be ambiguities or a middle 
ground, in so far as liberty is concerned. To think that there can is to 
assume that people are content with half truths, or deserve no better than 
what their masters, (or 'betters') want them to hear or say.

If even a minority of opinions or expressions are censored,  leaving room for 
a large margin in which people can openly disagree on the basis of some 
consensual foundations, we still do not fulfill the criteria of what it means 
to be a free society. This is because it is precisely the point of view that 
may be marginal today, which may be dismissed as irrelevant, unpopular, 
bizarre or alien that needs the space to let itself be heard, so that it may 
be recognized for what it is worth, if it has any merit in the first place.

In fact, freedom of speech and expression, and its necessary corollary, the 
right to information, in their total and absolute sense, must not be seen as 
privileges that an elite can garner for itself, and which can be compromised 
or jettisoned for the benefit of society at large, but need to be recognised 
as the very basis for the assertion of any basic claims to justice and 
liberty that the vast sections of the population who have little or no access 
to the mechanisms of power can make. 

An elite can afford a climate of repression, because it has the power to say 
or do, or see what it wants in any case. Madam Mao for instance, was fond of 
seeing precisely the kind of films that she had banned in China on the 
grounds of moral degeneracy. It is also well known that the cardinals who 
maintained the index of proscribed works in the Vatican were for centuries 
the most erudite connoisseurs of all manner of forbidden writing, ranging 
from the strictly pornographic to radical philosophical and political tracts, 
and forbidden scientific texts that challenged the cosmology of the church. 

An elite can afford a culture of secrecy and repression because it wishes 
that many of its own operations, particularly those that involve large 
magnitudes of power with very severe consequences for the general population, 
be veiled from public scrutiny. It is those who have little or no power who 
stand to gain from a culture of transparency and openness in public life. 
This is also why freedom of speech is intimately connected to publicly 
available access to knowledge and information. Any restriction on the public 
availability of information is also simultaneously an attack on free speech. 
The state, which hides behind the Official Secrets Act, and the proposed, 
toothless Freedom of Information Bill, with its labyrinthine non-disclosure 
conditions, is a major culprit in this regard. Why for instance, details of 
defence purchases and other military matters should not be public knowledge 
is easy to understand. Simply because this one fact would expose the vicious 
grip that an emerging and homegrown military-industrial complex has over 
public policy. But why should we have to pretend to ourselves that a law that 
stipulates that we have the constitutional right to know anything provided it 
occurred more than twenty five years ago, and that it is not something that 
involves knowledge about any aspect of the functioning of the security and 
intelligence organs of the state, even more than twenty five years ago. 

But the state is by no means the only shackle on free speech and information 
freedom
Copyright laws in their present form maintain the fiction of something called 
intellectual property as a means of restricting free access to cultural 
material, by preventing its free reproducibility through a regime of harsh 
punitive measures. In effect this ensures that ideas and expressions remain 
imprisoned behind the barricades of high costs that benefit neither authors, 
nor their public but serve instead to protect the interests of the 
corporations that control intellectual and cultural production. The state is 
only too happy to have this additional instrument of effective censorship, as 
a means of controlling what can be expressed in society.

If you are poor, a member of a minority group, disenfranchised, or 
disadvantaged in any way by the way society functions, then the liberty to 
speak your mind, and to communicate your views, or to listen to or read what 
others others might have to say, may be the only means at hand for you to be 
able to begin to effect any change at all on the conditions of your 
powerlessness. Those who argue that free speech is something that one can 
afford once everyone has had a decent meal, or has access to clean drinking 
water, or basic amenities like housing, a clean environment and education, or 
fair wages and equitable industrial relations miss the point. Free speech is 
precisely the means by which the demands for all those things can be 
effectively articulated, not only to those in power, but also by the 
powerless to themselves  and to those who can be their potential allies in 
the everyday struggles to wrest a life for all that guarantees liberty and 
dignity. 

The state and other organs of power do not give us any of these things as 
gifts out of benevolence. They have to be fought for and maintained on a 
daily basis, the only way that we can do this is by being vigilant in terms 
of knowing how power operates, (which means access to information) and to 
communicate both the necessity of these conditions as absolute pre-requisites 
of social existence, and to debate strategies by which they may be achieved. 
In the present world it is inconceivable that those who are powerless can 
defeat power by the force of arms, because they will never be able to match 
arsenals that include weapons of mass destruction, nor should they desire to 
do so. The only thing they can do is to wear the edifice of the legitimacy of 
power down by repeated, relentless argument, and by choosing to remain silent 
about anything that can make them vulnerable to the machine of power. This 
means that in order to even think of achieving the basic necessities of life 
for all in a dignified and equitable form, it is necessary to insist that the 
freedom to speak, to know, and to be free of the fear of surveillance be won 
and protected.

To infringe upon these liberties under any circumstances is a guarantee that 
the apparatus of power remains unchallenged. A society that protects 
privilege at the cost of justice cannot be a democracy. Perhaps it is time 
for us to think about what we want our society to be, and to begin speaking 
of a few things that cannot be said easily.