[Reader-list] More on Free expression for Non-citizens

[ARNAB CHATTERJEE]

Dear Sarai readers and writers,
                                                      
          Some confusions have been creeping it seems.
Perhaps I am aware of what could be claimed by
non-citizens in terms of close-ended constitutional
statements  in India and how they are extended in
interpretive operation. For that specially, there were
two levels I had demarcated for arguing differently,
one--the case for ordinary legalism in India and other
international paradigms when taken globally. Let me
expand on this further and clarify this through  an
example! And that too the Taslima one! 
  
 You will remember that her Dwakhindita was banned by
the west Bengal government, the government lost the
case and the book was released. Though it was
published by an Indian publisher, the writer being a
non-citizen is ofcourse a case in point since the
clause within which it was banned, inhibited its
production on the web too (meaning this text by this
writer ( minus its publisher) could not made available
in some other form as
well). If it were simply a case of an alien writer who
has no protection akin to the citizen, it would have
been enough for the 
government to ban it on that ground, and ban it
eternally. It would have been an end there. But the
case ( against forbidding legitimate speech) was filed
and
won with some qualifications; one of the two (results
of litigation) being 
Taslima had to agree to delete ( or distort: Samsul
Haque became Said Haque) in order to escape the charge
of defamation-- the proper names of real writers whom
she had named for unethical sexual escapades with her.
Now, the case of the Indian publisher filing the case
may be cited paramountly as a counter point. But any
non-citizen when speaks or writes-you will find a
whole regime of parties involved ( the landlord is
also arrested with a suspected snooper) and therefore
ultimately it is considered within the norm and
grounds of the familiar turf that is here; the
reasonable permissions and restrictions that obtain.
This is in the case of speech; charges of terrorism,
spying, active political parleying and sedition take a
different hue altogether.
     However, look at it now from another angle. That
the Taslima case could not be won juridically was
understood and thus given  another turn: the threat of
public disorder and communal war was staged
practically and Taslima deported to another state
successfully with sheer haste( Calcutta Highcourt had
said that W.B Government’s anticipative simple  threat
perception was not an adequate ground to forbid the
production and circulation of Dwakhindito; though take
it that this was all an opration inspired by Sunil
Gangopadhyaya and co. influencing Buddhadev
Bhattacharya and not the reverse).
           So I again reiterate, in the Taslima case
free speech is ofcourse a strong ground and that is
where the battle has been fought till now. And the
defeat on that ground being imminent, the grounds of
reasonable restriction are being irrationally charted
with voluntarism: they are lifted out from the pages
of law and played out in the open fields. And in this
case if you read my statement “The former do have
freedom of speech( in the ordinary sense) but are
prone to all 'reasonable restrtictions' and
modifications that the government could subject these
laws and modifications to” will have become clearer.As
evident when I specially mention ordinary, it has a
special weight. Every government ( and the political
type so much matters here) does sanction in this some
form ( consider some American poets have assembled for
a poetry session in an India city, they cannot just be
hounded out because only  right to life is  guranteed
here [ in a country where capital punishment exists,
Lawrence and Jeebesh know how this fundamental right
features for their own citizens and in what form].
This apart, I repeat,  the freedom of speech of aliens
not only are sanctioned under Human rights orders,
international law and European convention-al norms,
they do exist “ordinarily” and could be seen in
practice in our everyday life and when it meets a
challenge is considered within the juridical
parameters of the nation state that is in question. (
Peter Bleach-a Uk citizen convicted in the Purulia
Arms dropping case—and spending years in Alipore
central jail wrote a memoir in the Hindustan Times how
he wrote the second mercy petition to the President
for that infamous Dhananjay Chaterjee, the first flop
petitition having been written by the welfare officer
of the Alipore jail.) International legal protection
or other cases ( the US one that I have cited) come
later when the national restrictions are themselves
found to have been unjustified. 

Now, to answer Sudeshna, here there is no temporal
qualification like freedom before-at-after speech and
yes ofcourse Mahmood will agree that certain forms of
writing ( literature or art) have different claims to
remedies; in this the certain authorial agencies have
also restrictive claims proper ( e.g, intellectual
property rights). And much of what Lawrence says, I’ve
addressed above, but a short reminder about the
liberal clause. I myself have been a vociferous
critique of the liberal argument for freedom of
expression and Farooqui is all the way with me here .
But I want to forget my own critique and as a counter
point to Liang here, let me spell briefly what the
liberals would argue in defence. They will say, it is
not about Taslima’s freedom of critical speech that is
in question here; when the citizens or other Indians (
now you have the citizen reason here)stand for her, it
is their and all of our  freedom that is in peril
here. That cannot undercoded by the clause that
Taslima is a non-citizen. There is already a large
literature in the philosophy of law and jurisprudence
on the fact that protection to freedom of speech is a
misnomer; freedom of speech itself is a protection
against evils unlimited. What I want to mean is,
despite the stereotypical immunity, freedom of speech
istelf being protective, stands on autonomous grounds.

  Let this be for the day; I hope more diffcult legal,
extra legal arguments will be coming up.
Till then
arnab


      


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