Responding to offensive expression

PETER RONALD deSOUZA

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WHAT should be the societal and state response to a particular group’s claim to hurt/offend – whether by a painting, film, book, play, picture, cartoon, poem, essay, musical band, and now increasingly, a statement. As a rule we treat freedom of expression as a foundational principle of the state and hence do not question its status as one of the core principles on which the polity is based. This brief note attempts to explore if a claim made by a particular group, of being deeply offended, needs to be treated differently from similar claims made by other groups and, therefore, whether there are legitimate grounds for differential action by the state. Before I explore the ethical issues of this special case, let me get some important issues that are a significant part of the public discussion on freedom of expression out of the way. Flagging them at the outset helps limit the territory of the argument being advanced. The goal here is very specific – to examine, in the context of Indian democracy, the merits of a particular claim.

Let me begin by specifying what is not being said. The public discussion on freedom of expression controversies in India has three significant dimensions that this essay, while recognizing as important, will not discuss. The first concerns the politics of the controversy, the working of our democracy, the internal and external pressures and the consequences that follow from them.1 There are many issues involved here, such as the growing dynamics of identity politics in India and the ethnic grandstanding that it produces; the veto power that leaders of large communities have come to acquire in a period of coalition politics and which they use to consolidate their hold over their respective communities; the reasons behind the haste with which the state succumbs to the threat of violence by those who claim to be offended, converting what should have been a response of the last instance, when other options have been unsuccessful, to often the first response; the fact that the threshold at which offence is taken has dropped rather than risen as our democracy expands and becomes more mature; or the transition from a public culture of skepticism to one of increasing self-censorship.

 

These are interesting issues that describe the inner workings of our democracy and focus on the aspect of agency exercised by individuals, groups, communities, and organizations, the strategies they adopt in the public domain as they seek to maximize their gains, against other groups and against the state. There has been considerable commentary on this political dimension of the controversy where the attention has been more on its sociological, cultural and economic and less on its ethical aspects. It is the latter that I wish to explore here.

A second dimension, in contrast, does concern ethical issues but the focus is on the fairness of procedures that have been followed to determine whether the expression in question is indeed offensive. It looks at the manner in which the institutions of the state – the executive, bureaucracy, police and courts – have responded to the claim of a group to being deeply offended by an expression. The concern is with the procedures that have been, or should be, adopted, and to examine whether the state’s response is consistent with constitutional guidelines.

 

In the past six plus decades the procedural response to many of the controversies on freedom of expression in Independent India has been less than proper.2 The recent case of a lecture being cancelled by Madras University because it was interrogating Islam; the withdrawal of a poem from a Calicut University literature course because the author was in Guantanamo prison; the prosecution by the West Bengal government of a professor who circulated, by email, a critical comment on the chief minister; the filing of a case by the Mumbai police against a woman who posted a criticism of a powerful politician on Facebook; or, as recently as the first week of August 2013, the harassment of a dalit intellectual in Uttar Pradesh for commenting on the demolition of a wall of a place of worship on the grounds that it would lead to communal disharmony, are all instances of improper procedures followed by the state in restricting the freedom of expression.

A debate about weak adherence to constitutional procedures must be robustly pursued since it educates citizens about the importance of constitutional morality. This second aspect too I shall not discuss here. Rather than focus on fair procedures, I want instead to look at the validity of the moral claims that a group makes with respect to offensive expression, and to examine what might constitute a justified response by society and state to these claims.

The third issue concerns the cultural question of the place of art in a society, even offensive art such as transgressive art. In India we had a interesting discussion on this aspect when the painter M.F. Husain was forced into exile as a result of the inability of India’s highest court to protect his freedom of expression.3 This discussion by art scholars, legal theorists, and political philosophers, among others, makes a fascinating and persuasive case for a greater level of tolerance for artistic expression. It explores the ways in which new experimental art adds to society’s sensibilities. It looks at the changes in our creative perceptions that art offers, and since it is this creativity that sets us human beings apart from the rest of creation, constituting the core of our evolutionary success, we must be more tolerant and perhaps even appreciative of such art.

 

By presenting that case in this way we are forced to address the question of whether artistic expression, even if offensive, requires greater tolerance than non-artistic expression. Although this is an interesting and complex question, here I shall make no distinction between the two. All I want to do in this essay is to examine the ‘load of offence’ that a society committed to freedom must be willing to bear in the face of a claim by some group that a particular expression is deeply offensive. There are many instances of such claims and hence, rather than going into details, I shall look at some general issues which have a very Indian location. So while I accept the value of the universal principle, this essay will attempt to give the principle an Indian accent. The challenge of political philosophy is to argue for universal principles that speak to us, to the future good society that we seek to craft for ourselves. This essay should be read as one attempt in that direction.

 

In recent times two episodes need decoding – a cartoon in a textbook, and a comment at a literary festival to which many dalit scholars took umbrage and demanded state action.4 The issue at stake is offence produced by the cartoon and by the statement, and whether these caused not just psychological pain but also, obliquely, endorsed an attitude of the past where dalits were looked down upon and the humiliation produced by speech and gesture was the order of the day. The dalit claim is that expressions that replicate such humiliation must be censored and further, that the persons responsible punished. To move our society and polity in a more egalitarian and humanist direction, they argue, enjoins us to take punitive action against such expressions. Freedom of expression on these matters, they aver, is merely an excuse for camouflaging an upper caste sensibility, one which not only has an oppressive history but has infected our minds and, as a consequence, determines our behaviour. One way to excise such a sensibility from our consciousness is to locate it in speech, thought and action, and punish it. This will serve as a deterrent and, over time, as a new generation that has grown up in a different social milieu takes over our social spaces, such acts of humiliation and discrimination will fade away. Future freedom requires censorship, if not punishment, in the present.

This is a strong demand and requires us to address some of the following questions: What is the value of actions and speech that may cause offence in a free society? How much offence, i.e., an acceptable load, should a society be willing to bear? Is there a threshold beyond which it is legitimate to restrict and censor such expressions of offence? Must all groups accept offence equally or is the threshold lower for some groups, e.g., women and dalits, who must be given preferential treatment? What are the grounds for such preferential treatment in a society where the freedom of expression is a core principle?

 

Let me begin by looking at the claim made by dalit groups. A society committed to freedom of expression must seek to create a reflexive public culture where thought and expression are the means by which we understand our human condition and where, through these expressions, we attempt to answer the eternal and existentially troubling question of our own place in the cosmos. Thought that provokes is thought that opens our minds to multiple possibilities. Because it provokes we cannot ignore it and are hence compelled to take an ethical position. Freedom of expression, as a foundational principle of our society, offers us new ways of seeing and living. Creating, thus, the conditions for such an opening of horizons is a major obligation of both state and society. Censorship and punishment diminish such enabling conditions because they introduce a culture of fear and prudence, a culture that is not conducive to art. And that is why we accept that censorship and punishment must be exercised only in rare cases and only after due process. But when such expression is deeply hurtful to a humiliated community, can we offer this argument as a valid response?

The answer may lie in the idea of the ‘threshold of offence’. I accept that no society permits an absolute right of expression and that when an expression crosses a certain ‘threshold of offensiveness’, to be determined both procedurally and substantively, it is legitimate to restrict it. This has been the case even in the most liberal of societies. The goal of a constitutional democracy is to keep that threshold at which offence is taken notice of by the state high and to work to make it higher. The historical experience that as democracies mature, the threshold at which an expression is considered offensive rises higher.

In India, in contrast, we face a paradoxical situation. As our democracy expands, and more groups enter the political space, the threshold in fact gets lower. Groups use the claim of offence to strengthen their positional advantage vis-à-vis the state and other groups. Since India is perhaps one of the most plural polities in history, the claim of being offended becomes more frequent, and shriller, as politics gets more competitive, and as the spoils of office become more attractive and within reach. And that is why examining the claim of being offended and searching for the grounds that would constitute a legitimate response by the state and society is so important for our democratic future.

 

The claim that I wish to examine here, the Indian accent, relates to the dalit community. The dalit claim, I believe, creates a case for differential treatment. An argument similar to that made in the case of reservations, the ‘reparation’ argument,5 can also be made here. If one looks at the unjust laws that the dalit community has had to endure,6 or at the humiliation that has been and continues to be heaped on the community,7 or at the poems and short stories of dalit writers,8 one gets a sense of the special nature of the claim. The sociocultural history of relations between the dominant and the dalit castes is a record of pain, humiliation and cruelty that is simply horrifying and hence places a special burden on the contemporary to undo the wrong.

Reparation is one response. In matters of expression, it would require lowering the threshold of offence. Because of the history of offence that the dalit community has historically experienced, democratic India must be less tolerant to expressions that the community considers to be deeply offensive. This offensiveness must be established and when it is done the response by the state and society should not be to ask the community to live with the offence because of some principle of the greater good and the public interest, but rather seek to redress the offence and censor the expression. In essence, the logic must be reversed – in the public interest the state must disallow the offensive expressions against the dalit community.

 

I am not proposing that there should be zero tolerance and that every claim of being offended must be entertained, nor am I defending a dalit vigilantism. I am instead making a case for a dalit-sensitive constitutional morality. How this is to be translated into policy outcomes is not something I propose to elaborate here, since my aim is merely to search for ethical grounds for the state’s response. I make only the limited argument that the state is morally required to accept that it must adopt a differential response when the claim of being deeply offended comes from the dalit community than when it comes from any other social group. The aspiration for a democratic present places on the state this burden of reparation. In the case of other groups, the claim for a differential response in the present is much weaker because the burden of historical abuse, which provides a basis for reparation, is significantly absent. Other groups have to learn to live with a higher threshold of offence if society is to benefit from the gains spelt out earlier.

 

By accepting the reparation argument, the state positions itself against society which it regards as regressive and a repository of casteist attitudes that replicate humiliation and discrimination against dalits. By conceding the need for a differential response – of a lower threshold of living with offensive expression when it is directed against dalits as against a higher threshold for other groups – the state recognizes its responsibility to move society to a higher level of decency than has been the case in the past. The past is not another country. It carries a legacy of indecency into the present, a legacy that is burdensome and that any constitutional republic must redress. To do so it must enact rules, in the present, that dismantle this legacy. Therefore, by lowering the threshold, in the case of dalits, at which offensive expression will be tolerated, the state regulates society with the threat of punishment and by doing so secures the grounds for an egalitarian future. Social attitudes that humiliate the dalit must be not just discouraged but frowned upon. Through a paradoxical route the state, by lowering the threshold at which offensive expression against dalits will be tolerated, expands the space for creative expression. The dalit silence in the public sphere, that marked the centuries of humiliation, now acquires a voice. One has only to read the auto-biographies of dalit writers to get a sense of this new liberation.

But this deviation from the standard rule of living with higher levels of tolerance towards offensive expression, if we are to move away from a culture of censorship and thereby deprive society of plural ways of seeing, comes with a responsibility that dalit leadership, especially intellectual leadership, must carry. It must internally, within the community, begin to nurture an attitude of skepticism towards texts, practices and icons of the community. The ultimate vision remains the same – of living with a higher threshold of offensive expression, of encouraging and expanding the domain of freedom of expression even if that expression is unpalatable. As a society becomes more plural in its voices, it thereby acquires the cultural resources to deal with offence. Irony and offensive humour are not seen as threatening. Cartoons do not produce a memory of pain but instead a visual that causes one to smile.

 

As society distances itself from its own disgraceful past, an emotional remoteness begins to emerge which produces the capacity to look back at this past with dispassion. Yet, even disgraceful cultural pasts of oppression must be governed by the doctrine of limitations. They cannot be used continuously for positional advantage. How many decades must pass before we are confident about ourselves? Answering this question is the moral load that dalit intellectuals have to carry when they accept the values and aspirations of the republican constitutional order. If a society of decency is to be built, then along with the voice of anger and pain at an oppressive past must come the seeds of the new dawn of skepticism and humour. The ‘yo mama’ jokes of the Black community in the US, the children of slavery, is a sign of the way forward. If we think carefully about these forms of cultural expression; jokes, rap, greetings, signs, and language, by a community that faced intolerable oppression, then we begin to see how the dominant cultural expressions have been infiltrated.

Tieless in the White House is now quite cool. The goal is to move all of society to be more cool. It sounds cool to say this but we still have a long way to go in India. I do not want to short-circuit the process, to its detriment, but I certainly want to hasten it. One way to do so is to go against the easy and respectable argument that freedom of expression requires all communities to live with offensive expression. I have tried to argue for a differential response with respect to deep offence, established by due process which cannot be wished away, faced by the dalit community. Lowering the threshold is an initial step in this process. But it can only be a temporary step.

How long is the ‘temporary’ is a complex question. We will have to answer it by initiating a public debate, especially since we know that in India political leaders like to perpetuate such special treatment. They do so for their own personal short-term gains even if these are detrimental to the long-term interests of their particular constituency. To reiterate, even disgraceful cultural pasts must be governed by the doctrine of limitations. We have to move on if we wish to build a life of dignity for all. No community can continue to live with a sense of itself as the perpetual victim. It must move from victimhood to equal respect. This emergence from victimhood into equal citizenship may take some time. It may take some painful manoeuvring by the leadership, but sagacity and farsightedness can take us there. The first step is to argue for lowering the threshold and doing so by accepting the procedures of the constitutional republic.

 

Footnotes:

1. Peter Ronald deSouza, ‘A Habit of Banning’, Seminar 634, June 2012.

2. Peter Ronald deSouza, ‘Through the Lens of a Constitutional Republic: The Case of the Controversial Textbook’, Economic and Political Weekly, 2 June 2010.

3. Peter Ronald deSouza, Review of Barefoot Across the Nation: Maqbool Fida Husain and the Idea of India edited by Sumathi Ramaswamy. Routledge, London and New York, 2011; Seminar 631, March 2012.

4. Peter Ronald deSouza, ‘The Compelling Compromise’, The Indian Express, 11 February 2013; Gopal Guru, ‘Freedom of Expression and the Life of the Dalit Mind’, Economic and Political Weekly, 9 March 2013.

5. Marc Galanter, Law and Society in Modern India. Oxford University Press, New Delhi, 1989.

6. Upendra Baxi, ‘Justice as Emancipation: The Legacy of Babasaheb Ambedkar’, in Upendra Baxi and Bhikhu Parekh (eds.), Crisis and Change in Contemporary India. Sage, New Delhi, 1995, pp. 122-49.

7. Gopal Guru (ed.), Humiliation: Claims and Context. Oxford University Press, New Delhi, 2011.

8. Arjun Dangle (ed.), Poisoned Bread. Orient Blackswan, Delhi, 2009.

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