By Daniel Hantman

In 2009,Penguin Group published a scholarly work written by Professor Wendy Donigerentitled The Hindus: An Alternative History. A professor at the University of Chicago since 1978, Doniger is generally recognized as a leading scholar on Hinduism and mythology, and her book chronicles the development of contemporary Hinduism. Her central argument is that the modern conceptualization of a unified Hinduism can be traced to the British colonial attempt to forge an understanding of the seemingly chaotic and ostensibly contradictory collection of religious practices and traditions across the Indian subcontinent. However, this understanding was flawed, Doniger argues, because it was rooted in Protestant biases that elevated Sanskrit scripture over local languages and traditions and it ignored the foundational role of women, people of lower castes other traditionally disempowered groups, and pre-Vedic religious traditions in shaping the extremely diverse collections of religious practice and theologies in South Asia.

The following year, DinanathBatra, a retired school headmaster and Hindu nationalist activist, sent a legal notice to Wendy Doniger and Penguin Group’s Indian subsidiary. In his notice, Batra claimed that the book was “a shallow, distorted and non-serious presentation of Hinduism” that was “written with a Christian missionary zeal and hidden agenda to denigrate Hindus and show their religion in poor light.” (Legal Notice Reference No. 254/LN/0310, Mar. 3, 2010 ¶¶ 5-6). The notice asserted that Doniger and her publisher were criminally liable for “intentionally, deliberately and maliciously hurt[ing] the religious sentiments of the Hindu Community” and demanded that they “immediately tender an unconditional apology to the people of India and to the millions of Hindus all around the world; [] withdraw the said objectionable parts from your book and [] undertake not to offend the religious sentiments of the Hindus in future.” Id. at ¶¶ 41, 47. After mounting pressure and settlement talks, but prior to any governmental action or threats of public disorder, Penguin Group agreed to withdraw and destroy copies of the book and refrain from future distribution in India.

The landscape of Indian free expression jurisprudence and the concomitant controversy it invariably generates highlights a significant legal and governmental paradox. On the one hand, the Indian governmental system is structured as a democratic republic that is naturally couched in an Enlightenment emphasis on individual liberty and personal autonomy. Simultaneously, however, this system of government is applied to societies that tend to define themselves communally and which traditionally do not see the individual as the basic unit of social analysis. Although this civic tension finds multiple expressions in India, the Indian approach to expressive freedom provides a particularly salient example of a state’s attempt to reconcile a mode of governance grounded in Classical Liberal principles with traditional, communal social values.

These social tensions often generate unrest that can range from vociferous protests to deadlyviolence. India’s legal institutions have attempted to resolve this tension by constructing a framework thatliberally permits the government to restrict speech that is socially offensive and emotionally harmful in an attempt to reconcile the competing rights of individual liberty, manifested asexpressive freedom,withprotecting communal sensibilities, manifested as social harmony and collective, emotional wellbeing and dignity. The first part of this essay will explore this tension and the Indian legal system’s attempt to manage it. Woven throughout is a comparison to the American approach to restricting hate speech to illustrate the stark contrast between the two approaches and to demonstrate the idiosyncratic journey that Indian free expression jurisprudence has undertaken since independence.The second part will argue that historical and sociopolitical factors also, if not predominantly, control India’s approach to regulating this type of speech, and that India’s current approach hampers its ability to develop the type of healthy national discourse democratic republics require and undermines the goal of securing the emotional wellbeing and dignity that this approach ostensibly seeks.

India’s government is a democratic republicframed by a constitution that defines the various governmental institutions and affirmatively details their scope of authority by enumerating the grounds upon which they may act. Naturally, this system of government assumes a particular relationship between state sovereignty and the citizen. This relationship follows the traditional post-Enlightenment approach to governance developed in the West during the eighteenth and nineteenth centuries: that governmental authority arises entirely from the exclusive sovereignty of citizens and is constructed in order to secure the natural rights all individuals possess and those civil rights upon which citizens agree to allow reasonable restraints for the benefit of society. Grounded in an Enlightenment emphasis on the role of the individual as the basic unit of social analysis, this approach to governance required new definitions of rationalism, freedom, equality, and democracy that elevated individual autonomy to vastly greater importance. While post-colonial India largely avoided the type of social, bourgeois revolutions that rocked much of Europe during the eighteenth and nineteenth centuries, the tension between Western forms of governance and indigenous patterns of social organization elicited alternative manifestations.

The framers of India’s constitution recognized the challenges in establishing a modern democratic republic in a society that was characterized by BhimraoRamjiAmbedkar, an early Indian statesman, jurist, and chairman of the Constitutional Drafting Committee,as basically communal and “essentially undemocratic.”Constitutional Assembly Debates: Official Reports Vol. VII: Nov. 4, 1948, at 38. Thus, the framers of India’s constitution recognized the need to strike a practical balance that would allow the state to form a functioning government around Enlightenment ideals within Indian cultural contexts.

Like the First Amendment to the American Constitution, Article 19 of the Indian Constitution protects the freedom of expression. Section One of Article 19 provides that “[a]ll citizens shall have the right (a) to freedom of speech and expression” and other expressive rights such as freedoms of assembly and to practice any profession. INDIA CONST. Art. 19 § 1. Interestingly, while the state extends this right to the people in Section One of Article 19, Section Two of Article 19 provides a broad foundation for legitimate governmental restrictions on expressive freedom by allowing the state to impose “reasonable restrictions . . . in the interests of” a myriad number of enumerated, but purposively vague, bases such as “public order,” “decency,” or “morality” among others. Id. at Art 19 § 2.

There are three key differences between the Indian and American constitutional provisions that protect expressive freedom. Each of these differencesdemonstrates how the Indian approach privileges the state’s ability to regulate speech to preserve social harmony and emotional wellbeing over the type of individual autonomy and personal freedom associated the American approach.

The first difference lies in the linguistic scope of the provisions themselves. While it guarantees the right to expressive freedom, the Indian constitutional text also lays out valid bases for the state to impose restrictions. This textual difference exists in stark contrast to the first amendment contained in the American constitution, which prohibits restrictions on speech categorically. Although American jurisprudence does not follow the First Amendment’s categorical approach, American courts extend the most rigorous protection to socially offensive and emotionally harmful speech to the extent it does not fall into an unprotected category. See Snyder v. Phelps, 131 S. Ct. 1207, 1218-19 (2011) (holding that emotionally damaging or offensive speech “cannot be restricted simply because it is upsetting or arouses contempt” or “because society finds the idea itself offensive or disagreeable”). In contrast, India’s deliberate enumeration of free expression limitations demonstrates that India’s framers attempted to strike a different balance between individual freedoms and the potential, negative externalities that could result from speech that is emotionally harmful or exacerbates enmity between different social groups.

A second key difference from the American approach emerges from a close reading of Section Two of Article 19 of India’s constitution. India’s constitutional text describes the right to free expression as “the right conferred by” the state, which is affirmatively granted to the people in Section One.This language implies that the Indian framers viewed, or at least treated, the right to expressive freedom as a legal right and not a natural right. In contrast, the American constitution, following in the Classical Liberal tradition, views free speech as a natural or inalienable right that does not flow from the graces of the state, but rather one whose source is located within the innate humanity of each citizen.Although natural rights are certainly not absolute in the American approach,the fact that the American constitution identifies the source of the right to free speech as residing in the people makes it more difficult for the state to restrict it because that source is not the state. Although it can enforce modest restrictions,the American government cannot restrict this right easily because, under its approach, the people and not the government are the source of the right. In contrast, the Indian constitution frames expressive freedom as a legal right rather than as a natural right, and thus state restrictions of speech become easier to justify.

The final difference in the Indian approach to restricting speech is also codified in the provision that allows the Indian government to impose “reasonable restrictions” on its citizens’ right to expressive freedom. INDIA CONST. Art. 19 § 2.Naturally, this reasonable standard has different statutory expressions depending on the type of restriction. Nevertheless, as the Indian statutory framework regulating speech and the application and judicial exploration thereof demonstrate, the Indian definition of reasonable is far more flexible than the standards governing restriction of speech in American jurisprudence. When viewed in tandem with the comparatively weak restrictions governing the type of process the Indian government must provide someone to deprive him or her of life or liberty, all that the Indian constitution requires for a restriction on expression to be lawful is that the restriction on speech be “reasonable” and that it was imposed pursuant to some form of legitimate government action. See id.; id.at Art. 21 (“No person shall be deprived of his life or personal liberty except according to procedure established by law.”).

Building upon this constitutional foundation, the Indian government has developed a statutory regime permitting the suppression and criminalization of speech that is emotionally harmful or socially offensive. The two pillars of this regulatory framework are Sections 153A and 295A of the Indian Penal Code, statutes enacted by the British Colonial Governmentand retained by India at independence. Section 153A criminalizes speech that “is prejudicial to the maintenance of harmony between different” religious or social groups. India Pen. Code (1972), § 153A(1)(a)-(b). Similarly, Section 295A imposes criminal liability on anyone who “with deliberate and malicious intention of outraging the religious feelings of any class . . . insults the religion or religious beliefs of that class.” Id. at § 295A.

Notwithstanding the criminal sanctions provided by Sections 153A and 295A, in recent years, there has been less of an emphasis on prosecuting individuals directly for these offenses and more on banning and seizing offensive materials though Sections 95 and 96 of the Code of Criminal Procedure. These provisions collectively allow the government to ban the publication of any materials that violate, or would violate, Section 153A or Section 295A and to confiscate the materials indefinitely or until an injured party files a petition to set aside the forfeiture or ban order. The Indian Supreme Court has affirmed the constitutionality of this regulatory regime, striking a balance competing interests such as protecting individual freedom and maintainingsocial harmony in a manner that allows the state to privilege the latter. See, e.g.,RamjiLalModi v. State of Uttar Pradesh, 1957 S.C.R. 860 (India 1957) (while affirming a conviction under Section 295A, holding that Section Two of Article 19 of the Indian Constitution permits the government to impose criminal liability so long as the restriction falls within the broad test of being “in the interests of public order,” even if a nexus between speech that may result in public disorder and an actual disturbance of or proximate threat to public order is lacking); Sri BaragurRamachandrappa v. State of Karnataka, 5 S.C.C. 11 (India 2007) (affirming the ban and forfeiture of a novel with a controversial plot involving a twelfth century Vedic saint and philosopherpursuant to alleged violations of Sections 153A and 295A even when there was no breach of or even a remote threat to public order and the ban and forfeiture order was consistent with the government’s authority to prevent general outrage in “ordinary times”).

In addition to the expansive framework for restricting socially offensive and emotionally harmful speech provided by India’s constitutional framework and developed by the Indian framers and Supreme Court, other social and historical factors contribute to India’s comparative willingness to restrict this type of speech. These other factors include the historical legacy of colonialism and the sociopolitical function of quelling social conflict and conspicuously demonstrating governmental accountability.

Colonialism in South Asia acted as a powerful resynthesizing force, reconstituting through a foreign lens many fundamental aspects of society ranging from religious practice and theology to political governance. Due to misunderstanding, ignorance, and convenience, the British colonial project created an ethnocentric, simplified understanding of South Asian social structures, religious traditions and relations, and political dynamics as a hermeneutic framework to allow it to implement rational policies in pursuit colonial of goals, such as mercantile capitalist wealth extraction and spreading peace and harmony based on “good” Christian morals. Aside from conquest, the key mechanism for implementing this understanding consisted of establishing English-derived common law rule buttressed by statutory enactments that protected British colonial interests.

Introduced in 1898 and amended in 1927, Section 153A initially sought to maintain harmony between the local population and Europeans during colonial rule.Similarly, the British introduced Section 295A in 1927 to quell the appearance of favoritism thereby preventing social instability and resentment toward British suzerainty, a particularly pronounced British fear after the turbulence of the Rebellion of 1857. These statutory enactments, along with the press censorship regime established in the early nineteenth century and dramatically strengthened after 1857, constituted the British attempt to secure the colonial state by suppressing ideas injurious to British rule either in the form of direct hostility toward Europeans or resentment flowing from the perceived favoritism of one social or religious group over another.

Upon independence, the India inherited this control regime, and the constitutional framers and judiciary allowed it to remain in tact. In spite of, or perhaps because of, the framers’ experiences with British censorship and speech criminalization, all the colonial hate speech laws remained in force. The framers knew first-hand the threat ideas could pose to the security of the state, and the general consensus was that the state’s primary goals of developing India, mitigating poverty, and diminishing the role of caste and communalism took priority over ensuring robust expressive freedom.

While these concerns remain a challenge for contemporary India, it is not clear that maintaining a state with a remarkably expansive power to restrict speech, a power itself formulated in a colonial context to meet colonial objectives, is a viable way for a modern democratic republic to put rest the imprisoning effects of its colonial past. The force of violent or imminently combustible outrage remains a central driver of Indian politics and governance. As a result, instead of a reasoned, informed national discourse defining the appropriate the scope of citizens’ rights to “[l]iberty of thought, expression, [and] belief,” (INDIA CONST. Preamble) the contours of expressive freedom in India are too often defined by reactive government responses to social vitriol, outrage, and violence. Ironically, this familiar pattern echoes the British colonial government’s relationship with its Indian subjects.

To be sure, expressive freedom enjoys more protection in post-Independence India than it did under British rule. However, this difference is more quantitative than qualitative. The fundamental drivers of Indian free speech discourse have remained substantively unchanged, thus begging the question of whether continued implementation of a regulatory regime crafted for colonial purposes is capable of moving a post-colonial democratic republic beyond the sociopolitical limitations established by that regulatory regime during its colonial experience. Instead of encouraging tolerance and open discourse among India’s diverse citizenry, regulations the Union Government inherited from its colonial predecessor continue to encourage sectarianism, intolerance of dissent, and a stunted national discourse wherein groups seek redress from offense primarily through pressuring the state to sanction their adversaries.

Yet another motivating force that shapes India’s expressive freedom jurisprudence is the need to demonstrate competent governmental responsiveness to social pressure. As an outgrowth of India’s national discourse that often consists of offense and outrage, a discourse shaped by India’s colonial experience, keeping a permissive regulatory regime in place allows the state to exercise a conspicuous public peacekeeping function. As social tensions wax in the aftermath of an initial controversy, the state typically attempts to tamp down social animosities to preserve public order. Furthermore, the state’s swift and often overreaching response also allows the state to avoid appearing weak and ineffectual in the face of fervent demands for action by offended groups. These efforts usually entail intervening, upon complaints from purportedly offended groups, through arrests and criminal prosecution under Sections 153A or 295A or ban and forfeiture orders pursuant to Section 95. As a result, the administrative branch provides an immediate political solution to an immediate social problem by appeasing temporary outrage and censuring the provocative speech. Meanwhile, the courts, after passions have cooled, provide the legal solution, which recognizes more ample protection for speech by reversing or dismissing the overreaching executive action. India’s legal system clearly recognizes stronger protections for expressive freedom than does India’s political branches and frequently overturns the law enforcement’s application of speech restrictions by recognizing that the value of free speech outweighs preventing offense, finding technical fault with the restriction’s application, or even through superficial and pretextual reasoning. However, it is important to note that the courts are afforded this latitude to overturn the restrictive action because India’s notoriously clogged judiciary ensures that they almost always operate years after the social conflagration wanes. Therefore, the pattern results in a sort of governing dance: the political branches bend to social pressure to appear strong and responsive to outraged citizens while years later the judiciary quietly acknowledges the unconstitutionality of the political branches’ actions and lifts the unlawfully imposed sanction.

While India’s expressive freedom jurisprudence provides the state a unique methodology for quelling escalating social tensions, it also is easily susceptible to inconsistent application and abuse. Naturally, inconsistent application of India’s speech restrictions is problematic because its citizens will not be able to distinguish lawful from unlawful speech. As a result, uncertainty reigns, speech is chilled, and the public discourse suffers.

In addition to the general uncertainty of surrounding the scope of one’s constitutional rights, India’s speech regulation jurisprudence is vulnerable to abuse by the powerful at the expense of the vulnerable. Since the rapid growth of the Hindutva Movementstarting in the early 1980s, India’s expression regulatory regime has been successfully mobilized by conservative, mainstream Hindus to attack religious minorities and suppress dissenting Hindu voices. See Sri Baragur, 5 S.C.C. 11 (“It is significant, and it is clear from the very large number of judgments that have been cited before us, that most of the [Section 153A and Section 295A] matters pertain to attacks on minorities or religious and social groups or individuals who are perceived as being prodigals or heretics and therefore unacceptable to the conservatives amongst the mainstream.”). Ironically, and despite the Court’s apparent self-awareness, Sri Baraguris itself a prime example of conservative, mainstream Hindu groups successfully utilizing India’s speech regulations to attack what they view as unorthodox constructions of their religious liturgy.As this example demonstrates, among many others, India’s restrictions on socially offensive and emotionally harmful speech are much more often used by powerful majorities as weapons for suppressing political adversaries and dissent than they are as shields to protect the vulnerable or to promotepersonal dignity or cultural, religious, and political pluralism.

Furthermore, as the controversy surroundingDoniger’s book demonstrates, India’s hate speech regulatory regime is vulnerable to exploitation by even extra-governmental actors who desire to suppress dissenting speech. In this instance, conservative Hindu activists were able to silence a scholar articulating views of history and theology that conflicted with the Hindu right’s sociopolitical ideology. Significantly, Batra was able to silence his opposition merely by invoking potential state sanction pursuant to Section 153A and 295A, among other statutes. This threat was especially potent considering India’s permissive approach to regulating socially offensive or emotionally harmful speech and the manner in which sanctions are applied disproportionately to dissenting and minority speech by India’s judicial and executive branches. Instead of critiquing Doniger’s view through informed, persuasive discourse, Batraand his supporters were able to achieve a more total victory: they exerted political power to prevent those with different views from even participating in the discourse. Such an outcome provides palpable evidence of a system struggling, if not failing, to balance the competing values of individual freedom with social harmony andto further its own goals of protecting the vulnerable, enhancing social pluralism, and safeguarding personal dignity.

Daniel Hantman is a graduate of the Chicago-Kent College of Law and is currently serving as a Judicial Law Clerk for the Honorable Diane J. Larsen in the Chancery Division of the Circuit Court of Cook County in Chicago, Illinois. Daniel received an M.A. in Social Science with a focus in Anthropology from the University of Chicago and a dual B.A. in History and Anthropology from Brandeis University. At Chicago-Kent, he was the Executive Notes and Comments Editor for the Chicago-Kent Law Review and an Associate Editor for the Chicago-Kent Journal of Intellectual Property. This essay is adapted from a journal article recently published in the Indonesian Journal of International & Comparative Law. See Daniel Hantman, Shaking Fists and Simmering Craniums: India’s Tolerance for Restricting Socially Offensive and Emotionally Harmful Speech, 1 Indon. J. Int’l & Comp. L. 73 (2014). Please refer to the journal article for a more comprehensive treatment of the issues discussed in the essay, a detailed analysis of Indian Supreme Court caselaw, and for full citations.