Friday 23 February 2024

News Analysed, Opinions Expressed

Towards more tolerance


The Supreme Court has clearly answered the issue that hurting of popular sentiments leading to law and order problem cannot permit the state to restrict freedom of expression.

The state of Goa is seen as a peace loving and tolerant society. However, for sometime now the tolerance is getting watered down. We in Goa are also embarking the path of surrendering to lawlessness and intolerance.

The agitation by certain groups against depiction of Lord Ganesha in a particular form by a renowned artist created waves in Goa. The controversy surrounding a music audio CD produced by a member of the Village panchayat of Colva came under attack with the villagers bringing the village to a halt during the last Christmas season. The District Magistrate has banned the audio CD from it being sold, possessed and circulated.

International artist M.F. Hussain was hounded out by certain groups to such an extent that he could not come to this country for the fear of being attacked despite the Supreme Court quashing all prosecution against him. Sometime back, the Madhya Pradesh Government banned the exhibition of the film "Jodha Akbar", which shows Jodhabai, a Rajput princess with a Mughal King Akbar.

The television film "Tamas" was also sought to be banned on the ground that there is depiction of Hindu-Muslim killings. The Bhandarkar Oriental Research Institute in Pune, involved in research, was attacked by a group called the Sambhaji Brigade over the book written by James Laine and produced by the Oxford University Press. Works of art and research, in all 18000 books and 30000 rare manuscript were destroyed by misguided elements claiming to be the Samabhaji Brigade.

The cases where bans are demanded can be illustrated to demonstrate the intolerance within sections of society based on religious and/or other community feelings. That lumpen elements carry out attacks on work of art and the artists to steal the media limelight is known. Groups like the Shiva Sena, Ram Sene and now the Maharashtra Navnirman Sena have mastered the art.

The disturbing element is that the government is succumbing to such blackmails and such feelings of intolerance in Goa.
Succumbing to pressure, the Maharashtra state administration booked the Oxford University Press under Sec. 153(A) of the Indian Penal Code. That the Supreme Court quashed the FIR is a different matter altogether. The administration, which failed to protect the research institute, booked to control the so called law and order in the state by booking the victims.

The Madhya Pradesh Government banned the film Jodha Akbar on the ground that it could lead to law and order problem. The District magistrate of South Goa banned the audio CD on the same ground that the ban is required to control law and order. The question is whether the administration can allow lumpen elements to hold the administration hostage by carrying out daylight attacks on the citizens and works of art.

Work of art including music and films are clearly guaranteed as part of the fundamental right under 19 (1) (a) of the Constitution of India i.e. as an extension freedom of speech and expression. The issue of communal tension and violence was also the subject matter of the TV serial Tamas, where the Supreme Court rejected the contention that the film was against public order and likely to instigate the people to indulge in the commission of offences.

Chief justice Hidayatullah, in another judgment, stated that our stands must be so framed that we are not reduced to a level, where the protection of least capable and most depraved amongst us determine what the morally healthy cannot view or read.
The Hon'ble Supreme Court had an occasion to deal with the issue on many occasions. However, the case involving the film called ‘Ore Oru Gramathile' was given a ‘U' certificate after the second screening by a 5:4 majority of the Censor Board. It was the minority view of the censor board that the reservation policy is projected in a biased and derogatory manner and the caste sensitivity of the Brahmins was affected. In fact, it was also a case that the film shall hurt the sentiments of a section of people, which could lead the law and order problem. After a challenge to the U certificate failed before the single judge of the Madras High Court, the division bench revoked the certificate.

The Supreme Court held: "freedom of expression protects not merely ideas that are accepted but those that offend shock or disturb the state or any sector of the population. Such are the demands of the pluralism, tolerance and broadmindedness without which there is no democratic society".

The Supreme Court has clearly answered the issue that hurting of popular sentiments leading to law and order problem cannot permit the state to restrict freedom of expression. It would be duty of the state to protect the freedom of expression. The state and the administration shall have to protect guaranteed rights with all its might and a plea of law and order and the inability of the administration to handle the lumpen elements would be a total abdication of responsibility.

As the Supreme Court pointed out "... the state cannot plead its inability to handle the hostile audience problem. It is its obligatory duty to prevent it and protect the freedom of expression...".

The state cannot be heard on the plea of law and order and permit itself to surrender to blackmail as that would be negation of the rule of law.

The court held: "we must practice tolerance to the views of others. Intolerance is as much dangerous to the democracy as to the person himself".

The Hon'ble Supreme Court quoted with approval what Prof. Freund said: "the state may no punish open talk, however hateful, not for the hypocritical reasons that Hyde Parks are a safety valve, but because a bit of sense may be salvaged from the odious by minds striving to be rational and this precious bit will enter into the amalgam which we forge...".

The view taken by the Supreme Court is the one that is also similar when it comes to freedom of conscience under Article 25 of the Constitution. The court holds here that a citizen has a right to exhibit his belief in his conduct by such outward acts as may appear to be proper in order to spread his ideas for the benefit of others.

The Hon'ble Supreme Court stretched the concept of tolerance in the case of Jevohas' witnesses in the matter of refusal to sing a National Anthem by the sect.

That sums up the type of tolerance we need to have so that our democracy flowers.

Disclaimer: Views expressed above are the author's own.

Just a question.

Why this freedom of expression fails when some one like Varun Gandhi says some thing in his speech?

masur |

An elucidative article. Even comments such as do not wear dupattas or don't go out after 10 PM are indicative of inefficiency of the ruling Government.

Kalidas Sawkar |

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Cleofato A Coutinho

Cleofato Almeida Coutinho is a senior lawyer and one of the constitutional expert in Goa. A member of Law Commission of Goa, he also teaches at Kare College of Law in Madgao.


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