Please also see the note at the end.
So what, really, is freedom of expression, much in our minds of late? Does it cover what a young artist called Chandramohan did in Baroda? Or consider the leader of the Dera Saccha Sauda, Gurmeet Ram Rahim Singh, photographed dressed as Guru Gobind Singh. Did he have the freedom to express himself that way?
Judging from the reactions to Chandramohan and Gurmeet Ram Rahim Singh, enough people don't particularly respect their freedom of expression. Put it another way, enough people find enough ways to qualify and dilute freedom of expression. So let's test it in some murkier -- or, depending on your perspective, clearer -- waters.
Over a year ago a man in Denmark drew and published a cartoon poking fun at the prophet Mohammed. In response, a minister in the previous Uttar Pradesh government, one Haji Yaqoob Qureshi, told the press that "the cartoonist should be killed." He also announced that the successful killer would be weighed in gold and given a reward of Rs 51 crore.
Did Qureshi have the freedom to issue such a call?
Just days ago, a Sikh jathedar, or high priest, called Balwant Singh Nandgarh said this about Gurmeet Ram Rahim Singh: "Jo ohda sar kalm kar ke liaega ohnu sone, chandi nal tol diange." Which is Punjabi, and translates as this gentle appeal: "Whoever brings [me] his head will be weighed in gold and silver."
Apparently, weighing the perpetrators in precious metal is a popular corollary to gentle calls to murder. That apart, what about the jathedar's freedom to say what he did?
Minister and jathedar both called explicitly for murder. In this country, murder is an offence punishable by life imprisonment or death. Are we still talking about the freedom of expression? Or are we talking about our laws, especially those laws that are encoded in something we call the Indian Penal Code? Because in particular, the IPC has sections that refer to "abetment".
Consider these excerpts from three of those sections:
- Section 107: A person abets the doing of a thing, who:
- first -- Instigates any person to do that thing; ...
- third -- Intentionally aids, by any act or illegal omission, the doing of that thing.
- Section 108: A person abets an offence, who abets either the commission of an offence, or the commission of an act which would be an offence, if committed by a person capable by law of committing an offence ...
Explanation 2 [of Section 108]: To constitute the offence of abetment it is not necessary that the act abetted should be committed ...
- Section 115: Whoever abets the commission of an offence punishable with death or [imprisonment for life], shall, if that offence be not committed in consequence of the abetment ... be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
So yes, we have laws. What happens when they are broken? Would you expect that the lawbreakers are at least charged? Well, after Qureshi's remark about the Danish cartoonist, the Principal Secretary (Home) in the previous UP Government, one Alok Sinha, said that the Minister had only "[expressed] the sentiments of the people ... it doesn't constitute any criminal offence."
Now I understand that many bureaucrats feel the pressure to mount a defence of the things political bosses say and do. Even so, "it doesn't constitute any criminal offence" is a stretch. For one thing, why should Sinha decide that it isn't an offence? For another, what have "the sentiments of the people" got to do with anything? For a third, Qureshi's call is a clear violation of, at the minimum, Section 107 read with Section 302. I mean, what would you call a promised reward of Rs 51 crore, and your weight in gold, but an "aid" (thus 107) to committing the murder (302) that Qureshi explicitly suggests? Then read all that with Section 108's Explanation 2: to constitute an offence, "it is not necessary" that the murder "should be committed." Nobody has (yet) killed the cartoonist, true, but that's immaterial: these sections should still apply to Qureshi.
To my knowledge, nobody has (yet) pronounced that the jathedar's call is not a criminal offence, as Sinha did. And nobody has (yet) acted on his call and killed Gurmeet Ram Rahim Singh. But just the same reasoning holds: the jathedar should attract the attention of Sections 107, 302 and 108.
Why has that not happened, to either of these two men?
There, your guess is as good as mine. But in the end, these two cases say something about the freedom of expression too. We can debate it as much as we like, sure. There will always be nuanced arguments one way or another. But as computer scientists would say, try the boundary cases. Are you free to shout "Fire" in a crowded cinema hall? Can you call for a shop to be looted and burned? Can you publicly ask for someone to be murdered?
Well, if you do those things, there are consequences. That's what laws are for. Apply them as they should be, and they're worth far more than anyone's weight in gold.
Note: This essay mentions a priest and a politician who issued such calls. What if a writer wrote one in a book? What if a radio talk show host broadcast one on the airwaves? What if a man wrote on his personal, but publicly available, website about someone he disagreed with: "Someone please kill this scumbag!" What if a newspaper columnist wrote in a column about a politician: "I hope one of you readers will murder this creep!"
Does the freedom of expression cover such people? Do the sections of the Indian Penal Code mentioned in this essay apply to them? Do they apply even if nobody has (yet) responded to their call and committed murder?