Pratap Bhanu Mehta, in his usual perspicacious style, contrasts the treatment of MF Hussain by the Indian judiciary (upholding his right to free speech without significant qualification) with its treatment of a book titled "Islam: A Concept of World Political Invasion by Muslims", where:
"the normative and methodological claims in the judgment tell you how precarious free speech is. While the court makes expansive rhetorical claims on behalf of free speech, it equally makes expansive jurisprudential claims on restricting it. So under Section 153 of the IPC for example, it is “no defence that the writing contains a truthful account of past events or is supported by good authority.” No wonder even works of scholarship can be banned. In terms of incitement to violence it reiterates a rejection of the “clear and present danger test”; even a remote possibility is sufficient to invite a ban. Third, it does what a court should try and avoid. It directly engages in an interpretive battle with the petitioner over certain ayats of the Quran, trying to produce an “authorised” interpretation. This is disturbing because it frames the issue of religion in a bizarre way. Indian courts keep going to great lengths to show that there can never be anything offensive or bizarre in a religious text (and come up with claims like no religion can even preach violence, all religions are progressive if not the same and so forth). In short, courts confirm an ideology of respect for religion that emboldens those who claim they are offended”
Mehta’s suggestion is that the courts should stop messing about with defining what religion means in their terms, for this is a clear denial of the view that freedom of speech exists even for those who make statements which fall outside what counts as socially acceptable. Judicial protection for religion, in other words, is directly correlated with judicial disregard for individual liberties. This point is affirmed when one looks at the cases in which the judiciary steps in to correct perceived violations of the right to free speech and expression is that they are usually driven by controversies in the public eye. So, MF Hussain gets off when his paintings raise fundamentalist Hindu ire, but the uncelebrated author (one RV Bhasin) of “Islam: A Concept of World Political Invasion” does not. This raises significant barriers to a popular embrace of the concept of free speech, for protection for expression is then identified as a bourgeois value; available to the Shahrukh Khans, the Jaswant Singhs and the Taslima Nasreens, but not to the guy who writes crackpot anti-Islamic tomes and posts them on the internet. The right to free speech, traditionally regarded as being foundational to a truly democratic existence, now comes to be identified as a form of tamaashebaazi – a way by which to get yourself heard and gain some attention, but really nothing else. The dilution in the public regard for free speech is problematic, for this is represents one of the most common means by which democracy falls - by turning against its own core values from within.
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