Sunday, 30 July 2017

Audrey Truschke on Section 295a

Audrey Truschke is an Assistant Professor of South Asian History at Rutgers. She has had an expensive education and has access to Wikipedia. Yet she writes this-

Section 295A is a broad and highly subjective law.
Is Audrey right? Let us look at what 295 A actually says-

Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India], by words, either spoken or written, or by signs or by visible representations or otherwise], insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to [three years], or with fine, or with both.

This does not seem over broad. There has to be a deliberate and malicious intention. There is nothing subjective about it. Either you intend hurt and act with deliberation or you don't. This is a matter of fact, not opinion. It does not matter whether there is any actual insult to anybody. Furthermore, no subjective element enters the definition of 'insult' whereas there is a subjective element in the, public order related, notion of 'outrage'.
All that matters is whether a malicious intention against a definable class existed and whether it was accompanied by an overt act.

Audrey disagrees- she writes
In a nation of more than 1.3 billion people, anyone who finds offence against their religious tradition can invoke the act. Moreover, the law is based on personal sentiments and so it is open to wide interpretation – and abuse.
This isn't true. I may feel offended by something you have written but I have to prove you acted maliciously and deliberately in order to target a particular class of people who share a particular religious belief. My personal sentiments are not germane. The only thing that matters is the motivation for your action.

Why does Audrey mention India's population? Presumably she means that India is a diverse country and thus what causes offence to one sect may not do so to another.  Suppose you write 'I like cats'. Perhaps this offends some sect which views cats as emissaries of the Devil. Could you be successfully  prosecuted? No, provided you had no such malicious intention towards that sect.

Audrey has a curious view of Colonial Law which severely punished any offence against an official or Institution of the Empire under the rubric of 'seditious libel'. However, no action was taken against such officials or other citizens of the Imperial power who maligned or maliciously insulted any or all of the colonised people on the basis of Religion or Race.

Audrey writes-
Section 295A, like many of the country’s laws, is a colonial  hangover. In the late 1920s, the British enacted the law in order to calm a violent Hindu/ Muslim conflict sparked by a Hindu-authored tract about the Prophet Muhammad’s personal life. The law rested, in part, on the colonial idea that Indians were more like children than adults and so were unable to handle the freedoms enjoyed by Europeans. Despite these colonial origins, independent India has retained this law and the state has been banning books ever since.
Did the British enact 295A? Nope. They would have had to prosecute a lot of Christian missionaries as well of British journalists and writers in India if they had done so.

India was moving towards self-rule in the Twenties. 295 A was mooted by Indians for Indians and thoroughly discussed in the National Assembly by the likes of Lajpat Rai and Jinnah. It wasn't a 'Colonial hangover' at all.  Had the law 'rested, in part, on the colonial idea that Indians were more like children than adults' then there would have been no Indians in the National Assembly. The entire direction of British policy would have been different. Instead of moving towards representative institutions and dyarchy, it should have been going in the reverse direction- reducing the representation and influence of Indians in Government.

Many Indian politicians expressed reservations about 295a. An Indian Law Professor writes-
Various amendments meant to circumscribe the scope of Section 295A were discussed, but ultimately it was thought that the requirement of “deliberate and malicious intent” which was an ingredient of the offence under Section 295A was enough to allay all the fears. Jinnah, who served on the select committee, believed this was enough to protect an “honest man.” The Home Member, J. Crerar, argued that the kind of individual most likely to be prosecuted under Section 295A would be “some obscure and scurrilous scribbler writing from some obscure den or pot-house in a bazaar.”

It is noteworthy that Britain rejected reform of the blasphemy law in 1930. Why did it do so? Was it a 'colonial hangover' from the Norman era? More recently, the British Parliament has considered legislation to protect all Faiths on the lines of Section 295A. Why? Do British Members of Parliament now take the view that British people have suddenly become 'more like children than adults and are thus unable to handle the freedoms enjoyed by Europeans?' Perhaps, this is also the reason for Brexit.

In 1972, the British Colonial Government of Indira Gandhi (real name Ingrid Godwin) beefed up Section 153. Why did she do so? It was because Indians are like children. Audrey knows this because she has visited India. She wrote a nice story book about Aurangazeb but those nasty Indian kiddies thought she was an idiot. Narendra Modi (real name Nicholas Maugham) should take action. He must confess that the entire Indian political establishment is actually pukka Angrez. English people understood that they had to disguise themselves as Indians so as to continue to rule India without being accused of Colonialism. Still, they had to continually beef up 'hate speech' laws because...urm... well Audrey says so.

Should we believe Audrey? Is she an honest and diligent researcher who publishes truthful statements? Speaking of a recent court case, she says-
(Dina Nath) Batra alleged, for instance, that Doniger’s book defamed Swami Vivekananda, a 19th-century Hindu monk, by accurately quoting him as once saying ‘give me beef ’. Batra argued that, while Vivekananda did in fact say this, repeating the historically accurate statement is nonetheless offensive to modern Hindu sentiments and hence illegal.
A Christian Missionary is the source for the supposed beef eating of Vivekananda- a practice the Swami considered to be incompatible with present day Hinduism. Did Batra really argue that Vivekananda ate beef? Nope. He says the Swami did not eat beef.

Why is Audrey telling us such a stupid lie?
I suppose the answer is that History attracts only the stupidest students.
Truth, even historical truth, repels stupidity.


Anonymous said...

Wendy Doniger did not have any malicious intent when she wrote '. Influenced by progressive Western political ideas, Vivekananda set himself firmly against all forms of caste distinction and advised people to eat beef.'

It is true she was mistaken. Vivekananda did condemn caste discrimination but did not support beef eating by any Hindus.

Still her book was not scholarly but impressionistic. Her point was that America and India influenced each other.

The publisher, however, may have felt that the editing and fact checking on the book was not up to par. Perhaps someone involved had a malicious intention towards Hindus and so the court may have found against them. Still, it can't be denied that there has been a 'chilling effect'. However, this doctrine has no foothold in Indian jurisprudence.

windwheel said...

The problem with your view is that Doniger herself revealed in her book that she had cause to harbour a malicious intention with respect to a certain well defined class of Hindus- viz those of a Sangh Parivari persuasion.

The publisher in any case would have been guilty of reckless disregard because Doniger made various outlandish claims. Vivekananda 'advising people to eat beef' is a case in point. An Indian publisher employing Indian editors would screen for this sort of egregious error unless it was deliberately and with a malicious intention seeking to stir things up.

I think there is a Delhi High Court case which reads 'chilling effect' type doctrine into a Supreme Court judgement. I may be wrong.