When eminent lawyer and now Education Minister KapilSibal hastened to apologize because a school book reproduced a 1949 cartoon depicting Dr. Ambedkar astride a snail being horse whipped by Nehru to speed up the constitution writing process, we were all very quick to dismiss it as political opportunism. When Professor Ambikesh Mahapatra found himself in police custody because he circulated a cartoon suggesting that Mamata Banerjee plotted in Satyajit Ray movie styleto get rid of former nominee railway minister Dinesh Trivedi, we were not quite so quick to put it down to the paranoid humourlessness of India’s current political classes. Presumably, the difference was in the crass misuse of Section 66 A (b) of the Information Technology Act to prop up alleged offenses under Section 509 (Outraging the modesty of a women) and 499 (Defamation) of IPC. Let’s at leastacknowledge that the law as it stands seriously threatens innocent citizens.

The threat of misuse is widespread. In January 2012, Salman Rushdie, the author of a book banned from import under Section 11 of the Customs Act, was compelled to stay away from the Jaipur Literary Festival under eminent threats of being accused under variously sections 153 A (Promoting enmity between different groups on the ground of religion, race, place of birth, residence, language), 153 B (Imputations, assertions prejudicial to national-integration) and 295 A(Deliberate and malicious acts, intended to outrage religious feelings) of IPC. Running as a subtext through all this, as Salman Rushdie reminded us with his impeccable intellectual clarity, was the threat to humanity’s fundamental right to have and express an opinion.

Rushdie stayed out of India and escaped persecution but others have not. On May 28th, 2003, Oxford University Press (‘OUP’) published a scholarly work entitled “Shivaji: Hindu King in IslamicIndia” by Prof. James W. Laine. It had one “objectionable” paragraph so OUP withdrew the book. The Maharashtra police then demanded a copy from OUP, registered a FIR in Pune on that basis mainly under Sec 153 A of the IPC and then arrested the printer and the publisher’s CEO! It was April 5th, 2007 before the apex court exonerated the accused in Manzar Sayeed Khan v/s State of Maharashtra.

Similarly, the late artist M. F. Hussain faced a spate of litigation in 2000 with cases in Madhya Pradesh, Maharashtra and Bihar arising out of paintings he had done in the 1970s and 1980s. The Supreme Court transferred all these cases to Delhi and later the Delhi High Court of course quashed the complaints. In 2006, round two based on the same cause of action recommenced with a Hardwar Court issuing summons to the artist for inciting religious hatred. Since summons could not be served to the Dubai based artist, the court attached his son’s flat in Bombay setting off another round of litigation.

In all these cases, the blameless victim of this persecution faced prolonged and expensive legal proceedings. Obviously, if an Indian wishes to be offended with someone’s opinion on religion, art, culture or character, criminal jurisprudence provides him with multiple tools to take his axe to the man who opens his mouth, pen or paint box. Criminal Procedure being what it is, the victim is doomed before he is damned and Article 19 (1) (a) (Fundamental Right to Freedom of Speech and Expression) of the Constitution ofIndia offers no immediate practical protection. Perhaps we have an honest to goodness cultural conflict here or perhaps we don’t. Colonial legislators of the penal code perceived their subjects to be paranoid sensitive and created laws to promote peace and public tranquillity so that their colonial agendas could be pursued without interruption. That is expediency, not culture. Either ways, the negotiation process between the speak-noill sensitive politician school and the modern liberal school is hostile at best. The real question here is not the interpretation of this or that section of the law but whether our society wishes to give real effect to the freedom enshrined in Article 19 (1) (a).

This is the essence of it. India has a great many laws that permit anyone who expresses himself to be persecuted relentlessly through mufassil criminal courts. The procedure victimizes the target disproportionately. “Law taking its own course” is an invitation to prolonged low intensity torture. India has no law which prevents a person from being prosecuted into the ground merely for expressing himself. Exoneration from a crime after a prolonged criminal process is not immunity. If it is our wish as a society and a polity to promote liberal values in the way that they are defined in the rest of the modern world, we are going to have to legislate immunity. Relying on the judiciary to use historically contextualized and protracted processes to protect victims is unfair to both the judiciary and the victim.