My Name is India

MY NAME IS INDIA
- RAJEEV DHAVAN

The Thackerays have dared India’s governance to take action against them at its own risk. What immunizes the Thakerays from the law to make them invincible? Certainly not the protection of Lord Shiva. Nor, indeed, are they the new ‘freedom fighters’ for Maharashtra. Political cowardice runs through the lumpen support – with women at the barricades protecting the men, and the men insulating their masters. Can this form of disruptive and divisive outrage which results in theatres closing down and brings fear and violence in the streets to Mumbai’s minorities and migrants ever be contained by the law? Can these new forms of political blackmail silence the rule of law?

India has a colonial system of public order and censorship superimposed on a democracy. It contains ample police powers to patrol Mumbai, arrest the Thackerays for provocative ‘violence’, bind them to keep the peace under the Criminal Procedure Code (CrPC), book them for several offences under the Indian Penal Code (IPC) including promoting enmity amongst groups (section 153A), prejudicing national integration (section 153B), deliberately and maliciously outraging religious feelings (section 295A), criminal intimidation to insult, injure and cause public mischief, death or grievous hurt (sections 503-506), and subject them to civil suits for vicarious liability and perpetuating constitutional torts against peoples’ civil liberties, freedom of movement and right to settle anywhere in the country. Provocative publications inviting the above can be banned (section 95 CrPC). Colonial governance confined Gandhiji to jail for nuisance; and before he became Prime Minister, Nehru had spent 10 years of his life in jail. India may refuse to use this full armoury of law against her own people for good reason. But can it stand idly whilst the very basis of constitutional governance is being shaken?

The contrasts are clear. The massive criminal complaints against Hussain. The cases filed against Khushboo, against sociologist Ashis Nandy and historian D.N. Jha, against Laine’s work on Shivaji. The ban on Sahmat’s poster on the Ramayana – later absolved by the Delhi High Court; Nasreen’s Lajja and the Tamil film Kaatrukkena Veli. Along with this is the social censorship by Hindu fundamentalists on the filming of Water. Most significantly, the Sena’s own censorship of those who do not seek the blessings of the Sena Supremo – as did Michael Jackson, Amitabh Bachchan, Karan Johar and others. Now, the Sena wants to make a further inroad by distinguishing between content censorship and person censorship. What Bal, Raj and Uddhav Thackeray are saying is that they will not just censor the content of movies, but also the films of any person who disagrees with their policy on a Marathi Mumbai. On this list stands Sachin Tendulkar, who dared to say he was an Indian first and of course Shah Rukh Khan, the release of whose ‘My Name is Khan’ is threatened with peril. It is thus clear that the policy of the Sena is (a) pernicious, (b) discriminatory and (c) bathed in hypocrisy to take advantage of the very right to speech that they deny to others.

First, let us deal with the exhibition of ‘My Name is Khan’. It simply must take place. Those who do not want to see it, need not do so, but no movie-viewer can be coerced; and no theatre can be forced into closure. Voluntary boycott, yes; forced closure, no. Any conspiracy to the contrary is criminal intimidation. Chief Minister Ashok Chavan is under a legal duty to protect all theatres. In Shankarappa’s case (2001), the Supreme Court declared that once the statutory censorship has cleared a film, complete protection has to be given to the theatre and viewers. Scared theatre owners must indicate who is pressurizing them. The Union and State Governments must make a declaration to fulfill the Supreme Court’s direction. If the Sena is cowardly, it will use covert measures to prevent viewing. But if it claims courage it must openly declare its policy of criminal intimidation and be prepared to go to jail. What is at threat is the very basis of free speech in India’s democracy.

Second, the Sena’s offensive against alleged anti-Marathi attracts offences of promoting enmity, national integration, and criminal intimidation. Offences have to be registered by the State of Maharashtra. In any event, cases be filed all over India (as they were against Hussain) calling upon Thakeray and Sena spokesman to answer wherever a cause of action arises.

Third, select editions of Samna that contain such exhortations must be duly prosecuted. Such bans and forfeiture are possible and can be put into immediate effect as was done in the case of Laine’s book and Sahmat’s poster. Let this be done by every State of the Union, wherever the edition finds circulation. Let the Indian federation join together in this, as was done to prevent Modi’s induction of RSS in Gujarat’s administration.

Fourth remains the question of de-registering Shiv Sena and Maharashtra Navnirman Sena (MNS) as a political party. This has to be handled carefully so that party political democracy is not hurt in the process. In the Congress case (2002), the Supreme Court denied to the Election Commission (EC) the power to de-register parties who simply declared policies inimical to the Constitution which they have to statutorily declare under section 29 of the Representation of Peoples Act (1951). Sena and MNS clearly do not believe in the constitutional right of non-Marathis to migrate and earn their living in Mumbai, except as second class citizens. They should openly incorporate this in their party constitutions and formally declare this policy to the EC. This is because the Supreme Court has clearly indicated that the EC can effect such deregistration where a political party obtains certification under section 29 by fraud or consciously abjures by self declaration its duty to follow India’s Constitution or due to any other fraud that is self-evident. All that remains is the Shiva Sena and MNS to put its political fortunes where its mouth is. However, since these parties are seeking vote bank opportunism, they may lie low on truth.

Anyone who believes in India’s democracy would be loathed to suppress views, dissent and opposition. We must tolerate differences of opinion, harsh, annoying or even provocative speech. But, where such behaviour amounts to threats of violent criminal intimidation, democracy has to defend itself through rule of law, lest the very foundation of democracy is challenged. These creeping inroads into Indian governance will grow like a cancer unless nipped in the bud by the Union, state governments, parties, groups and individuals who want to protect India from this entropic disease.