“Do what you want if you don’t harm anyone else”. This is the foundation of India’s Constitution.
Isn’t it easy to “harm” someone these days? Look at these examples:
- Parents are “harmed” when their children marry against their wishes. So they kill them.
- People are “harmed” by Khushboo’s remarks on pre marital sex. So they take her to court.
- Society was “harmed” when homosexuality was legalized. So homosexuals are outcasts.
- People are “harmed” if a book on Shivaji is written. So the book is banned.
- Someone is “harmed” when M F Husain paints something offensive. So they threaten to kill him.
Can some paint on paper really "harm" you?
It seems everyone can choose to be “harmed” by what other people do – even when it doesn’t really affect them. Convenient isn’t it? There’s only one problem. It just doesn’t make sense!
The only type of “harm” which is acceptable in court, is one which causes measurable damage. The key word is “measurable.” So if someone hits me, the force of the blow, the ultimate effect on my body etc are all factors that can be determined from outside. If I’m robbed, the amount of money I lose is measurable. Every law exists to limit measurable damage to others.
But when khaps and parents claim for example, that their “honor” was besmirched because their adult children married against their wishes, that does not qualify as harm. In the first place, “honor” is a subjective word that defies measurement. Secondly, there’s no proof that any “damage” is caused when a person’s honor is taken away. These are intensely personal issues. They need to be dealt with in a way that doesn’t break the law of the land.
Why this focus on measurement? Because justice needs to be applied consistently and to everyone in the same way. If something cannot be measured in a way that is obvious to everyone, the law can’t punish someone over it.
However even so, there are some imperfect laws which seek to punish people for subjective and dubious “harm.” Laws relating to offensive books for example. But even here, the Indian legal system has set the bar very high for proving “harm.” Not every Tom, Dick and Harry can go around claiming that their delicate sentiments have been harmed by a book.
When the Indian Supreme Court struck down the ban on Shivaji’s book, here’s what it said:
“The effect of the words used in the offending material must be judged from the standards of reasonable, strong-minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view. The class of readers for whom the book is primarily meant would also be relevant for judging the probable consequences of the writing”
Those who claimed they were “hurt” by M F Husain’s paintings fall into the latter category of “weak minds.” After all, strong minds are much more resistant to damage caused by simply viewing a pattern of paint on paper. Strong minds aren’t damaged by hearing the views and opinions of other people no matter how different from their own. Strong minds aren’t hurt when their adult children choose to take charge of their own lives.
So the next time someone tells you that society is being “harmed”, that “marriage is being destroyed”, that “People’s sentiments were harmed” and that “children are being corrupted,” just ask them one question. “Show me who exactly has been harmed, and precisely how much damage they’ve sustained!”
Really good one – am sharing it
Well said!
The poor delicate people in the even more delicate society!
Ironically, these same delicate people think they're very strong minded!
Nice to have you drop by Aathira :)
The only thing that seems to be harmed are those people's feelings. :P
Maybe their feelings are just being "harmed." :P
But overall, I agree. I don't understand why there are people who care about what other people do.
It's a good life isn't it, when you get to look at others and comment on how they "should" behave?
How about God? He is single handedly responsible for so many deaths, loss of property, loss of work-days (measurable harm). Can I sue him? Oh please, can I sue him?
At least, let me sue the politicians…
:)
Yeah! Someone should really take god to court for "harming" so many people…
lol. :P
By the way sorry for the double commenting, something went wrong with my internet.
But God doesn't harm people, all this suffering is to make us better as people. Or punish us, I'm not really sure. :-/
good one…
Whoa!!nicely written..
There were the matters that I have asked myself a million times..
I am sharing this is FB and twitter..
I think all of us get a "wtf" moment every now and then. We're so ingrained to care about "not hurting someone" that sometimes we just give in without seeing the absurdity of it…
And welcome to the blog!
Bhagwad,
These petty issues are the one that keep the feeble minds and uneducated masses involved. If the media and the leaders stop emphasizing these issues, no one will care about them. A small issue triggers a major uproar in India, is it because we are emotionally unstable and can be manipulated easily or the people who use these emotions need to constantly triggers such uproar to keep us involved and themselves in charge? I believe both.
We are very week emotionally and anyone who knows how to play, does play with us. Now the question arises why do we let him do so. We are a united country of divided people. Divided by religion, caste, regionalism; divided by political parties we support, ideologies we support and so on. Thus when we ourselves are so much divided and emotionally involved, its uneasy for us to take control back from the unified forces…
Would await ur comment…
You're quite right Sajid. It's both. Some issues like the book on Shivaji, I'm sure no one care about. But some issues such as the decriminalization of homosexuality are deeply engaged in even without politicians.
And you're correct about us being divided. We're so happy to separate into "us" and "them" that after a while, people view everything outside their immediate family as "them."
Added a link below posts to subscribe to comments…
I very much share your concern. We get most sensitive when the thing is about religion and God. Though, ours is a secular nation, which had originally meant that religion must dictate/influence state policies (which also eventually included Judiciary's stand as their decisions affect common people and determine what is out of bounds or 'ideal' for the government and other organizations like schools).
Why do we keep religion on this high pedestal?
Very recently, an atheist blog reader with a pseudonym had derided a religious book, calling it "stupid" and saying "who cares what shit its words mean". I deleted the comment, not because it was hurtful, but because of the fear of IPC section 295-A. To one of the tweeters I pointed out that I would not have deleted a comment saying exactly the same thing about 'The Fountainhead' (a book which I hold dear). So, why is the Indian law, and social outlook making me delete such comment about a religious book? What's so special about religion – that we've accepted it to be above all kinds of criticism and reproach? I actually thought I was doing something unethical by deleting that comment. Because though I hold the administrative rights of my blog, I feel the comments' space belongs entirely to the readers, and I should meddle with it as little as possible.
But I have to also add that freedom of speech is a very complex issue. I do not view things merely through the prism of does one have a right to do something?. I would also try to gauge a person's intent, motives behind doing such things, and their consequence. I, of course, would not believe that what I consider unethical should be disallowed by law or be made punishable under it, but it would make a difference to how much I respect certain people and how much would I like to associate with them. I believe, that much right I do have. :)
I was heartened to read the SC's judgment above, but I also wish they say the same things about subjects dealing with religion (and not just historical figures), and in particular, all religions.
A Karnataka High Court judgment, which sought to further elaborate on how to interpret IPC section 295-A had said the following:
"While considering the case, the Supreme Court has laid down the scope of Section 295 stating that, Section 295 has been intended to respect the religious susceptibilities of persons of different religious persuasions or creeds. Courts have got to be very circumspect in such matters, and to pay due regard to the feelings and religious emotions of different classes of persons with different beliefs, irrespective of the consideration whether or not they share those beliefs, or whether they are rational or otherwise, in the opinion of the Court. The Supreme Court has held that, to find out whether an offense is made out under Section 295-A or not, the susceptibilities of persons of different religious persuasions or creeds is relevant and the Court has to give due regard to such feelings in consideration of the case."
What I obviously find the scariest is what has been put in bold-face.
I had done a blog post with hypothetical situations to try to examine the claims of 'freedom of expression' v/s the claims of 'being hurt' by them: here (click).
Thanks for another detailed look at the issue Ketan :)
Apart from religion, another thing that really sets people off is women's "morality!" But of course, the courts are much more supportive here.
I always find it interesting that the Supreme Court's views are much more rational than any of the High courts. That's probably because the SC has the specific mandate to uphold the Constitution. So in the case you cited above, if it was taken to the SC, I believe the SC would have said that "The truth is a defense." against anything provided the intent is not malicious.
Not as strong as I would like it to be, but pretty good for now.
I'd posted a long (and elaborate) comment here! Did it not reach you? :(
Let me check the spam folder…
Received it, got caught in spam. I wonder why. Approved it now – thanks for drawing it to my attention :)
Insecurity is the root cause of all misery. Add to it possessiveness , ego and blind love.
the way we live our lives depends on the ' ideas ' we have about how things should be. sometimes these ideas are necessary to motivate us into action. for example if an employee is to work effectively they should not be demotivated by having someone else do what they have been allocated to do, especially if they are doing it well. it will lead to low self esteem and the quality of their work will decline, not just because they were insecure about their performance or possessive about the work allocated to them, or that they are egoistic, but because interference from another who has not been on the job and therefore has no clear picture of the situation and who tries to make irrelevant suggestions and insists that they be implemented, may result in the breaking up of something that took years to build.
now if this is not demotivating and harmful, then tell me what is ?
so there are harmful situations and it does not always imply that the one who feels harmed is weak minded.
Couldn't agree more. Insecurity is really the root of it all…
this is irrational.. when some one paints the gods of a particular section in obscene way, it affects the people.. how do you measure it?
For example, is some one paints one's mother in nude form and display it in public, does it harm him or not?
Or if some one paints a person and his wife naked and copulating, does it harm that couple or not?
Btw, who are the courts to decide what is a harm or not?
When a daughter who elopes and run away, and the parents commit suicide, had it harmed them or not? how do you measure it?
For example, is some one paints one’s mother in nude form and display it in public, does it harm him or not?
Only the mother has the right to complain. The children or the husband have no business complaining. The mother has the right to complain, because she owns her own body and painting it nude and displaying it in public is a violation of privacy – a right guaranteed in the Constitution of India.
Btw, who are the courts to decide what is a harm or not?
So who will decide? You? If the matter is one of punishment, only the courts have the right to decide.
When a daughter who elopes and run away, and the parents commit suicide, had it harmed them or not? how do you measure it?
Parents choose to commit suicide. No one forced them.
Agree all the way. This idea of someone else doing something that they want 'harming' me has to change. And if your faith in something is so strong, how can something as trivial as a painting affect it? God needs you to protect her/him? :-D
Yeah, it often surprises me that people feel God is so weak that he/she needs others to protect him/her.
I think we are mostly in agreement, but
"…making provocative statements should be punishable for causing distress…"
introduces an additional layer of subjectivity. Emotional distress can be clearly perceived when the speaker issues threats to cause direct physical harm to the targets (even in the absence of any such act) and then down is a smooth continuum towards "harmless jokes" etc with no clear inflection point visible to me.
I kind of understand the "reasonable man" (person?) stand adopted by courts in these matters. I dont envy them their job.
As an example, consider a person making lewd and indecent comments at a lady and she, or a 3rd party then reacts by thrashing the speaker. The physical harm was effected on the perpetrator of a verbal offence! (who initiated the offence). Does he have a case against the lady or 3rd party? Or, are they "equally" guilty? Is the lady guilty at all? Is there a threshold of violence beyond which she can be charged ( imagine she breaks his arm, or stabs him dead).
Lots to think about… but we're dragging this out already. quite okay if nobody wants to respond :-)
thx,
Jai
Your're right about no envying the judiciary their job :D
[...] characteristics are harmful and why. Individual people can be harmed, though we must understand what it means to “harm” someone. But society can never be harmed. Because it’s artificial. A fiction. A convenient tool [...]
[...] isn’t a country for the feeble hearted. It’s not a place where you can be secure and get offended by every little thing. If you want foolproof security, go to another country. Some ultra nationalists claim that the [...]
[...] But this is a matter in which the government shouldn’t get involved. After all, who is Jones harming? A book is an inanimate object and can’t feel pain. So he’s not “harming” the books. Is he harming people? Not really. Anyone can just ignore him and not watch it on TV, Youtube, or whatever. So if anyone is offended, it’s because they choose to be offended. And that doesn’t qualify as real harm. [...]
Harm right I am ‘harmed’ by this post, cause its really excellent :)
Thanks for your opinions Jai, You're right. Merely finding something offensive doesn't mean that one has a weak mind.
What indicates a weak mind is if one claims they've been actually damaged by viewing the paintings. So damaged in fact that they want to take revenge by beating up the painter! No one has to like everything. I personally don't like Husain's paintings.
But I don't go to court and claim that my mental health has been ruined because of them.
Bhagwad,
Thanks for the reply!
I read the DNA article on truth being a defense. But it appears that that holds true only of government or court functioning, and definitely not of religion. In fact the Karnata HC statement that I had quoted above is also referring to some other SC ruling.
But yes, it’s possible that since that Karnataka HC judgment was passed (sometime in 1980s), some other significant ruling might have come superseding the previous one. However, that does not seem to be the case.
Jai,
1.Yes, with regard to “strong mind” v/s “weak mind” argument, I agree with what your point. I suspect, ‘weak’ and ‘vacillating’ were used in juxtaposition because they have a nice phonetic tone to them! ;) Otherwise, the conventional meaning of vacillating is quite opposite to the context in which it was used here, because those who seek offense are usually of such single-track mind (exactly opposite of ‘vacillating’) that they devote precious moments of their lives to bring ‘offenders’ to justice (through legal means or otherwise). But of course, clarification can only be issued by the one who had made that statement [as a side note, I am coming across lot of statements being issued by the Judiciary that has high rhetoric value, but little prescriptive value, which is worrying, especially if it is a trend].
2. On MFH: I have no qualms stating that I firmly believe his only intentions (with some of the paintings – the email reference) were to hurt and provoke the feelings of Hindus. But having said that, I also maintain, he had a right to do that. My point has been: why provide religion with such sanctuary? There are ‘Sardar-jokes’ that abound, people make fun of Rahul Mahajan and Rakhi Sawant, of Kalmadi, even of the so-called ‘good-natured’ people like Gandhi, then why not deities? What criterion/criteria has/have been employed to rule that deities and their worshipers’ feelings are more precious than that of RM, RS, Kalmadi, Sardars, Gandhi or those who hold them dear? Perhaps, if one digs real deep into the law there must exist provisions to punish even such mockery, but perhaps associated punishment must be much lighter.
Also, it is said (and which I have no reason to disbelieve), MFH had fled India simply because he is an income tax defaulter, but unfortunately, the media does not seem to highlight this issue.
3. Intent and motive: I think the Judiciary is instituted precisely to determine them. They use lot of circumstantial evidence, their knowledge of psychology, and of course instinct to determine. Obviously, these checks do not result in foolproof outcomes. [If you wish, you might go through the link I had posted in my above longer comment, where I discuss such hypothetical situations concerning freedom of expression and associated value judgments we make]. But the point is we actually unknowingly use the same criteria to determine intent. E.g., consider if a murder-accused pleads that he does not remember squeezing the trigger of a gun, so he must have suffered from complex partial seizure (click) that led him to squeeze the trigger at that fortuitous moment when his only intent was to threaten the deceased. Now, there would be almost no reliable evidence to refute his plea. There would be other pointers like lack of similar medical history, or impression of his lying (say, through polygraph test, which perhaps in not admissible in the court of law), etc., but I believe such plea would be rejected (otherwise, courts would have been full of such pleas!). I feel using similar criteria it can be as much confidently concluded that MFH had actually intended to hurt the Hindu sentiment (absence of similar paintings drawn by him of deities/religious figures of other religions). But of course, my next question would be so what? So what, if he had malicious intent? If I feel angry I can draw degrading cartoons of him. I should be allowed to substitute the elephant in his painting with his face or some figure from the religion he follows. But I hope, people do not become so jobless to actually descend to that level of retribution.
4. “Only if he actively incited violence, calling for people to be attacked or property to be destroyed in his expressions does he cross the legal line.”
Of late, I have been thinking a lot (disapprovingly) about the above line of argument. Does one calling for violence not have a freedom of expression? I might have intent of slapping my friend, but that in itself is not a crime. Expression of that intent would make him defensive and uncomfortable that would be wrong (as that would amount to real avoidable harm done to him). It is this reason that should make public provocative statements punishable, i.e., because they introduce an unease in lives of ones exhorted to be harmed/killed. But I strongly feel, the causal link between ‘inciting’ and ‘actual violence’ is very weak. Because (except for those under-aged), each and every person participating in violence that might follow would be grown up person, with authority to reject the exhortation to violence, and by participating in violence, they are using their own volition. But as you shall see, very different standards are employed when it comes to judging ‘religious’ books with verses that call for killing, rape and plunder of innocent people. Knowing that such instructions are written, and sizable number of people consider them ‘divine’, ‘holy’ and ‘unquestionable’ makes me very uneasy and uncomfortable. Should someone not be punished for this discomfiture caused to me? As you know, I had dealt with similar ideas in my post on ‘Islamophobia’.
Thanks, Jai for your ideas, too!
Bhagwad, Ketan,
1. Dont you find the use of “strong minds” vs “weak vacillating minds” to be rather subjective in the judgment?
I am a moderately religious, observant or practising Hindu. I wasnt aware of MFH’s paintings until the hoohaa was raised. I didnt find them objectionable at first glance. Later I received a mail forward of several such paintings selectively grouped together- that were indeed offensive and distasteful to me. I trust most people will be familiar with this forward- I couldnt find it directly online. This offense does not IMO translate to my having a “weak and vacillating mind” :-)
But….. I support MFH or any other person’s right to create such work. I dont think this support means I have a “strong” or admirable mind either :-) … I support people’s rights to peacefully protest or boycott MFH. It only means I dont impose my rules on MFH!
It was a shock to learn he had to give up his Indian nationality on this score.
2. Intent and motive: How do you prove malicious intent anyway?
It didnt look like MFH was critiquing Hinduism or making any thoughtful statement thru those paintings- well maybe he was supporting bestiality- but he was creating a piece of art. Intent in such cases is well-nigh unknowable. My initial reaction was that he “intended” for some of the work to be provocative and that seems a fair assumption (to me!). No way a bannable offence.
But even if he intended malice, and to spite and denigrate my Gods, it doesnt look like a case for banning such expression. Only if he actively incited violence, calling for people to be attacked or property to be destroyed in his expressions does he cross the legal line.
thanks,
Jai
re intent and MFH:
I feel it boils down to a question of whether one wishes to engage in dialogue or just make a statement. Our subjective interpretation of the creator's intent is another thing that needs to be factored in.
For instance in the email forward, there was a depiction of an unclothed person, appearing to be a Hindu brahmin, in front of a Mughal lord. The guys who created the email were vehemently critical of this painting but I saw in it MFH sympathizing with the downtrodden person in front of the judge/ ruler and not glorying in his predicament!
The disgusting pictures with goddesses were another story. No "reasonable" explanation could I find for any of them. Thus I could only coldly support his right to make that offensive statement without 'engaging'. I have friends and family that are much more simple and devout and could likely feel distress close to physical pain on viewing those paintings. For obvious reasons I havent sent these emails to them but I havent been able to think they are "weak and vacillating" either -quite to the contrary some of them put up with a much less privileged life with commendable fortitude. What they may lack is breadth of vision to accommodate another person's freedoms.
2. Incitement of violence:
While direct culpability always rests with the actual perpetrators, and nobody is absolving them, this is a very important provision to have, IMO. Yes there is subjectivity there too and a smart instigator can probably find ways to set off a mob without exactly crossing a legal line. But I dont think we have "evolved" to a stage where instigators need to even be smart- I think rabble rousers in and around riot situations carry out their business openly! This is no way a "weak" causation.
We can probably bring up other charges against them too, eg. promising rewards whether earthly or heavenly (72 raisins etc) can get them charged with ring-leading/ organizing/ abetment. But it remains important to me, that we are able to do something about the verbal vitriol too.
I disagree with most champions of absolute FoS in this regard.
thanks,
Jai
Jai,
I too would personally not call who feel offended as 'weak'. I think these issues arise because of differences in how much different persons view themselves as individuals v/s part of a certain community.
If someone calls me unethical directly, I would be right in taking offense (if I consider myself to be largely ethical). But if someone says, "most doctors are turning unethical nowadays" or cracks some lewd doctor joke, it would not be appropriate for me to take offense only because I happen to be a doctor. If I do take offense, then, I am identifying myself with a collective much more strongly than what is warranted (IMO).
So, likewise if someone takes a dig at one's religion or its symbols (or any other community they identify with), I would prefer that people do not take it personally, because identifying oneself too strongly with one's community comes with too many problems. Of course, that many people are not prepared for this sort of detachment from one's communal identity is a fact, but that in itself does not become a justification of conflating one's individual identity with that of a community. This conflation is neither pragmatic nor logical (however much prevalent it be).
About the culpability issue, I still feel causal link is weak, because I have read many, many provocative statements against multiple communities, but nothing has as yet has egged me on to take an inspired action, nor made me think about it. But as I said, making provocative statements should be punishable for causing distress (because of induced fear in the 'target') irrespective of whether such provocation 'results' in actual violence or not. [Correlation does not imply causation]. So, it is not that I am proscribing punishment for making provocative statements, but the reason I find such punishment justified is different from the one you are using to justify it.
Thanks!