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Asking for Nandy's arrest was unnecessary: Tharoor

Karan Thapar: Hello and welcome to Devil's Advocate. Are we becoming an intolerant society and is the Indian state defensive freedom of speech weak and equivocal? Those are the two issues I should raise today with the Minister of State for Human Resource Development Shashi Tharoor, speaking in his individual capacity as one of India's best known writers.

Shashi Tharoor, let me start with a simple question. 'Vishwaroopam' can't be screened in Tamil Nadu, Salman Rushdie has been advised not to visit Kolkata, Ashis Nandy still faces the possibility arrest for something he said at a literary festival. Is this disturbing or distressing for you?


Shashi Tharoor: It is because you know we seemed to be becoming increasingly a culture of competitive intolerance. Each segment of our society goes out of its way to say how offended they are with somebody else's cultural expression and the result, if we take into account how offended everybody is, is terrible narrowing of the cultural space that was meant for expression and imagination in our society and cultures don't grow without that. All the history of contemporary Indian culture has been about the expression of heretical ideas, ideas of not in tune with the orthodoxy of the times and which have moved us along.

Karan Thapar: So, we are betraying by this intolerance what is essentially an Indian culture of tolerance and acceptance?

Shashi Tharoor: I believe so. I think you know apart from tolerance and acceptance is also the fact that we should be willing to engage new ideas, ideas that are somehow not quite we are used to or we particularly value but which we disagree with and argue in a civilised way.

Karan Thapar: Is this therefore a reflection of insecurity in us?

Shashi Tharoor: Well, I think there are collective insecurities which play sometimes but there is also a lack of vision. The way in which Tagore wrote about a culture that he wanted his nation to wake up to - "Where the mind is without fear, the head is held high and where the knowledge is free".

Karan Thapar: Now, there is a generation of young Indians who look at the situation and say that the Indian state, although a democracy, is weak and equivocal in its defence of freedom of speech. Would you agree with them?

Shashi Tharoor: First of all, it's very complicated because who do they mean. There is a central government, there are state governments - which have the specific responsibilities for law and order and there is judiciary and all of these come into play in some of the examples you mentioned.

Karan Thapar: And of them in different instances have let down people.

Shashi Tharoor: May have. For example in the case of Tamil Nadu, the movie screening, the Chief Minister made a very interesting argument - quite apart from the merits of who's offended and so on - that even if she wanted to give a number of screens in which the cinema was going to be displayed and the number of policemen at her disposal, she couldn't have physically protected all of the screens. Now this is one particular argument that one has to bear in mind. Karan, let's get one essential thing right. We have free expression in our country but it is not that it is untrammelled. The Constitution does have certain riders and one of those indeed is any threat to public order and safety. Now, if the government has an obligation to free expression upholding it, it also has an obligation to maintaining public order and safety. What we need to do is to ensure that in judging that balance, the government as far as possible err on the side of freedom rather than on the side of clamping it down.

Karan Thapar: Except that the problem is that when you come to that balance, what happens is that the Indian state invariably seems to buckle under the pressure from extremists fringe of minority groups rather than stand up for the silent majority. That's why people say that when confronted with a challenge to freedom of speech the Indian state is weak and equivocal in its defence.

Shashi Tharoor: See, I am not sure how fair it is because I think the answer has varied from case to case and place to place. For example, the very film 'Vishwaroopam' that you are talking about was screened in my state of Kerala without any untoward incident and it is being screened in other states as well and its Hindi version is also being screened in some places even when it cannot be screened in Tamil Nadu and one or two other states. So, there is a state by state determination made by the government. But there is another worry we have here, which is that essentially what the government has to judge is not where something has offended somebody but whether offences of such in nature as to be likely to provoke violence and when violence is provoked who is in the wrong, is it those who are conducting the act of violence who are first of all in wrong.

Karan Thapar: Let's take the 'Vishwaroopam' example and actually study it in some detail. The Supreme Court has ruled first in 1989 and then again in the 'Aarakshan judgment' of 2011 that any threat of demonstration of violence cannot be a cause for suppressing freedom of speech. Now, when the Chief Minister of Tamil Nadu turns around and says that she has the intelligence that there is a threat and then succumbs to that threat, she is actually defying the Supreme Court and acting in total contradiction of what the Supreme Court has laid down as the correct interpretation.

Shashi Tharoor: Karan, I don't want to discuss specific cases but she has actually argued that is a practical inability to defend the number of cinema theatres.

Karan Thapar: 524 cannot be defended by a state government that must have tens of thousands of police at hand to use. Surely, that is not an acceptable argument.

Shashi Tharoor: That's not my job to defend anybody any particular state government. I am just making the argument. When a government is weighing these things in the balance, there is definitely the responsibility of maintaining public law and order, you can say after all that the ownership on those who threaten violence, not on those who are victims of it but the government's responsibility is that once the damage is done it really doesn't matter...

Karan Thapar: Except the damage won't be done if you are effective in your policing, if you maintain law and order and ensure that small minority that are determine to try and destroy are actually kept in check. But what the government does instead is allow the minority to frighten it and ends up stopping freedom of speech in the belief that appease the minority rather than stand up to them is the answer.

Shashi Tharoor: But I do believe that the minority groups, and I am not specifying talking about any particular minority, but those who are raising objections to specific forms of cultural expression and they go right across the board from books on Shivaji, the Rani of Jhansi to Salman Rushdie's books, to Taslima Nasreen's books. There are different groups at different times upset at different things but if they would only accept that our constitution gives them a right to protest peacefully, they can have dharnas, they can hold placards, they can boycott cinema theatres and book shops but they have no right to interfere with other people's enjoyment.

Karan Thapar: And when they try to interfere with other people's enjoyment, surely it is the first duty of any government, be it the Central government or the state government to stand up and ensure that they don't succeed. But what happens is that when that sort of threat faces the government, and sadly it happens to the Central governments as much as it happens with the state governments, governments give in. They are more worried about the protesters and the danger of the violence that they potentially hold out than they are about championing the freedom of speech. That's why I say it to you that at critical moments states in India get the balance wrong.

Shashi Tharoor: I suspect that there have been many cases in which the balance has been wrongly got. The question is what would you have to do and how do we have a universal prescription that applies to every state government of every political party in every state.

Karan Thapar: Enforce the law. You gave a wonderful example a moment ago; I want to amplify on it. The Tamil Nadu government said that they prevented the screening of 'Vishwaroopam' because they felt that it would be offensive to the Muslim community and there would be a law and order problem and they wanted to avoid it. Across the border in Kerala, the state from where you are an MP, there are at least a hundred per cent more Muslims and yet the movie is being screened to packed houses peacefully. In Hyderabad, a Muslim dominated city in some places, the movie is being screened peacefully. Sixty kilometers from Chennai on the Andhra-Tamil Nadu border the movie is screened peacefully. How on earth is it that Jayalalithaa with tens of thousands of police cannot protect 524 theatres from just 24 Muslim organisations?

Shashi Tharoor: I can't answer that question. You'll have to ask this to her and her government. But the fact still is that whatever the government is doing, the balance ought to be that once the film has been certified by the Censor Board, it ought to be screened and then when you don't like what it contains or says, engage with the filmmakers, argue with them if that is necessary, protest against them if you feel you must but not prevent a screening. However, don't forget the judiciary is also involved. And, because the judiciary has made a judgment, we can't sit here and talk against it.

Karan Thapar: Absolutely. But in this instance what Jayalalithaa has chosen to do is a defiance of the Supreme Court ruling in the 'Aarakshan' case of August 2011 when the Supreme Court specifically said that once the Censor Board has cleared the film, no state government has the right to object to its content. She has defied that and the High Court in Tamil Nadu, unfortunately, is either unaware of that fact or has not responded to it because it is permitted the ban to continue. So, in this instance both the High Court and the state government seem to be acting contrary to what the Supreme Court has laid down as guidelines for the country.

Shashi Tharoor: Karan, that's exactly the complexity of the issue here. There are very many actors involved in each case and in each place, and you will have state high courts and you will have state governments and in some cases and some situations you would have the national government which has to make a judgment for itself and these judgments tends to vary. What we can do as ordinary citizens, as writers, as readers, as filmmakers and artists and simple audiences, what we can do is stand up not so much to blame the government but stand up for a culture of free expression and tolerance.

Karan Thapar: Which is what in fact is happening in India at the moment not just in televisions, studios and newspapers, the civil society itself is revolting against the way intolerance is impinging upon freedom of speech. But you know, you mentioned earlier how the Indian Constitution article 19(2) itself prohibits reasonable restriction on freedom of speech in areas like public order, decency, morality, I put it to you that actually phrases like public order, decency and morality are so vague and so imprecise that can be and have been misused by politicians and state governments who want to find an excuse to stop freedom of speech and pander perhaps the votebank. Would you accept we need to be more precise?

Shashi Tharoor: No, I don't accept that for this reason, the vagueness is there, for example there is a reference to any hinder that affects relations with foreign countries which you can imagine will limit whole lot of expression in our country including the last book I wrote. No, the answer is not the vagueness of the language but the way it is interpreted by the government and the judiciary.

Karan Thapar: But that's because the language is vague.

Shashi Tharoor: The interpretation has tended to be on the liberal side for a very long time, it's only in recent years, really only in the 10 or 15 years that we have found that there are still people standing for the liberal interpretation, Justice Kaul's judgment in the Delhi High Court in the Hussian (MF Hussain) case for example or Hussian cases. At the same time there also been actions which you right excoriate by governments, sometimes by judiciary in some states that have actually gone on the opposite direction. The challenge for us as a society is to find the right balance that leans more towards freedom and not towards repression.

Karan Thapar: But won't we be better equipped at handling that challenge if actually we go back to the constitution and revise article 19(2) and remove vague imprecise terms which have been repeatedly badly interpreted and sometimes even deliberately misinterpreted and then there will be less room for doubt and less room for interpretation and better results for everyone.

Shashi Tharoor: The Supreme Court has itself interpreted this particular provision rather than liberally.

Karan Thapar: And high courts are ignoring it in Tamil Nadu as we have just seen.

Shashi Tharoor: Presumably that be challenged in that case if necessary.

Karan Thapar: But there is no need for the constitutional amendment?

Shashi Tharoor: I think constitutional amendments quite frankly you are asking for a very difficult thing to do and with which we will open up another can of worms. I would rather not fiddle with the fundamental right that we have in our country with the best of intentions it can end up with the worst of results. Let's instead encourage a culture of this kind of creative interpretation.

Karan Thapar: All right let's encourage a culture of creative interpretation.

Shashi Tharoor: Dreary desert sands of dead habit that took over talked about.

Karan Thapar: Let's then try and illustrate that point that you are making by taking Ashis Nandy case. He clearly in Jaipur was not inciting violence, he very clearly was not stirring hatred, he was making an academic point about caste and corruption at a literary festival. Should politicians, who got to hear, edited, distorted sound bytes of what he had to say on television have within minutes started calling for his arrest?

Shashi Tharoor: I think there are legitimate grounds on disagreeing with what he had said.

Karan Thapar: But calling for arrest...

Shashi Tharoor: But calling for arrest was completely unnecessary and the Supreme Court has come down pretty much the same way. They said to me that...

Karan Thapar: In fact for the fact that...the man had FIR filed in three states before the Supreme Court had to stay them. But I put it to you that those who were baying for his blood were actually appealing to votebanks or wither cementing caste identity, there weren't really standing up for principle values, were they?

Shashi Tharoor: Probably. When you look at the whole emotive issue of caste, it is something where people are often touched to the quick by certain statements. So, everyone, not necessarily academics, but everyone let's say in the public spaces of our country have tended to be very restrained when they used the which is what I remember a cricket commentator once being....

Karan Thapar: You mean the caste is so inflammatory that people put their good judgment aside and become emotional or they become cautious?

Shashi Tharoor: In this particular case it's a question of couching your argument and language that cannot give offence. In this particular instance one could argue as the Supreme Court has done, professor Nandy, who is a friend and I respect a great deal, could have phrased what he had said better. But it's not a grant for rest and certainly would not...

Karan Thapar: So, politicians who called for his arrest you would say were out of order and out of line?

Shashi Tharoor: I think calling for the arrest was unnecessary. Being angry about what he had said was legitimate and what one should do is ask him for account explain and if necessary contextualise his argument.

Karan Thapar: What about something else, in fact whether you look at the Ashis Nandy example or you look at the Kamal Haasan's film 'Vishwaroopam' or you look at Salman Rushdie, what stands out is that not even a single politician of prominence from any party spoke in defence of these three individuals. Are they too scared to do so or are Indian politicians really worried about freedom of speech?

Shashi Tharoor: I must say that on two, the film and Salman Rushdie, I have been quite open on Twitter and my own writings and columns.

Karan Thapar: You're probably the great exception, if you look around the parties they are not making party political point, politicians have been noted by their silence. Instead of being champions of freedom they kept quite and duct their heads.

Shashi Tharoor: Well, our culture is one, quite frankly, that does not encourage people sticking their heads up in the defence of the unpopular.

Karan Thapar: Not even if the unpopular is the right thing to do, shouldn't the politicians have the courage of conviction?

Shashi Tharoor: I'm in no position to judge my fellow politicians or political leaders, but I do believe as a whole we ought to be standing up for the things that are precious in our society about our freedoms. And I think if we can speak a little more and if the media instead of whipping up a statement into a so called manufactured breaking news controversy took it as a defence of something that we value in our culture, then I think we all will be better served.

Karan Thapar: The media could help encourage politicians to stand up if the media reported with greater balance.

Shashi Tharoor: With greater responsibility, I mean, very frankly what happens is a politician says something sensible in favour of freedom the next thing he might know is that he might be in the middle of some raging controversy that is being used by television channels to bring their TRPs up. And so those of us who have been there and singed tend to keep quiet.

Karan Thapar: You are slightly blaming the media for this, aren't you, for the fact the politicians lack the courage to stand for the unpopular, even if the unpopular is correct. At the end of the day that courage should come from inside, it doesn't need to be encouraged by the media.

Shashi Tharoor: No, it doesn't need to be encouraged by the media, but it need not to be discouraged by the way media would treat it.

Karan Thapar: Let me now approach this discussion, we are having, slightly differently. Do you think time has come for the Indian state to accept that freedom of speech includes the right to offend?

Shashi Tharoor: Yes and no. I mean, sadly, as an absolute principle, I would say yes it should, but practice in our society given our own consciences about our own history the ways in which offence taken has often ended up in the loss of life, some reasonable restrain will have to be possible. And the point is how you judge that. No government, the old Oliver Wendell Holmes line that 'freedom of speech doesn't include falsely shout fire in a crowed theater because the damage that will be done by stamped, outweighs of freedom of speech'. Similarly in our society we can't encourage people to light a match in a petrol pump. What we have to judge, however, each time is whether that is indeed a serious match or merely a passing spark, whether indeed the petrol pump is vulnerable to explosion, if it comes to that yes I would snuff the match and not shutdown the petrol pump. But our society in some respects, on some issues, in sometimes, in some places is a petrol pump and we can't let anybody to light a match.

Karan Thapar: You are saying two things at the same time. First of all, you are saying this debate whether you allow a match to carry on whether you snuff it depends upon the circumstances of each individual cases. And the second thing you are also saying is that you can't forget that there is a volatile element in India and it may be the case that sometime you have to suppress the rights of a few for the greater good of the many. In other words India hasn't reached to a point where you can say unequally that freedom of speech includes the right to offend.

Shashi Tharoor: Unequally we can't say it. It should in my view include the right to say things that might offend some and that therefore invite a counter argument and discussions. But not to the point where a government or a judge may determine that this proposes a danger to public order and public safety.

Karan Thapar: So there is a red line over there but hopefully it is a shifting red line, and hopefully liberal space is growing.

Shashi Tharoor: And that we interpret where that red line in, as liberally as possible in the interest of our own evolution a culture.

Karan Thapar: As you look back over the events of last 10 days, do we have cause to be embarrassed the way our society has responded to Rushdie, Nandy, to Kamal Hassan?

Shashi Tharoor: There are many things in all those cases which do not speak well of us. Which do not speak well of us first of all the way in which the objections were voiced, for the way the objections were dealt with and the ultimate outcome, which is the silencing of people's intellectual and creative freedom, that is not good. But at the same time it is not easy to sit in the position of the judge or the government administrator and making that decision and to say that they were absolutely in the wrong. One wishes that before rushing to a particular decision that would take a broader view and ideally have done what is necessary to permit the free expression to be in fact expressed.

Karan Thapar: Shashi Tharoor a pleasure talking to you.

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