A Round table On Exploring the Continuum between Sexuality and Sexual Violence, was organized by Partners for Law in Development on April 28, 2015. The session on Speech, Sexuality And The Law explored issues of censorship that rely on notions of ‘obscenity’, ‘indecency’ and more recently, ‘hate’ speech. Two presentations are extracted here from this session.
Professor of Political Theory, Jawaharlal Nehru University
There are certain paradoxes that we face in the field of censorship. The demands made on the state for censorship can be grouped around three axes – first, demands to censor around the question of sexuality and the expression of non-normative free sexual desire; second, whenever heterogeneous voices are expressed from within religions or when there is criticism of religious traditions. These two demands are made by conservative right wing forces. The third set of demands on the state are about the censoring of hate speech, which includes the hateful representation of marginalized identities, powerless, dalits, women, poor, Muslims etc. and this demand comes from secular, left or progressive people. So the demand for censorship can be classified into these three categories.
One of the paradoxes we face is that, when, we as feminists, make demands for censorship from the state, or demand limitations on the speech of the third kind, the only recourse we have is to law. And law actually represent the world view of the dominant. For example, if we demand, as we did in the 80s, restrictions on images that objectify women, we take recourse to those laws which talk about indecency or obscenity because we don’t have laws against objectification. In other words, we are using laws which represent the world view of the dominant. What happens if we feel, as many of us do, that it is obscene to show high levels of consumption when people are starving. Recently, we saw an example of a different approach by which feminsts managed to get an advertisement of Kalyan Jewellers withdrawn, which showed an emaciated slave body as a prop to Aishwarya Rai wearing jewellery, which seemed certainly much more obscene to all of us than the nude body of a woman. There would be no legal recourse against such an advertisement as this is not within the scope of indecency or obscenity as defined in the law. Women’s groups put pressure on Kalyan Jewellers and on Aishwarya Rai and the advertisement was modified. I differentiate between this kind of initiative taken in addressing an advertiser and someone participating in an ad, that is to say, addressing non-state actors by producing a public debate, and from asking the state to censor something or by invoking the law. These two approaches are not equivalent at all. What is interesting, is that there is another notion of obscenity that is involved here which the law cannot address and that is one of the key paradoxes we face with respect to censorship as censorship entails turning to the law and to the state.
The second set of questions that arise from the fact that we as feminists, defend freedom of expression, not from the point of view of a liberal individual who has/should have unfettered voice to express his/her innermost views. Our notion of freedom of expression is grounded in a vision of social justice and collectivity, which is actually the basis of our demand for and belief in freedom of expression, because in a power laden and extremely heterogeneous society, we need to protect the voices of dissent. We want that - but this very notion of social justice also ties up with the need to censor dominant voices that produce hate speech. So, we are faced with a contradiction between freedom of expression for voices of dissent versus censorship for hate speech. And we need to recognise that the line between the two in a heterogenous public is not clear because we need to speak in the heterogenous public which is not just ‘we’ but there are multiple listeners out there. So, this idea of freedom of expression, based on the notion of collectivity, rather than on the myth of the individual, leaves us demanding freedom of expression in some cases and demanding censorship on hate speech in other cases. This, I think is another paradox, that we need to think about.
Here I would like to come back to Mihira’s question on why feminists are held up to higher standards. The point is that we do hold ourselves up to higher standards. I don’t think that the right wing has any problem with making contradictory demands - censor this but let that flourish - but we have a problem as we want to be ethically consistent when we say that we demand freedom of expression as well as censorship. These paradoxes arise because we hold ourselves up to very complex ethical standards.
These points that I am raising have been long thought about in the women’s movement and are very, very serious ongoing debates. But I am puzzled by ways in which the debates are getting reproduced, as if from the 80s, but in a new way. Whether it is sexuality as desire alongside a focus on sexual violence, which is the trajectory we saw in the last session; or from the 80s censorship position to an understanding that insists on proliferation of discourses to a return to, ‘But my god, what is happening and do we need to have some kind of restrictions on images after all’.
I don’t think it is simply a repetition of the 80s but something new and we need to think about why the questions are new again. The third set of questions have to do with questions of representation and reception. Once we recognize or accept the idea that representation is not a simple relationship between an image and how it is received and we recognise that .the meaning of an image or an utterance is not contained inside it, but, it is produced by the context in which it is placed, we come to accept and understand that something is not by itself obscene. For example, a diagram drawn by a Class 12h biology teacher of the reproductive system may be utterly boring for the class but during tea-time or break, it may become a space of pornographic delectation. As a teacher, I sometimes imagine that I write something on the blackboard and it may later become a space of desire; it could, who knows?
What I am trying to say is that the meaning of things are not contained inside the representation. Once we recognise this aspect of representation, we simultaneously recognise that we cannot predict the reception of ideas, as there are multiple viewers and multiple readerships and the so-called male gaze of the camera is subverted by the queer gaze of the audience, etc. This would mean, then, that our political speech can be their hate speech. So Katju can say that Periyar was preaching caste hatred (and you know that has been quite a controversial statement), or Mayawati will be accused of preaching caste hatred, or secular activists will be accused of promoting communal disharmony and so on, and we all know this. So, our political speech becomes their hate speech and there is no space in which we can objectively prove that this is one or the other.
In one space, it will always be hate speech and in another space it will always be political speech. Similarly, when you come to the questions of reception, for example, one of the key debates over the film ‘India’s Daughter’ was whether what Mukesh Singh (one of the accused rapists) said about women was to be treated as hate speech against women. Is it so clear that this kind of speech produces a sense of exaltation and general agreement in the male audience?
Can it also produce among some men a sense of shame and horror, that this man does not represent me? Surely some men are thinking that too. I was present at the screening of a documentary on sexual harassment (“Bol ke Lab Azad Hain Tere”) by Sania Hashmi and Mohan Kumawat, in which boys and men actually say terrible things about women and justify sexual harassment to the camera, but in the audience, the response of some of the men was, ‘Couldn’t you find a single man who didn’t say this? How is it that all your men are saying this?’ So with reception, is it clear that we know exactly what that image represents and that all of us are seeing the same thing in the same image?
Now among ourselves, I say ‘we’ as if we are a homogenous voice, but over the Ambedkar cartoon, ‘we’ all had different voices. Personally, I did not read the cartoon as denigratory but many others found it to be so and violent towards Dalits. Clearly, its not like one image has a single meaning, it is not like the intention of the author is fully known, its not as if the reception is not multiple. When this happens, then, what do we do and what are the questions that arise in terms of turning to the state to censor.
I am going to conclude with one small point which picks up on something that I said, which I have a feeling was misinterpreted. Close to fifteen years now, I have argued and believed that the law can be counterproductive to the feminist ethics. You can see how the language that we have to use is the language of the law. For example, ‘cruelty’ is one of the grounds for divorce, so if a husband’s extra-marital affair is not treated by the judge as cruelty, then the woman cannot get divorce. So, for her to get a divorce, the judge must feel that there has been cruelty. Similar is the case with obscenity and nudity and so on. So that continues the thread - what do we have if we don’t have the law? In this context my position is that we can only counter images and utterances and receptions with more images and utterances and receptions. We can influence someone who produced an image to make them realise how hateful it is, and they might withdraw it or they might not withdraw it, but we must do it outside of state spaces. Increasingly, under the current dispensation where the state is so willing to speak up on behalf of women, we need to be very careful of that.
I was wondering if lawyers here can help us to think about, not so much in this context, but in other contexts like rape, whether civil law or an alternative set of imaginations which might or might not be implemented as law, could help us to reconceptualise breach of promise of marriage as rape. Can it not be thought of as breach of contract? Because the woman is hurt, she is angry and she actually wouldn’t have slept with the man had he not promised to marry her and her only recourse is through the language of rape and sexual violation and the law. Can there be nothing in the lines of a civil remedy, to get back or be compensated for the years she spent on the relationship, perhaps performing wife-like household labour as well, without resorting to the language of violation and crime? I am sorry I brought this point in shadily and out of context, but I wanted to speak about it.
Coming back to our main theme, I reiterate that there should not be any attempt on our part to resort to the state to control any kind of speech, unless that speech is performative in a direct sense, as in ‘Right now, let us go and burn down that church’. But even in that case, it is the burning of the church that we should be talking about and not the fact that someone said that the church is to be burnt.
NIVEDITA MENON is Professor of Political Theory School of International Studies Jawaharlal Nehru University
Research Associate, Sarai-CSDS
I would specifically focus on issue of hate speech and link it to debates around the offences related to gender and sexuality. Under Indian law, there are three kinds of hate speech legislations. First are penal provisions that are linked to public tranquility type of offences, such as inciting riots (Sec. 153A). Second, are provisions dealing with offending sentiments (such as Sec. 295A which deals with insulting a religious symbol or a religion itself). The third, relates to legislation that addresses systemic or institutional discrimination, such as, the SC/ST Act and recently, the transgender bill passed by the Rajya Sabha which has a provision covering hate speech.
The idea behind these specific legislations is that there are communities or groups who need to be protected from extreme vilification or discrimination, acknowledging that this vilification is a historical fact and still exists. If you look internationally at how other countries have dealt with the hate speech question, the UN Special Rapporteur, as well as comparative best practices, they point that most jurisdictions, except some like the US, have retained hate speech laws, but have got rid of criminalizing hurt sentiments. They have converted hurt sentiments type of offences, into laws which protect against extreme vilification or incitement to discrimination against certain vulnerable groups. Here, often the vulnerable groups are minorities and identity-based groups, based on gender, sexual orientation, etc., depending upon the context of that jurisdiction. In most jurisdictions, you will see that race and religion based hatred that are common, but in some countries, other aspects are also brought in.
My sense of the hate speech question based on gender is that you cannot de-link it from the larger question of reform of hate speech law, for example, the issues which came up in the ‘India’s Daughter’
I am engaged in law-reform process with the Law Commission and one way going forward is to change the existing system, by doing away with the idea of criminalizing hurt sentiments and the narrow the scope of what is criminalized to extreme vilification and incitement of discrimination, as well as, of course, in cases when there is violence, with direct approximate link between speech and the violent act. The courts have dealt with this question over a period of time and have held that there has to be proximity between what you say and the occurrence of violent act for it to be called as hate speech. Recently, in the Shreya Singhal case on Section 66A, it was emphasized that as far as Indian law is concerned, this is the position.
The reason why it might be difficult to pitch for this in India is that there is a big gap between how criminal law functions and the way it is incorporated on these statutes. We know how people are persecuted and harassed under these laws. But despite this, my sense of this issue is that there needs to be one core area which law still has to deal with. The other measures for hate speech may be, for instance, civil remedies besides the criminal law. The entire debate on, for instance, whether it is the Ambedkar cartoon or the Danish cartoon, that there must be a recognition in some of these cases of hurt sentiment that there is a moral injury involved. It might not be a legal injury, but how is it recognized that there is a moral injury, because if the relationship between a believer and an icon is disrupted, then how is that disruption recognized?Ideally, this should not be an issue for criminal law to take on but other alternatives outside of the law should be established by way of the non-legal measures.
The other way of dealing this issue is through counter-speech. For instance, the action taken by police when there are online rumors is one of the best examples where they have become more active and started sending the counter-messages or counter- statements to stop the rumors. These are some mechanisms that we need to explore. Also, when we talk about institutionalized discrimination or systemic discrimination there has to be a high standards set for this. The idea is that taking mere offence must be differentiated from this particular harm, and for that distinction, there has to be high standards. Again if we look at countries such as Canada, they have set a high standard, so they narrow the scope when they differentiate between offence and discrimination.
I will end by linking it to the specific issue of gender and sexuality. For instance rape videos being circulated by the rapist, which Sunita Krishnan took up, including to the Supreme Court. She blurred the face of the victim but not the rapists, putting it up and in circulation, to asked to get the rapists identified. With this kind of circulation, there is a certain kind of charge that the media objects are beginning to have. There is also the issue of anonymity and spread is quick and vast. So these issues will come up in a big way and how do you intervene in these spaces and ask whether the law should intervene in such spaces. Also, there are provisions in the IT Act which talks about consent; Sec. 66E of the Information Technology Act says that you cannot circulate any material without the consent of the person. But from my point of view, it is a complex issue and there is a domain of what falls within hate speech that needs to be curbed, but equally, we need to make sure that this domain is as narrow as possible. We need to take into account the fact that there are huge problems in taking recourse of the criminal justice system and ask ourselves, if there are any other ways by which we can engage with the system.
SIDDHARTH NARAIN is a Research Associate at Sarai-CSDS