Vantage point

Monday, December 11, 2006

About the JAMMAG Ads Controversy

I was absolutely shocked and horrified to read about my good friend and companion-in-troubled-times, Rashmi Bansal being booked for a non-bailable offence. Apparently the Mumbai police have registered against her an offence for allegedly hurting the religious sentiments of people by making derogatory remarks on religious icons. The news report also says she is untraceable.

I am still a bit unclear about what was found offensive. JAM in its apology mentions some ads. The news article mentions punchlines below some pictures. Whatever it was, has been deemed offensive and obscene by the Mumbai police, and she has been booked under Section 292 and 295a.

Needless to say, I completely sympathise with and support Rashmi and Yatin, and hope they don't face too much of a hard time.

I have written previously about how the First Amendment to the Indian Constitution put several restrictions on our freedom of speech using riders like "public order", "decency", "morality", all of which are so subjective, that freedom of speech might as well be called a discretionary right instead of a fundamental right. It is the First Amendment which made it possible for such sections of the Indian penal code to be in place. I find the two sections in question utterly ridiculous, and if we are to have real freedom of speech in this country, they should be scrapped, and the provisions of the First Amendment reversed, giving us real freedom of speech.

Since I find the laws wrong in the first place, I obviously do not regard someone booked under them as an offender or a wrong-doer. Just like I would not consider someone being prosecuted for homosexuality as an offender.

Rashmi is a widely-read and popular blogger, and was at the centre of the IIPM controversy, which many bloggers feel passionately about. There will be bloggers supporting her, and the cause of free speech, and exhorting her to fight for it. But I wish to make a very important point here, which bloggers should try to differentiate from the free speech issue.

Freedom of expression is inviolable and sacrosanct. But it is the central issue if and only if Rashmi meant to express those things. For instance, she meant to criticize IIPM and expose the truth behind their tall claims. And she stood by it. this case is, however, different. It seems, from the apology on JAM's site, that the magazine did not intend to cause offence to any religion or community. Rashmi regrets that the illustrations inadvertantly offended people. Thus it is not a question of free speech. It has more to do with overzealous and faulty use of the law by the Police.

Mind you, if she intended to make fun of some religion or community, I would have supported her 100%. Freedom of speech should be absolute, and making fun of anyone or anything should not be punishable. But she apparently did not. So she is right to issue an apology. And she should not be charged with the offence.

Here's what section 295a says -

[295A. Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs
Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of 146[citizens of India], 147[by words, either spoken or written, or by signs or by visible representations or otherwise], insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to 148[three years], or with fine, or with both.]

So this section, as wrong as it is, can be applied only if there was a deliberate and malicious intention to outrage religious feelings of people. It seems clear from the apology issued that there was no such intention, and thus the decision of the police to register an offence against her was wrong.

Now section 292 is tricky. It is a long one, but I will quote only the relevant portions here -

For the purposes of subsection (2), a book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, shall be deemed to be obscene if it is lascivious or appeals to the prurient interest or if its effect, or (where it comprises two or more distinct items) the effect of any one of its items, is, if taken as a whole, such as to tend to deprave and corrupt person, who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or. embodied in it].
[(2)] Whoever-
(a) sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation, or for purposes of sale, hire, distribution, public exhibition or circulation, makes, produces or has in his possession any obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obscene object whatsoever, or

This section does not hinge on intent. But it has a very subjective term "obscene", and the definition is extremely sketchy. Some might find a woman in a bikini to be obscene. Others might find kissing obscene (and they have, judging from the case against Aishwarya Rai). Heck, if you are an extremely orthodox person, you may find a woman in jeans obscene. So not only does the section violate the freedom of expression, it is also badly worded and open to misuse. I also don't understand the logic behind making this a non-bailable offence.

I have not seen the ads in question, but have been a reader of JAM magazine in the past, and it never publishes anything which can be termed as more obscene than what you see in Times of India. So I find it highly unlikely that whatever was published was obscene in most senses of the word.

Thus the Mumbai police, by registering an offence seem to be just harassing Rashmi for no real reason, even if we take the sections in question to be correct.

So in this case, I protest the way Mumbai police is handling this matter, and I hope the mainstream media picks up this news, and generates enough publicity and outrage to make them drop the charges. That should be the more immediate goal.

Free speech is important. And it is important for the constitution to be amended to ensure free speech. But the immediate concern is Rashmi being charged for something wrongly. Please keep that in mind.