Shaking Fists and Simmering Craniums: India's Tolerance for Restricting Socially Offensive and Emotionally Harmful Speech
| Author | Daniel Hantman |
| Position | Independent Scholar |
| Pages | 73-104 |
e Indonesian Journal of International & Comparative Law
ISSN: 2338-7602; E-ISSN: 2338-770X
http://www.ijil.org
© 2014 e Institute for Migrant Rights
rst published online 11 November 2013
73
Note. e author would like to thank Professor Steven Heyman for putting together such
a wonderful course on the First Amendment and for his invaluable feedback throughout
the writing process. Gratitude also goes out to Professor Elizabeth de Armond for her in-
sightful comments on drafts of this paper. e author would like to thank his wonderful
Sasuma, Deepti Gulati, for tirelessly answering my questions about the Indian judicial
system. Finally, the author would like to thank his wife, Ruchira Gulati Hantman, for
her seemingly inexhaustible patience and support.
Shaking Fists and
Simmering Craniums:
India’s Tolerance for Restricting Socially Offensive
and Emotionally Harmful Speech
D H
Independent Scholar
E-mail: daniel.hantman@gmail.com
is article explores the contrast between American and Indian approaches to regulat-
ing speech that is either emotionally harmful or socially oensive. Naturally, some of
this dierence reects India’s history of communal violence and its colonially inspired
censorship regulatory regime. Nevertheless, Indian courts are much more willing to
restrict emotionally harmful and socially oensive speech than are American courts.
To a great extent, India relies on its judiciary to reconcile the classically Liberal form
of government it inherited through the colonial experience with a constellation of
cultures that are strikingly more communal than their Western counterparts. ese
diering approaches are reected in contrasting constitutional structures that regulate
expressive freedom and divergent supreme court jurisprudences that attempt to incor-
porate the varying needs of communities within each nation.
is article argues that Indian free expression jurisprudence permissively allows
the government to impose restrictions on speech in order to preserve mental, emo-
tional, and social tranquility and well-being, which stands in contrast to the more
stringent American approach to regulating this category of speech. e dierence
represents, at least in part, an attempt by the Indian judiciary to resolve a tension
that arises through the application of a modern system of democratic republican
governance, the ospring of Classical Liberal prioritizations of individualism and
personal autonomy, to societies traditionally more oriented toward groups and com-
munalism. Woven throughout the article is a comparison to the American approach
to restricting hate speech to illustrate the stark contrast between the two approaches
The Indonesian Journal of International & Comparative Law Volume I Issue 1 (2014) at 73–104
Daniel Hantman
74
and to demonstrate the idiosyncratic journey that Indian free expression jurispru-
dence has undertaken since independence. e article demonstrates that a myriad
of factors inspired the development of India’s more permissive approach to restricting
emotionally harmful and socially oensive speech. ese factors include not only the
preservation of social harmony and well-being, but also the government’s fear of
losing its authority, or at least the appearance thereof, and the impact of oppressive
majoritarian communal politics.
e rst substantive section outlines the Indian constitutional and statutory
framework controlling the government’s ability to restrict speech that causes emotion-
al and social harm. It explores not only Indian constitutional provisions and their
geneses, but also statutes that authorize the government to restrict socially oensive
and emotionally harmful speech. e second section demonstrates the Indian judi-
ciary’s greater tolerance of restrictions on expression and explores its reasoning for so
doing. It focuses on landmark Indian Supreme Court decisions that currently dene
Indian free expression jurisprudence in this area. e third section considers sociopo-
litical factors that inuence India’s approach to restricting expression. Furthermore,
this section will oer a critique of India’s more permissive approach to speech regula-
tion that addresses its detrimental impact on cultivating a healthy national discourse,
the legal uncertainty of speakers’ rights, and the framework’s potential for abuse at the
hands of dominant social groups.
Keywords: Civil Rights, Communal Politics, Communalism, First Amandment, Free
Speech, Hate Speech, Human Rights, India, Indian Constitutional Law, Indian Su-
preme Court, Liberalism, Natural Rights eory, Post-Colonialism.
I. Introduction
On November 17, 2012, Bal Keshav ackeray quietly died of cardiac ar-
rest in his Mumbai home at the age of eighty-six.1 However, news of this
death was far from mundane. ackeray was an extremely controversial
politician and one of the key founders of the conservative Hindu Na-
tionalist and Marathi Nativist movements in India.2 In response to ac-
1. Sumnima Udas, Controversial Indian Politician Dies at 86, CNN.COM, (Nov.
18, 2012), available at http://www.cnn.com/2012/11/17/world/asia/india-thac-
keray-death.
2. Beginning in 1960, ackeray worked as a Bombay-based cartoonist whose works
conveyed anti-migrant messages. In 1966, he founded a political organization,
the Shiv Sena, which promoted, often violently, Marathi nativism in Bombay,
which is located in the Indian state of Maharashtra, in opposition to the inux of
South Indian migrants from the states of Tamil Nadu and Andra Pradesh. Later
on, as Hindu Nationalism (see footnote 132 for more on Hindu Nationalism)
Shaking Fists and Simmering Craniums: India’s Tolerance for Restricting Socially Offensive and Emotionally Harmful Speech
Daniel Hantman
75
keray’s death, many public utilities in Mumbai shut down in apparent
mourning, including government oces and public transport services.3
Unsurprisingly, in light of Mumbai’s staggering population, of at least
19.6 million, these shutdowns caused extreme congestion, delays, and
inconvenience for many residents of the city.4 Naturally, many citizens
expressed their frustration with the shutdowns, and criticism from Mus-
lim, non-Marathi, Christian, and other residents ideologically opposed to
ackeray’s politics was especially vocal.
In the wake of the chaos griping the city as a result of these utili-
ty and transport closures, Shaheen Dada, a twenty-one-year-old Muslim
college student, voiced her frustration in a Facebook post:
Every day thousands of people die. But still the world moves on . . .
Just due to one politician dead. A natural death. Every one goes cra-
zy . . . Respect is earned not given out, denitely not forced. Today
Mumbai shuts down due to fear not due to respect.5
Although Dada soon received calls from friends urging her to remove the
post and apologize, one of her acquaintances, and Facebook friend, Renu
Srinivasan “liked” the post and commented:
Everyone knows it’s done because of fear!!! We agree that he [ac-
keray] has done a lot of good things. also we respect him, it doesn’t
make sense to shut down everything! Respect can be shown in many
other ways!6
gained strength throughout India, ackeray and the Shiv Sena allied themselves
with organizations that were overtly anti-Muslim. Additionally, in a nod to
Hindu and Marathi Nationalist politics, ackeray and the Shiv Sena were
ultimately successful in their controversial eort to change the name of the city
from “Bombay” to “Mumbai” in 1995, to more closely reect the name of a local
goddess, Mumba Devi, one of several alleged sources of the city’s name. T
B H, W V: N I P-C
B 1-2 (2001); R G, I A G: A H
W’ L D 429 (2007).
3. Rajini Vaidyanathan, India Facebook Arrests: Shaheen and Renu Speak Out, BBC.
CO.UK, (Nov. 25, 2012), available at http://www.bbc.co.uk/news/world-asia-in-
dia-20490823.
4. Id .; India, in CIA: T W F, available at https://www.cia.gov/li-
brary/publications/the-world-factbook/geos/in.html.
5. Vaidyanathan, supra note 3.
6. Id .
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