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LATEST NEWS UPDATES | Through the Lens of a Constitutional Republic The Case of the Controversial Textbook by Peter Ronald deSouza

Through the Lens of a Constitutional Republic The Case of the Controversial Textbook by Peter Ronald deSouza

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published Published on May 29, 2012   modified Modified on May 29, 2012

The textbook controversy is an opportunity for us to explore some of our core constitutional principles, especially the relationship between Parliament and freedom of expression. Parliament is certainly the space to discuss complaints of “offensive material” but should exercise its option of withdrawal of the textbooks in the “last instance” not in the “first instance” as has been done in this case.

Peter Ronald deSouza (peter@csds.in) is the director of the Indian Institute of Advanced Study, Shimla.

The withdrawal of the National Council for Educational Research and Training (NCERT) Politi­cal Science textbooks has rightly generated a major moral and political controversy. Righteous indignation has been expres­sed by both sides as they have sought to marshal a battery of arguments in their defence.

These have ranged from highlighting the concerns expressed in the Constituent Assembly on the right to freedom, to observations on the growing politics of outbidding that has come to define our democratic practice, to explanations of the changing culture of our political institutions, to an elaboration on the innovative pedagogy for textbooks that must necessarily be adopted in a wired world, to opinions that our democracy is being undermined by the regular denigration of its political leaders, to comments on the nature and status of the icons of subaltern groups and whether, in a world of identity politics, anything critical can be said about them, to the detailing of the increasing habit of censorship that marks our public domain, to finally a discussion on the normative frame within which we have to build our constitutional ­republic. A politics of reading has also been proposed.

To this wide range of issues I want to add one that keeps coming up in our democracy but has not got the focused analysis it deserves. It is necessary to address this issue because it is located at the core of the constitutional republic we want to build and hence ignoring it or treating it as peripheral would be most unfortunate. The issue can be ­expressed by the following set of questions: What does a plural democracy such as India do when one group of ­citizens claims that it has been deeply offended by “an opinion” expressed by another citizen or group, in the form of a book, play, painting, film, photo, article, song, or cartoon, and asks that the ­offensive opinion be banned from the public sphere? How should the state respond; ignore the demand or accept it? In other words, we need to ask ourselves how much offence we are willing to ­tolerate for the more substantial benefit of consolidating a culture committed to the freedom of expression. Or asked from within a different frame: Are some things sacred and not available for satirical treatment? Is the number of such sacred things growing or declining?

In our plural democracy the fre­quency with which this demand for the banning of an opinion is growing, because the opinion in question it is claimed is very offensive, is somewhat alarming. Ironically this has happened because of the existence of democracy. As groups ­acquire voice, as identity politics becomes the basis of political mobilisation and consolidation of group boundaries, as coalition politics and hence a politics of appeasement becomes the norm, and as the short-term pay-offs that a pragmatic politics gives are preferred over the long-term appreciation that a prin­cipled politics offers, the threshold, at which groups claim that they have been deeply offended by an “opinion”, drops lower and lower. The current case which first began as a demand in Parliament to remove an allegedly offensive cartoon on Ambedkar from the textbook, grew into a demand to remove all cartoons, and finally to withdraw the textbook ­itself is a case in point.

In this article I have chosen to analyse what I shall for purposes of shorthand refer to as the “textbook controversy” because I want to invite rigorous reflection on certain core normative principles of our young constitutional republic. These principles, I believe, are entangled in the controversy. They concern the rules by which we shall live together as a plural and peaceful political community, rules by which we will deal with conflict and contestation, rules that ­enable us to adjudicate between conflicting values and arrive at a position of dignified accommodation. The textbook case is a difficult case. Yet if one can ­extract from it some clarity on the rules that are to govern our public behaviour then it will serve us well when we have to deal with similar conflicts in the ­future. Drawing lessons for our constitutional republic, from the textbook contr­oversy, may be one of the un­intended consequences of the political ­science textbooks!

The case is difficult because the claim that an opinion, the cartoon, was deeply offensive was raised by one group on the floor of the houses of Parliament. This gives the claim a special status since it was raised in a place especially created to debate important issues for our demo­cracy, a space that enjoys certain privileges and immunities that are not available elsewhere, a space deliberately unconstrained by concerns about libel, or contempt, or causing offence. It is the freest space in our democracy sharing this status perhaps only with the chambers of the Supreme Court. If, in this space, a demand for censorship of an opinion is made because the opinion is considered deeply offensive to the group making the demand then the authorities have been tasked by the Constitution to regulate such opinion must attend to the demand in right earnest. The issue gets more complicated when the demand to censor is made by the lawmakers themselves, those entrusted by the citizens to represent them. When the demand grows from one made only by a particular group, initially mainly Members of Parliament representing the dalit constituency, to nearly all the members of the house across parties and across the ideological spectrum, a rare moment of near unanimity, then we have a serious conflict between two key values of our republic, that of representation and that of freedom of expression.

Further, a demand made by the dalit constituency must be given extra attention because our polity, in its drive to create a future of equal citizens, is currently in a phase of moral, material, and symbolic reparation for the harms it has done in the past to these oppressed groups, harms of humiliation and discrimination. In this phase of reparation we are committed, as our democracy transits from a stage where degradation was widespread to one where self-­respect is guaranteed, to do everything to ensure respect to those who in the past have faced great indignity. When this group (or their representatives) hence claims, on the floor of Parliament, to be offended by a cartoon then we must take that claim very seriously. To dismiss it as just political grandstanding and to characterise it as the self-serving behaviour of politicians, a common ­refrain by the critics, is to be quite disingenuous. We must respond to the ­demand urgently whatever we may think about the motives of those making the demand. The question therefore is, what should be the nature of that ­response, what institutional processes must be set into motion to attend to that demand so that it is treated with the gravity it calls for and to do so without compromising our hard won liberty?

The issue gets further complicated when we realise that the offending ­material is in a school textbook that was prepared for the NCERT, an official body especially tasked with preparing educational material under the new curriculum framework. The NCERT appointed a body of experts to write the textbook in political science, designated two among them as chief advisers for political science, who in turn reported to the chief adviser for social sciences. The textbooks when written were first scrutinised by the NCERT officials, to see whether there was anything objectionable in then. It was then further evaluated by a committee set up for the purpose, the National Monitoring Committee (NMC), and when cleared by the NMC presented to the Central Advisory Board of Education (CABE) which comprised ministers, politi­cians, officials and educationists. It was only after these different levels of scrutiny had been cleared that the textbooks entered the schools. The process had enough safeguards to ensure that nothing offensive, in terms of our constitutional values, was present in the textbooks. Still if Parliament found the textbooks offensive then we, as democratic theorists, have a task on our hands. We must, on the one hand, take the parliamentary demand seriously, since they are our representatives in the best political system we have, and, on the other, we must protect our right to ­express opinions freely and without fear so that we can promote a polity that is open and plural in its understanding and its aspiration. Political science textbooks have such an objective to create in young minds a commitment to our constitutional republic.

The textbook controversy, as outlined above, must hence be discussed in terms of four issues: (i) the claim by one group in our democracy that they have been deeply offended by an opinion and therefore that opinion must be censored, (ii) the offensive material itself, (iii) the procedures to respond to that demand for censorship, and (iv) the political-moral question of how much offence should (perhaps also can) a society be willing to tolerate to protect its freedom of expression.

The Demand to Censor

The first issue, the demand to censor an opinion because it is claimed to be deeply offensive, has acquired a prominence in our political sphere today because of a growing politics of ethnic outbidding. From the ban on Aubrey Menen’s book The Ramayana in 1954, to the withdrawal of Ambedkar’s Riddles in Hinduism in 1987, to the non-importation of ­Rushdie’s The Satanic Verses in 1988, to the vandalism of M F Husains paintings from 1996, to the deletion from the course material of A K Ramanujan’s Three Hundred Ramayanas: Five Examples and Three Thoughts on Translation in 2011, our demo­cracy has followed a path of least resistance and readily ­censored opinions in the face of such ­demands. “Due process”, an important constitutional principle, has not been followed as political authority has very tamely succumbed to the demand by the group that has threatened violence. As a result the heckler has acquired the power of veto over our creative expression.

It maybe pertinent, at this point, to revisit J S Mill’s arguments in his classic book On Liberty on the importance of freedom of expression for any society, on why an opinion must not be censored. He gives three reasons for why the freedom of expression is so important and additionally specifies one extreme situation when it can be curtailed. Let me paraphrase these arguments. The first reason is that if the opinion in question is the truth then by banning it we have deprived society of the truth and in the process impoverished ourselves since we will now not have the truth to draw upon. This truth is a vital resource for us as we negotiate our future, as we manage the diversity and plurality of our collective lives. Because this would amount to such a costly deprivation, something a complex society can ill afford, an opinion must not be banned.

The second reason is that the opinion in question may be a falsehood but by having it available to us we can compare it with the truth thereby placing us in a better position to appreciate the truth. We would gain in our understanding of the value of the truth. This is another compelling case for why an opinion should not to be banned. The third reason is that if we begin to ban opinions we develop a habit of banning and this lowers the threshold at which we would be ready to exercise a ban on any opinion that we consider uncomfortable.

The discomfort of living with a critical opinion or a dissenting view would be too much to bear and we would succumb to the temptation of censoring the opinion. This habit of banning would soon leads us towards a monochromatic society. We seem to have embarked on such a path as the number of hecklers has grown and as their demands and threats have become more strident. There has been an extensive discussion of these maxims of Mill in the literature on political and legal philosophy, on the issue of the centrality of freedom of expression for a free society, and hence the textbook controversy is a good occasion for us to revisit these values. The fourth argument that can be drawn from Mill, who is willing to consider the censorship of opinion, is what is called the “harm principle”. Here the opinion in question must be shown to harm the definite rights of definite individuals. General harm to society at large, such as its consequences for public morality, is not enough. It must be demonstrated as harming (and not just minor harm but serious harm) the definite rights of definite individuals. This demonstration must be institutionally rigorously examined. Only in such cases is it legitimate to censor an opinion.

Keeping these tenets in mind we can now return to the increasing demand to censor opinions in India. It is clear that we must duly acknowledge that in a plural society such as India, when the politics of identity is reinventing the domain of the sacred for different groups – a ­sacred that is necessary to police group boundaries – the situations of being offended can be quite common. As groups indulge in positional play, to secure for themselves a prominent place in the public domain, they will use many strategies to mobilise their followers and put pressure on the political system to recognise their claims. One of these strategies is the claim of being deeply offended by an opinion, by a slight caused to group pride by a book, film, picture, play, song or cartoon. Since this is the direction in which our politics is headed, our political system must therefore ­develop procedures and conventions to deal with such demands and ensure that they are dealt with without compromising our freedom of expression. In other words we must acknowledge the claim of being offended, institutionally attend to it – create new institutions if necessary – while keeping in mind the maxims for a free society, and then give a considered response which moves our democracy in the direction of a greater freedom than that which it currently enjoys. This I fear we are not doing as we succumb to the heckler’s veto and capitulate to the first threat of violence.

To give a response that moves our demo­cracy ­towards greater freedom we need to develop a more robust process of public discussion, education and consultation. We need to encourage an enlightened political leadership that is willing to defend our constitutional values. In this regard the debates in the Constituent Assembly were inspirational with ­respect to what they had to say on the right to freedom. Just listen to Mahboob Ali Baig Sahib Bahadur:

    Sir, to me it looks as if the fundamental rights are listed in clause (1) only to be deprived of under clauses (2) to (6), for in the first place, these fundamental rights are subject to the existing laws. If in the past the laws in force, the law-less laws as I would call them, the repressive laws, laws which were enacted for depriving the citizens of their human rights. If they have deprived the citizens of these rights under the provisions under clauses (2) to (6), they will continue to do so. The laws that I might refer to as such are the Criminal Law, Amendment Acts, the Press Acts and the several Security Acts that have been enacted in the Provinces. And these clauses (2) to (6) further say that if the existing laws are not rigorous, repressive and wide enough to annihilate these rights, the States as defined in Article 7 which covers not only legislatures, executive Governments and also the local bodies, nay, even the local authorities can complete the havoc. I am not indulging in hyperbole or exaggeration. I shall presently show that there is not an iota of sentiment or exaggeration in making this criticism. Fundamental rights are fundamental, permanent, sacred and ought to be guaranteed against coercive powers of a State by excluding the jurisdiction of the executive and the legislature. If the jurisdiction of the executive and the legislature is not excluded, these fundamental rights will be reduced to ordinary rights and cease to be fundamental. That is the import, the significance of fundamental rights.1

The Alleged ‘Offensive’ Material

The second issue that we need to examine is the content of the alleged offensive material. In the extant case three arguments that have been made need to be addressed. The first is that the cartoon denigrated Ambedkar. Whether this was so or not is a matter of interpretation and hence to try and adjudicate on the substance of the matter is just not possible. We must recognise that our democracy has entered a period of intense contestation over everything, from resource sharing to symbolic representation, and that such contestation in some cases yields to pragmatic accommodation while in others results in a situation of an incommensurability of positions. Trying to arrive at a consensus on substantive issues is simply unrealistic especially in a plural society such as India. All that we should strive for is an agreement on the procedures that will deal with such contestation. These must be embedded in our constitutional system and over time be supported by a body of ­conventions. These procedures will then acquire the legitimacy of being fair.

The Procedures to Respond

The claim, therefore, that Ambedkar had been denigrated by the cartoon must be taken seriously and sent to the appropriate institution to examine. That institution cannot be Parliament. It would be tyrannical and dangerous if it were so, in terms of the concentration of power that this would imply. If it were to be the body to decide on the offensiveness of material then freedom of expression would not be safe. Parliament is only a discussion body where such claims and demands can be made. Having heard the grievance the proper ­response from the government should have been to assure the members that the claim would be sent to the appropriate body for study and for recommendation on a course of action.

The second argument for banning was that the cartoons in the textbook belittled politicians and in that sense undermined our democracy. This too, like in the first instance, should be examined by the appropriate authority since there would be contrasting interpretations whether this was the case or not. To determine the validity of the claim one would have to study the number of cartoons, examine the different messages contained in them and see how they added up, i e, meeting the condition of taking the text in its entirety, discuss the value of conveying a message through such a pedagogic strategy, investigate the process of evaluation that the text had gone through at NCERT. This would have to be done by the appropriate ­authority which is not Parliament.

The third argument made is with ­respect to influencing young minds. The critics of the textbooks held that the ­material poured scorn on the political class and hence young impressionistic minds had to be protected from such cynical material. The supporters of the textbooks, in contrast, argued that the text is deliberately open ended, to ­encourage young minds to question and probe. The response, by some, that we must not be patronising towards young minds is weak especially since any ­decent society is worried about what young minds receive on the internet or on TV and certainly in officially sponsored textbooks. Textbooks are an important source of building the next generation of citizens and so what goes into them is a cause for concern. But what went into them was evaluated by appropriate authority, as discussed earlier, and so when subsequently objections were aired in Parliament on what was in the textbooks the executive should have agreed to forward the objections to NCERT, the NMC, and CABE. To take a summary decision on the floor of the house was constitutionally improper.

It is necessary to stress here the argument that Parliament is not the forum to decide, in the “first instance”, what opinion should be allowed in the public ­domain. Since Parliament has constituted subsidiary bodies of governance it should allow such bodies to govern. If more such bodies are required then we must create them to assist Parliament to make the decision on what can be censored in the “last instance”. Mills’ harm principle must be kept in mind. The ­offending material must pass the test of the harm principle. In the case of textbooks all the necessary institutions were in place, the NCERT, NMC and CABE. These bodies may have done their job well but if they did not do so properly, as implied by the ­parliamentary debate, then we must ­examine why this was so. This brings us to an examination of how our oversight committees work, what is the culture of seriousness that defines them, and what steps can be taken to improve their functioning. Scrutiny here, on the deficits in the working of oversight committees, would help consolidate our constitutional system and hence study here is what is required to protect our hard-won freedom. Parliament should be the body of last intervention. The subsidiary bodies come earlier. In the textbook controversy, NCERT, NMC, and CABE are the subsidiary bodies of governance.

How Much Offence Should a Society Bear?

This has brought to the fore the issue that we as a democracy have evaded ­answering these last 60 years: How much offence should a society tolerate? The answer to this normative question would be different in different societies depending on their public cultures and on which of their other foundational values they consider to be in conflict with the freedom of expression. Will life be lost from the ensuing protest? Will the fragile peace between communities break down? Is our public culture ready for such irreverence? In the Rushdie case we had to confront the question of the status of the profane in our society. The campaign against M F Husain, the disruption of the art exhibition in M S University Baroda, the vandalising of the Bhandarkar Oriental Research ­Institute, etc, have brought this question back to our forecourt. We need to struggle with it if we are to expand the domain of the freedom of expression and not hand over our public space to the heckler. As Tagore said...

    To Gain one’s own country means to realise one’s own soul more fully expanded within it. This can only be done when we are engaged in building it up with our service, our ideas and our activities. Man’s country being the creation of his own inner nature, when his souls thus expands within it, it is more truly expressed, more fully realised.2

It is our soul that is at stake here.

Notes

1 Constituent Assembly Debates, 1-2 December 1948.

2 “The Call of Truth” in The Mahatma and the Poet, compiled by Sabyasachi Bhattacharya, NBT, 1997, p 71.

Economic and Political Weekly, Vol XLVII, No. 22, 2 June, 2012, http://beta.epw.in/newsItem/comment/191396/


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