Whose offence is it anyway?

ACADEMIA Letters Whose offence is it anyway? Saumya Baijal Indranil Bhattacharya The phrase ‘offending sentiments’ is now common parlance in India. The country has been described as the republic of the offended where citizens take offence at the most benign things. They also want to punish those who have offended their sentiments by dragging them to courts, beating them up or trolling them over the internet. The targets of such reprisals could be artists, academicians, or even young university undergraduates. Several instances of alleged offenders being prosecuted, even jailed in India have been recorded in the recent past. The proliferation of offence cases especially over the last decade seems to correlate with the emergence of a powerful right-wing political establishment in India. From bans on films to sedition charges on writers, “offence” has been weaponized to silence dissenters or critics of the present political establishment. In most offence cases the constitutionally guaranteed right to free speech is often shockingly ignored. The state seems to be in undue haste in punishing those who seemed to be guilty of offending sentiments (Maheshwari, 2018; Balsekar, 2009). Given this backdrop, we need to reexamine the line between freedom of speech and expression – a fundamental right in our attempting-to-survive democracy – and what constitutes an “offence”. This is a line that is often blurred in the oppressive, dictatorial politics of the day. We need to dispassionately scrutinize offence, the yardsticks used to judge offence, what it means for the oppressed and how it can enable the oppressors. To table one’s offence is certainly a part of freedom of speech, as is the right to offend. An idea or discourse and its opposing discourse are supposed to circulate in a public space, competing and colliding with each other, vying for public attention. Free speech jurisprudence calls this the “marketplace of ideas” – a space within which powerful ideas eventually dominate weak and uninspiring ideas (Gordon, 1997). Contemporary legal theorists and philosoAcademia Letters, November 2021 ©2021 by the authors — Open Access — Distributed under CC BY 4.0 Corresponding Author: Saumya Baijal , [email protected] Citation: Baijal , S., Bhattacharya, I. (2021). Whose offence is it anyway? Academia Letters, Article 3885. https://doi.org/10.20935/AL3885. 1 phers have struggled to define the term “offensive” because of the highly subjective, as well as the shifting nature of what constitutes an offensive expression. The same kind of problem is seen in defining the word “obscene” in a socio-legal context. The question invariably is obscene to whom? Courts have adopted the “test of community standard” to define what is obscene and offensive. They have invoked the “harm principle” – a concept which has roots in the political philosophy of John Stuart Mill (Mill, 1998). Harm principle enunciates that our freedom of speech and action is, by default, limited to things that are not harmful to fellow human beings. Law enforcement agencies often confuse between offence and harm, despite the clear legal position that opinions that could potentially offend, does not necessarily cause harm to the recipient. These issues have become an integral part of free speech jurisprudence, especially the way it has evolved in India. In this article, we move away from a purely legal position to a more grounded understanding of offence and analyze why it is so important in contemporary India. For this, we apply notions of gender and intersectionality to unpack the notion of offence. By the word majoritarian here we do not limit ourselves to a religious and a racial majority, but also include caste, class, gender, sexual orientation, and political ideology. In the contemporary world, discrimination does not consider merely a single identity such as class or race. Several identities such as race, gender, faith, or class intersect with each other to create overlapping systems of discrimination and disadvantage. This is what is called intersectionality – an analytical framework that is used to understand discrimination and privilege, and how this understanding can be used to address structural inequalities. Caste, class, religion, gender, and sexuality - and within each of these, majoritarian privilege either cements or divides people. So, whose notion of morality applies to these differences, practices, and identifications? And whose notions of ‘decency’? The restrictions to free speech as articulated by Article 19(2) of the Constitution of India are so wide that they could be weaponized to misrepresent and criminalize any critical minority voices by a powerful majority. Shorn of specificity and context “decency” and “public order” in 19(2) have become a blunt weapon used by the majority to punish critics (Bakshi & Kashyap, 1982). In the 1980s grassroots women’s organizations, incensed by the constant use of the female body to sell everything right from soaps to undergarments, to films, pressured the government to promulgate The Indecent Representation of Women Act – a law which, too lacked specificity. The very word ‘indecent’ and repeated words like ‘deprave, corrupt or injure the public morality or morals’ raises crucial questions regarding the discourse of offence. In the recent past, we have seen people offended by women wearing ripped jeans, the representation of teens in Bombay Begums (Shrivastava, 2021), film titles like Sexy Durga (Sasidharan, 2017) or references to deities in Angry Indian Goddesses (Nalin, 2015). The idea Academia Letters, November 2021 ©2021 by the authors — Open Access — Distributed under CC BY 4.0 Corresponding Author: Saumya Baijal , [email protected] Citation: Baijal , S., Bhattacharya, I. (2021). Whose offence is it anyway? Academia Letters, Article 3885. https://doi.org/10.20935/AL3885. 2 of women as vocal, sexually liberated, choosing what to wear, say, drink or smoke, has been widely regarded as offensive, especially to the savarna patriarchy. Whether it is the recent comments by the Chief Minister of the state of Uttarakhand on societal breakdowns due to fashion choices by women, or previous comments by a political functionary from Bengal on “dented and painted women”, choices of women are always judged against the yardsticks laid down by gender and caste hierarchies (Press Trust of India, 2018). Instances of victim shaming rape victims indicate a deeply misogynistic, Brahmanical patriarchy, where the agency of women is curtailed in more ways than one. Film censorship in India has also suffered from the same affliction. It has largely been defined by Brahmanical patriarchy that wishes to control what must be watched. The discourse of offence could thus be boiled down to voice and agency. Whose gaze, who voice are the narratives in, and what constitutes as ‘offence’? For decades in cinema, popular culture and advertising, there has been deep objectification of women. “Wife jokes” circulated on WhatsApp reinforce set stereotypes. Intense, ambitious women have been demonized across mythology, folk tales, literature, and cinema. Why? Because each of these narratives has been built and created, with Brahmanical male eyes. The gaze renders women devoid of agency and builds them into boxed roles created by the savarna patriarchal gaze. A woman’s body has always been the battlefield of men’s egos. So, whether it is a woman being used as a tool for the destruction of evil (Sita and Draupadi in the epics Ramayana and Mahabharata respectively), rescued by the hero from rape and dishonour, the hero punishing perpetrators, each of these narratives constructs conservative and extremely restrictive notions of masculinity. Female characters are relegated to a subsidiary position their bodies objectified and sexualized for a majoritarian heteronormative gaze. This, too, leaves little agency for the woman or her right or liberty to express her disgust or offence. And yet, it is the progressive, sexually aware and body autonomous representations that are assumed ‘immoral’ today as they do not conform to the male gaze. Historically the sexually active, liberated women were relegated to being vamps, marked as immoral and unchaste. Their love is almost always unrequited. In the 2012 film Cocktail (directed by Homi Adajania), the hero chooses to be with the chaste woman, does laundry and is sexually reserved, rather than the woman who is talented, sexually aware, and warm. The former is a “wife material” ideal heterosexual mate, while the latter is a “lover material” who can render temporary gratification rather than an enduring relationship. Binaries such as these define how the male gaze construct a femineity that prioritizes traditional, heterosexual family. In popular representations, caste is no less a problem than gender, although the caste identities of fictional characters are often concealed in the narrative but are present through the dress code, language, and daily habits. Barring the occasional films like Court (2014) or ArAcademia Letters, November 2021 ©2021 by the authors — Open Access — Distributed under CC BY 4.0 Corresponding Author: Saumya Baijal , [email protected] Citation: Baijal , S., Bhattacharya, I. (2021). Whose offence is it anyway? Academia Letters, Article 3885. https://doi.org/10.20935/AL3885. 3 ticle 15 (2019)which brings alive the voice of the oppressed through an empathetic gaze, very few films address the caste issue head-on. Both these films were inspired by a real incident and expose gender and caste discrimination in contemporary India. But films such as these are rare. And therein lies the conversation about voice and context. The framing of offence through the majoritarian voices of caste, class, gender, and religion should be rigorously questioned. Whether it is a narrative of self-assertion by a marginalized caste (Fandry, 2013) or a woman exploring her sexuality and sexual desires (Margarita with a Straw, 2014) there are films worthy of celebrating, although they might still offend the dominant majority. Unfortunately, film censorship in our country has privileged these majoritarian voices, accepting their outrage as both legitimate and natural, without delving into the patriarchal beliefs which shape these resentments. The narrative of women’s emancipation is now mainstream. Often appropriated by the most patriarchal national leaders whether it is beti bachao, beti padhao or the constant referencing to achievements of women in their political speeches. In that appropriation, they forget that the fundamental idea of emancipation is through the independence of voice and autonomy both of which women are robbed of, in reel and real lives. And that is what film censorship needs to be cognizant of. The idea of censoring rape as it can potentially offend is unhelpful. It is important to understand whether the rape scene is planted in the film to cater to a majoritarian gaze or seen through the painful experiences of women who have been victims of sexual violence. For offence to be contextualized Indian laws must be substantially amended. Vague, ambiguous words used to draft laws end up strengthening the hand of the oppressors. The laws need to be sharply drafted, with a commitment to human rights and keeping in mind ideas of autonomy and agency of marginalized groups. The aim should not be to obliterate offence or the right to offend but prevent offence from being a weapon with which the powerful majority can drown the forceful and critical minority voices. Sources Cited • • Bakshi, P. M., & Kashyap, S. C. (1982). The constitution of India. Universal Law • Balsekar, Publishing.A. (2009). Seeking Offense: Censorship And The Constitution Of Democratic Politics In India. • • Gordon, J. (1997). John Stuart Mill and the “marketplace of ideas.” Social Theory and Practice, 23(2), 235–249. Academia Letters, November 2021 ©2021 by the authors — Open Access — Distributed under CC BY 4.0 Corresponding Author: Saumya Baijal , [email protected] Citation: Baijal , S., Bhattacharya, I. (2021). Whose offence is it anyway? Academia Letters, Article 3885. https://doi.org/10.20935/AL3885. 4 • • Maheshwari, M. (2018). Art Attacks: Violence and Offence-taking in India. Oxford University Press. • • Mill, J. S. (1998). On liberty and other essays. Oxford University Press, USA. • • Press Trust of India. (2018, March 12). President’s son calls protesting women ‘dented and painted’Title. The Hindu Businessline. Retrieved from https://www.thehindubusinessline. com/news/presidents-son-calls-protesting-women-dented-and-painted/article23098238. ece Academia Letters, November 2021 ©2021 by the authors — Open Access — Distributed under CC BY 4.0 Corresponding Author: Saumya Baijal , [email protected] Citation: Baijal , S., Bhattacharya, I. (2021). Whose offence is it anyway? Academia Letters, Article 3885. https://doi.org/10.20935/AL3885. 5