Scotland must learn from India’s Section 295A experience

By enforcing the Hate Crime & Public Order Act on April 1, the Scottish government has set into motion a process that, if not checked, will lead to the demise of free speech there. It won’t be unprecedented, because it has happened in India.

The Hate Crime & Public Order Act was passed in 2021 when Scottish First Minister Humza Yousaf was Justice Secretary (Scotland’s first minister is similar to the chief minister of an Indian state). The new law stipulates that a person commits an offence if they communicate material, or behave in a manner, “that a reasonable person would consider to be threatening or abusive,” intended to stir up hatred based on the protected characteristics of age, sexual orientation, transgender persons, race, religion, social or cultural group, etc. The maximum penalty is a jail sentence of seven years.

The fatal flaw in the Scottish law is its subjectivity: the supposedly offended person just has to “consider” the alleged offender’s communication or conduct to be offensive; this will result in the prosecution, if not conviction, of the accused. Now there are supersensitive people whose sentiments and feelings get hurt by anything. We in India know it too well; there have been instances when innocuous words like ‘barber’ and teli (‘oilman’) were considered offensive.

I wrote earlier (https://timesofindia.indiatimes.com/blogs/toi-edit-page/tyranny-of-hurt-sentiments-padmavati-controversy-typifies-how-in-india-democracy-is-made-to-stand-on-its-head/) that “the defining feature of sentiments and feelings is subjectivity. This is the reason that while many Hindus say that some of M.F. Husain’s paintings hurt their feelings and thus should be banned, many of their co-religionists don’t feel offended by the paintings concerned. There is no objective standard that can lead to the decision that the feelings of the tetchy can be privileged over those of the tolerant.” Further, “The law and public administration are moulded, or should be moulded, by objective realities.”

The new law of Scotland contains an element of subjectivity. There can be a complaint made just because someone ‘considers’ the remark or conduct of another person to be threatening or abusive. Even if that supposed offence is found to be the figment of the supposed victim’s imagination, that would involve police investigation, imposing a cost on the alleged offender in terms of money and time. As a Scottish critic said, “The process is the punishment.”

Again, it sounds familiar because it happens all the time in India. It is not only the tetchy, the testy, and the touchy who curtail free speech by seeking to shield their feelings and sensitivities; all manner of lowlifes—publicity seekers, blackmailers, unscrupulous political activists, et al—use the legal provisions like Section 295A of the Indian Penal Code for their own personal gains. The gains are at the expense of freedom of expression.

The origin of Section 295A has links to the Rangila Rasul controversy which saw undermining of free speech. The Section was introduced in 1927 and became the anti-blasphemy law.

The Imperial Legislative Council passed Section 295A, which said, “Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of His Majesty’s subjects, by words,         either spoken or written, or by visible representations, 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 two years, or with fine, or with both.”

In essence, the law remains so — not just in India but also in Pakistan and Bangladesh.

It will be interesting to note that the council members expressed concerns over the abuse of the Section; they were also aware of, to use contemporary phraseology, its chilling effect on free speech. Sir James Crerar, government representative in the council, said, “To… restrain scurrilous and aggressive intolerance is one thing, but we must beware of imposing unnecessary and dangerous impediments on the free movement of thought and speech in legitimate enquiry and discussion.”

Sir Hari Singh Gour sought protection for those who “in the discharge of a public duty to state a historical fact or to publish the result of research” may unintentionally arouse “hostile feelings.” Jinnah also expressed a similar opinion, saying that “historical works… and honest criticisms of religion” should be protected.

Evidently, the hope of 295A supporters—that it would only target scurrilous writings without suppressing freedom of expression—has been belied. Even Mahatma Gandhi’s hope—that some erosion of free speech can improve communal harmony—was belied. Paraphrasing Benjamin Franklin, we can say that those who would give up essential liberty to purchase a little temporary peace, deserve neither liberty nor peace. Section 295A eroded liberty but did nothing to improve Hindu-Muslim relations, which worsened after 1927, resulting in bloody riots and Partition.

Scotland’s Hate Crime & Public Order Act has the makings of a Section 295A, a law that criminalizes not just blasphemy but also has a chilling effect on free speech, language (with transgender activists imposing their own pronouns), race relations, and politics. The champions of free speech are opposing the new law. Hopefully, they will become successful.

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