The respondent in this case is James Laine; the paragraphs in question are from his book on Shivaji published by Oxford University Press, subject to a ban in Maharashtra. This ban was overturned relying on a judgment of the Supreme Court itself. And now two honourable justices feel that the cause of justice would be best served if Laine withdraws certain paragraphs. With all due respect, (and paraphrasing Montesquieu) the potential tyranny inherent in this order is made all the more insidious by it being carried out in the name of justice, and in the language of reasonable compromise. Why?

The idea that works of art and scholarship will now have to answer to protocols set by a myriad of groups, including the judiciary, is deeply worrying. Last year, in a worrying judgment, the court upheld the ban on a novel nominated for awards, Dharamkaarana, by P.V. Narayanna. In that case too, the high court had suggested that some passages be removed. In an extraordinary act of artistic integrity, the author refused and the ban was upheld. It is a cliché that freedom of expression is not absolute. But it is equally true that freedom of expression is not worth much if it does not let art, or works of scholarship, or “the thought we hate” that might offend someone, pass muster. I know of publishers who will not touch books on Shivaji because of fear of violence, and a sense that the courts will not protect them.

There are also serious doubts about due process. What does it mean for a court to say that the interest of justice would be best served by a particular action, and at the same time acknowledge that the full merits of the case have not been heard? Arundhati Roy, another victim of the courts, rightly said that in India “due process is the punishment.” Just imagine, a foreign scholar spends his life doing research in difficult conditions, publishes a book. It is banned; vandals destroy centres of learning to express their protest. The matter has been through the high court. It has already been heard by a three-judge bench of the Supreme Court. The author has already offered his version of a compromise, and yet he is subject to another proceeding in the court. M.F. Husain is facing numerous cases because they cannot be bunched together due to technicalities. Whatever the final outcome, due process has already deterred free expression.

We seem reluctant to understand one basic point. Free speech may sometimes be qualified by the need for protecting public order. But in India, public disorder is being fomented because people know they can get things banned. As the ‘P.Jagjivan Ram’ case recognised, the public order defence of banning works has itself become an incitement to public disorder. The more we give the impression that free speech can be abridged the more we will incite disorder.

There are other technical issues here. Are paragraphs in books now to be judged one by one rather than taking the whole context and antecedents of the author? Should judges suggest what on the face of it seems like a compromise, before they pronounce clearly on what our rights in the matter are? But the deeper issue is this. Think of what happened last week at Delhi University where the ABVP has created a ruckus about an essay by Ramanujan, a scholar who did more for Indian culture than all of the ABVP put together. The violence around this essay was disturbing, as was the complete obtuseness of people who attacked Ramanujan. Admittedly, asking something to be removed from the syllabus and asking for bans are different things. But the rank hypocrisy of the BJP leadership in a range of cases involving supposedly offensive speech, from the Laine case to Jodhaa Akbar, while defending freedom for Taslima Nasreen, was disturbing. Machiavelli warned against people who decide to be liberal rather than people who are liberal. In this instance, the BJP’s silence warrants that suspicion.

Even odder was the view that if an item was put on the syllabus, it meant it was authoritative. Things are put on the syllabus because they are meant to provoke reflection, and the proper response is to criticise if you can. The episode also highlighted the way in which centralised decision-making on syllabus also ups the stakes for politics. But most deeply, it should worry us that we don’t seem to understand a basic truth: a liberal society can flourish only if individuals have an adequate degree of self-possession; the ability to handle arguments they disagree with, without trampling on people’s rights.

With all due respect, your Lordships, we expect the Supreme Court to give us lessons in self-possession, to create an environment where people can take risks and stretch the frontiers of art and scholarship. But if we send out the message that offence easily taken will be easily rewarded, that potentially uncomfortable truths of scholarship will have no protection, that there are no ways of expressing disagreement and even dissatisfaction short of bans, we will truly have jeopardised our freedoms.

I hope the Lordships will excuse the gracelessness in commenting on this matter. But there is a larger and increasingly suffocating atmosphere in which public discussions on art, morality, scholarship and pedagogy are taking place. The high court finally rescued Jodhaa Akbar in Madhya Pradesh. But which politician dared to come to the defence of its right to be screened? In a society where the narcissism of identities is becoming a threat to freedom, we do still hope the Supreme Court will protect our liberty.

The writer is president, Centre for Policy Research pratapbmehta@yahoo.co.in