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Free Speech and Religion

A discussion of the resolution on defamation of religion that was adopted earlier this year by the United Nations Human Rights Council.


Free Speech and Religion

A G Noorani

30 September 2005 an expression of criticism or an exercise in defamation?

The Economist of 11 February 2006 had no hesitation in asserting that “the caricaturing… was clearly meant as a challenge.

A discussion of the resolution on defamation of religion that was adopted earlier this year by the United Nations Human Rights Council.

A G Noorani is a well-known lawyer, scholar and political commentator.

ur news agencies and foreign correspondents shy away from reporting proceedings in United Nations bodies which reflects poorly on India’s respect for human rights. Four successive attorneys general of India were grilled by members of the Human Rights Committee, set up by the International Covenant on Civil and Political Rights, for over two decades. The proceedings received scant or no notice in our media.

The latest incident takes the cake. On 26 March 2009, India’s delegate to the Human Rights Council at Geneva, successor to the Human Rights Commission, abstained on Resolution 7/19 on “Combating Defamation of Religions”. That was not reported in India. If it had, the government would have incurred criticism.

The resolution was sponsored by Pakistan on behalf of Islamic countries backed by Belarus and Venezuela. Twenty-three of the council’s 47 members voted in f avour of the resolution, South Africa, Sri Lanka, the Philippines and Russia included. Eleven mostly western countries voted against it. Fourteen abstained, India was one of them.

The Associated Press correspondent filed a report which reflected sheer illiteracy, if not worse. The prejudice was palpable in the very first para of his report: “The UN’s top human rights body approved a proposal by Muslim nations Thursday (26 March) urging passage of laws around the world to protect religion from criticism” (emphasis added). This is dishonest. The resolution was aimed at defamation, not criticism and the difference between the two is well settled in law, politics and civic discourse.

Here is another bit of the same kind “Muslim nations have argued that religions, in particular Islam, must be shielded from criticism in the media and other areas of public life. They cited cartoons depicting the Prophet Mohammed as an example of unacceptable free speech” (emphasis added). Were the 12 Danish cartoons published by Jyllands-Poster on

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Several of the images were frankly insulting, particularly those that pictured the Muslim Prophet as a terrorist” (bombs strapped around the turban). A living person caricatured thus would have a valid cause of action in law for libel. So would members of a religious community if the founder of the faith is thus libelled.

What was the relevance of such an attack on the Prophet to the debate on modern terrorism?

The Canadian delegate Terry Cornier preposterously declared “It is individuals who have rights and not religions”. It is individuals who practise religions, and while religions are open to criticism, insults are rightly regarded as offences in law.

The correspondent reported that India “abstained in protest at the fact that Islam was the only religion specifically named as deserving protection”. This is factually wrong. Islam was, indeed, mentioned specifically but not exclusively. The resolution referred to “all religions” throughout. Read that “India’s Ambassador Gopinathan Achamkulangare said the resolution ‘inappropriately’ linked religious criticism to racism”. This is false. Let us turn to the resolution itself. It bears quotation in extenso because it has been wilfully misrepresented in the western media.

After 9/11, “Islamo-phobia” which was never absent in Europe since medieval times, erupted in all its fury in the United States and in Europe. The fact is mentioned in the preamble.

Noting the declaration adopted by the I slamic Conference of Foreign Ministers at its 34th session in Islamabad, in May 2007, which condemned the growing trend of Islamophobia and systematic discrimination against the adherents of Islam and emphasised the need to take effective measures to combat defamation of religions.

It adds

Recalling the joint statement of the Organisation of the Islamic Conference, the European Union and the (UN) secretary-general of 7 February 2006, in which they recognised the need, in all societies, to show sensitivity and responsibility in treating issues of special significance for the adherents of


any particular faith, even by those who do not share the belief in question. Reaffirming the call made by the president of the General Assembly in his statement of 15 March 2006 that, in the wake of existing mistrust and tensions, there is a need for dialogue and understanding among civilisations, cultures and religions to commit to working together to prevent provocative or regrettable incidents and to develop better ways of promoting tolerance, respect for and freedom of religion and belief. Reiterating the call made by the Special R apporteur on contemporary forms of racism, racial discrimination, xenophobia and r elated intolerance to Member States to wage a systematic campaign against incitement to racial and religious hatred by maintaining a careful balance between the defence of secularism and respect for freedom of religion and by acknowledging and respecting the complementarity of all the freedoms embodied in the International Covenant on Civil and Political Rights… Noting with concern that defamation of religions is among the causes of social disharmony and instability, at the national and international levels, and leads to violations of human rights. Noting with deep concern the increasing trend in nuclear years of statements attacking religions, including Islam and Muslims, in human rights forums” (emphasis added). The right to freedom of speech is recognised.

The very first three operative para reads:

(1) Expresses deep concern at the negative stereotyping of all religions and manifestations of intolerance and discrimination in matter of religion or belief. (2) Also expresses deep concern at attempts to identify Islam with terrorism, violence and human rights violations and emphasises that equating any religion with terrorism should be rejected and combated by all at all levels. (3) Further expresses deep concern at the intensification of the campaign of defamation of religions and the ethnic and religious profiling of Muslim minorities in the aftermath of the tragic events of 11 September 2001 (emphasis added).

A Muslim-specific para is followed immediately thereafter by a general one:

Expresses concern at laws or administrative measures that have been specifically designed to control and monitor Muslim minorities, thereby stigmatising them and legitimising the discrimination that they experience. Strongly deplores physical attacks and assaults on businesses, cultural centres and places of worship of all religions and t argeting of religious symbols.

States are enjoined to provide “within their respective legal and constitutional systems, adequate protection against acts of hatred, discrimination, intimidation and coercion resulting from the defamation of any religion”, and to practise tolerance. Where is the ban on criticism?

Quite the contrary. The right to freedom of speech is protected with explicit e mphasis in para 12:

Emphasises that, as stipulated in international human rights law, everyone has the right to freedom of expression, and that the exercise of this right carries with it special duties and responsibilities and may therefore be subject to certain restrictions, but only those provided by law and necessary for the respect of the rights or reputations of others, or for the protection of national security or of public order, or of public health or morals (emphasis added).

The legitimacy of such restrictions is recognised by the House of Lords in B ritain and by the European court of Human Rights in Strasbourg.

The House of Lords gave a definitive ruling on 21 February 1979 in the case of R vs Lenon (1979) AC 617, (1979) 2 WLF 281. Gay News had published a poem entitled “The Love that Dares to Speak Its Name”, written by James Kirkup, with an illustration of the crucifixion featuring the body of Jesus Christ in the embrace of a Roman centurion. The poem described revoltingly acts of sodomy with the body of Christ immediately after his death and, worse, to attribute to him such practices with his apostles and others. All the judges agreed that it was an intentional and

revolting blasphemy. The best judgment was produced by the

most liberal judge of his times, Leslie

George Scarman:

I do not subscribe to the view that the common law offence of blasphemous libel serves no useful purpose in the modern law. On the contrary, I think that there is a case for legislation extending it to protect that religious beliefs and feelings of non-Christians. (British law Confined the law of blasphemy to Christians alone.) The offence belongs to a group of criminal offences designed to safeguard the internal tranquillity of the kingdom. In an increasingly plural society such as that of modern Britain it is necessary not only to respect the differing religious beliefs, feelings and practices of all but also to protect them from scurrility, vilification, ridicule and contempt… When nearly a century earlier Lord Macaulay protested in Parliament against the way the blasphemy laws were then administered, he added (Speeches, p 116): If I were a judge in India, I should have no scruple about punishing a Christian who should pollute a mosque’. When Macaulay became a legislator in India, he saw to it that the law protected the religious feelings of all. In those days India was a plural society, today the United Kingdom is also.

However, this is precisely what some European countries and some in the US and included in India are not prepared to accept vis-a-vis Muslims – a plural society

Madras School of Economics, Chennai.

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june 6, 2009 vol xliv no 23

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which can accommodate people whose world view differs from theirs. Referring to the UK legislation on race hatred, Scarman said

All this makes legal sense in a plural society which recognises the human rights and fundamental freedom of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950). Article 9 provides that everyone has the right to freedom of religion, and the right to manifest his religion in worship, teaching, practice and observance. By necessary implication the article imposes a duty on all of us to refrain from insulting or outraging the religious feeling of others. Article 10 provides that everyone shall have the right to freedom of expression. The exercise of this freedom ‘carries with it duties and responsibilities’ and may be subject to such restrictions as are presented by law and are necessary for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others… It would be intolerable if by allowing an author or publisher to plead the excellence of his motives and the right of free speech he could evade the penalties of the law even though his words were blasphemous in the sense of constituting an outrage upon the religious feelings of his fellow citizens. This is no way forward for a successful plural society.

Rulings of the European Court of H uman Rights are even more strict on blasphemy. This exposes the falsity of Danish, French and some US talk of free speech. The court held as recently as in 1996 that

there is as yet not sufficient common ground in the legal and social o rders of the member states of the council of Europe to conclude that a system whereby a state can impose restrictions on the propagation of material on the basis that it is blasphemous is, in itself, unnecessary in a democratic society and thus incompatible with the contention.

Two rulings reflect the court’s approach. In 1994 it “extended” the protection a fforded by Article 9. In Otto-Preminger- Institute vs Austria, the complainant challenged the decision of the Austrian authorities to confiscate copies of a film which characterised the persons of God, Jesus and Mary in a manner which would have been offensive to many people. They prevented it from being shown anywhere in Austria and were held by a majority of the court not to have infringed the right to freedom of expression under Article 10. The court held that the film was liable to infringe “the rights of others”, such that a justification under Article 10(2) could be made out.

It said:

Whoever exercises the rights and freedoms enshrined in the first paragraph of that article (Article 10-01) undertakes ‘duties and responsibilities’. Amongst them, in the context of religious opinions and beliefs may legitimately be included an obligation to avoid as far as possible expressions that are gratuitously offensive to others and thus an infringement of their rights, and which therefore do not contribute to any form of public debate capable of furthering progress in human affairs.

The court further stated that the justification for the restriction upon freedom of expression was the need “to protect the right of citizens not to be insulted in their religious feelings by the public expression of views of other persons”. It referred to their “right to respect for their religious feelings”. Are Muslims not entitled to this right from Europeans and Americans?

The court also said:

The Court cannot disregard the fact that the Roman Catholic religion is the religion of the overwhelming majority of Tyroleans. In seizing the film, the Austrian authorities acted to ensure religious peace in that region and to prevent that some people should feel the object of attacks on their religious beliefs in an unwarranted and offensive manner. It is in the first place for the national authorities who are better placed than the international judge, to assess the need for such a measure in the light of the situation obtaining locally at a given time.

The court ruled again on the offence in Wingrove vs United Kingdom (1997) 24 EHRR1. The case concerned a video entitled Visions of Ecstasy which depicted St Teresa of Avila in erotic scenes with the body of the crucified Christ. The British Board of Film Classification refused it a certificate on the basis that it was likely to be found to infringe the laws against blasphemy. The European Court of Human Rights upheld this decision as not involving a breach of Article 10. The court noted that the application of blasphemy laws was rare in the various European countries in which they still existed and that the fact that the case involved prior restraint “called for special scrutiny”. Nevertheless, it held that the concern of the British Board of Film Classification that the public distribution might “outrage and insult the feelings of believing Christians” and in particular that it might involve the commission of a criminal offence, meant that the interference could not be said to be “arbitrary or excessive”.

The issue is not freedom; it is self-indulgence with an eye on publicity. Such people falsely raised the banner of freedom and sailed with the anti-Muslim current in Europe. It is a pity that some in India jump on their boats.

In India hate speech has triggered riots. It is pathetic to find India’s delegate shutting his eyes to the state of affairs in his own country only because Islam was specifically mentioned in the resolution. It is a pity this went unreported in our media.

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