We live in times when religious feelings are easily outraged, a time when a Facebook post can lead to three years in jail. The manner in which the Maharashtra police arrested two young girls from Mumbai, Shaheen Dhada and Renu Srinivasan, for Facebook posts criticising the Shiv Sena’s illegal shutdown of the city after Bal Thackeray’s death, was startling for several reasons.

First, compared to the ocean of anti-Thackeray abuse floating around Facebook and Twitter at the time, Dhada’s comments were not particularly offensive. She did not even criticise Thackeray. Her friend Renu had merely liked the post.

Secondly, it was a revelation that the late Shiv Sena leader was a God, and his cult a religion—both necessary pre-requisites to apply Section 295(a) of the Indian Penal Code, which punishes attempts to outrage a group’s religious sentiments. But some such idea must have been at the back of the police’s mind when they registered the FIR. Perhaps they were merely giving administrative recognition to an important truth of Indian life: Bal Thackeray is one of the gods of secular India and to criticise him is to commit social and political blasphemy. And blasphemy must be punished.

The arrests are merely the latest in a long campaign of intimidation and harassment carried out by various political, religious and regional groups using laws of colonial vintage as a tool. Since the late Nineties at least, there has been a spate of arrests, prosecutions, investigations and court cases against private citizens as well as public figures for allegedly “outraging religious feelings” (IPC section 295 (a)) or "promoting enmity" or creating disharmony between various communities (IPC section 153(a)).

While the first prescribes imprisonment of up to three years for deliberate and malicious acts intended to outrage the religious feelings of any class, the second sanctions the same punishment for speech or actions that create enmity or disharmony between different groups on religious, communal, linguistic, caste or regional grounds.

While the original intent of these and similar legislation enacted by the British was to prevent communal conflagration, the provisions remained on the statute books to prevent the kind of communal demagoguery that Thackeray practiced with such consummate skill. Commentators were quick to point out the supreme irony that such a law ended up as a weapon to stifle democratic dissent against the conspiracy by hagiography that was enacted to sanitise the dear departed’s memory. But the fact is that India’s hate speech laws have of late seen a lot of currency with right-wing groups and individuals of every religious affiliation, and whatever the legislative intent, it is slowly but surely on the way to becoming our equivalent of Pakistan’s infamous blasphemy laws.

Of course, like anything else in the Indian story, the saga of “religious” persecution is not all tragedy and tears. The funny, the absurd, the bizzare and the downright crazy stalks the margins of this narrative with unceasing regularity. A man named Ranjit Parandey was arrested in Mumbai for publishing a book of Santa and Banta jokes after members of the Sikh community alleged offence. Liz Hurley and her then husband Arun Nayar were dragged to court by a “devout Hindu”, who claimed that their marriage had not followed the proper Hindu rites and hence had offended his religious feelings. In his complaint, the “devout Hindu” details how, in spite of being omitted from the guest list, he managed to get his religious sentiments hurt by viewing cable TV.

He alleged, “The couple drank alcohol, wore leather shoes and behaved inappropriately by kissing in front of cameras during the ceremony in Rajasthan.” Perhaps in the hope of enlivening his discourse, a maulavi in Ahmedabad took the poetic licence of calling Prophet Mohammed “bhai” only to be arrested by the police for ‘hurting’ the religious sentiments of Sunni Muslims.”

The fact is that India’s hate speech laws have of late seen a lot of currency with right-wing groups and individuals of every religious affiliation, and whatever the legislative intent, it is slowly but surely on the way to becoming our equivalent of Pakistan’s infamous blasphemy laws.

M F Husian was only the most high-profile victim of his fellow citizen’s outraged religious feelings. He was persecuted and forced into exile for paintings of Hindu goddesses done in the Seventies, which people suddenly found offensive 20 years later. There seems no record of the number of such cases, not even of those reported in the media, but they presumably run into hundreds. It is easy to dismiss these incidents as the actions of publicity seekers or as attempts to settle personal scores. No doubt, such considerations play a part in this epidemic of hurt religious sentiments. But the extremely political nature of these acts, the physical violence and mobsterism that is often recruited in its cause, and the social coercion and vilification campaigns that have been unleashed against many victims, should warn us off too innocent an explanation.

Cases like Husain’s are red flag posts as far as the health of our democracy is concerned, urgent warnings that its vital signs are weak. But given the high political stakes and the powerful personages acting behind the scenes, their occurrence is also easy to understand. What is much more difficult to comprehend is the man in Indore who moves court to arrest Ravi Shastri for eating beef during an India-South Africa match or the people in Hyderabad who filed a case against Sania Mirza and Shoaib Malik saying their marriage hurt their religious sentiments. The newspaper reader is treated to reports on an almost weekly basis of people wanting to arrest others over imagined religious or communal insults of the most idiotic nature. However, my sense is that it is these kinds of incidents that pose a greater if more insidious threat to our democracy and that we need to pay closer attention to what is happening here. The majority of cases reported in the media follow the same patterns. While most of the complaints are frivolous and should not even have been registered, none of them have any real grounds for prosecution, let alone conviction. Yet mostly following private complaints, investigations are launched, charge sheets filed and legal battles fought for years at substantial personal, financial and psychological cost to those charged of these offences.

Since very few cases result in convictions, the intention behind these complaints is largely to harass and silence the victims. And nothing is more of a deterrent to the ordinary person than the possibility of arrest, or of being convicted and sent to jail, however remote that possibility. When complaints are originated by organised religious groups or political parties representing some community, the police register complaints on the most egregious grounds and magistrates mechanically allow prosecution. As happened with Husain, in cases where this is followed up by social ostracism, shaming and goondaism, an apology is easy to extract. The vague, broad and subjective terms of the hate speech laws and the easy nexus between police administration and the lower judiciary creates ideal conditions to turn its provisions—originally meant as a deterrent to Thackeray-style communal politics—into a tool for targeting those perceived as threatening the motifs through which religious, caste, linguistic and regional identities derive their ideological sanction.

In order to understand this as a social phenomenon, we need to ask the question: Why is this happening at the time it is happening, and in the way in which it is happening? The second, and more crucial question, is what does this trend (for want of a better word) really signify?

It is essential that we make sense of the social and historical forces operating behind these developments. Noted Supreme Court lawyer Rajeev Dhavan, in “The Uses and Abuses of the Law of Hate Speech”, published in the Social Scientist, points out that the paintings for which M F Husain was persecuted, were all painted in the 70s. But neither the BJP, nor the RSS or its affiliates had shown the slightest interest in them at that time. For Dhavan, the defining event in this connection is the destruction of the Babri Masjid by Hindu mobs in 1992. He argues that it is by locating it within the context of the Babri Masjid demolition and the attempts of the Sangh Parivar to extend the Hindu nationalism it generated that we can explain the targeting of Husain.

There is much in this, but Hindu nationalism does not serve to explain the proliferation of such cases after 2000, and in any case it cannot be called upon to explain why other religious communities like Muslims and Sikhs have started to use the same laws to systematically silence real and perceived criticism. We need to look deeper for a genuine sociological explanation.

A resurgence of religious fundamentalism and a new xenophobic consciousness are not phenomena confined to India. In the United States, in France, in multicultural UK, in Asia and the Middle East, dominant religious and cultural traditions are asserting themselves with an almost frightful intensity.

Though the pundits as usual failed to predict it, they are consistent as reactions to the large-scale social, cultural and technological changes that are sweeping the world. The institutions of Western democracies too are facing stress from the incipient effects of the globalisation process.

In India, though globalisation is inevitably invoked to explain any and all social changes, there seems very little effort in our public discussions to historicise globalisation in relationship to the development of Indian democracy.

This is part of a larger problem, namely, that we tend not to historicise Indian democracy. It is seen, according to political persuasion, as either magically issuing full grown from the heads of the founding fathers, or as a failed experiment that we are forced to live with till some millennial revolution rescues us. And outside the confines of intellectual discussion, this wilful forgetfulness has effects that concern democracy too directly to be put down to mere indifference.

Not to historicise our democracy allows us to ignore the fact that it is a process far from complete and permits us to freeze our civil and political institutions in time. It maintains the status quo of dominant groups and their power relations and precludes the development of a meaningful democratic ethos. To understand the new regime of cultural intolerance and social censorship that is growing in India, we need first to understand Indian democracy and locate its current phase of historical development.

[aside][quote]Religious fundamentalism and xenophobic consciousness are not confined to India. In the United States, in France, in multicultural UK, in Asia and the Middle East, dominant religious and cultural traditions are asserting themselves with an almost frightful intensity.Western democracies too are facing stress from globalization[quoteclose][/aside]

There have indeed been plenty of attempts among historians and sociologists to locate the Indian national movement along the axes of class, caste and regionalism.

Most of these accounts, however, have been reductive, reading the national movement simplistically as an upper class and caste movement, or worse, reading all kind of conspiracy theories into what was, in spite of any inherent limitations, the most significant and valuable hour in modern Indian history.

The other tendency, which has had a pernicious effect on our historical understanding, is the propensity to either overemphasise or completely ignore the colonial nature of the cultural transactions that led to the constitutional discourse.

The Constitution espouses the secular, liberal and rationalist values of the Classical Enlightenment, with an added commitment to social justice. And it can be no one’s case that at the time of its enactment Indian society was any of these.

The direct roots of the Indian constitutional discourse lie in the social movement which, with some measure of truth has been characterised as the Indian Renaissance. It was born out of contact of the Indian intellectual class with British colonialism and was inspired by European philosophical and political thought, delivered ironically, through the opprobrious institutions of colonial oppression.

The leaders of the movement for radical social change that began in several parts of the country in the latter half on the 19th century, all hailed from the upper classes and castes of Indian society. All of them were in rebellion with their social mileu and the overall direction of their efforts were towards turning the tide in a millennium-long slide into social regression that began with the end of the Classical Age in India.

Just as the participatory nature of the Indian national movement was far more restricted than our official history makes it out to be, the liberal and democratic values that it propagated had currency only with small elite. As a social text, the Indian Constitution was thus a deeply disruptive document. It gave legal sanction to liberal values, elevating to the rule of law principles that were fundamentally at odds with the semi-feudal and patriarchal nature of much of Indian society.

The economic liberalisation that started in the Nineties led to globalisation as the country entered the new millennium. Its cultural impact has been an unprecedented expansion of the liberal space. In spite of the chronic inadequacies of neo-liberal economics and the fact that the corporates are in bed with the State, the massive free movement of goods, people and ideas is inevitably disrupting the closed structures of exclusion and identity that sustain the various forms of feudal patriarchy in India. The rise of cultural fundamentalism across the nation, often expressing itself in acts of pathological bizarreness, can be best diagnosed as a desperate rear-guard action by individuals and groups who fear that a certain way of life is becoming endangered. The fact that it is a do-or-die attempt explains the depth of violence and shocking inhumanity that often motivates such acts.

The epidemic of "honour" killings that has spread across the country, the increasingly repressive diktats of khap panchayats, the madness in Mangalore, harassment of individual bloggers by private citizens as well as the government, persecution and arrest of human rights and tribal activists, the increasing fondness of the Indian state for the sedition law—all these are symptoms of a body politic reacting with violence to cancel out challenges that it fears would undermine its existence.

The new India’s public memory seems to forget that the architects of India’s Constitution and independence including Gandhi, Ambedkar and Nehru, were also political activists and social reformers.

Their speeches, published writing and written correspondence makes it clear that they did not see political independence from the British as an end.

We tend not to consider Indian democracy in its historical context. It is seen as either magically issuing from the heads of the founding fathers, or as a failed experiment we are forced to live with till some millennial revolution rescues us. This wilful forgetfulness has effects that concern democracy too directly to be put down to mere indifference.

Rather, it was the most important landmark in the continuing project of Indian modernity, of developing truly functional democratic institutions and a culture that could sustain and nourish these institutions. This brings us to that tangled question, what are the cultural conditions that make true democracy possible? Do we have freedom of expression because we are a democracy, or is it because we have freedom of expression that we are a democracy?

The circularity need not unduly alarm us, since there is a distinction between freedom of expression understood as a political right which is guaranteed by a democratic state, and freedom of expression as a cultural practice. It is the latter that fosters a culture of rationality and secures a critical space from which all institutions, cultural symbols, motifs and narratives can be questioned and examined. And it is only the constant utilisation of this critical space by artists, writers, historians and journalists to challenge dominant cultural myths, ideologies and propaganda which can ensure genuine democracy.

Every age loves to think of itself as a period of historic transformation. Nonetheless, the magnitude of the changes that globalisation has bought about in the space of a couple of decades and the violent social confrontations that it has provoked gives us enough indication that a lazy scepticism on this count might turn out in retrospect to have been historical myopia.

The prevalent social order in India, which managed to keep much of its character and privileges intact throughout the upheavals succeeding the arrival of the East India Company, is being undermined by forces of radical economic, socio-cultural and intellectual change that it cannot control.

The response of feudal patriarchy and its power brokers have been that of physical and societal violence against people, events and utterances that directly or symbolically threaten what it holds to be sacred.

The fact that within such a context, instead of protecting the rights of citizens, the State choses to collaborate with sections that systematically abuse the process of the law to harass and intimidate them, is the clearest indication of the role the Indian State sees itself as playing in the evolving discourse on democracy in India. This has not a little to do with the nature of our political class. The development of a genuine democratic space that could destabilise societal myths would hurt no single group more than the netas.

The absence of such a rationalist discourse precludes the development of institutions that can seek public accountability in governance and has allowed politicians to short-circuit the need to justify policy decisions to the electorate, merely by appealing to emotional symbolisms and empty tokenisms.

The hate speech laws are one among a clutch of restrictive provisions that the State and its allies use to control the political and social discourse in India. The Prevention of Insults to National Honour Act (1971), Section 292 of the IPC that prohibits obscene speech and expression, the laws of sedition and the various sections of the Information Technology Act are part of the state’s arsenal, which it can deploy whenever it apprehends serious threats to the boundaries it has set for democratic discussion and expression. The feminist movement in the West, the Civil Rights movement in America, the gay rights movement, all illustrate that progress in democratic societies happen through a trajectory of opposition to dominant social values and shared beliefs, and that initially the law might find itself on the wrong side of social evolution.

However, even when there is political confrontation and conflict, freedom of speech and the right of democratic dissent allows a conversation to continue and emerging social movements to dislodge entrenched ways of thinking, ultimately expanding the horizons and scope of democracy.

The abuse of hate laws by social and religious groups in India is a particularly grave threat since its motivated application can subvert the natural course of democracy by giving legal protection to regressive ideologies while criminalising voices of progress.

While convictions for hate speech remain rare in India, the intimidation exercised by its abuse sets invisible but real boundaries on what can be written, spoken or enacted. A writer, artist, journalist or blogger is far less likely to test the limits of public values strenuously, knowing she might have to pay with her liberty. The cumulative effect chills the growth of modernity in India and hold our democracy hostage to a feudal past. Our neighbour’s blasphemy laws are a consequence of the failure to keep the date with democracy and secularism. If we are complacent, we might well travel in the reverse direction to the same goal.

Update: This is an edited version of the essay that appeared with the same title in the January 2013 issue.)