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On banning The Da Vinci Code

N.L. Rajah

To ban the film in India, reacting to demands from some, is grave constitutional impropriety, besides being imprudent.

IN THE last few weeks, State after State in India has been jumping with gusto on to the "ban The Da Vinci Code" bandwagon. Nothing surprising. In the ultimate analysis, one of the greatest threats to constitutional guarantees in democracies will come from Governments capitulating readily to strident demands of group interests or perceived popular sentiments, without considering whether such demands are legal or constitutional. This is so not only in India but also in many advanced democratic systems.

Consider the following. Alabama is a State in the United States that has one of the highest crime rates. Chief Justice Roy Moore of the Alabama Supreme Court, confronted by the sixth highest murder rate in the nation, decided that a possible solution to mitigate the problem would be to install a two-and-a-half tonne monument of the Ten Commandments in the rotunda of the State Courthouse in Montgomery. This clearly was a gross violation of the spirit of "establishment" clause of the First Amendment to the U.S. Constitution. A federal Court ordered Justice Moore to remove the monument but he refused. The U.S. Congress, instead of acting in accordance with the dictates of the Constitution, in fact, amended an appropriations bill to ensure that federal funds could not be used for the monument's removal. (Refer — Justice Roy Moore's Lawless Battle — editorial in The New York Times December 17, 2002).

My endeavour here is to highlight that banning the film The Da Vinci Code is not only unconstitutional and illegal but also imprudent. The tendency to approve or sanction unconstitutional acts to please group interests, even at the cost of violating constitutional mandates, is becoming a disquieting feature of governance. By and large, democracies have survived primarily on account of "eternal vigilance" adopted by the other two pillars that support democracy, namely, the media, and the judiciary. It is almost as if governments have declared loudly: "Let us do what is popular and leave it to courts to decide whether it is legal or constitutional." This puts an unfair burden on the courts. A sad situation and one definitely not contemplated by our founding fathers.

Governments would have done well to educate themselves on what courts have laid down regarding principles involved in such situations before taking a decision on the ban. In S. Rangarajan v. P. Jagajivan Ram, the issue was to allow or not allow the screening of a film that squarely criticised the reservation policy. Reversing the judgment of the Madras High Court, that in effect held that the policy could not be criticised, the Supreme Court held that freedom of speech and expression should not be suppressed unless the situation created by allowing the freedom is pressing and the community interest is endangered.

The Court further held: "legitimate expression of views or ideas cannot be suppressed on the ground of intolerance of others or of the existence of a hostile audience." The Supreme Court in this context referred to the wise words of Benjamin Franklin, "when men differ in opinion, both sides ought equally to have the advantage of being heard in public ... the different views are allowed to be expressed by proponents and opponents not because they are correct or valid but because there is freedom in this country for expressing even differing views on any issue."

In a recent judgment, R. Rajagopal v. J. Jayalalithaa, delivered by the Madras High Court, Chief Justice A.P. Shah, while holding that people in public life should accommodate criticism and comment, has drawn inspiration from Archibald Cox's article on the First Amendment to the U.S. Constitution wherein he states: "some propositions seem true or false beyond rational debate, some false and harmful political and religious doctrines gain wide public acceptance. Adolf Hitler's brutal theory of `master race' is sufficient example. We tolerate such foolish and sometimes dangerous appeals not because they may prove true but because freedom of speech is indivisible. That liberty cannot be denied to some ideas and saved for others."

The Da Vinci Code is admittedly a work of fiction. The Central Board for Film Certification has directed such a caveat to be entered while screening the films. All responsible Christian organisations the world over have reacted with commendable balance and poise in the issue. In fact, the film was released in Poland, which has a predominant Catholic population, contemporaneous with the visit of the Pope to the country. Still, the film was not banned. To ban the film in India, reacting to demands from some, is grave constitutional impropriety.

The world over almost without exception, religious faith has become a source of violence. Let me quickly explain what I mean here by the term "religious faith." In a world riddled with uncertainties, every religious faith imparts a positive disposition. A disposition that exhorts you to set out on a righteous course in life without any assurance that things will go your way, at the same time asking you to rest your faith on a superior force that will guide your action to glory. This and other similar aspects of religion are not the "religious faith" I am talking about here. Such religious faith is obviously unexceptionable.

Unfortunate aspect of faith

There is unfortunately another facet of "religious faith" that teaches you to respect its own God as the sole divine force or sanctions abhorrent social practices on the basis of so-called ancient and metaphysical propositions that have no bases in fact and, more importantly, cannot meet the challenges posed by reason. This is the religious faith I refer to.

This century will stand witness to religious faith increasingly being the reason for man's inhumanity to man. The difficulty in meeting the demands of people who hold a religious belief that is not based on any rationale and, therefore, cannot be discussed may give rise to social tensions and push us into a full scale conflict. And while clash of ideologies may lead to a "cold war" (as happened between the capitalist and communist countries), battles based on religious faith will admit of no such facility. As Sam Harris points out so effectively in his book End of Faith, a cold war requires that parties be mutually deterred by threat of death. But when persons are fuelled not by political or sociological ideology but by notions of religious martyrdom, then one side to the issue has no respect for life, its own or those of others. The result may well be catastrophic.

Ideas develop a personality on the basis of the company they keep. Open discussion allows ideas to move towards greater balance and elegance. It has the additional advantage of diluting the virulence of opposing factions. Open discussions allow people, classes, and importantly religions to understand each other better. Shut out open discussions and you do the greatest disservice to human welfare.

If governments are keen to avert a recurrence of the Godhra carnage, the Mumbai riots or the Staines' murder, they should understand that the way forward is to encourage open discussion of religious faiths. A gag on discussion conceded to one religion will result in a similar demand being made by other religions. A refusal to extend the privilege at that point of time by the Government will certainly sow the seeds of simmering discontent. This discontent when it erupts will leave behind a trail of blood and tears. Banning The Da Vinci Code is clearly not only illegal but shockingly naïve and unwise.

(The writer is Advocate, Madras High Court.)

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