Colonial continuity

Print edition : October 13, 2017
The book offers an engaging blend of political history, legal history and constitutional doctrine in its treatment of the past, present and potential future of free speech in India.

WHEN the fundamental rights clauses of the draft Indian Constitution were being debated in the Constituent Assembly, the socialist leader Somnath Lahiri stood up and alleged that these provisions seemed to have been drafted from the point of view of a “police constable”. Stung by the accusation, Sardar Vallabhbhai Patel was driven to come out with vehement denials. He went on to mock those members of the Constituent Assembly who seemed to believe that independent India would have no more use for the police or for jails.

The exchange between Lahiri and Patel—variants of which were to recur throughout the Constituent Assembly Debates—highlight the central thesis of Abhinav Chandrachud’s Republic of Rhetoric: Free Speech and the Constitution of India that “the enactment of the Constitution did not make a significant difference to the right to free speech... that Articles 19(1)(a) and 19(2) belonged to the status quo aim of the Constitution, not the transformational one... [and] the enactment of the Constitution made merely a rhetorical change, not a substantive one, to the right to free speech in India” (page 13). Examining the jurisprudence of Indian free speech from the perspective of the categories that are normally invoked to limit it—sedition, obscenity, defamation, contempt of court, hate speech, and national unity and integrity—the author argues that a close comparison between pre-constitutional and post-constitutional free speech law reveals a continuity punctuated by the enactment of the Constitution rather than a (progressive-oriented) rupture.

The argument from colonial continuity has three different aspects, which are dealt with to different extents in the book. First: the constitutional text itself. Article 19(2) contains eight subclauses that delineate the areas in which the state can restrict free speech, ranging from defamation and contempt of court on the one hand, to public order and morality on the other. Using primary materials from the debates in the drafting committees as well as in the Constituent Assembly, Chandrachud demonstrates that, often, the intention behind the framing of Article 19(2) was to ensure that the jurisprudence of (limited) free speech, which had been developed by the colonial courts over the years (sometimes following common law, and sometimes departing from it), would continue more or less unhindered. In a few areas, however, the dissenting wing of the Constituent Assembly—led by K.M. Munshi on the one side and Lahiri on the other—scored important victories: for example, in managing to keep “public order” out of the 19(2) catalogue, and thereby ensuring that particularly unpopular laws, such as sedition, would become presumptively unconstitutional when the Constitution came into being. These victories, however, were undone by two sets of amendments, whose political history the author discusses in some detail: the First Amendment, which did add “public order” to Article 19(2) (along with the word “reasonable” before “restrictions”), and the 16th Amendment, which he calls the “anti-DMK amendment”, which added “national unity and integrity”. In its final form, Article 19(2) is worded in a way that is potentially even more restrictive than what colonial free speech jurisprudence required.

Speech-restricting laws

Secondly, there is the issue of colonial speech-restricting laws that continued to exist in independent India, and indeed, speech laws framed by a succession of republican governments, ostensibly operating within the Constitution. Through the course of the book, Chandrachud points out that most of the speech-restricting laws that are used extensively today have their roots in colonial times. In fact, these laws were framed as a specifically colonial response to concrete situations. The sedition provision (Section 124A of the Indian Penal Code) was enacted to contain the Wahhabi movement; Section 295A (insulting religious sentiments) was drafted in response to rising Hindu-Muslim communal violence in northern India; Section 153A (hate speech) followed the logic of a colonial regime that saw India as an agglomeration of communities and not individuals; and so on.

The author’s argument, however, goes further: the legislatures of independent India framed laws that mimicked—and sometimes even went beyond—their colonial counterparts. The Jawaharlal Nehru government enacted a Press Act in 1951, which was even more stringent than its colonial inspiration, the Press Emergency Powers Act of 1931, specifically used to target political dissent. Indira Gandhi made sedition even more draconian than it already was, by amending the Code of Criminal Procedure (CrPC) and removing the requirement of a warrant as a precondition to arrests for sedition.

When the legislature defined “obscenity”, after the judgment of the Supreme Court in Ranjit Udeshi vs State of Maharashtra, it did so in terms of the Victorian-era “Hicklin test”. The film censorship regime put in place through the 1952 Cinematograph Act closely mirrored its colonial counterpart. And some laws, such as the notorious Section 66A of the Information Technology Act, 2000 (struck down by the Shreya Singhal vs Union of India judgment in 2015), did not even have any colonial origin or basis.

Limitations on free speech

Thirdly, there is the role of the Supreme Court (and the High Courts) in interpreting and giving life to the words of Article 19(1)(a) and 19(2). Through an analysis of the law of contempt of court, in particular, Chandrachud shows that the analytical framework within which the post-Independence courts operated was more or less a continuation of their colonial counterparts—and often, with very similar justification. The colonial regime—as well as its courts—justified extensive limitations upon free speech on two broad grounds: first, the rule of colonial difference—that is, that the “natives” were illiterate and emotional, and unable to receive speech in a rational manner; and secondly, that the basic unit in Indian life was the community, and that consequently, laws had to be oriented towards maintaining harmony and balance between communities.

As the author points out, we see both tropes at work in the judgments of the Supreme Court: the first features predominantly in its verdicts upholding film censorship, and the second is found in judgments upholding book bans, perhaps most prominently in Baragur Ramachandrappa vs State of Karnataka (2007).

Chandrachud’s central thesis, the argument from colonial continuity, holds up well, especially in view of some of the more recent orders of the Supreme Court, such as upholding the constitutionality of criminal defamation and its directions in the national anthem case. More specifically, his excavation of the role of the three prominent actors—the Constituent Assembly, the (successive) Parliaments of independent India, and the Supreme Court—is comprehensive and persuasive. Where one might disagree with him is the relative weight he accords to the three actors. For example, the author attributes the constitutionality of sedition to the First Amendment, which introduced the restriction of “public order” in Article 19(2), and implicitly affirmed the view of sedition that had been endorsed by Maurice Gwyer CJ in the colonial Federal Court, but overruled by the Privy Council. This, in my opinion, is far too generous to the judgment of the Supreme Court in Kedar Nath Singh vs State of Bihar (1962), which upheld sedition.

As I have argued elsewhere, the phrase “reasonable restrictions” under Article 19(2) required the court to examine whether there existed a relationship of proximity between the speech-restricting law and public order. In the case of sedition, which criminalises “disaffection”, “contempt” or “hatred” towards the government, there is no such relationship of proximity. By “reading in” a requirement that seditious speech has a tendency to create public disorder, the Supreme Court bent over backwards to uphold the Section in a manner that the constitutional text certainly did not require it to do. Similarly, there was nothing in the Constitution that required the court to endorse the Hicklin test for obscenity, or draw a distinction between films and books that allowed it to uphold prior restraint on films under the Cinematograph Act. In other words, the point is this: whatever the intentions of the framers in maintaining colonial continuity, and however conservative the final text of Articles 19(1)(a) and 19(2), the Supreme Court could have crafted a progressive free speech jurisprudence, faithful to the broader transformative purpose of the Constitution and its endorsement of individual autonomy (for example, by granting universal adult franchise), even within the confines of the constitutional text and structure. That it has not done so is entirely its own responsibility, and entirely within its power to rectify, whenever it chooses to.

Republic of Rhetoric offers an engaging blend of political history, legal history and constitutional doctrine in its treatment of the past, present and potential future of free speech in India. It will doubtless be an important text in the context of the perennially recurring battles over free speech.

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