A status quoist, not transformative right

BY ABHINAV CHANDRACHUD| IN Books | 18/10/2017
The enactment of Article 19 of the Constitution made merely a rhetorical change, not a substantive one, to the right to free speech in India,
argues ABHINAV CHANDRACHUD in a new book

 

 

Book extract

Republic of Rhetoric, Free Speech and the Constitution of India,  by Abhinav Chandrachud.

 

Excerpted with permission from Penguin Random House India

 

From Chapter 1

At its heart, the Constitution contained a chapter on fundamental rights. One of these rights was the right of every citizen in India to ‘freedom of speech and expression’, guaranteed by Article 19(1)(a) and limited by Article 19(2). It would be quite intuitive to think that this important fundamental right belonged to the transformative part, not the status-quo part, of the Constitution. After all, this was perhaps the first time in India’s history that political rights inspired by individualistic Western values,19 rights like the right to life, personal liberty and equality, were formally recognized in a legally enforceable constitutional document. The chapter on fundamental rights looked a lot like the Bill of Rights of the US Constitution, or the more recent Universal Declaration of Human Rights which had been adopted by the General Assembly of the UN a little over a year before our Constitution came into being.

"It would be quite intuitive to think that this important fundamental right belonged to the transformative part, not the status-quo part, of the Constitution"

 

However, a closer look at its history and evolution reveals that the enactment of the Constitution made little or no substantive difference to the right to free speech in India. Though there was no formal document recognizing a right to free speech in British India, Indians certainly did enjoy a common law right to speak freely during that time. Broadly speaking, prior to India’s independence, there were four exceptions to the right to free speech. These were: sedition (and hate speech), obscenity, contempt of court and defamation. These continued to be exceptions to the right to free speech after the Constitution was adopted, and remained virtually unchanged.20

** *

The law of sedition in British India was rather different from its counterpart in England. There, since 1832, sedition was narrowly defined to mean inciting violence or insurrection against the government. It was a ‘misdemeanour’, or lesser offence, which attracted a sentence of imprisonment of a few years.

Misdemeanours in England were ‘bailable’ offences, meaning that a person accused of sedition could get bail as a matter of right. Prosecutions for sedition were rarely launched there. It was also difficult to obtain a conviction for sedition in England because those who were accused of that offence were tried before juries which tended to be sympathetic to their own countrymen.21

"Remarkably, sedition became a ‘cognizable’ offence for the first time in the 1970s, several decades after India became independent"

 

By contrast, sedition in British India, enacted in the form of Section 124-A of the Indian Penal Code in 1870, was defined very broadly to include merely evoking hatred, disloyalty or bad feelings against the government. It was punishable with ‘transportation’ to an overseas prison for life. It was a non-bailable offence.

***

Court rulings which declared sedition unconstitutional in the early years of the republic were undone by the First Amendment to the Constitution, spearheaded in 1950 by Prime Minister Nehru, who was afraid that people would use the right to free speech to preach violent crimes, like murder and communal rioting, with impunity. Sedition continues to be a non-bailable offence, and it attracts a whopping maximum sentence of life imprisonment. Though sedition now means what it did after 1832 in England, i.e., incitement to violence and insurrection, it can’t be said that this was necessarily an outcome brought about by the Constitution. Even prior to India’s independence, Chief Justice Maurice Gwyer of the federal court had applied the English test of sedition in a case, before he was overruled by the Privy Council.24

Remarkably, sedition became a ‘cognizable’ offence for the first time in the 1970s, several decades after India became independent. A ‘cognizable’ offence is one in which a police officer may arrest the accused and investigate the case without a warrant or direction from a magistrate. In other words, during the British colonial era in India, a person accused of sedition could not be arrested by a police officer without the officer first obtaining a warrant from a magistrate. By contrast, today, a police officer may, even without a warrant from a magistrate, arrest a person accused of sedition. This change was brought about by the Indira Gandhi government in the 1970s, only a few years before the Emergency was declared in India.25

** *

India’s Constitution also recognizes some restrictions on free speech which did not exist in the British era. For example, the Muslim League in British India had the right to propagate peacefully, through the electoral process, the idea that India should be partitioned and that portions of Indian territory should secede from India. By contrast, enacted in the 1960s, the Sixteenth Amendment to the Constitution ensured that the DMK in the South would not be able, like the Muslim League, to make secession from India a part of its peaceful electoral platform. In practice, Kashmiris do not have rights to peacefully demand secession from India, or ‘azadi’ (freedom).31

Likewise, the framers of India’s Constitution decided to give a right to free speech and expression only to Indian citizens. This was despite the fact that those who were not Indians had often exercised a right to free speech in British India. In particular, Britons like Annie Besant and B.G. Horniman had helped espouse the nationalist cause in India’s freedom movement. These two had been a thorn in Britain’s backside, to the point that Chief Justice Norman Macleod of the Bombay High Court once opined that they ‘ought to have been put on board a ship long ago and sent home’.32 Horniman, as editor of the Bombay Chronicle, was summarily deported to England in 1919.33 In recognition of Horniman’s contribution to India’s freedom movement, Mumbai’s iconic and historic ‘Elphinstone Circle’ (previously known as ‘Bombay Green’) was renamed ‘Horniman Circle’ when India became independent.34 The memorial plaque at Horniman Circle now reads: ‘Dedicated to the Memory of Benjamin Guy Horniman 1873—1948 who lived and worked for the freedom of the Press in India.’35 Yet, if Horniman has any Irish great- grandchildren surviving him today, for some strange reason they would not have a right to free speech under India’s Constitution. It is because of this deep distrust of foreigners that even today, India allows foreign investment in Indian newspaper companies only up to 26 per cent, and that too with the prior approval of the government. Likewise, a foreign news channel can only be ‘downlinked’ into India if it ‘does not carry any advertisements aimed at Indian viewers’ and ‘it is not designed specifically for Indian audiences’.36

"The framers of India’s Constitution decided to give a right to free speech and expression only to Indian citizens"

 

Interestingly, an exception to the right to free speech was carved out in the First Amendment in 1950, that a person cannot harm, by his speech, ‘friendly relations with foreign states’.37 This was done because leaders like Syama Prasad Mookerjee, president of the Hindu Mahasabha, were advocating war between India and Pakistan and the forcible re-unification of the two countries.

In short, this book will make the case that the enactment of the Constitution did not make a significant difference to the right to free speech here, that Articles 19(1)(a) and 19(2) belonged to the status quo aim of the Constitution, not the transformational one. The enactment of the Constitution made merely a rhetorical change, not a substantive one, to the right to free speech in India. This argument has not substantially been advanced before, by any of the leading scholars on the right to free speech in India.38 

 

Notes

  1. See, Ramachandra Guha, India After Gandhi: The History of the World’s Largest Democracy (New York: Ecco, 2007), p. 5.

  2. The Privy Council’s jurisdiction was abolished by the Abolition of Privy Council Jurisdiction Act, 1949, which came into force on 10 October 1949.

  3. A few provisions of the Constitution came into force at once on 26 November 1949. The rest came into force on 26 January 1950. See, Article 394, which dealt with the commencement of the Constitution.

  4. Constituent Assembly Debates of India, vol. XI, p. 977 (25 November 1949).

  5. Article 395.

  6. Speech of Prime Minister Nehru at the inauguration of the

    Indian Law Institute on 12 December 1957. S. Gopal (ed.), Selected Works of Jawaharlal Nehru, 2nd Series, (New Delhi: Jawaharlal Nehru Memorial Fund, 1989), available at: http:// nehruportal.nic.in/writings (last visited 25 May 2017), vol. 40, p. 303. Interestingly, the government’s Statement on Industrial Policy, adopted in 1991, which signaled economic liberalization, adopted the motto of ‘continuity with change’. See, Statement on Industrial Policy, Government of India, Ministry of Industry, available at: http://dipp. nic.in/sites/default/files/chap001_0_0.pdf (last visited 18 June 2017).

  7. Granville Austin, The Indian Constitution: Cornerstone of a Nation (New Delhi: Oxford University Press, 1966), p. xxi. Sandipto Dasgupta called this a tension between constitutional ‘aspirations’ and ‘necessities’. Sandipto Dasgupta, ‘A Language Which Is Foreign to Us: Continuities and Anxieties in the Making of the Indian Constitution’, vol. 34, Comparative Studies of South Asia, Africa and the Middle East 228 (2014), p. 229.

  1. Article 17.

  2. Article 15.

  3. Article 18(2) of the Constitution says: ‘No citizen of India shall

    accept any title from any foreign State.’

  4. First Schedule.

  5. Article 326.

  6. H.M. Seervai, Constitutional Law of India: A Critical Commentary

    (Bombay: N.M. Tripathi, 1993–97), vol. 1, p. 164.

  7. Seervai, Constitutional Law of India, vol. 1, p. 167.

  8. Constituent Assembly Debates, vol. XI, p. 663 (18 November 1949).

    See further, Dasgupta, ‘A Language Which Is Foreign to Us’; Arvind Elangovan, ‘The Making of the Indian Constitution: A Case for a Non-nationalist Approach’, History Compass, vol. 12, pp. 1–10 (2014).

  9. Abhinav Chandrachud, An Independent, Colonial Judiciary: A history of the Bombay High Court during the British Raj, 1862- 1947 (New Delhi: Oxford University Press, 2015). Likewise, members of the Indian Civil Service, who had loyally served the colonial government, now served the government in independent India. Arudra Burra, ‘The Indian Civil Service and the Raj: 1919- 1950’, available on SSRN: https://papers.ssrn.com/sol3/papers. cfm?abstract_id=2052658 (last visited 20 December 2016).

  10. See, Arudra Burra, ‘What is “Colonial” About Colonial Laws?’, Am. U. Int’l L. Rev. 138 (2016); Dasgupta, ‘A Language Which Is Foreign to Us’.

  11. Constituent Assembly Debates, vol. XI, p. 616 (17 November 1949).

  12. As distinguished from Asian communitarian values.

  13. In fact, Ramachandra Guha lists the ‘retention of archaic laws’ as one

    of his ‘eight major threats to freedom of expression in contemporary India’. Ramachandra Guha, Democrats and Dissenters (Gurgaon: Penguin Random House India, 2016), p. 25. He notes—and this is a point which will be made in great detail in this book—that colonial era restraints on speech were not merely retained but also strengthened in independent India. Ibid, p. 27.

  1. This was so even though the charge they were facing was sedition.

  2. Though sedition was not specifically made an enumerated exception

    to free speech, the ‘security of the State’ was made an exception in 1950. Thereafter, the First Amendment made ‘public order’ an exception to free speech, which has protected sedition from constitutional challenges thereafter.

  3. One might argue that a person is less justified preaching sedition against a democratically elected government over a colonial one. However, merely because a government is democratically elected does not mean that citizens must lose their rights to free speech and to criticize the government.

  4. Jury trials have mostly been abolished in India, so there is no question of sympathetic juries hearing sedition cases.

  5. This was done with the enactment of a new Code of Criminal Procedure in 1973, which replaced the British era code of 1898.

  6. Brij Bhushan v. State of Delhi, AIR 1950 SC 129. In R. Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632 (at paragraphs 22, 26(6)), the Supreme Court held that prior restraints could not be imposed for defamatory statements made against the government or government officials, because there was no law authorizing such restraints to be imposed. Prior restraints were found to be constitutionally valid in Sahara India Real Estate Corporation Ltd. v. SEBI, (2012) 10 SCC 603.

  7. Lawrence Liang, ‘A Sholay We Don’t Know’, Indian Express, 16 February 2015, available at: http://indianexpress.com/article/ opinion/columns/a-sholay-we-dont-know/ (last visited 13 September 2016).

  8. See, ‘Censor Board says no long ‘kisses’ in Bond film . . . ’, Indian Express, 19 November 2015, available at: http://indianexpress.com/ article/entertainment/entertainment-others/censor-board-says-no- kisses-in-bond-film-spectre-twitterati-posts-jokes/ (last visited 13 September 2016). Similarly, it also trimmed a kissing scene between actors Sushant Singh Rajput and Kriti Sanon in Bollywood film Raabta. See, Charu Thakur, ‘Sushant-Kriti’s Raabta: CBFC Trims Kissing Scene, Says No to Abusive Language’, India Today, 7 June 2017, available at: http://indiatoday.intoday.in/story/sushant- singh-rajput-kriti-sanon-kissing-scene-raabta-cbfc/1/972603.html (last visited 13 June 2017).

  1. The Bombay High Court in Phantom Films Pvt. Ltd. v. Central Board of Film Certification, Writ Petition (L) No. 1529 of 2016, decided on 13 June 2016 (DB), set aside the Censor Board’s order.

  2. 376 US 254 (1964).

  3. See, Jean Drèze, ‘The New Abnormal in Kashmir’, The Hindu,

    25 November 2016, available at: http://www.thehindu.com/ opinion/lead/The-new-abnormal-in-Kashmir/article16695599. ece (last visited 5 December 2016); Jean Drèze, ‘Kashmir’s Hidden Uprising’, Indian Express, 5 December 2016, available at: http:// indianexpress.com/article/opinion/columns/kashmir-valley- shutdown-hidden-uprising-indian-army-militants-4410627/ (last visited 5 December 2016).

  4. HCA/D63/A1/D, British Library, letter dated December 8, 1918, from Norman Macleod to his son, Torquil.

  5. M.R. Jayakar, The Story of My Life (Bombay: Asia Publishing House, 1958), vol. 1, p. 227, available at: https://archive.org/stream/ in.ernet.dli.2015.238020/2015.238020.The-Story#page/n253/ mode/2up (last visited 18 June 2017); Thomas Joseph Strangman, Indian Courts and Characters (London: W. Heinemann, 1931), pp. 112–13.

  6. Sharada Dwivedi and Rahul Mehrotra, Fort Walks (Mumbai: Eminence Designs Pvt. Ltd., 1999), p. 19.

  7. Ibid.

  8. ‘Policy Guidelines for Downlinking of Television Channels’,

    5 December 2011, issued by the Ministry of Information and Broadcasting, available at: http://mib.nic.in/sites/default/files/ Downlinking_Guidelines05.12.11.pdf (last visited 18 June 2017).

  9. This was not an entirely new exception to free speech. As we shall see later on, the colonial-era Defence of India (Criminal Law Amendment) Act, 1915, allowed the government to regulate speech which was likely to ‘prejudice His Majesty’s relations with Foreign Powers’.

  1. See, Rajeev Dhavan, Publish and Be Damned: Censorship and Intolerance in India (New Delhi: Tulika Books, 2008); Gautam Bhatia, Offend, Shock, or Disturb: Free Speech under the Indian Constitution (New Delhi: Oxford University Press, 2016); Madhavi Goradia Divan, Facets of Media Law (Lucknow: Eastern Book Company, 2015); Seervai, Constitutional Law of India; Soli J. Sorabjee, Law of Press Censorship in India (Bombay: N.M. Tripathi, 1976); Lawrence Liang, ‘Speech and Expression’; Sujit Choudhry et al, The Oxford Handbook of the Indian Constitution (New Delhi: Oxford University Press, 2016).

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