People, Not the State, the Greatest Hurdle to Free Speech in India

In 'Republic of Rhetoric', Abhinav Chandrachud looks at the history of free speech jurisprudence.

Abhinav Chandrachud’s Republic of Rhetoric is an engaging exploration of the history of free speech jurisprudence in India. Though subtitled Free Speech and the Constitution of India, the book also covers the colonial period: indeed the book’s central thesis is that the 1950 constitution made no substantial difference to the free speech regime under colonial rule. This historical “no difference” thesis is taken to argue that our present-day free speech protections are inadequate; hence the claim, announced in the title, that where free speech is concerned, India is a ‘Republic of Rhetoric’.

The book covers a range of issues, though the depth of coverage is variable. Here I survey the most substantial sections of the book, concerning sedition and other forms of “political speech” on the one hand, and contempt of court on the other. I will ignore the briefer discussions of obscenity, defamation, hate speech, insults to the national flag and methods of influencing the press.

Sedition and ‘political speech’

About a third of the book is devoted to discussing censorship of so-called “political speech”. This includes a particularly interesting discussion of the evolution of the colonial sedition law, with a comparative perspective. Thomas Macaulay first mooted the idea of a sedition law in India in 1837, by which time it had practically become a dead letter in Great Britain. It took another 30 years before it was incorporated into the Indian Penal Code (IPC) of 1870 – having been left out of the original 1860 draft by mistake.

When James Fitzjames Stephens introduced Macaulay’s draft in 1870, he made it clear that sedition was not designed to penalise criticism of government measures, ‘however severe and hostile’, or ‘disingenuous, unfair, and ill-informed it might be.’ It was conceived as essentially a crime against public order: for instance, to urge listeners to fight against the government by force.

This “public order” conception of sedition was replaced in the 1890s with the view that the crime of sedition essentially involved exciting “bad feelings” against the government. As Justice Arthur Strachey urged in the 1897 sedition trial of Bal Gangadhar Tilak, sedition involved “hatred, enmity, dislike, hostility, contempt, and every form of ill will to the government”. He instructed the jury that while the law protected the criticism of government measures, it did not protect attacks against the government itself – “its existence, its essential characteristics, its motives, or its feelings towards the people.” This was regardless of whether the speech in question had any tendency to create public disorder.

Abhinav Chandrachud <em>Republic of Rhetoric: Free Speech and the Constitution of India</em> Penguin Random House India, 2017

Abhinav Chandrachud
Republic of Rhetoric: Free Speech and the Constitution of India
Penguin Random House India, 2017

This “bad feelings” interpretation of sedition law, and its consequent use as a tool of political repression, continued through the colonial period. There was a brief respite in 1941 when a judgement by Justice Maurice Gwyer of the Federal Court of India held that even “vulgar abuse” against the government should be protected, since sedition should once again be seen as a crime against public order. Though the Privy Council overturned this judgement in 1947, the post-independence understanding of sedition by the Supreme Court has returned to Gwyer’s formulation.

Two further chapters on sedition and public order bring the book into the post-colonial era. One discusses K.M. Munshi’s successful efforts in the constituent assembly to ensure that the right to free speech did not allow for exceptions in the case of sedition and hate speech. Another discusses Syama Prasad Mookerjee’s unsuccessful efforts in parliament to resist the narrowing of the right in the debates around the First Amendment to the Constitution in 1951.

Chandrachud does a fine job of telling the story of the first amendment. We have seen the resurrection of Syama Prasad Mookerjee as an icon of the Hindu Right, but perhaps it is also time to resurrect him as a defender of free speech – in which role he would have definitely opposed his latter-day followers. Chandrachud drops tantalising references to the Mookerjee papers at the Nehru Memorial Museum and Library, which will surely be a treasure trove for scholars investigating the history of free speech in India.

The discussion of political speech concludes with an account of the 16th amendment in 1963. The amendment made it constitutionally permissible for the state to restrict speech in the interests of protecting the sovereignty and integrity of India: its ostensible aim was to allow for curbs on the advocacy of secession in India, made at the time primarily by the DMK in Tamil Nadu for a separate ‘Dravidistan’. (The advocacy of secession was made officially unlawful only in 1967, which the passage of the Unlawful Activities (Prevention) Act.)

The amendment passed with huge majorities in both houses of parliament, with the sole vote against it from C.M. Annadurai, representing the DMK in the Rajya Sabha. Chandrachud points out that the DMK was given few opportunities to argue against the amendment, either in the National Integration Council which proposed the amendment or in the parliamentary joint committee which discussed it. Chandrachud’s references to the DMK position on the amendment suggest that it is an important footnote in the history of free speech advocacy in independent India – another topic worthy of further investigation.

The Kashmir issue so dominates popular thinking about secession that it is helpful to recall this longer history, and to remember that discomfort with secessionist movements it is not an exclusively right-wing phenomenon: on this, at least, the BJP of today does not look very different from the Congress of 1963.

In fact, even liberal commentators are jittery about claims of federalism which do not take the current shape of the Union for granted. One sees this for instance in the recent exchange between Alok Prasanna Kumar and Nilakantan R.S. regarding the North-South divide in connection with the 15th Finance Commission. (The Commission has proposed to use the 2011 Census as the baseline from which to decide tax allocation ratios. Nilakantan has argued that this unfairly penalises states such as Tamil Nadu and Karnataka which have done a good job of reducing population growth since the 1971 Census.)

Contempt of court

Chandrachud spends three chapters on free speech in connection the integrity of judicial institutions – two on contempt of court and one on a public controversy arising from a public criticism by Jawaharlal Nehru of Justice Vivian Bose, former chief justice of the Nagpur high court.

One chapter on contempt discusses the offence of “scandalising the court” – alleging dishonesty or bias in a way which might undermine judicial authority. Chandrachud tells us that colonial courts entertained contempt petitions only rarely, and only when there were clear allegations that a particular judge was biased, dishonest or incompetent. In the post-independence era, courts have sometimes used contempt powers more broadly, even absent allegations of any particular bias. Thus E.M.S. Nambooripad, former Kerala chief minister, was held by the Supreme Court to be guilty of contempt for a speech espousing the Marxist critique of the judiciary as an instrument of class oppression.

The discussion on scandalising the court is followed by an interesting account involving derogatory remarks made by Nehru in public about a former Supreme Court judge. Justice Bose had been appointed to head an enquiry commission into the Mundhra scandal in the 1950s, which had concluded that the allegations of corruption raised in the scandal were correct. At a press conference, Nehru said that the commission’s conclusions betrayed a lack of intelligence, even in a judge. Nehru’s comments prompted an outcry from the Calcutta Bar and criticism from the chief justice of India, prompting a personal apology from Nehru to Bose, as well as a public apology from Nehru to the Bar.

The apology seems to have been graciously accepted, with the Calcutta Weekly Notes commenting that the episode showed Nehru to be “a truly great man who has the courage and the true sense of dignity to own up to the fact that he made a mistake however casually and incidentally that mistake might have been.” Retired judges of the Supreme Court interviewed years later by George Gadbois seemed to confirm the view that Nehru’s handling of the situation had strengthened the institution of the judiciary.

Unconvincing claims

To my mind, the greatest strength of this book lies in the treatment of political speech. Discussions of free speech tend to be too often focused on judicial pronouncements and the constituent assembly debates. Chandrachud goes well beyond this archive, including such documents as parliamentary debates, select committee proceedings, and private as well as published papers by figures such as Patel and Mookerjee. This is an aspect of the book which future research on free speech in India would do well to follow.

I am not convinced, however, by the book’s main claims. Consider the historical “no difference” thesis: the claim that India’s free speech regime has not changed with the passage of the constitution. Whether or not the claim is true depends upon how we should interpret it. Taken literally, surely it is false. In the domain of political speech, for instance, the offence of sedition can no longer involve the mere expression of hatred or contempt against the government, without a threat to public order: this is sharply at odds with the colonial position. To take another example, the Press (Emergency Powers) Act of 1931, an important tool of repression under the Raj, is no longer on the books. Perhaps these changes are not directly traceable to the enactment of the constitution itself, but why expect that one particular document to do all the heavy lifting in the post-Independence era?

Abhinav Chandrachud. Credit: Facebook

Abhinav Chandrachud. Credit: Facebook/Abhinav Chandrachud

We could take the “no difference” thesis less literally, and claim that these changes are cosmetic – that the government has the same powers to restrict speech as it did under colonial rule, though the legal forms through which this power is exercised have changed. This is a more plausible claim: for instance, our jurisprudence on sedition is quite speech-protective in theory, but this has not prevented the executive from using sedition law as a tool to suppress political speech on the ground. But to support a no difference thesis of this kind, one would need a deeper analysis of the law in practice; it is not enough to look at the letter of law alone.

The book’s second main claim is that our current free speech regime is too restrictive. In many cases, Chandrachud’s support for this claim is oddly tepid. Should hate speech be given constitutional protection? Should the state be allowed to restrict speech in the interests of preserving the “unity and integrity of India”? Should we restrict the law on criminal defamation? We do not get clear answers to these questions. Often we are left either with a description of the law, sometimes prefixed by a distancing device (“It is somewhat strange that…”, “Ironically…”, “Oddly…,” etc.); or else a rhetorical question (“Does ‘merely’ showing a map of Kashmir with disputed boundaries amount to undermining the ‘sovereignty and integrity’ of India?”). The absence of a clear line on these controversial issues is at odds with the confident claim that our laws are too restrictive.

A methodological problem

I suspect that part of the problem is methodological. In order to move from the historical “no difference” thesis in some domain of law to the claim that our current laws are too restrictive we have to first establish that the relevant colonial jurisprudence undermined important free speech values. This is easy to do so in the case of sedition, but harder in other cases. On Chandrachud’s own account, for instance, colonial courts did not exercise their contempt powers in, especially problematic ways. If so, the “no difference” thesis has little bearing on the claim that our current contempt laws are too strict.

It is telling that Chandrachud does not, in fact, employ the “no difference” thesis in discussing obscenity and contempt, the two cases in which he does take a clear line. His problem with contemporary obscenity jurisprudence is not that it mirrors colonial law, but simply that it places unjustifiable restrictions on the display and circulation of sexually arousing content. In the case of contempt powers, Chandrachud’s argues that courts should not have immunity from public criticism which is denied to other organs of the state, such as the police: judges whose motives are impugned have recourse to other forms of redress, such as the law of defamation. Contempt powers, in his view, should be restricted to disruptions of court proceedings and direct incitements to disobey court orders.

While this kind of analysis is along the right lines, I would have welcomed a closer analysis of the political and institutional values at stake. Consider how this analysis would apply to two recent high-profile controversies concerning contempt of court. In January, four judges of the Supreme Court held a press conference in which they claimed that the chief justice was improperly using his powers to allocate cases to different benches of the court. Writing in Swarajya magazine, Kannamma Devadas argued that these four judges should not only be impeached but should also be prosecuted for criminal contempt.

More recently, in its judgement in the Judge B.H. Loya case, the Supreme Court said that those demanding an independent inquiry into Loya’s death have also prima facie committed criminal contempt. The charge here was that they questioned without evidence the veracity of statements made by judicial officers who claimed to be with Loya when he died and that they raised doubts about the credibility of two erstwhile judges of the Bombay high court who were hearing the Supreme Court petition. (The court decided not to pursue this issue for the reason that the moral authority of the judicial process was not best pursued by coercive means.)

Perhaps these are exactly the right kind of examples to support Chandrachud’s recommendations to restrict the court’s contempt powers. But as Pratap Bhanu Mehta has pointed out, questioning the integrity of the judiciary is a high-stakes affair, and the potential loss of institutional legitimacy is genuinely troubling. One might agree that the court should not use its contempt powers to police such accusations, but one had better take these institutional interests seriously. This, I fear, Chandrachud fails to do.

One final thought which was prompted by the Republic of Rhetoric is that a focus on the lack of substantive Constitutional protections for free speech suggests a picture in which the primary threat to free speech in India comes from a state which desires to restrict speech. But part of what makes the Indian free speech predicament interesting is that the state’s desire to restrict speech often mirrors, or is caused by popular agitations in favour of restriction. This is clearest when it comes to “hurt sentiments,” like in the case of the Padmaavat controversy; but I suspect that there would be broad popular support for some restrictions on political speech as well – for instance, for laws banning the peaceful advocacy of secession from the Indian Union. When it comes to freedom of speech, it may be that our greatest barrier is not our state, but our people.

Arudra Burra is an assistant professor of philosophy at IIT (Delhi).