Reading the Evolution of Censorship and Sedition in India

Censorship was once perceived to be a unilateral exercise of coercive state power. Now the clamour for censorship increasingly comes from the public which may also resort to vigilante action to achieve its aims.

Censorship, usually understood as repressive state power, has often been considered a theoretically dull subject even if a politically vital one.

Scholars saw their task as ensuring that such activity does not pass without historical accounting and would, therefore, catalogue the instances, discern motivations and assess the implications of censorship.

But, as three recent books on India demonstrate, the state is no longer the sole agent engaged in censorial activity. Demands for censorship, as well as practices of censorship, come from and are practised in all realms of society. Censorship then is often a collaborative venture between the state and society.

This shift in understanding from censorship as a unilateral exercise of coercive and monolithic state power to its more complex, motivated and collaborative dimension has political implications. For, if the traditional liberal concern was to protect the individual from the state, an additional question is now being posed: how does one respond when the clamour for censorship comes from the public – groups that utilise a plethora of laws, and at times resort to vigilante action to achieve their aims?

If one is to diagnose contemporary democracy, and how the postcolonial present has been shaped by an infrastructure of colonial law and regulation, then expanding our understanding of the modalities and varieties of contemporary censorship is an urgent matter.

Watch | For Those Charged With Sedition, the Process Itself Is the Punishment

Devika Sethi
War over Words: Censorship in India, 1930-1960
Cambridge University Press (2019)

All three authors have examined the legacy of colonial censorship, which Devika Sethi, a historian, notes demarcated three broad categories: sedition (political speech regarded as illegitimate), obscenity (the transgression of perceived moral norms) and ‘hate’ literature (incitement to communal or ethnic disharmony).

Sethi’s central concerns are, topically, an interest in the long history of censoring texts that have caused religious ‘hurt,’ and practically, the ‘informalization of censorship,’ that is, a shift from regulation to persuasion, incentives and collaboration. She examines the periods immediately preceding and succeeding independence (1930-1960) to assess the continuities and changes from the colonial to the post-colonial state.

While the overarching themes of all three books are similar, Anushka Singh fleshes out the category of sedition, whereas Malvika Maheswari’s focus is on the ‘offence’ caused by artists. She, therefore, concentrates on obscenity and hate literature. Singh and Maheswari, both political scientists, bring us up to contemporary events, trying to explain how charges of sedition, and the alacrity with which offence is taken, have become a pervasive feature of our times. All three writers underscore how individuals and groups use various laws to press the state into action.

Sethi examines the long history of individual and religious associations petitioning the colonial government, often successfully, to prohibit publications offensive to religious sensibilities. She notes that success often depended on the political context and that for the colonial authorities, considerations of ‘public order’ usually trumped concerns over the restriction of ‘free speech.’ The colonial state also sought co-operation and collaboration from its colonial subjects; in particular, from the Indian nationalist press during the second world war years.

Sethi details a variety of techniques through which the nationalist press was co-opted into exercising ‘voluntary’ censorship as state officials sought to enlist them against a purported common enemy. After independence, this informalisation, Sethi argues, continued although the motivations may have changed. Informalisation was now, in part, a response to the conundrums of censorship faced by the Congress government.

Indian nationalists suffering from colonial censorship, had developed a commitment to free speech. Once in government, however, they faced the problems of hate speech, communalist violence and ideological challenges from both the right and the left. While attempts during the constituent assembly debates to add a new sedition law were defeated, additional restrictions on speech and expression were realised with the passing of the first constitutional amendment in 1951.

Also read: Book Review: Chronicling the (Mis)use of Sedition Law in India

Sethi argues that the focus on constitutional legality obscures the informal mechanisms of control that were elaborated and favoured in the initial post-independence years and which continued through the first decade of independence. That is, while the first amendment to the Indian constitution imposed further restrictions on free speech, Nehru’s reluctance to institute formal censorship meant that the government did not initially resort to these new restrictions but preferred to use extra-legal means of controlling the press.

The informalization of censorship was consolidated by a shared outlook (the post-independence Nehruvian consensus) of the major press barons and encouraged by their developing business interests, which relied on state patronage, and so ensured criticism was further muted.

Anushka Singh
Sedition in Liberal Democracies
OUP India (2018)

In Sedition in Liberal Democracies, Anushka Singh, explores the tension in liberal democracies between free speech commitments and imperatives of state security through a focus on sedition. Although Singh’s book has a comparative dimension, in that she assesses the status of sedition laws in India against developments in other liberal democracies such as the US, the UK and Australia, and a theoretical interest in speech act theory, which she uses to determine if Indian jurisprudence on sedition can be considered coherent, the principal value of the book is its historical delineation of sedition. Singh provides a useful account of the law, introduced in 1870 as section 124-A of the Indian Penal Code, and its subsequent additions and amendments, which have expanded the scope and manner of use, in both the colonial and post-colonial periods.

Unsurprisingly, its initial use – and subsequent expansion – was by the colonial authorities against the nationalist press and politicians, most notably, with the charges against Bal Gangadhar Tilak, who was tried on three separate occasions, in 1897, 1908 and 1916. Tilak contested the charges from within the law by pleading that his statements did not legally amount to sedition. He was convicted on the first two occasions but on the third set of charges in 1916, his defence lawyer, one M.A. Jinnah, succeeded in obtaining an acquittal.

Trials against nationalists only furthered discontent with the sedition law and strengthened their commitment to free speech. To be charged became a badge of one’s patriotism and honour. The transvaluation of sedition, however, was most forcefully brought about by Mahatma Gandhi who, when charged as a result of the civil disobedience campaign of 1922, accepted that, within the terms of the law, he was guilty. Gandhi, however, made a larger argument against the law in toto, stating that it was “designed to suppress the liberty of the citizen.” Noting that Indian patriots had been convicted under it, he said, “I consider it a privilege, therefore, to be charged under that section.”

Despite the anti-colonial nationalist critique, attempts were made, during the constituent assembly debates, to include sedition as a constitutional limitation on fundamental rights. However, this was unacceptable to many nationalists who saw it as criminalising legitimate dissent and successfully defeated its inclusion. Nevertheless, anxieties about the security of the state ensured that Section 124-A was retained in the penal code. This, Singh suggests, was a contradiction that was subsequently exacerbated by executive actions, which, emphasising state security, brought actions against opponents from the left and the right. The courts, however, emphasising constitutional freedoms reasserted the scope of free speech.

The first constitutional amendment of 1951 can be seen as an attempt to limit the judiciary’s strong commitment to freedom of expression by expanding the grounds on which to restrict speech while simultaneously continuing to eschew sedition as a constitutional offence. The first amendment’s inclusion of ‘public order,’ in particular, opened up an avenue for emphasising considerations of state security and revived the validity of sedition as a category.

Also read: A Short Summary of the Law of Sedition in India

But the vexed question of the constitutionality of sedition continued until the Kedar Nath Singh judgment of 1962 where the Supreme Court, whilst allowing for dissent, and narrowing the scope of sedition, nonetheless upheld it as constitutionally valid through a public order rationale. The balance in favour of state security over freedom of expression was further consolidated by the 16th constitutional amendment of 1963, which added that the ‘sovereignty and integrity of India’ be considered in assessing political speech.

These developments were indicative of the shift away from anti-colonial nationalism’s positive evaluation of seditious speech. The road towards interpreting critical comments as anti-national and therefore, subject to sedition charges was, despite judicial ring-fencing, opened. It was a road that gradually widened over the decades, and with the slew of anti-terror laws in the 1990s, led to the increasingly casual use of sedition charges.

As the scope of nationalism has been narrowed by a majoritarian Hindu religiosity, charges of sedition have proliferated and become commonplace. While the higher judiciary, Singh notes, has tried to impose limits of what constitutes sedition, this is often ignored by the executive branches of government, whose political discourse increasingly marks dissent, and difference as seditious.

It, is, especially the police and the lower judiciary’s low threshold for what is considered ‘anti-national’ and seditious that has meant the charge has had profound consequences for individuals, as well as the political causes they espouse, leading to an effective criminalisation of political activity. Singh’s case studies detail some of the many, diverse and bewildering arrays of persons and organizations who have been charged in recent years, which under the present dispensation can only continue to expand.

Singh compares the continued existence of India’s sedition laws with other liberal democracies, which, she notes, have repealed – or rarely use – sedition laws. Prosecutions based on the expression of dissenting political opinions is now regarded as embarrassing. Sedition is considered a decidedly archaic19th century provision. However, she notes these western liberal democracies have instead resorted to anti-terror legislation to curtail speech. But if the argument is to replace sedition with anti-terror legislation then one should pause for sedition has the advantage of highlighting the political nature of the offence, as Gandhi so clearly recognised.

Malvika Maheshwari
Art Attacks: Violence and Offence-Taking in India
Oxford University Press (2018)

The charge of ‘terror’ on the other hand depoliticises. Rather than dispensing with sedition and resorting to anti-terror legislation then, perhaps sedition ought to be retained albeit it needs to be re-defined and its scope and usage restricted. Only then can political differences be recuperated and the process of decoupling, what is considered as anti-nationalism from sedition, begin. The present conflation of the political with the national has reduced the scope of genuine democratic politics, from one where disagreement, dissent and difference are no longer held as values but are taken as signs of subversion, betrayal and foreignness.

Maheswari’s book investigates the politics of offence, of offence perceived to moral norms and religious sensibilities by artistic representations. Here, colonial laws against obscenity and harm to religious sentiments are mobilised by censorial publics and Maheswari’s focus is on the motivations, politics and responses to these attacks on artists.

She argues that protests against Rushdie’s Satanic Verses (1988) and the murder of the playwright Safdar Hashmi (1989) marked the moment when violent politics and demands on regulating speech led to a transformation in the Indian state from the privileging of freedom of expression to the privileging of offended sentiments.

By the 1990s, the successful hounding of the artist M.F. Hussain by Hindu nationalists was indicative of this sea-change. Yet she does not rehearse an account of the rise and fall of liberal-secularism, the Nehruvian consensus and the modern state by simply and exclusively pointing to the machinations of power politics linked to a majoritarian religiosity.

While these factors are undoubtedly important in her analysis, she is also attentive to how such a framing conveniently constructs a binary of liberal-secular civility and reason against religious irrationalism and violence. She argues that rather than placing these as exterior and external, and hence aberrations, they are better understood as emerging from within, from the multifarious and at times conflictual aspects of both liberalism, on the one hand, and democracy, on the other.

Violence against artists should not be regarded as aberrations against democracy in India, she says, but its very condition. Within liberalism, the commitment to individual free speech can be countered by equally liberal principles of equal respect, dignity and public order as enshrined in the law. Maheswari investigates the motivations of those who employ the language of the law to register cases and organise protests and argues that their primary motivation is not only to realise personal ambitions but to gain the recognition and respect that a liberal-democratic polity ought to afford but often denies them.

Perhaps most interesting in her account is why artists became the focus of ire since the 1980s. She suggests that they mark a particular figure within one strand of liberalism – of the self-actualising, creative individual – the ideal citizen in one imaginary of progressive liberal-secular modernity. Noting that whilst cases had been brought against them in earlier decades, the judiciary tended to treat artists as ideal citizen-subjects and did not, therefore, subject them to the same constraints imposed on other members of society.

Also read: How Bal Gangadhar Tilak’s 1897 Trial Marked the Criminalisation of Dissent

It is this unequal and protected status, she suggests, that only further encouraged mobilisations against artists. Protestors deployed laws on obscenity and harming religious sentiments to bring cases against them and resorted to violence if state officials were reluctant or the judiciary disappointed them. Vigilante violence can then be understood as upholding certain perceived moral norms that the law ‘failed’ to uphold, and is consequently regarded as legitimate in the eyes of the perpetrators.

As a political scientist, Maheswari’s methodological emphasis is on the individual and through her micro-case studies she examines the personal motivations, forms of self-interest and competitive politics of claim-making, that is, the competition to hold a monopoly on ‘outrage’ in mobilising agitations and attacks. Whilst valuable and important, this emphasis on instrumental politics tends analytically to neglect the role of emotion and sentiment.

Taken together, these three books excavate, and highlight, the tensions within a liberal political order. Liberalism has always hedged its promises of freedom and rights with constraints and limitations. As the latter have increased, the scope of freedom seems narrow and precarious. But the solution cannot simply be a politically innocent call for the return of liberal principles, one that imagines that censorship can end within a progressive polity backed by state power.

On the contrary, a pragmatic recognition that censorship is, and will always, be exercised has to be acknowledged. The task, then, is to produce a new infrastructure of censorship, one that recognises that there are limits to expression while at the same time pushing rights of expression to its limits. Crucial to this is the continual reassessment of these laws and the introduction of mechanisms that reduce the ease with which the current laws are used to make accusations and register cases.

This ease of use has meant adversarial legal action has replaced social practices of debate, disagreement and the scope for mutual respect, review and contrition. The review and repeal of colonial laws that invite and incite accusatory practices –  laws that intensify conflict rather than redress injustice – could be the start of a new conception of the relations of speech, dissent, harm and at the same time an acknowledgement of social and political differences.

Asad Ahmed is social-cultural anthropologist who works on the law, language and colonialism. He has taught at various North American universities including Harvard.