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Freedom of Speech and You

Albeit, the Constitution framers were inspired by the American Constitution, they did not adopt it in its entirety. I can’t help but point out the irony present here. While the First Amendment of the U.S Constitution gave people the right to free speech, the First Amendment of the Indian Constitution imposes additional restrictions on the freedom of speech. The question that arise here is, why? Why impose restrictions on the freedom of speech? In the Constituent Assembly some members expressed their displeasure with the members of the drafting committee. K. Hanumanthaiya remarked, “We wanted the music of veena or sitar, but here we have the music of an English band. That was because our Constitution makers were educated that way.”[i]


Article 19(1)(a) guarantees the right to free speech and expression to the citizens of India[ii] and Article 19(2)[iii] limits it. The restrictions present prior to India’s independence on free speech continued even after the enactment of the Constitution. There were four restrictions – sedition (and hate speech), obscenity, contempt of court and defamation.[iv] As a matter of fact, sedition became a cognizable offence[v] in 1970s.


Defamation has ceased to be a crime in England since 2009 however it is still recognised under the Indian Penal Code.[vi] Hence, one can make the argument that the restrictions imposed on freedom of speech and expression today are harsher than they were in British India! The right to free speech was based on Section 40(6) of the Irish Constitution. It’s interesting to note here that while the provision of free speech in the Constitution was borrowed from the Irish Constitution, not one single Irish case was cited by the members of the Assembly instead US cases were cited.


Abhinav Chandrachud in his book makes an interesting observation on the matter: ‘Perhaps it was because the members of the Assembly were more familiar with the cases of the US, having studied in the US.’[vii]


HISTORICAL CONTEXT OF THE CONSTITUTION AND THE FIRST AMENDMENT

To understand freedom of speech and the restrictions imposed on it we must look at the context that it was introduced in. The Constitution, at that time, was a stabilizing document with the aim to bring about a ‘social revolution and at the same time preserve national unity’[viii], which came in the aftermath of the partition of 1947 that resulted in large-scale communal rioting.


At the time of partition and the years that followed, the country was filled with communal hatred (mainly between Hindu and Muslim) and a ‘hunger for communal violence’ prevailed which was occasionally fuelled by speeches of stalwarts like Syama Prasad Mookerjee. The Constitution came into force on 26 January 1950 and was amended within seventeen months in June 1951. Article 19(2) was amended and three new words were added to the restrictions to the right to free speech, which were, ‘public order’, ‘friendly relations with foreign states’, and ‘incitement to an offence’.[ix]


This was a result of judgments of the Supreme Court and the High Courts that made it difficult for the Government to curb hate speech that incited violence between different religious groups (mainly Hindu and Muslim). In cases like Romesh Thapar[x] and Brij Bhushan[xi], the Court held that ‘public order’ was not an enumerated restriction in Article 19(2) on the right to free speech and any law that restricted speech on the ground that it would disturb public order was unconstitutional.[xii] Justice Patanaji Sastri while delivering the judgement of Romesh Thaper held that unless something was capable of undermining the security of the State or overthrow of it, it cannot be included in the restrictions enumerated in Article 19(2).


In other words, local communal disturbances will not fall under the ambit of Article 19(2) since they do not have the tendency to overthrow the State. One can clearly sense the urgency of the Constitution framers to amend the Constitution. Another such troubling judgement was delivered by Justice Sarjoo Prasad in the Shaila Bala Devi case. Justice Sarjoo Prasad in his judgement mentioned that if an individual were to incite murder, he would be free to do so in the grab free speech. Justice S. Prasad’s judgment was almost single-handedly responsible for the First Amendment to the Constitution.[xiii]


After looking at the historical context of the Constitution, the right to free speech and the First Amendment, we must ask ourselves a fundamental question, i.e., How relevant are the restrictions to free speech today? One can definitely make an argument that when the Constitution was enacted the ‘political and communal climate’ of the country was substantially different from what it is now. Hence, why should our speech be restricted?


COMMON MAN AND CENSORSHIP

Sholay is considered a cinematic masterpiece. For some, it is perhaps the greatest movie ever made that introduced us to the character of ‘Gabbar’. It was probably the first time that an antagonist got so much attention. I know of people who dress up as Gabbar Singh for fancy dress competitions. However, not all of us our aware that the ending of the iconic film was changed or censored (however you want to put it) by the Censor Board.


In the original version of the film, Thakur Baldev Singh kills Gabbar however in the version that we all saw Gabbar is handed over to the police.[xiv] The film was released during the time of Emergency and the Censor Board was worried the effect that the film would have on the populace if it depicts a former police officer ‘taking the law in his own hands’ (or legs in the case of Thakur Baldev Singh)!


Such ‘prior restraint’ deprive a common man of his fundamental right to free speech. A prior restraint is a form of censorship imposed by the Government before the publication. The Supreme Court in the 1950s after the enactment of the Constitution held that ‘prior restraints’ were constitutional. During Emergency, Indira Gandhi enacted the ‘Prevention of Publication of Objectionable Matter Act, 1976’ (hereinafter Emergency-era Press Act) which allowed the Government to demand a security from a newspaper without setting any financial limit.[xv]


Resemblance can be drawn between the Emergency-era Press Act and the Vernacular Press Act of 1878 that allowed the Government to demand an expensive bond from Indian language newspaper.[xvi] It’s surprising to see that if after the enactment of the Constitution the Emergency-era Press Act came into force.


HIERARCHY OF RIGHTS

The idea that free speech shouldn’t be offensive runs contract to the idea of free speech and perhaps truth. In order to be right (or true) we have to risk being offensive.[xvii] So, the idea that you can’t use your free speech if it’s offensive, is an idea that is naïve. We choose to believe that all rights are equal in some sense however that is not true because rights conflict with one another and when things conflict, they have to be hierarchically organised.[xviii]


Hence, there is a hierarchy of rights and it is incumbent on us to determine the nature of that pyramid of hierarchy and to determine what constitutes the sovereign right. Free speech is that right. Free speech should be at the top of that hierarchy in a modern liberal democracy. It is more than just speech, it’s the ability to think because our words are not different from our thoughts.

An argument can be made that it’s important that people are able to use their words because that is how we think and if the Government starts legislating how the populace thinks, we might not have a democracy anymore (which we are hitherto). Freedom of speech is not only you being able to speak the truth to power, it’s about you being able to chart your destiny in the world.[xix]

CONCLUSION

The enactment of the Constitution has made no substantial change on the freedom of speech, if anything, one can make the argument that restrictions imposed on free speech and expression are far worse than they were in Colonial India. Even during Greek democracies, Parrhesia (free speech) was an essential part of the society. I would like to provoke you a little with a fundamental question, i.e., is one really free without the freedom of speech? The Greek idea of democracy is that it is founded by a ‘politeia’, a Constitution, where the ‘demos’ the people exercise power and where everyone is equal in front of the law.[xx]


It is fundamental to a democracy that the right to free speech shouldn’t be curbed. Citizens’ should have the courage to voice their displeasure, be it for or against the Government for it is a right our forefathers never had and lost their lives for. I would like to end with a quote from Sezhiyan in the Lok Sabha on the Sixteenth Amendment Bill, “Please argue with us, contend with us, convince us. If you find we are incorrigible, leave us alone, and go to the people, convince them. If you do that, that is real democracy. If you do other things, the name is not democracy, but it is something else.”[xxi]


ENDNOTES [i] Constituent Assembly Debates, vol. 11, 18 November 1949 [ii] Article 19(1)(a), Constitution of India [iii] Article 19(2), Constitution of India [iv] Abhinav Chandrachud, ‘Republic of Rhetoric, Free speech and the Constitution of India’, 2017, p. 4 [v] Section 2(c) of the Code of Criminal Procedure defines Cognizable offence as, an offence for which a police officer may arrest without a warrant [vi] Supra note 4 at 11 [vii] Ibid [viii] Granville Austin, ‘The Indian Constitution: Cornerstone of a Nation’, 1996, p. 21 [ix] Supra note 4 at 72 [x] Romesh Thapar v. The State of Madras (1950) 1950 AIR 124, 1950 SCR 594 [xi] Brij Bhushan and another v. The State of Delhi (1950) 1950 AIR 129, 1950 SCR 605 [xii] Supra note 4 at 74 [xiii] Ibid [xiv] Lawrence Liang, ‘A Sholay We Don’t Know’, Indian Express, 16 February 2015, available at: https://indianexpress.com/article/opinion/columns/a-sholay-we-dont-know/ (last visited 9 August 2020) [xv] Supra note 4 at 9 [xvi] Ibid [xvii] Youtube, ‘Jordan Peterson debate on the gender pay gap, campus protests and postmodernism’, Channel 4 News, 16 January 2018, available at: https://www.youtube.com/watch?v=aMcjxSThD54 (last visited 10 August 2020) [xviii] Youtube, ‘On the vital necessity of free speech (are you listening, Saudis)?, Jordan B. Peterson, 21 August 2018, available at: https://www.youtube.com/watch?v=EuNeqawPuuY (last visited 10 August 2020) [xix] Ibid [xx]Ibid

[xxi] Lok Sabha Debates, Third Series, 1963/1884 (Saka), Lok Sabha Secretariat, New Delhi, vol. 18 ABOUT THE AUTHOR This blog has been authored by Varnav Somwal, who is a 2nd year (3 Year LL.B.) student at Jindal Global Law School, Sonepat.

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