Editor's Note: A nation’s legal system is integral to how its citizens look upon issues that concern the country in general and their individual lives in particular. Despite having the world’s longest Constitution — not to mention, one that has gone through numerous amendments and the many directives by the Supreme Court that have secured the stature of de facto law, the Indian law books have struggled to evolve at a pace commensurate with the rapid changes society has undergone. As the load of being archaic becomes heavier on our law system, Firstpost introduces a 10-part series titled 'Letter of the Law' to push forward the debate on legal practices and the law itself. The series will explore a variety of aspects pertaining to Indian law through opinion and analyses.
India is a democracy and citizens have a constitutionally guaranteed right to a freedom of speech and expression which they can enforce via the Indian court system. This is an axiom of Indian constitutional jurisprudence that we are taught, as lawyers, to repeat and internalise. Freedom of Speech is one of the key fundamental rights outlined in Part III of the Constitution. It finds place in Article 19(1)(a) of the Constitution along with other freedoms outlined in that Article. What immediately follows Article 19(1) is Article 19(2) which outlines "reasonable restrictions" on the rights conferred in Article 19(1)(a). Rights mentioned in Article 19 are the only major fundamental rights in the Constitution that come with strings attached to them.
Article 19(2) allows the state to make laws that restrict freedom of speech so long as they impose reasonable restrictions in the "interests of the sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence."
Laws of this nature already existed on the books, at the time of the enactment of the constitution by way of provisions in the Indian Penal Code of 1860. As a result, most of the provisions of the Indian Penal Code were not amended to give into effect the newly crystallised constitutionally guaranteed right to freedom of speech since Article 19(2) would preserve and protect their validity.
But this did not happen easily. In fact, it only happened after the new Republic ran into a spot of trouble with how the Constitution was originally enacted.
Article 19(2) as originally enacted, wasn't quite so broad in scope as Article 19(2) currently stands (see above). The original Article 19(2) said this:
"Nothing in sub clause (a) of Clause (1) shall affect the operation of any existing law in so far as it relates to, or prevents the State from making any law relating to libel, slander, defamation, contempt of court or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow the state...”
And as a result the Indian Supreme Court while dealing with one of the earliest cases concerning the right to Freedom of Speech in the case of Romesh Thappar versus State of Madras AIR 1950 124 SC, held that public order considerations cannot be justified under the security of state ground under Article 19(2) and therefore struck down a ban by the then Madras government prohibiting Romesh Thappar's Bombay-based journal from entering the state. Romesh Thappar's journal had been banned under the Madras Maintenance of Public Order Act, 1949 and the court held that the law was drafted in a broad manner and allowed for action to be taken even when there was no imminent threat of public danger. The court struck down the ban and as a result Jawaharlal Nehru felt there was an urgent need to update Article 19(2).
The Preamble to the Constitution First Amendment Act, 1951 therefore reads:
"During the last fifteen months of the working of the Constitution, certain difficulties have been brought to light by judicial decisions and pronouncements specially in regard to the chapter on fundamental rights. The citizen's right to freedom of speech and expression guaranteed by article 19(1)(a) has been held by some courts to be so comprehensive as not to render a person culpable even if he advocates murder and other crimes of violence. In other countries with written constitutions, freedom of speech and of the press is not regarded as debarring the State from punishing or preventing abuse of this freedom."
The Constitution (First Amendment) Act, amended the Constitution to bring in the "reasonable restrictions" as we know them today and also had the dual purpose of providing validity to laws that may have been void under the previous Article 19(1)(a) and 19(2) and instead held them up to the new standard, in effect, saving many such laws from being struck down by the courts. When Rajendra Prasad granted his assent to that amendment, he in effect re-introduced a situation in India where freedom of speech was restored to an almost pre-constitutional like status, where considerations of necessity would often override the freedom of the individual to express themselves.
The phrases added “public order” and “Interests of Security of the State” as were words of almost near colonial import and may have reflected the nature of the times. The unification of the states was still something that was happening and there were various movements in India calling for secession from the Union. Laws had to be enacted to take steps to prevent that from occurring.
However, if one looks beyond that veil of necessity, what one can see is a framework of administration that was operated by British civil servants was now replaced by one that was merely operated by the Indian civil servants. The overall structure of administration would continue to remain the same post the Constitution as well as prior to the Constitution with there always being a dichotomy between the government and those governed, rather than a representative democracy as outlined in the Preamble.
As opposed to the original phrases that were there which did not have the term public order and only allowed a restriction in case someone “undermined security of or attempted to overthrow the State”. Post the amendment, the government's powers in relation to speech in the interests of public order and security became much broader in scope and in fact the Supreme Court in the Kedar Nath versus State of Bihar 1962 AIR 955 SC saved sedition, as an offence, from being struck down as violating the right to free speech on the grounds that public order and national security were reasonable restriction under Article 19(2).
Which brings us to today, India ranks 133 in the world in the Freedom of the Press Index, an odd rank to occupy to be in for a democracy but a rather un-surprising one. The Government of India retains broad and near overriding control over the country's telecommunications infrastructure via the provisions of the Telegraph Act, 1885 and the Wireless Telegraphy Act, 1933. It can therefore determine who can access the internet, when they can access it, block content, stop access to services, direct the blocking of content and even monitor internet traffic. The Cable Television Network (Regulation) Act, 1995 gives the government a similar power over the cable news and the government can go as far as taking news channels off the air as a form of punishment (even though they were not able to finally implement it). This is not the mention the fact that every film screened has to go through the watchful eyes of the censor board which has to check it for content that might to deemed unsuitable for certain audiences or any audience.
Apart from the broad regulatory control over the modern modalities of expression, India also has a catena of speech related offences that still remain on the books. These offences concern the publication of material deemed to be obscene, speech or acts that could incite or offend religious sentiments (blasphemy), sedition, speech that promotes communal disharmony and even insulting another person. These laws don't just criminalise speech acts, but create a framework by which the state restricts the exercise of speech, as not all FIR's end up in a trial or conviction but they do end up in harassing the person into submitting to the will of the complainant or the state.
In the 2012 Jaipur Literally Festival, Salman Rushdie was scheduled to give a talk via video link. The entire action was completely lawful and Rushdie was free to address an audience. However, the event had to be called off because of the riotous situation that was developing on the outside as a response to Rushdie's association with the festival. The law wasn't necessarily utilised in this circumstance to directly censor a voice, however, neither was there sufficient state machinery available to enable the free exercise of that right. Something similar was seen in the case of Wendy Doniger and her book Hindus: An Alternative History. The book was not banned in India as such, however, the book was the subject matter of a defamation suit on the grounds that the book had defamed the Hindu community. This led to Penguin, the publisher, being put in a precarious situation of having to defend and prove factually the contents of a book as truth in defence to defamation charges. A publishing company should not be asked to defend itself on matters of religion and neither should all statements or books about religion be tested to the truth of an official narrative. Penguin decided to settle and withdraw the book from India. It further decided to pulp what copies remained in Indian territory.
In India, if the law is broad then the police powers are even broader, with the Code of Criminal Procedure and the various state police acts providing the police with powers to restrict assemblies, speeches and other activities on the grounds that it may create problems of "public order". It has almost reached the point, where in India in most cities you have designated spaces marked for protests and protests cannot be undertaken just about any where. To borrow the American phrase these "free speech zones" are areas where protests and assemblies can be organised after obtaining prior approvals so that the police can arrange for the appropriate security to ensure that there is no violence that erupts. It is also an efficient way of ensuring the local intelligence agencies have a quick and efficient way of keeping a tab on the political activities that are happening in their areas and the grant/denial of permission is often politically coloured.
Take New Delhi's Jantar Mantar, this Mughal archaeological site is now the venue of many a civil society protest but only the really major protests can make it to India Gate. Even then, during the protests held after the 2012 Delhi gangrape, the government resorted to closing metro stations to prevent the movement of people to the area instead of ensuring that people are able to protest in an orderly fashion. Compare that to the protests seen across the rest of the world, in particular the Occupy Central movement in Hong Kong, where protesters occupied the Hong Kong Central Business District for days on end without any interference from the police or the state machinery.
In the end, it is these police powers on the ground that create an intimidation that exists for expression in India. The police will register an FIR based on political pressure and may even lead to arrests. Once that happens, the system starts moving and it becomes very difficult for a person who is trapped in that system to find a way out. The process of trial can take years to complete and the superior courts are reluctant to quash proceedings at the initial stage as there is often a complainant or there has often been some ruckus that has arisen from a speech related act, so there is something to be determined at trial. And as far as trial is concerned, there has to be one in the first place and if there has to be a trial then under our system of laws the punishment has begun. The accused will have to get bail and present themselves in court over and over again while the police finish their investigation and once that is over the case will start and the evidence will be recorded.
This may take many months or years and then you will have arguments and a verdict. This may be appealed by either party and further appealed if needed creating a never ending process. Simply put, if you are an art student who wants to go abroad for studies, but one of your paintings at a local exhibition here offended someone and they filed a case, you may either have to choose between your academic future or your fundamental rights as there is no way the trial will finish in time for you to be able to viably have both. This is perhaps why everyone settles speech related cases in India as the process is way too painful to justify fighting the case all the way to the end.
So while there may be a constitutionally guaranteed right to freedom of speech, in practice there is a right only to limited types of speech and only in limited avenues. In India, one cannot, for example, stand at Flora Fountain in Mumbai stark naked holding a sign trying to draw the attention of the general public to global warming. But one can organise a rally of suitably dressed environmentalists at Azad Maidan. One can examine religion in their writings so long as it doesn’t hurt the sentiments of other people and one can criticise their government so long as they don’t fall within the trap of sedition. The government can turn off our internet at will and can also cut off the cable television. It is the sole owner of the medium wave and short wave broadcasting bands in India and it is the only one allowed to provide news on FM radio. Except Doordarshan, no other terrestrial channel exists in India or is permitted to exists, which means for rural India, except for government sponsored television and radio there is no other form of media that is available. The newspapers exist as the last bastion of free speech, where the law is quite settled and liberal as to what an editor can say. The law grants newspapers broad freedoms and recognises their right to report the news and comment on the affairs of the day. The problem is, in the year 2017, for the purpose of Indian law, the editor of this publication may not be treated on par with an editor of a newspaper and as India goes forward into the future, it appears that the government control will only tighten and our freedoms will only grow smaller.
Ajay Kumar is an advocate practising at the Bombay High Court. He writes about law, public affairs and culture.
Read part one: 'Intellectual property rights: Locating public interest in the law'
Read part two: 'No Democracy without the courts'