Free during Speech,not After

The case of 19-year-old Amulya Leona as well as that of Safoora Zargar has reignited the debate on the right to dissent and freedom of speech in India. Leona was arrested under sedition simply for raising slogans while Zargar was arrested, without ample evidence, for inciting riots. Moreover, the Delhi police recently filed another baseless charge-sheet against the activist Harsh Mander for inciting riots. Before talking about the current scenario, it is important that we look at this issue from a historical perspective.

The many mistakes of Congress

Members from the current ruling regime in India have now cultivated a habit of blaming the opposition, i.e. the Indian National Congress, for their own incompetence and failures. They never get tired of blaming Nehru. I personally consider this to be unproductive most of the times. In matters of free speech, however, the blame lies solely with the immediate ruling establishment in the aftermath of Independence.

For a brief period immediately after independence, freedom of speech was almost absolute in India. In 1949, Shaila Bala Devi called for a revolution in India through her Bengali leaflet “Sangram”. The government of Bihar asked her to deposit a security amount. Shaila Bala refused and took the case to Patna High Court. The court, while ruling in her favour, added that “‘if a person were to go on inciting murder or other cognizable offences either through the press or by word of mouth, he would be free to do so with impunity”. These lines were written by Justice Sarjoo Prasad.

The first amendment was watered down immediately after this incident. The original Article 19 read as follows: -

“ (1) All citizens shall have the right — (a) to freedom of speech and expression;

(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law in so far as it relates to, or prevent 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.”

In 1950, the state of Madras banned the “entry and circulation” of the Marxist Romesh Thapar’s English magazine “Cross Roads”. The Madras Maintenance of Public Order allowed the govt to censor newspapers which it deemed to be a threat to “public safety/order”. Mr. Thapar challenged the ban in the Supreme Court. While declaring the provision to be unconstitutional, the court held that freedom of speech can only be curtailed when the foundations of state are endangered or when the speech in question directly threatens to overthrow the state. The court further added that “very narrow and stringent limits have been set to permissible legislative abridgement of the right of free speech and expression”

The same reasoning was applied in the Brij Bhusan V. State of Delhi. In this case, the govt asked the RSS affiliated magazine “The Organizer” to submit all materials it sought to publish on Pakistan for scrutiny before publication. The provision was discarded by the court citing the Romesh Thapar case.

These judgements seem to have perturbed the then-ruling establishment. Thus, the government decided to amend the first amendment. In “statement of objects and reasons”, the govt specifically referenced Justice Sarjoo Prasad’s words “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.”

Thus Article 19(2)’s wordings were changed: -

“(2) Nothing in sub-clause (a) of clause (1) shall affect the
operation of any existing law, or prevent the State from making any
law, in so far as such law imposes reasonable restrictions on the
exercise of the right conferred by the said sub-clause in the
interests of 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.”

It is worth mentioning here that though the Bill was primarily bought in by Jawaharlal Nehru, it was supported by the likes of Vallabhai Patel,C Rajagopalachari and BR Ambedkar. The prominent voice opposing the bill was Shyama Prasad Mookerjee. While he was arguing against the bill, some members roared “Ask the High Courts. A person can preach murder and still go scot-free”

Shyama Prasad Mookerjee with Jawaharlal Nehru

While arguing against the first amendment, Mookerjee asked whether criticisms of foreign countries is prohibited under the pretext of maintaining “friendly relations with foreign states”. Specifically referring to Pakistan, he asked “If I hold that this partition has been a mistake and has to be annulled some day or the other, why should I not have the right to agitate for it?”. The fact that his concerns were valid was proved when Pandit Krishna Chandra Sharma responded by stating “to rise in revolt against Pakistan is to rise in revolt against the Constitution itself.”

Mookerjee’s objection turned out to be prophetic. In 2014, a documentary on Sri Lankan Civil War which details the extrajudicial killings of Tamils, failed to receive a certificate from the Central Board of Film Certification. The Board argued that it will strain “friendly relations” between the two countries.

Moreover, the Unlawful Activities (Prevention) Act passed during Indira Gandhi’s regime broadened the scope of what can and cannot be said. According to this act, any claim which “questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India’” is “unlawful”. The words “sovereignty and integrity” were also added to Article 19(2) during the Sixteenth Amendment. It seems perfectly reasonable to ask whether advocating for the reunification of India and Pakistan harms the “territorial integrity of India” or “friendly relations with foreign states”. Why should this be treated as sacrosanct?

These laws were used to justify the suppression of dissent. For instance, Nehru’s regime jailed the Leftist Urdu poet Majrooh Sultanpuri for writing a poem which compared Nehru with Hitler. Sultanpuri refused to apologize and spent two years in jail.

Nehru’s regime also used the CBFC to censor songs and movies. These songs weren’t too radical by any stretch of the imagination. They were merely expressions of disenchantment with the ruling establishment. Consider, for instance, the following lines from a censored song of the 1961 movie “Amar Rahe Ye Pyaar”: -

“God is in the heavens while we are here on earth These days,

He does not pay us much attention

Who can He send here to sift through these sands,

To figure out the condition of these teeming masses?

For there are too many people,not enough deities”

C Rajagopalachari, Patel&Nehru

Independent India had no institution to control the production of movies before 1952. Few months after independence, C Rajagopalachari wrote a letter to Home Minister Sardar Vallabhai Patel expressing his concern for a movie being prepared on the freedom movement. Rajagopalachari was afraid that it’ll serve as a “romantic attraction of crime for semi-educated people”. In his reply, Patel stated that the government had no control over movies while advising Rajagopalachari to “hint” that the movie is not ready for public exhibition. Against this backdrop, the Cinematograph Act of 1952 was introduced . Thus, the CBFC (popularly and unironically referred to as the “Censor Board”) was formed.

Sedition

One of the most peculiar aspects of the Constituent Assembly was the fact it retained the law of sedition. The likes of Gandhi, Tilak and Nehru were convicted and arrested for sedition. Yet, sedition was included as a reasonable restriction to the freedom of speech. Though Nehru did refer to sedition law as “highly objectionable and obnoxious” which needed to be discarded, his regime did nothing of the sort.

Nevertheless, in 1950, the Punjab High Court scrapped sedition stating “It is enough if one instance appears of the possible application of the section to curtailment of the freedom of speech and expression in a manner not permitted by the constitution. The section then must be held to have become void.”

The Supreme Court, however, disagreed. In 1962, Kedar Nath Singh was charged under sedition for uttering these words: -

“The people of India drove out the Britishers from this country and elected these Congress goondas to the gaddi and seated them on it. To-day these Congress goondas are sitting on the gaddi due to mistake of the people. When we drove out the Britishers, we shall strike and turn out these Congress goondas as well. These official dogs will also be liquidated along with these Congress goondas. These Congress goondas are banking upon the American dollars and imposing various kinds of taxes on the people to-day. The blood of our brothers- mazdoors and Kishanas is being sucked. The capitalists and the zamindars of this country help these Congress goondas. These zamindars and capitalists will also have to be brought before the peoples court along with these Congress goondas.”

The Supreme Court convicted Kedar Nath Singh and upheld the constitutionality of sedition.

The sedition law actually became stricter in independent India. It was only during Indira Gandhi’s regime that sedition was made a cognizable offence (i.e. one can be arrested without warrant).

The exact definition has often been broadened. In 1995, the Supreme Court hinted that mere utterance of words cannot be held as sedition. While ruling on individuals who chanted separatist slogans, the hon’ble court made it clear that sedition can only be applied when the written/spoken word causes “disturbance or semblance of disturbance of law and order or of public order or peace and tranquility”.

Subsequent regimes have used sedition to suppress dissent. The UPA regime used the law against writer-activist Arundhati Roy for supporting separatist causes. Sedition charges were slapped against an entire village for protesting nuclear plant. The present regime has also used it against JNU students and most recently in the case of Amulya Leona.

Hate Speech

Despite being a self-proclaimed secular democracy, India has a blasphemy law in the form of Sec 295A. This section forbids speech which insults religious feelings. Accompanying this is section 153A which restricts speech that promotes enmity between different groups.

In 1920s, a short book titled Rangila Rasul criticizing Prophet Muhammad was published. Unsurprisingly, this book angered Muslims. Situations became more strained when the Punjab High Court found the publisher to be “not guilty” under Sec 153A. It reasoned that insult to the Prophet is not the same as insult to the community. Under these circumstances, the British were forced to introduce Sec 295A.

Both of these laws make it extremely easy to restrict speech. Thus, it has been used to arrest people for making mild criticisms against politicians. In 2018, two individuals were booked under this section for mocking the PM.

This section has also been used to restrict movies, books and music. Many individuals have been arrested simply for criticizing and mocking religion or religious figures.

In 2018, the defence analyst Abhijit Iyer-Mitra was jailed for making a joke online that apparently hurt the religious sentiments of people.While denying him bail, the then Chief Justice Ranjan Gogoi remarked “the safest place for you would be in jail”.

The Way Out

The opposition nowadays portrays itself as an advocate of freedom of speech. This is ironic considering the fact that the Congress had no problem with these restrictive laws when it was in power. As we have seen, the Congress made good use of these laws. This is mere rhetoric. Neither the Congress nor the BJP wants a systematic change. These laws are actually extremely useful for them to suppress legitimate criticism.

Freedom of Speech in India currently doesn’t include the right to offend. According to the Maharashtra High Court, even truth is not a sufficient defence against 295A . You are required to express your opinions in a manner which doesn’t hurt the sentiments of others. The problem is that it’s not possible. The moment you express your opinions, you are bound to hurt the sentiments of some people. Why should the religious sentiments of individuals prevail over my right to speak?

Those supporting the restrictions often argue, as the likes of Rajagopalachari did, that we are a country with a semi literate population. Our people are highly religious. They will resort to violence when their religious sentiments are hurt. I find this argument to be 1) insulting to the people of India,mildly perpetuating the colonial “primitive savages” rhetoric and 2) an admission by the establishment that it can’t maintain law and order. Doesn’t the current ruling regime love to remind us that we are a tolerant country? How can we be tolerant when there are legal ways to restrict harmless speech? Why is the establishment bowing down to the violent mob? Why is “The Satanic Verses” still banned?

Freedom of speech loses its meaning if it doesn’t include the right to offend, mock and insult. It is scary that we live in a country where one can be arrested simply for raising slogans. The state must protect our speech against the mob, not the mob from our speech. While speaking against the dilution of free speech, Somnath Lehri of the constituent assembly rhetorically asked (referring to sedition): — “Does Sardar Patel want even more powers than the British Government an alien Government, an autocratic Government which is against the people — needs to protect itself?”. The same can be asked to the present ruling establishment. One can only hope,against all odds, that the BJP fulfills the dreams of its guiding light Shyama Prasad Mookerjee by undoing the damage done to India’s free speech laws.

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