ABHINAV CHANDRACHUD
Republic of Rhetoric
Free Speech and the Constitution of India
PENGUIN BOOKS
Contents
1. The Music of an English Band
2. The Wounded Vanity of Governments
3. ‘He Who Destroys a Good Book, Kills Reason Itself’
4. Munshi’s Coup in the Constituent Assembly
5. Prasad and Mookerjee Trigger an Amendment
6. The Anti-DMK Amendment
7. Prudes and Prigs
8. Obscenity Lies in the Crotch of the Beholder
9. A Blaze of Glory for Judges
10. Nehru Calls Justice Bose Unintelligent
11. Prejudicing Mankind
12. ‘Scurrilous Satire against a Friendless Woman’
13. Shouting Fire in a Crowded Theatre
14. The Most Solemn Symbol of a Country
15. Methods of Influencing the Press
Notes
Acknowledgements
Follow Penguin
Copyright
To Radha,
the brightest star in the darkest night
1
The Music of an English Band
India became independent on 15 August 1947, the second anniversary of the
Japanese surrender during the Second World War.1 On that historic day, however,
India did not fully cast off her colonial chains. Between August 1947 and
January 1950, India was a British dominion which, like Australia and Canada,
recognized the king as her monarch and sovereign. This had not been the aim of
the freedom movement whose clarion call, for decades, had been purna swaraj
or complete independence, not dominion status. During this time, Indian
institutions derived their power from the Indian Independence Act, 1947, a
statute which had been enacted by Britain’s Parliament. Up to 1949, cases
decided by the federal court, the precursor to the Supreme Court of India, could
be appealed before the Privy Council in London.2 It was only on 26 January
1950, when the Constitution came into force,3 that India fully attained her
independence.
It was for this reason that Ambedkar said in his famous last speech in the
Constituent Assembly: ‘On 26th January 1950, India will be an independent
country’.4 It was on this day that India became a republic which was no longer
under the British monarch or Parliament. The Constitution of India made it a
point to repeal the Indian Independence Act, 1947, and the Government of India
Act, 1935,5 a powerful symbol that India no longer derived her power and
legitimacy from London.
Broadly speaking, the Constitution had two competing goals; one was to
transform India while the other was to keep things the same. Prime Minister
Nehru believed that society had to face ‘two urges, continuity and change’, and
that it had to keep these ‘evenly balanced’ in order to succeed.6 India’s
Constitution accordingly aimed to preserve a Nehruvian balance between
continuity and change. In the words of Granville Austin, the Constitution sought
to bring about a ‘social revolution’, while at the same time trying to preserve
‘national unity and stability’.7
On the one hand, the Constitution tried to bring about change and an
unprecedented socio-political transformation in India, unlike anything we had
ever seen before. For example, untouchability was formally abolished8 by the
Constitution, and public places were thrown open to all, regardless of a person’s
religion, caste or gender.9 In the colonial period, some Indians were often given
titles like ‘Sir’, ‘Rao Bahadur’, ‘Khan Bahadur’, or ‘Dewan Bahadur’, e.g., Sir
Jamshedji Kanga or Dewan Bahadur G.S. Rao. All this came to an end with the
Constitution in 1950. To this day, our Constitution tells Sachin Tendulkar that he
cannot accept a knighthood from the British monarch, unlike Sir Don Bradman.10
The Constitution sanctioned a programme of ‘reservation’ or affirmative action
for historically marginalized strata of Indian society, which is why many seats in
universities and government jobs in India continue to be reserved for members
of backward castes and tribes. India, under the British, had been a hotchpotch of
provinces and princely states. The provinces were directly governed by the
British, while the princely states were ruled by Indian princes who accepted the
suzerainty of Britain. Now, the Constitution consolidated all the princely states,
more than 500 of them, into Indian territory, as Part ‘B’ and ‘C’ states.11 Perhaps
most importantly, every adult Indian citizen, man and woman, was given the
ability by the Constitution to vote in central and state elections, regardless of
whether he or she had property or educational qualifications.12 Much of the
Constitution was therefore novel and unique.
In fact, there was a radical legislative transformation in India after
independence. British rule in India had been sustained with the collaboration of
Indian princes, landlords, and upper castes (who flocked to colonial institutions
like the Indian Civil Service). These three groups were penalized in independent
India. Landlords lost much of their land to tenant cultivators in an ambitious
programme of land reform. Princes lost their authority to rule, and eventually,
their privy purses. The upper castes can compete, in many states, for no more
than 50 per cent of the seats in educational institutions, because of caste-based
reservations. Independence did, therefore, involve a substantial break from the
past.
At the same time, however, the Constitution had another goal which sought to
preserve and maintain the status quo, to seamlessly transport the political
landscape of British India into India after independence. This goal embedded in
the Constitution attempted to preserve stability at a time of widespread partitionrelated rioting. Significant portions of the Constitution, e.g., the distribution of
legislative powers between the Union and States,13 and the power to proclaim an
emergency,14 were inspired by the Government of India Act, 1935. In the
Constituent Assembly, M. Ananthasayanam Ayyangar admitted that there was
‘some truth in (the) remark’ that the Constitution was ‘a mere copy of the 1935
Government of India Act’.15 British-era institutions like the high courts were
carried forward, and none of the judges who had served, loyally to the colonial
regime, on courts like the Bombay High Court, lost their jobs in August 1947.
Instead, many of them grew to be widely respected in India’s legal profession.16
In short, there was quite a lot in the Constitution which was designed to keep
things as they were, to maintain, as some scholars say, ‘colonial continuity’.17 As
K. Hanumanthaiya famously remarked in the Constituent Assembly: ‘We wanted
the music of veena or sitar, but here we have the music of an English band.’18
At its heart, the Constitution contained a chapter on fundamental rights. One
of these rights was the right of every citizen in India to ‘freedom of speech and
expression’, guaranteed by Article 19(1)(a) and limited by Article 19(2). It
would be quite intuitive to think that this important fundamental right belonged
to the transformative part, not the status-quo part, of the Constitution. After all,
this was perhaps the first time in India’s history that political rights inspired by
individualistic Western values,19 rights like the right to life, personal liberty and
equality, were formally recognized in a legally enforceable constitutional
document. The chapter on fundamental rights looked a lot like the Bill of Rights
of the US Constitution, or the more recent Universal Declaration of Human
Rights which had been adopted by the General Assembly of the UN a little over
a year before our Constitution came into being.
However, a closer look at its history and evolution reveals that the enactment
of the Constitution made little or no substantive difference to the right to free
speech in India. Though there was no formal document recognizing a right to
free speech in British India, Indians certainly did enjoy a common law right to
speak freely during that time. Broadly speaking, prior to India’s independence,
there were four exceptions to the right to free speech. These were: sedition (and
hate speech), obscenity, contempt of court and defamation. These continued to
be exceptions to the right to free speech after the Constitution was adopted, and
remained virtually unchanged.20
***
The law of sedition in British India was rather different from its counterpart in
England. There, since 1832, sedition was narrowly defined to mean inciting
violence or insurrection against the government. It was a ‘misdemeanour’, or
lesser offence, which attracted a sentence of imprisonment of a few years.
Misdemeanours in England were ‘bailable’ offences, meaning that a person
accused of sedition could get bail as a matter of right. Prosecutions for sedition
were rarely launched there. It was also difficult to obtain a conviction for
sedition in England because those who were accused of that offence were tried
before juries which tended to be sympathetic to their own countrymen.21
By contrast, sedition in British India, enacted in the form of Section 124-A of
the Indian Penal Code in 1870, was defined very broadly to include merely
evoking hatred, disloyalty or bad feelings against the government. It was
punishable with ‘transportation’ to an overseas prison for life. It was a nonbailable offence. Prosecutions for sedition were relentlessly launched against the
leaders of India’s freedom struggle. ‘Special’ juries, consisting of a majority of
white jurors, were deployed in the trials of those who were accused of sedition.
For example, in 1908, the prominent nationalist leader, Bal Gangadhar Tilak,
was tried and convicted for sedition at the Bombay High Court by a jury
consisting of seven white and two Parsi jurors, which unsurprisingly found him
guilty by a majority of 7-2. If Tilak had been given the right, like Englishmen, to
be tried before a jury of his own countrymen, there is no doubt that he would
have been acquitted.
On the right to free speech, sedition therefore generated a great deal of debate
in the Constituent Assembly. Members of the Assembly were keen to get rid of
sedition, which had long been used against Indian patriots. However, by virtue of
its first amendment, introduced in 1951, the Constitution did very little to limit
sedition.22 Sedition continues, to this day, to stand as part of the Indian Penal
Code. It is still repeatedly invoked against those who speak in an allegedly antinational way. Two instances come to mind in 2016 alone. Jawaharlal Nehru
University Students Union president, Kanhaiya Kumar, was accused of sedition
for allegedly raising anti-India slogans on the university campus in Delhi.
Amnesty International was similarly accused when it organized an event at
Bengaluru on human rights atrocities in Kashmir, at which anti-India slogans
were allegedly raised.23 Court rulings which declared sedition unconstitutional in
the early years of the republic were undone by the First Amendment to the
Constitution, spearheaded in 1950 by Prime Minister Nehru, who was afraid that
people would use the right to free speech to preach violent crimes, like murder
and communal rioting, with impunity. Sedition continues to be a non-bailable
offence, and it attracts a whopping maximum sentence of life imprisonment.
Though sedition now means what it did after 1832 in England, i.e., incitement to
violence and insurrection, it can’t be said that this was necessarily an outcome
brought about by the Constitution. Even prior to India’s independence, Chief
Justice Maurice Gwyer of the federal court had applied the English test of
sedition in a case, before he was overruled by the Privy Council.24
Remarkably, sedition became a ‘cognizable’ offence for the first time in the
1970s, several decades after India became independent. A ‘cognizable’ offence is
one in which a police officer may arrest the accused and investigate the case
without a warrant or direction from a magistrate. In other words, during the
British colonial era in India, a person accused of sedition could not be arrested
by a police officer without the officer first obtaining a warrant from a magistrate.
By contrast, today, a police officer may, even without a warrant from a
magistrate, arrest a person accused of sedition. This change was brought about
by the Indira Gandhi government in the 1970s, only a few years before the
Emergency was declared in India.25
***
The other exceptions to free speech recognized by the Constitution—obscenity,
contempt of court and defamation—generated little or no debate in the
Constituent Assembly. The enactment of the Constitution did not limit or whittle
down the contours of these exceptions to free speech. The standard for
determining whether something was obscene or not in British India was the
‘Hicklin test’. Developed in R. v. Hicklin by Chief Justice Cockburn, this test
permitted courts to look at isolated passages in a book in order to evaluate
whether it had any literary, non-obscene merit. In the words of one commentator,
four words could render a book of four hundred pages obscene under the Hicklin
test. This test also allowed courts to look at a work from the standpoint of the
most perverted adult or the most immature adolescent. This is starkly contrary to
other legal tests at the common law, which require courts to look at a situation
through the eyes of a reasonable person. Even after the Constitution was enacted,
however, the Hicklin test continued, for several decades, to be used by the
Supreme Court of independent India to figure out whether something was
obscene or not. Though the Hicklin test was modified by Indian courts, the
process of its modification began not with the enactment of the Constitution in
1950, but in colonial India.
Surprisingly, ‘prior restraints’, which strike against the very heart of a
constitutional right to free speech, are, under certain circumstances, considered
legal in India. A prior restraint is a form of censorship imposed before the
publication takes place. For example, if the government directs newspapers not
to publish any articles unless they are first approved by the government, this
form of censorship would be called a prior restraint. In 1823, Raja Rammohan
Roy submitted a memorial to the Supreme Court of Calcutta protesting against
the imposition of prior restraints on the press. Earlier and more famously, John
Milton had, in his 1644 pamphlet Areopagitica, protested against Parliament’s
decision to re-introduce prior restraints against the press in England, which were
eventually abolished there in 1694. However, despite the enactment of the
Constitution, the Supreme Court in the 1950s held that prior restraints were
constitutional.26
Though prior restraints are not imposed, as a matter of practice, on the Indian
press any longer (except by courts which sometimes impose gag orders on the
press), they continue to be applied against India’s film and entertainment
industry. The Censor Board in India gets to decide what scenes should be cut
from movies before they are fit for viewing, even by adults. Over the years, the
Censor Board has made some outrageous decisions. For instance, it was
responsible for changing the ending of an iconic Indian Bollywood film, Sholay,
shot in the 1970s. In the original version, one of the chief protagonists, Thakur
Baldev Singh (portrayed by Sanjeev Kumar), a former police officer, kills the
villain, Gabbar Singh (portrayed by Amjad Khan), at the end of the film. The
Censor Board directed the film’s makers to change the ending so that the
protagonists give Gabbar Singh over to the police, as the Censor Board did not
want a police officer being shown taking the law into his own hands (or, in this
case, his own legs), as it was worried about unrest during the Emergency in India
at the time.27 More recently, the Censor Board headed by Pahlaj Nihalani cut out
kissing scenes between Daniel Craig and Monica Bellucci in the James Bond
film Spectre.28 It also refused to certify that Udta Punjab, a Bollywood film
which shed light on the menace of drug addiction in Punjab, was suitable for
viewing by adults, unless certain cuts were made to the film, e.g., the deletion of
expletives and close-up shots of drugs being injected into the skin.29 Such prior
restraints should be anathema to a constitutional regime in which free speech is a
part of the bill of rights.
In the colonial era, Lord Lytton’s dreaded Vernacular Press Act, 1878, allowed
the government to demand an expensive bond from an Indian language
newspaper which could be forfeited if the newspaper published anything
objectionable. This law was repealed in 1882, and subsequent colonial era
statutes imposed a ceiling on the amount which could be demanded as a bond or
security. For example, the Indian Press Act, 1910, said that the government
could not ask a newspaper to furnish a security of more than Rs 2000, while
later, the Indian Press (Emergency Powers) Act, 1931, said that the security
could not exceed Rs 1000. However, in independent India, despite the
Constitution, Nehru’s ‘Press (Objectionable Matter) Act, 1951’ and Indira
Gandhi’s Emergency-era ‘Prevention of Publication of Objectionable Matter
Act, 1976’, mirrored Lytton’s Vernacular Press Act, by allowing the government
to demand a security from a newspaper without setting any financial ceiling on
the amount. Thus, restraints on the press imposed in independent India have
resembled those imposed on the press in colonial India, despite the existence of a
fundamental right to free speech under the Constitution.
***
In British India, a person’s speech or expression could be considered to be in
contempt of court primarily under two doctrines. The first of these was called
‘scandalizing the court’. Under this doctrine, a person who insulted a judge,
typically by saying that he was corrupt or biased, could be hauled up for
undermining the dignity of the court. The second was called the ‘sub judice
rule’, under which it was not permissible for newspapers to comment on cases
pending in court, in a manner which might have influenced jurors, witnesses or
even judges who were part of the case. Both these doctrines continue, to this day,
in independent India, despite the enactment of the Constitution. Though the
doctrine of scandalizing the court has been abolished in England, the enactment
of a fundamental right to free speech in the Constitution of India has made little
difference to this body of law here. For instance, the Supreme Court of
independent India still subscribes to the colonial notion that stories which appear
in print in India, and which lower the authority of a judge, are more likely to be
believed here because many Indians are ignorant, as against Englishmen who
may be sceptical when they read such stories. In this context, using rare archival
material, we will also see an interesting incident which took place in 1959, when
Prime Minister Nehru nearly committed contempt of court by informing
journalists at a press conference that he thought Justice Vivian Bose was ‘lacking
in intelligence’. Further, the law on contempt in the form of the sub judice rule
remains substantially similar today to what it was in the colonial period. Most of
the changes to the sub judice rule were made not with the enactment of the
Constitution in 1950, but with the coming into force of the Contempt of Courts
Act, 1971.
***
When the Indian Penal Code was enacted in 1860, it made defamation a criminal
offence. Over 150 years later, the enactment of the Constitution has, even now,
made virtually no difference to this body of law. This is for the following
reasons:
Firstly, in England, defamation was only considered criminally punishable
when it occurred through the written word, not the spoken word. This is not so in
India where spoken defamatory statements can, to this day, result in criminal
prosecutions.
Secondly, as far back as in 1837, Thomas Babington Macaulay, the chief
draftsman of the IPC, proposed that truth be made an absolute defence to
criminal defamation in British India. In other words, Macaulay believed that
when a person is accused of criminal defamation, he should be able to argue, in
his defence, that the words he spoke or wrote were true. Macaulay’s view was
far more progressive than the contemporary law in England was at the time,
which did not make truth a defence to criminal libel. However, even today,
despite the enactment of the Constitution, truth is still not an absolute defence to
criminal defamation under the IPC. It is only a defence if the person accused can
prove that the defamatory statements were made ‘for the public good’.
Thirdly, under English common law, witnesses and advocates enjoyed what is
known as ‘absolute privilege’ for statements they made in court. For example, if
a witness made a defamatory statement while giving his testimony in court, he
could not be criminally prosecuted for defamation, even if his words were
spoken with ‘express malice’. Likewise, an advocate who made defamatory
statements while arguing his client’s case in court could not be prosecuted for
criminal libel. Witnesses and advocates enjoyed absolute privilege in England
because this was good public policy—it was meant to encourage witnesses and
advocates to speak freely in court without fearing defamation cases being
brought against them. However, in India, even now, witnesses and advocates do
not enjoy absolute privilege in criminal defamation cases for making such
statements. They get only a ‘qualified privilege’, meaning that they must show,
among other things, that their statements were made without express malice.
Fourthly, a person in England could not be considered to have committed
criminal defamation unless his words were either such as to have had the
tendency to provoke a breach of the peace or, later on, unless his words were
sufficiently serious and non-trivial. On the other hand, no such limitations are
imposed under the law of criminal defamation in India.
Fifthly, since 2009, defamation has ceased to be a crime in England altogether.
However, the Supreme Court of India recently rejected a challenge to the
constitutional validity of criminal defamation under the Indian Penal Code.
Lastly, the Supreme Court of India has applied the standard adopted by the US
Supreme Court in New York Times v. Sullivan30 to statements made only against
public officials other than judges. Under this test, anyone who makes a false
defamatory statement about a public official enjoys qualified privilege—he
cannot be sued for defamation unless his statements were made with malice, i.e.
with reckless disregard for the truth. However, the Supreme Court has refused to
apply this test to cases of contempt of court involving statements made about
judges.
***
India’s Constitution also recognizes some restrictions on free speech which did
not exist in the British era. For example, the Muslim League in British India had
the right to propagate peacefully, through the electoral process, the idea that
India should be partitioned and that portions of Indian territory should secede
from India. By contrast, enacted in the 1960s, the Sixteenth Amendment to the
Constitution ensured that the DMK in the South would not be able, like the
Muslim League, to make secession from India a part of its peaceful electoral
platform. In practice, Kashmiris do not have rights to peacefully demand
secession from India, or ‘azadi’ (freedom).31
Likewise, the framers of India’s Constitution decided to give a right to free
speech and expression only to Indian citizens. This was despite the fact that
those who were not Indians had often exercised a right to free speech in British
India. In particular, Britons like Annie Besant and B.G. Horniman had helped
espouse the nationalist cause in India’s freedom movement. These two had been
a thorn in Britain’s backside, to the point that Chief Justice Norman Macleod of
the Bombay High Court once opined that they ‘ought to have been put on board
a ship long ago and sent home’.32 Horniman, as editor of the Bombay Chronicle,
was summarily deported to England in 1919.33 In recognition of Horniman’s
contribution to India’s freedom movement, Mumbai’s iconic and historic
‘Elphinstone Circle’ (previously known as ‘Bombay Green’) was renamed
‘Horniman Circle’ when India became independent.34 The memorial plaque at
Horniman Circle now reads: ‘Dedicated to the Memory of Benjamin Guy
Horniman 1873—1948 who lived and worked for the freedom of the Press in
India.’35 Yet, if Horniman has any Irish great-grandchildren surviving him today,
for some strange reason they would not have a right to free speech under India’s
Constitution. It is because of this deep distrust of foreigners that even today,
India allows foreign investment in Indian newspaper companies only up to 26
per cent, and that too with the prior approval of the government. Likewise, a
foreign news channel can only be ‘downlinked’ into India if it ‘does not carry
any advertisements aimed at Indian viewers’ and ‘it is not designed specifically
for Indian audiences’.36
Interestingly, an exception to the right to free speech was carved out in the
First Amendment in 1950, that a person cannot harm, by his speech, ‘friendly
relations with foreign states’.37 This was done because leaders like Syama Prasad
Mookerjee, president of the Hindu Mahasabha, were advocating war between
India and Pakistan and the forcible re-unification of the two countries.
In short, this book will make the case that the enactment of the Constitution
did not make a significant difference to the right to free speech here, that Articles
19(1)(a) and 19(2) belonged to the status quo aim of the Constitution, not the
transformational one. The enactment of the Constitution made merely a
rhetorical change, not a substantive one, to the right to free speech in India. This
argument has not substantially been advanced before, by any of the leading
scholars on the right to free speech in India.38
***
This book also critiques the existing state of the law of free speech in India. The
present law relating to obscenity, for example, is deeply problematic. Anything
which is sexually arousing is considered obscene. However, whether something
is sexually arousing or not is quite individualistic and subjective. In March 2013,
television channel FTV was banned for ten days because, among other things, a
programme called ‘Lingerie’ telecast at 11.30 p.m. showed women wearing
lingerie that left their ‘buttocks . . . fully exposed’.39 The government called this
‘obscene and indecent’. Likewise, in 2009, criminal proceedings for obscenity
were initiated against Bollywood celebrity couple Akshay Kumar and Twinkle
Khanna because Twinkle unbuttoned the top button of Akshay’s jeans at the
Lakme Fashion Week, a stunt for allegedly promoting Levi’s Unbuttoned line of
jeans.40 One can justifiably wonder whether incidents such as this can be
considered sexually arousing or obscene.
Justices of the US Supreme Court used to gather in the basement of the court’s
building to watch special screenings of pornographic movies involved in cases
before them, in order to determine whether they were obscene or not. Justice
Harlan, who had become nearly blind towards the end of his life, would bring
one of his law clerks to watch these movies, and the clerk would have to give
Justice Harlan a blow-by-blow account, no pun intended, of what was going on
in the movie. Justice Harlan would then exclaim, ‘By Jove, extraordinary!’41 It
was Harlan who famously wrote, in Cohen v. California,42 that ‘one man’s
vulgarity is another’s lyric’. Justice Douglas of the US Supreme Court was
similarly reported as having said that he opposed the test of obscenity because
‘to find something obscene, it has to be sexually arousing, and the older I get,
alas, the harder it is for me to become sexually aroused’.43 Further, there is no
reason why the Indian law on obscenity should be so deeply embarrassed and
uncomfortable with sexually arousing material, ignoring other, more concerning,
objections to obscenity and pornography like the well-being of the women
involved in pornographic films.
The modern-day doctrine of ‘scandalizing the court’ is unnecessarily designed
to try and maintain a good public image for the judiciary. One of the primary
justifications offered in favour of an Indian court’s power to punish contempts
that scandalize the court is that this power is necessary to protect the public, not
courts or judges. The Supreme Court has repeatedly held that powers to punish
contemnors for scandalizing the court exist in order to maintain public
confidence in courts. However, this is a weak argument. Stifling criticism of the
judiciary will not enhance public confidence in courts. A person’s faith or
confidence in a court will, after all, depend on the work that the court does, not
on what people are publicly allowed to say about it. Though no mainstream
newspaper or television channel will say that some judges in India are corrupt,44
there is, today, an inescapable public perception, perhaps a very unfair one, that
like all public officials in India, some judges too may be corrupt. The power of
the Supreme Court and the high courts to punish contemnors for scandalizing the
court cannot reach into every living room or dinner table conversation in which
the integrity of judges is occasionally, even if very baselessly, questioned. It
would be foolhardy to think that the doctrine of scandalizing the court helps
maintain an image that courts function honestly.
The powers that Indian courts exercise today for punishing contempts in the
form of scandalizing the court are also far too vast. Derogatory statements about
judges, made even outside the courtroom, which do not imminently threaten the
day-to-day functioning of the court or the administration of justice, are
punishable on the questionable theory that they might impair public confidence
in the judiciary. This perhaps goes a little too far. As Justice Douglas said, judges
are supposed to be ‘men of fortitude, able to thrive in a hardy climate’. In the
words of a past chief justice of England, uttered in around 1974, ‘Judges’ backs
have got to be a good deal broader than they were thought to be years ago.’45
Recently, the Supreme Court created history by issuing a contempt notice against
a former Supreme Court judge, the intemperate and irreverent Justice Katju, and
by sentencing a sitting high court judge, Justice C.S. Karnan, to six months’
imprisonment, for committing contempt of court.
In the end, it is India’s cultural norms, not its Constitution, which determine
the contours of free speech. ‘Insults’ to national honour are not tolerated here,
and religious sentiments can be hurt far too easily. In the bargain, oddly
complicated rules govern how India’s national flag may be displayed. For
instance, the Flag Code says that the flag must fly at half-mast when the chief
justice of India passes away, but not when a judge of the Supreme Court passes
away. Ironically, rules governing India’s national flag make it illegal for a person
to inscribe the words of Article 19(1)(a) of the Constitution on the flag. In 2016,
the Supreme Court passed an odd interim order directing all theatres to
mandatorily play the national anthem before screening films, and for all
spectators to stand while it was being played. That very year, San Francisco
49ers’ reserve quarterback Colin Kaepernick raised a furore in the US when he
refused to stand for the American national anthem before a football game, to
protest police brutality against African Americans, as part of the Black Lives
Matter movement. Others followed his example. Our Supreme Court’s order
deprives Indians of a similar right to protest, while ignoring the famous words of
Justice Robert H. Jackson of the US Supreme Court: ‘Compulsory unification of
opinion achieves only the unanimity of the graveyard.’
Government servants have very limited rights to free speech. In some high
courts, it is informally expected that when a lawyer is elevated to the Bench, he
must delete his Facebook account, because judges are expected not to engage
with social media.
There are also other systemic problems which have a chilling effect on speech
and expression in India.
The first of these is that the law of free speech in India is essentially criminal
law, and being involved in a criminal case here is a particularly unpleasant
experience. Sedition is a ‘cognizable’ and ‘non-bailable’ offence. This means
that if a person files a complaint46 with the police against you and says that you
have committed the offence of sedition, the police have the power to arrest you
without a warrant from a magistrate, and you need to approach a court in order
to get bail.47 The court may or may not, at its discretion, grant you bail, i.e., bail,
in such cases, is not a right. The police may arrest you on Friday evening, which
in many cases means that you can only get bail on Monday. The prospect of
being arrested and of spending a few nights in police custody is an incredible
disincentive against saying anything which might be considered even remotely
anti-national, let alone seditious. On the other hand, obscenity and defamation
are bailable offences. This means that if the police arrest you, you can be let off
on bail without approaching a court. However, a criminal case in India takes a
long time to conclude. Being slapped with a charge of obscenity or defamation
in India is like having a lifestyle disease. One cannot get rid of it anytime soon,
and one has to learn to live with it, to make day-long visits to the subordinate
court, every now and then, for several years, if not decades. At a function held at
Kochi in December 2008, politician Shashi Tharoor interrupted the singing of
the national anthem and asked members of the audience to sing the anthem by
placing their hands on their chests in the manner that Americans sing their
national anthem. A criminal complaint was filed against him, alleging that he
had insulted the national anthem. It was only about five years later, in 2013, that
an additional chief judicial magistrate discharged Tharoor.48
Secondly, the right to free speech under the Constitution is only available
against the government, or its instrumentalities or agencies.49 This is a Western,
libertarian idea, that it is the government—a ‘Leviathan’ or behemoth—which
constitutes the greatest threat to the liberties of the individual and from whom
the individual needs to be protected. However, in modern-day India, rights such
as the right to free speech can be smothered by private bodies as well. Thus, if
the government tells you that you can’t hold up a sign which says ‘Please elect
Mr X’, you could invoke your fundamental right to free speech and challenge the
government’s decision. However, if your private employer threatens to dismiss
you from service if you hold up a sign which says so, you cannot invoke the
fundamental right to free speech, because such rights are only available against
the government and its instrumentalities. This is particularly problematic in a
place like India where threats to free speech often come from private, non-state
actors. India’s most famous painter, M.F. Hussain, lived out his last days in selfimposed exile, because of death threats he received from vigilante groups in
India—groups that were offended by his nude paintings of Hindu goddesses50—
despite a decision of the Delhi High Court quashing warrants of arrest and
summoning orders issued against him.51 Bollywood film director Karan Johar’s
movies have repeatedly been targeted by a right-wing Hindu political party in
Maharashtra. Movie theatres were allegedly vandalized by members of this party
because one of Johar’s movies referred to the city of Mumbai as ‘Bombay’, or
because another had a Pakistani actor cast in it. In February 2017, Ramjas
College in Delhi had invited speakers who allegedly held anti-national views to
their seminar, ‘Cultures of Protest’. The seminar had to be cancelled allegedly
because members of the Akhil Bharatiya Vidyarthi Parishad (ABVP), a studentrun political party,52 engaged in violence to protest the event. The fundamental
right to free speech is meaningless against vigilante groups.
***
Of course, that is not to say that we do not have any right to free speech and
expression in India. Over the years, there have been several cases in which
judges of the Supreme Court have admirably defended the right to free speech.
In the 1980s, for example, three young children were expelled from their school
in Kerala because, being Jehovah’s Witnesses, they refused to sing the national
anthem, though they stood up respectfully while it was being sung. Justice O.
Chinnappa Reddy directed the school to re-admit the students, and added: ‘Our
tradition teaches tolerance; our philosophy preaches tolerance; our Constitution
practises tolerance; let us not dilute it.’ When an obscenity case was filed against
Raj Kapoor for his film Satyam, Sivam, Sundaram, Justice V.R. Krishna Iyer
wrote that the ‘world’s greatest paintings, sculptures, songs and dances, India’s
lustrous heritage, the Konaraks and Khajurahos, lofty epics, luscious in patches,
may be asphyxiated by law, if prudes and prigs and State moralists prescribe
paradigms and proscribe heterodoxies.’ When Booker Prize-winning author
Arundhati Roy was hauled up for contempt of court by the Supreme Court,
Justice S.P. Bharucha wrote that ‘the Court’s shoulders are broad enough to
shrug off (her) comments’.53 More recently, in Shreya Singhal v. Union of
India,54 Justice Nariman struck down Section 66-A of the Information
Technology Act, 2000, which made annoying, inconvenient or insulting posts on
Facebook criminally punishable. ‘Mere discussion or even advocacy of a
particular cause howsoever unpopular’, said Justice Nariman, cannot be
prohibited by law. ‘It is only when such discussion or advocacy reaches the level
of incitement that Article 19(2) kicks in.’
There are several similar examples where the high courts in India have stood
up for the right to free speech. In 2014, for example, the comedy group All India
Bakchod (AIB) held a no-holds-barred ‘roast’ of two Bollywood celebrities in
Mumbai. True to any roast, their stand-up comedians used extreme language in
their comedy routine. When the video of the event was uploaded on YouTube,
some police complaints were filed, alleging obscenity, against not merely the
stand-up comedians who were on stage at the event, but also against some
celebrities who were merely sitting in the audience and laughing or cheering.
The Bombay High Court directed the police not to take any coercive steps, like
arrest, against the accused.55 Likewise, in 2015, the Calcutta High Court awarded
compensation to Ambikesh Mahapatra, a professor of Chemistry, who was
arrested by the police in West Bengal for merely circulating a cartoon which
lampooned the chief minister of the state.56 There are many other such examples,
and it certainly cannot be said that Indians do not enjoy any right to free speech
whatsoever. However, this book will suggest that when one looks at the
exceptions to the right to free speech which exist today, the conclusion one
arrives at is that the enactment of the Constitution in 1950 made little substantive
difference to our right to speak freely.
2
The Wounded Vanity of Governments
This chapter examines the law of sedition as it stood in British India prior to the
enactment of the Constitution.1 We will see that the law in British India was
inherently designed to stifle dissent and discriminate against the ‘vernacular’ or
Indian language press. The law of sedition made it a criminal offence to merely
evoke bad feelings against the government, unlike its contemporary counterpart
in England where only serious incitements to insurrection or violence were
punishable. In England, a seditious libel was a ‘misdemeanour’2 or minor
offence, which attracted a maximum sentence of two years’ imprisonment, while
in British India a person convicted of sedition could be sent off or ‘transported’
to an overseas prison for life. Misdemeanours in England were historically what
we would now call ‘bailable’ offences (i.e., offences where an accused had a
right to be released on bail pending the trial)3, but sedition was made a nonbailable offence under the Indian Penal Code (IPC), thereby subjecting the
liberty of a person accused of sedition to the discretion of a magistrate. In
England, only a unanimous jury verdict could convict a person of the crime of
sedition, whereas in British India, jury verdicts were not required to be
unanimous. In fact, the prominent nationalist leader, Bal Gangadhar Tilak, was
repeatedly convicted by a non-unanimous jury, which would have been
insufficient to sustain a conviction in England. Sedition cases were often tried by
‘special juries’ where the majority of jurors were white, and so Indians who were
accused of sedition were denied a right to be tried by their peers and
contemporaries. Colonial courts presumed that readers of ‘vernacular’
newspapers were ignorant and unintelligent, that they were therefore more
readily susceptible to seditious writings. Regrettably, much of this has not
changed in independent India, and the enactment of the Constitution in 1950 has
made little difference to the law of sedition.
English Law: Direct Incitement
The IPC was enacted in the year 1860. At the time, there was a sharp distinction
in England between the law of sedition on the books and the law in action. The
law on the books was that a person was considered to have committed a crime if
he uttered4 or published5 words with a ‘seditious intention’, meaning ‘an
intention to bring into hatred or contempt, or to excite disaffection’ against the
crown or the government, or to ‘excite’ the citizenry to ‘attempt otherwise than
by lawful means, the alteration of any matter in Church or State’, to ‘raise
discontent or disaffection amongst Her Majesty’s subjects’, or even to ‘promote
feelings of ill will and hostility between different classes of such subjects’.6 In
other words, the official definition of sedition under English law at the time of
the enactment of the IPC was an incredibly broad and extensive one. It did not
require the seditious words to have any likelihood or tendency to produce
insurrection, rebellion or public disorder, or to bear any imminent causal
connection with these. Even hate speech was covered within its ambit.
However, in practice, the law of sedition in England had been substantially
watered down.7 Since 1832,8 it was only direct incitements to commit offences
against the State which were considered punishable under the law of sedition in
England. According to Sir James Fitzjames Stephen, the law member of the
Viceroy’s Council who would eventually introduce sedition to India, there had
been a ‘change of public sentiment as to the free discussion of political affairs’ in
England, which had ‘practically rendered the law as to political libels
unimportant’. Since 1832, he said, prosecutions for sedition in England had been
‘so rare that they may be said practically to have ceased’.9 In short, at the time
that the IPC was being enacted in India in 1860, while the definition of sedition
in the law on the books in England was a very vast and substantial one, in action
the law of sedition was rarely invoked in England, if at all.
Sedition in England was a ‘misdemeanour’ or a minor10 offence, which
attracted a typical sentence of two years’ imprisonment,11 as distinguished from a
‘felony’ or ‘treason’, which were serious offences that attracted harsher
penalties. Misdemeanours were historically what we would now call ‘noncognizable’ (meaning, a police officer could not arrest a person accused of a
misdemeanour or investigate the case without a warrant or direction from a
magistrate)12 and ‘bailable’ (meaning, a person arrested in connection with a
misdemeanour was entitled, as a matter of right, to be released on bail pending
the trial, and his bail was not dependent on the discretion of a criminal court)
offences.13 In all criminal cases, including cases involving sedition, juries in
England consisted of twelve jurors who had to return a unanimous verdict.
Stephen considered the unanimity rule to be so ‘essential’ that he opined that the
jury system itself should be abolished if this rule were to be done away with.14
Macaulay’s 1837 Draft
The IPC was drafted by a Law Commission which was composed of four
members.15 The most influential of these was a man called Thomas Babington
Macaulay, who, in 1835, had patronizingly written that ‘a single shelf of a good
European library was worth the whole native literature of India and Arabia’.16
Two years later,17 Macaulay prepared a draft of the IPC. Section 113 of
Macaulay’s draft made it an offence for any person to ‘excite feelings of
disaffection to the government’, though making critical yet ‘obedient’ and
respectful comments on government measures did not attract any penalties.18
Macaulay’s draft of Section 113 was different from the actual law of sedition,
in practice, in England. It did not, for instance, restrict prosecutions for sedition
to only those cases where there had been a direct provocation to disorder. It did
not say that prosecutions were meant to be very rare. The offence of sedition
attracted the enormous maximum sentence of banishment for life, though a
seditious libel was a mere misdemeanour in England.19 However, the formal,
broad English law of seditious libels was not incorporated wholesale into the
Section either. In other words, Macaulay did not say in his draft that the offence
of sedition included merely bringing the government into hatred or contempt. In
his notes on the IPC, Macaulay wrote:
An attack made, in good faith, on the public administration of the Governor
of a Presidency, will in no case be a defamation. But if the author of it
designed to inflame the people against the government, he will be liable to
punishment under clause 113.20
Macaulay’s draft of the IPC took several decades to become law in British India
—his draft was prepared in 1837, but the IPC was enacted in 1860. In the
meantime, in 1846, the Indian Law Commission presented its second report on
the IPC to the Governor-General in Council, and in it several members of the
Law Commission recorded notes of dissent against the section dealing with
sedition. One member,21 for example, said that the definition of sedition was
vague, and he was concerned that even ‘trivial slander against the government’
could be met with ‘enormous severity’, as the offence of sedition was punishable
with banishment for life and an unlimited fine. Another22 thought that as a matter
of policy, ‘every government should avoid punishing mere words, unless such be
accompanied by acts injurious to the interests of the State.’ For him, the
proposed law of sedition in India was ‘a direct attack on the public press’.
Likewise, yet another member23 considered Section 113 to be ‘wholly
indefensible’.
The majority of the membership of the Law Commission, on the other hand,
endorsed Macaulay’s draft of sedition. They opined that it was necessary to
bring both written and verbal words into the definition of sedition, even though
verbal communications tend to be more ephemeral in nature, because
disaffection against the government could be ‘effected more easily, more
suddenly, and therefore more dangerously, by an inflammatory declamation on a
popular topic, addressed to a multitude by a skilful orator, than by the circulation
of written or printed papers.’ According to them, ‘Mere vague words spoken at
random’ were not to be penalized under the law of sedition. What was to be
punishable was:
[W]ords of advice, direction or persuasion, tending to excite the people to
whom they are addressed to a degree of disaffection incompatible with a
disposition to render obedience to the lawful authority of the government . .
. and spoken under circumstances indicating a design to cause such
excitement, or under circumstances from which the speaker must have
known it to be likely that the words spoken by him would cause such
excitement.24
Stephen’s 1870 Amendment
For some reason, however, Section 113 of Macaulay’s 1837 draft of the IPC did
not make it into the final version of the law that was enacted in 1860. The
official explanation for this was that Section 113 had been left out of the IPC by
mistake, that somebody had blundered while drawing up the final draft. Ten
years later, in August 1870,25 the law member of the Viceroy’s Executive
Council, Sir James Fitzjames Stephen, introduced a Bill to amend the IPC and to
bring Macaulay’s Section 113 into the code’s fold.26 While doing so, Stephen
said that sedition had been left out of the IPC due to ‘some unaccountable
mistake’. However, it is quite possible that Section 113 of Macaulay’s draft was
left out of the IPC in 1860 because it was incompatible with the contemporary
law of sedition, in practice, in England. This is apparent from the fact that
Macaulay’s draft of Section 113 was subsequently revised by law member
Barnes Peacock to bring it more in line with the English law of sedition.
Peacock’s draft of Section 113, which was never enacted, made sedition an
offence only where it incited others to commit acts of violence or resistance
against the state. His draft penalized speech which made others develop ‘such
feelings of disaffection’ against the government ‘as are likely to induce . . . them
to resist or disobey the lawful authority of the Government of India’ or ‘to break
the peace or to violate the law’.27
In fact, in leaving out Section 113 of Macaulay’s draft, one wonders whether
the framers of the IPC in 1860 were concerned about the possibility of the IPC
being considered a source or precedent for the drafting of a similar criminal code
in England itself.28 After all, England did not have an English Penal Code.29
While introducing the Bill to the Council of the Governor-General, Stephen
said that Section 113 of Macaulay’s draft did not penalize any criticism of
government measures, ‘however severe and hostile’, or ‘disingenuous, unfair,
and ill-informed it might be’. It was only when the writer or speaker directly or
indirectly suggested or intended to produce the use of force among his listeners
that the offence was attracted. However, Stephen cautioned the Council that
sometimes, language ‘temperate in itself’, when ‘addressed to an excited mob’,
might ‘produce forcible resistance to authority’, and that this must be taken into
account while understanding the meaning of sedition.
In November 1870, the Bill was taken up for consideration by the Council.30
Stephen disingenuously argued in the Viceroy’s Council that the definition of
sedition ‘embodied . . . improved and condensed’ the existing English law on the
subject. He omitted to mention, as he would in his own book on the history of
English law, that since 1832, the English law of sedition in action had been
applied very rarely, only to prohibit direct incitements to disorder. Instead, in the
Viceroy’s Council, Stephen merely expressed a hope that the law of sedition
would be reasonably administered in India. He said that defamation constantly
took place in modern day-to-day life, for example at dinner table conversations
in Calcutta, but that the criminal law of defamation under Section 499 of the IPC
was reasonably administered. Likewise, he said, the law of sedition in India
would also be reasonably administered.
In his concluding remarks on the Bill, Stephen offered hints that the reason
sedition was now being introduced into the IPC was because of fears of a
Wahabi conspiracy in British India. Stephen referred, in his speech, to a man
who had preached ‘jehad or holy war against Christians in India’. The man had
been in the habit ‘for weeks and months and years, of going from village to
village, and preaching in every place he came to that it was a sacred religious
duty to make war against the Government of India’. There were eight other men
in Patna, said Stephen, who had been found engaging in similar activities.
Stephen felt it necessary to clarify that ‘the government . . . had no suspicions of
the Muhammadan community as such, and knew how to distinguish between the
rash opinions of a small and obscure sect, and the sentiments of the vast
Muhammadan population’. This was not a mere passing reference. In a speech
made to the Council of the Governor-General in 1898, the lieutenant governor of
Calcutta said that anybody who remembered the conditions in 1870 and who had
carefully read Stephen’s speeches would know that ‘what the government had in
its mind at that time was the Wahabi conspiracy and the open preaching of jehad
or religious war against the government’.31 In short, it was the fear of a religious
uprising of Muslims in India, the fear of Muslim preachers advocating jehad
against the British colonial regime in India, which finally resulted in the law of
sedition being introduced into the IPC.
Section 113 of Macaulay’s draft was thus introduced as Section 124-A of the
IPC. Interestingly, since the very beginning, the offence of sedition could not be
tried upon a purely private complaint, and a prosecution had to be sanctioned by
the government,32 a provision which continues to this day.33 Though sedition was
made what we would now call a non-cognizable offence, it was also made nonbailable, though misdemeanours in England, as we have seen, were historically
bailable.
Bangobasi and Kesari
Section 124-A of the IPC remained dormant for two decades. The first known
case on the law of sedition in India was Queen Empress v. Jogendra Chunder
Bose,34 decided by the Calcutta High Court in August 1891. The proprietor,
editor, manager and printer of a weekly Indian language newspaper called
Bangobasi was prosecuted for some articles which had appeared in its pages.
The articles had strongly opposed the Age of Consent Bill which was being
hotly debated at the time.35 The Bill had sought to raise the age of consent at
which Indian girls could be subjected to sexual intercourse from ten to twelve.36
This was a very fiercely contested move which created a huge controversy in
British India because conservative Hindus viewed this as foreign interference
with their religious practices. Bangobasi criticized the Bill in harsh terms. It
wrote:
The English ruler is our lord and master, and can interfere with our religion
and usages by brute force and European civilization. The Hindu is
powerless to resist . . . 37
The case came up for trial before Chief Justice W. Comer Petheram. In his
charge to the jury, Petheram explained that disaffection meant ‘a feeling contrary
to affection, in other words, dislike or hatred’.38 For Petheram, sedition occurred
where a speaker used words ‘calculated’ and with intent to create in the minds of
the listeners ‘a disposition not to obey the lawful authority of the government, or
to subvert or resist that authority’. The jury was unable to reach a unanimous
verdict, and to his credit, Petheram refused to accept any non-unanimous verdict
in a case involving sedition. The jury was consequently discharged and the case
was held over for the next sessions. This is despite the fact that under the law of
criminal procedure in British India, juries were to consist of a maximum of nine
jurors only (as distinguished from twelve in England), and jury verdicts did not
have to be unanimous. The accused was let out on bail.39 It seems that the case
was eventually dropped.
Though Section 124-A was inserted into the IPC for fear of Muslim preachers
advocating jehad or a holy religious war against the colonial government, the
first person to have been convicted of the offence was not a Muslim preacher,
but a prominent Hindu nationalist leader, Bal Gangadhar Tilak, in Queen
Empress v. Bal Gangadhar Tilak.40 Tilak was the publisher, proprietor and editor
of a weekly Marathi newspaper, Kesari, in Poona. The newspaper had carried an
article called ‘Shivaji’s Utterances’. In it, the paper had resurrected the
seventeenth-century iconic Hindu king Shivaji, and recorded Shivaji’s putative
laments at the existing state of affairs in India. In the article, Shivaji was said to
be in heaven and had awoken. He said:
I delivered the country by establishing ‘swarajya’ . . . Alack! What is this? I
see a fort has crumbled down . . . Alas! Alas! I now see with (my own) eyes
the ruin of (my) country . . . What a desolation is this! Foreigners are
dragging out Lakshmi violently by the hand by (means of) persecution.
Interestingly, the law report in which the case was published provided a footnote
explaining that the word ‘swarajya’ means ‘Literally, “one’s own government”,
native rule’. The article contained no direct incitement to disorder, and it would
have failed to meet the test for securing a conviction under the law of sedition in
England as it stood after 1832.
Justice Arthur Strachey of the Bombay High Court delivered a controversial
charge to the jury.41 Strachey’s definition of sedition was enormously broad. He
said that disaffection meant ‘the absence of affection’ (which was an obvious
mistake)42, that it meant ‘hatred, enmity, dislike, hostility, contempt, and every
form of ill will to the government’. For him, disaffection also meant ‘every
possible form of bad feeling to the government’, and that the ‘amount or
intensity of the disaffection’ was ‘absolutely immaterial’ except in dealing with
the question of sentencing. He decided not to refer to ‘the English law of
seditious libel’. Strachey found that sedition did not require a person to excite or
attempt to excite ‘mutiny or rebellion, or any sort of actual disturbance, great or
small’. Likewise, whether any actual ‘disturbance or outbreak was caused’ by the
speaker was immaterial. Even if the speaker ‘neither excited nor intended to
excite any rebellion or outbreak or forcible resistance to the authority of the
government’, he could still be convicted of sedition.43
Strachey instructed the jury that a person could not be convicted under Section
124-A for criticizing any measure of the government, but he could if his writings
were considered ‘an attack not merely upon . . . measures . . . but upon the
government itself, its existence, its essential characteristics, its motives, or its
feelings towards the people’.44 For Strachey, it was perfectly fine for a person to
criticize measures adopted by the government, but if he went beyond this, and
‘(held) up the government itself to the hatred or contempt of his readers—as for
instance, by attributing to it every sort of evil and misfortune suffered by the
people, or dwelling adversely on its foreign origin and character, or imputing to
it base motives, or accusing it of hostility or indifference to the welfare of the
people’, then the person was guilty.45 Further, Strachey added that not all
criticisms of government measures were permissible. A person who criticized
the government’s measures in ‘violent and bitter’ terms, ‘accompanied by . . .
appeals to political or religious fanaticism’, or addressed his remarks ‘to ignorant
people at a time of great public excitement’, such that readers ‘would carry their
feelings of hostility beyond the government measures’, and if this was the
writer’s intent gauged from the ‘writing as a whole’, then this would constitute
sedition.46 The jury was also required to look at the ‘articles as a whole, giving
due weight to every part’, and not to ‘isolated passages or casual expressions
without reference to the context’.47
‘The particular class of persons’ among whom the articles were circulated was
also to be regarded. ‘[I]t would be idle and absurd’, he informed the jury, ‘to ask
yourselves what would be the effect of these articles upon the minds of persons
reading them in a London drawing-room or in the Yacht Club in Bombay’. The
jury was not to bear in mind ‘Englishmen or Parsis or even many cultivated and
philosophic Hindus’, but ‘Hindus, Marathas, inhabitants of the Deccan and the
Konkan’, who were readers of the Kesari.48
Thus, the fact that Tilak was writing in Marathi was taken to mean that his
audience was ignorant and unintelligent. This was a recurring theme in the
sedition cases. Interestingly, one commentator in 1898 wrote in the Law
Quarterly Review in England that Tilak’s influence was likely to be ‘wider than
the number of copies [of his newspaper which were] printed’ because ‘it appears
to be customary for Hindoos to gather round the village schoolmaster and listen
while he reads the news’.49
In short, Strachey’s charge to the jury cast sedition in such broad terms that he
stopped short only of instructing the jury to convict Tilak outright.
Unsurprisingly, the jury returned a verdict of guilty, and Tilak was sentenced to
eighteen months’ rigorous imprisonment, though he was released after a year.50
Strachey’s charge to the jury was then affirmed in appeal by the Privy Council.51
Importantly, the jury in Tilak’s case voted by a majority of 6-3, a nonunanimous verdict which would have been insufficient for convicting a person of
sedition in England. The jury was also comprised of a majority of white jurors:
six Europeans and three Indians.52 Though the Criminal Procedure Code53
typically gave Indians the right to be tried by a jury consisting of a majority of
Indian jurors,54 some cases, determined by the government and the trial judge,
could be tried by a ‘special jury’.55 A list of special jurors for this purpose was
prepared consisting of the names of those who were considered fit to serve as
such, regard being had to their ‘property, character and education’.56 Special
juries invariably had a majority of non-Indian jurors on them. Had the juries
been Indian majority juries, it would have been very difficult for the colonial
government to sustain prosecutions for political offences like sedition.57
Tilak’s case had attracted a great deal of attention and a large number of
Indian journalists had gathered in the court-room to witness the proceedings, but
there were insufficient chairs for all of them to be seated. It is said that when
they took this matter up with the clerk of the crown, the official remarked that
they should all take their seats in the dock, i.e., alongside Tilak as criminals.58
The law of sedition came up for consideration, once again, before the Bombay
High Court in Queen Empress v. Ramchandra Narayan.59 The two persons
accused were the editor and proprietor of a newspaper called Pratod, printed in
Satara. The newspaper had carried an article entitled ‘Preparations for Becoming
Independent’. It spoke of Canada and Canadians in the following terms:
Though they are subject to the British people, they are not effeminate like
the people of India. It is not their hard lot to starve themselves for filling the
purse of Englishmen. They are not obliged to pay a pie to England . . . We
have become so callous and shameless that we do not feel humiliation while
we are laughed at by all nations for losing such a vast and gold-like country
as India.
It was held that sedition consisted of producing ‘hatred of government as
established by law’, of exciting ‘political discontent’, and of ‘(alienating) the
people from their allegiance’.60 Disregarding, once again, the law of sedition in
England, it was held that a speaker commits sedition if he excites disaffection
even if he ‘(insists) upon the desirability or expediency of obeying and
supporting government’.61 Reading the articles in question, the court found that
their object was to make the readers of the Pratod ‘impatient of their allegiance
to a foreign sovereign’ and to ‘(create) in them the desire of casting off their
dependence upon England’.62
Apart from the Calcutta and Bombay High Courts, the Allahabad High Court
had the opportunity of considering the law of sedition in Queen Empress v. Amba
Prasad.63 The accused, Amba Prasad, was the proprietor, editor and publisher of
a newspaper called Jami-ul-ulam. The paper had carried an article called ‘Azadi
band hone se kabal namuna’. It was held that sedition was any excitement of or
attempt to excite ‘feelings of hatred, dislike, ill will, enmity or hostility towards
the government established by law in British India’. Disaffection and ‘disloyalty’
were held to be synonymous.64
In short, the judgments of the Calcutta, Bombay and Allahabad High Courts
did what Macaulay’s draft had stopped short of doing. They incorporated the
broad, formal English law of sedition, as it existed prior to 1832, wholesale into
the IPC.
The 1898 Amendment
In 1898, the IPC was amended and Section 124-A was completely replaced by a
new Section.65 The amendment endorsed the interpretation of sedition adopted
by the Calcutta, Bombay and Allahabad High Courts. Macaulay’s draft had not
specified that promoting feelings of hatred, contempt, or enmity towards the
government constituted sedition. His draft had merely used the vague word
‘disaffection’. It was the Calcutta, Bombay and Allahabad High Courts which
had read these words into Section 124-A, incorporating the English law of
seditious libels, as it existed prior to 1832, into the IPC. Now, the 1898
amendment sought to sanction this interpretation.
While introducing the Bill to the Governor-General’s Council, law member
Chalmers said that the section drafted by Macaulay was ‘not a model of clear
drafting’, that the offence of sedition needed to be expressed ‘in clearer and less
equivocal terms’. He said that though the Calcutta, Bombay and Allahabad High
Courts had interpreted the section correctly, in accordance with English law (i.e.,
the formal law of sedition on the books in England, which only reflected the
English law in action prior to 1832), their decisions were not binding on the
other high courts in British India.66
When the Bill was referred to the Select Committee, some members raised
objections against the amendment. In his minute of dissent, P. Ananda Charlu,
who had served as president of the Congress in 1891,67 wrote that words like
‘hatred, contempt and enmity’ were ‘vague, misleading and obscure’, that they
would result in ‘virtually stifling all frank discussion of public questions’. He
wanted the sentence of transportation to be taken out from the section. Charlu
also rightly doubted whether the amended section accurately reflected the
current state of the law in England. Likewise, in another minute of dissent,
Lakshmishwar Singh, prince of Darbhanga,68 wrote that words like ‘hatred and
contempt’ were ‘superfluous’. He added that the section was ‘far too
comprehensive’, fearing that it could be used to ‘punish a journalist or a public
speaker who is only guilty of using indiscreet language calculated at most to
give rise to trifling feelings of irritation’.
After being referred to the Select Committee, the IPC Amendment Bill was
extensively debated by the Governor-General’s Council in February 1898.69 Law
member Chalmers supported the Bill with the following words, reminiscent of
the ‘shouting fire in a theatre’ test which would later be used by American
Supreme Court Justice Oliver Wendell Holmes to describe proscribed speech:
If I smoke a cigar on the maidan it pleases me, and it hurts no one else. If I
smoke a cigar in the powder magazine of the Fort, I endanger the lives of
many and do an act well deserving punishment. Language may be tolerated
in England which it is unsafe to tolerate in India, because in India it is apt to
be transformed into action instead of passing off as harmless gas.
Rejecting the English law on the subject, Chalmers did not think that an ‘appeal
to force’ was necessary to constitute the offence of sedition. He said that oral
sedition was even worse than written sedition because ‘it operates more directly
on the ignorant, and therefore the dangerous, classes’. Chalmers then explained
that the English law on seditious libels could not be transposed into India
because:
In legislating for India we must have regard to Indian conditions, and we
must rely mainly on the advice of those who speak under the weight of
responsibility and have the peace and good government of India under their
charge.
In the debate in Council, Charlu (who had earlier written a minute of dissent in
the Select Committee) provided a strong response to Chalmers’ allusion to
smoking on the maidan.70 He called into question Chalmers’ belief that all of
British India was akin to a powder magazine and said:
In the first place, I ask what right has [Chalmers] to deny to any one the
right to smoke, even in a powder magazine? Any one that does so takes the
risk of doing so. It is his lookout. So long as he takes care not to throw
away the stump carelessly in the powder magazine and controls the sparks
from escaping, what does it matter? Why should he lose his right? In the
second place, let us remember how wide [Chalmers’] powder magazine is.
It is, according to him, as wide as the whole country; the bulk of the
population who are said to be ignorant, credulous and highly
impressionable constitute his inflammable material. One may well ask then,
where is that ‘maidan’ to smoke in? Evidently there is no space left in the
country for it to be represented.
The lieutenant governor said that in India it would be impossible to accept the
English law test of direct incitement to violence. He added that educated Indians
who were unable to find jobs had become ‘discontented, disobedient, and
sometimes troublesome young men’ who had taken to engaging in seditious
writings. Adapting Caliban’s speech from Shakespeare’s The Tempest, he said:
‘We taught them language, and their profit on it is, they know how to curse.’
On 18 February 1898, the motion to pass the Bill was put to vote, and the Bill
became law.71 In substance, the amendment formally achieved the wholesale
incorporation of the pre-1832 English law of seditious libels into the IPC. While
Macaulay’s draft had merely used the word ‘disaffection’, words like hatred,
contempt, disloyalty and enmity were now used to define the law of sedition in
India. Sedition under Section 124-A was now defined to include bringing the
government into ‘hatred or contempt’, exciting ‘disaffection’ (including
‘disloyalty and all feelings of enmity’) against the government. Unlike the
contemporary English law, it was now beyond doubt that a direct incitement to
violence was not necessary in order to constitute the offence of sedition in
British India. Further, there was no statutory language to indicate that
prosecutions under the section would be as rare as they were under the law of
seditious libels in England.
Strachey’s Tests Followed in Colonial India
In the coming decades, the definition of sedition remained much the same, and
the test laid down by Justice Strachey was followed quite extensively. At the
hands of the high courts, sedition came to acquire the following key ingredients:
1. Presumed Intent: A person committed sedition if his intent was to commit
sedition. This was despite the fact that the words of the Section themselves
did not speak of intent. However, what a person intended was largely a
question of law, not fact, to be gathered mostly by reading and construing
the words used by the person. A speaker was presumed to have intended the
‘natural result of the words’ he used.72 The author’s intent was to be
gathered from the author’s words. His actual intent was irrelevant. The
surrounding circumstances in which the speech was made were also
relevant for determining intent.73
2. Bad Feelings: Sedition consisted of an intention to arouse bad feelings
against the government. A person who used abusive language against the
3.
4.
5.
6.
government,74 attributed dishonest or immoral motives to the government,75
portrayed government officials as corrupt,76 as being hostile or indifferent to
the welfare of the people,77 or as being partial or taking sides,78 committed
sedition. Sedition could be committed even if the writer or speaker did not
refer to the government directly, but made ‘covert allusions’ to it, e.g., a
reference to ‘foreign demons’ being destroyed by Hindu gods.79 It did not
matter if the speaker also expressed his loyalty to the government in the
same work.80 The words ‘government established by law in British India’ in
Section 124-A meant not merely the government itself, but also agencies of
the government like the civil service,81 the police,82 or even Englishmen83 in
India. In fact, in one case, a person criticized General Dyer, the notorious
perpetrator of the Jallianwala Bagh massacre, and said that Dyer had played
‘Holi’ (the Hindu festival of colours) with the blood of Indians.84 This too
was considered an act of exciting disaffection against the government.
Incitement Not Necessary: Unlike the English law of seditious libels, it
was not necessary for the speaker to incite others to commit acts of
insurrection, rebellion or public disorder in order to commit sedition.85
However, if a speech did not incite violence, that could merely be taken into
account for mitigating the sentence.86
Impact Inconsequential: It did not matter what the actual impact of the
speech or writing was. The accused could not get away by leading evidence
to show that no person actually developed ill-feelings towards the
government as a consequence of his speech.87
Class of Readers: The class of readers who were likely to read the work in
question was relevant.88 Often, courts in British India unfairly presumed
that Indian language newspapers were more likely to be read by
unintelligent and gullible people who could more easily be swayed by
seditious writings. In one case, Justice Batty of the Bombay High Court
held that ‘articles which are published in vernacular papers are not always
read by reasonable men’.89 The Bombay High Court repeatedly assumed
that because Bal Gangadhar Tilak wrote in Marathi, he was addressing a
‘politically ignorant’ class of readers.90
Speech as a Whole: It was necessary to read the entire work as a whole,
not to read isolated passages or lines.91 ‘The speeches must be read as a
whole’, held Justice Shah of the Bombay High Court while acquitting Tilak
in another sedition case, and ‘in a fair, free and liberal spirit’. In assessing
the speech in question, Shah continued, one ‘should not pause upon an
objectionable sentence here or a strong word there’, but rather, the work
should be dealt with ‘in a spirit of freedom’ and it should not be ‘viewed
with an eye of narrow criticism’.92 Justice Shah was quoting from the
judgment in an English case.93
7. Truth Immaterial: It was no defence for a person accused of sedition to
argue that what he had said was true.94 Quoting an Irish judge, Justice
Mookerjee of the Calcutta High Court in one case held, ‘the greater the
truth, the greater the libel’.95
8. Evidence for the Spoken Word: A person could be convicted for
delivering a seditious speech (as opposed to writing a seditious article) on
the basis of notes of the speech prepared by police officers who were
present at the time the speech was delivered.96
In 1908, Tilak was found guilty of sedition once again by the Bombay High
Court in a case which, though not as jurisprudentially important as the 1898
case, was nonetheless politically significant.97 He was convicted for writing two
articles in his Marathi newspaper Kesari. Once again, the jury delivered a
fractured 7-298 verdict of guilty which would have been insufficient to convict
Tilak of sedition in England. After saying some harsh things to Tilak, the Indian
judge who was presiding over the trial, Justice D.D. Davar, sentenced Tilak to
six years’ transportation to Burma. Under the law in British India, only Indians
could be sentenced to transportation, while Europeans and Americans would get
sentences of imprisonment instead.99
In 1922, Gandhi pleaded guilty to a charge of sedition in the District and
Sessions Court of Ahmedabad, and was sentenced to six years’ imprisonment,
though he was treated very respectfully by Judge Broomfield.100 ‘I have no
desire whatsoever to conceal from this court’, said Gandhi in his statement to the
court, ‘the fact that to preach disaffection towards the existing system of
government has become almost a passion with me’. He continued:
Section 124-A under which I am happily charged is perhaps the prince
among the political sections of the Indian Penal Code designed to suppress
the liberty of the citizen. Affection cannot be manufactured or regulated by
law. If one has no affection for a person or system, one should be free to
give the fullest expression to his disaffection, so long as he does not
contemplate, promote or incite to violence. But the section under which Mr
Banker and I are charged is one under which mere promotion of
disaffection is a crime. I have studied some of the cases tried under it, and I
know that some of the most loved of India’s patriots have been convicted
under it. I consider it a privilege, therefore, to be charged under that
section.101
In the pages of his newspaper Young India, Gandhi repeatedly wrote against
sedition. In an article published in July 1929, Gandhi compared Section 124A of
the IPC to the ‘sword of Damocles’ and called for its repeal. He wrote:
I do not know any Indian who has actually affection for the government as
it is today established. It is a rape of the word ‘law’ to say that it is a
government established by ‘law’. It is established by the naked sword, kept
ready to descend upon us at the will of the arbitrary rulers in whose
appointment the people have no say.102
In 1922, Gandhi quoted Nehru as having said: ‘I considered it my business, as it
was the business of every Indian, to promote disaffection against the present
system of government in India.’103
Majumdar and Bhalerao
We have seen so far that since 1832, the law of sedition in England made only
direct incitements to disorder punishable and that prosecutions for sedition there
were extremely rare. By contrast, the definition of sedition under the IPC was
incredibly extensive. A person who merely engendered feelings of hatred,
enmity or disloyalty, even the absence of affection, against the colonial
government, without actually inciting any kind of insurrection, rebellion, or
disorder, could nonetheless be punished under the IPC. It was also irrelevant that
the words he used had no tendency or likelihood to produce disorder or did not
otherwise bear any imminent causal connection with it. All this changed for the
first time in 1941, when the federal court tried to apply the post-1832 English
test to the law of sedition in India.
A man called Niharendu Dutt Majumdar was a member of the Bengal
legislature. He made a speech in which he criticized the ministry and Governor
of Bengal for their inaction during the communal riots in Dacca in 1941. He said
that they had misused police forces during that time, and that they should
personally pay compensation to the victims of the riots. In making these
assertions, Majumdar used ‘a good deal of violent language’. He was convicted
by the additional chief presidency magistrate, Calcutta, under the wartime
Defence of India Rules, and was sentenced merely to be detained until the rising
of the court, and to pay a fine of Rs 500. The sentence was upheld by the High
Court of Calcutta. Majumdar appealed to the Federal Court of India.104
Chief Justice Maurice Gwyer wrote the judgment of the court. For the first
time in British India’s legal history, the post-1832 English law test of direct
incitement was applied to the law of sedition. Gwyer opined that the meaning of
sedition must change with the times, that speech which might ‘have seemed
grave to one age may be the subject of ridicule in another’. It was held that
‘mere criticism’ of ‘an existing system of government’, or even ‘the expression
of a desire for a different system altogether’, was not prohibited under the law of
sedition. Gwyer quoted from a famous English sedition case, R. v. Sullivan,105
where Justice Fitzgerald had held that the ‘objects of sedition generally are to
induce discontent and insurrection, to stir up opposition to the government, and
to bring the administration of justice into contempt’, and that ‘the very tendency
of sedition is to incite the people to insurrection and rebellion.’106 In other words,
according to Gwyer, a person could not be convicted of the offence of sedition
unless his words were such as to tend to incite public disorder. Sedition, said
Justice Gwyer, was not meant to ‘minister to the wounded vanity of
governments’. ‘The acts . . . complained of,’ he said, ‘must . . . either incite to
disorder or must be such as to satisfy reasonable men that that is their intention
or tendency.’107 Even ‘vulgar abuse’ was held not necessarily to be seditious,
since it was usually ‘the stock in trade of the demagogue’.108 Majumdar won the
case and was acquitted.
The federal court’s judgment, however, was short-lived. It was overruled by
the Privy Council a few years later, in King Emperor v. Sadashiv Narayan
Bhalerao.109 The case was decided in February 1947, only a few months before
India became independent. A man called Bhalerao had published and distributed
a leaflet which spoke of how the ‘Imperialists’ had, by their ‘barbarous policy’,
‘turned the entire country into a cremation ground’. He was charged with the
offence of sedition under the Defence of India Rules. The magistrate had
acquitted him in view of the decision of the federal court in Niharendu. On
appeal, the decision was affirmed by the Bombay High Court.
However, the Privy Council refused to accept the test laid down by Gwyer in
Majumdar’s case. It was held that the prevalent post-1832 English law test of
sedition was inapplicable in India because India had a statutory definition for
sedition, whereas in England it was the common law which defined the
offence.110 It was also held that the words of Section 124-A did not impose the
requirement that there must be incitement to disorder for the offence of sedition
to have been constituted.111 Oddly, Bhalerao himself went completely
unrepresented before the Privy Council, which suggests that there was no
counsel who offered any arguments at the Privy Council in support of Gwyer’s
holding in Majumdar’s case.
***
After the Constitution was enacted in independent India in 1950, some things
have changed for the better. Under the law of sedition in independent India, for
instance, it is no longer a crime to merely evoke bad feelings against the
government.112 Gwyer’s direct incitement formulation has been accepted by the
Supreme Court. Jury trials have altogether been done away with, and so there is
no question of sedition cases being tried by racially loaded juries of nine as
opposed to twelve jurors, or of sedition prosecutions being sustained by nonunanimous jury verdicts. The maximum punishment for sedition in independent
India, however, is now imprisonment for life, which is still incredibly harsh,
given that even in nineteenth-century England, seditious libels which fell short
of treason were misdemeanours punishable with two years in prison. Sedition is
still a non-bailable offence, though misdemeanours in England were historically
bailable. Further, the fact that sedition remains an offence in India is now
somewhat surprising, given that in 2009, the UK Parliament abolished the
offences of sedition and seditious libel at the common law,113 while in the US,
the Sedition Acts, enacted in 1798 and 1918, expired in 1801 and 1921.114
Interestingly, throughout the era of British colonialism in India, sedition was a
non-cognizable offence, meaning that a police officer could not arrest a person
accused of sedition without a warrant from a magistrate. However, sedition was,
for the first time, made a cognizable offence in 1974,115 by the Indira Gandhi
government, over a year before the Emergency was declared in independent
India. This meant that for the first time in Indian history, a police officer could
arrest a person accused of sedition without a warrant from a magistrate. In other
words, while Bal Gangadhar Tilak in 1898 could not be arrested for sedition by a
police officer without an order from a magistrate, Kanhaiya Kumar (who, of
course, is no Tilak) in 2016 could be arrested for sedition without any such
order. It is not an oppressive colonial regime which has imposed this new
restriction on the freedom of speech in India, but a democratic one which has
done so.
3
‘He Who Destroys a Good Book, Kills Reason Itself’
This chapter examines the various restrictions that were imposed on the press in
colonial India. Foremost among these were ‘prior restraints’ which were a
particularly pernicious form of censorship. However, in subsequent chapters we
will see that many of these restrictions, including prior restraints, were imposed
on the press and media even in independent India, especially under the regimes
of Nehru and Indira Gandhi. For instance, under these regimes, the government
could demand that owners of printing presses should furnish bonds which could
be forfeited if anything objectionable was published, much in the same manner
as oppressive colonial regimes had done prior to Independence. Thus, the
enactment of the Constitution in 1950 could not prevent these colonial-era
restrictions from reappearing in independent, constitutional India.
Prior Restraints
Broadly speaking, a ‘prior restraint’ or ‘previous restraint’ is a form of
censorship imposed on the press before anything is published. It puts curbs on
the press prior to publication instead of after publication. There were three kinds
of prior restraints imposed on the press in British India. A person who wanted to
print a newspaper, book, or other similar material, was required either to submit
the content proposed to be published for approval to the government (akin to the
modern-day Censor Board certificate for films), to obtain a licence from the
government for running a printing business, or to execute a bond or furnish a
security as a condition precedent to printing anything.
Prior Approval
Firstly, in 1799, Governor-General Wellesley1 introduced regulations which said
that no newspaper could be published at all until it was previously inspected and
approved by the government.2 These regulations were enacted against the
backdrop of the ensuing Fourth Mysore War3 between the East India Company
and Tipu Sultan of Mysore, who was allied with the French. Their object was to
prevent information about British troop movements from being given to the
enemy, and to prevent ‘alarm and commotion’ in India.4 In fact, Wellesley, who
was himself in Madras at the time, was very upset with articles which had
appeared in Calcutta newspapers like the Asiatic Mirror, Telegraph and Post,
which had magnified ‘the character and power of the French’, and exposed
‘every existing or possible weakness in’ the East India Company’s situation in
India.5 Interestingly, the regulations eventually did not assist in the war effort,
because Tipu Sultan died before they were brought into force.6 Wellesley’s
regulations also banned newspapers from being published on a Sunday.7 The
penalty for violating these provisions was ‘immediate embarkation for Europe’,
i.e., the offender would be deported to Europe.8 The regulations were eventually
repealed by Governor-General Hastings in 1818.9 Hastings replaced prior
restraints with general prohibitions on the press, e.g., the press could not publish
‘offensive remarks levelled at . . . the judges of the Supreme Court’.10 The 1799
regulations were repealed because of a loophole which was discovered in them.
The editor of the Morning Post was born to an Indian mother and, as such, he
could not be deported to England. It was therefore discovered that no action
could be taken against him and those like him for violating the regulations.11
In England, since the sixteenth century, a similar censorship regime had been
in place whereby no book or other material could be published without first
being approved by designated officials.12 This regime was enforced by the
dreaded Court of the Star Chamber, which was used by King Charles I to
persecute political and religious opponents. Eventually, Charles I convened the
‘Long Parliament’13 in 1640 in order to raise money to fund his war effort in the
English Civil War. The Long Parliament abolished the Court of the Star
Chamber, as a consequence of which unlicensed publications briefly
proliferated. In order to bring an end to this, the Long Parliament enacted the
‘Licensing Order’ in 1643, which re-introduced the prior approval regime of
censorship.14 The poet John Milton then famously wrote a pamphlet titled
Areopagitica15 in 1644 to protest against this move. Laced with strong rhetoric,
Milton declared that when ‘complaints are freely heard, deeply considered and
speedily reformed, then is the utmost bound of civil liberty attained, that wise
men look for.’ ‘[W]ho kills a man kills a reasonable creature’, Milton continued,
‘but he who destroys a good book, kills reason itself’.16 This form of censorship
in England, however, seems to have finally been abolished decades after
Milton’s Areopagitica, in 1694.17
During the Second World War, the Defence of India Rules18 contained a
similar form of censorship. Rule 41 enabled the central government or a
provincial government to require any printer, publisher or editor to submit ‘all
matter relating to a particular subject or class of subjects’ to scrutiny to any
specified authority prior to being published. It also enabled the government to
prohibit the publishing of any material on a specified subject or class of subjects
altogether.
Licensing
Secondly, between 1823-1835, and for brief periods thereafter, the colonial
government imposed a system of licensing on the press. Under this regime, a
person who wanted to start a newspaper required a licence from the government.
The government could, thus, deny a licence to those whom it considered likely
to carry unfavourable stories. A licence could also be revoked by the government
at will, so the government could penalize those who carried critical stories. The
first such statute was passed in Calcutta in 1823 by Governor-General John
Adam.19 Interestingly, this law gave the discretion to the Supreme Court of
Calcutta20 to either approve of it or to reject it. In other words, the legislature
itself gave the judiciary the power of what we would now call judicial review of
legislation.21 It was for this reason that Raja Rammohan Roy, a prominent Indian
social reformer and proprietor of a Persian newspaper called Mirat-ul-Akhbar,
along with five others, submitted a memorial to the Supreme Court of Calcutta in
1823, seeking that the law be rejected by the Supreme Court.22 One historian
called this memorial the ‘Areopagitica of Indian history’.23 In it, Roy and others
argued that John Adam’s licensing system would stop ‘the diffusion of
knowledge and the consequent mental improvement’ which was ongoing at the
time, that it would preclude Indians from ‘communicating frankly and honestly’
with the Sovereign in England and from informing him of ‘the real condition of
his Majesty’s faithful subjects in this distant part of his dominions and the
treatment they experience from the local government’. Roy also cautioned the
government that ‘an ignorant people, when an opportunity offered, have revolted
against their Rulers’.24 Oddly, the 1823 law gave a higher place to commercial
speech over political speech. Thus, under it, while no person could publish a
newspaper, magazine, pamphlet, etc., containing ‘public news and intelligence,
or strictures on the acts, measures and proceedings of government, or any
political events or transactions whatsoever’ without obtaining a licence from the
Governor-General in Council, this prohibition did not apply to any material
containing ‘shipping intelligence, advertisements of sales, current prices of
commodities, rates of exchange, or other intelligence solely of a commercial
nature’.
The licensing regime in British India mostly came to an end in 1835, under
Governor-General Charles Metcalfe. His 1835 law,25 which repealed the
licensing enactments, put in place a simple system of registration, which remains
in place, in a slightly modified form, even today.
Thereafter, in 1857, consequent to the ‘Mutiny’ (which has also been
described as the First War of Indian Independence), the colonial government
enacted a temporary law26 which prohibited any person from keeping a printing
press without obtaining a prior licence from the Governor-General of India in
Council or the executive government of the appropriate Presidency.
The Dramatic Performances Act, 1876,27 also introduced a system of
licensing. It enabled a local government to declare that in any local area, no
‘play, pantomime or other drama’ could be performed without the licence of the
government. The Dramatic Performances Act remains in force in parts of India
even to this day.
A system of licensing re-appeared in 1931, during Mahatma Gandhi’s Civil
Disobedience Movement. Under the Indian Press (Emergency Powers) Act,
1931, which was to remain in force only for a temporary period, no person could
publish a ‘news-sheet’ without the authorization of a magistrate. A ‘news-sheet’
was essentially akin to a pamphlet. It was not a periodical newspaper, but a onetime pamphlet containing information on current events.28
Bond/Security
Thirdly, there were some particularly pernicious statutes in British India under
which the government could require a person to furnish an expensive bond or
security prior to setting up a printing press, making it virtually unaffordable for
political opponents of the colonial government to start a newspaper. The amount
under the bond could be forfeited if the newspaper published anything
unfavourable. This set of regulations began with an oppressive law, ‘Act IX of
1878’, enacted by an incredibly unpopular viceroy, Lord Lytton.29 Interestingly,
this statute did not have a ‘short title’ or short name.30 Its long title was ‘An Act
for the Better Control of Publications in Oriental Languages’. It informally
became known, quite notoriously, as the ‘Vernacular Press Act’. It was variously
referred to by Indians as the ‘Gagging Act’ or the ‘Black Act’.31 This law only
targeted newspapers which were printed in Indian languages.32 Its preamble
indicated how racist it really was. It said that ‘certain publications in oriental
languages’ were engaging in either sedition or hate speech, and needed to be
regulated because they were ‘read by and disseminated amongst large numbers
of ignorant and unintelligent persons’ and were consequently ‘likely to have an
influence which they otherwise would not possess’. The law thus believed that
those who read Indian language newspapers were ‘ignorant and unintelligent’,
and that by contrast, only those who were capable of reading English language
newspapers were informed and intelligent. This law permitted any magistrate or
commissioner of police to call upon a printer or publisher to furnish a bond not
to print anything seditious, not to print hate speech or to engage in intimidation
or extortion.33 The value of the bond was not specified by the statute, and so
even a prohibitively expensive bond could be required to be furnished, at the
discretion of the local government. If the newspaper printed the proscribed
material, the bond could be forfeited.34 No appeal was provided to an aggrieved
person in any court. Instead, this person could only appeal to the highest
executive department of the government, i.e., to the Governor-General in
Council.35 The Vernacular Press Act was finally repealed in 1882, under the
benevolent regime of Viceroy Lord Ripon.36
Thereafter, the Indian Press Act, 1910,37 re-introduced a system of furnishing
a security for good behaviour. However, this law applied not merely to Indian
language newspapers, but also to English language ones. Further, the value of
the security was now specified as being between Rs 500 and Rs 2000. The
security could now also be dispensed with by the magistrate for special
reasons.38 The security could be forfeited if the newspaper carried material
belonging to certain defined categories, e.g., incitement to a violent offence,
sedition, hate speech, extortion, etc.39 An appeal was also now available, to the
high court.40 This law was repealed in 1922.41
Thereafter, the Indian Press (Emergency Powers) Act, 1931, introduced the
security system once again, though in a watered-down form. Now, the value of
the security was not to exceed Rs 1000. Further, if the security was not forfeited
(for publishing proscribed categories of speech) within three months, it was to be
refunded.42
Forfeiture of the Printing Press
Several statutes in British India gave the government the power to seize the
entire printing press if any newspaper or book that was published there contained
offending material. Unsurprisingly, this power was conferred on the government
by the Vernacular Press Act.43 Another such provision was thereafter contained
in the Newspapers (Incitements to Offences) Act, 1908. The local government
could, under this law, apply to a magistrate, and if the magistrate found that a
newspaper printed and published in the province contained incitements to violent
offences, then the magistrate could pass an order forfeiting the entire printing
press.44 An appeal to the high court was, however, available to a person
aggrieved by the order.45 This law also was repealed in 1922.46
Ban/Forfeiture of Offending Material
Several statutes in the colonial period gave the government the power to ban
newspapers and books, and to seize or forfeit all offending copies. The
government could, by order, prohibit the circulation of any newspaper or book,
or similar work.47 One such drastic statute was the Dramatic Performances Act,
1876. Its avowed object was to ‘prohibit Native plays which are scandalous,
defamatory, seditious or obscene’. Its Statement of Objects and Reasons said that
it was enacted because of ‘the recent performance in Calcutta of a scurrilous
Bengali drama’, which was probably a reference to Girish Chandra Ghosh’s
Cha-ka-Darpan (The Mirror of Tea).48 This law gave the local government the
power to prohibit the performance of a ‘play, pantomime, or other drama’ if it
was considered by the government to be scandalous, defamatory, seditious, or
obscene.49 Several statutes in the colonial period also gave the government the
power to forfeit or seize offensive newspaper editions, books, etc.50 These types
of regulations remain in force to this day. There are now provisions in the Code
of Criminal Procedure, 1973, which enable the government to ban and forfeit
books or other materials which contain certain categories of prohibited content.
Special Procedure
During the two world wars, the colonial government enacted laws which made it
much easier to convict those accused of press-related offences like sedition or
hate speech.
The Defence of India (Criminal Law Amendment) Act, 1915, was enacted
during the Great War, i.e., the First World War. Vast rule-making powers were
conferred on the Governor-General in Council, ‘for. . . securing the public safety
and the defence of British India’, including for such purposes as ‘to prevent the
spread of false reports or reports likely to cause disaffection or alarm or to
prejudice His Majesty’s relations with Foreign Powers or to promote feelings of
enmity and hatred between different classes of His Majesty’s subjects’.51 The
rule-making powers were exercised even to create offences and prescribe
punishments, without an offence or punishment having been specified under the
principal statute. Special ‘commissioners’ were constituted to try cases under the
Act. Though a case was to be tried by a Bench of three such commissioners,52
there was no appeal from their decision.53 The rules of evidence were also
relaxed in such cases.54
Likewise, the Defence of India Act, 1939, was enacted during the Second
World War. As before, vast rule-making powers were conferred on the central
government for, among other things, ‘requiring the publication of news and
information’.55 ‘Special Tribunals’ were constituted for the trial of certain
offences,56 and the rules of evidence were relaxed.57 Under the Defence of India
Rules, it was made an offence for any person to ‘do any prejudicial act’,58
punishable with a maximum sentence of imprisonment of up to five years or fine
or both.59 The definition of ‘prejudicial act’ included sedition.60
No Anonymity
Perhaps the most benevolent form of the regulations which were imposed on the
press during the colonial period required printers and publishers of newspapers
to merely register their publications with the government. The underlying
philosophy of these regulations was essentially to prohibit anonymous periodical
publications. The idea was that the place of business, and the names of the
printer, publisher and editor of the newspaper ought to be known, so that if any
action was to be taken against the newspaper, whether by a private person (e.g.,
an action in defamation) or otherwise, the whereabouts of the newspaper and its
officers would be known.
Thus, Wellesley’s 1799 Regulations required every printer of a newspaper to
print his name at the bottom of the newspaper, and every editor and proprietor of
a newspaper to provide their residential address to the government.61 A
regulation passed in the province of Bombay in 182562 provided that no person
could print or publish a newspaper, magazine, pamphlet etc. in Bombay without
submitting an affidavit in the prescribed form to the chief secretary of the
government63—an affidavit which was to contain certain information about the
printer and publisher, e.g., their place of residence.64 The names of the printer
and publisher were also to be set out prominently in the newspaper,65 so that
anybody aggrieved by anything contained in the newspaper knew whom to take
legal action against. A copy of the material printed at the printing press was also
required to be given by the printer and publisher to the government, for its
records.66 A person who owned a printing press was required to serve a notice
upon the government, whereupon the government would issue a certificate to
that effect.67
Metcalfe’s 1835 law put in place the system which virtually continues to exist
today. Under it, the printer and publisher of a periodical were to appear before a
magistrate and make a declaration containing the title of the work and the place
of publication.68 Every newspaper had to have printed legibly on it the name of
the printer and publisher and the place of publication.69 Likewise, the keeper of a
printing press was to make a declaration before a magistrate containing
particulars regarding the place at which the printing press was maintained.70
Metcalfe’s law was only slightly modified by the Press and Registration of
Books Act, 1867, a law which continues to be in force to this day,71 and applies
not merely to newspapers but also to books. Every book or newspaper printed in
British India was now required to print legibly on it the name of the
printer/publisher and the place of printing/publishing.72 The keeper of a printing
press was to make a declaration before a magistrate containing particulars of the
address of the printing press. A person who wanted to print a periodical had to
go before a magistrate and make a declaration containing the title of the
periodical and the place of printing.73 Three copies of every book printed in
British India were to be given to the government for its records.74
4
Munshi’s Coup in the Constituent Assembly
The framers of India’s Constitution were primarily concerned with three broad
themes relating to the right to free speech and expression: Firstly, whom should
the right be given to, only citizens or non-citizens as well? Secondly, should the
right to a free press be specifically recognized? Thirdly, and perhaps most
importantly, what restrictions ought to be imposed on it? This third question
occupied much time in the Constituent Assembly. The framers asked themselves
questions such as whether the right to free speech should give way to the
existing laws on sedition, which had been used by the colonial government to
stifle, prosecute and imprison members of India’s freedom movement; and
whether the right to free speech should be subordinated towards ensuring that
hate speech is not used to create tensions between members of different religious
communities, especially in the context of the large-scale partition-related rioting
which was occurring in India at this time.
***
The Constituent Assembly itself was a plenary body. Smaller committees of the
Assembly were established to aid in the drafting of the Constitution.1 Among
these was the Advisory Committee on Fundamental Rights (‘Advisory
Committee’),2 a body of approximately fifty members whose ranks included the
likes of Dr B.R. Ambedkar, Vallabhbhai Patel, K.M. Munshi and others. The
Advisory Committee, in turn, created a smaller Sub-Committee on Fundamental
Rights (‘Sub-Committee’) consisting of approximately ten members.3
Additionally, a Drafting Committee, consisting of approximately seven
members, was responsible for the overall drafting of the Constitution,
fundamental rights included. The membership of some of these committees was
common. For example, Ambedkar and Munshi were members of all three
committees. Discussions relating to free speech took place within each of these
bodies, viz., the Sub-Committee, the Advisory Committee, the Drafting
Committee, and in plenary sessions of the Constituent Assembly itself.
Three draft Constitutions had been prepared for India in the colonial era which
spoke of a right to free speech. The first of these, the Constitution of India Bill,
1895, was possibly prepared under the guidance of Bal Gangadhar Tilak.4 The
second, the Commonwealth of India Bill, 1925, was drafted by a ‘National
Convention’ of over 255 Indian legislators.5 The third, a report prepared by a
committee under the chairmanship of Motilal Nehru, came to be known as the
Nehru Report, 1928.6 At least four drafts on fundamental rights prepared by
members of the Sub-Committee appeared to have been in circulation at the time
of the second meeting of the Sub-Committee on 24 March 1947, which
contained any mention of a right to free speech. These were the drafts of
Professor K.T. Shah,7 K.M. Munshi,8 Harnam Singh9 and Dr B.R. Ambedkar.10
Press
None of the three colonial-era draft Constitutions provided for a separate right
for the press. Among the early drafts which were in circulation at the time of the
second meeting of the Sub-Committee, drafts prepared by Munshi, Ambedkar
and Harnam Singh provided for a separate right for the press. K.T. Shah’s draft
was the only one which did not specifically identify a separate right for the
press. However, on 26 March 1947, the Sub-Committee decided by a majority
vote (it is not known in what proportion or ratio) that no separate provisions
need be made in the Constitution for the rights of the press ‘in view of the right
to freedom of speech and expression already included’.11
In the Constituent Assembly, K.T. Shah, whose draft had not identified a
separate right for the press, opined that a separate provision must be made to
ensure the rights of the press.12 Two other members of the Assembly also asked
for a separate right of speech geared towards the press.13
Ambedkar changed his mind and rejected the demand for a separate press
right, by arguing that the right of the press was covered by the broader right to
free speech.14 Later, another very influential voice in the drafting of the
Constitution, B.N. Rau, who was the constitutional adviser to the Assembly, also
opined that it was not necessary to provide specifically for the freedom of the
press because this was covered by the right to free speech and expression.15
The US Constitution, in the First Amendment, provides that ‘Congress shall
make no law . . . abridging the freedom of speech, or of the press’. However,
though the framers of India’s Constitution were inspired by the US Constitution
for other clauses, a specifically articulated right for the press did not find its way
into the Indian Constitution. This is particularly puzzling and interesting because
the press in colonial India, both the Indian language press (at the time, called the
‘vernacular press’) and the English language press in Indian hands, were used as
tools for disseminating nationalist propaganda. Nationalist leaders like Tilak and
Gandhi had newspapers, and were prosecuted for their writings. As we have seen
in the previous chapters, several laws were enacted during the colonial regime
which infringed the rights of the press. It is therefore surprising that the framers
of the Constitution did not consider it necessary to ensure a special place for the
freedom of the press in the Constitution.
Citizens Only
While the Constitution of India Bill, 1895, conferred a right to free speech only
on citizens, both the Commonwealth of India Bill, 1925 and the Nehru Report,
1928, gave a right to free speech to all persons, citizens and non-citizens alike.
Among the four members of the Sub-Committee who prepared drafts on
fundamental rights, there appeared to have been broad agreement that the right
to free speech should be available to non-citizens as well. Drafts prepared by
K.T. Shah, Harnam Singh and Ambedkar did not qualify the right to free speech
as belonging to citizens alone. While Munshi’s draft conferred the right to free
speech on citizens alone, it also recognized a right to a free press which was not
restricted in its application only to citizens.16 However, on 25 March 1947, the
Sub-Committee decided by a vote of 5-3 (we do not know who the three
members were who voted against the resolution) that the right to free speech was
to be given only to citizens.17 This decision, which almost went without question
thereafter, was perhaps taken because members of the Sub-Committee believed
that non-citizens could not be trusted with the right to free speech because they
would not necessarily have had India’s best interests at heart. If so, this is also
very puzzling because there were at least two Britons, Annie Besant and B.G.
Horniman (editor of the Bombay Chronicle) who played a prominent part in the
nationalist movement, and several others like them who were sympathetic
towards the nationalist cause in varying degrees. Even so, the framers of the
Constitution did not want Britons or any other foreigners to have the right to the
freedom of speech and expression in independent India. Further, by restricting
the right to free speech only to citizens, the framers of the Constitution, whether
consciously or otherwise, denied the right to free speech to artificial persons who
cannot be citizens, e.g., companies, though their shareholders and directors who
are citizens do have the right to free speech.
Enumerated Exceptions
Much of the time of the Assembly and its committees was devoted to
determining what restrictions ought to be placed on the right to free speech.
Munshi’s draft,18 which was used by the Sub-Committee as a template, identified
and enumerated various liberties (e.g., speech, assembly, locomotion, etc.) and
categorized them as ‘rights to freedom’—constructs which found their way into
the final Constitution and exist to this day. However, Munshi’s draft, which
recognized the right to free expression of opinion ‘within the limits of the law of
the Union and in accordance therewith’,19 contained a broad and sweeping
restriction on the right, and enabled the legislature to impose whatever
restrictions on free speech it deemed fit. Ambedkar’s draft, on the other hand,
provided that the right to freedom of speech would be subject only to ‘public
order and morality’,20 words which appeared to have been borrowed21 from the
Nehru Report, 1928,22 and from the Irish Constitution23 by which the right to free
speech in India was heavily influenced. In fact, the draft of the right to free
speech in India was ‘re-drafted on the basis of section 40(6) of the Irish
Constitution’ by the Sub-Committee.24
Following the example of the Irish Constitution, the framers of India’s
Constitution decided to specifically provide enumerated exceptions to the right
to free speech in the Constitution itself. The draft prepared by the Advisory
Committee enumerated several exceptions to the right to free speech, such as
public order, morality, sedition, obscenity, blasphemy, and defamation. The
numerous exceptions set out to the right to free speech and to the rights to
freedom generally caused much anxiety in the Assembly. In fact, on 30 April
1947, when Sardar Vallabhbhai Patel introduced the draft provision relating to
free speech, as drafted by the Advisory Committee, to the Assembly, he
introduced it without the proviso which contained the various enumerated
exceptions to the right: sedition, obscenity, blasphemy, libel and defamation.
However, the enumerated exceptions soon found their way back into the clause.
Many members of the Assembly were disappointed with the numerous
exceptions which had been created against each of the freedoms set out in the
right to freedom, including the right to free speech. For instance, K.T. Shah said
that ‘what is given by one right hand seems to be taken away by three or four or
five left hands; and therefore the article is rendered nugatory in my opinion.’25
Lakshmi Narayan Sahu cited an Oriya proverb which translates as follows: ‘It is
no use making a house with so small an entrance that one’s entry into the house
is rendered difficult without striking his head against the door frame.’26
There were others, however, who defended the presence of so many
exceptions to the right to freedom. Foremost among them was Dr B.R.
Ambedkar himself who, on 4 November 1948, while introducing the draft
Constitution, made an impassioned speech, arguing that even the US
Constitution did not confer absolute rights on its citizens.27 In his speech,
Ambedkar quoted from the decision of the US Supreme Court in Gitlow v. New
York,28 wherein it was held that ‘the freedom of speech and of the press . . . does
not confer an absolute right to speak or publish without responsibility, whatever
one may choose, or an unrestricted and unbridled license that gives immunity for
every possible use of language’.
Others supported Ambedkar.29 Algu Rai Shastri, for instance, said that ‘good
citizenship implies restrictions’.30 Shastri quoted from a Sanskrit proverb,31
which translates: ‘Be truthful and sweet in speech, but do not speak out the
unpleasant truth’. He argued that ‘anyone has the freedom to state the truth, but
not the freedom to speak out the unpleasant truth’. T.T. Krishnamachari agreed,
‘as a student of politics’, ‘that there can be no absolute right and every right has
got to be abridged in some manner or other under certain circumstances . . . ’32
Hate Speech
There appeared to be virtually no debate within the Assembly and its committees
on the inclusion of certain restrictions on the right to free speech. For example,
though many members of the Assembly generally complained that the right to
free speech was hemmed in with too many restrictions, there was not much
strong, specific opposition to the idea that the right to free speech would be
subject to laws relating to defamation, libel and slander. Following the example
in the Irish Constitution, some early drafts of the right to free speech within the
Advisory Committee provided that ‘blasphemous’ speech would not be
protected.33 However, with little or no debate, this restriction was soon removed,
and Indian citizens were given the right by the Constitution to utter or write
blasphemous words,34 despite William Blackstone’s view that ‘blasphemy
against the Almighty, by denying his being or providence; or by contumelious
reproaches of our Saviour Christ . . . [are] offences punishable at common law
by fine and imprisonment’.35 There was not much debate about excluding
obscenity from the ambit of free speech either. K.T. Shah appeared to be one of
the few members of the Assembly who were concerned that ‘morality’ was ‘a
very vague term’ whose ‘connotation changes substantially from time to time’.
Shah invoked the example of Lord Chamberlain in England who placed a bar on
the staging of some of Bernard Shaw’s plays as an example for why speech
should not be restricted on the ground of morality.36
The primary debate within the Assembly and its committees took place over
three questions. The first of these related to hate speech, i.e. whether the right to
free speech could be used to promote hatred among members of different
religious communities, chiefly Hindus and Muslims, in the light of the largescale partition-related rioting which was taking place in India at the time the
Constitution was being drafted. Broadly, three kinds of suggestions were made
regarding excluding hate speech from the right to free speech: firstly, that the
right to free speech ought to be subjected to a broad restriction relating to ‘public
order’, secondly, that a specific restriction relating to preventing the spread of
communal hatred ought to be created, thirdly, that the right to free speech must
be suspended during a period of ‘emergency’ declared by the government.
Public Order
We have seen that Ambedkar’s draft, borrowing from the Nehru Report and the
Irish Constitution, imposed the restriction of ‘public order’ on free speech. On 4
April 1947, Sir Alladi Krishnaswami Ayyar37 wrote a letter to B.N. Rau in which
he argued, making an obvious reference to communal Hindu-Muslim rioting and
tensions, that ‘[t]he recent happenings in different parts of India have convinced
[me], more than ever, that all the fundamental rights guaranteed under the
Constitution must be subject to public order, security and safety though such a
provision may to some extent neutralize the effect of the fundamental rights
guaranteed under the Constitution.’38 Since around 16 August 1946, India had
seen large-scale communal riots between Hindus and Muslims in Bengal, Bihar,
the United Provinces and Punjab.39 By May 1947, some 9000 people had been
killed in communal riots.40 The death toll would later rise to a figure of between
200,000 and 600,000.41 It is very likely that it was this phenomenon which Sir
Alladi was referring to when he wrote of the ‘recent happenings in different parts
of India’. Thereafter, Sir Alladi’s note to the Sub-Committee dated 10 April 1947
suggested that the ‘security and defence of the State or national security’ ought
to be imposed as restrictions on the right to free speech.42 Several drafts of the
right to free speech included a restriction in the interest of ‘public order’.
However, ‘public order’ was dropped by the Drafting Committee and did not
make its way back into the Constitution.
In September-October 1947 in particular, it seems that India’s leaders were
particularly worried about the press inflaming communal passions. In September
1947, Prime Minister Nehru wrote to Home Minister Patel and said that the
‘atmosphere of Delhi is being poisoned by the numerous news-sheets that
continue to circulate’.43 He was referring to an incendiary article which had been
published in a newspaper called the Hindu Outlook. In October 1947, Nehru
once again wrote to Patel saying that there was a need to control ‘the
irresponsible Press’. He spoke with alarm about the ‘many newspapers, recently
started, which are carrying on an astonishing campaign not only against the
government but against all decency’.44 Patel responded to Nehru in October 1947
and said that the Hindu Outlook did not ‘deserve to exist as a newspaper’, that ‘a
pre-censorship order’ had been passed against the paper in the ‘hope that either
its contents would improve’ or that it would get into more trouble and
‘eventually have to stop publication’.45
That month, home minister of Bombay, Morarji Desai, wrote a letter to Sardar
Patel, saying that ‘even papers like Hindustan Times and the Statesman’ were
publishing ‘objectionable reports’ on communal violence, reports which were
then being used by local Bombay newspapers to ‘propagate their respective
points of view’. Desai wondered if news of communal killings in Punjab could
be confined only to some authorized reports.46 Patel suggested that Desai ban the
entry of newspapers from other regions, like Delhi and Karachi, into Bombay.47
The following month, Patel introduced a Bill48 in the Constituent Assembly to
impose prior restraints on the press in Delhi and Ajmer, in the hope of
preventing the ‘publication of undesirable news and comments, exaggerated and
false news’. In his speech introducing the Bill, Patel also made a reference to the
‘scurrilous and scandalous attacks that are made (by the press) against the Head
and members of the government’.49
Communal Hatred
In addition to recognizing a restriction relating to the laws of libel and slander,
K.T. Shah’s draft limited the freedom of thought and expression of opinion by
‘such laws as are in force at any time and relate to the maintenance of
friendliness and good relations between the several communities and citizens’.50
Sir Alladi’s note to the Sub-Committee dated 14 April 1947 said that speech
‘calculated to promote class hatred’ would have to be excluded from the right to
free speech, and that the right to free speech must not come in the way of
Section 153-A of the Indian Penal Code.51 Inserted into the Indian Penal Code,
1860, by an amending act of 1898, Section 153-A made it an offence to promote
or attempt to promote ‘feelings of enmity or hatred’ between different classes of
persons. On 17 April 1947, Jairamdas Daulatram urged the Sub-Committee on
Minorities to exclude ‘the dissemination of class or communal hatred’ from the
ambit of the right to free speech.52 At the meeting of the Advisory Committee
held on 21 April 1947, Sir Alladi opined53 that speech likely to promote ‘class or
religion hatred’ ought to be excluded from the right to free speech. C.
Rajagopalachari agreed with Sir Alladi, adding: ‘The fundamental peace and
orderly progress of our country depend upon communal peace and harmony. If
we do not prevent speeches and utterances likely to foster communal hatred, we
cannot have progress.’54
However, Syama Prasad Mookerjee, K.M. Munshi and Bakshi Tek Chand
disagreed with Sir Alladi’s proposal. Mookerjee was concerned that an exception
of this nature would be misused, that a ‘simple expression of opinion against a
party in power’ would be considered class hatred.55 Bakshi Tek Chand opined
that Section 153-A of the Indian Penal Code itself was being misused by
governments, who were sanctioning prosecutions only when members of the
minority made speeches against members of the majority, but not vice versa.56
K.M. Munshi delivered a speech in the Advisory Committee which appeared to
be the strongest defence of hate speech. He opined that unless speech amounted
to incitement to an offence, it should be ignored, which bore a resemblance to
the ‘clear and present danger’ test articulated in US constitutional law which we
shall see later on.
This was particularly interesting because, as home minister of Bombay state in
1938, Munshi had encountered newspapers which had incited violence during, in
his own words, ‘one of the worst riots that threatened Bombay’. It was the
practice of some newspapers at that time to report the number of deaths in the
riots by community, e.g., to say that so many Hindus had died or so many
Muslims had died, in the riots. This would encourage members of the other
community to carry out retaliatory attacks. Thus, for example, if a newspaper
reported that fifty Hindus had died, Hindus would retaliate and attack Muslims
in order to settle scores. As home minister, Munshi had warned newspapers ‘not
to indulge in the pernicious practice of reporting murders community-wise’. He
had even imposed ‘pre-censorship’ under the Code of Criminal Procedure on
three or four newspapers, though Chief Justice John Beaumont of the Bombay
High Court eventually overturned his orders.57 Now, as a member of the
Constituent Assembly, when Munshi wanted hate speech to be curbed only when
it incited violence, he probably had in mind the example of newspapers which
had reported community-wise deaths in the 1938 communal riots.
Eventually, Munshi won the day, and hate speech was left out of the
enumerated restrictions on the right to free speech.58 Neither Ambedkar’s ‘public
order’ nor Sir Alladi’s ‘class hatred’ or iterations thereof made their way into the
exceptions to the right to free speech.
Emergency
In a meeting of the Sub-Committee held on 14 April 1947, Sir Alladi suggested
that a limitation be imposed on fundamental rights in cases of ‘grave emergency’
and ‘when the security of the state is endangered’.59 Drafts prepared thereafter
subjected the right to free speech to ‘grave emergency declared to be such by the
government’.60 However, since the Constitution was to contain a separate set of
provisions dealing with the declaration of an Emergency and for the suspension
of fundamental rights at that time,61 the restriction on free speech during declared
Emergencies was removed from the text of the right to free speech and
expression. The concerns of the framers of the Constitution relating to free
speech during an Emergency also probably had something to do with the
partition-related riots and troubles which India was facing at this time.
Sedition
The other question relating to free speech which occupied much time in the
Assembly was whether sedition should be included as an enumerated exception.
We have seen that Section 124-A was used to prosecute leaders of India’s
freedom movement and to stifle dissent in colonial India. Now that India was
going to get its own Constitution with a bill of rights, the question was whether
sedition would continue to operate as a limitation on the fundamental right62 of
free speech.
Since the right to free speech was originally drafted in India along the lines of
the Irish Constitution, which enumerates a specific exception for seditious
speech, the early drafts of the right to free speech for India contained an
exception for sedition as well.
However, on the floor of the Assembly, one of the strongest advocates in
favour of free speech, K.M. Munshi, moved an amendment to remove the word
‘sedition’ from the enumerated exceptions to the right to free speech. His object
was not to enable Indian citizens to use their rights to free speech in order to
make seditious speeches. Instead, Munshi wanted sedition to be construed in a
narrow manner. For Munshi, only incitement to violence or insurrection was to
be barred.63 Interestingly, Munshi quoted from the federal court case, Niharendu
Dutt Majumdar v. King Emperor,64 seen in a previous chapter, though he omitted
to mention that the view taken by the federal court had subsequently been
overruled by the Privy Council in King Emperor v. Sadashiv Narayan
Bhalerao.65 Munshi’s suggestion of deleting ‘sedition’ from the Constitution
could be seen as an attempt to, whether consciously or otherwise, by implication
overrule the Privy Council in the Bhalerao case.
Several other members of the Assembly spoke in favour of deleting the word
‘sedition’ from the enumerated exceptions to the right to free speech.66
Once again, Munshi won the day and ‘sedition’ was removed as an exception
to the right to free speech. Instead, speech which undermined the security of the
State or tended to overthrow the State was carved out as an exception to the right
to free speech. Between 1947-1950, over 500 ‘princely states’—territories
which, under the British, were not an integral part of any British Indian province,
but which were ruled by Indian kings who had accepted the suzerainty of the
British crown—were incorporated into the Indian dominion. Princely states like
Junagadh, Hyderabad and, above all, Kashmir, were problem areas.67 The fears
of the framers of India’s Constitution, relating to speech that would undermine
the security of the State or tend to overthrow the State, were probably linked to
these problems which were being faced in India at the time.
Contempt of Court
The Government of India Act, 1935, provided that the federal court and the high
courts of British India were each to be a ‘court of record’.68 However, there was
no specific mention made in this statute of the power of these courts to punish
contempts of court.The October 1947 and February 1948 drafts of the
Constitution prepared under the aegis of the Constituent Assembly of India
similarly contained no specific mention of the power of the Supreme Court and
high courts of independent India to punish contempts of court, though these
courts were described as ‘courts of record’.69 However, on 27 May70 and 6 June
1949,71 Ambedkar moved an amendment to the draft Constitution, specifying
that the Supreme Court and high courts would, as a consequence of being courts
of record, have the power to punish contempts of court. Ambedkar explained
that it necessarily followed that a court of record had the power to punish
contempts of itself. Both amendments were passed with virtually no debate.
Thereafter, on 17 October 1949, a little under a month before the Constitution
was finalized, a last-minute amendment was moved by T.T. Krishnamachari to
the provision relating to the right to free speech in the draft Constitution. He
proposed72 that ‘contempt of court’ must also be included as an enumerated
exception to the right to free speech, in other words, that a person who commits
contempt of court through speech or expression must not be permitted to take
refuge under the fundamental right to free speech. Krishnamachari felt that a
person who ‘might be speaking on a matter which is sub-judice’ and who might
‘thereby interfere with the administration of justice’ must not have the benefit of
invoking the right to free speech.
There was some opposition to this amendment.73 R.K. Sidhva argued, for
instance, that judges had, ‘in the past’, exercised their powers ‘as if they are
infallible, as if they do not commit any mistakes’. He added that ‘Judges have
not got two horns’, that ‘they are also human beings’, who are ‘liable to commit
mistakes’.74 B. Dass launched a strong attack against the proposed amendment
and argued that judges had been loyal to the colonial British regime. ‘I am not
one,’ he said, ‘who thinks very highly of judges particularly as they are trained
under the British tradition and have misapplied justice and kept us down.’ He
contended that ‘penniless lawyers’ had, during the colonial regime, become
judges and ‘regulated and controlled the affairs and rule of the (alien) Raj by the
word “contempt of court”’, while ‘chicken-hearted lawyers got frightened at
them’.75 On hearing this, the president of the Assembly interjected, and said that
it would be wrong to ‘cast aspersions on the judiciary as a whole’ though
individual judges may have erred in the past.76 Some, like Naziruddin Ahmad,
spoke in favour of the amendment.77 The amendment was put to a vote and was
adopted by the Assembly.
‘Reasonableness’
On 17 October 1949, Pandit Thakur Das Bhargava moved an amendment to
introduce the word ‘reasonable’ into the exceptions to the right to free speech in
the draft Constitution. In other words, Bhargava wanted only the government to
have the power to make a ‘reasonable’ law which took away the right to free
speech, laws relating to subjects like libel, slander, defamation, etc. Earlier, as a
result of an amendment moved by Bhargava himself, an amendment which was
passed in the Assembly, the government could only enact a law infringing the
other rights contained in the provision dealing with the right to freedom (e.g.,
assembly, locomotion, etc.) if such laws were ‘reasonable’.78 Bhargava wanted
the word ‘reasonable’ to apply to laws against free speech as well.79 However,
this amendment was rejected by the Assembly. It was opposed by some like
Naziruddin Ahmad, who argued that when a legislature enacts a law, it is
assumed that the law is (or at least that the legislature considers it to be)
reasonable, and that the insertion of the word ‘reasonable’ would be ‘absolutely
unnecessary and quite meaningless in practice’.80 Constitutional historian
Granville Austin thought that the word ‘reasonable’ was left out from the
exceptions to the right to free speech as a result of a possible oversight, an
oversight which was remedied in the First Amendment a year later.81 However, a
plain reading of the Constituent Assembly Debates makes it clear that the word
‘reasonable’ was left out of the exceptions to the right to free speech despite
Bhargava’s amendment, i.e., as a result of the conscious design of the Assembly.
Thus, theoretically speaking, India’s Parliament could enact any law, no matter
how unreasonable, and as long as it fell within the enumerated exceptions
contained in Article 19(2) of the Constitution, the law would be safe from
constitutional scrutiny.
***
In the end, Article 19(1)(a) of the Constitution gave all citizens of India the right
to free speech, and Article 19(2) enabled the State to make laws relating to ‘libel,
slander, defamation, contempt of court’, ‘any matter which offends against
decency or morality’, and laws restricting any speech which either undermined
the security of the State or had the tendency to overthrow the State.82 In other
words, the right to the freedom of speech and expression was subjected to four
broad exceptions: defamation, contempt of court, obscenity and speech which
threatened the existence of the State.
Interestingly, in his classical book on the framing of India’s Constitution,
Granville Austin argued that both Munshi and Sir Alladi were ‘the two strongest
advocates’ in the Sub-Committee on the ‘limitation of rights’.83 However, Austin
was wrong when it came to Munshi, who was the chief opponent of limitations
on the right to free speech. It was his original draft which was used as a template
by the Sub-Committee. Though his original draft contained broad and sweeping
exceptions to the right to free speech, he later revised his position, and in his
speeches in the Constituent Assembly, he adopted a very liberal outlook, leading
the movement for removing sedition from and keeping hate speech out of the
enumerated exceptions to the right to free speech. Munshi won both the battles
he fought for free speech; sedition was removed from the enumerated exceptions
and cast in a narrower form, and hate speech was removed altogether from the
enumerated exceptions. On the other hand, Sir Alladi was the chief opponent of
an absolute right to free speech, leading the movement against hate speech in
particular.
It is interesting that though the provision relating to free speech was borrowed
from the Irish Constitution, virtually no member of the Assembly discussed or
brought up Irish cases relating to free speech. Instead, members of the Assembly
such as Ambedkar brought up and discussed US cases, perhaps because they
were more familiar with these, having studied in the US or having otherwise
encountered them in their law practices.84
5
Prasad and Mookerjee Trigger an Amendment
In June 1951, within seventeen months of the Constitution coming into force, the
Constituent Assembly (now functioning as a unicameral, provisional Parliament
for India) amended Article 19(2) to include three new enumerated restrictions to
the right to free speech. These were ‘public order’, ‘friendly relations with
foreign states’, and ‘incitement to an offence’.
Broadly speaking, there were three reasons why the Constitution (First
Amendment) Act, 1951 (hereinafter, the ‘First Amendment’) came to be passed.
Firstly, judgments of the Supreme Court and the Punjab, Patna and Madras High
Courts had made it difficult for the government to restrict hate speech or speech
which promoted enmity between different groups, and which the government
believed was responsible for large-scale communal violence among Hindus and
Muslims. Secondly, these courts had made it difficult for the government to curb
speeches which called for war between India and Pakistan and for the annulment
of partition (especially because of the manner in which Hindus were being
treated in East Pakistan)—speeches which were being made by Syama Prasad
Mookerjee against the backdrop of the Nehru-Liaquat Pact.1 Thirdly, members of
Parliament were deeply disturbed by a chilling observation made by Justice
Sarjoo Prasad of the Patna High Court in his judgment in a case, where he said
that the right to free speech in India included the right to preach and incite
murder and violent crimes unhindered.2
Judgments Which Precipitated the Amendment
The Constitution came into force, for historical reasons, on 26 January 1950.3
Within a few months thereafter,4 state governments started imposing restrictions
on some newspapers and printing presses which, it was believed, were disturbing
the public order, promoting enmity or hatred between different groups, inciting
murders or other violent crimes, or which were otherwise seditious in nature. In
imposing these restrictions, state governments relied on many laws which had
been enacted during the colonial period, most notably the Indian Press
(Emergency Powers) Act, 1931, which had been enacted to combat Gandhi’s
civil disobedience movement in the 1930s. State governments resorted to
banning the circulation of newspapers in their states, forfeiting books which
were published in their states, requiring newspapers to submit their materials for
prior scrutiny, or forfeiting the security deposited by printing presses with the
government for publishing objectionable material. Aggrieved by this,
newspapers and printing presses filed proceedings in the Supreme Court of India
and in the Punjab, Patna and Madras High Courts. What followed was that in a
series of decisions issued by these courts, statutes which imposed the aforesaid
restrictions on free speech were struck down as being unconstitutional for falling
outside the ambit of Article 19(2) of the Constitution.
On 26 May 1950,5 the six judges of the Supreme Court decided two cases
which would have far-reaching implications for the right to free speech in India,
Romesh Thapar v. State of Madras6 and Brij Bhushan v. State of Delhi.7 In these
cases, the court held that ‘public order’ (a term which Ambedkar had tried to
bring into the Constitution, from Motilal Nehru’s report and the Irish
Constitution) was not an enumerated exception to the right to free speech, and
that a law which restricted speech on the ground that it would disturb the public
order was unconstitutional. These decisions were followed by the Punjab, Patna
and Madras High Courts, in a series of decisions which arguably went even
further.
Romesh Thapar, then a noted communist, was the printer, publisher and editor
of a new English weekly called Cross Roads printed in Bombay. Cross Roads
published articles which were critical of Prime Minister Nehru’s policies,
especially his foreign policy. At the time, a communist movement was beginning
to gain steam in the western parts of Madras state, now Kerala.8 Fearing that
Cross Roads would provide a further impetus to the communist movement there,
the Government of Madras, on 1 March 1950 (i.e., within a little over a month of
the coming into force of the Constitution), issued an order imposing a ban on the
entry and circulation of Cross Roads in Madras. The order was issued under
Section 9(1-A) of the Madras Maintenance of Public Order Act, 1949, which
authorized the government, for securing ‘public safety’ or the maintenance of
‘public order’, to ban the circulation, sale or distribution of newspapers in the
province of Madras. Thapar filed a petition directly before the Supreme Court of
India, i.e., without approaching a high court first. He argued that Section 9(1-A)
of the Act was contrary to the Constitution.
By a majority of 5-1 (with Justice Fazl Ali dissenting)9, the court struck down
the provision. Justice Patanjali Sastri, who wrote the judgment for the court,
relied on the early drafts of the right to free speech in the Constituent Assembly,
and noted that words like ‘sedition’ and ‘public order’ had been left out of
Article 19(2). On the other hand, the words ‘public order’ and ‘public safety’ in
the Madras Act had a very wide connotation,10 and not every speech which
affected public order was capable of undermining the security of the State or of
tending to overthrow the State. After all, a speech which created a local
disturbance could be one which affected ‘public order’ or ‘public safety’.
However, Article 19(2) only allowed the government to impose limits on free
speech if the speech in question was likely to have a tendency to ‘overthrow’ the
State. A local disturbance, like a communal riot, would not have such a tendency.
Consequently, Section 9(1-A) of the Act was declared unconstitutional.11
The RSS, a Hindu right-wing group, ran (and continues to do so) an English
weekly in Delhi called the Organiser. Brij Bhushan was its printer and publisher
while K.R. Halkani was its editor. On 2 March 1950, the chief commissioner of
Delhi imposed a prior restraint on the Organiser under Section 7(1)(c) of the
East Punjab Public Safety Act, 1949 which extended to Delhi as well. Under this
provision, a provincial government was authorized, for protecting ‘public safety’
and ‘public order’, to require a newspaper to submit the newspaper for scrutiny
before publication. This was akin to the prior restraints which had been imposed
on the press in 1799 by Governor-General Wellesley during the Fourth Mysore
War, and under the Defence of India Rules, 1939 at the time of the Second World
War. The government’s order imposing the restraint stated that the Organiser
was ‘publishing highly objectionable matter constituting a threat to public law
and order’. Its printer, publisher and editor were required to ‘submit for scrutiny
. . . all communal matter and news and views about Pakistan including
photographs and cartoons . . . ’
Once again, by a majority of 5-1, the court struck down the chief
commissioner’s order. However, the court essentially held that a prior restraint is
permissible under the Constitution, so long as the restraint is imposed in
furtherance of any of the enumerated exceptions to free speech under Article
19(2) of the Constitution.12 The sole Muslim judge on the court at the time,
Justice Fazl Ali, dissented once again. He agreed that the term ‘public order’ was
wide enough to cover even ‘a small riot or an affray’,13 but held that in some
cases ‘even public disorders of comparatively small dimensions may have farreaching effects on the security of the State.’14 He noted that Delhi had been
declared a ‘dangerously disturbed area’ at this time, an obvious reference to
Hindu-Muslim riots, justifying a law of this nature.
In short, the Romesh Thapar and Brij Bhushan cases had far-reaching
implications for the manner in which the government could restrict speech which
was designed to incite Hindu-Muslim riots and killings. The court’s judgments
could be read to mean that not every local Hindu-Muslim riot or mass murder
was capable of threatening the security or existence of the Indian State.
Consequently, the government would be powerless to restrain hate speech which
was designed to incite such local disturbances, which were nonetheless deeply
troublesome.
The Supreme Court’s decisions were then followed and applied in several
high courts throughout the country.15 For instance, in Punjab, a man called Amar
Nath Bali wrote a book called Now It Can Be Told. The book was a narrative of
events following the partition of India, describing the riots which took place in
West Punjab, and how Muslims there attacked Hindus and Sikhs.16 In fact, many
partition families were said to typically be Jana Sangh voters who were
distrustful of the Nehru government.17 In April 1950, the chief commissioner of
Delhi issued an order forfeiting all the copies of the book, under Section 4(1)(h)
of the colonial-era Indian Press (Emergency Powers) Act, 1931, perhaps fearing
that Hindus and Sikhs would, after reading the book, engage in retaliatory
violence against Muslims. The section allowed the state government to forfeit
books which appeared to ‘promote feelings of enmity or hatred between different
classes of the citizens of India’. Bali took his case to the Punjab High Court,
which held that Section 4(1)(h) was unconstitutional.
A lady called Shaila Bala Devi was the keeper of a printing press called the
‘Bharati Press’ at Purulia in Bihar. The press had published a Bengali leaflet
entitled Sangram. Written in ‘high-flown Bengali’ with a good deal of
‘demagogic claptrap’,18 the leaflet, in an abstract manner, called for a revolution
in India. For instance, it said:
I am the blood-thirsty goddess Kali who lives and moves about in the
cremation ground . . . I am thirsty. I want blood. I want revolution, I want
faith in the struggle. Tear, tear the chain of wrongs.19
In September 1949 (i.e., before the Constitution came into force), the
Government of Bihar issued an order under the Indian Press (Emergency
Powers) Act, 1931, which required Devi to deposit with the government a
security in the amount of Rs 2000. Section 4(1)(a) of the Act enabled the
government to forfeit the deposit where it appeared to the government that the
press was being used to incite or encourage ‘the commission of any offence of
murder or any cognizable offence involving violence’. Devi took her case to the
Patna High Court. The court held that Section 4(1)(a) of the Act was
unconstitutional.
However, in one of the concluding paragraphs of his judgment, one of the
judges, Justice Sarjoo Prasad,20 held that even a person who preached murder
and incited violence had the freedom to do so under Article 19(1)(a) of the
Constitution. Prasad said 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’ as ‘he would claim the privilege of exercising his
fundamental right of freedom of speech and expression’.21 This chilling passage
of Justice Sarjoo Prasad’s judgment was almost single-handedly responsible for
the First Amendment to the Constitution.
In July-August 1950, Master Tara Singh, a powerful regional leader who led
the movement for a separate Punjabi-speaking state,22 delivered two speeches.
He was prosecuted under sections 124-A and 153-A of the Indian Penal Code,
dealing with sedition and hate speech. The Punjab High Court held that both
sections were unconstitutional as they were far too broad.23
The Nehru-Liaquat Pact
Meanwhile, between 1949-50, there were large-scale communal riots in East
Pakistan, which led to a huge exodus of Hindus into West Bengal. In the wake of
these riots, the prime ministers of India and Pakistan, Nehru and Liaquat Ali
Khan, signed an agreement known as the ‘Nehru-Liaquat Pact’ or ‘Delhi Pact’.24
This was a confidence-building measure, aimed at securing peace between India
and Pakistan, and at ensuring that both countries would protect their respective
minorities. Clause (C)(8) of the Pact required the governments of both countries
to prohibit propaganda which incited war between the two countries.25 However,
it was felt that this clause in the Pact could not be enforced under Indian law.
In March 1950,26 about two weeks before the Pact was signed, Nehru wrote to
Home Minister Sardar Vallabhbhai Patel alarmed by the fact that Syama Prasad
Mookerjee’s Hindu Mahasabha was speaking about ‘Akhand Bharat’ (or unified
India), which was ‘a direct incentive to conflict’. Nehru was worried that war
with Pakistan was ‘openly (being) talked about’, which Nehru was strongly
against. Patel responded by telling Nehru that the Constitution was getting in the
way of what the government could do about this. In a letter to Nehru,27 he wrote:
We are now faced with a Constitution which guarantees fundamental rights
—right of association, right of free movement, free expression and personal
liberty—which further circumscribe the action that we can take. That means
that for every executive action there must be legal sanction and judicial
justification.
In April 1950, two days before the Pact was signed, Syama Prasad Mookerjee
resigned from Nehru’s cabinet. In his resignation letter to Nehru, Mookerjee
strongly expressed his disagreement with Nehru over the Pact, telling Nehru that
the policy he was following towards Pakistan was sure to fail, that time alone
would prove this.28 Nehru responded to Mookerjee a few days later, and said that
the only alternative to signing the Pact was war.29
Patel said to members of the press in Trivandrum in May 1950, about a month
after the Nehru-Liaquat Pact:
You know we have entered into an agreement with Pakistan. In that
agreement there is a clause that certain kinds of comments affecting the
atmosphere should not be allowed to be published. We cannot do that under
the Constitution. We cannot also prevent the Press from doing it. We can
only do it through moral pressure and through the friendly cooperation of
the Press . . . 30
In the meantime, Mookerjee openly started making strong speeches severely
criticizing the treatment of Hindu minorities by Pakistan. In a speech in
Parliament in April 1950, while explaining why he resigned from Nehru’s
cabinet, Mookerjee said: ‘I have never felt happy about our attitude towards
Pakistan. It has been weak, halting and inconsistent.’31 In May and June,
Mookerjee made speeches in Calcutta where he recited statistics on the number
of Hindus who had been attacked in East Pakistan, and said that it had become
impossible for Hindus to live there.32 It was his argument that while the Pact
called upon both countries, India and Pakistan, to protect their minorities, in
reality it was only Pakistan’s Hindus who needed protection, as India’s Muslims
were safe and secure. Pakistan’s foreign minister (and former judge of the
Federal Court of British India, the precursor to the Supreme Court) Zafrulla
Khan took exception to Mookerjee’s speeches, saying that they violated the Pact.
Sardar Patel sent a telegram to Khan in June 1950, and said that India’s
Constitution came in the way of the government being able to take any action
against Mookerjee. He wrote:
I am telegraphing . . . regarding Dr Syama Prasad’s activities . . . Prime
Minister has already explained constitutional position. That position affects
activities of individuals as well as of press and inextricably binds us.
Subject to that position we are doing all we can to ensure activities of
individuals and press conform to letter and spirit of agreement.33
In June 1950, Nehru wrote to Patel and said that the ‘chief culprit’ against the
smooth working of the Nehru-Liaquat Pact was ‘Hindu Mahasabha propaganda’,
‘the Calcutta Press as well as Syama Prasad Mookerjee’.34 Patel was disturbed
by the decisions of the Supreme Court in the Romesh Thapar and Brij Bhushan
cases.35 Patel thought that these decisions now made it impossible for the
government to take any action against Mookerjee and other more extreme
persons.36 Patel was of the opinion that the Constituent Assembly had drafted
very idealistic provisions in the Constitution which were not rooted in practical
considerations. In a letter to Nehru dated 3 July 1950, Patel wrote as follows:
I find no legal powers to deal with either Press or men like Syama Prasad
Mookerjee. Before you left for Indonesia, I drew your attention to the
Supreme Court decision in [the] Cross Roads and Organiser cases. That
knocks the bottom out of most of our penal laws for the control and
regulation of the Press. The views which they have expressed in that
judgment on the question of sedition make it doubtful whether we can do
anything not only about the speeches of Syama Prasad Mookerjee but also
those of the more extremist type. As you say, we have involved ourselves in
so many legal and constitutional difficulties that we do not know how to
overcome them. I sounded a note of warning and caution when these
provisions were being debated in the Drafting Committee, but then we were
led away by our idealistic exuberance. We seldom paused to consider the
practical and administrative applications of the many constitutional
provisions and even their interrelation. My own feeling is that very soon we
shall have to sit down and consider constitutional amendments.37
The decision of the Patna High Court in Shaila Bala Devi was delivered on 13
October 1950. Six days later, Nehru wrote to Law Minister B.R. Ambedkar,
opining that the right to free speech required amendment.38
Indeed, Mookerjee went on to make several more speeches bordering on
calling for war between India and Pakistan and for their forcible reunification. In
a speech made in Parliament in August 1950, for instance, Mookerjee suggested
that the Government of India must declare war on Pakistan in order to protect
Pakistan’s Hindu minority, and that the entire basis of partition had been undone
by Pakistan’s failure to protect its Hindu minority.39 In September 1950,
Mookerjee said in Calcutta that the government’s ‘present policy of appeasement
of Pakistan must cease’, and that either economic sanctions must be imposed or
‘military action’ must be taken against it.40 That month, he said at a conference at
Chinsurah, Hooghly, that India and Pakistan were in ‘a state of undeclared war’,
because ‘120 lakh people in East Pakistan’, that is Hindus, were finding it
‘difficult to live in their ancestral homes’, and another ‘50 to 60 lakh’ Hindu
refugees had come to India from Pakistan.41 In December 1950, Mookerjee
spoke at an RSS function where he said that the partition of India had ‘brought
misery and humiliation to millions’.42 In a speech in Parliament that month,
Mookerjee said that ‘[w]e are supposed to be at war with Pakistan in Kashmir’,
that India’s policy towards Pakistan should be based on ‘complete reciprocity’,
and that if the ‘situation worsens’, ‘India will have to depend . . . on her arms
and ammunitions or military strength’.43 In March 1951, Mookerjee said in the
Lok Sabha that ‘Pakistan wanted war’, and that if they still wanted it, ‘let them
have the taste of that’.44 In October 1951, at his presidential address at the
founding of the All India Bharatiya Jana Sangh, he said:
We already know that the partition of Bharat was a tragic folly. It has served
no purpose and has not helped to solve any problem, economic, political or
communal. We believe in the goal of reunited Bharat . . . 45
On 12 May 1951, a Bill was introduced in the provisional Parliament, to amend
certain articles of the Constitution, including Article 19(2).46 The explanatory
Statement of Objects and Reasons to the Bill, signed by Nehru himself, said that
the right to free speech in India ‘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’, an obvious reference to Justice Sarjoo Prasad’s
judgment in Shaila Bala Devi.
Things progressed at a hurried pace thereafter. Nehru issued a circular,
instructing members of his party to be present in Parliament, despite the
scorching heat of Delhi in May.47 On 16 May 1951, Nehru moved a motion to
refer the Bill to a Select Committee in Parliament. The Select Committee was to
consist of twenty-one members, including K.T. Shah, Sardar Hukam Singh,
Naziruddin Ahmad, B.R. Ambedkar and R.K. Sidhva, who we have seen, played
a part in the drafting of the right to free speech under the Constitution. It must be
noted, in all fairness and to the government’s credit, that Syama Prasad
Mookerjee, whose speeches were being viewed with suspicion by the
government, was also made a member of the Select Committee. However, now
Nehru himself, who had earlier taken almost no role in drafting Article 19(2) of
the Constitution, was also a member of the Select Committee. The amendment to
the right to free speech was finally passed in June 1951, with 228 members
voting in favour of it and only nineteen voting against it.
Though this was not the official line, the restriction relating to ‘friendly
relations with foreign States’ seems to have been thus motivated by an aim to
restrict speech calling for India to go to war with Pakistan and to annul the
partition. ‘[T]his House will realise,’ said Nehru in his speech in Parliament in
support of the First Amendment, ‘that at this particular moment of a very
delicate international situation and tension, we cannot easily take the risk when
something said and done, not an odd thing said and done, but something said and
done repeatedly and continuously, may lead in regard to foreign countries to the
gravest consequences, may lead to our relations with that foreign country
deteriorating rapidly.’48 He was obviously referring to Pakistan. In another
speech in Parliament, Nehru added, ‘If an individual does something which
might result in war, it is a very serious matter. No State, in the name of freedom,
can submit to actions which may result in wholesale war and destruction.’49 In
yet another speech, Nehru defended the ‘friendly relations with foreign States’
exception in the following terms:
. . . suppose you do something which seems to us to incite to war, do you
think we ought to remain quiet and await the war to come? . . . We cannot
imperil the safety of the whole nation in the name of some fancied freedom
which puts an end to all freedom . . . we are living in a very delicate state of
affairs in this world, when words, whether oral or written, count; they make
a difference for the good or for the bad. A bad word said out of place may
create a grave situation, as it often does.50
Syama Prasad Mookerjee, in his speech in Parliament against the First
Amendment, said that partition was a mistake and that it should be undone some
day, even by force. He said that he did not know whether the ‘friendly relations
with foreign states’ exception related to ‘the demand which is made in certain
quarters about a possible reunion of India and Pakistan’. He said that he knew
that ‘the Prime Minister holds very strong views about it and he51 has said a
number of times that any such movement or agitation is harmful to the interests
of the country and that he does not like it.’52 In fact, Mookerjee had consulted
senior advocate Narotam Singh Bindra on the proposed constitutional
amendment. Bindra had informed Mookerjee that the amendment would debar
Indians from ‘making any comment with respect to the activities of Pakistan in
connection with the evacuee property within its territories or with respect to the
policy of the Government of India in this behalf’.53
However, the official line was that the ‘friendly relations with foreign states’
exception was intended merely to prevent defamation of foreign state heads.54
This kind of restriction had previously been imposed by the colonial
government. For example, it was imposed in 1915, during the First World War.55
Justice Sarjoo Prasad’s Judgment
It is certain that the decision of the Patna High Court in Shaila Bala Devi,
particularly, the chilling passage of Justice Sarjoo Prasad’s judgment, was the
immediate cause for introducing the words ‘incitement to an offence’ into Article
19(2). Apart from the Statement of Objects and Reasons, Justice Prasad’s
judgment was spoken about by several members in Parliament during the
debates on the First Amendment. Nehru referred to the Patna High Court
judgment in two separate speeches. ‘The House knows,’ he said, ‘that one of the
High Courts held that even murder or like offences can be preached. Now it is an
extraordinary state of affairs if that can be done.’56 ‘Why is this amendment
brought?’ Nehru asked himself in another speech in support of the amendment in
Parliament, ‘I think it was the Bihar High Court which said something to the
effect that preaching of murder is allowed under this clause,’57 he continued.
Home Minister58 C. Rajagopalachari also referred to the Patna High Court
judgment in his speech in support of the Bill.59 When Syama Prasad Mookerjee
argued against the Bill, some members interrupted, saying, ‘Ask the High Courts
. . . A person can preach murder and still go scot-free.’60
Hate Speech
Many members in Parliament supported the amendment because it enabled the
government to deal with hate speech. ‘I am ashamed of the Press,’ said Pandit
Krishna Chandra Sharma. He added: ‘Thousands of people have been murdered
on account of the false reports published in the Press regarding Hindu-Muslim
riots.’61 According to Chandra, in 1947, a Delhi daily newspaper falsely reported
that fifty Hindus had been killed by Muslims in communal attacks, and as a
consequence, thirty Muslims were killed in retaliatory attacks by Hindus on the
following day. ‘Who is responsible for these [thirty] lives?’ asked Chandra.62
‘How many of you remember,’ asked Nehru, ‘or have you forgotten, threeand-a-half years ago, in this city of Delhi in the month of September 1947, in
Punjab, in that entire body of Western Pakistan, what had happened?’ He
continued, ‘anything that goes towards disrupting the community, anything that
goes towards creating communal discord in this country will be met with the
heavy hand of this government.’63 ‘I am not going to allow anything coming in
the way of the freedom and unity of India,’ he said, strongly.64 Even in February
1950, Nehru had written a letter to Patel in which he had said that there was ‘a
constant cry for retaliation and of vicarious punishment of the Muslims of India,
because the Pakistanis punish Hindus’.65 He had written to Patel that ‘this policy
of retaliation and vicarious punishment [would] ruin India as well as Pakistan’.
The ‘public order’ exception was particularly geared towards restraining hate
speech or speech which incited communal violence, especially against the
political backdrop of the Nehru-Liaquat Pact.
False News and Personal Attacks
On the other hand, several speeches, made in Parliament in support of the
amendment, showed that the government was beginning to get irritated with
speech of a low value, for example, newspapers which made abusive personal
attacks against public figures instead of engaging in serious political
commentary, as well as newspapers which published false news stories. Nehru
said that it was a matter of the ‘deepest distress’ to him that certain ‘less
responsible news-sheets’ were emerging in India which were ‘full of vulgarity
and indecency and falsehood’, and which were ‘poisoning the mind of the
younger generation, degrading their mental integrity and moral standards’.
‘[I]magine,’ he said, ‘our soldiers and our sailors and our airmen reading this
from day to day.’66 In another speech, Nehru said that he was ‘ashamed’ after
reading some Hindi and Urdu press cuttings, on account of their ‘disgusting and
obscene and vile’ content.67 He once again expressed worry about what the poor
villager, townsman or soldier in India would think after reading those articles.
Their morale and standard would go down, he thought.68 While he was willing to
concede the greatest amount of freedom for high value political speech and
criticism, he wanted ‘utterly degraded criticism bringing in the personal life of
individuals’ to be excluded from the ambit of free speech.69
Nehru might have been referring, among other things, to personal attacks
which had been levelled in the press against Sardar Patel, in the aftermath of the
Nehru-Liaquat Pact. Newspapers like the Janashakti (mouthpiece of the Bombay
Socialist Party) and the Janata had reported that after Liaquat left for Karachi,
Patel had convened a meeting of the Congress party (at which Nehru was absent)
and protested against the Pact.70 This was incorrect. Patel referred to these
reports as ‘venomous and false propaganda’,71 ‘calumny and false and
mischievous propaganda’,72 and ‘sinister propaganda’.73 Patel later said that the
press must ‘maintain a certain degree of decency and moral standard’.74 Nehru
wrote to the editor of the Janata and said that the information published in the
newspaper was ‘baseless and absolutely false’, that the Janata ‘has done great
injustice to [Sardar Patel]’ and that it must ‘publicly apologize to [Sardar Patel]
for publishing this’.75
In April 1950, Nehru made a statement76 in which he spoke out strongly
against the press. ‘It has been my misfortune,’ he said, that there was a
‘representation of falsehood and distortion of truth frequently in a number of
periodicals.’ He was alarmed by the ‘lowering of tone and vulgarity of some of
these publications’. The false stories reported in the press about Patel, about
Nehru’s sister Vijaylakshmi Pandit (at the time, India’s Ambassador to the US),
and even himself, were beginning to irk him. ‘I have been astonished at the
farrago of nonsense and malicious misrepresentation that has appeared’ in the
press, he said. Nehru was speaking in the context of the Janata article.
Russi K. Karanjia’s loud and irreverent Bombay tabloid, Blitz,77 called the
First Amendment Bill a ‘Black Bill’ and a ‘rape of the Constitution’.78 Blitz
believed that it was one of the primary targets of the Bill.79 While this may not
have been entirely true, Blitz was certainly one example of the kind of
newspaper that Nehru was referring to in his speeches in support of the Bill.80
India’s Illiterate Poor Not Ready For Free Speech
Some in Parliament supported the amendment and argued that Indians did not
deserve to have free speech to the same extent as the citizens of Western
democracies like the US and UK because the Indian democracy was not as
mature as theirs. The theme of these speeches was that India’s teeming masses,
being illiterate and poor, were not in a position to distinguish the true news from
the false. These arguments, made by members of the provisional Parliament in
independent India, were astonishingly similar to the arguments made by colonial
legislators and judges about the ignorance of readers of Indian language
newspapers. Indians are different from Englishmen in their receptiveness to
incitement, said Reverend D’Souza. ‘[W]e must not . . . forget the phlegmatic
English character is not [as] easily ruffled and does not respond to incitement,’
he continued.81 Pandit Thakur Das Bhargava said that India’s population was
‘ignorant and illiterate’, that here, ‘it is very easy to mislead our people as they
are apt to believe readily whatever appears in print’.82
The Opposition to the Amendment
A Hurried Measure
The proposed amendment to the right to free speech was heavily criticized on
several grounds.83 Many argued that the Bill was being forced through
Parliament in a hurried manner. The Constitution had taken several years to be
drawn up, but the Bill was being rushed through Parliament in a matter of a
month.84 Many said that the provisional Parliament, being a unicameral body
which had been elected indirectly, five years previously, through a limited
franchise, was incompetent to amend the Constitution, and that the
Constitutional amendment should be carried out only by the Parliament which
was democratically elected as a result of the general elections which were round
the corner.85 Some said that comments should be solicited from the general
public regarding the changes sought to be made by the Bill,86 others that it was
too soon after the enactment of the Constitution to amend the Constitution.87
Nehru justified the amendment Bill on the ground that the Constitution was
being amended by the very body which had enacted it. ‘[I]t is we after all,’ he
said, ‘who were the Constituent Assembly and who drafted this Constitution.’88
However, this argument was rejected by some of the members of the Select
Committee, who said that the membership of the Constituent Assembly had
changed significantly since the enactment of the Constitution, and that the
present members of the provisional Parliament could not be considered as
having had any significant insights into the thought processes of the original
framers of the Constitution.89 There was some element of truth to this. Two of
the strongest voices in the Constituent Assembly regarding free speech, Sir
Alladi and K.M. Munshi, did not participate in the debates concerning the First
Amendment. Also, party whips had been kept out of the Constituent Assembly,
while they were now a part of Parliamentary proceedings, which was not ‘in tune
with the spirit and tradition of the Constituent Assembly’.90 Some complained
that the membership of the Select Committee was faulty, that members of the
House who were also members of the press had not been included in it.91
It may be true that the First Amendment was rushed through Parliament in a
matter of a month where the Constitution itself had taken several years to be
drafted. However, it is also true that in the proceedings relating to the
amendment in Parliament, the right to free speech occupied centre stage to an
unprecedented extent. The fundamental right to free speech was now discussed
in the House more extensively than ever before. Though the Bill contained other
amendments as well, amendments relating, most importantly, to the right to
property, it was free speech which garnered the greatest debate. Nehru himself
made five speeches in Parliament on Article 19(2). Law Minister Ambedkar
spoke twice. Most of the members who spoke in the House devoted perhaps the
largest portion of their speeches to the right to free speech and expression. In
short, the First Amendment generated more debate on free speech in the
provisional Parliament than that which had been generated in the Constituent
Assembly.
‘Reasonable’
Several objections were taken to the fact that the Bill omitted to introduce the
word ‘reasonable’ into Article 19(2) of the Constitution. Article 19(2) of the
Constitution enabled the State to impose restrictions on the right to freedom of
speech and expression on certain enumerated grounds. What was now at stake
was whether such restrictions imposed by the State had to be ‘reasonable’ or not.
We have already seen that in the Constituent Assembly, Pandit Thakur Das
Bhargava had played an instrumental role in introducing the word ‘reasonable’ in
the other restrictions to the right to freedom, and that despite his efforts, Article
19(2) did not contain the reasonableness qualification.
Even prior to the reference of the Bill to the Select Committee, a debate had
ensued within the Cabinet Committee (constituted to draft the First Amendment)
as to whether the continued omission of the word ‘reasonable’ was now
justified.92 The law ministry, under Law Minister B.R. Ambedkar, strongly
recommended to the Cabinet Committee that the word ‘reasonable’ should now
be added to Article 19(2).93 However, the Cabinet Committee decided to adopt
the suggestion of the home ministry, which advised against the inclusion of the
word ‘reasonable’ in Article 19(2). Thus, before the Bill was referred to the
Select Committee, the word ‘reasonable’ was not included in the proposed
amendment to Article 19(2).
During the debate on the motion to refer the Bill to the Select Committee,
Pandit Thakur Das Bhargava, champion of reasonableness in the Constituent
Assembly, stood up once again to advocate the inclusion of the word
‘reasonable’ in Article 19(2). ‘I want that the liberties of the citizen of this
country should be protected’, he said, ‘and unless and until the word
“reasonable” is placed before the word “restrictions” [the Constitution] would
not ensure that liberty.’94
Interestingly, when Ambedkar stood up to support the Bill, Syama Prasad
Mookerjee interrupted him and asked, ‘Why have you omitted the word
“reasonable” from the existing clause?’95 This was an irony because Ambedkar
and his ministry had privately advocated the inclusion of the word ‘reasonable’
in the proposed amendment to Article 19(2) even prior to its introduction in the
House. Ambedkar responded by virtually acknowledging that this was an
unjustified omission: ‘That is a matter which may be discussed’, he said.96
When the Bill was referred to the Select Committee, the only substantial
change which the Select Committee made was that the word ‘reasonable’ was
now included in the proposed amendment to Article 19(2).97 One member of
Parliament later said that it was a ‘common belief’ that the home minister at the
time, C. Rajagopalachari, was persuaded to include the word ‘reasonable’ in the
First Amendment, ‘after a great deal of argument’.98 Virtually all the dissenting
members of the Select Committee acknowledged that this was a very substantial
change.99 When Nehru moved the Bill again in Parliament, he said that the word
‘reasonable’ had now been included in the amendment, even though according to
him its presence was always implied in Article 19(2).100 In fact, Nehru privately
thought that the insertion of the word ‘reasonable’ would be an invitation for all
free speech cases ‘to go to the courts with ensuing uncertainty’.101
The inclusion of the word ‘reasonable’ in Article 19(2) was an important
compromise. The First Amendment added three restrictions to the right to free
speech: public order, friendly relations with foreign States, and incitement to an
offence. However, the word ‘reasonable’ in Article 19(2) now meant that a court
could determine whether a restriction imposed by the State on the right to free
speech on any of the enumerated grounds was reasonable or not.
Earlier, Syama Prasad Mookerjee had pointed out the irony that while the First
Amendment to the US Constitution created the right to free speech, the First
Amendment to the Indian Constitution was seeking to restrict it.102 However,
after seeing the change made to the Bill by the Select Committee, Pandit Thakur
Das Bhargava said that the First Amendment Bill in India now also enlarged
freedoms like the First Amendment in the US.103
Other Opposition
Several members of Parliament were opposed to the introduction of the words
‘public order’ in Article 19(2).104 Syama Prasad Mookerjee suggested that public
order be subjected to the ‘clear and present danger test’, i.e. that ‘the substantive
evil must be extremely serious and the degree of imminence extremely high’.105
He argued that without this or a similar limitation, the ‘public order’ exception
could be used to penalize political opponents.106
Some members wanted the restriction ‘friendly relations with foreign States’
to be deleted altogether,107 others for it to be read down.108 Ambedkar made a
speech saying that the words ‘friendly relations with foreign States’ were being
inserted in order to protect the constitutional validity of the Foreign Relations
Act, 1932, which was likely to be declared unconstitutional along the lines of the
Romesh Thapar and Brij Bhushan decisions.109 The Act gave the government the
power to forfeit publications which were ‘defamatory of a Ruler of a State
outside India but adjoining India’, or of his consort, son, or principal minister,
and which publication tended to ‘prejudice the maintenance of friendly relations’
between the crown and the government of that State. The Act was primarily
meant to govern relations between the British Indian provinces and the princely
states. Several members suggested that the words ‘friendly relations with foreign
States’ were too broad, that they included states which were not adjoining India
or even friendly towards India, and that the restriction be limited to cover only
defamation of foreign State heads.110 Naziruddin Ahmad, for instance, doubted
whether friendly relations between two countries could be jeopardized ‘by mere
criticism by any individual citizen of a country’.111
The debate surrounding the proposed restriction ‘incitement to an offence’
related to whether the restriction should include incitement only of murder and
violent offences or of all offences. The Bill provided that all incitement—
whether of violent offences or otherwise—would fall outside the purview of the
right to freedom of speech and expression. Several members of the House
suggested that the restriction be narrowed down to include merely incitement to
murder, violent crimes and sabotage.112 Acharya Kripalani, for example, said that
India’s freedom movement was based on the doctrine of satyagraha which
involved inciting non-violent disobedience to laws, and that the restriction
should therefore apply only to violent crimes.113 Nehru opposed this. While he
agreed that the incitement restriction applied, at present, to trivial offences as
well, he said that it was up to the legislature to ensure that the restriction would
not be abused.114 Some supported Nehru.115 C. Rajagopalachari, for example,
said that it would not be okay to allow a person to incite others to carry liquor
bottles in their trouser pockets, in violation of prohibition laws.116 Likewise,
Ambedkar said that it would not be acceptable for ‘caste Hindus’ to ‘proclaim a
social boycott on the Scheduled Castes . . . preventing them from going into the
fields’ and ‘preventing them from going into the jungles to collect fuel’.117
There were other criticisms levelled against the proposed amendment to
Article 19(2). Some suggested that it should only be Parliament, not the state
legislatures, which should be equipped with the authority to enact laws
infringing free speech under the enumerated exceptions.118 It was suggested that
laws enacted by the state legislatures infringing the right to free speech should
only be valid if assent were granted to them by the President of India.119
Ambedkar rejected this suggestion on the ground that it would violate the
provisions of the Constitution dealing with the distribution of legislative powers
among the centre and states.120
Apart from the proposed amendment to Article 19(2), the Bill also sought to
overrule the judgments of the Supreme Court and the Punjab, Patna and Madras
High Courts seen above, by retrospectively validating laws which would now be
saved by the amended Article 19(2).121 Many argued that this retrospective
validation was not justified.122 However, this suggestion was also rejected by
Parliament.
The Supreme Court’s Course Correction
While Parliament was debating the amendment to the right to free speech, few of
its members were paying much attention to the fact that the Supreme Court was
actually beginning to narrow down the scope of the right to free speech. On 6
April 1951, the Supreme Court decided the case of Ram Singh v. State of
Delhi.123 In it, the court held that while a person could not be directly prevented
from making a speech on the ground that it promotes enmity between Hindus
and Muslims, he could nonetheless be preventively detained in order to preclude
him from making those speeches. The Supreme Court’s judgment in this case
would have naturally had the effect of chilling hate speech, given that any person
who promoted enmity between Hindus and Muslims could now be preventively
detained. In the House, Syama Prasad Mookerjee had argued that the existing
laws on preventive detention were sufficient to deal with speech that had a
detrimental effect on the ‘public order’.124 However, the House rejected this
argument, perhaps preferring restrictions on free speech over preventive
detention.
Eventually, Justice Sarjoo Prasad’s judgment in Shaila Bala Devi came to be
reversed by the Supreme Court, in appeal, on 26 May 1952, which was after the
enactment of the First Amendment. In State of Bihar v. Smt. Shaila Bala Devi,125
Justice Mahajan, who wrote the judgment of the Supreme Court, held that
Justice Sarjoo Prasad’s chilling observations, which have been seen above,
disclosed ‘a complete lack of understanding of the precise scope’ of the Romesh
Thapar and Brij Bhushan decisions. It was held that even prior to the First
Amendment, speeches which incited the commission of violent crimes such as
murder fell within the ambit of Article 19(2) of the Constitution.126
***
It is particularly interesting that the judgments of the Supreme Court and several
speeches made by members of Parliament invoked decisions of the US Supreme
Court on free speech, despite the fact that it has been seen that the right to free
speech in India owes its textual origins to the Irish Constitution. Few persons, if
any, cited any Irish decisions. In one of his speeches, for example, Ambedkar
referred to the US Supreme Court decision of Near v. Minnesota127 and why it
could not be considered a good authority any more. In that speech, Ambedkar
also referred to Justice Oliver Wendell Holmes’ judgment on the ‘clear and
present danger’ test in Schenck v. US.128 In fact, in the debate on the First
Amendment in Parliament, so many members referred to American decisions on
free speech that one member sarcastically commented that Parliament had
‘[outdone] America itself in quoting [its] Supreme Court’s decisions to the
extent we did’.129
Free speech scholar Lawrence Liang has interestingly pointed out the contrast
between the First Amendment to the US Constitution and the First Amendment
to the Indian one. While the former created and recognized the right to free
speech in the US, the latter restricted the right to free speech in India.130 This
contrast, however, becomes less stark when one realizes that the First
Amendment to the US Constitution was actually the Third Amendment—the
states of that country did not ratify the first two amendments.131 Thus, it is not
really possible to argue that the framers of the US Constitution believed the right
to free speech to be a preferred right. The free speech amendment was actually
third on the founding fathers’ list.
It is not very well known that, over the years, restraints have been imposed on
the press in independent India which have resembled the restraints imposed on
the colonial press, which we have seen in a previous chapter. For instance,
shortly after the First Amendment was passed, Parliament enacted the Press
(Objectionable Matter) Act, 1951. This law re-introduced the bonds system of
prior restraints on the press—a system which, we have seen, was first put in
place in colonial India under Lord Lytton’s dreaded Vernacular Press Act in
1878. Under the new law, a competent authority could complain to a sessions
judge that a book or newspaper was carrying ‘objectionable matter’.
‘Objectionable matter’ was broadly defined132 as incitement of some kind,133 hate
speech, or words which were ‘grossly indecent’, ‘scurrilous or obscene’ or
intended for blackmail. If, on the complaint, the sessions judge was satisfied that
the book or newspaper was, in fact, carrying objectionable matter, then he could
demand a security from the keeper of the printing press,134 a security which
could be forfeited if the press continued publishing similar material.135 Unlike
the Vernacular Press Act, however, the amount of the security had to be ‘fixed
with due regard to the circumstances of the case’ and could not be ‘excessive’.136
There was also an appeal to the high court.137 The law was finally repealed in the
year 1957.138
Thereafter, during the Emergency in the 1970s, India’s Parliament enacted the
draconian Prevention of Publication of Objectionable Matter Act, 1976.139 The
government’s aim was to stifle all dissent and create a culture of fear. Like the
Vernacular Press Act, this law enabled the government to require a printing press
to furnish a security in ‘such amount as the competent authority may think fit to
require’,140 though the bond could not be ‘excessive’ and had to be ‘fixed with
due regard to the circumstances of the case’. The government was also given the
power, under this statute, to prohibit the publication of any newspaper which
dealt with any particular subject or class of subjects.141 It could forfeit, seize and
destroy unauthorized newspapers and printing presses.142 Sentences of
imprisonment were imposed on those who violated the law. There was, however,
an eventual appeal to the high court.143 The statute came into force with effect
from December 1975,144 and was repealed in April 1977.145
Both these statutes appeared to be more draconian than colonial era laws
enacted after the Vernacular Press Act. For instance, we have seen that in 1910
and 1931, laws were enacted in British India which empowered the government
to demand a security from printing presses, but that these laws imposed a ceiling
on the maximum amount which could be asked to be paid as a security.
However, Nehru’s statute of 1951 and Indira Gandhi’s statute of 1976, like
Lytton’s Vernacular Press Act, imposed no limit on the amount which the
government could demand as a security from a printing press.
Likewise, the Defence of India Acts enacted at the time of the India-China
war of 1962 and India-Pakistan war of 1971, imposed very similar restraints on
the press as were brought about in the wartime statutes enacted during the First
and Second World Wars in British India. For instance, Indira Gandhi’s Defence
of India Rules, 1971, enabled the government to impose prior restraints on the
press, akin to those imposed by Governor-General Wellesley in Calcutta in 1799
at the time of the Fourth Mysore War, and to those contained in Rule 41 of the
Defence of India Rules, 1939, during the Second World War.146
6
The Anti-DMK Amendment
In 1963, Article 19(2) of the Constitution was amended for the last and final
time, and the words ‘the sovereignty and integrity of India’ were inserted in it,
creating one more enumerated exception to the right to free speech. The
Constitution (Sixteenth Amendment) Bill, 1963 (hereinafter, the ‘Bill’) was
informally referred to as the ‘Anti-Secession Bill’.1 It was designed to prevent
local political leaders in different regions within India from using the electoral
process to peacefully propagate secession from the Union. In the past, the
Muslim League in British India had used the electoral process to demand
Partition. It was now feared that local political parties with regional, not
religious, affiliations were getting elected to office on the promise that they
would advocate secession for their region from India. The chief target of this
constitutional amendment was the southern political party Dravida Munnetra
Kazhagam (the ‘DMK’) in the state of Madras, which had advocated secession
of parts of the south,2 and the creation of a separate nation state called ‘Dravida
Nadu’3 or ‘Tamilnad’. Calls for secession in Punjab and Nagaland also inspired
the Bill. Ironically, it was enacted at a time when demands for secession had died
down in the country in the wake of the Chinese aggression.
***
The DMK was a political party which was founded in 19494 by followers of
‘Periyar’ (meaning ‘great man’) E.V. Ramaswami Naicker.5 The DMK used the
parliamentary process itself for articulating demands for secession.6 It won a few
seats in the 1957 election for the Madras Legislative Assembly, and their slow
success began to trouble the government.7
It was not the outbreak of war with China in 1962 which precipitated the
Sixteenth Amendment to the Constitution. In fact, during the war, the DMK had
scaled back its demands for secession. Much prior to the war, in January 1961,
the Congress party at its Bhavnagar session had set up a ‘National Integration
Committee’, under the chairmanship of C.P. Ramaswami Aiyar,8 to look into
steps that could be taken for promoting national integration.9 Prime Minister
Nehru had called a meeting of the chief ministers in August 1961, where it was
recommended that advocacy of secession be made a criminal offence.10 In
September 1961, a National Integration Conference was convened.11 The
committee submitted its report to the prime minister on 5 November 1962.12 It
made only one recommendation,13 viz., that Article 19 be amended to prevent
Indian citizens from demanding secession. The DMK was kept out of these
proceedings, and was not consulted by the committee.14
The debates in Parliament make it very clear that the Bill was primarily being
enacted as a reaction to the DMK’s demands for secession. Law Minister A.K.
Sen, who moved the Bill, said that it was the Bill’s purpose to outlaw ‘all
activities of a secessionist nature, so that we may not have a repetition of what
happened from 1940 in this country when the Muslim League made the partition
of India . . . its main political platform and fought elections on that resulting in a
disaster . . . ’.15 Sen informed the House that he had initially intended to speak in
Hindi, but since ‘most of the challenge came from areas whose representatives
might not have understood Hindi,’ he had decided to speak in English instead.16
‘The immediate provocation or the immediate cause’ for the Bill, said M.S.
Gurupada Swamy,17 ‘is obviously the activities of the DMK.’18 Speaking in
favour of the Bill, R.N. Reddi referred to the movement for a separate
‘Dravidnadu in the South’.19 Opposing the Bill in the Lok Sabha, DMK party
member Nanjil Manoharan20 admitted that the DMK was carrying out
‘propaganda’ for ‘the formation of Dravidastan’.21 Another opponent of the Bill,
Narasimha Reddy, said that the Bill was being referred to in the press as the
‘anti-cession Bill’, but it was known in Madras as the ‘anti-DMK Bill’.22 He said
that the Bill was ‘primarily intended for the suppression of the DMK
organization, so some people think’.23 For Reddy, the Congress party was
exacting its revenge against the DMK for giving it trouble in the previous
elections. The debate on the Bill in the Rajya Sabha reads as though the DMK
member, C.N. Annadurai,24 was himself on trial. Annadurai said that the Bill
might have been ‘aimed at others also’, but that the newspapers and political
speeches suggested that its target was only ‘the despicable DMK, not others’.25
However, though the DMK in Madras State was the primary target of the Bill,
the amendment was also designed to quell calls for secession in other parts of the
country, particularly Nagaland and Punjab. Several members of the House
referred to the situation in Nagaland as a possible justification for the Bill.26 Law
Minister Sen expressly rejected the allegation that the DMK was the only reason
that the Bill was being enacted. He said that there were others who ‘openly want
secession from India and who openly preach (the) disintegration of India’.27
‘One familiar example’, he said, was the ‘rebel or hostile Nagas on the eastern
border’, who had not yet given up their demand for a separate nation state of
Nagaland.28 Sen said that ‘forces of disintegration’ had taken hold in India
‘[s]tarting from the Punjab, right up to the South’.29 Thus, Sen referred to
Madras, Nagaland and Punjab in support of the Bill.
The Bill was thought to be necessary because the words ‘security of the State’
in Article 19(2) were considered insufficient to prevent a person from using the
electoral process to advocate secession peacefully. The amendment bill did not
only seek to add an exception to the right to free speech. Among other changes,
it also made ‘the sovereignty and integrity of India’ an enumerated exception to
the rights to assembly and association contained in Articles 19(1)(b) and (c).
Law Minister Sen said that ‘some of the decisions of the Supreme Court (had)
made it quite clear that ‘security of the State’ is a limited expression and it does
not comprehend any power to ban organizations or political activities so as to
bring them within the exceptions under the article unless something more is
there.30 The government thus appeared to be keen to ban associations which
advocated secession, and the words ‘security of the State’ in Article 19(2) were
thought to be insufficient for this purpose.
The amendment Bill was also symbolic. It introduced, for the first time, an
oath which was now required to be taken by any person who was even merely
nominated as a candidate to fill a seat for the Lok Sabha, Rajya Sabha or a state
legislature. In other words, a person who wanted merely to contest an election
for a state legislature or Parliament now had to take an oath. The Bill also
amended the oaths that were required to be taken by elected members of
Parliament and state legislatures. The Bill now required all these persons to
swear that they would, among other things, ‘uphold the sovereignty and integrity
of India’.31 Law Minister Sen believed that this would have ‘a salutary effect’ on
elected representatives.32 Interestingly, even Supreme Court judges and high
court judges are, following the Sixteenth Amendment, required to take an oath to
uphold the sovereignty and integrity of India. This presumably means that
Supreme Court and high court judges are bound by their oaths to deny any
person the right to peacefully propagate secession from India.33
While the war with China might not have been the cause for the Bill, it
certainly provided the necessary rhetoric for its enactment and created a general
feeling of insecurity and paranoia which reduced opposition to it. The Bill was
enacted at a time when India was under its first national emergency,34 when civil
rights and civil liberties had been suspended. Even though the war with China
had lasted between October-December 1962, the national emergency was
continued from October 1962 to December 1967.35 As Communist Party member
Bhupesh Gupta noted in the Rajya Sabha, ‘[t]oday, as we are discussing this
subject [i.e., the Bill], the irony of it is that article 19 is frozen, it does not
exist.’36 In his speech in the Lok Sabha, Law Minister Sen referred to the ‘hardwon freedom’ which India had earned ‘at the cost of millions of patriots’ lives’
and to ‘the flag of independence which we have earned for ourselves with the
blood of many a martyr’, in support of the Bill.37 On another occasion, Sen said
that it was ‘unfortunate that at a time when we are facing the most major threat
in our history since independence, we should have to contend with such
activities and have to ask for powers to deal with such activities’.38 Surendranath
Dwivedy39 said that there were parties in India which had ‘extra-territorial’
loyalties,40 an obvious reference to the Communist Party, which another member
said had two factions, one loyal to Peking, the other to Moscow.41
***
The debates which took place in the Lok Sabha on the Sixteenth Amendment
Bill were different in tone from debates which had taken place on the right to
free speech earlier in the Constituent Assembly and the provisional Parliament.
The speeches made by Law Minister A.K. Sen and minister of state in the
ministry of home affairs, R.M. Hajarnavis, in support of the Bill seemed to lack
the erudition of Law Minister Ambedkar and the lofty idealism of Prime Minster
Nehru. Yet, at the same time, there was little opposition to the Bill, and few
claimed that it violated the sacrosanct or preferred right to free speech. Powerful
voices in favour of free speech like those of Munshi, Bhargava, and Mookerjee,
were now missing in the debate on the Sixteenth Amendment. The debate
seemed to prize rhetoric and flourish over substance.
Nehru, who had spearheaded the First Amendment, and who was still very
much the prime minister at this time, was not even a member of the
parliamentary Joint Committee on the Sixteenth Amendment, and he took part in
no debate on the Bill in Parliament. Where Syama Prasad Mookerjee, opponentin-chief of the First Amendment, was very fairly made a member of the Select
Committee by the government in 1951, none of the prominent members of the
DMK (particularly Manoharan or Sezhiyan from the Lok Sabha or Annadurai
from the Rajya Sabha), the natural opponents of the Sixteenth Amendment, were
made members of the Joint Committee in 1963.42 Where the Select Committee
report at the time of the First Amendment produced sixteen pages of dissent,
even though the Select Committee at the time had only twenty-one members on
it, the Joint Committee for the Sixteenth Amendment with its forty-five members
produced no more than two pages of dissent. When the specific amendment to
Article 19(2) was taken up, there was no debate on it whatsoever and no
amendment was moved to change its wording in either House of Parliament. The
clause amending Article 19(2) was passed on 2 May 1963 by the Lok Sabha by a
unanimous vote of 293-0, and it was passed on 9 May 1963 by the Rajya Sabha
by a vote of 135-1 (with only the DMK leader, C.N. Annadurai, voting against
the resolution). Likewise, the amendment Bill itself was passed by the Lok
Sabha on 2 May 1963, unanimously,43 and by the Rajya Sabha on 9 May 1963 by
a majority of 137-1 (Annadurai opposing).
The Bill therefore engendered little or no opposition. Those who did object to
it raised several pertinent grounds. Some said that there was no need to pass the
Bill, because the country had become united after the Chinese aggression and
even the DMK had given up its secession demands temporarily.44 Some argued
that demands for secession, so long as they were peaceful, ought to be
permitted.45 C.N. Annadurai from the DMK argued that the National Integration
Committee had not met with members of the DMK.46 Sezhiyan powerfully said:
[P]lease 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.47
Some members of the House referred extensively to the right to free speech
under the US Constitution. Sezhiyan, for example, cited the judgment of Justice
Jackson in the case of West Virginia State Board of Directors v. Barnette48
decided by the US Supreme Court. In this case, the US Supreme Court had
written the iconic lines, ‘[c]ompulsory unification of opinion achieves only the
unanimity of the graveyard’,49 and ‘[i]f there is any fixed star in our
constitutional constellation, it is that no official, high or petty, can prescribe what
shall be orthodox in politics, nationalism, religion or other matters of opinion’.50
He cited the dissent of Justice Oliver Wendell Holmes in the famous case of
Abrams v. US,51 and quoted from a speech made by Thomas Jefferson.52 Others
argued against invoking the example of the US, where a civil war consequent to
the secession of the south had nearly torn that country apart.53
Many said that a constitutional amendment or mere legislation alone would
not protect the sovereignty and territorial integrity of India, that underlying
problems behind demands for secession would have to be addressed,54
particularly the disagreements between north and south. For example, B.D.
Khobragade argued that it was insensitive of people in the north to burn effigies
of Ravana during Dussehra, when many in the south revered not Rama but
Ravana.55 Bibudhendra Misra said that the DMK was propagating the idea that
southerners belonged to the Dravidian race, whose culture was different from the
Aryan race of northerners.56 B.K.P. Sinha argued that towns in India like
Jamshedpur had ghettos or mohallas and Indians from different regions did not
mix in them.57 A member from Assam said that ‘there is less affinity among the
different peoples in India than among the different nations of Europe’, because
while European countries could at least ‘claim the same pigment of their skin’
and ‘the same religion throughout the length and breadth of Europe’, India was a
country ‘with a bewildering, often conflicting varieties of people, of languages,
of sects, of faiths, of colours, of nationalities, of races’ which could not make
similar claims.58
Some said that rather than making piecemeal amendments to the Constitution,
a committee should be constituted to suggest comprehensive changes to be made
to the Constitution once and for all.59 Citing a paper published by a senior
researcher at the Indian Law Institute,60 H.N. Mukherjee said that words like
‘sovereignty’ and ‘integrity’ were vague and were susceptible to being
misinterpreted by courts.61 H.V. Kamath cited the example of the Scottish Home
Rule Party62 which was permitted to contest elections for seats in the House of
Commons, and said that only speech which amounts to incitement ought to be
outlawed.
***
Today, Article 19(1)(a) of the Constitution gives to every Indian citizen the right
to freedom of speech and expression. Article 19(2), on the other hand, enables
the government to enact a law which imposes ‘reasonable restrictions’ on the
right to free speech, 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 . . . contempt of court, defamation or incitement to an offence’.
Interestingly, it bears repetition that despite the fact that the constitutional
provision dealing with free speech was inspired by the Irish Constitution, not the
US Constitution, not one member of Parliament in the debates on the
amendment Bill brought up a case or precedent from Ireland. Instead, some
members continued to refer to judgments delivered by the US Supreme Court.
Following the Sixteenth Amendment, Parliament enacted the Unlawful
Activities (Prevention) Act, 1967. This law gave the central government the
power, subject to the approval of a tribunal, to declare an association as
‘unlawful’.63 It made it an offence for any person to take part in, commit,
advocate, abet, advise or incite the commission of any ‘unlawful activity’,64
which means any action taken which is intended to, or supports any claim to
bring about, ‘the cession of a part of the territory of India or the secession of a
part of the territory of India from the Union’.65 It is also an ‘unlawful activity’ to
disclaim, question, disrupt or intend to disrupt the sovereignty and territorial
integrity of India.
A few years ago, a prominent UK-based magazine, The Economist, accused
India of censoring maps of India which it had carried in its pages, and which
depicted the disputed boundaries of Kashmir.66 The map showed Kashmir as
having been divided between India, Pakistan and China, contrary to India’s
territorial claims. About 30,000 copies of The Economist were distributed in
India with a white sticker placed over the map of Kashmir.67 The government
officials responsible for this act of censorship no doubt sought refuge in the
words ‘the sovereignty and integrity of India’ contained in Article 19(2) of the
Constitution. Yet, can merely showing a map depicting the de facto line of
control in an internationally disputed geographical region amount to
undermining the ‘sovereignty and integrity’ of India? By merely presenting an
alternate map of Kashmir to its readers, could The Economist be said to have
engaged in activity akin to the DMK’s demands for secession and for the
separate state of Tamilnad, which gave rise to the Sixteenth Amendment in the
first place? Can it even amount to ‘questioning’ the territorial integrity of India,
punishable as an offence under the Unlawful Activities (Prevention) Act? At a
more fundamental level, can a person who merely questions the territorial
boundaries of India be said to be undermining the ‘sovereignty and integrity of
India’ at a level comparable with the movements in Madras, Nagaland and
Punjab in the 1950s and 1960s?
7
Prudes and Prigs
We have seen thus far that colonial laws in British India which dealt with speech
were repressive, that they targeted Indian nationalists and discriminated against
Indian language newspapers. The law of sedition under the Indian Penal Code
(IPC), for instance, was framed in a manner which was incredibly different from
its counterpart in England. However, not all colonial-era laws concerning speech
and expression were discriminatory against Indians. When it came to obscenity,
surprisingly, British India and England, Briton and Indian were treated alike.
Sedition and obscenity both evolved from the English law of libel. Yet, unlike
sedition, obscenity was not a political offence. Sedition was subversive. It called
into question the legitimacy of the British Empire and threatened the foundations
of the colonial state. Obscenity, on the other hand, did none of these things.
Laws relating to obscenity were only concerned with public morality, not the
survival of the State. For this reason, obscenity was a branch of law by which
colonial administrators were not substantially troubled. The statutes in British
India which defined and criminalized obscenity were quite indistinguishable
from their counterparts in England. It was the ‘Hicklin test’, evolved by English
courts in an era of Victorian moral conservatism, which was also applied in
British India, in order to determine whether something was obscene or not.
Several decades after the Constitution of independent India came into being, it
was still the colonial-era Hicklin test which was used in order to determine
whether something was obscene. Further, the modification of the Hicklin test
began not with the enactment of the Constitution in 1950 but even before that
time, in colonial India. Thus, the enactment of the Constitution in 1950 made no
immediate difference to the law relating to obscenity in India.
Obscenity Legislation in England and British India
At first, a work was only considered obscene in England if it insulted religion or
was otherwise likely to create a breach of the peace. In other words, obscenity
was not considered harmful by itself, but only because of its attitude towards
religion or its likelihood of giving rise to a breach of the peace.1 For example, in
1663, Sir Charles Sedley was convicted for exposing himself on the balcony of a
tavern and causing a breach of the peace.2 This changed towards the end of the
eighteenth century, when obscenity began to be seen as harmful by itself.3 In
1787, King George III issued a proclamation that his subjects must ‘suppress all
loose and licentious prints, books and publications, dispensing poison to the
minds of the young and unwary, and to punish the publishers and vendors
thereof’.4 There were several statutes in England thereafter which sought to
regulate obscenity. For instance, the Vagrancy Act, 1824,5 made it an offence for
any person to ‘wilfully [expose] to view, in any street, road, highway, or public
place, any obscene print, picture, or other indecent exhibition’.6 Similarly, the
Town Police Clauses Act, 1847, made it a cognizable offence punishable with
forty shillings or fourteen days in prison, for any person in any street to ‘publicly
[offer] for Sale or Distribution, or [exhibit] to public View, any profane,
indecent, or obscene Book . . . or [to sing] any profane or obscene Song or
Ballad, or [use] any profane or obscene Language’.7
Though there was a body of law in England dealing with obscenity, colonial
administrators in British India did not appear, at first, to pay much attention to it.
In 1837, the Indian Law Commission headed by Macaulay, we have seen,
prepared their draft of the IPC. Except for a provision which penalized anyone
who made any sound or gesture insulting the ‘modesty’ of a woman,8 there was
no section in this draft which dealt with obscenity.9 In fact, later on, Stephen, a
former law member of the Viceroy’s Council, in his three-volume authoritative
treatise on the history of English criminal law, chose not to spend any time
whatsoever discussing the law of obscene libels, not even in his chapter on
miscellaneous offences like perjury, bribery and slave trading.
In January 1856, the governor-general of India gave his assent to ‘An Act to
Prevent the Sale or Exposure of Obscene Books and Pictures’.10 While
introducing the Bill to the Governor-General’s Council in December 1855, one
member11 of the Council12 said that sales of indecent books in Calcutta were
‘extremely common’, that such books were ‘thrust into the hands of passengers
in all the principal streets and thoroughfares of this city’. He was worried by the
fact that indecent books tended to be very cheap, making them accessible to
anyone who wanted to purchase them. He referred to a Bengali book containing
‘(eleven) of the most obscene pictures that could be conceived’ which was
available for just four annas. Patronizingly, he said that British India needed
legislation on morality, given that Indians were ‘so ill-informed’, that they
required ‘so much guidance’, and where, ‘from the climate and other causes, the
scale of morality was so very low’. However, he referred to English law while
justifying the clauses of the Bill.
Partly modelled on Section 28 of the English Town Police Clauses Act, 1847,
the 1856 Act made it an offence for any person ‘in any shop, bazar, street,
thoroughfare, high-road, or other place of public resort’, to distribute, sell, offer
for sale, or wilfully exhibit, any ‘obscene book, paper, print, drawing, painting,
or representation’. The Act also made it an offence for a person to sing, recite or
utter ‘any obscene song, ballad, or words, to the annoyance of others’.13 The
offence was punishable with a maximum sentence of three months’
imprisonment (akin to the sentence under the English Vagrancy Act, 1824), or a
fine of Rs 100 or both. The Act carved out an exception unique to the Indian
context, and provided that it would not apply to any obscene displays in temples
or on cars used for the conveyance of idols.14 England, after all, had no erotic
sculptures like the temples at Khajuraho in India. This exception, eventually
carried forward in the IPC, went on to become quite a sensitive topic. Pandit
Shamlal Nehru once argued that even Hindu temples with obscene displays
ought to be ‘screened off from the public gaze’ because such displays vilified
Hinduism.15 Gandhi said that he did not think of the Shivalingam as a phallic
symbol or as obscene—it was in a Christian missionary text that he first even
found any reference to this.16
In 1857, Britain’s Parliament passed the Obscene Publications Act, 1857.17
The statute was passed at the instance of Chief Justice John Campbell.18 The Act
gave more powers to magistrates to find and destroy obscene materials.19 Three
years later, the IPC came into force in British India, and Section 292 was the
primary provision which dealt with obscenity.20 Unlike sedition, the provision
dealing with obscenity under the IPC was quite compatible with the law in
England.21 Purchasing or viewing obscene materials is not an offence. The
offence of obscenity consists mostly of selling or exhibiting obscene materials.
The Hicklin Test
Though obscenity had been a crime on the statute books in England for a long
time, it was only around 1868 that an authoritative test was first laid down, by
the court of the Queen’s Bench,22 in Regina v. Hicklin,23 defining obscenity under
English law. The case arose under the Obscene Publications Act, 1857. The
question in this case was whether a pamphlet entitled ‘The confessional
unmasked’24 was obscene or not. The pamphlet attacked Roman Catholicism,
and sought to expose what it considered were questionable practices adopted by
its priests. It essentially contained extracts of instructions given to Roman
Catholic priests, on subjects like: ‘How women may commit adultery with
impunity’, ‘How they may afterwards deceive their husbands’, ‘Whether [it is]
lawful for a servant to open the door for an harlot?’, ‘Whether from fear of
death, or of great loss, it is lawful for a servant to stoop his shoulders, or bring a
ladder for his master ascending to commit fornication . . . ?’, and the ‘seduction
of females in the Confessional’.25 The pamphlet did not intend to excite lust in its
readers. It sought to attack Roman Catholicism generally. In doing so, a large
part of the pamphlet, however, contained text which was sexually explicit.
Chief Justice Alexander Cockburn wrote the judgment of the court. The
classic test he laid down was as follows:
I think the test of obscenity is this, whether the tendency of the matter
charged as obscenity is to deprave and corrupt those whose minds are open
to such immoral influences, and into whose hands a publication of this sort
may fall. Now, with regard to this work, it is quite certain that it would
suggest to the minds of the young of either sex, or even to persons of more
advanced years, thoughts of a most impure and libidinous character.26
The Hicklin test could really be considered as having six constituent ingredients:
1. Deprave and Corrupt: The work in question had to have the ‘tendency’ to
‘deprave and corrupt’, or to suggest to readers ‘thoughts of a most impure
and libidinous character’. What this meant, however, was not very clear.
Did it mean to excite lustful thoughts and sexually arouse the reader, even if
ephemerally? Did it mean that the matter had to have a lasting impact on
the very moral compass of the reader, in short to make the reader a pervert?
Did it have to have the effect of encouraging readers to actually engage in
activities considered by society to be morally depraved? None of this was
clear on a plain reading of Chief Justice Cockburn’s judgment.
2. Not the Reasonable Person: The matter had to deprave and corrupt not
just any person, but ‘those whose minds are open to such immoral
influences’. It was not merely the ‘young of either sex’ who Chief Justice
Cockburn was worried about, but also ‘persons of more advanced years’. In
other words, the court was not to approach the test of obscenity from the
standpoint of a reasonable person. The question was whether the matter
would be considered obscene from the point of view of immature persons.
3. Presumed Intent: As in sedition cases, the intent of the wrongdoer was to
be presumed from the words which he had used. His actual intent was not
relevant. The fact that the author of the pamphlet in question had actually
intended to attack the Roman Catholic priesthood, and not to excite lustful
thoughts in immature Englishmen, was, in short, irrelevant. A de facto
altruistic object or intent was irrelevant.
4. Contemporary Books Irrelevant: In order to determine whether the matter
was obscene or not, it was not permissible for the court to look at other
books which were in circulation at the time.27 The work in question had to
be judged on its own merits.
5. Circumstances/Accessibility: The ‘circumstances of the publication’, in
other words how accessible the publication was, was also important. During
the course of arguments, Chief Justice Cockburn said that an illustrated
medical treatise could not be considered obscene, as it provided information
or education to doctors, but it could not be ‘exhibited for any one, boys and
girls, to see as they pass’.28 The fact that the pamphlet in question in that
case was being ‘sold at the corners of streets’, and that it fell ‘into the hands
of persons of all classes, young and old’, was considered relevant by
Cockburn for determining that it was obscene.29
6. Work as a Whole Irrelevant: The Hicklin case is an authority for the
proposition that a book may be considered obscene if there are obscene
passages in it, even if the theme of the book as a whole is not to deprave
and corrupt readers. Commentators have said that the Hicklin test makes
four words count for more than four hundred pages.30 Indeed, nonpornographic, serious works came within the obscenity ambit of the Hicklin
test. In 1888, for example, Henry Vizetelly was convicted for publishing
English translations of three novels by the French writer, Émile Zola.31
Hicklin in British India
The Hicklin test came to be repeatedly followed by the high courts of British
India. According to Deana Heath, though obscenity prosecutions were not a
priority for the colonial government,32 and though such prosecutions were often
launched only at the behest of Indians,33 the Hicklin test was institutionalized in
British India, used almost as a mantra no matter which way the case would
turn.34
However, the high courts also explained, and in some cases, sensibly
modified, the Hicklin test. Several judgments delivered by the high courts during
the colonial period help shed light on what the words ‘deprave and corrupt’
under the Hicklin test might be taken to mean.
In Queen Empress v. Parashram Yeshvant,35 the Bombay High Court was
considering whether four pictures were obscene. Three of them contained female
figures that were partially naked. The fourth contained a female figure that was
entirely naked. The court found that two ‘half-draped pictures’ were not obscene
as they were not ‘of such a sort as [to excite] sensual feelings’.36 As for the
remaining two pictures, they were ‘so drawn and coloured as to make it a
question . . . for the trying Court whether or not they come within the mischief’
of the law.37 It was held that the accused could have shown ‘by argument and
evidence’ that the effect of these two pictures was not necessarily to ‘deprave or
debauch’, or to show that the pictures were ‘artistic or conventional or otherwise
not polluting to the morals of the public’.38
In Kherode Chandra Roy Chowdhury v. Emperor,39 the Calcutta High Court
was determining whether an Oriya book called Theft of Tops was obscene. The
book dealt with a story in the lives of Krishna and Radha. Krishna, a god in the
Hindu pantheon, considered an incarnation of Vishnu, was described as
‘touching the left breast of Radha and asking her questions about it’, ‘asking
Radha for caresses’ and asking her for carnal intercourse. Radha was described
‘as removing the cloth from her breast when two tops and string miraculously
dropped to the ground and Krishna looked at her breast’. Though the Hicklin test
was applied, the court found that Hindus generally did not think of Krishna and
Radha as human beings, and did not ‘judge their doings by the standard of
human conduct’. As the work in question related to ‘beings whose conduct is not
to be judged by the standard of human conduct’, it could not be ‘condemned as
obscene’, since sacred figures like Krishna and Radha would ‘not raise immoral
thoughts in people who believe in the divinity of [these] beings’.
In Public Prosecutor v. Mantripragada,40 the Madras High Court was
considering the merits of a Telegu booklet, Vidi Natakam, which had originally
been written by Srinadha, a fifteenth-century writer. The 27th verse of this
booklet contained the innuendo ‘Cupid’s secret home’, which, the court found,
was a reference to ‘a very objectionable part’ of the female body. It was held that
there were expressions in this stanza which were ‘calculated to excite a
libidinous desire in the reader’. Likewise, the 37th stanza of the booklet, which
spoke of the ‘breasts of a woman unable to bear the beatings of the male’, was
found ‘calculated to excite lust and to instil improper ideas into the minds of the
reader’. It was held that ‘the general tenor of the verses objected to’ was ‘to
create an unholy desire and to engender illicit sexual passion in the minds of the
reader’.
In Jagat Narain Lall v. Emperor,41 the Patna High Court was considering
whether an advertisement for a book called Kashmiri Kok Shastra in a Hindi
weekly newspaper was obscene. The advertisement said that the book contained
photographs of men and women in eighty-four ‘asans’. Objection was taken to
the use of the word ‘asan’ in the advertisement. The prosecution argued that the
word meant ‘the posture of men and women at the time of cohabitation’, while
the defence argued that it meant ‘the attitude of male and female jogis at the time
of prayer’. The court found that the mere use of the word ‘asan’ could not mean
the posture of men and women during sexual intercourse. Though ‘asan’ might
have suggested the idea of men and women in sexually explicit positions, there
was nothing obscene in the advertisement.
In Emperor v. Harnam Das,42 the Lahore High Court was concerned with an
Urdu book which contained advice for married couples. One passage advised a
man that if his ‘penis does not become sufficiently stiff on going near the woman
he should (consume) meat and eggs’. Another advised men that they should
avoid thinking about women for four to six months, and rest their sexual organs
during that time. Yet another passage contained a surmise on the number of
movements men took, on average, in order to achieve sexual climax. This was,
in essence, what Deana Heath would call an Indian sexology text or kamashastra
literature.43 The high court held that the book was not obscene. It was found that
the book was ‘undoubtedly a serious work intended to give advice to married
people, and particularly husbands, on how to regulate the sexual side of their
lives to the best advantage’. Such books, when properly written, were held to
‘serve a useful purpose’, and were ‘published on a large scale and widely
circulated in all civilized countries’. In order to be understood, such books had to
be written ‘in fairly plain language’. It was held that ‘crudeness is not the same
as obscenity’. Though some of the subjects treated in the book would not be
‘ordinarily discussed in polite society’, they were ‘dealt with in the book in quite
a restrained and sober manner’.
Some high courts refused to accept the ingredient of the Hicklin test where
Chief Justice Cockburn had said that obscenity must be judged from the
standpoint of immature persons, young and old, or ‘those whose minds are open
to . . . immoral influences’.44 However, other limbs of the Hicklin test were
adopted wholeheartedly by the high courts in colonial India. Thus, the high
courts generally accepted the prong of the Hicklin test in which the intent of the
accused person was to be presumed by reading the words of the allegedly
obscene material.45 They fully endorsed the prong of the Hicklin test which made
it necessary for courts to take into account the accessibility of the work in
question. In Empress of India v. Indarman,46 for instance, the Allahabad High
Court found it relevant that the price of the book was only eight annas, and that
it was therefore accessible to a wide audience. They also accepted the prong of
the Hicklin test whereby it was not the theme of the work as a whole which
rendered it obscene.47
Hicklin Modified in England and America
Two cases were decided in around 1954 which could be said to have modified
the Hicklin test in England. The first of these was a judgment of the Queen’s
Bench Division of the high court in Regina v. Reiter.48 One of the prongs of the
Hicklin test was that the matter in question had to have been of such a nature as
to deprave or corrupt ‘those whose minds are open to such immoral influences’,
young and old. In other words, the Hicklin test required courts to judge a work’s
obscenity from the standpoint of the immature, not reasonable, person. This
changed in Reiter. Chief Justice Goddard held that the law was only concerned
with young people, not adults. It was held as follows:
‘There are, no doubt, dirty-minded elderly people, but it is not to be
expected that many elderly people would read these books. Younger people
are more likely to, and we are told that they circulate in the Armed Forces.
The jury have to consider whether, looking at these books altogether, they
would tend to corrupt and deprave, or whether they would not.49
Another case, Regina v. Martin Secker & Warburg Ltd,50 went even further. The
case was tried at the Central Criminal Court, or the ‘Old Bailey’. The court was
considering whether an American novel by Stanley Kauffman called The
Philanderer51 was obscene or not. While accepting the Hicklin test, Justice
Stable delivered a charge to the jury which deviated from Hicklin in many
respects. The overwhelming theme of the charge was that merely because a book
dealt with sex did not mean that it was obscene. The book had to be judged by
the standards of present times, not those of a century ago.52 ‘We are not sitting
here as judges of taste,’ said Stable, adding, ‘We are not here to say whether we
like a book of this kind.’53 The words ‘corrupt and deprave’ did not mean ‘shock
or . . . disgust’, as it was not a criminal offence to shock or disgust readers.54 The
jury was directed that a book could not be judged from the standpoint of only
children. In Justice Stable’s words:
Are we to take our literary standards as being the level of something that is
suitable for a fourteen-year-old schoolgirl? Or do we go even further back
than that, and are we to be reduced to the sort of books that one reads as a
child in the nursery? The answer to that is: Of course not. A mass of
literature, great literature, from many angles is wholly unsuitable for
reading by the adolescent, but that does not mean that the publisher is guilty
of a criminal offence for making those works available to the general
public.55
Stable found that it was not books which put obscene thoughts into young minds,
but nature which did so, and that it was the responsibility of parents and teachers
to see that children would lead a ‘balanced individual life’.56 Though the book in
question was ‘obviously and admittedly . . . absorbed with sex’, that by itself
was not enough for it to be considered obscene. Had it not been for sex, said the
judge, ‘the human race would have ceased to exist thousands of years ago’.57
Rome and Greece elevated human love to the status of a cult if not a religion, but
the priesthood in the Middle Ages was ‘compelled to be sexless’.58 In Victorian
England, the judge remarked, legs of tables in some homes were draped out of
prudishness.59 The judge asked the jury to consider whether the act of sexual
passion could really be considered ‘sheer filth’. ‘It may be an error of taste to
write about it’,60 he said, but that was not enough to constitute obscenity.
According to Justice Stable, it was only pornography or ‘filth for filth’s sake’
which was obscene because it was not literature, it had no message, and it had no
inspiration or thought.61 The judge described the story of the novel to the jury
and said that the question was whether the author had come up with ‘an honest
purpose and an honest thread of thought’ in his novel, or whether this was a ‘bit
of camouflage to render the crudity, the sex of the book, sufficiently wrapped up’
so as to pass muster.62
In short, the first two prongs of the Hicklin test which we have seen above
were modified in Reiter and Warburg. Firstly, a work which dealt with, or was
even absorbed with, sex was not, for that reason alone, obscene. Secondly, it was
now in doubt as to whether the question of the obscenity of a book was to be
judged from the standpoint of young or immature persons.
In 1959, the Hicklin test was then statutorily modified in England by the
Obscene Publications Act, 1959.63 Section 1 of this Act required courts to decide
whether a work was obscene or not by considering the ‘effect’ of the work ‘taken
as a whole’. Earlier, a work would be considered obscene under the Hicklin test
merely if isolated passages within it were obscene, even if the theme of the work
as a whole was not obscene. This was now undone by the 1959 Act which
required the effect of the work to be considered ‘as a whole’. A defence was
introduced to the charge of obscenity. A person could not be convicted for
obscenity if he could prove that the ‘publication of the article in question is
justified as being for the public good on the ground that it is in the interests of
science, literature, art or learning, or of other objects of general concern’.64
Opinions of experts as to literary, scientific or other merits of work were also
now permissible in evidence in obscenity cases.65
In the US, as early as in 1913, Judge Learned Hand (then a district judge in
the Southern District of New York) expressed doubts over the correctness of the
Hicklin test in the case of United States v. Kennerly.66 The question in this case
was whether a book called Hagar Revelly was obscene. The book described the
life of a young woman in New York and her ‘amorous misadventures’. Hand felt
compelled to accept the Hicklin test. However, he expressed his reservations
over it. Though the Hicklin test may have been ‘consonant . . . with midVictorian morals’, he said it did not ‘answer to the understanding and morality of
the present time’. Hand found it harsh to judge a work of art from the standpoint
of ‘those most likely to pervert [it] to base uses’, or ‘to reduce our treatment of
sex to the standard of a child’s library in the supposed interest of a salacious
few’.
One of the earliest cases in which the US Supreme Court dealt with obscenity
was Roth v. US.67 Speaking for the court, Justice Brennan held that sex and
obscenity were not synonymous, and that if there was sex in art, literature or
scientific works, that was not sufficient reason to deny the material the
constitutional protection of free speech. Like Justice Stable’s charge to the jury
in Warburg, Justice Brennan said that sex was ‘a great and mysterious motive
force in human life’ which was ‘indisputably . . . a subject of absorbing interest
to mankind through the ages’.68 The correct test, according to the court, was set
out as follows: The material in question would be considered obscene if to the
average person (not necessarily the reasonable person), applying ‘contemporary
community standards’ (not national or state standards), the ‘dominant theme’ of
the work taken as a whole, appeals to ‘prurient interest’ (i.e., ‘material having a
tendency to excite lustful thoughts’).
In Kingsley International Pictures v. Regents,69 the US Supreme Court was
considering the validity of a New York motion picture licensing law which
enabled censors to deny a license to a film which was ‘immoral’, one which
portrayed an act of ‘sexual immorality’ as being desirable, acceptable or a proper
pattern of behaviour. New York’s censors had denied a licence to the film Lady
Chatterley’s Lover, based on the novel by D.H. Lawrence. The Supreme Court
invalidated the law. Justice Stewart held that the film advocated the idea that
‘adultery under certain circumstances may be proper behaviour’, and that the
First Amendment included the freedom to propagate such an idea.70
Hicklin in Ranjit Udeshi’s Case
Despite the enactment of the Constitution in 1950, the Hicklin test continued to
be applied, for several decades, in order to determine whether something was
obscene or not.
In 1959, it was largely on account of Prime Minister Nehru’s intervention that
the critically acclaimed novel Lolita, written by Vladimir Nabokov, was not
banned in India. Several copies of the book were imported into India by Jaico
Publishing House in Bombay. The consignment was detained by the collector of
customs at Bombay for investigation in April 1959 on the ground that its
contents might be obscene. The following month, D.F. Karaka, editor of the
Bombay weekly, Current, wrote a letter to Finance Minister Morarji Desai,
complaining that the novel glorified the sexual relations of an adult man with a
child of eleven or thirteen years, and that this was disgusting. Desai wrote in the
file, ‘I do not know what book can be called obscene if this cannot be. It is sex
perversion. Home Ministry should be consulted.’ However, Nehru intervened
and allowed the book to be released. Jaico profusely thanked Nehru, and sent
him a copy of the novel, Lolita, with their compliments.71
However, in 1964, the Supreme Court of India decided its first case
concerning obscenity, in Ranjit Udeshi v. State of Maharashtra.72 Ranjit Udeshi
was the partner of a firm which owned a book stall in Bombay. He was
prosecuted under Section 292 of the IPC for being in possession, for the purpose
of sale, of the book Lady Chatterley’s Lover written by D.H. Lawrence. The
novel told the story of a baronet who had been wounded in the war and was
paralysed from the waist downwards. He permitted his wife, Constance (Lady
Chatterley), to engage in sexual relations with other men, sensing her sexual
frustration. As the Supreme Court later wrote, each sexual encounter was
described in the book with ‘great candidness and in prose as tense as it (was)
intense’.73 Udeshi had been convicted and sentenced to pay a fine of Rs 20, or to
suffer one week’s simple imprisonment in default.
Justice Hidayatullah (as he then was) wrote the judgment of the court. Several
decades previously, in 1929, Hidayatullah had read Lady Chatterley’s Lover as a
student at Cambridge. He had read it not out of any academic curiosity as a law
student, but because of its titillating content. As he candidly admitted in a speech
in the US later on, ‘I was a young man then and my interest was very different,
an interest of which . . . the law takes note.’74 The case in the Supreme Court was
heard over three days. The attorney general of India supplied five sealed packets
to the court’s judges, each containing one copy of the book. When he read the
book once again as a Supreme Court judge, Justice Hidayatullah ‘did not find it
absorbing’. ‘Perhaps I had grown old’, he wondered, or the book had ceased to
have an impact on him because he was reading it again.75 However, to his
colleagues on the Bench, who had not read it, the book ‘came as a bomb’, the
impact on them ‘was terrific’, and their ‘attitude was definitely hostile’.76 It was
Justice Hidayatullah alone who claims to have hesitated, on account of his
‘liking for the author’, in holding the book to be obscene.77 ‘But in the end I saw
that it would not do to introduce the book into India’,78 he later explained to an
audience of law students in the US.
In Ranjit Udeshi’s case, Justice Hidayatullah adopted a modified version of
the Hicklin test:
Firstly, akin to Justice Stable’s charge to the jury in Warburg, Justice
Hidayatullah held that the presence of ‘sex and nudity in art and literature’ could
not be considered ‘evidence of obscenity without something more’. ‘It is not
necessary,’ the judge said, ‘that the angels and saints of Michael Angelo should
be made to wear breeches before they can be viewed.’79 If this were the test, he
said, then half the bookstores would be forced to close down, and only moral and
religious books would be permitted to be sold. This, according to Justice
Hidayatullah, was the primary modification of the Hicklin test adopted in Ranjit
Udeshi’s case.80 Sex, by itself, was not enough to deprave and corrupt.
Secondly, the Hicklin test was not understood by the court as emphasizing
‘the importance of a few words or a stray passage’.81 The court referred to the
story of ‘the lady who charged Dr Johnson with putting improper words in his
Dictionary’. She was rebuked by Dr Johnson who said to her: ‘Madam, you must
have been looking for them.’ While assessing whether something was obscene,
the court was not actively to seek out the obscene passages, like Dr Johnson’s
critic. ‘An overall view of the obscene matter in the setting of the whole work’
was required to be taken. However, at the same time, the obscene matter itself
could be considered separately and by itself. If the non-obscene or artistic
portions of the work were ‘so preponderating as to throw the obscenity into a
shadow’, or the ‘obscenity so trivial and insignificant that it can have no effect
and may be overlooked’, then the work would not be considered obscene.82 In
short, contrary to the Hicklin test, the work had to be looked at as a whole, and
the obscene words or passages had to be weighed against the non-obscene
portions of the work. As Hidayatullah said in a speech later on, ‘isolated
passages might still tilt the balance against the book’ under this test.83
Thirdly, like the English Obscene Publications Act, 1959, Justice Hidayatullah
found that an obscene publication could be justified if it was for the ‘public
good’.84 The work would be considered as being in the interests of the public
good if it propagated any important ideas. ‘[I]deas having social importance will
prima facie be protected,’ said the court, ‘unless obscenity is so gross and
decided that the interest of the public dictates the other way.’85 Obscenity
‘without a preponderating social purpose or profit’ was held to be
impermissible.86 Contrary to the Obscene Publications Act, 1959, however, the
court refused to permit expert evidence, or indeed any oral evidence, to be led
over the question of whether a work was obscene or not.87 It was held that the
offending novel had to be judged by the court alone.
However, apart from these three modifications, the Hicklin test was applied in
Ranjit Udeshi’s case by the Supreme Court. For instance, it was held that the law
sought ‘to protect not those who (could) protect themselves but those whose
prurient minds (took) delight and secret sexual pleasure from erotic writings’.88
In other words, it was not the reasonable person from whose standpoint the
allegedly obscene materials were to be judged. The court refused to hold that it
was only pornography which was prohibited by the laws against obscenity. It
was held that pornography and obscenity were distinguishable in that the former
consisted of materials intended to excite lust, while the latter consisted of
materials which might have the tendency (though not necessarily the intent) of
exciting lust.89
In 1969, Section 292 of the IPC was amended once again, along the lines of
the Obscene Publications Act, 1959.90 Contrary to the Hicklin test, the
amendment required courts to consider a work ‘as a whole’. It inserted a ‘public
good’ exception to obscenity, which was also adopted in Ranjit Udeshi’s case. It
was now a defence for a person accused of obscenity to argue that the work in
question was ‘proved to be justified as being for the public good’, ‘in the interest
of science, literature, art or learning or other objects of general concern’.
Materials kept ‘bona fide for religious purposes’ or sculptures on any ‘ancient
monument’ were also excepted from the definition of obscenity.91 It also
enhanced the penalty for obscenity from a maximum sentence of three months to
two years’ imprisonment on a first conviction and five years’ imprisonment on a
second conviction.
Hicklin and the Supreme Court of India
Sex, Nudity and Vulgar Language
The modified Hicklin test adopted by the Supreme Court in Ranjit Udeshi’s case
has continued to be followed by the Supreme Court in a host of cases. In several
decisions, the Supreme Court has held that nudity, sex, or vulgarity, by itself, is
insufficient to constitute obscenity. If a work propagates an idea or conveys a
social message, the fact that it contains sexual or nude scenes, descriptions of
human anatomy, or even abusive language, is not enough for it to be considered
obscene. Bad taste is not obscenity. However, if the work in question sexually
arouses the reader or viewer, it will almost certainly be considered obscene. This
is strange because the test of whether something is sexually arousing or not is
highly subjective.
In Chandrakant Kalyandas Kakodkar v. State of Maharashtra,92 the Supreme
Court was considering whether a short story called ‘Shama’ published in the
1962 Diwali issue of a monthly Marathi magazine called Rambha was obscene.
The story dealt with the life of a poet, Nishikant, and his amorous relationships
with three women, Neela, Vanita and Shama. In it, Nishikant has pre-marital sex
with Neela. Vanita is portrayed as an ‘oversexed woman, experienced and
forward, making advances and suggestions’. She and Nishikant have several
sexual encounters until he catches her unabashedly cheating on him. Nishikant
and Neela are found kissing each other at a cinema hall. The court found that
even though the story was not ‘of a very high literary quality’ and though the
writer appeared to be immature and insufficiently experienced, there was nothing
obscene in the work.93 Though the court considered some of the story to have
been written in bad taste,94 it was not obscene. It was held that obscenity would
have to be measured from the ‘standards of contemporary society’ in which the
work is read.95
In Samaresh Bose v. Amal Mitra,96 the Supreme Court was considering
whether a Bengali novel called Prajapati was obscene. There were scenes in the
novel describing separate sexual encounters between the protagonist, Sukhen,
and three girls, Zina, Shikha and Manjari. There was also a scene where
Sukhen’s elder brother had a sexual affair with ‘the maidservant’s daughter’. The
novel used vulgar language. All this was considered to be obscene by the trial
court. The Supreme Court disagreed. It was held that a court had to determine
whether what the author conveys in his work ‘has any literary and artistic
value’.97 Reference to kissing, descriptions of female anatomy, and ‘suggestions
of acts of sex’, by themselves, were insufficient to constitute obscenity.98 It was
noted that the novel used ‘slang and various unconventional words’, and the
episodes described within it generated feelings of shock, disgust and revulsion
among ‘readers of cultured and refined taste’.99 However, this too was held to be
insufficient for constituting obscenity. In the court’s eyes, vulgarity and
obscenity were not to be confused.
However, where abusive language is directed against important historical
figures such as Mahatma Gandhi, the outcome may not be the same. In Devidas
Ramachandra Tuljapurkar v. State of Maharashtra,100 the Supreme Court was
considering the question of whether a Marathi poem entitled ‘Gandhi Mala
Bhetala’ (or ‘Gandhi Met Me’) was obscene. Though the poem was heavily
censored in the court’s judgment, one can gather from it that the poem made
Mahatma Gandhi say or do some obscene things. It was held that an author
could not put ‘obscene words’ into the mouths of ‘historically respected’ persons
like Gandhi, Rabindranath Tagore or Vallabhbhai Patel.101
In Bobby Art International v. Om Pal,102 the Supreme Court was considering
whether a film called Bandit Queen was obscene. The film was based on a true
story, the life of Phoolan Devi. It had been granted an ‘A’ certificate, for viewing
by adults, by the Censor Board. A man called Om Pal Singh Hoon had filed a
petition in the Delhi High Court seeking to quash the certificate. There was a
scene in the film where the protagonist was ‘humiliated, stripped naked, paraded,
[and] made to draw water from [a] well’. Her breasts and genitalia were exposed
to a ‘circle of a hundred men’. The court held that scenes of nudity, without
more, were not obscene. The object of the nude scene in this movie was ‘not to
titillate the cinemagoer’s lust but to arouse in him sympathy for the victim and
disgust for the perpetrators’.103 ‘Nakedness,’ the court held, ‘does not always
arouse the baser instinct.’104 The film also contained a scene where the
protagonist was raped. This too was held not to be obscene. The court found that
rape and sex were not ‘glorified’ in the film, but helped explain why the
protagonist ended up taking the law into her own hands. The use of swear words
was not considered obscene either. These were words, the court felt, which ‘can
be heard [every day] in every city, town and village street’, and that no adult who
watched the movie would be tempted to use them merely because of their use in
the film.105 The test that the court was to ask itself was whether such scenes
advanced the message of the film.106
In Aveek Sarkar v. State of West Bengal,107 the Supreme Court was considering
whether a semi-nude photograph of the iconic German tennis player, Boris
Becker, with his ‘dark-skinned fiancée’, Barbara Feltus, a film actress, taken by
Feltus’s father, was obscene. In the photograph, Becker and Feltus faced the
camera and appeared to be topless. Feltus’s breasts were covered by Becker’s
hands. The photograph had appeared in a German magazine, Stern. It was then
carried by the magazine Sports World and the newspaper Anandabazar Patrika,
both of which had a wide readership in India. A lawyer practising in the Alipore
Judge’s Court, Kolkata, saw the photograph and filed a complaint under Section
292 of the IPC. The Hicklin test was formally abandoned by the Supreme Court
in this case. However, in truth, courts in India had repeatedly modified the
Hicklin test and the judgment of the Supreme Court in Aveek Sarkar did not
modify the Hicklin test any further than what the court’s previous judgments had
already done.108
It was held in this case that a ‘picture of a nude/semi-nude woman’, by itself,
could not per se be called obscene, unless it had ‘the tendency to arouse the
feeling of . . . an overt sexual desire’. It is only when nudity is ‘designed to
excite sexual passion’ or have a ‘tendency of exciting lustful thoughts’ that it
becomes obscene.109 The context in which the photograph appeared and the
message sought to be conveyed by it was considered important.110 The fact that
Becker had used the photograph to speak out against racial discrimination in
Germany was considered to be particularly relevant.111 The court found that the
photograph conveyed an important message—a call to eradicate racism and
apartheid in society.112
In S. Khushboo v. Kanniammal,113 the Supreme Court was considering
whether statements made by a well-known South Indian actress during an
interview and reported in the press were obscene. The actress had said that there
was an increasing incidence of pre-marital sex among live-in couples and that
this should be accepted. She had also said that girls ought to take sufficient
precautions in order to avoid unwanted pregnancies and the transmission of
venereal diseases. She was reported as having said the following to the India
Today magazine:
When a girl is committed to her boyfriend, she can tell her parents and go
out with him. When their daughter is having a serious relationship, the
parents should allow the same. Our society should come out of the thinking
that at the time of the marriage, the girls should be with virginity.
None of the educated men will expect that the girl whom they are
marrying should be with virginity. But when having sexual relationship the
girls should protect themselves from conceiving and getting venereal
diseases.
She was also reported as having said the following to a newspaper in Tamil
Nadu called Dhina Thanthi, though she denied having said this:
How many men and women do not have sex before marriage? Why are
people saying that after the marriage the husband and wife should be honest
and faithful to each other? One should have confidence in the other, only to
avoid the mistakes from being committed. If the husband, without the
knowledge of the wife, or the wife, without the knowledge of the husband,
have sex with other persons, if a disease is caused through that, the same
will affect both the persons. It will also affect the children.
The court took note of the fact that Khushboo had not ‘described the sexual act
or said anything that could arouse sexual desires in the mind of a reasonable and
prudent reader.’114 In other words, it was considered obscene for a person to
sexually arouse an audience or readers.
Khushboo’s words, the court found, were likely to prompt a dialogue on
‘existing social mores’,115 and it was necessary to promote a ‘culture of open
dialogue’ on ‘societal attitudes’.116 It was held that encouraging some people to
engage in pre-marital sex was not an offence,117 and that adults who ‘willingly
engage in sexual relations’ without committing adultery do not commit any
offence.118 It was also held that ‘the initiation of a criminal trial is a process
which carries an implicit degree of coercion’ and that a magistrate was therefore
required to ensure that a complaint had a prima facie basis, before taking
cognizance of an offence involving an infringement of a right to free speech.119
Though ‘marriage is an important social institution’, the court noted that there
were many people in India, including ‘indigenous groups’, for whom ‘sexual
relations outside the marital setting’ was a ‘normal occurrence’.
‘Notions of social morality are inherently subjective’, the court said, and
‘[m]orality and criminality are not coextensive.’120 If the complainants had a
problem with the views that Khushboo had expressed, they ought to have
countered her by presenting their own views ‘through the news media or any
other public platform’.121 In this respect, the judgment of the Supreme Court in
Khushboo is reminiscent of the judgment of Justice Brandeis of the US Supreme
Court in Whitney v. California,122 when he said that the remedy for falsehood is
‘more speech, not enforced silence’.
Prior Restraints and Film Censorship
The Supreme Court has held that prior restraints, imposed in the context of film
censorship, are valid under the Constitution. We have already seen that prior
restraints were a form of censorship prevalent during the colonial period against
the press. Importantly, as a matter of practice, prior restraints are no longer
imposed on the written press (except by courts, under the sub judice rule, which
we will see later on) or on books in India. There is a law called the Press Council
Act, 1978, which established a body called the ‘Press Council of India’.
However, this body has very mild powers. After conducting an inquiry, the
Council has the power only to ‘admonish or censure’ or to ‘disapprove the
conduct’ of a newspaper or news agency.123 It can compel a newspaper to carry
information about the inquiry being conducted by it against the newspaper.124
These steps only have reputational consequences, if at all. The Council cannot,
during an inquiry, force a journalist to reveal his sources.125
In May 1948, the Governor of West Bengal, C. Rajagopalachari, wrote a letter
to Home Minister Patel complaining about a violent film which was being
prepared on the ‘Chittagong Armoury Raid’ of 1930, in which armed Indian
revolutionaries attacked and captured armouries of the police in Chittagong.126
Rajaji wanted the film to be censored because it would add to the ‘romantic
attraction of crime for semi-educated people’, especially since the film had ‘an
aura of patriotic effort round it’.127 Patel wrote back saying that the Centre, at
that time, had ‘no control over the production of films, nor over censorship’,
which was controlled by provincial governments.128 Patel said that the central
government was contemplating introducing ‘central censorship’.129 In the
meantime, he advised Rajaji to drop a ‘hint’ that ‘even after the film is ready it
might not be possible to permit its exhibition’.
It was against this backdrop that the Cinematograph Act, 1952, was enacted. It
contains a regime of prior restraints for films. It set up a ‘Board of Film
Certification’ (hereinafter, the ‘Censor Board’) for ‘sanctioning films for public
exhibition’. No person can show his film to the public without a certificate from
the Censor Board. The Censor Board has the power to refuse to sanction a film
altogether, to sanction a film for unrestricted public exhibition,130 for public
exhibition restricted to adults131 or any class of professionals,132 or even to direct
the applicant to carry out such ‘excisions or modifications’ in the film as it thinks
necessary.133 The Censor Board has the power to refuse to certify a film if it
violates any of the restrictions on free speech contained in Article 19(2).134 The
central government has the power to issue directions to the Censor Board, setting
out the principles which are to guide it in determining how to certify films.135
The central government also had the power to suspend a certificate granted by
the Censor Board.136 Appeals against decisions of the Censor Board can be filed
before a specially constituted Appellate Tribunal.137
In K.A. Abbas v. Union of India,138 the Supreme Court was determining the
validity of the prior restraints regime under the Cinematograph Act. K.A. Abbas
had made a documentary film called A Tale of Four Cities (1968). The film
contrasted ‘the luxurious life of the rich’ with the ‘squalor and poverty’ of the
poor in four cities: Calcutta, Bombay, Madras and Delhi. It contained a blurry
scene in Bombay’s red-light district, where sex workers were shown wearing
skimpy clothing. The entire scene lasted less than a minute. A sex worker was
later shown sharing most of her earnings with her pimp, and her room was
portrayed as though it were a cage. The Censor Board granted the petitioner an
‘A’ certificate, for viewing only by adults. The government agreed to grant him a
‘U’ certificate for universal public exhibition only if he made some cuts in the
red-light district scene. Abbas challenged the prior restraints regime of the
Cinematograph Act,139 as well as the rules prescribed by the central government
under it.
Chief Justice Hidayatullah wrote the judgment of the court. He candidly
admitted later on that the film had been specially screened for the judges of the
court and the advocates, and that he had found ‘nothing obscene in it’.140 The
prior restraints regime under the Cinematograph Act, however, was upheld.141
Prior restraints were held to be especially justified in the motion picture context
because films, the court found, had an ‘instant appeal’, and constituted a unique
medium on account of their ‘versatility, realism (often surrealism), and . . . co-
ordination of the visual and aural senses’, because of which they could ‘stir up
emotions more deeply than any other product of art’.142 This was unsurprising,
given that prior restraints were held to be theoretically permissible, in principle,
even prior to the First Amendment of the Constitution, in Brij Bhushan, as we
have seen.143
In Raj Kapoor v. State,144 the Supreme Court held that the mere fact that the
Censor Board had certified a film (in this case, Satyam, Sivam, Sundaram, 1978)
did not grant the makers of the film immunity from prosecution for obscenity.
However, this ruling was subsequently undone by virtue of an amendment
inserted into the Cinematograph Act with effect from June 1983, after which a
distributor, exhibitor or any person who has rights in the film cannot be
prosecuted for obscenity once the Censor Board grants the film a certificate.
Thus, the prior restraints regime put in place by the Cinematograph Act serves
an interesting function in shielding the exhibitors of a film from prosecutions for
obscenity.
The power of the Censor Board to certify films is not necessarily antithetical
to the right to free speech. In the UK, for example, the British Board of Film
Classification, exercising statutory powers under the Video Recordings Act,
1984, has the power to certify or to refuse to certify films. It has in the past
refused to certify a documentary film called Terrorists, Killers & Other Wackos,
where a man’s face was literally blown away in a firing squad, though he
remained alive, and was shown gasping for breath.145 It certified a film, The
Human Centipede II, only after thirty-two cuts were made to the film, including
a scene of ‘a man masturbating with sandpaper around his penis’.146 Likewise,
the US Supreme Court in Joseph Burstyn v. Wilson,147 did not rule out the
possibility that the states may censor and impose prior restraints on motion
pictures ‘under a clearly drawn statute designed and applied to prevent the
showing of obscene films’.148 Film censorship in the US is mostly carried out in
the form of self-regulation by the Motion Picture Association of America which
applies a ratings system known as the ‘Classification and Ratings
Administration’.149 It is not mandatory to submit one’s film for certification to
this body. However, films that are not rated by this body, or those which receive
ratings of ‘NC-17’ (meaning that the film is only fit for viewing by adults), have
rarely done well at the box office.150 The problem with the Censor Board in
India, however, is that it has often made decisions which are very questionable
and morally conservative—examples of this have been seen in the introductory
chapter of this book.
Prior restraints are not only prevalent in the domain of films, but also in the
realm of theatrical and other public performances. In the state of Maharashtra,
for example, the Bombay Police Act, 1951, authorizes the commissioner of
police among others to make rules for imposing prior restraints on ‘musical,
dancing, mimetic, theatrical or other performances for the public amusement,
including melas and tamashas’.151 The licensing authority under these provisions
has incredibly broad powers to deny a licence for a theatrical performance. For
instance, if the performance is found to be ‘indecent’ or ‘scurrilous’, to ‘contain
offensive reference[s] to personalities’, to ‘wound the susceptibilities of any
nation or followers of any religion’, to be not merely seditious but otherwise
‘likely to excite political discontent’, a licence may be denied for the
performance.152 Theatres are prohibited from engaging in a vast variety of
speech. Any ‘profanity or impropriety of language’ or ‘indecency of dress, dance
movement or gesture’ is barred,153 even though, we have seen, the Hicklin test in
India has been modified and mere vulgarity of language is not considered
obscene, as the work has to be considered as a whole. The constitutional validity
of these provisions has, at present, been challenged in a petition filed in the
Bombay High Court by the noted actor Amol Palekar.154
Prior restraints are, for the most part, not imposed on television.155 In other
words, US television shows like The Big Bang Theory and Friends do not need
the approval of a censor board in order to be shown on Indian television.
However, Indian companies which broadcast content on television censor these
shows in order to make them ‘suitable’ for viewing on Indian television.156
Producers of content on television are required to follow a ‘programme code’
which is incredibly restrictive and which potentially violates Articles 19(1)(a)
and 19(2) of the Constitution. For instance, no programme can be carried in
India which offends not merely against decency but also ‘good taste’, which has
‘suggestive innuendos and half truths’, which casts ‘aspersions against the
integrity of the President of India’, which ‘criticizes . . . any individual’,
‘encourages superstition or blind belief’, denigrates women or children, or
portrays any ethnic, linguistic or regional group as being ‘snobbish’ or
‘ironical’.157 All programmes also have to be ‘suitable for unrestricted public
exhibition’.158 This means that everyone, even an adult, is forced to watch on
television what is suitable for children. This fails to take into account that
material which is not suitable for unrestricted public viewing can be broadcast at
times at which parents are likely to be at home and to be able to supervise their
children, which is sometimes referred to as ‘erogenous zoning’.159 A media
company which violates this programme code can face serious consequences. Its
equipment can be seized by the government,160 its officers can be criminally
prosecuted,161 and it can altogether be banned from broadcasting content.162
Thus, in November 2016, the information and broadcasting ministry of the
government banned the television news channel NDTV India from broadcasting
any content for one day, for telecasting a news report on the Pathankot terrorist
attack while the anti-terrorist operations were still underway.163 Likewise, in
March 2013, television channel FTV was banned for ten days for carrying
content, mostly after 10 p.m., which contained some female nudity.164 The
government was particularly annoyed by the fact that a programme on FTV
called ‘Lingerie’ showed women wearing lingerie that left their ‘buttocks fully
exposed’.
Some limited prior restraints are, however, imposed on television as well.
Perhaps most importantly, television news channels—members of the modernday press—require permission from the government for being set up and
‘uplinking’ content, equivalent to the licensing regime of prior restraints
prevalent even in colonial India. No film, or anything related to a film like a film
song, promo or trailer, can be broadcast without certification by the Censor
Board that it is suitable for unrestricted public exhibition. Oddly, even a music
video, whether made in India or abroad, cannot be broadcast on television
without certification by the Censor Board as being suitable for unrestricted
public exhibition.165
The case of Union of India v. Cinemart Foundation166 involved documentary
film-maker Tapan Bose. Bose had produced a documentary film on the Bhopal
Gas Disaster called Beyond Genocide. The film had won the ‘Golden Lotus’
award of the Government of India for the best non-feature film of 1987. At the
award distribution ceremony, it seems that the central minister for information
and broadcasting had said that films which had won an award that year would be
shown on Doordarshan, which was, at the time, possibly the only channel
available for public viewing on television. When Bose asked Doordarshan to
telecast his film, however, they refused. According to Doordarshan, the film’s
contents were ‘outdated’ and irrelevant, the film itself lacked moderation and
restraint, and that it was otherwise inexpedient to show the film since claims for
compensation of victims of the tragedy were pending in courts and because the
film dealt with a hot political issue.
The Supreme Court found that the imposition of prior restraints and
censorship on movies was justifiable because, unlike other media, a ‘movie is a
powerful mode of communication and has the capacity to make a profound
impact on the minds of the viewers and it is, therefore, essential to ensure that
the message it conveys is not harmful to the society or even a section of the
society.’167 However, it was held that the government would have to discharge a
heavy burden in order to justify the prior restraint.168 The court found that
Doordarshan had not placed any material before it which demonstrated that the
film was unsuitable for viewing for the reasons cited by Doordarshan (e.g.,
lacking moderation and restraint).169 It noted that the film had won the Golden
Lotus award, that it had been conferred a ‘U’ certificate (i.e., for unrestricted
public exhibition) by the Censor Board, and that Doordarshan itself had
conceded that the film was faithful in its portrayal of events of the Bhopal Gas
Tragedy. Merely because the film was critical of the government, or that claims
of victims of the tragedy were presently pending, did not mean that the film
could not be exhibited, said the court.
Strangely, radio stations are entirely barred from broadcasting political news
stories which are not officially sanctioned.170 All radio171 operators have to
follow the same programme and advertising code followed by All India Radio,
e.g., they cannot broadcast anything obscene, they cannot cast ‘aspersions
against the integrity of the President and Judiciary’, and they cannot carry any
‘criticism by name of any person’, among other things.172 Prior restraints are not
presently imposed on the Internet.173
Adolescents, Perverts and the Oversensitive
The Supreme Court has repeatedly held, even before the Hicklin test was
formally abandoned in Aveek Sarkar, that obscenity cannot be judged from the
standpoint of adolescent children, or adults who are either perverts or
oversensitive. However, the tests which we will see below are incredibly
subjective. After all, who is a pervert? Who is a hypersensitive person? Courts
do not have the benefit of juries to help them ascertain this. It is the trial judge
sitting by himself, or a handful of appellate judges, in whom we repose our trust
to answer these questions.
In Kakodkar,174 the court did not believe that merely by reading the story of
Nishikant and his sexual encounters described above, adolescent youth would
thereby ‘become depraved, debased and encouraged to lasciviousness’.175 ‘It is
possible that they may come across such situations in life and may have to face
them’,176 the court said. To insist that authors must always ensure that
‘[adolescents] ought not to be brought into contact with sex’, would be, in the
court’s mind, ‘to require authors to write books only for the adolescent and not
for . . . adults’.177 It was held that adolescents have available to them a great deal
of ‘classics, novels, stories and pieces of literature’ with content on ‘sex, love
and romance’.178
In Abbas,179 Chief Justice Hidayatullah held that standards must be so framed
that ‘we are not reduced to a level where the protection of the least capable and
the most depraved amongst us determines what the morally healthy cannot view
or read’. The line was to be drawn where ‘the average moral man begins to feel
embarrassed or disgusted at a naked portrayal of life without the redeeming
touch of art or genius or social value’, not if ‘the depraved’ see in such things
‘more than what an average person would’, like ‘as it is wrongly said, a
Frenchman sees a woman’s legs in everything’.180 The court found fault with the
guidelines laid down by the central government for the Censor Board under the
Cinematograph Act, holding that the public motion picture had thereby been
brought down to ‘the level of home movies’.181
In Raj Kapoor,182 the Supreme Court held that the ‘world’s greatest paintings,
sculptures, songs and dances, India’s lustrous heritage, the Konaraks and
Khajurahos, lofty epics, luscious in patches, may be asphyxiated by law, if
prudes and prigs and State moralists prescribe paradigms and proscribe
heterodoxies.’183 In other words, it was not merely adolescents or depraved
persons from whose standpoint the test of obscenity was to be determined. In
considering what is and what is not obscenity, a court was to ignore ‘prudes and
prigs and State moralists’, or hypersensitive persons.
In Samaresh Bose,184 the Supreme Court noted that the story in question had
appeared in a popular Bengali journal, Sarodiya Desh, which was ‘read by
teenagers, young boys, adolescents, grown-up young men and elderly people’. It
was held that the standard could not be that authors must ensure that adolescents
are not ‘brought into contact with sex’, because if this were the test, then only
religious books would pass muster.185 The court perhaps forgot that even
religious books in Hinduism sometimes have a great deal of sexual content.186
Likewise, in Bobby Art,187 the Supreme Court held that, ‘We do not censor to
protect the pervert or to assuage the susceptibilities of the oversensitive.’188 In
Director General v. Anand Patwardhan,189 it was held that ‘a film must be
judged from an average, healthy and common sense point of view.’190 In
Khushboo,191 the court said that a ‘culture of responsible reading’ was required to
be inculcated among ‘prudent readers’ (the court perhaps meant ‘prudish’
readers).192
In Ajay Goswami v. Union of India,193 the Supreme Court was considering a
petition filed to ensure that ‘minors are not exposed to sexually exploitative
materials’. The judgment itself does not recite the facts of the case very clearly.
It appears as though this petition was filed by a person who took offence to
sexually suggestive content appearing in newspapers, and wanted guidelines to
be framed on obscenity. For example, the court wondered whether it was really
necessary for children ‘to read at a very early stage [about] the [concepts] of
masturbation, ejaculation, penetration, etc. as is normally discussed by so-called
sex experts in columns of newspapers’.194 However, the court rejected the
petition on the ground that there was sufficient legislation on obscenity
already.195 It was held that the test of obscenity was to be determined from the
standpoint of the ‘ordinary man of common sense and prudence’ and not an ‘out
of the ordinary or hypersensitive man’.196 The court found that though the
newspapers who, as respondents in the case, were ‘conscious of their
responsibility towards children’, at the same time it ‘would be inappropriate to
deprive the adult population of the entertainment which is well within the
acceptable levels of decency on the ground that it may not be appropriate for . . .
children’.197 To impose a blanket ban on all newspapers from carrying sexually
suggestive photographs or news material would lead to a situation where
newspapers would end up publishing material ‘which caters only to children and
adolescents’ and deprives adults of ‘their share of entertainment’ within the
norms of decency.198 Those who were hypersensitive had the option of
subscribing to other newspapers.199
Accessibility, Expert Evidence and Contemporary Works
We have seen that one of the ingredients of the Hicklin test related to how
accessible the material in question was. Courts in British India were more likely
to hold something obscene if it was priced cheaply, as this would render it
accessible to more people. The Supreme Court in State of Maharashtra v. Indian
Hotel and Restaurants Association,200 seems to have abandoned this test.
Sections 33-A and 33-B of the Bombay Police Act, 1951 were challenged in this
case which, in effect, prohibited dance bars in Maharashtra. Under Section 33-A,
the holding of a dance performance in ‘any eating house, permit room or beer
bar’ was prohibited. Section 33-B, however, created an exception in favour of,
among others, hotels with three stars or more. The court did not express any
opinion over the question of whether these provisions violated the fundamental
right to free speech of dancers and bar owners.201 However, it was held that the
test of obscenity could not be determined on the basis of whether the material in
question was being performed at five-star hotels or not. ‘The judicial conscience
of this court,’ said Justice Nijjar, ‘would not give credence to a notion that high
morals and decent behaviour is the exclusive domain of the upper classes,
whereas vulgarity and depravity is limited to the lower classes.’202
We have seen that in Ranjit Udeshi, the court held that whether something was
obscene or not was to be determined by the court alone, without looking to the
opinions of experts. In that case, the court refused to consider the expert opinion
of novelist Mulk Raj Anand on behalf of the accused, as to the literary merit of
the novel Lady Chatterley’s Lover. However, in subsequent decisions, the court
has relented and permitted expert evidence to be led on questions of obscenity.
In Kakodkar,203 it was held that a court would be justified in looking at expert
evidence especially where the allegedly obscene materials were in a language
with which the judge was not familiar (in this case, Marathi).204 In Samaresh
Bose,205 the Supreme Court held that a court could look at expert evidence
without any such caveat of the material being in a different language.206
In Tuljapurkar,207 the court held that contemporary books could not be looked
at in order to determine whether a work was obscene or not.208 Contemporary
books may at best reflect what is acceptable to the community. The rule that
contemporary books cannot be looked at for determining whether something is
obscene or not was, as we have seen, one of the ingredients of the Hicklin test,
which appears still to be in vogue in India. Therefore, it would not be correct to
say that the Hicklin test has been abandoned in its entirety.
Isolated Passages
After the 1969 amendment to Section 292 of the IPC, in Anand Patwardhan209
and Aveek Sarkar,210 the Supreme Court has held that in determining whether
something is obscene, isolated passages cannot be looked at. Instead, the work
must be considered as a whole. In other words, merely because a novel contains
a few swear words on some of its pages does not mean that it is obscene. A few
years ago, a novel, Such a Long Journey, written by the award-winning author,
Rohinton Mistry, was reported to have been dropped by Mumbai University
because it contained a few curse words.211 The curse words were actually
directed at a powerful political party in Maharashtra, the Shiv Sena. The
grandson of the party leader of the Shiv Sena, Aditya Thackeray, was studying at
St Xavier’s College in Mumbai, where he came across the book and organized
an agitation to have it dropped from the syllabus. The book was dropped, and the
grandson was launched as a youth leader in the Shiv Sena. The tests laid down
by the Supreme Court suggest that the vice chancellor’s decision in dropping a
book from the syllabus on account of the fact that it contained a few curse words
was unfair. A book must be judged as a whole, and not on the basis of a few
words, paragraphs or pages.
Obscenity in the US
In the US, it is only ‘hardcore’ pornography which is considered obscene under
the First Amendment. This was not always so. We have seen that in Roth, the
court laid down the test that something would be considered obscene if to the
average person, applying contemporary community standards, the dominant
theme of the work taken as a whole, appealed to the ‘prurient interest’, i.e., its
objective was to excite sexual arousal. In Nico Jacobellis v. State of Ohio,212
Justice Stewart, in his concurring opinion, wrote that his reading of Roth was
that obscenity was limited only to ‘hardcore pornography’. While holding that he
could not specifically define what was meant by hardcore pornography, he added
the iconic line, ‘I know it when I see it’.213
In Miller v. California, which continues to hold the field,214 the appellant had
conducted a mass mailing campaign for advertising adult books. The brochures
which he sent out in the mail advertised four books, entitled Intercourse, ManWoman, Sex Orgies Illustrated, and An Illustrated History of Pornography, and
also a film called Marital Intercourse. The brochures mostly consisted of
sexually explicit pictures. Chief Justice Burger wrote the majority opinion of the
court. The following three-fold test was laid down in Miller for determining
whether something was obscene or not:
The basic guidelines for the trier of fact must be: (a) whether ‘the average
person, applying contemporary community standards’ would find that the
work, taken as a whole, appeals to the prurient interest; (b) whether the
work depicts or describes, in a patently offensive way, sexual conduct
specifically defined by the applicable state law; and (c) whether the work,
taken as a whole, lacks serious literary, artistic, political, or scientific value.
The court gave the following examples of what a state could regulate under part
(b) of the test above, viz.:
(a) Patently offensive representations or descriptions of ultimate sexual
acts, normal or perverted, actual or simulated. (b) Patently offensive
representation or descriptions of masturbation, excretory functions, and
lewd exhibition of the genitals.
The ‘contemporary community standards’ prong of the Miller test requires courts
to determine whether something is obscene or not from the standpoint of the
local community in which the trial takes place.215 This is a local, not a national or
state-wide test.
In his dissent in Miller, Justice Douglas wrote of the subjectivity of the test of
obscenity:
What shocks me may be sustenance for my neighbour. What causes one
person to boil up in rage over one pamphlet or movie may reflect only his
neurosis, not shared by others. Obscenity—which even we cannot define
with precision—is a hodgepodge. To send men to jail for violating
standards they cannot understand, construe, and apply is a monstrous thing
to do in a Nation dedicated to fair trials and due process.
The US Supreme Court delivered judgment in Paris Adult Theater I v. Lewis R.
Slaton216 on the same date as its judgment in Miller. In this case, the petitioners
were two movie theatre owners and managers in Atlanta, Georgia. The question
before the court was whether two films which were being displayed at these
theatres were obscene. The argument that ‘obscene, pornographic films acquire
constitutional immunity from state regulation simply because they are exhibited
for consenting adults only’ was rejected. It was held that a state has the following
legitimate interests in ‘stemming the tide of commercialized obscenity’, viz.,
‘the interest of the public in the quality of life and the total community
environment, the tone of commerce in the great city centres, and, possibly, the
public safety itself.’ It was held that though there was no conclusive proof of a
causal connection between antisocial behaviour and obscene material, a
legislature ‘could quite reasonably determine that such a connection does or
might exist’, since ‘[f]rom the beginning of civilized societies, legislators and
judges have acted on various unprovable assumptions.’ A theatre open to the
public for a fee was held not comparable to a private home or bedroom.
Justice Douglas once again delivered a dissenting opinion in Paris. He said
that he did not read or see the materials which came to the court under charges of
obscenity, because he did not think he could act as a censor. He once again
emphasized the subjectivity of the obscenity test:
Art and literature reflect tastes; and tastes, like musical appreciation, are
hardly reducible to precise definitions. That is one reason I have always felt
that ‘obscenity’ was not an exception to the First Amendment. For matters
of taste, like matters of belief, turn on the idiosyncrasies of individuals.
They are too personal to define and too emotional and vague to apply . . .
In Jenkins v. Georgia,217 the US Supreme Court held that the film Carnal
Knowledge was not obscene under the Miller test even though its subject matter
was sex and despite the fact that ‘ultimate sexual acts’ took place in the film.
This was because the camera did not focus on the bodies of the actors at the
times that the ‘ultimate sexual acts’ took place, there was ‘no exhibition
whatever of the actors’ genitals, lewd or otherwise, during these scenes’, and
though there were ‘occasional scenes of nudity’, nudity alone was insufficient to
constitute obscenity. In short, the film Carnal Knowledge did not contain the
‘public portrayal of hardcore sexual conduct for its own sake, and for the
ensuing commercial gain’, which was held to be punishable in Miller.
However, it seems that the rule against hardcore pornography evolved in
Miller is enforced on the Internet in an irregular and arbitrary manner,218 and
such materials are widely available on the Internet in the US.
There are, however, a few exceptions to the Miller test. Firstly, though the
Miller standard of the US Supreme Court only prohibits ‘hardcore’ pornography
as obscene, other sexually explicit or indecent materials, which would not be
considered obscene under Miller, can nonetheless be regulated in certain
circumstances. The US Supreme Court has upheld laws which impose ‘time,
place or manner’ restrictions on sexually explicit but non-obscene speech. For
instance, in some cases the court has upheld zoning laws which required adult
theatres to be located outside of a certain radius of residential or other areas.219
This would be considered a ‘place’ restriction on indecent non-obscene speech,
and is considered justifiable on account of the ‘secondary effects’ which such
speech might have on a neighbourhood. For example, one of the ‘secondary
effects’ of having an adult theatre in a neighbourhood might be that there may be
an increased incidence of crime there. Another could be that property values in
the neighbourhood might diminish.220
In FCC v. Pacifica,221 a comedian by the name of George Carlin had recorded
a twelve-minute monologue containing ‘seven dirty words’. The monologue was
then broadcast at about 2 p.m. in 1973 by a New York radio station. A man who
was in a car with his young son heard the monologue on the radio and
complained to the Federal Communications Commission. The Commission ruled
that since the monologue was broadcast ‘at a time when children were
undoubtedly in the audience (i.e., in the early afternoon)’, it was prohibited. The
Supreme Court upheld the Commission’s view, because the radio broadcast
failed to take into account the interests of minors and unconsenting adults.
Unconsenting adults, it was held, had a right to privacy and to be let alone in
their homes, a right not to be confronted with unwanted communications at
home. Radio communications were not susceptible to prior warnings.
Despite the Miller standard criminalizing hardcore pornography, the US
Supreme Court has held that a statute cannot make it a crime for a person to
possess hardcore pornography, because this violates the right to privacy. In
Stanley v. Georgia,222 the police found at the home of the appellant, while
conducting a search for something else, three reels of eight-millimetre film
containing obscene footage. The state of Georgia, where the appellant resided,
made it an offence to possess obscene materials. The statute was invalidated by
the Supreme Court and it was held that ‘[i]f the First Amendment means
anything, it means that a State has no business telling a man, sitting alone in his
own house, what books he may read or what films he may watch.’ The court said
that the government cannot be given ‘the power to control men’s minds’.
However, the Miller standard does not apply when children are involved,
either as actors in the film in question or as consumers. In Ginsberg v. New
York,223 the court upheld a statute which made it a crime to sell sexually explicit
non-obscene materials to minors. In this case, the appellants were prosecuted for
selling to a sixteen-year-old boy two ‘girlie’ magazines which would not have
been considered obscene for adults under the Miller standard. The law was
upheld as being in the interests of parents and teachers who have the
responsibility for the custody and care of children.
In New York v. Ferber,224 the proprietor of a Manhattan bookstore which
specialized in ‘sexually oriented products’ was prosecuted for selling to an
undercover police officer two films ‘devoted almost exclusively to depicting
young boys masturbating’. The Miller standard did not make all depictions of
masturbation obscene, only those which were ‘patently offensive’ and which met
the other criteria under Miller. However, the statute in question made it an
offence to use a child in a ‘sexual performance’, which included showing the
child engaged in masturbation. The statute was upheld. The Miller test was
specifically modified for child pornography in three ways: firstly, a court did not
have to find that the material appealed to the prurient interest of the average
person; secondly, the sexual conduct did not have to be portrayed in a patently
offensive manner; and thirdly, the material at issue did not have to be considered
as a whole.
Further, possession of child pornography can be a crime in the US. In Osborne
v. Ohio,225 the Supreme Court held that Stanley does not apply to possession of
child pornography. This is because after Ferber, most of the child pornography
market had been driven underground, and it was difficult, if not impossible, ‘to
solve the child pornography problem by only attacking production and
distribution’. Further, the child pornography itself constituted a permanent
record of the victim’s abuse, which could haunt children in the years to come, so
the state had an interest in ensuring that it was destroyed. Additionally, child
pornography is often used by ‘pedophiles . . . to seduce other children into
sexual activity’.
The ‘contemporary community standards’ approach of Miller would be illsuited to India’s judicial system, given that it is judges, not juries, who decide
questions of fact here. After all, chief justices of high courts here are appointed
from among the ranks of puisne judges of other states. So, for example, how is a
senior judge of the Delhi High Court who goes to Madras to serve as the chief
justice of the high court there supposed to know what the contemporary
community standards of the local community are there? In larger states in India,
high court judges sometimes have to move from one seat to another. The
Bombay High Court, for example, has its principal seat in Mumbai, but satellite
seats in Nagpur, Aurangabad and Goa. How is the judge of the Bombay High
Court who has recently moved from Nagpur to Mumbai supposed to know what
the contemporary community standards are here? Further, how is an appellate
judge of a high court in a large state like Maharashtra, sitting in Mumbai for
example, supposed to know whether the district judge of Satara has correctly
applied the contemporary standards of the local community there? Or worse, is
the high court judge supposed to defer to the judgment of the district judge of
Satara over the question of what constitutes obscenity in Satara? This would be
an odd solution, given that judges of the subordinate judiciary too are repeatedly
transferred from place to place, so the district judge of Satara might not have
been in Satara for very long himself. Television and the Internet have also
flattened disparities between different regions in India. After all, the same
programme which can be viewed on a television set or laptop in Mumbai can be
viewed in any other part of the country where broadcast television and the
Internet are available. Can local community standards be different when it is the
same material which is disseminated statewide or nationwide?
8
Obscenity Lies in the Crotch of the Beholder
Is Sexual Arousal Bad?1
The judgments of the Supreme Court of India which we have seen in the
previous chapter broadly define something as obscene if its sole purpose is to
arouse the reader or viewer sexually. However, this test is problematic for at
least two reasons.
Firstly, what is sexually arousing is deeply subjective. Something which is
sexually arousing or patently offensive for one person might be artistic or run-ofthe-mill for the other. As Justice Harlan of the US Supreme Court held in Cohen
v. California,2 ‘one man’s vulgarity is another’s lyric’. Justice Douglas of the US
Supreme Court was reported as having said that he opposed the law of obscenity
because ‘to find something obscene, it has to be sexually arousing, and the older
I get, alas, the harder it is for me to become sexually aroused.’3
Secondly, what is the harm in sexual arousal? As Justice Stable said in his
charge to the jury in Warburg and Justice Brennan said in his judgment in Roth,
sex is one of the most fundamental of human impulses, without which none of us
would be here today. Merely because something is solely intended to arouse its
readers or viewers sexually should not therefore make it harmful. Such materials
may be used as aids to sexual intercourse by consenting couples, or in Sunstein’s
words, even as ‘masturbatory aids’.4 The question still remains: so what? This
state of the law reflects a certain Victorian-era sense of discomfort with sex.
It may be that the law is concerned that materials which are solely designed to
arouse people sexually will make their readers or viewers get addicted to or
obsessed with sex. But can sexually arousing material be banned merely on the
ground that somebody might get addicted to sex? After all, there is much in the
modern world which is addictive, yet legal: cigarettes, alcohol, even chocolates,
present easy examples. These things, when consumed excessively, can hamper
the productivity of the workforce and eventually burden the state’s healthcare
system as they may lead to alcoholism, lung cancer, or diabetes, among other
things. If we can trust adults with cigarettes, alcohol and chocolates despite their
addictiveness, why is it justifiable to ban sexually arousing material on the
ground that its consumers will get addicted or obsessed?
Is There a Causal Relationship between Obscenity and Sexually
Deviant Behaviour?
Is the law of obscenity concerned that materials which are solely designed to
excite sexual arousal will cause readers or viewers to engage in sexually deviant
behaviour, or what Justice Brennan called ‘overt antisocial conduct’? For
example, is it a justifiable concern that men who read or watch obscene books or
movies will be more likely to harass women sexually. There have been numerous
reported instances recently of men engaging in sexually deviant behaviour,
particularly at airports or on flights. For instance, men have been accused of
making inappropriate sexual comments towards women,5 groping them,6 or even
molesting them.7 Such incidents are certainly not restricted to airports or flights
alone.8
However, the argument that there is a causal relationship between obscenity
and sexually deviant behaviour is troubling, for at least three reasons.
Firstly, there needs to be some empirical evidence to prove that there is, in
fact, such a causal relationship. The evidence appears to be mostly inconclusive.9
Secondly, even assuming that there is such a causal relationship, is it
justifiable to ban all obscene material or only that material which incites or
encourages consumers to engage in sexually deviant conduct? For example, an
obscene film which uses hypnosis to encourage viewers to harass women
sexually can certainly be said to justify a test of incitement. Would it be
justifiable to ban obscene material which does not, in any manner, encourage,
incite or otherwise portray as desirable or acceptable, sexually deviant
behaviour?
Thirdly, when a consumer of obscene material engages in sexually deviant
behaviour, must this be attributed to the obscene material or to the consumer
himself? After all, when a person engages in violent conduct after viewing films
which glorify violence or war, it is that person who is considered responsible and
liable for his own actions, not the producers of the violent film. Analogously, if a
person commits an act of sexual deviance after viewing an obscene film, must
the blame not rest squarely on the shoulders of that person himself?
Does Obscenity Degrade Women?
Feminist scholars Catharine MacKinnon and Andrea Dworkin have argued that
pornography degrades women,10 that it creates a culture or helps shape a society
in which women are considered subservient objects meant to be used purely for
the sexual gratification of men or that women enjoy or deserve physical abuse.11
MacKinnon argues that ‘pornography constructs what a woman is in terms of its
view of what men want sexually’, where ‘women substantively desire
dispossession and cruelty’, to be ‘bound, battered, tortured, humiliated, and
killed’ or ‘merely taken and used’.12
This argument too, however, is problematic for several reasons. Not all
pornography or obscenity degrades women or portrays them as objects of sexual
gratification. Some pornography portrays women as dominant, men as
subservient. The McKinnon-Dworkin argument also does not apply to gay
pornography,13 which does not contain women at all, or to LGBT pornography
more generally. Many also argue that much pornography portrays women as
exercising agency, as being in control of their own bodies and sexual destinies.
These scholars argue that the McKinnon-Dworkin argument is fallacious
because it regards ‘good’ or ‘virtuous’ women as those who do not enjoy sex,
whereas pornography depicts women as sexually liberated.14 The US Court of
Appeals for the Seventh Circuit invalidated the obscenity ordinance drafted by
MacKinnon and Dworkin for the city of Indianapolis, which was based on the
degrading portrayal of women in pornography, for discriminating between
viewpoints.15 Further, what if a reputable artist paints an artistic picture which is
degrading towards women—if pornography must be banned for degrading
women, then should art or literature not be banned when it does so as well?
Should political speech which, for example, dismissed the candidature of Hillary
Clinton during the 2016 US Presidential race on the ground of her being a
woman, have been banned as well? To censor pornography because it degrades
women sends us down the path of a slippery slope.
In fact, as Deana Heath points out, women in Indian culture have historically,
even in colonial times, been viewed as repositories or embodiments of virtues
like chastity, purity and self-sacrifice, the antithesis of Western women who were
seen as ‘idle, useless and of loose morals’.16 This continues in modern-day India.
Think of the cricket teams of the Indian Premier League which import foreign
(mostly white) female cheerleaders to dance and cheer at games. Indian women
are probably not employed as cheerleaders because they are considered
‘virtuous’ unlike ‘loose’ foreign women. Such ideas hold dubious value.
Likewise, some members of the local Bohri Muslim community in India practise
female genital mutilation, or khatna, where a part of the clitoris of young girls,
about six or seven years of age, is cut off, to curb and control female sexual
desire, precisely because female sexuality is considered taboo by conservatives
in the community.17 In its portrayal of women as beings who enjoy sexual
intercourse, for reasons other than reproduction, pornography challenges the
conventional patriarchal hierarchy.
Was Anyone Hurt in the Making of the Film?
However, there are some justifiable concerns against obscene or pornographic
films. One of these is that no person ought to be harmed in the making of the
pornographic film in question. The following can be considered as some of the
constituent ingredients of this argument:
Firstly, adult actors must give their informed consent for acting in the film. A
hidden camera recording of a couple engaged in sexual intercourse, for example,
cannot be considered protected by the right to free speech because the actors in
the film did not know that they were being recorded or their privacy violated.
Likewise, though an act of sexual intercourse might have been recorded with
consent, there may have been no consent for it to be broadcast in public. This
often occurs in what is called ‘revenge porn’—when a couple consensually make
a recording of a sexual activity between themselves, expecting that the recording
will be kept private at all times, but after the couple separate, one of them
(usually the male) makes the recording public in order to humiliate the other
(usually the female). The actors in the film must therefore give their informed
consent, not merely for the recording but for its broadcast as well. MacKinnon
and Dworkin raise a very powerful question about whether women in
pornographic films in the US could really be said to have consented to the
physical torture they were put through in the making of some films. Both evoke
the example of Linda Marchiano, known as ‘Linda Lovelace’, who was
hypnotized in order to overcome the natural gag reflex while performing ‘deep
throat’ in the movie of the same name.18 In India, sex workers are often forced
into prostitution against their will, having been sold virtually as slaves to
traffickers at a young age. Can an adult sex worker in India really be considered
as having given her consent to being cast in a pornographic film where much of
her ‘consent’ is manufactured by her circumstances and surroundings? There are
therefore some serious concerns about whether the women who act in
pornographic films truly give their informed consent to doing so. Even those
who consent may not know what they are really getting themselves into, and
once there it may be hard for them to get out. Such concerns, however, do not
apply to materials like animated films or non-illustrated novels where there are
no actors involved.19
Secondly, some scenes, involving extreme sexual activity, might be
considered far too harmful for adult actors to engage in, despite their consent.
Some pornographic scenes might require actors to put their bodies through
actual physical harm, harm which no adult may be permitted under the law to
consent to.
Thirdly, children are incapable of giving their consent, and so child actors
cannot be used in pornography.
Consent to Watch
Another category of harm in obscenity and pornographic materials may be that it
is offensive to a person who does not want to, but is nonetheless forced to, watch
it. An adult who does not want to watch obscene films should not be forced to
watch them. Those incapable of giving their consent, e.g., children or anyone
with a mental disability, should not be permitted to watch pornography except
with the consent of their legal guardians. These concerns can be addressed
through what Tribe calls ‘erogenous zoning’ laws—laws which regulate the
time, place and manner in which sexually explicit material can be exhibited.
Is Pornography Bad because It Communicates No Ideas?
One argument against obscenity and pornography might be that the right to free
speech is meant to protect literary, artistic, political and scientific work, that it is
meant to protect the dissemination of ideas, but pornographic material is none of
these things as it is designed to produce a physical effect alone.20 However,
whether something conveys an idea or not is, sometimes, hard to say. Justice
Hidayatullah of the Supreme Court of India, for example, found no idea worth
protecting in the novel Lady Chatterley’s Lover, but Justice Stewart of the US
Supreme Court found it covered by the First Amendment because it conveyed
the idea that adultery, under certain circumstances, was justifiable. Some would
argue that pornography conveys ideas too, ideas that women are in control of
their bodies and sexuality, or that women are subservient to and meant for the
sexual gratification of men.21
Secondary Effects
There is one more legitimate argument which can be made particularly against
the public exhibition of obscenity. The public display of such materials in a
neighbourhood is likely to give rise to ‘secondary effects’ in that neighbourhood,
e.g., it may attract bad elements of society, criminals, gangsters, drug-peddlers,
prostitutes, etc., to that neighbourhood. However, this is capable of being
remedied through zoning laws—by concentrating (or dispersing) areas where
adult content can be exhibited in public, and by ensuring that these areas are kept
away from the residential or commercial parts of a town.
9
A Blaze of Glory for Judges
This chapter examines the law of contempt in the form of scandalizing the court.
Typically, this kind of contempt of court takes place when a person says that a
judge is dishonest or biased.1 Three primary arguments will be made in this
chapter. Firstly, we will see that contempt cases involving scandalizing the court
in colonial India closely mirrored comparable cases in England. Unlike sedition,
and like obscenity, the doctrine of scandalizing the court in colonial India was
very similar to its counterpart in the metropole. This is interesting because
contempt of court is intuitively a form of subversive speech, which, one would
think, would have been harshly suppressed in British India. This, however, is not
what happened. Secondly, after examining present-day decisions of the Supreme
Court of India, this chapter will argue that Indian courts today have excessive
powers to punish contempts that scandalize the court, and that an argument can
conceivably be made to limit these powers only to contempts which take place in
the face of the court, contempts which obviously undermine the dignity and
decorum of the day-to-day functioning of the court. Thirdly, this chapter will
also demonstrate that the enactment of the Constitution in 1950 did not bring
about any major transformation in the free speech jurisprudence of this country:
the law of contempt in the form of scandalizing the court remained virtually
unchanged and has been unaffected by the enactment of a fundamental right to
free speech.2
Scandalizing the Court in England
Over the years, the offence of scandalizing the court has been very sparingly
used in England, to prevent extreme statements that might lower the authority of
courts or create an atmosphere in which their judgments will be disobeyed.
Statements made in good faith (meaning, without malice and which do not
attribute motives like bias or corruption to judges), even if untrue, were outside
the ambit of scandalizing the court. Initially, a person was required to be
respectful or reasonably courteous in his criticisms of judges, not to engage in
‘scurrilous abuse’. However, later, even ‘trenchant’ criticisms of courts and
judges were considered outside the purview of scandalizing the court.
Eventually, the offence of scandalizing the court was abolished in 2013.
The phrase ‘scandalizing the court’ was first used by Lord Chancellor
Hardwicke in a case decided in 1742, Roach v. Garvan (or Hall),3 a case which
did not actually involve contempt in the form of scandalizing the court.
Hardwicke found that there were three kinds of contempt, one of which was
‘scandalizing the court itself’.
Thereafter, one of the earliest cases involving scandalizing the court was Rex
v. Almon,4 decided around 1765. A publisher in Piccadilly, London, had printed a
pamphlet which criticized Chief Justice Mansfield for following a procedure in
habeas corpus cases which was too formalistic. At its worst, the pamphlet
accused Mansfield of acting ‘officiously, arbitrarily, and illegally’.5 Justice
Wilmot wrote the court’s judgment, but it went unreported and unpronounced,
because the prosecution in the case was eventually dropped. Wilmot’s judgment
was published decades later, in 1802, by his son.
Wilmot said that the entire objective of the law of contempt was ‘to keep a
blaze of Glory around’ judges, to prevent people from making judges
‘contemptible in the eyes of the Public’.6 He explained that the king delegates his
authority to judges, and to question ‘the Justice of the Judges’ was to question
‘the King’s Justice’. It was ‘an Impeachment of [the King’s] wisdom and
goodness in the choice of his judges’. Its result was to ‘[excite] in the Minds of
the People a general Dissatisfaction with all Judicial Determinations’, and to
‘[indispose] their minds to obey them’.7 If the authority of courts were ‘to be
trampled upon by Pamphleteers and News-writers’, and if people were told that
the power given to judges for their protection was being ‘prostituted to their
destruction’, the court would lose all its authority, thought Wilmot.8 ‘Would it
not, must it not, necessarily bring this Court into Contempt,’ he wrote, ‘to say,
the Judges at their Chambers make Orders or Rules corruptly?’9 A court’s power
to punish those who committed contempt by scandalizing the court was to be
exercised summarily, i.e., without going through a formal trial.10
For over a hundred years thereafter, scandalizing the court was almost never
used in England. An interesting case came before the Privy Council around 1893
from the Bahama Islands.11 The case arose out of a letter written by someone
under the pseudonym ‘Colonist’, published in a newspaper called the Nassau
Guardian. The letter commented on the conduct of the chief justice of the
Bahama Islands, Roger D. Yelverton. In April 1892, Yelverton had decided a
case. The party who won the case then offered a gift of pineapples to him in
gratitude. Yelverton refused to accept the gift, and said, in open court, ‘[i]t is
wrong to accept any present whatever from any one who is, or who has recently
been, or who is known as likely to be, a suitor in the Court.’ Yelverton later
wrote two letters to the editor of the Nassau Guardian commenting on certain
measures taken by the colonial administration for improving the health of the
colony, where a fever seemed to have taken hold. It was against this backdrop
that the letter of the ‘Colonist’ was published in the Nassau Guardian on 14 May
1892. The letter was sarcastic, humorous and irreverent. It commented on the
high salary which Yelverton was drawing as chief justice of the Bahama Islands.
It said:
Mr Yelverton has come to the rescue . . . What is the good of increasing the
salary of the Chief Justice if his mind is to be disquieted and alarmed
through fear of fever? . . . we should do all that lies in our power to preserve
the health and life of this luminary of the English bar . . . [I]n Mr Yelverton
we have one who surpasses our highest expectations of the kind of man
who would come to pocket our £1000 a year.
The letter made hilarious allusions to the incident involving the pineapples:
Search the annals of the bench of every country, of every age, and I defy
creation to produce a more noble, more self-denying, and more virtuous
exhibition of a tender conscience than was afforded by our Chief Justice in
refusing to accept a gift of pineapples! Some cynic has said, ‘Every man
has his price.’ It is assuring to this community to know that the ‘fount of
justice’ in this colony is above the price of even one dozen pineapples. Mr
Yelverton’s noble words of scornful renunciation should be graven in letters
of gold upon the walls of every magisterial office in this colony; then, and
not till then, will sweet potatoes, pigeon peas, &c., cease to exert their
baneful influence on the administration of justice in this colony.
The letter also sarcastically commented on the fact that Yelverton took more
days off than was permissible under the rules:
[A] great many people of this city are mean enough to say that . . . [the] law
allows six weeks’ leave of absence, and Mr Yelverton should be subservient
to that law, if to no other. I say to these fellows of the baser sort, ‘Now, just
suppose we had a fool for Chief Justice, would ten months and two weeks’
sticking to his office make him worth a thousand a year?’
Chief Justice Yelverton was not amused. He summoned the editor of the Nassau
Guardian, Alfred E. Moseley, and ordered him to reveal the name of the
‘Colonist’. When Moseley refused, Yelverton sentenced him to imprisonment for
an indefinite period of time, for so long as the chief justice pleased. Moseley was
also ordered to pay a fine of £65, along with costs.
The Privy Council found, however, that though the letter could have formed
the basis of a libel action, it did not amount to contempt, as it was not ‘calculated
to obstruct or interfere with the course of justice or the due administration of the
law’. During arguments, Lord Justice Bowen said that the ‘essence of the
offence’ of contempt, was that it is ‘against the public not the judge, an
obstruction to public justice’.
Thus, in 1899, in McLeod v. St Aubyn,12 the Privy Council remarked that
scandalizing the court had become ‘obsolete in this country’, i.e., England. The
case arose out of an appeal filed from the Supreme Court of St Vincent in the
West Indies. The appellant in this case was a correspondent in St Vincent for a
weekly newspaper called the Federalist which was printed out of Grenada. In
March 1897, the Federalist carried a letter and an article which adversely
commented on the acting chief justice of St Vincent. The newspaper said that he
was not able to maintain ‘the noble traditions of the British bench’, that he
would ‘nod and wink to counsel engaged in cases’, that prior to going there he
used to be ‘a briefless barrister [in England], unendowed with much brain who
religiously attended with his empty bag at the several Courts of London in the
forlorn hope of picking up a case’. The appellant, however, was not the printer,
publisher or author of the letter or article. He was merely a correspondent for the
newspaper, and he had innocently handed over the newspaper to somebody in St
Vincent. The question was whether this amounted to contempt of court.
Speaking for the Council, Lord Morris said that the power to punish a person
for scandalizing the court was not to be used ‘for the vindication of the judge as
a person’, that it was ‘a weapon to be used sparingly, and always with reference
to the interests of the administration of justice’.13 As a summary process,14 it was
to be exercised ‘only from a sense of duty and under the pressure of public
necessity’. The court found that scandalizing the court as a category of contempt
was virtually non-existent in England, and that it might be useful only in ‘small
colonies, consisting principally of coloured populations’.15 It was held that in
merely handing over the newspaper to somebody in St Vincent, the appellant
was not guilty of committing any contempt of court. The appeal was accordingly
allowed.
However, only a year later, in 1900, in Regina v. Gray,16 a person was
punished in England for scandalizing the court, thus disproving the Privy
Council’s belief that such contempts had become obsolete there. The case arose
against the backdrop of an obscenity trial, at which the presiding judge, Justice
Darling, warned members of the press not to report all the evidence which might
be recorded during the trial. Annoyed by this instruction, a man called Howard
Alexander Gray published an article called ‘A Defender of Decency’ in a
newspaper, the Birmingham Daily Argus. In it, Gray called Justice Darling an
‘impudent little man in horsehair’ and ‘a microcosm of conceit and emptyheadedness’. ‘One of Mr Justice Darling’s biographers states that “an eccentric
relative left him much money”’, wrote Gray, adding, ‘That misguided testator
spoiled a successful bus conductor.’17 Gray concluded with the following words:
No newspaper can exist except upon its merits, a condition from which the
bench, happily for Mr Justice Darling, is exempt. Mr Justice Darling would
do well to master the duties of his own profession before undertaking
regulation of another.18
In court, Gray wrote an affidavit profusely apologizing for his article, saying that
he had used language which was ‘intemperate, improper, ungentlemanly, and
void of the respect due to his Lordship’s person and office’. Speaking for the
court, Lord Chief Justice Russell of Killowen said that the article in question was
not a criticism but a ‘scurrilous abuse of a judge as a judge’.19 Taking into
account Gray’s apology, in the absence of which he would have been sentenced
to imprisonment for a long time, the court fined him £100 and imposed on him a
further sum of £25 as costs.
The last successful prosecutions for scandalizing the court in England took
place in 1930 and 1931.20 Most of the reported cases thereafter concerned
appeals to the Privy Council from decisions in the colonies. For example, in
Ambard v. Attorney General,21 the Privy Council was considering an appeal filed
from the Supreme Court of Trinidad and Tobago. The appellant was the editor
and proprietor of the Port of Spain Gazette. This newspaper had carried an
article, in 1934, called ‘The Human Element’, which pointed out how sentencing
in two criminal cases at the time was inconsistent. The court held that to criticize
a court, ‘in good faith’, did not amount to contempt, provided that the speaker
abstained ‘from imputing improper motives to those taking part in the
administration of justice’. Allowing the appeal and holding that there was no
contempt in this case, Lord Atkin wrote the famous words: ‘Justice is not a
cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even
though outspoken, comments of ordinary men.’
In Regina v Commissioner of Police of the Metropolis, Ex Parte Blackburn
(No. 2),22 the court of appeal for the first time considered a case involving the
question of scandalizing the court. In 1968, Quintin Hogg, a member of
Parliament who later went on to become Lord Hailsham of St Marylebone, Lord
Chancellor,23 wrote an article in the weekly periodical, Punch, called ‘The
Gaming Muddle’. In it, he criticized a judgment of the Queen’s Bench Divisional
Court, though he wrongly attributed it to the court of appeal. The article was not
respectful in its tone and criticism. In it, he said that ‘blindness . . . sometimes
descends on the best of judges’, that English court decisions had been
‘unrealistic, contradictory and . . . erroneous’, which had rendered legislation
‘unworkable’.
Deciding the case in Hogg’s favour, Lord Denning, one of the best-known
judges in the common law world, wrote the famous words:
Let me say at once that we will never use this jurisdiction as a means to
uphold our own dignity. That must rest on surer foundations. Nor will we
use it to suppress those who speak against us. We do not fear criticism, nor
do we resent it. For there is something far more important at stake. It is no
less than freedom of speech itself.24
Denning, however, said that critics of courts must remember that ‘from the
nature of our office, we cannot reply to their criticisms’, that judges ‘cannot
enter into public controversy’, ‘[s]till less into political controversy’, and that
judges must ‘rely on [their] conduct itself to be its own vindication’.
After this case, even trenchant criticisms of courts and judges were held, in
England, not to constitute contempt in the form of scandalizing the court.
Though Quintin Hogg’s criticism was found to be ‘rumbustious’, ‘wide of the
mark’, and ‘expressed in . . . bad taste’, it was held that he had not committed
contempt of court.
Scandalizing Abolished in England
In 1974, the Phillimore Committee recommended that the offence of
scandalizing the court be substantially whittled down, to include merely the
‘publication . . . of matter imputing improper or corrupt judicial conduct with the
intention of impairing confidence in the administration of justice’.25 However,
even then, the committee said that ‘[m]ost attacks . . . are best ignored’, because
they ‘usually come from disappointed litigants or their friends’, and to ‘take
proceedings in respect of them would merely give them greater publicity, and a
platform from which the person concerned could air his views further’.26
In 2012, the Law Commission of the United Kingdom recommended the
abolition of the offence of scandalizing the court. In a consultation paper which
is worth reading in its entirety,27 the Law Commission noted that the offence of
scandalizing the court had become almost entirely obsolete. The last known
instance of it being invoked was in March 2012, when the attorney general of
Northern Ireland obtained leave to prosecute a member of Parliament, Peter
Hain, for what he had said about Justice Girvan in his book, Outside In.28 The
prosecution in that case was dropped when Hain clarified his comments. It was
noted that the relaxed approach in England was exemplified by the fact that
when the Daily Mirror carried upside-down images of three law lords, under the
caption ‘You Fools!’, after the Spycatcher case,29 no action was taken against
them for contempt.
The Law Commission considered a Hong Kong case where the contemnor had
described some judges as ‘dogs and bitches’, ‘scumbags’, ‘public enemy of
freedom of the press and a public calamity to the six million citizens of Hong
Kong’, ‘British white ghosts’ and ‘pigs’, and threatened to ‘wipe [them] all out’.
It also considered a South Australian case, in which a radio presenter told his
listeners to ‘smash the judge’s face in’. However, it was found that such
comments, ‘given the general habits of British journalism’, were unlikely to be
made or to be taken seriously, and if made, they could be covered by other
offences (e.g., disrupting public order). The Law Commission also quoted Lord
Justice Elias and found that though there was a lot of abusive material directed
against English judges, particularly online, much of it was ‘too silly’ to be taken
seriously.
Interestingly, the Law Commission found that Denning’s request to critics of
courts in Ex Parte Blackburn, to bear in mind that judges could not respond to
their criticisms, was no longer valid. In 1955, Lord Chancellor Kilmuir had
written a letter to the BBC rejecting its request to allow judges to speak on a
radio show on the innocuous topic of past eminent judges.30 Kilmuir’s letter,
which discouraged judges from speaking with the media, encapsulated what
came to be known as the ‘Kilmuir Rules’. However, these rules were relaxed in
1987. Thereafter, in 1993, Lord Chancellor Mackay of Clashfern in the Hamlyn
Lectures that year said that judges ought to decide for themselves how to
communicate with the public.31 Following this, in 1996, Channel 4 issued an
apology to Justice Garland for something they had carried about him, once he
wrote a letter to the New Law Journal.
The Law Commission also noted that judges had successfully used civil libel
laws instead of the offence of scandalizing the court. In 1992, Justice Popplewell
succeeded in a defamation suit which he filed against the Today newspaper
which had insinuated that he had fallen asleep during a murder trial.
Consequently, under the Crime and Courts Act, 2013,32 the offence of
scandalizing the court was abolished as a form of contempt of court under the
common law of England and Wales.
The US Rejects English ‘Foolishness’
Contempt in the form of scandalizing the court does not exist under US
constitutional law. In Bridges v. California,33 Justice Black held that ‘enforced
silence, however limited, solely in the name of preserving the dignity of the
bench, would probably engender resentment, suspicion, and contempt much
more than it would enhance respect.’ Even Justice Frankfurter, in his dissent in
this case, called the doctrine of ‘scandalizing the court’ or ‘bringing it into
general disrepute’, an example of ‘foolishness’ which ‘has long since been
disavowed in England’ and which ‘has never found lodgement’ in the US.
Likewise, in Craig v. Harney,34 Justice Douglas found that though the
newspaper articles in question used ‘strong’ and ‘intemperate’ language and
resorted to ‘unfair criticism’, a judge was not permitted to hold in contempt one
‘who ventures to publish anything that tends to make him unpopular or to belittle
him’. It was held that the ‘vehemence of the language used’ was not the sole
measure for determining whether there had been a contempt of court. There had
to be an imminent, not merely likely, threat to the administration of justice. It
was held that the law of contempt was ‘not made for the protection of judges
who may be sensitive to the winds of public opinion’. ‘Judges,’ said Justice
Douglas famously, ‘are supposed to be men of fortitude, able to thrive in a hardy
climate.’ In his concurring opinion, Justice Murphy wrote that ‘[s]ilence and a
steady devotion to duty are the best answers to irresponsible criticism’.
Scandalizing the Colonial Court
Lack of Discrimination
We have seen that the law of sedition in British India was very different from its
counterpart in England. It was designed in a manner so as to discriminate against
Indians. By contrast, however, we have also seen that the law of obscenity in
British India was remarkably similar to the law in England—it was the Hicklin
test which was employed both in England and colonial India to determine
whether something was obscene. The reason for this double standard was
obvious. Sedition, on the one hand, was subversive and threatened the
foundations of the state. Obscenity, on the other hand, was not a political
offence, and there was no reason for the criminal law against obscenity to be
particularly harsh in India.
The offence of scandalizing the court came closer to sedition than it did to
obscenity. To scandalize a court, after all, was to undermine the authority and
power of the court, one of the essential coercive organs of the colonial state.
Even so, however, the doctrine of scandalizing the court in colonial India
appeared to be administered in a manner which was remarkably similar to its
counterpart in England. Cases like Roach, Aubyn, Gray, and Ambard were
repeatedly cited and followed by colonial judges. Many cases resulted in
outcomes that would not have been considered discriminatory against India or
Indians.
For example, one of the first reported judgments on scandalizing the court was
delivered by the Calcutta High Court around 1869, in William Tayler’s case.35
An English lawyer, William Tayler, had filed a suit against his Indian client to
recover his unpaid fees in a case. In the suit, Justice Dwarkanath Mitter, who
was only the second Indian judge to be elevated to the Calcutta High Court, said
that Tayler had perpetrated a fraud against his Indian client. Outraged by this,
Tayler wrote several letters to the editor of a newspaper, the Englishman. In
these, he spoke of Mitter in harsh terms. He said that Mitter had cast an
‘unmeasured imputation’ against him ‘without one tittle of evidence to support
it’, an imputation which was ‘wholly untrue’, ‘manifestly absurd’, a ‘wanton
insult and unfounded aspersion’. He said that if Mitter were a district judge, he
would surely have been suspended, and that ‘elevation to the Bench’ did not
mean ‘total exemption from responsibility’.
Tayler was hauled up for contempt before the Calcutta High Court. The case
was decided by Chief Justice Barnes Peacock, who was a friend of Tayler. In
fact, Peacock opened his judgment by regretting that he had to decide this case
involving a person with whom ‘in times gone by I have held social and friendly
intercourse’. ‘These letters are not fair criticisms’, said Peacock, ‘they are
slanderous effusions . . . as regards the Judge’ of a disappointed litigant who has
lost his case. Peacock praised Mitter in his judgment. ‘I knew him before he was
raised to the Bench’, he wrote, and ‘I have sat with him frequently as a
colleague’. Peacock continued, ‘he is a man of ability and learning, very
unassuming, yet high-minded, of a gentle, kind, and amicable disposition,
independent and always ready to maintain his opinion so long as he conceives it
to be right, and equally ready to abandon it if convinced that it is wrong.’
Tayler was sentenced to one month in civil prison (he was eventually let off
when he tendered a formal apology) and a fine of Rs 500. Quoting Mansfield,
Peacock concluded his judgment by saying:
I wish popularity, but it is that popularity which follows, not that which is
run after. It is that popularity which sooner or later never fails to do justice
to the pursuit of noble ends by noble means. I will not do that which my
conscience tells me is wrong, to gain the daily praise of all the papers which
issue from the press. I will not avoid doing that which I think right, though
it should draw upon me the whole artillery of libels, all that falsehood and
malice can invent or credulity can swallow.
It is therefore very interesting that one of the first, if not the very first, reported
judgments on scandalizing the court in colonial India involved a British judge
who convicted a Briton for having besmirched the reputation of his Indian
colleague.
Several decades later, Gandhi was involved in a case of contempt of court
before the Bombay High Court.36 In April 1919, the district judge of
Ahmedabad, B.C. Kennedy, had written a letter to the registrar of the Bombay
High Court, bringing to the latter’s attention the fact that some of the lawyers in
Ahmedabad had taken a ‘Satyagraha pledge’, which was apparently contrary to
their duties as lawyers. Consequently, notices were issued against those lawyers
for contempt of court. Gandhi took this up in his newspaper, Young India. In an
August 1919 issue, Gandhi wrote that the district judge’s conduct was
unpardonable, that he had prejudged the issue, and that judges in British India
were generally ‘fanning the fire of Bolshevism’ (i.e., they were becoming
instruments for propagating a ‘spirit of lawlessness accompanied with
violence’). Gandhi’s comments in Young India were found by Justice Amberson
Marten to be ‘of a particularly intemperate and reprehensible character’ and he
held that they constituted ‘scurrilous abuse’ of a judge. Though Gandhi was
removed as a barrister of the high court as a consequence of this case, which
resulted in his disbarment from the Inns of Court in England,37 he was neither
sentenced to imprisonment nor ordered to pay a fine.
One of the judges who heard this case, Maurice Hayward, later wrote in an
unpublished draft of his autobiography, that this case had attracted the attention
of the Governor of Bombay, ‘who feared that the commitment of Gandhi to
prison might result in rioting’.38 The Governor wrote a letter to the judges who
were hearing the case, asking them what they intended to do in the matter, ‘much
to the indignation’ of Justice Marten. ‘But we had no intention of committing
[Gandhi] to prison’, wrote Hayward in his autobiography.
Interestingly, in Chhaganlal Ishwardas Shah v. Emperor,39 the Bombay High
Court was considering the question of whether improper dress in court can
constitute contempt of court. In this case, an assessor (i.e., a member of a jury in
the mofussil) had appeared at a sessions court in Nadiad dressed in a ‘paheran’,
cap and scarf. The sessions judge fined him Rs 3 for being improperly dressed
and for not wearing a coat. Disagreeing with the sessions judge, Chief Justice
Beaumont of the Bombay High Court wrote, ‘[w]ell, that is rather a matter of
taste.’ Having seen what a paheran looked like, Beaumont thought that ‘it looks
better without a coat, than with one.’ The court took into account the fact that
there were no rules regarding what dress was to be worn by assessors and the
fact that the assessor had stated to the court that the dress he had worn was ‘his
best dress’, one which he ‘wore on ceremonial occasions’, and which he had
worn as an assessor in the past. The court found that his intention was ‘to insure
his own comfort, [not] to insult the Court’.
Around 1938, Chief Justice Beaumont of the Bombay High Court wrote one
of the most liberal judgments on scandalizing the court in colonial India. This is
interesting because Beaumont was not a particularly popular or pro-Indian judge.
It was partly on account of his efforts that the Bombay High Court lost out on
getting an Indian chief justice during the colonial period.40 However, in
Government Pleader v. Tulsidas Jadhav,41 Beaumont cited Gray, Aubyn and
Ambard. He said that ‘the degree of confidence reposed in the judiciary’ would
depend ‘on the character of judicial work’, that ‘confidence cannot be for long
artificially engendered by the simple process of stifling criticism.’ He found that
it had been ‘laid down many times and by the highest tribunals that Judges are
not immune from criticism’, and in cases involving scandalizing the court, the
court was, ‘in effect both prosecutor and Judge’, in which the contemnor was
‘deprived of the ordinary methods of trial’. For these reasons, Beaumont
believed that the power of punishing contempts for scandalizing the court was to
be ‘sparingly used’, only when attacks were made imputing ‘base or improper
motives’ to a judge.
In Debi Prasad Sharma v. Emperor,42 the Privy Council was considering an
article which had been published in the Hindustan Times which said that the
chief justice of Allahabad, Sir Iqbal Ahmad, had asked all judicial officers to
‘raise subscriptions for the war funds’. This was a very serious allegation,
because it would mean that judges in the subordinate judiciary in the United
Provinces would have had to ask litigants—those who depended on the good
humour of the judges—for financial contributions to the government, in aid of
the efforts in the Second World War. It turned out that this was absolutely false—
the chief justice had not directed judges to do anything of the kind. However,
speaking for the Committee, Justice Atkin took a fairly liberal view of the
matter, saying that ‘judicial personages can afford not to be too sensitive’. If the
chief justice had simply issued a public statement denying the article, he said,
that would have done the trick. Judges, said Atkin, always had the option of
filing a suit for defamation.
Improper Motives
In case after case, courts in British India held that it amounted to scandalizing
the court when a person imputed improper motives to a judge, e.g., an
imputation that a judge was biased or dishonest,43 or that he had made up his
mind without considering both sides.44 This was not very far from the
comparable English law at the time.
One of the first reported judgments of the Bombay High Court on this
question concerned N.C. Kelkar,45 a close associate of Tilak, and editor and
publisher of Tilak’s English language newspaper, the Mahratta. We have seen
that Tilak himself was convicted of sedition in 1908 and sentenced to an
enormously hefty sentence of transportation by Justice Davar of the Bombay
High Court. Following the decision, an article was written in a July 1908 issue of
the Mahratta. The article suggested that Tilak’s conviction had been secured by
the government with Davar’s collusion. It was hinted, for instance, that Davar,
for some reason, had thought it important for Tilak’s trial to conclude the day
before the Indian budget debate took place in Britain’s Parliament. For this
reason, Davar allowed only half-an-hour for the lunch break, offered ‘significant
hints’ to the advocate general, and adopted ‘unusual haste’ in closing the
proceedings. It was alleged that Davar’s charge to the jury was incredibly onesided and unfair. The article referred to Davar as ‘a medical quack in a red robe,
as an enemy of the accused, privileged to sit upon the Bench, as an impudent
glow-worm holding his torch to the Sun’.
Citing Gray, Chief Justice Basil Scott in his judgment said that the article had
‘[overstepped] the bounds of fair criticism’, that it had ‘[attacked] the
independence and honesty of the Judge without any justification’ and ‘[indulged]
in scurrilous abuse of him’ in his capacity as a judge. As Kelkar refused to
apologize, he was fined Rs 1000, ordered to pay costs of Rs 200, and sentenced
to imprisonment for fourteen days, a sentence which was to continue until the
fine and costs were paid and an apology tendered to the court. Once again, one
of the first scandalizing the court cases in the Bombay High Court presented an
interesting image of race relations in colonial India. An Indian editor had
denounced an Indian judge for conducting the trial of an Indian nationalist leader
in a biased manner. A British chief justice then came to his Indian colleague’s
defence, and sentenced the Indian editor for contempt.
In Tarit Kanti Biswas’s case,46 the Calcutta High Court was assessing two
articles which had appeared in the Amrita Bazar Patrika in May 1917. The
articles hinted that a litigant had succeeded in having an Indian judge, Justice
Asutosh Mookerjee, removed from the appellate Bench of the Calcutta High
Court, because Mookerjee had decided a case against the litigant. Citing Gray,
Chief Justice Sanderson found that the article was ‘calculated not only to destroy
confidence in the [court] but also to undermine and impair [its] authority’. The
contemnor was ordered to pay a fine of Rs 300 and to be lodged on the civil side
of the Presidency jail until the fine was paid.
In another Bombay case, Justice Lallubhai Shah, an Indian judge, found
Marmaduke Pickthall,47 a white Englishman who was also a Muslim and a
translator of the Quran, guilty of contempt of court. Pickthall was the editor of a
popular newspaper called the Bombay Chronicle. In April 1922, the newspaper
carried an article which insinuated that judges had been ‘influenced by some
outside agency’ in deciding a case, that they were biased. The article hinted that
certain prisoners had been convicted and singled out for exemplary punishment
in a case decided by the Bombay High Court because they were associated with
the Khilafat movement. The fact that the article attributed ‘improper motives and
political bias’ to judges, that it attributed ‘judicial dishonesty to the Judges’, was
fatal. Shah found that it was necessary to look at the natural and probable effect
of the article, and not to the ‘avowed intention of the editor’. However, Shah
also believed that ‘any unfair criticism of Courts or Judges’ did not constitute a
serious interference with the administration of justice requiring punishment. The
‘confidence of the public in Courts rests mainly upon the purity and correctness
of their pronouncements’, he held, and such confidence would not be ‘lightly
shaken by a mistaken or unfair criticism of this kind.’ Pickthall had also
apologized sincerely. Even so, since ‘the tendency of such criticism [was] to
undermine the dignity of the Court and in the end to embarrass the
administration of justice’, Pickthall was sentenced to pay a fine of Rs 200.
In Emperor v. Balkrishna Kulkarni,48 the Bombay High Court was considering
an article which said that there was a ‘thick rumour’ that on the day that certain
accused persons were arrested, ‘the trying Magistrate ran up the staircase of the
Collector’s Office and . . . some whisper took place between them’. The article
also said that ‘Police Sahebs sit in chairs on the Magistrate’s dais and wink [at
each other].’ In other words, the article alleged that the executive and judiciary
were colluding to convict prisoners. It was held that the article constituted ‘a
very gross contempt of court’. Citing Gray, it was held that such comments ‘tend
to deprive the Court of the power of doing that which is the end for which it
exists, to administer justice duly, impartially, and with reference solely to the
facts brought before it’. Further, it was also held that even if such comments did
not undermine the power of the courts, ‘any remarks reflecting on the character
or impartiality of the Magistrate in the course of the trial must necessarily be
contempt’. However, the contemnor in this case was let off with only a warning.
Similarly, in Abdul Hasan Jauhar’s case,49 the Allahabad High Court was
considering a pamphlet which was published in February 1926. In it, the writer
imagined a scene in which judges of the high court were brought before god in
order to explain their conduct in a case. The subordinate judge who had decided
the case prior to the high court was ‘severely handled’ in the pamphlet, and
‘accused of corrupt or unjudicial conduct’. The introduction to the pamphlet
spoke of ‘the rate and market value of Justice and Equity in our Provinces’. The
article conveyed the impression that only the rich could afford justice in British
India whereas the poor could not. The court found that it had the power to punish
those who engaged in this kind of speech ‘on public grounds’, that this was
‘essential for maintaining the confidence of the public in the independence of the
judiciary’, though not for ‘the purpose of preventing or restricting legitimate
criticisms upon its decisions on questions of principle or upon its methods of
conducting public business’. The contemnor was sentenced to simple
imprisonment for six months, and ordered to pay a fine of Rs 150 as costs to the
government, or to serve a further six weeks in prison in default of the fine.
In the 1920s, the Lahore High Court decided an interesting case involving the
newspaper Muslim Outlook.50 The newspaper strongly criticized Justice Dalip
Singh of the Lahore High Court for delivering his judgment in the Rangila Rasul
case. In 1924, a pamphlet called Rangila Rasul had been published in Lahore
which criticized the Prophet Mohammed. The publisher of the pamphlet was
prosecuted under Section 153A of the Indian Penal Code, for promoting enmity
between Hindus and Muslims. Justice Dalip Singh of the Lahore High Court
found him not guilty—a judgment which later gave rise to an amendment in the
Indian Penal Code itself. Outraged by the judgment, the Muslim Outlook carried
an article in June 1927, which called on Justice Dalip Singh to resign as a judge.
The article said that an enquiry was required to be held as to the circumstances
in which the judgment was written, ‘[because] there is in the present judgment a
bona fide apprehension that there must have been an extraordinary cause for its
aberration which is a public duty to expose’. The court found that as the article
called for an enquiry into the circumstances in which the judgment was written,
the imputation was that the judge’s motives were suspect. The editor, printer and
publisher were convicted.
In Tushar Kanti Ghosh’s case,51 the Calcutta High Court was considering an
article in the Amrita Bazar Patrika published in 1935. The article said that it was
‘so unfortunate and regrettable that at the present day the Chief Justice and the
Judges find a peculiar delight in hobnobbing with the Executive, with the result
that the judiciary is robbed of its independence which at one time attracted the
admiration of the whole country’. The court found that the article could
undermine ‘the confidence of the whole community’ in the administration of
justice, by suggesting that judges were leaning towards the executive. The fact
that the article commented on judicial behaviour outside court was found to be
immaterial. The editor was sentenced to three months’, and the printer and
publisher to one month’s, simple imprisonment.
Justice Mukerji, however, wrote a dissent, one of the few, if not only, on
scandalizing the court in colonial India. Mukerji said that it was necessary to
examine the ‘circumstances of the case’ in order to see whether there really was
any ‘tendency in the offending publication to obstruct the ordinary course of
justice or prejudice the trial’. He found that ‘general remarks impugning the
independence of a Court’ only interfered with or obstructed the administration of
justice ‘indirectly and remotely and in an ideal sense’, whereas the offending
publication was required to have some connection with an actual case, pending
or disposed of,52 in order to constitute contempt.
Some Colonial Difference
However, as in sedition cases, in some cases, colonial judges assumed that
Indians who read or were exposed to newspapers were not as intelligent as their
British counterparts, and that they would be more gullible and more likely to
believe what was contained in newspapers. It was therefore more necessary, said
these judges, to target speech which scandalized the court. For instance, Justice
Crump in Pickthall53 found that in India, ‘more importance is attached to the
printed word than it perhaps at times deserves’, which is why it would be
‘difficult for the average reader to read the language used [in the offending
article] without conceiving grave doubts as to the integrity and impartiality of
the Judges’.
Justice Marten, in Satyabodha Adabaddi’s case,54 found that though the
newspaper in question was ‘a small local newspaper with a daily circulation of
some couple of hundreds’ only, its editor would have to be dealt with severely
for scandalizing the court. This was because, unlike ‘those living in a large city
like Bombay amongst a large number of educated people of all communities’
who would have smiled and shrugged off ‘attacks of ignorant or semi-literate
people in up-country districts’, such attacks had a serious impact in the mofussils
or districts.
In Jauhar,55 the Allahabad High Court decided to deal with the printer more
strictly than usual for similar reasons. Ordinarily, a printer was not liable to
serious punishment for scandalizing the court when he was shown not to have
understood the article or joined in a deliberate attack on the judiciary. However,
it was held that ‘in a country in which the mass of the population is illiterate,’ a
printer who did not take care to acquaint himself with the nature of the matter
which he printed was ‘a source of grave public danger’, because to ‘uneducated
and illiterate’ people, things which appeared in print carried ‘greater weight’ than
otherwise. Such people ‘do not as a rule’, said the court, ‘possess the balance of
judgement, which education confers, to be able to distinguish between what may
be merely idle and foolish and what is deliberately intended to misrepresent the
truth’. Since the contents of newspapers are conveyed to illiterate persons by
word of mouth, the court found that corrections which appeared in the
newspapers were not as easily conveyed to them. Accordingly, the printer was
sentenced to simple imprisonment for one week and ordered to pay costs of Rs
50 to the government (or to undergo one month’s imprisonment in default of the
fine).
Allegations of Incompetence
In some cases, colonial courts found that even an allegation that a judge was
incompetent amounted to contempt in the form of scandalizing the court. For
example, in Emperor v. Murli Manohar,56 five judges of the Patna High Court
were assessing articles in a newspaper which criticized the conduct of the chief
justice in a particular case. The articles had said that though a lawyer had
presented a ‘long and learned argument’ in the case, the chief justice had not
‘given even a cursory consideration’ to it. The chief justice had disposed of the
whole case in a single sentence, the articles said, and he had not observed the
‘elementary principles of criminal jurisprudence’ involving the presumption of
innocence of a person accused of a crime. If the same judgment had been
pronounced by a junior magistrate, the high court would have censured him, said
the articles. Citing Gray, the court held that the articles contained allegations that
the chief justice was unfit for his office and ‘undoubtedly (tended) to debase his
authority’. Though judges were to ‘neither fear nor resent public criticism’, the
articles were found by the court as being ‘undoubtedly calculated to lower the
prestige of the High Court’ and to impair the chief justice’s dignity as a judge
and chief justice. The contemnor was ordered to pay a fine of Rs 500 and in
default to be imprisoned until the fine was paid.
In the case of re: An Advocate of Allahabad,57 the Allahabad High Court was
concerned with an article published in the Leader, a newspaper, in June 1934. It
was written by an advocate, Kapil Deo Malaviya. In it, Malaviya wrote about
how ‘a comparatively undeserving lawyer [was] raised to the Bench, which
[was] a fairly frequent occurrence in our judicial history’. Citing cases like
Roach and Gray, the court found that the expression ‘a comparatively
undeserving lawyer’ was ‘a particularly offensive one’. It meant that the lawyer
in question lacked ‘capacity or . . . character or . . . both’. To say that such
lawyers were frequently elevated to the Bench was ‘clearly to defame the High
Court and to injure its prestige in such a way as to shake the public confidence in
its ability to administer justice’. The article cast, according to the court, an
‘unwarranted and defamatory aspersion on the character and ability of a number
of Judges of the High Court who [had] recently been elevated to the Bench’. The
fact that Malaviya did not tender an apology irked the court, which sentenced
him to pay a cumulative fine of Rs 250, and in default, to undergo one month’s
simple imprisonment.
However, these cases cannot be considered as having been very far from the
English law on scandalizing the court at the time. After all, we have seen that it
was only later that even ‘trenchant’ criticisms of the court fell outside the ambit
of such contempts.
In the case of re: A firm of solicitors,58 Chief Justice Beaumont of the Bombay
High Court was concerned with a letter which was written by one Bombay
solicitor’s firm to another. The letter commented on Beaumont’s conduct in an
ongoing case. It said that he had acted ‘indiscreetly and without any evidence in
support’ of his findings. It said that he had ‘[prejudged] the issue that [their]
client had been guilty of adultery’. On reading the letter, Beaumont found that
though it contained ‘a series of insulting references’ to his conduct as a judge,
‘[m]ere rudeness’ was not enough to constitute contempt. However, the letter did
contain an allegation that Beaumont had prejudged a case before any evidence
had been led by either side. This, Beaumont found, amounted to a suggestion
that he had ‘some outside knowledge’ about the case. ‘In the course of about
forty years’ practice in the law,’ he said, ‘I must have read many thousands of
solicitors’ letters, and while some solicitors insulted their opponents, I do not
remember to have ever before come across a solicitor who thought it necessary
to insult the Judge.’ ‘When a letter from one solicitor to another alleges that a
judge was too stupid to appreciate one point, and too biased to do justice to
another, the inevitable result would be that public confidence in the judiciary
would be shaken,’ he said. Beaumont clarified, however, that contempt
proceedings for scandalizing the court were not meant to be initiated ‘in order to
relieve a particular Judge’s feelings’. At the end, since the lawyer in question
offered ‘a very frank and unqualified apology’, a fine of Rs 1000 was imposed
on him.
Scandalizing the Supreme Court
In this section, we will see that the law on scandalizing the court remained much
the same in independent India as it had been in colonial India. It is therefore
quite clear that the enactment of the Constitution in 1950, despite the right to
free speech and expression in Article 19(1)(a), made virtually no difference to
the ability of Indians to criticize courts and judges. There was no major
noticeable difference between what was considered scandalizing the court in
colonial India and what was considered to be so thereafter. This therefore raises
the question: did the enactment of the Constitution in 1950 make any substantial
or significant difference to the right to free speech which Indians enjoyed prior
thereto?
The Supreme Court of India has repeatedly held that it constitutes contempt in
the form of scandalizing the court to impute motives to courts or judges, to say
that a judge or court is dishonest or corrupt, biased or prejudiced. Such
allegations, which have usually been made by dissatisfied litigants who lost
cases, unhappy advocates or political leaders, need not be very detailed or
specific. They need not be targeted against any particular judge or court.
In 1952, the Supreme Court in re: editor, printer and publisher of the ‘Times
of India’59 was considering an article entitled ‘A Disturbing Decision’ which had
appeared in the Times of India in October that year. The article criticized how the
Supreme Court had recently brought an end to the ‘dual system’ at the Calcutta
and Bombay High Courts—the system of division of labour between attorneys
and advocates, akin to the English division of the legal profession between
solicitors and barristers. The article hinted that the Supreme Court had
‘[strained] the law’, and that the court had applied its mind to ‘extraneous
considerations’.
The court held that the article attributed ‘improper motives to the judges’ by
suggesting that extraneous considerations had a role to play in the Supreme
Court’s judgment. This, said the court, was a transgression of the limits of fair
and bona fide criticism. It was found that the article had a ‘clear tendency’ to
affect the ‘dignity and prestige’ of the Supreme Court, because ‘if an impression
is created in the minds of the public’ that the court’s judges act on extraneous
considerations, then ‘the confidence of the whole community in the
administration of justice is bound to be undermined’.60 However, as the
contemnors had furnished an unconditional apology, the contempt proceedings
were dropped.
In E.M. Sankaran Namboodiripad v. T. Narayanan Nambiar,61 the Supreme
Court was considering statements made by the former chief minister of Kerala,
E.M. Sankaran Namboodiripad, at a press conference in Trivandrum in
November 1967. Namboodiripad had said that Marx and Engels considered the
judiciary to be instruments of oppression, and that judges in India were no
different. He accused Indian judges of being ‘guided and dominated by class
hatred, class interests and class prejudices’, and said that Indian judges would
decide a case in favour of ‘a well-dressed, pot-bellied, rich man’ against ‘a poor,
ill-dressed and illiterate person’. He said that the judiciary was ‘weighted against
workers, peasants and other sections of the working classes’ and that the law and
judiciary served ‘the exploiting classes’. He also said that the judiciary, though
separated from the executive, was ‘subject to [its] influence and pressure’. He
suggested that judges should be elected, not nominated, to office. He concluded
by saying, ‘[t]he High Court and the Supreme Court can haul me up, if they
want.’
Namboodiripad’s speech was reported in the press. The Kerala High Court
sentenced him for contempt and imposed a fine of Rs 1000 on him. On appeal,
Chief Justice Hidayatullah of the Supreme Court held that contempt of court
could be committed not merely ‘in respect of a [single judge] or a single court’,
but also ‘in respect of the whole of the judiciary or judicial system’.62 It was held
that while ‘[j]udges do not consciously take a view against [their] conscience or
their oaths’, Namboodiripad had suggested that they do, which made him ‘guilty
of a great calumny’. The judgment of the Kerala High Court was upheld, but the
fine was reduced to Rs 50. The Supreme Court perhaps went a little too far in
this case, in finding a speech contemptuous which contained no particulars of
bias, and in which the speaker seemed to be making a political point more than
anything else.
In Perspective Publications v. State of Maharashtra,63 the Supreme Court was
considering an article entitled ‘Story of a Loan and Blitz—Thackersey Libel
Case’. Justice Tarkunde of the Bombay High Court was deciding a libel case
filed by a man called Mr Thackersey against the prominent Bombay tabloid,
Blitz. Tarkunde decided the case against Blitz and awarded Thackersey damages
of Rs 3 lakh. The article alleged that Tarkunde’s relatives, including his father
and two brothers, were partners of a firm which had recently received a loan of
Rs 10 lakh from the Bank of India, and that the loan had been approved by
Thackersey and one of his relatives, who were directors in the Bank of India. In
other words, the article alleged that Justice Tarkunde of the Bombay High Court
had delivered judgment in favour of Thackersey as a quid pro quo arrangement
in return for the loan in favour of his relatives. The article was not very direct in
making this point, but it made insinuations and relied on innuendos. The court
held that ‘the obvious implications and insinuations’ in the article ‘immediately
create a strong prejudicial impact’ in the minds of the readers ‘about the lack of
honesty, integrity and impartiality’ of Justice Tarkunde in deciding the libel
suit.64 The court found that this undoubtedly constituted contempt of court.
In C.K. Daphtary v. O.P. Gupta,65 the Supreme Court was considering a book
which was published by a disgruntled litigant, O.P. Gupta, who had recently lost
a case. In it, Gupta attributed motives to the judge who had held against him,
Justice J.C. Shah. It said that Shah had delivered ‘a demonstrably dishonest
judgment . . . only to feed fat his prejudice and bias’, a judgment which
contained ‘total falsehoods’, and which was ‘highly condemnable and
derogatory’. Gupta wrote that Justice Shah was ‘in the habit of being influenced
by extra-judicial considerations and of victimizing the disliked party through
dishonest means’. He wrote that when his counsel was arguing the case, Shah
made ‘extremely unreasonable, biased and illegal observations’. ‘Only a
dishonest and prejudiced Judge could have done this’, he concluded. Gupta was
then seen selling a copy of this book to an advocate in the library of the Supreme
Court Bar Association.
It was held that ‘[t]his sort of attack in a country like ours has the inevitable
effect of undermining the confidence of the public in the Judiciary’.66 The law of
contempt, it was noted, was a reasonable restriction on the right to free speech,
under Article 19(2) of the Constitution.67 Gupta was sentenced to undergo two
months’ simple imprisonment.
However, the case of Gobind Ram v. State of Maharashtra,68 stands as an
exception in this line of decisions. Gobind Ram was an advocate at the Bombay
High Court. He had filed an application in a subordinate court in Bombay, for
the transfer of a pending case. In the application, Ram had said that the
magistrate before whom the case was pending was ‘on friendly relations’ with
the other party and he sometimes ‘(enjoyed) the hospitality’ of that party. The
application also said that the magistrate had prejudged the case, that he would
not take an impartial and disinterested view.
This was held not to amount to contempt of court. The court found that a
‘mere statement that a Magistrate is friendly with a party . . . and enjoys his
hospitality or has friendly relations with him’ does not constitute contempt
‘unless there is an imputation of some improper motives’ that might create
‘distrust in the popular mind and impair the confidence of the people in the
courts’.69 Though the court found that Ram had not shown a ‘sense of
responsibility in making the allegations’,70 he was let off.
In Baradakanta v. Orissa High Court,71 the Supreme Court was considering
letters written by a subordinate judge to officials like the registrar of the high
court and the Governor of the state. The judge who wrote the letters was
undergoing a disciplinary inquiry at the hands of the high court. In the letters, the
judge attributed mala fides, bias and prejudice to the high court. He wrote that
the high court was ‘an engine of oppression’, that it had resorted to ‘subterfuge’
while conducting his inquiry. He wrote that the chief justice had influenced the
other judges in his case, and that they had ‘no independent judgment of their
own’. He characterized the high court’s order suspending him as ‘mysterious’
and ‘unusual’. He wrote that he would not obey the high court’s order, that the
court had prejudged his case. It was held that even though some part of the
letters could be considered ‘nothing more than disrespectful fulminations of an
angry insubordinate officer’, in charging the judges of the high court, and
especially the chief justice, with ‘mala fides, improper motives, bias and
prejudice’, the judge had committed contempt of court.72 Scandalizing the court
included acts that vilified a judge.73
In P.N. Duda v. P. Shiv Shankar,74 the Supreme Court was considering a
speech made by Union law minister, P. Shiv Shankar, who had said that the
Supreme Court was biased in favour of economically well-off litigants. In his
speech, Shankar had said that the Supreme Court, made up of members of the
‘elite class’, had ‘unconcealed sympathy for the haves, i.e., the Zamindars’, that
the court had consequently decided property cases in favour of the landed
classes, as a result of which the government’s programme of zamindari abolition
had suffered. Likewise, when the privy purses were abolished, said Shankar, the
Supreme Court ‘contrary to the whole national upsurge, held in favour of the
Maharajas’. ‘Mahadhipatis like Keshavananda and Zamindars like Golaknath
evoked a sympathetic [chord] nowhere in the whole country except the Supreme
Court of India,’ he said. ‘[B]ank magnates’ got higher compensation in the bank
nationalization case, and others like ‘FERA violators, bride burners and a whole
horde of reactionaries . . . found their haven in the Supreme Court’, he added.
Contrary to the judgment in Namboodiripad, however, the court found that
Shankar had not committed contempt, though his speech was, at times, a ‘little
intemperate’.75
In C. Ravichandran Iyer v. Justice A.M. Bhattacharjee,76 the Supreme Court
was considering events concerning the erstwhile chief justice of the Bombay
High Court, Justice A.M. Bhattacharjee. Bhattacharjee was rumoured to have
received a sum of $80,000 for a book written by him called Muslim Law and the
Constitution, for publication in London. This was far in excess of any amount
that would have been paid for a comparable book. Several professional bodies
like the Bar Council of Maharashtra and Goa, the Bombay Bar Association and
Advocates’ Association of Western India took action such as passing resolutions
calling for the resignation of the chief justice of the Bombay High Court.
Eventually, Bhattacharjee resigned. However, the Supreme Court was asked to
consider whether bar councils and bar associations could pass resolutions calling
for the resignation of judges.
It was held that since the conduct of a judge could not be discussed in
Parliament under Article 121 of the Constitution, by ‘necessary implication, no
other forum or fora or platform’ could be used to discuss the conduct of a judge
in the discharge of his official duties. Consequently, bar councils and bar
associations cannot pass resolutions relating to the conduct of a judge in his
official capacity.77 Instead, when a professional body gets wind that a judge has
indulged in misconduct, it must ‘gather specific, authentic and acceptable
material which would show or tend to show that conduct’. Officers of the body
should meet the judge in private or the chief justice of the high court.78 The chief
justice of the high court must then independently verify the information after
conducting a confidential enquiry. If the chief justice is satisfied that the
information is correct, he must place the information before the chief justice of
India, who can ‘appropriately deal with the matter’ if he believes the information
is true.79
In Hari Singh Nagra v. Kapil Sibal,80 the Supreme Court was considering
statements made by a prominent senior advocate, Kapil Sibal, in a souvenir
published by Mehfil-e-Wukala, a cultural and literary association of Supreme
Court lawyers. Sibal had deprecated the ‘questionable integrity of some of those
who are in the judiciary’. He had said that judges ‘need disciplining’, that the
judiciary had failed to ‘eradicate the phenomenon of corruption’, that some
judges had received ‘monetary benefits for judicial pronouncements, rendering
blatantly dishonest judgments’, that some judges had been ‘kowtowing with
political personalities and obviously favouring the government . . . thereby
losing all sense of objectivity’. The Supreme Court found that this did not
amount to contempt in the form of scandalizing the court.81 Sibal’s message, said
the court, was an articulation of the ‘concerns of a senior advocate who has
[practised] long in this Court who noticed that the public image of the legal
community was [at] its nadir’.82 The court also took into account the fact that the
message was a general one, that it did not target any ‘particular Judge’, and that
the article was merely ‘an expression of opinion about an institutional pattern’.83
However, as we have seen above in cases like Namboodiripad, even general
statements made about the judiciary, which do not target any particular judge or
court, have been found to be a form of scandalizing the court. It is therefore clear
that in this case, the respectability and social standing of Sibal, coupled with the
fact that he was a senior member of the legal profession, weighed heavily with
the court when it found that no contempt had been committed.
In re: Arundhati Roy,84 the Supreme Court held that ‘fair criticism’ would not
amount to contempt if made ‘in good faith and in the public interest’. However,
in order to determine whether something was said in good faith and the public
interest, the court would have to look at ‘the person responsible for [the]
comments, his knowledge in the field regarding which the comments are made
and the intended purpose sought to be achieved’. In other words, it was only
lawyers or legal scholars who could avail of the defence of fair criticism. The
court said that ‘[a]ll citizens cannot be permitted to comment upon the conduct
of the courts in the name of fair criticism’.85 In this case, the contemnor was the
Booker Prize-winning author, Arundhati Roy. The Supreme Court found that
since she did not claim ‘to be possessing any special knowledge of law’, since
she had not ‘made any study regarding the working of [the Supreme Court]’, and
was only ‘a writer of repute’, she was not entitled to the same right to criticize
the courts which had been availed of by Shiv Shankar in his case seen above.86
This was an odd holding. In essence, the Supreme Court held that only lawyers
and legal scholars had the right to make fair comment on the conduct of courts, a
view which was later taken implicitly in Kapil Sibal’s case as well, which we
have seen above. This view is quite regressive.
It has been held that when a person distorts or misrepresents court orders, he
commits contempt in the form of scandalizing the court. For instance, in
Narmada Bachao Andolan v. Union of India,87 the Supreme Court was
considering a book written by Arundhati Roy called The Greater Common
Good. In it, Roy criticized an interim order passed by the Supreme Court in
which the court had permitted the height of the Narmada Dam to be increased.
Roy believed that this order would result in several villages being submerged
during the upcoming monsoons. She wrote:
I stood on a hill and laughed out loud . . . Why did I laugh? Because I
suddenly remembered the tender concern with which the Supreme Court
Judges in Delhi (before vacating the legal stay on further construction of the
Sardar Sarovar dam) had enquired whether tribal children in the
resettlement colonies would have a children’s park to play in. The lawyers
representing the government had hastened to assure them that indeed they
would and what’s more, that there were seesaws and slides and swings in
every park. I looked up at the endless sky and down at the river rushing past
and for a brief, brief moment the absurdity of it all reversed my rage and I
laughed. I meant no disrespect.
Two of the three Supreme Court judges who heard this case were not amused.
Chief Justice Anand (along with Justice Kirpal) found that Roy had prima facie
misrepresented the proceedings which had taken place before the Supreme
Court.88 It was held that the freedom of speech and expression did not include
‘freedom to distort orders of the court and present [an] incomplete and a onesided picture deliberately, which has the tendency to scandalise the court’.89 It
was held that Roy had used her literary fame to misinform the public, and her
writings had the tendency to create prejudice against the court.90 However, no
action was taken against her. Justice Bharucha disapproved of Roy’s words, but
decided not to take any action against her because ‘the Court’s shoulders are
broad enough to shrug off [her] comments’.91
Defences
There are several exceptions and defences to the law of contempt in the form of
scandalizing the court.
The Supreme Court has held that when a person adversely comments on the
conduct of a judge in his personal capacity, it does not amount to contempt, and
can only give rise to an action in libel. It has been held by the Supreme Court
that the power of contempt does not exist to protect judges ‘personally from
imputations to which they may be exposed as individuals’92 and that care should
be taken to distinguish contempt from libel.93 In order to constitute contempt, the
contemnor’s words must relate to something done by the judge in his official,
judicial capacity. For example, if a person says, ‘Justice X accepts bribes while
deciding important cases’, or ‘Justice X decides all cases in favour of members
of higher castes’, these statements relate to the conduct of Justice X as a judge,
and therefore constitute contempt. However, if a person says ‘Justice X routinely
beats his wife and children’, or ‘Justice X has not paid his subscription fees for
the India International Centre or Willingdon Club’, then even if these statements
are false, they do not constitute contempt because they do not relate to anything
done by the judge in his official capacity. If it is falsely publicized that Justice X
beats his wife, this is certainly likely to diminish his official image and reduce
the confidence that people have in him as a judge. Even so, this furnishes an
action in libel, not contempt.
Further, minor, insignificant contempts have been held insufficient in order to
constitute contempt of court. In fact, Section 13(1) of the Contempt of Courts
Act, 1971, says that a person cannot be punished for contempt of court unless the
contempt ‘substantially interferes, or tends substantially to interfere with the due
course of justice’. It has been held that the contempt must be ‘manifest,
mischievous or substantial’ in order to be punishable.94 The court will consider
‘the degree of harm caused’ to the administration of justice, and ‘if it is slight
and beneath notice’, a court will not punish the contempt.95 In re: S.
Mulgaokar,96 Justice Krishna Iyer held that the ‘first rule’ of contempt in the
form of scandalizing the court, was ‘economy of use by the Court’. He said that
the court must ‘ignore . . . trifling and venial offences’. ‘[T]he dogs may bark,’
he said, but ‘the caravan will pass.’97 Courts must not be hypersensitive, he
counselled.98 The power to punish for contempt in the form of scandalizing the
court must be exercised with ‘great care and caution’,99 ‘sparingly . . . with
utmost restraint and considerable circumspection’.100
Prior to 2006, truth was not a defence to contempt in the form of scandalizing
the court.101 However, after an amendment to the Contempt of Courts Act, 1971,
in 2006, truth, under limited circumstances,102 is available as a defence. Section
13(b) now provides that a court ‘may’ permit (i.e., it is a defence which can be
allowed at the discretion of the court), ‘justification by truth as a valid defence’.
However, the court must be satisfied that the defence of truth is ‘in public
interest’, and that the request for invoking the defence is bona fide.
Ordinarily, contempt in the form of scandalizing the court can be excused if
the contemnor tenders an unconditional apology to the court. However, there are
circumstances in which an apology will not be accepted by the court, typically
when the apology does not appear to be genuine,103 or when it comes late.104 It
has been held that there cannot be ‘both justification and an apology’, that the
two are incompatible,105 that an apology must be offered at the earliest
opportunity, not when the contemnor knows that the court is going to impose
punishment,106 and that an apology cannot be used as a device to escape
punishment.107 However, in accordance with the recommendations of the
Bhargava committee, an apology, if bona fide, cannot be rejected merely because
it is ‘qualified or conditional’.108
For instance, in L.D. Jaikwal v. State of U.P.,109 a ‘senior advocate of long
standing’ wrote a letter to a judge, and said that he was a ‘corrupt Judge’ who
was ‘contaminating the seat of justice’. In the letter, the advocate threatened that
he would file a complaint against the judge ‘to the highest authorities in the
country’, that the judge was corrupt and did not ‘deserve to be retained in
service’. ‘The earlier people like you are bundled out,’ wrote the advocate, ‘the
better for us all.’ Copies of the letter were sent to several authorities in India, like
the prime minister, chief justice of India, etc. Jaikwal then tried to offer the
Supreme Court an apology. The Supreme Court said that it could not ‘subscribe
to the ‘slap-say-sorry-and-forget’ school of thought in contempt jurisprudence.110
Before the High Court of Allahabad, Jaikwal had sought to justify his conduct.111
He had not felt any remorse, expressed any sorrow or offered any apology. It
was only when the matter came before the Supreme Court that he offered an
apology for the first time. When the Supreme Court gave him an opportunity to
apologize to the judge whom he had scandalized, he submitted a formal apology
and said that it was being submitted ‘as directed by the Hon’ble Supreme Court’.
In the circumstances, the Supreme Court found that Jaikwal had only offered a
‘paper’ apology, that ‘the expression of sorrow came from his pen, not from his
heart’.112 Since it was merely ‘a formal empty apology’, Jaikwal was not let off,
as this would set a dangerous precedent.113
In Vinay Chandra Mishra’s case,114 the contemnor, Mishra, was a senior
advocate, president of the Bar Association, and chairman of the Bar Council of
India. While appearing in the High Court of Allahabad one day, the judge asked
him a question about the merits of his case.115 This enraged him and he began to
shout. He threatened the judge that he would get him transferred or even
impeached in Parliament. He said that he had previously ‘turned up’ many
judges. In the contempt case which followed this outburst, the Supreme Court
offered several reasons why it was not accepting his apology. Firstly, it was ‘not
a free and frank admission of the misdemeanour’ indulged in by Mishra. It was
not sincere, as it was ‘couched in . . . sophisticated and garbed language’. Mishra
had attempted to justify his conduct in the apology. It was ‘a clever and
disguised attempt to refurbish his image’. Secondly, Mishra’s attitude, from the
very beginning, was ‘defiant and belligerent’. In his affidavits filed in court, he
did not show any respect for the judge against whom the contempt had been
committed. Allegations were levelled against the judge in the affidavits, and
Mishra even asked for the initiation of contempt proceedings against the judge.
Thirdly, the court also found that to accept an apology for conduct of this nature
‘would [be] tantamount to a failure on the part of [the court] to uphold the
majesty of the law’.
Colonial Difference in Independent India
In many cases, the Supreme Court has harboured the colonial notion that India’s
people are illiterate, and so what appears in print here is likely to be taken more
seriously than elsewhere, which is why contempt powers here need to be
exercised more stringently.
In Markarha,116 for example, the Supreme Court held that in India, justice at
the ‘grass-root level’ is administered by courts in ‘rural backward areas largely
[inhabited] by illiterate’ people. Such people, said the court, are more susceptible
to contemptuous influences than ‘the urban elite reading newspapers and
exposed to [the winds] of change’. If ‘a slight suspicion’ is created in the minds
of illiterate villagers that judges approach cases with a closed mind or that they
pre-judge cases, then they would ‘lose confidence in the administration of
justice’.117 In Harijai Singh,118 the Supreme Court said that something which
appears in print is ‘likely to be believed by the ignorant’, which is why
restrictions on the press were essential. Likewise, in Arundhati Roy,119 the
Supreme Court held that the contemnor had tried to create an impression in the
minds of ‘the people of this backward country’ which impugned the ‘integrity,
ability and fairness’ of judges. The fundamental right to free speech has made no
difference to this colonial notion.
Should Scandalizing the Court Be Abolished in India?
Is there a case to be made for abolishing the power of an Indian court to punish
contempts that scandalize the court? After all, why is that only a court needs to
be insulated from public opinion? There are other branches of government which
need public confidence in order to function too. For instance, the traffic police
need people to cooperate with them, but they do not have the power to
summarily prosecute those who make scandalous statements against them. There
have been numerous reported instances recently of traffic police officials in
Mumbai getting assaulted by bikers who were sought to be pulled over.120 If
policemen cannot make the argument that they should be able to summarily
prosecute those who scandalize them, why should judges be able to do so? If a
person can make a false accusation that the President of India, the prime minister
of India, the governor of the Reserve Bank of India, the attorney general of
India, or the Comptroller and Auditor General of India are corrupt, without the
possibility of having summary contempt proceedings initiated against him, why
is it that only the judiciary should be insulated from public opinion in this
manner? One answer, however, is that while traffic police officers can arrest
wrongdoers, and office-bearers can call a press conference to refute the
allegations made against them, Indian judges are governed by informal norms
which prohibit them from calling a press conference in order to deny the
contemptuous statements made against them.
Contempt powers today are unnecessarily designed to try and maintain a good
image for the judiciary in the public mind. One of the primary justifications
offered in favour of an Indian court’s power to punish contempts that scandalize
the court is that this power is necessary to protect the public, not courts or
judges. The Supreme Court has repeatedly held that powers to punish
contemnors for scandalizing the court exist in order to maintain public
confidence in courts. However, this is a tenuous justification for retaining
contempt in the form of scandalizing the court. Stifling criticism of the judiciary
will not enhance public confidence in courts. If public confidence in the Indian
judiciary today is low, this is partly because of how long it takes for cases to be
decided. What will restore public confidence in the judiciary is if courts reform
themselves, not if they muzzle outspoken criticisms. Further, a person’s faith or
confidence in a court will, after all, depend on the work that the court does, not
on what people are publicly allowed to say about it. Also, contempt may have a
chilling effect on responsible statements made to genuinely uncover corruption
in the judiciary.
However, there are good reasons why Indian courts must continue to have
some limited powers to punish contempts that scandalize the court. Most
importantly, such powers might be necessary simply to preserve the decorum
and dignity of the day-to-day functioning of the courts. The power to punish
contempts in the face of the court can be sustained on this justification. Thus, if a
person tries to interrupt ongoing court proceedings, if someone shouts at a judge
during a court session, or alleges that a judge is corrupt in open court, this affects
the dignity and decorum of the court in its actual day-to-day business. Courts
must have the power to deal with such contempts strictly. If a person starts
shouting slogans during an ongoing court proceeding, flings a shoe at a judge or
calls him corrupt in open court, the judge must have the power to remove that
person from court, and to sentence him so as to create disincentives against
something like this happening again. In other words, courts must have the power
to remove an unwelcome interruption to a court proceeding, and to create
disincentives against its repetition. Further, if a person incites others to disobey
court orders, and there is a clear and imminent danger that court orders will
thereby be disobeyed, this too must continue to constitute contempt of court.
It is certainly worth debating whether most contempts that scandalize the
court, which take place outside the court, should now cease to be summarily
punishable under the law of contempt in India. After all, when a person makes a
false statement outside the court that a judge is dishonest or corrupt, the judge
still has the power to file a civil suit for defamation, to initiate criminal
proceedings for defamation under Sections 499 and 500 of the Indian Penal
Code, or to ignore the statement altogether. In England, one of the reasons why
the doctrine of scandalizing the court was abolished was that English judges had
the option of initiating libel proceedings against contemnors. In fact, the Law
Commission there noted that some judges had successfully pursued libel suits
against those who had made contemptuous statements about them.
However, there are some difficulties with adopting this approach in India. For
one, a defamation suit may not be a viable option here simply because it takes
several years, if not decades, for civil suits to be decided finally in India. Further,
there are other problems with requiring judges to initiate libel suits or criminal
actions for contempts that scandalize the court. For instance, in libel
proceedings, the judge and his conduct will be on trial, which is precisely what
summary contempt proceedings seek to avoid. The defendant-contemnor will
make every conceivable allegation against the judge in order to defend the
libellous statement. The judge will spend a lot of his time and energy on the libel
proceeding, as against summary contempt proceedings where his own input will
be minimal. Further, if contempt in the form of scandalizing the court is done
away with, recruitments to the Bench might dry up even more, since reputable
lawyers may not want to take on the inevitable libel suits in addition to the other
drawbacks of joining the judiciary, like the poor salary relative to the earnings of
senior lawyers.
10
Nehru Calls Justice Bose Unintelligent
In June 1959, while the Supreme Court was still closed for its summer vacation,
an incident took place which could have implicated the prime minister of India
in a case of scandalizing the court. At a press conference in New Delhi, Prime
Minister Nehru said that a retired judge of the Supreme Court, Justice Vivian
Bose, was ‘lacking in intelligence’. Though these words were not as harsh as
what was said by Gray in England or by William Tayler in Calcutta, in the preEx-parte Blackburn era this could possibly have been considered as scandalizing
the court, given that Nehru had commented adversely on the ability of a judge.1
Strong exception was taken to Nehru’s words by the Calcutta Bar, and had it not
been for a swift and graceful apology by Nehru to Bose, a constitutional crisis
could have ensued. Only a few years before, Nehru had been let off by the
Madras High Court on charges that he had committed contempt of court by
violating the sub judice rule,2 examined in the next chapter.
The incident arose against the backdrop of the Mundhra scandal of the late
1950s.3 Haridas Mundhra was a businessman. In 1957, the Life Insurance
Corporation of India (LIC) invested a sum of approximately Rs 1.26 crore in
Mundhra entities. This was the single largest transaction ever entered into by the
LIC until then. The shares were not purchased on the open market, at market
value, but in a private transaction. The price paid for the shares was higher than
market value. The instructions to make the investment had come from H.M.
Patel, principal finance secretary to the government, and former chairman of the
LIC. The instructions had apparently been given with the approval of finance
minister, T.T. Krishnamachari. At the time, G.R. Kamat was the chairman of the
LIC and L.S. Vaidyanathan was its managing director.4
Chief Justice Chagla of the Bombay High Court was appointed as the sole
commissioner to investigate the scam. After his report, Finance Minister
Krishnamachari resigned. Thereafter, the government appointed a Board of
Enquiry in May 1958, headed by Justice Vivian Bose, to investigate the charges
against Patel, Kamat and Vaidyanathan. Though he had retired from the Supreme
Court in June 1956, Bose was, at the time, serving an additional term as a judge
of the Supreme Court under Article 128 of the Constitution.5 Bose submitted his
report in September 1958, and found that the allegations against these three
stood proved. He found that the investment had been made by the LIC in return
for generous donations made by Mundhra to the U.P. Congress Party of Rs 1.50
lakh, and to the Central Congress Party of Rs 1 lakh.
Nehru was displeased.6 At a press conference held in New Delhi on 10 June
1959, journalists asked him about the scandal. Nehru informed them that the
Bose Commission’s findings were a ‘fantastic proposition’ and that the person
who arrived at them was ‘lacking in intelligence’. ‘Even if he is a high judge I
would say the same,’ said Nehru.7 One newspaper reported Nehru as having said:
‘If you believe that for this 2½ lakh from Mundhra, the deal has been put
through, the person who suggests it is lacking in intelligence, even if he is a
High Court Judge.’8 Many newspapers, like Bombay’s tabloid Blitz, prominently
reported the story.9
At the time, the Supreme Court itself was in its summer vacation. The
Supreme Court Bar consequently did not react immediately to Nehru’s
comments. However, the Calcutta High Court was in session. In the issue of the
Calcutta Weekly Notes law report which came out soon thereafter, strong
exception was taken to the ‘tenor and nature’ of Nehru’s remarks, ‘the
intemperate language’ which he had used, and the ‘obvious irritation and
annoyance’ which he had exhibited at being ‘confronted with uncomfortable
facts’. The Calcutta Weekly Notes concluded by saying that Nehru’s remarks had
‘lowered the prestige and dignity of the entire judiciary in this country’, an
obvious suggestion that Nehru had committed contempt by scandalizing the
court.
That month, the Calcutta Bar passed a strong resolution condemning Nehru’s
remarks. The resolution stated as follows:
The meeting of the Calcutta Bar expresses its strong disapproval of Prime
Minister Nehru’s derogatory remarks about Shri Vivian Bose, a retired
Judge of the Supreme Court and former Chief Justice of the Nagpur High
Court. This meeting is firmly of the opinion that such comments by the
Prime Minister regarding an enquiry held under the Chairmanship of an
eminent Judge is likely to encourage dishonesty in public life and should be
condemned in no uncertain terms.
On 19 June 1959, the Honorary Secretary to the Bar Library Club, Calcutta, S.R.
Das Gupta, wrote a letter to Nehru in which he enclosed a copy of the resolution.
Nehru, who was staying at the Raj Bhavan in Trivandrum, Kerala, at the time,
received the letter on 23 June and acted swiftly thereafter. In a letter on 23 June,
Nehru wrote to Das Gupta, and apologized:
I should like to say that I am very sorry that some remarks of mine at a
press conference should have been interpreted as being derogatory to Shri
Vivian Bose or to any other judge. I hold Shri Vivian Bose in high regard
and certainly it was not my intention to say anything against him . . . my
remarks were casually made . . . I realise that I should not have made even a
casual remark of this kind and I am sorry for it.
On 26 June, Nehru wrote a letter to Vivian Bose himself.10 In it, Nehru said that
he had intended to write to Bose sooner, but had been unable to do so because he
was ‘travelling about’ quite a bit at the time. He apologized to Bose for his
comments, in the following terms:
I should like to express personally to you my deep regret at the remarks I
made in this connection at the press conference I addressed in Delhi earlier
this month. I realise fully that those remarks were improper and I should not
have allowed myself to utter them. I was taken rather unawares by the
questions put to me and I was thinking of many other things at that time
also . . . I trust you will be good enough to accept my apology for this
impropriety which I have committed.
On that very day, 26 June, Nehru wrote to the chief justice of India, S.R. Das,
and enclosed a copy of his letters to Das Gupta and Bose.11 He also apologized
to the chief justice as follows:
May I also express my deep regret to you that I had allowed myself to be
swept away in the course of a press conference and said something that I
should not have said. That was an impropriety which I regret greatly as I
have always believed that the judiciary and, more especially, the judges of
our Supreme Court deserve the highest consideration and respect.
Nehru’s swift response had its desired effect. On 29 June, Das Gupta wrote to
Nehru, said that Nehru’s letter was ‘deeply appreciate[d]’, and asked if the letter
could be released to the press, to which Nehru agreed.12 On the same day, Bose
wrote to Nehru, thanked him for his letter and ‘also for the generous terms in
which you referred to me when writing to the Calcutta Bar Library Club’. Bose
forgave Nehru, and said:
I want you to know that I did not take your remarks seriously and that I was
not in the least worried or upset. I know how much you have on your mind
and fully understand that one says things in a moment of temporary
irritation when one is tired which one does not really mean. All I regret is
that I should have been the cause of so much public controversy.
Several decades ago, while sitting as a judge of the Nagpur High Court, Justice
Vivian Bose had delivered a classic judgment on apologies in contempt cases. In
it, he had set out the tests for when an apology could be considered genuine.
Nehru’s apology certainly met this test, which is worth setting out:
An apology is not a weapon of defence forged to purge the guilty of their
offences. It is not an additional insult to be hurled at the heads of those who
have been wronged. It is intended to be evidence of real contriteness, the
manly consciousness of a wrong done, of an injury inflicted, and the earnest
desire to make such reparation as lies in the wrongdoer’s power. Only then
is it of any avail in a court of justice. But before it can have that effect it
should be tendered at the earliest possible stage, not the latest, and even if
wisdom dawns only at the appellate stage, the apology should be tendered
unreservedly and unconditionally before the arguments begin and before the
person tendering the apology discovers that he has a weak case and before
the Judge . . . has indicated the trend of his mind. Unless that is done, not
only is the tendered apology robbed of all grace but it ceases to be an
apology; it ceases to be the full, frank, manly confession of a wrong done
which it is intended to be. It becomes instead the cringing of a coward
shivering at the prospect of the stern hand of justice about to descend upon
his head. It then deserves to be treated with the contempt with which
cowards and bullies who do not hesitate to threaten others and to impugn
their honesty and character without the slightest foundation and who cringe
and wail when their own safety is at stake, are treated.13
On 30 June, Nehru wrote back to Bose and thanked him for his letter, saying, ‘I
am grateful to you for what you have written.’ That same day, the chief justice of
India, S.R. Das, wrote a letter to Nehru in which he said that Nehru’s comments
had caused ‘considerable anguish and resentment’ in his mind and in the minds
of his colleagues in the Supreme Court. ‘Such remarks made in public against a
Judge, sitting or even retired, of a High Court or of the Supreme Court,’ he said,
‘are bound indirectly to affect prejudicially the prestige and dignity of the
courts.’ This, once again, appears to have been a reference to the doctrine of
scandalizing the court. He continued:
That apart, it is primarily a matter between the particular Judge and the
person who makes the remarks against him. I am glad that you have written
to Shri Vivian Bose in the way you have done and I do hope that he will
accept your explanation in the same spirit in which and as generously as it
has been rendered by you.
Das then informed Nehru that what was ‘worrying [him] considerably’ was
whether sitting judges should be permitted to sit on inquiry committees. If a
government rejected the findings of such judges, that would amount to ‘a
deliberate flouting of the decision of such a high authority by the executive to
suit its own purpose’ on the one hand, and as a ‘deserved reflection on the
circumspection and ability of the particular Judge which will certainly
undermine the prestige and dignity of the courts and bring them into hatred,
ridicule and contempt’ on the other. ‘Both contingencies,’ said Das, ‘are
undesirable and in the larger interests of the country such a calamity must . . . be
avoided.’ He concluded by saying that the Supreme Court was not convening
due to the summer vacation, but he hoped to hold a full court meeting (i.e., a
confidential meeting of all the court’s judges) in order to discuss this issue.
Nehru wrote back and asked if the chief justice could discuss the matter with
himself or the home minister prior to the full court meeting,14 to which Das later
agreed.15
On 7 July, Chief Justice Das wrote to Bose, enclosing copies of the
correspondence exchanged between himself and Nehru. In it, he said:
I am glad that the misunderstanding has been cleared up and you have
reacted to the Prime Minister’s gestures as graciously as they had been
made by him.
Bose wrote back to the chief justice on 12 July. He wrote:
I never took the remarks seriously and I have too much respect for Nehru’s
intelligence to think that he could really think one of the men his own
government had put on the Supreme Court lacked intelligence! His remark
was the kind of thing any one of us might have said in a moment of
temporary irritation. A Press conference can be a very annoying thing,
especially when one is tired and a volley of loaded questions are fired at
you. I quite understand and understood all along. In any case he has made
handsome amends like the gentleman he is.
However, Bose did indicate to the chief justice that it was his view that when the
government appoints a judge to an inquiry commission, it ought to accept the
commission’s findings.
With Nehru’s letters to Secretary Das Gupta, Chief Justice Das and Justice
Vivian Bose, a crisis had been averted. Both the Calcutta Bar Library and the
chief justice had hinted that Nehru’s words might have had the tendency of
lowering the prestige, status and dignity of the judiciary. The prime minister of
India could very well have been said to have committed contempt by
scandalizing the court. Instead, on 13 July, the Calcutta Weekly Notes printed the
letters exchanged between Nehru and Das Gupta, and wrote that the
correspondence had brought ‘to a happy and satisfactory termination the
unfortunate controversy’. It showered praise on Nehru, in the following terms:
[Nehru is] 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 . . . We have long held that Shri
Jawaharlal Nehru embodies in himself all that is high in the traditions of the
East and the West and we are happy to record that the incident alluded to
has shown his great mental and moral stature.
Likewise, after the summer vacation at the Supreme Court came to an end, on 11
August, the Supreme Court Bar Association held a special general meeting, to
consider whether any action was required to be taken against Nehru for his
remarks. The meeting was presided over by Attorney General M.C. Setalvad. A
resolution was unanimously adopted that in the light of Nehru’s letters to the
Calcutta Bar Library Club, ‘no further action’ was called for. However, the
resolution also said that the Supreme Court Bar Association was of the view that
it was ‘undesirable’ for judges, sitting or retired, of the Supreme Court or high
courts, to ‘be given assignments of this nature’, exposing their reports to
‘derogatory comments’ by the executive.
George H. Gadbois, Jr., noted historian of the judges of the Supreme Court,
called this episode an example of ‘vintage ethics’. Gadbois had interviewed Bose
in the 1980s in connection with his book project on the judges of the Supreme
Court of India. In the process, he had obtained copies of these letters from
Bose’s grand-niece. In his notes in the file he maintained on Bose, Gadbois
opined that India, a ‘fledgling democracy’ had ‘successfully passed a major test’.
While conducting interviews with retired judges of the Supreme Court, ‘old
judges’ had informed Gadbois that ‘the judiciary was stronger as a result of the
way Nehru handled [the incident]’. The institutions of democracy had been
preserved. Gadbois found it notable that there appeared to be no rancour or
animosity from Nehru towards Das, Bose, or even Chagla. Chief Justice Das
retired on 1 October 1959, and a farewell dinner was held for him, at which
Nehru was present. Bose was appointed by the government to yet another highprofile commission, to investigate Dalmia–Jain enterprises, very soon after this
incident.16 Chagla too was appointed ambassador to the US later on. ‘These were
before [the] days,’ wrote Gadbois, ‘when judges were punished for displeasing
the [government].’
11
Prejudicing Mankind
This chapter examines contempt of court in the form of the sub judice rule, i.e.,
the rule that nothing can be said in the press that might prejudice an ongoing
court case. We will see, once again, that the sub judice rule in colonial India was
very similar to its counterpart in England and that the enactment of the
Constitution made virtually no difference to this body of law. Major changes to
the sub judice rule in India took place not in 1950 with the Constitution coming
into force, but in 1971 with the enactment of the Contempt of Courts Act. For
instance, prior to 1971, colonial courts had typically taken the view that the sub
judice rule was set in motion once an accused was arrested by the police. In
other words, in the colonial era, the press could not comment on the merits of a
criminal case once the accused was arrested by the police.
This rule was continued for more than twenty years after independence. It was
only in 1971 that the commencement of the sub judice rule in criminal trials was
formally moved to the filing of the charge sheet by the police in court. In other
words, the press are now free to report on a case while it is being investigated by
the police and before the police have filed their findings in court. We will see
that it was the Bhargava Joint Parliamentary Committee, not the Constituent
Assembly or the Constitution of India, which brought about this change. Further,
the sub judice rule is, even now, not substantially different from what it was in
the colonial era. For example, the Supreme Court has, on several occasions,
taken the view that trained judges can be influenced by what is said in the media,
a view which was also adopted in some cases decided in British India. In fact,
prior restraints can still be imposed on the press today by courts in the form of
‘gag orders’, all this despite the existence of a Constitution.
The English Law on the Sub Judice Rule
Unlike the doctrine of scandalizing the court, the sub judice rule in England has
very frequently been invoked there to prosecute those who have commented on
pending proceedings.1
The sub judice rule in England makes it a contempt of court to prejudicially
comment on a pending case. In the words of James Francis Oswald in his treatise
on contempt, ‘anything which tends to excite prejudice against the parties, or
their litigation, while it pends’2 constitutes contempt of court. However, not all
comments on pending cases are considered contemptuous. There must be some
real likelihood that the comment will seriously prejudice a case. ‘Technical’ or
‘trifling’ comments cannot be punished.3 The conduct must be ‘calculated (that
is, likely) to cause substantial prejudice to a party in the conduct of an action and
hence to the due administration of justice’.4
In order to violate the sub judice rule, a person must comment on a case which
is actually pending in court. A large body of law has evolved in England for
determining when a case begins and when its ends. For example, it was a vexed
question there as to whether it was contempt to comment on not merely a
‘pending’ case but also one which was ‘imminent’, i.e., a case which was highly
likely to be, but had not yet been, initiated. However, the Contempt of Courts
Act, 1981, reformed the English law on the subject. It made it a contempt for any
person to comment on proceedings that are ‘active’,5 avoiding words like
‘pending’ and ‘imminent’. A criminal case is ‘active’ from the time a defined
‘initial step’ is taken, e.g., arrest without warrant, issue of summons to appear,
etc.6 After the 1981 Act, proceedings ‘are not active when they are only
imminent, for example when a person is about to be arrested’.7 Proceedings
continue to be active during the appeal process.8 This is contrary to the report of
the Phillimore Committee in which it was recommended that the pendency of a
case should end with the conclusion of the trial.9 The committee found that
‘judges of appellate courts are not generally liable to be improperly influenced’,
and that ‘[a]ppellate judges may sometimes even be assisted by responsible
comment in the press, in legal journals and elsewhere’.10 Civil cases are ‘active’
when arrangements are made for the hearing or when the hearing begins.11
Another difficult question on this subject in England was whether the offence
of contempt in the form of the sub judice rule required the contemnor to have
mens rea or criminal intent for committing the offence. The law in England is
that the sub judice rule applies regardless of a person’s intent, i.e., ‘strict
liability’ is imposed on those who make statements which seriously prejudice an
ongoing case.12 In other words, if a person makes a comment which substantially
prejudices an ongoing court case, he can be punished irrespective of the fact that
he did not intend for his statements to have any prejudicial effect on the outcome
of the case.
Broadly speaking, it is a contempt of court to comment on a case in a manner
which might influence jurors, witnesses, or even the parties to a case, but usually
not trained, professional judges, who are typically considered immune to the
influence of the media and press. Oswald believed that ‘Jurors may . . . be
considered more amenable than Judges to the influences of comments upon
pending proceedings.’13 Likewise, another well-known commentator on the law
of contempt in England, C.J. Miller, believed that it was ‘generally accepted’ that
judges’ ‘professional experience enables them to discount that which might
affect a jury’.14
A fair and impartial report of court proceedings, however, is not contempt.15
The general rule is that all proceedings must be held in open court, that any
member of the public must be free to observe them, that any member of the press
must be free to report, fairly and accurately, what has transpired there.16 This rule
is said to ensure that ‘justice is done’ in cases,17 as judges are held up to public
scrutiny in decision-making, which makes judgments less idiosyncratic and
arbitrary. However, there are exceptions to this rule, e.g., cases where it is
necessary ‘to shield children from publicity’,18 to ‘prevent the publication of
indecent matter’,19 etc.
Sub Judice and the Colonial Court
By and large, the sub judice rule in colonial India was very similar to its
counterpart in England.
In many cases decided by the high courts of British India, the sub judice rule
was conceived of as the rule that a person cannot prejudice a fair trial or interfere
with the course of justice.20 In other cases, it was held that a person committed
contempt of court when he sought to ‘prejudice mankind in favour of or against
a party before the case is finally heard’,21 i.e., to influence public opinion or
create ‘an atmosphere of prejudice in the midst of which the proceedings must
go on’.22 These definitions were all rooted in English common law.23
Comments on the merits of a pending case have generally been considered to
be in contempt of court.24 For example, in one case, a newspaper carried an
article which said that the police in a pending criminal case had forcibly
obtained signatures of the accused on blank sheets of paper on which admissions
of guilt were subsequently written in, and that pressure had been put on
witnesses to give evidence favourable to the prosecution. The Bombay High
Court held that this amounted to contempt of court as it suggested that the
evidence had been ‘obtained by improper means’ and was unreliable.25 In
another case, the contemnor published in a newspaper a letter he had written
expressing an opinion that it would be in the best interests of the depositors of a
bank which was undergoing liquidation proceedings for it to be fully wound up.
It was held that discussing ‘the rights and wrongs of a case’ like this amounted to
contempt of court.26
To suggest that a person accused of a crime is guilty was considered contempt
of court.27 If a newspaper used the word ‘alleged’ while describing a crime or
referring to a person accused of a crime, that could save it from being hauled up
for contempt,28 though the failure to use the word ‘alleged’ was not, by itself,
decisive, and regard was to be had to the context of the passages in the
newspaper article.29 For example, in one case, a newspaper referred to fourteen
persons who were standing trial for having committed an offence as the
‘Chittagong raiders’ instead of the ‘alleged Chittagong raiders’. It was held that
this, by itself, was not sufficient to constitute a violation of the sub judice rule.30
Similarly, it was considered contempt for a newspaper to publish the ‘antecedent
character’ or the prior criminal record of a person accused of a crime in a
pending case, especially if the record revealed that he had committed a similar
crime in the past as the one he was now standing trial for.31
Publishing some of the pleadings or any part of the evidence of a case, while
the case is pending, being privileged, has been considered to be contempt of
court.32 For example, in one case, the genuineness of a will was being contested.
The party propounding the will published it as an advertisement in a newspaper,
with the object of making the public believe its existence and contents. The court
relied on Oswald’s treatise on the English law of contempt, which said that
‘printing, even without comments, and circulating the . . . pleadings . . . of one
side only, is a contempt . . . ’33 However, in another case, the publication of a
plaint in a newspaper was held not to be in contempt of court because nobody
who read it would ‘form an unfavourable view of the conduct of the defendant’.
The article in question in this case contained merely a ‘summary of the
plaintiff’s allegations’, and on reading it a reasonable person could not conclude
that ‘the defendant is not prepared to meet the plaintiff’s case’.34
In case after case, colonial courts held that mere technical contempts were not
punishable, and in order to constitute a punishable violation of the sub judice
rule, the contempt must be serious or substantial, not theoretical or slight.35 One
has to look at the ‘probable effect’ of the article in question.36 However, actual
harm is not necessary.37 In other words, it is not essential that the article in
question should actually have caused prejudice to the trial.
Like the English rule, in several cases, colonial courts in British India held
that a violation of the sub judice rule attracted strict liability, that mens rea or
criminal intent was not necessary in order to constitute the offence.38 It is the
effect of the article in question, the probability that it might ‘substantially
interfere with the due administration of justice’, not the writer’s intention, which
determines whether something is contempt or not.39 Every person is ‘presumed
to intend the natural and probable consequences of his acts’.40
The sub judice rule was held by colonial courts in British India to apply when
a case was either pending or imminent.41 A criminal case was considered to be
pending from the time the accused was arrested and in custody, and it was not
necessary for the accused to have been committed for trial or even for him to
have been brought before a committing magistrate.42
However, a person was held not to have violated the sub judice rule if he did
not know, or he could not reasonably have known, that the case was pending.43
For example, in one case, the district magistrate was assassinated at Midnapore.
The accused was tried, found guilty, and sentenced to death. At this time, a
newspaper article was written commenting on the merits of the case. An appeal
before the high court was thereafter filed by the accused in the case. The editor
was hauled up for contempt. He argued that no appeal against the decision had
been filed before the high court as on the date of the publication of the article.
Rejecting this argument, the court held that ‘the editor must have had in his mind
the probability of an appeal’, and it was ‘a matter of general knowledge among
educated persons in this country that capital sentences passed by subordinate
courts require confirmation by the High Court’.44
Colonial courts in British India variously held that the sub judice rule is
designed to protect juries, witnesses, parties, judges, or even advocates. In some
cases, the Madras High Court held that even though it was unlikely that judges
would actually be influenced or prejudiced by the article in question, to
comment adversely on a case which was before a judge (e.g., a case pending
appeal or a civil case which did not have a jury) would also amount to a
violation of the sub judice rule.45 In one case, on the other hand, the Rangoon
High Court held that the article in question commented on a pending revision
case, and as revision cases are heard by judges alone and are concerned mostly
with questions of law, there was ‘no question of any witnesses, jurors or
assessors being influenced’.46
In Ananta Lal Singh v. Alfred Henry Watson,47 the Calcutta High Court was
hearing a contempt case against the editor of the newspaper the Statesman. The
newspaper carried an article which pointed fingers at an advocate, Sarat Chandra
Bose, who was defending fourteen persons accused of throwing bombs and
engaging in violent activities at Chittagong. Bose had previously retired from
full-time legal practice in order to start working for the Congress party. The
article asked whether defending terrorists was part of the work of the Congress
party. The high court held that an article which had ‘an effect in tending to deter
[an] advocate from continuing with his duties for his clients and . . . in
embarrassing him in the discharge of those duties’ amounted to contempt of
court. It was held that it is ‘quite possible to interfere with the due course of
justice by making comments upon an advocate in the way of his profession’.
Contempt of Courts Act, 1971
We have already seen in a previous chapter that contempt of court was debated
very sparsely in the Constituent Assembly. It was accepted there that the existing
law on contempt would continue to be an exception to the right to free speech. It
was only in 1963 that the first substantial public policy discussion took place to
reform the law of contempt. A report was submitted that year by the additional
solicitor general of India, H.N. Sanyal, to the law minister.48 The following were
its key recommendations:
1. Pending: A case should be considered ‘pending’ for the purposes of the law
of contempt not merely after the trial is over but also once the appeal is
finally over, or when no appeal is filed within the period of limitation.49
‘Execution’ proceedings, i.e., proceedings for enforcing a decree, should
not be considered part of a pending case.50
2. Imminent: It was recommended that the ‘imminent’ rule, i.e., the rule that a
person cannot comment on a case which is ‘imminent’, though not pending,
be abolished altogether in civil cases.51 While the Sanyal committee did not
recommend the abolition of the rule in criminal cases, it suggested that a
person could argue, in his defence, that he had ‘no reasonable grounds for
believing that the proceeding is imminent’.52
3. Knowledge of Pendency: It was suggested that want of knowledge of the
pendency of a case should constitute a defence.53 A person who acted with
‘ordinary prudence’ would be exonerated. This meant that at the time of the
publication, a person accused of committing contempt of court would have
to show that ‘he had no reasonable grounds for believing that any
proceedings were pending’.54 This was a reiteration of the colonial-era
law.55
4. Intent: The Sanyal committee accepted the rule that a person’s intent does
not establish contempt.56
5. Judges: Since trials in India are conducted by ‘trained men’, ‘mostly
without the aid of [a] jury’, the Sanyal committee found that judges were
‘not likely to be influenced by what is stated outside the court’.57 However,
a fear was expressed that witnesses might be influenced by what is said in
the press to ‘a greater degree in India than in a few other Western
countries’.58
Thereafter, a joint parliamentary committee headed by M.P. Bhargava submitted
its report to Parliament in 1970.59 The committee recommended that the word
‘imminent’ was vague and ‘likely to unduly interfere with the freedom of speech
and expression’. Thus, unlike the Sanyal committee, the Bhargava committee
recommended that the ‘imminent’ rule be dropped from contempt altogether.
The Contempt of Courts Act was enacted in 1971.60 The following are its key
provisions:
1. Pending: A criminal case is considered ‘pending’ from the time a charge
sheet is filed, or when the court issues a summons or warrant.61 Importantly,
unlike the 1981 Act in the UK, and unlike the law laid down by the
Supreme Court previously,62 a criminal case does not begin with the arrest
of a person by the police. This statutory rule in India was a result of the
recommendations of the Bhargava committee.63 A civil case begins when a
plaint is filed.64 In accordance with the Sanyal committee’s
recommendations, a case continues until an appeal or revision is ‘heard and
finally decided’ or until the period of limitation for filing the appeal or
revision expires without one being filed.65 However, the Supreme Court has
cast some doubt over whether a case can be considered as pending, for the
purposes of the sub judice rule, during the hearing of an appeal.66 A case is
not considered to be pending at the execution stage.67
2. Knowledge: A person charged with a violation of the sub judice rule can
argue, as a defence, that ‘he had no reasonable grounds for believing that
the proceeding was pending.’68 This was what the Sanyal committee had
recommended.
3. Intent: In accordance with the recommendations of the Sanyal committee,
a distributor can take up the defence that ‘he had no reasonable grounds for
believing that [the publication] contained or was likely to contain’ material
which violated the sub judice rule.69
4. Publication: Contempt was defined either as a ‘civil’ contempt meaning,
broadly, any deliberate violation of a court order,70 or ‘criminal’ contempt.
Criminal contempt can only take place upon ‘publication’, written or
spoken,71 which should therefore exclude private conversations. Criminal
contempt is anything which ‘scandalizes . . . or lowers . . . the authority of .
. . any court’, ‘prejudices . . . the due course of any judicial proceeding’, or
‘interferes . . . with . . . the administration of justice’, or tends to have this
effect.72
5. Fair and Accurate Report: It is not a violation of the sub judice rule for a
person to publish ‘a fair and accurate report of a judicial proceeding’ at any
stage.73
6. Technical Contempt: Technical contempts are not punishable. A contempt
is only punishable if it ‘substantially interferes’ with the ‘due course of
justice’ or tends to do so.74
The Supreme Court and the Sub Judice Rule
The Supreme Court has rejected the argument that the sub judice rule should not
apply in India because there are no jury trials held here. Instead, the court has
held that it is a contempt of court for a person to abuse, vilify, or to create an
atmosphere of prejudice against a party to a pending proceeding. To do so, the
court has said, may prevent litigants from properly prosecuting their cases and
deter potential litigants from bringing their cases to court. It has also been held
to be in contempt of court for any person to publish anything which might
influence witnesses in a case, or to reveal the identity of a person accused in a
criminal case under certain circumstances. Likewise, publishing ‘without
prejudice’ settlement talks between parties in a pending case has been found
prima facie to be in contempt of court.75
In Hira Lal Dixit v. State of Uttar Pradesh,76 a pamphlet was published during
the pendency of a case which was being heard by the Supreme Court. The
government of Uttar Pradesh had issued a declaration that transport services on
certain routes in the state would be carried on only by the government. This
declaration was challenged in writ petitions filed before the Supreme Court by
private transport carriers in the state. Against this backdrop, a pamphlet called
Hamara Vahan Vibhag or Our Transport Department was published, which
commented on the case. The pamphlet contained ‘a strong denunciation of the
State of Uttar Pradesh’, which was a party to the proceeding before the court.77
The matter was pending before the Supreme Court and, as such, there was no
question of any jury or witnesses being influenced by what was said in the
pamphlet. The party against whom the statements were made in the pamphlet
was the state of Uttar Pradesh, a party which was not likely to be bullied by
statements made in the press. Even so, the Supreme Court found that since the
pamphlet was ‘an attempt to prejudice the Court against the State and to stir up
public feeling on the very question then pending for decision’, it had violated the
sub judice rule.78 Looking at the manner in which the pamphlet was distributed,
the language used in it, and the timing of publication, the court found that it
could have had only one object, viz., ‘to try and influence the Judges in favour of
the petitioner’.79
Similarly, in the case of re: P.C. Sen,80 the state of West Bengal had issued an
order imposing restrictions on dealers of sweetmeats made out of channa. A
petition was filed in the Calcutta High Court challenging the order. Against this
backdrop, the chief minister of the state made a speech on All India Radio,
seeking to justify the order. Once again, there was no jury hearing the case, and
there were no witnesses. Even so, the Supreme Court found that the chief
minister had committed contempt of court.
The court specifically rejected the argument that ‘when the trial of a case is
held by a Judge without the aid of a jury’, no contempt of this nature may be
committed.81 It was held that ‘it would be difficult’ to say that a judge
conducting a trial is ‘not likely to be influenced by comments in newspapers or
by other media’,82 and that ‘it would be an over-statement to assert that a [judge]
may not be influenced even “unconsciously” by what he has read in
newspapers.’83 Thus, a violation of the sub judice rule could take place not
merely in a trial but also in an appeal where the question being considered is not
only one of law or sentencing.84
However, even assuming that judges are not influenced by what they hear or
see in the media, the court found that the ‘real danger’85 in sub judice statements
was that they could influence litigants or potential litigants. It was held that
contempt included ‘abusing parties to actions’, ‘prejudicing mankind in favour
of or against a party before the cause is heard’,86 holding up a party, by
‘vilification . . . or abuse’, to ‘public ridicule, obloquy, censure or contempt’ or
even seeking to ‘prejudge the issue pending before the court’.87 This is because
such statements would have the effect of deterring parties to ongoing
proceedings from prosecuting proceedings, to make such parties compromise
proceedings in a manner unfavourable to themselves, or to deter other parties
with similar claims from approaching courts.88 This was especially so in India,
held the court, ‘where personal conduct is largely influenced by [the opinions] of
. . . members of [one’s] caste, community, occupation or profession’.89 The court
was also to be mindful of the impact of the statement on the minds of
witnesses.90 Statements made by parties in ongoing proceedings, or by their
lawyers, require more serious attention, said the court.91
The Supreme Court has held that revealing the identity of those accused of
criminal offences is, under certain circumstances, a violation of the sub judice
rule. For instance, it has been held in one case that publishing photographs of
suspects, before the ‘identification parade’ is constituted, would seriously
prejudice the trial.92 In another case, Vidya Dhar v. Multi Screen Media (P) Ltd,93
a popular television crime show called Crime Patrol Dastak was going to air a
few episodes which were based on a real-life, ongoing criminal case. The court
directed the makers of the show to ‘ensure that there is no direct similarity’
between the characters on the show and those actually accused of the offence,
and otherwise to take steps to ‘protect their identity, as far as possible’.94
In-Camera Trials and Gag Orders
Courts in India have the power to hold trials ‘in camera’, i.e., to hold trials in
private, where no outsider to the case can be permitted into the courtroom, and
even to direct the press not to report the proceedings of a case which is otherwise
being held in open court. Such powers can only be exercised by a court when a
statute permits it to do so, or otherwise in exceptional circumstances.
The case of Naresh Shridhar Mirajkar v. State of Maharashtra95 arose against
the backdrop of the libel suit filed by Krishnaraj Thackersey against the Bombay
tabloid, Blitz, which we have seen in a previous chapter. During the trial, a
witness who had already given his evidence, Bhaichand Goda, was recalled to
the box to give evidence once again. Goda informed the judge hearing the suit,
Justice Tarkunde, that his testimony on the last occasion had caused him some
losses in his business. He therefore requested the judge to issue an order
directing the press not to report his testimony this time around. Justice Tarkunde
agreed and issued an oral direction to the press not to report Goda’s testimony.
Some journalists, including Blitz reporter Mirajkar, filed a petition in the
Supreme Court challenging Justice Tarkunde’s order. A Bench of nine judges
heard the case.96
Speaking for the majority, Chief Justice Gajendragadkar held that Justice
Tarkunde could not be understood as having imposed a permanent ban on the
press from reporting Goda’s testimony. Tarkunde’s order, said the chief justice,
applied only while the trial proceedings were ongoing.97 It was held that all court
proceedings must, in general, be held in open court because public scrutiny
served ‘as a check against judicial caprice’ and helped create public confidence
‘in the fairness, objectivity, and impartiality of the administration of justice’.98
However, Chief Justice Gajendragadkar found that this rule admitted of some
exceptions. It was held that the Bombay High Court had ‘inherent jurisdiction to
hold a trial in camera if the ends of justice clearly and necessarily require the
adoption of such a course’.99 This power, however, was to be ‘exercised with
great caution’ and a court was required to be ‘satisfied beyond a doubt that the
ends of justice themselves would be defeated if a case is tried in open court’.100
The chief justice did not apply his mind to whether Justice Tarkunde’s direction
in this case was justified or not.101 However, it was held that a court could,
instead of holding an entire trial in camera, direct the press not to report the
evidence of ‘a particular witness’ if it found that ‘excessive publicity’ would
‘prevent the witness from speaking the truth’.102 In other words, an in camera
trial could be held ‘either fully or partially’.103 The court also noted that there
were several statutory provisions under which in camera trials are permissible.
In Kartar Singh v. State of Punjab,104 the Supreme Court was considering a
challenge to the constitutional validity of Section 16 of the Terrorist and
Disruptive Activities (Prevention) Act, 1987, which permitted courts to hold
cases involving terrorism in camera. Rejecting the challenge, the Supreme Court
found that an in camera trial could be held ‘in exceptional circumstances’.105 It
was also held that the identity, including the names and addresses, of witnesses
in such cases could be withheld from the accused in exceptional cases, ‘for
weighty reasons’, especially if the lives of the potential witnesses were in
danger.106
In rape cases, it has been held that it is a court’s duty, not merely its discretion,
to hold a trial in camera.107 In trials involving child sexual abuse or rape, the
Supreme Court has held that a screen or something similar must be used during
the trial to shield victims and witnesses from the accused,108 so that they may
feel less uncomfortable giving their testimony.
In Sahara India Real Estate Corporation Ltd v. SEBI,109 the Supreme Court
held that gag orders or ‘postponement orders’ constituted a valid prior restraint
on the press under Article 19(2) of the Constitution. The court referred to a
postponement order as a ‘neutralising device’, which was necessary for
balancing the right to free speech under Article 19(1)(a) with the right of an
accused to the presumption of innocence under Article 21. Such orders were
held to be not punitive but ‘preventive’.110 The court articulated the following
safeguards for passing such orders, among others:
The postponement order must be limited in duration and must not disturb
the content of the publication. The applicant must be able to ‘demonstrate
substantial risk of prejudice to the pending trial’ and must ‘displace the
presumption of open justice’, in other words, there must be a ‘real and
substantial risk of prejudice to (the) fairness of the trial or to the proper
administration of justice’. A postponement order can only be passed when
there is no other reasonable alternative, e.g., change of venue,
postponement of trial. The court must take into account the principles of
proportionality and necessity.
12
‘Scurrilous Satire against a Friendless Woman’
In 1837, the draft of the Indian Penal Code (IPC) prepared by the Law
Commission headed by Thomas Babington Macaulay made defamation a
criminal offence.1 Macaulay’s draft was both better and worse than the
contemporary English common law on the subject.2 Macaulay’s draft was better
than the English common law at the time for two reasons. Firstly, it made truth
an absolute defence to criminal defamation. In other words, a person accused of
defaming another could argue in his defence that his allegedly defamatory
statements were true. Under English common law at the time, truth was not a
defence to criminal defamation,3 though it was an absolute defence in civil
defamation cases.4 The Indian Law Commission headed by Macaulay thought it
fit to make truth an absolute defence so that anyone could write the truth about a
man who, for example, ‘introduces a common prostitute as his wife, into the
society of all the most respectable ladies of the Presidency’, or about the captain
of a ship who ‘induces natives to emigrate, by promising to convey them to a
country where they will have large wages, and little work’ but who actually sells
them off as slaves.5
In 1843, however, the Libel Act was enacted in England, which made truth a
defence in criminal libel cases only if the statements were published ‘for the
public benefit’.6 A few years later, the Indian Law Commission recommended a
revision to Macaulay’s draft of the IPC,7 so as to bring it in line with the English
Libel Act. In keeping with the English Act, the Indian Law Commission in 1848
recommended that truth only be made a defence to criminal libel in India ‘if it
was for the public benefit’. For example, the Commission opined that it would
not be for the public benefit for a person to write about a person’s ‘error of
conduct long atoned for and forgotten’. Consequently, the first exception to the
offence of criminal libel, drawn up by Macaulay, was revised to say that it was
‘not defamation to impute anything which is true . . . if it be for the public good
that the imputation should be made or published’.
Macaulay’s draft was an improvement over the English common law on
criminal libel because it prescribed a maximum sentence of two years (along
with a fine), whereas under the English common law a person could theoretically
be sentenced to unlimited imprisonment for defaming someone.8 Interestingly,
the Libel Act also prescribed a maximum sentence of two years’ imprisonment
for some cases of defamation,9 which was similar to what Macaulay had devised
in his draft of the IPC.
However, despite the enactment of the Constitution in 1950, truth is still not
an absolute defence to criminal defamation under the IPC.
***
However in some respects, Macaulay’s draft was also worse than the English
common law. This was for several reasons.
Firstly, it made verbal or oral defamation an offence. In England, it was only
when defamation occurred in writing that a person could be criminally punished
for it.10 The Indian Law Commission criticized English common law in support
of its decision to make verbal defamation punishable. It found that verbal
defamation had an even greater tendency to cause a breach of the peace than
written defamation. Written defamation, said the Commission, might be
‘contained in a letter intended for a single eye’, while verbal defamation ‘may be
heard by an assembly of many thousands’. Further, merely because something
was not widely circulated did not mean that the defamation was not significant.
‘A malignant whisper addressed to a single hearer,’ said the Commission, ‘may
indicate greater depravity, may cause more intense misery, and may deserve
more severe punishment than a satire which has run through twenty editions.’
For example, the Commission believed that it would be a far worse form of
defamation for a person to ‘infuse into the mind of a husband suspicions of the
fidelity of a virtuous wife’ than for him to insert ‘the lady’s name in a printed
lampoon’. The Commission also believed that it was easier for a person to clear
his name when the defamation was in writing (e.g., by printing a response in a
newspaper) rather than when it was verbal.
Thus, in 1860, the IPC made verbal defamation a criminal offence. Moreover,
despite the enactment of the Constitution in 1950, verbal defamation still
remains a crime under Indian law.
Secondly, in England at the time, in order to succeed in criminal libel cases,
the prosecution had to establish that the words of the accused were such as to
have had the tendency to provoke a breach of the peace. Macaulay’s draft did not
make it necessary for the prosecution to establish that there was going to be a
likely breach of the peace in order for criminal defamation to have taken place.11
‘The doctrine that libel is an offence because it tends to breaches of the peace,’
said Sir James Fitzjames Stephen, ‘had no influence at all upon the provisions of
the Indian Penal Code.’12 Macaulay and the Commission believed that
‘[d]efamatory imputations of the worst kind may have no tendency to cause acts
of violence’, e.g., a ‘scurrilous satire against a friendless woman, published by a
person who carefully conceals his name’. Likewise, they believed that words
which were not defamatory might have the tendency to provoke a breach of the
peace, e.g., ‘an imputation on the courage of an officer, contained in a private
letter, meant to be seen only by that officer, and two or three other persons’. It
was for this reason that they decided to make defamation an offence ‘without
any reference to its tendency to cause acts of illegal violence’.
Despite the enactment of the Constitution in 1950, provoking a breach of the
peace is still not an ingredient of the offence of criminal defamation in India.
Thirdly, Macaulay’s draft did not confer absolute privilege on statements
made in court by witnesses or advocates.13 In England, a witness who made a
defamatory statement during the course of his testimony in a case, or an
advocate who made a defamatory statement while arguing his client’s case, were
both protected by the doctrine of ‘absolute privilege’. This meant that they could
not be proceeded against under the law of either civil or criminal defamation,
even if their words were spoken with malice. However, this exception was not
inserted by Macaulay into his draft of the IPC. Consequently, there was nearconsensus among the high courts of colonial India that while witnesses and
advocates enjoyed absolute privilege in civil defamation cases,14 they enjoyed
only ‘qualified privilege’ in criminal defamation cases.15 In other words, a
witness or advocate could be prosecuted for making defamatory statements in a
case, and they had to show that their words were not actuated by ‘express
malice’. An ‘absence of belief in the truth of the defamatory matter’ was usually
indicative of express malice.16 In order to show that there was no express malice,
a witness or advocate would have to show that he acted in ‘good faith’17 and
‘without any improper motive’.18 Express malice meant ‘ill will or spite towards
the plaintiff or any indirect or improper motive in the defendant’s mind at the
time of the publication, which is his sole or dominant motive for publishing the
words complained of’. However, several high courts took the view that there was
a presumption that statements made by advocates in court were made in good
faith and on the client’s instructions, and it was for the prosecutor to prove
express malice.19
Despite the Constitution, advocates and witnesses still enjoy only qualified
privilege in criminal defamation cases for statements they make in court.
***
In 2009, England got rid of the common law offence of defamation, along with
sedition, seditious libel and obscene libel.20 However, the Supreme Court of
India recently rejected a challenge to the constitutional validity of Section 499 of
the IPC. The court held that the criminal offence of defamation was justifiable
because, among other reasons, defamation is a specifically enumerated exception
to the right to free speech under Article 19(2), and because a person’s right to
free speech does not include the right to harm the reputation of another, as
reputation is a part of the right to life under Article 21.21 The court’s judgment
has come in for some serious criticism not merely for its reasoning,22 but also for
the manner in which it has been written.23 Thus, despite Article 19(1)(a), the
criminal offence of defamation in India, with all its idiosyncrasies seen above,
remains an offence on the statute books, which is still very much in use.
***
The Supreme Court has suggested that qualified privilege may be available for
statements made against public officials other than judges.
In R. Rajagopal v. State of Tamil Nadu,24 the petitioner was the editor, printer
and publisher of a Tamil Nadu weekly magazine called Nakkheeran. The
magazine had got its hands on the autobiography of one ‘Auto Shankar’, a
person who had been sentenced to death for committing multiple murders. The
autobiography, which ran into several hundred pages, revealed that Auto
Shankar had connections in the Indian administrative and police services. The
inspector general of prisons tried to prevent the petitioner from publishing the
autobiography. The Supreme Court held that the government could not impose a
prior restraint on ‘material defamatory of the State or of . . . officials’,
particularly because there was no law empowering the government to do so.25
Further, the court referred to the test laid down by the US Supreme Court in
New York Times v. Sullivan,26 and suggested that public officials do not have a
right to maintain an action for damages on any matter touching upon the
‘discharge of their official duties’, unless they are able to show that the
defendant acted with malice. In other words, a public official may not be able to
file a suit for damages against a person who makes a false defamatory statement
about the discharge of that official’s duties. In order to succeed, the public
official may have to prove not only that the statement was false, but that the
person making it acted ‘with reckless disregard for truth’, meaning that he made
the statement without ‘a reasonable verification of the facts’, or that he was
‘actuated by malice or personal animosity’.27 In other words, the court hinted
that a qualified privilege would be available to any person who makes a
defamatory statement about a public official regarding the discharge of his
official duties.28
However, at the same time, the court also held that the power of the judiciary
to punish persons for contempt of court constitutes an exception to this rule.29
We have already seen that those who commit contempt in the form of
scandalizing the court do not enjoy any qualified privilege for their statements.
This means that if a person makes a false defamatory statement about a judge,
touching upon the discharge by the judge of his public duties, the judge can
simply institute contempt proceedings against this person, where no such
standard or limitation will apply. This is odd, because it waters down the New
York Times standard in India when it comes to the judiciary.
***
In short, the enactment of the Constitution made virtually no difference to the
law of criminal defamation. This is because: truth is still not an absolute defence
to criminal defamation; verbal defamation is still criminally punishable; it is not
necessary for the defamatory statement to have the tendency to provoke a breach
of the peace or to be serious/non-trivial; witnesses and advocates do not enjoy
absolute privilege in criminal defamation cases; Section 499 of the IPC, i.e., the
criminal offence of defamation, still stands on the statute books; and the New
York Times standard may apply to public officials, but not to judges; all this,
despite the existence of a fundamental right to free speech under the
Constitution.
13
Shouting Fire in a Crowded Theatre
This chapter deals with hate speech in India, which, broadly speaking, includes
any speech which incites violent conflicts between different communities,
typically Hindus and Muslims. We will see that the provisions relating to hate
speech in the Indian Penal Code (IPC) were inserted in the 1890s and 1920s, as a
result of books written by Hindus insulting Islam or the Prophet Mohammed.
These books were written in Lahore, a hotbed of communal conflict at the time.
British administrators responded by making hate speech a criminally punishable
offence. We will see that the enactment of the Constitution has not, in any
manner, limited or restricted the provisions of the IPC which deal with hate
speech. If anything, those provisions have become even stronger in independent
India. This is certainly what India’s founding fathers intended. After all, we have
already seen that the First Amendment was primarily concerned with hate
speech during the Hindu-Muslim riots at the time of the Nehru-Liaquat Pact,
because of which ‘public order’ was introduced as an exception to the right to
free speech.
Hate Speech in Colonial India
Historically, hate speech was considered to be a part of the law of sedition in
England. In his authoritative nineteenth-century treatise on the criminal law of
England, Stephen said that a person who ‘[promotes] feelings of ill will and
hostility between different classes of [Her Majesty’s] subjects’ commits
sedition1. However, Macaulay’s draft of the IPC did not make hate speech a part
of sedition. Likewise, as law member of the Viceroy’s Council, when Stephen
himself amended the IPC in 1870 to make sedition an offence under Section
124-A, hate speech was not included within its ambit. It was only in 1898, when
the definition of sedition itself was being amended, as we have seen, to bring it
in line with the judgments of the Bombay, Calcutta and Allahabad High Courts,
that a new provision, Section 153-A, was inserted into the IPC, making hate
speech a crime.2 Thereafter, it was a crime to ‘promote feelings of enmity or
hatred between different classes of Her Majesty’s subjects’.3
While introducing the amendment to make hate speech a crime under the IPC,
the then law member of the Viceroy’s Council, Chalmers, said that while hate
speech was punishable in England with its ‘homogenous population’, it was even
more necessary in India ‘where different races and religions are in continual
contact’.4 He referred to ‘recent agitations’ that had taken place ‘in various parts
of India’, which had convinced the government that agitations which sought to
fan the flames of ‘racial and religious antagonism’ were very dangerous to public
tranquillity.5
One of these incidents was the murder of a man called Lekh Ram in Lahore in
1897. Lekh Ram was a prominent member of the Arya Samaj. In around 1892,
he wrote a pamphlet in which he criticized Islam in very harsh and severe terms.
In 1893, the founder of the Ahmadiyya sect of Islam, Mirza Ghulam Ahmad,
prophesied that Lekh Ram would die within six years of making those insulting
remarks. Lekh Ram was murdered in March 1897.6 Law member Chalmers
specifically referred to ‘the murder of Lekh Ram at Lahore’ as justification for
the insertion of Section 153-A into the IPC. However, Chalmers also referred to
other incidents which had taken place in British India at around that time, e.g.,
the ‘cow-killing riots in Western India’, and incidents in Peshawar District,
Sinnar and Poona, though some of these incidents had nothing to do with hate
speech at all.7
Most of the members of the Council spoke in favour of the amendment.
Nicholson, who had previously served as a magistrate in Madras, said that the
provision would help judges deal with India’s ‘various sectarian differences’,
and with ‘long-standing and easily-excited feuds between the castes’. However,
some, mostly Indian voices, spoke against the amendment. One member of the
Council, Sayani, said that Section 153-A would prevent social reformers from
criticizing religion, e.g., it would prevent those who ‘advocate widow remarriage’, that it would come in the way of ‘the vegetarian movement, the
Brahmo-Somaj movement, the monotheism movement, the anti-idolatry
movement, and the Prarathna Somaj movement’, though none of these excited
‘hatred and contempt’. Another member, Chitnavis, said that Hindus and
Muslims in India had, ‘for the most part’, lived together ‘in peace and amity’,
that the ‘recent agitations’ which had necessitated the amendment were ‘sudden
outbursts of religious passion’ against which penal laws would have no effect.
Though Section 153-A of the IPC was enacted in 1898, it seemingly remained
dormant for several decades. The first authoritative decision involving this
provision came in 1926 in a case decided by the Calcutta High Court.8 A
newspaper called the Forward, printed in Calcutta, carried an English translation
of an Urdu pamphlet calling on Muslims to commit violence against others.
Justice Rankin held that it was not merely the tendency of a newspaper article
which was to be looked at, but the intent of the person who wrote or published it.
He gave an example and said that newspapers often carry reports of incidents of
communal violence. For example, a newspaper may say that a Hindu was badly
assaulted or murdered by a Muslim. Some might read this newspaper and be
tempted to commit acts of retaliatory violence against Muslims. However,
Rankin said that this did not mean that the newspaper article would fall foul of
Section 153-A of the IPC. The judge found that the Forward newspaper in this
case had ‘given its readers in the ordinary way a perfectly legitimate and
sensible piece of news without any intention to . . . [promote or further] class
hatred’. The mere fact that the news story was such that ‘some people reading it
may momentarily or foolishly be induced to entertain unreasonable feelings
towards a class of other people’ was not enough to attract penalties under Section
153-A.9
However, in 1927, a case was decided in Lahore which substantially
complicated matters.10 The case concerned an Urdu pamphlet written by a
Hindu, which insulted Prophet Mohammed. The pamphlet was entitled Rangila
Rasul which, literally translated, means ‘colourful prophet’. It was written by
Pandit Chamupati, once again a member of the Arya Samaj.11 The pamphlet was
published in 1924, and Gandhi strongly condemned it. In the pages of Young
India, Gandhi said that the ‘very title is highly offensive’, that its ‘contents are in
keeping with the title’, that ‘[a]buse and caricature of the Prophet’ had ‘no value
whatsoever’, and the harm that it could do was obvious.12 He believed that the
motive of its writer was only to ‘inflame passions’.
The case came up before a non-Muslim judge of the Lahore High Court,
Justice Dalip Singh. Singh held that though the pamphlet was ‘a scurrilous satire
on the founder of the Muslim religion’, there was nothing in it which showed
that ‘it was meant to attack the Mahomedan religion as such or to hold up
Mahomedans as objects worthy of enmity or hatred.’ This was despite the fact,
said Singh, that the ‘tone of the pamphlet as a whole’ was ‘undoubtedly
malicious and likely to wound the religious feelings of the Muslim community’.
Singh believed that Section 153-A was meant to prevent people from attacking a
particular community as it existed at the present time, and was ‘not meant to stop
polemics against deceased religious leaders however scurrilous and in bad taste
such attacks might be’. Singh was worried that if attacks on religious leaders like
the Prophet were brought within the ambit of the section, then even a ‘historical
work’ by a ‘serious historian’ which considered the life of the Prophet and
passed judgment on his character would come within its ambit.
Justice Dalip Singh’s judgment raised a furore in the North West Provinces of
British India.13 There was widespread unrest among Muslims in the region.
Many called for Justice Singh to resign, and we have already seen that the
Muslim Outlook newspaper was hauled up for committing contempt of court for
suggesting that Singh had been motivated by extraneous considerations while
delivering his judgment.
The Rangila Rasul case was followed close on its heels by another judgment
of the Lahore High Court.14 In May 1927, a monthly Urdu journal called Risalai-Vartman, carried an article called ‘Sair-i-Dozakh’ or a ‘Trip to Hell’. It was
authored by a Hindu called Devi Sharan Sharma. In the article, the writer is in a
dream and visits both heaven and hell. In hell, he sees the Prophet suffering. The
case was decided this time around by two British judges, Broadway and Skemp.
This was peculiar because criminal trials were typically decided by one judge,
not two. The administration also seemed to deliberately have left out Indian
judges from deciding the case. While deciding the case, Justice Broadway found
that the article was ‘in extremely bad taste, scurrilous in nature and [was] a
disgusting satire on certain incidents in the life of the holy prophet of Islam’. It
fell foul, said the judge, of Section 153-A of the IPC, and Sharma was sentenced
to one year’s rigorous imprisonment.
However, Justice Broadway also found that ‘a reasoned, critical and strong
attack on a religion or its founder, written by way of comment’, and ‘with a view
to induce persons to forsake that religion . . . for another’ would not be
prohibited by Section 153A of the IPC. Only a ‘scurrilous and vituperative attack
on a religion or on its founder’ constituted the subject matter of the provision. In
other words, though ‘an attack on the founder of a religion’ was hard to
distinguish from ‘an attack on the religion founded by him’, not every criticism
of a religious leader, dead or alive, fell within the meaning of Section 153-A.
Similarly, in 1927, the Allahabad High Court decided a case involving a Hindi
book called Bichitra Jiwan. The book insulted the Prophet Mohammed, by
saying that he sanctioned practices like adultery and incest. The government had
decided to ban the book. All three judges of the court who decided the case
agreed with the government’s decision.15
Despite the course correction of the Lahore High Court in the Risala-iVartman case, the IPC was amended in 1927 and a new provision, Section 295A, was inserted into it, which made it a crime for any person, with ‘deliberate
and malicious intention’16 to ‘outrage the religious feelings’, or insult the
‘religion or the religious beliefs’17 of any class of persons.
The provision was hotly debated in the Legislative Council. In their minutes
of dissent, some members18 of the Select Committee of the Legislative Council,
like N.C. Kelkar, said that it would encourage religious fanatics, since ‘the
inculcation of peace’ was ‘an essential principle of all the great religions
practised in India’ and those who took to violence against scurrilous and vulgar
attacks on religion violated this principle. They believed that the amendment
would put pressure on the authorities to use the new provision against social
reformers or against ‘those who wish to assist the evolution of the popular
understanding of religions so as to bring this understanding into closer
conformity with the spirit of the original teachings’. They felt that the existing
provisions of the IPC were sufficient to deal with hate speech, and that the
Risala-i-Vartman case confirmed their view.
Other members of the Select Committee, led by M.A. Jinnah, argued that the
new provision was not harsh enough. It was largely due to Jinnah’s efforts that
Section 295-A was made a non-bailable offence.19
Clear and Present Danger
Though America’s Constitution was enacted in the late eighteenth century, it was
only in the early twentieth century that one of the first major free speech cases
was decided there. The case was Schenck v. US.20 Charles Schenck, a prominent
socialist, ‘attempted to distribute thousands of flyers to American servicemen
recently drafted’21 for the Great War. The flyers said things like a conscript (i.e.,
a person compulsorily enlisted into the armed forces) was ‘little better than a
convict’. ‘Do not submit to intimidation’, Schenck counselled members of the
American armed forces, adding, ‘assert your rights’. In deciding whether this
was part of the right to free speech or not, Justice Oliver Wendell Holmes wrote
the following famous words:
[T]he character of every act depends upon the circumstances in which it is
done . . . The most stringent protection of free speech would not protect a
man in falsely shouting fire in a theatre and causing a panic . . . The
question in every case is whether the words used are used in such
circumstances and are of such a nature as to create a clear and present
danger that they will bring about the substantive evils that Congress has a
right to prevent.22
This ‘clear and present danger’ test seemed to contain three ingredients: Firstly,
Holmes said that the nature of the words themselves were important. If a person
shouted, ‘Popcorn!’ in a theatre,23 after all, this would not be barred under the
First Amendment. What words were being uttered and how they were uttered
was material, like shouting (not merely uttering or saying) the word ‘fire’.
Secondly, Holmes held that the circumstances in which the words were uttered
were relevant too. If a person shouts ‘fire’ on the beach, on a peaceful moonlit
night, with nobody else around him, that can hardly be considered prohibited
speech either. As Holmes said in another case,24 there are times when ‘a little
breath would be enough to kindle a flame’. Thirdly, Holmes emphasized intent.
If a person shouts ‘fire’ in a theatre because he actually believes that there is a
fire, even if it turns out that he was wrong, his speech cannot be considered
barred under the US Constitution’s First Amendment.25
The Espionage Act in the US was amended in 1918 making it illegal for any
person to urge ‘the curtailment of production of materials necessary’ in the Great
War.26 At the time, the US was at war with Germany, not Russia. Russia had left
the war after its Bolshevik revolution. In 1918, the US sent its armed forces to
cities in the Soviet Union to support the ‘whites’ (who were loyal to the old
order) against the ‘reds’.27 Jacob Abrams and a few others were immigrants from
Russia who were self-described anarchists.28 Abrams and others thought that the
American involvement in Russia was meant to ‘crush the Russian revolution’.
They distributed thousands of circulars in New York City ‘advocating a general
strike and appealing to workers in ammunitions factories to stop producing
weapons’.29 Their intent was not to hinder America’s war effort, but only to
prevent it from upsetting the Bolshevik regime in the Soviet Union. They were
convicted and the Supreme Court, in Abrams v. US,30 upheld their convictions.
This time around, Justice Holmes, joined by Justice Brandeis, delivered a
famous dissent. He restated the ‘clear and present danger’ test as the ‘clear and
imminent’ danger test, and found that a person’s speech would be considered
protected unless it imminently incited insurrection or violence. He concluded his
judgment with the famous words that ‘the best test of truth is the power of the
thought to get itself accepted in the competition of the market’.31
The reason why a person does not have a right to shout fire in a crowded
theatre where he knows that there is no fire is because it is impossible to argue
with that person. However, if there is sufficient time to argue with and prove a
speaker wrong, the Holmesian approach would suggest that the speaker should
have the freedom to say what he wants.32
The Holmes-Brandeis approach was accepted by the US Supreme Court in the
case of Brandenburg v. Ohio.33 The appellant in this case was a leader of the Ku
Klux Klan, a militant organization which believes in the superiority of the white
race, and which is vocally anti-Semitic, anti-Catholic, and anti-black.34 He was
involved in public meetings at which hooded figures stood in front of burning
crosses and said things like, ‘Personally, I believe the nigger should be returned
to Africa, the Jew returned to Israel’, and ‘We’re not a revengent organization,
but if our President, our Congress, our Supreme Court, continues to suppress the
white, Caucasian race, it’s possible that there might have to be some
revengeance taken.’ He was convicted under the Criminal Syndicalism statute of
the state of Ohio, which made it a crime to advocate the duty, necessity, or
propriety of crime. The court distinguished between ‘advocacy’ and ‘incitement’
and held that while the former was protected by the right to free speech, the
latter was not.35 The Ohio law was struck down for prohibiting mere advocacy as
distinguished from incitement.36
Advocacy and Incitement in Independent India
In many cases, the Supreme Court of India has held, like the US Supreme Court,
that only incitement of offences is prohibited, while advocacy is not.
In Balwant Singh v. State of Punjab,37 Balwant Singh and Bhupinder Singh
were government servants. On 31 October 1984 (the day that Prime Minister
Indira Gandhi was assassinated), they came out of their offices in the evening
and shouted anti-India slogans in a crowded place, slogans like ‘Khalistan
Zindabad’. They were convicted of, among other things, engaging in hate
speech. The Supreme Court reversed the verdict and held that the mere raising of
‘casual slogans a couple of times’, without some more overt act, was insufficient
to constitute hate speech. The fact that they were not leading a procession, that
they did not have any intent to incite anyone to ‘create disorder’, and that their
slogans generally did not evoke any response or create any law and order
problem, was taken into account by the court while arriving at its conclusion.
Sober criticisms of government policy, even if they concern touchy subjects
like religion or language, would not be considered prohibited speech. For
example, in Dr. V.K. Javali v. State of Mysore,38 the Supreme Court was
considering a speech by a government official who criticized the Hindi language
policy of the government. In the speech, the official said that the medium of
instruction in schools and colleges, and the official language of the courts, must
be the local language. He said that different provincial languages should be
taught in different provinces, but that ‘Kannada should be ahead and Hindi
behind it’. The court held that this speech could not be considered as disturbing
the public order even on a very liberal interpretation of the words ‘public
order’.39
In Gajanan Visheshwar Birjur v. Union of India,40 the Supreme Court was
considering a case brought by a distributor and publisher of Marxist literature in
India. In 1978, he had imported books comprising the writings of Mao Zedong
from the People’s Republic of China. The books were confiscated by Indian
customs authorities under a notification issued by the central government under
the Sea Customs Act, 1878, which prohibited the entry into India of books,
newspapers or documents which, among other things, incited violence or
seduced members of the armed forces to disobey orders. The case was finally
decided by the Supreme Court around fifteen years later, in 1994, by when, as
the court noted, there had been ‘cataclysmic changes in the communist world’,
such that ‘no one would care to seize or confiscate the writings of Mao, if they
(were) imported today.’41 The court struck down the order, holding that an ‘idea
can never be killed’.
In Shreya Singhal v. Union of India,42 the Supreme Court was considering,
among other things, the constitutional validity of Section 66-A of the
Information Technology Act, 2000, which made it a criminal offence punishable
with both imprisonment of up to three years and a fine, for any person to send by
means of a computer or communication device information that was ‘grossly
offensive’, information known to be false for causing ‘annoyance,
inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity,
hatred or ill will, persistently’, or for simply ‘causing annoyance or
inconvenience or to deceive or . . . mislead the addressee or recipient about the
origin’ of the message. Justice Nariman held that, ‘Mere discussion or even
advocacy of a particular cause howsoever unpopular’ lies at the heart of Article
19(1)(a) and cannot be prohibited, and that ‘It is only when such discussion or
advocacy reaches the level of incitement that Article 19(2) kicks in.’43
There must be some proximate causal nexus between the speech in question
and public disorder under Indian law. In other words, while it is not necessary
for the speech to have the imminent and inexorable consequence of leading to
public disorder, like falsely shouting fire in a crowded theatre, there must still be
some close causal link between the speech and public disorder.
In Superintendent, Central Prison v. Dr Ram Manohar Lohia,44 the Supreme
Court was considering the constitutional validity of Section 3 of the U.P. Special
Powers Act, 1932, according to which it is a criminal offence for any person to
instigate others ‘not to pay or to defer payment of any liability’. Ram Manohar
Lohia had made speeches instigating members of his audience not to pay
enhanced irrigation rates to the government. While holding the section to be
invalid, the court found that it bore no connection with public order.
In Kameshwar Prasad v. State of Bihar,45 the Supreme Court was considering
the validity of Rule 4-A of the Bihar Government Servants’ Conduct Rules,
1956, which prohibited a government servant from participating in ‘any
demonstration’ or from resorting to ‘any form of strike’ ‘in connection with any
matter pertaining to his conditions of service’. It was held that demonstrations
could be of various kinds, either violent, ‘noisy and disorderly, for instance
stone-throwing by a crowd’, or ‘peaceful and orderly’ such as the wearing of a
badge by members of a group to draw attention to their grievances.46 The court
struck the rule down in so far as it applied to demonstrations because it placed a
ban ‘on every type of demonstration’, ‘however innocent and however incapable
of causing a breach of public tranquillity’.47
In Kedar Nath Singh v. State of Bihar,48 the Supreme Court was considering,
among other things, the constitutional validity of Section 505 of the IPC. The
Section made it an offence for a speaker to cause a member of the armed forces
to ‘disregard or fail in his duty as such’, to induce ‘fear or alarm to the public’
such that a person would thereby commit an offence against the State or against
public tranquillity, or to incite members of one community to commit an offence
against members of another community. It was held that this Section had ‘a
direct effect on . . . the security of the State or public order’,49 and its
constitutional validity was therefore upheld.
The Heckler’s Veto
In a vast majority of cases, the Supreme Court has held that speech which has
the mere ‘tendency’ to create public disorder is prohibited. When, however, can
it be said that words have the ‘tendency’ to undermine public order? In several
judgments, the Supreme Court has laid down some tests for determining this.
The first of these is that while ascertaining whether or not speech tends to give
rise to public disorder, a court must place itself in the shoes of a reasonable
listener, not an oversensitive one. The concept that speech must be banned
because listeners might erupt into spontaneous public disorder is known in
constitutional law as the ‘heckler’s veto’,50 a term coined by American scholar
Harry Kalven, Jr.51 It is so named because it gives hecklers, those who do not
like a certain kind of speech and are prone to combust into unrehearsed disorder,
a veto over what is said in public. The Supreme Court has held that public order
must be measured through the ears of the reasonable heckler. However, the court
has also held that the social class of the listener is important, hinting that if a
speech is designed for lower-class listeners (as is perhaps the case in hate
speech), then even unreasonable hecklers will have a veto over it. Further, if the
speech involves a touchy subject like the religious beliefs of minorities, then the
court will not only look at a case from the point of view of reasonable hecklers.
The reasonable hecklers idea was first articulated by Justice V.R. Krishna Iyer
in State of Uttar Pradesh v. Lalai Singh Yadav.52 The Government of Uttar
Pradesh had issued an order forfeiting copies of a book entitled Ramayan: A
True Reading, written by a political figure and rationalist. Quashing the ban
order, Justice Krishna Iyer held that different persons may have different
reactions to the same work, and that speech and expression must not be judged
from the standpoint of ‘a few fanatics [who] hold obdurate views’. In a
remarkable passage, Justice Krishna Iyer held as follows:
What offends a primitive people may be laughable for progressive
communities. What is outrageous heresy for one religion or sect or country
or time may be untouchably holy for another . . . From Galileo and Darwin,
Thoreau and Ruskin to Karl Marx, H.G. Wells, Bernard Shaw and Bertrand
Russell, many great thinkers have been objected to for their thoughts and
statements—avoiding for a moment great Indians from Manu to Nehru.
Even today, here and there, diehards may be found in our country who are
offended by their writings but no government will be antediluvian enough
to invoke the power to seize their great writings because a few fanatics hold
obdurate views on them.53
In Ramesh v. Union of India,54 the Supreme Court was considering whether a
television series called Tamas ought to be restrained from being telecast. The
series depicted scenes of communal tension between Hindus, Muslims and Sikhs
in pre-partition Lahore. While allowing the series to be shown on television, the
Supreme Court adopted the test laid down by Justice Vivian Bose when he was a
judge of the Nagpur High Court. Bose had held that ‘the effect of the words must
be judged from the standards of reasonable, strong-minded, firm and courageous
men, and not those of weak and vacillating minds, nor of those who scent danger
in every hostile point of view’.55
In S. Rangarajan v. P. Jagjivan Ram,56 the Supreme Court was similarly
dealing with a case of film censorship. The Censor Board had granted a Tamil
film, Ore Oru Gramathile or In One Village a ‘U’ certificate, making it fit for
universal exhibition. The film criticized the policy of caste-based reservations in
educational institutions, and suggested that reservations ought to be based on
economic considerations instead. The Supreme Court upheld the Censor Board’s
decision. It was held that a Censor Board must judge a film from the standpoint
of ‘an ordinary man of common sense and prudence’, not that of an ‘out of the
ordinary or hypersensitive man’.57 The ‘main theme’ of the work as a whole was
to be considered, and not ‘stray sentences or isolated passages’.58 ‘In [a]
democracy’, said the court, ‘it is not necessary that everyone should sing the
same song.’59 The heckler’s veto was strongly rejected in this case. It was held
that a constitutionally protected film could not be prohibited from public
viewing merely because of a ‘threat of demonstration and processions or threats
of violence’, as this, said the court, ‘would [be] tantamount to negation of the
rule of law and a surrender to blackmail and intimidation’.60 A government could
not ‘plead its inability to handle the hostile audience problem’.61
The Supreme Court thereafter scaled back this idea in Baragur
Ramachandrappa v. State of Karnataka.62 In that case, the court was considering
the validity of an order by the Government of Karnataka forfeiting all copies of a
book called Dharmakaarana for offending the sentiments of followers of the
Veerashaiva sect. Chapter 12 of the book argued that Channabasaveshwara, the
founder of the Veerashaiva sect, was an illegitimate son who had been conceived
out of wedlock. It was held by the court that ‘India is a country with vast
disparities in language, culture and religion and unwarranted and malicious
criticism or interference in the faith of others cannot be accepted.’63 Though the
court noted that ‘what may be a laughable allegation to a progressive people
could appear as sheer heresy to a conservative or sensitive one’,64 it did not adopt
Justice Krishna Iyer’s approach of determining whether only a ‘few fanatics’
holding ‘obdurate views’ would be offended by Chapter 12 of the book. Instead,
it was held that ‘India is a country with huge diversities in language and religion
and the weaker amongst them must be shown extra care and consideration.’65
This test can at best be described as the ‘kid-gloves’ approach. The underlying
theory animating this judgment was that religious and linguistic minorities will
tend to be sensitive about their religion and language, and so they will have to be
treated with kid-gloves, such that any speech which targets their religion or
language will have to be scrutinized very carefully.
Banning Books
There are criminal procedure statutes in India which enable magistrates or state
governments to impose prior restraints on speech if a breach of the public order
is anticipated. The Supreme Court has upheld the constitutional validity of such
statutes, primarily because such statutes contain numerous procedural safeguards
against abuse, and because the statutes typically limit the orders imposing prior
restraints to a certain timeframe. For instance, the constitutional validity of
Section 144 of the Criminal Procedure Code has repeatedly been upheld by the
Supreme Court. Section 144 enables specified magistrates to pass an order which
can, among other things, prevent public meetings from being held. This law has
been upheld by the court because it contains numerous procedural safeguards
which prevent it from being abused.66
The Criminal Procedure Code allows state governments to forfeit books if it is
apprehended that they will violate certain enumerated provisions under the IPC
like sedition or hate speech.67 The court has typically invalidated orders passed
under these provisions if they did not sufficiently set out the grounds on which
they were based.
In Harnam Das v. State of Uttar Pradesh,68 Harnam Das was the author of two
Hindi books, Sikh Mat Khandan Part 1 and Bhoomika Nazam Sikh Mat
Khandan, published in 1953. The Government of Uttar Pradesh passed an order
forfeiting the books on the ground that their publication was punishable under
Section 153-A of the IPC.
The Supreme Court in this case held that in order to forfeit a book, a
government had to satisfy two conditions: (i) firstly, a state government was
required to form an opinion that the book whose forfeiture was being
contemplated was proscribed under the enumerated sections of the IPC, and (ii)
secondly, the grounds for the government’s opinion were to be set out in the
order. It was held that in this case, the state government had failed to set out the
grounds for its opinion in the order.69 It was also held that if the state government
did not specify its reasons in its order, it was not for the court to examine the
contents of the impugned book and to see for itself whether any grounds existed
for the forfeiture.70
In State of Maharashtra v. Sangharaj Damodar Rupawate,71 the State of
Maharashtra had ordered the forfeiture of a book entitled Shivaji—Hindu King in
Islamic India written by James Laine, professor of religious studies at
Macalester College in the US. The book was a biographical study, based on
archival research, of the iconic Maratha king, Chhatrapati Shivaji Maharaj.
Shivaji is a very important symbol in the state of Maharashtra. He is considered
to be one of the few Hindu kings who were able to stand up to Muslim rule in
pre-colonial India. As such, his name has been appropriated by a prominent
political party in Maharashtra, the ‘Shiv Sena’. In 1968, Shivaji’s name was
inserted into the Schedule of the Emblems and Names (Prevention of Improper
Use) Act, 1950, meaning that no person can use his name etc. in a trade,
business, etc. Shivaji is the only Indian king whose name is in the Schedule to
the Act.
Laine’s book on Shivaji, though backed by historical research, was considered
derogatory by some in Maharashtra. Laine wrote an alternative version of some
of Shivaji’s heroic deeds. For example, the fabled killing of Afzal Khan by
Shivaji was said to be ‘premeditated violence in the service of the Brahmanic
world order’. Doubts were cast on Shivaji’s parentage. It was suggested that he
was not a Maratha, but possibly a Rajput. It was said that his guardian was also
his biological father. Shivaji was also portrayed as a power-hungry figure,
motivated by a quest for power.
Several people took to the streets in protest against the book. Their actions
bordered on the inane. For example, in the acknowledgments section in his book,
Laine had merely thanked a library, the famed Bhandarkar Oriental Research
Institute in Pune, where he had found archival materials. Angry protestors
stormed into the institute and destroyed priceless archives. Laine, in his
acknowledgments, had also thanked a Sanskrit scholar in Pune, Shashikant
Bahulkar. Angry protestors ‘blackened’ the scholar’s face (i.e., they applied
some kind of black ink or paint to his face), a form of protest which has deeply
questionable, racist undertones. A criminal complaint in the form of a First
Information Report was also filed by an individual against the author of the book
and others.
This time around, the state of Maharashtra in its order had set out detailed
reasons why the book had been ordered to be forfeited. However, the court
examined these reasons and found them to be insufficient. It was held that the
power to forfeit a book was a drastic one, which impinged upon the right to
privacy as well.72 Speaking for the court, Justice D.K. Jain adopted Justice
Vivian Bose’s test seen above. It was also held that the ‘class of readers’ for
whom the book is primarily meant is ‘relevant for judging the probable
consequences of the writing’.73 The government’s order of forfeiture was set
aside.74
The Supreme Court of India and US First Amendment Law
The Supreme Court of India has had an uneasy relationship with the First
Amendment to the US Constitution. We have seen that Articles 19(1)(a) and
19(2) of the Constitution were inspired by the Irish, not the American,
Constitution. Yet, the framers of India’s Constitution repeatedly referred to
judgments not of Irish courts but of American ones. Even the Supreme Court of
India has, time and again, referred to judgments of the US Supreme Court, while
simultaneously counselling against their use on account of textual dissimilarities
between the Constitutional protection to free speech in both countries. For
example, in Babulal Parate v. State of Maharashtra,75 the Supreme Court held
that the doctrine of ‘clear and present danger’ laid down in Schenck could not
apply in India on account of the textual differences between the First
Amendment in the US and Article 19(1)(a) in India.76 Further, in Madhu
Limaye’s case,77 the Supreme Court held that US rulings were ‘apt to be
misapplied’78 in India on account of the textual differences between the US First
Amendment and the Indian Article 19(1)(a).79
However, in Lalai Singh Yadav’s case, Justice Krishna Iyer held that ‘while
the American theory of clear and present danger . . . does not necessarily apply
in India, the illuminating observations of Holmes, J. serve to educate the
administrator and Judge.’80 In S. Rangarajan,81 the Supreme Court said that the
decisions of the US Supreme Court were not very useful on account of the
textual differences between the First Amendment to the Constitution in the US
and Article 19(2) of the Constitution of India.82 However, despite this, the court
seemed to adopt the clear and present danger test in that case. The question the
court asked itself was whether the speech in question was ‘inseparably locked up
with the action contemplated’, the equivalent of a ‘spark in a powder keg’.83
Thereafter, in Shreya Singhal,84 Justice R.F. Nariman (who is possibly the first
judge of the Supreme Court of India who has an LL.M. degree from Harvard
Law School) discussed, in great detail, the law of free speech in the US. It was
pointed out that there were essentially four differences between the rights to free
speech in the US and India: (1) the textual right to free speech under the US
Constitution is absolute, whereas in India it is not; (2) the US Constitution
specifically mentions the right to a free press, but omits to mention any right to
‘expression’, whereas the Indian Constitution omits to mention a right to a free
press, but mentions a right to expression; (3) in the US, speech may be abridged,
whereas in India, reasonable restrictions may be imposed on it; and (4) there are
eight specifically enumerated restrictions to free speech under Article 19(2),
which are absent in the US Constitution.85 It was held that the first three
differences were not very significant:86 Despite being textually absolute, the right
to free speech in the US was subject to restrictions as well. The right to free
speech in India includes a right to a free press, and the right to free speech in the
US includes the right to free expression. Both abridgments to free speech in the
US and restrictions to free speech in India must be ‘narrowly tailored or
narrowly interpreted so as to abridge or restrict only what is absolutely
necessary’.87 Thus, it was only the fourth difference which was significant. It
was held that in the US, a law must have a ‘compelling necessity’ in order to
abridge the freedom of speech legitimately, whereas in India such laws would
pass muster so long as they were ‘in the interest of the general public’.88 It was
held that the judgments of US courts on the right to free speech had ‘great
persuasive value on the content of freedom of speech and expression and the
tests laid down for its infringement’.89
Hate Speech in the US
The history of ‘hate speech’ doctrine in the US may be traced back to the case of
Beauharnais v. People of the State of Illinois.90 Joseph Beauharnais was the
president of a white supremacist organization, the White Circle League of
America. He distributed, through the volunteers of the organization, leaflets
which petitioned the Mayor and City Council of Chicago ‘to halt the further
encroachment, harassment and invasion of white people, their property,
(neighbourhoods) and persons, by the Negro’. The leaflet said that if ‘persuasion
and the need to prevent the white race from becoming mongrelized by the negro
will not unite us, then the aggressions . . . rapes, robberies, knives, guns and
marijuana of the negro, surely will.’ He was charged under a statute in Illinois
which made it unlawful for any person to portray ‘a class of citizens, of any race,
colour, creed or religion’ as depraved, criminals, unchaste or lacking in virtue, or
to otherwise expose them to ‘contempt, derision, or obloquy’. Speaking for the
majority in a court which was divided down the middle 5-4, Justice Frankfurter
upheld the constitutional validity of the statute.
However, the judgment of the US Supreme Court in Beauharnais can no
longer be considered good law today.91 It was virtually ignored by the Supreme
Court of Illinois in Village of Skokie v. National Socialist Party of America.92
The defendants in this case, the National Socialist Party of America, were Nazi
sympathizers. They proposed to organize a march in the village of Skokie,
Illinois, where their members would wear uniforms containing a ‘swastika
emblem or armband’. Out of 70,000 residents of Skokie, 40,500 were persons of
‘Jewish religion or Jewish ancestry’, of whom 5,000 to 7,000 were actual
survivors of German concentration camps. The village of Skokie filed a
complaint in the circuit court of Cook County and obtained an injunction
restraining the defendants from holding the march. The Supreme Court of
Illinois vacated the injunction. It was held that the display of the swastika,
though ‘offensive to the principles of a free nation’, was ‘symbolic political
speech intended to convey to the public the beliefs of those who display it’. It
was held that the display of swastikas in peaceful demonstrations could not be
precluded merely because it ‘may provoke a violent reaction by those who view
it’. This was particularly held to be so because the defendants had given advance
notice of their protest march, and those who did not want to see the swastika
banners or uniforms had sufficient notice to avert their gaze. ‘A speaker who
gives prior notice of his message has not compelled a confrontation with those
who voluntarily listen’, it was held.
Interestingly, many universities in the US started banning hate speech on their
campuses starting in the 1980s. However, courts struck these regulations down.
For example, in June 1990, Stanford University introduced a rule on its campus
which prohibited, among other things, speech which constituted ‘harassment by
personal vilification’ if it was ‘intended to insult or stigmatize a small group of
individuals on the basis of their sex, race, colour, handicap, religion, sexual
orientation, or national and ethnic origin’. The rule was struck down by a
California State Court in Robert J. Corry v. Stanford University.93
Beauharnais’s death knell was finally sounded by the US Supreme Court in
R.A.V. v. City of St Paul.94 The petitioner and others in this case had taped
together a crude cross, which they then proceeded to burn inside the fenced yard
of a black family which lived across the street from the house where the
petitioner was staying. To burn a cross on a black family’s yard is to convey a
message of threat and intimidation, that the black family is not welcome there,
that the life and well-being of its members is in serious danger, and that there are
white supremacists in the neighbourhood. The petitioner could have been
charged with any number of offences, e.g. trespass. However, the City of St.
Paul, Minnesota, decided to charge him under an ordinance which made it a
misdemeanour to, among other things, place on public or private property a
symbol or object like a burning cross or Nazi swastika, knowing that this would
arouse anger, alarm or resentment in a group based on race, colour, creed,
religion, or gender. Justice Scalia, the late conservative icon of the US Supreme
Court, delivered the court’s majority opinion. The statute was struck down for
discriminating between different viewpoints. The court held that the ordinance
permitted ‘fighting words’ to be used by those who argued in favour of racial
equality, but it did not permit such words to be used by those arguing against it.
Thus, for example, the court found that the ordinance permitted a person to say
that ‘all anti-Catholic bigots are misbegotten’, but not that ‘all papists are’. ‘St
Paul has no such authority to license one side of a debate to fight freestyle’, said
Scalia, ‘while requiring the other to follow Marquis of Queensbury Rules’.
In Snyder v. Phelps,95 Matthew Snyder, a member of the US armed forces, was
killed in Iraq in the line of duty. His father was holding a funeral service for him.
Members of the Westboro Baptist Church picketed near the funeral service, and
carried signs which said: ‘God Hates the USA/Thank God for 9/11,’ ‘America is
Doomed,’ ‘Don’t Pray for the USA,’ ‘Thank God for IEDs,’ ‘Thank God for
Dead Soldiers,’ ‘Pope in Hell,’ ‘Priests Rape Boys,’ ‘God Hates Fags,’ ‘You’re
Going to Hell,’ and ‘God Hates You.’ The soldier was not actually a
homosexual.96 The soldier’s father sued the founder of the church and the jury
awarded him millions of dollars in compensatory and punitive damages.
However, Chief Justice Roberts, speaking for the court, disagreed with the
verdict.
It was held that the ‘overall thrust and dominant theme’ of the signs on display
related to ‘broad issues of interest to society at large’, not matters of ‘purely
private concern’. The court found that the distress caused to participants at the
funeral was on account of the viewpoint of the message conveyed by the signs,
not by any unruly behaviour on the part of the demonstrators. As the speech
involved was ‘at a public place on a matter of public concern’, it was entitled to
‘special protection’ under the First Amendment, and could not be restricted
‘simply because it is upsetting or arouses contempt’. It was held that even hurtful
speech on public issues was protected in the US to ensure that public debate does
not get stifled.
The US tends to be an outlier97 in the protection its Constitution grants to hate
speech. All the world over, hate speech is substantially regulated. Even within
the US, the Constitutional protection granted to hate speech is not without its
detractors. Most recently, Jeremy Waldron, professor at the New York University
School of Law, has written a book which launches an eloquent attack on hate
speech doctrine in the US.98 Born in New Zealand, Waldron taught at Oxford
prior to his move to the US. In his book, The Harm in Hate Speech, Waldron
argues that when a society permits hate speech, it harms the dignity and sense of
belonging of ‘vulnerable minorities’, giving them the feeling that they do not
truly belong to that society, forcing them to live in fear. Interestingly, Waldron
points out that the free speech phrase which is most commonly attributed to
Voltaire (‘I hate what you say, but I will defend to death your right to say it’),
was never actually said by Voltaire at all. It was an English writer, Beatrice Hall,
who had summarized Voltaire’s ideas by using this phrase. Voltaire, on the other
hand, as Waldron says, would not have tolerated hate speech. He concludes by
arguing that under seventeenth and eighteenth century Enlightenment ideals,
‘public order’ did not merely mean an ‘absence of fighting’, but a society in
which people interacted with each other ‘on the basis of arm’s length respect’.
However, Waldron qualifies his argument with many limitations, some of which
render his argument quite tenuous.99
Hate Speech in Independent India
After the enactment of the Constitution, laws relating to hate speech in India
have only been strengthened. In 1969 and 1972, Section 153A was amended to
make the definition of hate speech broader. It now includes promoting, on the
ground of ‘religion, race, place of birth, residence, language, caste or community
or any other ground whatsoever’, ‘disharmony or feelings of enmity, hatred or ill
will’. During the colonial era, both Sections 153A and 295A were noncognizable offences. However, in the 1970s, these offences were made
cognizable. The Supreme Court of India has upheld the constitutional validity of
Section 295A of the IPC,100 while we have already seen that the First
Amendment to the Constitution was enacted partly in reaction to the Punjab
High Court’s decision to invalidate Section 153A of the IPC in Master Tara
Singh’s case. In 1988, the Rajiv Gandhi government banned the import into
India of Salman Rushdie’s book Satanic Verses.101
Apart from Sections 153A and 295A, there are several other penal provisions
under the IPC which specifically target hate speech,102 typically attracting a
maximum sentence of three years’ imprisonment.103 Several more laws have
been enacted in independent India which deal with hate speech. Under the
Protection of Civil Rights Act, 1955, for example, it is an offence, punishable
with a maximum sentence of six months, to insult a member of a Scheduled
Caste on the ground of ‘untouchability’.104 The Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities) Act, 1989, lists several offences
relating to hate speech. Under this law, it is an offence punishable with between
six months’ and five years’ imprisonment, for a person who is not a member of a
Scheduled Caste (hereinafter, ‘SC’) or Scheduled Tribe (hereinafter, ‘ST’) to do
any of the following to a person who is, viz., to intentionally insult or intimidate
(with intent to humiliate) him in public;105 to abuse him ‘by caste name’ in
public;106 to promote feelings of enmity, hatred or ill will against members of
SCs/STs generally;107 to disrespect any deceased person held in high esteem by
members of the SCs/STs;108 or to use words of a sexual nature towards a woman
of a SC/ST knowing that she is a member of this group.109 A person who aspires
to get elected to high office in India may get disqualified for engaging in hate
speech.110 In fact, the Supreme Court has recently held that during an election, a
candidate who appeals to his own religion or to the religion of the voter,
commits a ‘corrupt practice’ and is liable to be disqualified.111 The manager of a
religious institution may be sentenced to a maximum term of five years’
imprisonment if his institution is used for propagating hate speech.112 The
government may direct a cable operator to refrain from broadcasting any
programme or television channel if it is likely to engage in hate speech.113
14
The Most Solemn Symbol of a Country
Does the right to free speech under Article 19(1)(a) of the Constitution confer a
right to burn an effigy of Mahatma Gandhi, the Indian National Flag, or a copy
of the Constitution itself? The answer depends on what purpose free speech is
supposed to serve. In the 1960s, a scholar by the name of Thomas I. Emerson
wrote a paper in the Yale Law Journal called ‘Toward a General Theory of the
First Amendment’.1 In it, Emerson said that there were four reasons why
maintaining a system of free expression is necessary. These are: (1) ‘assuring
individual self-fulfilment’, (2) ‘as a means of attaining the truth’, (3) ‘as a
method of securing participation by the members of the society in social,
including political, decision-making’, and (4) ‘as maintaining the balance
between stability and change in the society’. Emerson’s article was relied upon
by at least two judges of the Supreme Court, Justice Mathew2 and Justice E.S.
Venkataramiah3 in influential cases decided by the court.
Each of these Emersonian conceptions values a different kind of speech. By
helping individuals attain self-fulfilment, the first conception of free speech
protects art and literature. By assisting in the discovery of truth, the second
conception protects science and scientific inquiries. For example, under this
conception of free speech it would be perfectly legal for a scientist to argue that
man evolved from apes instead of having been created out of thin air by god. By
strengthening the democratic decision-making process, the third conception
values political speech, i.e. speech designed to make a political point or to
provide political information. Lastly, by helping maintain a balance between
stability and change, the fourth conception of free speech treats speech as a
safety valve to ensure that change is brought about gradually and not with
sudden violence, enabling the dissatisfied and disgruntled to let off steam instead
of starting a violent and bloody revolution.
Burning an effigy of Gandhi, the national flag, or a copy of the Constitution
could arguably be seen as satisfying two Emersonian functions of free speech,
the first and the last. For example, rightly or wrongly, a person who burns the
Indian national flag expresses an extreme opinion about India and its people.
This may be a form of self-expression which helps achieve ‘self-fulfilment’ for
some. It is also an expression of extreme dissent, something which the safetyvalve conception of free speech prizes.
Yet, the Supreme Court has come out resoundingly against speech which in
any manner insults India’s flag, its national anthem, or its national honour. In a
few decisions, the court has held that the emblems and symbols of India, like the
national flag and national anthem, cannot be treated by Indian citizens with
anything less than respect and dignity. However, the court has held that Indian
citizens are free to use national symbols like the national flag to express their
patriotism towards India, with respect and dignity.
The National Anthem
Bijoe Emmanuel v. State of Kerala,4 is one of the most interesting cases to have
been decided by the Supreme Court. The judgment of Justice O. Chinnappa
Reddy in this case was certainly one of the best judgments ever written at the
Supreme Court. Three schoolchildren in Kerala, Bijoe, Binu Mol and Bindu
Emmanuel, were expelled from their school by the headmistress acting on the
instructions of the deputy inspector of schools, because, being Jehovah’s
Witnesses, they refused to sing the national anthem in the morning assembly at
their school, though they stood respectfully at attention while it was being sung.
Justice Reddy’s description of the facts of the case is worth reproducing in its
entirety:
[The children] attend school. Daily, during the morning Assembly, when the
National Anthem Jana Gana Mana is sung, they stand respectfully but they
do not sing. They do not sing because, according to them, it is against the
tenets of their religious faith—not the words or the thoughts of the anthem
but the singing of it. This they and before them their elder sisters who
attended the same school earlier have done all these several years. No one
bothered. No one worried. No one thought it disrespectful or unpatriotic,
the children were left in peace and to their beliefs. That was until July 1985,
when some patriotic gentleman took notice. The gentleman thought it was
unpatriotic of the children not to sing the National Anthem. He happened to
be a Member of the Legislative Assembly. So, he put a question in the
Assembly . . . Indeed it is nobody’s case that the children are other than
well-behaved or that they have ever behaved disrespectfully when the
National Anthem was sung. They have always stood up in respectful
silence. . . . [T]hese matters of conscience . . . though better left alone, are
sensitive and emotionally evocative.5
The Government of Kerala relied on two circulars in support of its decision to
expel the students. One, dated September 1961, said that ‘[a]s a rule, the whole
school should participate in the singing of the National Anthem.’ The other,
dated February 1970, provided that ‘[i]t is compulsory that all schools shall have
the morning assembly every day before actual instruction begins. The whole
school with all the pupils and teachers shall be gathered for the assembly. After
the singing of the National Anthem the whole school shall, in one voice, take the
National Pledge before marching back to the classes.’ On the other hand, the
students argued that they were justified in not singing the national anthem
‘because of their honest belief and conviction that their religion does not permit
them to join any rituals except . . . in their prayers to Jehovah their God’.6
Interestingly, the Kerala High Court on two separate occasions7 held against
the children and found that the words of the national anthem of India did not
contain anything that might have caused insult or offence to any religious
denomination. ‘But that is not the question at all,’ wrote Justice Reddy in his
judgment, adding: ‘The objection of the petitioners is not to the language or the
sentiments of the National Anthem: they do not sing the National Anthem
wherever [it may be], Jana Gana Mana in India, God Save the Queen in Britain,
the Star Spangled Banner in the United States and so on.’8
The court referred to numerous authorities from Australia, Canada and the
US. It was held that there was no provision of law which required a person to
sing the national anthem and that it was not disrespectful to the national anthem
for a person to stand up respectfully while it was being sung without joining in
the singing.9 It was held that ‘[s]tanding up respectfully when the National
Anthem is sung but not singing oneself’ did not violate the Prevention of Insults
to National Honour Act, 1971 either, which, as we shall shortly see, made it a
criminal offence to prevent the singing of the national anthem or to disturb an
assembly engaged in singing the national anthem.10
It was held that the circulars which the Government of Kerala was relying on
were merely ‘departmental instructions’ which did not have the force or sanction
of any statute. Consequently, since these were not ‘law’ within the meaning of
Article 13 of the Constitution, they were not capable of infringing fundamental
rights.11 In any event, it was held that the circulars did not make it mandatory for
a student to sing the national anthem in the face of a ‘conscientious objection
based on . . . religious faith’, and that if the circulars did do so then they would
violate Articles 19(1)(a) and 25(1) of the Constitution.12 Thus, the expulsion of
the students from the school was considered as having violated the right of the
students to free speech and expression under Article 19(1)(a) and the right to
profess, practise and propagate the religion of their choice under Article 25(1) of
the Constitution.13 The school was directed to re-admit the students. Justice
Reddy ended his judgment with an impassioned plea: ‘[w]e only wish to add:
our tradition teaches tolerance; our philosophy preaches tolerance; our
Constitution practises tolerance; let us not dilute it.’14
By contrast, recently, in Shyam Narayan Chouksey v. Union of India,15 the
Supreme Court passed far-reaching interim directions in a public interest petition
concerning the national anthem. After this order, passed by Justice Dipak Misra,
no person can commercially exploit, dramatize or even abridge the national
anthem. The national anthem cannot be printed on any object or displayed in a
manner that might be ‘disgraceful to its status and tantamount to disrespect’,
because the ‘protocol associated with it has its inherent roots in national identity,
national integrity and constitutional patriotism’. Every single cinema hall in
India has to ‘play the National Anthem’ before the film begins and ‘all present in
the hall are obliged to stand up to show respect’. Entry and exit doors at cinema
halls have to be closed while the national anthem is being played. The court also
thought it fit to direct that the national flag has to be displayed on the screen
while the national anthem is being played in cinema halls. This order of the
Supreme Court is susceptible to some criticisms.16 As Pratap Bhanu Mehta has
argued in the pages of the Indian Express, to force someone to stand for the
national anthem makes respecting the national anthem seem contrived rather
than heartfelt.17 In 2016, San Francisco 49ers reserve quarterback Colin
Kaepernick raised a furore in the US when he refused to stand for the American
national anthem before a football game, to protest police brutality against
African Americans, as part of the Black Lives Matter movement.18 Others
followed his example.19 In that country, Justice Robert H. Jackson once famously
wrote that ‘[c]ompulsory unification of opinion achieves only the unanimity of
the graveyard.’20 Justice Misra’s order deprives Indians of a similar right to
protest. Further, one wonders why the court directed only cinema halls to play
the national anthem, and not sports stadia before a cricket game or theatres
before a play.
The National Flag
In Union of India v. Naveen Jindal,21 the Supreme Court was considering the
question of whether the right of Indian citizens to fly the national flag was a
fundamental right within the meaning of Article 19(1)(a) of the Constitution.
Naveen Jindal, the petitioner, was the joint managing director of a public limited
company. He was flying the national flag in his office premises at the company
factory at Raigarh in Madhya Pradesh. Some government officials raised
objections under the Flag Code of India.22 While the case was pending before the
Supreme Court, the central government modified the Flag Code and came out
with the Flag Code of India, 2002,23 which made it far easier for private citizens
to display the national flag, subject to certain conditions, and, above all else,
subject to treating the flag with respect and dignity. It seems that under the
earlier Flag Code, Indian citizens were only permitted to display the flag on
certain specified days or occasions, e.g. Independence Day, which ceased to be
so under the new code.
The court held that ‘from time immemorial, people have laid down their lives
with a view to salute their own flag’.24 ‘What is so compelling in the piece of
cloth called the National Flag, that people make even the supreme sacrifice for
its sake?’ the court asked. It provided the following answer: the ‘National Flag
indisputably stands for the whole nation, its ideals, aspirations, its hopes and
achievements’.25 Quoting from Lieutenant Commander K.V. Singh’s book Our
National Flag, the court held that the national flag was ‘the most solemn symbol
of a country’.26 The court referred to flag laws in eighteen different countries and
discussions on the Indian national flag in the Constituent Assembly of India. It
was held that ‘the flag is definitely one of the most revered objects in our
society’ which must consequently ‘be treated with the utmost respect and
dignity’, necessitating the imposition of some restrictions on its use.27 It was
held, in essence, that Indian citizens had the right to use and display the national
flag, subject to ensuring that the flag is not mutilated, destroyed, etc.28
It was held that the right to fly the flag was not an absolute right but a
qualified one under Article 19(1)(a) of the Constitution.29 The court noted that
the US Supreme Court had recognized a right to burn the flag, but it did not
agree with this approach.30 In support of its holding that the right to free speech
did not include the right to burn the Indian national flag, the Supreme Court
speciously attempted to distinguish the right to free speech in the US and in
India based on the manner in which the right to free speech was drafted in the
two constitutions. Ironically, the court approvingly cited Emerson’s four
conceptions of free speech,31 without discussing why the court was not
recognizing the right to burn the flag despite the two Emersonian theories of free
speech discussed above, under which the right to burn the flag would be
justified.32
In conclusion, it was held that citizens had the right to fly the national flag of
India ‘freely with respect and dignity’ under Article 19(1)(a) of the Constitution,
so long as the message was a positive one, so long as the act of flying the flag
was ‘an expression and manifestation of [a citizen’s] allegiance and feelings and
sentiments of pride for the nation’.33 It was held that ‘[s]o long as the expression
is confined to nationalism, patriotism and love for the motherland, the use of the
National Flag by way of expression of those sentiments would be a fundamental
right.’34 However, the flag could not be used for a commercial purpose.35
***
The Emblems and Names (Prevention of Improper Use) Act, 1950 makes it a
criminal offence for a person to use a name or emblem specified in the Schedule
to the Act, ‘or any colourable imitation thereof’, in a trade, business, calling,
profession, patent name, trade mark, or design. The Schedule lists out such
things as the Indian national flag, and such names as Chhatrapati Shivaji
Maharaj, Mahatma Gandhi, Pandit Jawaharlal Nehru, Indira Gandhi and the
prime minister of India. In other words, under this law, if a person tried to sell
underwear, newspapers, or even legal services under the name ‘Pandit
Jawaharlal Nehru & Sons’, he would risk prosecution under the Act. Oddly, the
Act also lists out the emblems of certain religious denominations in the
Schedule. Thus, the emblems of the Ramakrishna Math and Mission and of the
Sri Sathya Sai Central Trust are considered protected national emblems by the
Schedule to the Act. This is somewhat strange because India is a secular country
without an established religion, and the official recognition and protection
granted to the emblems of religious denominations tends to conflict with this
principle. Interestingly, Reliance Jio, telecommunications subsidiary of Reliance
Industries, allegedly used an image of Prime Minister Narendra Modi, without
permission, while advertising its services in India. If this is correct, it could have
to pay a fine under the Act for doing so.36
The Prevention of Insults to National Honour Act, 1971, makes it a criminal
offence for any person to burn, mutilate, deface, trample upon, etc., or otherwise
show disrespect to the Indian national flag or the Constitution of India. The Act
was amended to include parts of the Flag Code of India, 2002, in it. Thus, it is
now considered an insult to the national flag, and a criminal offence, to do any of
the following things, among others:
. . . (b) dipping the Indian National Flag in salute to any person or thing . . .
(d) using the Indian National Flag as drapery in any form whatsoever
except in State funerals or armed forces or other para-military forces
funerals . . . (e) using the Indian National Flag—(i) as a portion of costume,
uniform or accessory of any description which is worn below the waist of
any person; (ii) by embroidering or printing it on cushions, handkerchiefs,
napkins, undergarments or any dress material . . . (f) putting any kind of
inscription upon the Indian National Flag; (i) allowing the Indian National
Flag to touch the ground or the floor or trail in water intentionally . . . (j)
draping the Indian National Flag over the hood, top and sides or back of a
vehicle, train, boat or an aircraft or any other similar object . . . (l)
intentionally displaying the Indian National Flag with the ‘saffron’ down’.
Interestingly, the Indian national flag cannot be used ‘as drapery in any form’.
One wonders whether enthusiastic fans of Indian cricket who drape themselves
with the Indian flag at international games to support their team fall foul of this
provision. Further, ‘putting any kind of inscription upon the Indian National
Flag’ is also barred. This would ironically mean that a patriot cannot write the
words ‘India is the Best Country in the World’ on the flag, or that a spectator at a
hockey game cannot inscribe the words ‘Go India’ on the flag. Even more
strangely, the law seems to suggest that the words of Article 19(1)(a) of the
Indian Constitution itself, i.e. that ‘all citizens shall have the right to freedom of
speech and expression’ cannot be inscribed on the flag.
Likewise, Section 3 of the Act makes it a criminal offence to intentionally
prevent the singing of the national anthem or cause a disturbance to any
assembly which is engaged in singing the national anthem. Interestingly, at a
function held at Kochi in December 2008, politician Shashi Tharoor interrupted
the singing of the national anthem and asked members of the audience to sing
the anthem by placing their hands on their chests in the manner that Americans
sing their national anthem. A criminal complaint was filed against him, alleging
that Tharoor had insulted the national anthem. It was only around five years
later, in 2013, that the additional chief judicial magistrate discharged Tharoor.37
In a more recent incident, a physically disabled person was beaten up by
onlookers for not standing while the national anthem was being played, though
he was not able to stand on account of his disability.38
The Act seems to have been based on or inspired by the Prevention of Insults
to National Honour Act, 1957, enacted in the erstwhile state of Madras. In
addition to the central act, the Tamil Nadu Act makes it an offence for anybody
to burn an effigy of Mahatma Gandhi or to damage or destroy a statue depicting
him.
The Flag Code of India, 2002, contains numerous rules regarding how the
Indian national flag is to be treated, sometimes at an unnecessary level of detail.
It says that the national flag of India ‘shall be made of handspun and handwoven
wool/cotton/silk/khadi bunting’,39 but that Indian national flags made of paper
‘may be waved by [the] public on occasions of important national, cultural and
sports events . . . ’40 When the flag is being displayed on a speaker’s platform, it
is required to be flown ‘on the speaker’s right as he faces the audience or flat
against the wall, above and behind the speaker’.41 It permits the flag to be burned
or otherwise destroyed, but privately and only when it is ‘in a damaged or soiled
condition’.42 The code prescribes a pledge of allegiance to be taken by students
at Indian schools, which goes: ‘I pledge allegiance to the National Flag and to
the Sovereign Socialist Secular Democratic Republic for which it stands.’43 It
prescribes detailed rules on when the flag may be displayed on motor cars.
Among others, the chief justice of India, judges of the Supreme Court, chief
justices of high courts, and judges of high courts are permitted to display the
national flag on their cars.44 It prescribes rules regarding when ‘half-masting’ is
permissible.45 Oddly, when the chief justice of India dies, the flag may be flown
at half-mast, but when a Supreme Court judge, a high court chief justice, or a
high court judge dies, it cannot be flown at half-mast. It has been seen that the
Supreme Court in Naveen Jindal’s case has held that the rules contained in the
Flag Code of India, 2002, are only to be observed in so far as they ensure the
dignified treatment of the national flag.
15
Methods of Influencing the Press
The Supreme Court has, time and again, accepted Ambedkar’s vision that the
general right to free speech under Article 19(1)(a) includes the rights of the
press.1 This proposition is uncontroversial. However, what has ended up being a
source of controversy is the scope of press rights under the Constitution. Over
the years, governments have enacted laws which have sought to regulate the
functioning of newspapers, including laws in the nature of labour regulations for
the welfare of journalists and other employees, anti-trust laws seeking to bust
media monopolies, and import rules imposing restrictions on newspapers’ rights
to get raw materials like foreign newsprint. These laws have been challenged by
the press in the Supreme Court of India. The court has adopted the test that any
law which ‘directly and inevitably’ imposes an ‘excessive and prohibitive
burden’ on newspapers, in a manner which tangibly affects their circulation,
readership, or revenues (particularly advertising revenues), violates Article 19(1)
(a) of the Constitution.
Labour Regulations
In Express Newspapers v. Union of India,2 the Supreme Court was considering a
law3 that was designed to improve the working conditions of journalists. It fixed
a cap on the total number of hours that journalists could be made to work (140
hours every four weeks). It gave journalists entitlements to casual leave and
medical leave. A ‘Wage Board’ was set up to help fix their wages. The Wage
Board, set up under the Act, then fixed wages in the following manner. It
classified newspapers into five separate categories on the basis of their gross
revenues (Categories A, B, C, D, E). It classified journalists into different
categories as well, depending on their seniority (Group I, II, III and IV, etc.). A
scale of wages was then prescribed, which was fixed on the basis of the category
of the newspaper and journalist. For example, the lowest wage fixed by the
Wage Board was payable by category ‘E’ newspapers (those which had gross
revenues of Rs 2½ lakh and below) to its ‘Group IV’ employees (i.e.,
proofreaders), at Rs 90 per month, while the highest wage was payable by Group
‘A’ newspapers (with gross revenues of over Rs 25 lakh) to its ‘Category I’
employees (i.e., editors), at Rs 1000 per month. One of the petitioners, which ran
the prominent newspaper The Indian Express, complained that prior to the law it
was paying Rs 9.77 lakh to its journalists annually, but if the Wage Board’s rules
were given effect to, then it would have to pay Rs 15.21 lakh.4
The court found that though the right to free speech in India included the
rights of the press, the press could not claim any immunity from general laws.
However, it was held that even general laws which had the effect of taking away
or abridging the right to free speech would be considered unconstitutional.5 At
its very core, the judgment in this case provided that laws which single out the
press and impose upon it an ‘excessive and prohibitive burden’ which would
have the direct and inevitable effect of either restricting circulation, imposing a
penalty on the right of newspapers to ‘choose the instruments’ for the exercise of
free speech or to ‘seek an alternative media’, preventing newspapers from being
started, or driving ‘the press to seek government aid’, would have to be declared
unconstitutional.6
The constitutional validity of the law itself was upheld. The court found that it
was meant to ameliorate the conditions of journalists. The mere fact that the law
singled out newspapers alone was not problematic, because ‘as a matter of
policy it would be expedient’ for the government to deal with each separate
industry ‘one by one’, and there was no ulterior motive in the enactment of the
law, merely because the law imposed ‘a greater financial burden than before’ on
newspapers. However, the Wage Board’s decision was set aside by the court on
the ground that it had not determined whether newspapers would have had the
financial ability to pay the wages fixed by it.
Anti-Trust Regulations
In Sakal Papers (P) Ltd v. Union of India,7 the Supreme Court was considering
the validity of a law8 which gave the government the power to regulate the
prices, pages and advertising space of newspapers if it was considered necessary
to do so, in the government’s opinion, in order to prevent unfair competition
among newspapers.9 The government passed an order in 1960, according to
which some newspapers were forced to decide to either reduce their number of
pages below twenty-four per week or increase their price from 7.n.p.10 to 8.n.p.
per issue. The law also imposed restrictions on the space in newspapers which
could be allotted towards advertising. The petitioner ran a prominent Marathi
newspaper out of Pune, called Sakal. The total number of pages in Sakal, six
days a week, added up to thirty-four. Sakal was, thus, forced under the order to
increase its price from 7.n.p to 8.n.p per day or to reduce its total number of
pages per week to twenty-four. Sakal devoted 40 per cent of its newspaper space
to advertising, which also stood to be affected by the law.
Sakal argued that if it raised the price of its newspaper, its circulation would
go down as its customers may not want to buy a more expensive newspaper. It
contended that if, on the other hand, the number of pages in the newspaper were
reduced, then that would affect the ability of the newspaper to disseminate news.
The government justified the law on the ground that its objective was to prevent
monopolies and unfair competition among newspapers.
The Supreme Court found that the right to free speech under the Constitution
protects not merely the content of the speech but also the ‘volume of
circulation’. ‘In other words, the citizen is entitled to propagate his views and
reach any class and number of readers as he chooses subject of course to the
limitations permissible under a law competent under Article 19(2).’11 It was held
that the law’s obvious objective in fixing newspaper prices was to make the
newspapers unaffordable so as to cut down circulation,12 that requiring a
newspaper to reduce its number of pages would restrict its ability to disseminate
news and views, which would be contrary to Article 19(1)(a).13 The court said
that Article 19(2) does not permit the government to curtail free speech in the
general interests of the public, as the impugned anti-trust law sought to do,14 and
that ‘[c]arrying on unfair practices may be a matter for condemnation’, but ‘that
would be no ground for placing restrictions on the right of circulation’.15 The law
was struck down.16
In Bennett Coleman & Co. v. Union of India,17 the Supreme Court was
considering the validity of the import policy of the Government of India for
newsprint, 1972-73, and the Newsprint Control Order, 1962, passed by the
government under Section 3 of the Essential Commodities Act, 1955. The law
contemplated that the Controller would allot a certain quota of imported
newsprint to each media group. It provided that a media group could not use its
allotment of imported newsprint to start a new newspaper or a new edition of an
existing newspaper. It provided that a newspaper could only have a maximum of
ten pages, and that a newspaper could not reduce its circulation in order to
increase its number of pages. Interchangeability among newspapers was also
prohibited, e.g., if a media group were allotted a quota of twenty pages of
imported newsprint and it had two newspapers (X and Y), it could not make
newspaper X have fifteen pages and newspaper Y have five pages. In other
words, newspapers X and Y were required to be no more than ten pages each.
The government tried to justify the ten page limit per newspaper rule by
arguing that its intent was to help small dailies rise up and compete with big
dailies. The government claimed that it was this very policy which had helped
newspapers like the Anandabazar Patrika and the Deccan Herald emerge.18
The court found that the ‘effect and consequence’ of the page limits imposed
by the policy and of the prohibition against using the existing quota of newsprint
to set up new newspapers or new editions was to ‘directly [control] the growth
and circulation of newspapers’, that their ‘direct effect’ was to restrict the
circulation of newspapers and the area that newspapers could devote to
advertising. Consequently, the policy’s ‘direct effect’ was to expose newspapers
to ‘financial loss’, and to infringe the freedom of speech and expression.19 The
anti-trust objectives of the policy did not find favour with the court either. It was
held that the ‘intention to help new and young newspapers’ could not be
‘allowed to strangulate the freedom of speech and expression of the big
dailies’.20
Justice Mathew delivered one of the rare dissents that the court has seen in its
free speech jurisprudence. He found the anti-trust objectives of the policy to be
laudable and upheld the policy. He held that the concentration of newspapers in a
few hands would mean that ideas antagonistic to those held by big newspaper
proprietors would not become known to the people.21 He deprecated the
‘concentration of mass media in [a] few hands’, and found that it was the owners
and managers of large media houses which were determining ‘which persons,
which facts, which version of facts, which ideas shall reach the public’.22 He
held that the government’s import policy on newsprint was designed to prevent
‘an oligopoly ruling the market’ and was in furtherance of free speech.23 ‘Article
19(1)(a) is not a ‘guardian of unlimited talkativeness’, he wrote.24
The judgment of Justice Mathew in Bennett Coleman makes for very
compelling reading. It is true that we now live in a digital age in which new
forms of media like Twitter, Facebook, YouTube and blog posts have changed
the meaning of what constitutes news and who is a journalist. At the same time,
ours is now also a world where large and wealthy companies and individuals
wield great amounts of power on news and media. When Reliance Industries
Ltd, owned by India’s richest individual, Mukesh Ambani, announced that it was
acquiring media conglomerate Network18, which owned television channels
such as CNBC TV18 and CNN-IBN, many expressed concerns that the news
was no longer going to be independent.25 Some speculated that the acquisition
was aimed at ensuring favourable treatment of the Reliance conglomeration at
the hands of the media, at a time when the media was heavily covering Aam
Aadmi Party supremo Arvind Kejriwal’s tirades against Ambani who was
accused of engaging in crony capitalism.26 In the pages of the Caravan
magazine, Krishn Kaushik argued that five Indian news media companies were
in some manner indebted to or controlled by Ambani.27 Worse, in late 2013,
speculative rumours began to abound that a corporate tycoon’s elder son had
crashed an Aston Martin Rapide into an Audi on Peddar Road in Mumbai,
causing an onward set of collisions, an alleged incident which went almost
entirely unreported by the mainstream media in India.28 News corporations in
India are sometimes owned outright by politicians, or are otherwise known to
have ideological leanings towards certain political parties. Justice Mathew’s
dissent in Bennett Coleman therefore engenders a justifiable concern that
wealthy monopolies should not control the news.
At the same time, it is doubtful whether restricting the number of pages that a
newspaper can have, the number of programmes that a news channel can create,
or the number of newspapers or channels that can be set up by a media
corporation, is the most reasonable manner of busting monopolies in the Indian
media. India’s general anti-trust law, the Competition Act, 2002, after all, applies
to media corporations as well. A law of this nature, which is general and not
specific, and which does not, in the Supreme Court’s words, directly and
inevitably impose an excessive and prohibitive burden on the right to free
speech, affecting circulation/subscription, readership/viewership, or
advertisement revenues, is far more likely to pass constitutional muster than a
law of the nature which was impugned in Sakal Papers and Bennett Coleman.
Import Duties/Taxes
In Indian Express Newspapers v. Union of India,29 the Supreme Court was
considering a levy by the government of duty on newsprint imported from
abroad. The duty was levied under the Customs Act, 1962. The Indian Express
argued that the levy of import duty on newsprint had the effect of raising the
prices of newspapers and of reducing circulation.30
The court found that if a tax is within reasonable limits, it cannot be said to
contravene the right to free speech under the Constitution.31 A test was
articulated for determining the validity of taxing statutes affecting the press in
particular. It was held that while the validity of an ordinary taxing statute is to be
tested on the basis of whether it is openly confiscatory or a colourable device to
confiscate, in taxes on newsprint on the other hand, a newspaper would have to
show merely ‘a distinct and noticeable burdensomeness, clearly and directly
attributable to the tax’.32 The court ordered the government to reconsider, within
six months, the entire question of levy of import duty on newsprint.
Justice Venkataramiah wrote an interesting judgment in which he said that
governments had, over the years, employed many tactics to control the press.
These included methods such as ‘[s]ecret payments of money, open monetary
grants and subventions, grants of lands, postal concessions, government
advertisements, conferment of titles on editors and proprietors of newspapers,
inclusion of press barons in cabinet and inner political councils’. The
government could also use force to influence the press, and employ methods
such as ‘pre-censorship (laws), seizures, interference with the transit of
newspapers and demanding security (deposits), imposition of restriction on the
price of newspapers, on the number of pages of newspapers and the area that can
be devoted for advertisements, withholding of Government advertisements,
increase of postal rates, imposition of taxes on newsprint, canalisation of import
of newsprint with the object of making it unjustly costlier’.33
Privacy and the Press
A series of cases came before the Supreme Court where journalists sought
interviews with convicts in prisons, convicts who were sometimes on death row.
The journalists contended that prison authorities or regulations prohibited them
from carrying out the interview, and asserted that this went against their rights to
free speech. In these cases, the court adopted a very circumspect approach to
Article 19(1)(a). It was held that there is no general right available to members
of the press to interview prisoners, and that the interview could only be held
subject to the consent of the prisoner, to the approval of the prison authorities,
and in accordance with the jail regulations. The judgments delivered by the
Supreme Court in this line of decisions, analysed below, can be considered as
laying down the proposition that press rights to free speech must give way to the
right to privacy. These judgments particularly have far-reaching implications
today, because they suggest that the right to free speech does not confer any right
on the paparazzi to invade the privacy of any person.
The first such case was Prabha Dutt v. Union of India.34 Prabha Dutt was the
chief reporter of the Hindustan Times. She approached the Supreme Court
directly, and sought an order to direct the Delhi administration to allow her to
interview two convicts, Billa and Ranga, who had been sentenced to death for
murder. The convicts in question, Jasbir Singh (alias Billa) and Kuljit Singh
(alias Ranga), had murdered siblings Sanjay and Geeta Chopra in Delhi in 1978.
Geeta was raped prior to the murder. The brutal incident had sent shockwaves
throughout Delhi.35
The court found that Article 19(1)(a) was not absolute, and that it did not
confer ‘any right on the Press to have an unrestricted access to means of
information’.36 The court found that the right claimed by the petitioner in this
case was ‘not the right to express any particular view or opinion but the right to
means of information through the medium of an interview of the two prisoners
who are sentenced to death’.37 It was held that Dutt had no right to interview a
prisoner, unless the prisoner himself was willing to do the interview.38 The prison
manual permitted the superintendent to allow interviews with prisoners under
sentence of death, provided that the superintendent thought it reasonable. The
court held that the superintendent could refuse to allow the interview for
‘weighty reasons’ to be recorded in writing.39 The superintendent of Tihar jail
was directed to allow the representatives of the Hindustan Times, Times of India,
India Today, Press Trust of India, and the United News of India, to interview the
convicts that very day, at 4 p.m. Some of the lawyers present in court asked
whether representatives of the press could be present at the time of the execution
of the death sentence. The court held that an application would have to be made
by them to the superintendent, who would then have to consider it on its own
merits.40 Interestingly, it seems that subsequently, Billa agreed to be interviewed
by the press, while Ranga refused. During his interview, Billa kept saying that he
was innocent.41
In Sheela Barse v. State of Maharashtra,42 Sheela Barse was a Bombay-based
freelance journalist, who wanted to interview women prisoners lodged in
Maharashtra jails. In May 1982, the inspector general of prisons of the state
granted permission to her to interview prisoners in Bombay Central Jail,
Yerawada Central Jail (Pune), and Kolhapur District Jail. Barse wanted to taperecord her interviews, but she was only permitted to take notes. When she
objected, the inspector general revoked his permission altogether, saying that
ordinarily, such permission was given only to research scholars. It seems that the
jail authorities had realized that Barse had previously written what they
considered to be ‘one-sided’, ‘irresponsible’ and ‘reckless’ stories based on
interviews with women undertrials.43 Barse wrote a letter to the Supreme Court,
which was converted into a writ petition—an exercise of ‘epistolary
jurisdiction’44 by the activist Supreme Court of the 1980s.
The court held that those who were lodged in jails had a right to be
interviewed by journalists so that light may be thrown on conditions in prisons,
even though citizens did not have any right to enter jails and collect
information.45 Barse was directed to apply once again to the appropriate
authority for permission to interview the prisoners and to tape-record the
interviews. The court reiterated that the prisoners would have to give their
consent to do the interview.46 It was held that tape-recording would only be
permitted if the appropriate authority granted special permission.47
Press Property
In Express Newspapers Pvt. Ltd. v. Union of India,48 the Supreme Court was
considering a petition filed by the proprietors of Indian Express. The Indian
Express ran its offices out of the Express Buildings at 9-10, Bahadur Shah Zafar
Marg, New Delhi, on a perpetual lease from the Union of India under a
registered indenture of lease deed of the year 1958. The government issued the
Indian Express a show cause notice asking why it should not re-enter and take
possession of the premises for breaching some of the clauses of the lease deed.
The Indian Express directly approached the Supreme Court. In order to approach
the Supreme Court directly, however, they had to establish that the show cause
notice violated a fundamental right under the Constitution. Among other things,
they therefore argued that the notice violated their right to free speech under
Article 19(1)(a) of the Constitution, that it was ‘an act of personal vendetta
against the Express Group of Newspapers in general, and Ram Nath Goenka,
Chairman of the Board of Directors in particular . . . ’.49 It was submitted that the
notice was issued because the Indian Express had been critical of the
government in its pages.
The three judges of the court wrote three separate judgments, and set aside the
notice issued by the government. However, the petitioners’ arguments under
Article 19(1)(a) were accepted by only one judge, Justice A.P. Sen. Justice Sen
held that the notice was ‘intended and meant to silence the voice of the Indian
Express’ which is why it was to ‘logically follow’ that the notice constituted ‘a
direct and immediate threat to the freedom of the press’ and that it violated
Article 19(1)(a) and 14 of the Constitution.50 Justice Venkataramiah held that the
notice only violated Article 14 of the Constitution, and expressed no opinion on
the argument under Article 19(1)(a).51 Justice R.B. Misra held that the right to
land and to construct buildings for running a business on the land was not
derived from Article 19(1)(a) or 19(1)(g) of the Constitution.52
Notes
Chapter 1: The Music of an English Band
1. See, Ramachandra Guha, India After Gandhi: The History of the World’s
Largest Democracy (New York: Ecco, 2007), p. 5.
2. The Privy Council’s jurisdiction was abolished by the Abolition of Privy
Council Jurisdiction Act, 1949, which came into force on 10 October 1949.
3. A few provisions of the Constitution came into force at once on 26 November
1949. The rest came into force on 26 January 1950. See, Article 394, which
dealt with the commencement of the Constitution.
4. Constituent Assembly Debates of India, vol. XI, p. 977 (25 November 1949).
5. Article 395.
6. Speech of Prime Minister Nehru at the inauguration of the Indian Law
Institute on 12 December 1957. S. Gopal (ed.), Selected Works of Jawaharlal
Nehru, 2nd Series, (New Delhi: Jawaharlal Nehru Memorial Fund, 1989),
available at: http://nehruportal.nic.in/writings (last visited 25 May 2017), vol.
40, p. 303. Interestingly, the government’s Statement on Industrial Policy,
adopted in 1991, which signaled economic liberalization, adopted the motto of
‘continuity with change’. See, Statement on Industrial Policy, Government of
India, Ministry of Industry, available at:
http://dipp.nic.in/sites/default/files/chap001_0_0.pdf (last visited 18 June
2017).
7. Granville Austin, The Indian Constitution: Cornerstone of a Nation (New
Delhi: Oxford University Press, 1966), p. xxi. Sandipto Dasgupta called this a
tension between constitutional ‘aspirations’ and ‘necessities’. Sandipto
Dasgupta, ‘A Language Which Is Foreign to Us: Continuities and Anxieties in
the Making of the Indian Constitution’, vol. 34, Comparative Studies of South
Asia, Africa and the Middle East 228 (2014), p. 229.
8. Article 17.
9. Article 15.
10. Article 18(2) of the Constitution says: ‘No citizen of India shall accept any
title from any foreign State.’
11. First Schedule.
12. Article 326.
13. H.M. Seervai, Constitutional Law of India: A Critical Commentary
(Bombay: N.M. Tripathi, 1993–97), vol. 1, p. 164.
14. Seervai, Constitutional Law of India, vol. 1, p. 167.
15. Constituent Assembly Debates, vol. XI, p. 663 (18 November 1949). See
further, Dasgupta, ‘A Language Which Is Foreign to Us’; Arvind Elangovan,
‘The Making of the Indian Constitution: A Case for a Non-nationalist
Approach’, History Compass, vol. 12, pp. 1–10 (2014).
16. Abhinav Chandrachud, An Independent, Colonial Judiciary: A history of the
Bombay High Court during the British Raj, 1862-1947 (New Delhi: Oxford
University Press, 2015). Likewise, members of the Indian Civil Service, who
had loyally served the colonial government, now served the government in
independent India. Arudra Burra, ‘The Indian Civil Service and the Raj:
1919-1950’, available on SSRN: https://papers.ssrn.com/sol3/papers.cfm?
abstract_id=2052658 (last visited 20 December 2016).
17. See, Arudra Burra, ‘What is “Colonial” About Colonial Laws?’, Am. U. Int’l
L. Rev. 138 (2016); Dasgupta, ‘A Language Which Is Foreign to Us’.
18. Constituent Assembly Debates, vol. XI, p. 616 (17 November 1949).
19. As distinguished from Asian communitarian values.
20. In fact, Ramachandra Guha lists the ‘retention of archaic laws’ as one of his
‘eight major threats to freedom of expression in contemporary India’.
Ramachandra Guha, Democrats and Dissenters (Gurgaon: Penguin Random
House India, 2016), p. 25. He notes—and this is a point which will be made
in great detail in this book—that colonial era restraints on speech were not
merely retained but also strengthened in independent India. Ibid, p. 27.
21. This was so even though the charge they were facing was sedition.
22. Though sedition was not specifically made an enumerated exception to free
speech, the ‘security of the State’ was made an exception in 1950. Thereafter,
the First Amendment made ‘public order’ an exception to free speech, which
has protected sedition from constitutional challenges thereafter.
23. One might argue that a person is less justified preaching sedition against a
democratically elected government over a colonial one. However, merely
because a government is democratically elected does not mean that citizens
must lose their rights to free speech and to criticize the government.
24. Jury trials have mostly been abolished in India, so there is no question of
sympathetic juries hearing sedition cases.
25. This was done with the enactment of a new Code of Criminal Procedure in
1973, which replaced the British era code of 1898.
26. Brij Bhushan v. State of Delhi, AIR 1950 SC 129. In R. Rajagopal v. State of
Tamil Nadu, (1994) 6 SCC 632 (at paragraphs 22, 26(6)), the Supreme Court
held that prior restraints could not be imposed for defamatory statements
made against the government or government officials, because there was no
law authorizing such restraints to be imposed. Prior restraints were found to
be constitutionally valid in Sahara India Real Estate Corporation Ltd. v.
SEBI, (2012) 10 SCC 603.
27. Lawrence Liang, ‘A Sholay We Don’t Know’, Indian Express, 16 February
2015, available at: http://indianexpress.com/article/opinion/columns/asholay-we-dont-know/ (last visited 13 September 2016).
28. See, ‘Censor Board says no long ‘kisses’ in Bond film . . . ’, Indian Express,
19 November 2015, available at:
http://indianexpress.com/article/entertainment/entertainment-others/censorboard-says-no-kisses-in-bond-film-spectre-twitterati-posts-jokes/ (last visited
13 September 2016). Similarly, it also trimmed a kissing scene between
actors Sushant Singh Rajput and Kriti Sanon in Bollywood film Raabta. See,
Charu Thakur, ‘Sushant-Kriti’s Raabta: CBFC Trims Kissing Scene, Says No
to Abusive Language’, India Today, 7 June 2017, available at:
http://indiatoday.intoday.in/story/sushant-singh-rajput-kriti-sanon-kissingscene-raabta-cbfc/1/972603.html (last visited 13 June 2017).
29. The Bombay High Court in Phantom Films Pvt. Ltd. v. Central Board of
Film Certification, Writ Petition (L) No. 1529 of 2016, decided on 13 June
2016 (DB), set aside the Censor Board’s order.
30. 376 US 254 (1964).
31. See, Jean Drèze, ‘The New Abnormal in Kashmir’, The Hindu, 25 November
2016, available at: http://www.thehindu.com/opinion/lead/The-newabnormal-in-Kashmir/article16695599.ece (last visited 5 December 2016);
Jean Drèze, ‘Kashmir’s Hidden Uprising’, Indian Express, 5 December 2016,
available at: http://indianexpress.com/article/opinion/columns/kashmirvalley-shutdown-hidden-uprising-indian-army-militants-4410627/ (last
visited 5 December 2016).
32. HCA/D63/A1/D, British Library, letter dated December 8, 1918, from
Norman Macleod to his son, Torquil.
33. M.R. Jayakar, The Story of My Life (Bombay: Asia Publishing House, 1958),
vol. 1, p. 227, available at:
https://archive.org/stream/in.ernet.dli.2015.238020/2015.238020.TheStory#page/n253/mode/2up (last visited 18 June 2017); Thomas Joseph
Strangman, Indian Courts and Characters (London: W. Heinemann, 1931),
pp. 112–13.
34. Sharada Dwivedi and Rahul Mehrotra, Fort Walks (Mumbai: Eminence
Designs Pvt. Ltd., 1999), p. 19.
35. Ibid.
36. ‘Policy Guidelines for Downlinking of Television Channels’, 5 December
2011, issued by the Ministry of Information and Broadcasting, available at:
http://mib.nic.in/sites/default/files/Downlinking_Guidelines05.12.11.pdf (last
visited 18 June 2017).
37. This was not an entirely new exception to free speech. As we shall see later
on, the colonial-era Defence of India (Criminal Law Amendment) Act, 1915,
allowed the government to regulate speech which was likely to ‘prejudice
His Majesty’s relations with Foreign Powers’.
38. See, Rajeev Dhavan, Publish and Be Damned: Censorship and Intolerance
in India (New Delhi: Tulika Books, 2008); Gautam Bhatia, Offend, Shock, or
Disturb: Free Speech under the Indian Constitution (New Delhi: Oxford
University Press, 2016); Madhavi Goradia Divan, Facets of Media Law
(Lucknow: Eastern Book Company, 2015); Seervai, Constitutional Law of
India; Soli J. Sorabjee, Law of Press Censorship in India (Bombay: N.M.
Tripathi, 1976); Lawrence Liang, ‘Speech and Expression’; Sujit Choudhry
et al, The Oxford Handbook of the Indian Constitution (New Delhi: Oxford
University Press, 2016).
39. Order dated 28 March 2013, available at:
http://mib.nic.in/sites/default/files/OrdersofMIBforprohibitionoftransmissionofFTVChanne
(last visited 18 June 2017).
40. See, ‘Obscenity Case Filed against Akshay Kumar’, NDTV, 6 April 2009,
available at: http://www.ndtv.com/india-news/obscenity-case-filed-againstakshay-kumar-390760 (last visited 14 November 2016); ‘Akshay’s
Unbuttoning Act: Twinkle Arrested, Released’, Times of India, 10 April
2009, available at: http://timesofindia.indiatimes.com/india/Akshaysunbuttoning-act-Twinkle-arrested-released/articleshow/4382598.cms (last
visited 14 November 2016); Koffee with Karan, Season Five, episode aired
on 13 November 2016; Abigail Stepen Rosa v. State of Maharashtra, (2013)
SCC OnLine Bom 907. There is, of course, a distinction between being
charged with obscenity and being convicted for it. However, as discussed
later, it takes an enormously long time for criminal cases to be decided in
India, which means that a charge of obscenity is likely to stick for some time.
41. Bob Woodward and Scott Armstrong, The Brethren: Inside the Supreme
Court (New York: Simon and Schuster, 1978); Nadine Strossen, ‘Obscenity
and Indecency Law: Why Howl is Still Silenced’, 37 Seattle University Law
Review lxi (2013); Jeffrey Rosen, ‘Zoned Out’, New Republic, 31 March
1997, available at: https://newrepublic.com/article/74075/zoned-out (last
visited 17 September 2016).
42. 403 US 15 (1971).
43. Strossen, ‘Obscenity and Indecency Law’, lxiv.
44. See, Fali S. Nariman, The State of the Nation (New Delhi: Hay House India,
2013), pp. 351–52.
45. ‘Report of the Committee on Contempt of Court’ (Phillimore Committee
Report), December 1974, p. 69.
46. This is known as a ‘First Information Report’.
47. Ramachandra Guha points out that such cases are often filed in remote towns
in India, where the values of the local police and magistrates may be very
different from those of judges in urban India. Ramachandra Guha, Democrats
and Dissenters (Gurgaon: Penguin Random House India, 2016), p. 29.
48. ‘Shashi Tharoor Exonerated in National Anthem Case’, The Hindu, 7 July
2013, available at: http://www.thehindu.com/todays-paper/shashi-tharoorexonerated-in-national-anthem-case/article4890798.ece (last visited 30 May
2016); Mahir Haneef, ‘Shashi Tharoor Acquitted in Anthem Case’, Times of
India, 7 July 2013, available at:
http://timesofindia.indiatimes.com/india/Shashi-Tharoor-acquitted-inanthem-case/articleshow/20950253.cms (last visited 30 May 2016).
49. Article 12.
50. ‘M.F. Hussain Passes Away in London’, Times of India, 9 June 2011,
available at: http://articles.timesofindia.indiatimes.com/2011-0609/india/29637594_1_hindu-goddesses-mf-husain-indian-artist (last visited
18 June 2017); ‘Eminent Painter Maqbool Fida Hussain Passes Away in
London’, Indian Express , June 9 2011, available at:
http://www.indianexpress.com/news/excellent/801368/ (last visited 18 June
2017).
51. Maqbool Fida Hussain v. Raj Kumar Pandey, (2008) Cri LJ 4107.
52. See: ‘Protests at Delhi’s Ramjas College’, Times of India, 22 February 2017,
available at: http://timesofindia.indiatimes.com/city/delhi/protests-at-delhisramjas-college-students-clash/articleshow/57290420.cms (last visited 7
March 2017); ‘Akhil Bharatiya Vidyarthi Parishad Holds Protest March . . . ’,
Times of India, 2 March 2017, available at:
http://timesofindia.indiatimes.com/city/delhi/akhil-bharatiya-vidyarthiparishad-holds-protest-march-in-delhi-university/articleshow/57430647.cms
(last visited 7 March 2017); ‘Here’s What Happened . . . ’, India Times, 24
February 2017, available at: http://www.indiatimes.com/news/here-s-whathappened-at-ramjas-college-that-led-to-the-clashes-between-abvp-aisa-anddelhi-police-272175.html (last visited 7 March 2017).
53. However, Roy was later sentenced for being in contempt of court in a
subsequent case, which will be discussed in this book.
54. (2015) 5 SCC 1 (decided by two judges).
55. See, e.g., order dated 2 March 2015, passed by a Division Bench of the
Bombay High Court in Criminal Writ Petitions No. 815 and 816 of 2015.
56. Ambikesh Mahapatra v. State of West Bengal, (2015) SCC OnLine Cal 631.
Chapter 2: The Wounded Vanity of Governments
1. See further, Siddharth Narrain, ‘Disaffection and the Law’: The Chilling
Effect of Sedition Laws in India’, Economic and Political Weekly, 19
February 2011, vol. 46, No. 8, p. 33; Walter Russell Donogh, A Treatise on the
Law of Sedition and Cognate Offences in British India (Calcutta: Thacker,
Spink & Co., 1911), available at:
https://archive.org/details/onlawofsedition00dono (last visited 15 August
2016); Aravind Ganachari, ‘Combating Terror of Law in Colonial India: The
Law of Sedition and the Nationalist Response’ in M. Vardalos et al (eds.),
Engaging Terror: A Critical and Interdisciplinary Approach (Boca Raton,
Florida: Brown Walker Press, 2009), p. 93 (available on Google Books);
Fendall Currie, The Penal Code Act XLV of 1860 (London: John Flack & Co.,
1875) (5th Edition), available at https://babel.hathitrust.org/cgi/pt?
id=hvd.hl2tyv;view=1up;seq=7 (last visited 15 August 2016); Janaki Bakhle,
‘Savarkar (1883-1966), Sedition and Surveillance: The rule of law in a
colonial situation’, Social History, vol. 35, Issue No. 1, February 2010, p. 51;
Sukeshi Kamra, ‘The “Vox Populi”, or the Infernal Propaganda Machine, and
Juridical Force in Colonial India’, Cultural Critique, vol. 72, Spring 2009, pp.
164–202.
2. The IPC avoided the distinction between a ‘felony’ and a ‘misdemeanour’.
This, colonial legislators believed, was one of the many improvements of the
English common law by statute in British India. Another example was the fact
that the word ‘hearsay’ was not used in the Indian Evidence Act, 1872.
3. See, Rasiklal v. Kishore, (2009) 4 SCC 446 (paragraphs 9–12); Ratilal Bhanji
Mithani v. Assistant Collector of Customs, AIR 1967 SC 1639.
4. Where the words were spoken, not written, the offence was called ‘speaking
of seditious words’. Sir James Fitzjames Stephen, A Digest of the Criminal
Law, 5th edition (London: Macmillan and Co., 1894), available at:
https://catalog.hathitrust.org/Record/007703960 (last visited 7 September
2016), p. 70.
5. Where the words were written, not spoken, the offence was called ‘publication
of a seditious libel’. Stephen, Digest, p. 70.
6. In fact, this definition of sedition was adopted in the authoritative digest on
criminal law prepared by Sir James Fitzjames Stephen. Sir James Fitzjames
Stephen, A History of the Criminal Law of England (London: Macmillan and
Co., 1883), vol. 2, available at: https://babel.hathitrust.org/cgi/pt?
id=hvd.hl57k3;view=1up;seq=315 (last visited 15 August 2016). Stephen
relied on Articles 91 and 93 of his Digest on Criminal Law, corresponding
with Articles 96 and 98 of the 5th edition of the Digest. See, Stephen, Digest.
See further, Criminal Libel Act, 1819, available at:
https://books.google.co.in/books?
id=si9bAAAAQAAJ&pg=PA44&lpg=PA44&dq=Seditious+and+Blasphemous+Act&sourc
wfA6Uezw6v2kq28U&hl=en&sa=X&ved=0ahUKEwibgpii__7OAhUKNo8KHQwxBaIQ6
(last visited 8 September 2016); Section 102, Criminal Code (Indictable
Offences) Bill, 1879, [prepared pursuant to the ‘Report of the Royal
Commission Appointed to Consider the Law Relating to Indictable Offences’,
whose report is available at: http://www.lareaulegal.ca/EnglishDraftCodeONE.pdf (last visited 8 September 2016)], available
at: https://catalog.hathitrust.org/Record/100472695 (last visited 8 September
2016).
7. For an account of the law of seditious libel in England in the seventeenth and
eighteenth centuries, see, Philip Hamburger, ‘The Development of the Law of
Seditious Libel and the Control of the Press’, 37 Stanford Law Review 661
(1984–85). Hamburger argues, contrary to historians like Stephen, that the law
of seditious libel emerged in the eighteenth century once other methods used
by the Crown like treason, Scandalum Magnatum, heresy, and licensing, were
forced out by public opinion. See further, Michael Lobban, ‘From Seditious
Libel to Unlawful Assembly: Peterloo and the Changing Face of Political
Crime c1770-1820’, 10 Oxford Journal of Legal Studies 307 (1990).
8. Reform Act, 1832. See, ‘Representation of the People Acts’, Encyclopaedia
Britannica, available at: https://www.britannica.com/topic/Representation-ofthe-People-Acts (last visited 14 June 2017).
9. Stephen, A History of the Criminal Law of England, vol. 2, pp. 301, 373.
According to Michael Lobban, prosecutions for unlawful assembly and other
public order offences were on the rise while prosecutions for seditious libel
were in decline. Lobban, ‘From Seditious Libel to Unlawful Assembly’,
Oxford Journal of Legal Studies, (Autumn, 1990), vol. 10, No. 3, pp. 307-352.
10. See, Stephen, Digest, p. 70. Stephen himself called misdemeanours ‘minor’
offences as distinguished from felonies. Stephen, A History of the Criminal
Law of England, vol. 2, p. 193. However, Stephen was also of the opinion
that the distinction between felonies and misdemeanours had become
meaningless in England because there were some misdemeanours which
were punishable as though they were felonies. Ibid, p. 193.
11. See, Section 103, Criminal Code (Indictable Offences) Bill, 1879; W. Shirley
Shirley, A Sketch of the Criminal Law (London: Stevens and Sons, 1880), p.
23; H.C. Trapnell, ‘The Indian Press Prosecutions’, 14 Law Quarterly Review
72 (1898).
12. See, H.N. Rishbud v. State of Delhi, AIR 1955 SC 196. See further, Sections
2(c) and 156(1), Code of Criminal Procedure, 1973.
13. Stephen, A History of the Criminal Law of England, vol. 2, p. 193. Under the
Criminal Libel Act, 1819, one of the so-called ‘Six Acts’ enacted following
the Peterloo Massacre, punishment for a second conviction attracted an
enhanced sentence for a ‘High Misdemeanour’. See, Section 4, Criminal
Libel Act, 1819, H.B. Bignold, Imperial Statutes in Force in New South
Wales (Sydney: The Law Book Company of Australasia, Ltd., 1913-14),
available at: https://babel.hathitrust.org/cgi/pt?
id=coo.31924024528857;view=1up;seq=617 (last visited 22 April 2017). In
August 1819, the radical leader Henry Hunt presided over a public meeting
attended by around 60,000 persons including women and children at St
Peter’s Fields in Manchester. The protesters wanted political reforms,
including the right to vote which, back then, was exercised by a tiny fraction
of the population. The demonstration was dispersed by cavalry, which left
many hundred injured and wounded. The massacre was referred to as the
‘Peterloo’ massacre deriving its name from ‘Waterloo’. It took place on
account of a fear among privileged elites that there would be a popular
revolution in England akin to the one which had taken place in France.
‘Peterloo Massacre’, Encyclopaedia Britannica, available at:
https://www.britannica.com/event/Peterloo-Massacre (last visited 9
September 2016); ‘Peterloo Massacre’, BBC History Features, available at:
http://www.bbc.co.uk/manchester/content/articles/2007/08/15/160807_peterloo_memorial_
(last visited 9 September 2016). The Treason Felony Act, 1848 [Section 3,
11–12 Vict. Cap. 12, ‘An Act for the better Security of the Crown and
Government of the United Kingdom’] made certain kinds of treason or
extreme forms of sedition [any speech or writing which has as its aim the
deposition of the Crown, levying war against the Crown, intimidating both or
either Houses of Parliament, stirring a foreigner to invade] punishable with a
maximum sentence of transportation for life. The Treason Felony Act, 1848,
is available at: http://www.legislation.gov.uk/ukpga/Vict/1112/12/contents/enacted (last visited 22 April 2017).
14. Stephen, History, vol. 1, p. 305. Since Fox’s Libel Act, 1792 [‘An Act to
Remove Doubts Respecting the Functions of Juries in Cases of Libel’, 32
Geo. 3, c. 60], juries in England had enjoyed vast powers in deciding the
criminality of seditious libels, and judges had been relegated to the task of
merely giving an opinion or directions to the jury on the case. See, Lobban,
‘From Seditious Libel to Unlawful Assembly’. See, Joseph R. Fisher, The
Law of the Press (London: W. Clowes, 1891), available at:
https://catalog.hathitrust.org/Record/010449962 (last visited 9 September
2016), p. 248.
15. They were T.B. Macaulay, J.M. Macleod, G.W. Anderson and F. Millett.
16. Minute by the Hon’ble T. B. Macaulay, 2 February 1835, available at:
http://www.columbia.edu/itc/mealac/pritchett/00generallinks/macaulay/txt_minute_educat
(last visited 11 February 2017).
17. 14 October 1837.
18. ‘Whoever, by words, either spoken or intended to be read, or by signs, or by
visible representations, attempts to excite feelings of disaffection to the
government established by law in the territories of the East India Company,
among any class of people who live under that government, shall be punished
with banishment for life or for any term from the territories of the East India
Company, to which fine may be added, or with simple imprisonment for a
term which may extend to three years, to which fine may be added, or with
fine. Explanation. Such disapprobation of the measures of the government as
is compatible with a disposition to render obedience to the lawful authority of
the government, and to support the lawful authority of the government
against unlawful attempts to subvert or resist that authority, is not
disaffection. Therefore the making of comments on the measures of the
government, with the intention of exciting only this species of
disapprobation, is not an offence within this Clause.’ See: A Penal Code
Prepared By The Indian Law Commissioners (Calcutta: G.H. Huttman,
1837), available at: https://babel.hathitrust.org/cgi/pt?
id=mdp.35112105126397;view=1up;seq=7 (last visited 15 August 2016).
19. In other words, sedition in India was given the maximum sentence under the
Treason Felony Act in the United Kingdom.
20. Thomas Babington Macaulay, Speeches and Poems: With the Report and
Notes on the Indian Penal Code (New York: Hurd and Houghton, 1867), vol.
2, available at: https://babel.hathitrust.org/cgi/pt?
id=uva.x000460004;view=1up;seq=1029 (last visited 30 June 2017), p. 477.
21. Norton.
22. Cochrane.
23. Hudlestone.
24. See, Copies of the Special Reports of the Indian Law Commissioners, East
India House, May 1848, Session 18 November 1847–5 September 1848, vol.
XXVII, available at: https://babel.hathitrust.org/cgi/pt?
id=hvd.32044106497787;view=1up;seq=134 (last visited 10 December
2016), p. 7, paragraph 22.
25. The bill was introduced on 2 August 1870. On 16 August 1870, it was
introduced to a Select Committee. On 30 August 1870, the report of the
Select Committee was presented to the Council. On 18 November 1870, the
final report of the Select Committee was presented to the Council. On 25
November 1870, the final report was considered by the Council and the Bill
was passed.
26. See, Abstract of the Proceedings of The Council of The Governor General of
India (Calcutta: Office of the Superintendent of Government Printing, 1906),
vol. 9, available at: https://babel.hathitrust.org/cgi/pt?
id=chi.78206105;view=1up;seq=407 (last visited 15 August 2016).
27. Abstract of the Proceedings of The Council of The Governor-General of
India (Calcutta: Office of the Superintendent of Government Printing, 1906),
vol. 9, p. 442, available at: https://babel.hathitrust.org/cgi/pt?
id=chi.78206105;view=1up;seq=407 (last visited 7 September 2016).
28. After all, the law codes of British India were prepared by followers of
Jeremy Bentham, who wished to enact similar codes back home in England.
For them, the colony of British India was a laboratory where they could test
out how a law code would function. They hoped that the Anglo-Indian codes
would later serve as models or precedents for similar law codes to be drawn
up in England itself. For example, James Fitzjames Stephen made a speech at
the Law Amendment Society in England in 1872, speaking of his experiences
with codification in British India and the lessons which might be learned
therefrom in England. James Fitzjames Stephen, ‘Codification in India and
England’, Law Magazine and Review, vol. 1, issue 11, December 1872, pp.
963–90. Stephen used the Indian Evidence Act, 1872, as a precedent for
drawing up a model Evidence Act for England. See, Abhinav Chandrachud,
‘Summaries and Secondary Evidence: Transnational Legislative Borrowing
in Colonial India’, 10 NUJS Law Review 83 (2017). Kolsky has pointed out
that codification was ‘an international endeavour in which lawmakers in
distant geographical locations routinely cited each other’s work’. Elizabeth
Kolsky, ‘Codification and the Rule of Colonial Difference’, Law and History
Review, vol. 23, Issue 3, Fall 2005, pp. 631–84, p. 632. For more on the
codification of criminal law in England, see, Lindsay Farmer,
‘Reconstructing the English Codification Debate: The Criminal Law
Commissioners, 1833-45’, Law and History Review, vol. 18, Issue No. 8,
Summer 2000, pp. 397–426; Michael Lobban, ‘How Benthamic Was The
Criminal Law Commission’, Law and History Review, vol. 18, Issue No. 2,
Summer 2000, pp. 427–32.
29. In fact, Stephen himself was involved in preparing a Draft Criminal Code for
England in 1878. See, Stephen, A History of the Criminal Law of England,
vol. 1, at p. vi.
30. On 25 November 1870, Stephen moved that the final report of the Select
Committee be taken up for consideration.
31. Abstract of the Proceedings of the Council of the Governor General of India
(Calcutta: Office of the Superintendent of Government Printing, 1899), p. 89.
32. Section 166, Code of Criminal Procedure, 1861, available at:
https://babel.hathitrust.org/cgi/pt?id=hvd.hl3x90;view=1up;seq=111 (last
visited 6 September 2016); Section 465, Code of Criminal Procedure
1872/1874, available at: https://babel.hathitrust.org/cgi/pt?
id=hvd.hl3x91;view=1up;seq=507 (last visited 6 September 2016); Section
196, Code of Criminal Procedure, 1882, available at:
https://archive.org/stream/newcodecriminal00crangoog#page/n6/mode/2up
(last visited 6 September 2016); Section 196, Code of Criminal Procedure,
1898, available at:
http://bombayhighcourt.nic.in/libweb/oldlegislation/CRIPC1898/cripc1898.html
(last visited 6 September 2016). For the schedules of the 1898 Act, see
further, http://bdlaws.minlaw.gov.bd/pdf_part.php?id=75 (last visited 10
September 2016); Criminal Procedure Code, 1898 (on file with the author,
with thanks to Uma Narayan).
33. Section 196, Code of Criminal Procedure, 1973.
34. (1891) ILR 19 Cal 35.
35. See further, Chandrachud, An Independent, Colonial Judiciary.
36. Sir Andrew Scoble moved a bill on 9 January 1891 in the legislative council
of British India to raise the age of consent for women from ten to twelve.
This was done because an eleven-year-old-girl called Phulmani Bai had died
from lacerations received as a result of sexual intercourse. See, Stanley A.
Wolpert, Tilak and Gokhale: Revolution and Reform in the Making of
Modern India (University of California Press 1962), pp. 45–49.
37. P. 36.
38. P. 44.
39. P. 47.
40. (1897) ILR 22 Bom 112.
41. See further, Chandrachud, An Independent, Colonial Judiciary.
42. See, Chandrachud, An Independent, Colonial Judiciary. See further,
Trapnell, ‘The Indian Press Prosecutions’, p. 87.
43. Pp. 134–35.
44. Pp. 136–37.
45. P. 137.
46. P. 138.
47. P. 142.
48. P. 141.
49. Trapnell, ‘The Indian Press Prosecutions’, p. 78.
50. See further, Chandrachud, An Independent, Colonial Judiciary.
51. Gangadhar Tilak v. Queen Empress, (1898) 22 ILR (Bom) 528.
52. See, Chandrachud, An Independent, Colonial Judiciary.
53. This was the Criminal Procedure Code, 1882. The provisions which are
discussed in this paragraph were substantially retained in the Code of
Criminal Procedure, 1898.
54. Section 275. See, Section 275, Code of Criminal Procedure, 1898.
55. Section 276. See, Section 276, Code of Criminal Procedure, 1898.
56. Sections 312–13. See, Section 313, Code of Criminal Procedure, 1898.
57. For more on juries in colonial India, see, Kalyani Ramnath, ‘The Colonial
Difference between Law and Fact: Notes on the Criminal Jury in India’, The
Indian Economic and Social History Review, vol. 50, Issue No. 3, (2013), pp.
341–63.
58. Trapnell, ‘The Indian Press Prosecutions’, p. 85.
59. (1897) 22 ILR Bom 152 (FB) (decided by three judges).
60. P. 156.
61. Pp. 156–57.
62. P. 158. However, the harsh sentence imposed by the sessions judge was
reduced to one year’s rigorous imprisonment for the editor, and three months’
simple imprisonment for the proprietor.
63. (1898) ILR 20 All 55 (decided by three judges).
64. P. 68.
65. On 21 December 1897, law member Chalmers introduced a motion in the
Governor-General’s Council to refer the Bill to a Select Committee. On 4
February 1898, the report of the Select Committee was then presented by
Chalmers to the Council. The Select Committee Report is in G.K. Roy, Law
Relating to Press and Sedition (Simla: Station Press, 1915), available at:
https://archive.org/stream/lawrelatingtopre00royguoft#page/14/mode/2up
(last visited 30 June 2017).
66. Abstract of the Proceedings of the Council of the Governor General of India
(Calcutta: Office of the Superintendent of Government Printing, 1898) (on
file with the author, with thanks to Sandeep Ranade), pp. 379–380.
67. See, Profile of P. Ananda Charlu, website of the Indian National Congress,
available at: http://www.pci.inc.in/organization/875-P.-Ananda-Charlu/profile
(last visited 25 December 2016).
68. See, Sarojanand Jha, ‘Kings of Raj Darbhanga’, Mithila Times, available at:
http://www.mithilatimes.com/kings-of-raj-darbhanga/ (last visited 25
December 2016).
69. Abstract of the Proceedings of the Council of the Governor General of India
(Calcutta: Office of the Superintendent of Government Printing, 1899) (on
file with the author, with thanks to Sandeep Ranade).
70. A ‘maidan’ is an open field.
71. The version which was finally passed in 1898 was mildly different from the
draft which was originally introduced by Chalmers to the Council. For
example, hate speech was taken out of the ambit of sedition. The word ‘ill
will’, which had been used by Chief Justice Petheram of the Calcutta High
Court in Bangobasi, and which was initially adopted in Chalmers’ draft, was
dropped. The maximum sentence of imprisonment was also reduced from ten
years in Chalmers’ draft, to three years as it had been in Macaulay’s draft.
72. Annie Besant v. The Advocate General of the Government of Madras, AIR
1919 PC 31; In re: Amrita Bazar Patrika Press Ltd., (1920) ILR 47 Cal 190;
Jiwan Singh v. King Emperor, AIR 1925 Lah 16; Sachin Das v. Emperor,
AIR 1936 Cal 524. In one case it was held that the natural meaning of the
words used could be disregarded if there was ‘express evidence to show that
the natural meaning was neither intended nor understood’. Thakin Ba Sein v.
Emperor, AIR 1937 Rangoon 161.
73. Arjan Singh v. Emperor, AIR 1930 Lah 153; Satyendra Nath Mazumdar v.
Emperor, AIR 1931 Cal 337a.
74. Arjun Arora v. Emperor, AIR 1937 All 295.
75. Emperor v. Bal Gangadhar Tilak, (1908) 10 Bom LR 848; Thakin Lay
Maung v. The King, AIR 1938 Rangoon 169.
76. Joy Chandra Sarkar v. Emperor, (1911) ILR 38 (Cal) 214.
77. Munshi Singh v. Emperor, AIR 1935 Oudh 347.
78. Emperor v. Maniben Liladhar Kara, AIR 1933 Bom 65; Emperor v. Narayan
Vasudev Phadke, AIR 1940 Bom 379.
79. Emperor v. Ganesh Damodar Savarkar, (1910) 12 Bom LR 105.
80. Emperor v. Bal Gangadhar Tilak, AIR 1916 Bom 9.
81. Emperor v. Bal Gangadhar Tilak, AIR 1916 Bom 9.
82. In re: The ‘Zamindar’ Newspaper, AIR 1934 Lah 219. But see, Raj Pal v.
The Crown, (1922) ILR 3 Lah 405.
83. Satya Pal v. Emperor, AIR 1930 Lah 309.
84. Sat Parkash v. Emperor, AIR 1941 Lah 165.
85. See, Emperor v. Bhaskar Balvant Bhopatkar, (1906) 8 Bom LR 421; Satya
Pal v. Emperor, AIR 1930 Lah 309.
86. Munshi Singh v. Emperor, AIR 1935 Oudh 347; Ram Saran Das v. Emperor,
AIR 1930 Lah 892.
87. See, Emperor v. Bhaskar Balvant Bhopatkar, (1906) 8 Bom LR 421;
Emperor v. Ganesh Balvant Modak, (1910) 12 Bom LR 21.
88. Annie Besant v. The Advocate General of the Government of Madras, AIR
1919 PC 31. The Privy Council preferred to defer to high court judges who, it
believed, were better placed to determine the character of the readers.
89. Emperor v. Bhaskar Balvant Bhopatkar, (1906) 8 Bom LR 421.
90. See, e.g., Emperor v. Bal Gangadhar Tilak, AIR 1916 Bom 9.
91. Emperor v. Bal Gangadhar Tilak, (1908) 10 Bom LR 848; Emperor v.
Shankar Shrikrishna Dev, (1910) 12 Bom LR 675; Emperor v. Bal
Gangadhar Tilak, AIR 1916 Bom 9; Kidar Nath v. Emperor, AIR 1929 Lah
817.
92. Bal Gangadhar Tilak v. Emperor, AIR 1916 Bom 9.
93. Reg. v. Burns (1886) 16 Cox 355.
94. Joy Chandra Sarkar v. Emperor, (1911) ILR 38 (Cal) 214. However, the
truth of the work could help mitigate the sentence. See, Santa Singh v.
Emperor, AIR 1927 Lah 710.
95. In re: Amrita Bazar Patrika Press Ltd., (1920) ILR 47 Cal 190.
96. See, Krishna Chandra Pangoria v. Emperor, AIR 1937 All 466.
97. See further, Chandrachud, An Independent, Colonial Judiciary.
98. See, (1908) SCC OnLine Bom 48 (paragraphs 114-125).
99. Section 56, IPC. Based on Act XXIV of 1855, available at:
http://lawmin.nic.in/legislative/textofcentralacts/1855.pdf (last visited 7
September 2016). See further: Act XXVII of 1870, available at:
https://babel.hathitrust.org/cgi/pt?id=hvd.hl466i;view=1up;seq=690 (last
visited 7 September 2016). However, under the Criminal Libel Act, 1819, a
second conviction for seditious libel in England entailed a maximum
sentence of seven years’ transportation, and this was Tilak’s second
conviction.
100. For more on Broomfield, see Chandrachud, An Independent, Colonial
Judiciary.
101. See, Young India, 23 March 1922, Mahatma Gandhi, Young India, 19191922 (Madras: S. Ganesan, 1924), p. 1053, available at:
https://archive.org/details/in.ernet.dli.2015.211536 (last visited 14 June
2017).
102. Available at: https://babel.hathitrust.org/cgi/pt?
id=mdp.39015076724304;view=1up;seq=262 (last visited 5 September
2016).
103. 9 February 1922, Young India, available at:
https://babel.hathitrust.org/cgi/pt?
id=mdp.39015069951682;view=1up;seq=90 (last visited 5 September
2016).
104. Niharendu Dutt Majumdar v. King Emperor, (1942) FCR 38.
105. (1868) 11 Cox. C.C. 44, p. 45.
106. P. 49.
107. P. 50.
108. P. 51.
109. (1947) 60 Law Weekly 462.
110. Pp. 464–65.
111. P. 466.
112. Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955 (decided by five
judges). Followed in Balwant Singh v. State of Punjab, (1995) 3 SCC 214
(paragraphs 7–8).
113. Section 73(a), Coroners and Justice Act, 2009. One of the last cases in
England involving the offence of seditious libel was Regina v. Chief
Metropolitan Stipendiary Magistrate, Ex parte Choudhury, (1991) 1 Q.B.
429. The court in this case refused to issue a summons against the author
and publisher of the book ‘Satanic Verses’, Salman Rushdie and Viking
Penguin.
114. See, June Eichbaum, ‘The Antagonism Between Freedom of Speech and
Seditious Libel’, Hastings Constitutional Law Quarterly, vol. 5, Issues 1 &
2 (Winter 1978), pp. 445–60. See, ‘U.S. Congress Passes Sedition Act’,
History Channel, available at: http://www.history.com/this-day-in-history/us-congress-passes-sedition-act (last visited 11 July 2017).
115. The Code of Criminal Procedure 1898 made sedition a non-cognizable
offence. The Law Commission, in its 41st Report published in September
1969, recommended that all offences against the State specified in Chapter
VI of the Indian Penal Code, except sedition and another offence, should be
made cognizable. Paragraph 47.4, Law Commission of India, 41st Report,
September 1969, vol. 1, Government of India, Ministry of Law, available at:
http://lawcommissionofindia.nic.in/1-50/Report41.pdf (last visited 19
November 2016) (Chairman, K.V.K. Sundaram). Thus, Bill No. XLI of
1970 introduced in the Rajya Sabha for enacting the Code of Criminal
Procedure, 1970, still made Section 124-A a non-cognizable offence.
However, the Code of Criminal Procedure, 1973 (which was enacted in
January 1974) made sedition a cognizable offence for the first time in
India’s history.
Chapter 3: ‘He Who Destroys a Good Book, Kills Reason Itself’
1. At the time, he was known as Lord Mornington. See, ‘Mysore Wars’,
Encyclopaedia Britannica, available at:
https://www.britannica.com/topic/Mysore-Wars (last visited 27 December
2016).
2. ‘No paper to be published (at all) until it shall have been previously inspected
by the secretary to the government, or by a person authorised by him for the
purpose, in order that nothing may be published tending to convey
information to the enemy, or to excite alarm and commotion within our own
dominions.’ Clause 4. See, letter from Wellesley (Earl of Mornington) to Sir
Alured Clarke, dated 26 April 1799, in Robert Rouiere Pearce, Memoirs of the
Most Noble Richard Marquess Wellesley (London: Richard Bentley, 1847),
2nd Edition, vol. 2, p. 282, available at: https://babel.hathitrust.org/cgi/pt?
id=umn.319510024129316;view=1up;seq=326 (last visited 26 December
2016). The regulations were imposed on 13 May 1799. Ibid, p. 288. See
further, Sir John Malcolm, The Political History of India (London: J. Murray,
1826), vol. 2, p. 295, available at:
https://catalog.hathitrust.org/Record/001266403 (last visited 26 December
2016); The Monthly Review, November 1806, p. 322, available at:
https://catalog.hathitrust.org/Record/000552933 (last visited 26 December
2016).
3. See, John Keay, India: A History (New York: Grove Press, 2000), pp. 393–
402.
4. Rules were enacted for guiding the secretary to the government. The secretary
was to pay special attention towards preventing the publication of the
following matters:
‘1. All observations on the state of public credit, or the revenues, or the
finances, of the Company. 2. All observations respecting the embarkation of
troops, stores, or specie; or respecting any naval or military preparations
whatever. 3. All intelligence respecting the destination of any ships, or the
expectation of any, whether belonging to the Company or to individuals. 4.
All observations with respect to the conduct of government, or any of its
officers, civil or military, marine, commercial, or judicial. 5. All private
scandal, or libels on individuals. 6. All statements with regard to the
probability of war or peace between the Company and any of the native
powers. 7. All observations tending to convey information to an enemy, or to
excite alarm or commotion within the Company’s territories. 8. The
republication of such passages from the European newspapers, as may tend to
affect the influence and credit of the British power with the native states.’
Cobbett’s Political Register v. 9 (1806), available at:
https://babel.hathitrust.org/cgi/pt?id=uc1.b3494131;view=1up;seq=217 (last
visited 26 December 2016), pp. 374–75.
5. Pearce, Memoirs, p. 281.
6. Wellesley instructed the Bengal government to enforce the regulations in his
letter dated 26 April 1799. Tipu Sultan died on 4 May 1799. The regulations
were brought into force on 13 May 1799. See further, S.M. Mitra, AngloIndian Studies (London: Longmans, Green & Co., 1913), p. 166.
7. Clause 3.
8. Clause 5.
9. The regulations were repealed on 28 August 1818. Pearce, Memoirs, p. 288.
See further, Arpan Banerjee, ‘Political Censorship and Indian
Cinematographic Laws: A Functionalist-Liberal Analysis’, Drexel Law
Review, vol. 2, pp. 557–626 (2009–10), p. 583, citing Margarita Barns, The
Indian Press (1940).
10. The regulations were: ‘First: Animadversions on the measures and
proceedings of the Honourable Court of Directors or other public authorities
in England connected with the Government of India; or disquisitions on
political transactions of the local administration; or offensive remarks
levelled at the public conduct of the members of the Council, or the judges of
the Supreme Court, or of the Lord Bishop of Calcutta. Second: Discussions
having a tendency to create alarm or suspicion among the native population
of any intended interference with their religious opinions or observances.
Third: The republication from English or other newspapers of passages
coming under any of the above heads, or otherwise calculated to affect the
British power or reputation in India. Fourth: Private scandal and personal
remarks on individuals tending to excite dissension in society.’ Alexander
Andrews, The History of British Journalism (London: R. Bentley, 1859), vol.
2, p. 154, available at: https://catalog.hathitrust.org/Record/000915324 (last
visited 26 December 2016).
11. J.R. Mudholkar, Press Law, Tagore Law Lectures (Calcutta: Eastern Law
House, 1975), p. 15.
12. See, Hamburger, ‘The Development of the Law of Seditious Libel and the
Control of the Press’; Isaac M. Morehouse, ‘Areopagitica: Milton’s Influence
on Classical and Modern Political and Economic Thought’, Libertarian
Papers, 1, 38 (2009).
13. It was so named in order to distinguish it from the ‘Short Parliament’ which
had been in session between April–May 1640.
14. See, Vincent Blasi, ‘Milton’s Areopagitica and the Modern First
Amendment’, Yale Law School, available at:
http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?
article=1007&context=ylsop_papers (last visited 14 August 2016); ‘Court of
Star Chamber’, Encyclopaedia Britannica, available at:
https://www.britannica.com/topic/Court-of-Star-Chamber (last visited 14
August 2016); Jane H. Ohlmeyer, ‘English Civil Wars’, Encyclopaedia
Britannica, available at: https://www.britannica.com/event/English-CivilWars (last visited 14 August 2016).
15. Areopagitica, Encyclopaedia Britannica, available at:
https://www.britannica.com/topic/Areopagitica (last visited 14 August 2016).
16. The full text of Areopagitica is available at the following link:
https://www.dartmouth.edu/~milton/reading_room/areopagitica/text.html
(last visited 14 April 2017). I have modernized the following spellings which
Milton used: consider’d, reform’d, civill, attain’d, looke, hee, Booke and it
selfe.
17. Sir James Fitzjames Stephen, A History of the Criminal Law of England
(London: Macmillan and Co., 1883), available at:
https://babel.hathitrust.org/cgi/pt?id=hvd.hl57k3;view=1up;seq=325 (last
visited 14 August 2016), pp. 309–10.
18. Enacted under the Defence of India Act, 1939.
19. It had no short title. Its long title was as follows: ‘A Rule, Ordinance and
Regulation, for the good order and civil government of the Settlement of Fort
William in Bengal, made and passed by the Honourable the GovernorGeneral in Council of and for the Presidency of Fort William in Bengal, the
14th day of March, in the year of our Lord 1823’. See, The Oriental Herald
and Colonial Review (London: J.M. Richardson, 1824) (available on Google
Books). A similar law was enacted in Bombay in 1829, called ‘A Regulation
for restricting the establishment of Printing Presses and the circulation of
Printed Books and Papers’, Accounts and Papers Relating to East India
Company and East Indies (1829) (available on Google Books).
20. The Supreme Court of Calcutta was not a Supreme Court in the sense that
the Supreme Court of India today is. In other words, it was not the highest
appellate court in India. There were two other Supreme Courts in British
India—the Supreme Courts of Bombay and Madras. These Supreme Courts
eventually merged into the high courts of 1862.
21. Likewise, Section 36 of the Regulating Act, 1773, allowed any person in
India to challenge the laws (‘rules, ordinances and regulations’) enacted by
the governor-general, before the Privy Council, which was, essentially, akin
to judicial review of legislative action (though the governor-general’s laws
might have been considered a species of delegated legislation).
22. The memorial was submitted on 31 March 1823.
23. Sophia Dobson Collet (ed.), The Life and Letters of Raja Rammohun Roy
2nd edition, 1914, available at:
https://archive.org/stream/lifelettersofraj00collrich (last visited 14 August
2016).
24. The Monthly Repository of Theology and General Literature, January to
December 1824 (Hackney: Sherwood, Jones and Co., 1824), available on
Google Books.
25. Act XI of 1835. See, William Theobald, The Legislative Acts of the
Governor General of India in Council (Calcutta: Thacker, Spink & Co.,
1868), available at: https://catalog.hathitrust.org/Record/010469468 (last
visited 1 July 2017).
26. Act XV of 1857. This was a temporary law, which was to remain in force
only for a period of one year.
27. Section 10, Act XIX of 1876. For the text of the law, see G.K. Roy, Law
Relating to Press and Sedition (Simla: Station Press, 1915).
28. A ‘news-sheet’ was defined to mean ‘any document other than a newspaper
containing public news or comments on public news’. A newspaper was
defined as a ‘periodical work containing public news or comments on public
news’.
29. Act IX of 1878. See further, Act XVI of 1878.
30. Some of the statutes seen above did not have short titles either. For example,
the 1823 statute of John Adam did not have a short title either. However,
many statutes at this time did, in fact, have short titles, e.g. the Indian Penal
Code, Indian Contract Act, Indian Evidence Act, etc.
31. See further, Husain B. Tyabji, Badruddin Tyabji: A Biography (Bombay
1952), p. 126; Ganesh L. Chandavarkar, A Wrestling Soul: Story of the Life of
Sir Narayan Chandavarkar (Popular Book Depot 1955), p. 45.
32. Section 2 defined a ‘newspaper’ as a periodical work etc. ‘printed wholly or
partially in any oriental language’. Thus, even a bilingual newspaper, printed
partly in English and partly in an Indian language, fell within its ambit.
33. Section 3. This power could be exercised after obtaining the prior sanction of
the local government.
34. Section 8.
35. Sections 13 and 16.
36. Section 2, Seditious Publications Act, 1882 (Act III of 1882). See further,
Chandrachud, An Independent, Colonial Judiciary.
37. Interestingly, G.K. Gokhale was among some who wrote a minute of dissent
protesting against the enactment of this law. Gokhale believed that some of
its provisions were ‘far too drastic’, and that the law should have been
enacted for a limited time only.
38. Section 3.
39. Section 4.
40. Section 17.
41. Act No. XIV of 1922, available at:
http://lawmin.nic.in/legislative/textofcentralacts/1922.pdf (last visited 26
December 2016).
42. Section 3.
43. Section 10.
44. Section 3. A hearing was required to be given before making the order
absolute.
45. Section 5.
46. Act No. XIV of 1922, available at:
http://lawmin.nic.in/legislative/textofcentralacts/1922.pdf (last visited 26
December 2016).
47. See, e.g., Section 3, ‘A Regulation for Restricting the Establishment of
Printing Presses and the Circulation of Printed Books and Papers’, Accounts
and Papers Relating to East India Company and East Indies (1829)
(available on Google Books); Section 7, Act XV of 1857.
48. Abstract of the Proceedings of the Council of the Governor General of India
(Calcutta: Office of the Superintendent of Government Printing, 1877),
available at: https://babel.hathitrust.org/cgi/pt?
id=chi.78206403;view=1up;seq=96 (last visited 22 July 2017), at p. 74;
Aravind Ganachari, ‘Combating Terror of Law in Colonial India: The Law of
Sedition and the Nationalist Response’ in M. Vardalos et al (eds.), Engaging
Terror: A Critical and Interdisciplinary Approach (Boca Raton, Florida:
Brown Walker Press, 2009), p. 93 (available on Google Books). Ganachari
believes that a Marathi play, Narayan Bapuji Kanitkar’s Malharraoche
Natak, was also responsible for the law.
49. Section 3.
50. See, e.g., Section 12, Indian Press Act, 1910; Section 16, Indian Press
(Emergency Powers) Act, 1931.
51. Section 2.
52. Section 4(3).
53. Section 8.
54. Section 9.
55. Section 2(2)(vi).
56. Section 8.
57. Section 10.
58. Rule 38(1)(a).
59. Rule 38(5).
60. Rule 34(6)(e).
61. Clauses 1 and 2. Pearce, Memoirs, p. 282.
62. ‘A Rule, Ordinance and Regulation for Preventing the Mischief Arising from
the Printing and Publishing Newspapers, and Periodical and other Books and
Papers by Persons Unknown.’ The Oriental Herald and Journal of General
Literature (London: Longman, Rees, et al, 1826) (available on Google
Books).
63. Section 1.
64. Section 2.
65. Section 7.
66. Section 14.
67. Section 15. This was not akin to a licence. The certificate only evidenced the
fact that the notice had been received.
68. Section 2.
69. Section 7.
70. Section 8.
71. Under Section 2, Metcalfe’s 1835 law was repealed.
72. Section 3.
73. Section 5.
74. Section 9. Under Section 18, the government was to maintain a catalogue of
books so received.
Chapter 4: Munshi’s Coup in the Constituent Assembly
1. See further, Granville Austin, The Indian Constitution: Cornerstone of a
Nation (New Delhi: Oxford University Press, 1966) p. 78.
2. It was set up by the Constituent Assembly on 24 January 1947. B. Shiva Rao
(ed.), The Framing of India’s Constitution: Select Documents (Delhi:
Universal Law Publishing Co. Pvt. Ltd., 2012 reprint) (hereinafter, ‘BSR’),
vol. 2, p. 56.
3. It was set up on 27 February 1947. BSR, vol. 2, pp. 64–65.
4. BSR, vol. 1, p. 5.
5. BSR, vol. 1, p. 43.
6. BSR, vol. 1, p. 58.
7. Article 9, draft prepared by K.T. Shah dated 23 December 1946, BSR, vol. 2,
p. 49.
8. Article 5(1)(a), draft prepared by K.M. Munshi dated 17 March 1947, BSR,
vol. 2, p. 75. Munshi was a Bombay advocate who had served as home
minister of Bombay State as part of the Congress government there in the late
1930s. See, K.M. Munshi, Bombay High Court: Half a Century of
Reminiscences (Bombay: Bharatiya Vidya Bhavan 1963), p. 32.
9. Article 3, draft prepared by Harnam Singh dated 18 March 1947, BSR, vol. 2,
p. 81.
10. Article II-I, Clause 12, draft prepared by Dr B.R. Ambedkar dated 24 March
1947, BSR, vol. 2, p. 87.
11. BSR, vol. 2, p. 121.
12. Debates of the Constituent Assembly of India (hereinafter, ‘CAD’), vol. 7, p.
716, 1 December 1948.
13. These were Damodar Swarup Seth, CAD, vol. 7, p. 712 and Professor
Shibban Lal Saksena, CAD, vol. 7, p. 763.
14. CAD, vol. 7, p. 780.
15. BSR, vol. 4, p. 38. Interestingly, Rau had travelled to the US, UK, Ireland
and Canada, to discuss provisions of the draft Constitution with jurists in
those countries. However, Rau’s notes suggest that the right to free speech
was not a substantial topic of discussion.
16. Thus, Munshi’s draft Article 5 provided as follows: ‘(1) Every citizen within
the limits of the law of the Union and in accordance therewith has: (a) the
right of free expression of opinion;(2) The press shall be free subject to such
restrictions imposed by the law of the Union as in its opinion may be
necessary in the interest of public order or morality.’ BSR, vol. 2, p. 75.
17. This was also true of the other rights to freedom. See, Austin, The Indian
Constitution, p. 88. We do know, however, that K.T. Shah was opposed to the
right to assemble peaceably and without arms being given only to citizens.
18. BSR, vol. 2, p. 75.
19. BSR, vol. 2, p. 75.
20. BSR, vol. 2, p. 87.
21. Ambedkar very categorically stated in his notes on his draft that the
fundamental rights in his draft were ‘borrowed from the constitutions of
various countries particularly from those wherein the conditions are more or
less analogous to those existing in India.’ BSR, vol. 2, p. 97.
22. Article 4(iv). It provided as follows: ‘The right of free expression of opinion,
as well as the right to assemble peaceably and without arms, and to form
associations or unions, is hereby guaranteed for purposes not opposed to
public order or morality.’ BSR, vol. 1, p. 59.
23. Article 40(6)(1)(i).
24. Minutes of the meeting of the Sub-Committee dated 25 March 1947, BSR,
vol. 2, p. 120.
25. CAD, vol. 7, p. 714.
26. CAD, vol. 7, p. 775.
27. CAD, vol. 7, p. 40.
28. Before making this speech, Ambedkar had probably gone through an article
written by B.N. Rau in The Hindu on 15 August 1948, where Rau had
essentially said the same thing, and quoted from the US case of Gitlow v.
New York. See, Sir Benegal Rau, India’s Constitution in the Making (Madras:
Vasanta Press, 1963), pp. 391–92.
29. CAD, vol. 7, p. 763.
30. CAD, vol. 7, p. 769.
31. ‘Satyam Bruyat Priyam Bruyat Na Bruyat Satyamapriyam’.
32. CAD, vol. 7, p. 771. See further, speech delivered by Deshbandhu Gupta,
CAD, vol. 7, p. 776–77.
33. See, minutes of the Advisory Committee dated 21 April 1947, BSR, vol. 2,
p. 288.
34. However, the provisions of Sections 153A and 295A of the Indian Penal
Code make promoting enmity or hatred between different groups or insulting
the religion of a group by outraging its religious beliefs punishable. These
provisions were later protected by the ‘public order’ exception to free speech,
enacted by the First Amendment in 1951.
35. William Blackstone, Commentaries on the laws of England (Chicago:
American Bar Association, 2009 reprint), p. 374.
36. K.T. Shah’s comments on the draft report dated 10 April 1947, BSR, vol. 2,
p. 153, p. 157.
37. Sir Alladi was a prominent Madras advocate, who had served as Advocate
General of Madras between 1928–44. See, V. Sudhish Pai, Legends in Law:
Our Great Forebears (New Delhi: Universal Law Publishing Co. Pvt. Ltd.,
2013) pp. 201–17.
38. BSR, vol. 2, p. 143.
39. See, Ramachandra Guha, India After Gandhi: The History of the World’s
Largest Democracy (London: Pan Macmillan Ltd., 2007), pp. 8–9.
40. Guha, India After Gandhi, pp. 11–12.
41. Sarvepalli Gopal, Jawaharlal Nehru: A Biography (New Delhi: Oxford
University Press, 1979), vol. 2, p. 13.
42. BSR, vol. 2, pp. 157–58.
43. Nehru to Patel, letter dated 30 September 1947, Durga Das (ed.), Sardar
Patel’s Correspondence: 1945-1950 (Ahmedabad: Navajivan Trust, 1972),
vol. 4, p. 398.
44. Nehru to Patel, letter dated 6 October 1947, ibid, p. 399.
45. Patel to Nehru, letter dated 11 October 1947, ibid, p. 401.
46. Desai to Patel, letter dated 8 October 1947, ibid, pp. 416–17.
47. Patel to Desai, letter dated 16 October 1947, ibid, pp. 417–18.
48. The Bill was passed as the Press (Special Powers) Act, 1947, available at:
http://lawmin.nic.in/legislative/textofcentralacts/1947.pdf (last visited 23
May 2017). It was to be in force until 31 December 1949.
49. P.N. Chopra (ed.), The Collected Works of Sardar Vallabhbhai Patel (New
Delhi: Konark Publishers Pvt. Ltd., 2015), vol. 12, p. 238.
50. BSR, vol. 2, p. 49.
51. BSR, vol. 2, p. 158.
52. Minutes of the meeting of the Sub-Committee dated 17 April 1947, BSR,
vol. 2, p. 201.
53. Accepting a slight modification in terminology suggested by K.M. Panikkar.
54. BSR, vol. 2, p. 232.
55. BSR, vol. 2, p. 231.
56. BSR, vol. 2, p. 232.
57. Munshi, Bombay High Court, p. 34. However, according to Munshi, the
order was withdrawn within three to four days, and the order had ceased to
be in force when the matter reached the Bombay High Court.
58. See further, Austin, The Indian Constitution, p. 90.
59. BSR, vol. 2, p. 164.
60. See, BSR, vol. 2, pp. 167–68.
61. Article 358 provided that during the operation of a proclamation of
Emergency, nothing in Article 19 was to restrict the power of the State to
make any law or to take any executive action which the State would have
been competent to make but for Article 19. Under Article 359, during the
operation of a proclamation of Emergency, the President could by order
declare that the right to move a court for enforcement of the rights conferred
by Part III of the Constitution (i.e., the fundamental rights), would remain
suspended either while the Emergency was in force or for a shorter period.
62. All the rights in India’s bill of rights contained in Part III of the Constitution
are called ‘fundamental rights’. By contrast, only some hierarchically
superior rights in the US are considered ‘fundamental’.
63. CAD, vol. 7, p. 731.
64. III and IV Federal Court Reports.
65. LR 74 IA 89.
66. See, speeches by Seth Govind Das, CAD, vol. 7, pp. 750–51, Pandit Thakur
Das Bhargava, CAD, vol. 7, p. 735; and Rohini Kumar Chaudhari, p. 762.
67. See, Gopal, Jawaharlal Nehru, vol. 2, pp. 18–42. See further, V.P. Menon,
The Story of the Integration of the Indian States (Bombay: Orient Longmans,
1956); Guha, India After Gandhi, pp. 35–58.
68. Sections 203 and 220, Government of India Act, 1935. The text of this
statute is available at:
http://lawmin.nic.in/legislative/textofcentralacts/GOI%20act%201935.pdf
(last visited 8 November 2016). A ‘court of record’ is a court whose records
are permanently maintained and have evidentiary value. A ‘court of record’
inherently has the power to punish contempts of court. See, Supreme Court
Bar Association v. Union of India, (1998) 4 SCC 409.
69. Articles 91 and 164 of the October 1947 Constitution, and Articles 108 and
192 of the February 1948 Constitution. Both drafts are available in BSR, vol.
3.
70. CAD, vol. VIII, p. 379.
71. CAD, vol. VIII, p. 657.
72. CAD, vol. XI, p. 394.
73. Additionally, Pandit Thakur Das Bhargava argued that contempt could be
committed not merely by speech but by conduct as well, and so the words
‘contempt of court’ did not deserve a place as an enumerated exception to
free speech. CAD, vol. XI, p. 396.
74. CAD, vol. XI, p. 398.
75. CAD, vol. XI, p. 400.
76. CAD, vol. XI, p. 401.
77. CAD, vol. XI, p. 399.
78. CAD, vol. 7, pp. 735/739/787. On that occasion, Bhargava had also wanted
to insert the word ‘reasonable’ into the exceptions to the right to free speech,
but his amendment was negatived.
79. CAD, vol. XI, p. 395.
80. CAD, vol. XI, p. 400.
81. Austin, The Indian Constitution, p. 93.
82. BSR, vol. 4, p. 755.
83. Austin, The Indian Constitution, p. 87.
84. Ambedkar himself was a product of Columbia University.
Chapter 5: Prasad and Mookerjee Trigger an Amendment
1. See further, Granville Austin, Working a Democratic Constitution: A History
of the Indian Experience (New Delhi: Oxford University Press, 1999), p. 42
(n. 13). For more on Mookerjee, see, Guha, India After Gandhi, pp. 250–54.
2. For more on the first amendment, see the work of Arudra Burra, e.g.,
‘Arguments from Colonial Continuity: The Constitution (First Amendment)
Act, 1951’, available at SSRN: https://papers.ssrn.com/sol3/papers.cfm?
abstract_id=2052659 (last visited 20 December 2016) (cited with permission
from the author); ‘What Self-styled Nationalists Could Learn from the Hindu
Right’s Own Past Record on Free Speech’, Scroll.in, available at:
http://scroll.in/article/802327/what-self-styled-nationalists-could-learn-fromthe-hindu-rights-own-past-record-on-free-speech (last visited 9 September
2016).
3. A few provisions of the Constitution came into force at once on 26 November
1949. The rest came into force on 26 January 1950. See, Article 394, which
dealt with the commencement of the Constitution.
4. In Shaila Bala Devi’s case (infra), the restriction was actually imposed before
the Constitution came into force.
5. It is remarkable that both cases were finally decided within such a short time
of the cases being filed. The impugned orders in these cases were of March
1950, while the judgments were delivered in May 1950.
6. AIR 1950 SC 124 (all paragraph number references contained herein are from
the SCC Online version).
7. AIR 1950 SC 129.
8. C.K. Mathew, ‘First Amendment to Constitution of India’, vol. 51, Issue No.
9, EPW, 7 May 2016, available at:
http://www.epw.in/journal/2016/19/commentary/first-amendmentconstitution-india.html (last visited 20 May 2016).
9. Justice Fazl Ali invoked his judgment in Brij Bhushan, decided on the same
day, in support of his dissent.
10. Paragraph 5.
11. Paragraph 10.
12. For more on prior restraints, see, Sahara India Real Estate Corporation Ltd.
v. SEBI, (2012) 10 SCC 603 (paragraphs 26 and 29) (decided by five judges).
13. Paragraph 12.
14. Paragraph 13.
15. See further, Srinivasa Bhat v. State of Madras, AIR 1951 Mad 70: (1951) 64
LW 82: (1950) SCC OnLine Mad 304.
16. Amar Nath Bali v. The State, AIR 1951 Punj 18. Paragraph 4.
17. Patrick French, ‘Essential Politician: The Importance of Being Arun Jaitley’,
Hindustan Times, available at: http://www.hindustantimes.com/india/aneyewitness-to-history-we-were-a-partition-family-says-arun-jaitley/storyylaSOHqv0z7ctw0d5EWpbN.html (last visited 30 May 2016).
18. Bharati Press v. Chief Secretary, AIR 1951 Pat 12:(1950) ILR 30 Pat 31:
(1950) SCC Online Pat 82, p 39. All page number references are from the
ILR/SCC Online version.
19. Page 40.
20. Prasad eventually became the chief justice of the Rajasthan High Court in
1959.
21. Page 58.
22. Guha, India After Gandhi, p. 320.
23. Master Tara Singh Gopi Chand v. State, AIR 1951 Punj 27.
24. Guha, India After Gandhi, p. 174.
25. The text of the Nehru-Liaquat Pact, dated 8 April 1950, is available at:
http://www.commonlii.org/in/other/treaties/INTSer/1950/9.html (last visited
21 July 2016). Interestingly, Clause (C)(7) of the Pact also required both
countries to curb hate speech, i.e., to ‘[t]ake prompt and effective steps to
prevent the dissemination of news and mischievous opinion calculated to
rouse communal passion by press or radio or by any individual or
organisation.’
26. Nehru to Patel, letter dated 26 March 1950. Durga Das (ed.), Sardar Patel’s
Correspondence, vol. 10, p. 13.
27. Patel to Nehru, letter dated 28 March 1950, ibid, p. 20.
28. Mookerjee to Nehru, letter dated 6 April 1950, ibid, pp. 130–31; Syama
Prasad Mookerjee papers (‘Mookerjee papers’), Nehru Memorial Museum
and Library, New Delhi (‘NMML’), (V–VII), File 8.
29. Nehru to Mookerjee, letter dated 10 April 1950. Mookerjee papers, NMML,
(V–VII), File 8. A few weeks later, in April 1950, the US Commission on
Human Rights met at Lake Success in New York to discuss a draft
international covenant on human rights. India’s delegate, one Mrs Mehta,
said that ‘India as well as other States had suffered from abuse of the right of
expression and felt strongly that the covenant should contain some provision
to prevent the spreading of deliberately false or distorted reports which might
undermine friendly relations between peoples and States.’ 6th Session,
Commission on Human Rights, 24 April 1950, available at:
http://repository.un.org/bitstream/handle/11176/282424/E_CN.4_SR.167EN.pdf?sequence=1&isAllowed=y (last visited 16 February 2017).
30. ‘Press a Necessary Part of Democracy: Sardar Patel’, Hindustan Times, 13
May 1950; P.N. Chopra and Prabha Chopra (eds.), The Collected Works of
Sardar Vallabhbhai Patel (New Delhi: Konark Publishers Pvt. Ltd., 2015),
vol. 15, pp. 137–38.
31. Speech in Parliament dated 19 April 1950, Mookerjee papers, NMML.
32. Address by Syama Prasad Mookerjee delivered at a public reception held in
Calcutta on 21 May 1950; Speech by Syama Prasad Mookerjee at the
Calcutta University Institute on 11 June 1950. Mookerjee papers, NMML.
33. Durga Das (ed.), Sardar Patel’s Correspondence, vol. 10, p. 139.
34. Nehru to Patel, letter dated 29 June 1950, ibid, p. 356.
35. See further, Austin, Working a Democratic Constitution, p. 42.
36. Ibid.
37. Durga Das (ed.), Sardar Patel’s Correspondence 1945-50 (Ahmedabad:
Navajivan Publishing House, 1974) vol. X, pp. 356–57. Interestingly, Patel
had also been irked by the fact that the Hindu Mahasabha (whose president
was Mookerjee) was raising funds for the legal defence of those accused of
assassinating Mahatma Gandhi. See, Chopra and Chopra (eds.), Collected
Works, vol. 13, pp. 137, 170, 187. However, in a letter to Patel, Mookerjee
had denied that the Hindu Mahasabha was raising funds for their defence.
Letter from Mookerjee to Patel dated 16 June 1948, Durga Das (ed.), ibid,
vol. 6, pp. 82–83. Patel, however, was not convinced. Letter from Patel to
Mookerjee dated 10 September 1948, Durga Das (ed.), ibid, vol. 6, pp. 86–
87.
38. Austin, Working a Democratic Constitution, pp. 42–45.
39. Speech dated 7 August 1950. Syama Prasad Mookerjee, ‘The Bengal
Situation: Text of Speech’ (Delhi: All India Refugee Association, 1950), pp.
15–17. See further, Tathagata Roy, The Life and Times of Dr Syama Prasad
Mookerjee: A Complete Biography (Kindle Edition: Ocean Books Pvt. Ltd.,
2008), p. 5502.
40. Speech delivered by Syama Prasad Mookerjee at Deshbandhu Park, Calcutta,
on 3 September 1950. Mookerjee papers, NMML. See further, Roy, ibid, p.
5523.
41. Extract from the Organiser dated 2 October 1950. Mookerjee papers,
NMML.
42. Presidential speech by Syama Prasad Mookerjee at the Annual Function of
the RSS at New Delhi on 3 December 1950. Mookerjee papers, NMML.
43. Speech dated 6 December 1950. Mookerjee papers, NMML.
44. Speech dated 28 March 1951. Roy, The Life and Times of Dr Syama Prasad
Mookerjee, p. 6193.
45. Speech dated 21 October 1951. Roy, ibid, p. 5897.
46. The proposal was to replace the existing Article 19(2) with the following
clause: ‘Nothing in sub-clause (a) of clause (1) shall affect the operation of
any existing law in so far as it imposes, or prevent the State from making any
law imposing, in the interests of the security of the State, friendly relations
with foreign States, public order, decency or morality, restrictions on the
exercise of the right conferred by the said sub-clause, and, in particular,
nothing in the said sub-clause 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,
contempt of court, defamation or incitement to an offence.’
47. See, speech of Syama Prasad Mookerjee, Parliamentary Debates, 1951,
Third Session (Second Part) (15 May 1951 to 6 June 1951) (hereinafter,
‘PD’), vol. 12, column 8839.
48. PD, vol. 12, column 8828.
49. PD, vol. 12, column 9075.
50. PD, vol. 12, column 9630.
51. That is, Nehru.
52. PD, vol. 12, columns 8845–46.
53. Bindra to Mookerjee, letter dated 20 May 1951. Mookerjee papers, NMML.
54. See, speech of B.R. Ambedkar, PD, vol. 12, column 9016.
55. Rule 25 of the Defence of India (Consolidation) Rules, 1915, enacted under
the Defence of India (Criminal Law Amendment) Act, 1915, made it an
offence to engage in speech ‘with intent to prejudice or which is likely to
prejudice His Majesty’s relations with foreign powers’. Further, Wellesley’s
1799 regulations on free speech required the government to consider
prohibiting ‘All statements with regard to the probability of war or peace
between the Company and any of the native powers.’ Cobbett’s Political
Register, v. 9 (1806), available at: https://babel.hathitrust.org/cgi/pt?
id=uc1.b3494131;view=1up;seq=218 (last visited 26 December 2016), pp.
374–75. The Foreign Relations Act, 1932, also dealt with speech on relations
with foreign powers.
56. PD, vol. 12, column 8828.
57. PD, vol. 12, column 9077.
58. Sardar Patel passed away on 15 December 1950, prior to the enactment of
the First Amendment. Durga Das (ed.), Sardar Patel’s Correspondence, vol.
10, p. 472.
59. PD, vol. 12, column 9761.
60. PD, vol. 12, column 8841.
61. PD, vol. 12, column 8992.
62. Ibid.
63. PD, vol. 12, column 9628.
64. PD, vol. 12, column 9629.
65. Nehru to Patel, letter dated 20 February 1950, Durga Das (ed.), Sardar
Patel’s Correspondence, vol. 10, p. 5.
66. PD, vol. 12, column 8823.
67. PD, vol. 12, column 9797.
68. Ibid.
69. PD, vol. 12, column 9798.
70. See, Chopra and Chopra (eds.), Collected Works, vol. 15, pp. 121, 131.
71. Letter from Sardar Patel to Kanjibhai Kapadia (editor, Swadesh), 23 April
1950, ibid., p. 121.
72. Letter from Sardar Patel to Achyut Patwardhan (editor, Janata), 27 April
1950, ibid., p. 124.
73. Letter from Sardar Patel to Kishorelalbhai Mashruwala, 28 April 1950, ibid.,
p. 130.
74. ‘Press a Necessary Part of Democracy: Sardar Patel’, Hindustan Times, 13
May 1950, ibid., p. 137.
75. Letter from Nehru to the editor of the Janata, 25 April 1950, ibid., p. 131.
76. Enclosed in a letter from Nehru to Patel, dated 25 April 1950. Durga Das
(ed.), Sardar Patel’s Correspondence, vol. 10, pp. 147–48.
77. See, Gyan Prakash, Mumbai Fables (Noida: Harper Collins Publishers India,
2011), pp. 161–71.
78. Blitz, 26 May 1951, p. 4.
79. See, ‘Freedom is in Peril’, Blitz, 2 June 1951, p. 1.
80. As Nehru later wrote in a letter to Justice Vivian Bose, ‘Blitz is one of the
periodicals which have developed a habit of making irresponsible statements
and false allegations.’ Nehru to Bose, letter dated 29 July 1958. Gopal,
Selected Works of Jawaharlal Nehru, vol. 43, p. 258.
81. PD, vol. 12, column 9692.
82. PD, vol. 12, column 9717.
83. Austin observed that while the Select Committee Report in support of the
amendment itself was merely two pages long, the dissenting minutes annexed
to it occupied sixteen pages. Austin, Working a Democratic Constitution, p.
48.
84. Syama Prasad Mookerjee, dissenting minute in the Select Committee Report,
Gazette of India, 2 June 1951, No. 16, Part II, Section 2, Report of the Select
Committee dated 25 May 1951 (hereinafter, ‘Select Committee Report’), pp.
383–384.
85. K.T. Shah, Naziruddin Ahmad and Hukam Singh, dissenting minute in the
Select Committee report, p. 387. See further, speech of Kameshwara Singh,
PD, vol. 12, column 8864; Syamnandan Sahaya, PD, vol. 12, column 8924–
25.
86. Syama Prasad Mookerjee, dissenting minute in the Select Committee report,
pp. 383–86.
87. K.T. Shah, Naziruddin Ahmad and Hukam Singh, dissenting note in the
Select Committee report.
88. PD, vol. 12, column 8815.
89. K.T. Shah, Naziruddin Ahmad and Hukam Singh, dissenting note in the
Select Committee report, p. 388.
90. K.T. Shah, Naziruddin Ahmad and Hukam Singh, dissenting note in the
Select Committee report, p. 388.
91. See, speech of Deshbandhu Gupta, PD, vol. 12, column 8946.
92. See, Austin, Working a Democratic Constitution, pp. 43–45.
93. Austin, ibid, p. 44.
94. PD, vol. 12, columns 8879–80.
95. PD, vol. 12, column 9021.
96. Ibid.
97. See, Nehru’s letter dated 25 May 1951 to Rajendra Prasad, stating that some
differences of opinion were resolved by inserting the word ‘reasonable’
before ‘restrictions’ in Article 19(2). S. Gopal (ed.), Selected Works of
Jawaharlal Nehru, 2nd Series, (New Delhi: Jawaharlal Nehru Memorial
Fund, 1989), vol. 16 (Part 1), p. 191, available at:
http://nehruportal.nic.in/selected-works-jawahar-lal-nehru-second-series-16part-i-0#page/288/mode/2up (last visited 24 May 2017).
98. Deshbandhu Gupta, PD, vol. 12, column 9742.
99. H.N. Kunzru, dissenting minute in the Select Committee Report, pp. 382–83;
Syama Prasad Mookerjee, dissenting minute in the Select Committee Report,
pp. 383–86; K.T. Shah, Naziruddin Ahmad and Hukam Singh, dissenting
minute in the Select Committee Report, p. 390. See further, speech of Syama
Prasad Mookerjee, PD, vol. 12, column 9853.
100. PD, vol. 12, column 9623.
101. Nehru’s letter dated 22 May 1951 to T.T. Krishnamachari, Gopal, Selected
Works of Jawaharlal Nehru, vol. 16 (Part 1), p. 189.
102. PD, vol. 12, column 8838.
103. PD, vol. 12, column 9714–9715.
104. K.T. Shah, Naziruddin Ahmad and Hukam Singh, dissenting minute to the
Select Committee Report; H.V. Kamath, PD, vol. 12, columns 8915, 9843;
Syamnandan Sahaya, PD, vol. 12, columns 8930–31; Sarangdhar Das, PD,
vol. 12, column 9034; Acharya Kripalani, PD, vol. 12, column 9723; Prof.
S.L. Saksena, PD, vol. 12, columns 9838–39. See further, proposals of S.N.
Mishra, PD, vol. 12, column 9739 (suggesting ‘in the interests of the
prevention of disorder’ instead); K.T. Shah, PD, vol. 12, column 9840
(suggesting ‘internal peace and the security and integrity of the State’
instead); and Naziruddin Ahmad, PD, vol. 12, column 9841 (suggesting
‘prevention of public danger to public order’).
105. Dissenting minute to the Select Committee Report, pp. 384–85.
106. PD, vol. 12, column 8843.
107. Prof. S.L. Saksena, PD, vol. 12, columns 9838–39.
108. See, K.T. Shah, PD, vol. 12, column 9839 (suggesting ‘amicable and
peaceful relations with friendly foreign States, who have made treaties with
. . . India in that behalf on a basis of reciprocity.’); H.V. Kamath, PD, vol.
12, column 9843 (suggesting ‘peaceful relations with foreign States’).
109. PD, vol. 12, columns 9015–17.
110. Syama Prasad Mookerjee, dissenting minute to the Select Committee
Report, p. 385; and speech of Syama Prasad Mookerjee, PD, vol. 12,
column 9860; K.K. Bhattacharya, PD, vol. 12, column 9843; Pandit
Kunzru, PD, vol. 12, column 9844.
111. PD, vol. 12, 9662.
112. Syama Prasad Mookerjee, dissenting minute to the Select Committee
Report, pp. 383–86; K.T. Shah, Naziruddin Ahmad and Hukam Singh, joint
dissenting minute to the Select Committee Report; Naziruddin Ahmad,
dissenting minute to the Select Committee Report; Pandit Kunzru, PD, vol.
12, column 8898; Prof. S.L. Saksena, PD, vol. 12, column 9838–39; K.T.
Shah, PD, vol. 12, column 9840; Naziruddin Ahmad, PD, vol. 12, column
9841; Sarangdhar Das, PD, vol. 12, column 9842; Sardar Hukam Singh,
PD, vol. 12, column 9842; K.K. Bhattacharya, PD, vol. 12, column 9843;
H.V. Kamath, PD, vol. 12, column, 9843; Goenka, PD, vol. 12, column
9843; Pandit Kunzru, PD, vol. 12, column 9844. See further, speech of K.T.
Shah, PD, vol. 12, column 9646; speech of S.N. Mishra, PD, vol. 12,
column 9740 (suggesting that the incitement restriction be subjected to the
clear and present danger test).
113. PD, vol. 12, column 9722.
114. PD, vol. 12, column 9079, 9792.
115. Pandit Thakur Das Bhargava, PD, vol. 12, column 9715; Pandit Kunzru,
PD, vol. 12, column 9781 (but see, Pandit Kunzru, PD, vol. 12, column
9844).
116. PD, vol. 12, column 9762–63, 9768.
117. PD, vol. 12, column 9868.
118. G. Durgabai, dissenting minute in the Select Committee Report, p. 381;
Syama Prasad Mookerjee, dissenting minute in the Select Committee
Report, pp. 383–86.
119. Prof. S.L. Saksena, PD, vol. 12, columns 9838–39; Syama Prasad
Mookerjee, PD, vol. 12, column 9843.
120. PD, vol. 12, columns 9861–62.
121. Section 3(2) provided as follows: ‘No law in force in the territory of India
immediately before the commencement of the Constitution which is
consistent with the provisions of Article 19 of the Constitution as amended
by sub-section (1) of this section shall be deemed to be void, or ever to have
become void, on the ground only that, being a law which takes away or
abridges the right conferred by sub-clause (a) of clause (1) of the said
article, its operation was not saved by clause (2) of that article as originally
enacted.’
122. See, e.g., Syama Prasad Mookerjee, dissenting minute in the Select
Committee Report.
123. AIR 1951 SC 270.
124. PD, vol. 12, columns 8841–42. See further, Pandit Thakur Das Bhargava,
PD, vol. 12, columns 8873–74.
125. AIR 1952 SC 329 (paragraph number references are from the SCC Online
version).
126. Paragraph 4.
127. 283 US 697 (1931).
128. 249 US 47 (1919).
129. PD, vol. 12, column 9778.
130. Lawrence Liang, Reasonable Restrictions and Unreasonable Speech, in
Sarai Reader 2004, p. 434.
131. The first Congress sent twelve amendments for ratification to the States.
Gordon S. Wood, Empire of Liberty: A History of the Early Republic, 17891815 (New York: Oxford University Press, 2009) (Kindle Edition), p. 69.
The first two amendments were never ratified. The original first amendment
created a formula for fixing the size of the lower house (the House of
Representatives) based on population. The original second amendment dealt
with changing remuneration for members of Congress. See, NCC Staff,
‘Why Didn’t the Original 12 Amendments Make it into the Bill of Rights?’,
Constitution Daily. See further, Akhil Reed Amar, The Bill of Rights:
Creation and Reconstruction (Yale 2000); Stephen H. Klitzman, ‘Book
Review: The Fourteen Transformative Words of the First Amendment:
From Fear To The “Courage To Be Free”’, Freedom For The Thought That
We Hate: A Biography Of The First Amendment, Anthony Lewis (Basic
Books, New York, NY, 2007), 16 CommLaw Conspectus 567 (2008).
132. Section 3.
133. For e.g., incitement to overthrow the State, to commit murder or violent
crimes, to encourage a person to interfere with the supply and distribution
of food, essential commodities, or services, or to encourage mutiny in the
armed forces or police forces.
134. Section 4.
135. Section 5.
136. Section 10.
137. Section 23.
138. Repealing and Amending Act, 1957.
139. This was preceded by the Prevention of Publication of Objectionable Matter
Ordinance, 1975.
140. Section 8.
141. Section 5.
142. Sections 19–23.
143. Section 24.
144. Section 1(3).
145. Prevention of Publication of Objectionable Matter (Repeal) Act, 1977.
146. The central government or state government, for the purpose of securing the
defence of India and civil defence, the public safety, the maintenance of
public order or the efficient conduct of military operations, by order require
that ‘all matter, or any matter relating to a particular subject or class of
subjects, shall, before being published in any document or class of
documents, be submitted for scrutiny to an authority specified in the order’.
Rule 48(1)(a).
Chapter 6: The Anti-DMK Amendment
1. See, Speech of E. Sezhiyan, Lok Sabha Debates, Third Series, 1963/1884
(Saka), Lok Sabha Secretariat, New Delhi (hereinafter, ‘LS’), vol. 18, column
13436.
2. The state was to comprise of Madras, Mysore, Kerala and Andhra. Austin,
Working a Democratic Constitution, p. 51.
3. Guha, India After Gandhi, p. 285.
4. See, http://dmk.in/history (last visited 1 June 2017).
5. Guha, India After Gandhi, p. 285.
6. Ibid.
7. Ibid.
8. Aiyar was a prominent Madras advocate and politician. He served as
Advocate General of Madras, and Dewan of Travancore State. See, ‘C.P.
Ramaswami Aiyar’, C.P. Ramaswami Aiyar Foundation, available at:
http://cprfoundation.org/Sir-CPR.html (last visited 28 December 2016). See
further, Ramachandra Guha, ‘The Strange Case of Sir C.P. Ramaswamy Iyer’,
The Hindu, 25 May 2008, available at: http://www.thehindu.com/todayspaper/tp-features/tp-sundaymagazine/The-strange-case-of-Sir-C.P.Ramaswamy-Iyer/article15401680.ece (last visited 28 December 2016).
9. Sarvepalli Gopal, Jawaharlal Nehru—A Biography (New Delhi: Oxford
University Press, 2015 reprint), vol. 3, p. 181. The National Integration
Committee consisted of six members: C.P. Ramaswami Aiyar (chairman), the
chief minister of Madras (Kamaraj Nadar), the chief ministers of Andhra
Pradesh, Orissa and Maharashtra, and the leader of the Praja Socialist Party,
Asoka Mehta. See, speech of Bibudhendra Misra (deputy minister in the
Ministry of Law), Rajya Sabha, 25 January 1963, Rajya Sabha Debates
(hereinafter, ‘RS’), columns 4945–46.
10. Austin, Working a Democratic Constitution, p. 51.
11. Gopal, Jawaharlal Nehru.
12. LS, vol. 12, columns 5760–61.
13. Ibid.
14. See, speech of N.K. Manoharan, LS, vol. 12, column 5798–99.
15. LS, vol. 12, column 5761.
16. LS, vol. 12, column 5839.
17. Swamy’s profile is available at:
http://164.100.47.132/LssNew/biodata_1_12/735.htm (last visited 28
December 2016).
18. RS, 25 January 1963, column 4878.
19. LS, vol. 12, column 5773.
20. Manoharan was a member of the DMK, who defected to AIADMK in 1974,
and returned to the DMK in 1980. He died holding the post of DMK Deputy
General Secretary. See, ‘Nanjil Manoharan Dead’, The Hindu, 2 August
2000, available at:
http://www.thehindu.com/2000/08/02/stories/04022232.htm (last visited 28
December 2016).
21. LS, vol. 12, column 5800.
22. See further, speech of Sezhiyan, LS, vol. 18, column 13436.
23. LS, vol. 18, column 13451. Reddy had said, in his dissenting minute to the
Joint Committee Report, that ‘[t]he Bill in the main seems to be directed
against the secessionist activities in Madras which pose a serious threat to the
hegemony of the Congress in that province.’ Dissenting Minute dated 16
March 1963, Gazette of India, Extraordinary, Part II, Section 2, 18 March
1963.
24. Annadurai was a DMK leader who eventually served as chief minister of
Madras state from 1967–69. See, ‘Remembering C.N. Annadurai’, India
Today Education, available at: http://indiatoday.intoday.in/education/story/cn-annadurai/1/586291.html (last visited 28 December 2016).
25. RS, 25 January 1963, column 4911.
26. See, speeches of R.N. Reddi, LS, vol. 12, column 5773; D.C. Sharma, LS,
vol. 12, column 5784.
27. LS, vol. 18, column 13468.
28. Ibid.
29. RS, column 4850.
30. LS, vol. 12, column 5761.
31. Austin says that the oath was initially drafted by future Prime Minister of
India, Lal Bahadur Shastri. Austin, Working a Democratic Constitution, p.
52.
32. LS, vol. 18, column 13410.
33. Cass Sunstein has argued that a constitutionally recognized right to secede is
incompatible with the principle of constitutionalism. However, he does not
seem to argue that there should be no First Amendment right to peacefully
demand secession whatsoever. Cass R. Sunstein, ‘Constitutionalism and
Secession’, University of Chicago Law Review, pp. 633–70 (1991).
34. Austin, Working a Democratic Constitution, p. 63.
35. See, Austin, Working a Democratic Constitution, pp. 63–68.
36. RS, 9 May 1963, column 2836.
37. LS, vol. 12, column 5832.
38. LS, vol. 18, 13411.
39. Dwivedy’s profile is available at: http://odisha.gov.in/emagazine/Orissareview/2015/Dec/engpdf/23-28.pdf (last visited 28
December 2016).
40. LS, vol. 12, column 5780.
41. M.S. Gurupada Swamy, RS, 25 January 1963, column 4882.
42. In fact, Rajya Sabha member M.N. Govindan Nair said that he was shocked
that C.N. Annadurai was not made a member of the Joint Committee. RS, 25
January 1963, column 4943.
43. The Lok Sabha debates record that the Bill was passed in the Lok Sabha by a
vote of 300-0. LS, vol. 18, column 13503. However, in the Rajya Sabha,
C.N. Annadurai of the DMK said that this was not, in fact, correct, that
initially, seven members of the DMK in the Lok Sabha had opposed the Bill
as had one member of the R.S.P., Kerala. RS, 9 May 1963, column 2843–44.
44. Surendranath Dwivedy, LS, vol. 12, column 5777; Manoharan, LS, vol. 12,
column 5798; Subbaraman, LS, vol. 18, column 13447; Narasimha Reddy’s
dissenting minute dated 16 March 1963 to the Joint Committee Report; C.N.
Annadurai, RS, 25 January 1963, column 4894. However, some, like R.N.
Reddi, said that while there was an upsurge of unity in India after the
Chinese invasion, it was not clear how long this would last. LS, vol. 12,
column 5773. See further, speech of M.S. Gurupada Swamy, RS, 25 January
1963, column 4877.
45. Manoharan, LS, vol. 12, column 5798.
46. RS, 25 January 1963, column 4893.
47. LS, vol. 18, column 13440. Similarly, C.N. Annadurai said, ‘Correct us if we
are erroneous. Convince us if you have got solid facts. Convert us to your
point of view. Instead of that you are compelling (us).’ RS, 25 January 1963,
column 4897.
48. 319 US 624 (1943).
49. LS, vol. 18, column 13439.
50. LS, vol. 18, column 13432.
51. 250 US 616 (1919).
52. LS, vol. 18, column 13433.
53. See, speeches of A.K. Sen, LS, vol. 18, column 13470; D.C. Sharma, LS,
vol. 18, column 13442.
54. See, Khadilkar, LS, vol. 18, column 13426; Bhupesh Gupta, RS, 25 January
1963, column 4853–54; M.S. Gurupada Swamy, RS, 25 January 1963,
columns 4879–81; A.D. Mani, RS, 25 January 1963, column 4918; B.D.
Khobaragade, RS, 25 January 1963, column 4927.
55. RS, 25 January 1963, columns 4927–28.
56. RS, 25 January 1963, column 4948.
57. RS, 9 May 1963, column 2843.
58. LS, vol. 12, column 5810. See further, Dissenting Minute of Syed
Nausherali, 15 March 1963. Gazette of India, Extraordinary, Part II, Section
2, 18 March 1963.
59. See, Khadilkar, LS, vol. 18, column 13424.
60. The researcher was Narayan Rao and the paper was entitled ‘A critical study
of the Constitution (Amendment) Bill’.
61. LS, vol. 18, column 13414.
62. LS, vol. 18, columns 13464, 13466. Law Minister Sen rebutted this argument
by saying that this party only wanted home rule, not secession. LS, vol. 18,
column 13474.
63. Sections 3–4, 10.
64. Section 13.
65. Section 2(1)(o).
66. Hasan Suroor, ‘India “censoring” maps’, The Hindu, 1 October 2012,
available at: http://www.thehindu.com/news/international/india-censoringmaps-economist/article3949371.ece (last visited 24 May 2016); ‘Map of
Kashmir lands Economist in censor trouble’, Hindustan Times, 24 May 2011,
available at: http://www.hindustantimes.com/delhi/map-of-kashmir-landseconomist-in-censor-trouble/story-0Dk3GPzysf2UhtI69cTS3K.html (last
visited 24 May 2016); Sanjoy Majumder, ‘Economist accuses India of
censorship over Kashmir map’, BBC News, 24 May 2011, available at
http://www.bbc.com/news/world-south-asia-13529512 (last visited 24 May
2016).
67. Majumder, ibid.
Chapter 7: Prudes and Prigs
1. Colin Manchester, ‘A History of the Crime of Obscene Libel’, Journal of
Legal History, vol. 12, Issue No. 1, 1991, pp. 40–41.
2. Sir Charles Sedley’s case, 1 Keble 620. See further, Laurence Tribe, American
Constitutional Law, 1st Edition (New York: The Foundation Press, Inc., 1978),
p. 657.
3. Manchester, ‘A History of the Crime of Obscene Libel’, p. 43.
4. Ibid, p. 43.
5. ‘An Act for the Punishment of Idle and Disorderly Persons, and Rogues and
Vagabonds, in that Part of Great Britain Called England’: 5 Geo. 4, c. 83:
available at: https://babel.hathitrust.org/cgi/pt?
id=nyp.33433035257009;view=1up;seq=530 (last visited 12 September
2016).
6. Section 4.
7. Section 28. The statute is available at:
http://www.legislation.gov.uk/ukpga/1847/89/pdfs/ukpga_18470089_en.pdf
(last visited 2 October 2016).
8. Section 486, Macaulay’s draft.
9. Chapter XIV of the draft bore the title: ‘Of Offences Affecting the Public
Health, Safety, and Convenience’. Later, Chapter XIV of the IPC would bear
the title ‘Of Offences Affecting the Public Health, Safety, Convenience,
Decency and Morals’ (emphasis supplied).
10. Act 1 of 1856, available at:
http://lawmin.nic.in/legislative/textofcentralacts/1856.pdf (last visited 12
September 2016).
11. C. Allen.
12. Proceedings of the Legislative Council of India, vol. 1, pp. 582–86, relating
to 14 July 1855 (on file with the author).
13. Section 1.
14. Section 7.
15. Deana Heath, Purifying Empire: Obscenity and the Politics of Moral
Regulation in Britain, India and Australia (Cambridge: Cambridge
University Press, 2010), p. 198.
16. Heath, Purifying Empire, p. 200.
17. ‘An Act for more effectually preventing the Sale of Obscene Books, Pictures,
Prints, and other Articles’, 20 & 21 Vict., c. 83, available at:
https://babel.hathitrust.org/cgi/pt?id=hvd.hl5jfi;view=1up;seq=233 (last
visited 12 September 2016). Interestingly, Deana Heath points out that the
Mutiny in 1857, also called the Revolt or the First War of Indian
Independence, precipitated its enactment, because it ‘strengthened the resolve
of Evangelical interventionists to purify the home society to make it worthy
of its imperial mission’. Heath, Purifying Empire, p. 64, quoting from M.J.D.
Roberts, ‘Morals, Art and the Law: The Passing of the Obscene Publications
Act, 1857’, Victorian Studies, 28, 4 (1985), pp. 609–29.
18. See, Colin Manchester, ‘Lord Campbell’s Act: England’s First Obscenity
Statute’, Journal of Legal History, vol. 9, Issue 2, September 1988, pp. 223241; the Encyclopaedia Britannica entry on the ‘Obscene Publications Act’,
available at: https://www.britannica.com/event/Obscene-Publications-Act
(last visited 12 September 2016).
19. Section 1. A person had to file a complaint with a magistrate that some
obscene material was being kept at a premise for sale, distribution etc. The
magistrate was then empowered to issue a warrant to a police officer for
entry into such premise in order to search for and seize the obscene material.
The police officer was to then procure the obscene material and bring it
before the magistrate. The magistrate was then to issue a summons to the
occupier of the premise to show cause why the material should not be
destroyed. The magistrate could then order destruction of the material.
20. It was originally enacted as follows: ‘Whoever sells or distributes, imports or
prints for sale or hire, or wilfully exhibits to public view, any obscene book,
pamphlet, paper, drawing, painting, representation, or figure, or attempts or
offers so to do, shall be punished with imprisonment of either description for
a term which may extend to three months, or with fine, or with both.
Exception. This Section does not extend to any representation sculptured,
engraved, painted, or otherwise represented, on or in any Temple, or on any
car used for the conveyance of idols, or kept or used for any religious
purpose.’
21. Like the 1851 English statute (‘An Act for Further Improving the
Administration of Criminal Justice’, 1851; 14 & 15 Vict., c. 100, available at:
https://babel.hathitrust.org/cgi/pt?id=hvd.hl4ds4;view=1up;seq=53 [last
visited 12 September 2016]), it criminalized the public sale or exhibition of
any obscene material. Like the Vagrancy Act, 1824, the maximum sentence
of imprisonment was three months. Like other misdemeanours in England,
Section 292 was made a bailable offence.
22. After the Judicature Acts of 1873 and 1875, this court was reorganized as the
Queen’s Bench Division of the high court. See,
http://www.parliament.uk/about/livingheritage/transformingsociety/laworder/court/overview/judicatureacts/ (last
visited 21 November 2016).
23. (1868) L.R. 3 Q.B. 360.
24. The contents of the pamphlet were not set out in the judgment. The pamphlet
is available at: https://catalog.hathitrust.org/Record/001935730 (last visited
12 September 2016).
25. Priests were instructed that they could ask women the following questions:
‘If the penitent be a girl, let her be asked—Has she ornamented herself in
dress so as to please the male sex? or, for the same end, has she painted
herself; or, bared her arms, her shoulders, or her bosom? Whether she has
frequented church in order that she might show herself to be looked at in the
porch, or at the window? . . . Whether she is not attached to someone?
Whether she has not allowed him to take liberties with her? Whether she has
not allowed him to kiss her?’ Priests were also instructed as follows: ‘(In the
act of sexual intercourse) if one withdraws without the consent of the other,
he certainly sins grievously . . . because generally from such withdrawal
there is danger of spilling the seed’; ‘if it be done from behind, or when the
parties are on their sides, or standing, or sitting, or when the husband lies
underneath . . . it is a mortal sin, if there should therefrom arise to either
party a danger of pollution, or of losing the seed, a thing which often happens
. . . ’; ‘A widow sins grievously when she derives venereal pleasure from
copulation formerly had, because such is unlawful to her, in consequence of
her state’; sex between married couples in a ‘consecrated place’ is not a sin
‘if kept secret’ and if the ‘church is not polluted’.
England has had a history of discriminating against Catholics. In fact, the
first chief justice of the Bombay High Court in 1862, Sir Mathew Richard
Sausse, was a Catholic, at a time when Catholics could not serve as chief
justices of important courts in England. See, Abhinav Chandrachud, An
Independent, Colonial Judiciary.
26. P. 371.
27. P. 371.
28. P. 367.
29. P. 372.
30. See, Sir Zelman Cowen, Cowen’s Individual Liberty and the Law (Calcutta:
Eastern Law House, 1977) (Tagore Law Lectures), pp. 168–96, at Chapter 8
quoting from Gelhorn’s Individual Freedom and Governmental Restraints,
1956, p. 54. See further, J.E. Williams, ‘Obscenity in Modern English Law’,
Law and Contemporary Problems vol. 20, Issue no. 4, 1955, 630-647, p. 636.
31. Heath, Purifying Empire, p. 65.
32. Heath argues that for some British colonialists, obscenity, particularly
obscenity emanating from England, was problematic because it undermined
British authority in India. Some were worried that it undermined
‘Englishness’, others that it made Indian men lust after white women. Heath,
Purifying Empire, pp. 78, 89, 150–51. However, the colonial government did
not find these concerns particularly persuasive. Rather than launching
prosecutions in all cases, informal techniques were used to curb obscenity,
e.g. the police would issue warnings to publishers not to carry obscene
materials. These techniques, Heath says, often did the trick. Heath, Purifying
Empire, p. 169.
33. See, Heath, Purifying Empire, pp. 151–52, 166–69.
34. Heath, Purifying Empire, pp. 171–80 (quoting from R.D. Karve). For Heath,
by the 1890s, India had ‘the most liberal obscenity law in the empire’.
35. (1895) ILR 20 Bom 193.
36. P. 195.
37. P. 195.
38. P. 195.
39. (1912) ILR 39 Cal 377.
40. 37 Ind. Cas. 521 (Mad).
41. AIR 1928 Pat 649.
42. AIR 1947 Lah 383.
43. Heath, Purifying Empire, p. 81.
44. See, Indarman, (1881) ILR 3 All 837; Sreeram Saksena v. Emperor, AIR
1940 Cal 290. Further, some high courts looked at evidence which was led
before the trial court in order to determine whether the work in question was
obscene or not. See, Mantripragada, 37 Ind. Cas. 521 (Mad); Kherode,
(1912) ILR 39 Cal 377; Harnam Das, AIR 1947 Lah 383.
45. See, Indarman, (1881) ILR 3 All 837; Emperor v. Hari Singh, (1906) ILR 28
All 100; Mantripragada, 37 Ind. Cas. 521 (Mad).
46. (1881) ILR 8 All 837.
47. Indarman, (1881) ILR 3 All 837; Vishnu Krishna Puranik, (1913) 15 Bom
LR 307.
48. (1954) 2 Q.B. 16.
49. Ibid, p. 19.
50. (1954) 1 W.L.R. 1138.
51. It was published in the US in 1952 as The Tightrope. Paul Robertshaw,
Summary Justice (London: Cassell, 1998), p. 55.
52. P. 1139.
53. P. 1139.
54. P. 1139.
55. Pp. 1139–40.
56. P. 1140.
57. P. 1140.
58. P. 1140.
59. P. 1141.
60. P. 1143.
61. P. 1143.
62. Pp. 1142–43.
63. 7 & 8 Eliz. 2 Ch. 66. Available on legislation.gov.uk. The Obscene
Publications Act, 1857 was repealed under Section 3(8) of this Act.
64. Section 4(1).
65. Section 4(2).
66. 209 F. 119, 121 (S.D.N.Y. 1913).
67. 354 US 476 (1957).
68. According to Tribe, it was Judge Learned Hand who first advocated that the
Hicklin test be abandoned in United States v. Kennerly, 209 F. 119, 121
(S.D.N.Y. 1913). Tribe, American Constitutional Law, p. 659 (note 22).
69. 360 US 684 (1959).
70. See, Kathleen M. Sullivan and Gerald Gunther, First Amendment Law, 3rd
edition (2007: Foundation Press, New York), p. 106.
71. See, Gopal, Selected Works of Jawaharlal Nehru, vol. 49, p. 685 onwards.
72. AIR 1965 SC 881 (decided by five judges). Once again, all paragraph
number references for AIR citations will be from the SCC Online version.
73. Paragraph 23.
74. M. Hidayatullah, ‘Thoughts on Obscenity’, (1977) Southern Illinois
University Law Journal 283, p. 285. Justice Hidayatullah believed that his
judgment in the Ranjit Udeshi case, among others, stood out in his career. He
discussed the case in his autobiography, M. Hidayatullah, My Own Boswell
(Bombay: N.M. Tripathi Pvt. Ltd., 1992), p. 224.
75. Hidayatullah, ‘Thoughts on Obscenity’, p. 285.
76. Ibid, p. 285.
77. Hidayatullah, ‘Thoughts on Obscenity’, p. 285.
78. Ibid, p. 285.
79. AIR 1965 SC 881 at paragraph 16.
80. M. Hidayatullah, ‘Thoughts on Obscenity’, pp. 288–289.
81. Paragraph 20.
82. Paragraph 21.
83. M. Hidayatullah, ‘Thoughts on Obscenity’, p. 292.
84. Paragraph 13.
85. Paragraph 13.
86. Paragraph 22.
87. Paragraph 3.
88. Paragraph 28.
89. Paragraph 7.
90. The Indian Penal Code (Amendment) Act, 1969, available at:
http://lawmin.nic.in/legislative/textofcentralacts/1969.pdf (last visited 12
September 2016), p. 208. The amended portion was as follows: ‘For the
purposes of sub-section (2), a book, pamphlet, paper, writing, drawing,
painting, representation, figure or any other object, shall be deemed to be
obscene if it is lascivious or appeals to the prurient interest or if its effect, or
(where it comprises two or more distinct items) the effect of any one of its
items, is, if taken as a whole, such as to tend to deprave and corrupt persons
who are likely, having regard to all relevant circumstances, to read, see or
hear the matter contained or embodied in it.’
91. Exception, Section 292, IPC.
92. (1969) 2 SCC 687 (decided by three judges).
93. Paragraph 9.
94. Paragraph 11.
95. Paragraph 12. See further, K.A. Abbas v. Union of India, (1970) 2 SCC 780,
at paragraph 50. It was held that how a theme is handled by a film producer
is important. ‘We may view a documentary on the erotic tableaux from our
ancient temples with equanimity or read the Kamasutra’, said Chief Justice
Hidayatullah, ‘but a documentary from them as a practical sexual guide
would be abhorrent.’
96. (1985) 4 SCC 289 (decided by two judges).
97. Paragraph 29.
98. Paragraph 35.
99. Paragraph 35.
100. (2015) 6 SCC 1 (decided by two judges).
101. Paragraph 141–42.
102. (1996) 4 SCC 1 (decided by three judges).
103. Paragraph 27.
104. Paragraph 27.
105. Paragraph 29.
106. Paragraph 30.
107. (2014) 4 SCC 257 (decided by two judges).
108. The Hicklin test was only understood in this judgment as permitting courts
to rely on isolated passages of a work, and to consider obscenity from the
standpoint of even immature persons. While some like Gautam Bhatia have
strongly argued that the Hicklin test has been finally abandoned by the
Supreme Court in Aveek Sarkar, the fact that the court only understood
Hicklin to have two constituent ingredients casts some doubt on how far this
may actually be correct. The Hicklin test, as we have seen, includes more
ingredients than these. Further, these two ingredients of the Hicklin test
were repeatedly rejected by courts in India from the colonial period
onwards. Aveek Sarkar cannot, therefore, be considered the judgment which
first broke away from the Hicklin test.
109. Paragraph 23.
110. Paragraph 24.
111. Paragraphs 27.
112. Paragraph 28.
113. (2010) 5 SCC 600 (decided by three judges).
114. Paragraph 28.
115. Paragraph 28.
116. Paragraph 45.
117. Paragraph 29.
118. Paragraph 31.
119. Paragraph 44.
120. Paragraph 46.
121. Paragraph 47.
122. 274 US 357 (1927).
123. Section 14.
124. Section 14(2).
125. Section 15(2).
126. On the Chittagong Armory Raid, see, Goutam Neogi, ‘Remembering the
Legendary Heroes of Chittagong’, Press Information Bureau, available at:
http://pib.nic.in/feature/feyr98/fe0898/f1808989.html (last visited 4 June
2017).
127. Rajagopalachari to Patel, letter dated 29 April 1948. Das (ed.), Sardar
Patel’s Correspondence, vol. 6, p. 151.
128. Under Section 7 of the then prevalent Cinematograph Act, 1918, appeals
from the centrally constituted censor board lay before the provincial
governments. The provincial governments could also suspend a film’s
certificate. Available at:
http://lawmin.nic.in/legislative/textofcentralacts/1918.pdf (last visited 4
June 2017).
129. Patel to Rajagopalachari, letter dated 4 May 1948. Das (ed.), Sardar Patel’s
Correspondence, vol. 6, p. 152.
130. The Censor Board can issue a ‘U’ certificate for unrestricted public
exhibition, or a ‘UA’ certificate for unrestricted public exhibition subject to
the condition that parents must determine whether the film is fit for viewing
by children below the age of twelve. Section 5A.
131. The Censor Board can issue an ‘A’ certificate where the film is fit for
viewing by adults. Section 5A.
132. The Censor Board can issue an ‘S’ certificate where the film is fit for
viewing by a class of professionals. Section 5A.
133. Section 4.
134. Section 5B.
135. Section 5B(2).
136. Section 5E. But see, section 173, Finance Act, 2017. See further, Union of
India v. K.M. Shankarappa, (2001) 1 SCC 582.
137. Section 5C.
138. (1970) 2 SCC 780 (decided by five judges).
139. Paragraph 8.
140. Hidayatullah, Some Thoughts on Obscenity, p. 294.
141. Paragraphs 19, 41.
142. Paragraph 20.
143. See further, S. Rangarajan v. P. Jagjivan Ram, (1989) 2 SCC 574 (decided
by three judges).
144. (1980) 1 SCC 43 (at paragraph 15).
145. Kira Cochrane, ‘Sex, Violence and Swearing on Film: 100 Years of the
BBFC’, The Guardian, 26 July 2012, available at:
https://www.theguardian.com/film/2012/jul/26/sex-violence-swearing-film100-years-bbfc (last visited 30 December 2016).
146. Ibid.
147. 343 US 495 (1952) (per Clarke J).
148. Ibid, 506.
149. See, website of the Motion Picture Association of America, at:
http://www.mpaa.org/film-ratings/ (last visited 30 December 2016).
150. See, ‘A Brief History of Film Censorship’, National Coalition Against
Censorship, http://ncac.org/resource/a-brief-history-of-film-censorship (last
visited 30 December 2016).
151. Section 33(1)(wa), Bombay Police Act, 1951.
152. Rule 120, Rules For Licensing And Controlling Places Of Public
Amusements (Other Than Cinemas) And Performances For Public
Amusement, Including Cabaret Performances, Discotheques, Games, Pool
Game Parlours, Amusement Parlours Providing Computer Games, Virtual
Reality Games, Cyber Cafes, Games With Net Connectivity, Bowling
Alleys, Card Rooms, Social Clubs, Sports Clubs, Melas And Tamashas
Rules, 1960.
153. Rule 123.
154. See, ‘Amol Palekar Moves HC Against ‘Pre-censorship’ by Police’, The
Hindu, 20 September 2016, available at:
http://www.thehindu.com/news/cities/mumbai/amol-palekar-moves-hcagainst-precensorship-by-police/article9126650.ece (last visited 20
September 2016). The case is Civil Writ Petition (L) No. 24043 of 2016,
along with Civil Application (L) No. 25405 of 2016.
155. See, Cable Television Networks (Regulation) Act, 1995. Cable operators
are required to be registered in India (Sections 3–4). Radio station
operations require a licence from the Ministry of Information and
Broadcasting. See, Grant of Permission Agreement for Operating FM Radio
Broadcasting Service in Phase III on Migration from Phase II, available at:
http://www.mib.nic.in/writereaddata/html_en_files/fm/gopafinalphase3net.pdf
(last visited 30 December 2016). See further, In re: Destruction of Public
and Private Properties, (2009) 5 SCC 212 (paragraphs 32(vii) and 33);
Divan, Facets of Media Law, p. 292. In fact, up to the 1990s, only the
government-run Doordarshan provided content on television in India. See,
Sevanti Ninan, ‘History of Indian Broadcasting Reform’, Cardozo Journal
of International and Comparative Law, vol. 5, Issue 2, Fall 1997, pp. 341–
64; Nikhil Sinha, ‘Doordarshan, Public Service Broadcasting and the
Impact of Globalization: A Short History’, Cardozo Journal of International
and Comparative Law, volume 5, Issue 2, Fall 1997, pp. 365–86.
156. There is a self-regulatory body for broadcasters in India called the ‘Indian
Broadcasting Foundation’. It was set up in June 2011, and relates only to
non-news channels. Membership of this body is voluntary, and presently
includes the likes of Star India Pvt. Ltd. and Viacom 18 Media Pvt. Ltd. Its
members are subject to ‘Content Guidelines’. These guidelines require each
broadcaster to have a ‘Standards & Practices’ department to self-censor
content so as to bring it in line with the content code of the body. The
guidelines are available at:
https://www.ibfindia.com/sites/default/files/Guidelines-Term%20of%20broadcas%20changes.pdf (last visited 15 February 2017).
See further, Akhil Arora and Gopal Sathe, ‘Behind the Scenes With Indian
TV Channels’ Self-Censors’, 19 August 2016, Gadgets 360, available at:
http://gadgets.ndtv.com/tv/features/behind-the-scenes-with-indian-tvchannels-self-censors-874695 (last visited 15 February 2017); Shilpa
Jamkhandikar, ‘TV Fights a Bleeping Battle with Censors in India’, 1 June
2012, available at: http://in.reuters.com/article/india-television-censorbollywood-tv-idINDEE84T03L20120601 (last visited 15 February 2017).
Those who ‘downlink’ foreign channels in India are also required to follow
these guidelines. ‘Policy Guidelines for Downlinking of Television
Channels’, Ministry of Information and Broadcasting, 5 December 2011,
available at:
http://mib.nic.in/WriteReadData/documents/Downlinking_Guidelines05.12.11.pdf
(last visited 15 February 2017). See further, ‘Policy Guidelines for
Uplinking of Television Channels From India’, 5 December 2011, Ministry
of Information and Broadcasting, available at:
http://digitalindiamib.com/finalUplinkingGuidelines05.12.2011.pdf (last
visited 15 February 2017).
157. Rule 6, Cable Television Networks Rules, 1994.
158. Ibid.
159. See, Abhinav Chandrachud, ‘The Bigg Debate’, Indian Express, 24
November 2010, available at:
http://indianexpress.com/article/opinion/columns/the-bigg-debate/ (last
visited 14 November 2016). The Indian Broadcasting Foundation has
published a ‘Content Code’ for its members. The code contains guidelines
for erogenous zoning. All content is to be categorized into Category ‘G’
programmes (suitable for public viewing by one and all) and Category ‘R’
programmes (unsuitable for children and young viewers). Category ‘R’
programmes can only be shown between 11 p.m. and 5 a.m. The code is
available at: https://www.ibfindia.com/sites/default/files/Guidelines-Term%20of%20broadcas%20changes.pdf (last visited 15 February 2017).
The guidelines of this body also provide that ‘the restrictions on the
broadcast of programmes unsuitable for minors should be relaxed on a
gradual and progressive basis after 8 p.m. The assumption is that after 8
p.m. parents are expected to share responsibility for what their children are
permitted to watch on television’.
160. Section 11, Cable Television Networks (Regulation) Act, 1995.
161. Section 16, Cable Television Networks (Regulation) Act, 1995.
162. Section 20, Cable Television Networks (Regulation) Act, 1995; Clause 6,
‘Policy Guidelines for Downlinking of Television Channels’, Ministry of
Information and Broadcasting, 5 December 2011, available at:
http://mib.nic.in/WriteReadData/documents/Downlinking_Guidelines05.12.11.pdf
(last visited 15 February 2017); Clause 8, ‘Policy Guidelines for Uplinking
of Television Channels From India’, 5 December 2011, Ministry of
Information and Broadcasting, available at:
http://digitalindiamib.com/finalUplinkingGuidelines05.12.2011.pdf (last
visited 15 February 2017). Additionally, complaints against content which
is broadcast by the members of the Indian Broadcasting Foundation can be
heard by the ‘Broadcasting Content Complaints Council’. Complaints can
be filed before this council by outsiders like ordinary viewers, NGOs or
even the Information and Broadcasting Ministry. The council has the power
to issue a warning to the broadcaster, to issue a direction to the broadcaster
not to carry similar content again, to require the broadcaster to carry an
apology, or to even impose monetary penalties on the broadcaster ranging
from Rs 1 lakh to Rs 30 lakh. The guidelines of the body are available at:
https://www.ibfindia.com/sites/default/files/Guidelines-Term%20of%20broadcas%20changes.pdf (last visited 15 February 2017).
163. Order dated 2 November 2016.
164. Order dated 28 March 2013.
165. See further, Clause III, Content Code of the Indian Broadcasting
Foundation.
166. (1992) 3 SCC 637 (decided by two judges).
167. Paragraph 22.
168. Paragraph 23.
169. Paragraph 19.
170. They can broadcast exact news bulletins of All India Radio. They are also
permitted to broadcast some news stories, dealing with non-political matters
such as sporting events, traffic and weather, etc. See, Grant of Permission
Agreement, for Operating FM Radio Broadcasting Service in Phase III on
Migration from Phase II. See further, Siddharth Narrain et al, ‘A Broad
Overview of Broadcasting Legislation in India’, available at:
http://indiatogether.org/uploads/document/document_upload/2139/blawbackgrounder.pdf
(last visited 30 December 2016). AM radio stations are run entirely by the
government.
171. ‘Grant of Permission Agreement . . . For Operating FM Radio Broadcasting
Service in Phase III on Migration from Phase II’.
172. All India Radio is a radio public broadcasting service carried out by the
Prasar Bharati (Broadcasting Corporation of India) under the Prasar Bharati
(Broadcasting Corporation of India) Act, 1990. The All India Radio
Broadcast Code is available at:
http://allindiaradio.gov.in/Information/AIR%20Code/Pages/default.aspx
(last visited 15 February 2017). Interestingly, a ‘live television broadcast’ of
any ‘sporting (event) of national importance’ has to be shared with Prasar
Bharati mandatorily. Sports Broadcasting Signals (Mandatory Sharing With
Prasar Bharati) Act, 2007.
173. See, Information Technology Act, 2000 and the Information Technology
(Intermediaries Guidelines) Rules, 2011.
174. (1969) 2 SCC 687.
175. Paragraph 9.
176. Paragraph 9.
177. Paragraph 12.
178. Paragraph 12.
179. (1970) 2 SCC 780.
180. Paragraph 49.
181. Paragraph 51.
182. (1980) 1 SCC 43.
183. Paragraph 9.
184. (1985) 4 SCC 289.
185. Paragraph 35.
186. See, Wendy Doniger, The Hindus: An Alternative History (New Delhi:
Penguin/Viking, 2009).
187. (1996) 4 SCC 1.
188. Paragraph 27.
189. (2006) 8 SCC 433 (decided by two judges).
190. Paragraph 21.
191. (2010) 5 SCC 600.
192. Paragraph 50.
193. (2007) 1 SCC 143 (decided by two judges).
194. Paragraph 8.
195. Paragraph 55.
196. Paragraph 71.
197. Paragraph 78.
198. Paragraph 78.
199. Paragraph 81.
200. (2013) 8 SCC 519 (decided by two judges).
201. Paragraph 104.
202. Paragraph 123.
203. (1969) 2 SCC 687.
204. Paragraph 4.
205. (1985) 4 SCC 289.
206. Paragraph 29.
207. (2015) 6 SCC 1.
208. Paragraph 92.
209. (2006) 8 SCC 433, at paragraphs 20–21.
210. (2014) 4 SCC 257, at paragraphs 20, 23.
211. See, Jason Burke, ‘Mumbai University Drops Rohinton Mistry Novel after
Extremists Complain’, Guardian, 19 October 2010, available at:
https://www.theguardian.com/world/2010/oct/19/mumbai-universityremoves-mistry-book (15 September 2016); Vinaya Deshpande, ‘Rohinton
Mistry Protests Withdrawal of Book’, The Hindu, 20 October 2010,
available at: http://www.thehindu.com/news/national/rohinton-mistryprotests-withdrawal-of-book/article838537.ece (last visited 15 September
2016).
212. 378 US 184 (1964).
213. Some have attributed this line to Stewart’s law clerk at the time, Alan
Novak. See, Peter Lattman, ‘The Origins of Justice Stewart’s “I Know It
When I See It”, Wall Street Journal, 27 September 2007, available at:
http://blogs.wsj.com/law/2007/09/27/the-origins-of-justice-stewarts-i-knowit-when-i-see-it/ (last visited 17 September 2016)
214. Marvin Miller v. State of California, 413 US 15 (1973).
215. However, the test of whether something has serious literary, artistic,
political or scientific value is not to be judged from the standpoint of the
community. See, Pope v. Illinois, 481 US 497 (1987).
216. 413 US 49 (1973).
217. 418 US 153 (1974).
218. Jennifer M. Kinsley, ‘The Myth of Obsolete Obscenity’, Cardozo Arts and
Entertainment Law Journal (2015), vol. 33, p. 607.
219. Coleman A. Young v. American Mini Theaters, Inc. 427 US 50 (1976); City
of Renton v. Playtime Theaters, Inc., 475 US 41 (1986).
220. In Renton, the court found that the ordinance in question was ‘by its terms .
. . designed to prevent crime, protect the city’s retail trade, maintain
property values and generally “protec[t] and preserv[e] the quality of [the
city’s] neighborhoods, commercial districts, and the quality of urban life”,
not to suppress the expression of unpopular views’.
221. Federal Communications Commission v. Pacifica Foundation, 438 US 726
(1978). However, the Internet has been held to be not as invasive as radio or
television. Janet Reno v. American Civil Liberties Union, 521 US 844
(1997).
222. Robert Eli Stanley v. State of Georgia, 394 US 557 (1969).
223. Sam Ginsberg v. State of New York, 88 S.Ct. 1274 (1968).
224. New York v. Paula Ira Ferber, 458 US 747 (1982).
225. Clyde Osborne v. Ohio, 495 US 103 (1990).
Chapter 8: Obscenity Lies in the Crotch of the Beholder
1. See further, ‘Pornography and Censorship’, Stanford Encyclopaedia of
Philosophy, revised up to 1 October 2012, available at:
http://plato.stanford.edu/entries/pornography-censorship/index.html#note-1
(last visited 10 October 2016); Ronald Dworkin, ‘Is There A Right To
Pornography?’, 1 Oxford Journal of Legal Studies 177 (1981).
2. 403 US 15 (1971).
3. Nadine Strossen, ‘Obscenity and Indecency Law’: Why Howl Is Still
Silenced’, Seattle University Law Review, vol. 37, Fall 2013, p. lxi, p., lxiv.
4. Cass Sunstein, ‘Words, Conduct, Caste’, University of Chicago Law Review,
vol. 60, Issue 3, p. 795, p. 808, available at:
http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?
article=5760&context=uclrev (last visited 17 September 2016).
5. See, Bharti Jain, ‘IGI Official Suspended for “Harassing” Woman’, Times of
India, 27 March 2015, available at:
http://timesofindia.indiatimes.com/city/delhi/IGI-official-suspended-forharassing-woman/articleshow/46718762.cms (last visited 17 September
2016).
6. See, Claire Cohen, ‘Indian Girl Confronts Man who “Touched” Her on
Flight’, The Telegraph, 3 February 2015, available at:
http://www.telegraph.co.uk/women/11386191/Indian-girl-confronts-man-whotouched-her-on-flight.html (last visited 17 September 2016).
7. See, Lia Eustachewich, ‘Creep Found Guilty of Sexually Assaulting Sleeping
Woman on Plane’, New York Post, 20 April 2016, available at:
http://nypost.com/2016/04/20/creep-found-guilty-of-groping-sleepingwoman-on-plane/ (last visited 17 September 2016).
8. See, e.g., Megha Sood, ‘People Nab Man Accused by Woman of “Flashing” at
Her in Lift, Cops Book Him for Molestation’, Indian Express, 7 May 2014,
available at: http://indianexpress.com/article/mumbai/people-nab-manaccused-by-woman-of-flashing-at-her-in-lift-cops-book-him-for-molestation/
(last visited 17 September 2016).
9. See, Sunstein, ‘Pornography and the First Amendment’, Duke Law Journal,
No. 4 (1986) 589, p. 598.
10. Catherine A. MacKinnon, ‘Pornography, Civil Rights, and Speech’, Harvard
Civil Rights-Civil Liberties Law Review, vol. 20, Issue 1 (Winter 1985), pp.
1–70; Andrea Dworkin, ‘Against the Male Flood: Censorship, Pornography,
and Equality’, Harvard Women’s Law Journal, vol. 8, pp. 1–30 (1985); See
further, Sunstein, ‘Pornography and the First Amendment’, p. 592.
11. See further, ‘Sex before Kissing: How 15-year-old Girls are Dealing with
Porn-addicted Boys’, Fight the New Drug, 1 April 2016, available at:
http://fightthenewdrug.org/sex-before-kissing-15-year-old-girls-dealing-withboys/ (last visited 20 September 2016).
12. MacKinnon, ‘Pornography, Civil Rights, and Speech’, p. 17.
13. Sullivan and Gunther, First Amendment Law, p. 127; Jeffrey G. Sherman,
‘Love Speech: The Social Utility of Pornography’, Stanford Law Review,
(1995), vol. 47, pp. 661-705. But see, MacKinnon, ‘Pornography, Civil
Rights and Speech’, p. 22. MacKinnon claims that the argument applies
equally when women are replaced with men, children or transsexuals, but her
argument is not very convincing when women are replaced by men.
14. See, Robin West, ‘The Feminist-Conservative Anti-Pornography Alliance
and the 1986 Attorney General’s Commission on Pornography Report’,
American Bar Foundation Research Journal (1987), Issue 4, pp. 681-712;
Nan D. Hunter and Sylvia A. Law, ‘Brief Amici Curiae of Feminist AntiCensorship Taskforce, et al., in American Booksellers Association v. Hudnut,
University of Michigan Journal of Law Reform (Fall 1987/Winter 1988), vol.
21, Issues 1 and 2, pp. 69-136; Carlin Meyer, ‘Sex, Sin, and Women’s
Liberation: Against Porn-Suppression’, Texas Law Review (1994), vol. 72,
Issue 5, pp. 1097–1202; Sullivan and Gunther, First Amendment Law, pp.
126–27.
15. American Booksellers Association v. Hudnut, 771 F.2d 323 (7th Cir. 1985),
affirmed by the US Supreme Court in 106 S. Ct. 1172 (1986). The first antipornography ordinance drawn up by MacKinnon and Dworkin was passed in
the city of Minneapolis, Minnesota, but the mayor vetoed it. Dworkin,
‘Against the Male Flood’, p. 13.
16. Heath, Purifying Empire, p. 192.
17. ‘Indian Women Who are Fighting to Stop Genital Mutilation’, BBC News, 23
December 2015, available at: http://www.bbc.com/news/world-asia-india35129466 (last visited 23 September 2016); Manoj Mohanka, ‘Female
Genital Mutilation: India’s Well Kept Secret’, Quint, 15 April 2015, available
at: https://www.thequint.com/opinion/2015/04/10/female-gender-mutilationindias-well-kept-secret (last visited 23 September 2016); Masooma Ranalvi,
‘The Resistance Against Female Genital Mutilation in India is Growing’,
Wire, 18 June 2016, available at: http://thewire.in/39127/the-resistance-
against-female-genital-mutilation-is-growing/ (last visited 23 September
2016).
18. See, MacKinnon, ‘Pornography, Civil Rights and Speech’, p. 32; Dworkin,
‘Against the Male Flood’, p. 12.
19. Thus, while banning the pornographic comic strip Savita Bhabhi, the Indian
government could not cite concerns about the lack of informed consent of the
women involved. See, ‘What Has Savita Bhabhi Done To Deserve This’,
DNA, 30 June 2009, available at: http://www.dnaindia.com/speak-up/reportwhat-has-savita-bhabhi-done-to-deserve-this-1269904 (last visited 18
September 2016); G. Seetharaman, ‘Four Years after Ban, Savita Bhabhi
Gets a New Lease of Life’, Economic Times, 12 May 2013, available at:
http://articles.economictimes.indiatimes.com/2013-0512/news/39187209_1_websites-savitabhabhi-com-kirtu-com (last visited 18
September 2016).
20. Frederick Schauer, ‘Speech and Speech—Obscenity and Obscenity: An
Exercise in the Interpretation of Constitutional Language’, Georgetown Law
Journal, vol. 67, pp. 899—933, p. 922 (1979).
21. Sunstein argues that pornography conveys only implicit ideas. Sunstein,
‘Pornography and the First Amendment’, pp. 607-608. However, much
legitimate literature conveys ideas subtly.
Chapter 9: A Blaze of Glory for Judges
1. See, C.J. Miller, Contempt of Court (Oxford: Oxford University Press, 2000),
p. 567. Miller finds that the statutory test of liability for contempt of court
under the 1981 Act in the UK does not apply to contempt in the form of
scandalizing the court, Ibid, p. 571. C.J. Miller, Contempt of Court (London:
Elek Books Ltd., 1976), p. 182.
2. See further, Vinod A. Bobde, ‘Scandalizing the Court’, (2003) 8 SCC J-32;
T.R. Andhyarujina, ‘Scandalising the Court—Is it Obsolete?’, (2003) 4 SCC
J-12; Michael Chesterman, ‘Contempt: In the Common Law, but Not the Civil
Law’, (1997) International and Comparative Law Quarterly 46(3) 521–60;
Rajeev Dhavan, Publish and Be Damned: Censorship and Intolerance in
India (New Delhi: Tulika Books, 2008), pp. 74–100.
3. (1742) 2 Atk. 291, 469. Stephen chose not to discuss the law of contempt in
his digest on criminal law or treatise on the history of the English criminal
law, saying that ‘contempt of Court seems to me hardly to be a branch of
criminal law’. Stephen, Digest, p. 52.
4. Reported in Sir John Eardley Wilmot, Notes of Opinions and Judgments
Delivered in Different Courts (London: T. Cadell, Jun. and W. Davies, 1802),
available at: https://babel.hathitrust.org/cgi/pt?
id=osu.32437121662304;view=1up;seq=7 (last visited 9 October 2016).
5. Douglas Hay says that these words, however, were not actually contained in
the pamphlet, and might have been contained in a later edition. Douglas Hay,
‘Contempt by Scandalizing the Court: A Political History of the First Hundred
Years’, Osgoode Hall Law Journal vol. 25, No. 3, p. 431 (1987).
6. P. 270.
7. Pp. 255–56.
8. P. 259.
9. P. 268.
10. P. 255.
11. In the Matter of a Special Reference from the Bahama Islands, (1893) AC
138 (PC).
12. (1899) A.C. 549.
13. P. 561.
14. The summary procedure was known as ‘committal’ or ‘attachment’. See,
Law Commission Consultation Paper No. 207, ‘Contempt of Court:
Scandalizing the Court, A Consultation Paper’, 10 August 2012, available at:
http://www.lawcom.gov.uk/wpcontent/uploads/2015/06/cp207_Scandalizing_the_Court.pdf (last visited 9
October 2016).
15. P. 561.
16. (1900) 2 QB 36.
17. See, ‘Neath MP Peter Hain Faces Contempt of Court Action over Memoir’,
Wales Online, 27 March 2012, available at:
http://www.walesonline.co.uk/news/wales-news/neath-mp-peter-hain-faces2046111 (last visited 8 October 2016).
18. See, ‘A Very Public Wigging’, Guardian, 22 November 1999, available at:
https://www.theguardian.com/world/1999/nov/22/law.theguardian (last
visited 8 October 2016)
19. P. 40.
20. See, Law Commission Consultation Paper No. 207.
21. [1936] AC 322.
22. [1968] 2 QB 150.
23. See, Louis Blom-Cooper, ‘Lord Hailsham of St Marylebone’, The Guardian,
15 October 2001, available at:
https://www.theguardian.com/news/2001/oct/15/guardianobituaries.conservatives
(last visited 16 October 2016); Paul Lewis, ‘Lord Hailsham Dies at 94; A
Tory With a Lighter Side’, New York Times, 16 October 2001, available at:
http://www.nytimes.com/2001/10/16/world/lord-hailsham-dies-at-94-a-torywith-a-lighter-side.html?_r=0 (last visited 16 October 2016).
24. [1968] 2 QB, p. 155.
25. ‘Report of the Committee on Contempt of Court’ (Phillimore Committee
Report), December 1974, p. 70.
26. Ibid, p. 69.
27. See further, The Law Commission (LAW COM No 335): ‘Contempt of
Court: Scandalizing the Court’, 12 December 2012, available at:
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/246860/083
(last visited 9 October 2016).
28. In the words of the Law Commission, Hain had ‘criticised Lord Justice
Girvan’s handling of a judicial review application.’ Law Commission,
Consultation Paper No. 207, ‘Contempt of Court: Scandalising the Court: A
Consultation Paper’, available at: http://www.lawcom.gov.uk/wpcontent/uploads/2015/06/cp207_Scandalizing_the_Court.pdf (last visited 31
December 2016), p. 2.
29. In the 1980s, Peter Wright, a former member of the British secret service,
M.I.5, wrote an autobiographical book called Spycatcher, which chronicled
illegal activities carried out by his colleagues at the secret service during his
time there. The House of Lords, by a majority of three to two, issued an
interim injunction restraining newspapers from publishing the contents of the
book in the U.K. Outraged by this, a newspaper called the Daily Mirror
published upside down photographs of the three judges who had constituted
the majority, along with the caption ‘You Fools!’ However, no action was
taken against the newspaper for contempt of court. See, Anil Diwan,
‘Contempt of Court and the Truth’, The Hindu, 29 April 2011, available at:
http://www.thehindu.com/todays-paper/tp-opinion/Contempt-of-court-andthe-truth/article14865592.ece (last visited 11 June 2017); Eric Barendt,
Freedom of Speech (Oxford: Oxford University Press, 2009 reprint), pp. 139140.
30. See, Owen Bowcott, ‘Senior Judge Cautions Colleagues over Courting
Publicity’, Guardian, 16 March 2012, available at:
https://www.theguardian.com/law/2012/mar/16/judge-courting-publicity (last
visited 9 October 2016); Gerry R. Rubin, ‘Judicial Free Speech versus
Judicial Neutrality in Mid-Twentieth Century England: The Last Hurrah for
the Ancien Regime?’, Law and History Review, vol. 27, Issue 2, Summer
2009, pp. 373-412.
31. The Rt. Hon. The Lord Mackay of Clashfern, The Administration of Justice
(London: Sweet & Maxwell, 1994), pp. 25-26, available at:
https://socialsciences.exeter.ac.uk/media/universityofexeter/schoolofhumanitiesandsocialsc
(last visited 13 June 2017).
32. Section 33(1).
33. 62 S.Ct. 190 (1941).
34. 67 S.Ct. 1249 (1947).
35. 44 Ind. Cas. 930 (1869) (DB).
36. In re: Mohandas Karamchand Gandhi and Mahadeo Haribhai Desai, (1920)
22 Bom LR 368 (FB). The transcript of this case was reported in ‘Was It
Contempt of Court’, Young India, 10 March 1920, available at:
https://babel.hathitrust.org/cgi/pt?
id=mdp.39015069951674;view=1up;seq=216 (last visited 12 October 2016).
37. See further, Abhinav Chandrachud, An Independent, Colonial Judiciary.
38. British Library, Sir Maurice Henry Weston Hayward Papers, Mss Eur
D839/6.
39. AIR 1933 Bom 478.
40. See, Abhinav Chandrachud, An Independent, Colonial Judiciary.
41. AIR 1938 Bom 197 (DB).
42. (1944) 46 Bom LR 11 (PC).
43. See further, Emperor v. Mudvedkar, AIR 1922 Bom 261.
44. See, Advocate General v. Shri Ramanatha Goenka, AIR 1942 Mad 711a.
45. In re: N.C. Kelkar, (1908) 10 Bom LR 1040. See further, Government
Pleader v. Jagannath M. Samant, (1908) 10 Bom LR 1169, a case in which
an advocate who was in the chair when a resolution was passed denouncing
Justice Davar for making ‘unchecked and unconnected and unmeaning
assertions’ against Tilak, was penalized. This, however, was not a contempt
case, but a case in exercise of the high court’s disciplinary jurisdiction
against advocates. See further, Government Pleader v. Vinayak Balvant
Chaukar, AIR 1922 Bom 361, in which advocates who praised those who
were on trial were penalized. These cases can also more easily be considered
extensions of the sedition jurisprudence of colonial courts in British India.
46. 21 CWN 1161 (decided by five judges).
47. In re: Marmaduke Pickthall, (1923) 25 Bom LR 15.
48. AIR 1922 Bom 52 (DB).
49. In re: Abdul Hasan Jauhar, (1926) SCC OnLine All 136 (FB).
50. In the matter of Muslim Outlook, Lahore, AIR 1927 Lah 610.
51. AIR 1935 Cal 419.
52. Mukerji found that scandalizing statements about even disposed of cases
could undermine the administration of justice, as they could be the subjectmatter of appeal, revision, or some subsequent proceedings, e.g., execution
proceedings.
53. (1923) 25 Bom LR 15.
54. AIR 1922 Bom 426.
55. (1926) SCC OnLine All 136 (FB).
56. AIR 1929 Pat 72.
57. AIR 1935 All 1 (DB).
58. AIR 1942 Bom 331.
59. (1953) SCR 215.
60. Paragraph 2.
61. (1970) 2 SCC 325. The SCC version of the law report wrongly spells
‘Namboodiripad’ as ‘Namboodripad’ in the cause title.
62. Paragraph 6.
63. AIR 1971 SC 221.
64. Paragraph 9.
65. (1971) 1 SCC 626.
66. Paragraph 56.
67. Paragraph 59.
68. (1972) 1 SCC 740.
69. Paragraph 9.
70. Paragraph 13.
71. (1974) 1 SCC 374.
72. Paragraph 32.
73. Paragraph 49.
74. (1988) 3 SCC 167. See further, Asharam M. Jain v. A.T. Gupta, (1983) 4
SCC 125. In this case, the contemnor accused the chief justice of the Bombay
High Court of being dishonestly vindictive towards the contemnor. Rajendra
Sail v. Madhya Pradesh High Court Bar Association, (2005) 6 SCC 109.
75. Paragraph 22.
76. (1995) 5 SCC 457.
77. Paragraph 27.
78. Paragraph 34. If the information relates to a judge of the Supreme Court, the
chief justice of India must be approached directly. Paragraph 41.
79. Paragraph 40.
80. (2010) 7 SCC 502.
81. Paragraph 18.
82. Paragraph 24.
83. Paragraph 24.
84. (2002) 3 SCC 343.
85. Paragraph 28.
86. Paragraph 29.
87. (1999) 8 SCC 308.
88. Paragraph 5. See further, paragraph 7.
89. Paragraph 6.
90. Paragraph 6.
91. Paragraph 13. See further, In re: P.C. Sen, AIR 1970 SC 1821; In re:
Misreporting of Court Proceedings by Newspapers, (2012) 13 SCC 580.
92. Brahma Prakash Sharma v. State of Uttar Pradesh, AIR 1954 SC 10,
paragraph 8.
93. Brahma Prakash Sharma v. State of Uttar Pradesh, AIR 1954 SC 10,
paragraph 13; Perspective Publications v. State of Maharashtra, AIR 1971
SC 221, paragraph 17(4); In re: S. Mulgaokar, (1978) 3 SCC 339, Para 29.
94. E.M. Sankaran Namboodiripad v. T. Narayanan Nambiar, (1970) 2 SCC
325, paragraph 12.
95. Baradakanta v. Orissa High Court, (1974) 1 SCC 374, paragraph 49.
96. (1978) 3 SCC 339.
97. Paragraph 27.
98. Paragraph 32.
99. Perspective Publications v. State of Maharashtra, AIR 1971 SC 221,
paragraphs 17(1)–(2);
100. Rama Dayal Markarha v. State of Madhya Pradesh, (1978) 2 SCC 630,
paragraph 11.
101. See, e.g., M.G. Kadir v. Kesri Narain, AIR 1945 All 67. See further, re:
Ram Mohan Lal Agarwala, AIR 1935 All 38. In this case, the Allahabad
High Court was considering certain passages contained in an election
manifesto prepared by an advocate who was standing for bar council
elections in Allahabad. In it, he had said that subordinate court judges
‘accept bribes openly in the Courts’. This was found to be in contempt of
court. Interestingly, the advocate tried to argue that his statement about
subordinate court judges accepting bribes was true, but the court held that
truth could not be considered a defence to contempt.
102. See further, ‘Report of the Committee on Contempt of Court’ (Phillimore
Committee Report), December 1974, p. 70.
103. See, In re: Nand Lal Balwani, (1999) 2 SCC 743; Pravin C. Shah v. K.A.
Mohd. Ali, (2001) 8 SCC 650. The case of Jaswant Singh v. Virender Singh,
(1995) Supp (1) SCC 384, paragraphs 33–35, is an example of an apology
which was found to be genuine. See further, Emperor v. Jagannath, AIR
1938 All 358.
104. Sub-judge, First Class v. Jawahar, AIR 1940 Nag 407 (per Vivian Bose J);
K.A. Mohammed Ali v. C.N. Prasannan, (1994) Supp (3) SCC 509. See
further, M.G. Kadir v. Kesri Narain, AIR 1945 All 67.
105. M.Y. Shareef v. Judges of the Nagpur High Court, AIR 1955 SC 19,
paragraph 10.
106. Mulk Raj v. State of Punjab, (1972) 3 SCC 839, paragraph 9.
107. M.B. Sanghi, Advocate v. High Court of Punjab and Haryana, (1991) 3
SCC 600, paragraphs 2, 12. In this case, the apology was offered only in the
event that the high court found the contemnor guilty of contempt. Justice
Agrawal took note of this in paragraph 13.
108. Explanation to Section 12(1), Contempt of Courts Act, 1971. The Bhargava
committee found that courts were, in many cases, refusing to accept an
apology on the ground that the contemnor reserved his rights to dispute the
contempt charges. Joint Committee of the Houses of Parliament (headed by
M.P. Bhargava, Chairman), report dated 20 Feb 1970. It recommended that
this should not be so, if the apology is bona fide.
109. (1984) 3 SCC 405. See further, K.A. Mohammed Ali v. C.N. Prasannan,
(1994) Supp (3) SCC 509; In re: Nand Lal Balwani, (1999) 2 SCC 743;
Leila David (6) v. State of Maharashtra, (2009) 10 SCC 337. In Balwani
and Leila David, the contemnors started shouting slogans in open court and
flung their footwear at the court.
110. Paragraph 1.
111. Paragraph 5.
112. Paragraph 5.
113. Paragraph 6.
114. Re: Vinay Chandra Mishra, AIR 1995 SC 2348: (1995) 2 SCC 584,
paragraph 44.
115. Mishra was appearing at the admission stage of a case. He had expected that
admission would be a matter of course, and that a judge would not ask any
questions at that stage.
116. Rama Dayal Markarha v. State of Madhya Pradesh, (1978) 2 SCC 630.
117. Paragraph 14.
118. Re: Harijai Singh, (1996) 6 SCC 466, paragraph 10.
119. In re: Arundhati Roy, AIR 2002 SC 1375: (2002) 3 SCC 343, paragraph 15.
120. See, Saurabh Vaktania, ‘Mumbai: Traffic Cop Asks Biker for Personal
Details, Gets Beaten with stick’, Mid-Day, 24 August 2016, available at:
http://www.mid-day.com/articles/mumbai-traffic-cop-asks-biker-for-
personal-details-gets-beaten-with-stick/17555170 (last visited 1 November
2016); ‘Traffic Cop Beaten up by Man in Mumbai over Barricades’,
Mumbai Mirror, 12 October 2016, available at:
http://mumbaimirror.indiatimes.com/mumbai/crime/Traffic-cop-beaten-upby-man-in-Mumbai-over-barricades/articleshow/54806184.cms? (last
visited: 1 November 2016).
Chapter 10: Nehru Calls Justice Bose Unintelligent
1. This was much before the Supreme Court’s judgment in Subramanian Swamy
v. Arun Shourie, (2014) 12 SCC 344, in which the court held that a
Commission of Inquiry, even if headed by a sitting Supreme Court judge, is
not a ‘court’ within the meaning of the Contempt of Courts Act, 1971.
2. E.V. Ramaswami v. Jawaharlal Nehru, AIR 1958 Mad 558. The petitioner was
being tried in the Court of Sessions in Tiruchirapalli for having made speeches
inciting the public to kick, stab and kill Brahmins and to set fire to their
houses. Nehru had visited Tiruchirapalli and made a speech there against the
Dravida Kazhagam agitation. He had said of the leader of the agitation: ‘Apart
from actually talking in an unabashed manner about murder, inviting people to
murder others—a thing unheard of in any civilised society—he has dared to
insult the National Flag and National Constitution. These are unforgivable
offences . . . ’. The contempt petition against Nehru was dismissed as the
petitioner had not averred that Nehru had any knowledge of the pendency of
his case. The court also held that there was nothing in Nehru’s speech which
interfered with the course of justice as Nehru had spoken in general terms.
3. See, Chapter 9, Motilal Setalvad, My Life, Law and Other Things (Bombay:
N.M. Tripathi, 1970).
4. See, ‘LIC’s First Leadership’, The Hindu, 12 March 2007, available at:
http://www.thehindu.com/todays-paper/tp-features/tp-metroplus/lics-firstleadership/article2241999.ece (last visited 18 October 2016).
5. Bose served an additional term as a judge between 9 September 1957 and 30
September 1958. See, George H. Gadbois, Jr., Judges of the Supreme Court of
India, 1950-1989 (New Delhi: Oxford University Press, 2011), p. 36.
6. The following paragraphs have been written on the basis of letters and
materials found in the papers of George H. Gadbois Jr., file on Justice Vivian
Bose, on file with the author. Gadbois had interviewed 92-year-old Bose in
Bangalore in 1983, where he obtained this information. Bose’s grand-niece,
Julie G. Mott, made copies of these letters and materials in 1985, whilst she
was researching the Bose side of her family. Mott was a professor of English
at a high school in California. Gadbois had intended to write a paper on this
episode, possibly for the Economic and Political Weekly (EPW), entitled
‘Vintage Ethics’. Mott was, at one time, intended to be the co-author of the
paper. Gadbois referred to these letters in his book at pp. 36–37. I am deeply
grateful to Professor Gadbois for making his files available to me.
7. See, ‘The Vivian Bose Enquiry Board’, Calcutta Weekly Notes, 22 June 1959,
vol. 63, No. 30, p. 99.
8. Nagpur Times, 12 June 1959.
9. Gadbois Papers, file on Vivian Bose, on file with the author.
10. The letter was sent to Bose at an address in Simla, which was presumably
where Bose was residing after retirement, or where he was staying during the
summer.
11. Interestingly, the letter was addressed to Das at 1 Safdarjung Road, New
Delhi, which was presumably the residence of the chief justice of India at the
time. The address of the chief justice of India now is 5, Krishna Menon
Marg, New Delhi.
12. Nehru agreed to this request in his letter to Das Gupta dated 30 June.
13. Sub-judge, First Class v. Jawahar Lal Ramchand Parwar, AIR 1940 Nag
407. Interestingly, the Respondent in this case was also named Jawahar Lal.
14. Nehru to Das, 4 July 1959.
15. Das to Nehru, 8 July 1959.
16. See, ‘Public Inquiry Into Dalmia–Jain Enterprises Opposed’, Statesman, 2
October 1958, p. 1.
Chapter 11: Prejudicing Mankind
1. US courts have generally applied the clear and present danger test to
determine whether a statement published by the press during an ongoing trial
can be held in contempt of court. This is a very lenient test. See, Law
Commission of India, 200th Report on Trial by Media, August 2006, available
at: http://lawcommissionofindia.nic.in/reports/rep200.pdf (last visited 26
November 2016), p. 59. See, Bridges v. California, 314 US 252 (1941);
Pennekamp v. Florida, 328 US 331 (1946); Craig v. Harney, 331 US 367
(1947); Wood v. Georgia, 370 US 375 (1962). See further, Michael
Chesterman, ‘OJ and the Dingo: How Media Publicity Relating to Criminal
Cases Tried by Jury is Dealt with in Australia and America’, American
Journal of Comparative Law, vol. 45, Issue 1, Winter 1997, pp. 109–48; Craig
Cleaver, ‘Ruling Without Reasons: Contempt of Court and the Sub Judice
Rule’, South African Law Journal, vol. 110, Issue 3, August 1993, pp. 530–
42; Justice Lockhart, ‘Contempt of Court—The Sub Judice Rule’, University
of New South Wales Law Journal, vol. 10, Issue 2 (1987), pp. 1–7.
2. James Francis Oswald, Contempt of Court: Committal, and Attachment and
Arrest Upon Civil Process, 2nd edition (London: William Clowes and Sons,
1895), p. 58.
3. Oswald, Contempt of Court, p. 60. Hunt v. Clarke, (1889) 58 L.J. Q.B. 490, is
also an authority for the proposition that technical contempts should not be
punished.
4. C.J. Miller, Contempt of Court (London: Elek Books Ltd., 1976), p. 69.
5. Section 2(3).
6. Schedule 1 to the 1981 Act. See further, Miller, Contempt of Court (2000), p.
267. However, this is earlier than what the Phillimore Committee had
recommended. The Phillimore Committee had suggested that a criminal case
should be considered as pending ‘the moment when the suspected man is
charged or a summons served’. Phillimore Committee Report, p. 52.
7. Miller, Contempt of Court (2000), p. 268.
8. Miller, Contempt of Court (2000), p. 273; Miller, Contempt of Court (1976),
p. 107.
9. Phillimore Committee Report, at p. 55. See further, Miller, Contempt of Court
(2000), p. 273.
10. Phillimore Committee Report, p. 55.
11. Halsbury’s Laws of England, 5th edition, vol. 22 (2012), at paragraph 22.
12. The 1981 Act imposes limitations on the strict liability rule: (1) It specifies
that the ‘strict liability rule applies only to a publication which creates a
substantial risk that the course of justice in the proceedings in question will
be seriously impeded or prejudiced’. Section 2(2). (2) It provides that the rule
applies only to ‘publications’ (Section 2(1). The term ‘publication’ is defined
to mean: ‘any speech, writing, programme included in a cable programme
service or other communication in whatever form, which is addressed to the
public at large or any section of the public.’), a term which excludes ordinary,
day-to-day conversations between people. (The Phillimore Committee spoke
of ‘publications’ as things ‘which are intended to be distributed or addressed
to the public at large and not those intended only for private circulation’. It
did not, for example, include ‘an address to a private meeting to which the
press is not invited’. Phillimore Committee Report, p. 36.) (3) It says that a
publisher cannot be guilty of contempt if he did not know, at the time of
publication, ‘having taken all reasonable care’, that the case was ‘active’
(Section 3). (4) It says that a distributor is not liable for anything if he did not
know that it contained contemptuous matter, and had no reason to believe
that it contained such matter, once again ‘having taken all reasonable care’.
(Section 3.) Miller, Contempt of Court (2000), p. 28; Section 1. See further,
Halsbury’s Laws of England, at Paragraphs 18–19.
13. Oswald, Contempt of Court, p. 61.
14. Miller, Contempt of Court (1976), p. 106. Miller said that different
considerations apply to lay/stipendiary magistrates. See further, Miller,
Contempt of Court (2000), p. 336.
15. See, Oswald, Contempt of Court, p. 63.
16. See, Scott v. Scott [1913] A.C. 417.
17. Ibid, p. 437.
18. Miller, Contempt of Court (1976), p. 209.
19. Miller, Contempt of Court (1976), p. 209.
20. In re: G.W. Claridge, MANU/MH/0010/1912; Ketra Moni Dasi v. Shamal
Dhone Dutt, MANU/WB/0647/1913; In re: Ganesh Shankar Vidyarthi, AIR
1929 All 81; District Magistrate v. Hamid Ali, AIR 1940 Oudh 137; In re
Subrahmanyan, A.I.R. 1943 Lah. 329; Emperor v. Mahashe Khushal, AIR
1945 Lah 206.
21. S.A. Dange v. S.T. Sheppard, AIR 1930 All 483. See further, Guru Charan v.
Baburao, AIR 1931 All 420; Superintendent and Remembrancer of Legal
Affairs v. Murali Manohar, AIR 1941 Pat 185; In re Subrahmanyan, AIR
1943 Lah. 329; Emperor v. Mahashe Khushal, AIR 1945 Lah 206.
22. Sathappa Chettiar v. C. Ramachandra Naidu, AIR 1932 Mad 26. See further,
Emperor v. Mahashe Khushal, AIR 1945 Lah 206; Emperor v. Tushar Kanti
Ghosh, AIR 1946 All 298; Superintendent and Remembrancer of Legal
Affairs v. Murali Manohar, AIR 1941 Pat 185 (per Dhayle J.).
23. The idea that contempt comes into being when a person ‘prejudices mankind’
comes from Lord Chancellor Hardwicke’s judgment in the classic St James
Evening Post case, i.e., Roach v. Garvan (or Hall), 2 Atk. 291, 469, where he
said ‘nor is there any thing of more pernicious consequence, than to prejudice
the minds of the public against persons concerned as parties in causes, before
the cause is finally heard’. The idea that contempt comes into being when an
‘atmosphere of prejudice’ is brought about came from the judgment of Chief
Justice Alverstone in Rex v. Tibbits, (1902) 1 K.B. 77.
24. Rajah Velugoti v. N.V. Rama, AIR 1938 Mad 248.
25. Government Pleader, High Court v. Shankar Dattatraya Javdekar, AIR 1938
Bom 198.
26. P.S. Tuljaram Rao v. Sir James Taylor, AIR 1939 Mad 257.
27. Ananta Lal Singh v. Alfred Henry Watson, AIR 1931 Cal 257. See further,
Sathappa Chettiar v. C. Ramachandra Naidu, AIR 1932 Mad 26;
Superintendent and Remembrancer of Legal Affairs v. Murali Manohar, AIR
1941 Pat 185.
28. See, Sathappa Chettiar v. C. Ramachandra Naidu, AIR 1932 Mad 26.
29. Ananta Lal Singh v. Alfred Henry Watson, AIR 1931 Cal 257.
30. Ananta Lal Singh, ibid.
31. S.A. Dange v. S.T. Sheppard, AIR 1930 All 483.
32. In re: Kalidas J. Jhaveri, MANU/MH/0095/1919; Bennett Coleman v. G.S.
Monga, AIR 1936 Lah 917; In re: Vidya Sagar Kapur, AIR 1938 Lah 815.
The Bennett Coleman case is an interesting one. Here, a magazine called the
Illustrated Weekly of India had come out with a crossword competition. The
winner was to receive a prize. The magazine was sued by a person who
believed he had solved the puzzle, though the magazine claimed that his was
not the correct solution. The plaintiff then gave a copy of his plaint to several
newspapers, along with his photograph, with the object that these should be
published. One newspaper published the plaint and the photograph. This was
held to be in contempt of court.
33. Guru Charan v. Baburao, AIR 1931 All 420.
34. Atindra Narayan Roy v. Hemanta Kumari Devi, AIR 1934 Cal 606.
35. Legal Remembrancer v. Matilal Ghose, 20 Ind. Cas. 81 (FB); Government
Advocate of Burma v. Saya Sein, AIR 1930 Rangoon 124; Ananta Lal Singh
v. Alfred Henry Watson, AIR 1931 Cal 257; Babu Guru v. Babu Rao, AIR
1931 All 420; Government Pleader, High Court v. Shankar Dattatraya
Javadekar, AIR 1938 Bom 198; Superintendent and Remembrancer of Legal
Affairs v. Murali Manohar, AIR 1941 Pat 185; In re Subrahmanyan, A.I.R.
1943 Lah. 329; Emperor v. Mahashe Khushal, AIR 1945 Lah 206. But see,
Tushar Kanti Ghose v. Governor, AIR 1933 Cal 118, where the court held
that ‘all comment in the press’, not just comments substantially prejudicing
the case, ‘whether by way of approval or disapproval, of the judgments of
courts of session or of commissioners in capital sentence cases, made
pending their disposal by this Court, is reprehensible, and may entail most
disagreeable consequences on those responsible for it’.
36. In re: G.W. Claridge, MANU/MH/0010/1912.
37. Tushar Kanti Ghose v. Governor, AIR 1933 Cal 118. In this case, it was held
that ‘actual prejudice’, though ‘an important consideration . . . is not the only
consideration.’ See further, In re: Subrahmanyan, AIR. 1943 Lah. 329;
Emperor v. Mahashe Khushal, AIR 1945 Lah 206.
38. Legal Remembrancer v. Matilal Ghose, 20 Ind. Cas. 81 (FB); Hargovan B.
Kotak v. Chimanlal Vadilal Shah, AIR 1942 Bom 86; In re: Subrahmanyan,
AIR. 1943 Lah. 329; Emperor v. Mahashe Khushal, AIR 1945 Lah 206. But
see: Ketra Moni Dasi v. Shamal Dhone Dutt, MANU/WB/0647/1913.
39. Legal Remembrancer v. Matilal Ghose, 20 Ind. Cas. 81 (FB).
40. Emperor v. Mahashe Khushal, AIR 1945 Lah 206.
41. For ‘imminent’, see: Tushar Kanti Ghose v. Governor, AIR 1933 Cal 118; In
re Subrahmanyan, AIR. 1943 Lah. 329.
42. Superintendent and Remembrancer of Legal Affairs v. Murali Manohar, AIR
1941 Pat 185; In re: Subrahmanyan, AIR. 1943 Lah. 329; Emperor v.
Mahashe Khushal, AIR 1945 Lah 206; Emperor v. J. Choudhury, AIR 1947
Cal 414.
43. Government Advocate of Burma v. Saya Sein, AIR 1930 Rangoon 124;
Emperor v. Mahashe Khushal, AIR 1945 Lah 206; Emperor v. J. Choudhury,
AIR 1947 Cal 414.
44. Tushar Kanti Ghose v. Governor, AIR 1933 Cal 118.
45. Sathappa Chettiar v. C. Ramachandra Naidu, AIR 1932 Mad 26; Rajah
Velugoti v. N.V. Rama, AIR 1938 Mad 248.
46. Government Advocate of Burma v. Saya Sein, AIR 1930 Rangoon 124.
47. AIR 1931 Cal 257.
48. The report was dated 28 February 1963.
49. Paragraph 4, p. 32.
50. Paragraph 4, p. 32.
51. Paragraph 3, p. 35.
52. Paragraph 4, p. 35.
53. Paragraphs 3.1, p. 31.
54. Paragraph 3.3, p. 31.
55. The Sanyal committee thought it necessary to make this recommendation in
the light of recent, post-independence decisions in which courts had held that
want of knowledge of the pendency of a case would not exonerate a
contemnor.
56. Paragraph 2, p. 37. However, it recommended an exception to this rule, that a
distributor should be able to prove that ‘he had no reasonable grounds for
believing that the publication he had distributed contained offending matter’.
This exception was not to apply to editors, printers or publishers. Paragraphs
3.1–3.2, p. 37.
57. Paragraph 1.3, p. 34.
58. Paragraph 1.1, p. 28.
59. Joint Committee of the Houses of Parliament (headed by M.P. Bhargava,
Chairman), report dated 20 Feb 1970.
60. Two statutes had been enacted before this, one in 1926, the other in 1952.
However, neither statute had touched upon the sub judice rule.
61. Section 3, Explanation (a)(B). But see, M.P. Lohia v. State of W.B., (2005) 2
SCC 686 (paragraph 10). In this case, the Supreme Court cautioned the editor
of a newspaper who published an article on a case where the investigation
was still ongoing, which suggests that the charge-sheet had not been filed.
See further, Vineet Narain v. Union of India, (1998) 1 SCC 226, where the
court thought it fit to hold a trial in camera in order to protect the accused
from media scrutiny, even though the investigation was still ongoing. See
further, Sahara India Real Estate Corporation Ltd. v. SEBI, (2012) 10 SCC
603 (paragraph 33), where the Supreme Court followed A.K. Gopalan v.
Noordeen (1969) 2 SCC 734, without noticing that the rule contained therein
has been modified by Explanation (a)(B) to Section 3 of the Contempt of
Courts Act, 1971.
62. In A.K. Gopalan and another v. Noordeen, (1969) 2 SCC 734, the Supreme
Court held that ordinarily, a criminal case can only be considered imminent
once a person is arrested (at paragraph 6). It relied on an unreported Supreme
Court judgment in Surendra Mohanty v. State of Orissa, Cri. App. 107/56
dated 23.1.1961. It was held that in some cases where investigation by the
police would be lengthy, such as those where ‘an investigation involving
prolonged examination of account books of companies’ is involved,
‘proceedings may not be said to be imminent as soon as the accused is
arrested.’ However, it was held that once an accused is arrested on a charge
of murder, the proceeding should be treated as imminent (at paragraph 10).
63. See, Law Commission of India, 200th Report on Trial by Media, Free Speech
and Fair Trial Under Code of Criminal Procedure Code, 1973, August 2006,
p. 4. Available at: http://lawcommissionofindia.nic.in/reports/rep200.pdf (last
visited 15 November 2016). The Law Commission in its 200th report has
disagreed with this position, and has expressed the view that the sub judice
rule must apply from the date of arrest. See, Law Commission of India, 200th
Report on Trial by Media, p. 224.
64. Section 3, Explanation (a)(A).
65. Section 3, Explanation (a) (B).
66. Vidya Dhar v. Multi Screen Media (P) Ltd., (2013) 10 SCC 145 (paragraph
15). In this case, the Supreme Court held that once the trial is complete and
the accused have been convicted and arrested, ‘there is no further possibility
of any bias against them at the time of hearing of the appeal’.
67. Section 3, Explanation (b).
68. Section 3(1). See further, In re: P.C. Sen, AIR 1970 SC 1821. In this case, the
chief minister of a state made a speech against the backdrop of a pending
case. There was no direct reference to the pending case in the speech. The
chief minister was aware that a case had been filed, but he did not know its
details. The Supreme Court held that it was his duty to acquaint himself with
the facts of the case before making any statement, since he knew that a case
had been filed.
69. Section 3(3).
70. Section 2(b). Civil contempt is any ‘wilful disobedience’ of ‘any judgment,
decree, direction, order, writ or other process of a court’, or ‘wilful breach of
an undertaking given to a court’.
71. Section 2(c).
72. Section 2(c)(i)–(iii).
73. Section 4. The Phillimore committee’s recommendations (which, of course,
came after the Contempt Act was enacted in India) that the report must be
published ‘contemporaneously and in good faith’, is not a part of the
statutory rule in India.
74. Section 13(a).
75. Sahara India Real Estate Corporation Ltd. v. SEBI, (2012) 12 SCC 611.
76. (1955) 1 SCR 677: AIR 1954 SC 743. Paragraph number references are from
the SCC Online version of this judgment.
77. Paragraph 6.
78. Paragraph 6.
79. See further, Sammbhu Nath Jha v. Kedar Prasad Sinha, (1972) 1 SCC 573
(paragraph 14).
80. AIR 1970 SC 1821. All paragraph number references are from the SCC
Online version of this judgment.
81. Paragraph 14.
82. Paragraph 15.
83. Paragraph 16.
84. Paragraph 16. See further, State of Maharashtra v. Rajendra Jawanmal
Gandhi, (1997) 8 SCC 386 (paragraph 37), wherein it was held that a judge
must guard himself against being influenced by the media.
85. Paragraph 15.
86. Paragraph 8.
87. Paragraph 14.
88. See paragraphs 12, 14, 15.
89. Paragraph 15.
90. Paragraph 15.
91. Paragraph 8. See further, Sammbhu Nath Jha v. Kedar Prasad Sinha, (1972)
1 SCC 573 (paragraph 10).
92. Sidhartha Vashisht v. State (NCT of Delhi), (2010) 6 SCC 1 (paragraph 297).
In this case it was held that ‘statements which outrightly hold the suspect or
the accused guilty even before such an order has been passed by the court’
are in contempt of court.
93. (2013) 10 SCC 145.
94. Paragraph 16.
95. AIR 1967 SC 1. All paragraph references are from the SCC Online version
of the case.
96. A more weighty question was involved in this case, viz., whether a high
court’s order could violate a fundamental right (in this case, the fundamental
right to free speech).
97. Paragraph 17. See further, paragraph 30.
98. Paragraph 20.
99. Paragraph 21.
100. Paragraph 21. See further, paragraph 29.
101. Paragraph 21.
102. Paragraph 30.
103. Paragraph 36.
104. (1994) 3 SCC 569.
105. Paragraph 269.
106. Paragraph 290.
107. State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 (paragraph 24).
108. Sakshi v. Union of India, (2004) 5 SCC 518, paragraph 34(2). The court
also issued directions that questions proposed to be asked by the defence
advocates in cross-examination must be given in writing to the judge, who
can then ask those questions himself in a clear and non-embarrassing
manner, and that breaks can be given to victims of child sexual abuse or
rape during the trial, as and when required.
109. (2012) 10 SCC 603 (decided by five judges).
110. Paragraphs 33, 34, 35, 40, 42, 43, 46, 48, 50.
Chapter 12: ‘Scurrilous Satire against a Friendless Woman’
1. Sections 469–78 of Macaulay’s draft of the IPC, with revisions, eventually
became Section 499 of the IPC. Stephen believed that some of the words
contained in Section 499 of the IPC were attributable to Macaulay. Sir James
Fitzjames Stephen, A digest of the criminal law (crimes and punishments)
(London: Macmillan, 1894), vol. 3, available at:
https://babel.hathitrust.org/cgi/pt?id=hvd.hl57k4;view=1up;seq=335 (last
visited 16 December 2016). Interestingly, Stephen did not think that Section
499 had much of an effect in India. ‘Practically, I do not think these sections
have had much effect. Conversation in India is certainly not more insipid, as
far as my experience goes,’ wrote Stephen, ‘than in other parts of the world,
and people talk scandal much as they do elsewhere.’ Ibid.
2. Stephen believed that the rules contained in Section 499 of the IPC, dealing
with criminal libel, were ‘far more severe than the law of England’ in some
matters, but ‘singularly liberal’ in others. Ibid. From the very beginning,
criminal defamation was made bailable and non-cognizable.
3. As the Law Commission noted, it was not a defence under the French Code or
the Code of Louisiana either. See, ‘Note R’ prepared by the Indian Law
Commission on the 1837 draft, in, A Penal Code (Calcutta: Bengal Military
Orphan Press, 1837), available at: https://babel.hathitrust.org/cgi/pt?
id=nyp.33433003025818;view=1up;seq=252 (last visited 16 June 2017).
4. The defence of truth in civil defamation cases was established by 1787.
Criminal Libel, Law Commission, Working Paper No. 84, 1982.
5. ‘Note R’. The Commission believed that making truth a defence to defamation
would prevent people from initiating false criminal defamation cases. This
was because, in the Commission’s view, ‘no respectable person will venture to
institute a prosecution for defamation in a case in which he knows that the
truth of the defamatory matter is likely to be proved.’ If such a person were to
refrain from initiating a prosecution, on the other hand, ‘many people’,
thought the Commission, would ‘probably disbelieve the scandalous report:
many (would) doubt about its truth’.
6. English Libel Act, 1843, 6 & 7 Vict., c. 96, available at:
http://www.legislation.gov.uk/ukpga/1843/96/pdfs/ukpga_18430096_en.pdf
(last visited 16 December 2016). See further, ‘Criminal Libel’, Law
Commission, Working Paper No. 84, 1982.
7. ‘Second Report on the Indian Penal Code’, 16 May 1848, available at: Reports
From Commissioners, Session 18 November 1847—5 September 1848, vol.
XXVIII https://babel.hathitrust.org/cgi/pt?
id=hvd.32044106497787;view=1up;seq=134 (last visited 16 December 2016).
8. See ‘Criminal Libel’, UK Law Commission, Working Paper No. 84, 1982.
9. ‘Criminal Libel’, Law Commission, Working Paper No. 84, 1982.
10. See, Sir James Fitzjames Stephen, A Digest of the Criminal Law (Crimes and
Punishments) (London: Macmillan, 1894). Stephen said: ‘Words spoken can
in no case be a libel, although they may convey defamatory matter.’ See
further, Criminal Libel, Law Commission, Working Paper No. 84, 1982, p.
38. However, reading out a written libel was criminally punishable in
England. Stephen, ibid. Interestingly, in England, under the Defamation Act,
1952, which only applied to civil defamation, it was considered publication
in permanent form for a person to broadcast defamatory statements through
wireless telegraphy. Criminal Libel, Law Commission, Working Paper No.
84, 1982.
11. Eventually, it was no longer necessary under English common law for the
prosecution to establish that the words in question were likely to provoke a
breach of the peace. Though tendency to provoke a breach of the peace was
formally an ingredient of the offence in the nineteenth century, convictions
took place without satisfying this ingredient during that time. Criminal Libel,
Law Commission, Working Paper No. 84, 1982. Later, this ingredient was
formally done away with since R. v. Wicks (1936). However, even so, English
common law required that defamation had to be sufficiently serious, not
trivial, in order to warrant action. This ingredient was brought about by the
House of Lords in Gleaves v. Deakin, (1980) A.C. 477. Criminal Libel, Law
Commission, Working Paper No. 84, 1982; Halsbury’s Laws of England, 4th
Edition, vol. 28 (London: Butterworths, 1979), p. 137.
However, the breach of the peace test was not completely discarded under
English law. Consider that if A wrote a letter to B making defamatory
statements about B himself, then this would not be considered defamation
under civil law. In other words, in civil defamation cases, it was necessary
for the defamatory words to be published to a third party. However, this
could be considered defamation under criminal law if the letter was sent with
the object of provoking a breach of the peace. See, Criminal Libel, Law
Commission, Working Paper No. 84, 1982, p. 45; Halsbury’s Laws of
England, 4th Edition, vol. 28 (London: Butterworths, 1979), p. 137. This rule
exists in India as well under Section 504 of the IPC. See further, Queen
Empress v. Taki Husain, (1884) ILR 7 All 205 (per Syed Mahmood J.).
Likewise, defamation of deceased persons was criminally punishable in
England so long as the statement in question was published with intent to
provoke a breach of the peace. Criminal Libel, Law Commission, Working
Paper No. 84, 1982, p. 47.
See further, Emperor v. Parwari, (1919) ILR 41 All 311; Queen Empress
v. Taki Husain (1884) ILR 7 All 205.
12. Stephen, A History of the Criminal Law of England, vol. 3, p. 319.
13. For absolute privilege in such cases in England, see, Criminal Libel, Law
Commission, Working Paper No. 84, 1982.
14. This view was, importantly, taken by the Privy Council in Baboo Gunnesh
Dutt Singh v. Mugneeramchowdhry, (1873) 11 Beng L.R. 321. See further,
Chunni Lal v. Narsingh Das, (1917) 40 All. 341; Ma Mya Shwe v. Maung
Maung, (1924) ILR 2 Rang 333; Ma Hla Khin v. U Khin Maung, 154 Ind.
Cas. 535.
15. This view was taken by the Calcutta High Court in Satis Chandra
Chakravarti v. Ram Dayal De, AIR 1921 Cal 1, which was decided by a
Bench of five judges; Bombay High Court in Bai Shanta v. Umrao Malik,
AIR 1926 Bom 141 (FB); Madras High Court in Elavarthi Peddabba Reddi
v. Iyyala Varada Reddi, AIR 1929 Mad 236 and Tiruvengada Mudali v.
Tripurasundari Ammal, AIR 1926 Mad 906 (FB); Patna High Court in
Saukhi Gope v. Uchit Rai, AIR 1948 Pat 56; the Rangoon High Court in
Rasool Bhai v. The King, (1938) SCC OnLine Rang 47 and Mull Chand v.
Buga Singh, AIR 1931 Rang 81; the Sind High Court in Ghanshamdas
Gianchand v. Nenumal, AIR 1934 Sind 114; and Nagpur High Court in
Surajmal v. Ramnath, AIR 1928 Nag 58.
16. Criminal Libel, Law Commission, Working Paper No. 84, 1982.
17. This was under the ninth exception to defamation under Section 499 of the
IPC. See, Isuri Prasad v. Umrao Singh, (1900) ILR 22 All 234; Mt. Champa
Devi v. Pirbhu Lal, AIR 1926 All 287.
18. Halsbury’s Laws of England, 4th Edition, vol. 28 (London: Butterworths,
1979), p. 76.
19. Emperor v. Purshottamdas Ranchhoddas, (1907) 9 Bom LR 1287; Nirsu
Narayan Sinha v. King Emperor, AIR 1926 Pat 499 (DB); M. Banerjee v.
Anukul Chandra Mitra, (1928) ILR 55 Cal 85; Tulsidas Amanmal v. S.F.
Billimoria, AIR 1932 Bom 490; Muhammad Taqi v. M.A. Ghani, AIR 1945
Lah 97; T.F.R. Mcdonnell v. Emperor, 92 Ind. Cas. 737 (DB).
20. Section 73, Coroners and Justice Act, 2009.
21. Subramanian Swamy v. Union of India, (2016) 7 SCC 221.
22. See, Gautam Bhatia, ‘A Blow against Free Speech’, The Hindu, 16 May
2016, available at: http://www.thehindu.com/opinion/lead/A-blow-againstfree-speech/article14321176.ece (last visited 18 December 2016).
23. See, Tunku Vardarajan, ‘Judgment by Thesaurus’, Wire, 16 May 2016,
available at: http://thewire.in/36348/judgment-by-thesaurus/ (last visited 18
December 2016).
24. (1994) 6 SCC 632.
25. Paragraphs 22, 26(6). This suggests that such a prior restraint can perhaps be
imposed, if a law empowering the government to do so is enacted at some
future date.
26. 376 US 254.
27. Paragraph 26(3).
28. It is not clear whether this standard will apply in cases under Section 499 of
the IPC where a public official is the complainant, though it stands to reason
that this standard ought to apply in such cases as well.
29. Paragraph 26(3).
Chapter 13: Shouting Fire in a Crowded Theatre
1. ‘Seditious Intention’, Article 98, Stephen’s Digest, available at:
https://babel.hathitrust.org/cgi/pt?
id=uc2.ark:/13960/t3514444d;view=1up;seq=124 (last visited 18 June 2017).
2. Originally, the amended definition of sedition was to include hate speech.
However, subsequently, hate speech was put into a separate provision
altogether.
3. It was made punishable with two years’ imprisonment, or fine, or both. Under
Section 196 of the Code of Criminal Procedure, 1898, no prosecution could be
launched, however, without a complaint made by or under the authority of the
government. Likewise, in Section 196 of the Code of Criminal Procedure,
1973, a prosecution under Section 153A cannot be launched without the
sanction of the central or state government.
4. Another member of the Council, Sir Griffith Evans, agreed that if hate speech
was part of the law of England, it was ‘much more necessary in a country like
India with its discordant elements and hostile races and religions’.
5. Abstract of the Proceedings of the Council of the Governor-General of India
(Calcutta: Office of the Superintendent of Government Printing, 1898) (on file
with the author, with thanks to Sandeep Ranade). Another member of the
Council, Mr Rivaz, also referred to ‘recent events’ as a justification for the
amendment. Nicholson and Chitnavis too spoke of ‘recent agitation(s)’.
6. Richa Raj, ‘A Pamphlet and its (Dis)contents: A Case Study of Rangila Rasul
and the Controversy Surrounding it in Colonial Punjab, 1923-29’, History and
Sociology of South Asia, vol. 9(2), p. 146, available at:
http://journals.sagepub.com/doi/pdf/10.1177/2230807515572213 (last visited
18 February 2017); Asif M. Basit, ‘A Murder in British Lahore—Closing the
Case of Lekh Ram’, The Review of Religions, August 2015, available at:
http://www.reviewofreligions.org/12030/a-murder-in-british-lahore-closingthe-case-of-lekh-ram/ (last visited 18 February 2017); Sadia Saeed, ‘Politics
of Exclusion: Muslim Nationalism, State Formation and Legal
Representations of the Ahmadiyya Community in Pakistan’, Doctoral
Dissertation submitted to the University of Michigan, 2010, available at:
https://deepblue.lib.umich.edu/bitstream/handle/2027.42/78803/sadia_1.pdf?
sequence=1 (last visited 18 February 2017).
7. For instance, Chalmers referred to the ‘Poona murders’ as justification for the
introduction of the law against hate speech. The Poona murders, however, had
nothing to do with hate speech. In 1897, an article called ‘Shivaji’s utterances’
had appeared in Tilak’s Marathi newspaper Kesari. Following the article, the
Chapekar brothers in Poona murdered the Plague Commissioner and
Collector, Walter Charles Rand, an unpopular official responsible for taking
some insensitive decisions while dealing with the plague epidemic in Poona.
The government believed that the article had incited the murder. See,
Chandrachud, An Independent, Colonial Judiciary. However, even according
to the government, the article was not hate speech but ‘sedition’, so this
example was not really relevant.
8. P.K. Chakravarty v. The King-Emperor, AIR 1926 Cal 1133 (decided by two
judges). Followed in Hemendra Prasad v. King Emperor, AIR 1927 Cal 215.
9. However, the intent was to be seen from the words used in the article itself.
10. Raj Paul v. Emperor, AIR 1927 Lah 590.
11. Raj, ‘A Pamphlet and Its (Dis)Contents’.
12. Young India, 19 June 1924, available at: https://babel.hathitrust.org/cgi/pt?
id=mdp.39015069951211;view=1up;seq=207;size=150 (last visited 19
February 2017).
13. Neeti Nair, ‘Beyond the Communal 1920s: The Problem of Intention,
Legislative Pragmatism, and the Making of Section 295A of the Indian Penal
Code’, Indian Economic and Social History Review, 50, 3, (2013), pp. 317340, available at:
http://journals.sagepub.com/doi/pdf/10.1177/0019464613494622 (last visited
18 February 2017).
14. Devi Sharan Sharma v. Emperor, AIR 1927 Lah 594. See further, Chamupati
v. Emperor, AIR 1932 Lah 99 (decided by three judges).
15. Kali Charan Sharma v. Emperor, AIR 1927 All 649. Colonial courts also
took the view that the word ‘classes’ in Section 153-A was not limited to
religious groups. However, a class had to be sufficiently well defined. See,
Emperor v. Phadke, AIR 1940 Bom 379 (decided by two judges); Emperor v.
Maniben, AIR 1933 Bom 65 (decided by two judges); Satya Ranjan Bakshi v.
Emperor, AIR 1929 Cal 309 (decided by two judges); In re: Nawa I Waqat,
AIR 1948 Lah 161; Jonnalagadda v. Emperor, AIR 1936 Mad 835; M.L.
Gautam v. Emperor, AIR 1936 All 561.
16. These words were inserted by the Select Committee of the Legislative
Council so as to protect insults to a religion or religious beliefs ‘in good
faith’, ‘with the object of facilitating some measure of social reform by
administering such a shock to the followers of the religion as would ensure
notice being taken of any criticism so made’. Select Committee Report,
published in the Gazette of India dated 17 September 1927, p. 251 (on file
with the author, with thanks to Mrs Uma Narayan).
17. The words ‘religious beliefs’ were inserted by the Select Committee of the
Legislative Council in order to make it clear that insulting the founder of a
religion was punishable, contrary to what Justice Dalip Singh had held in the
Rangila Rasul case.
18. They were: A. Rangaswami Iyengar, Arthur Moore, K.C. Roy, N.C.
Chunder, N.C. Kelkar.
19. Jinnah wrote a minute of dissent in the Select Committee arguing that the
offence must be made non-bailable. The Select Committee had made it
bailable. Three other members of the Select Committee joined him in this
view. They were: Abdul Haye, Zulfiqar Ali Khan, and J. Crerar.
20. 249 US 47 (1919).
21. Alex McBride, ‘Landmark Cases’, available at:
http://www.pbs.org/wnet/supremecourt/capitalism/landmark_schenck.html
(last visited 2 July 2016).
22. See, Sullivan and Gunther, First Amendment Law, p. 15.
23. Holmes did not use the word ‘crowded’ to qualify the word ‘theatre’.
However, the Holmes quote is often remembered as ‘shouting fire in a
crowded theatre’, and the US Supreme Court has referred to it as such. See,
Carlton F.W. Larson, ‘Shouting “Fire” in a Theater: The Life and Times of
Constitutional Law’s Most Enduring Analogy’, William and Mary Bill of
Rights Journal, vol. 24, pp. 181-212 (2015).
24. Frohwerk v. US, 249 US 204 (1919).
25. At the time, however, it was presumed that a person knew and intended the
natural consequences of his speech. Thus, a person falsely shouting fire in a
crowded theatre was presumed to have intended the consequences caused by
his utterance, even though he might not have intended them in fact. This
approach began to change with Holmes’ opinion in Abrams, as we shall see
below. Tribe, American Constitutional Law, p. 608.
26. Gunther and Sullivan, First Amendment Law, p. 18.
27. Friedman, American Law in the 20th Century, p. 142 (Kindle Edition).
28. Toni Konkoly, ‘Famous Dissents’,
http://www.pbs.org/wnet/supremecourt/personality/landmark_abrams.html
(last visited 2 July 2016).
29. Gunther and Sullivan, First Amendment Law, p. 18.
30. 250 US 616 (1919).
31. Sullivan and Gunther, First Amendment Law, p. 21. See further, Whitney v.
California, 274 US 357 (1927) and Brandenburg v. Ohio, 395 US 444 (1969).
32. It was this approach to the clear and present danger test which appealed most
to US constitutional scholar Lawrence Tribe in his classical treatise on
American constitutional law. Tribe, American Constitutional Law, p. 611.
33. 395 US 444 (1969).
34. Friedman, American Law in the 20th Century, p. 144 (Kindle Edition).
35. See, Gunther and Sullivan, First Amendment Law, p. 46.
36. See further, Hess v. Indiana, 414 US 105 (1973); NAACP v. Claiborne
Hardware Co., 458 US 886 (1982).
37. (1995) 3 SCC 214 (paragraphs 8, 9, 12).
38. AIR 1966 SC 1387 (decided by five judges).
39. Paragraph 23. See further, Ram Bahadur Rai v. State of Bihar and others,
(1975) 3 SCC 710.
40. (1994) 5 SCC 550 (decided by two judges).
41. Paragraph 1.
42. (2015) 5 SCC 1 (decided by two judges).
43. Paragraph 13.
44. AIR 1960 SC 633 (decided by five judges).
45. AIR 1962 SC 1166 (decided by five judges).
46. Paragraph 13.
47. Paragraph 16.
48. AIR 1962 SC 955 (decided by five judges).
49. Paragraph 29.
50. The ‘heckler’s veto’ is commonly associated with ‘fighting words’, i.e.
words which, when spoken, tend to result in violence directed against the
speaker himself, rather than others. Sullivan and Gunther, First Amendment
Law, p. 51.
51. Harry Kalven, Jr., The Negro and the First Amendment (Columbus: Ohio
State University Press, 1965). See, Owen Fiss, ‘Free Speech and Social
Structure’, 71 Iowa Law Review 1405, p. 1416 (1986).
52. (1976) 4 SCC 213 (decided by three judges).
53. Paragraphs 16, 19.
54. (1988) 1 SCC 668 (decided by two judges).
55. Paragraph 13.
56. (1989) 2 SCC 574 (decided by three judges).
57. Paragraph 21.
58. Paragraph 26.
59. Paragraph 35. See further, paragraph 34.
60. Paragraph 51.
61. Paragraph 51.
62. (2007) 5 SCC 11 (decided by two judges). Lalai Singh Yadav’s case was
considered by the court in this case.
63. Paragraph 9.
64. Paragraph 12.
65. Paragraph 19.
66. Babulal Parate v. State of Maharashtra, AIR 1961 SC 884 (decided by five
judges); Madhu Limaye v. Sub-Divisional Magistrate, Monghyr, (1970) 3
SCC 746.
67. Sections 95–96 of the Criminal Procedure Code deal with these powers.
Under Section 95, where it appears to the state government that any
newspaper, book or document contains material prohibited under Sections
124-A (sedition), 153-A (hate speech), 153-B (hate speech), 292 (obscenity),
293 (obscenity), or 295-A (hate speech) of the IPC, it may declare, by
notification in the Official Gazette, every copy of such materials to be
forfeited to the government. Thereafter, police officers have powers to seize
offending materials. Magistrates may issue search warrants to police officers
to enter premises and seize offending materials. An order under Section 95
may be challenged, under Section 96, within two months of its publication in
the Official Gazette, before a Special Bench of three judges of the high court
(where the high court consists of three judges or more).
68. AIR 1961 SC 1662 (decided by five judges).
69. Paragraph 4.
70. Paragraphs 8, 10, 11, 12, 13. Justice Das Gupta dissented on this point, at
paragraph 25.
71. (2010) 7 SCC 398. See further, Manzar Sayeed Khan v. State of
Maharashtra, (2007) 5 SCC 1.
72. Paragraph 28.
73. Paragraph 37(ix).
74. The court laid down nine guidelines for determining when forfeiture orders
could be considered legal: (i) The State government must mandatorily state
its grounds of opinion. If the grounds are totally absent, the order will be
void. The court too must confine itself only to the grounds set out in the
order. (ii) Grounds of opinion must mean ‘conclusion of facts’. A mere
recitation of an opinion or reproduction of the Section will not suffice. (iii)
The validity of the order will depend on the merits of the grounds. (iv) Stray
sentences from a book cannot be taken out of context by the State
government to justify a forfeiture order. (v) The intention of the author must
be gathered from the language, contents and import of the offending material.
If its material is based on ‘folklore, tradition or history’, then ‘something in
extenuation could perhaps be said for the author’. (vi) If the book is
calculated to promote feelings of enmity or hatred among different groups,
however, it is no defence that the book ‘contains a truthful account of past
events or is otherwise supported by good authority’. In the words of the
court, ‘[a]dherence to the strict path of history is not by itself a complete
defence to a charge under Section 153-A IPC’. This is perhaps the most
questionable part of the Supreme Court’s judgment. After all, as George
Orwell said in 1984, ‘[f]reedom is the freedom to say that two plus two make
four. If that is granted, all else follows.’ If a book speaks the truth, then the
author’s intent should not matter. (vii) In order to pass an order of forfeiture,
the relevant offence under the IPC need not be ‘proved’, and elements of the
offence like mens rea need not be established. Thus, even if it may not be
possible for the government to prosecute the author, it can still forfeit his
books. (viii) The onus of rebutting the prima facie opinion of the government
is on the Applicant. (ix) The court also held that the effect of the words must
be judged from the standpoint of the reasonable heckler.
75. AIR 1961 SC 884.
76. Ibid, paragraphs 23–24.
77. (1970) 3 SCC 746.
78. Paragraph 17.
79. Paragraphs 10, 11.
80. (1976) 4 SCC 213 (paragraph 13).
81. (1989) 2 SCC 574 (decided by three judges).
82. Paragraph 9.
83. Paragraph 45.
84. (2015) 5 SCC 1 (decided by two judges).
85. Paragraph 15.
86. Paragraphs 16–17.
87. Paragraph 17.
88. Paragraph 17.
89. Paragraph 18.
90. 343 US 250 (1952).
91. Gunther and Sullivan, First Amendment Law, p. 67.
92. 373 N.E. 2d 21.
93. No. 740309 (California Superior Court, Santa Clara, 1995). See further,
Gunther and Sullivan, First Amendment Law, pp. 86–87.
94. 505 US 377 (1992).
95. 562 US 443 (2011).
96. Justice Alito’s dissent brings this out.
97. See further, Ivan Hare and James Weinstein (eds.), Extreme Speech and
Democracy (Oxford: Oxford University Press, 2009).
98. Jeremy Waldron, The Harm in Hate Speech (Cambridge, MA: Harvard
University Press, 2012).
99. Firstly, Waldron defines hate speech as speech targeting vulnerable
minorities. His definition is as follows: ‘the use of words which are
deliberately abusive and/or insulting and/or threatening and/or demeaning
directed at members of vulnerable minorities, calculated to stir up hatred
against them.’ However, Waldron does not consider it hate speech for a
member of a minority group to launch a vicious speech attack on a majority
group. Likewise, Waldron is not concerned with non-vulnerable minorities,
which in India would presumably translate into typically well-off minority
groups like Parsis or Jains. Waldron’s argument in India would mean that
hate speech directed by Hindus against Muslims would be punishable, but
that hate speech directed by Muslims against Hindus, or by Hindus against
Parsis or Jains, would not—an argument which appears to be untenable.
Secondly, Waldron focuses his attention on the written word over the
spoken word. The written word, he says, is permanent and has a lasting
effect on the well-being of vulnerable minorities, whereas the spoken word,
though harmful, is ephemeral. Words ‘blurted out’, ‘when the spirits are high
and the flagons are low’ [These are the words of Robert H. Jackson, one-time
US Solicitor General] should not be considered hate speech. In today’s
digital age where media like YouTube make even the verbal word
permanent, Waldron’s distinction between the written and verbal is perhaps a
little strained. Recognizing this, Waldron later scales this argument back, and
says that there may be some verbal speech, like vicious racial epithets, which
acquire a character of permanency and which he would brand hate speech as
well.
Thirdly, for Waldron, hate speech is concerned with protecting the dignity
of vulnerable minorities, but not protecting them against feeling offence. For
him, ‘dignity’ means ‘a person’s basic entitlement to be regarded as a
member of society in good standing, as someone whose membership of a
minority group does not disqualify him or her from ordinary social
interaction’. When the dignity of vulnerable minorities is attacked through
hate speech, Waldron believes that it cultivates among them ‘a traumatic
sense of not being trusted, not being respected, not being perceived as
worthy of ordinary citizenship, a sense of being always vulnerable to
discriminatory and humiliating exclusions and insults’. Dignity does not
translate into honour or self-esteem. He distinguishes between indignity and
offence by distinguishing hate speech from blasphemy. For him, blasphemy
does not translate into hate speech. In other words, for Waldron, it is hate
speech to say ‘Members of Religion Y do not belong to India and should
leave’, but it is not hate speech to say ‘The Gods and religious beliefs of
Religion Y are silly’. According to Waldron, even the Danish cartoons
insulting Islam would not be considered hate speech. It is here that Waldron’s
argument seems most tenuous. The line between indignity and offence is a
very fine one, and it is hard to formulate any doctrinal or legislative rule on
its basis.
100. Ramji Lal Modi v. State of U.P., AIR 1957 SC 620 (decided by five judges).
101. Manoj Mitta, ‘Reading Satanic Verses Legal,’ 25 January 2012, Times of
India, available at: http://epaper.timesofindia.com/Repository/getFiles.asp?
Style=OliveXLib:LowLevelEntityToPrint_TOINEW&Type=text/html&Locale=englishskin-custom&Path=CAP/2012/01/25&ID=Ar01101 (last visited 19
February 2017). The publisher, Viking/Penguin, did not come out with an
Indian edition of the book, and the government banned its import into India
from abroad.
102. The Supreme Court in Pravasi Bhalai Sangathan v. Union of India, (2014)
11 SCC 477, has set out a catalogue of statutory provisions under which
hate speech is prohibited in India, though many of these provisions do not
specifically target hate speech in particular.
103. Under Section 153-B, it is an offence punishable with three years’
imprisonment to say that any class of persons cannot, by reason of their
membership in such class, ‘bear true faith and allegiance to the Constitution
of India’ or ‘uphold the sovereignty and integrity of India’ or that such
persons should be ‘denied or deprived of their rights as citizens of India’.
Sections 296 and 298 of the IPC attract a maximum sentence of one year for
disturbing a religious assembly or uttering a word etc. with deliberate intent
to wound religious feelings. Under Section 505, it is an offence punishable
with three years’ imprisonment to incite hate crimes, or to make a statement
containing a ‘rumour or alarming news’ intending to promote feelings of
enmity, hatred or ill will as aforesaid.
104. Section 7(1)(d), Protection of Civil Rights Act, 1955.
105. Section 3(1)(r).
106. Section 3(1)(s).
107. Section 3(1)(u).
108. Section 3(1)(v).
109. Section 3(1)(w)(ii).
110. Under Section 8 of the Representation of the People Act, 1951, a person
convicted of certain offences, including some offences dealing with hate
speech (Sections 153-A or 505 of the IPC or the Protection of Civil Rights
Act, 1955), is disqualified from holding office in Parliament or a state
legislature for a period of six years from his release from imprisonment, or
where he is sentenced only with a fine, for a period of six years from the
date of his conviction. Under Section 123(3A) of the said Act, it is
considered a ‘corrupt practice’ to, among other things, promote ‘feelings of
enmity or hatred between different classes of the citizens of India on
grounds of religion, race, caste, community, or language’, which would
result in the disqualification of the election of a member of Parliament or a
state legislature. Under Section 125 of the said Act, it is also an electoral
offence for any person in connection with any election to, among other
things, ‘promote on grounds of religion, race, caste, community or
language, feelings of enmity or hatred, between different classes of the
citizens of India’, punishable with a maximum term of three years’
imprisonment.
111. Abhiram Singh v. C.D. Commachen, (2017) 2 SCC 629 (decided by seven
judges).
112. Under Section 3(g) of the Religious Institutions (Prevention of Misuse) Act,
1988, a religious institution cannot be used for promoting disharmony or
feelings of enmity, hatred or ill will between different religious, racial,
language or regional groups, castes or communities. The manager of a
religious institution which violates this provision can be sentenced to
imprisonment for a maximum term of five years.
113. Under Section 19 of the Cable Television Networks (Regulation) Act, 1995,
an authorized officer may prohibit any cable operator from transmitting any
programme or channel if it is likely to promote, on grounds of religion, race,
language, caste or community or any other ground whatsoever, disharmony
or feelings of enmity, hatred or ill will between different religious, racial,
linguistic or regional groups, castes or communities.
Chapter 14: The Most Solemn Symbol of a Country
1. Thomas I. Emerson, ‘Toward a General Theory of the First Amendment’, 72
Yale Law Journal 877 (1963).
2. This was in his dissent in Bennett Coleman & Co. v. Union of India, (1972) 2
SCC 788 (decided by five judges).
3. He was not, as yet, the chief justice of India, when he wrote the judgment in
Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India, (1985) 1
SCC 641 (decided by three judges).
4. (1986) 3 SCC 615.
5. Paragraph 1.
6. Paragraph 2.
7. That is, both the single judge and the Division Bench.
8. Paragraph 2.
9. Paragraph 10.
10. Paragraph 11.
11. Paragraph 17.
12. Paragraphs 14–15.
13. Paragraphs 17, 25, 27.
14. Paragraph 27.
15. (2017) 1 SCC 421 (decided by two judges).
16. See, Pratap Bhanu Mehta, ‘Unconstitutional Patriotism: Order on National
Anthem Shows What Is Wrong with the Court’, Indian Express, 3 December
2016, available at: http://indianexpress.com/article/opinion/columns/nationalanthem-cinema-halls-supreme-court-order-unconstitutional-patriotism4407560/ (last visited 2 January 2017); Upendra Baxi, ‘Unfair to Justices’,
Indian Express, 12 December 2016, available at:
http://indianexpress.com/article/opinion/columns/supreme-court-national-
anthem-cinema-halls-unfair-to-justices-4422239/ (last visited 2 January
2017); Pratap Bhanu Mehta, ‘Prof Baxi versus St Baxi’, Indian Express, 14
December 2016, available at:
http://indianexpress.com/article/opinion/columns/supreme-court-nationalanthem-cinema-halls-indian-judiciary-4425814/ (last visited 2 January 2017).
17. Mehta, ‘Unconstitutional Patriotism’.
18. See, Nick Allen, ‘Colin Kaepernick: NFL Black Lives Matter protests recall
rebellious spirit of 1960s sporting greats’, The Telegraph, 18 September
2016, available at: http://www.telegraph.co.uk/news/2016/09/18/colinkaepernick-nfl-black-lives-matter-protests-recall-rebellio/ (last visited 2
January 2017).
19. See, Des Bieler, ‘National anthem singer kneels while wearing ‘Black Lives
Matter’ shirt’, The Washington Post, 22 October 2016, available at:
https://www.washingtonpost.com/news/early-lead/wp/2016/10/22/nationalanthem-singer-kneels-while-wearing-black-lives-matter-shirt/?
utm_term=.eb121759e645 (last visited 2 January 2017).
20. West Virginia State Board of Education v. Barnette, 319 US 624 (1943).
21. (2004) 2 SCC 510.
22. Paragraph 3.
23. Paragraph 19.
24. Paragraph 7.
25. Paragraph 7.
26. Paragraph 8.
27. Paragraph 26.
28. Paragraph 26.
29. Paragraphs 34, 35, 53.
30. Paragraph 71, 83.
31. Paragraph 48.
32. On flag burning, see further, Kabir Duggal and Shreyas Sridhar, ‘Reconciling
Freedom of Expression and Flag Desecration: a Comparative Study’, Hanse
Law Review, vol. 2, pp. 141–58 (2006), available at:
http://hanselawreview.eu/wp-content/uploads/2016/08/Vol2No1Art10.pdf
(last visited 2 January 2017).
33. Paragraph 90.
34. Paragraph 77.
35. Paragraph 77.
36. See, Dipak K. Dashl, ‘Jio Could Face Rs 500 Fine for Using PM Modi’s Pic
in Ad’, Times of India, 3 December 2016, available at:
http://timesofindia.indiatimes.com/india/Jio-coukld-face-Rs-500-fine-for-
using-PM-Modis-pic-in-ad/articleshow/55761435.cms (last visited 2 January
2017); ‘Reliance Could be Fined Rs 500’, Indian Express, 3 December 2016,
available at: http://indianexpress.com/article/india/reliance-could-bepenalised-for-using-pm-modis-photograph-in-jio-advertisements/ (last visited
2 January 2017).
37. ‘Shashi Tharoor Exonerated in National Anthem Case’, The Hindu, 7 July
2013, available at: http://www.thehindu.com/todays-paper/shashi-tharoorexonerated-in-national-anthemcase/article4890798.ece (last visited 30 May
2016); Mahir Haneef, ‘Shashi Tharoor Acquitted in Anthem Case’, Times of
India, 7 July 2013, available at:
http://timesofindia.indiatimes.com/india/Shashi-Tharoor-acquitted-inanthem-case/articleshow/20950253.cms (last visited 30 May 2016).
38. ‘Writer and Disability Campaigner Thrashed . . . ’, Indian Express, 20
October 2016, available at: http://indianexpress.com/article/india/india-newsindia/writer-and-disability-campaigner-thrashed-in-goa-theatre-for-notstanding-up-during-national-anthem-3093030/ (last visited 3 December
2016).
39. Paragraph 1.2.
40. Paragraph 2.2(x).
41. Paragraph 2.2(v).
42. Paragraph 2.2(xiii).
43. Paragraph 2.3(viii).
44. Paragraph 3.44.
45. Paragraph 3.50.
Chapter 15: Methods of Influencing the Press
1. See, Express Newspapers v. Union of India, AIR 1958 SC 578 (paragraph
119); Sakal Papers Pvt. Ltd. v. Union of India, AIR 1962 SC 305 (paragraph
24); Bennett Coleman & Co. v. Union of India, (1972) 2 SCC 788 (paragraph
31); Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India, (1985)
1 SCC 641 (paragraph 23); Printers (Mysore) and another v. Assistant
Commercial Tax Officer and others, (1994) 2 SCC 434 (paragraph 10).
2. AIR 1958 SC 578 (decided by five judges).
3. Working Journalists (Conditions of Service) and Miscellaneous Provisions
Act, 1955.
4. K.M. Munshi, champion of free speech in the Constituent Assembly, appeared
on behalf of some of the petitioners.
5. Paragraph 139.
6. Paragraph 139.
7. AIR 1962 SC 305 (decided by five judges).
8. Section 3, Newspaper (Price and Page) Act, 1956 and the Daily Newspaper
(Price and Page) Order, 1960.
9. Paragraph 20.
10. ‘N.P.’ presumably stood for ‘Naye Paise’ to distinguish it from the old paise
which was 1/64th of a rupee. See, ‘Republic India Coinage’, RBI Monetary
Museum, available at: https://www.rbi.org.in/currency/museum/c-rep.html
(last visited 2 January 2017).
11. Paragraph 24.
12. Paragraph 24.
13. Paragraph 31.
14. Paragraphs 34–36.
15. Paragraph 42. See further, paragraphs 43–45.
16. Paragraph 48.
17. (1972) 2 SCC 788 (decided by five judges).
18. Paragraph 64. Lawyers who now have legendary status in India’s legal
profession, appeared for the newspapers. M.K. Nambiar appeared for The
Hindu, Nani Palkhivala for the Bennett Coleman (Times of India) group, and
C.K. Daphtary for the Hindustan Times. Paragraph 58.
19. Paragraph 43. See further, paragraphs 62, 66, 67, 71, 77, 88, 89.
20. Paragraph 64.
21. Paragraph 155.
22. Paragraph 157.
23. Paragraph 159.
24. Paragraph 159.
25. See, e.g., Megha Bahree, ‘Reliance Takes Over Network18: Is This The
Death Of Media Independence?’, Forbes Business, 30 May 2014, available
at: http://www.forbes.com/sites/meghabahree/2014/05/30/reliance-takesover-network18-is-this-the-death-of-media-independence/#1e220e6d4543
(last visited 29 May 2016); Vikram Johri, ‘The Reliance Effect: When Is
Corporate Ownership of Media Especially Dangerous?’, Newslaundry.com,
30 November 2015, available at:
https://www.newslaundry.com/2015/11/30/the-reliance-effect-when-iscorporate-ownership-of-media-especially-dangerous (last visited 2 January
2017). See further, Rahul Bhatia, ‘The Network Effect’, Caravan Magazine,
1 December 2013, available at:
http://www.caravanmagazine.in/reportage/network-effect (last visited 2
January 2017).
26. See, Ashish K. Mishra, ‘Inside the Network18 Takeover’, Live Mint, 25 June
2014, available at:
http://www.livemint.com/Companies/rqT2Oi8fwv4XVjJcHzlcVN/Inside-theNetwork18-takeover.html (last visited 29 May 2016); Vikram Johri, ‘The
Reliance Effect’.
27. Krishn Kaushik, ‘The Big Five: The Media Companies That The Modi
Government Must Scrutinise To Fulfill Its Promise Of Ending Crony
Capitalism’, Caravan, 19 January 2016, available at:
http://www.caravanmagazine.in/vantage/the-big-five-the-media-companiesthat-the-modi-government-must-scrutinise-to-fulfill-its-promise-of-endingcrony-capitalism (last visited 29 May 2016).
28. Naazneen Karmali, ‘The Curious Incident of Mukesh Ambani’s Aston
Martin In the Night Time’, Forbes, 2 January 2014, available at:
http://www.forbes.com/sites/naazneenkarmali/2014/01/02/the-curiousincident-of-mukesh-ambanis-aston-martin-in-the-night-time/#2eb232cf85fe
(last visited 29 May 2016); Arunabh Saikia, ‘The Car Crash That Never
Was’, newslaundry.com, 12 December 2013, available at:
http://www.newslaundry.com/2013/12/12/the-car-crash-that-never-was/ (last
visited 29 May 2016).
29. (1985) 1 SCC 641 (decided by three judges).
30. Paragraph 4.
31. Paragraph 65.
32. Paragraph 69.
33. Paragraph 32.
34. (1982) 1 SCC 1. In Sheela Barse, the Supreme Court indicated that the order
in Prabha Dutt had been authored by the chief justice of India at the time.
35. See, Prakash Patra, ‘With Billa, hours before the hanging’, Telegraph, 9
March 2015, available at:
http://www.telegraphindia.com/1150309/jsp/frontpage/story_7610.jsp#.V0UdepN96LI
(last visited 30 May 2016).
36. Paragraph 2.
37. Paragraph 2.
38. Paragraph 2.
39. Paragraph 3.
40. Paragraph 10.
41. See, Prakash Patra, ‘With Billa, Hours before the Hanging’.
42. (1987) 4 SCC 373.
43. See, paragraph 3.
44. See, M.C. Mehta v. Union of India, (1987) 1 SCC 395.
45. Paragraph 13.
46. Paragraph 14.
47. Paragraph 14.
48. (1986) 1 SCC 133 (decided by three judges).
49. Paragraph 3.
50. Paragraph 76.
51. Paragraph 201.
52. Paragraph 207.
Acknowledgements
I am grateful to many people for making this book possible. Many thanks to
Nick Robinson, Mark Tushnet, Mitra Sharafi, Jim Jaffe, Vasujith Ram, Pratap
Bhanu Mehta and Madhav Khosla for commenting on draft chapters of this
book. Thank you, Fernan Restrepo, Sandeep Ranade, Vyoma Jha, Arun Natessan
and Pranay Chitale, for taking time out of your busy schedules to help me obtain
rare research material. Thanks are owed to David Kenny, Neeti Nair and Ram
Guha, for speaking or corresponding with me in connection with this book.
Special, warm thanks are due to Mrs Uma Narayan, without whom this book
could never have been written. Many thanks to my senior, Mr Darius Khambata,
from whose advice, library and research resources I have benefited a great deal. I
would like to thank my research assistants, Shreyas Narla and Sakshi Bhalla, for
diligently and painstakingly checking all the citations and sources in the book.
Many thanks to Professor K.L. Daswani. I enjoyed presenting some of the
themes of this book at St Xavier’s College, Mumbai, under the aegis of the
Xavier’s Political Science Association and Young Bhartiya Foundation and
thanks are due to the organizers and participants. Thank you, Rahul Mhaskar and
the team at Hammurabi Tablet for inviting me to present the book. Many thanks
to Meru Gokhale for making this book possible, to my editor, Premanka
Goswami, to Saloni Mital and to the whole team at Penguin. Finally, many
thanks to my family, especially my in-laws, Aai and Baba, and to Dad and
Kalpana, for all their warmth, support and encouragement, through good times
and bad.
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