Safeguarding free speech from threats is important |Opinion
When early drafts of the fundamental right to freedom of speech were put before the Constituent Assembly, members protested that the right was “riddled with so many exceptions that the exceptions have eaten up the right altogether.”
The framers of the Constitution drew from the example of the Irish Constitution by providing specific subjects on which the state could make law to restrict the freedom of speech. This was markedly different from the US Constitution, under which the freedom of speech was not mottled with exceptions, and was “absolute”, at least on the face of it.
There was a lively debate before the Constituent Assembly on what the permissible exceptions should be. Eventually, when the Constitution came into force on January 26 ,1950, the only grounds on which the fundamental right to freedom of speech and expression could be restricted were “libel, slander, defamation, contempt of court or any other matter which offends against decency or morality or undermines the security of or tends to overthrow the state.” Notable exceptions which found themselves in earlier drafts but got dropped in the end, were “sedition”, “public order”, “class hatred” and “blasphemy”.
Only a few months into the republic, the newly minted fundamental right to freedom of speech and expression under Article 19(1)(a) was put to test. The restrictions under Article 19(2) were invoked by three state governments to clamp down on select publications.
In Bihar, the government cracked down on a provocative political pamphlet. The high court rejected the state’s contention and that view was upheld by the Supreme Court in State of Bihar v Shailabala Devi.
In Madras, the state banned Crossroads, a communist weekly published by Romesh Thapar who was famously critical of many of Prime Minister Jawaharlal Nehru’s policies. The Supreme Court struck down the ban and the law under which it was issued, holding that nothing short of a threat to “overthrow the state” could justify a restriction on the freedom of speech under Article 19(1) (a). A breach of order of a purely local significance could not meet the test. This was followed in Brij Bhushan’s case, where the court struck down a pre-censorship order on the Organiser, a weekly run by the Rashtriya Swayamsevak Sangh.
Upset by the rulings, Nehru wrote to the then law minister BR Ambedkar, expressing a need to amend the Constitution to contain subversive activities. But on the floor of Parliament, Nehru justified the need for an amendment, not on a political ground but a “moral” one.
This was curious given that the occasion for the amendment was the three unfavourable rulings. Taking the moral high ground he said, “It has become a matter of the deepest distress to me to see from day to day some of these news sheets which are full of vulgarity and indecency and falsehood day after day not injuring me or this House much , but poisoning the mind of the younger generation, degrading their mental integrity and moral standards.”
In a speech which acquires special relevance in times of rampant and reckless fake news about seven decades later, he complained that “from the way untruth is bandied about and falsehood thrown about it has become quite impossible to distinguish what is true and what is false.”
The first amendment to the Constitution in 1951 expanded the exceptions to the freedom of speech to eight from what were originally four. Public order, security of the state, incitement to an offence and friendly relations with foreign states were the new insertions. One redeeming feature was that the subjects of restriction were prefixed with the word “reasonable”.
In 1963, a new ground was added: “in the interests of the sovereignty and integrity of India”. But despite the increased subjects of curtailment, seven decades of working the Constitution tell us that the enumeration of specific subjects in Article 19(2) on which the freedom of speech could be restricted, actually kept a check on excessive inroads into the freedom of speech. The addition of the word, “reasonable” helped to reign in the restrictions, even on the eight permissible grounds. Each restriction was required to meet the test of proportionality. The enumeration of restrictions, once condemned as eating up the right altogether, have emerged, somewhat paradoxically, as its protector.
In the landmark judgment Shreya Singhal v Union of India, comparing Article 19(1)(a) with its American counterpart, Justice Rohinton F Nariman held that while under the Indian Constitution, the right could be curtailed only on the eight grounds specified under Article 19(2), the American Constitution was not constrained by such limitations and the restrictions could travel beyond, so long as there was a “clear and present danger” to a competing right. The belief that the freedom of speech under the American Constitution was absolute was therefore, a misnomer.
Article 19(2) is organic enough to take care of challenges that might not have been envisaged so many years ago. At the forefront of civil liberties in recent times, is the right to privacy. Now recognised as a fundamental right, privacy concerns need to be balanced with the freedom of speech. Article 19(2) does not specifically mention privacy. But it does mention “decency and morality” as exceptions to free speech, and these exceptions are not limited to affording protection only against obscenity – they are broad enough to make space for privacy, an important “moral” value in any decent civilised society.
In Kaushal Kishor v Union of India, the Supreme Court, usually a staunch and steadfast guardian of the freedom of speech from the early days of the republic, decided to refer to a bench of five judges the question of whether the freedom of speech could be curtailed on grounds beyond those specified in Article 19(2), and whether Article 21, which has been stretched to include everything from the right to sleep to the right to a toilet can be invoked to introduce further curbs on the freedom of speech.
While the right to life and personal liberty under Article 21 in its many resplendent avatars, is vital, so is the freedom of speech and expression. We, in India chose to adopt the Irish template and consciously departed from the American one. The framers of our Constitution were careful to minimise the restrictions in Article 19(2), while seeking to ensure that all the social values which need to be protected from reckless speech found place in Article 19(2). Articles 19(1)(a) and 19(2) strike a good balance between protecting both free speech and other competing rights. There are grave dangers in opening a back door for inroads into Article 19(1)(a), particularly through a right as elastic as Article 21. Article 19(2) draws a Laxman Rekha and it is important, in the interests of free speech to stay well within that threshold.
( Madhavi Goradia Divan is Additional Solicitor General of India)