Free Speech and Public Order – IV: After Lohia

The Court has dealt with the public order exception many times after the Lohia case (1960), discussed in the last post. In Dalbir Singh v. State of Punjab (1962), the Court affirmed the proximity-proportionality test in Lohia, while sustaining the conviction of certain persons for inciting disaffection among the police. The final decision in this case, however – as the Court pointed out – rested upon the specific context of the police forces being involved; and indeed, the ratio of Dalbir Singh was expressly limited to the context in question in the subsequent case of Kameshwar Prasad v. State of Bihar (1962). In that case, a ban on all demonstrations involving government servants was struck down as being violative of Article 19(1)(a). Rejecting governmental reliance upon Dalbir Singh, the Court held that the ban encompassed all demonstrations, “however innocent and however incapable of causing a breach of public tranquillity and [did] not confine itself to those forms of demonstrations which might lead to that result.” (Paragraph 20)

While the Court has here adopted a bare likelihood test, there is a distinction between this case and the Lohia and Rangarajan cases: in the latter, what was at issue was the communication of a message by a person to other persons that – it was alleged – would persuade or prompt them to breach the public order; whereas in Kameshwar Prasad, it is the demonstration itself that – by potentially turning violent – is sought to be curtailed. Or, in other words, Lohia and Rangarajan were about regulating the content of speech and expression – banning a certain message that, it was alleged, would lead to a public order disruption – whereas Kameshwar Prasad is about regulating the manner of speech and expression, and makes no mention of censoring content because of its propensity to disorder (see American First Amendment jurisprudence for a detailed analysis of the difference). Often, of course, the two come together: for instance, I set fire to a house in order to express my disapproval of the institution of private property. Naturally, I will be restrained or punished, but the crucial point is that that will be because I burnt a house, and not because I communicated a certain point of view. Kameshwar Prasad deals with a situation analogous to the former case, and so a bare likelihood test does not suffer from the same problems of respecting autonomy that it would in the cases we have discussed in the previous two posts.

We may now consider two cases – State of Bihar v. Shailabala Devi  (1952) and Santokh Singh v. Delhi Administration (1973). Shailabala Devi is, of course, eight years before Lohia, but I analyse it here because it is best understood when studied beside Santokh Singh. In Shailabala Devi, under S. 4(1)(a) of the Indian Press Act, which dealt with “words or signs or visible representations which incite to or encourage, or tend to incite to or encourage the commission of any offence of murder or any cognizable offence involving violence“, the Bihar government passed an order against a certain pamphlet called Sangram, that called for revolution and overthrow of the State, and used phrases such as “break the proud head of the oppressors“. The Court observed that: “Rhetoric of this kind might in conceivable circumstances inflame passions as, for example, if addressed to an excited mob, but if such exceptional circumstances exist it was for the State Government to establish the fact.” In the absence of any such proof, it was to be assumed that the pamphlet would be read in places where the atmosphere was “normal“. (paragraph 14) The Court’s reference to the background circumstances is interesting, because as we have discussed before, the situation of the excited mob is – arguably – a situation of diminished rationality, where the usual argument about disrespecting autonomy by holding somebody else responsible for the acts of thinking individuals does not apply. While the Court demonstrates itself to be aware of this distinction, it nonetheless – and I would submit, lamentably – also assumes there could, potentially, be situation where “reasonable readers” (paragraph 17) could be affected by pamphlets worded more cleverly. Yet surely, if a reasonable reader, who presumably operates through the use of reason, is convinced that there exists an urgent and immediate need for overthrowing the State, it is the State that should be taking a long, hard look at itself! In any event, the situation remains hypothetical, and it is the Lohia opinion that ought to continue to hold the field.

In light of this, consider now the judgment in Santokh Singh, where the Court upheld the constitutionality of S. 9(1)(a) of the Punjab Security of State Act, that criminalised “any speech… prejudicial to the maintenance of public order.” It is submitted that a speech is not and cannot be prejudicial to the maintenance of public order – it is the actions of people that are; by holding a speech to be so prejudicial, one presupposes that autonomous, thinking individuals are bound to think one way, and withholds from them their entitlement to ethical responsibility. Much, however, turns on the meaning of the word “prejudicial” – that, like the word “proximity” discussed in the last post, could reasonably be interpreted to contain within it an autonomy-respecting limitation. Here, if we read Santokh Singh in light of Shailabala Devi, especially the distinction between the situation of an excited mob and that of “normal circumstances”, we have a more defensible principle at work.

We may, in passing, mention for the sake of completeness, the case of Madhu Limaye v. Ved Murti (1971), where the Court – interestingly – narrowed the definition of public order, holding it to lie somewhere between undermining the security of the state and disrupting public tranquility. In other words, departing from previous decisions that held public order to be equivalent to public tranquility, the Court held that something more was needed than mere disruption of the serene atmosphere that existed among citizens (paragraphs 19 – 21).

We shall end our discussion of the important public order cases by recalling a particular expression used in S. Rangarajan v. P. Jagjivan Ram (analysed before): the connection between speech and public order disruption must be like that of a “spark in a powder keg”. The Court’s analogy is, I think, strikingly accurate. There are two defining features of the connection between the spark and an explosion: inevitability, and direct and immediate causation (without any intervening event). It will be clear that both features respect the autonomy limitation, since they are applicable only in situations where – for some reason – individuals that are otherwise responsible and capable of judging reasons for and against an action are (temporarily) incapacitated from doing so: they are present in the case of someone shouting fire in a crowded theatre, and it is at least arguable that they are present (albeit to a lesser degree) in the case of inciting an excited, armed crowd to immediate violence. It is equally clear that they are not present in merely giving a speech or writing an article advocating the overthrow of the State, or writing a book that some people take offence to, and decide to express their feelings by ransacking libraries. In political cases before it, moved no doubt by legitimate and valid concerns about security and stability, the Court has, more often than not, adopted tests considerably more lax than the spark in a powder keg. Over the course of the last four posts, I have tried to argue that this is a philosophical mistake.

There remains one category of case-law that should – technically – fall under the public order exception, but has always been treated separately, and has generated much controversy in its own right. This is the notorious law of sedition. The next post shall be devoted to a discussion of the cases that have dealt with this concept, and whether – as a matter of constitutional law and political philosophy – it is justified for it to remain upon the statute books.