Free Speech and Public Order – I: Before the Amendment, and the Idea of Responsibility

Article 19(2) allows for reasonable restrictions upon the freedom of speech and expression “in the interests of… public order.” Much turns upon the meaning given to “in the interests of” and to “public order“. While the latter is a term of art, and has been judicially defined, the former is not. It is here that some of the most interesting philosophical issues arise. What happens if certain unflattering descriptions in my new book on a revered Maratha military leader “cause” a mob to go on a rampage and destroy public property? What happens if I write an article in an academic journal such as the New Left Review, advocating all material support to the Naxalite movement, whose stated goal is the overthrow of the Indian state? Is this different from standing upon a pulpit and urging an enraged crowd armed with grappling hooks towards “one more push” to tear down a mosque built upon a disputed religious site? And is this, in turn, different from shouting “fire!” in a crowded theatre? All these are examples of some connection between speech and the disruption of public order. Nonetheless, our intuitions – I assume – differentiate these four situations in terms of justifiable interference with free speech, and arrange them in ascending order of support for interference (the second and third perhaps being penumbral cases). Yet what principled difference could account for and justify our intuitions? And has the Court enunciated such a principle?

The original wording of Article 19(2), however, used the phrase “undermines the security of, or tends to overthrow, the State.” In Romesh Thappar v. State of Madras (1950), the first important case on free speech, the constitutionality of S. 9(1-A) of the Madras Maintenance of Public Order Act was challenged before a Constitution Bench of the Supreme Court. The section allowed the state government, for the purpose of securing public safety and maintaining public order, to control and regulate the entry and circulation of any set of documents (primarily, newspapers) in the state.

The Court, therefore, had to clarify the meanings of “public order”, “public safety” and “undermines the security of…” It defined “public order” as that “state of tranquillity which prevails among the members of a political society”; on technical grounds, it found that “public safety” meant, in this context, the same thing (paragraph 5). Undermining the security of the State – the 19(2) clause – meant “nothing less than endangering the foundations of the State or threatening its overthrow.”  (paragraph 8) Therefore, there was a clear difference in degree between the two clauses. The Court also cited the fact that the word “sedition” had been deleted and replaced by the present formulation of 19(2); and the narrow definition of sedition affirmed by the Privy Council in King Emperor v. Sadashiv Narayan Bhalerao implied that there were “very narrow and stringent limits” enunciated in 19(2) – because “freedom of speech… lay at the foundation of all democratic organisations… without free political discussion no public education, so essential for the proper functioning of the processes of popular government, is possible.” (paragraph 9) S. 9(1-A), therefore, which used the broader phrase “public order“, was unconstitutional.

Fazl Ali J. dissented, and the reasons for his dissent were elaborated in Brij Bhushan v. State of Delhi, where the issue was essentially the same. In that case, S. 7(1)(c) of the East Punjab Public Safety Act, which allowed pre-publication scrutiny of material “prejudicial to public safety or the maintenance of public order” – essentially, pre-censorship – was challenged. The majority followed the decision and reasoning in Romesh Thappar. Fazl Ali J. held, on the other hand, that “public order”, “public safety”, “sedition” and “undermining the security of… the State” essentially amounted to the same thing. Applying somewhat convoluted logic, he held that because sedition “undermines the security of the State usually through the medium of public disorder… therefore it is difficult to hold that public disorder or disturbance of public tranquility are not matters which undermine the security of the State.

Readers wil note that this is a non sequitur, and the word “therefore” is used incorrectly. The dispute between the Majority and Fazl Ali J. in Romesh Thappar and Brij Bhushan is, however, crucial towards understanding what came after: these decisions did not please the legislature, and in the First Amendment to the Constitution (1951), “undermines the security of, or tends to overthrow the State” was replaced by “in the interests of… public order.” In the Statements of Objects and Reasons, it was stated that “the citizen’s right to freedom of speech and expression guaranteed by article 19(1)(a) has been held by some courts to be so comprehensive as not to render a person culpable even if he advocates murder and other crimes of violence.” The legislature, therefore, accepted that there was a difference in degree between undermining the security of the State and undermining public order, and chose this latter standard.

We thus have a term of art (public order), and a working definition provided by the Court in Romesh Thappar. There is, however, a substantial amount of work to be done: in particular (see the opening paragraph), we need a principle for the causal connection between particular forms of speech, and disruptions of public order. 

In previous posts we have discussed, incidentally, Scanlon’s theory of free speech, that is part of the liberal political tradition. The public order question brings that to a head; I shall therefore provide a brief exegesis of Scanlon’s account, and in subsequent posts, examine judicial decisions through that lens.

Scanlon holds that a foundational principle of our legal system and our legal thought is that of responsibility: in the present context, we can censor someone’s speech on the ground of consequential harm only if we can show that she is responsible – in some way – for the alleged harm. This leads to an important distinction: restrictions based upon the communication of a particular viewpoint are unjustified, whereas those that refer to features (or, manner) of the expression (such as time, place, loudness) might be putatively legitimate (essentially, the American First Amendment doctrine of content neutrality).

Why is this so? Take two examples: a misanthropic inventor is prohibited from handing out copies of a homemade nerve-gas recipe at the nearest street corner; and ‘seditious propaganda’ aimed at challenging the authority of the government is banned. The crucial distinction between the two situations, Scanlon says, is that the latter moves people to act by providing them reasons for the proposed action, while the former provides them with means to do what they would have done anyway.

To elaborate: in the case of seditious propaganda, the acting agent “comes to her own judgment” about the merits of his action. Our basic intuitions of individual autonomy necessitate us attributing responsibility for the action to her. This then leads to the basic principle: you cannot censor free speech “where the connection between the acts of expression and the subsequent harmful acts consists merely in the fact that the act of expression led the agents to believe (or increased their tendency to believe) these acts to be worth performing.” This is because “the harm of coming to false beliefs is not one that the autonomous man could allow the State to protect him through restrictions on expression.” The very concept of autonomy requires you, as an individual, to apply your own canons of rationality in coming to beliefs, decisions and the weighing of reasons for action.

This differentiates the four situations mentioned in the first paragraph. Shouting fire in a crowded theatre is a clear case where actors – temporarily – possess diminished rationality, and are not in a position to weigh reasons for action (fleeing and stampeding, or not); direct incitement of a mob is an arguable case of the same; seditious propaganda in the abstract is probably not such an instance; and an academic treatise that treats its theme as one of academic enquiry certainly isn’t. Scanlon’s argument, therefore, provides us with a principle of differentiation grounded in the liberal idea of the individual autonomous self; whether that principle works, and whether the Court has subscribed to it in any form, we shall now proceed to examine.



Filed under Free Speech, Public Order

4 responses to “Free Speech and Public Order – I: Before the Amendment, and the Idea of Responsibility

  1. Will you later come to Khushwant Singh etc?

  2. Correct me if I’m wrong, but wasn’t Khushwant Singh primarily a privacy case? I’m aware that the Court spoke about sparks in powder kegs, but I can’t quite figure out where that observation fits into the overall scheme of the judgment. Khushwant Singh certainly deserves analysis and discussion, but do you think it comes under the public order series of cases?

    Also, are there other cases that you think definitely ought to be discussed in this context?

  3. Pingback: Free Speech and Public Order – II: Film Censorship and the Rangarajan Case | Indian Constitutional Law and Philosophy

  4. Pingback: Free Speech and Public Order – III: Causation, Respecting Autonomy and the Lohia Case | Indian Constitutional Law and Philosophy

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