On Reasonable Restrictions and the First Amendment

In The Hindustan Times, Avantika Mehta has written a perceptive review of Offend, Shock, or Disturb: Free Speech under the Indian Constitution. In particular, I found this observation interesting, and one that calls for a response:

“… when Bhatia discusses hate speech without bringing up parliamentary debates on the issue or a beloved politician’s contribution to enacting the law he finds so vile – yes, we are referring to Nehru’s introduction of the “reasonable restrictions” clause of our FOE — he does a disservice to history and to his readers. Historians have noted that the clause was brought in to muzzle the Hindu Mahasabha. The amendments were later used by the Supreme Court to uphold the law of sedition, which Bhatia extensively discusses in the book without looking into the realpolitik of the situation.”

There is considerable controversy over Nehru’s role in the constitutional history of the free speech provision. It is therefore important to clarify what Nehru was responsible for, and what he wasn’t. To start with, let us take the text of Article 19(2) as it stood at the time the Constitution was adopted:

“(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law in so far as it relates to, or prevents the State from making any law relating to, libel, slander, defamation, contempt of court or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow, the State.”

After the First Amendment (which was brought about in response to cases such as Romesh Thappar vs State of Madras and Brij Bhushan vs State of Delhi), the modified Article 19(2) now read:

“(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.”

Two points need to be made.

First, restrictions upon the freedom of speech were not introduced by Nehru via the First Amendment. Article 19(2) was part of the original Constitution. The final wording of the sub-clause was the result of intense and bitter debate in the Constituent Assembly, but – interestingly enough – Nehru was not a very active participant in that debate. The intellectual defence of a restrictions clause was provided by Ambedkar in a lengthy speech, where he cited Gitlow vs New York (American Supreme Court) for the specific proposition that free speech must be constrained in certain circumstances. Sardar Patel also provided strong support for Article 19(2) (then draft Article 13(2)), on more than one occasion. A perusal of Nehru’s speeches indicate that he was clearly in favour of the restrictions clause, but the heavy lifting – at least in the Assembly – was primarily done by Ambedkar and Patel, and certain other members such as Brajeshwar Prasad. Opposition to the restrictions clause came from two quarters: the Left (Somnath Lahiri, in particular), and the (Hindu) Right, both of whom advanced nuanced and subtle arguments calling for the restrictions clause to be scrapped altogether, or to be watered down. Unfortunately, they lost.

Secondly – and this is crucially important – the First Amendment did two different things, which need to be kept separate. First, it expanded the scope of Article 19(2) by introducing the terms “public order” and “incitement to an offence”. This was clearly done with a view to get around the decisions of the Supreme Court in Romesh Thappar and Brij Bhushan, which had struck down a ban on a left-wing journal and pre-censorship of a right-wing (RSS) journal respectively (N.B.: it wasn’t just about suppressing the Hindu Mahasabha – it was equally about suppressing communism), on the basis that the original Article 19(2) did not authorise the State to impose restrictions upon free speech in the interests of public order, but required it to discharge the higher burden of showing a threat to the security of the state. This was a regressive step, and as the mover of the Amendment, Nehru deserves to be severely criticised for it.

However, this was not all that the First Amendment did. In addition to expanding the scope of Article 19(2), it also introduced the word “reasonable” into the sub-clause. This word did not come out of a vacuum, but had a long history behind it. In a forthcoming paper on free speech in the Constituent Assembly Debates, I attempt to explain the significance of the word “reasonable”, for the framers. Consider the following excerpt:

“Distrust of the State was also the underlying motivation of another set of objections to the wording of the restrictions clause. Sardar Hukum Singh perceptively noted that the phrase “in the interest of”, placed just ahead of the substantive restrictions, would serve to reduce the Supreme Court’s area of review to a very narrow sliver. The question of whether a legislation was “in the interest” of the security of the State, for instance, would restrict the Court to merely being able to interrogate its bona fides.[1] “The proviso in article 13(3)”, he argued, “has been so worded as to remove from the Supreme Court its competence to consider and determine whether in fact there were circumstances justifying such legislation.”[2] Pandit Thakur Dass Bhargava suggested a way out: add “reasonable” before “restrictions.” This, he suggested, would ensure that “the courts shall have to go into the question and it will not be the legislature and the executive who could play with the fundamental rights of the people. It is the courts which will have the final say.”[3] In that context, Hukum Singh, in fact, took on Ambedkar on his own terms. Ambedkar’s argument that he could produce a foreign precedent for every restriction placed in draft clause 13(2), he argued, was inapposite, because in other countries, it was the judiciary’s task to balance the competing interests of liberty and social order.[4]” [Footnotes omitted]

The word ‘reasonable’, therefore, was meant to legitimise judicial review over free speech restrictions. Note that Romesh Thappar and Brij Bhushan were decided on the basis that the laws in question related to “public order”, and not to “security of the State”. Without the introduction of the word “reasonable”, this jurisprudence would have very soon hit a dead end, since the only enquiry that the Court could undertake would be whether there existed some discernible relationship between the restriction and the contents of Article 19(2). The nature of that relationship would have remained beyond judicial review.

It was the word “reasonable”, in fact, that allowed the Supreme Court to introduce a proximity requirement between speech and public disorder in Ram Manohar Lohia’s Case, and kickstarted the limited free-speech protections that we find in the Supreme Court’s jurisprudence today. Without that word, the few progressive free speech decisions in our constitutional history would not have existed: there would have been no Lohia, no Arup Bhuyan, and no Shreya Singhal.

It’s possible, of course, that a more textually constrained Court would have found more creative ways to protect civil rights, and ended up developing a better and more coherent free speech jurisprudence. The history of the Court, however, suggests that this would have been a highly unlikely outcome.

In sum, therefore, it’s important to reiterate two basic points that seem to repeatedly get submerged in discussions about the Constituent Assembly and the First Parliament, in the context of free speech. First, an extensive restrictions clause existed in the original Constitution, and one that was accepted by all the major figures of the Assembly – Ambedkar, Patel, Nehru, Alladi Krishnaswamy, and so on. And secondly, the First Amendment was regressive in that it expanded the scope of 19(2), but progressive in that it also expanded the scope of judicial review (what the Court has done with its expanded powers is a different question entirely).




Free Speech and Contempt of Court – II

(This post first appeared on the CIS website)

Towards the end of the last post, we saw how the Law Commission traced the genealogy of the “scandalising the Court” offence, inasmuch as it sought to protect the “standing of the judiciary”, to that of seditious libel. The basic idea is the same: if people are allowed to criticise state institutions in derogatory terms, then they can influence their fellow-citizens who, in turn, will lose respect for those institutions. Consequently, the authority of those institutions will be diminished, and they will be unable to effectively perform their functions. Hence, we prevent that eventuality by prohibiting certain forms of speech when it concerns the functioning of the government (seditious libel) or the Courts (scandalising the Court). This, of course, often ties the judges into knots, in determining the exact boundary between strident – but legitimate – criticism, and sedition/scandalising the Court.

Seditious libel, of course, went out in the United States with the repeal of the Sedition Act in 1800, and was abolished in the England in 2009. Notoriously, it still remains on the statute books in India, in the form of S. 124A of the Indian Penal Code. An examination of the Supreme Court’s sedition jurisprudence would, therefore, be apposite. Section 124A makes it an offence to bring or attempt to bring into hatred or contempt, or excite or attempt to excite, disaffection, towards the government. The locus classicus is Kedar Nath Singh v. Union of India. I have analysed the case in detail elsewhere, but briefly, Kedar Nath Singhlimited the scope of 124A to incitement to violence, or fostering public disorder, within the clear terms of Article 19(2). In other words, prosecution for sedition, if it was to succeed, would have to satisfy the Court’s public order jurisprudence under Article 19(2). The public order test itself – as we discussed previously on this blog, in a post about Section 66A – was set out in highly circumscribed terms in Ram Manohar Lohia’s Case, which essentially required a direct and imminent degree of proximity between the speech or expression, and the breach of public order (in that case, the Court refused to sustain the conviction of a speaker who expressly encouraged an audience to break the law). Subsequently, in S. Rangarajan v. P. Jagjivan Ram, the Court noted that the relation ought to be like that of a “spark in a powder keg” – something akin to inciting an enraged mob to immediate violence. Something that the Court has clearly rejected is the argument that it is permissible to criminalise speech and expression simply because its content might lower the authority of the government in the eyes of the public, which, in turn, could foster a disrespect for law and the State, and lead to breaches of public order.

Unfortunately, however, when it comes to contempt and scandalising, the Court has adopted exactly the chain of reasoning that it has rejected in the public order cases. As early as 1953, in Aswini Kumar Ghose v. Arabinda Bose, the Court observed that “it is obvious that if an impression is created in the minds of the public that the Judges in the highest Court in the land act on extraneous considerations in deciding cases, the confidence of the whole community in the administration of justice is bound to be undermined and no greater mischief than that can possibly be imagined.”

Subsequently, in D.C. Saxena v. CJI, the Court held that “Any criticism about judicial system or the judges which hampers the administration of justice or which erodes the faith in the objective approach of the judges and brings administration of justice to ridicule must be prevented. The contempt of court proceedings arise out of that attempt. Judgments can be criticised. Motives to the judges need not be attributed. It brings the administration of justice into disrepute. Faith in the administration of justice is one of the pillars on which democratic institution functions and sustains.” Notice the chain of causation the Court is working with here: it holds faith in the administration of justice as a necessary pre-requisite to the administration of justice, and prohibits criticismthat would cause other people to lose their faith in the judiciary. This is exactly akin to a situation in which I make an argument advocating Marxist theory, and I am punished because some people, on reading my article, might start to hold the government in contempt, and attempt to overthrow it by violent means. Not only is it absurd, it is also entirely disrespectful of individual autonomy: it is based on the assumption that the person legally and morally responsibly for a criminal act is not the actor, but the person who convinced the actor through words and arguments, to break the law – as though individuals are incapable of weighing up competing arguments and coming to decisions of their own accord. Later on, in the same case, the Court holds that scandalising includes “all acts which bring the court into disrepute or disrespect or which offend its dignity or its majesty or challenge its authority.” As we have seen before, however, disrepute or disrespect of an institution cannot in itself be a ground for punishment, unless there is something more. That something more is actual disruption of justice, which is presumably caused by people who have lost their confidence in the judiciary, but in eliding disrepute/disrespect with obstruction of justice, the Court entirely fails to consider the individual agency involved in crossing that bridge, the agency that is not that of the original speaker. This is why, again, in its sedition cases, the Court has gone out of its way to actually require a proximate relation between “disaffection” and public order breaches, in order to save the section from unconstitutionality. Its contempt jurisprudence, on the other hand, shows no such regard. It is perhaps telling that the Court, one paragraph on, adopts the “blaze of glory” formulation that was used in an 18th century, pre-democratic English case.

Indeed, the Court draws an express analogy with sedition, holding that “malicious or slanderous publication inculcates in the mind of the people a general disaffection and dissatisfaction on the judicial determination and indisposes in their mind to obey them.”Even worse, it then takes away even the basic protection of mens rea, holding that all that matters is the effect of the impugned words, regardless of the intention/recklessness with which they were uttered. The absence of mens rea, along with the absence of any meaningful proximity requirement, makes for a very dangerous cocktail – an offence that can cover virtually any activity that the Court believes has a “tendency” to certain outcomes: Therefore, a tendency to scandalise the court or tendency to lower the authority of the court or tendency to interfere with or tendency to obstruct the administration of justice in any manner or tendency to challenge the authority or majesty of justice, would be a criminal contempt. The offending act apart, any tendency if it may lead to or tends to lower the authority of the court is a criminal contempt. Any conduct of the contemnor which has the tendency or produces a tendency to bring the judge or court into contempt or tends to lower the authority of the court would also be contempt of the court.”

The assumption implicit in these judgments – that the people need to be protected from certain forms of speech, because they are incompetent at making up their own minds, in a reasonable manner, about it – was made express in Arundhati Roy’s Case, in 2002. After making observations about how confidence in the Courts could not be allowed to be “tarnished” at any cost, the Court noted that “the respondent has tried to cast an injury to the public by creating an impression in the mind of the people of thisbackward country regarding the integrity, ability and fairness of the institution of judiciary”, observed that the purpose of the offence was to protect the (presumably backward) public by maintaining its confidence in the judiciary, which had been enacted keeping in mind “the ground realities and prevalent socio-economic system in India, the vast majority of whose people are poor, ignorant, uneducated, easily liable to be misled. But who acknowledly (sic) have the tremendous faith in the dispensers of Justice.” So easy, indeed, to mislead, that there was no need for any evidence to demonstrate it: “the well-known proposition of law is that it punishes the archer as soon as the arrow is shot no matter if it misses to hit the target. The respondent is proved to have shot the arrow, intended to damage the institution of the judiciary and thereby weaken the faith of the public in general and if such an attempt is not prevented, disastrous consequences are likely to follow resulting in the destruction of rule of law, the expected norm of any civilised society.”


The American legal scholar, Vince Blasi, has outlined a “pathological perspective” of free speech. According to him, heightened protection of speech – even to the extent of protecting worthless speech – is important, because when the government passes laws to regulate speech that is hostile towards it, it will, in all likelihood, over-regulate purely out of self-interest, sometimes even unconsciously so. This is why, if the Courts err, they ought to err on the side of speech-protection, because it is quite likely that the government has over-estimated public order and other threats that stem out of hostile speech towards government itself. The pathological perspective is equally – if not more – applicable in the realm of contempt of Court, because here the Court is given charge of regulating speech hostile towards itself. Keenly aware of the perils of speech suppression that lie in such situations, we have seen that the United States and England have abolished the offence, and the Privy Council has interpreted it extremely narrowly.

The Indian Supreme Court, however, has gone in precisely the opposite direction. It has used the Contempt of Court statute to create a strict-liability criminal offence, with boundlessly manipulable categories, which is both overbroad and vague, entirely inconsistent with the Court’s own free speech jurisprudence, and at odds with free speech in a liberal democracy.

What is Sedition? – I: The Kedar Nath Singh Case

The notorious Aseem Trivedi arrest, and the media furore that followed, is evidence that sedition is amongst the most politically fraught issues in India today. Aseem Trivedi’s arrest itself merits no legal discussion – it is a blatant misuse of law. Yet considering that in the immediate aftermath, there were widespread calls for striking S. 124A off the statute books, and reports that the government was considering amending the law, it is important to achieve clarity on three important issues: what, precisely, does the law of sedition criminalise? Is it constitutional? And if so, what justifies it?

S. 124A of the IPC is aimed at anyone who “brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India.” The Explanation provides, in three parts, definitions of what does and does not constitute the word “disaffection”, and this shall be the focus of this post.

In the 1950s and early 1960s, the Court addressed the law of sedition – albeit incidentally – in Brij BhushanRomesh Thappar and Kameshwar Prasad (all discussed previously). Yet the locus classicus on the point is Kedar Nath Singh v. State of Bihar (1962); in this case, the constitutionality of S. 124A was impugned. Thus, the Court was required to squarely deal with the relationship between sedition and the freedom of speech and expression. The constitutional challenge arose out of a number of cases that were being heard together; all cases involved speeches that – in specific terms – called for an armed revolution to overthrow the government.

In order to understand and evaluate the decision of the Court, a brief foray into judicial history would be apposite. The prohibition of sedition was first enacted into law in 1870, and the issue was first tried in 1892, in Queen-Empress v. Jogendra Chunder Bose. Sir Petheram C.J. at the Calcutta High Court distinguished between “disaffection” (dislike or hatred) and “disapprobation” (disapproval), and expressly linked “disaffection” to “a disposition not to obey the lawful authority of the government” (the phrasing used in the Explanation to the law at the time) (paragraph 13). It did not matter, for the Chief Justice, whether any disturbance was, in fact brought about by the words in question; in fact, it didn’t matter even if no actual disaffection was created; all that mattered was that the words were calculated to, and used with the intent of, creating disaffection.

The meaning of “disaffection” was then clarified in the Tilak case (1898) by Strachey J. at the Bombay High Court who equated it to “disloyalty“, “ill-will” and “enmity“. He held that the strength of the feeling was immaterial; in particular, he held that one did not need to advocate mutiny, rebellion or disturbance in order to be hit by the Section; all that was needed was the advocacy of “feelings of enmity“. A number of appeals against the decision failed.

In particular, what was controversial was whether – as per the Calcutta High Court, disaffection meant a feeling contrary to affection, or whether, according to the Bombay High Court, it meant the mere absence of affection. In that same year (1898), the Allahabad High Court in Queen-Empress v. Amba Prasad accepted the  Strachey J”s interpretation; it rejected the judgment of the Bombay High Court in Satara, which had rejected both the above meanings, holding that it was neither “absence“, nor “negation“, but “a positive feeling of aversion, which is akin to ill will, a definite insubordination of authority or seeking to alienate the people and weaken the bond of allegiance” – insofar as these observations were inconsistent with Tilak. (Paragraph 11) The Court also made the important observation that a man could be guilty of sedition despite advocating – as a matter of expediency – obedience or support to the government (paragraph 11).

The Explanation then passed through a series of amendments over the next fifty years. What is of critical importance is that the terms “disposition to render obedience to the lawful authority”  and “unlawful attempts to resist or subvert that authority” were deleted, and replaced with a definition of disaffection: “disloyalty and all feelings of enmity“. This, when read in light of the Allahabad High Court’s comments in Queen Empress v. Amba Prasad (see above), leads us to our first important legal proposition:

Proposition One: Advocating, inciting, persuading or otherwise encouraging people to disobey the law (or laws) does not, in itself, fall within the legal definition of sedition. 

Readers will notice that this is consistent with the judgment in the Ram Manohar Lohia case (discussed previously). It is also important because it ensures that political movements centred upon principled civil disobedience are not hit by sedition charges.

After stating the extant provision in full, the Court in Kedar Nath Singh had its first stab at a philosophical justification of sedition laws:

“Every State, whatever its form of Government, has to be armed with the power to punish those who, by their conduct, jeopardise the safety and stability of the State, or disseminate such feelings of disloyalty as have the tendency to lead to the disruption of the State or to public disorder.” (paragraph 18)

We mark here two important departures from the colonial-era decisions: first – no longer is the test for seditious speech subjective, depending upon my “intent” or my “calculation”; it is now an objective test: I must either jeopardise the safety of the State, or create such feelings, or the feelings that I “disseminate” must have that “tendency“. Secondly, no longer is it merely enough to create feelings of disloyalty; only those feelings of disloyalty that lead to the disruption of the State are proscribed. The Court has therefore attached a test of tangible evidence of actual harm to the definition of sedition. Readers will note that on a strict construction of the language of the statute and the explanation, this is a strained conclusion.

The Court was then required to address a controversy that had divided the bench in Brij Bhushan and Romesh Thappar. In Niharendru Datt Majumdar v. The King-Emperor (1942), Maurice Gwyer C.J. had expressly linked sedition and public order, by holding that “public disorder, or the reasonable anticipation or likelihood of public disorder, is thus the gist of the offence.” (note, again, the use of the objective test). But in King-Emperor v. Sadashiv Narayan Bhalerao (1947), this viewpoint was rejected by the Privy Council, that relied upon Tilak to hold that incitement to violence was not a necessary precondition towards constituting the crime of sedition. (paragraphs 9 – 12)

Now, in this context, we may note that in the draft Constitution, Article 13(2) [that is, what later became Article 19(2)], originally included the word “sedition”, which was subsequently deleted and replaced by “undermining the security of the State” (see previous posts on public order). What are we to make of this? Romesh Thappar held that this showed that the framers did not accept the broad definition of sedition enunciated by the Privy Council in Sadashiv Narain Bhalerao, but instead, limited it to speech undermining the security of the State. What is crucial is that Fazl Ali J.’s dissents in Brij Bhushan and Romesh Thappar disagreed with the majority opinion on the ground that offences against public safety and public tranquility need not amount to undermining the security of the State; nonetheless, Fazl Ali J. also held that “sedition” “owes its gravity to its tendency to create disorders.” (see paragraph 14 in Brij Bhushan and p. 604 in Romesh Thappar Thus, both the majority and the dissent in Brij Bhushan and Romesh Thappar agreed with Maurice Gwyer’s test of public disorder, and rejected the Privy Council’s broader test of mere feeling of enmity or ill-will.

As we have discussed in previous posts, the First Amendment accepted Fazl Ali J.’s dissents, and replaced “undermining the security of the State” with “in the interests of public order“. With respect to sedition, however, the constitutional change makes no difference to the Gwyer-Privy Council dispute, remaining upon the side of Sir Maurice Gwyer.

Let us now come to the operative part of the Court’s judgment. In paragraphs 36 to 39, the Court embarked upon an exposition of the law, and we can isolate four statements of particular importance:

The feeling of disloyalty to the Government established by law or enmity to it imports the idea of tendency to public disorder by the use of actual violence or incitement to violence.” (paragraph 36)

“...those feelings of enmity and disloyalty which imply excitement to public disorder or the use of violence [are punishable].” (paragraph 36)

“…the freedom [of speech and expression] has to be guarded against becoming a licence for vilification and condemnation of the Government established by law, in words, which incite violence or have the tendency to create public disorder. A citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comment, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder.” (paragraph 38)

“If, on the other hand, we were to hold that even without any tendency to disorder or intention to create disturbance of law and order, by the use of words written or spoke which merely create disaffection or feelings of enmity against the Government, the offence of sedition is complete, then such an interpretation of the sections would make then unconstitutional in view of Art. 19(1)(a) read with clause (2).” (paragraph 38)

In the first statement, the Court holds that feelings of enmity or disloyalty definitionally imply an incitement to public disorder – taking us back, therefore, to a more sophisticated version the Privy Council test of mere feeling, by inserting a legal fiction linking it with public disorder. In the second statement, the Court seems to suggest, by the use of the connector “which“, that only some kinds of incitement to feelings of enmity or disloyalty (those that excite to public disorder) are punishable, implying that there is a class of statements that incite enmity or disloyalty, but not public disorder. In the third statement, the Court abandons the ideas of enmity and disloyalty altogether, and focuses – as the ultimate test – upon public disorder. And in the last statement, the Court completes a full U-turn, reversing its position in its first statement, holding specifically that certain words may indeed create disaffection or enmity, but may not incite to disorder, and in that case, it does not amount to sedition.

The Court then went on to expressly affirm Sir Maurice Gwyer’s opinion, reject the Privy Council’s statement of the law, and read S. 124A in light of that. This leads us to our second important legal proposition:

Proposition Two: The test of sedition is identical and equivalent to the test of public order in Article 19(2) of the Constitution, and any law or order that has to do with sedition is not to be judged under some independent test under S. 124A, but in light of the Court’s public order jurisprudence (which is to be determined by referring to the Court’s 19(2) judgments more generally). In other words, the law of sedition does not change or modify or broaden Article 19(2)’s public order test, but is defined and limited by it. In other words, sedition is not constitutional because its elements satisfy 19(2), but insofar as they do so. 

If that is the position of law, then naturally, S. 124A is constitutional. But if that is, indeed the position of law, then S. 124A serves no discernible, separate purpose, and has no reason to exist any longer.

In this post, we have discussed the meaning of “disaffection“. Some important philosophical issues arise, however, when considering what is entailed by the phrase “Government established by law“. In the nest post, we shall consider these. 


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.


Free Speech and Public Order – III: Causation, Respecting Autonomy and the Lohia Case

Article 19(2) permits the government to impose reasonable restrictions upon the freedom of speech and expression “in the interests of public order”. In the last two posts, we have discussed the scope of the public order exception, with respect to the meanings both of “public order” and “in the interests of”. It needs no deep philosophical discussion to conclude that mere statistical probability, no matter how strong, between the speech in question, and a public order disruption, cannot justify a 19(2) restriction. This – as the Court was at pains to point out in S. Rangarajan – essentially means sacrificing the rule of law at the altar of groups strong enough, loud enough and lawless enough to take to the streets with clubs and machetes at any perceived slight or offence, and is the very antithesis of a well-ordered society. If, therefore, likelihood of disturbance is not sufficient, what principle is at work here? We have proposed an autonomy-based justification that the Court implicitly seems to have adopted in Rangarajan. Rangarajan was a case of film censorship, however; and it has been noticed, worldwide, that Courts’ resolve to protect free speech weakens starkly when we move from the realm of art to that of politics (see Dennis v. United States and Refah Partisi v. Turkey for two striking examples). Let us therefore now examine the Court’s public order jurisprudence in the broader political arena.

Ramji Lal Modi v. State of UP and Virendra v. State of Punjab are two early cases on point. In Ramji Lal Modi, the appellants challenged the constitutionality of S. 295A of the IPC, that penalizes acts done with the “deliberate and malicious intent of outraging the religious feelings of a person or a class of persons.” The petitioners proposed a “likelihood test” for the public order exception, and argued that the section did not discriminate between acts likely to – and not likely to – disrupt public order, and therefore was not saved by 19(2). The Court, however, held that the use of the phrase “in the interests of”, as opposed to “for the maintenance of” implied a “very wide” ambit of protection (paragraph 8), extending to acts that had a “tendency” to cause public disorder, not just acts that actually did so (paragraph 9); the Court then distinguished between “unwitting insults” and those issued with a “deliberate and malicious intent”, and held that it was the latter that had a clear “calculated tendency” to cause public disorder. The Section was upheld.

Yet what, precisely, is a “calculated tendency” to disrupt public order? Either something has a tendency towards such disruption, or it doesn’t; the Court here conflates subjective and objective tests: either bare likelihood is sufficient for the public order exception; or – for some unexplained reason – intent – or lack thereof – makes a difference; or intentional insults are more likely to disrupt public order, which brings us back to the bare likelihood test. The position of law, after Ramji Lal Modi, is entirely unclear. Similar, however, was the decision in Virendra v. State of Punjab, where the Court upheld a ban on the publication of any material having anything to do with the “Save Hindi Agitation”, under a law that granted non-justiciable powers to the government to ban any publication prejudicial to communal harmony, or likely to affect public order.

We now come to the locus classicus on the point: Superintendent, Central Prison v. Ram Manohar Lohia. S. 3 of the U.P. Special Powers Act of 1932 criminalised instigating a class of persons against paying dues recoverable as arrears of land revenue. Ram Manohar Lohia, the General Secretary of the Socialist Party of India, did just that, was duly arrested, and duly challenged the constitutionality of the Section at issue.

Interestingly – and unusually – the Court began with providing a philosophical justification for the public order exception. Public order, it held, was essential in creating and maintaining an environment in which fundamental rights in general – and the freedom of speech in particular – could be effectively enjoyed (paragraph 9). This lends support to our argument against any statistical test, outlined in the first paragraph of this post; an environment in which public order disruptions are used as a tool to restrict free speech is clearly anything but conducive to the enjoyment of the right. It also provides us with a principled yardstick to judge governmental interference stated to be on the grounds of public order: the ultimate objective must be to secure and maintain fundamental rights by securing and maintaining an environment in which they are neither stifled nor suppressed.

Ramji Lal Modi v. State of UP and Virendra v. State of Punjab were invoked to support the familiar “wider ambit of restriction” argument. Here, however, the Court gave it short shrift. It insisted that that the restriction in question must have a reasonable relation with the object sought to be achieved, and must not go in excess of the object (proportionality); and it defined “reasonable” as being “proximate”, that is not remote, arbitrary and fanciful. (paragraph 13)

The Court’s invocation of the proportionality test is very interesting, because it introduces the possibility of an additional moral dimension to the public order exception that was not present in Ramji Lal Modi or Virendra. The extent of interference with free speech could be weighed against the extent and likelihood of public order disruption.  Alternatively, it could be weighed against not only extent and likelihood, but also against the manner of disruption – for instance, is this a case of diminished rationality, such as shouting “fire” in a crowded theatre, or alternatively, a case of presenting arguments urging certain action before a group of thinking, rational people, and leaving them to make up their own minds about whether or not to take the action? The former test – as we have argued – fails to respect the autonomy of persons, while the latter does.

And indeed, it is this latter test of proportionality that the Court seems to have adopted. It held that the proximity test was not satisfied because the Section was overbroad – it sought to punish any kind of visible representation instigating a person to break the law – including “innocuous speeches”. The Advocate-General’s objection that the successful instigation of one individual against paying taxes might start a movement that would destroy the social order was rejected out of hand. But what is more interesting is the terms in which was rejected. The Court did not use the word “unlikely”, but “far-fetched, hypothetical, problematical or too remote in the chain of relation with public order.” (Paragraph 13) The last phrase is particularly interesting, because the Court uses two concepts that have their home in tort law: remoteness and chain of relation (which can only refer to causation). Now, there is some judicial controversy over the relationship between remoteness and causation*, but this much is clear: chains of causation between breach and damage are broken by novus actus interviniens (intervening acts, one type of which are acts by individuals) precisely on the ground – as Hart and Honore tell us – that our law ascribes responsibility upon autonomous individuals for “free, deliberate and informed” actions, and not upon others who might have acted prior to them in a strictly but-for causation chain. It is therefore at least arguable that the Supreme Court’s proximity-and-proportionality test – as enunciated in Ram Manohar Lohia – has an inbuilt autonomy-respecting limitation (see the discussion on Scanlon’s theory here, for a detailed analysis): that is, the chain of causation (and, by extension, responsibility) between speech and public order disruption is broken when the actions of autonomous, rational individuals intervene.

At this stage, therefore, we have two divergent streams of thought: Ramji Lal and Virendra propose an uneasily ad-hoc test for public order disruption that seems to require neither actual disruption nor likelihood of disruption (what then, does it require), and does not seem to be grounded in any constitutional principle. Ram Manohar Lohia, on the other hand, proposes a test of proximity that appears to respect ideas of autonomy and responsibility that are – indisputably – integral building blocks in our constitutional architecture. In the next post, we shall chart the progress of the public order exception after Ram Manohar Lohia to understand which path the Court has followed.

* I thank V. Niranjan for clarifying this point to me.

Free Speech and Public Order – II: Film Censorship and the Rangarajan Case

In the previous post, we discussed Scanlon’s liberal theory of free speech, which aims to reconcile restrictions in the interests of public order with individual autonomy and responsibility. One interesting area where the Court’s engagement with the issue can be examined is that of film censorship.

S. Rangarajan v. P. Jagjivan Ram (1989) is an important case that deserves close study. A Division Bench of the Madras High Court revoked the U-Certificate (“suitable for all ages”) granted to a Tamil film called Ore Oru Gramathile (“In One Village”), that dealt with the controversy surrounding affirmative action and the problems of caste. This was challenged before a three-judge bench of the Court. The State made two arguments: first, that the depiction of the government’s reservation policy was ‘biased’; and secondly, that the reaction in the State of Tamil Nadu was bound to be “volatile“.

The Court was concerned – as in the prior case of K.A. Abbas v. Union of India – and in light of the clearly contrary decision in Romesh Thappar (discussed here) – to justify the possibility of pre-censorship. In K.A. Abbas, it had been argued that films, in no substantial way, differed from other media of communication – and if, per Romesh Thappar, pre-censorship was unjustified in the case of newspapers, so it must be in the case of film. While the Court then declined to address the argument, basing its decision on general principles of free speech and pre-censorship, in this case, it ran the gauntlet, and held that film did, indeed, differ from other media. In an interesting paragraph, the Court held that films could not function in “the free marketplace” like newspapers. Why? Because:

“Movie motivates thought and action and assures a high degree of attention and retention. It makes its impact simultaneously arousing the visual and aural senses. The focusing of an intense light on a screen with the dramatizing of facts and opinion makes the ideas more effective. The combination of act and speech, sight and sound in semi-darkness of the theatre with elimination of all distracting ideas will have an impact in the minds of spectators.” (Paragraph 10)

The Court went on to cite an academic study according to which “continual exposure to films of a similar character” would significantly affect the attitude of an individual or a group. On this basis, it deemed pre-censorship necessary. We can immediately see that this approach is at odds with Scanlon’s autonomy-based argument: in Scanlon’s terms, the Court is taking away the autonomous individual’s right to use reason in order to persuade and to be persuaded, merely on the grounds of the efficacy of the mechanism. This is buttressed by the Court’s conclusion that the purpose of the Censorship guidelines – indeed, the purpose of Art. 19(2), which the Court claimed the guidelines were based upon – is maintaining the “values and standards of society“. Now, the term “values and standards of society” is excessively vague, and cries out for clarification (Do you take opinion polls? Ask the man on the New Delhi Metro? Organise a referendum? Do “values” refer only to the deepest moral convictions that form one’s personality and defines one’s community, or do they include any kind of opinion, whatever its strength or nature?). But more importantly, as we have discussed before, values and standards are in constant flux and motion, and expression – as Raz points out – is the fundamental vehicle through which transient values are debated, argued over, dissented from, attacked and ultimately, changed. On what basis, then, does the Court grant the moral majority of a moment the power to crystallise, through legal sanctions, its own set of opinion against the processes of change? And how is this consistent with the individual’s right to shape her moral environment in a free society through the means of expression?

The underlying basis of the Court’s opinion is revealed a few paragraphs later: “moral values in particular,” it said, “should not be allowed to be sacrificed in the guise of social change or cultural assimilation.” Listing a series of “great sages and thinkers“, literary works like the Thirukkural, and “Indian” concepts like dharam, the Court observed that “these are the bedrock of our civilization and should not be allowed to be shaken by unethical standards.” (Paragraph 21) In essence, the Court enunciates, by necessary implication, a certain idea of a homogeneous Indian identity, stretching back into antiquity, defined by a set of values imbued with a sense of continuity and permanence. Historians, no doubt, will have much to say about that claim. We can remain neutral on the point, and still question the Court’s insistence on insulating that set of values – assuming it exists – against dissent or attack.

The Court’s analysis of the film itself contains some particularly disturbing elements. One particular scene was singled out for condemnation because it – ostensibly – sent out a “poisonous message” to the “depressed classes” not to educate their children. The Court examined the scene and found on fact that the message of the scene was the opposite (paragraph 26); a second controversy turned upon whether one of the characters in the film stated that Dr. Ambedkar did not work for equality, and the Court, dealing with the niceties of Tamil translation, held that in fact the heroine did not make that statement (paragraph 27); the implication being – and stated as much, on both occasions – that had either of the two accusations been correct, pre-censorship would have been justified.

The Court’s approach to these claims is particularly interesting, because it suggests that making factually false claims (education is not a good, Ambedkar did not work for equality) is a ground for censorship. This echoes the basic idea that the goal of free speech is to discover the truth. In its response to the third objection against, the film, however – that by its criticism of reservations and praise of colonial rule, it would generate a “volatile reaction” in Tamil Nadu, the Court expressly disclaims the truth-seeking justification for free speech.

“The different views are allowed to be expressed by proponents and opponents not because they are correct, or valid but because there is freedom in this country for expressing even differing views on any issue.” (Paragraph 38)

Immediately after that, the Court quoted Mikeljohn’s self-governance theory of free speech, emphasising again that “conflicting views may be expressed, must be expressed, not because they are valid, but because they are relevant.” It went on to quote a series of American First Amendment writers before reining itself in and returning to 19(2), emphasizing that:

“The expression of thought should be intrinsically dangerous to the public interests. In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a “spark in a powder keg”. (Paragraph 42)

On this basis, the Court dismissed the public order objection (Paragraphs 47 and 48). Here it seems that the Court did, indeed, accept the liberal-autonomy justification: it stressed that the content of the message communicated was irrelevant, and that threats of violence could not compel a public order restriction. These twin claims can only be reconciled upon a philosophical rubric based on ideas of individual responsibility in judging and acting upon any message; the the powder-keg analogy is a classic case of situations or diminished responsibility (as discussed in the last post), where these considerations do not apply.

But that raises a serious problem: “public order” and “morality” occur next to each other in Article 19(2); yet, the Court seems to have adopted different tests of causation in each case. Content – and what disruptions of public order it may provoke – is deemed irrelevant; but content – in terms of the change it brings about in the “values and standards” of society is deemed to be of decisive relevance! It is not “in the interests” of public order to protect it by censoring content that will provoke its breach; but it is in the interests of morality to preserve it by censoring content that will provoke its modification or change. The Court ostensibly accepts political liberalism in the case of public order, but rejects it in the case of morality.

It is difficult to see what overall principle is at work here. We must therefore keep S. Rangarajan in the background for the moment, and look for consistency elsewhere.

Ranjit Udeshi – III: Paternalism and the Meaning of “Morality”

In the last post, we examined the first justification provided by the Court for banning Lady Chatterley’s Lover, i.e., the enforcement of public morals. The Court also made another argument: a ban was justified in order to protect individual morality from deterioration due to exposure to obscene works. This raises an important question about the limits of law: is a supposed moral ‘harm’ caused by an individual to herself sufficient justification for State intervention?

In On Liberty, Mill famously held that it was not:

The sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number is self-protection. That the only purpose for which power can rightfully be exercised over any member of a civilised community against his will is to prevent harm to others. His own good, whether physical or moral, is not a sufficient warrant.”

Joel Feinberg expands upon the Millian principle by adding “offence to others” as a good reason for proscribing a particular act. The harm principle and the offence principle must be distinguished from the two possible justifications underlying the Court’s opinion in Ranjit Udeshi: legal paternalism and legal moralism. Legal paternalism uses law to prevent a stated harm cause by the actor to herself, while legal moralism holds that it is justified to prevent an activity on the sole ground of immorality (private or public), regardless of any harm caused to anyone.

We discussed certain aspects of legal moralism in the previous post, and tentatively concluded that laws requiring justification through a judgment on the relative merits of different ways of life are inconsistent with a Constitution committed to political liberalism. In any event, a perusal of the relevant parts of the opinion makes it clear that the Court was not concerned with bare immorality. It repeatedly voiced the concern that Lady Chatterley’s Lover would “deprave and corrupt by immoral influence” (Paragraphs 19 and 21), and stated:

The law seeks to protect not those who can protect themselves but those whose prurient minds take delight and secret sexual pleasure from erotic writings.” (Paragraph 26)

The emphasis on protection makes it clear that the Court considered a tangible harm to be at issue, the harm of moral depravity and corruption. We are thus dealing with an instance of legal paternalism. It would be helpful, at this stage, to introduce two further terminological distinctions: soft paternalism limits interference to cases of imperfect knowledge or volition (e.g., a man about to cross a bridge not knowing it will break under him may be restrained), whereas hard paternalism acknowledges no such limitations (we prevent the man from crossing the crumbling bridge even if he knows about its condition, and wishes to commit suicide). A similar way of looking at this is that soft paternalism restricts interference to mistakes of fact, whereas hard paternalism permits interference to (alleged) mistakes of value. And secondly, welfare paternalism looks to improving the interests of persons, whether they consent to such improvement or not, while moral paternalism aims at enhancing their well-being by making them better persons through improving their moral character. In Ranjit Udeshi, it is clear that the Court subscribed to one version of hard moral paternalism.

To reiterate: moral paternalism assumes that by permitting or proscribing certain activities, the State compels a person to live a morally better life. Now, Dworkin makes a preliminary objection to the very idea of moral paternalism. According to his endorsement thesis, “[nothing]… may contribute to the value of a person’s life without his endorsement.” Let us take two examples: that of a smoker, who is well-aware that his life would be objectively better if he was compelled to give up smoking, but insists nonetheless on his right to continue to smoke; and an atheist, who rejects the idea that an enforced faith will improve the moral quality of his life. We are interested in the second kind of case, because here what is in dispute between the state and the individual is the very (moral) evaluation of the activity that is sought to be prescribed.

We may pause for a moment here to examine the issue of hypothetical endorsement, and the difference between questions of fact and questions of value. It is possible to argue that a person who rejects the view that smoking is injurious to health is simply mistaken, and would endorse a limitation upon smoking in his life if either he had full information, or was free from various possible biases. It is possible because the judgment that smoking is injurious arises out of a set of factual inferences that are based upon rules of evidence that – presumably – the person in question accepts in other areas of his life (say, for instance, driving without seatbelts is dangerous). He is therefore being inconsistent without any warrant in his evaluation of evidence. Such an argument is far more difficult to make in cases of value, however, because there – as observed above – it is the very ground rules of evaluation that are in dispute (you believe that homosexuality is a sin on the strength of your faith in the bible; I refuse to acknowledge the bible’s authority). Hard moral paternalism of the Ranjit Udeshi type, therefore, explicitly requires the authority (legislature or court) to label one set of values as good, or correct, or integral to well-being.

The endorsement thesis is controversial. However, does our Constitution subscribe to it – or some variant of it? I suggest that there are two reasons in favour of believing that it does so, at least in some form. First, an effect of the endorsement thesis – as may easily be recognised – is the rejection of externally-determined visions of moral good and well-being. As we saw in the last post, this is precisely one of the central tenets of a Constitution committed to political liberalism: and the ultimate philosophical basis, as Scanlon points out in his theory of free speech – is the idea that the very meaning of autonomy and responsibility lies in individuals determining for themselves what vision of well-being and the good life they wish to subscribe to. Moral paternalism denies them that.

Secondly, issues of this nature are not restricted to issues of free speech. In freedom of conscience cases under Article 25, the Court has held not only that the question of what religion to follow is a matter for individual choice, but also which elements of a particular religion to accept belong to the same domain. It is scarcely disputable that religion (whatever else one might think of it) constitutes a central plank of most persons’ world-view, system of values and well-being; and according to the Court, the question of what constitutes a religion is a question not for religious or secular authorities to determine, but for the individual – even against the viewpoint of the former. In another important area centred upon the determination of value, then, something akin to the endorsement thesis seems to prevail.

If, then, the word “morality” in Article 19(2) refers neither to public morality, nor to individual morality, what does it refer to? One possibility is that it refers to constitutional morality, a term applied by the Delhi High Court in the Naz Foundation case (citing Ambedkar, albeit out of context) in order to distinguish it from popular morality, in the following language:

Popular morality, as distinct from a constitutional morality derived from constitutional values, is based on shifting and subjecting notions of right and wrong.” (Paragraph 79)

Another statement of what this might mean may be traced back to Mr. Palkhivala’s submissions in the Privy Purses Case:

“the survival of our democracy and the unity and integrity of the nation depend upon the realisation that constitutional morality is no less essential than constitutional legality.”

The distinction between constitutional morality and constitutional legality seems to suggest that constitutional morality consists of the set of (unstated) principles that underlies, characterises and justifies the important provisions of our Constitution. In other words, it contains the elements of the political and moral philosophy that our Constitution is committed to. Such  an interpretation of the word “morality” in Article 19(2) would forestall the difficulties that we have seen arising from both “public morality” and “individual morality”, and perhaps provide a principled guide to adjudicating free speech cases in the future.

Ranjit Udeshi v. State of Maharashtra – I: Obscenity, morality and public interest

All constitutional courts must, at some point, deal with controversial questions about what constitutes obscenity, and whether – and to what extent – obscenity is protected by the right to free expression. Ranjit Udeshi v. State of Maharashtra (1965) is a case in which a Constitution Bench of the Indian Supreme Court engaged with precisely these issues.

D.H. Lawrence’s Lady Chatterley’s Lover was banned. Certain booksellers were found with copies of the book, and prosecuted under S. 292, IPC that, inter alia, criminalises the sale and possession of obscene books. The petitioners made two arguments in court: first, that S. 292 was unconstitutional since it violated Article 19(1)(a); and secondly, in any event, Lady Chatterley’s Lover was not an obscene book within the meaning of the provision.

While reading the judgment, it is important to keep apart Article 19(1)(a) [the scope of the right to freedom of speech and expression] and Article 19(2) [reasonable restrictions upon that right], especially since it appears that the Hon’ble Court did not do so. In paragraph 8 of the judgment, Hidayatullah J., speaking for the Court, observed:

No doubt this article guarantees complete freedom of speech and expression but it also makes an exception in favour of existing laws which impose restrictions on the exercise of the right in the interests of public decency or morality the word, as the dictionaries tell us, denotes the quality of being obscene which means offensive to modesty or decency; lewd, filthy and repulsive. It cannot be denied that it is an important interest of society to suppress obscenity.” [emphasis supplied]

    In the next paragraph, he went on to note:

    “Speaking in terms of the Constitution it can hardly be claimed that obscenity which is offensive to modesty or decency is within the constitutional protection given to free speech or expression, because the article dealing with the right itself excludes it. That cherished right on which our democracy rests is meant for the expression of free opinions to change political or social conditions or for the advancement of human knowledge. This freedom is subject to reasonable restrictions which may be thought necessary in the interest of the general public and one such is the interest of public decency and morality. Section 292, Indian Penal Code, manifestly embodies such a restriction because the law against obscenity, of course, correctly understood and applied, seeks no more than to promote public decency and morality.” [emphasis supplied]

Four important points may be made about the observations of the learned Judge. They are of a technical character, but essential for laying the basis of the (more) philosophical discussion that shall follow.

First, the word “modesty” is not found in Article 19(2) of the Constitution. It is not entirely clear what role the concept of modesty ultimately played in the decision of the Court. Nevertheless, considering that the word is found elsewhere in the much-criticised S. 354(3) of the IPC (the offence of “outraging the modesty of a woman”), that has been alleged to be a throwback to Victorian-era sexual morality (something that, one would hope and expect, the framers of our Constitution disavowed), the conflation of “decency” (explicitly written into Article 19(2)) and “modesty” is problematic at best.

Secondly, in paragraph 8, Hidayatullah J. uses the phrase “important interest of society”, and in paragraph 9, “interest of the general public”. Neither of these phrases is found in Article 19(2). In fact, considering that public interest is found in Article 19(6) as a permissible ground for restricting the freedom to carry on a trade, business of profession, it is necessarily implied – by omission (or the expressio unius principle) – that  public interest cannot justify a restriction upon free speech. This contention is supported by Mr. Seervai, while writing in the context of potential overlaps and clashes between Arts. 19(1)(a) and 19(1)(g), as well as by a number of judgments (Sakal Papers, as saw in the previous post, being one of them).

Thirdly, the introduction of the public interest exception allows Hidayatullah J. to interpret Article 19(2) as providing for a “public decency and morality” exception (he makes the link explicit in paragraph 9 with the use of the connector “and one such [public interest] is the interest of [public decency and morality]” This proposition, however, is not self-evident. Article 19(2) uses the phrase “public order, decency or morality”. “Public order” is a term of art, and is found in many other legislations; but there is nothing to suggest that the word “public” qualifies not only the word “order”, but the words “decency” and “morality” as well. Indeed, if Hidayatullah J. is right, and the protection of public morality is merely a branch of the more general protection of public interest, then the absence of the public interest exception in 19(2) implies that what is at stake is not, after all, “public morality”, but some other kind of morality.  The distinction – as we shall go on to discuss – is crucial.

Lastly, in paragraph 8, Hidayatullah J. frames his discussion in the context of Article 19(2); In paragraph 9, however, he appears to hold that what is at stake is not a 19(2), but a 19(1)(a) issue: “it can hardly be claimed that obscenity which is offensive to modesty or decency is within the constitutional protection given to free speech or expression, because the article dealing with the right itself excludes it. That cherished right on which our democracy rests is meant for the expression of free opinions to change political or social conditions or for the advancement of human knowledge.” The distinction is important. In paragraph 9, Hidayatullah J. makes the familiar argument for the instrumental justification of free speech (protection of democracy, advancement of knowledge etc.) that we saw made in Sakal Papers in the last post. Such an argument excludes obscenity from the ambit of Article 19, taken as a whole, altogether – because it doesn’t even qualify as protected speech in the first place. However, if paragraph 8 is the Court’s actual opinion on the subject, then obscenity does, after all, come within the protection of 19(1)(a) (but may subsequently be limited under 19(2); and that means that the theory of free speech that our Constitution is committed to cannot be a simple, restrictive democratic-instrumentalist view. Indeed, if something like obscenity (“dirt for dirt’s sake”, in the words of the counsel) is protected, our theory of free speech is very strongly liberal, and extremely far-reaching in scope. In light of the fact that the rest of the case ignores the observations of paragraph 9, and the argument is focused entirely on 19(2), it can safely be said that the Court has – in Ranjit Udeshi – implicitly endorsed this latter, expansive theory of free speech.

Let us now return to the case. Having upheld the constitutionality of S. 292, Hidayatullah J. then addressed the issue of what, precisely, was obscenity. After going into the common-law history of the obscenity offence, he settled upon Cockburn C.J.’s famous “Hicklin Test”, enunciated in 1868, according to which obscenity is something that would:

    “… deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall . . . . 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.” [emphasis supplied].

Hidayatullah J. emphasized the aspect of the Hicklin test that focused upon “the potentiality of the impugned object to deprave and corrupt by immoral influences.” (paragraph 19). Clarifying this further, he observed that: “treating with sex in a manner offensive to public decency and morality (and these are the words of our Fundamental Law), judged of by our national standards and considered likely to pander to lascivious, prurient or sexually precocious minds, must determine the result.” (paragraph 21)

    The Court then entered upon a lengthy analysis of the book, and concluded that no “social good” could be found in Lawrence’s vividly descriptive sex scenes; taking upon itself the task to protect “not those who can protect themselves but those whose prurient minds take delight and secret sexual pleasure from erotic writings”, (paragraph 26) it upheld the ban on Lady Chatterley’s Lover.

The structure of the Court’s argument is as follows: it read a public interest exception into Article 19(2). Using this, it interpreted “decency or morality” to mean “public decency or morality” which, in turn, clarified as referring to “national standards” and “community mores” [of decency and morality].  The Hicklin’s test explicitly moral language made it the ideal standard to use in conjunction with the “community mores” test in order to determine whether something was obscene, and therefore not protected by the right to freedom of speech and expression.

The arguments so far have attempted to show that, on their own terms, certain steps in this argument may be open to criticism. In the next post, I will examine the philosophical justification for the Court’s view, and ask whether our Constitution is – and whether it should be – committed to such a philosophy.