My photo

Anshul is a Political Science and Law graduate from the University of Delhi. He is interested in political, legal and policy developments and frequently writes on related themes. You can contact him on anshulkumarpandey [at] gmail [dot] com.

Monday, April 27, 2015

A Question of Reasonable Freedom

First Published in Youth Ki Awaaz

Till 1983, October 31st was marked as the birth anniversary of India’s first home minister and one of the tallest leaders of National Independence movement, Sardar Vallabhai Patel. Known and feared for his shrewdness, presence of mind and clever deployment of tactics to force his enemies into submission in the political arena, Patel is also considered the best Prime Minister India never had. While his stormy relationship with India’s first Prime Minister Jawaharlal Nehru may had earned him some detractors within his own party, respect for invented traditions and the fierce loyalty of his supporters and followers ensured that Vallabhai was never reduced to a distant figure buried in the yellow and dusty pages of history.

That was until 1983 of course. In 1984, at the height of the Punjab separatist movement, two Sikhs, who also happened to be the personal bodyguards of the then Prime Minister Indira Gandhi, decided to pump their anger into the PM’s body via their automatic machine guns and thus burden the fateful date of the Julian calendar with another marking of History.

Rules of nature and science validate that Vallabhai’s birth anniversary still falls on 31st October. However, he now shares the extra tight compartment of that one day in the books of history with a lady, whose successors have ensured that their madam suffers no inconvenience by being reduced to the margins. Entombed under the eventful baggage of his Prime Minister’s daughter, Mr. Patel’s birth anniversary has today become a forgotten appendage to a greater event that transformed India.

Although joined by fate on the same page, a study of the style of functioning of the two leaders is a study in contrast. I would choose to speak of their attitudes and behaviours towards the issue of freedom of speech, because for me no other sphere of activity can shed more light to their glaring differences as this one.

Independence, Republic and The First Amendment

One can say that Sardar Patel resided over the most tormentous phase of national security over the country as its home minister. Given the situation, he could have acted in a dictatorial manner citing law and order; however, Gandhian principles and the ritual of consensus building ensured that things did not come to such a pass. Fresh out of the rule of the British, which had left their stamp on the history of freedom of speech in the country in the various forms of gag orders and press censorship, Mr. Patel and his government were determined to reverse the trend as a crucial part of their aim of nation building.

Perhaps the first and the only serious challenge which arose in his lifetime as the home minister regarding the freedom of speech and expression in the country was from the hallowed corridors of the courts which necessitated the Indian parliament into passing the first amendment in 1951, shortly after his death.

In a series of two judgements (Romesh Thapar vs The State of Madras and Brij Bhushan vs The state of Delhi), the courts in the country interpreted the scope of the term “public safety” or “public order” in Article 19(1)(a) of the constitution to imply only those actions or expressions which would pose a grave danger to the security of the nation as a whole. The court opined that banning such expressions or speech would constitute a violation of fundamental rights unless it could be shown that the particular case fell under the exceptions provided by Article 19(2) of the constitution which said:

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

This interpretation left the acts of hate speech which could incite violence and hate crimes totally out of the purview of the Article and hence provoked a great deal of alarm in the government. Lawrence Liang, in his paper “Reasonable Restrictions, Unreasonable Speech” writes:

“The government argued that the expression “public safety” in the Act, which is a statute relating to law and order, means the security of the Province and, therefore, “the security of the State”. Within the meaning of Article 19(2), “the State” has been defined in Article 12 as including, among other things, the Government and the Legislature of each of the erstwhile Provinces. The court, however, stated that the phrase “public safety” had a much wider connotation than “security of the state”, as the former included a number of trivial matters not necessarily as serious as the issue of the security of the state. It concluded that “unless a law restricting freedom of speech and expression is directed solely against the undermining of the security of the State or the overthrow of it, such law cannot fall within the reservation under clause (2) of Article 19, although the restrictions which it seeks to impose may have been conceived generally in the interests of public order. It follows that Section 9(1-A), which authorises imposition of restrictions for the wider purpose of securing public safety or the maintenance of public order, falls outside the scope of authorised restrictions under clause (2), and is therefore void and unconstitutional” (Regarding Romesh Thapar vs State of Madras)

This decision, coupled with that of Brij Bhushan vs State of Delhi, triggered hectic discussion in the government over the need to introduce an amendment so as to bring hate speech and incitement to violence under the purview of the aforementioned article.

It was a unique situation. Patel thought that the Romesh Thapar decision “knocked the bottom out of most of our penal laws for the control and regulation of the press” and hence supported the idea of introducing an amendment so that adequate controls could be established in order to safeguard law and order situation in the country in view of the fragile relationship between its various religious communities. Even so, the intention was not to place a blanket ban on the expression of such ideas in the media, but was to place “reasonable restrictions” which were justified by the kind of atmosphere people lived in.

Such decision making characterised the working style of the home minister: to find balance and unanimity, to be benevolent but also be a realist.

Indira, India and Emergency

However, by the time Indira Gandhi came to power, these values of democracy, of tolerance and of thoughtful action had already started withering from the arena of India’s polity. Transformed into a battleground for power struggle, the chief objective became to acquire power and thwart the rival interests in favour of one’s own. Indira Gandhi, not known too much for her intellect as for her family background, turned out to be the quintessential politician that one would have expected once Indian democracy started to mature and show its true colours. Having acquired a following and legitimacy by promoting her personality cult after the 1969 split of the Congress into two rival parties, it became imperative for her to silence her critics, either by hook or by crook.

It is in this regard that the emergency of 1975 should be seen. Far from the considered pragmatism of the country’s founding fathers, the Emergency is a case study in intolerance to criticism and blatant disregard for the principles enshrined in the Indian constitution. The press was censored, opposition members jailed, free speech and freedom of expression revoked and the judiciary just made a compliant cog in the wheel of the state’s vehicle of things.

Could things have been any different without the Emergency? One cannot say. However, with the benefit of hindsight, one can safely conclude that the deterioration in the belief of rights to freedom of expression, which gathered pace after Nehru’s death, was accelerated with the catalyst of the Emergency and even without it, would have continued to grow, albeit at a slower pace.

In our Times

Thus, it is with a certain sense of deja vu that one analyzes the events of the past year. The cheap trick through which Salman Rushdie was not allowed to attend the Jaipur Literature Festival, apparently to soothe the hurt sentiments of a particular religious minority, the route of Baba Ramdev from the Ramlila Maiden during his fast against corruption and black money, the arrest of cartoonist Aseem Trivedi and Binayak Sen on charges of Sedition, the arrest of a professor of Jadavpur University for allegedly forwarding “insidious” mails against Chief Minister Mamata Banerjee, the censorship of the internet in reply to the North East exodus in the aftermath of Assam Riots and the latest, the arrest of a small time businessman for tweeting against the present Home Minister’s son.

It seems that the modern Indian state is in a state of limbo. Confronted with the rapidly advancing means of communication and modes of dissemination of information, the present administration finds itself inept of taking action in a balanced manner like that of Sardar Patel and fearful of going whole hog in destroying the civil liberties enshrined in the constitution to assume complete control like Indira Gandhi. In this state of indecision, the blunders that the government commits, with regard to free speech and free expression, only weaken the base of the limited liberties we enjoy and thus paves the way or a bleaker future.