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Nishant Final Thesis This electronic thesis or dissertation has been downloaded from the King’s Research Portal at https://kclpure.kcl.ac.uk/portal/ RELIGIOUS OFFENSE AND THE CENSORSHIP OF PUBLICATIONS IN INDIA LAW, LEGAL PROCESS AND THE ROLE OF JUDICIARY Kumar, Nishant Awarding institution: King's College London The copyright of this thesis rests with the author and no quotation from it or information derived from it may be published without proper acknowledgement. END USER LICENCE AGREEMENT Unless another licence is stated on the immediately following page this work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International licence. https://creativecommons.org/licenses/by-nc-nd/4.0/ You are free to copy, distribute and transmit the work Under the following conditions: Attribution: You must attribute the work in the manner specified by the author (but not in any way that suggests that they endorse you or your use of the work). Non Commercial: You may not use this work for commercial purposes. No Derivative Works - You may not alter, transform, or build upon this work. Any of these conditions can be waived if you receive permission from the author. Your fair dealings and other rights are in no way affected by the above. Take down policy If you believe that this document breaches copyright please contact [email protected] providing details, and we will remove access to the work immediately and investigate your claim. Download date: 29. Sep. 2021 RELIGIOUS OFFENSE AND THE CENSORSHIP OF PUBLICATIONS IN INDIA: LAW, LEGAL PROCESS AND THE ROLE OF JUDICIARY NISHANT KUMAR King’s College London Supervisors SUNIL KHILNANI CHRISTOPHE JAFFRELOT THIS THESIS IS SUBMITTED TO KING’S COLLEGE LONDON FOR THE DEGREE OF DOCTOR OF PHILOSOPHY 1 ABSTRACT In this work, I analyse the role of judiciary in the process of censorship in India. Focussing on the subject of “Religious offense and censorship of publications,” I examine the rationales and justifications given by courts to restrict freedom of speech and expression. I argue that the issues like public order, and the concern to protect religious sentimentalities of different communities from hurt in a secular democracy, form the bedrock on which the courts construct the legal justification for curtailment of right to freedom of expression. In the process, the courts define the “reasonability” of restrictions, as advocated under article 19(2) of the constitution, very expansively, thereby allowing wide latitude for state intervention in the free exercise of this fundamental right. In a way, the position of the courts reflect a sense of legal patronage for state action against misuse of freedom of speech and expression, and it also exhibits a form of legal paternalism where the courts educates the citizens regarding the permissible limits of “matter” and “manner” of speech acts. I further argue that this attitude of the courts, along with the ambiguity attached with the nature of statutory laws, and the structural and procedural limitations of the legal process creates a “web of censorship” that fails to provide the legal protection required for the free exercise of the right to freedom of speech and expression. However, despite these limitations, and increasing intervention of non-state actors in the process of censorship, the role of courts cannot be undermined. As the constitutional authority to interpret and define the scope of freedom of speech and expression, they continue to play a dominant role in the politics of censorship in Indian context. 2 TABLE OF CONTENTS Title Page ............................................................................................................ 1 Abstract .............................................................................................................. 2 Acknowledgments .............................................................................................. 7 List of Abbreviations ......................................................................................... 8 Chapter 1: Introduction .............................................................................. 9-52 1. Freedom of Speech and Expression in India: Issues and Problems 9-16 2. Research Questions .................................................................................. 16-20 3. Conceptual Terrain .................................................................................. 20-38 3.1. Freedom of Speech and Expression and Legal Intervention: A Comparative Perspective ........................................................................ 20-34 3.2. Interventions by Non-state Actors in Censorship and the Role of Courts ...................................................................................................... 34-38 4. Methodology and Sources ....................................................................... 38-48 5. Structure of the Thesis and Chapterization .......................................... 48-52 Chapter 2: Freedom of Speech and Expression in Colonial India: The Genesis of an Idea .............................................. 53-93 1. Introduction .................................................................................................... 53-55 2. Press Censorship and its Opposition in Early Nineteenth Century .......... 56-58 3. British Attitudes towards Free Expression in Colonial India .................... 58-71 3.1. Regulating Free Speech through Law: Indian Penal Code (IPC) and Legal Provisions ............................................................................... 59-65 3.2. British Raj and “Selective Censorship” .................................................. 65-71 4. The Indian Nationalists’ Position on the Question of Freedom of Expression ....................................................................................................... 71-92 3 4.1. Communal Consciousness during 1870s and the Role of Freedom of Speech and Expression ........................................................ 71-79 4.2. The Rangila Rasul Controversy and the Making of Section 295(A) ..................................................................................................... 79-88 4.2.1. The Case in the Lahore High Court ............................................ 81-84 4.2.2. The Bill in the Legislature ........................................................... 84-88 4.3. The Nationalist Discourse and the Dichotomy over Freedom of Expression ............................................................................................... 88-92 5. Conclusion ...................................................................................................... 92-93 Chapter 3: Freedom of Expression and Religious Vilifications: Decoding the Constitutional and Legal Definition of “Limits” ................................................................................ 94-132 1. Introduction .................................................................................................... 94-96 2. Constituent Assembly and the Idea of Freedom of Speech and Expression in the Constitution .................................................................... 96-100 3. The CAD and the Central Concerns regarding Freedom of Expression ................................................................................................... 101-113 3.1. The Fear of Continuing Aspects of British Rule ................................ 101-103 3.2. Uncompromising Faith in the Judiciary .............................................. 103-104 3.3. Responding to the Complicated Context ............................................ 104-113 3.3.1. The Location of the Value of Liberty in relation to Equality and Fraternity ........................................................... 105-107 3.3.2. Individual vs. Group in the Constitutional Vocabulary .......... 107-110 3.3.3. Freedom of Speech and Expression and the Issue of “Communal Hatred” .............................................................. 110-113 4. The Constitutional Amendments and other Legal Apparatuses ........... 113-117 5. The Amendment of the Statutory Laws and its Implication on Freedom of Speech and Expression.......................................................... 117-128 6. Attitude of the Lawmakers towards Freedom of Speech and Expression in Independent India .............................................................. 128-130 7. Conclusion .................................................................................................. 130-132 4 Chapter 4: Preventing Religious Offence: Law, Courts and “Reasonable” Restrictions to Freedom of Speech and Expression ........................................................................... 133-173 1. Introduction ................................................................................................ 133-136 2. Religious Offense and Reasonable Restrictions to Freedom of Speech and Expression .............................................................................. 137-142 3. Understanding “Religious Offense” in the Light of Statutory Laws: A Perspective from Indian Courts ................................................ 142-157 3.1. The “Matter v. Manner” Conundrum.................................................. 143-152 3.2. Extending the Reach of Law: Separating “Punitive” and “Preventive” Actions .......................................................................... 152-157 4. Restricting Freedom of Expression: Courts and the Justifications for Legal intervention
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