ABHINAV CHANDRACHUD

Republic of Rhetoric

Free Speech and the Constitution of India

PENGUIN BOOKS Contents

1. The Music of an English Band 2. The Wounded Vanity of Governments 3. ‘He Who Destroys a Good Book, Kills Reason Itself’ 4. Munshi’s Coup in the Constituent Assembly 5. Prasad and Mookerjee Trigger an Amendment 6. The Anti-DMK Amendment 7. Prudes and Prigs 8. Obscenity Lies in the Crotch of the Beholder 9. A Blaze of Glory for Judges 10. Nehru Calls Justice Bose Unintelligent 11. Prejudicing Mankind 12. ‘Scurrilous Satire against a Friendless Woman’ 13. Shouting Fire in a Crowded Theatre 14. The Most Solemn Symbol of a Country 15. Methods of Influencing the Press

Notes Acknowledgements Follow Penguin Copyright To Radha, the brightest star in the darkest night 1 The Music of an English Band

India became independent on 15 August 1947, the second anniversary of the Japanese surrender during the Second World War.1 On that historic day, however, India did not fully cast off her colonial chains. Between August 1947 and January 1950, India was a British dominion which, like Australia and Canada, recognized the king as her monarch and sovereign. This had not been the aim of the freedom movement whose clarion call, for decades, had been purna swaraj or complete independence, not dominion status. During this time, Indian institutions derived their power from the Indian Independence Act, 1947, a statute which had been enacted by Britain’s Parliament. Up to 1949, cases decided by the federal court, the precursor to the Supreme Court of India, could be appealed before the Privy Council in London.2 It was only on 26 January 1950, when the Constitution came into force,3 that India fully attained her independence. It was for this reason that Ambedkar said in his famous last speech in the Constituent Assembly: ‘On 26th January 1950, India will be an independent country’.4 It was on this day that India became a republic which was no longer under the British monarch or Parliament. The Constitution of India made it a point to repeal the Indian Independence Act, 1947, and the Government of India Act, 1935,5 a powerful symbol that India no longer derived her power and legitimacy from London. Broadly speaking, the Constitution had two competing goals; one was to transform India while the other was to keep things the same. Prime Minister Nehru believed that society had to face ‘two urges, continuity and change’, and that it had to keep these ‘evenly balanced’ in order to succeed.6 India’s Constitution accordingly aimed to preserve a Nehruvian balance between continuity and change. In the words of Granville Austin, the Constitution sought to bring about a ‘social revolution’, while at the same time trying to preserve ‘national unity and stability’.7 On the one hand, the Constitution tried to bring about change and an unprecedented socio-political transformation in India, unlike anything we had ever seen before. For example, untouchability was formally abolished8 by the Constitution, and public places were thrown open to all, regardless of a person’s religion, caste or gender.9 In the colonial period, some Indians were often given titles like ‘Sir’, ‘Rao Bahadur’, ‘Khan Bahadur’, or ‘Dewan Bahadur’, e.g., Sir Jamshedji Kanga or Dewan Bahadur G.S. Rao. All this came to an end with the Constitution in 1950. To this day, our Constitution tells Sachin Tendulkar that he cannot accept a knighthood from the British monarch, unlike Sir Don Bradman.10 The Constitution sanctioned a programme of ‘reservation’ or affirmative action for historically marginalized strata of Indian society, which is why many seats in universities and government jobs in India continue to be reserved for members of backward castes and tribes. India, under the British, had been a hotchpotch of provinces and princely states. The provinces were directly governed by the British, while the princely states were ruled by Indian princes who accepted the suzerainty of Britain. Now, the Constitution consolidated all the princely states, more than 500 of them, into Indian territory, as Part ‘B’ and ‘C’ states.11 Perhaps most importantly, every adult Indian citizen, man and woman, was given the ability by the Constitution to vote in central and state elections, regardless of whether he or she had property or educational qualifications.12 Much of the Constitution was therefore novel and unique. In fact, there was a radical legislative transformation in India after independence. British rule in India had been sustained with the collaboration of Indian princes, landlords, and upper castes (who flocked to colonial institutions like the Indian Civil Service). These three groups were penalized in independent India. Landlords lost much of their land to tenant cultivators in an ambitious programme of land reform. Princes lost their authority to rule, and eventually, their privy purses. The upper castes can compete, in many states, for no more than 50 per cent of the seats in educational institutions, because of caste-based reservations. Independence did, therefore, involve a substantial break from the past. At the same time, however, the Constitution had another goal which sought to preserve and maintain the status quo, to seamlessly transport the political landscape of British India into India after independence. This goal embedded in the Constitution attempted to preserve stability at a time of widespread partition-related rioting. Significant portions of the Constitution, e.g., the distribution of legislative powers between the Union and States,13 and the power to proclaim an emergency,14 were inspired by the Government of India Act, 1935. In the Constituent Assembly, M. Ananthasayanam Ayyangar admitted that there was ‘some truth in (the) remark’ that the Constitution was ‘a mere copy of the 1935 Government of India Act’.15 British-era institutions like the high courts were carried forward, and none of the judges who had served, loyally to the colonial regime, on courts like the Bombay High Court, lost their jobs in August 1947. Instead, many of them grew to be widely respected in India’s legal profession.16 In short, there was quite a lot in the Constitution which was designed to keep things as they were, to maintain, as some scholars say, ‘colonial continuity’.17 As K. Hanumanthaiya famously remarked in the Constituent Assembly: ‘We wanted the music of veena or sitar, but here we have the music of an English band.’18 At its heart, the Constitution contained a chapter on fundamental rights. One of these rights was the right of every citizen in India to ‘freedom of speech and expression’, guaranteed by Article 19(1)(a) and limited by Article 19(2). It would be quite intuitive to think that this important fundamental right belonged to the transformative part, not the status-quo part, of the Constitution. After all, this was perhaps the first time in India’s history that political rights inspired by individualistic Western values,19 rights like the right to life, personal liberty and equality, were formally recognized in a legally enforceable constitutional document. The chapter on fundamental rights looked a lot like the Bill of Rights of the US Constitution, or the more recent Universal Declaration of Human Rights which had been adopted by the General Assembly of the UN a little over a year before our Constitution came into being. However, a closer look at its history and evolution reveals that the enactment of the Constitution made little or no substantive difference to the right to free speech in India. Though there was no formal document recognizing a right to free speech in British India, Indians certainly did enjoy a common law right to speak freely during that time. Broadly speaking, prior to India’s independence, there were four exceptions to the right to free speech. These were: sedition (and hate speech), obscenity, contempt of court and defamation. These continued to be exceptions to the right to free speech after the Constitution was adopted, and remained virtually unchanged.20

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The law of sedition in British India was rather different from its counterpart in England. There, since 1832, sedition was narrowly defined to mean inciting violence or insurrection against the government. It was a ‘misdemeanour’, or lesser offence, which attracted a sentence of imprisonment of a few years. Misdemeanours in England were ‘bailable’ offences, meaning that a person accused of sedition could get bail as a matter of right. Prosecutions for sedition were rarely launched there. It was also difficult to obtain a conviction for sedition in England because those who were accused of that offence were tried before juries which tended to be sympathetic to their own countrymen.21 By contrast, sedition in British India, enacted in the form of Section 124- A of the Indian Penal Code in 1870, was defined very broadly to include merely evoking hatred, disloyalty or bad feelings against the government. It was punishable with ‘transportation’ to an overseas prison for life. It was a non-bailable offence. Prosecutions for sedition were relentlessly launched against the leaders of India’s freedom struggle. ‘Special’ juries, consisting of a majority of white jurors, were deployed in the trials of those who were accused of sedition. For example, in 1908, the prominent nationalist leader, Bal Gangadhar Tilak, was tried and convicted for sedition at the Bombay High Court by a jury consisting of seven white and two Parsi jurors, which unsurprisingly found him guilty by a majority of 7-2. If Tilak had been given the right, like Englishmen, to be tried before a jury of his own countrymen, there is no doubt that he would have been acquitted. On the right to free speech, sedition therefore generated a great deal of debate in the Constituent Assembly. Members of the Assembly were keen to get rid of sedition, which had long been used against Indian patriots. However, by virtue of its first amendment, introduced in 1951, the Constitution did very little to limit sedition.22 Sedition continues, to this day, to stand as part of the Indian Penal Code. It is still repeatedly invoked against those who speak in an allegedly anti-national way. Two instances come to mind in 2016 alone. Jawaharlal Nehru University Students Union president, Kanhaiya Kumar, was accused of sedition for allegedly raising anti-India slogans on the university campus in Delhi. Amnesty International was similarly accused when it organized an event at Bengaluru on human rights atrocities in Kashmir, at which anti-India slogans were allegedly raised.23 Court rulings which declared sedition unconstitutional in the early years of the republic were undone by the First Amendment to the Constitution, spearheaded in 1950 by Prime Minister Nehru, who was afraid that people would use the right to free speech to preach violent crimes, like murder and communal rioting, with impunity. Sedition continues to be a non-bailable offence, and it attracts a whopping maximum sentence of life imprisonment. Though sedition now means what it did after 1832 in England, i.e., incitement to violence and insurrection, it can’t be said that this was necessarily an outcome brought about by the Constitution. Even prior to India’s independence, Chief Justice Maurice Gwyer of the federal court had applied the English test of sedition in a case, before he was overruled by the Privy Council.24 Remarkably, sedition became a ‘cognizable’ offence for the first time in the 1970s, several decades after India became independent. A ‘cognizable’ offence is one in which a police officer may arrest the accused and investigate the case without a warrant or direction from a magistrate. In other words, during the British colonial era in India, a person accused of sedition could not be arrested by a police officer without the officer first obtaining a warrant from a magistrate. By contrast, today, a police officer may, even without a warrant from a magistrate, arrest a person accused of sedition. This change was brought about by the Indira Gandhi government in the 1970s, only a few years before the Emergency was declared in India.25

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The other exceptions to free speech recognized by the Constitution— obscenity, contempt of court and defamation—generated little or no debate in the Constituent Assembly. The enactment of the Constitution did not limit or whittle down the contours of these exceptions to free speech. The standard for determining whether something was obscene or not in British India was the ‘Hicklin test’. Developed in R. v. Hicklin by Chief Justice Cockburn, this test permitted courts to look at isolated passages in a book in order to evaluate whether it had any literary, non-obscene merit. In the words of one commentator, four words could render a book of four hundred pages obscene under the Hicklin test. This test also allowed courts to look at a work from the standpoint of the most perverted adult or the most immature adolescent. This is starkly contrary to other legal tests at the common law, which require courts to look at a situation through the eyes of a reasonable person. Even after the Constitution was enacted, however, the Hicklin test continued, for several decades, to be used by the Supreme Court of independent India to figure out whether something was obscene or not. Though the Hicklin test was modified by Indian courts, the process of its modification began not with the enactment of the Constitution in 1950, but in colonial India. Surprisingly, ‘prior restraints’, which strike against the very heart of a constitutional right to free speech, are, under certain circumstances, considered legal in India. A prior restraint is a form of censorship imposed before the publication takes place. For example, if the government directs newspapers not to publish any articles unless they are first approved by the government, this form of censorship would be called a prior restraint. In 1823, Raja Rammohan Roy submitted a memorial to the Supreme Court of Calcutta protesting against the imposition of prior restraints on the press. Earlier and more famously, John Milton had, in his 1644 pamphlet Areopagitica, protested against Parliament’s decision to re-introduce prior restraints against the press in England, which were eventually abolished there in 1694. However, despite the enactment of the Constitution, the Supreme Court in the 1950s held that prior restraints were constitutional.26 Though prior restraints are not imposed, as a matter of practice, on the Indian press any longer (except by courts which sometimes impose gag orders on the press), they continue to be applied against India’s film and entertainment industry. The Censor Board in India gets to decide what scenes should be cut from movies before they are fit for viewing, even by adults. Over the years, the Censor Board has made some outrageous decisions. For instance, it was responsible for changing the ending of an iconic Indian Bollywood film, Sholay, shot in the 1970s. In the original version, one of the chief protagonists, Thakur Baldev Singh (portrayed by Sanjeev Kumar), a former police officer, kills the villain, Gabbar Singh (portrayed by Amjad Khan), at the end of the film. The Censor Board directed the film’s makers to change the ending so that the protagonists give Gabbar Singh over to the police, as the Censor Board did not want a police officer being shown taking the law into his own hands (or, in this case, his own legs), as it was worried about unrest during the Emergency in India at the time.27 More recently, the Censor Board headed by Pahlaj Nihalani cut out kissing scenes between Daniel Craig and Monica Bellucci in the James Bond film Spectre.28 It also refused to certify that Udta Punjab, a Bollywood film which shed light on the menace of drug addiction in Punjab, was suitable for viewing by adults, unless certain cuts were made to the film, e.g., the deletion of expletives and close-up shots of drugs being injected into the skin.29 Such prior restraints should be anathema to a constitutional regime in which free speech is a part of the bill of rights. In the colonial era, Lord Lytton’s dreaded Vernacular Press Act, 1878, allowed the government to demand an expensive bond from an Indian language newspaper which could be forfeited if the newspaper published anything objectionable. This law was repealed in 1882, and subsequent colonial era statutes imposed a ceiling on the amount which could be demanded as a bond or security. For example, the Indian Press Act, 1910, said that the government could not ask a newspaper to furnish a security of more than Rs 2000, while later, the Indian Press (Emergency Powers) Act, 1931, said that the security could not exceed Rs 1000. However, in independent India, despite the Constitution, Nehru’s ‘Press (Objectionable Matter) Act, 1951’ and Indira Gandhi’s Emergency-era ‘Prevention of Publication of Objectionable Matter Act, 1976’, mirrored Lytton’s Vernacular Press Act, by allowing the government to demand a security from a newspaper without setting any financial ceiling on the amount. Thus, restraints on the press imposed in independent India have resembled those imposed on the press in colonial India, despite the existence of a fundamental right to free speech under the Constitution.

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In British India, a person’s speech or expression could be considered to be in contempt of court primarily under two doctrines. The first of these was called ‘scandalizing the court’. Under this doctrine, a person who insulted a judge, typically by saying that he was corrupt or biased, could be hauled up for undermining the dignity of the court. The second was called the ‘sub judice rule’, under which it was not permissible for newspapers to comment on cases pending in court, in a manner which might have influenced jurors, witnesses or even judges who were part of the case. Both these doctrines continue, to this day, in independent India, despite the enactment of the Constitution. Though the doctrine of scandalizing the court has been abolished in England, the enactment of a fundamental right to free speech in the Constitution of India has made little difference to this body of law here. For instance, the Supreme Court of independent India still subscribes to the colonial notion that stories which appear in print in India, and which lower the authority of a judge, are more likely to be believed here because many Indians are ignorant, as against Englishmen who may be sceptical when they read such stories. In this context, using rare archival material, we will also see an interesting incident which took place in 1959, when Prime Minister Nehru nearly committed contempt of court by informing journalists at a press conference that he thought Justice Vivian Bose was ‘lacking in intelligence’. Further, the law on contempt in the form of the sub judice rule remains substantially similar today to what it was in the colonial period. Most of the changes to the sub judice rule were made not with the enactment of the Constitution in 1950, but with the coming into force of the Contempt of Courts Act, 1971.

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When the Indian Penal Code was enacted in 1860, it made defamation a criminal offence. Over 150 years later, the enactment of the Constitution has, even now, made virtually no difference to this body of law. This is for the following reasons: Firstly, in England, defamation was only considered criminally punishable when it occurred through the written word, not the spoken word. This is not so in India where spoken defamatory statements can, to this day, result in criminal prosecutions. Secondly, as far back as in 1837, Thomas Babington Macaulay, the chief draftsman of the IPC, proposed that truth be made an absolute defence to criminal defamation in British India. In other words, Macaulay believed that when a person is accused of criminal defamation, he should be able to argue, in his defence, that the words he spoke or wrote were true. Macaulay’s view was far more progressive than the contemporary law in England was at the time, which did not make truth a defence to criminal libel. However, even today, despite the enactment of the Constitution, truth is still not an absolute defence to criminal defamation under the IPC. It is only a defence if the person accused can prove that the defamatory statements were made ‘for the public good’. Thirdly, under English common law, witnesses and advocates enjoyed what is known as ‘absolute privilege’ for statements they made in court. For example, if a witness made a defamatory statement while giving his testimony in court, he could not be criminally prosecuted for defamation, even if his words were spoken with ‘express malice’. Likewise, an advocate who made defamatory statements while arguing his client’s case in court could not be prosecuted for criminal libel. Witnesses and advocates enjoyed absolute privilege in England because this was good public policy—it was meant to encourage witnesses and advocates to speak freely in court without fearing defamation cases being brought against them. However, in India, even now, witnesses and advocates do not enjoy absolute privilege in criminal defamation cases for making such statements. They get only a ‘qualified privilege’, meaning that they must show, among other things, that their statements were made without express malice. Fourthly, a person in England could not be considered to have committed criminal defamation unless his words were either such as to have had the tendency to provoke a breach of the peace or, later on, unless his words were sufficiently serious and non-trivial. On the other hand, no such limitations are imposed under the law of criminal defamation in India. Fifthly, since 2009, defamation has ceased to be a crime in England altogether. However, the Supreme Court of India recently rejected a challenge to the constitutional validity of criminal defamation under the Indian Penal Code. Lastly, the Supreme Court of India has applied the standard adopted by the US Supreme Court in New York Times v. Sullivan30 to statements made only against public officials other than judges. Under this test, anyone who makes a false defamatory statement about a public official enjoys qualified privilege—he cannot be sued for defamation unless his statements were made with malice, i.e. with reckless disregard for the truth. However, the Supreme Court has refused to apply this test to cases of contempt of court involving statements made about judges.

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India’s Constitution also recognizes some restrictions on free speech which did not exist in the British era. For example, the Muslim League in British India had the right to propagate peacefully, through the electoral process, the idea that India should be partitioned and that portions of Indian territory should secede from India. By contrast, enacted in the 1960s, the Sixteenth Amendment to the Constitution ensured that the DMK in the South would not be able, like the Muslim League, to make secession from India a part of its peaceful electoral platform. In practice, Kashmiris do not have rights to peacefully demand secession from India, or ‘azadi’ (freedom).31 Likewise, the framers of India’s Constitution decided to give a right to free speech and expression only to Indian citizens. This was despite the fact that those who were not Indians had often exercised a right to free speech in British India. In particular, Britons like Annie Besant and B.G. Horniman had helped espouse the nationalist cause in India’s freedom movement. These two had been a thorn in Britain’s backside, to the point that Chief Justice Norman Macleod of the Bombay High Court once opined that they ‘ought to have been put on board a ship long ago and sent home’.32 Horniman, as editor of the Bombay Chronicle, was summarily deported to England in 1919.33 In recognition of Horniman’s contribution to India’s freedom movement, Mumbai’s iconic and historic ‘Elphinstone Circle’ (previously known as ‘Bombay Green’) was renamed ‘Horniman Circle’ when India became independent.34 The memorial plaque at Horniman Circle now reads: ‘Dedicated to the Memory of Benjamin Guy Horniman 1873— 1948 who lived and worked for the freedom of the Press in India.’35 Yet, if Horniman has any Irish great-grandchildren surviving him today, for some strange reason they would not have a right to free speech under India’s Constitution. It is because of this deep distrust of foreigners that even today, India allows foreign investment in Indian newspaper companies only up to 26 per cent, and that too with the prior approval of the government. Likewise, a foreign news channel can only be ‘downlinked’ into India if it ‘does not carry any advertisements aimed at Indian viewers’ and ‘it is not designed specifically for Indian audiences’.36 Interestingly, an exception to the right to free speech was carved out in the First Amendment in 1950, that a person cannot harm, by his speech, ‘friendly relations with foreign states’.37 This was done because leaders like Syama Prasad Mookerjee, president of the Hindu Mahasabha, were advocating war between India and Pakistan and the forcible re-unification of the two countries. In short, this book will make the case that the enactment of the Constitution did not make a significant difference to the right to free speech here, that Articles 19(1)(a) and 19(2) belonged to the status quo aim of the Constitution, not the transformational one. The enactment of the Constitution made merely a rhetorical change, not a substantive one, to the right to free speech in India. This argument has not substantially been advanced before, by any of the leading scholars on the right to free speech in India.38

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This book also critiques the existing state of the law of free speech in India. The present law relating to obscenity, for example, is deeply problematic. Anything which is sexually arousing is considered obscene. However, whether something is sexually arousing or not is quite individualistic and subjective. In March 2013, television channel FTV was banned for ten days because, among other things, a programme called ‘Lingerie’ telecast at 11.30 p.m. showed women wearing lingerie that left their ‘buttocks . . . fully exposed’.39 The government called this ‘obscene and indecent’. Likewise, in 2009, criminal proceedings for obscenity were initiated against Bollywood celebrity couple Akshay Kumar and Twinkle Khanna because Twinkle unbuttoned the top button of Akshay’s jeans at the Lakme Fashion Week, a stunt for allegedly promoting Levi’s Unbuttoned line of jeans.40 One can justifiably wonder whether incidents such as this can be considered sexually arousing or obscene. Justices of the US Supreme Court used to gather in the basement of the court’s building to watch special screenings of pornographic movies involved in cases before them, in order to determine whether they were obscene or not. Justice Harlan, who had become nearly blind towards the end of his life, would bring one of his law clerks to watch these movies, and the clerk would have to give Justice Harlan a blow-by-blow account, no pun intended, of what was going on in the movie. Justice Harlan would then exclaim, ‘By Jove, extraordinary!’41 It was Harlan who famously wrote, in Cohen v. California,42 that ‘one man’s vulgarity is another’s lyric’. Justice Douglas of the US Supreme Court was similarly reported as having said that he opposed the test of obscenity because ‘to find something obscene, it has to be sexually arousing, and the older I get, alas, the harder it is for me to become sexually aroused’.43 Further, there is no reason why the Indian law on obscenity should be so deeply embarrassed and uncomfortable with sexually arousing material, ignoring other, more concerning, objections to obscenity and pornography like the well-being of the women involved in pornographic films. The modern-day doctrine of ‘scandalizing the court’ is unnecessarily designed to try and maintain a good public image for the judiciary. One of the primary justifications offered in favour of an Indian court’s power to punish contempts that scandalize the court is that this power is necessary to protect the public, not courts or judges. The Supreme Court has repeatedly held that powers to punish contemnors for scandalizing the court exist in order to maintain public confidence in courts. However, this is a weak argument. Stifling criticism of the judiciary will not enhance public confidence in courts. A person’s faith or confidence in a court will, after all, depend on the work that the court does, not on what people are publicly allowed to say about it. Though no mainstream newspaper or television channel will say that some judges in India are corrupt,44 there is, today, an inescapable public perception, perhaps a very unfair one, that like all public officials in India, some judges too may be corrupt. The power of the Supreme Court and the high courts to punish contemnors for scandalizing the court cannot reach into every living room or dinner table conversation in which the integrity of judges is occasionally, even if very baselessly, questioned. It would be foolhardy to think that the doctrine of scandalizing the court helps maintain an image that courts function honestly. The powers that Indian courts exercise today for punishing contempts in the form of scandalizing the court are also far too vast. Derogatory statements about judges, made even outside the courtroom, which do not imminently threaten the day-to-day functioning of the court or the administration of justice, are punishable on the questionable theory that they might impair public confidence in the judiciary. This perhaps goes a little too far. As Justice Douglas said, judges are supposed to be ‘men of fortitude, able to thrive in a hardy climate’. In the words of a past chief justice of England, uttered in around 1974, ‘Judges’ backs have got to be a good deal broader than they were thought to be years ago.’45 Recently, the Supreme Court created history by issuing a contempt notice against a former Supreme Court judge, the intemperate and irreverent Justice Katju, and by sentencing a sitting high court judge, Justice C.S. Karnan, to six months’ imprisonment, for committing contempt of court. In the end, it is India’s cultural norms, not its Constitution, which determine the contours of free speech. ‘Insults’ to national honour are not tolerated here, and religious sentiments can be hurt far too easily. In the bargain, oddly complicated rules govern how India’s national flag may be displayed. For instance, the Flag Code says that the flag must fly at half- mast when the chief justice of India passes away, but not when a judge of the Supreme Court passes away. Ironically, rules governing India’s national flag make it illegal for a person to inscribe the words of Article 19(1)(a) of the Constitution on the flag. In 2016, the Supreme Court passed an odd interim order directing all theatres to mandatorily play the national anthem before screening films, and for all spectators to stand while it was being played. That very year, San Francisco 49ers’ reserve quarterback Colin Kaepernick raised a furore in the US when he refused to stand for the American national anthem before a football game, to protest police brutality against African Americans, as part of the Black Lives Matter movement. Others followed his example. Our Supreme Court’s order deprives Indians of a similar right to protest, while ignoring the famous words of Justice Robert H. Jackson of the US Supreme Court: ‘Compulsory unification of opinion achieves only the unanimity of the graveyard.’ Government servants have very limited rights to free speech. In some high courts, it is informally expected that when a lawyer is elevated to the Bench, he must delete his Facebook account, because judges are expected not to engage with social media. There are also other systemic problems which have a chilling effect on speech and expression in India. The first of these is that the law of free speech in India is essentially criminal law, and being involved in a criminal case here is a particularly unpleasant experience. Sedition is a ‘cognizable’ and ‘non-bailable’ offence. This means that if a person files a complaint46 with the police against you and says that you have committed the offence of sedition, the police have the power to arrest you without a warrant from a magistrate, and you need to approach a court in order to get bail.47 The court may or may not, at its discretion, grant you bail, i.e., bail, in such cases, is not a right. The police may arrest you on Friday evening, which in many cases means that you can only get bail on Monday. The prospect of being arrested and of spending a few nights in police custody is an incredible disincentive against saying anything which might be considered even remotely anti- national, let alone seditious. On the other hand, obscenity and defamation are bailable offences. This means that if the police arrest you, you can be let off on bail without approaching a court. However, a criminal case in India takes a long time to conclude. Being slapped with a charge of obscenity or defamation in India is like having a lifestyle disease. One cannot get rid of it anytime soon, and one has to learn to live with it, to make day-long visits to the subordinate court, every now and then, for several years, if not decades. At a function held at Kochi in December 2008, politician Shashi Tharoor interrupted the singing of the national anthem and asked members of the audience to sing the anthem by placing their hands on their chests in the manner that Americans sing their national anthem. A criminal complaint was filed against him, alleging that he had insulted the national anthem. It was only about five years later, in 2013, that an additional chief judicial magistrate discharged Tharoor.48 Secondly, the right to free speech under the Constitution is only available against the government, or its instrumentalities or agencies.49 This is a Western, libertarian idea, that it is the government—a ‘Leviathan’ or behemoth—which constitutes the greatest threat to the liberties of the individual and from whom the individual needs to be protected. However, in modern-day India, rights such as the right to free speech can be smothered by private bodies as well. Thus, if the government tells you that you can’t hold up a sign which says ‘Please elect Mr X’, you could invoke your fundamental right to free speech and challenge the government’s decision. However, if your private employer threatens to dismiss you from service if you hold up a sign which says so, you cannot invoke the fundamental right to free speech, because such rights are only available against the government and its instrumentalities. This is particularly problematic in a place like India where threats to free speech often come from private, non-state actors. India’s most famous painter, M.F. Hussain, lived out his last days in self-imposed exile, because of death threats he received from vigilante groups in India—groups that were offended by his nude paintings of Hindu goddesses50—despite a decision of the Delhi High Court quashing warrants of arrest and summoning orders issued against him.51 Bollywood film director Karan Johar’s movies have repeatedly been targeted by a right-wing Hindu political party in Maharashtra. Movie theatres were allegedly vandalized by members of this party because one of Johar’s movies referred to the city of Mumbai as ‘Bombay’, or because another had a Pakistani actor cast in it. In February 2017, Ramjas College in Delhi had invited speakers who allegedly held anti-national views to their seminar, ‘Cultures of Protest’. The seminar had to be cancelled allegedly because members of the Akhil Bharatiya Vidyarthi Parishad (ABVP), a student-run political party,52 engaged in violence to protest the event. The fundamental right to free speech is meaningless against vigilante groups.

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Of course, that is not to say that we do not have any right to free speech and expression in India. Over the years, there have been several cases in which judges of the Supreme Court have admirably defended the right to free speech. In the 1980s, for example, three young children were expelled from their school in Kerala because, being Jehovah’s Witnesses, they refused to sing the national anthem, though they stood up respectfully while it was being sung. Justice O. Chinnappa Reddy directed the school to re-admit the students, and added: ‘Our tradition teaches tolerance; our philosophy preaches tolerance; our Constitution practises tolerance; let us not dilute it.’ When an obscenity case was filed against Raj Kapoor for his film Satyam, Sivam, Sundaram, Justice V.R. Krishna Iyer wrote that the ‘world’s greatest paintings, sculptures, songs and dances, India’s lustrous heritage, the Konaraks and Khajurahos, lofty epics, luscious in patches, may be asphyxiated by law, if prudes and prigs and State moralists prescribe paradigms and proscribe heterodoxies.’ When Booker Prize-winning author Arundhati Roy was hauled up for contempt of court by the Supreme Court, Justice S.P. Bharucha wrote that ‘the Court’s shoulders are broad enough to shrug off (her) comments’.53 More recently, in Shreya Singhal v. Union of India,54 Justice Nariman struck down Section 66-A of the Information Technology Act, 2000, which made annoying, inconvenient or insulting posts on Facebook criminally punishable. ‘Mere discussion or even advocacy of a particular cause howsoever unpopular’, said Justice Nariman, cannot be prohibited by law. ‘It is only when such discussion or advocacy reaches the level of incitement that Article 19(2) kicks in.’ There are several similar examples where the high courts in India have stood up for the right to free speech. In 2014, for example, the comedy group All India Bakchod (AIB) held a no-holds-barred ‘roast’ of two Bollywood celebrities in Mumbai. True to any roast, their stand-up comedians used extreme language in their comedy routine. When the video of the event was uploaded on YouTube, some police complaints were filed, alleging obscenity, against not merely the stand-up comedians who were on stage at the event, but also against some celebrities who were merely sitting in the audience and laughing or cheering. The Bombay High Court directed the police not to take any coercive steps, like arrest, against the accused.55 Likewise, in 2015, the Calcutta High Court awarded compensation to Ambikesh Mahapatra, a professor of Chemistry, who was arrested by the police in West Bengal for merely circulating a cartoon which lampooned the chief minister of the state.56 There are many other such examples, and it certainly cannot be said that Indians do not enjoy any right to free speech whatsoever. However, this book will suggest that when one looks at the exceptions to the right to free speech which exist today, the conclusion one arrives at is that the enactment of the Constitution in 1950 made little substantive difference to our right to speak freely. 2 The Wounded Vanity of Governments

This chapter examines the law of sedition as it stood in British India prior to the enactment of the Constitution.1 We will see that the law in British India was inherently designed to stifle dissent and discriminate against the ‘vernacular’ or Indian language press. The law of sedition made it a criminal offence to merely evoke bad feelings against the government, unlike its contemporary counterpart in England where only serious incitements to insurrection or violence were punishable. In England, a seditious libel was a ‘misdemeanour’2 or minor offence, which attracted a maximum sentence of two years’ imprisonment, while in British India a person convicted of sedition could be sent off or ‘transported’ to an overseas prison for life. Misdemeanours in England were historically what we would now call ‘bailable’ offences (i.e., offences where an accused had a right to be released on bail pending the trial)3, but sedition was made a non-bailable offence under the Indian Penal Code (IPC), thereby subjecting the liberty of a person accused of sedition to the discretion of a magistrate. In England, only a unanimous jury verdict could convict a person of the crime of sedition, whereas in British India, jury verdicts were not required to be unanimous. In fact, the prominent nationalist leader, Bal Gangadhar Tilak, was repeatedly convicted by a non-unanimous jury, which would have been insufficient to sustain a conviction in England. Sedition cases were often tried by ‘special juries’ where the majority of jurors were white, and so Indians who were accused of sedition were denied a right to be tried by their peers and contemporaries. Colonial courts presumed that readers of ‘vernacular’ newspapers were ignorant and unintelligent, that they were therefore more readily susceptible to seditious writings. Regrettably, much of this has not changed in independent India, and the enactment of the Constitution in 1950 has made little difference to the law of sedition.

English Law: Direct Incitement

The IPC was enacted in the year 1860. At the time, there was a sharp distinction in England between the law of sedition on the books and the law in action. The law on the books was that a person was considered to have committed a crime if he uttered4 or published5 words with a ‘seditious intention’, meaning ‘an intention to bring into hatred or contempt, or to excite disaffection’ against the crown or the government, or to ‘excite’ the citizenry to ‘attempt otherwise than by lawful means, the alteration of any matter in Church or State’, to ‘raise discontent or disaffection amongst Her Majesty’s subjects’, or even to ‘promote feelings of ill will and hostility between different classes of such subjects’.6 In other words, the official definition of sedition under English law at the time of the enactment of the IPC was an incredibly broad and extensive one. It did not require the seditious words to have any likelihood or tendency to produce insurrection, rebellion or public disorder, or to bear any imminent causal connection with these. Even hate speech was covered within its ambit. However, in practice, the law of sedition in England had been substantially watered down.7 Since 1832,8 it was only direct incitements to commit offences against the State which were considered punishable under the law of sedition in England. According to Sir James Fitzjames Stephen, the law member of the Viceroy’s Council who would eventually introduce sedition to India, there had been a ‘change of public sentiment as to the free discussion of political affairs’ in England, which had ‘practically rendered the law as to political libels unimportant’. Since 1832, he said, prosecutions for sedition in England had been ‘so rare that they may be said practically to have ceased’.9 In short, at the time that the IPC was being enacted in India in 1860, while the definition of sedition in the law on the books in England was a very vast and substantial one, in action the law of sedition was rarely invoked in England, if at all. Sedition in England was a ‘misdemeanour’ or a minor10 offence, which attracted a typical sentence of two years’ imprisonment,11 as distinguished from a ‘felony’ or ‘treason’, which were serious offences that attracted harsher penalties. Misdemeanours were historically what we would now call ‘non-cognizable’ (meaning, a police officer could not arrest a person accused of a misdemeanour or investigate the case without a warrant or direction from a magistrate)12 and ‘bailable’ (meaning, a person arrested in connection with a misdemeanour was entitled, as a matter of right, to be released on bail pending the trial, and his bail was not dependent on the discretion of a criminal court) offences.13 In all criminal cases, including cases involving sedition, juries in England consisted of twelve jurors who had to return a unanimous verdict. Stephen considered the unanimity rule to be so ‘essential’ that he opined that the jury system itself should be abolished if this rule were to be done away with.14

Macaulay’s 1837 Draft

The IPC was drafted by a Law Commission which was composed of four members.15 The most influential of these was a man called Thomas Babington Macaulay, who, in 1835, had patronizingly written that ‘a single shelf of a good European library was worth the whole native literature of India and Arabia’.16 Two years later,17 Macaulay prepared a draft of the IPC. Section 113 of Macaulay’s draft made it an offence for any person to ‘excite feelings of disaffection to the government’, though making critical yet ‘obedient’ and respectful comments on government measures did not attract any penalties.18 Macaulay’s draft of Section 113 was different from the actual law of sedition, in practice, in England. It did not, for instance, restrict prosecutions for sedition to only those cases where there had been a direct provocation to disorder. It did not say that prosecutions were meant to be very rare. The offence of sedition attracted the enormous maximum sentence of banishment for life, though a seditious libel was a mere misdemeanour in England.19 However, the formal, broad English law of seditious libels was not incorporated wholesale into the Section either. In other words, Macaulay did not say in his draft that the offence of sedition included merely bringing the government into hatred or contempt. In his notes on the IPC, Macaulay wrote:

An attack made, in good faith, on the public administration of the Governor of a Presidency, will in no case be a defamation. But if the author of it designed to inflame the people against the government, he will be liable to punishment under clause 113.20

Macaulay’s draft of the IPC took several decades to become law in British India—his draft was prepared in 1837, but the IPC was enacted in 1860. In the meantime, in 1846, the Indian Law Commission presented its second report on the IPC to the Governor-General in Council, and in it several members of the Law Commission recorded notes of dissent against the section dealing with sedition. One member,21 for example, said that the definition of sedition was vague, and he was concerned that even ‘trivial slander against the government’ could be met with ‘enormous severity’, as the offence of sedition was punishable with banishment for life and an unlimited fine. Another22 thought that as a matter of policy, ‘every government should avoid punishing mere words, unless such be accompanied by acts injurious to the interests of the State.’ For him, the proposed law of sedition in India was ‘a direct attack on the public press’. Likewise, yet another member23 considered Section 113 to be ‘wholly indefensible’. The majority of the membership of the Law Commission, on the other hand, endorsed Macaulay’s draft of sedition. They opined that it was necessary to bring both written and verbal words into the definition of sedition, even though verbal communications tend to be more ephemeral in nature, because disaffection against the government could be ‘effected more easily, more suddenly, and therefore more dangerously, by an inflammatory declamation on a popular topic, addressed to a multitude by a skilful orator, than by the circulation of written or printed papers.’ According to them, ‘Mere vague words spoken at random’ were not to be penalized under the law of sedition. What was to be punishable was:

[W]ords of advice, direction or persuasion, tending to excite the people to whom they are addressed to a degree of disaffection incompatible with a disposition to render obedience to the lawful authority of the government . . . and spoken under circumstances indicating a design to cause such excitement, or under circumstances from which the speaker must have known it to be likely that the words spoken by him would cause such excitement.24

Stephen’s 1870 Amendment

For some reason, however, Section 113 of Macaulay’s 1837 draft of the IPC did not make it into the final version of the law that was enacted in 1860. The official explanation for this was that Section 113 had been left out of the IPC by mistake, that somebody had blundered while drawing up the final draft. Ten years later, in August 1870,25 the law member of the Viceroy’s Executive Council, Sir James Fitzjames Stephen, introduced a Bill to amend the IPC and to bring Macaulay’s Section 113 into the code’s fold.26 While doing so, Stephen said that sedition had been left out of the IPC due to ‘some unaccountable mistake’. However, it is quite possible that Section 113 of Macaulay’s draft was left out of the IPC in 1860 because it was incompatible with the contemporary law of sedition, in practice, in England. This is apparent from the fact that Macaulay’s draft of Section 113 was subsequently revised by law member Barnes Peacock to bring it more in line with the English law of sedition. Peacock’s draft of Section 113, which was never enacted, made sedition an offence only where it incited others to commit acts of violence or resistance against the state. His draft penalized speech which made others develop ‘such feelings of disaffection’ against the government ‘as are likely to induce . . . them to resist or disobey the lawful authority of the Government of India’ or ‘to break the peace or to violate the law’.27 In fact, in leaving out Section 113 of Macaulay’s draft, one wonders whether the framers of the IPC in 1860 were concerned about the possibility of the IPC being considered a source or precedent for the drafting of a similar criminal code in England itself.28 After all, England did not have an English Penal Code.29 While introducing the Bill to the Council of the Governor-General, Stephen said that Section 113 of Macaulay’s draft did not penalize any criticism of government measures, ‘however severe and hostile’, or ‘disingenuous, unfair, and ill-informed it might be’. It was only when the writer or speaker directly or indirectly suggested or intended to produce the use of force among his listeners that the offence was attracted. However, Stephen cautioned the Council that sometimes, language ‘temperate in itself’, when ‘addressed to an excited mob’, might ‘produce forcible resistance to authority’, and that this must be taken into account while understanding the meaning of sedition. In November 1870, the Bill was taken up for consideration by the Council.30 Stephen disingenuously argued in the Viceroy’s Council that the definition of sedition ‘embodied . . . improved and condensed’ the existing English law on the subject. He omitted to mention, as he would in his own book on the history of English law, that since 1832, the English law of sedition in action had been applied very rarely, only to prohibit direct incitements to disorder. Instead, in the Viceroy’s Council, Stephen merely expressed a hope that the law of sedition would be reasonably administered in India. He said that defamation constantly took place in modern day-to- day life, for example at dinner table conversations in Calcutta, but that the criminal law of defamation under Section 499 of the IPC was reasonably administered. Likewise, he said, the law of sedition in India would also be reasonably administered. In his concluding remarks on the Bill, Stephen offered hints that the reason sedition was now being introduced into the IPC was because of fears of a Wahabi conspiracy in British India. Stephen referred, in his speech, to a man who had preached ‘jehad or holy war against Christians in India’. The man had been in the habit ‘for weeks and months and years, of going from village to village, and preaching in every place he came to that it was a sacred religious duty to make war against the Government of India’. There were eight other men in Patna, said Stephen, who had been found engaging in similar activities. Stephen felt it necessary to clarify that ‘the government . . . had no suspicions of the Muhammadan community as such, and knew how to distinguish between the rash opinions of a small and obscure sect, and the sentiments of the vast Muhammadan population’. This was not a mere passing reference. In a speech made to the Council of the Governor- General in 1898, the lieutenant governor of Calcutta said that anybody who remembered the conditions in 1870 and who had carefully read Stephen’s speeches would know that ‘what the government had in its mind at that time was the Wahabi conspiracy and the open preaching of jehad or religious war against the government’.31 In short, it was the fear of a religious uprising of Muslims in India, the fear of Muslim preachers advocating jehad against the British colonial regime in India, which finally resulted in the law of sedition being introduced into the IPC. Section 113 of Macaulay’s draft was thus introduced as Section 124-A of the IPC. Interestingly, since the very beginning, the offence of sedition could not be tried upon a purely private complaint, and a prosecution had to be sanctioned by the government,32 a provision which continues to this day.33 Though sedition was made what we would now call a non-cognizable offence, it was also made non-bailable, though misdemeanours in England, as we have seen, were historically bailable.

Bangobasi and Kesari Section 124-A of the IPC remained dormant for two decades. The first known case on the law of sedition in India was Queen Empress v. Jogendra Chunder Bose,34 decided by the Calcutta High Court in August 1891. The proprietor, editor, manager and printer of a weekly Indian language newspaper called Bangobasi was prosecuted for some articles which had appeared in its pages. The articles had strongly opposed the Age of Consent Bill which was being hotly debated at the time.35 The Bill had sought to raise the age of consent at which Indian girls could be subjected to sexual intercourse from ten to twelve.36 This was a very fiercely contested move which created a huge controversy in British India because conservative Hindus viewed this as foreign interference with their religious practices. Bangobasi criticized the Bill in harsh terms. It wrote:

The English ruler is our lord and master, and can interfere with our religion and usages by brute force and European civilization. The Hindu is powerless to resist . . . 37

The case came up for trial before Chief Justice W. Comer Petheram. In his charge to the jury, Petheram explained that disaffection meant ‘a feeling contrary to affection, in other words, dislike or hatred’.38 For Petheram, sedition occurred where a speaker used words ‘calculated’ and with intent to create in the minds of the listeners ‘a disposition not to obey the lawful authority of the government, or to subvert or resist that authority’. The jury was unable to reach a unanimous verdict, and to his credit, Petheram refused to accept any non-unanimous verdict in a case involving sedition. The jury was consequently discharged and the case was held over for the next sessions. This is despite the fact that under the law of criminal procedure in British India, juries were to consist of a maximum of nine jurors only (as distinguished from twelve in England), and jury verdicts did not have to be unanimous. The accused was let out on bail.39 It seems that the case was eventually dropped. Though Section 124-A was inserted into the IPC for fear of Muslim preachers advocating jehad or a holy religious war against the colonial government, the first person to have been convicted of the offence was not a Muslim preacher, but a prominent Hindu nationalist leader, Bal Gangadhar Tilak, in Queen Empress v. Bal Gangadhar Tilak.40 Tilak was the publisher, proprietor and editor of a weekly Marathi newspaper, Kesari, in Poona. The newspaper had carried an article called ‘Shivaji’s Utterances’. In it, the paper had resurrected the seventeenth-century iconic Hindu king Shivaji, and recorded Shivaji’s putative laments at the existing state of affairs in India. In the article, Shivaji was said to be in heaven and had awoken. He said:

I delivered the country by establishing ‘swarajya’ . . . Alack! What is this? I see a fort has crumbled down . . . Alas! Alas! I now see with (my own) eyes the ruin of (my) country . . . What a desolation is this! Foreigners are dragging out Lakshmi violently by the hand by (means of) persecution.

Interestingly, the law report in which the case was published provided a footnote explaining that the word ‘swarajya’ means ‘Literally, “one’s own government”, native rule’. The article contained no direct incitement to disorder, and it would have failed to meet the test for securing a conviction under the law of sedition in England as it stood after 1832. Justice Arthur Strachey of the Bombay High Court delivered a controversial charge to the jury.41 Strachey’s definition of sedition was enormously broad. He said that disaffection meant ‘the absence of affection’ (which was an obvious mistake)42, that it meant ‘hatred, enmity, dislike, hostility, contempt, and every form of ill will to the government’. For him, disaffection also meant ‘every possible form of bad feeling to the government’, and that the ‘amount or intensity of the disaffection’ was ‘absolutely immaterial’ except in dealing with the question of sentencing. He decided not to refer to ‘the English law of seditious libel’. Strachey found that sedition did not require a person to excite or attempt to excite ‘mutiny or rebellion, or any sort of actual disturbance, great or small’. Likewise, whether any actual ‘disturbance or outbreak was caused’ by the speaker was immaterial. Even if the speaker ‘neither excited nor intended to excite any rebellion or outbreak or forcible resistance to the authority of the government’, he could still be convicted of sedition.43 Strachey instructed the jury that a person could not be convicted under Section 124-A for criticizing any measure of the government, but he could if his writings were considered ‘an attack not merely upon . . . measures . . . but upon the government itself, its existence, its essential characteristics, its motives, or its feelings towards the people’.44 For Strachey, it was perfectly fine for a person to criticize measures adopted by the government, but if he went beyond this, and ‘(held) up the government itself to the hatred or contempt of his readers—as for instance, by attributing to it every sort of evil and misfortune suffered by the people, or dwelling adversely on its foreign origin and character, or imputing to it base motives, or accusing it of hostility or indifference to the welfare of the people’, then the person was guilty.45 Further, Strachey added that not all criticisms of government measures were permissible. A person who criticized the government’s measures in ‘violent and bitter’ terms, ‘accompanied by . . . appeals to political or religious fanaticism’, or addressed his remarks ‘to ignorant people at a time of great public excitement’, such that readers ‘would carry their feelings of hostility beyond the government measures’, and if this was the writer’s intent gauged from the ‘writing as a whole’, then this would constitute sedition.46 The jury was also required to look at the ‘articles as a whole, giving due weight to every part’, and not to ‘isolated passages or casual expressions without reference to the context’.47 ‘The particular class of persons’ among whom the articles were circulated was also to be regarded. ‘[I]t would be idle and absurd’, he informed the jury, ‘to ask yourselves what would be the effect of these articles upon the minds of persons reading them in a London drawing-room or in the Yacht Club in Bombay’. The jury was not to bear in mind ‘Englishmen or Parsis or even many cultivated and philosophic Hindus’, but ‘Hindus, Marathas, inhabitants of the Deccan and the Konkan’, who were readers of the Kesari.48 Thus, the fact that Tilak was writing in Marathi was taken to mean that his audience was ignorant and unintelligent. This was a recurring theme in the sedition cases. Interestingly, one commentator in 1898 wrote in the Law Quarterly Review in England that Tilak’s influence was likely to be ‘wider than the number of copies [of his newspaper which were] printed’ because ‘it appears to be customary for Hindoos to gather round the village schoolmaster and listen while he reads the news’.49 In short, Strachey’s charge to the jury cast sedition in such broad terms that he stopped short only of instructing the jury to convict Tilak outright. Unsurprisingly, the jury returned a verdict of guilty, and Tilak was sentenced to eighteen months’ rigorous imprisonment, though he was released after a year.50 Strachey’s charge to the jury was then affirmed in appeal by the Privy Council.51 Importantly, the jury in Tilak’s case voted by a majority of 6-3, a non- unanimous verdict which would have been insufficient for convicting a person of sedition in England. The jury was also comprised of a majority of white jurors: six Europeans and three Indians.52 Though the Criminal Procedure Code53 typically gave Indians the right to be tried by a jury consisting of a majority of Indian jurors,54 some cases, determined by the government and the trial judge, could be tried by a ‘special jury’.55 A list of special jurors for this purpose was prepared consisting of the names of those who were considered fit to serve as such, regard being had to their ‘property, character and education’.56 Special juries invariably had a majority of non-Indian jurors on them. Had the juries been Indian majority juries, it would have been very difficult for the colonial government to sustain prosecutions for political offences like sedition.57 Tilak’s case had attracted a great deal of attention and a large number of Indian journalists had gathered in the court-room to witness the proceedings, but there were insufficient chairs for all of them to be seated. It is said that when they took this matter up with the clerk of the crown, the official remarked that they should all take their seats in the dock, i.e., alongside Tilak as criminals.58 The law of sedition came up for consideration, once again, before the Bombay High Court in Queen Empress v. Ramchandra Narayan.59 The two persons accused were the editor and proprietor of a newspaper called Pratod, printed in Satara. The newspaper had carried an article entitled ‘Preparations for Becoming Independent’. It spoke of Canada and Canadians in the following terms:

Though they are subject to the British people, they are not effeminate like the people of India. It is not their hard lot to starve themselves for filling the purse of Englishmen. They are not obliged to pay a pie to England . . . We have become so callous and shameless that we do not feel humiliation while we are laughed at by all nations for losing such a vast and gold-like country as India.

It was held that sedition consisted of producing ‘hatred of government as established by law’, of exciting ‘political discontent’, and of ‘(alienating) the people from their allegiance’.60 Disregarding, once again, the law of sedition in England, it was held that a speaker commits sedition if he excites disaffection even if he ‘(insists) upon the desirability or expediency of obeying and supporting government’.61 Reading the articles in question, the court found that their object was to make the readers of the Pratod ‘impatient of their allegiance to a foreign sovereign’ and to ‘(create) in them the desire of casting off their dependence upon England’.62 Apart from the Calcutta and Bombay High Courts, the Allahabad High Court had the opportunity of considering the law of sedition in Queen Empress v. Amba Prasad.63 The accused, Amba Prasad, was the proprietor, editor and publisher of a newspaper called Jami-ul-ulam. The paper had carried an article called ‘Azadi band hone se kabal namuna’. It was held that sedition was any excitement of or attempt to excite ‘feelings of hatred, dislike, ill will, enmity or hostility towards the government established by law in British India’. Disaffection and ‘disloyalty’ were held to be synonymous.64 In short, the judgments of the Calcutta, Bombay and Allahabad High Courts did what Macaulay’s draft had stopped short of doing. They incorporated the broad, formal English law of sedition, as it existed prior to 1832, wholesale into the IPC.

The 1898 Amendment

In 1898, the IPC was amended and Section 124-A was completely replaced by a new Section.65 The amendment endorsed the interpretation of sedition adopted by the Calcutta, Bombay and Allahabad High Courts. Macaulay’s draft had not specified that promoting feelings of hatred, contempt, or enmity towards the government constituted sedition. His draft had merely used the vague word ‘disaffection’. It was the Calcutta, Bombay and Allahabad High Courts which had read these words into Section 124-A, incorporating the English law of seditious libels, as it existed prior to 1832, into the IPC. Now, the 1898 amendment sought to sanction this interpretation. While introducing the Bill to the Governor-General’s Council, law member Chalmers said that the section drafted by Macaulay was ‘not a model of clear drafting’, that the offence of sedition needed to be expressed ‘in clearer and less equivocal terms’. He said that though the Calcutta, Bombay and Allahabad High Courts had interpreted the section correctly, in accordance with English law (i.e., the formal law of sedition on the books in England, which only reflected the English law in action prior to 1832), their decisions were not binding on the other high courts in British India.66 When the Bill was referred to the Select Committee, some members raised objections against the amendment. In his minute of dissent, P. Ananda Charlu, who had served as president of the Congress in 1891,67 wrote that words like ‘hatred, contempt and enmity’ were ‘vague, misleading and obscure’, that they would result in ‘virtually stifling all frank discussion of public questions’. He wanted the sentence of transportation to be taken out from the section. Charlu also rightly doubted whether the amended section accurately reflected the current state of the law in England. Likewise, in another minute of dissent, Lakshmishwar Singh, prince of Darbhanga,68 wrote that words like ‘hatred and contempt’ were ‘superfluous’. He added that the section was ‘far too comprehensive’, fearing that it could be used to ‘punish a journalist or a public speaker who is only guilty of using indiscreet language calculated at most to give rise to trifling feelings of irritation’. After being referred to the Select Committee, the IPC Amendment Bill was extensively debated by the Governor-General’s Council in February 1898.69 Law member Chalmers supported the Bill with the following words, reminiscent of the ‘shouting fire in a theatre’ test which would later be used by American Supreme Court Justice Oliver Wendell Holmes to describe proscribed speech:

If I smoke a cigar on the maidan it pleases me, and it hurts no one else. If I smoke a cigar in the powder magazine of the Fort, I endanger the lives of many and do an act well deserving punishment. Language may be tolerated in England which it is unsafe to tolerate in India, because in India it is apt to be transformed into action instead of passing off as harmless gas.

Rejecting the English law on the subject, Chalmers did not think that an ‘appeal to force’ was necessary to constitute the offence of sedition. He said that oral sedition was even worse than written sedition because ‘it operates more directly on the ignorant, and therefore the dangerous, classes’. Chalmers then explained that the English law on seditious libels could not be transposed into India because:

In legislating for India we must have regard to Indian conditions, and we must rely mainly on the advice of those who speak under the weight of responsibility and have the peace and good government of India under their charge.

In the debate in Council, Charlu (who had earlier written a minute of dissent in the Select Committee) provided a strong response to Chalmers’ allusion to smoking on the maidan.70 He called into question Chalmers’ belief that all of British India was akin to a powder magazine and said:

In the first place, I ask what right has [Chalmers] to deny to any one the right to smoke, even in a powder magazine? Any one that does so takes the risk of doing so. It is his lookout. So long as he takes care not to throw away the stump carelessly in the powder magazine and controls the sparks from escaping, what does it matter? Why should he lose his right? In the second place, let us remember how wide [Chalmers’] powder magazine is. It is, according to him, as wide as the whole country; the bulk of the population who are said to be ignorant, credulous and highly impressionable constitute his inflammable material. One may well ask then, where is that ‘maidan’ to smoke in? Evidently there is no space left in the country for it to be represented.

The lieutenant governor said that in India it would be impossible to accept the English law test of direct incitement to violence. He added that educated Indians who were unable to find jobs had become ‘discontented, disobedient, and sometimes troublesome young men’ who had taken to engaging in seditious writings. Adapting Caliban’s speech from Shakespeare’s The Tempest, he said: ‘We taught them language, and their profit on it is, they know how to curse.’ On 18 February 1898, the motion to pass the Bill was put to vote, and the Bill became law.71 In substance, the amendment formally achieved the wholesale incorporation of the pre-1832 English law of seditious libels into the IPC. While Macaulay’s draft had merely used the word ‘disaffection’, words like hatred, contempt, disloyalty and enmity were now used to define the law of sedition in India. Sedition under Section 124-A was now defined to include bringing the government into ‘hatred or contempt’, exciting ‘disaffection’ (including ‘disloyalty and all feelings of enmity’) against the government. Unlike the contemporary English law, it was now beyond doubt that a direct incitement to violence was not necessary in order to constitute the offence of sedition in British India. Further, there was no statutory language to indicate that prosecutions under the section would be as rare as they were under the law of seditious libels in England.

Strachey’s Tests Followed in Colonial India

In the coming decades, the definition of sedition remained much the same, and the test laid down by Justice Strachey was followed quite extensively. At the hands of the high courts, sedition came to acquire the following key ingredients:

1. Presumed Intent: A person committed sedition if his intent was to commit sedition. This was despite the fact that the words of the Section themselves did not speak of intent. However, what a person intended was largely a question of law, not fact, to be gathered mostly by reading and construing the words used by the person. A speaker was presumed to have intended the ‘natural result of the words’ he used.72 The author’s intent was to be gathered from the author’s words. His actual intent was irrelevant. The surrounding circumstances in which the speech was made were also relevant for determining intent.73 2. Bad Feelings: Sedition consisted of an intention to arouse bad feelings against the government. A person who used abusive language against the government,74 attributed dishonest or immoral motives to the government,75 portrayed government officials as corrupt,76 as being hostile or indifferent to the welfare of the people,77 or as being partial or taking sides,78 committed sedition. Sedition could be committed even if the writer or speaker did not refer to the government directly, but made ‘covert allusions’ to it, e.g., a reference to ‘foreign demons’ being destroyed by Hindu gods.79 It did not matter if the speaker also expressed his loyalty to the government in the same work.80 The words ‘government established by law in British India’ in Section 124-A meant not merely the government itself, but also agencies of the government like the civil service,81 the police,82 or even Englishmen83 in India. In fact, in one case, a person criticized General Dyer, the notorious perpetrator of the Jallianwala Bagh massacre, and said that Dyer had played ‘Holi’ (the Hindu festival of colours) with the blood of Indians.84 This too was considered an act of exciting disaffection against the government. 3. Incitement Not Necessary: Unlike the English law of seditious libels, it was not necessary for the speaker to incite others to commit acts of insurrection, rebellion or public disorder in order to commit sedition.85 However, if a speech did not incite violence, that could merely be taken into account for mitigating the sentence.86 4. Impact Inconsequential: It did not matter what the actual impact of the speech or writing was. The accused could not get away by leading evidence to show that no person actually developed ill-feelings towards the government as a consequence of his speech.87 5. Class of Readers: The class of readers who were likely to read the work in question was relevant.88 Often, courts in British India unfairly presumed that Indian language newspapers were more likely to be read by unintelligent and gullible people who could more easily be swayed by seditious writings. In one case, Justice Batty of the Bombay High Court held that ‘articles which are published in vernacular papers are not always read by reasonable men’.89 The Bombay High Court repeatedly assumed that because Bal Gangadhar Tilak wrote in Marathi, he was addressing a ‘politically ignorant’ class of readers.90 6. Speech as a Whole: It was necessary to read the entire work as a whole, not to read isolated passages or lines.91 ‘The speeches must be read as a whole’, held Justice Shah of the Bombay High Court while acquitting Tilak in another sedition case, and ‘in a fair, free and liberal spirit’. In assessing the speech in question, Shah continued, one ‘should not pause upon an objectionable sentence here or a strong word there’, but rather, the work should be dealt with ‘in a spirit of freedom’ and it should not be ‘viewed with an eye of narrow criticism’.92 Justice Shah was quoting from the judgment in an English case.93 7. Truth Immaterial: It was no defence for a person accused of sedition to argue that what he had said was true.94 Quoting an Irish judge, Justice Mookerjee of the Calcutta High Court in one case held, ‘the greater the truth, the greater the libel’.95 8. Evidence for the Spoken Word: A person could be convicted for delivering a seditious speech (as opposed to writing a seditious article) on the basis of notes of the speech prepared by police officers who were present at the time the speech was delivered.96

In 1908, Tilak was found guilty of sedition once again by the Bombay High Court in a case which, though not as jurisprudentially important as the 1898 case, was nonetheless politically significant.97 He was convicted for writing two articles in his Marathi newspaper Kesari. Once again, the jury delivered a fractured 7-298 verdict of guilty which would have been insufficient to convict Tilak of sedition in England. After saying some harsh things to Tilak, the Indian judge who was presiding over the trial, Justice D.D. Davar, sentenced Tilak to six years’ transportation to Burma. Under the law in British India, only Indians could be sentenced to transportation, while Europeans and Americans would get sentences of imprisonment instead.99 In 1922, Gandhi pleaded guilty to a charge of sedition in the District and Sessions Court of Ahmedabad, and was sentenced to six years’ imprisonment, though he was treated very respectfully by Judge Broomfield.100 ‘I have no desire whatsoever to conceal from this court’, said Gandhi in his statement to the court, ‘the fact that to preach disaffection towards the existing system of government has become almost a passion with me’. He continued:

Section 124-A under which I am happily charged is perhaps the prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen. Affection cannot be manufactured or regulated by law. If one has no affection for a person or system, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote or incite to violence. But the section under which Mr Banker and I are charged is one under which mere promotion of disaffection is a crime. I have studied some of the cases tried under it, and I know that some of the most loved of India’s patriots have been convicted under it. I consider it a privilege, therefore, to be charged under that section.101

In the pages of his newspaper Young India, Gandhi repeatedly wrote against sedition. In an article published in July 1929, Gandhi compared Section 124A of the IPC to the ‘sword of Damocles’ and called for its repeal. He wrote:

I do not know any Indian who has actually affection for the government as it is today established. It is a rape of the word ‘law’ to say that it is a government established by ‘law’. It is established by the naked sword, kept ready to descend upon us at the will of the arbitrary rulers in whose appointment the people have no say.102

In 1922, Gandhi quoted Nehru as having said: ‘I considered it my business, as it was the business of every Indian, to promote disaffection against the present system of government in India.’103

Majumdar and Bhalerao

We have seen so far that since 1832, the law of sedition in England made only direct incitements to disorder punishable and that prosecutions for sedition there were extremely rare. By contrast, the definition of sedition under the IPC was incredibly extensive. A person who merely engendered feelings of hatred, enmity or disloyalty, even the absence of affection, against the colonial government, without actually inciting any kind of insurrection, rebellion, or disorder, could nonetheless be punished under the IPC. It was also irrelevant that the words he used had no tendency or likelihood to produce disorder or did not otherwise bear any imminent causal connection with it. All this changed for the first time in 1941, when the federal court tried to apply the post-1832 English test to the law of sedition in India. A man called Niharendu Dutt Majumdar was a member of the Bengal legislature. He made a speech in which he criticized the ministry and Governor of Bengal for their inaction during the communal riots in Dacca in 1941. He said that they had misused police forces during that time, and that they should personally pay compensation to the victims of the riots. In making these assertions, Majumdar used ‘a good deal of violent language’. He was convicted by the additional chief presidency magistrate, Calcutta, under the wartime Defence of India Rules, and was sentenced merely to be detained until the rising of the court, and to pay a fine of Rs 500. The sentence was upheld by the High Court of Calcutta. Majumdar appealed to the Federal Court of India.104 Chief Justice Maurice Gwyer wrote the judgment of the court. For the first time in British India’s legal history, the post-1832 English law test of direct incitement was applied to the law of sedition. Gwyer opined that the meaning of sedition must change with the times, that speech which might ‘have seemed grave to one age may be the subject of ridicule in another’. It was held that ‘mere criticism’ of ‘an existing system of government’, or even ‘the expression of a desire for a different system altogether’, was not prohibited under the law of sedition. Gwyer quoted from a famous English sedition case, R. v. Sullivan,105 where Justice Fitzgerald had held that the ‘objects of sedition generally are to induce discontent and insurrection, to stir up opposition to the government, and to bring the administration of justice into contempt’, and that ‘the very tendency of sedition is to incite the people to insurrection and rebellion.’106 In other words, according to Gwyer, a person could not be convicted of the offence of sedition unless his words were such as to tend to incite public disorder. Sedition, said Justice Gwyer, was not meant to ‘minister to the wounded vanity of governments’. ‘The acts . . . complained of,’ he said, ‘must . . . either incite to disorder or must be such as to satisfy reasonable men that that is their intention or tendency.’107 Even ‘vulgar abuse’ was held not necessarily to be seditious, since it was usually ‘the stock in trade of the demagogue’.108 Majumdar won the case and was acquitted. The federal court’s judgment, however, was short-lived. It was overruled by the Privy Council a few years later, in King Emperor v. Sadashiv Narayan Bhalerao.109 The case was decided in February 1947, only a few months before India became independent. A man called Bhalerao had published and distributed a leaflet which spoke of how the ‘Imperialists’ had, by their ‘barbarous policy’, ‘turned the entire country into a cremation ground’. He was charged with the offence of sedition under the Defence of India Rules. The magistrate had acquitted him in view of the decision of the federal court in Niharendu. On appeal, the decision was affirmed by the Bombay High Court. However, the Privy Council refused to accept the test laid down by Gwyer in Majumdar’s case. It was held that the prevalent post-1832 English law test of sedition was inapplicable in India because India had a statutory definition for sedition, whereas in England it was the common law which defined the offence.110 It was also held that the words of Section 124-A did not impose the requirement that there must be incitement to disorder for the offence of sedition to have been constituted.111 Oddly, Bhalerao himself went completely unrepresented before the Privy Council, which suggests that there was no counsel who offered any arguments at the Privy Council in support of Gwyer’s holding in Majumdar’s case.

* * *

After the Constitution was enacted in independent India in 1950, some things have changed for the better. Under the law of sedition in independent India, for instance, it is no longer a crime to merely evoke bad feelings against the government.112 Gwyer’s direct incitement formulation has been accepted by the Supreme Court. Jury trials have altogether been done away with, and so there is no question of sedition cases being tried by racially loaded juries of nine as opposed to twelve jurors, or of sedition prosecutions being sustained by non-unanimous jury verdicts. The maximum punishment for sedition in independent India, however, is now imprisonment for life, which is still incredibly harsh, given that even in nineteenth-century England, seditious libels which fell short of treason were misdemeanours punishable with two years in prison. Sedition is still a non-bailable offence, though misdemeanours in England were historically bailable. Further, the fact that sedition remains an offence in India is now somewhat surprising, given that in 2009, the UK Parliament abolished the offences of sedition and seditious libel at the common law,113 while in the US, the Sedition Acts, enacted in 1798 and 1918, expired in 1801 and 1921.114 Interestingly, throughout the era of British colonialism in India, sedition was a non-cognizable offence, meaning that a police officer could not arrest a person accused of sedition without a warrant from a magistrate. However, sedition was, for the first time, made a cognizable offence in 1974,115 by the Indira Gandhi government, over a year before the Emergency was declared in independent India. This meant that for the first time in Indian history, a police officer could arrest a person accused of sedition without a warrant from a magistrate. In other words, while Bal Gangadhar Tilak in 1898 could not be arrested for sedition by a police officer without an order from a magistrate, Kanhaiya Kumar (who, of course, is no Tilak) in 2016 could be arrested for sedition without any such order. It is not an oppressive colonial regime which has imposed this new restriction on the freedom of speech in India, but a democratic one which has done so. 3 ‘He Who Destroys a Good Book, Kills Reason Itself’

This chapter examines the various restrictions that were imposed on the press in colonial India. Foremost among these were ‘prior restraints’ which were a particularly pernicious form of censorship. However, in subsequent chapters we will see that many of these restrictions, including prior restraints, were imposed on the press and media even in independent India, especially under the regimes of Nehru and Indira Gandhi. For instance, under these regimes, the government could demand that owners of printing presses should furnish bonds which could be forfeited if anything objectionable was published, much in the same manner as oppressive colonial regimes had done prior to Independence. Thus, the enactment of the Constitution in 1950 could not prevent these colonial-era restrictions from reappearing in independent, constitutional India.

Prior Restraints

Broadly speaking, a ‘prior restraint’ or ‘previous restraint’ is a form of censorship imposed on the press before anything is published. It puts curbs on the press prior to publication instead of after publication. There were three kinds of prior restraints imposed on the press in British India. A person who wanted to print a newspaper, book, or other similar material, was required either to submit the content proposed to be published for approval to the government (akin to the modern-day Censor Board certificate for films), to obtain a licence from the government for running a printing business, or to execute a bond or furnish a security as a condition precedent to printing anything.

Prior Approval Firstly, in 1799, Governor-General Wellesley1 introduced regulations which said that no newspaper could be published at all until it was previously inspected and approved by the government.2 These regulations were enacted against the backdrop of the ensuing Fourth Mysore War3 between the East India Company and Tipu Sultan of Mysore, who was allied with the French. Their object was to prevent information about British troop movements from being given to the enemy, and to prevent ‘alarm and commotion’ in India.4 In fact, Wellesley, who was himself in Madras at the time, was very upset with articles which had appeared in Calcutta newspapers like the Asiatic Mirror, Telegraph and Post, which had magnified ‘the character and power of the French’, and exposed ‘every existing or possible weakness in’ the East India Company’s situation in India.5 Interestingly, the regulations eventually did not assist in the war effort, because Tipu Sultan died before they were brought into force.6 Wellesley’s regulations also banned newspapers from being published on a Sunday.7 The penalty for violating these provisions was ‘immediate embarkation for Europe’, i.e., the offender would be deported to Europe.8 The regulations were eventually repealed by Governor-General Hastings in 1818.9 Hastings replaced prior restraints with general prohibitions on the press, e.g., the press could not publish ‘offensive remarks levelled at . . . the judges of the Supreme Court’.10 The 1799 regulations were repealed because of a loophole which was discovered in them. The editor of the Morning Post was born to an Indian mother and, as such, he could not be deported to England. It was therefore discovered that no action could be taken against him and those like him for violating the regulations.11 In England, since the sixteenth century, a similar censorship regime had been in place whereby no book or other material could be published without first being approved by designated officials.12 This regime was enforced by the dreaded Court of the Star Chamber, which was used by King Charles I to persecute political and religious opponents. Eventually, Charles I convened the ‘Long Parliament’13 in 1640 in order to raise money to fund his war effort in the English Civil War. The Long Parliament abolished the Court of the Star Chamber, as a consequence of which unlicensed publications briefly proliferated. In order to bring an end to this, the Long Parliament enacted the ‘Licensing Order’ in 1643, which re-introduced the prior approval regime of censorship.14 The poet John Milton then famously wrote a pamphlet titled Areopagitica15 in 1644 to protest against this move. Laced with strong rhetoric, Milton declared that when ‘complaints are freely heard, deeply considered and speedily reformed, then is the utmost bound of civil liberty attained, that wise men look for.’ ‘[W]ho kills a man kills a reasonable creature’, Milton continued, ‘but he who destroys a good book, kills reason itself’.16 This form of censorship in England, however, seems to have finally been abolished decades after Milton’s Areopagitica, in 1694.17 During the Second World War, the Defence of India Rules18 contained a similar form of censorship. Rule 41 enabled the central government or a provincial government to require any printer, publisher or editor to submit ‘all matter relating to a particular subject or class of subjects’ to scrutiny to any specified authority prior to being published. It also enabled the government to prohibit the publishing of any material on a specified subject or class of subjects altogether.

Licensing Secondly, between 1823-1835, and for brief periods thereafter, the colonial government imposed a system of licensing on the press. Under this regime, a person who wanted to start a newspaper required a licence from the government. The government could, thus, deny a licence to those whom it considered likely to carry unfavourable stories. A licence could also be revoked by the government at will, so the government could penalize those who carried critical stories. The first such statute was passed in Calcutta in 1823 by Governor-General John Adam.19 Interestingly, this law gave the discretion to the Supreme Court of Calcutta20 to either approve of it or to reject it. In other words, the legislature itself gave the judiciary the power of what we would now call judicial review of legislation.21 It was for this reason that Raja Rammohan Roy, a prominent Indian social reformer and proprietor of a Persian newspaper called Mirat-ul-Akhbar, along with five others, submitted a memorial to the Supreme Court of Calcutta in 1823, seeking that the law be rejected by the Supreme Court.22 One historian called this memorial the ‘Areopagitica of Indian history’.23 In it, Roy and others argued that John Adam’s licensing system would stop ‘the diffusion of knowledge and the consequent mental improvement’ which was ongoing at the time, that it would preclude Indians from ‘communicating frankly and honestly’ with the Sovereign in England and from informing him of ‘the real condition of his Majesty’s faithful subjects in this distant part of his dominions and the treatment they experience from the local government’. Roy also cautioned the government that ‘an ignorant people, when an opportunity offered, have revolted against their Rulers’.24 Oddly, the 1823 law gave a higher place to commercial speech over political speech. Thus, under it, while no person could publish a newspaper, magazine, pamphlet, etc., containing ‘public news and intelligence, or strictures on the acts, measures and proceedings of government, or any political events or transactions whatsoever’ without obtaining a licence from the Governor- General in Council, this prohibition did not apply to any material containing ‘shipping intelligence, advertisements of sales, current prices of commodities, rates of exchange, or other intelligence solely of a commercial nature’. The licensing regime in British India mostly came to an end in 1835, under Governor-General Charles Metcalfe. His 1835 law,25 which repealed the licensing enactments, put in place a simple system of registration, which remains in place, in a slightly modified form, even today. Thereafter, in 1857, consequent to the ‘Mutiny’ (which has also been described as the First War of Indian Independence), the colonial government enacted a temporary law26 which prohibited any person from keeping a printing press without obtaining a prior licence from the Governor-General of India in Council or the executive government of the appropriate Presidency. The Dramatic Performances Act, 1876,27 also introduced a system of licensing. It enabled a local government to declare that in any local area, no ‘play, pantomime or other drama’ could be performed without the licence of the government. The Dramatic Performances Act remains in force in parts of India even to this day. A system of licensing re-appeared in 1931, during Mahatma Gandhi’s Civil Disobedience Movement. Under the Indian Press (Emergency Powers) Act, 1931, which was to remain in force only for a temporary period, no person could publish a ‘news-sheet’ without the authorization of a magistrate. A ‘news-sheet’ was essentially akin to a pamphlet. It was not a periodical newspaper, but a one-time pamphlet containing information on current events.28

Bond/Security Thirdly, there were some particularly pernicious statutes in British India under which the government could require a person to furnish an expensive bond or security prior to setting up a printing press, making it virtually unaffordable for political opponents of the colonial government to start a newspaper. The amount under the bond could be forfeited if the newspaper published anything unfavourable. This set of regulations began with an oppressive law, ‘Act IX of 1878’, enacted by an incredibly unpopular viceroy, Lord Lytton.29 Interestingly, this statute did not have a ‘short title’ or short name.30 Its long title was ‘An Act for the Better Control of Publications in Oriental Languages’. It informally became known, quite notoriously, as the ‘Vernacular Press Act’. It was variously referred to by Indians as the ‘Gagging Act’ or the ‘Black Act’.31 This law only targeted newspapers which were printed in Indian languages.32 Its preamble indicated how racist it really was. It said that ‘certain publications in oriental languages’ were engaging in either sedition or hate speech, and needed to be regulated because they were ‘read by and disseminated amongst large numbers of ignorant and unintelligent persons’ and were consequently ‘likely to have an influence which they otherwise would not possess’. The law thus believed that those who read Indian language newspapers were ‘ignorant and unintelligent’, and that by contrast, only those who were capable of reading English language newspapers were informed and intelligent. This law permitted any magistrate or commissioner of police to call upon a printer or publisher to furnish a bond not to print anything seditious, not to print hate speech or to engage in intimidation or extortion.33 The value of the bond was not specified by the statute, and so even a prohibitively expensive bond could be required to be furnished, at the discretion of the local government. If the newspaper printed the proscribed material, the bond could be forfeited.34 No appeal was provided to an aggrieved person in any court. Instead, this person could only appeal to the highest executive department of the government, i.e., to the Governor-General in Council.35 The Vernacular Press Act was finally repealed in 1882, under the benevolent regime of Viceroy Lord Ripon.36 Thereafter, the Indian Press Act, 1910,37 re-introduced a system of furnishing a security for good behaviour. However, this law applied not merely to Indian language newspapers, but also to English language ones. Further, the value of the security was now specified as being between Rs 500 and Rs 2000. The security could now also be dispensed with by the magistrate for special reasons.38 The security could be forfeited if the newspaper carried material belonging to certain defined categories, e.g., incitement to a violent offence, sedition, hate speech, extortion, etc.39 An appeal was also now available, to the high court.40 This law was repealed in 1922.41 Thereafter, the Indian Press (Emergency Powers) Act, 1931, introduced the security system once again, though in a watered-down form. Now, the value of the security was not to exceed Rs 1000. Further, if the security was not forfeited (for publishing proscribed categories of speech) within three months, it was to be refunded.42

Forfeiture of the Printing Press

Several statutes in British India gave the government the power to seize the entire printing press if any newspaper or book that was published there contained offending material. Unsurprisingly, this power was conferred on the government by the Vernacular Press Act.43 Another such provision was thereafter contained in the Newspapers (Incitements to Offences) Act, 1908. The local government could, under this law, apply to a magistrate, and if the magistrate found that a newspaper printed and published in the province contained incitements to violent offences, then the magistrate could pass an order forfeiting the entire printing press.44 An appeal to the high court was, however, available to a person aggrieved by the order.45 This law also was repealed in 1922.46

Ban/Forfeiture of Offending Material

Several statutes in the colonial period gave the government the power to ban newspapers and books, and to seize or forfeit all offending copies. The government could, by order, prohibit the circulation of any newspaper or book, or similar work.47 One such drastic statute was the Dramatic Performances Act, 1876. Its avowed object was to ‘prohibit Native plays which are scandalous, defamatory, seditious or obscene’. Its Statement of Objects and Reasons said that it was enacted because of ‘the recent performance in Calcutta of a scurrilous Bengali drama’, which was probably a reference to Girish Chandra Ghosh’s Cha-ka-Darpan (The Mirror of Tea).48 This law gave the local government the power to prohibit the performance of a ‘play, pantomime, or other drama’ if it was considered by the government to be scandalous, defamatory, seditious, or obscene.49 Several statutes in the colonial period also gave the government the power to forfeit or seize offensive newspaper editions, books, etc.50 These types of regulations remain in force to this day. There are now provisions in the Code of Criminal Procedure, 1973, which enable the government to ban and forfeit books or other materials which contain certain categories of prohibited content.

Special Procedure

During the two world wars, the colonial government enacted laws which made it much easier to convict those accused of press-related offences like sedition or hate speech. The Defence of India (Criminal Law Amendment) Act, 1915, was enacted during the Great War, i.e., the First World War. Vast rule-making powers were conferred on the Governor-General in Council, ‘for. . . securing the public safety and the defence of British India’, including for such purposes as ‘to prevent the spread of false reports or reports likely to cause disaffection or alarm or to prejudice His Majesty’s relations with Foreign Powers or to promote feelings of enmity and hatred between different classes of His Majesty’s subjects’.51 The rule-making powers were exercised even to create offences and prescribe punishments, without an offence or punishment having been specified under the principal statute. Special ‘commissioners’ were constituted to try cases under the Act. Though a case was to be tried by a Bench of three such commissioners,52 there was no appeal from their decision.53 The rules of evidence were also relaxed in such cases.54 Likewise, the Defence of India Act, 1939, was enacted during the Second World War. As before, vast rule-making powers were conferred on the central government for, among other things, ‘requiring the publication of news and information’.55 ‘Special Tribunals’ were constituted for the trial of certain offences,56 and the rules of evidence were relaxed.57 Under the Defence of India Rules, it was made an offence for any person to ‘do any prejudicial act’,58 punishable with a maximum sentence of imprisonment of up to five years or fine or both.59 The definition of ‘prejudicial act’ included sedition.60

No Anonymity

Perhaps the most benevolent form of the regulations which were imposed on the press during the colonial period required printers and publishers of newspapers to merely register their publications with the government. The underlying philosophy of these regulations was essentially to prohibit anonymous periodical publications. The idea was that the place of business, and the names of the printer, publisher and editor of the newspaper ought to be known, so that if any action was to be taken against the newspaper, whether by a private person (e.g., an action in defamation) or otherwise, the whereabouts of the newspaper and its officers would be known. Thus, Wellesley’s 1799 Regulations required every printer of a newspaper to print his name at the bottom of the newspaper, and every editor and proprietor of a newspaper to provide their residential address to the government.61 A regulation passed in the province of Bombay in 182562 provided that no person could print or publish a newspaper, magazine, pamphlet etc. in Bombay without submitting an affidavit in the prescribed form to the chief secretary of the government63—an affidavit which was to contain certain information about the printer and publisher, e.g., their place of residence.64 The names of the printer and publisher were also to be set out prominently in the newspaper,65 so that anybody aggrieved by anything contained in the newspaper knew whom to take legal action against. A copy of the material printed at the printing press was also required to be given by the printer and publisher to the government, for its records.66 A person who owned a printing press was required to serve a notice upon the government, whereupon the government would issue a certificate to that effect.67 Metcalfe’s 1835 law put in place the system which virtually continues to exist today. Under it, the printer and publisher of a periodical were to appear before a magistrate and make a declaration containing the title of the work and the place of publication.68 Every newspaper had to have printed legibly on it the name of the printer and publisher and the place of publication.69 Likewise, the keeper of a printing press was to make a declaration before a magistrate containing particulars regarding the place at which the printing press was maintained.70 Metcalfe’s law was only slightly modified by the Press and Registration of Books Act, 1867, a law which continues to be in force to this day,71 and applies not merely to newspapers but also to books. Every book or newspaper printed in British India was now required to print legibly on it the name of the printer/publisher and the place of printing/publishing.72 The keeper of a printing press was to make a declaration before a magistrate containing particulars of the address of the printing press. A person who wanted to print a periodical had to go before a magistrate and make a declaration containing the title of the periodical and the place of printing.73 Three copies of every book printed in British India were to be given to the government for its records.74 4 Munshi’s Coup in the Constituent Assembly

The framers of India’s Constitution were primarily concerned with three broad themes relating to the right to free speech and expression: Firstly, whom should the right be given to, only citizens or non-citizens as well? Secondly, should the right to a free press be specifically recognized? Thirdly, and perhaps most importantly, what restrictions ought to be imposed on it? This third question occupied much time in the Constituent Assembly. The framers asked themselves questions such as whether the right to free speech should give way to the existing laws on sedition, which had been used by the colonial government to stifle, prosecute and imprison members of India’s freedom movement; and whether the right to free speech should be subordinated towards ensuring that hate speech is not used to create tensions between members of different religious communities, especially in the context of the large-scale partition-related rioting which was occurring in India at this time.

* * *

The Constituent Assembly itself was a plenary body. Smaller committees of the Assembly were established to aid in the drafting of the Constitution.1 Among these was the Advisory Committee on Fundamental Rights (‘Advisory Committee’),2 a body of approximately fifty members whose ranks included the likes of Dr B.R. Ambedkar, Vallabhbhai Patel, K.M. Munshi and others. The Advisory Committee, in turn, created a smaller Sub-Committee on Fundamental Rights (‘Sub-Committee’) consisting of approximately ten members.3 Additionally, a Drafting Committee, consisting of approximately seven members, was responsible for the overall drafting of the Constitution, fundamental rights included. The membership of some of these committees was common. For example, Ambedkar and Munshi were members of all three committees. Discussions relating to free speech took place within each of these bodies, viz., the Sub-Committee, the Advisory Committee, the Drafting Committee, and in plenary sessions of the Constituent Assembly itself. Three draft Constitutions had been prepared for India in the colonial era which spoke of a right to free speech. The first of these, the Constitution of India Bill, 1895, was possibly prepared under the guidance of Bal Gangadhar Tilak.4 The second, the Commonwealth of India Bill, 1925, was drafted by a ‘National Convention’ of over 255 Indian legislators.5 The third, a report prepared by a committee under the chairmanship of Motilal Nehru, came to be known as the Nehru Report, 1928.6 At least four drafts on fundamental rights prepared by members of the Sub-Committee appeared to have been in circulation at the time of the second meeting of the Sub-Committee on 24 March 1947, which contained any mention of a right to free speech. These were the drafts of Professor K.T. Shah,7 K.M. Munshi,8 Harnam Singh9 and Dr B.R. Ambedkar.10

Press

None of the three colonial-era draft Constitutions provided for a separate right for the press. Among the early drafts which were in circulation at the time of the second meeting of the Sub-Committee, drafts prepared by Munshi, Ambedkar and Harnam Singh provided for a separate right for the press. K.T. Shah’s draft was the only one which did not specifically identify a separate right for the press. However, on 26 March 1947, the Sub- Committee decided by a majority vote (it is not known in what proportion or ratio) that no separate provisions need be made in the Constitution for the rights of the press ‘in view of the right to freedom of speech and expression already included’.11 In the Constituent Assembly, K.T. Shah, whose draft had not identified a separate right for the press, opined that a separate provision must be made to ensure the rights of the press.12 Two other members of the Assembly also asked for a separate right of speech geared towards the press.13 Ambedkar changed his mind and rejected the demand for a separate press right, by arguing that the right of the press was covered by the broader right to free speech.14 Later, another very influential voice in the drafting of the Constitution, B.N. Rau, who was the constitutional adviser to the Assembly, also opined that it was not necessary to provide specifically for the freedom of the press because this was covered by the right to free speech and expression.15 The US Constitution, in the First Amendment, provides that ‘Congress shall make no law . . . abridging the freedom of speech, or of the press’. However, though the framers of India’s Constitution were inspired by the US Constitution for other clauses, a specifically articulated right for the press did not find its way into the Indian Constitution. This is particularly puzzling and interesting because the press in colonial India, both the Indian language press (at the time, called the ‘vernacular press’) and the English language press in Indian hands, were used as tools for disseminating nationalist propaganda. Nationalist leaders like Tilak and Gandhi had newspapers, and were prosecuted for their writings. As we have seen in the previous chapters, several laws were enacted during the colonial regime which infringed the rights of the press. It is therefore surprising that the framers of the Constitution did not consider it necessary to ensure a special place for the freedom of the press in the Constitution.

Citizens Only While the Constitution of India Bill, 1895, conferred a right to free speech only on citizens, both the Commonwealth of India Bill, 1925 and the Nehru Report, 1928, gave a right to free speech to all persons, citizens and non- citizens alike. Among the four members of the Sub-Committee who prepared drafts on fundamental rights, there appeared to have been broad agreement that the right to free speech should be available to non-citizens as well. Drafts prepared by K.T. Shah, Harnam Singh and Ambedkar did not qualify the right to free speech as belonging to citizens alone. While Munshi’s draft conferred the right to free speech on citizens alone, it also recognized a right to a free press which was not restricted in its application only to citizens.16 However, on 25 March 1947, the Sub-Committee decided by a vote of 5-3 (we do not know who the three members were who voted against the resolution) that the right to free speech was to be given only to citizens.17 This decision, which almost went without question thereafter, was perhaps taken because members of the Sub-Committee believed that non-citizens could not be trusted with the right to free speech because they would not necessarily have had India’s best interests at heart. If so, this is also very puzzling because there were at least two Britons, Annie Besant and B.G. Horniman (editor of the Bombay Chronicle) who played a prominent part in the nationalist movement, and several others like them who were sympathetic towards the nationalist cause in varying degrees. Even so, the framers of the Constitution did not want Britons or any other foreigners to have the right to the freedom of speech and expression in independent India. Further, by restricting the right to free speech only to citizens, the framers of the Constitution, whether consciously or otherwise, denied the right to free speech to artificial persons who cannot be citizens, e.g., companies, though their shareholders and directors who are citizens do have the right to free speech.

Enumerated Exceptions

Much of the time of the Assembly and its committees was devoted to determining what restrictions ought to be placed on the right to free speech. Munshi’s draft,18 which was used by the Sub-Committee as a template, identified and enumerated various liberties (e.g., speech, assembly, locomotion, etc.) and categorized them as ‘rights to freedom’—constructs which found their way into the final Constitution and exist to this day. However, Munshi’s draft, which recognized the right to free expression of opinion ‘within the limits of the law of the Union and in accordance therewith’,19 contained a broad and sweeping restriction on the right, and enabled the legislature to impose whatever restrictions on free speech it deemed fit. Ambedkar’s draft, on the other hand, provided that the right to freedom of speech would be subject only to ‘public order and morality’,20 words which appeared to have been borrowed21 from the Nehru Report, 1928,22 and from the Irish Constitution23 by which the right to free speech in India was heavily influenced. In fact, the draft of the right to free speech in India was ‘re-drafted on the basis of section 40(6) of the Irish Constitution’ by the Sub-Committee.24 Following the example of the Irish Constitution, the framers of India’s Constitution decided to specifically provide enumerated exceptions to the right to free speech in the Constitution itself. The draft prepared by the Advisory Committee enumerated several exceptions to the right to free speech, such as public order, morality, sedition, obscenity, blasphemy, and defamation. The numerous exceptions set out to the right to free speech and to the rights to freedom generally caused much anxiety in the Assembly. In fact, on 30 April 1947, when Sardar Vallabhbhai Patel introduced the draft provision relating to free speech, as drafted by the Advisory Committee, to the Assembly, he introduced it without the proviso which contained the various enumerated exceptions to the right: sedition, obscenity, blasphemy, libel and defamation. However, the enumerated exceptions soon found their way back into the clause. Many members of the Assembly were disappointed with the numerous exceptions which had been created against each of the freedoms set out in the right to freedom, including the right to free speech. For instance, K.T. Shah said that ‘what is given by one right hand seems to be taken away by three or four or five left hands; and therefore the article is rendered nugatory in my opinion.’25 Lakshmi Narayan Sahu cited an Oriya proverb which translates as follows: ‘It is no use making a house with so small an entrance that one’s entry into the house is rendered difficult without striking his head against the door frame.’26 There were others, however, who defended the presence of so many exceptions to the right to freedom. Foremost among them was Dr B.R. Ambedkar himself who, on 4 November 1948, while introducing the draft Constitution, made an impassioned speech, arguing that even the US Constitution did not confer absolute rights on its citizens.27 In his speech, Ambedkar quoted from the decision of the US Supreme Court in Gitlow v. New York,28 wherein it was held that ‘the freedom of speech and of the press . . . does not confer an absolute right to speak or publish without responsibility, whatever one may choose, or an unrestricted and unbridled license that gives immunity for every possible use of language’. Others supported Ambedkar.29 Algu Rai Shastri, for instance, said that ‘good citizenship implies restrictions’.30 Shastri quoted from a Sanskrit proverb,31 which translates: ‘Be truthful and sweet in speech, but do not speak out the unpleasant truth’. He argued that ‘anyone has the freedom to state the truth, but not the freedom to speak out the unpleasant truth’. T.T. Krishnamachari agreed, ‘as a student of politics’, ‘that there can be no absolute right and every right has got to be abridged in some manner or other under certain circumstances . . . ’32

Hate Speech

There appeared to be virtually no debate within the Assembly and its committees on the inclusion of certain restrictions on the right to free speech. For example, though many members of the Assembly generally complained that the right to free speech was hemmed in with too many restrictions, there was not much strong, specific opposition to the idea that the right to free speech would be subject to laws relating to defamation, libel and slander. Following the example in the Irish Constitution, some early drafts of the right to free speech within the Advisory Committee provided that ‘blasphemous’ speech would not be protected.33 However, with little or no debate, this restriction was soon removed, and Indian citizens were given the right by the Constitution to utter or write blasphemous words,34 despite William Blackstone’s view that ‘blasphemy against the Almighty, by denying his being or providence; or by contumelious reproaches of our Saviour Christ . . . [are] offences punishable at common law by fine and imprisonment’.35 There was not much debate about excluding obscenity from the ambit of free speech either. K.T. Shah appeared to be one of the few members of the Assembly who were concerned that ‘morality’ was ‘a very vague term’ whose ‘connotation changes substantially from time to time’. Shah invoked the example of Lord Chamberlain in England who placed a bar on the staging of some of Bernard Shaw’s plays as an example for why speech should not be restricted on the ground of morality.36 The primary debate within the Assembly and its committees took place over three questions. The first of these related to hate speech, i.e. whether the right to free speech could be used to promote hatred among members of different religious communities, chiefly Hindus and Muslims, in the light of the large-scale partition-related rioting which was taking place in India at the time the Constitution was being drafted. Broadly, three kinds of suggestions were made regarding excluding hate speech from the right to free speech: firstly, that the right to free speech ought to be subjected to a broad restriction relating to ‘public order’, secondly, that a specific restriction relating to preventing the spread of communal hatred ought to be created, thirdly, that the right to free speech must be suspended during a period of ‘emergency’ declared by the government.

Public Order We have seen that Ambedkar’s draft, borrowing from the Nehru Report and the Irish Constitution, imposed the restriction of ‘public order’ on free speech. On 4 April 1947, Sir Alladi Krishnaswami Ayyar37 wrote a letter to B.N. Rau in which he argued, making an obvious reference to communal Hindu-Muslim rioting and tensions, that ‘[t]he recent happenings in different parts of India have convinced [me], more than ever, that all the fundamental rights guaranteed under the Constitution must be subject to public order, security and safety though such a provision may to some extent neutralize the effect of the fundamental rights guaranteed under the Constitution.’38 Since around 16 August 1946, India had seen large-scale communal riots between Hindus and Muslims in Bengal, Bihar, the United Provinces and Punjab.39 By May 1947, some 9000 people had been killed in communal riots.40 The death toll would later rise to a figure of between 200,000 and 600,000.41 It is very likely that it was this phenomenon which Sir Alladi was referring to when he wrote of the ‘recent happenings in different parts of India’. Thereafter, Sir Alladi’s note to the Sub-Committee dated 10 April 1947 suggested that the ‘security and defence of the State or national security’ ought to be imposed as restrictions on the right to free speech.42 Several drafts of the right to free speech included a restriction in the interest of ‘public order’. However, ‘public order’ was dropped by the Drafting Committee and did not make its way back into the Constitution. In September-October 1947 in particular, it seems that India’s leaders were particularly worried about the press inflaming communal passions. In September 1947, Prime Minister Nehru wrote to Home Minister Patel and said that the ‘atmosphere of Delhi is being poisoned by the numerous news- sheets that continue to circulate’.43 He was referring to an incendiary article which had been published in a newspaper called the Hindu Outlook. In October 1947, Nehru once again wrote to Patel saying that there was a need to control ‘the irresponsible Press’. He spoke with alarm about the ‘many newspapers, recently started, which are carrying on an astonishing campaign not only against the government but against all decency’.44 Patel responded to Nehru in October 1947 and said that the Hindu Outlook did not ‘deserve to exist as a newspaper’, that ‘a pre-censorship order’ had been passed against the paper in the ‘hope that either its contents would improve’ or that it would get into more trouble and ‘eventually have to stop publication’.45 That month, home minister of Bombay, Morarji Desai, wrote a letter to Sardar Patel, saying that ‘even papers like Hindustan Times and the Statesman’ were publishing ‘objectionable reports’ on communal violence, reports which were then being used by local Bombay newspapers to ‘propagate their respective points of view’. Desai wondered if news of communal killings in Punjab could be confined only to some authorized reports.46 Patel suggested that Desai ban the entry of newspapers from other regions, like Delhi and Karachi, into Bombay.47 The following month, Patel introduced a Bill48 in the Constituent Assembly to impose prior restraints on the press in Delhi and Ajmer, in the hope of preventing the ‘publication of undesirable news and comments, exaggerated and false news’. In his speech introducing the Bill, Patel also made a reference to the ‘scurrilous and scandalous attacks that are made (by the press) against the Head and members of the government’.49

Communal Hatred In addition to recognizing a restriction relating to the laws of libel and slander, K.T. Shah’s draft limited the freedom of thought and expression of opinion by ‘such laws as are in force at any time and relate to the maintenance of friendliness and good relations between the several communities and citizens’.50 Sir Alladi’s note to the Sub-Committee dated 14 April 1947 said that speech ‘calculated to promote class hatred’ would have to be excluded from the right to free speech, and that the right to free speech must not come in the way of Section 153-A of the Indian Penal Code.51 Inserted into the Indian Penal Code, 1860, by an amending act of 1898, Section 153-A made it an offence to promote or attempt to promote ‘feelings of enmity or hatred’ between different classes of persons. On 17 April 1947, Jairamdas Daulatram urged the Sub-Committee on Minorities to exclude ‘the dissemination of class or communal hatred’ from the ambit of the right to free speech.52 At the meeting of the Advisory Committee held on 21 April 1947, Sir Alladi opined53 that speech likely to promote ‘class or religion hatred’ ought to be excluded from the right to free speech. C. Rajagopalachari agreed with Sir Alladi, adding: ‘The fundamental peace and orderly progress of our country depend upon communal peace and harmony. If we do not prevent speeches and utterances likely to foster communal hatred, we cannot have progress.’54 However, Syama Prasad Mookerjee, K.M. Munshi and Bakshi Tek Chand disagreed with Sir Alladi’s proposal. Mookerjee was concerned that an exception of this nature would be misused, that a ‘simple expression of opinion against a party in power’ would be considered class hatred.55 Bakshi Tek Chand opined that Section 153-A of the Indian Penal Code itself was being misused by governments, who were sanctioning prosecutions only when members of the minority made speeches against members of the majority, but not vice versa.56 K.M. Munshi delivered a speech in the Advisory Committee which appeared to be the strongest defence of hate speech. He opined that unless speech amounted to incitement to an offence, it should be ignored, which bore a resemblance to the ‘clear and present danger’ test articulated in US constitutional law which we shall see later on. This was particularly interesting because, as home minister of Bombay state in 1938, Munshi had encountered newspapers which had incited violence during, in his own words, ‘one of the worst riots that threatened Bombay’. It was the practice of some newspapers at that time to report the number of deaths in the riots by community, e.g., to say that so many Hindus had died or so many Muslims had died, in the riots. This would encourage members of the other community to carry out retaliatory attacks. Thus, for example, if a newspaper reported that fifty Hindus had died, Hindus would retaliate and attack Muslims in order to settle scores. As home minister, Munshi had warned newspapers ‘not to indulge in the pernicious practice of reporting murders community-wise’. He had even imposed ‘pre-censorship’ under the Code of Criminal Procedure on three or four newspapers, though Chief Justice John Beaumont of the Bombay High Court eventually overturned his orders.57 Now, as a member of the Constituent Assembly, when Munshi wanted hate speech to be curbed only when it incited violence, he probably had in mind the example of newspapers which had reported community-wise deaths in the 1938 communal riots. Eventually, Munshi won the day, and hate speech was left out of the enumerated restrictions on the right to free speech.58 Neither Ambedkar’s ‘public order’ nor Sir Alladi’s ‘class hatred’ or iterations thereof made their way into the exceptions to the right to free speech.

Emergency In a meeting of the Sub-Committee held on 14 April 1947, Sir Alladi suggested that a limitation be imposed on fundamental rights in cases of ‘grave emergency’ and ‘when the security of the state is endangered’.59 Drafts prepared thereafter subjected the right to free speech to ‘grave emergency declared to be such by the government’.60 However, since the Constitution was to contain a separate set of provisions dealing with the declaration of an Emergency and for the suspension of fundamental rights at that time,61 the restriction on free speech during declared Emergencies was removed from the text of the right to free speech and expression. The concerns of the framers of the Constitution relating to free speech during an Emergency also probably had something to do with the partition-related riots and troubles which India was facing at this time.

Sedition

The other question relating to free speech which occupied much time in the Assembly was whether sedition should be included as an enumerated exception. We have seen that Section 124-A was used to prosecute leaders of India’s freedom movement and to stifle dissent in colonial India. Now that India was going to get its own Constitution with a bill of rights, the question was whether sedition would continue to operate as a limitation on the fundamental right62 of free speech. Since the right to free speech was originally drafted in India along the lines of the Irish Constitution, which enumerates a specific exception for seditious speech, the early drafts of the right to free speech for India contained an exception for sedition as well. However, on the floor of the Assembly, one of the strongest advocates in favour of free speech, K.M. Munshi, moved an amendment to remove the word ‘sedition’ from the enumerated exceptions to the right to free speech. His object was not to enable Indian citizens to use their rights to free speech in order to make seditious speeches. Instead, Munshi wanted sedition to be construed in a narrow manner. For Munshi, only incitement to violence or insurrection was to be barred.63 Interestingly, Munshi quoted from the federal court case, Niharendu Dutt Majumdar v. King Emperor,64 seen in a previous chapter, though he omitted to mention that the view taken by the federal court had subsequently been overruled by the Privy Council in King Emperor v. Sadashiv Narayan Bhalerao.65 Munshi’s suggestion of deleting ‘sedition’ from the Constitution could be seen as an attempt to, whether consciously or otherwise, by implication overrule the Privy Council in the Bhalerao case. Several other members of the Assembly spoke in favour of deleting the word ‘sedition’ from the enumerated exceptions to the right to free speech.66 Once again, Munshi won the day and ‘sedition’ was removed as an exception to the right to free speech. Instead, speech which undermined the security of the State or tended to overthrow the State was carved out as an exception to the right to free speech. Between 1947-1950, over 500 ‘princely states’—territories which, under the British, were not an integral part of any British Indian province, but which were ruled by Indian kings who had accepted the suzerainty of the British crown—were incorporated into the Indian dominion. Princely states like Junagadh, Hyderabad and, above all, Kashmir, were problem areas.67 The fears of the framers of India’s Constitution, relating to speech that would undermine the security of the State or tend to overthrow the State, were probably linked to these problems which were being faced in India at the time.

Contempt of Court

The Government of India Act, 1935, provided that the federal court and the high courts of British India were each to be a ‘court of record’.68 However, there was no specific mention made in this statute of the power of these courts to punish contempts of court.The October 1947 and February 1948 drafts of the Constitution prepared under the aegis of the Constituent Assembly of India similarly contained no specific mention of the power of the Supreme Court and high courts of independent India to punish contempts of court, though these courts were described as ‘courts of record’.69 However, on 27 May70 and 6 June 1949,71 Ambedkar moved an amendment to the draft Constitution, specifying that the Supreme Court and high courts would, as a consequence of being courts of record, have the power to punish contempts of court. Ambedkar explained that it necessarily followed that a court of record had the power to punish contempts of itself. Both amendments were passed with virtually no debate. Thereafter, on 17 October 1949, a little under a month before the Constitution was finalized, a last-minute amendment was moved by T.T. Krishnamachari to the provision relating to the right to free speech in the draft Constitution. He proposed72 that ‘contempt of court’ must also be included as an enumerated exception to the right to free speech, in other words, that a person who commits contempt of court through speech or expression must not be permitted to take refuge under the fundamental right to free speech. Krishnamachari felt that a person who ‘might be speaking on a matter which is sub-judice’ and who might ‘thereby interfere with the administration of justice’ must not have the benefit of invoking the right to free speech. There was some opposition to this amendment.73 R.K. Sidhva argued, for instance, that judges had, ‘in the past’, exercised their powers ‘as if they are infallible, as if they do not commit any mistakes’. He added that ‘Judges have not got two horns’, that ‘they are also human beings’, who are ‘liable to commit mistakes’.74 B. Dass launched a strong attack against the proposed amendment and argued that judges had been loyal to the colonial British regime. ‘I am not one,’ he said, ‘who thinks very highly of judges particularly as they are trained under the British tradition and have misapplied justice and kept us down.’ He contended that ‘penniless lawyers’ had, during the colonial regime, become judges and ‘regulated and controlled the affairs and rule of the (alien) Raj by the word “contempt of court”’, while ‘chicken-hearted lawyers got frightened at them’.75 On hearing this, the president of the Assembly interjected, and said that it would be wrong to ‘cast aspersions on the judiciary as a whole’ though individual judges may have erred in the past.76 Some, like Naziruddin Ahmad, spoke in favour of the amendment.77 The amendment was put to a vote and was adopted by the Assembly.

‘Reasonableness’

On 17 October 1949, Pandit Thakur Das Bhargava moved an amendment to introduce the word ‘reasonable’ into the exceptions to the right to free speech in the draft Constitution. In other words, Bhargava wanted only the government to have the power to make a ‘reasonable’ law which took away the right to free speech, laws relating to subjects like libel, slander, defamation, etc. Earlier, as a result of an amendment moved by Bhargava himself, an amendment which was passed in the Assembly, the government could only enact a law infringing the other rights contained in the provision dealing with the right to freedom (e.g., assembly, locomotion, etc.) if such laws were ‘reasonable’.78 Bhargava wanted the word ‘reasonable’ to apply to laws against free speech as well.79 However, this amendment was rejected by the Assembly. It was opposed by some like Naziruddin Ahmad, who argued that when a legislature enacts a law, it is assumed that the law is (or at least that the legislature considers it to be) reasonable, and that the insertion of the word ‘reasonable’ would be ‘absolutely unnecessary and quite meaningless in practice’.80 Constitutional historian Granville Austin thought that the word ‘reasonable’ was left out from the exceptions to the right to free speech as a result of a possible oversight, an oversight which was remedied in the First Amendment a year later.81 However, a plain reading of the Constituent Assembly Debates makes it clear that the word ‘reasonable’ was left out of the exceptions to the right to free speech despite Bhargava’s amendment, i.e., as a result of the conscious design of the Assembly. Thus, theoretically speaking, India’s Parliament could enact any law, no matter how unreasonable, and as long as it fell within the enumerated exceptions contained in Article 19(2) of the Constitution, the law would be safe from constitutional scrutiny.

* * *

In the end, Article 19(1)(a) of the Constitution gave all citizens of India the right to free speech, and Article 19(2) enabled the State to make laws relating to ‘libel, slander, defamation, contempt of court’, ‘any matter which offends against decency or morality’, and laws restricting any speech which either undermined the security of the State or had the tendency to overthrow the State.82 In other words, the right to the freedom of speech and expression was subjected to four broad exceptions: defamation, contempt of court, obscenity and speech which threatened the existence of the State. Interestingly, in his classical book on the framing of India’s Constitution, Granville Austin argued that both Munshi and Sir Alladi were ‘the two strongest advocates’ in the Sub-Committee on the ‘limitation of rights’.83 However, Austin was wrong when it came to Munshi, who was the chief opponent of limitations on the right to free speech. It was his original draft which was used as a template by the Sub-Committee. Though his original draft contained broad and sweeping exceptions to the right to free speech, he later revised his position, and in his speeches in the Constituent Assembly, he adopted a very liberal outlook, leading the movement for removing sedition from and keeping hate speech out of the enumerated exceptions to the right to free speech. Munshi won both the battles he fought for free speech; sedition was removed from the enumerated exceptions and cast in a narrower form, and hate speech was removed altogether from the enumerated exceptions. On the other hand, Sir Alladi was the chief opponent of an absolute right to free speech, leading the movement against hate speech in particular. It is interesting that though the provision relating to free speech was borrowed from the Irish Constitution, virtually no member of the Assembly discussed or brought up Irish cases relating to free speech. Instead, members of the Assembly such as Ambedkar brought up and discussed US cases, perhaps because they were more familiar with these, having studied in the US or having otherwise encountered them in their law practices.84 5 Prasad and Mookerjee Trigger an Amendment

In June 1951, within seventeen months of the Constitution coming into force, the Constituent Assembly (now functioning as a unicameral, provisional Parliament for India) amended Article 19(2) to include three new enumerated restrictions to the right to free speech. These were ‘public order’, ‘friendly relations with foreign states’, and ‘incitement to an offence’. Broadly speaking, there were three reasons why the Constitution (First Amendment) Act, 1951 (hereinafter, the ‘First Amendment’) came to be passed. Firstly, judgments of the Supreme Court and the Punjab, Patna and Madras High Courts had made it difficult for the government to restrict hate speech or speech which promoted enmity between different groups, and which the government believed was responsible for large-scale communal violence among Hindus and Muslims. Secondly, these courts had made it difficult for the government to curb speeches which called for war between India and Pakistan and for the annulment of partition (especially because of the manner in which Hindus were being treated in East Pakistan)—speeches which were being made by Syama Prasad Mookerjee against the backdrop of the Nehru-Liaquat Pact.1 Thirdly, members of Parliament were deeply disturbed by a chilling observation made by Justice Sarjoo Prasad of the Patna High Court in his judgment in a case, where he said that the right to free speech in India included the right to preach and incite murder and violent crimes unhindered.2

Judgments Which Precipitated the Amendment

The Constitution came into force, for historical reasons, on 26 January 1950.3 Within a few months thereafter,4 state governments started imposing restrictions on some newspapers and printing presses which, it was believed, were disturbing the public order, promoting enmity or hatred between different groups, inciting murders or other violent crimes, or which were otherwise seditious in nature. In imposing these restrictions, state governments relied on many laws which had been enacted during the colonial period, most notably the Indian Press (Emergency Powers) Act, 1931, which had been enacted to combat Gandhi’s civil disobedience movement in the 1930s. State governments resorted to banning the circulation of newspapers in their states, forfeiting books which were published in their states, requiring newspapers to submit their materials for prior scrutiny, or forfeiting the security deposited by printing presses with the government for publishing objectionable material. Aggrieved by this, newspapers and printing presses filed proceedings in the Supreme Court of India and in the Punjab, Patna and Madras High Courts. What followed was that in a series of decisions issued by these courts, statutes which imposed the aforesaid restrictions on free speech were struck down as being unconstitutional for falling outside the ambit of Article 19(2) of the Constitution. On 26 May 1950,5 the six judges of the Supreme Court decided two cases which would have far-reaching implications for the right to free speech in India, Romesh Thapar v. State of Madras6 and Brij Bhushan v. State of Delhi.7 In these cases, the court held that ‘public order’ (a term which Ambedkar had tried to bring into the Constitution, from Motilal Nehru’s report and the Irish Constitution) was not an enumerated exception to the right to free speech, and that a law which restricted speech on the ground that it would disturb the public order was unconstitutional. These decisions were followed by the Punjab, Patna and Madras High Courts, in a series of decisions which arguably went even further. Romesh Thapar, then a noted communist, was the printer, publisher and editor of a new English weekly called Cross Roads printed in Bombay. Cross Roads published articles which were critical of Prime Minister Nehru’s policies, especially his foreign policy. At the time, a communist movement was beginning to gain steam in the western parts of Madras state, now Kerala.8 Fearing that Cross Roads would provide a further impetus to the communist movement there, the Government of Madras, on 1 March 1950 (i.e., within a little over a month of the coming into force of the Constitution), issued an order imposing a ban on the entry and circulation of Cross Roads in Madras. The order was issued under Section 9(1-A) of the Madras Maintenance of Public Order Act, 1949, which authorized the government, for securing ‘public safety’ or the maintenance of ‘public order’, to ban the circulation, sale or distribution of newspapers in the province of Madras. Thapar filed a petition directly before the Supreme Court of India, i.e., without approaching a high court first. He argued that Section 9(1-A) of the Act was contrary to the Constitution. By a majority of 5-1 (with Justice Fazl Ali dissenting)9, the court struck down the provision. Justice Patanjali Sastri, who wrote the judgment for the court, relied on the early drafts of the right to free speech in the Constituent Assembly, and noted that words like ‘sedition’ and ‘public order’ had been left out of Article 19(2). On the other hand, the words ‘public order’ and ‘public safety’ in the Madras Act had a very wide connotation,10 and not every speech which affected public order was capable of undermining the security of the State or of tending to overthrow the State. After all, a speech which created a local disturbance could be one which affected ‘public order’ or ‘public safety’. However, Article 19(2) only allowed the government to impose limits on free speech if the speech in question was likely to have a tendency to ‘overthrow’ the State. A local disturbance, like a communal riot, would not have such a tendency. Consequently, Section 9(1-A) of the Act was declared unconstitutional.11 The RSS, a Hindu right-wing group, ran (and continues to do so) an English weekly in Delhi called the Organiser. Brij Bhushan was its printer and publisher while K.R. Halkani was its editor. On 2 March 1950, the chief commissioner of Delhi imposed a prior restraint on the Organiser under Section 7(1)(c) of the East Punjab Public Safety Act, 1949 which extended to Delhi as well. Under this provision, a provincial government was authorized, for protecting ‘public safety’ and ‘public order’, to require a newspaper to submit the newspaper for scrutiny before publication. This was akin to the prior restraints which had been imposed on the press in 1799 by Governor-General Wellesley during the Fourth Mysore War, and under the Defence of India Rules, 1939 at the time of the Second World War. The government’s order imposing the restraint stated that the Organiser was ‘publishing highly objectionable matter constituting a threat to public law and order’. Its printer, publisher and editor were required to ‘submit for scrutiny . . . all communal matter and news and views about Pakistan including photographs and cartoons . . . ’ Once again, by a majority of 5-1, the court struck down the chief commissioner’s order. However, the court essentially held that a prior restraint is permissible under the Constitution, so long as the restraint is imposed in furtherance of any of the enumerated exceptions to free speech under Article 19(2) of the Constitution.12 The sole Muslim judge on the court at the time, Justice Fazl Ali, dissented once again. He agreed that the term ‘public order’ was wide enough to cover even ‘a small riot or an affray’,13 but held that in some cases ‘even public disorders of comparatively small dimensions may have far-reaching effects on the security of the State.’14 He noted that Delhi had been declared a ‘dangerously disturbed area’ at this time, an obvious reference to Hindu- Muslim riots, justifying a law of this nature. In short, the Romesh Thapar and Brij Bhushan cases had far-reaching implications for the manner in which the government could restrict speech which was designed to incite Hindu-Muslim riots and killings. The court’s judgments could be read to mean that not every local Hindu-Muslim riot or mass murder was capable of threatening the security or existence of the Indian State. Consequently, the government would be powerless to restrain hate speech which was designed to incite such local disturbances, which were nonetheless deeply troublesome. The Supreme Court’s decisions were then followed and applied in several high courts throughout the country.15 For instance, in Punjab, a man called Amar Nath Bali wrote a book called Now It Can Be Told. The book was a narrative of events following the partition of India, describing the riots which took place in West Punjab, and how Muslims there attacked Hindus and Sikhs.16 In fact, many partition families were said to typically be Jana Sangh voters who were distrustful of the Nehru government.17 In April 1950, the chief commissioner of Delhi issued an order forfeiting all the copies of the book, under Section 4(1)(h) of the colonial-era Indian Press (Emergency Powers) Act, 1931, perhaps fearing that Hindus and Sikhs would, after reading the book, engage in retaliatory violence against Muslims. The section allowed the state government to forfeit books which appeared to ‘promote feelings of enmity or hatred between different classes of the citizens of India’. Bali took his case to the Punjab High Court, which held that Section 4(1)(h) was unconstitutional. A lady called Shaila Bala Devi was the keeper of a printing press called the ‘Bharati Press’ at Purulia in Bihar. The press had published a Bengali leaflet entitled Sangram. Written in ‘high-flown Bengali’ with a good deal of ‘demagogic claptrap’,18 the leaflet, in an abstract manner, called for a revolution in India. For instance, it said:

I am the blood-thirsty goddess Kali who lives and moves about in the cremation ground . . . I am thirsty. I want blood. I want revolution, I want faith in the struggle. Tear, tear the chain of wrongs.19

In September 1949 (i.e., before the Constitution came into force), the Government of Bihar issued an order under the Indian Press (Emergency Powers) Act, 1931, which required Devi to deposit with the government a security in the amount of Rs 2000. Section 4(1)(a) of the Act enabled the government to forfeit the deposit where it appeared to the government that the press was being used to incite or encourage ‘the commission of any offence of murder or any cognizable offence involving violence’. Devi took her case to the Patna High Court. The court held that Section 4(1)(a) of the Act was unconstitutional. However, in one of the concluding paragraphs of his judgment, one of the judges, Justice Sarjoo Prasad,20 held that even a person who preached murder and incited violence had the freedom to do so under Article 19(1)(a) of the Constitution. Prasad said that ‘if a person were to go on inciting murder or other cognizable offences either through the press or by word of mouth, he would be free to do so with impunity’ as ‘he would claim the privilege of exercising his fundamental right of freedom of speech and expression’.21 This chilling passage of Justice Sarjoo Prasad’s judgment was almost single-handedly responsible for the First Amendment to the Constitution. In July-August 1950, Master Tara Singh, a powerful regional leader who led the movement for a separate Punjabi-speaking state,22 delivered two speeches. He was prosecuted under sections 124-A and 153-A of the Indian Penal Code, dealing with sedition and hate speech. The Punjab High Court held that both sections were unconstitutional as they were far too broad.23

The Nehru-Liaquat Pact

Meanwhile, between 1949-50, there were large-scale communal riots in East Pakistan, which led to a huge exodus of Hindus into West Bengal. In the wake of these riots, the prime ministers of India and Pakistan, Nehru and Liaquat Ali Khan, signed an agreement known as the ‘Nehru-Liaquat Pact’ or ‘Delhi Pact’.24 This was a confidence-building measure, aimed at securing peace between India and Pakistan, and at ensuring that both countries would protect their respective minorities. Clause (C)(8) of the Pact required the governments of both countries to prohibit propaganda which incited war between the two countries.25 However, it was felt that this clause in the Pact could not be enforced under Indian law. In March 1950,26 about two weeks before the Pact was signed, Nehru wrote to Home Minister Sardar Vallabhbhai Patel alarmed by the fact that Syama Prasad Mookerjee’s Hindu Mahasabha was speaking about ‘Akhand Bharat’ (or unified India), which was ‘a direct incentive to conflict’. Nehru was worried that war with Pakistan was ‘openly (being) talked about’, which Nehru was strongly against. Patel responded by telling Nehru that the Constitution was getting in the way of what the government could do about this. In a letter to Nehru,27 he wrote:

We are now faced with a Constitution which guarantees fundamental rights—right of association, right of free movement, free expression and personal liberty—which further circumscribe the action that we can take. That means that for every executive action there must be legal sanction and judicial justification.

In April 1950, two days before the Pact was signed, Syama Prasad Mookerjee resigned from Nehru’s cabinet. In his resignation letter to Nehru, Mookerjee strongly expressed his disagreement with Nehru over the Pact, telling Nehru that the policy he was following towards Pakistan was sure to fail, that time alone would prove this.28 Nehru responded to Mookerjee a few days later, and said that the only alternative to signing the Pact was war.29 Patel said to members of the press in Trivandrum in May 1950, about a month after the Nehru-Liaquat Pact:

You know we have entered into an agreement with Pakistan. In that agreement there is a clause that certain kinds of comments affecting the atmosphere should not be allowed to be published. We cannot do that under the Constitution. We cannot also prevent the Press from doing it. We can only do it through moral pressure and through the friendly cooperation of the Press . . . 30

In the meantime, Mookerjee openly started making strong speeches severely criticizing the treatment of Hindu minorities by Pakistan. In a speech in Parliament in April 1950, while explaining why he resigned from Nehru’s cabinet, Mookerjee said: ‘I have never felt happy about our attitude towards Pakistan. It has been weak, halting and inconsistent.’31 In May and June, Mookerjee made speeches in Calcutta where he recited statistics on the number of Hindus who had been attacked in East Pakistan, and said that it had become impossible for Hindus to live there.32 It was his argument that while the Pact called upon both countries, India and Pakistan, to protect their minorities, in reality it was only Pakistan’s Hindus who needed protection, as India’s Muslims were safe and secure. Pakistan’s foreign minister (and former judge of the Federal Court of British India, the precursor to the Supreme Court) Zafrulla Khan took exception to Mookerjee’s speeches, saying that they violated the Pact. Sardar Patel sent a telegram to Khan in June 1950, and said that India’s Constitution came in the way of the government being able to take any action against Mookerjee. He wrote:

I am telegraphing . . . regarding Dr Syama Prasad’s activities . . . Prime Minister has already explained constitutional position. That position affects activities of individuals as well as of press and inextricably binds us. Subject to that position we are doing all we can to ensure activities of individuals and press conform to letter and spirit of agreement.33

In June 1950, Nehru wrote to Patel and said that the ‘chief culprit’ against the smooth working of the Nehru-Liaquat Pact was ‘Hindu Mahasabha propaganda’, ‘the Calcutta Press as well as Syama Prasad Mookerjee’.34 Patel was disturbed by the decisions of the Supreme Court in the Romesh Thapar and Brij Bhushan cases.35 Patel thought that these decisions now made it impossible for the government to take any action against Mookerjee and other more extreme persons.36 Patel was of the opinion that the Constituent Assembly had drafted very idealistic provisions in the Constitution which were not rooted in practical considerations. In a letter to Nehru dated 3 July 1950, Patel wrote as follows: I find no legal powers to deal with either Press or men like Syama Prasad Mookerjee. Before you left for Indonesia, I drew your attention to the Supreme Court decision in [the] Cross Roads and Organiser cases. That knocks the bottom out of most of our penal laws for the control and regulation of the Press. The views which they have expressed in that judgment on the question of sedition make it doubtful whether we can do anything not only about the speeches of Syama Prasad Mookerjee but also those of the more extremist type. As you say, we have involved ourselves in so many legal and constitutional difficulties that we do not know how to overcome them. I sounded a note of warning and caution when these provisions were being debated in the Drafting Committee, but then we were led away by our idealistic exuberance. We seldom paused to consider the practical and administrative applications of the many constitutional provisions and even their interrelation. My own feeling is that very soon we shall have to sit down and consider constitutional amendments.37

The decision of the Patna High Court in Shaila Bala Devi was delivered on 13 October 1950. Six days later, Nehru wrote to Law Minister B.R. Ambedkar, opining that the right to free speech required amendment.38 Indeed, Mookerjee went on to make several more speeches bordering on calling for war between India and Pakistan and for their forcible reunification. In a speech made in Parliament in August 1950, for instance, Mookerjee suggested that the Government of India must declare war on Pakistan in order to protect Pakistan’s Hindu minority, and that the entire basis of partition had been undone by Pakistan’s failure to protect its Hindu minority.39 In September 1950, Mookerjee said in Calcutta that the government’s ‘present policy of appeasement of Pakistan must cease’, and that either economic sanctions must be imposed or ‘military action’ must be taken against it.40 That month, he said at a conference at Chinsurah, Hooghly, that India and Pakistan were in ‘a state of undeclared war’, because ‘120 lakh people in East Pakistan’, that is Hindus, were finding it ‘difficult to live in their ancestral homes’, and another ‘50 to 60 lakh’ Hindu refugees had come to India from Pakistan.41 In December 1950, Mookerjee spoke at an RSS function where he said that the partition of India had ‘brought misery and humiliation to millions’.42 In a speech in Parliament that month, Mookerjee said that ‘[w]e are supposed to be at war with Pakistan in Kashmir’, that India’s policy towards Pakistan should be based on ‘complete reciprocity’, and that if the ‘situation worsens’, ‘India will have to depend . . . on her arms and ammunitions or military strength’.43 In March 1951, Mookerjee said in the Lok Sabha that ‘Pakistan wanted war’, and that if they still wanted it, ‘let them have the taste of that’.44 In October 1951, at his presidential address at the founding of the All India Bharatiya Jana Sangh, he said:

We already know that the partition of Bharat was a tragic folly. It has served no purpose and has not helped to solve any problem, economic, political or communal. We believe in the goal of reunited Bharat . . . 45

On 12 May 1951, a Bill was introduced in the provisional Parliament, to amend certain articles of the Constitution, including Article 19(2).46 The explanatory Statement of Objects and Reasons to the Bill, signed by Nehru himself, said that the right to free speech in India ‘has been held by some courts to be so comprehensive as not to render a person culpable even if he advocates murder and other crimes of violence’, an obvious reference to Justice Sarjoo Prasad’s judgment in Shaila Bala Devi. Things progressed at a hurried pace thereafter. Nehru issued a circular, instructing members of his party to be present in Parliament, despite the scorching heat of Delhi in May.47 On 16 May 1951, Nehru moved a motion to refer the Bill to a Select Committee in Parliament. The Select Committee was to consist of twenty-one members, including K.T. Shah, Sardar Hukam Singh, Naziruddin Ahmad, B.R. Ambedkar and R.K. Sidhva, who we have seen, played a part in the drafting of the right to free speech under the Constitution. It must be noted, in all fairness and to the government’s credit, that Syama Prasad Mookerjee, whose speeches were being viewed with suspicion by the government, was also made a member of the Select Committee. However, now Nehru himself, who had earlier taken almost no role in drafting Article 19(2) of the Constitution, was also a member of the Select Committee. The amendment to the right to free speech was finally passed in June 1951, with 228 members voting in favour of it and only nineteen voting against it. Though this was not the official line, the restriction relating to ‘friendly relations with foreign States’ seems to have been thus motivated by an aim to restrict speech calling for India to go to war with Pakistan and to annul the partition. ‘[T]his House will realise,’ said Nehru in his speech in Parliament in support of the First Amendment, ‘that at this particular moment of a very delicate international situation and tension, we cannot easily take the risk when something said and done, not an odd thing said and done, but something said and done repeatedly and continuously, may lead in regard to foreign countries to the gravest consequences, may lead to our relations with that foreign country deteriorating rapidly.’48 He was obviously referring to Pakistan. In another speech in Parliament, Nehru added, ‘If an individual does something which might result in war, it is a very serious matter. No State, in the name of freedom, can submit to actions which may result in wholesale war and destruction.’49 In yet another speech, Nehru defended the ‘friendly relations with foreign States’ exception in the following terms:

. . . suppose you do something which seems to us to incite to war, do you think we ought to remain quiet and await the war to come? . . . We cannot imperil the safety of the whole nation in the name of some fancied freedom which puts an end to all freedom . . . we are living in a very delicate state of affairs in this world, when words, whether oral or written, count; they make a difference for the good or for the bad. A bad word said out of place may create a grave situation, as it often does.50

Syama Prasad Mookerjee, in his speech in Parliament against the First Amendment, said that partition was a mistake and that it should be undone some day, even by force. He said that he did not know whether the ‘friendly relations with foreign states’ exception related to ‘the demand which is made in certain quarters about a possible reunion of India and Pakistan’. He said that he knew that ‘the Prime Minister holds very strong views about it and he51 has said a number of times that any such movement or agitation is harmful to the interests of the country and that he does not like it.’52 In fact, Mookerjee had consulted senior advocate Narotam Singh Bindra on the proposed constitutional amendment. Bindra had informed Mookerjee that the amendment would debar Indians from ‘making any comment with respect to the activities of Pakistan in connection with the evacuee property within its territories or with respect to the policy of the Government of India in this behalf’.53 However, the official line was that the ‘friendly relations with foreign states’ exception was intended merely to prevent defamation of foreign state heads.54 This kind of restriction had previously been imposed by the colonial government. For example, it was imposed in 1915, during the First World War.55

Justice Sarjoo Prasad’s Judgment

It is certain that the decision of the Patna High Court in Shaila Bala Devi, particularly, the chilling passage of Justice Sarjoo Prasad’s judgment, was the immediate cause for introducing the words ‘incitement to an offence’ into Article 19(2). Apart from the Statement of Objects and Reasons, Justice Prasad’s judgment was spoken about by several members in Parliament during the debates on the First Amendment. Nehru referred to the Patna High Court judgment in two separate speeches. ‘The House knows,’ he said, ‘that one of the High Courts held that even murder or like offences can be preached. Now it is an extraordinary state of affairs if that can be done.’56 ‘Why is this amendment brought?’ Nehru asked himself in another speech in support of the amendment in Parliament, ‘I think it was the Bihar High Court which said something to the effect that preaching of murder is allowed under this clause,’57 he continued. Home Minister58 C. Rajagopalachari also referred to the Patna High Court judgment in his speech in support of the Bill.59 When Syama Prasad Mookerjee argued against the Bill, some members interrupted, saying, ‘Ask the High Courts . . . A person can preach murder and still go scot-free.’60

Hate Speech

Many members in Parliament supported the amendment because it enabled the government to deal with hate speech. ‘I am ashamed of the Press,’ said Pandit Krishna Chandra Sharma. He added: ‘Thousands of people have been murdered on account of the false reports published in the Press regarding Hindu-Muslim riots.’61 According to Chandra, in 1947, a Delhi daily newspaper falsely reported that fifty Hindus had been killed by Muslims in communal attacks, and as a consequence, thirty Muslims were killed in retaliatory attacks by Hindus on the following day. ‘Who is responsible for these [thirty] lives?’ asked Chandra.62 ‘How many of you remember,’ asked Nehru, ‘or have you forgotten, three-and-a-half years ago, in this city of Delhi in the month of September 1947, in Punjab, in that entire body of Western Pakistan, what had happened?’ He continued, ‘anything that goes towards disrupting the community, anything that goes towards creating communal discord in this country will be met with the heavy hand of this government.’63 ‘I am not going to allow anything coming in the way of the freedom and unity of India,’ he said, strongly.64 Even in February 1950, Nehru had written a letter to Patel in which he had said that there was ‘a constant cry for retaliation and of vicarious punishment of the Muslims of India, because the Pakistanis punish Hindus’.65 He had written to Patel that ‘this policy of retaliation and vicarious punishment [would] ruin India as well as Pakistan’. The ‘public order’ exception was particularly geared towards restraining hate speech or speech which incited communal violence, especially against the political backdrop of the Nehru-Liaquat Pact.

False News and Personal Attacks On the other hand, several speeches, made in Parliament in support of the amendment, showed that the government was beginning to get irritated with speech of a low value, for example, newspapers which made abusive personal attacks against public figures instead of engaging in serious political commentary, as well as newspapers which published false news stories. Nehru said that it was a matter of the ‘deepest distress’ to him that certain ‘less responsible news-sheets’ were emerging in India which were ‘full of vulgarity and indecency and falsehood’, and which were ‘poisoning the mind of the younger generation, degrading their mental integrity and moral standards’. ‘[I]magine,’ he said, ‘our soldiers and our sailors and our airmen reading this from day to day.’66 In another speech, Nehru said that he was ‘ashamed’ after reading some Hindi and Urdu press cuttings, on account of their ‘disgusting and obscene and vile’ content.67 He once again expressed worry about what the poor villager, townsman or soldier in India would think after reading those articles. Their morale and standard would go down, he thought.68 While he was willing to concede the greatest amount of freedom for high value political speech and criticism, he wanted ‘utterly degraded criticism bringing in the personal life of individuals’ to be excluded from the ambit of free speech.69 Nehru might have been referring, among other things, to personal attacks which had been levelled in the press against Sardar Patel, in the aftermath of the Nehru-Liaquat Pact. Newspapers like the Janashakti (mouthpiece of the Bombay Socialist Party) and the Janata had reported that after Liaquat left for Karachi, Patel had convened a meeting of the Congress party (at which Nehru was absent) and protested against the Pact.70 This was incorrect. Patel referred to these reports as ‘venomous and false propaganda’,71 ‘calumny and false and mischievous propaganda’,72 and ‘sinister propaganda’.73 Patel later said that the press must ‘maintain a certain degree of decency and moral standard’.74 Nehru wrote to the editor of the Janata and said that the information published in the newspaper was ‘baseless and absolutely false’, that the Janata ‘has done great injustice to [Sardar Patel]’ and that it must ‘publicly apologize to [Sardar Patel] for publishing this’.75 In April 1950, Nehru made a statement76 in which he spoke out strongly against the press. ‘It has been my misfortune,’ he said, that there was a ‘representation of falsehood and distortion of truth frequently in a number of periodicals.’ He was alarmed by the ‘lowering of tone and vulgarity of some of these publications’. The false stories reported in the press about Patel, about Nehru’s sister Vijaylakshmi Pandit (at the time, India’s Ambassador to the US), and even himself, were beginning to irk him. ‘I have been astonished at the farrago of nonsense and malicious misrepresentation that has appeared’ in the press, he said. Nehru was speaking in the context of the Janata article. Russi K. Karanjia’s loud and irreverent Bombay tabloid, Blitz,77 called the First Amendment Bill a ‘Black Bill’ and a ‘rape of the Constitution’.78 Blitz believed that it was one of the primary targets of the Bill.79 While this may not have been entirely true, Blitz was certainly one example of the kind of newspaper that Nehru was referring to in his speeches in support of the Bill.80

India’s Illiterate Poor Not Ready For Free Speech

Some in Parliament supported the amendment and argued that Indians did not deserve to have free speech to the same extent as the citizens of Western democracies like the US and UK because the Indian democracy was not as mature as theirs. The theme of these speeches was that India’s teeming masses, being illiterate and poor, were not in a position to distinguish the true news from the false. These arguments, made by members of the provisional Parliament in independent India, were astonishingly similar to the arguments made by colonial legislators and judges about the ignorance of readers of Indian language newspapers. Indians are different from Englishmen in their receptiveness to incitement, said Reverend D’Souza. ‘[W]e must not . . . forget the phlegmatic English character is not [as] easily ruffled and does not respond to incitement,’ he continued.81 Pandit Thakur Das Bhargava said that India’s population was ‘ignorant and illiterate’, that here, ‘it is very easy to mislead our people as they are apt to believe readily whatever appears in print’.82

The Opposition to the Amendment

A Hurried Measure The proposed amendment to the right to free speech was heavily criticized on several grounds.83 Many argued that the Bill was being forced through Parliament in a hurried manner. The Constitution had taken several years to be drawn up, but the Bill was being rushed through Parliament in a matter of a month.84 Many said that the provisional Parliament, being a unicameral body which had been elected indirectly, five years previously, through a limited franchise, was incompetent to amend the Constitution, and that the Constitutional amendment should be carried out only by the Parliament which was democratically elected as a result of the general elections which were round the corner.85 Some said that comments should be solicited from the general public regarding the changes sought to be made by the Bill,86 others that it was too soon after the enactment of the Constitution to amend the Constitution.87 Nehru justified the amendment Bill on the ground that the Constitution was being amended by the very body which had enacted it. ‘[I]t is we after all,’ he said, ‘who were the Constituent Assembly and who drafted this Constitution.’88 However, this argument was rejected by some of the members of the Select Committee, who said that the membership of the Constituent Assembly had changed significantly since the enactment of the Constitution, and that the present members of the provisional Parliament could not be considered as having had any significant insights into the thought processes of the original framers of the Constitution.89 There was some element of truth to this. Two of the strongest voices in the Constituent Assembly regarding free speech, Sir Alladi and K.M. Munshi, did not participate in the debates concerning the First Amendment. Also, party whips had been kept out of the Constituent Assembly, while they were now a part of Parliamentary proceedings, which was not ‘in tune with the spirit and tradition of the Constituent Assembly’.90 Some complained that the membership of the Select Committee was faulty, that members of the House who were also members of the press had not been included in it.91 It may be true that the First Amendment was rushed through Parliament in a matter of a month where the Constitution itself had taken several years to be drafted. However, it is also true that in the proceedings relating to the amendment in Parliament, the right to free speech occupied centre stage to an unprecedented extent. The fundamental right to free speech was now discussed in the House more extensively than ever before. Though the Bill contained other amendments as well, amendments relating, most importantly, to the right to property, it was free speech which garnered the greatest debate. Nehru himself made five speeches in Parliament on Article 19(2). Law Minister Ambedkar spoke twice. Most of the members who spoke in the House devoted perhaps the largest portion of their speeches to the right to free speech and expression. In short, the First Amendment generated more debate on free speech in the provisional Parliament than that which had been generated in the Constituent Assembly.

‘Reasonable’ Several objections were taken to the fact that the Bill omitted to introduce the word ‘reasonable’ into Article 19(2) of the Constitution. Article 19(2) of the Constitution enabled the State to impose restrictions on the right to freedom of speech and expression on certain enumerated grounds. What was now at stake was whether such restrictions imposed by the State had to be ‘reasonable’ or not. We have already seen that in the Constituent Assembly, Pandit Thakur Das Bhargava had played an instrumental role in introducing the word ‘reasonable’ in the other restrictions to the right to freedom, and that despite his efforts, Article 19(2) did not contain the reasonableness qualification. Even prior to the reference of the Bill to the Select Committee, a debate had ensued within the Cabinet Committee (constituted to draft the First Amendment) as to whether the continued omission of the word ‘reasonable’ was now justified.92 The law ministry, under Law Minister B.R. Ambedkar, strongly recommended to the Cabinet Committee that the word ‘reasonable’ should now be added to Article 19(2).93 However, the Cabinet Committee decided to adopt the suggestion of the home ministry, which advised against the inclusion of the word ‘reasonable’ in Article 19(2). Thus, before the Bill was referred to the Select Committee, the word ‘reasonable’ was not included in the proposed amendment to Article 19(2). During the debate on the motion to refer the Bill to the Select Committee, Pandit Thakur Das Bhargava, champion of reasonableness in the Constituent Assembly, stood up once again to advocate the inclusion of the word ‘reasonable’ in Article 19(2). ‘I want that the liberties of the citizen of this country should be protected’, he said, ‘and unless and until the word “reasonable” is placed before the word “restrictions” [the Constitution] would not ensure that liberty.’94 Interestingly, when Ambedkar stood up to support the Bill, Syama Prasad Mookerjee interrupted him and asked, ‘Why have you omitted the word “reasonable” from the existing clause?’95 This was an irony because Ambedkar and his ministry had privately advocated the inclusion of the word ‘reasonable’ in the proposed amendment to Article 19(2) even prior to its introduction in the House. Ambedkar responded by virtually acknowledging that this was an unjustified omission: ‘That is a matter which may be discussed’, he said.96 When the Bill was referred to the Select Committee, the only substantial change which the Select Committee made was that the word ‘reasonable’ was now included in the proposed amendment to Article 19(2).97 One member of Parliament later said that it was a ‘common belief’ that the home minister at the time, C. Rajagopalachari, was persuaded to include the word ‘reasonable’ in the First Amendment, ‘after a great deal of argument’.98 Virtually all the dissenting members of the Select Committee acknowledged that this was a very substantial change.99 When Nehru moved the Bill again in Parliament, he said that the word ‘reasonable’ had now been included in the amendment, even though according to him its presence was always implied in Article 19(2).100 In fact, Nehru privately thought that the insertion of the word ‘reasonable’ would be an invitation for all free speech cases ‘to go to the courts with ensuing uncertainty’.101 The inclusion of the word ‘reasonable’ in Article 19(2) was an important compromise. The First Amendment added three restrictions to the right to free speech: public order, friendly relations with foreign States, and incitement to an offence. However, the word ‘reasonable’ in Article 19(2) now meant that a court could determine whether a restriction imposed by the State on the right to free speech on any of the enumerated grounds was reasonable or not. Earlier, Syama Prasad Mookerjee had pointed out the irony that while the First Amendment to the US Constitution created the right to free speech, the First Amendment to the Indian Constitution was seeking to restrict it.102 However, after seeing the change made to the Bill by the Select Committee, Pandit Thakur Das Bhargava said that the First Amendment Bill in India now also enlarged freedoms like the First Amendment in the US.103

Other Opposition Several members of Parliament were opposed to the introduction of the words ‘public order’ in Article 19(2).104 Syama Prasad Mookerjee suggested that public order be subjected to the ‘clear and present danger test’, i.e. that ‘the substantive evil must be extremely serious and the degree of imminence extremely high’.105 He argued that without this or a similar limitation, the ‘public order’ exception could be used to penalize political opponents.106 Some members wanted the restriction ‘friendly relations with foreign States’ to be deleted altogether,107 others for it to be read down.108 Ambedkar made a speech saying that the words ‘friendly relations with foreign States’ were being inserted in order to protect the constitutional validity of the Foreign Relations Act, 1932, which was likely to be declared unconstitutional along the lines of the Romesh Thapar and Brij Bhushan decisions.109 The Act gave the government the power to forfeit publications which were ‘defamatory of a Ruler of a State outside India but adjoining India’, or of his consort, son, or principal minister, and which publication tended to ‘prejudice the maintenance of friendly relations’ between the crown and the government of that State. The Act was primarily meant to govern relations between the British Indian provinces and the princely states. Several members suggested that the words ‘friendly relations with foreign States’ were too broad, that they included states which were not adjoining India or even friendly towards India, and that the restriction be limited to cover only defamation of foreign State heads.110 Naziruddin Ahmad, for instance, doubted whether friendly relations between two countries could be jeopardized ‘by mere criticism by any individual citizen of a country’.111 The debate surrounding the proposed restriction ‘incitement to an offence’ related to whether the restriction should include incitement only of murder and violent offences or of all offences. The Bill provided that all incitement—whether of violent offences or otherwise—would fall outside the purview of the right to freedom of speech and expression. Several members of the House suggested that the restriction be narrowed down to include merely incitement to murder, violent crimes and sabotage.112 Acharya Kripalani, for example, said that India’s freedom movement was based on the doctrine of satyagraha which involved inciting non-violent disobedience to laws, and that the restriction should therefore apply only to violent crimes.113 Nehru opposed this. While he agreed that the incitement restriction applied, at present, to trivial offences as well, he said that it was up to the legislature to ensure that the restriction would not be abused.114 Some supported Nehru.115 C. Rajagopalachari, for example, said that it would not be okay to allow a person to incite others to carry liquor bottles in their trouser pockets, in violation of prohibition laws.116 Likewise, Ambedkar said that it would not be acceptable for ‘caste Hindus’ to ‘proclaim a social boycott on the Scheduled Castes . . . preventing them from going into the fields’ and ‘preventing them from going into the jungles to collect fuel’.117 There were other criticisms levelled against the proposed amendment to Article 19(2). Some suggested that it should only be Parliament, not the state legislatures, which should be equipped with the authority to enact laws infringing free speech under the enumerated exceptions.118 It was suggested that laws enacted by the state legislatures infringing the right to free speech should only be valid if assent were granted to them by the President of India.119 Ambedkar rejected this suggestion on the ground that it would violate the provisions of the Constitution dealing with the distribution of legislative powers among the centre and states.120 Apart from the proposed amendment to Article 19(2), the Bill also sought to overrule the judgments of the Supreme Court and the Punjab, Patna and Madras High Courts seen above, by retrospectively validating laws which would now be saved by the amended Article 19(2).121 Many argued that this retrospective validation was not justified.122 However, this suggestion was also rejected by Parliament.

The Supreme Court’s Course Correction

While Parliament was debating the amendment to the right to free speech, few of its members were paying much attention to the fact that the Supreme Court was actually beginning to narrow down the scope of the right to free speech. On 6 April 1951, the Supreme Court decided the case of Ram Singh v. State of Delhi.123 In it, the court held that while a person could not be directly prevented from making a speech on the ground that it promotes enmity between Hindus and Muslims, he could nonetheless be preventively detained in order to preclude him from making those speeches. The Supreme Court’s judgment in this case would have naturally had the effect of chilling hate speech, given that any person who promoted enmity between Hindus and Muslims could now be preventively detained. In the House, Syama Prasad Mookerjee had argued that the existing laws on preventive detention were sufficient to deal with speech that had a detrimental effect on the ‘public order’.124 However, the House rejected this argument, perhaps preferring restrictions on free speech over preventive detention. Eventually, Justice Sarjoo Prasad’s judgment in Shaila Bala Devi came to be reversed by the Supreme Court, in appeal, on 26 May 1952, which was after the enactment of the First Amendment. In State of Bihar v. Smt. Shaila Bala Devi,125 Justice Mahajan, who wrote the judgment of the Supreme Court, held that Justice Sarjoo Prasad’s chilling observations, which have been seen above, disclosed ‘a complete lack of understanding of the precise scope’ of the Romesh Thapar and Brij Bhushan decisions. It was held that even prior to the First Amendment, speeches which incited the commission of violent crimes such as murder fell within the ambit of Article 19(2) of the Constitution.126

* * *

It is particularly interesting that the judgments of the Supreme Court and several speeches made by members of Parliament invoked decisions of the US Supreme Court on free speech, despite the fact that it has been seen that the right to free speech in India owes its textual origins to the Irish Constitution. Few persons, if any, cited any Irish decisions. In one of his speeches, for example, Ambedkar referred to the US Supreme Court decision of Near v. Minnesota127 and why it could not be considered a good authority any more. In that speech, Ambedkar also referred to Justice Oliver Wendell Holmes’ judgment on the ‘clear and present danger’ test in Schenck v. US.128 In fact, in the debate on the First Amendment in Parliament, so many members referred to American decisions on free speech that one member sarcastically commented that Parliament had ‘[outdone] America itself in quoting [its] Supreme Court’s decisions to the extent we did’.129 Free speech scholar Lawrence Liang has interestingly pointed out the contrast between the First Amendment to the US Constitution and the First Amendment to the Indian one. While the former created and recognized the right to free speech in the US, the latter restricted the right to free speech in India.130 This contrast, however, becomes less stark when one realizes that the First Amendment to the US Constitution was actually the Third Amendment—the states of that country did not ratify the first two amendments.131 Thus, it is not really possible to argue that the framers of the US Constitution believed the right to free speech to be a preferred right. The free speech amendment was actually third on the founding fathers’ list. It is not very well known that, over the years, restraints have been imposed on the press in independent India which have resembled the restraints imposed on the colonial press, which we have seen in a previous chapter. For instance, shortly after the First Amendment was passed, Parliament enacted the Press (Objectionable Matter) Act, 1951. This law re- introduced the bonds system of prior restraints on the press—a system which, we have seen, was first put in place in colonial India under Lord Lytton’s dreaded Vernacular Press Act in 1878. Under the new law, a competent authority could complain to a sessions judge that a book or newspaper was carrying ‘objectionable matter’. ‘Objectionable matter’ was broadly defined132 as incitement of some kind,133 hate speech, or words which were ‘grossly indecent’, ‘scurrilous or obscene’ or intended for blackmail. If, on the complaint, the sessions judge was satisfied that the book or newspaper was, in fact, carrying objectionable matter, then he could demand a security from the keeper of the printing press,134 a security which could be forfeited if the press continued publishing similar material.135 Unlike the Vernacular Press Act, however, the amount of the security had to be ‘fixed with due regard to the circumstances of the case’ and could not be ‘excessive’.136 There was also an appeal to the high court.137 The law was finally repealed in the year 1957.138 Thereafter, during the Emergency in the 1970s, India’s Parliament enacted the draconian Prevention of Publication of Objectionable Matter Act, 1976.139 The government’s aim was to stifle all dissent and create a culture of fear. Like the Vernacular Press Act, this law enabled the government to require a printing press to furnish a security in ‘such amount as the competent authority may think fit to require’,140 though the bond could not be ‘excessive’ and had to be ‘fixed with due regard to the circumstances of the case’. The government was also given the power, under this statute, to prohibit the publication of any newspaper which dealt with any particular subject or class of subjects.141 It could forfeit, seize and destroy unauthorized newspapers and printing presses.142 Sentences of imprisonment were imposed on those who violated the law. There was, however, an eventual appeal to the high court.143 The statute came into force with effect from December 1975,144 and was repealed in April 1977.145 Both these statutes appeared to be more draconian than colonial era laws enacted after the Vernacular Press Act. For instance, we have seen that in 1910 and 1931, laws were enacted in British India which empowered the government to demand a security from printing presses, but that these laws imposed a ceiling on the maximum amount which could be asked to be paid as a security. However, Nehru’s statute of 1951 and Indira Gandhi’s statute of 1976, like Lytton’s Vernacular Press Act, imposed no limit on the amount which the government could demand as a security from a printing press. Likewise, the Defence of India Acts enacted at the time of the India- China war of 1962 and India-Pakistan war of 1971, imposed very similar restraints on the press as were brought about in the wartime statutes enacted during the First and Second World Wars in British India. For instance, Indira Gandhi’s Defence of India Rules, 1971, enabled the government to impose prior restraints on the press, akin to those imposed by Governor- General Wellesley in Calcutta in 1799 at the time of the Fourth Mysore War, and to those contained in Rule 41 of the Defence of India Rules, 1939, during the Second World War.146 6 The Anti-DMK Amendment

In 1963, Article 19(2) of the Constitution was amended for the last and final time, and the words ‘the sovereignty and integrity of India’ were inserted in it, creating one more enumerated exception to the right to free speech. The Constitution (Sixteenth Amendment) Bill, 1963 (hereinafter, the ‘Bill’) was informally referred to as the ‘Anti-Secession Bill’.1 It was designed to prevent local political leaders in different regions within India from using the electoral process to peacefully propagate secession from the Union. In the past, the Muslim League in British India had used the electoral process to demand Partition. It was now feared that local political parties with regional, not religious, affiliations were getting elected to office on the promise that they would advocate secession for their region from India. The chief target of this constitutional amendment was the southern political party Dravida Munnetra Kazhagam (the ‘DMK’) in the state of Madras, which had advocated secession of parts of the south,2 and the creation of a separate nation state called ‘Dravida Nadu’3 or ‘Tamilnad’. Calls for secession in Punjab and Nagaland also inspired the Bill. Ironically, it was enacted at a time when demands for secession had died down in the country in the wake of the Chinese aggression.

* * * The DMK was a political party which was founded in 19494 by followers of ‘Periyar’ (meaning ‘great man’) E.V. Ramaswami Naicker.5 The DMK used the parliamentary process itself for articulating demands for secession.6 It won a few seats in the 1957 election for the Madras Legislative Assembly, and their slow success began to trouble the government.7 It was not the outbreak of war with China in 1962 which precipitated the Sixteenth Amendment to the Constitution. In fact, during the war, the DMK had scaled back its demands for secession. Much prior to the war, in January 1961, the Congress party at its Bhavnagar session had set up a ‘National Integration Committee’, under the chairmanship of C.P. Ramaswami Aiyar,8 to look into steps that could be taken for promoting national integration.9 Prime Minister Nehru had called a meeting of the chief ministers in August 1961, where it was recommended that advocacy of secession be made a criminal offence.10 In September 1961, a National Integration Conference was convened.11 The committee submitted its report to the prime minister on 5 November 1962.12 It made only one recommendation,13 viz., that Article 19 be amended to prevent Indian citizens from demanding secession. The DMK was kept out of these proceedings, and was not consulted by the committee.14 The debates in Parliament make it very clear that the Bill was primarily being enacted as a reaction to the DMK’s demands for secession. Law Minister A.K. Sen, who moved the Bill, said that it was the Bill’s purpose to outlaw ‘all activities of a secessionist nature, so that we may not have a repetition of what happened from 1940 in this country when the Muslim League made the partition of India . . . its main political platform and fought elections on that resulting in a disaster . . . ’.15 Sen informed the House that he had initially intended to speak in Hindi, but since ‘most of the challenge came from areas whose representatives might not have understood Hindi,’ he had decided to speak in English instead.16 ‘The immediate provocation or the immediate cause’ for the Bill, said M.S. Gurupada Swamy,17 ‘is obviously the activities of the DMK.’18 Speaking in favour of the Bill, R.N. Reddi referred to the movement for a separate ‘Dravidnadu in the South’.19 Opposing the Bill in the Lok Sabha, DMK party member Nanjil Manoharan20 admitted that the DMK was carrying out ‘propaganda’ for ‘the formation of Dravidastan’.21 Another opponent of the Bill, Narasimha Reddy, said that the Bill was being referred to in the press as the ‘anti-cession Bill’, but it was known in Madras as the ‘anti-DMK Bill’.22 He said that the Bill was ‘primarily intended for the suppression of the DMK organization, so some people think’.23 For Reddy, the Congress party was exacting its revenge against the DMK for giving it trouble in the previous elections. The debate on the Bill in the Rajya Sabha reads as though the DMK member, C.N. Annadurai,24 was himself on trial. Annadurai said that the Bill might have been ‘aimed at others also’, but that the newspapers and political speeches suggested that its target was only ‘the despicable DMK, not others’.25 However, though the DMK in Madras State was the primary target of the Bill, the amendment was also designed to quell calls for secession in other parts of the country, particularly Nagaland and Punjab. Several members of the House referred to the situation in Nagaland as a possible justification for the Bill.26 Law Minister Sen expressly rejected the allegation that the DMK was the only reason that the Bill was being enacted. He said that there were others who ‘openly want secession from India and who openly preach (the) disintegration of India’.27 ‘One familiar example’, he said, was the ‘rebel or hostile Nagas on the eastern border’, who had not yet given up their demand for a separate nation state of Nagaland.28 Sen said that ‘forces of disintegration’ had taken hold in India ‘[s]tarting from the Punjab, right up to the South’.29 Thus, Sen referred to Madras, Nagaland and Punjab in support of the Bill. The Bill was thought to be necessary because the words ‘security of the State’ in Article 19(2) were considered insufficient to prevent a person from using the electoral process to advocate secession peacefully. The amendment bill did not only seek to add an exception to the right to free speech. Among other changes, it also made ‘the sovereignty and integrity of India’ an enumerated exception to the rights to assembly and association contained in Articles 19(1)(b) and (c). Law Minister Sen said that ‘some of the decisions of the Supreme Court (had) made it quite clear that ‘security of the State’ is a limited expression and it does not comprehend any power to ban organizations or political activities so as to bring them within the exceptions under the article unless something more is there.30 The government thus appeared to be keen to ban associations which advocated secession, and the words ‘security of the State’ in Article 19(2) were thought to be insufficient for this purpose. The amendment Bill was also symbolic. It introduced, for the first time, an oath which was now required to be taken by any person who was even merely nominated as a candidate to fill a seat for the Lok Sabha, Rajya Sabha or a state legislature. In other words, a person who wanted merely to contest an election for a state legislature or Parliament now had to take an oath. The Bill also amended the oaths that were required to be taken by elected members of Parliament and state legislatures. The Bill now required all these persons to swear that they would, among other things, ‘uphold the sovereignty and integrity of India’.31 Law Minister Sen believed that this would have ‘a salutary effect’ on elected representatives.32 Interestingly, even Supreme Court judges and high court judges are, following the Sixteenth Amendment, required to take an oath to uphold the sovereignty and integrity of India. This presumably means that Supreme Court and high court judges are bound by their oaths to deny any person the right to peacefully propagate secession from India.33 While the war with China might not have been the cause for the Bill, it certainly provided the necessary rhetoric for its enactment and created a general feeling of insecurity and paranoia which reduced opposition to it. The Bill was enacted at a time when India was under its first national emergency,34 when civil rights and civil liberties had been suspended. Even though the war with China had lasted between October-December 1962, the national emergency was continued from October 1962 to December 1967.35 As Communist Party member Bhupesh Gupta noted in the Rajya Sabha, ‘[t]oday, as we are discussing this subject [i.e., the Bill], the irony of it is that article 19 is frozen, it does not exist.’36 In his speech in the Lok Sabha, Law Minister Sen referred to the ‘hard-won freedom’ which India had earned ‘at the cost of millions of patriots’ lives’ and to ‘the flag of independence which we have earned for ourselves with the blood of many a martyr’, in support of the Bill.37 On another occasion, Sen said that it was ‘unfortunate that at a time when we are facing the most major threat in our history since independence, we should have to contend with such activities and have to ask for powers to deal with such activities’.38 Surendranath Dwivedy39 said that there were parties in India which had ‘extra-territorial’ loyalties,40 an obvious reference to the Communist Party, which another member said had two factions, one loyal to Peking, the other to Moscow.41

* * *

The debates which took place in the Lok Sabha on the Sixteenth Amendment Bill were different in tone from debates which had taken place on the right to free speech earlier in the Constituent Assembly and the provisional Parliament. The speeches made by Law Minister A.K. Sen and minister of state in the ministry of home affairs, R.M. Hajarnavis, in support of the Bill seemed to lack the erudition of Law Minister Ambedkar and the lofty idealism of Prime Minster Nehru. Yet, at the same time, there was little opposition to the Bill, and few claimed that it violated the sacrosanct or preferred right to free speech. Powerful voices in favour of free speech like those of Munshi, Bhargava, and Mookerjee, were now missing in the debate on the Sixteenth Amendment. The debate seemed to prize rhetoric and flourish over substance. Nehru, who had spearheaded the First Amendment, and who was still very much the prime minister at this time, was not even a member of the parliamentary Joint Committee on the Sixteenth Amendment, and he took part in no debate on the Bill in Parliament. Where Syama Prasad Mookerjee, opponent-in-chief of the First Amendment, was very fairly made a member of the Select Committee by the government in 1951, none of the prominent members of the DMK (particularly Manoharan or Sezhiyan from the Lok Sabha or Annadurai from the Rajya Sabha), the natural opponents of the Sixteenth Amendment, were made members of the Joint Committee in 1963.42 Where the Select Committee report at the time of the First Amendment produced sixteen pages of dissent, even though the Select Committee at the time had only twenty-one members on it, the Joint Committee for the Sixteenth Amendment with its forty-five members produced no more than two pages of dissent. When the specific amendment to Article 19(2) was taken up, there was no debate on it whatsoever and no amendment was moved to change its wording in either House of Parliament. The clause amending Article 19(2) was passed on 2 May 1963 by the Lok Sabha by a unanimous vote of 293-0, and it was passed on 9 May 1963 by the Rajya Sabha by a vote of 135-1 (with only the DMK leader, C.N. Annadurai, voting against the resolution). Likewise, the amendment Bill itself was passed by the Lok Sabha on 2 May 1963, unanimously,43 and by the Rajya Sabha on 9 May 1963 by a majority of 137-1 (Annadurai opposing). The Bill therefore engendered little or no opposition. Those who did object to it raised several pertinent grounds. Some said that there was no need to pass the Bill, because the country had become united after the Chinese aggression and even the DMK had given up its secession demands temporarily.44 Some argued that demands for secession, so long as they were peaceful, ought to be permitted.45 C.N. Annadurai from the DMK argued that the National Integration Committee had not met with members of the DMK.46 Sezhiyan powerfully said:

[P]lease argue with us, contend with us, convince us. If you find we are incorrigible, leave us alone, and go to the people, convince them. If you do that, that is real democracy. If you do other things, the name is not democracy, but it is something else.47

Some members of the House referred extensively to the right to free speech under the US Constitution. Sezhiyan, for example, cited the judgment of Justice Jackson in the case of West Virginia State Board of Directors v. Barnette48 decided by the US Supreme Court. In this case, the US Supreme Court had written the iconic lines, ‘[c]ompulsory unification of opinion achieves only the unanimity of the graveyard’,49 and ‘[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion’.50 He cited the dissent of Justice Oliver Wendell Holmes in the famous case of Abrams v. US,51 and quoted from a speech made by Thomas Jefferson.52 Others argued against invoking the example of the US, where a civil war consequent to the secession of the south had nearly torn that country apart.53 Many said that a constitutional amendment or mere legislation alone would not protect the sovereignty and territorial integrity of India, that underlying problems behind demands for secession would have to be addressed,54 particularly the disagreements between north and south. For example, B.D. Khobragade argued that it was insensitive of people in the north to burn effigies of Ravana during Dussehra, when many in the south revered not Rama but Ravana.55 Bibudhendra Misra said that the DMK was propagating the idea that southerners belonged to the Dravidian race, whose culture was different from the Aryan race of northerners.56 B.K.P. Sinha argued that towns in India like Jamshedpur had ghettos or mohallas and Indians from different regions did not mix in them.57 A member from Assam said that ‘there is less affinity among the different peoples in India than among the different nations of Europe’, because while European countries could at least ‘claim the same pigment of their skin’ and ‘the same religion throughout the length and breadth of Europe’, India was a country ‘with a bewildering, often conflicting varieties of people, of languages, of sects, of faiths, of colours, of nationalities, of races’ which could not make similar claims.58 Some said that rather than making piecemeal amendments to the Constitution, a committee should be constituted to suggest comprehensive changes to be made to the Constitution once and for all.59 Citing a paper published by a senior researcher at the Indian Law Institute,60 H.N. Mukherjee said that words like ‘sovereignty’ and ‘integrity’ were vague and were susceptible to being misinterpreted by courts.61 H.V. Kamath cited the example of the Scottish Home Rule Party62 which was permitted to contest elections for seats in the House of Commons, and said that only speech which amounts to incitement ought to be outlawed.

* * *

Today, Article 19(1)(a) of the Constitution gives to every Indian citizen the right to freedom of speech and expression. Article 19(2), on the other hand, enables the government to enact a law which imposes ‘reasonable restrictions’ on the right to free speech, in the interests of ‘the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality . . . contempt of court, defamation or incitement to an offence’. Interestingly, it bears repetition that despite the fact that the constitutional provision dealing with free speech was inspired by the Irish Constitution, not the US Constitution, not one member of Parliament in the debates on the amendment Bill brought up a case or precedent from Ireland. Instead, some members continued to refer to judgments delivered by the US Supreme Court. Following the Sixteenth Amendment, Parliament enacted the Unlawful Activities (Prevention) Act, 1967. This law gave the central government the power, subject to the approval of a tribunal, to declare an association as ‘unlawful’.63 It made it an offence for any person to take part in, commit, advocate, abet, advise or incite the commission of any ‘unlawful activity’,64 which means any action taken which is intended to, or supports any claim to bring about, ‘the cession of a part of the territory of India or the secession of a part of the territory of India from the Union’.65 It is also an ‘unlawful activity’ to disclaim, question, disrupt or intend to disrupt the sovereignty and territorial integrity of India. A few years ago, a prominent UK-based magazine, The Economist, accused India of censoring maps of India which it had carried in its pages, and which depicted the disputed boundaries of Kashmir.66 The map showed Kashmir as having been divided between India, Pakistan and China, contrary to India’s territorial claims. About 30,000 copies of The Economist were distributed in India with a white sticker placed over the map of Kashmir.67 The government officials responsible for this act of censorship no doubt sought refuge in the words ‘the sovereignty and integrity of India’ contained in Article 19(2) of the Constitution. Yet, can merely showing a map depicting the de facto line of control in an internationally disputed geographical region amount to undermining the ‘sovereignty and integrity’ of India? By merely presenting an alternate map of Kashmir to its readers, could The Economist be said to have engaged in activity akin to the DMK’s demands for secession and for the separate state of Tamilnad, which gave rise to the Sixteenth Amendment in the first place? Can it even amount to ‘questioning’ the territorial integrity of India, punishable as an offence under the Unlawful Activities (Prevention) Act? At a more fundamental level, can a person who merely questions the territorial boundaries of India be said to be undermining the ‘sovereignty and integrity of India’ at a level comparable with the movements in Madras, Nagaland and Punjab in the 1950s and 1960s? 7 Prudes and Prigs

We have seen thus far that colonial laws in British India which dealt with speech were repressive, that they targeted Indian nationalists and discriminated against Indian language newspapers. The law of sedition under the Indian Penal Code (IPC), for instance, was framed in a manner which was incredibly different from its counterpart in England. However, not all colonial-era laws concerning speech and expression were discriminatory against Indians. When it came to obscenity, surprisingly, British India and England, Briton and Indian were treated alike. Sedition and obscenity both evolved from the English law of libel. Yet, unlike sedition, obscenity was not a political offence. Sedition was subversive. It called into question the legitimacy of the British Empire and threatened the foundations of the colonial state. Obscenity, on the other hand, did none of these things. Laws relating to obscenity were only concerned with public morality, not the survival of the State. For this reason, obscenity was a branch of law by which colonial administrators were not substantially troubled. The statutes in British India which defined and criminalized obscenity were quite indistinguishable from their counterparts in England. It was the ‘Hicklin test’, evolved by English courts in an era of Victorian moral conservatism, which was also applied in British India, in order to determine whether something was obscene or not. Several decades after the Constitution of independent India came into being, it was still the colonial- era Hicklin test which was used in order to determine whether something was obscene. Further, the modification of the Hicklin test began not with the enactment of the Constitution in 1950 but even before that time, in colonial India. Thus, the enactment of the Constitution in 1950 made no immediate difference to the law relating to obscenity in India.

Obscenity Legislation in England and British India

At first, a work was only considered obscene in England if it insulted religion or was otherwise likely to create a breach of the peace. In other words, obscenity was not considered harmful by itself, but only because of its attitude towards religion or its likelihood of giving rise to a breach of the peace.1 For example, in 1663, Sir Charles Sedley was convicted for exposing himself on the balcony of a tavern and causing a breach of the peace.2 This changed towards the end of the eighteenth century, when obscenity began to be seen as harmful by itself.3 In 1787, King George III issued a proclamation that his subjects must ‘suppress all loose and licentious prints, books and publications, dispensing poison to the minds of the young and unwary, and to punish the publishers and vendors thereof’.4 There were several statutes in England thereafter which sought to regulate obscenity. For instance, the Vagrancy Act, 1824,5 made it an offence for any person to ‘wilfully [expose] to view, in any street, road, highway, or public place, any obscene print, picture, or other indecent exhibition’.6 Similarly, the Town Police Clauses Act, 1847, made it a cognizable offence punishable with forty shillings or fourteen days in prison, for any person in any street to ‘publicly [offer] for Sale or Distribution, or [exhibit] to public View, any profane, indecent, or obscene Book . . . or [to sing] any profane or obscene Song or Ballad, or [use] any profane or obscene Language’.7 Though there was a body of law in England dealing with obscenity, colonial administrators in British India did not appear, at first, to pay much attention to it. In 1837, the Indian Law Commission headed by Macaulay, we have seen, prepared their draft of the IPC. Except for a provision which penalized anyone who made any sound or gesture insulting the ‘modesty’ of a woman,8 there was no section in this draft which dealt with obscenity.9 In fact, later on, Stephen, a former law member of the Viceroy’s Council, in his three-volume authoritative treatise on the history of English criminal law, chose not to spend any time whatsoever discussing the law of obscene libels, not even in his chapter on miscellaneous offences like perjury, bribery and slave trading. In January 1856, the governor-general of India gave his assent to ‘An Act to Prevent the Sale or Exposure of Obscene Books and Pictures’.10 While introducing the Bill to the Governor-General’s Council in December 1855, one member11 of the Council12 said that sales of indecent books in Calcutta were ‘extremely common’, that such books were ‘thrust into the hands of passengers in all the principal streets and thoroughfares of this city’. He was worried by the fact that indecent books tended to be very cheap, making them accessible to anyone who wanted to purchase them. He referred to a Bengali book containing ‘(eleven) of the most obscene pictures that could be conceived’ which was available for just four annas. Patronizingly, he said that British India needed legislation on morality, given that Indians were ‘so ill-informed’, that they required ‘so much guidance’, and where, ‘from the climate and other causes, the scale of morality was so very low’. However, he referred to English law while justifying the clauses of the Bill. Partly modelled on Section 28 of the English Town Police Clauses Act, 1847, the 1856 Act made it an offence for any person ‘in any shop, bazar, street, thoroughfare, high-road, or other place of public resort’, to distribute, sell, offer for sale, or wilfully exhibit, any ‘obscene book, paper, print, drawing, painting, or representation’. The Act also made it an offence for a person to sing, recite or utter ‘any obscene song, ballad, or words, to the annoyance of others’.13 The offence was punishable with a maximum sentence of three months’ imprisonment (akin to the sentence under the English Vagrancy Act, 1824), or a fine of Rs 100 or both. The Act carved out an exception unique to the Indian context, and provided that it would not apply to any obscene displays in temples or on cars used for the conveyance of idols.14 England, after all, had no erotic sculptures like the temples at Khajuraho in India. This exception, eventually carried forward in the IPC, went on to become quite a sensitive topic. Pandit Shamlal Nehru once argued that even Hindu temples with obscene displays ought to be ‘screened off from the public gaze’ because such displays vilified Hinduism.15 Gandhi said that he did not think of the Shivalingam as a phallic symbol or as obscene—it was in a Christian missionary text that he first even found any reference to this.16 In 1857, Britain’s Parliament passed the Obscene Publications Act, 1857.17 The statute was passed at the instance of Chief Justice John Campbell.18 The Act gave more powers to magistrates to find and destroy obscene materials.19 Three years later, the IPC came into force in British India, and Section 292 was the primary provision which dealt with obscenity.20 Unlike sedition, the provision dealing with obscenity under the IPC was quite compatible with the law in England.21 Purchasing or viewing obscene materials is not an offence. The offence of obscenity consists mostly of selling or exhibiting obscene materials.

The Hicklin Test

Though obscenity had been a crime on the statute books in England for a long time, it was only around 1868 that an authoritative test was first laid down, by the court of the Queen’s Bench,22 in Regina v. Hicklin,23 defining obscenity under English law. The case arose under the Obscene Publications Act, 1857. The question in this case was whether a pamphlet entitled ‘The confessional unmasked’24 was obscene or not. The pamphlet attacked Roman Catholicism, and sought to expose what it considered were questionable practices adopted by its priests. It essentially contained extracts of instructions given to Roman Catholic priests, on subjects like: ‘How women may commit adultery with impunity’, ‘How they may afterwards deceive their husbands’, ‘Whether [it is] lawful for a servant to open the door for an harlot?’, ‘Whether from fear of death, or of great loss, it is lawful for a servant to stoop his shoulders, or bring a ladder for his master ascending to commit fornication . . . ?’, and the ‘seduction of females in the Confessional’.25 The pamphlet did not intend to excite lust in its readers. It sought to attack Roman Catholicism generally. In doing so, a large part of the pamphlet, however, contained text which was sexually explicit. Chief Justice Alexander Cockburn wrote the judgment of the court. The classic test he laid down was as follows:

I think the test of obscenity is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall. Now, with regard to this work, 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.26

The Hicklin test could really be considered as having six constituent ingredients:

1. Deprave and Corrupt: The work in question had to have the ‘tendency’ to ‘deprave and corrupt’, or to suggest to readers ‘thoughts of a most impure and libidinous character’. What this meant, however, was not very clear. Did it mean to excite lustful thoughts and sexually arouse the reader, even if ephemerally? Did it mean that the matter had to have a lasting impact on the very moral compass of the reader, in short to make the reader a pervert? Did it have to have the effect of encouraging readers to actually engage in activities considered by society to be morally depraved? None of this was clear on a plain reading of Chief Justice Cockburn’s judgment.

2. Not the Reasonable Person: The matter had to deprave and corrupt not just any person, but ‘those whose minds are open to such immoral influences’. It was not merely the ‘young of either sex’ who Chief Justice Cockburn was worried about, but also ‘persons of more advanced years’. In other words, the court was not to approach the test of obscenity from the standpoint of a reasonable person. The question was whether the matter would be considered obscene from the point of view of immature persons.

3. Presumed Intent: As in sedition cases, the intent of the wrongdoer was to be presumed from the words which he had used. His actual intent was not relevant. The fact that the author of the pamphlet in question had actually intended to attack the Roman Catholic priesthood, and not to excite lustful thoughts in immature Englishmen, was, in short, irrelevant. A de facto altruistic object or intent was irrelevant.

4. Contemporary Books Irrelevant: In order to determine whether the matter was obscene or not, it was not permissible for the court to look at other books which were in circulation at the time.27 The work in question had to be judged on its own merits.

5. Circumstances/Accessibility: The ‘circumstances of the publication’, in other words how accessible the publication was, was also important. During the course of arguments, Chief Justice Cockburn said that an illustrated medical treatise could not be considered obscene, as it provided information or education to doctors, but it could not be ‘exhibited for any one, boys and girls, to see as they pass’.28 The fact that the pamphlet in question in that case was being ‘sold at the corners of streets’, and that it fell ‘into the hands of persons of all classes, young and old’, was considered relevant by Cockburn for determining that it was obscene.29

6. Work as a Whole Irrelevant: The Hicklin case is an authority for the proposition that a book may be considered obscene if there are obscene passages in it, even if the theme of the book as a whole is not to deprave and corrupt readers. Commentators have said that the Hicklin test makes four words count for more than four hundred pages.30 Indeed, non-pornographic, serious works came within the obscenity ambit of the Hicklin test. In 1888, for example, Henry Vizetelly was convicted for publishing English translations of three novels by the French writer, Émile Zola.31

Hicklin in British India

The Hicklin test came to be repeatedly followed by the high courts of British India. According to Deana Heath, though obscenity prosecutions were not a priority for the colonial government,32 and though such prosecutions were often launched only at the behest of Indians,33 the Hicklin test was institutionalized in British India, used almost as a mantra no matter which way the case would turn.34 However, the high courts also explained, and in some cases, sensibly modified, the Hicklin test. Several judgments delivered by the high courts during the colonial period help shed light on what the words ‘deprave and corrupt’ under the Hicklin test might be taken to mean. In Queen Empress v. Parashram Yeshvant,35 the Bombay High Court was considering whether four pictures were obscene. Three of them contained female figures that were partially naked. The fourth contained a female figure that was entirely naked. The court found that two ‘half-draped pictures’ were not obscene as they were not ‘of such a sort as [to excite] sensual feelings’.36 As for the remaining two pictures, they were ‘so drawn and coloured as to make it a question . . . for the trying Court whether or not they come within the mischief’ of the law.37 It was held that the accused could have shown ‘by argument and evidence’ that the effect of these two pictures was not necessarily to ‘deprave or debauch’, or to show that the pictures were ‘artistic or conventional or otherwise not polluting to the morals of the public’.38 In Kherode Chandra Roy Chowdhury v. Emperor,39 the Calcutta High Court was determining whether an Oriya book called Theft of Tops was obscene. The book dealt with a story in the lives of Krishna and Radha. Krishna, a god in the Hindu pantheon, considered an incarnation of Vishnu, was described as ‘touching the left breast of Radha and asking her questions about it’, ‘asking Radha for caresses’ and asking her for carnal intercourse. Radha was described ‘as removing the cloth from her breast when two tops and string miraculously dropped to the ground and Krishna looked at her breast’. Though the Hicklin test was applied, the court found that Hindus generally did not think of Krishna and Radha as human beings, and did not ‘judge their doings by the standard of human conduct’. As the work in question related to ‘beings whose conduct is not to be judged by the standard of human conduct’, it could not be ‘condemned as obscene’, since sacred figures like Krishna and Radha would ‘not raise immoral thoughts in people who believe in the divinity of [these] beings’. In Public Prosecutor v. Mantripragada,40 the Madras High Court was considering the merits of a Telegu booklet, Vidi Natakam, which had originally been written by Srinadha, a fifteenth-century writer. The 27th verse of this booklet contained the innuendo ‘Cupid’s secret home’, which, the court found, was a reference to ‘a very objectionable part’ of the female body. It was held that there were expressions in this stanza which were ‘calculated to excite a libidinous desire in the reader’. Likewise, the 37th stanza of the booklet, which spoke of the ‘breasts of a woman unable to bear the beatings of the male’, was found ‘calculated to excite lust and to instil improper ideas into the minds of the reader’. It was held that ‘the general tenor of the verses objected to’ was ‘to create an unholy desire and to engender illicit sexual passion in the minds of the reader’. In Jagat Narain Lall v. Emperor,41 the Patna High Court was considering whether an advertisement for a book called Kashmiri Kok Shastra in a Hindi weekly newspaper was obscene. The advertisement said that the book contained photographs of men and women in eighty-four ‘asans’. Objection was taken to the use of the word ‘asan’ in the advertisement. The prosecution argued that the word meant ‘the posture of men and women at the time of cohabitation’, while the defence argued that it meant ‘the attitude of male and female jogis at the time of prayer’. The court found that the mere use of the word ‘asan’ could not mean the posture of men and women during sexual intercourse. Though ‘asan’ might have suggested the idea of men and women in sexually explicit positions, there was nothing obscene in the advertisement. In Emperor v. Harnam Das,42 the Lahore High Court was concerned with an Urdu book which contained advice for married couples. One passage advised a man that if his ‘penis does not become sufficiently stiff on going near the woman he should (consume) meat and eggs’. Another advised men that they should avoid thinking about women for four to six months, and rest their sexual organs during that time. Yet another passage contained a surmise on the number of movements men took, on average, in order to achieve sexual climax. This was, in essence, what Deana Heath would call an Indian sexology text or kamashastra literature.43 The high court held that the book was not obscene. It was found that the book was ‘undoubtedly a serious work intended to give advice to married people, and particularly husbands, on how to regulate the sexual side of their lives to the best advantage’. Such books, when properly written, were held to ‘serve a useful purpose’, and were ‘published on a large scale and widely circulated in all civilized countries’. In order to be understood, such books had to be written ‘in fairly plain language’. It was held that ‘crudeness is not the same as obscenity’. Though some of the subjects treated in the book would not be ‘ordinarily discussed in polite society’, they were ‘dealt with in the book in quite a restrained and sober manner’. Some high courts refused to accept the ingredient of the Hicklin test where Chief Justice Cockburn had said that obscenity must be judged from the standpoint of immature persons, young and old, or ‘those whose minds are open to . . . immoral influences’.44 However, other limbs of the Hicklin test were adopted wholeheartedly by the high courts in colonial India. Thus, the high courts generally accepted the prong of the Hicklin test in which the intent of the accused person was to be presumed by reading the words of the allegedly obscene material.45 They fully endorsed the prong of the Hicklin test which made it necessary for courts to take into account the accessibility of the work in question. In Empress of India v. Indarman,46 for instance, the Allahabad High Court found it relevant that the price of the book was only eight annas, and that it was therefore accessible to a wide audience. They also accepted the prong of the Hicklin test whereby it was not the theme of the work as a whole which rendered it obscene.47

Hicklin Modified in England and America

Two cases were decided in around 1954 which could be said to have modified the Hicklin test in England. The first of these was a judgment of the Queen’s Bench Division of the high court in Regina v. Reiter.48 One of the prongs of the Hicklin test was that the matter in question had to have been of such a nature as to deprave or corrupt ‘those whose minds are open to such immoral influences’, young and old. In other words, the Hicklin test required courts to judge a work’s obscenity from the standpoint of the immature, not reasonable, person. This changed in Reiter. Chief Justice Goddard held that the law was only concerned with young people, not adults. It was held as follows:

‘There are, no doubt, dirty-minded elderly people, but it is not to be expected that many elderly people would read these books. Younger people are more likely to, and we are told that they circulate in the Armed Forces. The jury have to consider whether, looking at these books altogether, they would tend to corrupt and deprave, or whether they would not.49

Another case, Regina v. Martin Secker & Warburg Ltd,50 went even further. The case was tried at the Central Criminal Court, or the ‘Old Bailey’. The court was considering whether an American novel by Stanley Kauffman called The Philanderer51 was obscene or not. While accepting the Hicklin test, Justice Stable delivered a charge to the jury which deviated from Hicklin in many respects. The overwhelming theme of the charge was that merely because a book dealt with sex did not mean that it was obscene. The book had to be judged by the standards of present times, not those of a century ago.52 ‘We are not sitting here as judges of taste,’ said Stable, adding, ‘We are not here to say whether we like a book of this kind.’53 The words ‘corrupt and deprave’ did not mean ‘shock or . . . disgust’, as it was not a criminal offence to shock or disgust readers.54 The jury was directed that a book could not be judged from the standpoint of only children. In Justice Stable’s words:

Are we to take our literary standards as being the level of something that is suitable for a fourteen-year-old schoolgirl? Or do we go even further back than that, and are we to be reduced to the sort of books that one reads as a child in the nursery? The answer to that is: Of course not. A mass of literature, great literature, from many angles is wholly unsuitable for reading by the adolescent, but that does not mean that the publisher is guilty of a criminal offence for making those works available to the general public.55

Stable found that it was not books which put obscene thoughts into young minds, but nature which did so, and that it was the responsibility of parents and teachers to see that children would lead a ‘balanced individual life’.56 Though the book in question was ‘obviously and admittedly . . . absorbed with sex’, that by itself was not enough for it to be considered obscene. Had it not been for sex, said the judge, ‘the human race would have ceased to exist thousands of years ago’.57 Rome and Greece elevated human love to the status of a cult if not a religion, but the priesthood in the Middle Ages was ‘compelled to be sexless’.58 In Victorian England, the judge remarked, legs of tables in some homes were draped out of prudishness.59 The judge asked the jury to consider whether the act of sexual passion could really be considered ‘sheer filth’. ‘It may be an error of taste to write about it’,60 he said, but that was not enough to constitute obscenity. According to Justice Stable, it was only pornography or ‘filth for filth’s sake’ which was obscene because it was not literature, it had no message, and it had no inspiration or thought.61 The judge described the story of the novel to the jury and said that the question was whether the author had come up with ‘an honest purpose and an honest thread of thought’ in his novel, or whether this was a ‘bit of camouflage to render the crudity, the sex of the book, sufficiently wrapped up’ so as to pass muster.62 In short, the first two prongs of the Hicklin test which we have seen above were modified in Reiter and Warburg. Firstly, a work which dealt with, or was even absorbed with, sex was not, for that reason alone, obscene. Secondly, it was now in doubt as to whether the question of the obscenity of a book was to be judged from the standpoint of young or immature persons. In 1959, the Hicklin test was then statutorily modified in England by the Obscene Publications Act, 1959.63 Section 1 of this Act required courts to decide whether a work was obscene or not by considering the ‘effect’ of the work ‘taken as a whole’. Earlier, a work would be considered obscene under the Hicklin test merely if isolated passages within it were obscene, even if the theme of the work as a whole was not obscene. This was now undone by the 1959 Act which required the effect of the work to be considered ‘as a whole’. A defence was introduced to the charge of obscenity. A person could not be convicted for obscenity if he could prove that the ‘publication of the article in question is justified as being for the public good on the ground that it is in the interests of science, literature, art or learning, or of other objects of general concern’.64 Opinions of experts as to literary, scientific or other merits of work were also now permissible in evidence in obscenity cases.65 In the US, as early as in 1913, Judge Learned Hand (then a district judge in the Southern District of New York) expressed doubts over the correctness of the Hicklin test in the case of United States v. Kennerly.66 The question in this case was whether a book called Hagar Revelly was obscene. The book described the life of a young woman in New York and her ‘amorous misadventures’. Hand felt compelled to accept the Hicklin test. However, he expressed his reservations over it. Though the Hicklin test may have been ‘consonant . . . with mid-Victorian morals’, he said it did not ‘answer to the understanding and morality of the present time’. Hand found it harsh to judge a work of art from the standpoint of ‘those most likely to pervert [it] to base uses’, or ‘to reduce our treatment of sex to the standard of a child’s library in the supposed interest of a salacious few’. One of the earliest cases in which the US Supreme Court dealt with obscenity was Roth v. US.67 Speaking for the court, Justice Brennan held that sex and obscenity were not synonymous, and that if there was sex in art, literature or scientific works, that was not sufficient reason to deny the material the constitutional protection of free speech. Like Justice Stable’s charge to the jury in Warburg, Justice Brennan said that sex was ‘a great and mysterious motive force in human life’ which was ‘indisputably . . . a subject of absorbing interest to mankind through the ages’.68 The correct test, according to the court, was set out as follows: The material in question would be considered obscene if to the average person (not necessarily the reasonable person), applying ‘contemporary community standards’ (not national or state standards), the ‘dominant theme’ of the work taken as a whole, appeals to ‘prurient interest’ (i.e., ‘material having a tendency to excite lustful thoughts’). In Kingsley International Pictures v. Regents,69 the US Supreme Court was considering the validity of a New York motion picture licensing law which enabled censors to deny a license to a film which was ‘immoral’, one which portrayed an act of ‘sexual immorality’ as being desirable, acceptable or a proper pattern of behaviour. New York’s censors had denied a licence to the film Lady Chatterley’s Lover, based on the novel by D.H. Lawrence. The Supreme Court invalidated the law. Justice Stewart held that the film advocated the idea that ‘adultery under certain circumstances may be proper behaviour’, and that the First Amendment included the freedom to propagate such an idea.70

Hicklin in Ranjit Udeshi’s Case

Despite the enactment of the Constitution in 1950, the Hicklin test continued to be applied, for several decades, in order to determine whether something was obscene or not. In 1959, it was largely on account of Prime Minister Nehru’s intervention that the critically acclaimed novel Lolita, written by Vladimir Nabokov, was not banned in India. Several copies of the book were imported into India by Jaico Publishing House in Bombay. The consignment was detained by the collector of customs at Bombay for investigation in April 1959 on the ground that its contents might be obscene. The following month, D.F. Karaka, editor of the Bombay weekly, Current, wrote a letter to Finance Minister Morarji Desai, complaining that the novel glorified the sexual relations of an adult man with a child of eleven or thirteen years, and that this was disgusting. Desai wrote in the file, ‘I do not know what book can be called obscene if this cannot be. It is sex perversion. Home Ministry should be consulted.’ However, Nehru intervened and allowed the book to be released. Jaico profusely thanked Nehru, and sent him a copy of the novel, Lolita, with their compliments.71 However, in 1964, the Supreme Court of India decided its first case concerning obscenity, in Ranjit Udeshi v. State of Maharashtra.72 Ranjit Udeshi was the partner of a firm which owned a book stall in Bombay. He was prosecuted under Section 292 of the IPC for being in possession, for the purpose of sale, of the book Lady Chatterley’s Lover written by D.H. Lawrence. The novel told the story of a baronet who had been wounded in the war and was paralysed from the waist downwards. He permitted his wife, Constance (Lady Chatterley), to engage in sexual relations with other men, sensing her sexual frustration. As the Supreme Court later wrote, each sexual encounter was described in the book with ‘great candidness and in prose as tense as it (was) intense’.73 Udeshi had been convicted and sentenced to pay a fine of Rs 20, or to suffer one week’s simple imprisonment in default. Justice Hidayatullah (as he then was) wrote the judgment of the court. Several decades previously, in 1929, Hidayatullah had read Lady Chatterley’s Lover as a student at Cambridge. He had read it not out of any academic curiosity as a law student, but because of its titillating content. As he candidly admitted in a speech in the US later on, ‘I was a young man then and my interest was very different, an interest of which . . . the law takes note.’74 The case in the Supreme Court was heard over three days. The attorney general of India supplied five sealed packets to the court’s judges, each containing one copy of the book. When he read the book once again as a Supreme Court judge, Justice Hidayatullah ‘did not find it absorbing’. ‘Perhaps I had grown old’, he wondered, or the book had ceased to have an impact on him because he was reading it again.75 However, to his colleagues on the Bench, who had not read it, the book ‘came as a bomb’, the impact on them ‘was terrific’, and their ‘attitude was definitely hostile’.76 It was Justice Hidayatullah alone who claims to have hesitated, on account of his ‘liking for the author’, in holding the book to be obscene.77 ‘But in the end I saw that it would not do to introduce the book into India’,78 he later explained to an audience of law students in the US. In Ranjit Udeshi’s case, Justice Hidayatullah adopted a modified version of the Hicklin test: Firstly, akin to Justice Stable’s charge to the jury in Warburg, Justice Hidayatullah held that the presence of ‘sex and nudity in art and literature’ could not be considered ‘evidence of obscenity without something more’. ‘It is not necessary,’ the judge said, ‘that the angels and saints of Michael Angelo should be made to wear breeches before they can be viewed.’79 If this were the test, he said, then half the bookstores would be forced to close down, and only moral and religious books would be permitted to be sold. This, according to Justice Hidayatullah, was the primary modification of the Hicklin test adopted in Ranjit Udeshi’s case.80 Sex, by itself, was not enough to deprave and corrupt. Secondly, the Hicklin test was not understood by the court as emphasizing ‘the importance of a few words or a stray passage’.81 The court referred to the story of ‘the lady who charged Dr Johnson with putting improper words in his Dictionary’. She was rebuked by Dr Johnson who said to her: ‘Madam, you must have been looking for them.’ While assessing whether something was obscene, the court was not actively to seek out the obscene passages, like Dr Johnson’s critic. ‘An overall view of the obscene matter in the setting of the whole work’ was required to be taken. However, at the same time, the obscene matter itself could be considered separately and by itself. If the non-obscene or artistic portions of the work were ‘so preponderating as to throw the obscenity into a shadow’, or the ‘obscenity so trivial and insignificant that it can have no effect and may be overlooked’, then the work would not be considered obscene.82 In short, contrary to the Hicklin test, the work had to be looked at as a whole, and the obscene words or passages had to be weighed against the non- obscene portions of the work. As Hidayatullah said in a speech later on, ‘isolated passages might still tilt the balance against the book’ under this test.83 Thirdly, like the English Obscene Publications Act, 1959, Justice Hidayatullah found that an obscene publication could be justified if it was for the ‘public good’.84 The work would be considered as being in the interests of the public good if it propagated any important ideas. ‘[I]deas having social importance will prima facie be protected,’ said the court, ‘unless obscenity is so gross and decided that the interest of the public dictates the other way.’85 Obscenity ‘without a preponderating social purpose or profit’ was held to be impermissible.86 Contrary to the Obscene Publications Act, 1959, however, the court refused to permit expert evidence, or indeed any oral evidence, to be led over the question of whether a work was obscene or not.87 It was held that the offending novel had to be judged by the court alone. However, apart from these three modifications, the Hicklin test was applied in Ranjit Udeshi’s case by the Supreme Court. For instance, it was held that the law sought ‘to protect not those who (could) protect themselves but those whose prurient minds (took) delight and secret sexual pleasure from erotic writings’.88 In other words, it was not the reasonable person from whose standpoint the allegedly obscene materials were to be judged. The court refused to hold that it was only pornography which was prohibited by the laws against obscenity. It was held that pornography and obscenity were distinguishable in that the former consisted of materials intended to excite lust, while the latter consisted of materials which might have the tendency (though not necessarily the intent) of exciting lust.89 In 1969, Section 292 of the IPC was amended once again, along the lines of the Obscene Publications Act, 1959.90 Contrary to the Hicklin test, the amendment required courts to consider a work ‘as a whole’. It inserted a ‘public good’ exception to obscenity, which was also adopted in Ranjit Udeshi’s case. It was now a defence for a person accused of obscenity to argue that the work in question was ‘proved to be justified as being for the public good’, ‘in the interest of science, literature, art or learning or other objects of general concern’. Materials kept ‘bona fide for religious purposes’ or sculptures on any ‘ancient monument’ were also excepted from the definition of obscenity.91 It also enhanced the penalty for obscenity from a maximum sentence of three months to two years’ imprisonment on a first conviction and five years’ imprisonment on a second conviction.

Hicklin and the Supreme Court of India

Sex, Nudity and Vulgar Language The modified Hicklin test adopted by the Supreme Court in Ranjit Udeshi’s case has continued to be followed by the Supreme Court in a host of cases. In several decisions, the Supreme Court has held that nudity, sex, or vulgarity, by itself, is insufficient to constitute obscenity. If a work propagates an idea or conveys a social message, the fact that it contains sexual or nude scenes, descriptions of human anatomy, or even abusive language, is not enough for it to be considered obscene. Bad taste is not obscenity. However, if the work in question sexually arouses the reader or viewer, it will almost certainly be considered obscene. This is strange because the test of whether something is sexually arousing or not is highly subjective. In Chandrakant Kalyandas Kakodkar v. State of Maharashtra,92 the Supreme Court was considering whether a short story called ‘Shama’ published in the 1962 Diwali issue of a monthly Marathi magazine called Rambha was obscene. The story dealt with the life of a poet, Nishikant, and his amorous relationships with three women, Neela, Vanita and Shama. In it, Nishikant has pre-marital sex with Neela. Vanita is portrayed as an ‘oversexed woman, experienced and forward, making advances and suggestions’. She and Nishikant have several sexual encounters until he catches her unabashedly cheating on him. Nishikant and Neela are found kissing each other at a cinema hall. The court found that even though the story was not ‘of a very high literary quality’ and though the writer appeared to be immature and insufficiently experienced, there was nothing obscene in the work.93 Though the court considered some of the story to have been written in bad taste,94 it was not obscene. It was held that obscenity would have to be measured from the ‘standards of contemporary society’ in which the work is read.95 In Samaresh Bose v. Amal Mitra,96 the Supreme Court was considering whether a Bengali novel called Prajapati was obscene. There were scenes in the novel describing separate sexual encounters between the protagonist, Sukhen, and three girls, Zina, Shikha and Manjari. There was also a scene where Sukhen’s elder brother had a sexual affair with ‘the maidservant’s daughter’. The novel used vulgar language. All this was considered to be obscene by the trial court. The Supreme Court disagreed. It was held that a court had to determine whether what the author conveys in his work ‘has any literary and artistic value’.97 Reference to kissing, descriptions of female anatomy, and ‘suggestions of acts of sex’, by themselves, were insufficient to constitute obscenity.98 It was noted that the novel used ‘slang and various unconventional words’, and the episodes described within it generated feelings of shock, disgust and revulsion among ‘readers of cultured and refined taste’.99 However, this too was held to be insufficient for constituting obscenity. In the court’s eyes, vulgarity and obscenity were not to be confused. However, where abusive language is directed against important historical figures such as Mahatma Gandhi, the outcome may not be the same. In Devidas Ramachandra Tuljapurkar v. State of Maharashtra,100 the Supreme Court was considering the question of whether a Marathi poem entitled ‘Gandhi Mala Bhetala’ (or ‘Gandhi Met Me’) was obscene. Though the poem was heavily censored in the court’s judgment, one can gather from it that the poem made Mahatma Gandhi say or do some obscene things. It was held that an author could not put ‘obscene words’ into the mouths of ‘historically respected’ persons like Gandhi, Rabindranath Tagore or Vallabhbhai Patel.101 In Bobby Art International v. Om Pal,102 the Supreme Court was considering whether a film called Bandit Queen was obscene. The film was based on a true story, the life of Phoolan Devi. It had been granted an ‘A’ certificate, for viewing by adults, by the Censor Board. A man called Om Pal Singh Hoon had filed a petition in the Delhi High Court seeking to quash the certificate. There was a scene in the film where the protagonist was ‘humiliated, stripped naked, paraded, [and] made to draw water from [a] well’. Her breasts and genitalia were exposed to a ‘circle of a hundred men’. The court held that scenes of nudity, without more, were not obscene. The object of the nude scene in this movie was ‘not to titillate the cinemagoer’s lust but to arouse in him sympathy for the victim and disgust for the perpetrators’.103 ‘Nakedness,’ the court held, ‘does not always arouse the baser instinct.’104 The film also contained a scene where the protagonist was raped. This too was held not to be obscene. The court found that rape and sex were not ‘glorified’ in the film, but helped explain why the protagonist ended up taking the law into her own hands. The use of swear words was not considered obscene either. These were words, the court felt, which ‘can be heard [every day] in every city, town and village street’, and that no adult who watched the movie would be tempted to use them merely because of their use in the film.105 The test that the court was to ask itself was whether such scenes advanced the message of the film.106 In Aveek Sarkar v. State of West Bengal,107 the Supreme Court was considering whether a semi-nude photograph of the iconic German tennis player, Boris Becker, with his ‘dark-skinned fiancée’, Barbara Feltus, a film actress, taken by Feltus’s father, was obscene. In the photograph, Becker and Feltus faced the camera and appeared to be topless. Feltus’s breasts were covered by Becker’s hands. The photograph had appeared in a German magazine, Stern. It was then carried by the magazine Sports World and the newspaper Anandabazar Patrika, both of which had a wide readership in India. A lawyer practising in the Alipore Judge’s Court, Kolkata, saw the photograph and filed a complaint under Section 292 of the IPC. The Hicklin test was formally abandoned by the Supreme Court in this case. However, in truth, courts in India had repeatedly modified the Hicklin test and the judgment of the Supreme Court in Aveek Sarkar did not modify the Hicklin test any further than what the court’s previous judgments had already done.108 It was held in this case that a ‘picture of a nude/semi-nude woman’, by itself, could not per se be called obscene, unless it had ‘the tendency to arouse the feeling of . . . an overt sexual desire’. It is only when nudity is ‘designed to excite sexual passion’ or have a ‘tendency of exciting lustful thoughts’ that it becomes obscene.109 The context in which the photograph appeared and the message sought to be conveyed by it was considered important.110 The fact that Becker had used the photograph to speak out against racial discrimination in Germany was considered to be particularly relevant.111 The court found that the photograph conveyed an important message—a call to eradicate racism and apartheid in society.112 In S. Khushboo v. Kanniammal,113 the Supreme Court was considering whether statements made by a well-known South Indian actress during an interview and reported in the press were obscene. The actress had said that there was an increasing incidence of pre-marital sex among live-in couples and that this should be accepted. She had also said that girls ought to take sufficient precautions in order to avoid unwanted pregnancies and the transmission of venereal diseases. She was reported as having said the following to the India Today magazine:

When a girl is committed to her boyfriend, she can tell her parents and go out with him. When their daughter is having a serious relationship, the parents should allow the same. Our society should come out of the thinking that at the time of the marriage, the girls should be with virginity. None of the educated men will expect that the girl whom they are marrying should be with virginity. But when having sexual relationship the girls should protect themselves from conceiving and getting venereal diseases.

She was also reported as having said the following to a newspaper in Tamil Nadu called Dhina Thanthi, though she denied having said this:

How many men and women do not have sex before marriage? Why are people saying that after the marriage the husband and wife should be honest and faithful to each other? One should have confidence in the other, only to avoid the mistakes from being committed. If the husband, without the knowledge of the wife, or the wife, without the knowledge of the husband, have sex with other persons, if a disease is caused through that, the same will affect both the persons. It will also affect the children.

The court took note of the fact that Khushboo had not ‘described the sexual act or said anything that could arouse sexual desires in the mind of a reasonable and prudent reader.’114 In other words, it was considered obscene for a person to sexually arouse an audience or readers. Khushboo’s words, the court found, were likely to prompt a dialogue on ‘existing social mores’,115 and it was necessary to promote a ‘culture of open dialogue’ on ‘societal attitudes’.116 It was held that encouraging some people to engage in pre-marital sex was not an offence,117 and that adults who ‘willingly engage in sexual relations’ without committing adultery do not commit any offence.118 It was also held that ‘the initiation of a criminal trial is a process which carries an implicit degree of coercion’ and that a magistrate was therefore required to ensure that a complaint had a prima facie basis, before taking cognizance of an offence involving an infringement of a right to free speech.119 Though ‘marriage is an important social institution’, the court noted that there were many people in India, including ‘indigenous groups’, for whom ‘sexual relations outside the marital setting’ was a ‘normal occurrence’. ‘Notions of social morality are inherently subjective’, the court said, and ‘[m]orality and criminality are not coextensive.’120 If the complainants had a problem with the views that Khushboo had expressed, they ought to have countered her by presenting their own views ‘through the news media or any other public platform’.121 In this respect, the judgment of the Supreme Court in Khushboo is reminiscent of the judgment of Justice Brandeis of the US Supreme Court in Whitney v. California,122 when he said that the remedy for falsehood is ‘more speech, not enforced silence’.

Prior Restraints and Film Censorship The Supreme Court has held that prior restraints, imposed in the context of film censorship, are valid under the Constitution. We have already seen that prior restraints were a form of censorship prevalent during the colonial period against the press. Importantly, as a matter of practice, prior restraints are no longer imposed on the written press (except by courts, under the sub judice rule, which we will see later on) or on books in India. There is a law called the Press Council Act, 1978, which established a body called the ‘Press Council of India’. However, this body has very mild powers. After conducting an inquiry, the Council has the power only to ‘admonish or censure’ or to ‘disapprove the conduct’ of a newspaper or news agency.123 It can compel a newspaper to carry information about the inquiry being conducted by it against the newspaper.124 These steps only have reputational consequences, if at all. The Council cannot, during an inquiry, force a journalist to reveal his sources.125 In May 1948, the Governor of West Bengal, C. Rajagopalachari, wrote a letter to Home Minister Patel complaining about a violent film which was being prepared on the ‘Chittagong Armoury Raid’ of 1930, in which armed Indian revolutionaries attacked and captured armouries of the police in Chittagong.126 Rajaji wanted the film to be censored because it would add to the ‘romantic attraction of crime for semi-educated people’, especially since the film had ‘an aura of patriotic effort round it’.127 Patel wrote back saying that the Centre, at that time, had ‘no control over the production of films, nor over censorship’, which was controlled by provincial governments.128 Patel said that the central government was contemplating introducing ‘central censorship’.129 In the meantime, he advised Rajaji to drop a ‘hint’ that ‘even after the film is ready it might not be possible to permit its exhibition’. It was against this backdrop that the Cinematograph Act, 1952, was enacted. It contains a regime of prior restraints for films. It set up a ‘Board of Film Certification’ (hereinafter, the ‘Censor Board’) for ‘sanctioning films for public exhibition’. No person can show his film to the public without a certificate from the Censor Board. The Censor Board has the power to refuse to sanction a film altogether, to sanction a film for unrestricted public exhibition,130 for public exhibition restricted to adults131 or any class of professionals,132 or even to direct the applicant to carry out such ‘excisions or modifications’ in the film as it thinks necessary.133 The Censor Board has the power to refuse to certify a film if it violates any of the restrictions on free speech contained in Article 19(2).134 The central government has the power to issue directions to the Censor Board, setting out the principles which are to guide it in determining how to certify films.135 The central government also had the power to suspend a certificate granted by the Censor Board.136 Appeals against decisions of the Censor Board can be filed before a specially constituted Appellate Tribunal.137 In K.A. Abbas v. Union of India,138 the Supreme Court was determining the validity of the prior restraints regime under the Cinematograph Act. K.A. Abbas had made a documentary film called A Tale of Four Cities (1968). The film contrasted ‘the luxurious life of the rich’ with the ‘squalor and poverty’ of the poor in four cities: Calcutta, Bombay, Madras and Delhi. It contained a blurry scene in Bombay’s red-light district, where sex workers were shown wearing skimpy clothing. The entire scene lasted less than a minute. A sex worker was later shown sharing most of her earnings with her pimp, and her room was portrayed as though it were a cage. The Censor Board granted the petitioner an ‘A’ certificate, for viewing only by adults. The government agreed to grant him a ‘U’ certificate for universal public exhibition only if he made some cuts in the red-light district scene. Abbas challenged the prior restraints regime of the Cinematograph Act,139 as well as the rules prescribed by the central government under it. Chief Justice Hidayatullah wrote the judgment of the court. He candidly admitted later on that the film had been specially screened for the judges of the court and the advocates, and that he had found ‘nothing obscene in it’.140 The prior restraints regime under the Cinematograph Act, however, was upheld.141 Prior restraints were held to be especially justified in the motion picture context because films, the court found, had an ‘instant appeal’, and constituted a unique medium on account of their ‘versatility, realism (often surrealism), and . . . co-ordination of the visual and aural senses’, because of which they could ‘stir up emotions more deeply than any other product of art’.142 This was unsurprising, given that prior restraints were held to be theoretically permissible, in principle, even prior to the First Amendment of the Constitution, in Brij Bhushan, as we have seen.143 In Raj Kapoor v. State,144 the Supreme Court held that the mere fact that the Censor Board had certified a film (in this case, Satyam, Sivam, Sundaram, 1978) did not grant the makers of the film immunity from prosecution for obscenity. However, this ruling was subsequently undone by virtue of an amendment inserted into the Cinematograph Act with effect from June 1983, after which a distributor, exhibitor or any person who has rights in the film cannot be prosecuted for obscenity once the Censor Board grants the film a certificate. Thus, the prior restraints regime put in place by the Cinematograph Act serves an interesting function in shielding the exhibitors of a film from prosecutions for obscenity. The power of the Censor Board to certify films is not necessarily antithetical to the right to free speech. In the UK, for example, the British Board of Film Classification, exercising statutory powers under the Video Recordings Act, 1984, has the power to certify or to refuse to certify films. It has in the past refused to certify a documentary film called Terrorists, Killers & Other Wackos, where a man’s face was literally blown away in a firing squad, though he remained alive, and was shown gasping for breath.145 It certified a film, The Human Centipede II, only after thirty-two cuts were made to the film, including a scene of ‘a man masturbating with sandpaper around his penis’.146 Likewise, the US Supreme Court in Joseph Burstyn v. Wilson,147 did not rule out the possibility that the states may censor and impose prior restraints on motion pictures ‘under a clearly drawn statute designed and applied to prevent the showing of obscene films’.148 Film censorship in the US is mostly carried out in the form of self- regulation by the Motion Picture Association of America which applies a ratings system known as the ‘Classification and Ratings Administration’.149 It is not mandatory to submit one’s film for certification to this body. However, films that are not rated by this body, or those which receive ratings of ‘NC-17’ (meaning that the film is only fit for viewing by adults), have rarely done well at the box office.150 The problem with the Censor Board in India, however, is that it has often made decisions which are very questionable and morally conservative—examples of this have been seen in the introductory chapter of this book. Prior restraints are not only prevalent in the domain of films, but also in the realm of theatrical and other public performances. In the state of Maharashtra, for example, the Bombay Police Act, 1951, authorizes the commissioner of police among others to make rules for imposing prior restraints on ‘musical, dancing, mimetic, theatrical or other performances for the public amusement, including melas and tamashas’.151 The licensing authority under these provisions has incredibly broad powers to deny a licence for a theatrical performance. For instance, if the performance is found to be ‘indecent’ or ‘scurrilous’, to ‘contain offensive reference[s] to personalities’, to ‘wound the susceptibilities of any nation or followers of any religion’, to be not merely seditious but otherwise ‘likely to excite political discontent’, a licence may be denied for the performance.152 Theatres are prohibited from engaging in a vast variety of speech. Any ‘profanity or impropriety of language’ or ‘indecency of dress, dance movement or gesture’ is barred,153 even though, we have seen, the Hicklin test in India has been modified and mere vulgarity of language is not considered obscene, as the work has to be considered as a whole. The constitutional validity of these provisions has, at present, been challenged in a petition filed in the Bombay High Court by the noted actor Amol Palekar.154 Prior restraints are, for the most part, not imposed on television.155 In other words, US television shows like The Big Bang Theory and Friends do not need the approval of a censor board in order to be shown on Indian television. However, Indian companies which broadcast content on television censor these shows in order to make them ‘suitable’ for viewing on Indian television.156 Producers of content on television are required to follow a ‘programme code’ which is incredibly restrictive and which potentially violates Articles 19(1)(a) and 19(2) of the Constitution. For instance, no programme can be carried in India which offends not merely against decency but also ‘good taste’, which has ‘suggestive innuendos and half truths’, which casts ‘aspersions against the integrity of the President of India’, which ‘criticizes . . . any individual’, ‘encourages superstition or blind belief’, denigrates women or children, or portrays any ethnic, linguistic or regional group as being ‘snobbish’ or ‘ironical’.157 All programmes also have to be ‘suitable for unrestricted public exhibition’.158 This means that everyone, even an adult, is forced to watch on television what is suitable for children. This fails to take into account that material which is not suitable for unrestricted public viewing can be broadcast at times at which parents are likely to be at home and to be able to supervise their children, which is sometimes referred to as ‘erogenous zoning’.159 A media company which violates this programme code can face serious consequences. Its equipment can be seized by the government,160 its officers can be criminally prosecuted,161 and it can altogether be banned from broadcasting content.162 Thus, in November 2016, the information and broadcasting ministry of the government banned the television news channel NDTV India from broadcasting any content for one day, for telecasting a news report on the Pathankot terrorist attack while the anti- terrorist operations were still underway.163 Likewise, in March 2013, television channel FTV was banned for ten days for carrying content, mostly after 10 p.m., which contained some female nudity.164 The government was particularly annoyed by the fact that a programme on FTV called ‘Lingerie’ showed women wearing lingerie that left their ‘buttocks fully exposed’. Some limited prior restraints are, however, imposed on television as well. Perhaps most importantly, television news channels—members of the modern-day press—require permission from the government for being set up and ‘uplinking’ content, equivalent to the licensing regime of prior restraints prevalent even in colonial India. No film, or anything related to a film like a film song, promo or trailer, can be broadcast without certification by the Censor Board that it is suitable for unrestricted public exhibition. Oddly, even a music video, whether made in India or abroad, cannot be broadcast on television without certification by the Censor Board as being suitable for unrestricted public exhibition.165 The case of Union of India v. Cinemart Foundation166 involved documentary film-maker Tapan Bose. Bose had produced a documentary film on the Bhopal Gas Disaster called Beyond Genocide. The film had won the ‘Golden Lotus’ award of the Government of India for the best non- feature film of 1987. At the award distribution ceremony, it seems that the central minister for information and broadcasting had said that films which had won an award that year would be shown on Doordarshan, which was, at the time, possibly the only channel available for public viewing on television. When Bose asked Doordarshan to telecast his film, however, they refused. According to Doordarshan, the film’s contents were ‘outdated’ and irrelevant, the film itself lacked moderation and restraint, and that it was otherwise inexpedient to show the film since claims for compensation of victims of the tragedy were pending in courts and because the film dealt with a hot political issue. The Supreme Court found that the imposition of prior restraints and censorship on movies was justifiable because, unlike other media, a ‘movie is a powerful mode of communication and has the capacity to make a profound impact on the minds of the viewers and it is, therefore, essential to ensure that the message it conveys is not harmful to the society or even a section of the society.’167 However, it was held that the government would have to discharge a heavy burden in order to justify the prior restraint.168 The court found that Doordarshan had not placed any material before it which demonstrated that the film was unsuitable for viewing for the reasons cited by Doordarshan (e.g., lacking moderation and restraint).169 It noted that the film had won the Golden Lotus award, that it had been conferred a ‘U’ certificate (i.e., for unrestricted public exhibition) by the Censor Board, and that Doordarshan itself had conceded that the film was faithful in its portrayal of events of the Bhopal Gas Tragedy. Merely because the film was critical of the government, or that claims of victims of the tragedy were presently pending, did not mean that the film could not be exhibited, said the court. Strangely, radio stations are entirely barred from broadcasting political news stories which are not officially sanctioned.170 All radio171 operators have to follow the same programme and advertising code followed by All India Radio, e.g., they cannot broadcast anything obscene, they cannot cast ‘aspersions against the integrity of the President and Judiciary’, and they cannot carry any ‘criticism by name of any person’, among other things.172 Prior restraints are not presently imposed on the Internet.173

Adolescents, Perverts and the Oversensitive The Supreme Court has repeatedly held, even before the Hicklin test was formally abandoned in Aveek Sarkar, that obscenity cannot be judged from the standpoint of adolescent children, or adults who are either perverts or oversensitive. However, the tests which we will see below are incredibly subjective. After all, who is a pervert? Who is a hypersensitive person? Courts do not have the benefit of juries to help them ascertain this. It is the trial judge sitting by himself, or a handful of appellate judges, in whom we repose our trust to answer these questions. In Kakodkar,174 the court did not believe that merely by reading the story of Nishikant and his sexual encounters described above, adolescent youth would thereby ‘become depraved, debased and encouraged to lasciviousness’.175 ‘It is possible that they may come across such situations in life and may have to face them’,176 the court said. To insist that authors must always ensure that ‘[adolescents] ought not to be brought into contact with sex’, would be, in the court’s mind, ‘to require authors to write books only for the adolescent and not for . . . adults’.177 It was held that adolescents have available to them a great deal of ‘classics, novels, stories and pieces of literature’ with content on ‘sex, love and romance’.178 In Abbas,179 Chief Justice Hidayatullah held that standards must be so framed that ‘we are not reduced to a level where the protection of the least capable and the most depraved amongst us determines what the morally healthy cannot view or read’. The line was to be drawn where ‘the average moral man begins to feel embarrassed or disgusted at a naked portrayal of life without the redeeming touch of art or genius or social value’, not if ‘the depraved’ see in such things ‘more than what an average person would’, like ‘as it is wrongly said, a Frenchman sees a woman’s legs in everything’.180 The court found fault with the guidelines laid down by the central government for the Censor Board under the Cinematograph Act, holding that the public motion picture had thereby been brought down to ‘the level of home movies’.181 In Raj Kapoor,182 the Supreme Court held that the ‘world’s greatest paintings, sculptures, songs and dances, India’s lustrous heritage, the Konaraks and Khajurahos, lofty epics, luscious in patches, may be asphyxiated by law, if prudes and prigs and State moralists prescribe paradigms and proscribe heterodoxies.’183 In other words, it was not merely adolescents or depraved persons from whose standpoint the test of obscenity was to be determined. In considering what is and what is not obscenity, a court was to ignore ‘prudes and prigs and State moralists’, or hypersensitive persons. In Samaresh Bose,184 the Supreme Court noted that the story in question had appeared in a popular Bengali journal, Sarodiya Desh, which was ‘read by teenagers, young boys, adolescents, grown-up young men and elderly people’. It was held that the standard could not be that authors must ensure that adolescents are not ‘brought into contact with sex’, because if this were the test, then only religious books would pass muster.185 The court perhaps forgot that even religious books in Hinduism sometimes have a great deal of sexual content.186 Likewise, in Bobby Art,187 the Supreme Court held that, ‘We do not censor to protect the pervert or to assuage the susceptibilities of the oversensitive.’188 In Director General v. Anand Patwardhan,189 it was held that ‘a film must be judged from an average, healthy and common sense point of view.’190 In Khushboo,191 the court said that a ‘culture of responsible reading’ was required to be inculcated among ‘prudent readers’ (the court perhaps meant ‘prudish’ readers).192 In Ajay Goswami v. Union of India,193 the Supreme Court was considering a petition filed to ensure that ‘minors are not exposed to sexually exploitative materials’. The judgment itself does not recite the facts of the case very clearly. It appears as though this petition was filed by a person who took offence to sexually suggestive content appearing in newspapers, and wanted guidelines to be framed on obscenity. For example, the court wondered whether it was really necessary for children ‘to read at a very early stage [about] the [concepts] of masturbation, ejaculation, penetration, etc. as is normally discussed by so-called sex experts in columns of newspapers’.194 However, the court rejected the petition on the ground that there was sufficient legislation on obscenity already.195 It was held that the test of obscenity was to be determined from the standpoint of the ‘ordinary man of common sense and prudence’ and not an ‘out of the ordinary or hypersensitive man’.196 The court found that though the newspapers who, as respondents in the case, were ‘conscious of their responsibility towards children’, at the same time it ‘would be inappropriate to deprive the adult population of the entertainment which is well within the acceptable levels of decency on the ground that it may not be appropriate for . . . children’.197 To impose a blanket ban on all newspapers from carrying sexually suggestive photographs or news material would lead to a situation where newspapers would end up publishing material ‘which caters only to children and adolescents’ and deprives adults of ‘their share of entertainment’ within the norms of decency.198 Those who were hypersensitive had the option of subscribing to other newspapers.199

Accessibility, Expert Evidence and Contemporary Works We have seen that one of the ingredients of the Hicklin test related to how accessible the material in question was. Courts in British India were more likely to hold something obscene if it was priced cheaply, as this would render it accessible to more people. The Supreme Court in State of Maharashtra v. Indian Hotel and Restaurants Association,200 seems to have abandoned this test. Sections 33-A and 33-B of the Bombay Police Act, 1951 were challenged in this case which, in effect, prohibited dance bars in Maharashtra. Under Section 33-A, the holding of a dance performance in ‘any eating house, permit room or beer bar’ was prohibited. Section 33-B, however, created an exception in favour of, among others, hotels with three stars or more. The court did not express any opinion over the question of whether these provisions violated the fundamental right to free speech of dancers and bar owners.201 However, it was held that the test of obscenity could not be determined on the basis of whether the material in question was being performed at five-star hotels or not. ‘The judicial conscience of this court,’ said Justice Nijjar, ‘would not give credence to a notion that high morals and decent behaviour is the exclusive domain of the upper classes, whereas vulgarity and depravity is limited to the lower classes.’202 We have seen that in Ranjit Udeshi, the court held that whether something was obscene or not was to be determined by the court alone, without looking to the opinions of experts. In that case, the court refused to consider the expert opinion of novelist Mulk Raj Anand on behalf of the accused, as to the literary merit of the novel Lady Chatterley’s Lover. However, in subsequent decisions, the court has relented and permitted expert evidence to be led on questions of obscenity. In Kakodkar,203 it was held that a court would be justified in looking at expert evidence especially where the allegedly obscene materials were in a language with which the judge was not familiar (in this case, Marathi).204 In Samaresh Bose,205 the Supreme Court held that a court could look at expert evidence without any such caveat of the material being in a different language.206 In Tuljapurkar,207 the court held that contemporary books could not be looked at in order to determine whether a work was obscene or not.208 Contemporary books may at best reflect what is acceptable to the community. The rule that contemporary books cannot be looked at for determining whether something is obscene or not was, as we have seen, one of the ingredients of the Hicklin test, which appears still to be in vogue in India. Therefore, it would not be correct to say that the Hicklin test has been abandoned in its entirety.

Isolated Passages After the 1969 amendment to Section 292 of the IPC, in Anand Patwardhan209 and Aveek Sarkar,210 the Supreme Court has held that in determining whether something is obscene, isolated passages cannot be looked at. Instead, the work must be considered as a whole. In other words, merely because a novel contains a few swear words on some of its pages does not mean that it is obscene. A few years ago, a novel, Such a Long Journey, written by the award-winning author, Rohinton Mistry, was reported to have been dropped by Mumbai University because it contained a few curse words.211 The curse words were actually directed at a powerful political party in Maharashtra, the Shiv Sena. The grandson of the party leader of the Shiv Sena, Aditya Thackeray, was studying at St Xavier’s College in Mumbai, where he came across the book and organized an agitation to have it dropped from the syllabus. The book was dropped, and the grandson was launched as a youth leader in the Shiv Sena. The tests laid down by the Supreme Court suggest that the vice chancellor’s decision in dropping a book from the syllabus on account of the fact that it contained a few curse words was unfair. A book must be judged as a whole, and not on the basis of a few words, paragraphs or pages.

Obscenity in the US

In the US, it is only ‘hardcore’ pornography which is considered obscene under the First Amendment. This was not always so. We have seen that in Roth, the court laid down the test that something would be considered obscene if to the average person, applying contemporary community standards, the dominant theme of the work taken as a whole, appealed to the ‘prurient interest’, i.e., its objective was to excite sexual arousal. In Nico Jacobellis v. State of Ohio,212 Justice Stewart, in his concurring opinion, wrote that his reading of Roth was that obscenity was limited only to ‘hardcore pornography’. While holding that he could not specifically define what was meant by hardcore pornography, he added the iconic line, ‘I know it when I see it’.213 In Miller v. California, which continues to hold the field,214 the appellant had conducted a mass mailing campaign for advertising adult books. The brochures which he sent out in the mail advertised four books, entitled Intercourse, Man-Woman, Sex Orgies Illustrated, and An Illustrated History of Pornography, and also a film called Marital Intercourse. The brochures mostly consisted of sexually explicit pictures. Chief Justice Burger wrote the majority opinion of the court. The following three-fold test was laid down in Miller for determining whether something was obscene or not:

The basic guidelines for the trier of fact must be: (a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

The court gave the following examples of what a state could regulate under part (b) of the test above, viz.:

(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated. (b) Patently offensive representation or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.

The ‘contemporary community standards’ prong of the Miller test requires courts to determine whether something is obscene or not from the standpoint of the local community in which the trial takes place.215 This is a local, not a national or state-wide test. In his dissent in Miller, Justice Douglas wrote of the subjectivity of the test of obscenity:

What shocks me may be sustenance for my neighbour. What causes one person to boil up in rage over one pamphlet or movie may reflect only his neurosis, not shared by others. Obscenity—which even we cannot define with precision—is a hodgepodge. To send men to jail for violating standards they cannot understand, construe, and apply is a monstrous thing to do in a Nation dedicated to fair trials and due process.

The US Supreme Court delivered judgment in Paris Adult Theater I v. Lewis R. Slaton216 on the same date as its judgment in Miller. In this case, the petitioners were two movie theatre owners and managers in Atlanta, Georgia. The question before the court was whether two films which were being displayed at these theatres were obscene. The argument that ‘obscene, pornographic films acquire constitutional immunity from state regulation simply because they are exhibited for consenting adults only’ was rejected. It was held that a state has the following legitimate interests in ‘stemming the tide of commercialized obscenity’, viz., ‘the interest of the public in the quality of life and the total community environment, the tone of commerce in the great city centres, and, possibly, the public safety itself.’ It was held that though there was no conclusive proof of a causal connection between antisocial behaviour and obscene material, a legislature ‘could quite reasonably determine that such a connection does or might exist’, since ‘[f]rom the beginning of civilized societies, legislators and judges have acted on various unprovable assumptions.’ A theatre open to the public for a fee was held not comparable to a private home or bedroom. Justice Douglas once again delivered a dissenting opinion in Paris. He said that he did not read or see the materials which came to the court under charges of obscenity, because he did not think he could act as a censor. He once again emphasized the subjectivity of the obscenity test:

Art and literature reflect tastes; and tastes, like musical appreciation, are hardly reducible to precise definitions. That is one reason I have always felt that ‘obscenity’ was not an exception to the First Amendment. For matters of taste, like matters of belief, turn on the idiosyncrasies of individuals. They are too personal to define and too emotional and vague to apply . . .

In Jenkins v. Georgia,217 the US Supreme Court held that the film Carnal Knowledge was not obscene under the Miller test even though its subject matter was sex and despite the fact that ‘ultimate sexual acts’ took place in the film. This was because the camera did not focus on the bodies of the actors at the times that the ‘ultimate sexual acts’ took place, there was ‘no exhibition whatever of the actors’ genitals, lewd or otherwise, during these scenes’, and though there were ‘occasional scenes of nudity’, nudity alone was insufficient to constitute obscenity. In short, the film Carnal Knowledge did not contain the ‘public portrayal of hardcore sexual conduct for its own sake, and for the ensuing commercial gain’, which was held to be punishable in Miller. However, it seems that the rule against hardcore pornography evolved in Miller is enforced on the Internet in an irregular and arbitrary manner,218 and such materials are widely available on the Internet in the US. There are, however, a few exceptions to the Miller test. Firstly, though the Miller standard of the US Supreme Court only prohibits ‘hardcore’ pornography as obscene, other sexually explicit or indecent materials, which would not be considered obscene under Miller, can nonetheless be regulated in certain circumstances. The US Supreme Court has upheld laws which impose ‘time, place or manner’ restrictions on sexually explicit but non-obscene speech. For instance, in some cases the court has upheld zoning laws which required adult theatres to be located outside of a certain radius of residential or other areas.219 This would be considered a ‘place’ restriction on indecent non-obscene speech, and is considered justifiable on account of the ‘secondary effects’ which such speech might have on a neighbourhood. For example, one of the ‘secondary effects’ of having an adult theatre in a neighbourhood might be that there may be an increased incidence of crime there. Another could be that property values in the neighbourhood might diminish.220 In FCC v. Pacifica,221 a comedian by the name of George Carlin had recorded a twelve-minute monologue containing ‘seven dirty words’. The monologue was then broadcast at about 2 p.m. in 1973 by a New York radio station. A man who was in a car with his young son heard the monologue on the radio and complained to the Federal Communications Commission. The Commission ruled that since the monologue was broadcast ‘at a time when children were undoubtedly in the audience (i.e., in the early afternoon)’, it was prohibited. The Supreme Court upheld the Commission’s view, because the radio broadcast failed to take into account the interests of minors and unconsenting adults. Unconsenting adults, it was held, had a right to privacy and to be let alone in their homes, a right not to be confronted with unwanted communications at home. Radio communications were not susceptible to prior warnings. Despite the Miller standard criminalizing hardcore pornography, the US Supreme Court has held that a statute cannot make it a crime for a person to possess hardcore pornography, because this violates the right to privacy. In Stanley v. Georgia,222 the police found at the home of the appellant, while conducting a search for something else, three reels of eight-millimetre film containing obscene footage. The state of Georgia, where the appellant resided, made it an offence to possess obscene materials. The statute was invalidated by the Supreme Court and it was held that ‘[i]f the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch.’ The court said that the government cannot be given ‘the power to control men’s minds’. However, the Miller standard does not apply when children are involved, either as actors in the film in question or as consumers. In Ginsberg v. New York,223 the court upheld a statute which made it a crime to sell sexually explicit non-obscene materials to minors. In this case, the appellants were prosecuted for selling to a sixteen-year-old boy two ‘girlie’ magazines which would not have been considered obscene for adults under the Miller standard. The law was upheld as being in the interests of parents and teachers who have the responsibility for the custody and care of children. In New York v. Ferber,224 the proprietor of a Manhattan bookstore which specialized in ‘sexually oriented products’ was prosecuted for selling to an undercover police officer two films ‘devoted almost exclusively to depicting young boys masturbating’. The Miller standard did not make all depictions of masturbation obscene, only those which were ‘patently offensive’ and which met the other criteria under Miller. However, the statute in question made it an offence to use a child in a ‘sexual performance’, which included showing the child engaged in masturbation. The statute was upheld. The Miller test was specifically modified for child pornography in three ways: firstly, a court did not have to find that the material appealed to the prurient interest of the average person; secondly, the sexual conduct did not have to be portrayed in a patently offensive manner; and thirdly, the material at issue did not have to be considered as a whole. Further, possession of child pornography can be a crime in the US. In Osborne v. Ohio,225 the Supreme Court held that Stanley does not apply to possession of child pornography. This is because after Ferber, most of the child pornography market had been driven underground, and it was difficult, if not impossible, ‘to solve the child pornography problem by only attacking production and distribution’. Further, the child pornography itself constituted a permanent record of the victim’s abuse, which could haunt children in the years to come, so the state had an interest in ensuring that it was destroyed. Additionally, child pornography is often used by ‘pedophiles . . . to seduce other children into sexual activity’. The ‘contemporary community standards’ approach of Miller would be ill-suited to India’s judicial system, given that it is judges, not juries, who decide questions of fact here. After all, chief justices of high courts here are appointed from among the ranks of puisne judges of other states. So, for example, how is a senior judge of the Delhi High Court who goes to Madras to serve as the chief justice of the high court there supposed to know what the contemporary community standards of the local community are there? In larger states in India, high court judges sometimes have to move from one seat to another. The Bombay High Court, for example, has its principal seat in Mumbai, but satellite seats in Nagpur, Aurangabad and Goa. How is the judge of the Bombay High Court who has recently moved from Nagpur to Mumbai supposed to know what the contemporary community standards are here? Further, how is an appellate judge of a high court in a large state like Maharashtra, sitting in Mumbai for example, supposed to know whether the district judge of Satara has correctly applied the contemporary standards of the local community there? Or worse, is the high court judge supposed to defer to the judgment of the district judge of Satara over the question of what constitutes obscenity in Satara? This would be an odd solution, given that judges of the subordinate judiciary too are repeatedly transferred from place to place, so the district judge of Satara might not have been in Satara for very long himself. Television and the Internet have also flattened disparities between different regions in India. After all, the same programme which can be viewed on a television set or laptop in Mumbai can be viewed in any other part of the country where broadcast television and the Internet are available. Can local community standards be different when it is the same material which is disseminated statewide or nationwide? 8 Obscenity Lies in the Crotch of the Beholder

Is Sexual Arousal Bad?1

The judgments of the Supreme Court of India which we have seen in the previous chapter broadly define something as obscene if its sole purpose is to arouse the reader or viewer sexually. However, this test is problematic for at least two reasons. Firstly, what is sexually arousing is deeply subjective. Something which is sexually arousing or patently offensive for one person might be artistic or run-of-the-mill for the other. As Justice Harlan of the US Supreme Court held in Cohen v. California,2 ‘one man’s vulgarity is another’s lyric’. Justice Douglas of the US Supreme Court was reported as having said that he opposed the law of obscenity because ‘to find something obscene, it has to be sexually arousing, and the older I get, alas, the harder it is for me to become sexually aroused.’3 Secondly, what is the harm in sexual arousal? As Justice Stable said in his charge to the jury in Warburg and Justice Brennan said in his judgment in Roth, sex is one of the most fundamental of human impulses, without which none of us would be here today. Merely because something is solely intended to arouse its readers or viewers sexually should not therefore make it harmful. Such materials may be used as aids to sexual intercourse by consenting couples, or in Sunstein’s words, even as ‘masturbatory aids’.4 The question still remains: so what? This state of the law reflects a certain Victorian-era sense of discomfort with sex. It may be that the law is concerned that materials which are solely designed to arouse people sexually will make their readers or viewers get addicted to or obsessed with sex. But can sexually arousing material be banned merely on the ground that somebody might get addicted to sex? After all, there is much in the modern world which is addictive, yet legal: cigarettes, alcohol, even chocolates, present easy examples. These things, when consumed excessively, can hamper the productivity of the workforce and eventually burden the state’s healthcare system as they may lead to alcoholism, lung cancer, or diabetes, among other things. If we can trust adults with cigarettes, alcohol and chocolates despite their addictiveness, why is it justifiable to ban sexually arousing material on the ground that its consumers will get addicted or obsessed?

Is There a Causal Relationship between Obscenity and Sexually Deviant Behaviour?

Is the law of obscenity concerned that materials which are solely designed to excite sexual arousal will cause readers or viewers to engage in sexually deviant behaviour, or what Justice Brennan called ‘overt antisocial conduct’? For example, is it a justifiable concern that men who read or watch obscene books or movies will be more likely to harass women sexually. There have been numerous reported instances recently of men engaging in sexually deviant behaviour, particularly at airports or on flights. For instance, men have been accused of making inappropriate sexual comments towards women,5 groping them,6 or even molesting them.7 Such incidents are certainly not restricted to airports or flights alone.8 However, the argument that there is a causal relationship between obscenity and sexually deviant behaviour is troubling, for at least three reasons. Firstly, there needs to be some empirical evidence to prove that there is, in fact, such a causal relationship. The evidence appears to be mostly inconclusive.9 Secondly, even assuming that there is such a causal relationship, is it justifiable to ban all obscene material or only that material which incites or encourages consumers to engage in sexually deviant conduct? For example, an obscene film which uses hypnosis to encourage viewers to harass women sexually can certainly be said to justify a test of incitement. Would it be justifiable to ban obscene material which does not, in any manner, encourage, incite or otherwise portray as desirable or acceptable, sexually deviant behaviour? Thirdly, when a consumer of obscene material engages in sexually deviant behaviour, must this be attributed to the obscene material or to the consumer himself? After all, when a person engages in violent conduct after viewing films which glorify violence or war, it is that person who is considered responsible and liable for his own actions, not the producers of the violent film. Analogously, if a person commits an act of sexual deviance after viewing an obscene film, must the blame not rest squarely on the shoulders of that person himself?

Does Obscenity Degrade Women?

Feminist scholars Catharine MacKinnon and Andrea Dworkin have argued that pornography degrades women,10 that it creates a culture or helps shape a society in which women are considered subservient objects meant to be used purely for the sexual gratification of men or that women enjoy or deserve physical abuse.11 MacKinnon argues that ‘pornography constructs what a woman is in terms of its view of what men want sexually’, where ‘women substantively desire dispossession and cruelty’, to be ‘bound, battered, tortured, humiliated, and killed’ or ‘merely taken and used’.12 This argument too, however, is problematic for several reasons. Not all pornography or obscenity degrades women or portrays them as objects of sexual gratification. Some pornography portrays women as dominant, men as subservient. The McKinnon-Dworkin argument also does not apply to gay pornography,13 which does not contain women at all, or to LGBT pornography more generally. Many also argue that much pornography portrays women as exercising agency, as being in control of their own bodies and sexual destinies. These scholars argue that the McKinnon- Dworkin argument is fallacious because it regards ‘good’ or ‘virtuous’ women as those who do not enjoy sex, whereas pornography depicts women as sexually liberated.14 The US Court of Appeals for the Seventh Circuit invalidated the obscenity ordinance drafted by MacKinnon and Dworkin for the city of Indianapolis, which was based on the degrading portrayal of women in pornography, for discriminating between viewpoints.15 Further, what if a reputable artist paints an artistic picture which is degrading towards women—if pornography must be banned for degrading women, then should art or literature not be banned when it does so as well? Should political speech which, for example, dismissed the candidature of Hillary Clinton during the 2016 US Presidential race on the ground of her being a woman, have been banned as well? To censor pornography because it degrades women sends us down the path of a slippery slope. In fact, as Deana Heath points out, women in Indian culture have historically, even in colonial times, been viewed as repositories or embodiments of virtues like chastity, purity and self-sacrifice, the antithesis of Western women who were seen as ‘idle, useless and of loose morals’.16 This continues in modern-day India. Think of the cricket teams of the Indian Premier League which import foreign (mostly white) female cheerleaders to dance and cheer at games. Indian women are probably not employed as cheerleaders because they are considered ‘virtuous’ unlike ‘loose’ foreign women. Such ideas hold dubious value. Likewise, some members of the local Bohri Muslim community in India practise female genital mutilation, or khatna, where a part of the clitoris of young girls, about six or seven years of age, is cut off, to curb and control female sexual desire, precisely because female sexuality is considered taboo by conservatives in the community.17 In its portrayal of women as beings who enjoy sexual intercourse, for reasons other than reproduction, pornography challenges the conventional patriarchal hierarchy.

Was Anyone Hurt in the Making of the Film?

However, there are some justifiable concerns against obscene or pornographic films. One of these is that no person ought to be harmed in the making of the pornographic film in question. The following can be considered as some of the constituent ingredients of this argument: Firstly, adult actors must give their informed consent for acting in the film. A hidden camera recording of a couple engaged in sexual intercourse, for example, cannot be considered protected by the right to free speech because the actors in the film did not know that they were being recorded or their privacy violated. Likewise, though an act of sexual intercourse might have been recorded with consent, there may have been no consent for it to be broadcast in public. This often occurs in what is called ‘revenge porn’— when a couple consensually make a recording of a sexual activity between themselves, expecting that the recording will be kept private at all times, but after the couple separate, one of them (usually the male) makes the recording public in order to humiliate the other (usually the female). The actors in the film must therefore give their informed consent, not merely for the recording but for its broadcast as well. MacKinnon and Dworkin raise a very powerful question about whether women in pornographic films in the US could really be said to have consented to the physical torture they were put through in the making of some films. Both evoke the example of Linda Marchiano, known as ‘Linda Lovelace’, who was hypnotized in order to overcome the natural gag reflex while performing ‘deep throat’ in the movie of the same name.18 In India, sex workers are often forced into prostitution against their will, having been sold virtually as slaves to traffickers at a young age. Can an adult sex worker in India really be considered as having given her consent to being cast in a pornographic film where much of her ‘consent’ is manufactured by her circumstances and surroundings? There are therefore some serious concerns about whether the women who act in pornographic films truly give their informed consent to doing so. Even those who consent may not know what they are really getting themselves into, and once there it may be hard for them to get out. Such concerns, however, do not apply to materials like animated films or non-illustrated novels where there are no actors involved.19 Secondly, some scenes, involving extreme sexual activity, might be considered far too harmful for adult actors to engage in, despite their consent. Some pornographic scenes might require actors to put their bodies through actual physical harm, harm which no adult may be permitted under the law to consent to. Thirdly, children are incapable of giving their consent, and so child actors cannot be used in pornography.

Consent to Watch

Another category of harm in obscenity and pornographic materials may be that it is offensive to a person who does not want to, but is nonetheless forced to, watch it. An adult who does not want to watch obscene films should not be forced to watch them. Those incapable of giving their consent, e.g., children or anyone with a mental disability, should not be permitted to watch pornography except with the consent of their legal guardians. These concerns can be addressed through what Tribe calls ‘erogenous zoning’ laws—laws which regulate the time, place and manner in which sexually explicit material can be exhibited.

Is Pornography Bad because It Communicates No Ideas?

One argument against obscenity and pornography might be that the right to free speech is meant to protect literary, artistic, political and scientific work, that it is meant to protect the dissemination of ideas, but pornographic material is none of these things as it is designed to produce a physical effect alone.20 However, whether something conveys an idea or not is, sometimes, hard to say. Justice Hidayatullah of the Supreme Court of India, for example, found no idea worth protecting in the novel Lady Chatterley’s Lover, but Justice Stewart of the US Supreme Court found it covered by the First Amendment because it conveyed the idea that adultery, under certain circumstances, was justifiable. Some would argue that pornography conveys ideas too, ideas that women are in control of their bodies and sexuality, or that women are subservient to and meant for the sexual gratification of men.21

Secondary Effects

There is one more legitimate argument which can be made particularly against the public exhibition of obscenity. The public display of such materials in a neighbourhood is likely to give rise to ‘secondary effects’ in that neighbourhood, e.g., it may attract bad elements of society, criminals, gangsters, drug-peddlers, prostitutes, etc., to that neighbourhood. However, this is capable of being remedied through zoning laws—by concentrating (or dispersing) areas where adult content can be exhibited in public, and by ensuring that these areas are kept away from the residential or commercial parts of a town. 9 A Blaze of Glory for Judges

This chapter examines the law of contempt in the form of scandalizing the court. Typically, this kind of contempt of court takes place when a person says that a judge is dishonest or biased.1 Three primary arguments will be made in this chapter. Firstly, we will see that contempt cases involving scandalizing the court in colonial India closely mirrored comparable cases in England. Unlike sedition, and like obscenity, the doctrine of scandalizing the court in colonial India was very similar to its counterpart in the metropole. This is interesting because contempt of court is intuitively a form of subversive speech, which, one would think, would have been harshly suppressed in British India. This, however, is not what happened. Secondly, after examining present-day decisions of the Supreme Court of India, this chapter will argue that Indian courts today have excessive powers to punish contempts that scandalize the court, and that an argument can conceivably be made to limit these powers only to contempts which take place in the face of the court, contempts which obviously undermine the dignity and decorum of the day-to-day functioning of the court. Thirdly, this chapter will also demonstrate that the enactment of the Constitution in 1950 did not bring about any major transformation in the free speech jurisprudence of this country: the law of contempt in the form of scandalizing the court remained virtually unchanged and has been unaffected by the enactment of a fundamental right to free speech.2

Scandalizing the Court in England

Over the years, the offence of scandalizing the court has been very sparingly used in England, to prevent extreme statements that might lower the authority of courts or create an atmosphere in which their judgments will be disobeyed. Statements made in good faith (meaning, without malice and which do not attribute motives like bias or corruption to judges), even if untrue, were outside the ambit of scandalizing the court. Initially, a person was required to be respectful or reasonably courteous in his criticisms of judges, not to engage in ‘scurrilous abuse’. However, later, even ‘trenchant’ criticisms of courts and judges were considered outside the purview of scandalizing the court. Eventually, the offence of scandalizing the court was abolished in 2013. The phrase ‘scandalizing the court’ was first used by Lord Chancellor Hardwicke in a case decided in 1742, Roach v. Garvan (or Hall),3 a case which did not actually involve contempt in the form of scandalizing the court. Hardwicke found that there were three kinds of contempt, one of which was ‘scandalizing the court itself’. Thereafter, one of the earliest cases involving scandalizing the court was Rex v. Almon,4 decided around 1765. A publisher in Piccadilly, London, had printed a pamphlet which criticized Chief Justice Mansfield for following a procedure in habeas corpus cases which was too formalistic. At its worst, the pamphlet accused Mansfield of acting ‘officiously, arbitrarily, and illegally’.5 Justice Wilmot wrote the court’s judgment, but it went unreported and unpronounced, because the prosecution in the case was eventually dropped. Wilmot’s judgment was published decades later, in 1802, by his son. Wilmot said that the entire objective of the law of contempt was ‘to keep a blaze of Glory around’ judges, to prevent people from making judges ‘contemptible in the eyes of the Public’.6 He explained that the king delegates his authority to judges, and to question ‘the Justice of the Judges’ was to question ‘the King’s Justice’. It was ‘an Impeachment of [the King’s] wisdom and goodness in the choice of his judges’. Its result was to ‘[excite] in the Minds of the People a general Dissatisfaction with all Judicial Determinations’, and to ‘[indispose] their minds to obey them’.7 If the authority of courts were ‘to be trampled upon by Pamphleteers and News- writers’, and if people were told that the power given to judges for their protection was being ‘prostituted to their destruction’, the court would lose all its authority, thought Wilmot.8 ‘Would it not, must it not, necessarily bring this Court into Contempt,’ he wrote, ‘to say, the Judges at their Chambers make Orders or Rules corruptly?’9 A court’s power to punish those who committed contempt by scandalizing the court was to be exercised summarily, i.e., without going through a formal trial.10 For over a hundred years thereafter, scandalizing the court was almost never used in England. An interesting case came before the Privy Council around 1893 from the Bahama Islands.11 The case arose out of a letter written by someone under the pseudonym ‘Colonist’, published in a newspaper called the Nassau Guardian. The letter commented on the conduct of the chief justice of the Bahama Islands, Roger D. Yelverton. In April 1892, Yelverton had decided a case. The party who won the case then offered a gift of pineapples to him in gratitude. Yelverton refused to accept the gift, and said, in open court, ‘[i]t is wrong to accept any present whatever from any one who is, or who has recently been, or who is known as likely to be, a suitor in the Court.’ Yelverton later wrote two letters to the editor of the Nassau Guardian commenting on certain measures taken by the colonial administration for improving the health of the colony, where a fever seemed to have taken hold. It was against this backdrop that the letter of the ‘Colonist’ was published in the Nassau Guardian on 14 May 1892. The letter was sarcastic, humorous and irreverent. It commented on the high salary which Yelverton was drawing as chief justice of the Bahama Islands. It said: Mr Yelverton has come to the rescue . . . What is the good of increasing the salary of the Chief Justice if his mind is to be disquieted and alarmed through fear of fever? . . . we should do all that lies in our power to preserve the health and life of this luminary of the English bar . . . [I]n Mr Yelverton we have one who surpasses our highest expectations of the kind of man who would come to pocket our £1000 a year.

The letter made hilarious allusions to the incident involving the pineapples:

Search the annals of the bench of every country, of every age, and I defy creation to produce a more noble, more self-denying, and more virtuous exhibition of a tender conscience than was afforded by our Chief Justice in refusing to accept a gift of pineapples! Some cynic has said, ‘Every man has his price.’ It is assuring to this community to know that the ‘fount of justice’ in this colony is above the price of even one dozen pineapples. Mr Yelverton’s noble words of scornful renunciation should be graven in letters of gold upon the walls of every magisterial office in this colony; then, and not till then, will sweet potatoes, pigeon peas, &c., cease to exert their baneful influence on the administration of justice in this colony.

The letter also sarcastically commented on the fact that Yelverton took more days off than was permissible under the rules:

[A] great many people of this city are mean enough to say that . . . [the] law allows six weeks’ leave of absence, and Mr Yelverton should be subservient to that law, if to no other. I say to these fellows of the baser sort, ‘Now, just suppose we had a fool for Chief Justice, would ten months and two weeks’ sticking to his office make him worth a thousand a year?’

Chief Justice Yelverton was not amused. He summoned the editor of the Nassau Guardian, Alfred E. Moseley, and ordered him to reveal the name of the ‘Colonist’. When Moseley refused, Yelverton sentenced him to imprisonment for an indefinite period of time, for so long as the chief justice pleased. Moseley was also ordered to pay a fine of £65, along with costs. The Privy Council found, however, that though the letter could have formed the basis of a libel action, it did not amount to contempt, as it was not ‘calculated to obstruct or interfere with the course of justice or the due administration of the law’. During arguments, Lord Justice Bowen said that the ‘essence of the offence’ of contempt, was that it is ‘against the public not the judge, an obstruction to public justice’. Thus, in 1899, in McLeod v. St Aubyn,12 the Privy Council remarked that scandalizing the court had become ‘obsolete in this country’, i.e., England. The case arose out of an appeal filed from the Supreme Court of St Vincent in the West Indies. The appellant in this case was a correspondent in St Vincent for a weekly newspaper called the Federalist which was printed out of Grenada. In March 1897, the Federalist carried a letter and an article which adversely commented on the acting chief justice of St Vincent. The newspaper said that he was not able to maintain ‘the noble traditions of the British bench’, that he would ‘nod and wink to counsel engaged in cases’, that prior to going there he used to be ‘a briefless barrister [in England], unendowed with much brain who religiously attended with his empty bag at the several Courts of London in the forlorn hope of picking up a case’. The appellant, however, was not the printer, publisher or author of the letter or article. He was merely a correspondent for the newspaper, and he had innocently handed over the newspaper to somebody in St Vincent. The question was whether this amounted to contempt of court. Speaking for the Council, Lord Morris said that the power to punish a person for scandalizing the court was not to be used ‘for the vindication of the judge as a person’, that it was ‘a weapon to be used sparingly, and always with reference to the interests of the administration of justice’.13 As a summary process,14 it was to be exercised ‘only from a sense of duty and under the pressure of public necessity’. The court found that scandalizing the court as a category of contempt was virtually non-existent in England, and that it might be useful only in ‘small colonies, consisting principally of coloured populations’.15 It was held that in merely handing over the newspaper to somebody in St Vincent, the appellant was not guilty of committing any contempt of court. The appeal was accordingly allowed. However, only a year later, in 1900, in Regina v. Gray,16 a person was punished in England for scandalizing the court, thus disproving the Privy Council’s belief that such contempts had become obsolete there. The case arose against the backdrop of an obscenity trial, at which the presiding judge, Justice Darling, warned members of the press not to report all the evidence which might be recorded during the trial. Annoyed by this instruction, a man called Howard Alexander Gray published an article called ‘A Defender of Decency’ in a newspaper, the Birmingham Daily Argus. In it, Gray called Justice Darling an ‘impudent little man in horsehair’ and ‘a microcosm of conceit and empty-headedness’. ‘One of Mr Justice Darling’s biographers states that “an eccentric relative left him much money”’, wrote Gray, adding, ‘That misguided testator spoiled a successful bus conductor.’17 Gray concluded with the following words:

No newspaper can exist except upon its merits, a condition from which the bench, happily for Mr Justice Darling, is exempt. Mr Justice Darling would do well to master the duties of his own profession before undertaking regulation of another.18

In court, Gray wrote an affidavit profusely apologizing for his article, saying that he had used language which was ‘intemperate, improper, ungentlemanly, and void of the respect due to his Lordship’s person and office’. Speaking for the court, Lord Chief Justice Russell of Killowen said that the article in question was not a criticism but a ‘scurrilous abuse of a judge as a judge’.19 Taking into account Gray’s apology, in the absence of which he would have been sentenced to imprisonment for a long time, the court fined him £100 and imposed on him a further sum of £25 as costs. The last successful prosecutions for scandalizing the court in England took place in 1930 and 1931.20 Most of the reported cases thereafter concerned appeals to the Privy Council from decisions in the colonies. For example, in Ambard v. Attorney General,21 the Privy Council was considering an appeal filed from the Supreme Court of Trinidad and Tobago. The appellant was the editor and proprietor of the Port of Spain Gazette. This newspaper had carried an article, in 1934, called ‘The Human Element’, which pointed out how sentencing in two criminal cases at the time was inconsistent. The court held that to criticize a court, ‘in good faith’, did not amount to contempt, provided that the speaker abstained ‘from imputing improper motives to those taking part in the administration of justice’. Allowing the appeal and holding that there was no contempt in this case, Lord Atkin wrote the famous words: ‘Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.’ In Regina v Commissioner of Police of the Metropolis, Ex Parte Blackburn (No. 2),22 the court of appeal for the first time considered a case involving the question of scandalizing the court. In 1968, Quintin Hogg, a member of Parliament who later went on to become Lord Hailsham of St Marylebone, Lord Chancellor,23 wrote an article in the weekly periodical, Punch, called ‘The Gaming Muddle’. In it, he criticized a judgment of the Queen’s Bench Divisional Court, though he wrongly attributed it to the court of appeal. The article was not respectful in its tone and criticism. In it, he said that ‘blindness . . . sometimes descends on the best of judges’, that English court decisions had been ‘unrealistic, contradictory and . . . erroneous’, which had rendered legislation ‘unworkable’. Deciding the case in Hogg’s favour, Lord Denning, one of the best- known judges in the common law world, wrote the famous words:

Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself.24 Denning, however, said that critics of courts must remember that ‘from the nature of our office, we cannot reply to their criticisms’, that judges ‘cannot enter into public controversy’, ‘[s]till less into political controversy’, and that judges must ‘rely on [their] conduct itself to be its own vindication’. After this case, even trenchant criticisms of courts and judges were held, in England, not to constitute contempt in the form of scandalizing the court. Though Quintin Hogg’s criticism was found to be ‘rumbustious’, ‘wide of the mark’, and ‘expressed in . . . bad taste’, it was held that he had not committed contempt of court.

Scandalizing Abolished in England

In 1974, the Phillimore Committee recommended that the offence of scandalizing the court be substantially whittled down, to include merely the ‘publication . . . of matter imputing improper or corrupt judicial conduct with the intention of impairing confidence in the administration of justice’.25 However, even then, the committee said that ‘[m]ost attacks . . . are best ignored’, because they ‘usually come from disappointed litigants or their friends’, and to ‘take proceedings in respect of them would merely give them greater publicity, and a platform from which the person concerned could air his views further’.26 In 2012, the Law Commission of the United Kingdom recommended the abolition of the offence of scandalizing the court. In a consultation paper which is worth reading in its entirety,27 the Law Commission noted that the offence of scandalizing the court had become almost entirely obsolete. The last known instance of it being invoked was in March 2012, when the attorney general of Northern Ireland obtained leave to prosecute a member of Parliament, Peter Hain, for what he had said about Justice Girvan in his book, Outside In.28 The prosecution in that case was dropped when Hain clarified his comments. It was noted that the relaxed approach in England was exemplified by the fact that when the Daily Mirror carried upside- down images of three law lords, under the caption ‘You Fools!’, after the Spycatcher case,29 no action was taken against them for contempt. The Law Commission considered a Hong Kong case where the contemnor had described some judges as ‘dogs and bitches’, ‘scumbags’, ‘public enemy of freedom of the press and a public calamity to the six million citizens of Hong Kong’, ‘British white ghosts’ and ‘pigs’, and threatened to ‘wipe [them] all out’. It also considered a South Australian case, in which a radio presenter told his listeners to ‘smash the judge’s face in’. However, it was found that such comments, ‘given the general habits of British journalism’, were unlikely to be made or to be taken seriously, and if made, they could be covered by other offences (e.g., disrupting public order). The Law Commission also quoted Lord Justice Elias and found that though there was a lot of abusive material directed against English judges, particularly online, much of it was ‘too silly’ to be taken seriously. Interestingly, the Law Commission found that Denning’s request to critics of courts in Ex Parte Blackburn, to bear in mind that judges could not respond to their criticisms, was no longer valid. In 1955, Lord Chancellor Kilmuir had written a letter to the BBC rejecting its request to allow judges to speak on a radio show on the innocuous topic of past eminent judges.30 Kilmuir’s letter, which discouraged judges from speaking with the media, encapsulated what came to be known as the ‘Kilmuir Rules’. However, these rules were relaxed in 1987. Thereafter, in 1993, Lord Chancellor Mackay of Clashfern in the Hamlyn Lectures that year said that judges ought to decide for themselves how to communicate with the public.31 Following this, in 1996, Channel 4 issued an apology to Justice Garland for something they had carried about him, once he wrote a letter to the New Law Journal. The Law Commission also noted that judges had successfully used civil libel laws instead of the offence of scandalizing the court. In 1992, Justice Popplewell succeeded in a defamation suit which he filed against the Today newspaper which had insinuated that he had fallen asleep during a murder trial. Consequently, under the Crime and Courts Act, 2013,32 the offence of scandalizing the court was abolished as a form of contempt of court under the common law of England and Wales. The US Rejects English ‘Foolishness’

Contempt in the form of scandalizing the court does not exist under US constitutional law. In Bridges v. California,33 Justice Black held that ‘enforced silence, however limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion, and contempt much more than it would enhance respect.’ Even Justice Frankfurter, in his dissent in this case, called the doctrine of ‘scandalizing the court’ or ‘bringing it into general disrepute’, an example of ‘foolishness’ which ‘has long since been disavowed in England’ and which ‘has never found lodgement’ in the US. Likewise, in Craig v. Harney,34 Justice Douglas found that though the newspaper articles in question used ‘strong’ and ‘intemperate’ language and resorted to ‘unfair criticism’, a judge was not permitted to hold in contempt one ‘who ventures to publish anything that tends to make him unpopular or to belittle him’. It was held that the ‘vehemence of the language used’ was not the sole measure for determining whether there had been a contempt of court. There had to be an imminent, not merely likely, threat to the administration of justice. It was held that the law of contempt was ‘not made for the protection of judges who may be sensitive to the winds of public opinion’. ‘Judges,’ said Justice Douglas famously, ‘are supposed to be men of fortitude, able to thrive in a hardy climate.’ In his concurring opinion, Justice Murphy wrote that ‘[s]ilence and a steady devotion to duty are the best answers to irresponsible criticism’.

Scandalizing the Colonial Court

Lack of Discrimination We have seen that the law of sedition in British India was very different from its counterpart in England. It was designed in a manner so as to discriminate against Indians. By contrast, however, we have also seen that the law of obscenity in British India was remarkably similar to the law in England—it was the Hicklin test which was employed both in England and colonial India to determine whether something was obscene. The reason for this double standard was obvious. Sedition, on the one hand, was subversive and threatened the foundations of the state. Obscenity, on the other hand, was not a political offence, and there was no reason for the criminal law against obscenity to be particularly harsh in India. The offence of scandalizing the court came closer to sedition than it did to obscenity. To scandalize a court, after all, was to undermine the authority and power of the court, one of the essential coercive organs of the colonial state. Even so, however, the doctrine of scandalizing the court in colonial India appeared to be administered in a manner which was remarkably similar to its counterpart in England. Cases like Roach, Aubyn, Gray, and Ambard were repeatedly cited and followed by colonial judges. Many cases resulted in outcomes that would not have been considered discriminatory against India or Indians. For example, one of the first reported judgments on scandalizing the court was delivered by the Calcutta High Court around 1869, in William Tayler’s case.35 An English lawyer, William Tayler, had filed a suit against his Indian client to recover his unpaid fees in a case. In the suit, Justice Dwarkanath Mitter, who was only the second Indian judge to be elevated to the Calcutta High Court, said that Tayler had perpetrated a fraud against his Indian client. Outraged by this, Tayler wrote several letters to the editor of a newspaper, the Englishman. In these, he spoke of Mitter in harsh terms. He said that Mitter had cast an ‘unmeasured imputation’ against him ‘without one tittle of evidence to support it’, an imputation which was ‘wholly untrue’, ‘manifestly absurd’, a ‘wanton insult and unfounded aspersion’. He said that if Mitter were a district judge, he would surely have been suspended, and that ‘elevation to the Bench’ did not mean ‘total exemption from responsibility’. Tayler was hauled up for contempt before the Calcutta High Court. The case was decided by Chief Justice Barnes Peacock, who was a friend of Tayler. In fact, Peacock opened his judgment by regretting that he had to decide this case involving a person with whom ‘in times gone by I have held social and friendly intercourse’. ‘These letters are not fair criticisms’, said Peacock, ‘they are slanderous effusions . . . as regards the Judge’ of a disappointed litigant who has lost his case. Peacock praised Mitter in his judgment. ‘I knew him before he was raised to the Bench’, he wrote, and ‘I have sat with him frequently as a colleague’. Peacock continued, ‘he is a man of ability and learning, very unassuming, yet high-minded, of a gentle, kind, and amicable disposition, independent and always ready to maintain his opinion so long as he conceives it to be right, and equally ready to abandon it if convinced that it is wrong.’ Tayler was sentenced to one month in civil prison (he was eventually let off when he tendered a formal apology) and a fine of Rs 500. Quoting Mansfield, Peacock concluded his judgment by saying:

I wish popularity, but it is that popularity which follows, not that which is run after. It is that popularity which sooner or later never fails to do justice to the pursuit of noble ends by noble means. I will not do that which my conscience tells me is wrong, to gain the daily praise of all the papers which issue from the press. I will not avoid doing that which I think right, though it should draw upon me the whole artillery of libels, all that falsehood and malice can invent or credulity can swallow.

It is therefore very interesting that one of the first, if not the very first, reported judgments on scandalizing the court in colonial India involved a British judge who convicted a Briton for having besmirched the reputation of his Indian colleague. Several decades later, Gandhi was involved in a case of contempt of court before the Bombay High Court.36 In April 1919, the district judge of Ahmedabad, B.C. Kennedy, had written a letter to the registrar of the Bombay High Court, bringing to the latter’s attention the fact that some of the lawyers in Ahmedabad had taken a ‘Satyagraha pledge’, which was apparently contrary to their duties as lawyers. Consequently, notices were issued against those lawyers for contempt of court. Gandhi took this up in his newspaper, Young India. In an August 1919 issue, Gandhi wrote that the district judge’s conduct was unpardonable, that he had prejudged the issue, and that judges in British India were generally ‘fanning the fire of Bolshevism’ (i.e., they were becoming instruments for propagating a ‘spirit of lawlessness accompanied with violence’). Gandhi’s comments in Young India were found by Justice Amberson Marten to be ‘of a particularly intemperate and reprehensible character’ and he held that they constituted ‘scurrilous abuse’ of a judge. Though Gandhi was removed as a barrister of the high court as a consequence of this case, which resulted in his disbarment from the Inns of Court in England,37 he was neither sentenced to imprisonment nor ordered to pay a fine. One of the judges who heard this case, Maurice Hayward, later wrote in an unpublished draft of his autobiography, that this case had attracted the attention of the Governor of Bombay, ‘who feared that the commitment of Gandhi to prison might result in rioting’.38 The Governor wrote a letter to the judges who were hearing the case, asking them what they intended to do in the matter, ‘much to the indignation’ of Justice Marten. ‘But we had no intention of committing [Gandhi] to prison’, wrote Hayward in his autobiography. Interestingly, in Chhaganlal Ishwardas Shah v. Emperor,39 the Bombay High Court was considering the question of whether improper dress in court can constitute contempt of court. In this case, an assessor (i.e., a member of a jury in the mofussil) had appeared at a sessions court in Nadiad dressed in a ‘paheran’, cap and scarf. The sessions judge fined him Rs 3 for being improperly dressed and for not wearing a coat. Disagreeing with the sessions judge, Chief Justice Beaumont of the Bombay High Court wrote, ‘[w]ell, that is rather a matter of taste.’ Having seen what a paheran looked like, Beaumont thought that ‘it looks better without a coat, than with one.’ The court took into account the fact that there were no rules regarding what dress was to be worn by assessors and the fact that the assessor had stated to the court that the dress he had worn was ‘his best dress’, one which he ‘wore on ceremonial occasions’, and which he had worn as an assessor in the past. The court found that his intention was ‘to insure his own comfort, [not] to insult the Court’. Around 1938, Chief Justice Beaumont of the Bombay High Court wrote one of the most liberal judgments on scandalizing the court in colonial India. This is interesting because Beaumont was not a particularly popular or pro-Indian judge. It was partly on account of his efforts that the Bombay High Court lost out on getting an Indian chief justice during the colonial period.40 However, in Government Pleader v. Tulsidas Jadhav,41 Beaumont cited Gray, Aubyn and Ambard. He said that ‘the degree of confidence reposed in the judiciary’ would depend ‘on the character of judicial work’, that ‘confidence cannot be for long artificially engendered by the simple process of stifling criticism.’ He found that it had been ‘laid down many times and by the highest tribunals that Judges are not immune from criticism’, and in cases involving scandalizing the court, the court was, ‘in effect both prosecutor and Judge’, in which the contemnor was ‘deprived of the ordinary methods of trial’. For these reasons, Beaumont believed that the power of punishing contempts for scandalizing the court was to be ‘sparingly used’, only when attacks were made imputing ‘base or improper motives’ to a judge. In Debi Prasad Sharma v. Emperor,42 the Privy Council was considering an article which had been published in the Hindustan Times which said that the chief justice of Allahabad, Sir Iqbal Ahmad, had asked all judicial officers to ‘raise subscriptions for the war funds’. This was a very serious allegation, because it would mean that judges in the subordinate judiciary in the United Provinces would have had to ask litigants—those who depended on the good humour of the judges—for financial contributions to the government, in aid of the efforts in the Second World War. It turned out that this was absolutely false—the chief justice had not directed judges to do anything of the kind. However, speaking for the Committee, Justice Atkin took a fairly liberal view of the matter, saying that ‘judicial personages can afford not to be too sensitive’. If the chief justice had simply issued a public statement denying the article, he said, that would have done the trick. Judges, said Atkin, always had the option of filing a suit for defamation.

Improper Motives In case after case, courts in British India held that it amounted to scandalizing the court when a person imputed improper motives to a judge, e.g., an imputation that a judge was biased or dishonest,43 or that he had made up his mind without considering both sides.44 This was not very far from the comparable English law at the time. One of the first reported judgments of the Bombay High Court on this question concerned N.C. Kelkar,45 a close associate of Tilak, and editor and publisher of Tilak’s English language newspaper, the Mahratta. We have seen that Tilak himself was convicted of sedition in 1908 and sentenced to an enormously hefty sentence of transportation by Justice Davar of the Bombay High Court. Following the decision, an article was written in a July 1908 issue of the Mahratta. The article suggested that Tilak’s conviction had been secured by the government with Davar’s collusion. It was hinted, for instance, that Davar, for some reason, had thought it important for Tilak’s trial to conclude the day before the Indian budget debate took place in Britain’s Parliament. For this reason, Davar allowed only half-an-hour for the lunch break, offered ‘significant hints’ to the advocate general, and adopted ‘unusual haste’ in closing the proceedings. It was alleged that Davar’s charge to the jury was incredibly one-sided and unfair. The article referred to Davar as ‘a medical quack in a red robe, as an enemy of the accused, privileged to sit upon the Bench, as an impudent glow-worm holding his torch to the Sun’. Citing Gray, Chief Justice Basil Scott in his judgment said that the article had ‘[overstepped] the bounds of fair criticism’, that it had ‘[attacked] the independence and honesty of the Judge without any justification’ and ‘[indulged] in scurrilous abuse of him’ in his capacity as a judge. As Kelkar refused to apologize, he was fined Rs 1000, ordered to pay costs of Rs 200, and sentenced to imprisonment for fourteen days, a sentence which was to continue until the fine and costs were paid and an apology tendered to the court. Once again, one of the first scandalizing the court cases in the Bombay High Court presented an interesting image of race relations in colonial India. An Indian editor had denounced an Indian judge for conducting the trial of an Indian nationalist leader in a biased manner. A British chief justice then came to his Indian colleague’s defence, and sentenced the Indian editor for contempt. In Tarit Kanti Biswas’s case,46 the Calcutta High Court was assessing two articles which had appeared in the Amrita Bazar Patrika in May 1917. The articles hinted that a litigant had succeeded in having an Indian judge, Justice Asutosh Mookerjee, removed from the appellate Bench of the Calcutta High Court, because Mookerjee had decided a case against the litigant. Citing Gray, Chief Justice Sanderson found that the article was ‘calculated not only to destroy confidence in the [court] but also to undermine and impair [its] authority’. The contemnor was ordered to pay a fine of Rs 300 and to be lodged on the civil side of the Presidency jail until the fine was paid. In another Bombay case, Justice Lallubhai Shah, an Indian judge, found Marmaduke Pickthall,47 a white Englishman who was also a Muslim and a translator of the Quran, guilty of contempt of court. Pickthall was the editor of a popular newspaper called the Bombay Chronicle. In April 1922, the newspaper carried an article which insinuated that judges had been ‘influenced by some outside agency’ in deciding a case, that they were biased. The article hinted that certain prisoners had been convicted and singled out for exemplary punishment in a case decided by the Bombay High Court because they were associated with the Khilafat movement. The fact that the article attributed ‘improper motives and political bias’ to judges, that it attributed ‘judicial dishonesty to the Judges’, was fatal. Shah found that it was necessary to look at the natural and probable effect of the article, and not to the ‘avowed intention of the editor’. However, Shah also believed that ‘any unfair criticism of Courts or Judges’ did not constitute a serious interference with the administration of justice requiring punishment. The ‘confidence of the public in Courts rests mainly upon the purity and correctness of their pronouncements’, he held, and such confidence would not be ‘lightly shaken by a mistaken or unfair criticism of this kind.’ Pickthall had also apologized sincerely. Even so, since ‘the tendency of such criticism [was] to undermine the dignity of the Court and in the end to embarrass the administration of justice’, Pickthall was sentenced to pay a fine of Rs 200. In Emperor v. Balkrishna Kulkarni,48 the Bombay High Court was considering an article which said that there was a ‘thick rumour’ that on the day that certain accused persons were arrested, ‘the trying Magistrate ran up the staircase of the Collector’s Office and . . . some whisper took place between them’. The article also said that ‘Police Sahebs sit in chairs on the Magistrate’s dais and wink [at each other].’ In other words, the article alleged that the executive and judiciary were colluding to convict prisoners. It was held that the article constituted ‘a very gross contempt of court’. Citing Gray, it was held that such comments ‘tend to deprive the Court of the power of doing that which is the end for which it exists, to administer justice duly, impartially, and with reference solely to the facts brought before it’. Further, it was also held that even if such comments did not undermine the power of the courts, ‘any remarks reflecting on the character or impartiality of the Magistrate in the course of the trial must necessarily be contempt’. However, the contemnor in this case was let off with only a warning. Similarly, in Abdul Hasan Jauhar’s case,49 the Allahabad High Court was considering a pamphlet which was published in February 1926. In it, the writer imagined a scene in which judges of the high court were brought before god in order to explain their conduct in a case. The subordinate judge who had decided the case prior to the high court was ‘severely handled’ in the pamphlet, and ‘accused of corrupt or unjudicial conduct’. The introduction to the pamphlet spoke of ‘the rate and market value of Justice and Equity in our Provinces’. The article conveyed the impression that only the rich could afford justice in British India whereas the poor could not. The court found that it had the power to punish those who engaged in this kind of speech ‘on public grounds’, that this was ‘essential for maintaining the confidence of the public in the independence of the judiciary’, though not for ‘the purpose of preventing or restricting legitimate criticisms upon its decisions on questions of principle or upon its methods of conducting public business’. The contemnor was sentenced to simple imprisonment for six months, and ordered to pay a fine of Rs 150 as costs to the government, or to serve a further six weeks in prison in default of the fine. In the 1920s, the Lahore High Court decided an interesting case involving the newspaper Muslim Outlook.50 The newspaper strongly criticized Justice Dalip Singh of the Lahore High Court for delivering his judgment in the Rangila Rasul case. In 1924, a pamphlet called Rangila Rasul had been published in Lahore which criticized the Prophet Mohammed. The publisher of the pamphlet was prosecuted under Section 153A of the Indian Penal Code, for promoting enmity between Hindus and Muslims. Justice Dalip Singh of the Lahore High Court found him not guilty—a judgment which later gave rise to an amendment in the Indian Penal Code itself. Outraged by the judgment, the Muslim Outlook carried an article in June 1927, which called on Justice Dalip Singh to resign as a judge. The article said that an enquiry was required to be held as to the circumstances in which the judgment was written, ‘[because] there is in the present judgment a bona fide apprehension that there must have been an extraordinary cause for its aberration which is a public duty to expose’. The court found that as the article called for an enquiry into the circumstances in which the judgment was written, the imputation was that the judge’s motives were suspect. The editor, printer and publisher were convicted. In Tushar Kanti Ghosh’s case,51 the Calcutta High Court was considering an article in the Amrita Bazar Patrika published in 1935. The article said that it was ‘so unfortunate and regrettable that at the present day the Chief Justice and the Judges find a peculiar delight in hobnobbing with the Executive, with the result that the judiciary is robbed of its independence which at one time attracted the admiration of the whole country’. The court found that the article could undermine ‘the confidence of the whole community’ in the administration of justice, by suggesting that judges were leaning towards the executive. The fact that the article commented on judicial behaviour outside court was found to be immaterial. The editor was sentenced to three months’, and the printer and publisher to one month’s, simple imprisonment. Justice Mukerji, however, wrote a dissent, one of the few, if not only, on scandalizing the court in colonial India. Mukerji said that it was necessary to examine the ‘circumstances of the case’ in order to see whether there really was any ‘tendency in the offending publication to obstruct the ordinary course of justice or prejudice the trial’. He found that ‘general remarks impugning the independence of a Court’ only interfered with or obstructed the administration of justice ‘indirectly and remotely and in an ideal sense’, whereas the offending publication was required to have some connection with an actual case, pending or disposed of,52 in order to constitute contempt.

Some Colonial Difference However, as in sedition cases, in some cases, colonial judges assumed that Indians who read or were exposed to newspapers were not as intelligent as their British counterparts, and that they would be more gullible and more likely to believe what was contained in newspapers. It was therefore more necessary, said these judges, to target speech which scandalized the court. For instance, Justice Crump in Pickthall53 found that in India, ‘more importance is attached to the printed word than it perhaps at times deserves’, which is why it would be ‘difficult for the average reader to read the language used [in the offending article] without conceiving grave doubts as to the integrity and impartiality of the Judges’. Justice Marten, in Satyabodha Adabaddi’s case,54 found that though the newspaper in question was ‘a small local newspaper with a daily circulation of some couple of hundreds’ only, its editor would have to be dealt with severely for scandalizing the court. This was because, unlike ‘those living in a large city like Bombay amongst a large number of educated people of all communities’ who would have smiled and shrugged off ‘attacks of ignorant or semi-literate people in up-country districts’, such attacks had a serious impact in the mofussils or districts. In Jauhar,55 the Allahabad High Court decided to deal with the printer more strictly than usual for similar reasons. Ordinarily, a printer was not liable to serious punishment for scandalizing the court when he was shown not to have understood the article or joined in a deliberate attack on the judiciary. However, it was held that ‘in a country in which the mass of the population is illiterate,’ a printer who did not take care to acquaint himself with the nature of the matter which he printed was ‘a source of grave public danger’, because to ‘uneducated and illiterate’ people, things which appeared in print carried ‘greater weight’ than otherwise. Such people ‘do not as a rule’, said the court, ‘possess the balance of judgement, which education confers, to be able to distinguish between what may be merely idle and foolish and what is deliberately intended to misrepresent the truth’. Since the contents of newspapers are conveyed to illiterate persons by word of mouth, the court found that corrections which appeared in the newspapers were not as easily conveyed to them. Accordingly, the printer was sentenced to simple imprisonment for one week and ordered to pay costs of Rs 50 to the government (or to undergo one month’s imprisonment in default of the fine).

Allegations of Incompetence In some cases, colonial courts found that even an allegation that a judge was incompetent amounted to contempt in the form of scandalizing the court. For example, in Emperor v. Murli Manohar,56 five judges of the Patna High Court were assessing articles in a newspaper which criticized the conduct of the chief justice in a particular case. The articles had said that though a lawyer had presented a ‘long and learned argument’ in the case, the chief justice had not ‘given even a cursory consideration’ to it. The chief justice had disposed of the whole case in a single sentence, the articles said, and he had not observed the ‘elementary principles of criminal jurisprudence’ involving the presumption of innocence of a person accused of a crime. If the same judgment had been pronounced by a junior magistrate, the high court would have censured him, said the articles. Citing Gray, the court held that the articles contained allegations that the chief justice was unfit for his office and ‘undoubtedly (tended) to debase his authority’. Though judges were to ‘neither fear nor resent public criticism’, the articles were found by the court as being ‘undoubtedly calculated to lower the prestige of the High Court’ and to impair the chief justice’s dignity as a judge and chief justice. The contemnor was ordered to pay a fine of Rs 500 and in default to be imprisoned until the fine was paid. In the case of re: An Advocate of Allahabad,57 the Allahabad High Court was concerned with an article published in the Leader, a newspaper, in June 1934. It was written by an advocate, Kapil Deo Malaviya. In it, Malaviya wrote about how ‘a comparatively undeserving lawyer [was] raised to the Bench, which [was] a fairly frequent occurrence in our judicial history’. Citing cases like Roach and Gray, the court found that the expression ‘a comparatively undeserving lawyer’ was ‘a particularly offensive one’. It meant that the lawyer in question lacked ‘capacity or . . . character or . . . both’. To say that such lawyers were frequently elevated to the Bench was ‘clearly to defame the High Court and to injure its prestige in such a way as to shake the public confidence in its ability to administer justice’. The article cast, according to the court, an ‘unwarranted and defamatory aspersion on the character and ability of a number of Judges of the High Court who [had] recently been elevated to the Bench’. The fact that Malaviya did not tender an apology irked the court, which sentenced him to pay a cumulative fine of Rs 250, and in default, to undergo one month’s simple imprisonment. However, these cases cannot be considered as having been very far from the English law on scandalizing the court at the time. After all, we have seen that it was only later that even ‘trenchant’ criticisms of the court fell outside the ambit of such contempts. In the case of re: A firm of solicitors,58 Chief Justice Beaumont of the Bombay High Court was concerned with a letter which was written by one Bombay solicitor’s firm to another. The letter commented on Beaumont’s conduct in an ongoing case. It said that he had acted ‘indiscreetly and without any evidence in support’ of his findings. It said that he had ‘[prejudged] the issue that [their] client had been guilty of adultery’. On reading the letter, Beaumont found that though it contained ‘a series of insulting references’ to his conduct as a judge, ‘[m]ere rudeness’ was not enough to constitute contempt. However, the letter did contain an allegation that Beaumont had prejudged a case before any evidence had been led by either side. This, Beaumont found, amounted to a suggestion that he had ‘some outside knowledge’ about the case. ‘In the course of about forty years’ practice in the law,’ he said, ‘I must have read many thousands of solicitors’ letters, and while some solicitors insulted their opponents, I do not remember to have ever before come across a solicitor who thought it necessary to insult the Judge.’ ‘When a letter from one solicitor to another alleges that a judge was too stupid to appreciate one point, and too biased to do justice to another, the inevitable result would be that public confidence in the judiciary would be shaken,’ he said. Beaumont clarified, however, that contempt proceedings for scandalizing the court were not meant to be initiated ‘in order to relieve a particular Judge’s feelings’. At the end, since the lawyer in question offered ‘a very frank and unqualified apology’, a fine of Rs 1000 was imposed on him.

Scandalizing the Supreme Court

In this section, we will see that the law on scandalizing the court remained much the same in independent India as it had been in colonial India. It is therefore quite clear that the enactment of the Constitution in 1950, despite the right to free speech and expression in Article 19(1)(a), made virtually no difference to the ability of Indians to criticize courts and judges. There was no major noticeable difference between what was considered scandalizing the court in colonial India and what was considered to be so thereafter. This therefore raises the question: did the enactment of the Constitution in 1950 make any substantial or significant difference to the right to free speech which Indians enjoyed prior thereto? The Supreme Court of India has repeatedly held that it constitutes contempt in the form of scandalizing the court to impute motives to courts or judges, to say that a judge or court is dishonest or corrupt, biased or prejudiced. Such allegations, which have usually been made by dissatisfied litigants who lost cases, unhappy advocates or political leaders, need not be very detailed or specific. They need not be targeted against any particular judge or court. In 1952, the Supreme Court in re: editor, printer and publisher of the ‘Times of India’59 was considering an article entitled ‘A Disturbing Decision’ which had appeared in the Times of India in October that year. The article criticized how the Supreme Court had recently brought an end to the ‘dual system’ at the Calcutta and Bombay High Courts—the system of division of labour between attorneys and advocates, akin to the English division of the legal profession between solicitors and barristers. The article hinted that the Supreme Court had ‘[strained] the law’, and that the court had applied its mind to ‘extraneous considerations’. The court held that the article attributed ‘improper motives to the judges’ by suggesting that extraneous considerations had a role to play in the Supreme Court’s judgment. This, said the court, was a transgression of the limits of fair and bona fide criticism. It was found that the article had a ‘clear tendency’ to affect the ‘dignity and prestige’ of the Supreme Court, because ‘if an impression is created in the minds of the public’ that the court’s judges act on extraneous considerations, then ‘the confidence of the whole community in the administration of justice is bound to be undermined’.60 However, as the contemnors had furnished an unconditional apology, the contempt proceedings were dropped. In E.M. Sankaran Namboodiripad v. T. Narayanan Nambiar,61 the Supreme Court was considering statements made by the former chief minister of Kerala, E.M. Sankaran Namboodiripad, at a press conference in Trivandrum in November 1967. Namboodiripad had said that Marx and Engels considered the judiciary to be instruments of oppression, and that judges in India were no different. He accused Indian judges of being ‘guided and dominated by class hatred, class interests and class prejudices’, and said that Indian judges would decide a case in favour of ‘a well- dressed, pot-bellied, rich man’ against ‘a poor, ill-dressed and illiterate person’. He said that the judiciary was ‘weighted against workers, peasants and other sections of the working classes’ and that the law and judiciary served ‘the exploiting classes’. He also said that the judiciary, though separated from the executive, was ‘subject to [its] influence and pressure’. He suggested that judges should be elected, not nominated, to office. He concluded by saying, ‘[t]he High Court and the Supreme Court can haul me up, if they want.’ Namboodiripad’s speech was reported in the press. The Kerala High Court sentenced him for contempt and imposed a fine of Rs 1000 on him. On appeal, Chief Justice Hidayatullah of the Supreme Court held that contempt of court could be committed not merely ‘in respect of a [single judge] or a single court’, but also ‘in respect of the whole of the judiciary or judicial system’.62 It was held that while ‘[j]udges do not consciously take a view against [their] conscience or their oaths’, Namboodiripad had suggested that they do, which made him ‘guilty of a great calumny’. The judgment of the Kerala High Court was upheld, but the fine was reduced to Rs 50. The Supreme Court perhaps went a little too far in this case, in finding a speech contemptuous which contained no particulars of bias, and in which the speaker seemed to be making a political point more than anything else. In Perspective Publications v. State of Maharashtra,63 the Supreme Court was considering an article entitled ‘Story of a Loan and Blitz—Thackersey Libel Case’. Justice Tarkunde of the Bombay High Court was deciding a libel case filed by a man called Mr Thackersey against the prominent Bombay tabloid, Blitz. Tarkunde decided the case against Blitz and awarded Thackersey damages of Rs 3 lakh. The article alleged that Tarkunde’s relatives, including his father and two brothers, were partners of a firm which had recently received a loan of Rs 10 lakh from the Bank of India, and that the loan had been approved by Thackersey and one of his relatives, who were directors in the Bank of India. In other words, the article alleged that Justice Tarkunde of the Bombay High Court had delivered judgment in favour of Thackersey as a quid pro quo arrangement in return for the loan in favour of his relatives. The article was not very direct in making this point, but it made insinuations and relied on innuendos. The court held that ‘the obvious implications and insinuations’ in the article ‘immediately create a strong prejudicial impact’ in the minds of the readers ‘about the lack of honesty, integrity and impartiality’ of Justice Tarkunde in deciding the libel suit.64 The court found that this undoubtedly constituted contempt of court. In C.K. Daphtary v. O.P. Gupta,65 the Supreme Court was considering a book which was published by a disgruntled litigant, O.P. Gupta, who had recently lost a case. In it, Gupta attributed motives to the judge who had held against him, Justice J.C. Shah. It said that Shah had delivered ‘a demonstrably dishonest judgment . . . only to feed fat his prejudice and bias’, a judgment which contained ‘total falsehoods’, and which was ‘highly condemnable and derogatory’. Gupta wrote that Justice Shah was ‘in the habit of being influenced by extra-judicial considerations and of victimizing the disliked party through dishonest means’. He wrote that when his counsel was arguing the case, Shah made ‘extremely unreasonable, biased and illegal observations’. ‘Only a dishonest and prejudiced Judge could have done this’, he concluded. Gupta was then seen selling a copy of this book to an advocate in the library of the Supreme Court Bar Association. It was held that ‘[t]his sort of attack in a country like ours has the inevitable effect of undermining the confidence of the public in the Judiciary’.66 The law of contempt, it was noted, was a reasonable restriction on the right to free speech, under Article 19(2) of the Constitution.67 Gupta was sentenced to undergo two months’ simple imprisonment. However, the case of Gobind Ram v. State of Maharashtra,68 stands as an exception in this line of decisions. Gobind Ram was an advocate at the Bombay High Court. He had filed an application in a subordinate court in Bombay, for the transfer of a pending case. In the application, Ram had said that the magistrate before whom the case was pending was ‘on friendly relations’ with the other party and he sometimes ‘(enjoyed) the hospitality’ of that party. The application also said that the magistrate had prejudged the case, that he would not take an impartial and disinterested view. This was held not to amount to contempt of court. The court found that a ‘mere statement that a Magistrate is friendly with a party . . . and enjoys his hospitality or has friendly relations with him’ does not constitute contempt ‘unless there is an imputation of some improper motives’ that might create ‘distrust in the popular mind and impair the confidence of the people in the courts’.69 Though the court found that Ram had not shown a ‘sense of responsibility in making the allegations’,70 he was let off. In Baradakanta v. Orissa High Court,71 the Supreme Court was considering letters written by a subordinate judge to officials like the registrar of the high court and the Governor of the state. The judge who wrote the letters was undergoing a disciplinary inquiry at the hands of the high court. In the letters, the judge attributed mala fides, bias and prejudice to the high court. He wrote that the high court was ‘an engine of oppression’, that it had resorted to ‘subterfuge’ while conducting his inquiry. He wrote that the chief justice had influenced the other judges in his case, and that they had ‘no independent judgment of their own’. He characterized the high court’s order suspending him as ‘mysterious’ and ‘unusual’. He wrote that he would not obey the high court’s order, that the court had prejudged his case. It was held that even though some part of the letters could be considered ‘nothing more than disrespectful fulminations of an angry insubordinate officer’, in charging the judges of the high court, and especially the chief justice, with ‘mala fides, improper motives, bias and prejudice’, the judge had committed contempt of court.72 Scandalizing the court included acts that vilified a judge.73 In P.N. Duda v. P. Shiv Shankar,74 the Supreme Court was considering a speech made by Union law minister, P. Shiv Shankar, who had said that the Supreme Court was biased in favour of economically well-off litigants. In his speech, Shankar had said that the Supreme Court, made up of members of the ‘elite class’, had ‘unconcealed sympathy for the haves, i.e., the Zamindars’, that the court had consequently decided property cases in favour of the landed classes, as a result of which the government’s programme of zamindari abolition had suffered. Likewise, when the privy purses were abolished, said Shankar, the Supreme Court ‘contrary to the whole national upsurge, held in favour of the Maharajas’. ‘Mahadhipatis like Keshavananda and Zamindars like Golaknath evoked a sympathetic [chord] nowhere in the whole country except the Supreme Court of India,’ he said. ‘[B]ank magnates’ got higher compensation in the bank nationalization case, and others like ‘FERA violators, bride burners and a whole horde of reactionaries . . . found their haven in the Supreme Court’, he added. Contrary to the judgment in Namboodiripad, however, the court found that Shankar had not committed contempt, though his speech was, at times, a ‘little intemperate’.75 In C. Ravichandran Iyer v. Justice A.M. Bhattacharjee,76 the Supreme Court was considering events concerning the erstwhile chief justice of the Bombay High Court, Justice A.M. Bhattacharjee. Bhattacharjee was rumoured to have received a sum of $80,000 for a book written by him called Muslim Law and the Constitution, for publication in London. This was far in excess of any amount that would have been paid for a comparable book. Several professional bodies like the Bar Council of Maharashtra and Goa, the Bombay Bar Association and Advocates’ Association of Western India took action such as passing resolutions calling for the resignation of the chief justice of the Bombay High Court. Eventually, Bhattacharjee resigned. However, the Supreme Court was asked to consider whether bar councils and bar associations could pass resolutions calling for the resignation of judges. It was held that since the conduct of a judge could not be discussed in Parliament under Article 121 of the Constitution, by ‘necessary implication, no other forum or fora or platform’ could be used to discuss the conduct of a judge in the discharge of his official duties. Consequently, bar councils and bar associations cannot pass resolutions relating to the conduct of a judge in his official capacity.77 Instead, when a professional body gets wind that a judge has indulged in misconduct, it must ‘gather specific, authentic and acceptable material which would show or tend to show that conduct’. Officers of the body should meet the judge in private or the chief justice of the high court.78 The chief justice of the high court must then independently verify the information after conducting a confidential enquiry. If the chief justice is satisfied that the information is correct, he must place the information before the chief justice of India, who can ‘appropriately deal with the matter’ if he believes the information is true.79 In Hari Singh Nagra v. Kapil Sibal,80 the Supreme Court was considering statements made by a prominent senior advocate, Kapil Sibal, in a souvenir published by Mehfil-e-Wukala, a cultural and literary association of Supreme Court lawyers. Sibal had deprecated the ‘questionable integrity of some of those who are in the judiciary’. He had said that judges ‘need disciplining’, that the judiciary had failed to ‘eradicate the phenomenon of corruption’, that some judges had received ‘monetary benefits for judicial pronouncements, rendering blatantly dishonest judgments’, that some judges had been ‘kowtowing with political personalities and obviously favouring the government . . . thereby losing all sense of objectivity’. The Supreme Court found that this did not amount to contempt in the form of scandalizing the court.81 Sibal’s message, said the court, was an articulation of the ‘concerns of a senior advocate who has [practised] long in this Court who noticed that the public image of the legal community was [at] its nadir’.82 The court also took into account the fact that the message was a general one, that it did not target any ‘particular Judge’, and that the article was merely ‘an expression of opinion about an institutional pattern’.83 However, as we have seen above in cases like Namboodiripad, even general statements made about the judiciary, which do not target any particular judge or court, have been found to be a form of scandalizing the court. It is therefore clear that in this case, the respectability and social standing of Sibal, coupled with the fact that he was a senior member of the legal profession, weighed heavily with the court when it found that no contempt had been committed. In re: Arundhati Roy,84 the Supreme Court held that ‘fair criticism’ would not amount to contempt if made ‘in good faith and in the public interest’. However, in order to determine whether something was said in good faith and the public interest, the court would have to look at ‘the person responsible for [the] comments, his knowledge in the field regarding which the comments are made and the intended purpose sought to be achieved’. In other words, it was only lawyers or legal scholars who could avail of the defence of fair criticism. The court said that ‘[a]ll citizens cannot be permitted to comment upon the conduct of the courts in the name of fair criticism’.85 In this case, the contemnor was the Booker Prize-winning author, Arundhati Roy. The Supreme Court found that since she did not claim ‘to be possessing any special knowledge of law’, since she had not ‘made any study regarding the working of [the Supreme Court]’, and was only ‘a writer of repute’, she was not entitled to the same right to criticize the courts which had been availed of by Shiv Shankar in his case seen above.86 This was an odd holding. In essence, the Supreme Court held that only lawyers and legal scholars had the right to make fair comment on the conduct of courts, a view which was later taken implicitly in Kapil Sibal’s case as well, which we have seen above. This view is quite regressive. It has been held that when a person distorts or misrepresents court orders, he commits contempt in the form of scandalizing the court. For instance, in Narmada Bachao Andolan v. Union of India,87 the Supreme Court was considering a book written by Arundhati Roy called The Greater Common Good. In it, Roy criticized an interim order passed by the Supreme Court in which the court had permitted the height of the Narmada Dam to be increased. Roy believed that this order would result in several villages being submerged during the upcoming monsoons. She wrote:

I stood on a hill and laughed out loud . . . Why did I laugh? Because I suddenly remembered the tender concern with which the Supreme Court Judges in Delhi (before vacating the legal stay on further construction of the Sardar Sarovar dam) had enquired whether tribal children in the resettlement colonies would have a children’s park to play in. The lawyers representing the government had hastened to assure them that indeed they would and what’s more, that there were seesaws and slides and swings in every park. I looked up at the endless sky and down at the river rushing past and for a brief, brief moment the absurdity of it all reversed my rage and I laughed. I meant no disrespect.

Two of the three Supreme Court judges who heard this case were not amused. Chief Justice Anand (along with Justice Kirpal) found that Roy had prima facie misrepresented the proceedings which had taken place before the Supreme Court.88 It was held that the freedom of speech and expression did not include ‘freedom to distort orders of the court and present [an] incomplete and a one-sided picture deliberately, which has the tendency to scandalise the court’.89 It was held that Roy had used her literary fame to misinform the public, and her writings had the tendency to create prejudice against the court.90 However, no action was taken against her. Justice Bharucha disapproved of Roy’s words, but decided not to take any action against her because ‘the Court’s shoulders are broad enough to shrug off [her] comments’.91

Defences There are several exceptions and defences to the law of contempt in the form of scandalizing the court. The Supreme Court has held that when a person adversely comments on the conduct of a judge in his personal capacity, it does not amount to contempt, and can only give rise to an action in libel. It has been held by the Supreme Court that the power of contempt does not exist to protect judges ‘personally from imputations to which they may be exposed as individuals’92 and that care should be taken to distinguish contempt from libel.93 In order to constitute contempt, the contemnor’s words must relate to something done by the judge in his official, judicial capacity. For example, if a person says, ‘Justice X accepts bribes while deciding important cases’, or ‘Justice X decides all cases in favour of members of higher castes’, these statements relate to the conduct of Justice X as a judge, and therefore constitute contempt. However, if a person says ‘Justice X routinely beats his wife and children’, or ‘Justice X has not paid his subscription fees for the India International Centre or Willingdon Club’, then even if these statements are false, they do not constitute contempt because they do not relate to anything done by the judge in his official capacity. If it is falsely publicized that Justice X beats his wife, this is certainly likely to diminish his official image and reduce the confidence that people have in him as a judge. Even so, this furnishes an action in libel, not contempt. Further, minor, insignificant contempts have been held insufficient in order to constitute contempt of court. In fact, Section 13(1) of the Contempt of Courts Act, 1971, says that a person cannot be punished for contempt of court unless the contempt ‘substantially interferes, or tends substantially to interfere with the due course of justice’. It has been held that the contempt must be ‘manifest, mischievous or substantial’ in order to be punishable.94 The court will consider ‘the degree of harm caused’ to the administration of justice, and ‘if it is slight and beneath notice’, a court will not punish the contempt.95 In re: S. Mulgaokar,96 Justice Krishna Iyer held that the ‘first rule’ of contempt in the form of scandalizing the court, was ‘economy of use by the Court’. He said that the court must ‘ignore . . . trifling and venial offences’. ‘[T]he dogs may bark,’ he said, but ‘the caravan will pass.’97 Courts must not be hypersensitive, he counselled.98 The power to punish for contempt in the form of scandalizing the court must be exercised with ‘great care and caution’,99 ‘sparingly . . . with utmost restraint and considerable circumspection’.100 Prior to 2006, truth was not a defence to contempt in the form of scandalizing the court.101 However, after an amendment to the Contempt of Courts Act, 1971, in 2006, truth, under limited circumstances,102 is available as a defence. Section 13(b) now provides that a court ‘may’ permit (i.e., it is a defence which can be allowed at the discretion of the court), ‘justification by truth as a valid defence’. However, the court must be satisfied that the defence of truth is ‘in public interest’, and that the request for invoking the defence is bona fide. Ordinarily, contempt in the form of scandalizing the court can be excused if the contemnor tenders an unconditional apology to the court. However, there are circumstances in which an apology will not be accepted by the court, typically when the apology does not appear to be genuine,103 or when it comes late.104 It has been held that there cannot be ‘both justification and an apology’, that the two are incompatible,105 that an apology must be offered at the earliest opportunity, not when the contemnor knows that the court is going to impose punishment,106 and that an apology cannot be used as a device to escape punishment.107 However, in accordance with the recommendations of the Bhargava committee, an apology, if bona fide, cannot be rejected merely because it is ‘qualified or conditional’.108 For instance, in L.D. Jaikwal v. State of U.P.,109 a ‘senior advocate of long standing’ wrote a letter to a judge, and said that he was a ‘corrupt Judge’ who was ‘contaminating the seat of justice’. In the letter, the advocate threatened that he would file a complaint against the judge ‘to the highest authorities in the country’, that the judge was corrupt and did not ‘deserve to be retained in service’. ‘The earlier people like you are bundled out,’ wrote the advocate, ‘the better for us all.’ Copies of the letter were sent to several authorities in India, like the prime minister, chief justice of India, etc. Jaikwal then tried to offer the Supreme Court an apology. The Supreme Court said that it could not ‘subscribe to the ‘slap-say-sorry-and-forget’ school of thought in contempt jurisprudence.110 Before the High Court of Allahabad, Jaikwal had sought to justify his conduct.111 He had not felt any remorse, expressed any sorrow or offered any apology. It was only when the matter came before the Supreme Court that he offered an apology for the first time. When the Supreme Court gave him an opportunity to apologize to the judge whom he had scandalized, he submitted a formal apology and said that it was being submitted ‘as directed by the Hon’ble Supreme Court’. In the circumstances, the Supreme Court found that Jaikwal had only offered a ‘paper’ apology, that ‘the expression of sorrow came from his pen, not from his heart’.112 Since it was merely ‘a formal empty apology’, Jaikwal was not let off, as this would set a dangerous precedent.113 In Vinay Chandra Mishra’s case,114 the contemnor, Mishra, was a senior advocate, president of the Bar Association, and chairman of the Bar Council of India. While appearing in the High Court of Allahabad one day, the judge asked him a question about the merits of his case.115 This enraged him and he began to shout. He threatened the judge that he would get him transferred or even impeached in Parliament. He said that he had previously ‘turned up’ many judges. In the contempt case which followed this outburst, the Supreme Court offered several reasons why it was not accepting his apology. Firstly, it was ‘not a free and frank admission of the misdemeanour’ indulged in by Mishra. It was not sincere, as it was ‘couched in . . . sophisticated and garbed language’. Mishra had attempted to justify his conduct in the apology. It was ‘a clever and disguised attempt to refurbish his image’. Secondly, Mishra’s attitude, from the very beginning, was ‘defiant and belligerent’. In his affidavits filed in court, he did not show any respect for the judge against whom the contempt had been committed. Allegations were levelled against the judge in the affidavits, and Mishra even asked for the initiation of contempt proceedings against the judge. Thirdly, the court also found that to accept an apology for conduct of this nature ‘would [be] tantamount to a failure on the part of [the court] to uphold the majesty of the law’.

Colonial Difference in Independent India

In many cases, the Supreme Court has harboured the colonial notion that India’s people are illiterate, and so what appears in print here is likely to be taken more seriously than elsewhere, which is why contempt powers here need to be exercised more stringently. In Markarha,116 for example, the Supreme Court held that in India, justice at the ‘grass-root level’ is administered by courts in ‘rural backward areas largely [inhabited] by illiterate’ people. Such people, said the court, are more susceptible to contemptuous influences than ‘the urban elite reading newspapers and exposed to [the winds] of change’. If ‘a slight suspicion’ is created in the minds of illiterate villagers that judges approach cases with a closed mind or that they pre-judge cases, then they would ‘lose confidence in the administration of justice’.117 In Harijai Singh,118 the Supreme Court said that something which appears in print is ‘likely to be believed by the ignorant’, which is why restrictions on the press were essential. Likewise, in Arundhati Roy,119 the Supreme Court held that the contemnor had tried to create an impression in the minds of ‘the people of this backward country’ which impugned the ‘integrity, ability and fairness’ of judges. The fundamental right to free speech has made no difference to this colonial notion. Should Scandalizing the Court Be Abolished in India?

Is there a case to be made for abolishing the power of an Indian court to punish contempts that scandalize the court? After all, why is that only a court needs to be insulated from public opinion? There are other branches of government which need public confidence in order to function too. For instance, the traffic police need people to cooperate with them, but they do not have the power to summarily prosecute those who make scandalous statements against them. There have been numerous reported instances recently of traffic police officials in Mumbai getting assaulted by bikers who were sought to be pulled over.120 If policemen cannot make the argument that they should be able to summarily prosecute those who scandalize them, why should judges be able to do so? If a person can make a false accusation that the President of India, the prime minister of India, the governor of the Reserve Bank of India, the attorney general of India, or the Comptroller and Auditor General of India are corrupt, without the possibility of having summary contempt proceedings initiated against him, why is it that only the judiciary should be insulated from public opinion in this manner? One answer, however, is that while traffic police officers can arrest wrongdoers, and office-bearers can call a press conference to refute the allegations made against them, Indian judges are governed by informal norms which prohibit them from calling a press conference in order to deny the contemptuous statements made against them. Contempt powers today are unnecessarily designed to try and maintain a good image for the judiciary in the public mind. One of the primary justifications offered in favour of an Indian court’s power to punish contempts that scandalize the court is that this power is necessary to protect the public, not courts or judges. The Supreme Court has repeatedly held that powers to punish contemnors for scandalizing the court exist in order to maintain public confidence in courts. However, this is a tenuous justification for retaining contempt in the form of scandalizing the court. Stifling criticism of the judiciary will not enhance public confidence in courts. If public confidence in the Indian judiciary today is low, this is partly because of how long it takes for cases to be decided. What will restore public confidence in the judiciary is if courts reform themselves, not if they muzzle outspoken criticisms. Further, a person’s faith or confidence in a court will, after all, depend on the work that the court does, not on what people are publicly allowed to say about it. Also, contempt may have a chilling effect on responsible statements made to genuinely uncover corruption in the judiciary. However, there are good reasons why Indian courts must continue to have some limited powers to punish contempts that scandalize the court. Most importantly, such powers might be necessary simply to preserve the decorum and dignity of the day-to-day functioning of the courts. The power to punish contempts in the face of the court can be sustained on this justification. Thus, if a person tries to interrupt ongoing court proceedings, if someone shouts at a judge during a court session, or alleges that a judge is corrupt in open court, this affects the dignity and decorum of the court in its actual day-to-day business. Courts must have the power to deal with such contempts strictly. If a person starts shouting slogans during an ongoing court proceeding, flings a shoe at a judge or calls him corrupt in open court, the judge must have the power to remove that person from court, and to sentence him so as to create disincentives against something like this happening again. In other words, courts must have the power to remove an unwelcome interruption to a court proceeding, and to create disincentives against its repetition. Further, if a person incites others to disobey court orders, and there is a clear and imminent danger that court orders will thereby be disobeyed, this too must continue to constitute contempt of court. It is certainly worth debating whether most contempts that scandalize the court, which take place outside the court, should now cease to be summarily punishable under the law of contempt in India. After all, when a person makes a false statement outside the court that a judge is dishonest or corrupt, the judge still has the power to file a civil suit for defamation, to initiate criminal proceedings for defamation under Sections 499 and 500 of the Indian Penal Code, or to ignore the statement altogether. In England, one of the reasons why the doctrine of scandalizing the court was abolished was that English judges had the option of initiating libel proceedings against contemnors. In fact, the Law Commission there noted that some judges had successfully pursued libel suits against those who had made contemptuous statements about them. However, there are some difficulties with adopting this approach in India. For one, a defamation suit may not be a viable option here simply because it takes several years, if not decades, for civil suits to be decided finally in India. Further, there are other problems with requiring judges to initiate libel suits or criminal actions for contempts that scandalize the court. For instance, in libel proceedings, the judge and his conduct will be on trial, which is precisely what summary contempt proceedings seek to avoid. The defendant-contemnor will make every conceivable allegation against the judge in order to defend the libellous statement. The judge will spend a lot of his time and energy on the libel proceeding, as against summary contempt proceedings where his own input will be minimal. Further, if contempt in the form of scandalizing the court is done away with, recruitments to the Bench might dry up even more, since reputable lawyers may not want to take on the inevitable libel suits in addition to the other drawbacks of joining the judiciary, like the poor salary relative to the earnings of senior lawyers. 10 Nehru Calls Justice Bose Unintelligent

In June 1959, while the Supreme Court was still closed for its summer vacation, an incident took place which could have implicated the prime minister of India in a case of scandalizing the court. At a press conference in New Delhi, Prime Minister Nehru said that a retired judge of the Supreme Court, Justice Vivian Bose, was ‘lacking in intelligence’. Though these words were not as harsh as what was said by Gray in England or by William Tayler in Calcutta, in the pre-Ex-parte Blackburn era this could possibly have been considered as scandalizing the court, given that Nehru had commented adversely on the ability of a judge.1 Strong exception was taken to Nehru’s words by the Calcutta Bar, and had it not been for a swift and graceful apology by Nehru to Bose, a constitutional crisis could have ensued. Only a few years before, Nehru had been let off by the Madras High Court on charges that he had committed contempt of court by violating the sub judice rule,2 examined in the next chapter. The incident arose against the backdrop of the Mundhra scandal of the late 1950s.3 Haridas Mundhra was a businessman. In 1957, the Life Insurance Corporation of India (LIC) invested a sum of approximately Rs 1.26 crore in Mundhra entities. This was the single largest transaction ever entered into by the LIC until then. The shares were not purchased on the open market, at market value, but in a private transaction. The price paid for the shares was higher than market value. The instructions to make the investment had come from H.M. Patel, principal finance secretary to the government, and former chairman of the LIC. The instructions had apparently been given with the approval of finance minister, T.T. Krishnamachari. At the time, G.R. Kamat was the chairman of the LIC and L.S. Vaidyanathan was its managing director.4 Chief Justice Chagla of the Bombay High Court was appointed as the sole commissioner to investigate the scam. After his report, Finance Minister Krishnamachari resigned. Thereafter, the government appointed a Board of Enquiry in May 1958, headed by Justice Vivian Bose, to investigate the charges against Patel, Kamat and Vaidyanathan. Though he had retired from the Supreme Court in June 1956, Bose was, at the time, serving an additional term as a judge of the Supreme Court under Article 128 of the Constitution.5 Bose submitted his report in September 1958, and found that the allegations against these three stood proved. He found that the investment had been made by the LIC in return for generous donations made by Mundhra to the U.P. Congress Party of Rs 1.50 lakh, and to the Central Congress Party of Rs 1 lakh. Nehru was displeased.6 At a press conference held in New Delhi on 10 June 1959, journalists asked him about the scandal. Nehru informed them that the Bose Commission’s findings were a ‘fantastic proposition’ and that the person who arrived at them was ‘lacking in intelligence’. ‘Even if he is a high judge I would say the same,’ said Nehru.7 One newspaper reported Nehru as having said: ‘If you believe that for this 2½ lakh from Mundhra, the deal has been put through, the person who suggests it is lacking in intelligence, even if he is a High Court Judge.’8 Many newspapers, like Bombay’s tabloid Blitz, prominently reported the story.9 At the time, the Supreme Court itself was in its summer vacation. The Supreme Court Bar consequently did not react immediately to Nehru’s comments. However, the Calcutta High Court was in session. In the issue of the Calcutta Weekly Notes law report which came out soon thereafter, strong exception was taken to the ‘tenor and nature’ of Nehru’s remarks, ‘the intemperate language’ which he had used, and the ‘obvious irritation and annoyance’ which he had exhibited at being ‘confronted with uncomfortable facts’. The Calcutta Weekly Notes concluded by saying that Nehru’s remarks had ‘lowered the prestige and dignity of the entire judiciary in this country’, an obvious suggestion that Nehru had committed contempt by scandalizing the court. That month, the Calcutta Bar passed a strong resolution condemning Nehru’s remarks. The resolution stated as follows:

The meeting of the Calcutta Bar expresses its strong disapproval of Prime Minister Nehru’s derogatory remarks about Shri Vivian Bose, a retired Judge of the Supreme Court and former Chief Justice of the Nagpur High Court. This meeting is firmly of the opinion that such comments by the Prime Minister regarding an enquiry held under the Chairmanship of an eminent Judge is likely to encourage dishonesty in public life and should be condemned in no uncertain terms.

On 19 June 1959, the Honorary Secretary to the Bar Library Club, Calcutta, S.R. Das Gupta, wrote a letter to Nehru in which he enclosed a copy of the resolution. Nehru, who was staying at the Raj Bhavan in Trivandrum, Kerala, at the time, received the letter on 23 June and acted swiftly thereafter. In a letter on 23 June, Nehru wrote to Das Gupta, and apologized:

I should like to say that I am very sorry that some remarks of mine at a press conference should have been interpreted as being derogatory to Shri Vivian Bose or to any other judge. I hold Shri Vivian Bose in high regard and certainly it was not my intention to say anything against him . . . my remarks were casually made . . . I realise that I should not have made even a casual remark of this kind and I am sorry for it.

On 26 June, Nehru wrote a letter to Vivian Bose himself.10 In it, Nehru said that he had intended to write to Bose sooner, but had been unable to do so because he was ‘travelling about’ quite a bit at the time. He apologized to Bose for his comments, in the following terms:

I should like to express personally to you my deep regret at the remarks I made in this connection at the press conference I addressed in Delhi earlier this month. I realise fully that those remarks were improper and I should not have allowed myself to utter them. I was taken rather unawares by the questions put to me and I was thinking of many other things at that time also . . . I trust you will be good enough to accept my apology for this impropriety which I have committed.

On that very day, 26 June, Nehru wrote to the chief justice of India, S.R. Das, and enclosed a copy of his letters to Das Gupta and Bose.11 He also apologized to the chief justice as follows:

May I also express my deep regret to you that I had allowed myself to be swept away in the course of a press conference and said something that I should not have said. That was an impropriety which I regret greatly as I have always believed that the judiciary and, more especially, the judges of our Supreme Court deserve the highest consideration and respect.

Nehru’s swift response had its desired effect. On 29 June, Das Gupta wrote to Nehru, said that Nehru’s letter was ‘deeply appreciate[d]’, and asked if the letter could be released to the press, to which Nehru agreed.12 On the same day, Bose wrote to Nehru, thanked him for his letter and ‘also for the generous terms in which you referred to me when writing to the Calcutta Bar Library Club’. Bose forgave Nehru, and said:

I want you to know that I did not take your remarks seriously and that I was not in the least worried or upset. I know how much you have on your mind and fully understand that one says things in a moment of temporary irritation when one is tired which one does not really mean. All I regret is that I should have been the cause of so much public controversy.

Several decades ago, while sitting as a judge of the Nagpur High Court, Justice Vivian Bose had delivered a classic judgment on apologies in contempt cases. In it, he had set out the tests for when an apology could be considered genuine. Nehru’s apology certainly met this test, which is worth setting out:

An apology is not a weapon of defence forged to purge the guilty of their offences. It is not an additional insult to be hurled at the heads of those who have been wronged. It is intended to be evidence of real contriteness, the manly consciousness of a wrong done, of an injury inflicted, and the earnest desire to make such reparation as lies in the wrongdoer’s power. Only then is it of any avail in a court of justice. But before it can have that effect it should be tendered at the earliest possible stage, not the latest, and even if wisdom dawns only at the appellate stage, the apology should be tendered unreservedly and unconditionally before the arguments begin and before the person tendering the apology discovers that he has a weak case and before the Judge . . . has indicated the trend of his mind. Unless that is done, not only is the tendered apology robbed of all grace but it ceases to be an apology; it ceases to be the full, frank, manly confession of a wrong done which it is intended to be. It becomes instead the cringing of a coward shivering at the prospect of the stern hand of justice about to descend upon his head. It then deserves to be treated with the contempt with which cowards and bullies who do not hesitate to threaten others and to impugn their honesty and character without the slightest foundation and who cringe and wail when their own safety is at stake, are treated.13

On 30 June, Nehru wrote back to Bose and thanked him for his letter, saying, ‘I am grateful to you for what you have written.’ That same day, the chief justice of India, S.R. Das, wrote a letter to Nehru in which he said that Nehru’s comments had caused ‘considerable anguish and resentment’ in his mind and in the minds of his colleagues in the Supreme Court. ‘Such remarks made in public against a Judge, sitting or even retired, of a High Court or of the Supreme Court,’ he said, ‘are bound indirectly to affect prejudicially the prestige and dignity of the courts.’ This, once again, appears to have been a reference to the doctrine of scandalizing the court. He continued:

That apart, it is primarily a matter between the particular Judge and the person who makes the remarks against him. I am glad that you have written to Shri Vivian Bose in the way you have done and I do hope that he will accept your explanation in the same spirit in which and as generously as it has been rendered by you.

Das then informed Nehru that what was ‘worrying [him] considerably’ was whether sitting judges should be permitted to sit on inquiry committees. If a government rejected the findings of such judges, that would amount to ‘a deliberate flouting of the decision of such a high authority by the executive to suit its own purpose’ on the one hand, and as a ‘deserved reflection on the circumspection and ability of the particular Judge which will certainly undermine the prestige and dignity of the courts and bring them into hatred, ridicule and contempt’ on the other. ‘Both contingencies,’ said Das, ‘are undesirable and in the larger interests of the country such a calamity must . . . be avoided.’ He concluded by saying that the Supreme Court was not convening due to the summer vacation, but he hoped to hold a full court meeting (i.e., a confidential meeting of all the court’s judges) in order to discuss this issue. Nehru wrote back and asked if the chief justice could discuss the matter with himself or the home minister prior to the full court meeting,14 to which Das later agreed.15 On 7 July, Chief Justice Das wrote to Bose, enclosing copies of the correspondence exchanged between himself and Nehru. In it, he said: I am glad that the misunderstanding has been cleared up and you have reacted to the Prime Minister’s gestures as graciously as they had been made by him.

Bose wrote back to the chief justice on 12 July. He wrote:

I never took the remarks seriously and I have too much respect for Nehru’s intelligence to think that he could really think one of the men his own government had put on the Supreme Court lacked intelligence! His remark was the kind of thing any one of us might have said in a moment of temporary irritation. A Press conference can be a very annoying thing, especially when one is tired and a volley of loaded questions are fired at you. I quite understand and understood all along. In any case he has made handsome amends like the gentleman he is.

However, Bose did indicate to the chief justice that it was his view that when the government appoints a judge to an inquiry commission, it ought to accept the commission’s findings. With Nehru’s letters to Secretary Das Gupta, Chief Justice Das and Justice Vivian Bose, a crisis had been averted. Both the Calcutta Bar Library and the chief justice had hinted that Nehru’s words might have had the tendency of lowering the prestige, status and dignity of the judiciary. The prime minister of India could very well have been said to have committed contempt by scandalizing the court. Instead, on 13 July, the Calcutta Weekly Notes printed the letters exchanged between Nehru and Das Gupta, and wrote that the correspondence had brought ‘to a happy and satisfactory termination the unfortunate controversy’. It showered praise on Nehru, in the following terms:

[Nehru is] a truly great man who has the courage and the true sense of dignity to own up to the fact that he made a mistake however casually and incidentally that mistake might have been . . . We have long held that Shri Jawaharlal Nehru embodies in himself all that is high in the traditions of the East and the West and we are happy to record that the incident alluded to has shown his great mental and moral stature.

Likewise, after the summer vacation at the Supreme Court came to an end, on 11 August, the Supreme Court Bar Association held a special general meeting, to consider whether any action was required to be taken against Nehru for his remarks. The meeting was presided over by Attorney General M.C. Setalvad. A resolution was unanimously adopted that in the light of Nehru’s letters to the Calcutta Bar Library Club, ‘no further action’ was called for. However, the resolution also said that the Supreme Court Bar Association was of the view that it was ‘undesirable’ for judges, sitting or retired, of the Supreme Court or high courts, to ‘be given assignments of this nature’, exposing their reports to ‘derogatory comments’ by the executive. George H. Gadbois, Jr., noted historian of the judges of the Supreme Court, called this episode an example of ‘vintage ethics’. Gadbois had interviewed Bose in the 1980s in connection with his book project on the judges of the Supreme Court of India. In the process, he had obtained copies of these letters from Bose’s grand-niece. In his notes in the file he maintained on Bose, Gadbois opined that India, a ‘fledgling democracy’ had ‘successfully passed a major test’. While conducting interviews with retired judges of the Supreme Court, ‘old judges’ had informed Gadbois that ‘the judiciary was stronger as a result of the way Nehru handled [the incident]’. The institutions of democracy had been preserved. Gadbois found it notable that there appeared to be no rancour or animosity from Nehru towards Das, Bose, or even Chagla. Chief Justice Das retired on 1 October 1959, and a farewell dinner was held for him, at which Nehru was present. Bose was appointed by the government to yet another high-profile commission, to investigate Dalmia–Jain enterprises, very soon after this incident.16 Chagla too was appointed ambassador to the US later on. ‘These were before [the] days,’ wrote Gadbois, ‘when judges were punished for displeasing the [government].’ 11 Prejudicing Mankind

This chapter examines contempt of court in the form of the sub judice rule, i.e., the rule that nothing can be said in the press that might prejudice an ongoing court case. We will see, once again, that the sub judice rule in colonial India was very similar to its counterpart in England and that the enactment of the Constitution made virtually no difference to this body of law. Major changes to the sub judice rule in India took place not in 1950 with the Constitution coming into force, but in 1971 with the enactment of the Contempt of Courts Act. For instance, prior to 1971, colonial courts had typically taken the view that the sub judice rule was set in motion once an accused was arrested by the police. In other words, in the colonial era, the press could not comment on the merits of a criminal case once the accused was arrested by the police. This rule was continued for more than twenty years after independence. It was only in 1971 that the commencement of the sub judice rule in criminal trials was formally moved to the filing of the charge sheet by the police in court. In other words, the press are now free to report on a case while it is being investigated by the police and before the police have filed their findings in court. We will see that it was the Bhargava Joint Parliamentary Committee, not the Constituent Assembly or the Constitution of India, which brought about this change. Further, the sub judice rule is, even now, not substantially different from what it was in the colonial era. For example, the Supreme Court has, on several occasions, taken the view that trained judges can be influenced by what is said in the media, a view which was also adopted in some cases decided in British India. In fact, prior restraints can still be imposed on the press today by courts in the form of ‘gag orders’, all this despite the existence of a Constitution.

The English Law on the Sub Judice Rule

Unlike the doctrine of scandalizing the court, the sub judice rule in England has very frequently been invoked there to prosecute those who have commented on pending proceedings.1 The sub judice rule in England makes it a contempt of court to prejudicially comment on a pending case. In the words of James Francis Oswald in his treatise on contempt, ‘anything which tends to excite prejudice against the parties, or their litigation, while it pends’2 constitutes contempt of court. However, not all comments on pending cases are considered contemptuous. There must be some real likelihood that the comment will seriously prejudice a case. ‘Technical’ or ‘trifling’ comments cannot be punished.3 The conduct must be ‘calculated (that is, likely) to cause substantial prejudice to a party in the conduct of an action and hence to the due administration of justice’.4 In order to violate the sub judice rule, a person must comment on a case which is actually pending in court. A large body of law has evolved in England for determining when a case begins and when its ends. For example, it was a vexed question there as to whether it was contempt to comment on not merely a ‘pending’ case but also one which was ‘imminent’, i.e., a case which was highly likely to be, but had not yet been, initiated. However, the Contempt of Courts Act, 1981, reformed the English law on the subject. It made it a contempt for any person to comment on proceedings that are ‘active’,5 avoiding words like ‘pending’ and ‘imminent’. A criminal case is ‘active’ from the time a defined ‘initial step’ is taken, e.g., arrest without warrant, issue of summons to appear, etc.6 After the 1981 Act, proceedings ‘are not active when they are only imminent, for example when a person is about to be arrested’.7 Proceedings continue to be active during the appeal process.8 This is contrary to the report of the Phillimore Committee in which it was recommended that the pendency of a case should end with the conclusion of the trial.9 The committee found that ‘judges of appellate courts are not generally liable to be improperly influenced’, and that ‘[a]ppellate judges may sometimes even be assisted by responsible comment in the press, in legal journals and elsewhere’.10 Civil cases are ‘active’ when arrangements are made for the hearing or when the hearing begins.11 Another difficult question on this subject in England was whether the offence of contempt in the form of the sub judice rule required the contemnor to have mens rea or criminal intent for committing the offence. The law in England is that the sub judice rule applies regardless of a person’s intent, i.e., ‘strict liability’ is imposed on those who make statements which seriously prejudice an ongoing case.12 In other words, if a person makes a comment which substantially prejudices an ongoing court case, he can be punished irrespective of the fact that he did not intend for his statements to have any prejudicial effect on the outcome of the case. Broadly speaking, it is a contempt of court to comment on a case in a manner which might influence jurors, witnesses, or even the parties to a case, but usually not trained, professional judges, who are typically considered immune to the influence of the media and press. Oswald believed that ‘Jurors may . . . be considered more amenable than Judges to the influences of comments upon pending proceedings.’13 Likewise, another well-known commentator on the law of contempt in England, C.J. Miller, believed that it was ‘generally accepted’ that judges’ ‘professional experience enables them to discount that which might affect a jury’.14 A fair and impartial report of court proceedings, however, is not contempt.15 The general rule is that all proceedings must be held in open court, that any member of the public must be free to observe them, that any member of the press must be free to report, fairly and accurately, what has transpired there.16 This rule is said to ensure that ‘justice is done’ in cases,17 as judges are held up to public scrutiny in decision-making, which makes judgments less idiosyncratic and arbitrary. However, there are exceptions to this rule, e.g., cases where it is necessary ‘to shield children from publicity’,18 to ‘prevent the publication of indecent matter’,19 etc.

Sub Judice and the Colonial Court

By and large, the sub judice rule in colonial India was very similar to its counterpart in England. In many cases decided by the high courts of British India, the sub judice rule was conceived of as the rule that a person cannot prejudice a fair trial or interfere with the course of justice.20 In other cases, it was held that a person committed contempt of court when he sought to ‘prejudice mankind in favour of or against a party before the case is finally heard’,21 i.e., to influence public opinion or create ‘an atmosphere of prejudice in the midst of which the proceedings must go on’.22 These definitions were all rooted in English common law.23 Comments on the merits of a pending case have generally been considered to be in contempt of court.24 For example, in one case, a newspaper carried an article which said that the police in a pending criminal case had forcibly obtained signatures of the accused on blank sheets of paper on which admissions of guilt were subsequently written in, and that pressure had been put on witnesses to give evidence favourable to the prosecution. The Bombay High Court held that this amounted to contempt of court as it suggested that the evidence had been ‘obtained by improper means’ and was unreliable.25 In another case, the contemnor published in a newspaper a letter he had written expressing an opinion that it would be in the best interests of the depositors of a bank which was undergoing liquidation proceedings for it to be fully wound up. It was held that discussing ‘the rights and wrongs of a case’ like this amounted to contempt of court.26 To suggest that a person accused of a crime is guilty was considered contempt of court.27 If a newspaper used the word ‘alleged’ while describing a crime or referring to a person accused of a crime, that could save it from being hauled up for contempt,28 though the failure to use the word ‘alleged’ was not, by itself, decisive, and regard was to be had to the context of the passages in the newspaper article.29 For example, in one case, a newspaper referred to fourteen persons who were standing trial for having committed an offence as the ‘Chittagong raiders’ instead of the ‘alleged Chittagong raiders’. It was held that this, by itself, was not sufficient to constitute a violation of the sub judice rule.30 Similarly, it was considered contempt for a newspaper to publish the ‘antecedent character’ or the prior criminal record of a person accused of a crime in a pending case, especially if the record revealed that he had committed a similar crime in the past as the one he was now standing trial for.31 Publishing some of the pleadings or any part of the evidence of a case, while the case is pending, being privileged, has been considered to be contempt of court.32 For example, in one case, the genuineness of a will was being contested. The party propounding the will published it as an advertisement in a newspaper, with the object of making the public believe its existence and contents. The court relied on Oswald’s treatise on the English law of contempt, which said that ‘printing, even without comments, and circulating the . . . pleadings . . . of one side only, is a contempt . . . ’33 However, in another case, the publication of a plaint in a newspaper was held not to be in contempt of court because nobody who read it would ‘form an unfavourable view of the conduct of the defendant’. The article in question in this case contained merely a ‘summary of the plaintiff’s allegations’, and on reading it a reasonable person could not conclude that ‘the defendant is not prepared to meet the plaintiff’s case’.34 In case after case, colonial courts held that mere technical contempts were not punishable, and in order to constitute a punishable violation of the sub judice rule, the contempt must be serious or substantial, not theoretical or slight.35 One has to look at the ‘probable effect’ of the article in question.36 However, actual harm is not necessary.37 In other words, it is not essential that the article in question should actually have caused prejudice to the trial. Like the English rule, in several cases, colonial courts in British India held that a violation of the sub judice rule attracted strict liability, that mens rea or criminal intent was not necessary in order to constitute the offence.38 It is the effect of the article in question, the probability that it might ‘substantially interfere with the due administration of justice’, not the writer’s intention, which determines whether something is contempt or not.39 Every person is ‘presumed to intend the natural and probable consequences of his acts’.40 The sub judice rule was held by colonial courts in British India to apply when a case was either pending or imminent.41 A criminal case was considered to be pending from the time the accused was arrested and in custody, and it was not necessary for the accused to have been committed for trial or even for him to have been brought before a committing magistrate.42 However, a person was held not to have violated the sub judice rule if he did not know, or he could not reasonably have known, that the case was pending.43 For example, in one case, the district magistrate was assassinated at Midnapore. The accused was tried, found guilty, and sentenced to death. At this time, a newspaper article was written commenting on the merits of the case. An appeal before the high court was thereafter filed by the accused in the case. The editor was hauled up for contempt. He argued that no appeal against the decision had been filed before the high court as on the date of the publication of the article. Rejecting this argument, the court held that ‘the editor must have had in his mind the probability of an appeal’, and it was ‘a matter of general knowledge among educated persons in this country that capital sentences passed by subordinate courts require confirmation by the High Court’.44 Colonial courts in British India variously held that the sub judice rule is designed to protect juries, witnesses, parties, judges, or even advocates. In some cases, the Madras High Court held that even though it was unlikely that judges would actually be influenced or prejudiced by the article in question, to comment adversely on a case which was before a judge (e.g., a case pending appeal or a civil case which did not have a jury) would also amount to a violation of the sub judice rule.45 In one case, on the other hand, the Rangoon High Court held that the article in question commented on a pending revision case, and as revision cases are heard by judges alone and are concerned mostly with questions of law, there was ‘no question of any witnesses, jurors or assessors being influenced’.46 In Ananta Lal Singh v. Alfred Henry Watson,47 the Calcutta High Court was hearing a contempt case against the editor of the newspaper the Statesman. The newspaper carried an article which pointed fingers at an advocate, Sarat Chandra Bose, who was defending fourteen persons accused of throwing bombs and engaging in violent activities at Chittagong. Bose had previously retired from full-time legal practice in order to start working for the Congress party. The article asked whether defending terrorists was part of the work of the Congress party. The high court held that an article which had ‘an effect in tending to deter [an] advocate from continuing with his duties for his clients and . . . in embarrassing him in the discharge of those duties’ amounted to contempt of court. It was held that it is ‘quite possible to interfere with the due course of justice by making comments upon an advocate in the way of his profession’.

Contempt of Courts Act, 1971

We have already seen in a previous chapter that contempt of court was debated very sparsely in the Constituent Assembly. It was accepted there that the existing law on contempt would continue to be an exception to the right to free speech. It was only in 1963 that the first substantial public policy discussion took place to reform the law of contempt. A report was submitted that year by the additional solicitor general of India, H.N. Sanyal, to the law minister.48 The following were its key recommendations:

1. Pending: A case should be considered ‘pending’ for the purposes of the law of contempt not merely after the trial is over but also once the appeal is finally over, or when no appeal is filed within the period of limitation.49 ‘Execution’ proceedings, i.e., proceedings for enforcing a decree, should not be considered part of a pending case.50

2. Imminent: It was recommended that the ‘imminent’ rule, i.e., the rule that a person cannot comment on a case which is ‘imminent’, though not pending, be abolished altogether in civil cases.51 While the Sanyal committee did not recommend the abolition of the rule in criminal cases, it suggested that a person could argue, in his defence, that he had ‘no reasonable grounds for believing that the proceeding is imminent’.52

3. Knowledge of Pendency: It was suggested that want of knowledge of the pendency of a case should constitute a defence.53 A person who acted with ‘ordinary prudence’ would be exonerated. This meant that at the time of the publication, a person accused of committing contempt of court would have to show that ‘he had no reasonable grounds for believing that any proceedings were pending’.54 This was a reiteration of the colonial-era law.55

4. Intent: The Sanyal committee accepted the rule that a person’s intent does not establish contempt.56

5. Judges: Since trials in India are conducted by ‘trained men’, ‘mostly without the aid of [a] jury’, the Sanyal committee found that judges were ‘not likely to be influenced by what is stated outside the court’.57 However, a fear was expressed that witnesses might be influenced by what is said in the press to ‘a greater degree in India than in a few other Western countries’.58

Thereafter, a joint parliamentary committee headed by M.P. Bhargava submitted its report to Parliament in 1970.59 The committee recommended that the word ‘imminent’ was vague and ‘likely to unduly interfere with the freedom of speech and expression’. Thus, unlike the Sanyal committee, the Bhargava committee recommended that the ‘imminent’ rule be dropped from contempt altogether. The Contempt of Courts Act was enacted in 1971.60 The following are its key provisions:

1. Pending: A criminal case is considered ‘pending’ from the time a charge sheet is filed, or when the court issues a summons or warrant.61 Importantly, unlike the 1981 Act in the UK, and unlike the law laid down by the Supreme Court previously,62 a criminal case does not begin with the arrest of a person by the police. This statutory rule in India was a result of the recommendations of the Bhargava committee.63 A civil case begins when a plaint is filed.64 In accordance with the Sanyal committee’s recommendations, a case continues until an appeal or revision is ‘heard and finally decided’ or until the period of limitation for filing the appeal or revision expires without one being filed.65 However, the Supreme Court has cast some doubt over whether a case can be considered as pending, for the purposes of the sub judice rule, during the hearing of an appeal.66 A case is not considered to be pending at the execution stage.67

2. Knowledge: A person charged with a violation of the sub judice rule can argue, as a defence, that ‘he had no reasonable grounds for believing that the proceeding was pending.’68 This was what the Sanyal committee had recommended.

3. Intent: In accordance with the recommendations of the Sanyal committee, a distributor can take up the defence that ‘he had no reasonable grounds for believing that [the publication] contained or was likely to contain’ material which violated the sub judice rule.69

4. Publication: Contempt was defined either as a ‘civil’ contempt meaning, broadly, any deliberate violation of a court order,70 or ‘criminal’ contempt. Criminal contempt can only take place upon ‘publication’, written or spoken,71 which should therefore exclude private conversations. Criminal contempt is anything which ‘scandalizes . . . or lowers . . . the authority of . . . any court’, ‘prejudices . . . the due course of any judicial proceeding’, or ‘interferes . . . with . . . the administration of justice’, or tends to have this effect.72

5. Fair and Accurate Report: It is not a violation of the sub judice rule for a person to publish ‘a fair and accurate report of a judicial proceeding’ at any stage.73

6. Technical Contempt: Technical contempts are not punishable. A contempt is only punishable if it ‘substantially interferes’ with the ‘due course of justice’ or tends to do so.74

The Supreme Court and the Sub Judice Rule

The Supreme Court has rejected the argument that the sub judice rule should not apply in India because there are no jury trials held here. Instead, the court has held that it is a contempt of court for a person to abuse, vilify, or to create an atmosphere of prejudice against a party to a pending proceeding. To do so, the court has said, may prevent litigants from properly prosecuting their cases and deter potential litigants from bringing their cases to court. It has also been held to be in contempt of court for any person to publish anything which might influence witnesses in a case, or to reveal the identity of a person accused in a criminal case under certain circumstances. Likewise, publishing ‘without prejudice’ settlement talks between parties in a pending case has been found prima facie to be in contempt of court.75 In Hira Lal Dixit v. State of Uttar Pradesh,76 a pamphlet was published during the pendency of a case which was being heard by the Supreme Court. The government of Uttar Pradesh had issued a declaration that transport services on certain routes in the state would be carried on only by the government. This declaration was challenged in writ petitions filed before the Supreme Court by private transport carriers in the state. Against this backdrop, a pamphlet called Hamara Vahan Vibhag or Our Transport Department was published, which commented on the case. The pamphlet contained ‘a strong denunciation of the State of Uttar Pradesh’, which was a party to the proceeding before the court.77 The matter was pending before the Supreme Court and, as such, there was no question of any jury or witnesses being influenced by what was said in the pamphlet. The party against whom the statements were made in the pamphlet was the state of Uttar Pradesh, a party which was not likely to be bullied by statements made in the press. Even so, the Supreme Court found that since the pamphlet was ‘an attempt to prejudice the Court against the State and to stir up public feeling on the very question then pending for decision’, it had violated the sub judice rule.78 Looking at the manner in which the pamphlet was distributed, the language used in it, and the timing of publication, the court found that it could have had only one object, viz., ‘to try and influence the Judges in favour of the petitioner’.79 Similarly, in the case of re: P.C. Sen,80 the state of West Bengal had issued an order imposing restrictions on dealers of sweetmeats made out of channa. A petition was filed in the Calcutta High Court challenging the order. Against this backdrop, the chief minister of the state made a speech on All India Radio, seeking to justify the order. Once again, there was no jury hearing the case, and there were no witnesses. Even so, the Supreme Court found that the chief minister had committed contempt of court. The court specifically rejected the argument that ‘when the trial of a case is held by a Judge without the aid of a jury’, no contempt of this nature may be committed.81 It was held that ‘it would be difficult’ to say that a judge conducting a trial is ‘not likely to be influenced by comments in newspapers or by other media’,82 and that ‘it would be an over-statement to assert that a [judge] may not be influenced even “unconsciously” by what he has read in newspapers.’83 Thus, a violation of the sub judice rule could take place not merely in a trial but also in an appeal where the question being considered is not only one of law or sentencing.84 However, even assuming that judges are not influenced by what they hear or see in the media, the court found that the ‘real danger’85 in sub judice statements was that they could influence litigants or potential litigants. It was held that contempt included ‘abusing parties to actions’, ‘prejudicing mankind in favour of or against a party before the cause is heard’,86 holding up a party, by ‘vilification . . . or abuse’, to ‘public ridicule, obloquy, censure or contempt’ or even seeking to ‘prejudge the issue pending before the court’.87 This is because such statements would have the effect of deterring parties to ongoing proceedings from prosecuting proceedings, to make such parties compromise proceedings in a manner unfavourable to themselves, or to deter other parties with similar claims from approaching courts.88 This was especially so in India, held the court, ‘where personal conduct is largely influenced by [the opinions] of . . . members of [one’s] caste, community, occupation or profession’.89 The court was also to be mindful of the impact of the statement on the minds of witnesses.90 Statements made by parties in ongoing proceedings, or by their lawyers, require more serious attention, said the court.91 The Supreme Court has held that revealing the identity of those accused of criminal offences is, under certain circumstances, a violation of the sub judice rule. For instance, it has been held in one case that publishing photographs of suspects, before the ‘identification parade’ is constituted, would seriously prejudice the trial.92 In another case, Vidya Dhar v. Multi Screen Media (P) Ltd,93 a popular television crime show called Crime Patrol Dastak was going to air a few episodes which were based on a real- life, ongoing criminal case. The court directed the makers of the show to ‘ensure that there is no direct similarity’ between the characters on the show and those actually accused of the offence, and otherwise to take steps to ‘protect their identity, as far as possible’.94

In-Camera Trials and Gag Orders

Courts in India have the power to hold trials ‘in camera’, i.e., to hold trials in private, where no outsider to the case can be permitted into the courtroom, and even to direct the press not to report the proceedings of a case which is otherwise being held in open court. Such powers can only be exercised by a court when a statute permits it to do so, or otherwise in exceptional circumstances. The case of Naresh Shridhar Mirajkar v. State of Maharashtra95 arose against the backdrop of the libel suit filed by Krishnaraj Thackersey against the Bombay tabloid, Blitz, which we have seen in a previous chapter. During the trial, a witness who had already given his evidence, Bhaichand Goda, was recalled to the box to give evidence once again. Goda informed the judge hearing the suit, Justice Tarkunde, that his testimony on the last occasion had caused him some losses in his business. He therefore requested the judge to issue an order directing the press not to report his testimony this time around. Justice Tarkunde agreed and issued an oral direction to the press not to report Goda’s testimony. Some journalists, including Blitz reporter Mirajkar, filed a petition in the Supreme Court challenging Justice Tarkunde’s order. A Bench of nine judges heard the case.96 Speaking for the majority, Chief Justice Gajendragadkar held that Justice Tarkunde could not be understood as having imposed a permanent ban on the press from reporting Goda’s testimony. Tarkunde’s order, said the chief justice, applied only while the trial proceedings were ongoing.97 It was held that all court proceedings must, in general, be held in open court because public scrutiny served ‘as a check against judicial caprice’ and helped create public confidence ‘in the fairness, objectivity, and impartiality of the administration of justice’.98 However, Chief Justice Gajendragadkar found that this rule admitted of some exceptions. It was held that the Bombay High Court had ‘inherent jurisdiction to hold a trial in camera if the ends of justice clearly and necessarily require the adoption of such a course’.99 This power, however, was to be ‘exercised with great caution’ and a court was required to be ‘satisfied beyond a doubt that the ends of justice themselves would be defeated if a case is tried in open court’.100 The chief justice did not apply his mind to whether Justice Tarkunde’s direction in this case was justified or not.101 However, it was held that a court could, instead of holding an entire trial in camera, direct the press not to report the evidence of ‘a particular witness’ if it found that ‘excessive publicity’ would ‘prevent the witness from speaking the truth’.102 In other words, an in camera trial could be held ‘either fully or partially’.103 The court also noted that there were several statutory provisions under which in camera trials are permissible. In Kartar Singh v. State of Punjab,104 the Supreme Court was considering a challenge to the constitutional validity of Section 16 of the Terrorist and Disruptive Activities (Prevention) Act, 1987, which permitted courts to hold cases involving terrorism in camera. Rejecting the challenge, the Supreme Court found that an in camera trial could be held ‘in exceptional circumstances’.105 It was also held that the identity, including the names and addresses, of witnesses in such cases could be withheld from the accused in exceptional cases, ‘for weighty reasons’, especially if the lives of the potential witnesses were in danger.106 In rape cases, it has been held that it is a court’s duty, not merely its discretion, to hold a trial in camera.107 In trials involving child sexual abuse or rape, the Supreme Court has held that a screen or something similar must be used during the trial to shield victims and witnesses from the accused,108 so that they may feel less uncomfortable giving their testimony. In Sahara India Real Estate Corporation Ltd v. SEBI,109 the Supreme Court held that gag orders or ‘postponement orders’ constituted a valid prior restraint on the press under Article 19(2) of the Constitution. The court referred to a postponement order as a ‘neutralising device’, which was necessary for balancing the right to free speech under Article 19(1)(a) with the right of an accused to the presumption of innocence under Article 21. Such orders were held to be not punitive but ‘preventive’.110 The court articulated the following safeguards for passing such orders, among others:

The postponement order must be limited in duration and must not disturb the content of the publication. The applicant must be able to ‘demonstrate substantial risk of prejudice to the pending trial’ and must ‘displace the presumption of open justice’, in other words, there must be a ‘real and substantial risk of prejudice to (the) fairness of the trial or to the proper administration of justice’. A postponement order can only be passed when there is no other reasonable alternative, e.g., change of venue, postponement of trial. The court must take into account the principles of proportionality and necessity. 12 ‘Scurrilous Satire against a Friendless Woman’

In 1837, the draft of the Indian Penal Code (IPC) prepared by the Law Commission headed by Thomas Babington Macaulay made defamation a criminal offence.1 Macaulay’s draft was both better and worse than the contemporary English common law on the subject.2 Macaulay’s draft was better than the English common law at the time for two reasons. Firstly, it made truth an absolute defence to criminal defamation. In other words, a person accused of defaming another could argue in his defence that his allegedly defamatory statements were true. Under English common law at the time, truth was not a defence to criminal defamation,3 though it was an absolute defence in civil defamation cases.4 The Indian Law Commission headed by Macaulay thought it fit to make truth an absolute defence so that anyone could write the truth about a man who, for example, ‘introduces a common prostitute as his wife, into the society of all the most respectable ladies of the Presidency’, or about the captain of a ship who ‘induces natives to emigrate, by promising to convey them to a country where they will have large wages, and little work’ but who actually sells them off as slaves.5 In 1843, however, the Libel Act was enacted in England, which made truth a defence in criminal libel cases only if the statements were published ‘for the public benefit’.6 A few years later, the Indian Law Commission recommended a revision to Macaulay’s draft of the IPC,7 so as to bring it in line with the English Libel Act. In keeping with the English Act, the Indian Law Commission in 1848 recommended that truth only be made a defence to criminal libel in India ‘if it was for the public benefit’. For example, the Commission opined that it would not be for the public benefit for a person to write about a person’s ‘error of conduct long atoned for and forgotten’. Consequently, the first exception to the offence of criminal libel, drawn up by Macaulay, was revised to say that it was ‘not defamation to impute anything which is true . . . if it be for the public good that the imputation should be made or published’. Macaulay’s draft was an improvement over the English common law on criminal libel because it prescribed a maximum sentence of two years (along with a fine), whereas under the English common law a person could theoretically be sentenced to unlimited imprisonment for defaming someone.8 Interestingly, the Libel Act also prescribed a maximum sentence of two years’ imprisonment for some cases of defamation,9 which was similar to what Macaulay had devised in his draft of the IPC. However, despite the enactment of the Constitution in 1950, truth is still not an absolute defence to criminal defamation under the IPC.

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However in some respects, Macaulay’s draft was also worse than the English common law. This was for several reasons. Firstly, it made verbal or oral defamation an offence. In England, it was only when defamation occurred in writing that a person could be criminally punished for it.10 The Indian Law Commission criticized English common law in support of its decision to make verbal defamation punishable. It found that verbal defamation had an even greater tendency to cause a breach of the peace than written defamation. Written defamation, said the Commission, might be ‘contained in a letter intended for a single eye’, while verbal defamation ‘may be heard by an assembly of many thousands’. Further, merely because something was not widely circulated did not mean that the defamation was not significant. ‘A malignant whisper addressed to a single hearer,’ said the Commission, ‘may indicate greater depravity, may cause more intense misery, and may deserve more severe punishment than a satire which has run through twenty editions.’ For example, the Commission believed that it would be a far worse form of defamation for a person to ‘infuse into the mind of a husband suspicions of the fidelity of a virtuous wife’ than for him to insert ‘the lady’s name in a printed lampoon’. The Commission also believed that it was easier for a person to clear his name when the defamation was in writing (e.g., by printing a response in a newspaper) rather than when it was verbal. Thus, in 1860, the IPC made verbal defamation a criminal offence. Moreover, despite the enactment of the Constitution in 1950, verbal defamation still remains a crime under Indian law. Secondly, in England at the time, in order to succeed in criminal libel cases, the prosecution had to establish that the words of the accused were such as to have had the tendency to provoke a breach of the peace. Macaulay’s draft did not make it necessary for the prosecution to establish that there was going to be a likely breach of the peace in order for criminal defamation to have taken place.11 ‘The doctrine that libel is an offence because it tends to breaches of the peace,’ said Sir James Fitzjames Stephen, ‘had no influence at all upon the provisions of the Indian Penal Code.’12 Macaulay and the Commission believed that ‘[d]efamatory imputations of the worst kind may have no tendency to cause acts of violence’, e.g., a ‘scurrilous satire against a friendless woman, published by a person who carefully conceals his name’. Likewise, they believed that words which were not defamatory might have the tendency to provoke a breach of the peace, e.g., ‘an imputation on the courage of an officer, contained in a private letter, meant to be seen only by that officer, and two or three other persons’. It was for this reason that they decided to make defamation an offence ‘without any reference to its tendency to cause acts of illegal violence’. Despite the enactment of the Constitution in 1950, provoking a breach of the peace is still not an ingredient of the offence of criminal defamation in India. Thirdly, Macaulay’s draft did not confer absolute privilege on statements made in court by witnesses or advocates.13 In England, a witness who made a defamatory statement during the course of his testimony in a case, or an advocate who made a defamatory statement while arguing his client’s case, were both protected by the doctrine of ‘absolute privilege’. This meant that they could not be proceeded against under the law of either civil or criminal defamation, even if their words were spoken with malice. However, this exception was not inserted by Macaulay into his draft of the IPC. Consequently, there was near-consensus among the high courts of colonial India that while witnesses and advocates enjoyed absolute privilege in civil defamation cases,14 they enjoyed only ‘qualified privilege’ in criminal defamation cases.15 In other words, a witness or advocate could be prosecuted for making defamatory statements in a case, and they had to show that their words were not actuated by ‘express malice’. An ‘absence of belief in the truth of the defamatory matter’ was usually indicative of express malice.16 In order to show that there was no express malice, a witness or advocate would have to show that he acted in ‘good faith’17 and ‘without any improper motive’.18 Express malice meant ‘ill will or spite towards the plaintiff or any indirect or improper motive in the defendant’s mind at the time of the publication, which is his sole or dominant motive for publishing the words complained of’. However, several high courts took the view that there was a presumption that statements made by advocates in court were made in good faith and on the client’s instructions, and it was for the prosecutor to prove express malice.19 Despite the Constitution, advocates and witnesses still enjoy only qualified privilege in criminal defamation cases for statements they make in court.

* * * In 2009, England got rid of the common law offence of defamation, along with sedition, seditious libel and obscene libel.20 However, the Supreme Court of India recently rejected a challenge to the constitutional validity of Section 499 of the IPC. The court held that the criminal offence of defamation was justifiable because, among other reasons, defamation is a specifically enumerated exception to the right to free speech under Article 19(2), and because a person’s right to free speech does not include the right to harm the reputation of another, as reputation is a part of the right to life under Article 21.21 The court’s judgment has come in for some serious criticism not merely for its reasoning,22 but also for the manner in which it has been written.23 Thus, despite Article 19(1)(a), the criminal offence of defamation in India, with all its idiosyncrasies seen above, remains an offence on the statute books, which is still very much in use.

* * *

The Supreme Court has suggested that qualified privilege may be available for statements made against public officials other than judges. In R. Rajagopal v. State of Tamil Nadu,24 the petitioner was the editor, printer and publisher of a Tamil Nadu weekly magazine called Nakkheeran. The magazine had got its hands on the autobiography of one ‘Auto Shankar’, a person who had been sentenced to death for committing multiple murders. The autobiography, which ran into several hundred pages, revealed that Auto Shankar had connections in the Indian administrative and police services. The inspector general of prisons tried to prevent the petitioner from publishing the autobiography. The Supreme Court held that the government could not impose a prior restraint on ‘material defamatory of the State or of . . . officials’, particularly because there was no law empowering the government to do so.25 Further, the court referred to the test laid down by the US Supreme Court in New York Times v. Sullivan,26 and suggested that public officials do not have a right to maintain an action for damages on any matter touching upon the ‘discharge of their official duties’, unless they are able to show that the defendant acted with malice. In other words, a public official may not be able to file a suit for damages against a person who makes a false defamatory statement about the discharge of that official’s duties. In order to succeed, the public official may have to prove not only that the statement was false, but that the person making it acted ‘with reckless disregard for truth’, meaning that he made the statement without ‘a reasonable verification of the facts’, or that he was ‘actuated by malice or personal animosity’.27 In other words, the court hinted that a qualified privilege would be available to any person who makes a defamatory statement about a public official regarding the discharge of his official duties.28 However, at the same time, the court also held that the power of the judiciary to punish persons for contempt of court constitutes an exception to this rule.29 We have already seen that those who commit contempt in the form of scandalizing the court do not enjoy any qualified privilege for their statements. This means that if a person makes a false defamatory statement about a judge, touching upon the discharge by the judge of his public duties, the judge can simply institute contempt proceedings against this person, where no such standard or limitation will apply. This is odd, because it waters down the New York Times standard in India when it comes to the judiciary.

* * *

In short, the enactment of the Constitution made virtually no difference to the law of criminal defamation. This is because: truth is still not an absolute defence to criminal defamation; verbal defamation is still criminally punishable; it is not necessary for the defamatory statement to have the tendency to provoke a breach of the peace or to be serious/non-trivial; witnesses and advocates do not enjoy absolute privilege in criminal defamation cases; Section 499 of the IPC, i.e., the criminal offence of defamation, still stands on the statute books; and the New York Times standard may apply to public officials, but not to judges; all this, despite the existence of a fundamental right to free speech under the Constitution. 13 Shouting Fire in a Crowded Theatre

This chapter deals with hate speech in India, which, broadly speaking, includes any speech which incites violent conflicts between different communities, typically Hindus and Muslims. We will see that the provisions relating to hate speech in the Indian Penal Code (IPC) were inserted in the 1890s and 1920s, as a result of books written by Hindus insulting Islam or the Prophet Mohammed. These books were written in Lahore, a hotbed of communal conflict at the time. British administrators responded by making hate speech a criminally punishable offence. We will see that the enactment of the Constitution has not, in any manner, limited or restricted the provisions of the IPC which deal with hate speech. If anything, those provisions have become even stronger in independent India. This is certainly what India’s founding fathers intended. After all, we have already seen that the First Amendment was primarily concerned with hate speech during the Hindu-Muslim riots at the time of the Nehru-Liaquat Pact, because of which ‘public order’ was introduced as an exception to the right to free speech.

Hate Speech in Colonial India Historically, hate speech was considered to be a part of the law of sedition in England. In his authoritative nineteenth-century treatise on the criminal law of England, Stephen said that a person who ‘[promotes] feelings of ill will and hostility between different classes of [Her Majesty’s] subjects’ commits sedition1. However, Macaulay’s draft of the IPC did not make hate speech a part of sedition. Likewise, as law member of the Viceroy’s Council, when Stephen himself amended the IPC in 1870 to make sedition an offence under Section 124-A, hate speech was not included within its ambit. It was only in 1898, when the definition of sedition itself was being amended, as we have seen, to bring it in line with the judgments of the Bombay, Calcutta and Allahabad High Courts, that a new provision, Section 153-A, was inserted into the IPC, making hate speech a crime.2 Thereafter, it was a crime to ‘promote feelings of enmity or hatred between different classes of Her Majesty’s subjects’.3 While introducing the amendment to make hate speech a crime under the IPC, the then law member of the Viceroy’s Council, Chalmers, said that while hate speech was punishable in England with its ‘homogenous population’, it was even more necessary in India ‘where different races and religions are in continual contact’.4 He referred to ‘recent agitations’ that had taken place ‘in various parts of India’, which had convinced the government that agitations which sought to fan the flames of ‘racial and religious antagonism’ were very dangerous to public tranquillity.5 One of these incidents was the murder of a man called Lekh Ram in Lahore in 1897. Lekh Ram was a prominent member of the Arya Samaj. In around 1892, he wrote a pamphlet in which he criticized Islam in very harsh and severe terms. In 1893, the founder of the Ahmadiyya sect of Islam, Mirza Ghulam Ahmad, prophesied that Lekh Ram would die within six years of making those insulting remarks. Lekh Ram was murdered in March 1897.6 Law member Chalmers specifically referred to ‘the murder of Lekh Ram at Lahore’ as justification for the insertion of Section 153-A into the IPC. However, Chalmers also referred to other incidents which had taken place in British India at around that time, e.g., the ‘cow-killing riots in Western India’, and incidents in Peshawar District, Sinnar and Poona, though some of these incidents had nothing to do with hate speech at all.7 Most of the members of the Council spoke in favour of the amendment. Nicholson, who had previously served as a magistrate in Madras, said that the provision would help judges deal with India’s ‘various sectarian differences’, and with ‘long-standing and easily-excited feuds between the castes’. However, some, mostly Indian voices, spoke against the amendment. One member of the Council, Sayani, said that Section 153-A would prevent social reformers from criticizing religion, e.g., it would prevent those who ‘advocate widow re-marriage’, that it would come in the way of ‘the vegetarian movement, the Brahmo-Somaj movement, the monotheism movement, the anti-idolatry movement, and the Prarathna Somaj movement’, though none of these excited ‘hatred and contempt’. Another member, Chitnavis, said that Hindus and Muslims in India had, ‘for the most part’, lived together ‘in peace and amity’, that the ‘recent agitations’ which had necessitated the amendment were ‘sudden outbursts of religious passion’ against which penal laws would have no effect. Though Section 153-A of the IPC was enacted in 1898, it seemingly remained dormant for several decades. The first authoritative decision involving this provision came in 1926 in a case decided by the Calcutta High Court.8 A newspaper called the Forward, printed in Calcutta, carried an English translation of an Urdu pamphlet calling on Muslims to commit violence against others. Justice Rankin held that it was not merely the tendency of a newspaper article which was to be looked at, but the intent of the person who wrote or published it. He gave an example and said that newspapers often carry reports of incidents of communal violence. For example, a newspaper may say that a Hindu was badly assaulted or murdered by a Muslim. Some might read this newspaper and be tempted to commit acts of retaliatory violence against Muslims. However, Rankin said that this did not mean that the newspaper article would fall foul of Section 153-A of the IPC. The judge found that the Forward newspaper in this case had ‘given its readers in the ordinary way a perfectly legitimate and sensible piece of news without any intention to . . . [promote or further] class hatred’. The mere fact that the news story was such that ‘some people reading it may momentarily or foolishly be induced to entertain unreasonable feelings towards a class of other people’ was not enough to attract penalties under Section 153-A.9 However, in 1927, a case was decided in Lahore which substantially complicated matters.10 The case concerned an Urdu pamphlet written by a Hindu, which insulted Prophet Mohammed. The pamphlet was entitled Rangila Rasul which, literally translated, means ‘colourful prophet’. It was written by Pandit Chamupati, once again a member of the Arya Samaj.11 The pamphlet was published in 1924, and Gandhi strongly condemned it. In the pages of Young India, Gandhi said that the ‘very title is highly offensive’, that its ‘contents are in keeping with the title’, that ‘[a]buse and caricature of the Prophet’ had ‘no value whatsoever’, and the harm that it could do was obvious.12 He believed that the motive of its writer was only to ‘inflame passions’. The case came up before a non-Muslim judge of the Lahore High Court, Justice Dalip Singh. Singh held that though the pamphlet was ‘a scurrilous satire on the founder of the Muslim religion’, there was nothing in it which showed that ‘it was meant to attack the Mahomedan religion as such or to hold up Mahomedans as objects worthy of enmity or hatred.’ This was despite the fact, said Singh, that the ‘tone of the pamphlet as a whole’ was ‘undoubtedly malicious and likely to wound the religious feelings of the Muslim community’. Singh believed that Section 153-A was meant to prevent people from attacking a particular community as it existed at the present time, and was ‘not meant to stop polemics against deceased religious leaders however scurrilous and in bad taste such attacks might be’. Singh was worried that if attacks on religious leaders like the Prophet were brought within the ambit of the section, then even a ‘historical work’ by a ‘serious historian’ which considered the life of the Prophet and passed judgment on his character would come within its ambit. Justice Dalip Singh’s judgment raised a furore in the North West Provinces of British India.13 There was widespread unrest among Muslims in the region. Many called for Justice Singh to resign, and we have already seen that the Muslim Outlook newspaper was hauled up for committing contempt of court for suggesting that Singh had been motivated by extraneous considerations while delivering his judgment. The Rangila Rasul case was followed close on its heels by another judgment of the Lahore High Court.14 In May 1927, a monthly Urdu journal called Risala-i-Vartman, carried an article called ‘Sair-i-Dozakh’ or a ‘Trip to Hell’. It was authored by a Hindu called Devi Sharan Sharma. In the article, the writer is in a dream and visits both heaven and hell. In hell, he sees the Prophet suffering. The case was decided this time around by two British judges, Broadway and Skemp. This was peculiar because criminal trials were typically decided by one judge, not two. The administration also seemed to deliberately have left out Indian judges from deciding the case. While deciding the case, Justice Broadway found that the article was ‘in extremely bad taste, scurrilous in nature and [was] a disgusting satire on certain incidents in the life of the holy prophet of Islam’. It fell foul, said the judge, of Section 153-A of the IPC, and Sharma was sentenced to one year’s rigorous imprisonment. However, Justice Broadway also found that ‘a reasoned, critical and strong attack on a religion or its founder, written by way of comment’, and ‘with a view to induce persons to forsake that religion . . . for another’ would not be prohibited by Section 153A of the IPC. Only a ‘scurrilous and vituperative attack on a religion or on its founder’ constituted the subject matter of the provision. In other words, though ‘an attack on the founder of a religion’ was hard to distinguish from ‘an attack on the religion founded by him’, not every criticism of a religious leader, dead or alive, fell within the meaning of Section 153-A. Similarly, in 1927, the Allahabad High Court decided a case involving a Hindi book called Bichitra Jiwan. The book insulted the Prophet Mohammed, by saying that he sanctioned practices like adultery and incest. The government had decided to ban the book. All three judges of the court who decided the case agreed with the government’s decision.15 Despite the course correction of the Lahore High Court in the Risala-i- Vartman case, the IPC was amended in 1927 and a new provision, Section 295-A, was inserted into it, which made it a crime for any person, with ‘deliberate and malicious intention’16 to ‘outrage the religious feelings’, or insult the ‘religion or the religious beliefs’17 of any class of persons. The provision was hotly debated in the Legislative Council. In their minutes of dissent, some members18 of the Select Committee of the Legislative Council, like N.C. Kelkar, said that it would encourage religious fanatics, since ‘the inculcation of peace’ was ‘an essential principle of all the great religions practised in India’ and those who took to violence against scurrilous and vulgar attacks on religion violated this principle. They believed that the amendment would put pressure on the authorities to use the new provision against social reformers or against ‘those who wish to assist the evolution of the popular understanding of religions so as to bring this understanding into closer conformity with the spirit of the original teachings’. They felt that the existing provisions of the IPC were sufficient to deal with hate speech, and that the Risala-i-Vartman case confirmed their view. Other members of the Select Committee, led by M.A. Jinnah, argued that the new provision was not harsh enough. It was largely due to Jinnah’s efforts that Section 295-A was made a non-bailable offence.19

Clear and Present Danger

Though America’s Constitution was enacted in the late eighteenth century, it was only in the early twentieth century that one of the first major free speech cases was decided there. The case was Schenck v. US.20 Charles Schenck, a prominent socialist, ‘attempted to distribute thousands of flyers to American servicemen recently drafted’21 for the Great War. The flyers said things like a conscript (i.e., a person compulsorily enlisted into the armed forces) was ‘little better than a convict’. ‘Do not submit to intimidation’, Schenck counselled members of the American armed forces, adding, ‘assert your rights’. In deciding whether this was part of the right to free speech or not, Justice Oliver Wendell Holmes wrote the following famous words: [T]he character of every act depends upon the circumstances in which it is done . . . The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic . . . The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.22

This ‘clear and present danger’ test seemed to contain three ingredients: Firstly, Holmes said that the nature of the words themselves were important. If a person shouted, ‘Popcorn!’ in a theatre,23 after all, this would not be barred under the First Amendment. What words were being uttered and how they were uttered was material, like shouting (not merely uttering or saying) the word ‘fire’. Secondly, Holmes held that the circumstances in which the words were uttered were relevant too. If a person shouts ‘fire’ on the beach, on a peaceful moonlit night, with nobody else around him, that can hardly be considered prohibited speech either. As Holmes said in another case,24 there are times when ‘a little breath would be enough to kindle a flame’. Thirdly, Holmes emphasized intent. If a person shouts ‘fire’ in a theatre because he actually believes that there is a fire, even if it turns out that he was wrong, his speech cannot be considered barred under the US Constitution’s First Amendment.25 The Espionage Act in the US was amended in 1918 making it illegal for any person to urge ‘the curtailment of production of materials necessary’ in the Great War.26 At the time, the US was at war with Germany, not Russia. Russia had left the war after its Bolshevik revolution. In 1918, the US sent its armed forces to cities in the Soviet Union to support the ‘whites’ (who were loyal to the old order) against the ‘reds’.27 Jacob Abrams and a few others were immigrants from Russia who were self-described anarchists.28 Abrams and others thought that the American involvement in Russia was meant to ‘crush the Russian revolution’. They distributed thousands of circulars in New York City ‘advocating a general strike and appealing to workers in ammunitions factories to stop producing weapons’.29 Their intent was not to hinder America’s war effort, but only to prevent it from upsetting the Bolshevik regime in the Soviet Union. They were convicted and the Supreme Court, in Abrams v. US,30 upheld their convictions. This time around, Justice Holmes, joined by Justice Brandeis, delivered a famous dissent. He restated the ‘clear and present danger’ test as the ‘clear and imminent’ danger test, and found that a person’s speech would be considered protected unless it imminently incited insurrection or violence. He concluded his judgment with the famous words that ‘the best test of truth is the power of the thought to get itself accepted in the competition of the market’.31 The reason why a person does not have a right to shout fire in a crowded theatre where he knows that there is no fire is because it is impossible to argue with that person. However, if there is sufficient time to argue with and prove a speaker wrong, the Holmesian approach would suggest that the speaker should have the freedom to say what he wants.32 The Holmes-Brandeis approach was accepted by the US Supreme Court in the case of Brandenburg v. Ohio.33 The appellant in this case was a leader of the Ku Klux Klan, a militant organization which believes in the superiority of the white race, and which is vocally anti-Semitic, anti- Catholic, and anti-black.34 He was involved in public meetings at which hooded figures stood in front of burning crosses and said things like, ‘Personally, I believe the nigger should be returned to Africa, the Jew returned to Israel’, and ‘We’re not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance taken.’ He was convicted under the Criminal Syndicalism statute of the state of Ohio, which made it a crime to advocate the duty, necessity, or propriety of crime. The court distinguished between ‘advocacy’ and ‘incitement’ and held that while the former was protected by the right to free speech, the latter was not.35 The Ohio law was struck down for prohibiting mere advocacy as distinguished from incitement.36

Advocacy and Incitement in Independent India In many cases, the Supreme Court of India has held, like the US Supreme Court, that only incitement of offences is prohibited, while advocacy is not. In Balwant Singh v. State of Punjab,37 Balwant Singh and Bhupinder Singh were government servants. On 31 October 1984 (the day that Prime Minister Indira Gandhi was assassinated), they came out of their offices in the evening and shouted anti-India slogans in a crowded place, slogans like ‘Khalistan Zindabad’. They were convicted of, among other things, engaging in hate speech. The Supreme Court reversed the verdict and held that the mere raising of ‘casual slogans a couple of times’, without some more overt act, was insufficient to constitute hate speech. The fact that they were not leading a procession, that they did not have any intent to incite anyone to ‘create disorder’, and that their slogans generally did not evoke any response or create any law and order problem, was taken into account by the court while arriving at its conclusion. Sober criticisms of government policy, even if they concern touchy subjects like religion or language, would not be considered prohibited speech. For example, in Dr. V.K. Javali v. State of Mysore,38 the Supreme Court was considering a speech by a government official who criticized the Hindi language policy of the government. In the speech, the official said that the medium of instruction in schools and colleges, and the official language of the courts, must be the local language. He said that different provincial languages should be taught in different provinces, but that ‘Kannada should be ahead and Hindi behind it’. The court held that this speech could not be considered as disturbing the public order even on a very liberal interpretation of the words ‘public order’.39 In Gajanan Visheshwar Birjur v. Union of India,40 the Supreme Court was considering a case brought by a distributor and publisher of Marxist literature in India. In 1978, he had imported books comprising the writings of Mao Zedong from the People’s Republic of China. The books were confiscated by Indian customs authorities under a notification issued by the central government under the Sea Customs Act, 1878, which prohibited the entry into India of books, newspapers or documents which, among other things, incited violence or seduced members of the armed forces to disobey orders. The case was finally decided by the Supreme Court around fifteen years later, in 1994, by when, as the court noted, there had been ‘cataclysmic changes in the communist world’, such that ‘no one would care to seize or confiscate the writings of Mao, if they (were) imported today.’41 The court struck down the order, holding that an ‘idea can never be killed’. In Shreya Singhal v. Union of India,42 the Supreme Court was considering, among other things, the constitutional validity of Section 66-A of the Information Technology Act, 2000, which made it a criminal offence punishable with both imprisonment of up to three years and a fine, for any person to send by means of a computer or communication device information that was ‘grossly offensive’, information known to be false for causing ‘annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently’, or for simply ‘causing annoyance or inconvenience or to deceive or . . . mislead the addressee or recipient about the origin’ of the message. Justice Nariman held that, ‘Mere discussion or even advocacy of a particular cause howsoever unpopular’ lies at the heart of Article 19(1)(a) and cannot be prohibited, and that ‘It is only when such discussion or advocacy reaches the level of incitement that Article 19(2) kicks in.’43 There must be some proximate causal nexus between the speech in question and public disorder under Indian law. In other words, while it is not necessary for the speech to have the imminent and inexorable consequence of leading to public disorder, like falsely shouting fire in a crowded theatre, there must still be some close causal link between the speech and public disorder. In Superintendent, Central Prison v. Dr Ram Manohar Lohia,44 the Supreme Court was considering the constitutional validity of Section 3 of the U.P. Special Powers Act, 1932, according to which it is a criminal offence for any person to instigate others ‘not to pay or to defer payment of any liability’. Ram Manohar Lohia had made speeches instigating members of his audience not to pay enhanced irrigation rates to the government. While holding the section to be invalid, the court found that it bore no connection with public order. In Kameshwar Prasad v. State of Bihar,45 the Supreme Court was considering the validity of Rule 4-A of the Bihar Government Servants’ Conduct Rules, 1956, which prohibited a government servant from participating in ‘any demonstration’ or from resorting to ‘any form of strike’ ‘in connection with any matter pertaining to his conditions of service’. It was held that demonstrations could be of various kinds, either violent, ‘noisy and disorderly, for instance stone-throwing by a crowd’, or ‘peaceful and orderly’ such as the wearing of a badge by members of a group to draw attention to their grievances.46 The court struck the rule down in so far as it applied to demonstrations because it placed a ban ‘on every type of demonstration’, ‘however innocent and however incapable of causing a breach of public tranquillity’.47 In Kedar Nath Singh v. State of Bihar,48 the Supreme Court was considering, among other things, the constitutional validity of Section 505 of the IPC. The Section made it an offence for a speaker to cause a member of the armed forces to ‘disregard or fail in his duty as such’, to induce ‘fear or alarm to the public’ such that a person would thereby commit an offence against the State or against public tranquillity, or to incite members of one community to commit an offence against members of another community. It was held that this Section had ‘a direct effect on . . . the security of the State or public order’,49 and its constitutional validity was therefore upheld.

The Heckler’s Veto

In a vast majority of cases, the Supreme Court has held that speech which has the mere ‘tendency’ to create public disorder is prohibited. When, however, can it be said that words have the ‘tendency’ to undermine public order? In several judgments, the Supreme Court has laid down some tests for determining this. The first of these is that while ascertaining whether or not speech tends to give rise to public disorder, a court must place itself in the shoes of a reasonable listener, not an oversensitive one. The concept that speech must be banned because listeners might erupt into spontaneous public disorder is known in constitutional law as the ‘heckler’s veto’,50 a term coined by American scholar Harry Kalven, Jr.51 It is so named because it gives hecklers, those who do not like a certain kind of speech and are prone to combust into unrehearsed disorder, a veto over what is said in public. The Supreme Court has held that public order must be measured through the ears of the reasonable heckler. However, the court has also held that the social class of the listener is important, hinting that if a speech is designed for lower-class listeners (as is perhaps the case in hate speech), then even unreasonable hecklers will have a veto over it. Further, if the speech involves a touchy subject like the religious beliefs of minorities, then the court will not only look at a case from the point of view of reasonable hecklers. The reasonable hecklers idea was first articulated by Justice V.R. Krishna Iyer in State of Uttar Pradesh v. Lalai Singh Yadav.52 The Government of Uttar Pradesh had issued an order forfeiting copies of a book entitled Ramayan: A True Reading, written by a political figure and rationalist. Quashing the ban order, Justice Krishna Iyer held that different persons may have different reactions to the same work, and that speech and expression must not be judged from the standpoint of ‘a few fanatics [who] hold obdurate views’. In a remarkable passage, Justice Krishna Iyer held as follows:

What offends a primitive people may be laughable for progressive communities. What is outrageous heresy for one religion or sect or country or time may be untouchably holy for another . . . From Galileo and Darwin, Thoreau and Ruskin to Karl Marx, H.G. Wells, Bernard Shaw and Bertrand Russell, many great thinkers have been objected to for their thoughts and statements—avoiding for a moment great Indians from Manu to Nehru. Even today, here and there, diehards may be found in our country who are offended by their writings but no government will be antediluvian enough to invoke the power to seize their great writings because a few fanatics hold obdurate views on them.53

In Ramesh v. Union of India,54 the Supreme Court was considering whether a television series called Tamas ought to be restrained from being telecast. The series depicted scenes of communal tension between Hindus, Muslims and Sikhs in pre-partition Lahore. While allowing the series to be shown on television, the Supreme Court adopted the test laid down by Justice Vivian Bose when he was a judge of the Nagpur High Court. Bose had held that ‘the effect of the words must be judged from the standards of reasonable, strong-minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view’.55 In S. Rangarajan v. P. Jagjivan Ram,56 the Supreme Court was similarly dealing with a case of film censorship. The Censor Board had granted a Tamil film, Ore Oru Gramathile or In One Village a ‘U’ certificate, making it fit for universal exhibition. The film criticized the policy of caste-based reservations in educational institutions, and suggested that reservations ought to be based on economic considerations instead. The Supreme Court upheld the Censor Board’s decision. It was held that a Censor Board must judge a film from the standpoint of ‘an ordinary man of common sense and prudence’, not that of an ‘out of the ordinary or hypersensitive man’.57 The ‘main theme’ of the work as a whole was to be considered, and not ‘stray sentences or isolated passages’.58 ‘In [a] democracy’, said the court, ‘it is not necessary that everyone should sing the same song.’59 The heckler’s veto was strongly rejected in this case. It was held that a constitutionally protected film could not be prohibited from public viewing merely because of a ‘threat of demonstration and processions or threats of violence’, as this, said the court, ‘would [be] tantamount to negation of the rule of law and a surrender to blackmail and intimidation’.60 A government could not ‘plead its inability to handle the hostile audience problem’.61 The Supreme Court thereafter scaled back this idea in Baragur Ramachandrappa v. State of Karnataka.62 In that case, the court was considering the validity of an order by the Government of Karnataka forfeiting all copies of a book called Dharmakaarana for offending the sentiments of followers of the Veerashaiva sect. Chapter 12 of the book argued that Channabasaveshwara, the founder of the Veerashaiva sect, was an illegitimate son who had been conceived out of wedlock. It was held by the court that ‘India is a country with vast disparities in language, culture and religion and unwarranted and malicious criticism or interference in the faith of others cannot be accepted.’63 Though the court noted that ‘what may be a laughable allegation to a progressive people could appear as sheer heresy to a conservative or sensitive one’,64 it did not adopt Justice Krishna Iyer’s approach of determining whether only a ‘few fanatics’ holding ‘obdurate views’ would be offended by Chapter 12 of the book. Instead, it was held that ‘India is a country with huge diversities in language and religion and the weaker amongst them must be shown extra care and consideration.’65 This test can at best be described as the ‘kid-gloves’ approach. The underlying theory animating this judgment was that religious and linguistic minorities will tend to be sensitive about their religion and language, and so they will have to be treated with kid-gloves, such that any speech which targets their religion or language will have to be scrutinized very carefully.

Banning Books

There are criminal procedure statutes in India which enable magistrates or state governments to impose prior restraints on speech if a breach of the public order is anticipated. The Supreme Court has upheld the constitutional validity of such statutes, primarily because such statutes contain numerous procedural safeguards against abuse, and because the statutes typically limit the orders imposing prior restraints to a certain timeframe. For instance, the constitutional validity of Section 144 of the Criminal Procedure Code has repeatedly been upheld by the Supreme Court. Section 144 enables specified magistrates to pass an order which can, among other things, prevent public meetings from being held. This law has been upheld by the court because it contains numerous procedural safeguards which prevent it from being abused.66 The Criminal Procedure Code allows state governments to forfeit books if it is apprehended that they will violate certain enumerated provisions under the IPC like sedition or hate speech.67 The court has typically invalidated orders passed under these provisions if they did not sufficiently set out the grounds on which they were based. In Harnam Das v. State of Uttar Pradesh,68 Harnam Das was the author of two Hindi books, Sikh Mat Khandan Part 1 and Bhoomika Nazam Sikh Mat Khandan, published in 1953. The Government of Uttar Pradesh passed an order forfeiting the books on the ground that their publication was punishable under Section 153-A of the IPC. The Supreme Court in this case held that in order to forfeit a book, a government had to satisfy two conditions: (i) firstly, a state government was required to form an opinion that the book whose forfeiture was being contemplated was proscribed under the enumerated sections of the IPC, and (ii) secondly, the grounds for the government’s opinion were to be set out in the order. It was held that in this case, the state government had failed to set out the grounds for its opinion in the order.69 It was also held that if the state government did not specify its reasons in its order, it was not for the court to examine the contents of the impugned book and to see for itself whether any grounds existed for the forfeiture.70 In State of Maharashtra v. Sangharaj Damodar Rupawate,71 the State of Maharashtra had ordered the forfeiture of a book entitled Shivaji—Hindu King in Islamic India written by James Laine, professor of religious studies at Macalester College in the US. The book was a biographical study, based on archival research, of the iconic Maratha king, Chhatrapati Shivaji Maharaj. Shivaji is a very important symbol in the state of Maharashtra. He is considered to be one of the few Hindu kings who were able to stand up to Muslim rule in pre-colonial India. As such, his name has been appropriated by a prominent political party in Maharashtra, the ‘Shiv Sena’. In 1968, Shivaji’s name was inserted into the Schedule of the Emblems and Names (Prevention of Improper Use) Act, 1950, meaning that no person can use his name etc. in a trade, business, etc. Shivaji is the only Indian king whose name is in the Schedule to the Act. Laine’s book on Shivaji, though backed by historical research, was considered derogatory by some in Maharashtra. Laine wrote an alternative version of some of Shivaji’s heroic deeds. For example, the fabled killing of Afzal Khan by Shivaji was said to be ‘premeditated violence in the service of the Brahmanic world order’. Doubts were cast on Shivaji’s parentage. It was suggested that he was not a Maratha, but possibly a Rajput. It was said that his guardian was also his biological father. Shivaji was also portrayed as a power-hungry figure, motivated by a quest for power. Several people took to the streets in protest against the book. Their actions bordered on the inane. For example, in the acknowledgments section in his book, Laine had merely thanked a library, the famed Bhandarkar Oriental Research Institute in Pune, where he had found archival materials. Angry protestors stormed into the institute and destroyed priceless archives. Laine, in his acknowledgments, had also thanked a Sanskrit scholar in Pune, Shashikant Bahulkar. Angry protestors ‘blackened’ the scholar’s face (i.e., they applied some kind of black ink or paint to his face), a form of protest which has deeply questionable, racist undertones. A criminal complaint in the form of a First Information Report was also filed by an individual against the author of the book and others. This time around, the state of Maharashtra in its order had set out detailed reasons why the book had been ordered to be forfeited. However, the court examined these reasons and found them to be insufficient. It was held that the power to forfeit a book was a drastic one, which impinged upon the right to privacy as well.72 Speaking for the court, Justice D.K. Jain adopted Justice Vivian Bose’s test seen above. It was also held that the ‘class of readers’ for whom the book is primarily meant is ‘relevant for judging the probable consequences of the writing’.73 The government’s order of forfeiture was set aside.74

The Supreme Court of India and US First Amendment Law The Supreme Court of India has had an uneasy relationship with the First Amendment to the US Constitution. We have seen that Articles 19(1)(a) and 19(2) of the Constitution were inspired by the Irish, not the American, Constitution. Yet, the framers of India’s Constitution repeatedly referred to judgments not of Irish courts but of American ones. Even the Supreme Court of India has, time and again, referred to judgments of the US Supreme Court, while simultaneously counselling against their use on account of textual dissimilarities between the Constitutional protection to free speech in both countries. For example, in Babulal Parate v. State of Maharashtra,75 the Supreme Court held that the doctrine of ‘clear and present danger’ laid down in Schenck could not apply in India on account of the textual differences between the First Amendment in the US and Article 19(1)(a) in India.76 Further, in Madhu Limaye’s case,77 the Supreme Court held that US rulings were ‘apt to be misapplied’78 in India on account of the textual differences between the US First Amendment and the Indian Article 19(1)(a).79 However, in Lalai Singh Yadav’s case, Justice Krishna Iyer held that ‘while the American theory of clear and present danger . . . does not necessarily apply in India, the illuminating observations of Holmes, J. serve to educate the administrator and Judge.’80 In S. Rangarajan,81 the Supreme Court said that the decisions of the US Supreme Court were not very useful on account of the textual differences between the First Amendment to the Constitution in the US and Article 19(2) of the Constitution of India.82 However, despite this, the court seemed to adopt the clear and present danger test in that case. The question the court asked itself was whether the speech in question was ‘inseparably locked up with the action contemplated’, the equivalent of a ‘spark in a powder keg’.83 Thereafter, in Shreya Singhal,84 Justice R.F. Nariman (who is possibly the first judge of the Supreme Court of India who has an LL.M. degree from Harvard Law School) discussed, in great detail, the law of free speech in the US. It was pointed out that there were essentially four differences between the rights to free speech in the US and India: (1) the textual right to free speech under the US Constitution is absolute, whereas in India it is not; (2) the US Constitution specifically mentions the right to a free press, but omits to mention any right to ‘expression’, whereas the Indian Constitution omits to mention a right to a free press, but mentions a right to expression; (3) in the US, speech may be abridged, whereas in India, reasonable restrictions may be imposed on it; and (4) there are eight specifically enumerated restrictions to free speech under Article 19(2), which are absent in the US Constitution.85 It was held that the first three differences were not very significant:86 Despite being textually absolute, the right to free speech in the US was subject to restrictions as well. The right to free speech in India includes a right to a free press, and the right to free speech in the US includes the right to free expression. Both abridgments to free speech in the US and restrictions to free speech in India must be ‘narrowly tailored or narrowly interpreted so as to abridge or restrict only what is absolutely necessary’.87 Thus, it was only the fourth difference which was significant. It was held that in the US, a law must have a ‘compelling necessity’ in order to abridge the freedom of speech legitimately, whereas in India such laws would pass muster so long as they were ‘in the interest of the general public’.88 It was held that the judgments of US courts on the right to free speech had ‘great persuasive value on the content of freedom of speech and expression and the tests laid down for its infringement’.89

Hate Speech in the US

The history of ‘hate speech’ doctrine in the US may be traced back to the case of Beauharnais v. People of the State of Illinois.90 Joseph Beauharnais was the president of a white supremacist organization, the White Circle League of America. He distributed, through the volunteers of the organization, leaflets which petitioned the Mayor and City Council of Chicago ‘to halt the further encroachment, harassment and invasion of white people, their property, (neighbourhoods) and persons, by the Negro’. The leaflet said that if ‘persuasion and the need to prevent the white race from becoming mongrelized by the negro will not unite us, then the aggressions . . . rapes, robberies, knives, guns and marijuana of the negro, surely will.’ He was charged under a statute in Illinois which made it unlawful for any person to portray ‘a class of citizens, of any race, colour, creed or religion’ as depraved, criminals, unchaste or lacking in virtue, or to otherwise expose them to ‘contempt, derision, or obloquy’. Speaking for the majority in a court which was divided down the middle 5-4, Justice Frankfurter upheld the constitutional validity of the statute. However, the judgment of the US Supreme Court in Beauharnais can no longer be considered good law today.91 It was virtually ignored by the Supreme Court of Illinois in Village of Skokie v. National Socialist Party of America.92 The defendants in this case, the National Socialist Party of America, were Nazi sympathizers. They proposed to organize a march in the village of Skokie, Illinois, where their members would wear uniforms containing a ‘swastika emblem or armband’. Out of 70,000 residents of Skokie, 40,500 were persons of ‘Jewish religion or Jewish ancestry’, of whom 5,000 to 7,000 were actual survivors of German concentration camps. The village of Skokie filed a complaint in the circuit court of Cook County and obtained an injunction restraining the defendants from holding the march. The Supreme Court of Illinois vacated the injunction. It was held that the display of the swastika, though ‘offensive to the principles of a free nation’, was ‘symbolic political speech intended to convey to the public the beliefs of those who display it’. It was held that the display of swastikas in peaceful demonstrations could not be precluded merely because it ‘may provoke a violent reaction by those who view it’. This was particularly held to be so because the defendants had given advance notice of their protest march, and those who did not want to see the swastika banners or uniforms had sufficient notice to avert their gaze. ‘A speaker who gives prior notice of his message has not compelled a confrontation with those who voluntarily listen’, it was held. Interestingly, many universities in the US started banning hate speech on their campuses starting in the 1980s. However, courts struck these regulations down. For example, in June 1990, Stanford University introduced a rule on its campus which prohibited, among other things, speech which constituted ‘harassment by personal vilification’ if it was ‘intended to insult or stigmatize a small group of individuals on the basis of their sex, race, colour, handicap, religion, sexual orientation, or national and ethnic origin’. The rule was struck down by a California State Court in Robert J. Corry v. Stanford University.93 Beauharnais’s death knell was finally sounded by the US Supreme Court in R.A.V. v. City of St Paul.94 The petitioner and others in this case had taped together a crude cross, which they then proceeded to burn inside the fenced yard of a black family which lived across the street from the house where the petitioner was staying. To burn a cross on a black family’s yard is to convey a message of threat and intimidation, that the black family is not welcome there, that the life and well-being of its members is in serious danger, and that there are white supremacists in the neighbourhood. The petitioner could have been charged with any number of offences, e.g. trespass. However, the City of St. Paul, Minnesota, decided to charge him under an ordinance which made it a misdemeanour to, among other things, place on public or private property a symbol or object like a burning cross or Nazi swastika, knowing that this would arouse anger, alarm or resentment in a group based on race, colour, creed, religion, or gender. Justice Scalia, the late conservative icon of the US Supreme Court, delivered the court’s majority opinion. The statute was struck down for discriminating between different viewpoints. The court held that the ordinance permitted ‘fighting words’ to be used by those who argued in favour of racial equality, but it did not permit such words to be used by those arguing against it. Thus, for example, the court found that the ordinance permitted a person to say that ‘all anti-Catholic bigots are misbegotten’, but not that ‘all papists are’. ‘St Paul has no such authority to license one side of a debate to fight freestyle’, said Scalia, ‘while requiring the other to follow Marquis of Queensbury Rules’. In Snyder v. Phelps,95 Matthew Snyder, a member of the US armed forces, was killed in Iraq in the line of duty. His father was holding a funeral service for him. Members of the Westboro Baptist Church picketed near the funeral service, and carried signs which said: ‘God Hates the USA/Thank God for 9/11,’ ‘America is Doomed,’ ‘Don’t Pray for the USA,’ ‘Thank God for IEDs,’ ‘Thank God for Dead Soldiers,’ ‘Pope in Hell,’ ‘Priests Rape Boys,’ ‘God Hates Fags,’ ‘You’re Going to Hell,’ and ‘God Hates You.’ The soldier was not actually a homosexual.96 The soldier’s father sued the founder of the church and the jury awarded him millions of dollars in compensatory and punitive damages. However, Chief Justice Roberts, speaking for the court, disagreed with the verdict. It was held that the ‘overall thrust and dominant theme’ of the signs on display related to ‘broad issues of interest to society at large’, not matters of ‘purely private concern’. The court found that the distress caused to participants at the funeral was on account of the viewpoint of the message conveyed by the signs, not by any unruly behaviour on the part of the demonstrators. As the speech involved was ‘at a public place on a matter of public concern’, it was entitled to ‘special protection’ under the First Amendment, and could not be restricted ‘simply because it is upsetting or arouses contempt’. It was held that even hurtful speech on public issues was protected in the US to ensure that public debate does not get stifled. The US tends to be an outlier97 in the protection its Constitution grants to hate speech. All the world over, hate speech is substantially regulated. Even within the US, the Constitutional protection granted to hate speech is not without its detractors. Most recently, Jeremy Waldron, professor at the New York University School of Law, has written a book which launches an eloquent attack on hate speech doctrine in the US.98 Born in New Zealand, Waldron taught at Oxford prior to his move to the US. In his book, The Harm in Hate Speech, Waldron argues that when a society permits hate speech, it harms the dignity and sense of belonging of ‘vulnerable minorities’, giving them the feeling that they do not truly belong to that society, forcing them to live in fear. Interestingly, Waldron points out that the free speech phrase which is most commonly attributed to Voltaire (‘I hate what you say, but I will defend to death your right to say it’), was never actually said by Voltaire at all. It was an English writer, Beatrice Hall, who had summarized Voltaire’s ideas by using this phrase. Voltaire, on the other hand, as Waldron says, would not have tolerated hate speech. He concludes by arguing that under seventeenth and eighteenth century Enlightenment ideals, ‘public order’ did not merely mean an ‘absence of fighting’, but a society in which people interacted with each other ‘on the basis of arm’s length respect’. However, Waldron qualifies his argument with many limitations, some of which render his argument quite tenuous.99

Hate Speech in Independent India

After the enactment of the Constitution, laws relating to hate speech in India have only been strengthened. In 1969 and 1972, Section 153A was amended to make the definition of hate speech broader. It now includes promoting, on the ground of ‘religion, race, place of birth, residence, language, caste or community or any other ground whatsoever’, ‘disharmony or feelings of enmity, hatred or ill will’. During the colonial era, both Sections 153A and 295A were non-cognizable offences. However, in the 1970s, these offences were made cognizable. The Supreme Court of India has upheld the constitutional validity of Section 295A of the IPC,100 while we have already seen that the First Amendment to the Constitution was enacted partly in reaction to the Punjab High Court’s decision to invalidate Section 153A of the IPC in Master Tara Singh’s case. In 1988, the Rajiv Gandhi government banned the import into India of Salman Rushdie’s book Satanic Verses.101 Apart from Sections 153A and 295A, there are several other penal provisions under the IPC which specifically target hate speech,102 typically attracting a maximum sentence of three years’ imprisonment.103 Several more laws have been enacted in independent India which deal with hate speech. Under the Protection of Civil Rights Act, 1955, for example, it is an offence, punishable with a maximum sentence of six months, to insult a member of a Scheduled Caste on the ground of ‘untouchability’.104 The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, lists several offences relating to hate speech. Under this law, it is an offence punishable with between six months’ and five years’ imprisonment, for a person who is not a member of a Scheduled Caste (hereinafter, ‘SC’) or Scheduled Tribe (hereinafter, ‘ST’) to do any of the following to a person who is, viz., to intentionally insult or intimidate (with intent to humiliate) him in public;105 to abuse him ‘by caste name’ in public;106 to promote feelings of enmity, hatred or ill will against members of SCs/STs generally;107 to disrespect any deceased person held in high esteem by members of the SCs/STs;108 or to use words of a sexual nature towards a woman of a SC/ST knowing that she is a member of this group.109 A person who aspires to get elected to high office in India may get disqualified for engaging in hate speech.110 In fact, the Supreme Court has recently held that during an election, a candidate who appeals to his own religion or to the religion of the voter, commits a ‘corrupt practice’ and is liable to be disqualified.111 The manager of a religious institution may be sentenced to a maximum term of five years’ imprisonment if his institution is used for propagating hate speech.112 The government may direct a cable operator to refrain from broadcasting any programme or television channel if it is likely to engage in hate speech.113 14 The Most Solemn Symbol of a Country

Does the right to free speech under Article 19(1)(a) of the Constitution confer a right to burn an effigy of Mahatma Gandhi, the Indian National Flag, or a copy of the Constitution itself? The answer depends on what purpose free speech is supposed to serve. In the 1960s, a scholar by the name of Thomas I. Emerson wrote a paper in the Yale Law Journal called ‘Toward a General Theory of the First Amendment’.1 In it, Emerson said that there were four reasons why maintaining a system of free expression is necessary. These are: (1) ‘assuring individual self-fulfilment’, (2) ‘as a means of attaining the truth’, (3) ‘as a method of securing participation by the members of the society in social, including political, decision-making’, and (4) ‘as maintaining the balance between stability and change in the society’. Emerson’s article was relied upon by at least two judges of the Supreme Court, Justice Mathew2 and Justice E.S. Venkataramiah3 in influential cases decided by the court. Each of these Emersonian conceptions values a different kind of speech. By helping individuals attain self-fulfilment, the first conception of free speech protects art and literature. By assisting in the discovery of truth, the second conception protects science and scientific inquiries. For example, under this conception of free speech it would be perfectly legal for a scientist to argue that man evolved from apes instead of having been created out of thin air by god. By strengthening the democratic decision-making process, the third conception values political speech, i.e. speech designed to make a political point or to provide political information. Lastly, by helping maintain a balance between stability and change, the fourth conception of free speech treats speech as a safety valve to ensure that change is brought about gradually and not with sudden violence, enabling the dissatisfied and disgruntled to let off steam instead of starting a violent and bloody revolution. Burning an effigy of Gandhi, the national flag, or a copy of the Constitution could arguably be seen as satisfying two Emersonian functions of free speech, the first and the last. For example, rightly or wrongly, a person who burns the Indian national flag expresses an extreme opinion about India and its people. This may be a form of self-expression which helps achieve ‘self-fulfilment’ for some. It is also an expression of extreme dissent, something which the safety-valve conception of free speech prizes. Yet, the Supreme Court has come out resoundingly against speech which in any manner insults India’s flag, its national anthem, or its national honour. In a few decisions, the court has held that the emblems and symbols of India, like the national flag and national anthem, cannot be treated by Indian citizens with anything less than respect and dignity. However, the court has held that Indian citizens are free to use national symbols like the national flag to express their patriotism towards India, with respect and dignity.

The National Anthem

Bijoe Emmanuel v. State of Kerala,4 is one of the most interesting cases to have been decided by the Supreme Court. The judgment of Justice O. Chinnappa Reddy in this case was certainly one of the best judgments ever written at the Supreme Court. Three schoolchildren in Kerala, Bijoe, Binu Mol and Bindu Emmanuel, were expelled from their school by the headmistress acting on the instructions of the deputy inspector of schools, because, being Jehovah’s Witnesses, they refused to sing the national anthem in the morning assembly at their school, though they stood respectfully at attention while it was being sung. Justice Reddy’s description of the facts of the case is worth reproducing in its entirety:

[The children] attend school. Daily, during the morning Assembly, when the National Anthem Jana Gana Mana is sung, they stand respectfully but they do not sing. They do not sing because, according to them, it is against the tenets of their religious faith—not the words or the thoughts of the anthem but the singing of it. This they and before them their elder sisters who attended the same school earlier have done all these several years. No one bothered. No one worried. No one thought it disrespectful or unpatriotic, the children were left in peace and to their beliefs. That was until July 1985, when some patriotic gentleman took notice. The gentleman thought it was unpatriotic of the children not to sing the National Anthem. He happened to be a Member of the Legislative Assembly. So, he put a question in the Assembly . . . Indeed it is nobody’s case that the children are other than well-behaved or that they have ever behaved disrespectfully when the National Anthem was sung. They have always stood up in respectful silence. . . . [T]hese matters of conscience . . . though better left alone, are sensitive and emotionally evocative.5

The Government of Kerala relied on two circulars in support of its decision to expel the students. One, dated September 1961, said that ‘[a]s a rule, the whole school should participate in the singing of the National Anthem.’ The other, dated February 1970, provided that ‘[i]t is compulsory that all schools shall have the morning assembly every day before actual instruction begins. The whole school with all the pupils and teachers shall be gathered for the assembly. After the singing of the National Anthem the whole school shall, in one voice, take the National Pledge before marching back to the classes.’ On the other hand, the students argued that they were justified in not singing the national anthem ‘because of their honest belief and conviction that their religion does not permit them to join any rituals except . . . in their prayers to Jehovah their God’.6 Interestingly, the Kerala High Court on two separate occasions7 held against the children and found that the words of the national anthem of India did not contain anything that might have caused insult or offence to any religious denomination. ‘But that is not the question at all,’ wrote Justice Reddy in his judgment, adding: ‘The objection of the petitioners is not to the language or the sentiments of the National Anthem: they do not sing the National Anthem wherever [it may be], Jana Gana Mana in India, God Save the Queen in Britain, the Star Spangled Banner in the United States and so on.’8 The court referred to numerous authorities from Australia, Canada and the US. It was held that there was no provision of law which required a person to sing the national anthem and that it was not disrespectful to the national anthem for a person to stand up respectfully while it was being sung without joining in the singing.9 It was held that ‘[s]tanding up respectfully when the National Anthem is sung but not singing oneself’ did not violate the Prevention of Insults to National Honour Act, 1971 either, which, as we shall shortly see, made it a criminal offence to prevent the singing of the national anthem or to disturb an assembly engaged in singing the national anthem.10 It was held that the circulars which the Government of Kerala was relying on were merely ‘departmental instructions’ which did not have the force or sanction of any statute. Consequently, since these were not ‘law’ within the meaning of Article 13 of the Constitution, they were not capable of infringing fundamental rights.11 In any event, it was held that the circulars did not make it mandatory for a student to sing the national anthem in the face of a ‘conscientious objection based on . . . religious faith’, and that if the circulars did do so then they would violate Articles 19(1)(a) and 25(1) of the Constitution.12 Thus, the expulsion of the students from the school was considered as having violated the right of the students to free speech and expression under Article 19(1)(a) and the right to profess, practise and propagate the religion of their choice under Article 25(1) of the Constitution.13 The school was directed to re-admit the students. Justice Reddy ended his judgment with an impassioned plea: ‘[w]e only wish to add: our tradition teaches tolerance; our philosophy preaches tolerance; our Constitution practises tolerance; let us not dilute it.’14 By contrast, recently, in Shyam Narayan Chouksey v. Union of India,15 the Supreme Court passed far-reaching interim directions in a public interest petition concerning the national anthem. After this order, passed by Justice Dipak Misra, no person can commercially exploit, dramatize or even abridge the national anthem. The national anthem cannot be printed on any object or displayed in a manner that might be ‘disgraceful to its status and tantamount to disrespect’, because the ‘protocol associated with it has its inherent roots in national identity, national integrity and constitutional patriotism’. Every single cinema hall in India has to ‘play the National Anthem’ before the film begins and ‘all present in the hall are obliged to stand up to show respect’. Entry and exit doors at cinema halls have to be closed while the national anthem is being played. The court also thought it fit to direct that the national flag has to be displayed on the screen while the national anthem is being played in cinema halls. This order of the Supreme Court is susceptible to some criticisms.16 As Pratap Bhanu Mehta has argued in the pages of the Indian Express, to force someone to stand for the national anthem makes respecting the national anthem seem contrived rather than heartfelt.17 In 2016, San Francisco 49ers reserve quarterback Colin Kaepernick raised a furore in the US when he refused to stand for the American national anthem before a football game, to protest police brutality against African Americans, as part of the Black Lives Matter movement.18 Others followed his example.19 In that country, Justice Robert H. Jackson once famously wrote that ‘[c]ompulsory unification of opinion achieves only the unanimity of the graveyard.’20 Justice Misra’s order deprives Indians of a similar right to protest. Further, one wonders why the court directed only cinema halls to play the national anthem, and not sports stadia before a cricket game or theatres before a play. The National Flag

In Union of India v. Naveen Jindal,21 the Supreme Court was considering the question of whether the right of Indian citizens to fly the national flag was a fundamental right within the meaning of Article 19(1)(a) of the Constitution. Naveen Jindal, the petitioner, was the joint managing director of a public limited company. He was flying the national flag in his office premises at the company factory at Raigarh in Madhya Pradesh. Some government officials raised objections under the Flag Code of India.22 While the case was pending before the Supreme Court, the central government modified the Flag Code and came out with the Flag Code of India, 2002,23 which made it far easier for private citizens to display the national flag, subject to certain conditions, and, above all else, subject to treating the flag with respect and dignity. It seems that under the earlier Flag Code, Indian citizens were only permitted to display the flag on certain specified days or occasions, e.g. Independence Day, which ceased to be so under the new code. The court held that ‘from time immemorial, people have laid down their lives with a view to salute their own flag’.24 ‘What is so compelling in the piece of cloth called the National Flag, that people make even the supreme sacrifice for its sake?’ the court asked. It provided the following answer: the ‘National Flag indisputably stands for the whole nation, its ideals, aspirations, its hopes and achievements’.25 Quoting from Lieutenant Commander K.V. Singh’s book Our National Flag, the court held that the national flag was ‘the most solemn symbol of a country’.26 The court referred to flag laws in eighteen different countries and discussions on the Indian national flag in the Constituent Assembly of India. It was held that ‘the flag is definitely one of the most revered objects in our society’ which must consequently ‘be treated with the utmost respect and dignity’, necessitating the imposition of some restrictions on its use.27 It was held, in essence, that Indian citizens had the right to use and display the national flag, subject to ensuring that the flag is not mutilated, destroyed, etc.28 It was held that the right to fly the flag was not an absolute right but a qualified one under Article 19(1)(a) of the Constitution.29 The court noted that the US Supreme Court had recognized a right to burn the flag, but it did not agree with this approach.30 In support of its holding that the right to free speech did not include the right to burn the Indian national flag, the Supreme Court speciously attempted to distinguish the right to free speech in the US and in India based on the manner in which the right to free speech was drafted in the two constitutions. Ironically, the court approvingly cited Emerson’s four conceptions of free speech,31 without discussing why the court was not recognizing the right to burn the flag despite the two Emersonian theories of free speech discussed above, under which the right to burn the flag would be justified.32 In conclusion, it was held that citizens had the right to fly the national flag of India ‘freely with respect and dignity’ under Article 19(1)(a) of the Constitution, so long as the message was a positive one, so long as the act of flying the flag was ‘an expression and manifestation of [a citizen’s] allegiance and feelings and sentiments of pride for the nation’.33 It was held that ‘[s]o long as the expression is confined to nationalism, patriotism and love for the motherland, the use of the National Flag by way of expression of those sentiments would be a fundamental right.’34 However, the flag could not be used for a commercial purpose.35

* * *

The Emblems and Names (Prevention of Improper Use) Act, 1950 makes it a criminal offence for a person to use a name or emblem specified in the Schedule to the Act, ‘or any colourable imitation thereof’, in a trade, business, calling, profession, patent name, trade mark, or design. The Schedule lists out such things as the Indian national flag, and such names as Chhatrapati Shivaji Maharaj, Mahatma Gandhi, Pandit Jawaharlal Nehru, Indira Gandhi and the prime minister of India. In other words, under this law, if a person tried to sell underwear, newspapers, or even legal services under the name ‘Pandit Jawaharlal Nehru & Sons’, he would risk prosecution under the Act. Oddly, the Act also lists out the emblems of certain religious denominations in the Schedule. Thus, the emblems of the Ramakrishna Math and Mission and of the Sri Sathya Sai Central Trust are considered protected national emblems by the Schedule to the Act. This is somewhat strange because India is a secular country without an established religion, and the official recognition and protection granted to the emblems of religious denominations tends to conflict with this principle. Interestingly, Reliance Jio, telecommunications subsidiary of Reliance Industries, allegedly used an image of Prime Minister Narendra Modi, without permission, while advertising its services in India. If this is correct, it could have to pay a fine under the Act for doing so.36 The Prevention of Insults to National Honour Act, 1971, makes it a criminal offence for any person to burn, mutilate, deface, trample upon, etc., or otherwise show disrespect to the Indian national flag or the Constitution of India. The Act was amended to include parts of the Flag Code of India, 2002, in it. Thus, it is now considered an insult to the national flag, and a criminal offence, to do any of the following things, among others:

. . . (b) dipping the Indian National Flag in salute to any person or thing . . . (d) using the Indian National Flag as drapery in any form whatsoever except in State funerals or armed forces or other para- military forces funerals . . . (e) using the Indian National Flag—(i) as a portion of costume, uniform or accessory of any description which is worn below the waist of any person; (ii) by embroidering or printing it on cushions, handkerchiefs, napkins, undergarments or any dress material . . . (f) putting any kind of inscription upon the Indian National Flag; (i) allowing the Indian National Flag to touch the ground or the floor or trail in water intentionally . . . (j) draping the Indian National Flag over the hood, top and sides or back of a vehicle, train, boat or an aircraft or any other similar object . . . (l) intentionally displaying the Indian National Flag with the ‘saffron’ down’. Interestingly, the Indian national flag cannot be used ‘as drapery in any form’. One wonders whether enthusiastic fans of Indian cricket who drape themselves with the Indian flag at international games to support their team fall foul of this provision. Further, ‘putting any kind of inscription upon the Indian National Flag’ is also barred. This would ironically mean that a patriot cannot write the words ‘India is the Best Country in the World’ on the flag, or that a spectator at a hockey game cannot inscribe the words ‘Go India’ on the flag. Even more strangely, the law seems to suggest that the words of Article 19(1)(a) of the Indian Constitution itself, i.e. that ‘all citizens shall have the right to freedom of speech and expression’ cannot be inscribed on the flag. Likewise, Section 3 of the Act makes it a criminal offence to intentionally prevent the singing of the national anthem or cause a disturbance to any assembly which is engaged in singing the national anthem. Interestingly, at a function held at Kochi in December 2008, politician Shashi Tharoor interrupted the singing of the national anthem and asked members of the audience to sing the anthem by placing their hands on their chests in the manner that Americans sing their national anthem. A criminal complaint was filed against him, alleging that Tharoor had insulted the national anthem. It was only around five years later, in 2013, that the additional chief judicial magistrate discharged Tharoor.37 In a more recent incident, a physically disabled person was beaten up by onlookers for not standing while the national anthem was being played, though he was not able to stand on account of his disability.38 The Act seems to have been based on or inspired by the Prevention of Insults to National Honour Act, 1957, enacted in the erstwhile state of Madras. In addition to the central act, the Tamil Nadu Act makes it an offence for anybody to burn an effigy of Mahatma Gandhi or to damage or destroy a statue depicting him. The Flag Code of India, 2002, contains numerous rules regarding how the Indian national flag is to be treated, sometimes at an unnecessary level of detail. It says that the national flag of India ‘shall be made of handspun and handwoven wool/cotton/silk/khadi bunting’,39 but that Indian national flags made of paper ‘may be waved by [the] public on occasions of important national, cultural and sports events . . . ’40 When the flag is being displayed on a speaker’s platform, it is required to be flown ‘on the speaker’s right as he faces the audience or flat against the wall, above and behind the speaker’.41 It permits the flag to be burned or otherwise destroyed, but privately and only when it is ‘in a damaged or soiled condition’.42 The code prescribes a pledge of allegiance to be taken by students at Indian schools, which goes: ‘I pledge allegiance to the National Flag and to the Sovereign Socialist Secular Democratic Republic for which it stands.’43 It prescribes detailed rules on when the flag may be displayed on motor cars. Among others, the chief justice of India, judges of the Supreme Court, chief justices of high courts, and judges of high courts are permitted to display the national flag on their cars.44 It prescribes rules regarding when ‘half-masting’ is permissible.45 Oddly, when the chief justice of India dies, the flag may be flown at half-mast, but when a Supreme Court judge, a high court chief justice, or a high court judge dies, it cannot be flown at half-mast. It has been seen that the Supreme Court in Naveen Jindal’s case has held that the rules contained in the Flag Code of India, 2002, are only to be observed in so far as they ensure the dignified treatment of the national flag. 15 Methods of Influencing the Press

The Supreme Court has, time and again, accepted Ambedkar’s vision that the general right to free speech under Article 19(1)(a) includes the rights of the press.1 This proposition is uncontroversial. However, what has ended up being a source of controversy is the scope of press rights under the Constitution. Over the years, governments have enacted laws which have sought to regulate the functioning of newspapers, including laws in the nature of labour regulations for the welfare of journalists and other employees, anti-trust laws seeking to bust media monopolies, and import rules imposing restrictions on newspapers’ rights to get raw materials like foreign newsprint. These laws have been challenged by the press in the Supreme Court of India. The court has adopted the test that any law which ‘directly and inevitably’ imposes an ‘excessive and prohibitive burden’ on newspapers, in a manner which tangibly affects their circulation, readership, or revenues (particularly advertising revenues), violates Article 19(1)(a) of the Constitution.

Labour Regulations

In Express Newspapers v. Union of India,2 the Supreme Court was considering a law3 that was designed to improve the working conditions of journalists. It fixed a cap on the total number of hours that journalists could be made to work (140 hours every four weeks). It gave journalists entitlements to casual leave and medical leave. A ‘Wage Board’ was set up to help fix their wages. The Wage Board, set up under the Act, then fixed wages in the following manner. It classified newspapers into five separate categories on the basis of their gross revenues (Categories A, B, C, D, E). It classified journalists into different categories as well, depending on their seniority (Group I, II, III and IV, etc.). A scale of wages was then prescribed, which was fixed on the basis of the category of the newspaper and journalist. For example, the lowest wage fixed by the Wage Board was payable by category ‘E’ newspapers (those which had gross revenues of Rs 2½ lakh and below) to its ‘Group IV’ employees (i.e., proofreaders), at Rs 90 per month, while the highest wage was payable by Group ‘A’ newspapers (with gross revenues of over Rs 25 lakh) to its ‘Category I’ employees (i.e., editors), at Rs 1000 per month. One of the petitioners, which ran the prominent newspaper The Indian Express, complained that prior to the law it was paying Rs 9.77 lakh to its journalists annually, but if the Wage Board’s rules were given effect to, then it would have to pay Rs 15.21 lakh.4 The court found that though the right to free speech in India included the rights of the press, the press could not claim any immunity from general laws. However, it was held that even general laws which had the effect of taking away or abridging the right to free speech would be considered unconstitutional.5 At its very core, the judgment in this case provided that laws which single out the press and impose upon it an ‘excessive and prohibitive burden’ which would have the direct and inevitable effect of either restricting circulation, imposing a penalty on the right of newspapers to ‘choose the instruments’ for the exercise of free speech or to ‘seek an alternative media’, preventing newspapers from being started, or driving ‘the press to seek government aid’, would have to be declared unconstitutional.6 The constitutional validity of the law itself was upheld. The court found that it was meant to ameliorate the conditions of journalists. The mere fact that the law singled out newspapers alone was not problematic, because ‘as a matter of policy it would be expedient’ for the government to deal with each separate industry ‘one by one’, and there was no ulterior motive in the enactment of the law, merely because the law imposed ‘a greater financial burden than before’ on newspapers. However, the Wage Board’s decision was set aside by the court on the ground that it had not determined whether newspapers would have had the financial ability to pay the wages fixed by it.

Anti-Trust Regulations

In Sakal Papers (P) Ltd v. Union of India,7 the Supreme Court was considering the validity of a law8 which gave the government the power to regulate the prices, pages and advertising space of newspapers if it was considered necessary to do so, in the government’s opinion, in order to prevent unfair competition among newspapers.9 The government passed an order in 1960, according to which some newspapers were forced to decide to either reduce their number of pages below twenty-four per week or increase their price from 7.n.p.10 to 8.n.p. per issue. The law also imposed restrictions on the space in newspapers which could be allotted towards advertising. The petitioner ran a prominent Marathi newspaper out of Pune, called Sakal. The total number of pages in Sakal, six days a week, added up to thirty-four. Sakal was, thus, forced under the order to increase its price from 7.n.p to 8.n.p per day or to reduce its total number of pages per week to twenty-four. Sakal devoted 40 per cent of its newspaper space to advertising, which also stood to be affected by the law. Sakal argued that if it raised the price of its newspaper, its circulation would go down as its customers may not want to buy a more expensive newspaper. It contended that if, on the other hand, the number of pages in the newspaper were reduced, then that would affect the ability of the newspaper to disseminate news. The government justified the law on the ground that its objective was to prevent monopolies and unfair competition among newspapers. The Supreme Court found that the right to free speech under the Constitution protects not merely the content of the speech but also the ‘volume of circulation’. ‘In other words, the citizen is entitled to propagate his views and reach any class and number of readers as he chooses subject of course to the limitations permissible under a law competent under Article 19(2).’11 It was held that the law’s obvious objective in fixing newspaper prices was to make the newspapers unaffordable so as to cut down circulation,12 that requiring a newspaper to reduce its number of pages would restrict its ability to disseminate news and views, which would be contrary to Article 19(1)(a).13 The court said that Article 19(2) does not permit the government to curtail free speech in the general interests of the public, as the impugned anti-trust law sought to do,14 and that ‘[c]arrying on unfair practices may be a matter for condemnation’, but ‘that would be no ground for placing restrictions on the right of circulation’.15 The law was struck down.16 In Bennett Coleman & Co. v. Union of India,17 the Supreme Court was considering the validity of the import policy of the Government of India for newsprint, 1972-73, and the Newsprint Control Order, 1962, passed by the government under Section 3 of the Essential Commodities Act, 1955. The law contemplated that the Controller would allot a certain quota of imported newsprint to each media group. It provided that a media group could not use its allotment of imported newsprint to start a new newspaper or a new edition of an existing newspaper. It provided that a newspaper could only have a maximum of ten pages, and that a newspaper could not reduce its circulation in order to increase its number of pages. Interchangeability among newspapers was also prohibited, e.g., if a media group were allotted a quota of twenty pages of imported newsprint and it had two newspapers (X and Y), it could not make newspaper X have fifteen pages and newspaper Y have five pages. In other words, newspapers X and Y were required to be no more than ten pages each. The government tried to justify the ten page limit per newspaper rule by arguing that its intent was to help small dailies rise up and compete with big dailies. The government claimed that it was this very policy which had helped newspapers like the Anandabazar Patrika and the Deccan Herald emerge.18 The court found that the ‘effect and consequence’ of the page limits imposed by the policy and of the prohibition against using the existing quota of newsprint to set up new newspapers or new editions was to ‘directly [control] the growth and circulation of newspapers’, that their ‘direct effect’ was to restrict the circulation of newspapers and the area that newspapers could devote to advertising. Consequently, the policy’s ‘direct effect’ was to expose newspapers to ‘financial loss’, and to infringe the freedom of speech and expression.19 The anti-trust objectives of the policy did not find favour with the court either. It was held that the ‘intention to help new and young newspapers’ could not be ‘allowed to strangulate the freedom of speech and expression of the big dailies’.20 Justice Mathew delivered one of the rare dissents that the court has seen in its free speech jurisprudence. He found the anti-trust objectives of the policy to be laudable and upheld the policy. He held that the concentration of newspapers in a few hands would mean that ideas antagonistic to those held by big newspaper proprietors would not become known to the people.21 He deprecated the ‘concentration of mass media in [a] few hands’, and found that it was the owners and managers of large media houses which were determining ‘which persons, which facts, which version of facts, which ideas shall reach the public’.22 He held that the government’s import policy on newsprint was designed to prevent ‘an oligopoly ruling the market’ and was in furtherance of free speech.23 ‘Article 19(1)(a) is not a ‘guardian of unlimited talkativeness’, he wrote.24 The judgment of Justice Mathew in Bennett Coleman makes for very compelling reading. It is true that we now live in a digital age in which new forms of media like Twitter, Facebook, YouTube and blog posts have changed the meaning of what constitutes news and who is a journalist. At the same time, ours is now also a world where large and wealthy companies and individuals wield great amounts of power on news and media. When Reliance Industries Ltd, owned by India’s richest individual, Mukesh Ambani, announced that it was acquiring media conglomerate Network18, which owned television channels such as CNBC TV18 and CNN-IBN, many expressed concerns that the news was no longer going to be independent.25 Some speculated that the acquisition was aimed at ensuring favourable treatment of the Reliance conglomeration at the hands of the media, at a time when the media was heavily covering Aam Aadmi Party supremo Arvind Kejriwal’s tirades against Ambani who was accused of engaging in crony capitalism.26 In the pages of the Caravan magazine, Krishn Kaushik argued that five Indian news media companies were in some manner indebted to or controlled by Ambani.27 Worse, in late 2013, speculative rumours began to abound that a corporate tycoon’s elder son had crashed an Aston Martin Rapide into an Audi on Peddar Road in Mumbai, causing an onward set of collisions, an alleged incident which went almost entirely unreported by the mainstream media in India.28 News corporations in India are sometimes owned outright by politicians, or are otherwise known to have ideological leanings towards certain political parties. Justice Mathew’s dissent in Bennett Coleman therefore engenders a justifiable concern that wealthy monopolies should not control the news. At the same time, it is doubtful whether restricting the number of pages that a newspaper can have, the number of programmes that a news channel can create, or the number of newspapers or channels that can be set up by a media corporation, is the most reasonable manner of busting monopolies in the Indian media. India’s general anti-trust law, the Competition Act, 2002, after all, applies to media corporations as well. A law of this nature, which is general and not specific, and which does not, in the Supreme Court’s words, directly and inevitably impose an excessive and prohibitive burden on the right to free speech, affecting circulation/subscription, readership/viewership, or advertisement revenues, is far more likely to pass constitutional muster than a law of the nature which was impugned in Sakal Papers and Bennett Coleman.

Import Duties/Taxes In Indian Express Newspapers v. Union of India,29 the Supreme Court was considering a levy by the government of duty on newsprint imported from abroad. The duty was levied under the Customs Act, 1962. The Indian Express argued that the levy of import duty on newsprint had the effect of raising the prices of newspapers and of reducing circulation.30 The court found that if a tax is within reasonable limits, it cannot be said to contravene the right to free speech under the Constitution.31 A test was articulated for determining the validity of taxing statutes affecting the press in particular. It was held that while the validity of an ordinary taxing statute is to be tested on the basis of whether it is openly confiscatory or a colourable device to confiscate, in taxes on newsprint on the other hand, a newspaper would have to show merely ‘a distinct and noticeable burdensomeness, clearly and directly attributable to the tax’.32 The court ordered the government to reconsider, within six months, the entire question of levy of import duty on newsprint. Justice Venkataramiah wrote an interesting judgment in which he said that governments had, over the years, employed many tactics to control the press. These included methods such as ‘[s]ecret payments of money, open monetary grants and subventions, grants of lands, postal concessions, government advertisements, conferment of titles on editors and proprietors of newspapers, inclusion of press barons in cabinet and inner political councils’. The government could also use force to influence the press, and employ methods such as ‘pre-censorship (laws), seizures, interference with the transit of newspapers and demanding security (deposits), imposition of restriction on the price of newspapers, on the number of pages of newspapers and the area that can be devoted for advertisements, withholding of Government advertisements, increase of postal rates, imposition of taxes on newsprint, canalisation of import of newsprint with the object of making it unjustly costlier’.33

Privacy and the Press A series of cases came before the Supreme Court where journalists sought interviews with convicts in prisons, convicts who were sometimes on death row. The journalists contended that prison authorities or regulations prohibited them from carrying out the interview, and asserted that this went against their rights to free speech. In these cases, the court adopted a very circumspect approach to Article 19(1)(a). It was held that there is no general right available to members of the press to interview prisoners, and that the interview could only be held subject to the consent of the prisoner, to the approval of the prison authorities, and in accordance with the jail regulations. The judgments delivered by the Supreme Court in this line of decisions, analysed below, can be considered as laying down the proposition that press rights to free speech must give way to the right to privacy. These judgments particularly have far-reaching implications today, because they suggest that the right to free speech does not confer any right on the paparazzi to invade the privacy of any person. The first such case was Prabha Dutt v. Union of India.34 Prabha Dutt was the chief reporter of the Hindustan Times. She approached the Supreme Court directly, and sought an order to direct the Delhi administration to allow her to interview two convicts, Billa and Ranga, who had been sentenced to death for murder. The convicts in question, Jasbir Singh (alias Billa) and Kuljit Singh (alias Ranga), had murdered siblings Sanjay and Geeta Chopra in Delhi in 1978. Geeta was raped prior to the murder. The brutal incident had sent shockwaves throughout Delhi.35 The court found that Article 19(1)(a) was not absolute, and that it did not confer ‘any right on the Press to have an unrestricted access to means of information’.36 The court found that the right claimed by the petitioner in this case was ‘not the right to express any particular view or opinion but the right to means of information through the medium of an interview of the two prisoners who are sentenced to death’.37 It was held that Dutt had no right to interview a prisoner, unless the prisoner himself was willing to do the interview.38 The prison manual permitted the superintendent to allow interviews with prisoners under sentence of death, provided that the superintendent thought it reasonable. The court held that the superintendent could refuse to allow the interview for ‘weighty reasons’ to be recorded in writing.39 The superintendent of Tihar jail was directed to allow the representatives of the Hindustan Times, Times of India, India Today, Press Trust of India, and the United News of India, to interview the convicts that very day, at 4 p.m. Some of the lawyers present in court asked whether representatives of the press could be present at the time of the execution of the death sentence. The court held that an application would have to be made by them to the superintendent, who would then have to consider it on its own merits.40 Interestingly, it seems that subsequently, Billa agreed to be interviewed by the press, while Ranga refused. During his interview, Billa kept saying that he was innocent.41 In Sheela Barse v. State of Maharashtra,42 Sheela Barse was a Bombay- based freelance journalist, who wanted to interview women prisoners lodged in Maharashtra jails. In May 1982, the inspector general of prisons of the state granted permission to her to interview prisoners in Bombay Central Jail, Yerawada Central Jail (Pune), and Kolhapur District Jail. Barse wanted to tape-record her interviews, but she was only permitted to take notes. When she objected, the inspector general revoked his permission altogether, saying that ordinarily, such permission was given only to research scholars. It seems that the jail authorities had realized that Barse had previously written what they considered to be ‘one-sided’, ‘irresponsible’ and ‘reckless’ stories based on interviews with women undertrials.43 Barse wrote a letter to the Supreme Court, which was converted into a writ petition—an exercise of ‘epistolary jurisdiction’44 by the activist Supreme Court of the 1980s. The court held that those who were lodged in jails had a right to be interviewed by journalists so that light may be thrown on conditions in prisons, even though citizens did not have any right to enter jails and collect information.45 Barse was directed to apply once again to the appropriate authority for permission to interview the prisoners and to tape-record the interviews. The court reiterated that the prisoners would have to give their consent to do the interview.46 It was held that tape-recording would only be permitted if the appropriate authority granted special permission.47 Press Property

In Express Newspapers Pvt. Ltd. v. Union of India,48 the Supreme Court was considering a petition filed by the proprietors of Indian Express. The Indian Express ran its offices out of the Express Buildings at 9-10, Bahadur Shah Zafar Marg, New Delhi, on a perpetual lease from the Union of India under a registered indenture of lease deed of the year 1958. The government issued the Indian Express a show cause notice asking why it should not re- enter and take possession of the premises for breaching some of the clauses of the lease deed. The Indian Express directly approached the Supreme Court. In order to approach the Supreme Court directly, however, they had to establish that the show cause notice violated a fundamental right under the Constitution. Among other things, they therefore argued that the notice violated their right to free speech under Article 19(1)(a) of the Constitution, that it was ‘an act of personal vendetta against the Express Group of Newspapers in general, and Ram Nath Goenka, Chairman of the Board of Directors in particular . . . ’.49 It was submitted that the notice was issued because the Indian Express had been critical of the government in its pages. The three judges of the court wrote three separate judgments, and set aside the notice issued by the government. However, the petitioners’ arguments under Article 19(1)(a) were accepted by only one judge, Justice A.P. Sen. Justice Sen held that the notice was ‘intended and meant to silence the voice of the Indian Express’ which is why it was to ‘logically follow’ that the notice constituted ‘a direct and immediate threat to the freedom of the press’ and that it violated Article 19(1)(a) and 14 of the Constitution.50 Justice Venkataramiah held that the notice only violated Article 14 of the Constitution, and expressed no opinion on the argument under Article 19(1)(a).51 Justice R.B. Misra held that the right to land and to construct buildings for running a business on the land was not derived from Article 19(1)(a) or 19(1)(g) of the Constitution.52 Notes

Chapter 1: The Music of an English Band

1. See, Ramachandra Guha, India After Gandhi: The History of the World’s Largest Democracy (New York: Ecco, 2007), p. 5. 2. The Privy Council’s jurisdiction was abolished by the Abolition of Privy Council Jurisdiction Act, 1949, which came into force on 10 October 1949. 3. A few provisions of the Constitution came into force at once on 26 November 1949. The rest came into force on 26 January 1950. See, Article 394, which dealt with the commencement of the Constitution. 4. Constituent Assembly Debates of India, vol. XI, p. 977 (25 November 1949). 5. Article 395. 6. Speech of Prime Minister Nehru at the inauguration of the Indian Law Institute on 12 December 1957. S. Gopal (ed.), Selected Works of Jawaharlal Nehru, 2nd Series, (New Delhi: Jawaharlal Nehru Memorial Fund, 1989), available at: http://nehruportal.nic.in/writings (last visited 25 May 2017), vol. 40, p. 303. Interestingly, the government’s Statement on Industrial Policy, adopted in 1991, which signaled economic liberalization, adopted the motto of ‘continuity with change’. See, Statement on Industrial Policy, Government of India, Ministry of Industry, available at: http://dipp.nic.in/sites/default/files/chap001_0_0.pdf (last visited 18 June 2017). 7. Granville Austin, The Indian Constitution: Cornerstone of a Nation (New Delhi: Oxford University Press, 1966), p. xxi. Sandipto Dasgupta called this a tension between constitutional ‘aspirations’ and ‘necessities’. Sandipto Dasgupta, ‘A Language Which Is Foreign to Us: Continuities and Anxieties in the Making of the Indian Constitution’, vol. 34, Comparative Studies of South Asia, Africa and the Middle East 228 (2014), p. 229. 8. Article 17. 9. Article 15. 10. Article 18(2) of the Constitution says: ‘No citizen of India shall accept any title from any foreign State.’ 11. First Schedule. 12. Article 326. 13. H.M. Seervai, Constitutional Law of India: A Critical Commentary (Bombay: N.M. Tripathi, 1993–97), vol. 1, p. 164. 14. Seervai, Constitutional Law of India, vol. 1, p. 167. 15. Constituent Assembly Debates, vol. XI, p. 663 (18 November 1949). See further, Dasgupta, ‘A Language Which Is Foreign to Us’; Arvind Elangovan, ‘The Making of the Indian Constitution: A Case for a Non- nationalist Approach’, History Compass, vol. 12, pp. 1–10 (2014). 16. Abhinav Chandrachud, An Independent, Colonial Judiciary: A history of the Bombay High Court during the British Raj, 1862-1947 (New Delhi: Oxford University Press, 2015). Likewise, members of the Indian Civil Service, who had loyally served the colonial government, now served the government in independent India. Arudra Burra, ‘The Indian Civil Service and the Raj: 1919-1950’, available on SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2052658 (last visited 20 December 2016). 17. See, Arudra Burra, ‘What is “Colonial” About Colonial Laws?’, Am. U. Int’l L. Rev. 138 (2016); Dasgupta, ‘A Language Which Is Foreign to Us’. 18. Constituent Assembly Debates, vol. XI, p. 616 (17 November 1949). 19. As distinguished from Asian communitarian values. 20. In fact, Ramachandra Guha lists the ‘retention of archaic laws’ as one of his ‘eight major threats to freedom of expression in contemporary India’. Ramachandra Guha, Democrats and Dissenters (Gurgaon: Penguin Random House India, 2016), p. 25. He notes—and this is a point which will be made in great detail in this book—that colonial era restraints on speech were not merely retained but also strengthened in independent India. Ibid, p. 27. 21. This was so even though the charge they were facing was sedition. 22. Though sedition was not specifically made an enumerated exception to free speech, the ‘security of the State’ was made an exception in 1950. Thereafter, the First Amendment made ‘public order’ an exception to free speech, which has protected sedition from constitutional challenges thereafter. 23. One might argue that a person is less justified preaching sedition against a democratically elected government over a colonial one. However, merely because a government is democratically elected does not mean that citizens must lose their rights to free speech and to criticize the government. 24. Jury trials have mostly been abolished in India, so there is no question of sympathetic juries hearing sedition cases. 25. This was done with the enactment of a new Code of Criminal Procedure in 1973, which replaced the British era code of 1898. 26. Brij Bhushan v. State of Delhi, AIR 1950 SC 129. In R. Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632 (at paragraphs 22, 26(6)), the Supreme Court held that prior restraints could not be imposed for defamatory statements made against the government or government officials, because there was no law authorizing such restraints to be imposed. Prior restraints were found to be constitutionally valid in Sahara India Real Estate Corporation Ltd. v. SEBI, (2012) 10 SCC 603. 27. Lawrence Liang, ‘A Sholay We Don’t Know’, Indian Express, 16 February 2015, available at: http://indianexpress.com/article/opinion/columns/a-sholay-we-dont- know/ (last visited 13 September 2016). 28. See, ‘Censor Board says no long ‘kisses’ in Bond film . . . ’, Indian Express, 19 November 2015, available at: http://indianexpress.com/article/entertainment/entertainment- others/censor-board-says-no-kisses-in-bond-film-spectre-twitterati- posts-jokes/ (last visited 13 September 2016). Similarly, it also trimmed a kissing scene between actors Sushant Singh Rajput and Kriti Sanon in Bollywood film Raabta. See, Charu Thakur, ‘Sushant-Kriti’s Raabta: CBFC Trims Kissing Scene, Says No to Abusive Language’, India Today, 7 June 2017, available at: http://indiatoday.intoday.in/story/sushant-singh-rajput-kriti-sanon- kissing-scene-raabta-cbfc/1/972603.html (last visited 13 June 2017). 29. The Bombay High Court in Phantom Films Pvt. Ltd. v. Central Board of Film Certification, Writ Petition (L) No. 1529 of 2016, decided on 13 June 2016 (DB), set aside the Censor Board’s order. 30. 376 US 254 (1964). 31. See, Jean Drèze, ‘The New Abnormal in Kashmir’, The Hindu, 25 November 2016, available at: http://www.thehindu.com/opinion/lead/The-new-abnormal-in- Kashmir/article16695599.ece (last visited 5 December 2016); Jean Drèze, ‘Kashmir’s Hidden Uprising’, Indian Express, 5 December 2016, available at: http://indianexpress.com/article/opinion/columns/kashmir- valley-shutdown-hidden-uprising-indian-army-militants-4410627/ (last visited 5 December 2016). 32. HCA/D63/A1/D, British Library, letter dated December 8, 1918, from Norman Macleod to his son, Torquil. 33. M.R. Jayakar, The Story of My Life (Bombay: Asia Publishing House, 1958), vol. 1, p. 227, available at: https://archive.org/stream/in.ernet.dli.2015.238020/2015.238020.The- Story#page/n253/mode/2up (last visited 18 June 2017); Thomas Joseph Strangman, Indian Courts and Characters (London: W. Heinemann, 1931), pp. 112–13. 34. Sharada Dwivedi and Rahul Mehrotra, Fort Walks (Mumbai: Eminence Designs Pvt. Ltd., 1999), p. 19. 35. Ibid. 36. ‘Policy Guidelines for Downlinking of Television Channels’, 5 December 2011, issued by the Ministry of Information and Broadcasting, available at: http://mib.nic.in/sites/default/files/Downlinking_Guidelines05.12.11.pdf (last visited 18 June 2017). 37. This was not an entirely new exception to free speech. As we shall see later on, the colonial-era Defence of India (Criminal Law Amendment) Act, 1915, allowed the government to regulate speech which was likely to ‘prejudice His Majesty’s relations with Foreign Powers’. 38. See, Rajeev Dhavan, Publish and Be Damned: Censorship and Intolerance in India (New Delhi: Tulika Books, 2008); Gautam Bhatia, Offend, Shock, or Disturb: Free Speech under the Indian Constitution (New Delhi: Oxford University Press, 2016); Madhavi Goradia Divan, Facets of Media Law (Lucknow: Eastern Book Company, 2015); Seervai, Constitutional Law of India; Soli J. Sorabjee, Law of Press Censorship in India (Bombay: N.M. Tripathi, 1976); Lawrence Liang, ‘Speech and Expression’; Sujit Choudhry et al, The Oxford Handbook of the Indian Constitution (New Delhi: Oxford University Press, 2016). 39. Order dated 28 March 2013, available at: http://mib.nic.in/sites/default/files/OrdersofMIBforprohibitionoftransmis sionofFTVChannell.pdf (last visited 18 June 2017). 40. See, ‘Obscenity Case Filed against Akshay Kumar’, NDTV, 6 April 2009, available at: http://www.ndtv.com/india-news/obscenity-case- filed-against-akshay-kumar-390760 (last visited 14 November 2016); ‘Akshay’s Unbuttoning Act: Twinkle Arrested, Released’, Times of India, 10 April 2009, available at: http://timesofindia.indiatimes.com/india/Akshays-unbuttoning-act- Twinkle-arrested-released/articleshow/4382598.cms (last visited 14 November 2016); Koffee with Karan, Season Five, episode aired on 13 November 2016; Abigail Stepen Rosa v. State of Maharashtra, (2013) SCC OnLine Bom 907. There is, of course, a distinction between being charged with obscenity and being convicted for it. However, as discussed later, it takes an enormously long time for criminal cases to be decided in India, which means that a charge of obscenity is likely to stick for some time. 41. Bob Woodward and Scott Armstrong, The Brethren: Inside the Supreme Court (New York: Simon and Schuster, 1978); Nadine Strossen, ‘Obscenity and Indecency Law: Why Howl is Still Silenced’, 37 Seattle University Law Review lxi (2013); Jeffrey Rosen, ‘Zoned Out’, New Republic, 31 March 1997, available at: https://newrepublic.com/article/74075/zoned-out (last visited 17 September 2016). 42. 403 US 15 (1971). 43. Strossen, ‘Obscenity and Indecency Law’, lxiv. 44. See, Fali S. Nariman, The State of the Nation (New Delhi: Hay House India, 2013), pp. 351–52. 45. ‘Report of the Committee on Contempt of Court’ (Phillimore Committee Report), December 1974, p. 69. 46. This is known as a ‘First Information Report’. 47. Ramachandra Guha points out that such cases are often filed in remote towns in India, where the values of the local police and magistrates may be very different from those of judges in urban India. Ramachandra Guha, Democrats and Dissenters (Gurgaon: Penguin Random House India, 2016), p. 29. 48. ‘Shashi Tharoor Exonerated in National Anthem Case’, The Hindu, 7 July 2013, available at: http://www.thehindu.com/todays-paper/shashi- tharoor-exonerated-in-national-anthem-case/article4890798.ece (last visited 30 May 2016); Mahir Haneef, ‘Shashi Tharoor Acquitted in Anthem Case’, Times of India, 7 July 2013, available at: http://timesofindia.indiatimes.com/india/Shashi-Tharoor-acquitted-in- anthem-case/articleshow/20950253.cms (last visited 30 May 2016). 49. Article 12. 50. ‘M.F. Hussain Passes Away in London’, Times of India, 9 June 2011, available at: http://articles.timesofindia.indiatimes.com/2011-06- 09/india/29637594_1_hindu-goddesses-mf-husain-indian-artist (last visited 18 June 2017); ‘Eminent Painter Maqbool Fida Hussain Passes Away in London’, Indian Express , June 9 2011, available at: http://www.indianexpress.com/news/excellent/801368/ (last visited 18 June 2017). 51. Maqbool Fida Hussain v. Raj Kumar Pandey, (2008) Cri LJ 4107. 52. See: ‘Protests at Delhi’s Ramjas College’, Times of India, 22 February 2017, available at: http://timesofindia.indiatimes.com/city/delhi/protests-at-delhis-ramjas- college-students-clash/articleshow/57290420.cms (last visited 7 March 2017); ‘Akhil Bharatiya Vidyarthi Parishad Holds Protest March . . . ’, Times of India, 2 March 2017, available at: http://timesofindia.indiatimes.com/city/delhi/akhil-bharatiya-vidyarthi- parishad-holds-protest-march-in-delhi- university/articleshow/57430647.cms (last visited 7 March 2017); ‘Here’s What Happened . . . ’, India Times, 24 February 2017, available at: http://www.indiatimes.com/news/here-s-what-happened-at-ramjas- college-that-led-to-the-clashes-between-abvp-aisa-and-delhi-police- 272175.html (last visited 7 March 2017). 53. However, Roy was later sentenced for being in contempt of court in a subsequent case, which will be discussed in this book. 54. (2015) 5 SCC 1 (decided by two judges). 55. See, e.g., order dated 2 March 2015, passed by a Division Bench of the Bombay High Court in Criminal Writ Petitions No. 815 and 816 of 2015. 56. Ambikesh Mahapatra v. State of West Bengal, (2015) SCC OnLine Cal 631. Chapter 2: The Wounded Vanity of Governments

1. See further, Siddharth Narrain, ‘Disaffection and the Law’: The Chilling Effect of Sedition Laws in India’, Economic and Political Weekly, 19 February 2011, vol. 46, No. 8, p. 33; Walter Russell Donogh, A Treatise on the Law of Sedition and Cognate Offences in British India (Calcutta: Thacker, Spink & Co., 1911), available at: https://archive.org/details/onlawofsedition00dono (last visited 15 August 2016); Aravind Ganachari, ‘Combating Terror of Law in Colonial India: The Law of Sedition and the Nationalist Response’ in M. Vardalos et al (eds.), Engaging Terror: A Critical and Interdisciplinary Approach (Boca Raton, Florida: Brown Walker Press, 2009), p. 93 (available on Google Books); Fendall Currie, The Penal Code Act XLV of 1860 (London: John Flack & Co., 1875) (5th Edition), available at https://babel.hathitrust.org/cgi/pt?id=hvd.hl2tyv;view=1up;seq=7 (last visited 15 August 2016); Janaki Bakhle, ‘Savarkar (1883-1966), Sedition and Surveillance: The rule of law in a colonial situation’, Social History, vol. 35, Issue No. 1, February 2010, p. 51; Sukeshi Kamra, ‘The “Vox Populi”, or the Infernal Propaganda Machine, and Juridical Force in Colonial India’, Cultural Critique, vol. 72, Spring 2009, pp. 164–202. 2. The IPC avoided the distinction between a ‘felony’ and a ‘misdemeanour’. This, colonial legislators believed, was one of the many improvements of the English common law by statute in British India. Another example was the fact that the word ‘hearsay’ was not used in the Indian Evidence Act, 1872. 3. See, Rasiklal v. Kishore, (2009) 4 SCC 446 (paragraphs 9–12); Ratilal Bhanji Mithani v. Assistant Collector of Customs, AIR 1967 SC 1639. 4. Where the words were spoken, not written, the offence was called ‘speaking of seditious words’. Sir James Fitzjames Stephen, A Digest of the Criminal Law, 5th edition (London: Macmillan and Co., 1894), available at: https://catalog.hathitrust.org/Record/007703960 (last visited 7 September 2016), p. 70. 5. Where the words were written, not spoken, the offence was called ‘publication of a seditious libel’. Stephen, Digest, p. 70. 6. In fact, this definition of sedition was adopted in the authoritative digest on criminal law prepared by Sir James Fitzjames Stephen. Sir James Fitzjames Stephen, A History of the Criminal Law of England (London: Macmillan and Co., 1883), vol. 2, available at: https://babel.hathitrust.org/cgi/pt?id=hvd.hl57k3;view=1up;seq=315 (last visited 15 August 2016). Stephen relied on Articles 91 and 93 of his Digest on Criminal Law, corresponding with Articles 96 and 98 of the 5th edition of the Digest. See, Stephen, Digest. See further, Criminal Libel Act, 1819, available at: https://books.google.co.in/books? id=si9bAAAAQAAJ&pg=PA44&lpg=PA44&dq=Seditious+and+Blasph emous+Act&source=bl&ots=xqhSVz1fel&sig=WrvHeWlXUG- wfA6Uezw6v2kq28U&hl=en&sa=X&ved=0ahUKEwibgpii__7OAhUK No8KHQwxBaIQ6AEISzAI#v=onepage&q=Seditious&f=false (last visited 8 September 2016); Section 102, Criminal Code (Indictable Offences) Bill, 1879, [prepared pursuant to the ‘Report of the Royal Commission Appointed to Consider the Law Relating to Indictable Offences’, whose report is available at: http://www.lareau- legal.ca/EnglishDraftCodeONE.pdf (last visited 8 September 2016)], available at: https://catalog.hathitrust.org/Record/100472695 (last visited 8 September 2016). 7. For an account of the law of seditious libel in England in the seventeenth and eighteenth centuries, see, Philip Hamburger, ‘The Development of the Law of Seditious Libel and the Control of the Press’, 37 Stanford Law Review 661 (1984–85). Hamburger argues, contrary to historians like Stephen, that the law of seditious libel emerged in the eighteenth century once other methods used by the Crown like treason, Scandalum Magnatum, heresy, and licensing, were forced out by public opinion. See further, Michael Lobban, ‘From Seditious Libel to Unlawful Assembly: Peterloo and the Changing Face of Political Crime c1770-1820’, 10 Oxford Journal of Legal Studies 307 (1990). 8. Reform Act, 1832. See, ‘Representation of the People Acts’, Encyclopaedia Britannica, available at: https://www.britannica.com/topic/Representation-of-the-People-Acts (last visited 14 June 2017). 9. Stephen, A History of the Criminal Law of England, vol. 2, pp. 301, 373. According to Michael Lobban, prosecutions for unlawful assembly and other public order offences were on the rise while prosecutions for seditious libel were in decline. Lobban, ‘From Seditious Libel to Unlawful Assembly’, Oxford Journal of Legal Studies, (Autumn, 1990), vol. 10, No. 3, pp. 307-352. 10. See, Stephen, Digest, p. 70. Stephen himself called misdemeanours ‘minor’ offences as distinguished from felonies. Stephen, A History of the Criminal Law of England, vol. 2, p. 193. However, Stephen was also of the opinion that the distinction between felonies and misdemeanours had become meaningless in England because there were some misdemeanours which were punishable as though they were felonies. Ibid, p. 193. 11. See, Section 103, Criminal Code (Indictable Offences) Bill, 1879; W. Shirley Shirley, A Sketch of the Criminal Law (London: Stevens and Sons, 1880), p. 23; H.C. Trapnell, ‘The Indian Press Prosecutions’, 14 Law Quarterly Review 72 (1898). 12. See, H.N. Rishbud v. State of Delhi, AIR 1955 SC 196. See further, Sections 2(c) and 156(1), Code of Criminal Procedure, 1973. 13. Stephen, A History of the Criminal Law of England, vol. 2, p. 193. Under the Criminal Libel Act, 1819, one of the so-called ‘Six Acts’ enacted following the Peterloo Massacre, punishment for a second conviction attracted an enhanced sentence for a ‘High Misdemeanour’. See, Section 4, Criminal Libel Act, 1819, H.B. Bignold, Imperial Statutes in Force in New South Wales (Sydney: The Law Book Company of Australasia, Ltd., 1913-14), available at: https://babel.hathitrust.org/cgi/pt? id=coo.31924024528857;view=1up;seq=617 (last visited 22 April 2017). In August 1819, the radical leader Henry Hunt presided over a public meeting attended by around 60,000 persons including women and children at St Peter’s Fields in Manchester. The protesters wanted political reforms, including the right to vote which, back then, was exercised by a tiny fraction of the population. The demonstration was dispersed by cavalry, which left many hundred injured and wounded. The massacre was referred to as the ‘Peterloo’ massacre deriving its name from ‘Waterloo’. It took place on account of a fear among privileged elites that there would be a popular revolution in England akin to the one which had taken place in France. ‘Peterloo Massacre’, Encyclopaedia Britannica, available at: https://www.britannica.com/event/Peterloo-Massacre (last visited 9 September 2016); ‘Peterloo Massacre’, BBC History Features, available at: http://www.bbc.co.uk/manchester/content/articles/2007/08/15/160807_p eterloo_memorial_feature.shtml (last visited 9 September 2016). The Treason Felony Act, 1848 [Section 3, 11–12 Vict. Cap. 12, ‘An Act for the better Security of the Crown and Government of the United Kingdom’] made certain kinds of treason or extreme forms of sedition [any speech or writing which has as its aim the deposition of the Crown, levying war against the Crown, intimidating both or either Houses of Parliament, stirring a foreigner to invade] punishable with a maximum sentence of transportation for life. The Treason Felony Act, 1848, is available at: http://www.legislation.gov.uk/ukpga/Vict/11- 12/12/contents/enacted (last visited 22 April 2017). 14. Stephen, History, vol. 1, p. 305. Since Fox’s Libel Act, 1792 [‘An Act to Remove Doubts Respecting the Functions of Juries in Cases of Libel’, 32 Geo. 3, c. 60], juries in England had enjoyed vast powers in deciding the criminality of seditious libels, and judges had been relegated to the task of merely giving an opinion or directions to the jury on the case. See, Lobban, ‘From Seditious Libel to Unlawful Assembly’. See, Joseph R. Fisher, The Law of the Press (London: W. Clowes, 1891), available at: https://catalog.hathitrust.org/Record/010449962 (last visited 9 September 2016), p. 248. 15. They were T.B. Macaulay, J.M. Macleod, G.W. Anderson and F. Millett. 16. Minute by the Hon’ble T. B. Macaulay, 2 February 1835, available at: http://www.columbia.edu/itc/mealac/pritchett/00generallinks/macaulay/t xt_minute_education_1835.html (last visited 11 February 2017). 17. 14 October 1837. 18. ‘Whoever, by words, either spoken or intended to be read, or by signs, or by visible representations, attempts to excite feelings of disaffection to the government established by law in the territories of the East India Company, among any class of people who live under that government, shall be punished with banishment for life or for any term from the territories of the East India Company, to which fine may be added, or with simple imprisonment for a term which may extend to three years, to which fine may be added, or with fine. Explanation. Such disapprobation of the measures of the government as is compatible with a disposition to render obedience to the lawful authority of the government, and to support the lawful authority of the government against unlawful attempts to subvert or resist that authority, is not disaffection. Therefore the making of comments on the measures of the government, with the intention of exciting only this species of disapprobation, is not an offence within this Clause.’ See: A Penal Code Prepared By The Indian Law Commissioners (Calcutta: G.H. Huttman, 1837), available at: https://babel.hathitrust.org/cgi/pt? id=mdp.35112105126397;view=1up;seq=7 (last visited 15 August 2016). 19. In other words, sedition in India was given the maximum sentence under the Treason Felony Act in the United Kingdom. 20. Thomas Babington Macaulay, Speeches and Poems: With the Report and Notes on the Indian Penal Code (New York: Hurd and Houghton, 1867), vol. 2, available at: https://babel.hathitrust.org/cgi/pt? id=uva.x000460004;view=1up;seq=1029 (last visited 30 June 2017), p. 477. 21. Norton. 22. Cochrane. 23. Hudlestone. 24. See, Copies of the Special Reports of the Indian Law Commissioners, East India House, May 1848, Session 18 November 1847–5 September 1848, vol. XXVII, available at: https://babel.hathitrust.org/cgi/pt? id=hvd.32044106497787;view=1up;seq=134 (last visited 10 December 2016), p. 7, paragraph 22. 25. The bill was introduced on 2 August 1870. On 16 August 1870, it was introduced to a Select Committee. On 30 August 1870, the report of the Select Committee was presented to the Council. On 18 November 1870, the final report of the Select Committee was presented to the Council. On 25 November 1870, the final report was considered by the Council and the Bill was passed. 26. See, Abstract of the Proceedings of The Council of The Governor General of India (Calcutta: Office of the Superintendent of Government Printing, 1906), vol. 9, available at: https://babel.hathitrust.org/cgi/pt? id=chi.78206105;view=1up;seq=407 (last visited 15 August 2016). 27. Abstract of the Proceedings of The Council of The Governor-General of India (Calcutta: Office of the Superintendent of Government Printing, 1906), vol. 9, p. 442, available at: https://babel.hathitrust.org/cgi/pt? id=chi.78206105;view=1up;seq=407 (last visited 7 September 2016). 28. After all, the law codes of British India were prepared by followers of Jeremy Bentham, who wished to enact similar codes back home in England. For them, the colony of British India was a laboratory where they could test out how a law code would function. They hoped that the Anglo-Indian codes would later serve as models or precedents for similar law codes to be drawn up in England itself. For example, James Fitzjames Stephen made a speech at the Law Amendment Society in England in 1872, speaking of his experiences with codification in British India and the lessons which might be learned therefrom in England. James Fitzjames Stephen, ‘Codification in India and England’, Law Magazine and Review, vol. 1, issue 11, December 1872, pp. 963– 90. Stephen used the Indian Evidence Act, 1872, as a precedent for drawing up a model Evidence Act for England. See, Abhinav Chandrachud, ‘Summaries and Secondary Evidence: Transnational Legislative Borrowing in Colonial India’, 10 NUJS Law Review 83 (2017). Kolsky has pointed out that codification was ‘an international endeavour in which lawmakers in distant geographical locations routinely cited each other’s work’. Elizabeth Kolsky, ‘Codification and the Rule of Colonial Difference’, Law and History Review, vol. 23, Issue 3, Fall 2005, pp. 631–84, p. 632. For more on the codification of criminal law in England, see, Lindsay Farmer, ‘Reconstructing the English Codification Debate: The Criminal Law Commissioners, 1833- 45’, Law and History Review, vol. 18, Issue No. 8, Summer 2000, pp. 397–426; Michael Lobban, ‘How Benthamic Was The Criminal Law Commission’, Law and History Review, vol. 18, Issue No. 2, Summer 2000, pp. 427–32. 29. In fact, Stephen himself was involved in preparing a Draft Criminal Code for England in 1878. See, Stephen, A History of the Criminal Law of England, vol. 1, at p. vi. 30. On 25 November 1870, Stephen moved that the final report of the Select Committee be taken up for consideration. 31. Abstract of the Proceedings of the Council of the Governor General of India (Calcutta: Office of the Superintendent of Government Printing, 1899), p. 89. 32. Section 166, Code of Criminal Procedure, 1861, available at: https://babel.hathitrust.org/cgi/pt?id=hvd.hl3x90;view=1up;seq=111 (last visited 6 September 2016); Section 465, Code of Criminal Procedure 1872/1874, available at: https://babel.hathitrust.org/cgi/pt? id=hvd.hl3x91;view=1up;seq=507 (last visited 6 September 2016); Section 196, Code of Criminal Procedure, 1882, available at: https://archive.org/stream/newcodecriminal00crangoog#page/n6/mode/2 up (last visited 6 September 2016); Section 196, Code of Criminal Procedure, 1898, available at: http://bombayhighcourt.nic.in/libweb/oldlegislation/CRIPC1898/cripc18 98.html (last visited 6 September 2016). For the schedules of the 1898 Act, see further, http://bdlaws.minlaw.gov.bd/pdf_part.php?id=75 (last visited 10 September 2016); Criminal Procedure Code, 1898 (on file with the author, with thanks to Uma Narayan). 33. Section 196, Code of Criminal Procedure, 1973. 34. (1891) ILR 19 Cal 35. 35. See further, Chandrachud, An Independent, Colonial Judiciary. 36. Sir Andrew Scoble moved a bill on 9 January 1891 in the legislative council of British India to raise the age of consent for women from ten to twelve. This was done because an eleven-year-old-girl called Phulmani Bai had died from lacerations received as a result of sexual intercourse. See, Stanley A. Wolpert, Tilak and Gokhale: Revolution and Reform in the Making of Modern India (University of California Press 1962), pp. 45–49. 37. P. 36. 38. P. 44. 39. P. 47. 40. (1897) ILR 22 Bom 112. 41. See further, Chandrachud, An Independent, Colonial Judiciary. 42. See, Chandrachud, An Independent, Colonial Judiciary. See further, Trapnell, ‘The Indian Press Prosecutions’, p. 87. 43. Pp. 134–35. 44. Pp. 136–37. 45. P. 137. 46. P. 138. 47. P. 142. 48. P. 141. 49. Trapnell, ‘The Indian Press Prosecutions’, p. 78. 50. See further, Chandrachud, An Independent, Colonial Judiciary. 51. Gangadhar Tilak v. Queen Empress, (1898) 22 ILR (Bom) 528. 52. See, Chandrachud, An Independent, Colonial Judiciary. 53. This was the Criminal Procedure Code, 1882. The provisions which are discussed in this paragraph were substantially retained in the Code of Criminal Procedure, 1898. 54. Section 275. See, Section 275, Code of Criminal Procedure, 1898. 55. Section 276. See, Section 276, Code of Criminal Procedure, 1898. 56. Sections 312–13. See, Section 313, Code of Criminal Procedure, 1898. 57. For more on juries in colonial India, see, Kalyani Ramnath, ‘The Colonial Difference between Law and Fact: Notes on the Criminal Jury in India’, The Indian Economic and Social History Review, vol. 50, Issue No. 3, (2013), pp. 341–63. 58. Trapnell, ‘The Indian Press Prosecutions’, p. 85. 59. (1897) 22 ILR Bom 152 (FB) (decided by three judges). 60. P. 156. 61. Pp. 156–57. 62. P. 158. However, the harsh sentence imposed by the sessions judge was reduced to one year’s rigorous imprisonment for the editor, and three months’ simple imprisonment for the proprietor. 63. (1898) ILR 20 All 55 (decided by three judges). 64. P. 68. 65. On 21 December 1897, law member Chalmers introduced a motion in the Governor-General’s Council to refer the Bill to a Select Committee. On 4 February 1898, the report of the Select Committee was then presented by Chalmers to the Council. The Select Committee Report is in G.K. Roy, Law Relating to Press and Sedition (Simla: Station Press, 1915), available at: https://archive.org/stream/lawrelatingtopre00royguoft#page/14/mode/2u p (last visited 30 June 2017). 66. Abstract of the Proceedings of the Council of the Governor General of India (Calcutta: Office of the Superintendent of Government Printing, 1898) (on file with the author, with thanks to Sandeep Ranade), pp. 379–380. 67. See, Profile of P. Ananda Charlu, website of the Indian National Congress, available at: http://www.pci.inc.in/organization/875-P.- Ananda-Charlu/profile (last visited 25 December 2016). 68. See, Sarojanand Jha, ‘Kings of Raj Darbhanga’, Mithila Times, available at: http://www.mithilatimes.com/kings-of-raj-darbhanga/ (last visited 25 December 2016). 69. Abstract of the Proceedings of the Council of the Governor General of India (Calcutta: Office of the Superintendent of Government Printing, 1899) (on file with the author, with thanks to Sandeep Ranade). 70. A ‘maidan’ is an open field. 71. The version which was finally passed in 1898 was mildly different from the draft which was originally introduced by Chalmers to the Council. For example, hate speech was taken out of the ambit of sedition. The word ‘ill will’, which had been used by Chief Justice Petheram of the Calcutta High Court in Bangobasi, and which was initially adopted in Chalmers’ draft, was dropped. The maximum sentence of imprisonment was also reduced from ten years in Chalmers’ draft, to three years as it had been in Macaulay’s draft. 72. Annie Besant v. The Advocate General of the Government of Madras, AIR 1919 PC 31; In re: Amrita Bazar Patrika Press Ltd., (1920) ILR 47 Cal 190; Jiwan Singh v. King Emperor, AIR 1925 Lah 16; Sachin Das v. Emperor, AIR 1936 Cal 524. In one case it was held that the natural meaning of the words used could be disregarded if there was ‘express evidence to show that the natural meaning was neither intended nor understood’. Thakin Ba Sein v. Emperor, AIR 1937 Rangoon 161. 73. Arjan Singh v. Emperor, AIR 1930 Lah 153; Satyendra Nath Mazumdar v. Emperor, AIR 1931 Cal 337a. 74. Arjun Arora v. Emperor, AIR 1937 All 295. 75. Emperor v. Bal Gangadhar Tilak, (1908) 10 Bom LR 848; Thakin Lay Maung v. The King, AIR 1938 Rangoon 169. 76. Joy Chandra Sarkar v. Emperor, (1911) ILR 38 (Cal) 214. 77. Munshi Singh v. Emperor, AIR 1935 Oudh 347. 78. Emperor v. Maniben Liladhar Kara, AIR 1933 Bom 65; Emperor v. Narayan Vasudev Phadke, AIR 1940 Bom 379. 79. Emperor v. Ganesh Damodar Savarkar, (1910) 12 Bom LR 105. 80. Emperor v. Bal Gangadhar Tilak, AIR 1916 Bom 9. 81. Emperor v. Bal Gangadhar Tilak, AIR 1916 Bom 9. 82. In re: The ‘Zamindar’ Newspaper, AIR 1934 Lah 219. But see, Raj Pal v. The Crown, (1922) ILR 3 Lah 405. 83. Satya Pal v. Emperor, AIR 1930 Lah 309. 84. Sat Parkash v. Emperor, AIR 1941 Lah 165. 85. See, Emperor v. Bhaskar Balvant Bhopatkar, (1906) 8 Bom LR 421; Satya Pal v. Emperor, AIR 1930 Lah 309. 86. Munshi Singh v. Emperor, AIR 1935 Oudh 347; Ram Saran Das v. Emperor, AIR 1930 Lah 892. 87. See, Emperor v. Bhaskar Balvant Bhopatkar, (1906) 8 Bom LR 421; Emperor v. Ganesh Balvant Modak, (1910) 12 Bom LR 21. 88. Annie Besant v. The Advocate General of the Government of Madras, AIR 1919 PC 31. The Privy Council preferred to defer to high court judges who, it believed, were better placed to determine the character of the readers. 89. Emperor v. Bhaskar Balvant Bhopatkar, (1906) 8 Bom LR 421. 90. See, e.g., Emperor v. Bal Gangadhar Tilak, AIR 1916 Bom 9. 91. Emperor v. Bal Gangadhar Tilak, (1908) 10 Bom LR 848; Emperor v. Shankar Shrikrishna Dev, (1910) 12 Bom LR 675; Emperor v. Bal Gangadhar Tilak, AIR 1916 Bom 9; Kidar Nath v. Emperor, AIR 1929 Lah 817. 92. Bal Gangadhar Tilak v. Emperor, AIR 1916 Bom 9. 93. Reg. v. Burns (1886) 16 Cox 355. 94. Joy Chandra Sarkar v. Emperor, (1911) ILR 38 (Cal) 214. However, the truth of the work could help mitigate the sentence. See, Santa Singh v. Emperor, AIR 1927 Lah 710. 95. In re: Amrita Bazar Patrika Press Ltd., (1920) ILR 47 Cal 190. 96. See, Krishna Chandra Pangoria v. Emperor, AIR 1937 All 466. 97. See further, Chandrachud, An Independent, Colonial Judiciary. 98. See, (1908) SCC OnLine Bom 48 (paragraphs 114-125). 99. Section 56, IPC. Based on Act XXIV of 1855, available at: http://lawmin.nic.in/legislative/textofcentralacts/1855.pdf (last visited 7 September 2016). See further: Act XXVII of 1870, available at: https://babel.hathitrust.org/cgi/pt?id=hvd.hl466i;view=1up;seq=690 (last visited 7 September 2016). However, under the Criminal Libel Act, 1819, a second conviction for seditious libel in England entailed a maximum sentence of seven years’ transportation, and this was Tilak’s second conviction. 100. For more on Broomfield, see Chandrachud, An Independent, Colonial Judiciary. 101. See, Young India, 23 March 1922, Mahatma Gandhi, Young India, 1919-1922 (Madras: S. Ganesan, 1924), p. 1053, available at: https://archive.org/details/in.ernet.dli.2015.211536 (last visited 14 June 2017). 102. Available at: https://babel.hathitrust.org/cgi/pt? id=mdp.39015076724304;view=1up;seq=262 (last visited 5 September 2016). 103. 9 February 1922, Young India, available at: https://babel.hathitrust.org/cgi/pt? id=mdp.39015069951682;view=1up;seq=90 (last visited 5 September 2016). 104. Niharendu Dutt Majumdar v. King Emperor, (1942) FCR 38. 105. (1868) 11 Cox. C.C. 44, p. 45. 106. P. 49. 107. P. 50. 108. P. 51. 109. (1947) 60 Law Weekly 462. 110. Pp. 464–65. 111. P. 466. 112. Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955 (decided by five judges). Followed in Balwant Singh v. State of Punjab, (1995) 3 SCC 214 (paragraphs 7–8). 113. Section 73(a), Coroners and Justice Act, 2009. One of the last cases in England involving the offence of seditious libel was Regina v. Chief Metropolitan Stipendiary Magistrate, Ex parte Choudhury, (1991) 1 Q.B. 429. The court in this case refused to issue a summons against the author and publisher of the book ‘Satanic Verses’, Salman Rushdie and Viking Penguin. 114. See, June Eichbaum, ‘The Antagonism Between Freedom of Speech and Seditious Libel’, Hastings Constitutional Law Quarterly, vol. 5, Issues 1 & 2 (Winter 1978), pp. 445–60. See, ‘U.S. Congress Passes Sedition Act’, History Channel, available at: http://www.history.com/this-day-in-history/u-s-congress-passes- sedition-act (last visited 11 July 2017). 115. The Code of Criminal Procedure 1898 made sedition a non-cognizable offence. The Law Commission, in its 41st Report published in September 1969, recommended that all offences against the State specified in Chapter VI of the Indian Penal Code, except sedition and another offence, should be made cognizable. Paragraph 47.4, Law Commission of India, 41st Report, September 1969, vol. 1, Government of India, Ministry of Law, available at: http://lawcommissionofindia.nic.in/1-50/Report41.pdf (last visited 19 November 2016) (Chairman, K.V.K. Sundaram). Thus, Bill No. XLI of 1970 introduced in the Rajya Sabha for enacting the Code of Criminal Procedure, 1970, still made Section 124-A a non-cognizable offence. However, the Code of Criminal Procedure, 1973 (which was enacted in January 1974) made sedition a cognizable offence for the first time in India’s history.

Chapter 3: ‘He Who Destroys a Good Book, Kills Reason Itself’

1. At the time, he was known as Lord Mornington. See, ‘Mysore Wars’, Encyclopaedia Britannica, available at: https://www.britannica.com/topic/Mysore-Wars (last visited 27 December 2016). 2. ‘No paper to be published (at all) until it shall have been previously inspected by the secretary to the government, or by a person authorised by him for the purpose, in order that nothing may be published tending to convey information to the enemy, or to excite alarm and commotion within our own dominions.’ Clause 4. See, letter from Wellesley (Earl of Mornington) to Sir Alured Clarke, dated 26 April 1799, in Robert Rouiere Pearce, Memoirs of the Most Noble Richard Marquess Wellesley (London: Richard Bentley, 1847), 2nd Edition, vol. 2, p. 282, available at: https://babel.hathitrust.org/cgi/pt? id=umn.319510024129316;view=1up;seq=326 (last visited 26 December 2016). The regulations were imposed on 13 May 1799. Ibid, p. 288. See further, Sir John Malcolm, The Political History of India (London: J. Murray, 1826), vol. 2, p. 295, available at: https://catalog.hathitrust.org/Record/001266403 (last visited 26 December 2016); The Monthly Review, November 1806, p. 322, available at: https://catalog.hathitrust.org/Record/000552933 (last visited 26 December 2016). 3. See, John Keay, India: A History (New York: Grove Press, 2000), pp. 393–402. 4. Rules were enacted for guiding the secretary to the government. The secretary was to pay special attention towards preventing the publication of the following matters: ‘1. All observations on the state of public credit, or the revenues, or the finances, of the Company. 2. All observations respecting the embarkation of troops, stores, or specie; or respecting any naval or military preparations whatever. 3. All intelligence respecting the destination of any ships, or the expectation of any, whether belonging to the Company or to individuals. 4. All observations with respect to the conduct of government, or any of its officers, civil or military, marine, commercial, or judicial. 5. All private scandal, or libels on individuals. 6. All statements with regard to the probability of war or peace between the Company and any of the native powers. 7. All observations tending to convey information to an enemy, or to excite alarm or commotion within the Company’s territories. 8. The republication of such passages from the European newspapers, as may tend to affect the influence and credit of the British power with the native states.’ Cobbett’s Political Register v. 9 (1806), available at: https://babel.hathitrust.org/cgi/pt? id=uc1.b3494131;view=1up;seq=217 (last visited 26 December 2016), pp. 374–75. 5. Pearce, Memoirs, p. 281. 6. Wellesley instructed the Bengal government to enforce the regulations in his letter dated 26 April 1799. Tipu Sultan died on 4 May 1799. The regulations were brought into force on 13 May 1799. See further, S.M. Mitra, Anglo-Indian Studies (London: Longmans, Green & Co., 1913), p. 166. 7. Clause 3. 8. Clause 5. 9. The regulations were repealed on 28 August 1818. Pearce, Memoirs, p. 288. See further, Arpan Banerjee, ‘Political Censorship and Indian Cinematographic Laws: A Functionalist-Liberal Analysis’, Drexel Law Review, vol. 2, pp. 557–626 (2009–10), p. 583, citing Margarita Barns, The Indian Press (1940). 10. The regulations were: ‘First: Animadversions on the measures and proceedings of the Honourable Court of Directors or other public authorities in England connected with the Government of India; or disquisitions on political transactions of the local administration; or offensive remarks levelled at the public conduct of the members of the Council, or the judges of the Supreme Court, or of the Lord Bishop of Calcutta. Second: Discussions having a tendency to create alarm or suspicion among the native population of any intended interference with their religious opinions or observances. Third: The republication from English or other newspapers of passages coming under any of the above heads, or otherwise calculated to affect the British power or reputation in India. Fourth: Private scandal and personal remarks on individuals tending to excite dissension in society.’ Alexander Andrews, The History of British Journalism (London: R. Bentley, 1859), vol. 2, p. 154, available at: https://catalog.hathitrust.org/Record/000915324 (last visited 26 December 2016). 11. J.R. Mudholkar, Press Law, Tagore Law Lectures (Calcutta: Eastern Law House, 1975), p. 15. 12. See, Hamburger, ‘The Development of the Law of Seditious Libel and the Control of the Press’; Isaac M. Morehouse, ‘Areopagitica: Milton’s Influence on Classical and Modern Political and Economic Thought’, Libertarian Papers, 1, 38 (2009). 13. It was so named in order to distinguish it from the ‘Short Parliament’ which had been in session between April–May 1640. 14. See, Vincent Blasi, ‘Milton’s Areopagitica and the Modern First Amendment’, Yale Law School, available at: http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi? article=1007&context=ylsop_papers (last visited 14 August 2016); ‘Court of Star Chamber’, Encyclopaedia Britannica, available at: https://www.britannica.com/topic/Court-of-Star-Chamber (last visited 14 August 2016); Jane H. Ohlmeyer, ‘English Civil Wars’, Encyclopaedia Britannica, available at: https://www.britannica.com/event/English-Civil-Wars (last visited 14 August 2016). 15. Areopagitica, Encyclopaedia Britannica, available at: https://www.britannica.com/topic/Areopagitica (last visited 14 August 2016). 16. The full text of Areopagitica is available at the following link: https://www.dartmouth.edu/~milton/reading_room/areopagitica/text.htm l (last visited 14 April 2017). I have modernized the following spellings which Milton used: consider’d, reform’d, civill, attain’d, looke, hee, Booke and it selfe. 17. Sir James Fitzjames Stephen, A History of the Criminal Law of England (London: Macmillan and Co., 1883), available at: https://babel.hathitrust.org/cgi/pt?id=hvd.hl57k3;view=1up;seq=325 (last visited 14 August 2016), pp. 309–10. 18. Enacted under the Defence of India Act, 1939. 19. It had no short title. Its long title was as follows: ‘A Rule, Ordinance and Regulation, for the good order and civil government of the Settlement of Fort William in Bengal, made and passed by the Honourable the Governor-General in Council of and for the Presidency of Fort William in Bengal, the 14th day of March, in the year of our Lord 1823’. See, The Oriental Herald and Colonial Review (London: J.M. Richardson, 1824) (available on Google Books). A similar law was enacted in Bombay in 1829, called ‘A Regulation for restricting the establishment of Printing Presses and the circulation of Printed Books and Papers’, Accounts and Papers Relating to East India Company and East Indies (1829) (available on Google Books). 20. The Supreme Court of Calcutta was not a Supreme Court in the sense that the Supreme Court of India today is. In other words, it was not the highest appellate court in India. There were two other Supreme Courts in British India—the Supreme Courts of Bombay and Madras. These Supreme Courts eventually merged into the high courts of 1862. 21. Likewise, Section 36 of the Regulating Act, 1773, allowed any person in India to challenge the laws (‘rules, ordinances and regulations’) enacted by the governor-general, before the Privy Council, which was, essentially, akin to judicial review of legislative action (though the governor-general’s laws might have been considered a species of delegated legislation). 22. The memorial was submitted on 31 March 1823. 23. Sophia Dobson Collet (ed.), The Life and Letters of Raja Rammohun Roy 2nd edition, 1914, available at: https://archive.org/stream/lifelettersofraj00collrich (last visited 14 August 2016). 24. The Monthly Repository of Theology and General Literature, January to December 1824 (Hackney: Sherwood, Jones and Co., 1824), available on Google Books. 25. Act XI of 1835. See, William Theobald, The Legislative Acts of the Governor General of India in Council (Calcutta: Thacker, Spink & Co., 1868), available at: https://catalog.hathitrust.org/Record/010469468 (last visited 1 July 2017). 26. Act XV of 1857. This was a temporary law, which was to remain in force only for a period of one year. 27. Section 10, Act XIX of 1876. For the text of the law, see G.K. Roy, Law Relating to Press and Sedition (Simla: Station Press, 1915). 28. A ‘news-sheet’ was defined to mean ‘any document other than a newspaper containing public news or comments on public news’. A newspaper was defined as a ‘periodical work containing public news or comments on public news’. 29. Act IX of 1878. See further, Act XVI of 1878. 30. Some of the statutes seen above did not have short titles either. For example, the 1823 statute of John Adam did not have a short title either. However, many statutes at this time did, in fact, have short titles, e.g. the Indian Penal Code, Indian Contract Act, Indian Evidence Act, etc. 31. See further, Husain B. Tyabji, Badruddin Tyabji: A Biography (Bombay 1952), p. 126; Ganesh L. Chandavarkar, A Wrestling Soul: Story of the Life of Sir Narayan Chandavarkar (Popular Book Depot 1955), p. 45. 32. Section 2 defined a ‘newspaper’ as a periodical work etc. ‘printed wholly or partially in any oriental language’. Thus, even a bilingual newspaper, printed partly in English and partly in an Indian language, fell within its ambit. 33. Section 3. This power could be exercised after obtaining the prior sanction of the local government. 34. Section 8. 35. Sections 13 and 16. 36. Section 2, Seditious Publications Act, 1882 (Act III of 1882). See further, Chandrachud, An Independent, Colonial Judiciary. 37. Interestingly, G.K. Gokhale was among some who wrote a minute of dissent protesting against the enactment of this law. Gokhale believed that some of its provisions were ‘far too drastic’, and that the law should have been enacted for a limited time only. 38. Section 3. 39. Section 4. 40. Section 17. 41. Act No. XIV of 1922, available at: http://lawmin.nic.in/legislative/textofcentralacts/1922.pdf (last visited 26 December 2016). 42. Section 3. 43. Section 10. 44. Section 3. A hearing was required to be given before making the order absolute. 45. Section 5. 46. Act No. XIV of 1922, available at: http://lawmin.nic.in/legislative/textofcentralacts/1922.pdf (last visited 26 December 2016). 47. See, e.g., Section 3, ‘A Regulation for Restricting the Establishment of Printing Presses and the Circulation of Printed Books and Papers’, Accounts and Papers Relating to East India Company and East Indies (1829) (available on Google Books); Section 7, Act XV of 1857. 48. Abstract of the Proceedings of the Council of the Governor General of India (Calcutta: Office of the Superintendent of Government Printing, 1877), available at: https://babel.hathitrust.org/cgi/pt? id=chi.78206403;view=1up;seq=96 (last visited 22 July 2017), at p. 74; Aravind Ganachari, ‘Combating Terror of Law in Colonial India: The Law of Sedition and the Nationalist Response’ in M. Vardalos et al (eds.), Engaging Terror: A Critical and Interdisciplinary Approach (Boca Raton, Florida: Brown Walker Press, 2009), p. 93 (available on Google Books). Ganachari believes that a Marathi play, Narayan Bapuji Kanitkar’s Malharraoche Natak, was also responsible for the law. 49. Section 3. 50. See, e.g., Section 12, Indian Press Act, 1910; Section 16, Indian Press (Emergency Powers) Act, 1931. 51. Section 2. 52. Section 4(3). 53. Section 8. 54. Section 9. 55. Section 2(2)(vi). 56. Section 8. 57. Section 10. 58. Rule 38(1)(a). 59. Rule 38(5). 60. Rule 34(6)(e). 61. Clauses 1 and 2. Pearce, Memoirs, p. 282. 62. ‘A Rule, Ordinance and Regulation for Preventing the Mischief Arising from the Printing and Publishing Newspapers, and Periodical and other Books and Papers by Persons Unknown.’ The Oriental Herald and Journal of General Literature (London: Longman, Rees, et al, 1826) (available on Google Books). 63. Section 1. 64. Section 2. 65. Section 7. 66. Section 14. 67. Section 15. This was not akin to a licence. The certificate only evidenced the fact that the notice had been received. 68. Section 2. 69. Section 7. 70. Section 8. 71. Under Section 2, Metcalfe’s 1835 law was repealed. 72. Section 3. 73. Section 5. 74. Section 9. Under Section 18, the government was to maintain a catalogue of books so received.

Chapter 4: Munshi’s Coup in the Constituent Assembly

1. See further, Granville Austin, The Indian Constitution: Cornerstone of a Nation (New Delhi: Oxford University Press, 1966) p. 78. 2. It was set up by the Constituent Assembly on 24 January 1947. B. Shiva Rao (ed.), The Framing of India’s Constitution: Select Documents (Delhi: Universal Law Publishing Co. Pvt. Ltd., 2012 reprint) (hereinafter, ‘BSR’), vol. 2, p. 56. 3. It was set up on 27 February 1947. BSR, vol. 2, pp. 64–65. 4. BSR, vol. 1, p. 5. 5. BSR, vol. 1, p. 43. 6. BSR, vol. 1, p. 58. 7. Article 9, draft prepared by K.T. Shah dated 23 December 1946, BSR, vol. 2, p. 49. 8. Article 5(1)(a), draft prepared by K.M. Munshi dated 17 March 1947, BSR, vol. 2, p. 75. Munshi was a Bombay advocate who had served as home minister of Bombay State as part of the Congress government there in the late 1930s. See, K.M. Munshi, Bombay High Court: Half a Century of Reminiscences (Bombay: Bharatiya Vidya Bhavan 1963), p. 32. 9. Article 3, draft prepared by Harnam Singh dated 18 March 1947, BSR, vol. 2, p. 81. 10. Article II-I, Clause 12, draft prepared by Dr B.R. Ambedkar dated 24 March 1947, BSR, vol. 2, p. 87. 11. BSR, vol. 2, p. 121. 12. Debates of the Constituent Assembly of India (hereinafter, ‘CAD’), vol. 7, p. 716, 1 December 1948. 13. These were Damodar Swarup Seth, CAD, vol. 7, p. 712 and Professor Shibban Lal Saksena, CAD, vol. 7, p. 763. 14. CAD, vol. 7, p. 780. 15. BSR, vol. 4, p. 38. Interestingly, Rau had travelled to the US, UK, Ireland and Canada, to discuss provisions of the draft Constitution with jurists in those countries. However, Rau’s notes suggest that the right to free speech was not a substantial topic of discussion. 16. Thus, Munshi’s draft Article 5 provided as follows: ‘(1) Every citizen within the limits of the law of the Union and in accordance therewith has: (a) the right of free expression of opinion;(2) The press shall be free subject to such restrictions imposed by the law of the Union as in its opinion may be necessary in the interest of public order or morality.’ BSR, vol. 2, p. 75. 17. This was also true of the other rights to freedom. See, Austin, The Indian Constitution, p. 88. We do know, however, that K.T. Shah was opposed to the right to assemble peaceably and without arms being given only to citizens. 18. BSR, vol. 2, p. 75. 19. BSR, vol. 2, p. 75. 20. BSR, vol. 2, p. 87. 21. Ambedkar very categorically stated in his notes on his draft that the fundamental rights in his draft were ‘borrowed from the constitutions of various countries particularly from those wherein the conditions are more or less analogous to those existing in India.’ BSR, vol. 2, p. 97. 22. Article 4(iv). It provided as follows: ‘The right of free expression of opinion, as well as the right to assemble peaceably and without arms, and to form associations or unions, is hereby guaranteed for purposes not opposed to public order or morality.’ BSR, vol. 1, p. 59. 23. Article 40(6)(1)(i). 24. Minutes of the meeting of the Sub-Committee dated 25 March 1947, BSR, vol. 2, p. 120. 25. CAD, vol. 7, p. 714. 26. CAD, vol. 7, p. 775. 27. CAD, vol. 7, p. 40. 28. Before making this speech, Ambedkar had probably gone through an article written by B.N. Rau in The Hindu on 15 August 1948, where Rau had essentially said the same thing, and quoted from the US case of Gitlow v. New York. See, Sir Benegal Rau, India’s Constitution in the Making (Madras: Vasanta Press, 1963), pp. 391–92. 29. CAD, vol. 7, p. 763. 30. CAD, vol. 7, p. 769. 31. ‘Satyam Bruyat Priyam Bruyat Na Bruyat Satyamapriyam’. 32. CAD, vol. 7, p. 771. See further, speech delivered by Deshbandhu Gupta, CAD, vol. 7, p. 776–77. 33. See, minutes of the Advisory Committee dated 21 April 1947, BSR, vol. 2, p. 288. 34. However, the provisions of Sections 153A and 295A of the Indian Penal Code make promoting enmity or hatred between different groups or insulting the religion of a group by outraging its religious beliefs punishable. These provisions were later protected by the ‘public order’ exception to free speech, enacted by the First Amendment in 1951. 35. William Blackstone, Commentaries on the laws of England (Chicago: American Bar Association, 2009 reprint), p. 374. 36. K.T. Shah’s comments on the draft report dated 10 April 1947, BSR, vol. 2, p. 153, p. 157. 37. Sir Alladi was a prominent Madras advocate, who had served as Advocate General of Madras between 1928–44. See, V. Sudhish Pai, Legends in Law: Our Great Forebears (New Delhi: Universal Law Publishing Co. Pvt. Ltd., 2013) pp. 201–17. 38. BSR, vol. 2, p. 143. 39. See, Ramachandra Guha, India After Gandhi: The History of the World’s Largest Democracy (London: Pan Macmillan Ltd., 2007), pp. 8–9. 40. Guha, India After Gandhi, pp. 11–12. 41. Sarvepalli Gopal, Jawaharlal Nehru: A Biography (New Delhi: Oxford University Press, 1979), vol. 2, p. 13. 42. BSR, vol. 2, pp. 157–58. 43. Nehru to Patel, letter dated 30 September 1947, Durga Das (ed.), Sardar Patel’s Correspondence: 1945-1950 (Ahmedabad: Navajivan Trust, 1972), vol. 4, p. 398. 44. Nehru to Patel, letter dated 6 October 1947, ibid, p. 399. 45. Patel to Nehru, letter dated 11 October 1947, ibid, p. 401. 46. Desai to Patel, letter dated 8 October 1947, ibid, pp. 416–17. 47. Patel to Desai, letter dated 16 October 1947, ibid, pp. 417–18. 48. The Bill was passed as the Press (Special Powers) Act, 1947, available at: http://lawmin.nic.in/legislative/textofcentralacts/1947.pdf (last visited 23 May 2017). It was to be in force until 31 December 1949. 49. P.N. Chopra (ed.), The Collected Works of Sardar Vallabhbhai Patel (New Delhi: Konark Publishers Pvt. Ltd., 2015), vol. 12, p. 238. 50. BSR, vol. 2, p. 49. 51. BSR, vol. 2, p. 158. 52. Minutes of the meeting of the Sub-Committee dated 17 April 1947, BSR, vol. 2, p. 201. 53. Accepting a slight modification in terminology suggested by K.M. Panikkar. 54. BSR, vol. 2, p. 232. 55. BSR, vol. 2, p. 231. 56. BSR, vol. 2, p. 232. 57. Munshi, Bombay High Court, p. 34. However, according to Munshi, the order was withdrawn within three to four days, and the order had ceased to be in force when the matter reached the Bombay High Court. 58. See further, Austin, The Indian Constitution, p. 90. 59. BSR, vol. 2, p. 164. 60. See, BSR, vol. 2, pp. 167–68. 61. Article 358 provided that during the operation of a proclamation of Emergency, nothing in Article 19 was to restrict the power of the State to make any law or to take any executive action which the State would have been competent to make but for Article 19. Under Article 359, during the operation of a proclamation of Emergency, the President could by order declare that the right to move a court for enforcement of the rights conferred by Part III of the Constitution (i.e., the fundamental rights), would remain suspended either while the Emergency was in force or for a shorter period. 62. All the rights in India’s bill of rights contained in Part III of the Constitution are called ‘fundamental rights’. By contrast, only some hierarchically superior rights in the US are considered ‘fundamental’. 63. CAD, vol. 7, p. 731. 64. III and IV Federal Court Reports. 65. LR 74 IA 89. 66. See, speeches by Seth Govind Das, CAD, vol. 7, pp. 750–51, Pandit Thakur Das Bhargava, CAD, vol. 7, p. 735; and Rohini Kumar Chaudhari, p. 762. 67. See, Gopal, Jawaharlal Nehru, vol. 2, pp. 18–42. See further, V.P. Menon, The Story of the Integration of the Indian States (Bombay: Orient Longmans, 1956); Guha, India After Gandhi, pp. 35–58. 68. Sections 203 and 220, Government of India Act, 1935. The text of this statute is available at: http://lawmin.nic.in/legislative/textofcentralacts/GOI%20act%201935.p df (last visited 8 November 2016). A ‘court of record’ is a court whose records are permanently maintained and have evidentiary value. A ‘court of record’ inherently has the power to punish contempts of court. See, Supreme Court Bar Association v. Union of India, (1998) 4 SCC 409. 69. Articles 91 and 164 of the October 1947 Constitution, and Articles 108 and 192 of the February 1948 Constitution. Both drafts are available in BSR, vol. 3. 70. CAD, vol. VIII, p. 379. 71. CAD, vol. VIII, p. 657. 72. CAD, vol. XI, p. 394. 73. Additionally, Pandit Thakur Das Bhargava argued that contempt could be committed not merely by speech but by conduct as well, and so the words ‘contempt of court’ did not deserve a place as an enumerated exception to free speech. CAD, vol. XI, p. 396. 74. CAD, vol. XI, p. 398. 75. CAD, vol. XI, p. 400. 76. CAD, vol. XI, p. 401. 77. CAD, vol. XI, p. 399. 78. CAD, vol. 7, pp. 735/739/787. On that occasion, Bhargava had also wanted to insert the word ‘reasonable’ into the exceptions to the right to free speech, but his amendment was negatived. 79. CAD, vol. XI, p. 395. 80. CAD, vol. XI, p. 400. 81. Austin, The Indian Constitution, p. 93. 82. BSR, vol. 4, p. 755. 83. Austin, The Indian Constitution, p. 87. 84. Ambedkar himself was a product of Columbia University.

Chapter 5: Prasad and Mookerjee Trigger an Amendment

1. See further, Granville Austin, Working a Democratic Constitution: A History of the Indian Experience (New Delhi: Oxford University Press, 1999), p. 42 (n. 13). For more on Mookerjee, see, Guha, India After Gandhi, pp. 250–54. 2. For more on the first amendment, see the work of Arudra Burra, e.g., ‘Arguments from Colonial Continuity: The Constitution (First Amendment) Act, 1951’, available at SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2052659 (last visited 20 December 2016) (cited with permission from the author); ‘What Self-styled Nationalists Could Learn from the Hindu Right’s Own Past Record on Free Speech’, Scroll.in, available at: http://scroll.in/article/802327/what-self-styled-nationalists-could-learn- from-the-hindu-rights-own-past-record-on-free-speech (last visited 9 September 2016). 3. A few provisions of the Constitution came into force at once on 26 November 1949. The rest came into force on 26 January 1950. See, Article 394, which dealt with the commencement of the Constitution. 4. In Shaila Bala Devi’s case (infra), the restriction was actually imposed before the Constitution came into force. 5. It is remarkable that both cases were finally decided within such a short time of the cases being filed. The impugned orders in these cases were of March 1950, while the judgments were delivered in May 1950. 6. AIR 1950 SC 124 (all paragraph number references contained herein are from the SCC Online version). 7. AIR 1950 SC 129. 8. C.K. Mathew, ‘First Amendment to Constitution of India’, vol. 51, Issue No. 9, EPW, 7 May 2016, available at: http://www.epw.in/journal/2016/19/commentary/first-amendment- constitution-india.html (last visited 20 May 2016). 9. Justice Fazl Ali invoked his judgment in Brij Bhushan, decided on the same day, in support of his dissent. 10. Paragraph 5. 11. Paragraph 10. 12. For more on prior restraints, see, Sahara India Real Estate Corporation Ltd. v. SEBI, (2012) 10 SCC 603 (paragraphs 26 and 29) (decided by five judges). 13. Paragraph 12. 14. Paragraph 13. 15. See further, Srinivasa Bhat v. State of Madras, AIR 1951 Mad 70: (1951) 64 LW 82: (1950) SCC OnLine Mad 304. 16. Amar Nath Bali v. The State, AIR 1951 Punj 18. Paragraph 4. 17. Patrick French, ‘Essential Politician: The Importance of Being Arun Jaitley’, Hindustan Times, available at: http://www.hindustantimes.com/india/an-eyewitness-to-history-we- were-a-partition-family-says-arun-jaitley/story- ylaSOHqv0z7ctw0d5EWpbN.html (last visited 30 May 2016). 18. Bharati Press v. Chief Secretary, AIR 1951 Pat 12:(1950) ILR 30 Pat 31:(1950) SCC Online Pat 82, p 39. All page number references are from the ILR/SCC Online version. 19. Page 40. 20. Prasad eventually became the chief justice of the Rajasthan High Court in 1959. 21. Page 58. 22. Guha, India After Gandhi, p. 320. 23. Master Tara Singh Gopi Chand v. State, AIR 1951 Punj 27. 24. Guha, India After Gandhi, p. 174. 25. The text of the Nehru-Liaquat Pact, dated 8 April 1950, is available at: http://www.commonlii.org/in/other/treaties/INTSer/1950/9.html (last visited 21 July 2016). Interestingly, Clause (C)(7) of the Pact also required both countries to curb hate speech, i.e., to ‘[t]ake prompt and effective steps to prevent the dissemination of news and mischievous opinion calculated to rouse communal passion by press or radio or by any individual or organisation.’ 26. Nehru to Patel, letter dated 26 March 1950. Durga Das (ed.), Sardar Patel’s Correspondence, vol. 10, p. 13. 27. Patel to Nehru, letter dated 28 March 1950, ibid, p. 20. 28. Mookerjee to Nehru, letter dated 6 April 1950, ibid, pp. 130–31; Syama Prasad Mookerjee papers (‘Mookerjee papers’), Nehru Memorial Museum and Library, New Delhi (‘NMML’), (V–VII), File 8. 29. Nehru to Mookerjee, letter dated 10 April 1950. Mookerjee papers, NMML, (V–VII), File 8. A few weeks later, in April 1950, the US Commission on Human Rights met at Lake Success in New York to discuss a draft international covenant on human rights. India’s delegate, one Mrs Mehta, said that ‘India as well as other States had suffered from abuse of the right of expression and felt strongly that the covenant should contain some provision to prevent the spreading of deliberately false or distorted reports which might undermine friendly relations between peoples and States.’ 6th Session, Commission on Human Rights, 24 April 1950, available at: http://repository.un.org/bitstream/handle/11176/282424/E_CN.4_SR.167 -EN.pdf?sequence=1&isAllowed=y (last visited 16 February 2017). 30. ‘Press a Necessary Part of Democracy: Sardar Patel’, Hindustan Times, 13 May 1950; P.N. Chopra and Prabha Chopra (eds.), The Collected Works of Sardar Vallabhbhai Patel (New Delhi: Konark Publishers Pvt. Ltd., 2015), vol. 15, pp. 137–38. 31. Speech in Parliament dated 19 April 1950, Mookerjee papers, NMML. 32. Address by Syama Prasad Mookerjee delivered at a public reception held in Calcutta on 21 May 1950; Speech by Syama Prasad Mookerjee at the Calcutta University Institute on 11 June 1950. Mookerjee papers, NMML. 33. Durga Das (ed.), Sardar Patel’s Correspondence, vol. 10, p. 139. 34. Nehru to Patel, letter dated 29 June 1950, ibid, p. 356. 35. See further, Austin, Working a Democratic Constitution, p. 42. 36. Ibid. 37. Durga Das (ed.), Sardar Patel’s Correspondence 1945-50 (Ahmedabad: Navajivan Publishing House, 1974) vol. X, pp. 356–57. Interestingly, Patel had also been irked by the fact that the Hindu Mahasabha (whose president was Mookerjee) was raising funds for the legal defence of those accused of assassinating Mahatma Gandhi. See, Chopra and Chopra (eds.), Collected Works, vol. 13, pp. 137, 170, 187. However, in a letter to Patel, Mookerjee had denied that the Hindu Mahasabha was raising funds for their defence. Letter from Mookerjee to Patel dated 16 June 1948, Durga Das (ed.), ibid, vol. 6, pp. 82–83. Patel, however, was not convinced. Letter from Patel to Mookerjee dated 10 September 1948, Durga Das (ed.), ibid, vol. 6, pp. 86–87. 38. Austin, Working a Democratic Constitution, pp. 42–45. 39. Speech dated 7 August 1950. Syama Prasad Mookerjee, ‘The Bengal Situation: Text of Speech’ (Delhi: All India Refugee Association, 1950), pp. 15–17. See further, Tathagata Roy, The Life and Times of Dr Syama Prasad Mookerjee: A Complete Biography (Kindle Edition: Ocean Books Pvt. Ltd., 2008), p. 5502. 40. Speech delivered by Syama Prasad Mookerjee at Deshbandhu Park, Calcutta, on 3 September 1950. Mookerjee papers, NMML. See further, Roy, ibid, p. 5523. 41. Extract from the Organiser dated 2 October 1950. Mookerjee papers, NMML. 42. Presidential speech by Syama Prasad Mookerjee at the Annual Function of the RSS at New Delhi on 3 December 1950. Mookerjee papers, NMML. 43. Speech dated 6 December 1950. Mookerjee papers, NMML. 44. Speech dated 28 March 1951. Roy, The Life and Times of Dr Syama Prasad Mookerjee, p. 6193. 45. Speech dated 21 October 1951. Roy, ibid, p. 5897. 46. The proposal was to replace the existing Article 19(2) with the following clause: ‘Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the security of the State, friendly relations with foreign States, public order, decency or morality, restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to, contempt of court, defamation or incitement to an offence.’ 47. See, speech of Syama Prasad Mookerjee, Parliamentary Debates, 1951, Third Session (Second Part) (15 May 1951 to 6 June 1951) (hereinafter, ‘PD’), vol. 12, column 8839. 48. PD, vol. 12, column 8828. 49. PD, vol. 12, column 9075. 50. PD, vol. 12, column 9630. 51. That is, Nehru. 52. PD, vol. 12, columns 8845–46. 53. Bindra to Mookerjee, letter dated 20 May 1951. Mookerjee papers, NMML. 54. See, speech of B.R. Ambedkar, PD, vol. 12, column 9016. 55. Rule 25 of the Defence of India (Consolidation) Rules, 1915, enacted under the Defence of India (Criminal Law Amendment) Act, 1915, made it an offence to engage in speech ‘with intent to prejudice or which is likely to prejudice His Majesty’s relations with foreign powers’. Further, Wellesley’s 1799 regulations on free speech required the government to consider prohibiting ‘All statements with regard to the probability of war or peace between the Company and any of the native powers.’ Cobbett’s Political Register, v. 9 (1806), available at: https://babel.hathitrust.org/cgi/pt?id=uc1.b3494131;view=1up;seq=218 (last visited 26 December 2016), pp. 374–75. The Foreign Relations Act, 1932, also dealt with speech on relations with foreign powers. 56. PD, vol. 12, column 8828. 57. PD, vol. 12, column 9077. 58. Sardar Patel passed away on 15 December 1950, prior to the enactment of the First Amendment. Durga Das (ed.), Sardar Patel’s Correspondence, vol. 10, p. 472. 59. PD, vol. 12, column 9761. 60. PD, vol. 12, column 8841. 61. PD, vol. 12, column 8992. 62. Ibid. 63. PD, vol. 12, column 9628. 64. PD, vol. 12, column 9629. 65. Nehru to Patel, letter dated 20 February 1950, Durga Das (ed.), Sardar Patel’s Correspondence, vol. 10, p. 5. 66. PD, vol. 12, column 8823. 67. PD, vol. 12, column 9797. 68. Ibid. 69. PD, vol. 12, column 9798. 70. See, Chopra and Chopra (eds.), Collected Works, vol. 15, pp. 121, 131. 71. Letter from Sardar Patel to Kanjibhai Kapadia (editor, Swadesh), 23 April 1950, ibid., p. 121. 72. Letter from Sardar Patel to Achyut Patwardhan (editor, Janata), 27 April 1950, ibid., p. 124. 73. Letter from Sardar Patel to Kishorelalbhai Mashruwala, 28 April 1950, ibid., p. 130. 74. ‘Press a Necessary Part of Democracy: Sardar Patel’, Hindustan Times, 13 May 1950, ibid., p. 137. 75. Letter from Nehru to the editor of the Janata, 25 April 1950, ibid., p. 131. 76. Enclosed in a letter from Nehru to Patel, dated 25 April 1950. Durga Das (ed.), Sardar Patel’s Correspondence, vol. 10, pp. 147–48. 77. See, Gyan Prakash, Mumbai Fables (Noida: Harper Collins Publishers India, 2011), pp. 161–71. 78. Blitz, 26 May 1951, p. 4. 79. See, ‘Freedom is in Peril’, Blitz, 2 June 1951, p. 1. 80. As Nehru later wrote in a letter to Justice Vivian Bose, ‘Blitz is one of the periodicals which have developed a habit of making irresponsible statements and false allegations.’ Nehru to Bose, letter dated 29 July 1958. Gopal, Selected Works of Jawaharlal Nehru, vol. 43, p. 258. 81. PD, vol. 12, column 9692. 82. PD, vol. 12, column 9717. 83. Austin observed that while the Select Committee Report in support of the amendment itself was merely two pages long, the dissenting minutes annexed to it occupied sixteen pages. Austin, Working a Democratic Constitution, p. 48. 84. Syama Prasad Mookerjee, dissenting minute in the Select Committee Report, Gazette of India, 2 June 1951, No. 16, Part II, Section 2, Report of the Select Committee dated 25 May 1951 (hereinafter, ‘Select Committee Report’), pp. 383–384. 85. K.T. Shah, Naziruddin Ahmad and Hukam Singh, dissenting minute in the Select Committee report, p. 387. See further, speech of Kameshwara Singh, PD, vol. 12, column 8864; Syamnandan Sahaya, PD, vol. 12, column 8924–25. 86. Syama Prasad Mookerjee, dissenting minute in the Select Committee report, pp. 383–86. 87. K.T. Shah, Naziruddin Ahmad and Hukam Singh, dissenting note in the Select Committee report. 88. PD, vol. 12, column 8815. 89. K.T. Shah, Naziruddin Ahmad and Hukam Singh, dissenting note in the Select Committee report, p. 388. 90. K.T. Shah, Naziruddin Ahmad and Hukam Singh, dissenting note in the Select Committee report, p. 388. 91. See, speech of Deshbandhu Gupta, PD, vol. 12, column 8946. 92. See, Austin, Working a Democratic Constitution, pp. 43–45. 93. Austin, ibid, p. 44. 94. PD, vol. 12, columns 8879–80. 95. PD, vol. 12, column 9021. 96. Ibid. 97. See, Nehru’s letter dated 25 May 1951 to Rajendra Prasad, stating that some differences of opinion were resolved by inserting the word ‘reasonable’ before ‘restrictions’ in Article 19(2). S. Gopal (ed.), Selected Works of Jawaharlal Nehru, 2nd Series, (New Delhi: Jawaharlal Nehru Memorial Fund, 1989), vol. 16 (Part 1), p. 191, available at: http://nehruportal.nic.in/selected-works-jawahar-lal-nehru- second-series-16-part-i-0#page/288/mode/2up (last visited 24 May 2017). 98. Deshbandhu Gupta, PD, vol. 12, column 9742. 99. H.N. Kunzru, dissenting minute in the Select Committee Report, pp. 382–83; Syama Prasad Mookerjee, dissenting minute in the Select Committee Report, pp. 383–86; K.T. Shah, Naziruddin Ahmad and Hukam Singh, dissenting minute in the Select Committee Report, p. 390. See further, speech of Syama Prasad Mookerjee, PD, vol. 12, column 9853. 100. PD, vol. 12, column 9623. 101. Nehru’s letter dated 22 May 1951 to T.T. Krishnamachari, Gopal, Selected Works of Jawaharlal Nehru, vol. 16 (Part 1), p. 189. 102. PD, vol. 12, column 8838. 103. PD, vol. 12, column 9714–9715. 104. K.T. Shah, Naziruddin Ahmad and Hukam Singh, dissenting minute to the Select Committee Report; H.V. Kamath, PD, vol. 12, columns 8915, 9843; Syamnandan Sahaya, PD, vol. 12, columns 8930–31; Sarangdhar Das, PD, vol. 12, column 9034; Acharya Kripalani, PD, vol. 12, column 9723; Prof. S.L. Saksena, PD, vol. 12, columns 9838– 39. See further, proposals of S.N. Mishra, PD, vol. 12, column 9739 (suggesting ‘in the interests of the prevention of disorder’ instead); K.T. Shah, PD, vol. 12, column 9840 (suggesting ‘internal peace and the security and integrity of the State’ instead); and Naziruddin Ahmad, PD, vol. 12, column 9841 (suggesting ‘prevention of public danger to public order’). 105. Dissenting minute to the Select Committee Report, pp. 384–85. 106. PD, vol. 12, column 8843. 107. Prof. S.L. Saksena, PD, vol. 12, columns 9838–39. 108. See, K.T. Shah, PD, vol. 12, column 9839 (suggesting ‘amicable and peaceful relations with friendly foreign States, who have made treaties with . . . India in that behalf on a basis of reciprocity.’); H.V. Kamath, PD, vol. 12, column 9843 (suggesting ‘peaceful relations with foreign States’). 109. PD, vol. 12, columns 9015–17. 110. Syama Prasad Mookerjee, dissenting minute to the Select Committee Report, p. 385; and speech of Syama Prasad Mookerjee, PD, vol. 12, column 9860; K.K. Bhattacharya, PD, vol. 12, column 9843; Pandit Kunzru, PD, vol. 12, column 9844. 111. PD, vol. 12, 9662. 112. Syama Prasad Mookerjee, dissenting minute to the Select Committee Report, pp. 383–86; K.T. Shah, Naziruddin Ahmad and Hukam Singh, joint dissenting minute to the Select Committee Report; Naziruddin Ahmad, dissenting minute to the Select Committee Report; Pandit Kunzru, PD, vol. 12, column 8898; Prof. S.L. Saksena, PD, vol. 12, column 9838–39; K.T. Shah, PD, vol. 12, column 9840; Naziruddin Ahmad, PD, vol. 12, column 9841; Sarangdhar Das, PD, vol. 12, column 9842; Sardar Hukam Singh, PD, vol. 12, column 9842; K.K. Bhattacharya, PD, vol. 12, column 9843; H.V. Kamath, PD, vol. 12, column, 9843; Goenka, PD, vol. 12, column 9843; Pandit Kunzru, PD, vol. 12, column 9844. See further, speech of K.T. Shah, PD, vol. 12, column 9646; speech of S.N. Mishra, PD, vol. 12, column 9740 (suggesting that the incitement restriction be subjected to the clear and present danger test). 113. PD, vol. 12, column 9722. 114. PD, vol. 12, column 9079, 9792. 115. Pandit Thakur Das Bhargava, PD, vol. 12, column 9715; Pandit Kunzru, PD, vol. 12, column 9781 (but see, Pandit Kunzru, PD, vol. 12, column 9844). 116. PD, vol. 12, column 9762–63, 9768. 117. PD, vol. 12, column 9868. 118. G. Durgabai, dissenting minute in the Select Committee Report, p. 381; Syama Prasad Mookerjee, dissenting minute in the Select Committee Report, pp. 383–86. 119. Prof. S.L. Saksena, PD, vol. 12, columns 9838–39; Syama Prasad Mookerjee, PD, vol. 12, column 9843. 120. PD, vol. 12, columns 9861–62. 121. Section 3(2) provided as follows: ‘No law in force in the territory of India immediately before the commencement of the Constitution which is consistent with the provisions of Article 19 of the Constitution as amended by sub-section (1) of this section shall be deemed to be void, or ever to have become void, on the ground only that, being a law which takes away or abridges the right conferred by sub-clause (a) of clause (1) of the said article, its operation was not saved by clause (2) of that article as originally enacted.’ 122. See, e.g., Syama Prasad Mookerjee, dissenting minute in the Select Committee Report. 123. AIR 1951 SC 270. 124. PD, vol. 12, columns 8841–42. See further, Pandit Thakur Das Bhargava, PD, vol. 12, columns 8873–74. 125. AIR 1952 SC 329 (paragraph number references are from the SCC Online version). 126. Paragraph 4. 127. 283 US 697 (1931). 128. 249 US 47 (1919). 129. PD, vol. 12, column 9778. 130. Lawrence Liang, Reasonable Restrictions and Unreasonable Speech, in Sarai Reader 2004, p. 434. 131. The first Congress sent twelve amendments for ratification to the States. Gordon S. Wood, Empire of Liberty: A History of the Early Republic, 1789-1815 (New York: Oxford University Press, 2009) (Kindle Edition), p. 69. The first two amendments were never ratified. The original first amendment created a formula for fixing the size of the lower house (the House of Representatives) based on population. The original second amendment dealt with changing remuneration for members of Congress. See, NCC Staff, ‘Why Didn’t the Original 12 Amendments Make it into the Bill of Rights?’, Constitution Daily. See further, Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction (Yale 2000); Stephen H. Klitzman, ‘Book Review: The Fourteen Transformative Words of the First Amendment: From Fear To The “Courage To Be Free”’, Freedom For The Thought That We Hate: A Biography Of The First Amendment, Anthony Lewis (Basic Books, New York, NY, 2007), 16 CommLaw Conspectus 567 (2008). 132. Section 3. 133. For e.g., incitement to overthrow the State, to commit murder or violent crimes, to encourage a person to interfere with the supply and distribution of food, essential commodities, or services, or to encourage mutiny in the armed forces or police forces. 134. Section 4. 135. Section 5. 136. Section 10. 137. Section 23. 138. Repealing and Amending Act, 1957. 139. This was preceded by the Prevention of Publication of Objectionable Matter Ordinance, 1975. 140. Section 8. 141. Section 5. 142. Sections 19–23. 143. Section 24. 144. Section 1(3). 145. Prevention of Publication of Objectionable Matter (Repeal) Act, 1977. 146. The central government or state government, for the purpose of securing the defence of India and civil defence, the public safety, the maintenance of public order or the efficient conduct of military operations, by order require that ‘all matter, or any matter relating to a particular subject or class of subjects, shall, before being published in any document or class of documents, be submitted for scrutiny to an authority specified in the order’. Rule 48(1)(a).

Chapter 6: The Anti-DMK Amendment 1. See, Speech of E. Sezhiyan, Lok Sabha Debates, Third Series, 1963/1884 (Saka), Lok Sabha Secretariat, New Delhi (hereinafter, ‘LS’), vol. 18, column 13436. 2. The state was to comprise of Madras, Mysore, Kerala and Andhra. Austin, Working a Democratic Constitution, p. 51. 3. Guha, India After Gandhi, p. 285. 4. See, http://dmk.in/history (last visited 1 June 2017). 5. Guha, India After Gandhi, p. 285. 6. Ibid. 7. Ibid. 8. Aiyar was a prominent Madras advocate and politician. He served as Advocate General of Madras, and Dewan of Travancore State. See, ‘C.P. Ramaswami Aiyar’, C.P. Ramaswami Aiyar Foundation, available at: http://cprfoundation.org/Sir-CPR.html (last visited 28 December 2016). See further, Ramachandra Guha, ‘The Strange Case of Sir C.P. Ramaswamy Iyer’, The Hindu, 25 May 2008, available at: http://www.thehindu.com/todays-paper/tp-features/tp- sundaymagazine/The-strange-case-of-Sir-C.P.-Ramaswamy- Iyer/article15401680.ece (last visited 28 December 2016). 9. Sarvepalli Gopal, Jawaharlal Nehru—A Biography (New Delhi: Oxford University Press, 2015 reprint), vol. 3, p. 181. The National Integration Committee consisted of six members: C.P. Ramaswami Aiyar (chairman), the chief minister of Madras (Kamaraj Nadar), the chief ministers of Andhra Pradesh, Orissa and Maharashtra, and the leader of the Praja Socialist Party, Asoka Mehta. See, speech of Bibudhendra Misra (deputy minister in the Ministry of Law), Rajya Sabha, 25 January 1963, Rajya Sabha Debates (hereinafter, ‘RS’), columns 4945–46. 10. Austin, Working a Democratic Constitution, p. 51. 11. Gopal, Jawaharlal Nehru. 12. LS, vol. 12, columns 5760–61. 13. Ibid. 14. See, speech of N.K. Manoharan, LS, vol. 12, column 5798–99. 15. LS, vol. 12, column 5761. 16. LS, vol. 12, column 5839. 17. Swamy’s profile is available at: http://164.100.47.132/LssNew/biodata_1_12/735.htm (last visited 28 December 2016). 18. RS, 25 January 1963, column 4878. 19. LS, vol. 12, column 5773. 20. Manoharan was a member of the DMK, who defected to AIADMK in 1974, and returned to the DMK in 1980. He died holding the post of DMK Deputy General Secretary. See, ‘Nanjil Manoharan Dead’, The Hindu, 2 August 2000, available at: http://www.thehindu.com/2000/08/02/stories/04022232.htm (last visited 28 December 2016). 21. LS, vol. 12, column 5800. 22. See further, speech of Sezhiyan, LS, vol. 18, column 13436. 23. LS, vol. 18, column 13451. Reddy had said, in his dissenting minute to the Joint Committee Report, that ‘[t]he Bill in the main seems to be directed against the secessionist activities in Madras which pose a serious threat to the hegemony of the Congress in that province.’ Dissenting Minute dated 16 March 1963, Gazette of India, Extraordinary, Part II, Section 2, 18 March 1963. 24. Annadurai was a DMK leader who eventually served as chief minister of Madras state from 1967–69. See, ‘Remembering C.N. Annadurai’, India Today Education, available at: http://indiatoday.intoday.in/education/story/c-n- annadurai/1/586291.html (last visited 28 December 2016). 25. RS, 25 January 1963, column 4911. 26. See, speeches of R.N. Reddi, LS, vol. 12, column 5773; D.C. Sharma, LS, vol. 12, column 5784. 27. LS, vol. 18, column 13468. 28. Ibid. 29. RS, column 4850. 30. LS, vol. 12, column 5761. 31. Austin says that the oath was initially drafted by future Prime Minister of India, Lal Bahadur Shastri. Austin, Working a Democratic Constitution, p. 52. 32. LS, vol. 18, column 13410. 33. Cass Sunstein has argued that a constitutionally recognized right to secede is incompatible with the principle of constitutionalism. However, he does not seem to argue that there should be no First Amendment right to peacefully demand secession whatsoever. Cass R. Sunstein, ‘Constitutionalism and Secession’, University of Chicago Law Review, pp. 633–70 (1991). 34. Austin, Working a Democratic Constitution, p. 63. 35. See, Austin, Working a Democratic Constitution, pp. 63–68. 36. RS, 9 May 1963, column 2836. 37. LS, vol. 12, column 5832. 38. LS, vol. 18, 13411. 39. Dwivedy’s profile is available at: http://odisha.gov.in/e- magazine/Orissareview/2015/Dec/engpdf/23-28.pdf (last visited 28 December 2016). 40. LS, vol. 12, column 5780. 41. M.S. Gurupada Swamy, RS, 25 January 1963, column 4882. 42. In fact, Rajya Sabha member M.N. Govindan Nair said that he was shocked that C.N. Annadurai was not made a member of the Joint Committee. RS, 25 January 1963, column 4943. 43. The Lok Sabha debates record that the Bill was passed in the Lok Sabha by a vote of 300-0. LS, vol. 18, column 13503. However, in the Rajya Sabha, C.N. Annadurai of the DMK said that this was not, in fact, correct, that initially, seven members of the DMK in the Lok Sabha had opposed the Bill as had one member of the R.S.P., Kerala. RS, 9 May 1963, column 2843–44. 44. Surendranath Dwivedy, LS, vol. 12, column 5777; Manoharan, LS, vol. 12, column 5798; Subbaraman, LS, vol. 18, column 13447; Narasimha Reddy’s dissenting minute dated 16 March 1963 to the Joint Committee Report; C.N. Annadurai, RS, 25 January 1963, column 4894. However, some, like R.N. Reddi, said that while there was an upsurge of unity in India after the Chinese invasion, it was not clear how long this would last. LS, vol. 12, column 5773. See further, speech of M.S. Gurupada Swamy, RS, 25 January 1963, column 4877. 45. Manoharan, LS, vol. 12, column 5798. 46. RS, 25 January 1963, column 4893. 47. LS, vol. 18, column 13440. Similarly, C.N. Annadurai said, ‘Correct us if we are erroneous. Convince us if you have got solid facts. Convert us to your point of view. Instead of that you are compelling (us).’ RS, 25 January 1963, column 4897. 48. 319 US 624 (1943). 49. LS, vol. 18, column 13439. 50. LS, vol. 18, column 13432. 51. 250 US 616 (1919). 52. LS, vol. 18, column 13433. 53. See, speeches of A.K. Sen, LS, vol. 18, column 13470; D.C. Sharma, LS, vol. 18, column 13442. 54. See, Khadilkar, LS, vol. 18, column 13426; Bhupesh Gupta, RS, 25 January 1963, column 4853–54; M.S. Gurupada Swamy, RS, 25 January 1963, columns 4879–81; A.D. Mani, RS, 25 January 1963, column 4918; B.D. Khobaragade, RS, 25 January 1963, column 4927. 55. RS, 25 January 1963, columns 4927–28. 56. RS, 25 January 1963, column 4948. 57. RS, 9 May 1963, column 2843. 58. LS, vol. 12, column 5810. See further, Dissenting Minute of Syed Nausherali, 15 March 1963. Gazette of India, Extraordinary, Part II, Section 2, 18 March 1963. 59. See, Khadilkar, LS, vol. 18, column 13424. 60. The researcher was Narayan Rao and the paper was entitled ‘A critical study of the Constitution (Amendment) Bill’. 61. LS, vol. 18, column 13414. 62. LS, vol. 18, columns 13464, 13466. Law Minister Sen rebutted this argument by saying that this party only wanted home rule, not secession. LS, vol. 18, column 13474. 63. Sections 3–4, 10. 64. Section 13. 65. Section 2(1)(o). 66. Hasan Suroor, ‘India “censoring” maps’, The Hindu, 1 October 2012, available at: http://www.thehindu.com/news/international/india- censoring-maps-economist/article3949371.ece (last visited 24 May 2016); ‘Map of Kashmir lands Economist in censor trouble’, Hindustan Times, 24 May 2011, available at: http://www.hindustantimes.com/delhi/map-of-kashmir-lands-economist- in-censor-trouble/story-0Dk3GPzysf2UhtI69cTS3K.html (last visited 24 May 2016); Sanjoy Majumder, ‘Economist accuses India of censorship over Kashmir map’, BBC News, 24 May 2011, available at http://www.bbc.com/news/world-south-asia-13529512 (last visited 24 May 2016). 67. Majumder, ibid. Chapter 7: Prudes and Prigs

1. Colin Manchester, ‘A History of the Crime of Obscene Libel’, Journal of Legal History, vol. 12, Issue No. 1, 1991, pp. 40–41. 2. Sir Charles Sedley’s case, 1 Keble 620. See further, Laurence Tribe, American Constitutional Law, 1st Edition (New York: The Foundation Press, Inc., 1978), p. 657. 3. Manchester, ‘A History of the Crime of Obscene Libel’, p. 43. 4. Ibid, p. 43. 5. ‘An Act for the Punishment of Idle and Disorderly Persons, and Rogues and Vagabonds, in that Part of Great Britain Called England’: 5 Geo. 4, c. 83: available at: https://babel.hathitrust.org/cgi/pt? id=nyp.33433035257009;view=1up;seq=530 (last visited 12 September 2016). 6. Section 4. 7. Section 28. The statute is available at: http://www.legislation.gov.uk/ukpga/1847/89/pdfs/ukpga_18470089_en.p df (last visited 2 October 2016). 8. Section 486, Macaulay’s draft. 9. Chapter XIV of the draft bore the title: ‘Of Offences Affecting the Public Health, Safety, and Convenience’. Later, Chapter XIV of the IPC would bear the title ‘Of Offences Affecting the Public Health, Safety, Convenience, Decency and Morals’ (emphasis supplied). 10. Act 1 of 1856, available at: http://lawmin.nic.in/legislative/textofcentralacts/1856.pdf (last visited 12 September 2016). 11. C. Allen. 12. Proceedings of the Legislative Council of India, vol. 1, pp. 582–86, relating to 14 July 1855 (on file with the author). 13. Section 1. 14. Section 7. 15. Deana Heath, Purifying Empire: Obscenity and the Politics of Moral Regulation in Britain, India and Australia (Cambridge: Cambridge University Press, 2010), p. 198. 16. Heath, Purifying Empire, p. 200. 17. ‘An Act for more effectually preventing the Sale of Obscene Books, Pictures, Prints, and other Articles’, 20 & 21 Vict., c. 83, available at: https://babel.hathitrust.org/cgi/pt?id=hvd.hl5jfi;view=1up;seq=233 (last visited 12 September 2016). Interestingly, Deana Heath points out that the Mutiny in 1857, also called the Revolt or the First War of Indian Independence, precipitated its enactment, because it ‘strengthened the resolve of Evangelical interventionists to purify the home society to make it worthy of its imperial mission’. Heath, Purifying Empire, p. 64, quoting from M.J.D. Roberts, ‘Morals, Art and the Law: The Passing of the Obscene Publications Act, 1857’, Victorian Studies, 28, 4 (1985), pp. 609–29. 18. See, Colin Manchester, ‘Lord Campbell’s Act: England’s First Obscenity Statute’, Journal of Legal History, vol. 9, Issue 2, September 1988, pp. 223-241; the Encyclopaedia Britannica entry on the ‘Obscene Publications Act’, available at: https://www.britannica.com/event/Obscene-Publications-Act (last visited 12 September 2016). 19. Section 1. A person had to file a complaint with a magistrate that some obscene material was being kept at a premise for sale, distribution etc. The magistrate was then empowered to issue a warrant to a police officer for entry into such premise in order to search for and seize the obscene material. The police officer was to then procure the obscene material and bring it before the magistrate. The magistrate was then to issue a summons to the occupier of the premise to show cause why the material should not be destroyed. The magistrate could then order destruction of the material. 20. It was originally enacted as follows: ‘Whoever sells or distributes, imports or prints for sale or hire, or wilfully exhibits to public view, any obscene book, pamphlet, paper, drawing, painting, representation, or figure, or attempts or offers so to do, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both. Exception. This Section does not extend to any representation sculptured, engraved, painted, or otherwise represented, on or in any Temple, or on any car used for the conveyance of idols, or kept or used for any religious purpose.’ 21. Like the 1851 English statute (‘An Act for Further Improving the Administration of Criminal Justice’, 1851; 14 & 15 Vict., c. 100, available at: https://babel.hathitrust.org/cgi/pt? id=hvd.hl4ds4;view=1up;seq=53 [last visited 12 September 2016]), it criminalized the public sale or exhibition of any obscene material. Like the Vagrancy Act, 1824, the maximum sentence of imprisonment was three months. Like other misdemeanours in England, Section 292 was made a bailable offence. 22. After the Judicature Acts of 1873 and 1875, this court was reorganized as the Queen’s Bench Division of the high court. See, http://www.parliament.uk/about/living- heritage/transformingsociety/laworder/court/overview/judicatureacts/ (last visited 21 November 2016). 23. (1868) L.R. 3 Q.B. 360. 24. The contents of the pamphlet were not set out in the judgment. The pamphlet is available at: https://catalog.hathitrust.org/Record/001935730 (last visited 12 September 2016). 25. Priests were instructed that they could ask women the following questions: ‘If the penitent be a girl, let her be asked—Has she ornamented herself in dress so as to please the male sex? or, for the same end, has she painted herself; or, bared her arms, her shoulders, or her bosom? Whether she has frequented church in order that she might show herself to be looked at in the porch, or at the window? . . . Whether she is not attached to someone? Whether she has not allowed him to take liberties with her? Whether she has not allowed him to kiss her?’ Priests were also instructed as follows: ‘(In the act of sexual intercourse) if one withdraws without the consent of the other, he certainly sins grievously . . . because generally from such withdrawal there is danger of spilling the seed’; ‘if it be done from behind, or when the parties are on their sides, or standing, or sitting, or when the husband lies underneath . . . it is a mortal sin, if there should therefrom arise to either party a danger of pollution, or of losing the seed, a thing which often happens . . . ’; ‘A widow sins grievously when she derives venereal pleasure from copulation formerly had, because such is unlawful to her, in consequence of her state’; sex between married couples in a ‘consecrated place’ is not a sin ‘if kept secret’ and if the ‘church is not polluted’. England has had a history of discriminating against Catholics. In fact, the first chief justice of the Bombay High Court in 1862, Sir Mathew Richard Sausse, was a Catholic, at a time when Catholics could not serve as chief justices of important courts in England. See, Abhinav Chandrachud, An Independent, Colonial Judiciary. 26. P. 371. 27. P. 371. 28. P. 367. 29. P. 372. 30. See, Sir Zelman Cowen, Cowen’s Individual Liberty and the Law (Calcutta: Eastern Law House, 1977) (Tagore Law Lectures), pp. 168– 96, at Chapter 8 quoting from Gelhorn’s Individual Freedom and Governmental Restraints, 1956, p. 54. See further, J.E. Williams, ‘Obscenity in Modern English Law’, Law and Contemporary Problems vol. 20, Issue no. 4, 1955, 630-647, p. 636. 31. Heath, Purifying Empire, p. 65. 32. Heath argues that for some British colonialists, obscenity, particularly obscenity emanating from England, was problematic because it undermined British authority in India. Some were worried that it undermined ‘Englishness’, others that it made Indian men lust after white women. Heath, Purifying Empire, pp. 78, 89, 150–51. However, the colonial government did not find these concerns particularly persuasive. Rather than launching prosecutions in all cases, informal techniques were used to curb obscenity, e.g. the police would issue warnings to publishers not to carry obscene materials. These techniques, Heath says, often did the trick. Heath, Purifying Empire, p. 169. 33. See, Heath, Purifying Empire, pp. 151–52, 166–69. 34. Heath, Purifying Empire, pp. 171–80 (quoting from R.D. Karve). For Heath, by the 1890s, India had ‘the most liberal obscenity law in the empire’. 35. (1895) ILR 20 Bom 193. 36. P. 195. 37. P. 195. 38. P. 195. 39. (1912) ILR 39 Cal 377. 40. 37 Ind. Cas. 521 (Mad). 41. AIR 1928 Pat 649. 42. AIR 1947 Lah 383. 43. Heath, Purifying Empire, p. 81. 44. See, Indarman, (1881) ILR 3 All 837; Sreeram Saksena v. Emperor, AIR 1940 Cal 290. Further, some high courts looked at evidence which was led before the trial court in order to determine whether the work in question was obscene or not. See, Mantripragada, 37 Ind. Cas. 521 (Mad); Kherode, (1912) ILR 39 Cal 377; Harnam Das, AIR 1947 Lah 383. 45. See, Indarman, (1881) ILR 3 All 837; Emperor v. Hari Singh, (1906) ILR 28 All 100; Mantripragada, 37 Ind. Cas. 521 (Mad). 46. (1881) ILR 8 All 837. 47. Indarman, (1881) ILR 3 All 837; Vishnu Krishna Puranik, (1913) 15 Bom LR 307. 48. (1954) 2 Q.B. 16. 49. Ibid, p. 19. 50. (1954) 1 W.L.R. 1138. 51. It was published in the US in 1952 as The Tightrope. Paul Robertshaw, Summary Justice (London: Cassell, 1998), p. 55. 52. P. 1139. 53. P. 1139. 54. P. 1139. 55. Pp. 1139–40. 56. P. 1140. 57. P. 1140. 58. P. 1140. 59. P. 1141. 60. P. 1143. 61. P. 1143. 62. Pp. 1142–43. 63. 7 & 8 Eliz. 2 Ch. 66. Available on legislation.gov.uk. The Obscene Publications Act, 1857 was repealed under Section 3(8) of this Act. 64. Section 4(1). 65. Section 4(2). 66. 209 F. 119, 121 (S.D.N.Y. 1913). 67. 354 US 476 (1957). 68. According to Tribe, it was Judge Learned Hand who first advocated that the Hicklin test be abandoned in United States v. Kennerly, 209 F. 119, 121 (S.D.N.Y. 1913). Tribe, American Constitutional Law, p. 659 (note 22). 69. 360 US 684 (1959). 70. See, Kathleen M. Sullivan and Gerald Gunther, First Amendment Law, 3rd edition (2007: Foundation Press, New York), p. 106. 71. See, Gopal, Selected Works of Jawaharlal Nehru, vol. 49, p. 685 onwards. 72. AIR 1965 SC 881 (decided by five judges). Once again, all paragraph number references for AIR citations will be from the SCC Online version. 73. Paragraph 23. 74. M. Hidayatullah, ‘Thoughts on Obscenity’, (1977) Southern Illinois University Law Journal 283, p. 285. Justice Hidayatullah believed that his judgment in the Ranjit Udeshi case, among others, stood out in his career. He discussed the case in his autobiography, M. Hidayatullah, My Own Boswell (Bombay: N.M. Tripathi Pvt. Ltd., 1992), p. 224. 75. Hidayatullah, ‘Thoughts on Obscenity’, p. 285. 76. Ibid, p. 285. 77. Hidayatullah, ‘Thoughts on Obscenity’, p. 285. 78. Ibid, p. 285. 79. AIR 1965 SC 881 at paragraph 16. 80. M. Hidayatullah, ‘Thoughts on Obscenity’, pp. 288–289. 81. Paragraph 20. 82. Paragraph 21. 83. M. Hidayatullah, ‘Thoughts on Obscenity’, p. 292. 84. Paragraph 13. 85. Paragraph 13. 86. Paragraph 22. 87. Paragraph 3. 88. Paragraph 28. 89. Paragraph 7. 90. The Indian Penal Code (Amendment) Act, 1969, available at: http://lawmin.nic.in/legislative/textofcentralacts/1969.pdf (last visited 12 September 2016), p. 208. The amended portion was as follows: ‘For the purposes of sub-section (2), a book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, shall be deemed to be obscene if it is lascivious or appeals to the prurient interest or if its effect, or (where it comprises two or more distinct items) the effect of any one of its items, is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.’ 91. Exception, Section 292, IPC. 92. (1969) 2 SCC 687 (decided by three judges). 93. Paragraph 9. 94. Paragraph 11. 95. Paragraph 12. See further, K.A. Abbas v. Union of India, (1970) 2 SCC 780, at paragraph 50. It was held that how a theme is handled by a film producer is important. ‘We may view a documentary on the erotic tableaux from our ancient temples with equanimity or read the Kamasutra’, said Chief Justice Hidayatullah, ‘but a documentary from them as a practical sexual guide would be abhorrent.’ 96. (1985) 4 SCC 289 (decided by two judges). 97. Paragraph 29. 98. Paragraph 35. 99. Paragraph 35. 100. (2015) 6 SCC 1 (decided by two judges). 101. Paragraph 141–42. 102. (1996) 4 SCC 1 (decided by three judges). 103. Paragraph 27. 104. Paragraph 27. 105. Paragraph 29. 106. Paragraph 30. 107. (2014) 4 SCC 257 (decided by two judges). 108. The Hicklin test was only understood in this judgment as permitting courts to rely on isolated passages of a work, and to consider obscenity from the standpoint of even immature persons. While some like Gautam Bhatia have strongly argued that the Hicklin test has been finally abandoned by the Supreme Court in Aveek Sarkar, the fact that the court only understood Hicklin to have two constituent ingredients casts some doubt on how far this may actually be correct. The Hicklin test, as we have seen, includes more ingredients than these. Further, these two ingredients of the Hicklin test were repeatedly rejected by courts in India from the colonial period onwards. Aveek Sarkar cannot, therefore, be considered the judgment which first broke away from the Hicklin test. 109. Paragraph 23. 110. Paragraph 24. 111. Paragraphs 27. 112. Paragraph 28. 113. (2010) 5 SCC 600 (decided by three judges). 114. Paragraph 28. 115. Paragraph 28. 116. Paragraph 45. 117. Paragraph 29. 118. Paragraph 31. 119. Paragraph 44. 120. Paragraph 46. 121. Paragraph 47. 122. 274 US 357 (1927). 123. Section 14. 124. Section 14(2). 125. Section 15(2). 126. On the Chittagong Armory Raid, see, Goutam Neogi, ‘Remembering the Legendary Heroes of Chittagong’, Press Information Bureau, available at: http://pib.nic.in/feature/feyr98/fe0898/f1808989.html (last visited 4 June 2017). 127. Rajagopalachari to Patel, letter dated 29 April 1948. Das (ed.), Sardar Patel’s Correspondence, vol. 6, p. 151. 128. Under Section 7 of the then prevalent Cinematograph Act, 1918, appeals from the centrally constituted censor board lay before the provincial governments. The provincial governments could also suspend a film’s certificate. Available at: http://lawmin.nic.in/legislative/textofcentralacts/1918.pdf (last visited 4 June 2017). 129. Patel to Rajagopalachari, letter dated 4 May 1948. Das (ed.), Sardar Patel’s Correspondence, vol. 6, p. 152. 130. The Censor Board can issue a ‘U’ certificate for unrestricted public exhibition, or a ‘UA’ certificate for unrestricted public exhibition subject to the condition that parents must determine whether the film is fit for viewing by children below the age of twelve. Section 5A. 131. The Censor Board can issue an ‘A’ certificate where the film is fit for viewing by adults. Section 5A. 132. The Censor Board can issue an ‘S’ certificate where the film is fit for viewing by a class of professionals. Section 5A. 133. Section 4. 134. Section 5B. 135. Section 5B(2). 136. Section 5E. But see, section 173, Finance Act, 2017. See further, Union of India v. K.M. Shankarappa, (2001) 1 SCC 582. 137. Section 5C. 138. (1970) 2 SCC 780 (decided by five judges). 139. Paragraph 8. 140. Hidayatullah, Some Thoughts on Obscenity, p. 294. 141. Paragraphs 19, 41. 142. Paragraph 20. 143. See further, S. Rangarajan v. P. Jagjivan Ram, (1989) 2 SCC 574 (decided by three judges). 144. (1980) 1 SCC 43 (at paragraph 15). 145. Kira Cochrane, ‘Sex, Violence and Swearing on Film: 100 Years of the BBFC’, The Guardian, 26 July 2012, available at: https://www.theguardian.com/film/2012/jul/26/sex-violence-swearing- film-100-years-bbfc (last visited 30 December 2016). 146. Ibid. 147. 343 US 495 (1952) (per Clarke J). 148. Ibid, 506. 149. See, website of the Motion Picture Association of America, at: http://www.mpaa.org/film-ratings/ (last visited 30 December 2016). 150. See, ‘A Brief History of Film Censorship’, National Coalition Against Censorship, http://ncac.org/resource/a-brief-history-of-film-censorship (last visited 30 December 2016). 151. Section 33(1)(wa), Bombay Police Act, 1951. 152. Rule 120, Rules For Licensing And Controlling Places Of Public Amusements (Other Than Cinemas) And Performances For Public Amusement, Including Cabaret Performances, Discotheques, Games, Pool Game Parlours, Amusement Parlours Providing Computer Games, Virtual Reality Games, Cyber Cafes, Games With Net Connectivity, Bowling Alleys, Card Rooms, Social Clubs, Sports Clubs, Melas And Tamashas Rules, 1960. 153. Rule 123. 154. See, ‘Amol Palekar Moves HC Against ‘Pre-censorship’ by Police’, The Hindu, 20 September 2016, available at: http://www.thehindu.com/news/cities/mumbai/amol-palekar-moves-hc- against-precensorship-by-police/article9126650.ece (last visited 20 September 2016). The case is Civil Writ Petition (L) No. 24043 of 2016, along with Civil Application (L) No. 25405 of 2016. 155. See, Cable Television Networks (Regulation) Act, 1995. Cable operators are required to be registered in India (Sections 3–4). Radio station operations require a licence from the Ministry of Information and Broadcasting. See, Grant of Permission Agreement for Operating FM Radio Broadcasting Service in Phase III on Migration from Phase II, available at: http://www.mib.nic.in/writereaddata/html_en_files/fm/gopafinalphase3 net.pdf (last visited 30 December 2016). See further, In re: Destruction of Public and Private Properties, (2009) 5 SCC 212 (paragraphs 32(vii) and 33); Divan, Facets of Media Law, p. 292. In fact, up to the 1990s, only the government-run Doordarshan provided content on television in India. See, Sevanti Ninan, ‘History of Indian Broadcasting Reform’, Cardozo Journal of International and Comparative Law, vol. 5, Issue 2, Fall 1997, pp. 341–64; Nikhil Sinha, ‘Doordarshan, Public Service Broadcasting and the Impact of Globalization: A Short History’, Cardozo Journal of International and Comparative Law, volume 5, Issue 2, Fall 1997, pp. 365–86. 156. There is a self-regulatory body for broadcasters in India called the ‘Indian Broadcasting Foundation’. It was set up in June 2011, and relates only to non-news channels. Membership of this body is voluntary, and presently includes the likes of Star India Pvt. Ltd. and Viacom 18 Media Pvt. Ltd. Its members are subject to ‘Content Guidelines’. These guidelines require each broadcaster to have a ‘Standards & Practices’ department to self-censor content so as to bring it in line with the content code of the body. The guidelines are available at: https://www.ibfindia.com/sites/default/files/Guidelines-- Term%20of%20broadcas%20changes.pdf (last visited 15 February 2017). See further, Akhil Arora and Gopal Sathe, ‘Behind the Scenes With Indian TV Channels’ Self-Censors’, 19 August 2016, Gadgets 360, available at: http://gadgets.ndtv.com/tv/features/behind-the- scenes-with-indian-tv-channels-self-censors-874695 (last visited 15 February 2017); Shilpa Jamkhandikar, ‘TV Fights a Bleeping Battle with Censors in India’, 1 June 2012, available at: http://in.reuters.com/article/india-television-censor-bollywood-tv- idINDEE84T03L20120601 (last visited 15 February 2017). Those who ‘downlink’ foreign channels in India are also required to follow these guidelines. ‘Policy Guidelines for Downlinking of Television Channels’, Ministry of Information and Broadcasting, 5 December 2011, available at: http://mib.nic.in/WriteReadData/documents/Downlinking_Guidelines0 5.12.11.pdf (last visited 15 February 2017). See further, ‘Policy Guidelines for Uplinking of Television Channels From India’, 5 December 2011, Ministry of Information and Broadcasting, available at: http://digitalindiamib.com/finalUplinkingGuidelines05.12.2011.pdf (last visited 15 February 2017). 157. Rule 6, Cable Television Networks Rules, 1994. 158. Ibid. 159. See, Abhinav Chandrachud, ‘The Bigg Debate’, Indian Express, 24 November 2010, available at: http://indianexpress.com/article/opinion/columns/the-bigg-debate/ (last visited 14 November 2016). The Indian Broadcasting Foundation has published a ‘Content Code’ for its members. The code contains guidelines for erogenous zoning. All content is to be categorized into Category ‘G’ programmes (suitable for public viewing by one and all) and Category ‘R’ programmes (unsuitable for children and young viewers). Category ‘R’ programmes can only be shown between 11 p.m. and 5 a.m. The code is available at: https://www.ibfindia.com/sites/default/files/Guidelines-- Term%20of%20broadcas%20changes.pdf (last visited 15 February 2017). The guidelines of this body also provide that ‘the restrictions on the broadcast of programmes unsuitable for minors should be relaxed on a gradual and progressive basis after 8 p.m. The assumption is that after 8 p.m. parents are expected to share responsibility for what their children are permitted to watch on television’. 160. Section 11, Cable Television Networks (Regulation) Act, 1995. 161. Section 16, Cable Television Networks (Regulation) Act, 1995. 162. Section 20, Cable Television Networks (Regulation) Act, 1995; Clause 6, ‘Policy Guidelines for Downlinking of Television Channels’, Ministry of Information and Broadcasting, 5 December 2011, available at: http://mib.nic.in/WriteReadData/documents/Downlinking_Guidelines0 5.12.11.pdf (last visited 15 February 2017); Clause 8, ‘Policy Guidelines for Uplinking of Television Channels From India’, 5 December 2011, Ministry of Information and Broadcasting, available at: http://digitalindiamib.com/finalUplinkingGuidelines05.12.2011.pdf (last visited 15 February 2017). Additionally, complaints against content which is broadcast by the members of the Indian Broadcasting Foundation can be heard by the ‘Broadcasting Content Complaints Council’. Complaints can be filed before this council by outsiders like ordinary viewers, NGOs or even the Information and Broadcasting Ministry. The council has the power to issue a warning to the broadcaster, to issue a direction to the broadcaster not to carry similar content again, to require the broadcaster to carry an apology, or to even impose monetary penalties on the broadcaster ranging from Rs 1 lakh to Rs 30 lakh. The guidelines of the body are available at: https://www.ibfindia.com/sites/default/files/Guidelines-- Term%20of%20broadcas%20changes.pdf (last visited 15 February 2017). 163. Order dated 2 November 2016. 164. Order dated 28 March 2013. 165. See further, Clause III, Content Code of the Indian Broadcasting Foundation. 166. (1992) 3 SCC 637 (decided by two judges). 167. Paragraph 22. 168. Paragraph 23. 169. Paragraph 19. 170. They can broadcast exact news bulletins of All India Radio. They are also permitted to broadcast some news stories, dealing with non- political matters such as sporting events, traffic and weather, etc. See, Grant of Permission Agreement, for Operating FM Radio Broadcasting Service in Phase III on Migration from Phase II. See further, Siddharth Narrain et al, ‘A Broad Overview of Broadcasting Legislation in India’, available at: http://indiatogether.org/uploads/document/document_upload/2139/bla wbackgrounder.pdf (last visited 30 December 2016). AM radio stations are run entirely by the government. 171. ‘Grant of Permission Agreement . . . For Operating FM Radio Broadcasting Service in Phase III on Migration from Phase II’. 172. All India Radio is a radio public broadcasting service carried out by the Prasar Bharati (Broadcasting Corporation of India) under the Prasar Bharati (Broadcasting Corporation of India) Act, 1990. The All India Radio Broadcast Code is available at: http://allindiaradio.gov.in/Information/AIR%20Code/Pages/default.asp x (last visited 15 February 2017). Interestingly, a ‘live television broadcast’ of any ‘sporting (event) of national importance’ has to be shared with Prasar Bharati mandatorily. Sports Broadcasting Signals (Mandatory Sharing With Prasar Bharati) Act, 2007. 173. See, Information Technology Act, 2000 and the Information Technology (Intermediaries Guidelines) Rules, 2011. 174. (1969) 2 SCC 687. 175. Paragraph 9. 176. Paragraph 9. 177. Paragraph 12. 178. Paragraph 12. 179. (1970) 2 SCC 780. 180. Paragraph 49. 181. Paragraph 51. 182. (1980) 1 SCC 43. 183. Paragraph 9. 184. (1985) 4 SCC 289. 185. Paragraph 35. 186. See, Wendy Doniger, The Hindus: An Alternative History (New Delhi: Penguin/Viking, 2009). 187. (1996) 4 SCC 1. 188. Paragraph 27. 189. (2006) 8 SCC 433 (decided by two judges). 190. Paragraph 21. 191. (2010) 5 SCC 600. 192. Paragraph 50. 193. (2007) 1 SCC 143 (decided by two judges). 194. Paragraph 8. 195. Paragraph 55. 196. Paragraph 71. 197. Paragraph 78. 198. Paragraph 78. 199. Paragraph 81. 200. (2013) 8 SCC 519 (decided by two judges). 201. Paragraph 104. 202. Paragraph 123. 203. (1969) 2 SCC 687. 204. Paragraph 4. 205. (1985) 4 SCC 289. 206. Paragraph 29. 207. (2015) 6 SCC 1. 208. Paragraph 92. 209. (2006) 8 SCC 433, at paragraphs 20–21. 210. (2014) 4 SCC 257, at paragraphs 20, 23. 211. See, Jason Burke, ‘Mumbai University Drops Rohinton Mistry Novel after Extremists Complain’, Guardian, 19 October 2010, available at: https://www.theguardian.com/world/2010/oct/19/mumbai-university- removes-mistry-book (15 September 2016); Vinaya Deshpande, ‘Rohinton Mistry Protests Withdrawal of Book’, The Hindu, 20 October 2010, available at: http://www.thehindu.com/news/national/rohinton-mistry-protests- withdrawal-of-book/article838537.ece (last visited 15 September 2016). 212. 378 US 184 (1964). 213. Some have attributed this line to Stewart’s law clerk at the time, Alan Novak. See, Peter Lattman, ‘The Origins of Justice Stewart’s “I Know It When I See It”, Wall Street Journal, 27 September 2007, available at: http://blogs.wsj.com/law/2007/09/27/the-origins-of-justice-stewarts- i-know-it-when-i-see-it/ (last visited 17 September 2016) 214. Marvin Miller v. State of California, 413 US 15 (1973). 215. However, the test of whether something has serious literary, artistic, political or scientific value is not to be judged from the standpoint of the community. See, Pope v. Illinois, 481 US 497 (1987). 216. 413 US 49 (1973). 217. 418 US 153 (1974). 218. Jennifer M. Kinsley, ‘The Myth of Obsolete Obscenity’, Cardozo Arts and Entertainment Law Journal (2015), vol. 33, p. 607. 219. Coleman A. Young v. American Mini Theaters, Inc. 427 US 50 (1976); City of Renton v. Playtime Theaters, Inc., 475 US 41 (1986). 220. In Renton, the court found that the ordinance in question was ‘by its terms . . . designed to prevent crime, protect the city’s retail trade, maintain property values and generally “protec[t] and preserv[e] the quality of [the city’s] neighborhoods, commercial districts, and the quality of urban life”, not to suppress the expression of unpopular views’. 221. Federal Communications Commission v. Pacifica Foundation, 438 US 726 (1978). However, the Internet has been held to be not as invasive as radio or television. Janet Reno v. American Civil Liberties Union, 521 US 844 (1997). 222. Robert Eli Stanley v. State of Georgia, 394 US 557 (1969). 223. Sam Ginsberg v. State of New York, 88 S.Ct. 1274 (1968). 224. New York v. Paula Ira Ferber, 458 US 747 (1982). 225. Clyde Osborne v. Ohio, 495 US 103 (1990).

Chapter 8: Obscenity Lies in the Crotch of the Beholder

1. See further, ‘Pornography and Censorship’, Stanford Encyclopaedia of Philosophy, revised up to 1 October 2012, available at: http://plato.stanford.edu/entries/pornography- censorship/index.html#note-1 (last visited 10 October 2016); Ronald Dworkin, ‘Is There A Right To Pornography?’, 1 Oxford Journal of Legal Studies 177 (1981). 2. 403 US 15 (1971). 3. Nadine Strossen, ‘Obscenity and Indecency Law’: Why Howl Is Still Silenced’, Seattle University Law Review, vol. 37, Fall 2013, p. lxi, p., lxiv. 4. Cass Sunstein, ‘Words, Conduct, Caste’, University of Chicago Law Review, vol. 60, Issue 3, p. 795, p. 808, available at: http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi? article=5760&context=uclrev (last visited 17 September 2016). 5. See, Bharti Jain, ‘IGI Official Suspended for “Harassing” Woman’, Times of India, 27 March 2015, available at: http://timesofindia.indiatimes.com/city/delhi/IGI-official-suspended-for- harassing-woman/articleshow/46718762.cms (last visited 17 September 2016). 6. See, Claire Cohen, ‘Indian Girl Confronts Man who “Touched” Her on Flight’, The Telegraph, 3 February 2015, available at: http://www.telegraph.co.uk/women/11386191/Indian-girl-confronts-man- who-touched-her-on-flight.html (last visited 17 September 2016). 7. See, Lia Eustachewich, ‘Creep Found Guilty of Sexually Assaulting Sleeping Woman on Plane’, New York Post, 20 April 2016, available at: http://nypost.com/2016/04/20/creep-found-guilty-of-groping-sleeping- woman-on-plane/ (last visited 17 September 2016). 8. See, e.g., Megha Sood, ‘People Nab Man Accused by Woman of “Flashing” at Her in Lift, Cops Book Him for Molestation’, Indian Express, 7 May 2014, available at: http://indianexpress.com/article/mumbai/people-nab-man-accused-by- woman-of-flashing-at-her-in-lift-cops-book-him-for-molestation/ (last visited 17 September 2016). 9. See, Sunstein, ‘Pornography and the First Amendment’, Duke Law Journal, No. 4 (1986) 589, p. 598. 10. Catherine A. MacKinnon, ‘Pornography, Civil Rights, and Speech’, Harvard Civil Rights-Civil Liberties Law Review, vol. 20, Issue 1 (Winter 1985), pp. 1–70; Andrea Dworkin, ‘Against the Male Flood: Censorship, Pornography, and Equality’, Harvard Women’s Law Journal, vol. 8, pp. 1–30 (1985); See further, Sunstein, ‘Pornography and the First Amendment’, p. 592. 11. See further, ‘Sex before Kissing: How 15-year-old Girls are Dealing with Porn-addicted Boys’, Fight the New Drug, 1 April 2016, available at: http://fightthenewdrug.org/sex-before-kissing-15-year-old-girls- dealing-with-boys/ (last visited 20 September 2016). 12. MacKinnon, ‘Pornography, Civil Rights, and Speech’, p. 17. 13. Sullivan and Gunther, First Amendment Law, p. 127; Jeffrey G. Sherman, ‘Love Speech: The Social Utility of Pornography’, Stanford Law Review, (1995), vol. 47, pp. 661-705. But see, MacKinnon, ‘Pornography, Civil Rights and Speech’, p. 22. MacKinnon claims that the argument applies equally when women are replaced with men, children or transsexuals, but her argument is not very convincing when women are replaced by men. 14. See, Robin West, ‘The Feminist-Conservative Anti-Pornography Alliance and the 1986 Attorney General’s Commission on Pornography Report’, American Bar Foundation Research Journal (1987), Issue 4, pp. 681-712; Nan D. Hunter and Sylvia A. Law, ‘Brief Amici Curiae of Feminist Anti-Censorship Taskforce, et al., in American Booksellers Association v. Hudnut, University of Michigan Journal of Law Reform (Fall 1987/Winter 1988), vol. 21, Issues 1 and 2, pp. 69-136; Carlin Meyer, ‘Sex, Sin, and Women’s Liberation: Against Porn-Suppression’, Texas Law Review (1994), vol. 72, Issue 5, pp. 1097–1202; Sullivan and Gunther, First Amendment Law, pp. 126–27. 15. American Booksellers Association v. Hudnut, 771 F.2d 323 (7th Cir. 1985), affirmed by the US Supreme Court in 106 S. Ct. 1172 (1986). The first anti-pornography ordinance drawn up by MacKinnon and Dworkin was passed in the city of Minneapolis, Minnesota, but the mayor vetoed it. Dworkin, ‘Against the Male Flood’, p. 13. 16. Heath, Purifying Empire, p. 192. 17. ‘Indian Women Who are Fighting to Stop Genital Mutilation’, BBC News, 23 December 2015, available at: http://www.bbc.com/news/world-asia-india-35129466 (last visited 23 September 2016); Manoj Mohanka, ‘Female Genital Mutilation: India’s Well Kept Secret’, Quint, 15 April 2015, available at: https://www.thequint.com/opinion/2015/04/10/female-gender- mutilation-indias-well-kept-secret (last visited 23 September 2016); Masooma Ranalvi, ‘The Resistance Against Female Genital Mutilation in India is Growing’, Wire, 18 June 2016, available at: http://thewire.in/39127/the-resistance-against-female-genital-mutilation- is-growing/ (last visited 23 September 2016). 18. See, MacKinnon, ‘Pornography, Civil Rights and Speech’, p. 32; Dworkin, ‘Against the Male Flood’, p. 12. 19. Thus, while banning the pornographic comic strip Savita Bhabhi, the Indian government could not cite concerns about the lack of informed consent of the women involved. See, ‘What Has Savita Bhabhi Done To Deserve This’, DNA, 30 June 2009, available at: http://www.dnaindia.com/speak-up/report-what-has-savita-bhabhi-done- to-deserve-this-1269904 (last visited 18 September 2016); G. Seetharaman, ‘Four Years after Ban, Savita Bhabhi Gets a New Lease of Life’, Economic Times, 12 May 2013, available at: http://articles.economictimes.indiatimes.com/2013-05- 12/news/39187209_1_websites-savitabhabhi-com-kirtu-com (last visited 18 September 2016). 20. Frederick Schauer, ‘Speech and Speech—Obscenity and Obscenity: An Exercise in the Interpretation of Constitutional Language’, Georgetown Law Journal, vol. 67, pp. 899—933, p. 922 (1979). 21. Sunstein argues that pornography conveys only implicit ideas. Sunstein, ‘Pornography and the First Amendment’, pp. 607-608. However, much legitimate literature conveys ideas subtly.

Chapter 9: A Blaze of Glory for Judges

1. See, C.J. Miller, Contempt of Court (Oxford: Oxford University Press, 2000), p. 567. Miller finds that the statutory test of liability for contempt of court under the 1981 Act in the UK does not apply to contempt in the form of scandalizing the court, Ibid, p. 571. C.J. Miller, Contempt of Court (London: Elek Books Ltd., 1976), p. 182. 2. See further, Vinod A. Bobde, ‘Scandalizing the Court’, (2003) 8 SCC J- 32; T.R. Andhyarujina, ‘Scandalising the Court—Is it Obsolete?’, (2003) 4 SCC J-12; Michael Chesterman, ‘Contempt: In the Common Law, but Not the Civil Law’, (1997) International and Comparative Law Quarterly 46(3) 521–60; Rajeev Dhavan, Publish and Be Damned: Censorship and Intolerance in India (New Delhi: Tulika Books, 2008), pp. 74–100. 3. (1742) 2 Atk. 291, 469. Stephen chose not to discuss the law of contempt in his digest on criminal law or treatise on the history of the English criminal law, saying that ‘contempt of Court seems to me hardly to be a branch of criminal law’. Stephen, Digest, p. 52. 4. Reported in Sir John Eardley Wilmot, Notes of Opinions and Judgments Delivered in Different Courts (London: T. Cadell, Jun. and W. Davies, 1802), available at: https://babel.hathitrust.org/cgi/pt? id=osu.32437121662304;view=1up;seq=7 (last visited 9 October 2016). 5. Douglas Hay says that these words, however, were not actually contained in the pamphlet, and might have been contained in a later edition. Douglas Hay, ‘Contempt by Scandalizing the Court: A Political History of the First Hundred Years’, Osgoode Hall Law Journal vol. 25, No. 3, p. 431 (1987). 6. P. 270. 7. Pp. 255–56. 8. P. 259. 9. P. 268. 10. P. 255. 11. In the Matter of a Special Reference from the Bahama Islands, (1893) AC 138 (PC). 12. (1899) A.C. 549. 13. P. 561. 14. The summary procedure was known as ‘committal’ or ‘attachment’. See, Law Commission Consultation Paper No. 207, ‘Contempt of Court: Scandalizing the Court, A Consultation Paper’, 10 August 2012, available at: http://www.lawcom.gov.uk/wp- content/uploads/2015/06/cp207_Scandalizing_the_Court.pdf (last visited 9 October 2016). 15. P. 561. 16. (1900) 2 QB 36. 17. See, ‘Neath MP Peter Hain Faces Contempt of Court Action over Memoir’, Wales Online, 27 March 2012, available at: http://www.walesonline.co.uk/news/wales-news/neath-mp-peter-hain- faces-2046111 (last visited 8 October 2016). 18. See, ‘A Very Public Wigging’, Guardian, 22 November 1999, available at: https://www.theguardian.com/world/1999/nov/22/law.theguardian (last visited 8 October 2016) 19. P. 40. 20. See, Law Commission Consultation Paper No. 207. 21. [1936] AC 322. 22. [1968] 2 QB 150. 23. See, Louis Blom-Cooper, ‘Lord Hailsham of St Marylebone’, The Guardian, 15 October 2001, available at: https://www.theguardian.com/news/2001/oct/15/guardianobituaries.cons ervatives (last visited 16 October 2016); Paul Lewis, ‘Lord Hailsham Dies at 94; A Tory With a Lighter Side’, New York Times, 16 October 2001, available at: http://www.nytimes.com/2001/10/16/world/lord- hailsham-dies-at-94-a-tory-with-a-lighter-side.html?_r=0 (last visited 16 October 2016). 24. [1968] 2 QB, p. 155. 25. ‘Report of the Committee on Contempt of Court’ (Phillimore Committee Report), December 1974, p. 70. 26. Ibid, p. 69. 27. See further, The Law Commission (LAW COM No 335): ‘Contempt of Court: Scandalizing the Court’, 12 December 2012, available at: https://www.gov.uk/government/uploads/system/uploads/attachment_dat a/file/246860/0839.pdf (last visited 9 October 2016). 28. In the words of the Law Commission, Hain had ‘criticised Lord Justice Girvan’s handling of a judicial review application.’ Law Commission, Consultation Paper No. 207, ‘Contempt of Court: Scandalising the Court: A Consultation Paper’, available at: http://www.lawcom.gov.uk/wp- content/uploads/2015/06/cp207_Scandalizing_the_Court.pdf (last visited 31 December 2016), p. 2. 29. In the 1980s, Peter Wright, a former member of the British secret service, M.I.5, wrote an autobiographical book called Spycatcher, which chronicled illegal activities carried out by his colleagues at the secret service during his time there. The House of Lords, by a majority of three to two, issued an interim injunction restraining newspapers from publishing the contents of the book in the U.K. Outraged by this, a newspaper called the Daily Mirror published upside down photographs of the three judges who had constituted the majority, along with the caption ‘You Fools!’ However, no action was taken against the newspaper for contempt of court. See, Anil Diwan, ‘Contempt of Court and the Truth’, The Hindu, 29 April 2011, available at: http://www.thehindu.com/todays-paper/tp-opinion/Contempt-of-court- and-the-truth/article14865592.ece (last visited 11 June 2017); Eric Barendt, Freedom of Speech (Oxford: Oxford University Press, 2009 reprint), pp. 139-140. 30. See, Owen Bowcott, ‘Senior Judge Cautions Colleagues over Courting Publicity’, Guardian, 16 March 2012, available at: https://www.theguardian.com/law/2012/mar/16/judge-courting-publicity (last visited 9 October 2016); Gerry R. Rubin, ‘Judicial Free Speech versus Judicial Neutrality in Mid-Twentieth Century England: The Last Hurrah for the Ancien Regime?’, Law and History Review, vol. 27, Issue 2, Summer 2009, pp. 373-412. 31. The Rt. Hon. The Lord Mackay of Clashfern, The Administration of Justice (London: Sweet & Maxwell, 1994), pp. 25-26, available at: https://socialsciences.exeter.ac.uk/media/universityofexeter/schoolofhu manitiesandsocialsciences/law/pdfs/The_Administration_of_Justice.pdf (last visited 13 June 2017). 32. Section 33(1). 33. 62 S.Ct. 190 (1941). 34. 67 S.Ct. 1249 (1947). 35. 44 Ind. Cas. 930 (1869) (DB). 36. In re: Mohandas Karamchand Gandhi and Mahadeo Haribhai Desai, (1920) 22 Bom LR 368 (FB). The transcript of this case was reported in ‘Was It Contempt of Court’, Young India, 10 March 1920, available at: https://babel.hathitrust.org/cgi/pt? id=mdp.39015069951674;view=1up;seq=216 (last visited 12 October 2016). 37. See further, Abhinav Chandrachud, An Independent, Colonial Judiciary. 38. British Library, Sir Maurice Henry Weston Hayward Papers, Mss Eur D839/6. 39. AIR 1933 Bom 478. 40. See, Abhinav Chandrachud, An Independent, Colonial Judiciary. 41. AIR 1938 Bom 197 (DB). 42. (1944) 46 Bom LR 11 (PC). 43. See further, Emperor v. Mudvedkar, AIR 1922 Bom 261. 44. See, Advocate General v. Shri Ramanatha Goenka, AIR 1942 Mad 711a. 45. In re: N.C. Kelkar, (1908) 10 Bom LR 1040. See further, Government Pleader v. Jagannath M. Samant, (1908) 10 Bom LR 1169, a case in which an advocate who was in the chair when a resolution was passed denouncing Justice Davar for making ‘unchecked and unconnected and unmeaning assertions’ against Tilak, was penalized. This, however, was not a contempt case, but a case in exercise of the high court’s disciplinary jurisdiction against advocates. See further, Government Pleader v. Vinayak Balvant Chaukar, AIR 1922 Bom 361, in which advocates who praised those who were on trial were penalized. These cases can also more easily be considered extensions of the sedition jurisprudence of colonial courts in British India. 46. 21 CWN 1161 (decided by five judges). 47. In re: Marmaduke Pickthall, (1923) 25 Bom LR 15. 48. AIR 1922 Bom 52 (DB). 49. In re: Abdul Hasan Jauhar, (1926) SCC OnLine All 136 (FB). 50. In the matter of Muslim Outlook, Lahore, AIR 1927 Lah 610. 51. AIR 1935 Cal 419. 52. Mukerji found that scandalizing statements about even disposed of cases could undermine the administration of justice, as they could be the subject-matter of appeal, revision, or some subsequent proceedings, e.g., execution proceedings. 53. (1923) 25 Bom LR 15. 54. AIR 1922 Bom 426. 55. (1926) SCC OnLine All 136 (FB). 56. AIR 1929 Pat 72. 57. AIR 1935 All 1 (DB). 58. AIR 1942 Bom 331. 59. (1953) SCR 215. 60. Paragraph 2. 61. (1970) 2 SCC 325. The SCC version of the law report wrongly spells ‘Namboodiripad’ as ‘Namboodripad’ in the cause title. 62. Paragraph 6. 63. AIR 1971 SC 221. 64. Paragraph 9. 65. (1971) 1 SCC 626. 66. Paragraph 56. 67. Paragraph 59. 68. (1972) 1 SCC 740. 69. Paragraph 9. 70. Paragraph 13. 71. (1974) 1 SCC 374. 72. Paragraph 32. 73. Paragraph 49. 74. (1988) 3 SCC 167. See further, Asharam M. Jain v. A.T. Gupta, (1983) 4 SCC 125. In this case, the contemnor accused the chief justice of the Bombay High Court of being dishonestly vindictive towards the contemnor. Rajendra Sail v. Madhya Pradesh High Court Bar Association, (2005) 6 SCC 109. 75. Paragraph 22. 76. (1995) 5 SCC 457. 77. Paragraph 27. 78. Paragraph 34. If the information relates to a judge of the Supreme Court, the chief justice of India must be approached directly. Paragraph 41. 79. Paragraph 40. 80. (2010) 7 SCC 502. 81. Paragraph 18. 82. Paragraph 24. 83. Paragraph 24. 84. (2002) 3 SCC 343. 85. Paragraph 28. 86. Paragraph 29. 87. (1999) 8 SCC 308. 88. Paragraph 5. See further, paragraph 7. 89. Paragraph 6. 90. Paragraph 6. 91. Paragraph 13. See further, In re: P.C. Sen, AIR 1970 SC 1821; In re: Misreporting of Court Proceedings by Newspapers, (2012) 13 SCC 580. 92. Brahma Prakash Sharma v. State of Uttar Pradesh, AIR 1954 SC 10, paragraph 8. 93. Brahma Prakash Sharma v. State of Uttar Pradesh, AIR 1954 SC 10, paragraph 13; Perspective Publications v. State of Maharashtra, AIR 1971 SC 221, paragraph 17(4); In re: S. Mulgaokar, (1978) 3 SCC 339, Para 29. 94. E.M. Sankaran Namboodiripad v. T. Narayanan Nambiar, (1970) 2 SCC 325, paragraph 12. 95. Baradakanta v. Orissa High Court, (1974) 1 SCC 374, paragraph 49. 96. (1978) 3 SCC 339. 97. Paragraph 27. 98. Paragraph 32. 99. Perspective Publications v. State of Maharashtra, AIR 1971 SC 221, paragraphs 17(1)–(2); 100. Rama Dayal Markarha v. State of Madhya Pradesh, (1978) 2 SCC 630, paragraph 11. 101. See, e.g., M.G. Kadir v. Kesri Narain, AIR 1945 All 67. See further, re: Ram Mohan Lal Agarwala, AIR 1935 All 38. In this case, the Allahabad High Court was considering certain passages contained in an election manifesto prepared by an advocate who was standing for bar council elections in Allahabad. In it, he had said that subordinate court judges ‘accept bribes openly in the Courts’. This was found to be in contempt of court. Interestingly, the advocate tried to argue that his statement about subordinate court judges accepting bribes was true, but the court held that truth could not be considered a defence to contempt. 102. See further, ‘Report of the Committee on Contempt of Court’ (Phillimore Committee Report), December 1974, p. 70. 103. See, In re: Nand Lal Balwani, (1999) 2 SCC 743; Pravin C. Shah v. K.A. Mohd. Ali, (2001) 8 SCC 650. The case of Jaswant Singh v. Virender Singh, (1995) Supp (1) SCC 384, paragraphs 33–35, is an example of an apology which was found to be genuine. See further, Emperor v. Jagannath, AIR 1938 All 358. 104. Sub-judge, First Class v. Jawahar, AIR 1940 Nag 407 (per Vivian Bose J); K.A. Mohammed Ali v. C.N. Prasannan, (1994) Supp (3) SCC 509. See further, M.G. Kadir v. Kesri Narain, AIR 1945 All 67. 105. M.Y. Shareef v. Judges of the Nagpur High Court, AIR 1955 SC 19, paragraph 10. 106. Mulk Raj v. State of Punjab, (1972) 3 SCC 839, paragraph 9. 107. M.B. Sanghi, Advocate v. High Court of Punjab and Haryana, (1991) 3 SCC 600, paragraphs 2, 12. In this case, the apology was offered only in the event that the high court found the contemnor guilty of contempt. Justice Agrawal took note of this in paragraph 13. 108. Explanation to Section 12(1), Contempt of Courts Act, 1971. The Bhargava committee found that courts were, in many cases, refusing to accept an apology on the ground that the contemnor reserved his rights to dispute the contempt charges. Joint Committee of the Houses of Parliament (headed by M.P. Bhargava, Chairman), report dated 20 Feb 1970. It recommended that this should not be so, if the apology is bona fide. 109. (1984) 3 SCC 405. See further, K.A. Mohammed Ali v. C.N. Prasannan, (1994) Supp (3) SCC 509; In re: Nand Lal Balwani, (1999) 2 SCC 743; Leila David (6) v. State of Maharashtra, (2009) 10 SCC 337. In Balwani and Leila David, the contemnors started shouting slogans in open court and flung their footwear at the court. 110. Paragraph 1. 111. Paragraph 5. 112. Paragraph 5. 113. Paragraph 6. 114. Re: Vinay Chandra Mishra, AIR 1995 SC 2348: (1995) 2 SCC 584, paragraph 44. 115. Mishra was appearing at the admission stage of a case. He had expected that admission would be a matter of course, and that a judge would not ask any questions at that stage. 116. Rama Dayal Markarha v. State of Madhya Pradesh, (1978) 2 SCC 630. 117. Paragraph 14. 118. Re: Harijai Singh, (1996) 6 SCC 466, paragraph 10. 119. In re: Arundhati Roy, AIR 2002 SC 1375: (2002) 3 SCC 343, paragraph 15. 120. See, Saurabh Vaktania, ‘Mumbai: Traffic Cop Asks Biker for Personal Details, Gets Beaten with stick’, Mid-Day, 24 August 2016, available at: http://www.mid-day.com/articles/mumbai-traffic-cop-asks-biker- for-personal-details-gets-beaten-with-stick/17555170 (last visited 1 November 2016); ‘Traffic Cop Beaten up by Man in Mumbai over Barricades’, Mumbai Mirror, 12 October 2016, available at: http://mumbaimirror.indiatimes.com/mumbai/crime/Traffic-cop- beaten-up-by-man-in-Mumbai-over- barricades/articleshow/54806184.cms? (last visited: 1 November 2016).

Chapter 10: Nehru Calls Justice Bose Unintelligent

1. This was much before the Supreme Court’s judgment in Subramanian Swamy v. Arun Shourie, (2014) 12 SCC 344, in which the court held that a Commission of Inquiry, even if headed by a sitting Supreme Court judge, is not a ‘court’ within the meaning of the Contempt of Courts Act, 1971. 2. E.V. Ramaswami v. Jawaharlal Nehru, AIR 1958 Mad 558. The petitioner was being tried in the Court of Sessions in Tiruchirapalli for having made speeches inciting the public to kick, stab and kill Brahmins and to set fire to their houses. Nehru had visited Tiruchirapalli and made a speech there against the Dravida Kazhagam agitation. He had said of the leader of the agitation: ‘Apart from actually talking in an unabashed manner about murder, inviting people to murder others—a thing unheard of in any civilised society—he has dared to insult the National Flag and National Constitution. These are unforgivable offences . . . ’. The contempt petition against Nehru was dismissed as the petitioner had not averred that Nehru had any knowledge of the pendency of his case. The court also held that there was nothing in Nehru’s speech which interfered with the course of justice as Nehru had spoken in general terms. 3. See, Chapter 9, Motilal Setalvad, My Life, Law and Other Things (Bombay: N.M. Tripathi, 1970). 4. See, ‘LIC’s First Leadership’, The Hindu, 12 March 2007, available at: http://www.thehindu.com/todays-paper/tp-features/tp-metroplus/lics- first-leadership/article2241999.ece (last visited 18 October 2016). 5. Bose served an additional term as a judge between 9 September 1957 and 30 September 1958. See, George H. Gadbois, Jr., Judges of the Supreme Court of India, 1950-1989 (New Delhi: Oxford University Press, 2011), p. 36. 6. The following paragraphs have been written on the basis of letters and materials found in the papers of George H. Gadbois Jr., file on Justice Vivian Bose, on file with the author. Gadbois had interviewed 92-year- old Bose in Bangalore in 1983, where he obtained this information. Bose’s grand-niece, Julie G. Mott, made copies of these letters and materials in 1985, whilst she was researching the Bose side of her family. Mott was a professor of English at a high school in California. Gadbois had intended to write a paper on this episode, possibly for the Economic and Political Weekly (EPW), entitled ‘Vintage Ethics’. Mott was, at one time, intended to be the co-author of the paper. Gadbois referred to these letters in his book at pp. 36–37. I am deeply grateful to Professor Gadbois for making his files available to me. 7. See, ‘The Vivian Bose Enquiry Board’, Calcutta Weekly Notes, 22 June 1959, vol. 63, No. 30, p. 99. 8. Nagpur Times, 12 June 1959. 9. Gadbois Papers, file on Vivian Bose, on file with the author. 10. The letter was sent to Bose at an address in Simla, which was presumably where Bose was residing after retirement, or where he was staying during the summer. 11. Interestingly, the letter was addressed to Das at 1 Safdarjung Road, New Delhi, which was presumably the residence of the chief justice of India at the time. The address of the chief justice of India now is 5, Krishna Menon Marg, New Delhi. 12. Nehru agreed to this request in his letter to Das Gupta dated 30 June. 13. Sub-judge, First Class v. Jawahar Lal Ramchand Parwar, AIR 1940 Nag 407. Interestingly, the Respondent in this case was also named Jawahar Lal. 14. Nehru to Das, 4 July 1959. 15. Das to Nehru, 8 July 1959. 16. See, ‘Public Inquiry Into Dalmia–Jain Enterprises Opposed’, Statesman, 2 October 1958, p. 1.

Chapter 11: Prejudicing Mankind

1. US courts have generally applied the clear and present danger test to determine whether a statement published by the press during an ongoing trial can be held in contempt of court. This is a very lenient test. See, Law Commission of India, 200th Report on Trial by Media, August 2006, available at: http://lawcommissionofindia.nic.in/reports/rep200.pdf (last visited 26 November 2016), p. 59. See, Bridges v. California, 314 US 252 (1941); Pennekamp v. Florida, 328 US 331 (1946); Craig v. Harney, 331 US 367 (1947); Wood v. Georgia, 370 US 375 (1962). See further, Michael Chesterman, ‘OJ and the Dingo: How Media Publicity Relating to Criminal Cases Tried by Jury is Dealt with in Australia and America’, American Journal of Comparative Law, vol. 45, Issue 1, Winter 1997, pp. 109–48; Craig Cleaver, ‘Ruling Without Reasons: Contempt of Court and the Sub Judice Rule’, South African Law Journal, vol. 110, Issue 3, August 1993, pp. 530–42; Justice Lockhart, ‘Contempt of Court—The Sub Judice Rule’, University of New South Wales Law Journal, vol. 10, Issue 2 (1987), pp. 1–7. 2. James Francis Oswald, Contempt of Court: Committal, and Attachment and Arrest Upon Civil Process, 2nd edition (London: William Clowes and Sons, 1895), p. 58. 3. Oswald, Contempt of Court, p. 60. Hunt v. Clarke, (1889) 58 L.J. Q.B. 490, is also an authority for the proposition that technical contempts should not be punished. 4. C.J. Miller, Contempt of Court (London: Elek Books Ltd., 1976), p. 69. 5. Section 2(3). 6. Schedule 1 to the 1981 Act. See further, Miller, Contempt of Court (2000), p. 267. However, this is earlier than what the Phillimore Committee had recommended. The Phillimore Committee had suggested that a criminal case should be considered as pending ‘the moment when the suspected man is charged or a summons served’. Phillimore Committee Report, p. 52. 7. Miller, Contempt of Court (2000), p. 268. 8. Miller, Contempt of Court (2000), p. 273; Miller, Contempt of Court (1976), p. 107. 9. Phillimore Committee Report, at p. 55. See further, Miller, Contempt of Court (2000), p. 273. 10. Phillimore Committee Report, p. 55. 11. Halsbury’s Laws of England, 5th edition, vol. 22 (2012), at paragraph 22. 12. The 1981 Act imposes limitations on the strict liability rule: (1) It specifies that the ‘strict liability rule applies only to a publication which creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced’. Section 2(2). (2) It provides that the rule applies only to ‘publications’ (Section 2(1). The term ‘publication’ is defined to mean: ‘any speech, writing, programme included in a cable programme service or other communication in whatever form, which is addressed to the public at large or any section of the public.’), a term which excludes ordinary, day-to-day conversations between people. (The Phillimore Committee spoke of ‘publications’ as things ‘which are intended to be distributed or addressed to the public at large and not those intended only for private circulation’. It did not, for example, include ‘an address to a private meeting to which the press is not invited’. Phillimore Committee Report, p. 36.) (3) It says that a publisher cannot be guilty of contempt if he did not know, at the time of publication, ‘having taken all reasonable care’, that the case was ‘active’ (Section 3). (4) It says that a distributor is not liable for anything if he did not know that it contained contemptuous matter, and had no reason to believe that it contained such matter, once again ‘having taken all reasonable care’. (Section 3.) Miller, Contempt of Court (2000), p. 28; Section 1. See further, Halsbury’s Laws of England, at Paragraphs 18–19. 13. Oswald, Contempt of Court, p. 61. 14. Miller, Contempt of Court (1976), p. 106. Miller said that different considerations apply to lay/stipendiary magistrates. See further, Miller, Contempt of Court (2000), p. 336. 15. See, Oswald, Contempt of Court, p. 63. 16. See, Scott v. Scott [1913] A.C. 417. 17. Ibid, p. 437. 18. Miller, Contempt of Court (1976), p. 209. 19. Miller, Contempt of Court (1976), p. 209. 20. In re: G.W. Claridge, MANU/MH/0010/1912; Ketra Moni Dasi v. Shamal Dhone Dutt, MANU/WB/0647/1913; In re: Ganesh Shankar Vidyarthi, AIR 1929 All 81; District Magistrate v. Hamid Ali, AIR 1940 Oudh 137; In re Subrahmanyan, A.I.R. 1943 Lah. 329; Emperor v. Mahashe Khushal, AIR 1945 Lah 206. 21. S.A. Dange v. S.T. Sheppard, AIR 1930 All 483. See further, Guru Charan v. Baburao, AIR 1931 All 420; Superintendent and Remembrancer of Legal Affairs v. Murali Manohar, AIR 1941 Pat 185; In re Subrahmanyan, AIR 1943 Lah. 329; Emperor v. Mahashe Khushal, AIR 1945 Lah 206. 22. Sathappa Chettiar v. C. Ramachandra Naidu, AIR 1932 Mad 26. See further, Emperor v. Mahashe Khushal, AIR 1945 Lah 206; Emperor v. Tushar Kanti Ghosh, AIR 1946 All 298; Superintendent and Remembrancer of Legal Affairs v. Murali Manohar, AIR 1941 Pat 185 (per Dhayle J.). 23. The idea that contempt comes into being when a person ‘prejudices mankind’ comes from Lord Chancellor Hardwicke’s judgment in the classic St James Evening Post case, i.e., Roach v. Garvan (or Hall), 2 Atk. 291, 469, where he said ‘nor is there any thing of more pernicious consequence, than to prejudice the minds of the public against persons concerned as parties in causes, before the cause is finally heard’. The idea that contempt comes into being when an ‘atmosphere of prejudice’ is brought about came from the judgment of Chief Justice Alverstone in Rex v. Tibbits, (1902) 1 K.B. 77. 24. Rajah Velugoti v. N.V. Rama, AIR 1938 Mad 248. 25. Government Pleader, High Court v. Shankar Dattatraya Javdekar, AIR 1938 Bom 198. 26. P.S. Tuljaram Rao v. Sir James Taylor, AIR 1939 Mad 257. 27. Ananta Lal Singh v. Alfred Henry Watson, AIR 1931 Cal 257. See further, Sathappa Chettiar v. C. Ramachandra Naidu, AIR 1932 Mad 26; Superintendent and Remembrancer of Legal Affairs v. Murali Manohar, AIR 1941 Pat 185. 28. See, Sathappa Chettiar v. C. Ramachandra Naidu, AIR 1932 Mad 26. 29. Ananta Lal Singh v. Alfred Henry Watson, AIR 1931 Cal 257. 30. Ananta Lal Singh, ibid. 31. S.A. Dange v. S.T. Sheppard, AIR 1930 All 483. 32. In re: Kalidas J. Jhaveri, MANU/MH/0095/1919; Bennett Coleman v. G.S. Monga, AIR 1936 Lah 917; In re: Vidya Sagar Kapur, AIR 1938 Lah 815. The Bennett Coleman case is an interesting one. Here, a magazine called the Illustrated Weekly of India had come out with a crossword competition. The winner was to receive a prize. The magazine was sued by a person who believed he had solved the puzzle, though the magazine claimed that his was not the correct solution. The plaintiff then gave a copy of his plaint to several newspapers, along with his photograph, with the object that these should be published. One newspaper published the plaint and the photograph. This was held to be in contempt of court. 33. Guru Charan v. Baburao, AIR 1931 All 420. 34. Atindra Narayan Roy v. Hemanta Kumari Devi, AIR 1934 Cal 606. 35. Legal Remembrancer v. Matilal Ghose, 20 Ind. Cas. 81 (FB); Government Advocate of Burma v. Saya Sein, AIR 1930 Rangoon 124; Ananta Lal Singh v. Alfred Henry Watson, AIR 1931 Cal 257; Babu Guru v. Babu Rao, AIR 1931 All 420; Government Pleader, High Court v. Shankar Dattatraya Javadekar, AIR 1938 Bom 198; Superintendent and Remembrancer of Legal Affairs v. Murali Manohar, AIR 1941 Pat 185; In re Subrahmanyan, A.I.R. 1943 Lah. 329; Emperor v. Mahashe Khushal, AIR 1945 Lah 206. But see, Tushar Kanti Ghose v. Governor, AIR 1933 Cal 118, where the court held that ‘all comment in the press’, not just comments substantially prejudicing the case, ‘whether by way of approval or disapproval, of the judgments of courts of session or of commissioners in capital sentence cases, made pending their disposal by this Court, is reprehensible, and may entail most disagreeable consequences on those responsible for it’. 36. In re: G.W. Claridge, MANU/MH/0010/1912. 37. Tushar Kanti Ghose v. Governor, AIR 1933 Cal 118. In this case, it was held that ‘actual prejudice’, though ‘an important consideration . . . is not the only consideration.’ See further, In re: Subrahmanyan, AIR. 1943 Lah. 329; Emperor v. Mahashe Khushal, AIR 1945 Lah 206. 38. Legal Remembrancer v. Matilal Ghose, 20 Ind. Cas. 81 (FB); Hargovan B. Kotak v. Chimanlal Vadilal Shah, AIR 1942 Bom 86; In re: Subrahmanyan, AIR. 1943 Lah. 329; Emperor v. Mahashe Khushal, AIR 1945 Lah 206. But see: Ketra Moni Dasi v. Shamal Dhone Dutt, MANU/WB/0647/1913. 39. Legal Remembrancer v. Matilal Ghose, 20 Ind. Cas. 81 (FB). 40. Emperor v. Mahashe Khushal, AIR 1945 Lah 206. 41. For ‘imminent’, see: Tushar Kanti Ghose v. Governor, AIR 1933 Cal 118; In re Subrahmanyan, AIR. 1943 Lah. 329. 42. Superintendent and Remembrancer of Legal Affairs v. Murali Manohar, AIR 1941 Pat 185; In re: Subrahmanyan, AIR. 1943 Lah. 329; Emperor v. Mahashe Khushal, AIR 1945 Lah 206; Emperor v. J. Choudhury, AIR 1947 Cal 414. 43. Government Advocate of Burma v. Saya Sein, AIR 1930 Rangoon 124; Emperor v. Mahashe Khushal, AIR 1945 Lah 206; Emperor v. J. Choudhury, AIR 1947 Cal 414. 44. Tushar Kanti Ghose v. Governor, AIR 1933 Cal 118. 45. Sathappa Chettiar v. C. Ramachandra Naidu, AIR 1932 Mad 26; Rajah Velugoti v. N.V. Rama, AIR 1938 Mad 248. 46. Government Advocate of Burma v. Saya Sein, AIR 1930 Rangoon 124. 47. AIR 1931 Cal 257. 48. The report was dated 28 February 1963. 49. Paragraph 4, p. 32. 50. Paragraph 4, p. 32. 51. Paragraph 3, p. 35. 52. Paragraph 4, p. 35. 53. Paragraphs 3.1, p. 31. 54. Paragraph 3.3, p. 31. 55. The Sanyal committee thought it necessary to make this recommendation in the light of recent, post-independence decisions in which courts had held that want of knowledge of the pendency of a case would not exonerate a contemnor. 56. Paragraph 2, p. 37. However, it recommended an exception to this rule, that a distributor should be able to prove that ‘he had no reasonable grounds for believing that the publication he had distributed contained offending matter’. This exception was not to apply to editors, printers or publishers. Paragraphs 3.1–3.2, p. 37. 57. Paragraph 1.3, p. 34. 58. Paragraph 1.1, p. 28. 59. Joint Committee of the Houses of Parliament (headed by M.P. Bhargava, Chairman), report dated 20 Feb 1970. 60. Two statutes had been enacted before this, one in 1926, the other in 1952. However, neither statute had touched upon the sub judice rule. 61. Section 3, Explanation (a)(B). But see, M.P. Lohia v. State of W.B., (2005) 2 SCC 686 (paragraph 10). In this case, the Supreme Court cautioned the editor of a newspaper who published an article on a case where the investigation was still ongoing, which suggests that the charge-sheet had not been filed. See further, Vineet Narain v. Union of India, (1998) 1 SCC 226, where the court thought it fit to hold a trial in camera in order to protect the accused from media scrutiny, even though the investigation was still ongoing. See further, Sahara India Real Estate Corporation Ltd. v. SEBI, (2012) 10 SCC 603 (paragraph 33), where the Supreme Court followed A.K. Gopalan v. Noordeen (1969) 2 SCC 734, without noticing that the rule contained therein has been modified by Explanation (a)(B) to Section 3 of the Contempt of Courts Act, 1971. 62. In A.K. Gopalan and another v. Noordeen, (1969) 2 SCC 734, the Supreme Court held that ordinarily, a criminal case can only be considered imminent once a person is arrested (at paragraph 6). It relied on an unreported Supreme Court judgment in Surendra Mohanty v. State of Orissa, Cri. App. 107/56 dated 23.1.1961. It was held that in some cases where investigation by the police would be lengthy, such as those where ‘an investigation involving prolonged examination of account books of companies’ is involved, ‘proceedings may not be said to be imminent as soon as the accused is arrested.’ However, it was held that once an accused is arrested on a charge of murder, the proceeding should be treated as imminent (at paragraph 10). 63. See, Law Commission of India, 200th Report on Trial by Media, Free Speech and Fair Trial Under Code of Criminal Procedure Code, 1973, August 2006, p. 4. Available at: http://lawcommissionofindia.nic.in/reports/rep200.pdf (last visited 15 November 2016). The Law Commission in its 200th report has disagreed with this position, and has expressed the view that the sub judice rule must apply from the date of arrest. See, Law Commission of India, 200th Report on Trial by Media, p. 224. 64. Section 3, Explanation (a)(A). 65. Section 3, Explanation (a) (B). 66. Vidya Dhar v. Multi Screen Media (P) Ltd., (2013) 10 SCC 145 (paragraph 15). In this case, the Supreme Court held that once the trial is complete and the accused have been convicted and arrested, ‘there is no further possibility of any bias against them at the time of hearing of the appeal’. 67. Section 3, Explanation (b). 68. Section 3(1). See further, In re: P.C. Sen, AIR 1970 SC 1821. In this case, the chief minister of a state made a speech against the backdrop of a pending case. There was no direct reference to the pending case in the speech. The chief minister was aware that a case had been filed, but he did not know its details. The Supreme Court held that it was his duty to acquaint himself with the facts of the case before making any statement, since he knew that a case had been filed. 69. Section 3(3). 70. Section 2(b). Civil contempt is any ‘wilful disobedience’ of ‘any judgment, decree, direction, order, writ or other process of a court’, or ‘wilful breach of an undertaking given to a court’. 71. Section 2(c). 72. Section 2(c)(i)–(iii). 73. Section 4. The Phillimore committee’s recommendations (which, of course, came after the Contempt Act was enacted in India) that the report must be published ‘contemporaneously and in good faith’, is not a part of the statutory rule in India. 74. Section 13(a). 75. Sahara India Real Estate Corporation Ltd. v. SEBI, (2012) 12 SCC 611. 76. (1955) 1 SCR 677: AIR 1954 SC 743. Paragraph number references are from the SCC Online version of this judgment. 77. Paragraph 6. 78. Paragraph 6. 79. See further, Sammbhu Nath Jha v. Kedar Prasad Sinha, (1972) 1 SCC 573 (paragraph 14). 80. AIR 1970 SC 1821. All paragraph number references are from the SCC Online version of this judgment. 81. Paragraph 14. 82. Paragraph 15. 83. Paragraph 16. 84. Paragraph 16. See further, State of Maharashtra v. Rajendra Jawanmal Gandhi, (1997) 8 SCC 386 (paragraph 37), wherein it was held that a judge must guard himself against being influenced by the media. 85. Paragraph 15. 86. Paragraph 8. 87. Paragraph 14. 88. See paragraphs 12, 14, 15. 89. Paragraph 15. 90. Paragraph 15. 91. Paragraph 8. See further, Sammbhu Nath Jha v. Kedar Prasad Sinha, (1972) 1 SCC 573 (paragraph 10). 92. Sidhartha Vashisht v. State (NCT of Delhi), (2010) 6 SCC 1 (paragraph 297). In this case it was held that ‘statements which outrightly hold the suspect or the accused guilty even before such an order has been passed by the court’ are in contempt of court. 93. (2013) 10 SCC 145. 94. Paragraph 16. 95. AIR 1967 SC 1. All paragraph references are from the SCC Online version of the case. 96. A more weighty question was involved in this case, viz., whether a high court’s order could violate a fundamental right (in this case, the fundamental right to free speech). 97. Paragraph 17. See further, paragraph 30. 98. Paragraph 20. 99. Paragraph 21. 100. Paragraph 21. See further, paragraph 29. 101. Paragraph 21. 102. Paragraph 30. 103. Paragraph 36. 104. (1994) 3 SCC 569. 105. Paragraph 269. 106. Paragraph 290. 107. State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 (paragraph 24). 108. Sakshi v. Union of India, (2004) 5 SCC 518, paragraph 34(2). The court also issued directions that questions proposed to be asked by the defence advocates in cross-examination must be given in writing to the judge, who can then ask those questions himself in a clear and non- embarrassing manner, and that breaks can be given to victims of child sexual abuse or rape during the trial, as and when required. 109. (2012) 10 SCC 603 (decided by five judges). 110. Paragraphs 33, 34, 35, 40, 42, 43, 46, 48, 50.

Chapter 12: ‘Scurrilous Satire against a Friendless Woman’

1. Sections 469–78 of Macaulay’s draft of the IPC, with revisions, eventually became Section 499 of the IPC. Stephen believed that some of the words contained in Section 499 of the IPC were attributable to Macaulay. Sir James Fitzjames Stephen, A digest of the criminal law (crimes and punishments) (London: Macmillan, 1894), vol. 3, available at: https://babel.hathitrust.org/cgi/pt?id=hvd.hl57k4;view=1up;seq=335 (last visited 16 December 2016). Interestingly, Stephen did not think that Section 499 had much of an effect in India. ‘Practically, I do not think these sections have had much effect. Conversation in India is certainly not more insipid, as far as my experience goes,’ wrote Stephen, ‘than in other parts of the world, and people talk scandal much as they do elsewhere.’ Ibid. 2. Stephen believed that the rules contained in Section 499 of the IPC, dealing with criminal libel, were ‘far more severe than the law of England’ in some matters, but ‘singularly liberal’ in others. Ibid. From the very beginning, criminal defamation was made bailable and non- cognizable. 3. As the Law Commission noted, it was not a defence under the French Code or the Code of Louisiana either. See, ‘Note R’ prepared by the Indian Law Commission on the 1837 draft, in, A Penal Code (Calcutta: Bengal Military Orphan Press, 1837), available at: https://babel.hathitrust.org/cgi/pt? id=nyp.33433003025818;view=1up;seq=252 (last visited 16 June 2017). 4. The defence of truth in civil defamation cases was established by 1787. Criminal Libel, Law Commission, Working Paper No. 84, 1982. 5. ‘Note R’. The Commission believed that making truth a defence to defamation would prevent people from initiating false criminal defamation cases. This was because, in the Commission’s view, ‘no respectable person will venture to institute a prosecution for defamation in a case in which he knows that the truth of the defamatory matter is likely to be proved.’ If such a person were to refrain from initiating a prosecution, on the other hand, ‘many people’, thought the Commission, would ‘probably disbelieve the scandalous report: many (would) doubt about its truth’. 6. English Libel Act, 1843, 6 & 7 Vict., c. 96, available at: http://www.legislation.gov.uk/ukpga/1843/96/pdfs/ukpga_18430096_en.p df (last visited 16 December 2016). See further, ‘Criminal Libel’, Law Commission, Working Paper No. 84, 1982. 7. ‘Second Report on the Indian Penal Code’, 16 May 1848, available at: Reports From Commissioners, Session 18 November 1847—5 September 1848, vol. XXVIII https://babel.hathitrust.org/cgi/pt? id=hvd.32044106497787;view=1up;seq=134 (last visited 16 December 2016). 8. See ‘Criminal Libel’, UK Law Commission, Working Paper No. 84, 1982. 9. ‘Criminal Libel’, Law Commission, Working Paper No. 84, 1982. 10. See, Sir James Fitzjames Stephen, A Digest of the Criminal Law (Crimes and Punishments) (London: Macmillan, 1894). Stephen said: ‘Words spoken can in no case be a libel, although they may convey defamatory matter.’ See further, Criminal Libel, Law Commission, Working Paper No. 84, 1982, p. 38. However, reading out a written libel was criminally punishable in England. Stephen, ibid. Interestingly, in England, under the Defamation Act, 1952, which only applied to civil defamation, it was considered publication in permanent form for a person to broadcast defamatory statements through wireless telegraphy. Criminal Libel, Law Commission, Working Paper No. 84, 1982. 11. Eventually, it was no longer necessary under English common law for the prosecution to establish that the words in question were likely to provoke a breach of the peace. Though tendency to provoke a breach of the peace was formally an ingredient of the offence in the nineteenth century, convictions took place without satisfying this ingredient during that time. Criminal Libel, Law Commission, Working Paper No. 84, 1982. Later, this ingredient was formally done away with since R. v. Wicks (1936). However, even so, English common law required that defamation had to be sufficiently serious, not trivial, in order to warrant action. This ingredient was brought about by the House of Lords in Gleaves v. Deakin, (1980) A.C. 477. Criminal Libel, Law Commission, Working Paper No. 84, 1982; Halsbury’s Laws of England, 4th Edition, vol. 28 (London: Butterworths, 1979), p. 137. However, the breach of the peace test was not completely discarded under English law. Consider that if A wrote a letter to B making defamatory statements about B himself, then this would not be considered defamation under civil law. In other words, in civil defamation cases, it was necessary for the defamatory words to be published to a third party. However, this could be considered defamation under criminal law if the letter was sent with the object of provoking a breach of the peace. See, Criminal Libel, Law Commission, Working Paper No. 84, 1982, p. 45; Halsbury’s Laws of England, 4th Edition, vol. 28 (London: Butterworths, 1979), p. 137. This rule exists in India as well under Section 504 of the IPC. See further, Queen Empress v. Taki Husain, (1884) ILR 7 All 205 (per Syed Mahmood J.). Likewise, defamation of deceased persons was criminally punishable in England so long as the statement in question was published with intent to provoke a breach of the peace. Criminal Libel, Law Commission, Working Paper No. 84, 1982, p. 47. See further, Emperor v. Parwari, (1919) ILR 41 All 311; Queen Empress v. Taki Husain (1884) ILR 7 All 205. 12. Stephen, A History of the Criminal Law of England, vol. 3, p. 319. 13. For absolute privilege in such cases in England, see, Criminal Libel, Law Commission, Working Paper No. 84, 1982. 14. This view was, importantly, taken by the Privy Council in Baboo Gunnesh Dutt Singh v. Mugneeramchowdhry, (1873) 11 Beng L.R. 321. See further, Chunni Lal v. Narsingh Das, (1917) 40 All. 341; Ma Mya Shwe v. Maung Maung, (1924) ILR 2 Rang 333; Ma Hla Khin v. U Khin Maung, 154 Ind. Cas. 535. 15. This view was taken by the Calcutta High Court in Satis Chandra Chakravarti v. Ram Dayal De, AIR 1921 Cal 1, which was decided by a Bench of five judges; Bombay High Court in Bai Shanta v. Umrao Malik, AIR 1926 Bom 141 (FB); Madras High Court in Elavarthi Peddabba Reddi v. Iyyala Varada Reddi, AIR 1929 Mad 236 and Tiruvengada Mudali v. Tripurasundari Ammal, AIR 1926 Mad 906 (FB); Patna High Court in Saukhi Gope v. Uchit Rai, AIR 1948 Pat 56; the Rangoon High Court in Rasool Bhai v. The King, (1938) SCC OnLine Rang 47 and Mull Chand v. Buga Singh, AIR 1931 Rang 81; the Sind High Court in Ghanshamdas Gianchand v. Nenumal, AIR 1934 Sind 114; and Nagpur High Court in Surajmal v. Ramnath, AIR 1928 Nag 58. 16. Criminal Libel, Law Commission, Working Paper No. 84, 1982. 17. This was under the ninth exception to defamation under Section 499 of the IPC. See, Isuri Prasad v. Umrao Singh, (1900) ILR 22 All 234; Mt. Champa Devi v. Pirbhu Lal, AIR 1926 All 287. 18. Halsbury’s Laws of England, 4th Edition, vol. 28 (London: Butterworths, 1979), p. 76. 19. Emperor v. Purshottamdas Ranchhoddas, (1907) 9 Bom LR 1287; Nirsu Narayan Sinha v. King Emperor, AIR 1926 Pat 499 (DB); M. Banerjee v. Anukul Chandra Mitra, (1928) ILR 55 Cal 85; Tulsidas Amanmal v. S.F. Billimoria, AIR 1932 Bom 490; Muhammad Taqi v. M.A. Ghani, AIR 1945 Lah 97; T.F.R. Mcdonnell v. Emperor, 92 Ind. Cas. 737 (DB). 20. Section 73, Coroners and Justice Act, 2009. 21. Subramanian Swamy v. Union of India, (2016) 7 SCC 221. 22. See, Gautam Bhatia, ‘A Blow against Free Speech’, The Hindu, 16 May 2016, available at: http://www.thehindu.com/opinion/lead/A-blow- against-free-speech/article14321176.ece (last visited 18 December 2016). 23. See, Tunku Vardarajan, ‘Judgment by Thesaurus’, Wire, 16 May 2016, available at: http://thewire.in/36348/judgment-by-thesaurus/ (last visited 18 December 2016). 24. (1994) 6 SCC 632. 25. Paragraphs 22, 26(6). This suggests that such a prior restraint can perhaps be imposed, if a law empowering the government to do so is enacted at some future date. 26. 376 US 254. 27. Paragraph 26(3). 28. It is not clear whether this standard will apply in cases under Section 499 of the IPC where a public official is the complainant, though it stands to reason that this standard ought to apply in such cases as well. 29. Paragraph 26(3).

Chapter 13: Shouting Fire in a Crowded Theatre

1. ‘Seditious Intention’, Article 98, Stephen’s Digest, available at: https://babel.hathitrust.org/cgi/pt? id=uc2.ark:/13960/t3514444d;view=1up;seq=124 (last visited 18 June 2017). 2. Originally, the amended definition of sedition was to include hate speech. However, subsequently, hate speech was put into a separate provision altogether. 3. It was made punishable with two years’ imprisonment, or fine, or both. Under Section 196 of the Code of Criminal Procedure, 1898, no prosecution could be launched, however, without a complaint made by or under the authority of the government. Likewise, in Section 196 of the Code of Criminal Procedure, 1973, a prosecution under Section 153A cannot be launched without the sanction of the central or state government. 4. Another member of the Council, Sir Griffith Evans, agreed that if hate speech was part of the law of England, it was ‘much more necessary in a country like India with its discordant elements and hostile races and religions’. 5. Abstract of the Proceedings of the Council of the Governor-General of India (Calcutta: Office of the Superintendent of Government Printing, 1898) (on file with the author, with thanks to Sandeep Ranade). Another member of the Council, Mr Rivaz, also referred to ‘recent events’ as a justification for the amendment. Nicholson and Chitnavis too spoke of ‘recent agitation(s)’. 6. Richa Raj, ‘A Pamphlet and its (Dis)contents: A Case Study of Rangila Rasul and the Controversy Surrounding it in Colonial Punjab, 1923-29’, History and Sociology of South Asia, vol. 9(2), p. 146, available at: http://journals.sagepub.com/doi/pdf/10.1177/2230807515572213 (last visited 18 February 2017); Asif M. Basit, ‘A Murder in British Lahore— Closing the Case of Lekh Ram’, The Review of Religions, August 2015, available at: http://www.reviewofreligions.org/12030/a-murder-in-british- lahore-closing-the-case-of-lekh-ram/ (last visited 18 February 2017); Sadia Saeed, ‘Politics of Exclusion: Muslim Nationalism, State Formation and Legal Representations of the Ahmadiyya Community in Pakistan’, Doctoral Dissertation submitted to the University of Michigan, 2010, available at: https://deepblue.lib.umich.edu/bitstream/handle/2027.42/78803/sadia_1.p df?sequence=1 (last visited 18 February 2017). 7. For instance, Chalmers referred to the ‘Poona murders’ as justification for the introduction of the law against hate speech. The Poona murders, however, had nothing to do with hate speech. In 1897, an article called ‘Shivaji’s utterances’ had appeared in Tilak’s Marathi newspaper Kesari. Following the article, the Chapekar brothers in Poona murdered the Plague Commissioner and Collector, Walter Charles Rand, an unpopular official responsible for taking some insensitive decisions while dealing with the plague epidemic in Poona. The government believed that the article had incited the murder. See, Chandrachud, An Independent, Colonial Judiciary. However, even according to the government, the article was not hate speech but ‘sedition’, so this example was not really relevant. 8. P.K. Chakravarty v. The King-Emperor, AIR 1926 Cal 1133 (decided by two judges). Followed in Hemendra Prasad v. King Emperor, AIR 1927 Cal 215. 9. However, the intent was to be seen from the words used in the article itself. 10. Raj Paul v. Emperor, AIR 1927 Lah 590. 11. Raj, ‘A Pamphlet and Its (Dis)Contents’. 12. Young India, 19 June 1924, available at: https://babel.hathitrust.org/cgi/pt? id=mdp.39015069951211;view=1up;seq=207;size=150 (last visited 19 February 2017). 13. Neeti Nair, ‘Beyond the Communal 1920s: The Problem of Intention, Legislative Pragmatism, and the Making of Section 295A of the Indian Penal Code’, Indian Economic and Social History Review, 50, 3, (2013), pp. 317-340, available at: http://journals.sagepub.com/doi/pdf/10.1177/0019464613494622 (last visited 18 February 2017). 14. Devi Sharan Sharma v. Emperor, AIR 1927 Lah 594. See further, Chamupati v. Emperor, AIR 1932 Lah 99 (decided by three judges). 15. Kali Charan Sharma v. Emperor, AIR 1927 All 649. Colonial courts also took the view that the word ‘classes’ in Section 153-A was not limited to religious groups. However, a class had to be sufficiently well defined. See, Emperor v. Phadke, AIR 1940 Bom 379 (decided by two judges); Emperor v. Maniben, AIR 1933 Bom 65 (decided by two judges); Satya Ranjan Bakshi v. Emperor, AIR 1929 Cal 309 (decided by two judges); In re: Nawa I Waqat, AIR 1948 Lah 161; Jonnalagadda v. Emperor, AIR 1936 Mad 835; M.L. Gautam v. Emperor, AIR 1936 All 561. 16. These words were inserted by the Select Committee of the Legislative Council so as to protect insults to a religion or religious beliefs ‘in good faith’, ‘with the object of facilitating some measure of social reform by administering such a shock to the followers of the religion as would ensure notice being taken of any criticism so made’. Select Committee Report, published in the Gazette of India dated 17 September 1927, p. 251 (on file with the author, with thanks to Mrs Uma Narayan). 17. The words ‘religious beliefs’ were inserted by the Select Committee of the Legislative Council in order to make it clear that insulting the founder of a religion was punishable, contrary to what Justice Dalip Singh had held in the Rangila Rasul case. 18. They were: A. Rangaswami Iyengar, Arthur Moore, K.C. Roy, N.C. Chunder, N.C. Kelkar. 19. Jinnah wrote a minute of dissent in the Select Committee arguing that the offence must be made non-bailable. The Select Committee had made it bailable. Three other members of the Select Committee joined him in this view. They were: Abdul Haye, Zulfiqar Ali Khan, and J. Crerar. 20. 249 US 47 (1919). 21. Alex McBride, ‘Landmark Cases’, available at: http://www.pbs.org/wnet/supremecourt/capitalism/landmark_schenck.ht ml (last visited 2 July 2016). 22. See, Sullivan and Gunther, First Amendment Law, p. 15. 23. Holmes did not use the word ‘crowded’ to qualify the word ‘theatre’. However, the Holmes quote is often remembered as ‘shouting fire in a crowded theatre’, and the US Supreme Court has referred to it as such. See, Carlton F.W. Larson, ‘Shouting “Fire” in a Theater: The Life and Times of Constitutional Law’s Most Enduring Analogy’, William and Mary Bill of Rights Journal, vol. 24, pp. 181-212 (2015). 24. Frohwerk v. US, 249 US 204 (1919). 25. At the time, however, it was presumed that a person knew and intended the natural consequences of his speech. Thus, a person falsely shouting fire in a crowded theatre was presumed to have intended the consequences caused by his utterance, even though he might not have intended them in fact. This approach began to change with Holmes’ opinion in Abrams, as we shall see below. Tribe, American Constitutional Law, p. 608. 26. Gunther and Sullivan, First Amendment Law, p. 18. 27. Friedman, American Law in the 20th Century, p. 142 (Kindle Edition). 28. Toni Konkoly, ‘Famous Dissents’, http://www.pbs.org/wnet/supremecourt/personality/landmark_abrams.ht ml (last visited 2 July 2016). 29. Gunther and Sullivan, First Amendment Law, p. 18. 30. 250 US 616 (1919). 31. Sullivan and Gunther, First Amendment Law, p. 21. See further, Whitney v. California, 274 US 357 (1927) and Brandenburg v. Ohio, 395 US 444 (1969). 32. It was this approach to the clear and present danger test which appealed most to US constitutional scholar Lawrence Tribe in his classical treatise on American constitutional law. Tribe, American Constitutional Law, p. 611. 33. 395 US 444 (1969). 34. Friedman, American Law in the 20th Century, p. 144 (Kindle Edition). 35. See, Gunther and Sullivan, First Amendment Law, p. 46. 36. See further, Hess v. Indiana, 414 US 105 (1973); NAACP v. Claiborne Hardware Co., 458 US 886 (1982). 37. (1995) 3 SCC 214 (paragraphs 8, 9, 12). 38. AIR 1966 SC 1387 (decided by five judges). 39. Paragraph 23. See further, Ram Bahadur Rai v. State of Bihar and others, (1975) 3 SCC 710. 40. (1994) 5 SCC 550 (decided by two judges). 41. Paragraph 1. 42. (2015) 5 SCC 1 (decided by two judges). 43. Paragraph 13. 44. AIR 1960 SC 633 (decided by five judges). 45. AIR 1962 SC 1166 (decided by five judges). 46. Paragraph 13. 47. Paragraph 16. 48. AIR 1962 SC 955 (decided by five judges). 49. Paragraph 29. 50. The ‘heckler’s veto’ is commonly associated with ‘fighting words’, i.e. words which, when spoken, tend to result in violence directed against the speaker himself, rather than others. Sullivan and Gunther, First Amendment Law, p. 51. 51. Harry Kalven, Jr., The Negro and the First Amendment (Columbus: Ohio State University Press, 1965). See, Owen Fiss, ‘Free Speech and Social Structure’, 71 Iowa Law Review 1405, p. 1416 (1986). 52. (1976) 4 SCC 213 (decided by three judges). 53. Paragraphs 16, 19. 54. (1988) 1 SCC 668 (decided by two judges). 55. Paragraph 13. 56. (1989) 2 SCC 574 (decided by three judges). 57. Paragraph 21. 58. Paragraph 26. 59. Paragraph 35. See further, paragraph 34. 60. Paragraph 51. 61. Paragraph 51. 62. (2007) 5 SCC 11 (decided by two judges). Lalai Singh Yadav’s case was considered by the court in this case. 63. Paragraph 9. 64. Paragraph 12. 65. Paragraph 19. 66. Babulal Parate v. State of Maharashtra, AIR 1961 SC 884 (decided by five judges); Madhu Limaye v. Sub-Divisional Magistrate, Monghyr, (1970) 3 SCC 746. 67. Sections 95–96 of the Criminal Procedure Code deal with these powers. Under Section 95, where it appears to the state government that any newspaper, book or document contains material prohibited under Sections 124-A (sedition), 153-A (hate speech), 153-B (hate speech), 292 (obscenity), 293 (obscenity), or 295-A (hate speech) of the IPC, it may declare, by notification in the Official Gazette, every copy of such materials to be forfeited to the government. Thereafter, police officers have powers to seize offending materials. Magistrates may issue search warrants to police officers to enter premises and seize offending materials. An order under Section 95 may be challenged, under Section 96, within two months of its publication in the Official Gazette, before a Special Bench of three judges of the high court (where the high court consists of three judges or more). 68. AIR 1961 SC 1662 (decided by five judges). 69. Paragraph 4. 70. Paragraphs 8, 10, 11, 12, 13. Justice Das Gupta dissented on this point, at paragraph 25. 71. (2010) 7 SCC 398. See further, Manzar Sayeed Khan v. State of Maharashtra, (2007) 5 SCC 1. 72. Paragraph 28. 73. Paragraph 37(ix). 74. The court laid down nine guidelines for determining when forfeiture orders could be considered legal: (i) The State government must mandatorily state its grounds of opinion. If the grounds are totally absent, the order will be void. The court too must confine itself only to the grounds set out in the order. (ii) Grounds of opinion must mean ‘conclusion of facts’. A mere recitation of an opinion or reproduction of the Section will not suffice. (iii) The validity of the order will depend on the merits of the grounds. (iv) Stray sentences from a book cannot be taken out of context by the State government to justify a forfeiture order. (v) The intention of the author must be gathered from the language, contents and import of the offending material. If its material is based on ‘folklore, tradition or history’, then ‘something in extenuation could perhaps be said for the author’. (vi) If the book is calculated to promote feelings of enmity or hatred among different groups, however, it is no defence that the book ‘contains a truthful account of past events or is otherwise supported by good authority’. In the words of the court, ‘[a]dherence to the strict path of history is not by itself a complete defence to a charge under Section 153-A IPC’. This is perhaps the most questionable part of the Supreme Court’s judgment. After all, as George Orwell said in 1984, ‘[f]reedom is the freedom to say that two plus two make four. If that is granted, all else follows.’ If a book speaks the truth, then the author’s intent should not matter. (vii) In order to pass an order of forfeiture, the relevant offence under the IPC need not be ‘proved’, and elements of the offence like mens rea need not be established. Thus, even if it may not be possible for the government to prosecute the author, it can still forfeit his books. (viii) The onus of rebutting the prima facie opinion of the government is on the Applicant. (ix) The court also held that the effect of the words must be judged from the standpoint of the reasonable heckler. 75. AIR 1961 SC 884. 76. Ibid, paragraphs 23–24. 77. (1970) 3 SCC 746. 78. Paragraph 17. 79. Paragraphs 10, 11. 80. (1976) 4 SCC 213 (paragraph 13). 81. (1989) 2 SCC 574 (decided by three judges). 82. Paragraph 9. 83. Paragraph 45. 84. (2015) 5 SCC 1 (decided by two judges). 85. Paragraph 15. 86. Paragraphs 16–17. 87. Paragraph 17. 88. Paragraph 17. 89. Paragraph 18. 90. 343 US 250 (1952). 91. Gunther and Sullivan, First Amendment Law, p. 67. 92. 373 N.E. 2d 21. 93. No. 740309 (California Superior Court, Santa Clara, 1995). See further, Gunther and Sullivan, First Amendment Law, pp. 86–87. 94. 505 US 377 (1992). 95. 562 US 443 (2011). 96. Justice Alito’s dissent brings this out. 97. See further, Ivan Hare and James Weinstein (eds.), Extreme Speech and Democracy (Oxford: Oxford University Press, 2009). 98. Jeremy Waldron, The Harm in Hate Speech (Cambridge, MA: Harvard University Press, 2012). 99. Firstly, Waldron defines hate speech as speech targeting vulnerable minorities. His definition is as follows: ‘the use of words which are deliberately abusive and/or insulting and/or threatening and/or demeaning directed at members of vulnerable minorities, calculated to stir up hatred against them.’ However, Waldron does not consider it hate speech for a member of a minority group to launch a vicious speech attack on a majority group. Likewise, Waldron is not concerned with non-vulnerable minorities, which in India would presumably translate into typically well-off minority groups like Parsis or Jains. Waldron’s argument in India would mean that hate speech directed by Hindus against Muslims would be punishable, but that hate speech directed by Muslims against Hindus, or by Hindus against Parsis or Jains, would not —an argument which appears to be untenable. Secondly, Waldron focuses his attention on the written word over the spoken word. The written word, he says, is permanent and has a lasting effect on the well-being of vulnerable minorities, whereas the spoken word, though harmful, is ephemeral. Words ‘blurted out’, ‘when the spirits are high and the flagons are low’ [These are the words of Robert H. Jackson, one-time US Solicitor General] should not be considered hate speech. In today’s digital age where media like YouTube make even the verbal word permanent, Waldron’s distinction between the written and verbal is perhaps a little strained. Recognizing this, Waldron later scales this argument back, and says that there may be some verbal speech, like vicious racial epithets, which acquire a character of permanency and which he would brand hate speech as well. Thirdly, for Waldron, hate speech is concerned with protecting the dignity of vulnerable minorities, but not protecting them against feeling offence. For him, ‘dignity’ means ‘a person’s basic entitlement to be regarded as a member of society in good standing, as someone whose membership of a minority group does not disqualify him or her from ordinary social interaction’. When the dignity of vulnerable minorities is attacked through hate speech, Waldron believes that it cultivates among them ‘a traumatic sense of not being trusted, not being respected, not being perceived as worthy of ordinary citizenship, a sense of being always vulnerable to discriminatory and humiliating exclusions and insults’. Dignity does not translate into honour or self-esteem. He distinguishes between indignity and offence by distinguishing hate speech from blasphemy. For him, blasphemy does not translate into hate speech. In other words, for Waldron, it is hate speech to say ‘Members of Religion Y do not belong to India and should leave’, but it is not hate speech to say ‘The Gods and religious beliefs of Religion Y are silly’. According to Waldron, even the Danish cartoons insulting Islam would not be considered hate speech. It is here that Waldron’s argument seems most tenuous. The line between indignity and offence is a very fine one, and it is hard to formulate any doctrinal or legislative rule on its basis. 100. Ramji Lal Modi v. State of U.P., AIR 1957 SC 620 (decided by five judges). 101. Manoj Mitta, ‘Reading Satanic Verses Legal,’ 25 January 2012, Times of India, available at: http://epaper.timesofindia.com/Repository/getFiles.asp? Style=OliveXLib:LowLevelEntityToPrint_TOINEW&Type=text/html &Locale=english-skin-custom&Path=CAP/2012/01/25&ID=Ar01101 (last visited 19 February 2017). The publisher, Viking/Penguin, did not come out with an Indian edition of the book, and the government banned its import into India from abroad. 102. The Supreme Court in Pravasi Bhalai Sangathan v. Union of India, (2014) 11 SCC 477, has set out a catalogue of statutory provisions under which hate speech is prohibited in India, though many of these provisions do not specifically target hate speech in particular. 103. Under Section 153-B, it is an offence punishable with three years’ imprisonment to say that any class of persons cannot, by reason of their membership in such class, ‘bear true faith and allegiance to the Constitution of India’ or ‘uphold the sovereignty and integrity of India’ or that such persons should be ‘denied or deprived of their rights as citizens of India’. Sections 296 and 298 of the IPC attract a maximum sentence of one year for disturbing a religious assembly or uttering a word etc. with deliberate intent to wound religious feelings. Under Section 505, it is an offence punishable with three years’ imprisonment to incite hate crimes, or to make a statement containing a ‘rumour or alarming news’ intending to promote feelings of enmity, hatred or ill will as aforesaid. 104. Section 7(1)(d), Protection of Civil Rights Act, 1955. 105. Section 3(1)(r). 106. Section 3(1)(s). 107. Section 3(1)(u). 108. Section 3(1)(v). 109. Section 3(1)(w)(ii). 110. Under Section 8 of the Representation of the People Act, 1951, a person convicted of certain offences, including some offences dealing with hate speech (Sections 153-A or 505 of the IPC or the Protection of Civil Rights Act, 1955), is disqualified from holding office in Parliament or a state legislature for a period of six years from his release from imprisonment, or where he is sentenced only with a fine, for a period of six years from the date of his conviction. Under Section 123(3A) of the said Act, it is considered a ‘corrupt practice’ to, among other things, promote ‘feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language’, which would result in the disqualification of the election of a member of Parliament or a state legislature. Under Section 125 of the said Act, it is also an electoral offence for any person in connection with any election to, among other things, ‘promote on grounds of religion, race, caste, community or language, feelings of enmity or hatred, between different classes of the citizens of India’, punishable with a maximum term of three years’ imprisonment. 111. Abhiram Singh v. C.D. Commachen, (2017) 2 SCC 629 (decided by seven judges). 112. Under Section 3(g) of the Religious Institutions (Prevention of Misuse) Act, 1988, a religious institution cannot be used for promoting disharmony or feelings of enmity, hatred or ill will between different religious, racial, language or regional groups, castes or communities. The manager of a religious institution which violates this provision can be sentenced to imprisonment for a maximum term of five years. 113. Under Section 19 of the Cable Television Networks (Regulation) Act, 1995, an authorized officer may prohibit any cable operator from transmitting any programme or channel if it is likely to promote, on grounds of religion, race, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill will between different religious, racial, linguistic or regional groups, castes or communities.

Chapter 14: The Most Solemn Symbol of a Country

1. Thomas I. Emerson, ‘Toward a General Theory of the First Amendment’, 72 Yale Law Journal 877 (1963). 2. This was in his dissent in Bennett Coleman & Co. v. Union of India, (1972) 2 SCC 788 (decided by five judges). 3. He was not, as yet, the chief justice of India, when he wrote the judgment in Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India, (1985) 1 SCC 641 (decided by three judges). 4. (1986) 3 SCC 615. 5. Paragraph 1. 6. Paragraph 2. 7. That is, both the single judge and the Division Bench. 8. Paragraph 2. 9. Paragraph 10. 10. Paragraph 11. 11. Paragraph 17. 12. Paragraphs 14–15. 13. Paragraphs 17, 25, 27. 14. Paragraph 27. 15. (2017) 1 SCC 421 (decided by two judges). 16. See, Pratap Bhanu Mehta, ‘Unconstitutional Patriotism: Order on National Anthem Shows What Is Wrong with the Court’, Indian Express, 3 December 2016, available at: http://indianexpress.com/article/opinion/columns/national-anthem- cinema-halls-supreme-court-order-unconstitutional-patriotism-4407560/ (last visited 2 January 2017); Upendra Baxi, ‘Unfair to Justices’, Indian Express, 12 December 2016, available at: http://indianexpress.com/article/opinion/columns/supreme-court- national-anthem-cinema-halls-unfair-to-justices-4422239/ (last visited 2 January 2017); Pratap Bhanu Mehta, ‘Prof Baxi versus St Baxi’, Indian Express, 14 December 2016, available at: http://indianexpress.com/article/opinion/columns/supreme-court- national-anthem-cinema-halls-indian-judiciary-4425814/ (last visited 2 January 2017). 17. Mehta, ‘Unconstitutional Patriotism’. 18. See, Nick Allen, ‘Colin Kaepernick: NFL Black Lives Matter protests recall rebellious spirit of 1960s sporting greats’, The Telegraph, 18 September 2016, available at: http://www.telegraph.co.uk/news/2016/09/18/colin-kaepernick-nfl- black-lives-matter-protests-recall-rebellio/ (last visited 2 January 2017). 19. See, Des Bieler, ‘National anthem singer kneels while wearing ‘Black Lives Matter’ shirt’, The Washington Post, 22 October 2016, available at: https://www.washingtonpost.com/news/early- lead/wp/2016/10/22/national-anthem-singer-kneels-while-wearing- black-lives-matter-shirt/?utm_term=.eb121759e645 (last visited 2 January 2017). 20. West Virginia State Board of Education v. Barnette, 319 US 624 (1943). 21. (2004) 2 SCC 510. 22. Paragraph 3. 23. Paragraph 19. 24. Paragraph 7. 25. Paragraph 7. 26. Paragraph 8. 27. Paragraph 26. 28. Paragraph 26. 29. Paragraphs 34, 35, 53. 30. Paragraph 71, 83. 31. Paragraph 48. 32. On flag burning, see further, Kabir Duggal and Shreyas Sridhar, ‘Reconciling Freedom of Expression and Flag Desecration: a Comparative Study’, Hanse Law Review, vol. 2, pp. 141–58 (2006), available at: http://hanselawreview.eu/wp- content/uploads/2016/08/Vol2No1Art10.pdf (last visited 2 January 2017). 33. Paragraph 90. 34. Paragraph 77. 35. Paragraph 77. 36. See, Dipak K. Dashl, ‘Jio Could Face Rs 500 Fine for Using PM Modi’s Pic in Ad’, Times of India, 3 December 2016, available at: http://timesofindia.indiatimes.com/india/Jio-coukld-face-Rs-500-fine- for-using-PM-Modis-pic-in-ad/articleshow/55761435.cms (last visited 2 January 2017); ‘Reliance Could be Fined Rs 500’, Indian Express, 3 December 2016, available at: http://indianexpress.com/article/india/reliance-could-be-penalised-for- using-pm-modis-photograph-in-jio-advertisements/ (last visited 2 January 2017). 37. ‘Shashi Tharoor Exonerated in National Anthem Case’, The Hindu, 7 July 2013, available at: http://www.thehindu.com/todays-paper/shashi- tharoor-exonerated-in-national-anthemcase/article4890798.ece (last visited 30 May 2016); Mahir Haneef, ‘Shashi Tharoor Acquitted in Anthem Case’, Times of India, 7 July 2013, available at: http://timesofindia.indiatimes.com/india/Shashi-Tharoor-acquitted-in- anthem-case/articleshow/20950253.cms (last visited 30 May 2016). 38. ‘Writer and Disability Campaigner Thrashed . . . ’, Indian Express, 20 October 2016, available at: http://indianexpress.com/article/india/india- news-india/writer-and-disability-campaigner-thrashed-in-goa-theatre- for-not-standing-up-during-national-anthem-3093030/ (last visited 3 December 2016). 39. Paragraph 1.2. 40. Paragraph 2.2(x). 41. Paragraph 2.2(v). 42. Paragraph 2.2(xiii). 43. Paragraph 2.3(viii). 44. Paragraph 3.44. 45. Paragraph 3.50.

Chapter 15: Methods of Influencing the Press

1. See, Express Newspapers v. Union of India, AIR 1958 SC 578 (paragraph 119); Sakal Papers Pvt. Ltd. v. Union of India, AIR 1962 SC 305 (paragraph 24); Bennett Coleman & Co. v. Union of India, (1972) 2 SCC 788 (paragraph 31); Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India, (1985) 1 SCC 641 (paragraph 23); Printers (Mysore) and another v. Assistant Commercial Tax Officer and others, (1994) 2 SCC 434 (paragraph 10). 2. AIR 1958 SC 578 (decided by five judges). 3. Working Journalists (Conditions of Service) and Miscellaneous Provisions Act, 1955. 4. K.M. Munshi, champion of free speech in the Constituent Assembly, appeared on behalf of some of the petitioners. 5. Paragraph 139. 6. Paragraph 139. 7. AIR 1962 SC 305 (decided by five judges). 8. Section 3, Newspaper (Price and Page) Act, 1956 and the Daily Newspaper (Price and Page) Order, 1960. 9. Paragraph 20. 10. ‘N.P.’ presumably stood for ‘Naye Paise’ to distinguish it from the old paise which was 1/64th of a rupee. See, ‘Republic India Coinage’, RBI Monetary Museum, available at: https://www.rbi.org.in/currency/museum/c-rep.html (last visited 2 January 2017). 11. Paragraph 24. 12. Paragraph 24. 13. Paragraph 31. 14. Paragraphs 34–36. 15. Paragraph 42. See further, paragraphs 43–45. 16. Paragraph 48. 17. (1972) 2 SCC 788 (decided by five judges). 18. Paragraph 64. Lawyers who now have legendary status in India’s legal profession, appeared for the newspapers. M.K. Nambiar appeared for The Hindu, Nani Palkhivala for the Bennett Coleman (Times of India) group, and C.K. Daphtary for the Hindustan Times. Paragraph 58. 19. Paragraph 43. See further, paragraphs 62, 66, 67, 71, 77, 88, 89. 20. Paragraph 64. 21. Paragraph 155. 22. Paragraph 157. 23. Paragraph 159. 24. Paragraph 159. 25. See, e.g., Megha Bahree, ‘Reliance Takes Over Network18: Is This The Death Of Media Independence?’, Forbes Business, 30 May 2014, available at: http://www.forbes.com/sites/meghabahree/2014/05/30/reliance-takes- over-network18-is-this-the-death-of-media- independence/#1e220e6d4543 (last visited 29 May 2016); Vikram Johri, ‘The Reliance Effect: When Is Corporate Ownership of Media Especially Dangerous?’, Newslaundry.com, 30 November 2015, available at: https://www.newslaundry.com/2015/11/30/the-reliance- effect-when-is-corporate-ownership-of-media-especially-dangerous (last visited 2 January 2017). See further, Rahul Bhatia, ‘The Network Effect’, Caravan Magazine, 1 December 2013, available at: http://www.caravanmagazine.in/reportage/network-effect (last visited 2 January 2017). 26. See, Ashish K. Mishra, ‘Inside the Network18 Takeover’, Live Mint, 25 June 2014, available at: http://www.livemint.com/Companies/rqT2Oi8fwv4XVjJcHzlcVN/Insid e-the-Network18-takeover.html (last visited 29 May 2016); Vikram Johri, ‘The Reliance Effect’. 27. Krishn Kaushik, ‘The Big Five: The Media Companies That The Modi Government Must Scrutinise To Fulfill Its Promise Of Ending Crony Capitalism’, Caravan, 19 January 2016, available at: http://www.caravanmagazine.in/vantage/the-big-five-the-media- companies-that-the-modi-government-must-scrutinise-to-fulfill-its- promise-of-ending-crony-capitalism (last visited 29 May 2016). 28. Naazneen Karmali, ‘The Curious Incident of Mukesh Ambani’s Aston Martin In the Night Time’, Forbes, 2 January 2014, available at: http://www.forbes.com/sites/naazneenkarmali/2014/01/02/the-curious- incident-of-mukesh-ambanis-aston-martin-in-the-night- time/#2eb232cf85fe (last visited 29 May 2016); Arunabh Saikia, ‘The Car Crash That Never Was’, newslaundry.com, 12 December 2013, available at: http://www.newslaundry.com/2013/12/12/the-car-crash- that-never-was/ (last visited 29 May 2016). 29. (1985) 1 SCC 641 (decided by three judges). 30. Paragraph 4. 31. Paragraph 65. 32. Paragraph 69. 33. Paragraph 32. 34. (1982) 1 SCC 1. In Sheela Barse, the Supreme Court indicated that the order in Prabha Dutt had been authored by the chief justice of India at the time. 35. See, Prakash Patra, ‘With Billa, hours before the hanging’, Telegraph, 9 March 2015, available at: http://www.telegraphindia.com/1150309/jsp/frontpage/story_7610.jsp#. V0UdepN96LI (last visited 30 May 2016). 36. Paragraph 2. 37. Paragraph 2. 38. Paragraph 2. 39. Paragraph 3. 40. Paragraph 10. 41. See, Prakash Patra, ‘With Billa, Hours before the Hanging’. 42. (1987) 4 SCC 373. 43. See, paragraph 3. 44. See, M.C. Mehta v. Union of India, (1987) 1 SCC 395. 45. Paragraph 13. 46. Paragraph 14. 47. Paragraph 14. 48. (1986) 1 SCC 133 (decided by three judges). 49. Paragraph 3. 50. Paragraph 76. 51. Paragraph 201. 52. Paragraph 207. Acknowledgements

I am grateful to many people for making this book possible. Many thanks to Nick Robinson, Mark Tushnet, Mitra Sharafi, Jim Jaffe, Vasujith Ram, Pratap Bhanu Mehta and Madhav Khosla for commenting on draft chapters of this book. Thank you, Fernan Restrepo, Sandeep Ranade, Vyoma Jha, Arun Natessan and Pranay Chitale, for taking time out of your busy schedules to help me obtain rare research material. Thanks are owed to David Kenny, Neeti Nair and Ram Guha, for speaking or corresponding with me in connection with this book. Special, warm thanks are due to Mrs Uma Narayan, without whom this book could never have been written. Many thanks to my senior, Mr Darius Khambata, from whose advice, library and research resources I have benefited a great deal. I would like to thank my research assistants, Shreyas Narla and Sakshi Bhalla, for diligently and painstakingly checking all the citations and sources in the book. Many thanks to Professor K.L. Daswani. I enjoyed presenting some of the themes of this book at St Xavier’s College, Mumbai, under the aegis of the Xavier’s Political Science Association and Young Bhartiya Foundation and thanks are due to the organizers and participants. Thank you, Rahul Mhaskar and the team at Hammurabi Tablet for inviting me to present the book. Many thanks to Meru Gokhale for making this book possible, to my editor, Premanka Goswami, to Saloni Mital and to the whole team at Penguin. Finally, many thanks to my family, especially my in-laws, Aai and Baba, and to Dad and Kalpana, for all their warmth, support and encouragement, through good times and bad. THE BEGINNING

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This collection published 2017 Copyright © Abhinav Chandrachud 2017 The moral right of the author has been asserted Jacket images © Ahlawat Gunjan ISBN: 978-0-670-09001-3 This digital edition published in 2017. e-ISBN: 978-9-386-81531-6 This book is sold subject to the condition that it shall not, by way of trade or otherwise, be lent, resold, hired out, or otherwise circulated without the publisher’s prior consent in any form of binding or cover other than that in which it is published and without a similar condition including this condition being imposed on the subsequent purchaser.