India's Constitutional Protections for Freedom of Speech

Andrew McLaughlin Freedom of Speech in a Digitally Interconnected World Stanford Law School, Autumn 2011, LAW 570 Wednesday,
October 5, 4:15-7:15pm, 285
READINGS FOR WEEK 4: India & South Korea

PART 2: INDIA
A. Constitution of India Preamble WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens: JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and of opportunity; and to promote among them all FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation; IN OUR CONSTITUENT ASSEMBLY this twenty- sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION. .... PART III - FUNDAMENTAL RIGHTS Right to Freedom 19. (1) All citizens shall have the right (a) to freedom of speech and expression; (b) to assemble peaceably and without arms; (c) to form associations or unions; (d) to move freely throughout the territory of India; (e) to reside and settle in any part of the territory of India; and ***** (g) to practise any profession, or to carry on any occupation, trade or business.
McLaughlin - Free Speech - Readings for Week 4 for India - Page 1 of 47
(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. (3) Nothing in sub-clause (b) of the said clause 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 sovereignty and integrity of India or public order, reasonable restrictions on the exercise of the right conferred by the said sub-clause. (4) Nothing in sub-clause (c) of the said clause 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 sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause. (5) Nothing in sub-clauses (d) and (e) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe. (6) Nothing in sub-clause (g) of the said clause 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 general public, reasonable 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, (i) the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or (ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise. .... PART V - The Union Powers, Privileges and Immunities of Parliament and its Members 105. (1) Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament.
.... PART VI - The States Powers, Privileges and Immunities of State Legislatures and their Members 194. (1) Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of the Legislature, there shall be freedom of speech in the Legislature of every State. .... PART XVIII - Emergency Provisions 352. (1) If the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or armed rebellion, he may, by Proclamation, make a declaration to that effect in respect of the whole of India or of such part of the territory thereof as may be specified in the Proclamation. Explanation.A Proclamation of Emergency declaring that the security of India or any part of the territory thereof is threatened by war or by external aggression or by armed rebellion may be made before the actual occurrence of war or of any such aggression or rebellion, if the President is satisfied that there is imminent danger thereof. (2) A Proclamation issued under clause (1) may be varied or revoked by a subsequent Proclamation. (3) The President shall not issue a Proclamation under clause (1) or a Proclamation varying such Proclamation unless the decision of the Union Cabinet (that is to say, the Council consisting of the Prime Minister and other Ministers of Cabinet rank appointed under article 75) that such a Proclamation may be issued has been communicated to him in writing. (4) Every Proclamation issued under this article shall be laid before each House of Parliament and shall, except where it is a Proclamation revoking a previous Proclamation, cease to operate at the expiration of one month unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament: .... 358. (1) While a Proclamation of Emergency declaring that the security of India or any part of the territory thereof is threatened by war or by external aggression is in operation, nothing in article 19 shall restrict the power of the State as defined in Part III to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take, but any law so made
shall, to the extent of the incompetency, cease to have effect as soon as the Proclamation ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect: Provided that where such Proclamation of Emergency is in operation only in any part of the territory of India, any such law may be made, or any such executive action may be taken, under this article in relation to or in any State or Union territory in which or in any part of which the Proclamation of Emergency is not in operation, if and in so far as the security of India or any part of the territory thereof is threatened by activities in or in relation to the part of the territory of India in which the Proclamation of Emergency is in operation. .... [The full, 443-page text of the Constitution of India is available in the Week 4 Optional Readings folder in CourseWork.]
B. Penal Code of India .... Section 124A - Sedition. Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine. Explanation 1: The expression disaffection includes disloyalty and all feelings of enmity. Explanation 2: Comments expressing disapprobation of the measures of the government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section. Explanation 3: Comments expressing disapprobation of the administrative or other action of the government, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section. ....
Section 153A. Promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony.-(1) Whoever(a) by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, on grounds 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 between different religious, racials, language or regional groups or castes or communities, or (b) commits any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities, and which disturbs or is likely to disturb the public tranquillity, or (c) organizes any exercise, movement, drill or other similar activity intending that the participants in such activity shall use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, or participates in such activity intending to use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, against any religious, racial, language or regional group or caste or community and such activity for any reason whatsoever causes or is likely to cause fear or alarm or a feeling of insecurity amongst members of such religious, racial, language or regional group or caste or community, shall be punished with imprisonment which may extend to three years, or with fine, or with both. (2) Offence committed in place of worship, etc. -- Whoever commits an offence specified in sub- section (1) in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies, shall be punished with imprisonment which may extend to five years and shall also be liable to fine. .... Section 505 - Statements conducing public mischief. (1) Whoever makes, publishes or circulates any statement, rumour or report,(a) with intent to cause, or which is likely to cause, any officer, soldier, sailor or airman in the Army, Navy or Air Force of India to mutiny or otherwise disregard or fail in his duty as such; or
(b) with intent to cause, or which is likely to cause, fear or alarm to the public, or to any section of the public whereby any person may be induced to commit an offence against the State or against the public tranquility; or (c) with intent to incite, or which is likely to incite, any class or community of persons to commit any offence against any other class or community, shall be punished with imprisonment which may extend to 1[ three years], or with fine, or with both. (2) Statements creating or promoting enmity, hatred or ill- will between classes.-Whoever makes, publishes or circulates any statement or report containing rumour or alarming news with intent to create or promote, or which is likely to create or promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, feelings of enmity, hatred or ill- will between different religious, racial, language or regional groups or castes or communities, shall be punished with imprisonment which may extend to three years, or with fine, or with both. (3) Offence under sub- section (2) committed in place of worship, etc.-Whoever commits an offence specified in sub- section (2) in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies, shall be punished with imprisonment which may extend to five years and shall also be liable to fine. Exception.- It does not amount to an offence, within the meaning of this section, when the person making, publishing or circulating any such statement, rumour or report, has reasonable grounds for believing that such statement, rumour or report is true and makes, publishes or circulates it in good faith and without any such intent as aforesaid.
C. Code of Criminal Procedure of India Section 95. Power to declare certain publications forfeited and to issue search warrants for the same. (1) Where(a) Any newspaper, or book, or (b) Any document, Whenever printed appears to the State Government to contain any matter the publication of which is punishable under section 124A or section 153A or section 153B or section 292 or section 293 or section 295A of the Indian Penal Code (45 of 1860), the
State Government may, by notification, stating the grounds of its opinion, declare every copy of the issue of the news paper containing such matter, and every copy of such book or other document to be forfeited to Government, and thereupon any police officer may, seize the same whenever found in India and any Magistrate may by warrant authorize any police officer not below the rank of sub-inspector to enter upon and search for the same in any premises where any copy of such issue or any Such book or other document may be reasonably suspected to be.
D. The Cinematograph Act, 1952 .... 3. Board of Film Censors (1) For the purpose of sanctioning films for public exhibition, the Central Government may, by notification in the official Gazette, constitute a Board to be called the Board of Film Certification . . . . 4. Examination of films (1) Any person desiring to exhibit any film shall in the prescribed manner make an application to the Board for ac certificate in respect thereof, and the Board may, after examining or having the film examined in the prescribed manner(i) Sanction the film for unrestricted public exhibition .... (ii) Sanction the film for public exhibition restricted to adults, or (iia) sanction the film for public exhibition restricted to members of any profession or any class of persons, having regard to the nature, content and theme of the film; or; (iii) direct the applicant to carry out such excisions or modifications in the film as it thinks necessary before sanctioning the film for public exhibition under any of the foregoing clauses; or (iv) Refuse to sanction the film for public exhibition. .... 5-B. Principles for guidance in certifying films. (1) A film shall not be certified for public exhibition if, in the opinion of the authority competent to grant the certificate, the film or any part of it is against the interests of the sovereignty and integrity of India the security of the State, friendly relations with foreign
States, public order, decency or morality, or involves defamation or contempt of court or is likely to incite the commission of any offence. (2) Subject to the provisions contained in sub-section (1), the Central Government may issue such directions as it may think fit setting out the principles which shall guide the authority competent to grant certificates under this Act in sanctioning films for public exhibition. Notes Censorship in India has full justification in the field of the exhibition of cinema films. It is in the interest of society. The censorship of films including prior restraint is justified under the Constitution. It has almost universally recognised that the treatment of motion pictures must be different from that of other forms of art and expression. Therefore classification of films into categories of "U" films "A" films is a reasonable classification. It is not elements of rape, leprosy, sexual immorality which should attract the censor's scissors but how the theme is handled by the producer. .... E. Comment of Jawaharlal Nehru on Section 124A While addressing the Parliament on the Bill introducing the First Constitution of India Amendment of 1951, Indias first Prime Minister Jawaharlal Nehru stated: Take again Section 124-A of the Indian Penal Code. Now so far as I am concerned that particular Section is highly objectionable and obnoxious and it should have no place both for practical and historical reasons, if you like, in anv body of laws that we might pass. The sooner we get rid of it the better. We might deal with that matter in other ways, in more limited ways, as every other country does but that particular thing, as it is, should have no place, because all of us have had enough experience of it in a variety of ways and apart from the logic of the situation, our urges are against it. Parliamentary Debates of India, Vol. XII, Part II (1951) p. 9621 cited in Para 81, Ram Nandan v State AIR 1959 All 101, 1959 CriLJ 1.
F. Indias first amendment: some history behind Section 19 Reasonable restrictions and unreasonable speech By Lawrence Liang, Sarai Reader 04 (2004) It is always through the curious histories of irony that larger stories reveal themselves. The irony that concerns us is that of an apparently innocuous phrase -- the first amendment. The first amendment in the context of the US Constitution refers to the right of freedom of speech and expression, a right which has been held to be almost absolute in the US. The first amendment in India refers to the first amendment to the Constitution in 1951 which attempted to strengthen state regulation over the freedom of speech and expression by expanding the scope of Article 19 (2). This article narrates the history of the first amendment to the Constitution of India as the history of the first media crisis in post-colonial India, and the response of the state to the crisis. This crisis of media in the early life of the new nation was -- not surprisingly -- seen to be a crisis of the nation, and this configuration of the national crisis has remained the spectral fear that permeates much of media history in post-colonial India. It also provides for us the first instance of what Upendra Baxi terms as constitutionalism as a site of state formative practices. Article 19 (1) (a) in its original form read as follows: All citizens shall have the right to freedom of speech and expression. This fundamental right was, however, limited by Article 19 (2) which said: Nothing in sub-clause (a) of clause 1 shall affect the operation of any existing law insofar as it relates to or prevents the state from making any law relating to libel, slander, defamation, contempt of court or any matter which offend against decency or morality or which undermines the security of the state or tends to overthrow the state. The first amendment to the Constitution was to the proviso to Article 19 (1) (a), namely Article 19 (2), and after the amendment the provision read as follows: Article 19 (2) Nothing in sub-clause (a) of clause 1 shall affect the operation of any existing law insofar as such law imposes reasonable restrictions on the exercise of the right conferred by the sub-clause in the interests of the security of the state, friendly relations with foreign states, public order, decency, or morality or in relation to contempt of court, defamation, or incitement to an offence. The three significant additions brought about by the amendment were: a) addition of the word reasonable before restrictions, b) addition of friendly relations with foreign states as one of the grounds for restricting freedom of speech and expression, and finally c) the addition of public order. Before we begin to understand why this amendment was made, it is important to provide a background to the emergence of the Constitution, and the philosophy that it sought to articulate, and the structural logic it adopted to realise its goals. While India gained independence on August 15, 1947, it was not until two-and-a-half years later -on January 26, 1950 -- that India adopted a formal Constitution. The headline of the Hindustan Times on January 26, 1950, triumphantly announced: Hail our sovereign
republic a day of fulfilment good wishes from near and far Rejoicings all over. The day marked the end of three years of debate and drafting, and the papers editorial went on to say: Today India recovers her soul after centuries of serfdom and resumes her ancient name. The Constitution was therefore seen to be both a document that articulated the hopes and aspirations of the new nation, as well as one which was structurally designed to actualise these aspirations. The greatest challenges for the framers of the Constitution included: How could authority be centralised enough to enhance national unity and to promote economic development without alienating subordinate levels of government and stultifying local initiative? How, while applying the rule of law, would social economic reform be fostered and democratic institutions strengthened in a huge society in which religion and tradition sanctioned inequality and exploitation? How would government achieve these and other national goals -- indeed, how would it govern when the law, the courts and the administration failed to reach so many citizens effectively? According to Austin, the Indian Constitution sought to ensure a structure which would tie in all these concerns in a non-contradictory manner. The core vision of the Constitution may be summarised as having three strands: protecting and enhancing national unity and integrity; establishing the institutions and spirit of democracy; and fostering a social revolution to better the lot of the mass of Indians. The framers believed, and Indians believe today, that the three strands are mutually interdependent and inextricably intertwined. Social revolution could not be sought or gained at the expense of democracy. Nor could India be truly democratic unless the social revolution had established a just society. Without national unity, democracy would be endangered and there could be little progress towards social and economic reform. And without democracy and reform the nation would not hold together. With these three strands, the framers had spun a seamless web. However, the early history of the Constitution of India is precisely about the strains that begin to emerge in this imagination of the seamless web, as the three strands start to contradict each other and work against each other. On the one hand, the project of nation-building in terms of national sovereignty and security begins to conflict with the exercise of democratic rights, especially freedom of speech and expression. On the other, the promotion of social justice by way of land reforms conflicts with the right to property and equality under the Constitution. Was this seamless web then an impossible project right from the beginning? If the seamless web were to be resolved, then could it be done in a harmonious manner, or would it require the prioritisation of one strand over the other? How could you resolve the differing interpretations of different organs of the state, from the legislature to the judiciary, over the interpretation of the Constitution in the case of a conflict between one of the strands? Between the left and right of free speech The first real strain on the seamless fabric of the Constitution emerged in the context of three decisions, one by the Patna High Court and two by the Supreme Court over the
interpretation of what constituted freedom of speech and expression in a democracy and what were the powers of the state to impose restrictions on the exercise of these rights. In the Romesh Thapar v State of Madras case the petitioner was the printer, publisher and editor of an English journal called Crossroads. Crossroads was printed and published in Bombay and was considered a left-leaning journal, very critical of a number of the policies of the Nehruvian government. The Madras government had declared the communist parties illegal. The Government of Madras, in exercise of their powers under Section 9 (1-A) of the Madras Maintenance of Public Order Act, 1949 purported to issue an order No MS 1333 dated March 1, 1950, whereby they imposed a ban on the entry and circulation of the journal in that state. Romesh Thapar approached the Supreme Court of India and alleged that this ban was a violation of his freedom of speech and expression as guaranteed under Article 19 (1) (a). The court stated that the ban would prima facie constitute a clear violation of the fundamental right of freedom of speech and expression unless it could be shown that the restriction was saved by the exceptions provided by Article 19 (2) of the Constitution. The question that therefore arose was whether Section 9 (1-A) of the Madras Maintenance of Public Order Act was saved by Article 19 (2). Section 9 (1-A) authorised the Provincial Government for the purpose of securing the public safety or the maintenance of public order, to prohibit or regulate the entry into or the circulation, sale or distribution in the Province of Madras or any part thereof of any document or class of documents. Given the fact that Article 19 (2) did not contain the phrase public safety or public order, the question was whether it could fall under the language of Article 19 (2) and be considered a law relating to any matter which undermines the security of or tends to overthrow the state. The government argued that the expression public safety in the Act, which is a statute relating to law and order, means the security of the Province, and, therefore, the security of the state within the meaning of Article 19 (2) as the state has been defined in Article 12 as including, among other things, the government and the legislature of each of the erstwhile Provinces. The court however stated that the phrase public safety had a much wider connotation than security of the state, as the former included a number of trivial matters not necessarily as serious as the issue of the security of the state. It concluded that unless a law restricting freedom of speech and expression is directed solely against the undermining of the security of the state or the overthrow of it, such law cannot fall within the reservation under clause (2) of Article 19, although the restrictions which it seeks to impose may have been conceived generally in the interests of public order. It follows that Section 9 (1-A) which authorises imposition of restrictions for the wider purpose of securing public safety or the maintenance of public order falls outside the scope of authorised restrictions under clause (2), and is therefore void and unconstitutional. In the second case, Brij Bhushan v State of Bihar, the chief commissioner of Delhi passed an order under Section 7 (1) (c) of the East Punjab Public Safety Act, 1949 against an English weekly from Delhi called the Organizer. If in the Romesh Thapar case the order was against the far left, in this case the order was against the far right, as the Organizer was the mouthpiece of the RSS. The commissioner had issued the order against the Organizer for printing inflammatory materials with respect to the Partition. As per the order, the editor of the Organizer had to submit for scrutiny, before
publication, all communal matter and news and views about Pakistan including photographs and cartoons other than those derived from official sources or supplied by the news agencies, viz, Press Trust of India, United Press of India and United Press of America. The question arose as to whether this order of pre-censorship could be held to be constitutionally valid. This decision was delivered on the same day as the Romesh Thapar case, and the majority in this case referred to their decision in Thapars case and concurred with the findings in the Thapar case. The key factor in both the decisions was the fact that the phrase public order was not included in Article 19 (2) and that the courts interpreted restrictions on freedom of speech and expression as being legitimate only if they pertained to undermining the security of the state or overthrowing the state. Mere criticism of the government could not be considered as speech which could be restricted for the purposes of Article 19 (2). It is interesting to note that Justice Fazl Ali delivered a dissenting decision in both the cases, and his argument was that a literal construction of the phrase public order would justify restrictions even in the case of trivial offences. However, in the context of the two legislations, it could only relate to serious offences affecting public order. These two decisions of the Supreme Court precipitated in the minds of the government the first major crisis of the nation state. The crisis can be read at various levels; it exposed the inherent tensions between balancing freedom of speech and expression and the promotion of national security and sovereignty. It also posed the question as to who the guardians of the Constitution were. And finally it set in motion a debate which would haunt Indian democracy -- viz the exercise of a democratic right as a threat to the larger abstract ideal of a democratic state. The first amendment: Bringing order to speech Sardar Patel, the home minister, thought that the Crossroads decision knocked the bottom (out) of most of our penal laws for the control and regulation of the press, while Nehru was livid with the interpretation of the court. He immediately wrote to Ambedkar expressing the view that the Constitutions provisions pertaining to law and order and subversive activities needed to be amended. Reflecting the difficulties the government was having with the courts over the fundamental rights, Nehru added that the provision affecting zamindari abolition and nationalisation of road transport also needed to be amended. In February 1951, Nehru formed a cabinet committee to examine the proposed amendment. The home ministry recommended to the cabinet committee that public order and incitement to a crime should be included among the exceptions to the right of freedom of speech. It preferred dropping to overthrow the state in favour of a wider formulation, in the interests of the security of the state. It is to be noted that the original Article 19 (2) did not have the word reasonable before the word restrictions, and the law ministry was of the opinion that the word reasonable as used in Article 19 should be retained and even added to Article 19 (2). The cabinet committee, however, strongly disagreed with Ambedkar and felt that while it was reasonable to retain the word reasonable in the other provisions in Article 19, restrictions on freedom of speech and expression should not be qualified in any manner. This slightly contradictory logic was justified on the ground that they feared the political repercussions of taking away
the protection that reasonable accorded to the other freedoms in the article. But they were so alarmed by the dangers to national security, friendly relations with foreign states, public order, etc, that they felt that possible curbs on free speech did not have to be reasonable. President Rajendra Prasad, on a reading of the Supreme Court decision, did not think that it was necessary to amend the Constitution and he was of the view that amendments should only come if it was found impossible to bring the impugned provisions of law in conformity with the Constitution. The draft amendment without the word reasonable and with the addition of public order was introduced on May 12, 1951. Nehru defended the amendment stating that it fulfilled the need of the hour. Referring to the statement by the judge in the Patna High Court, he stated: It was an extraordinary state of affairs that a high court had held that even murder or like offences can be preached. Critics of the bill included H N Kunzru who argued that this was not an amendment but a repeal of Article 19 (1) (a). Shayama Prasad Mookerjee of the Hindu Mahasabha delivered a scathing critique of the proposed amendment. In response to the various apprehensions articulated, and as a compromise gesture, Nehru suggested adding the word reasonable to qualify the restrictions on freedom of speech and expression. The addition of the word reasonable was a partial defeat for Nehru, as it was clear that given a choice he would have preferred not having any qualifications to the restrictions. In a subsequent letter to T T Krishnamachari, Nehru stated that the reason why he did not like the word reasonable was because the word was an ambiguous one and it would open up the possibility of the court being called to interpret whether a particular act was reasonable or not. The Cabinet accepted the recommendation in order to avoid a split in the Cabinet and ensure a two-thirds majority. On the first of June 1951, Parliament passed the bill by a vote of 228 to 20. Conclusion Over the decades there have been many more amendments to the Constitution, not all of which have great historical significance. However, one thing is certain -- every period of conflict in the history of India can almost be mapped alongside a history of moves to amend the Constitution, the constitutional history during the Emergency being a classic case. The first amendment, however, retains a significant space in this history, not merely because it was the first amendment but because in many ways it also signalled the kinds of battles that would take place between the project of nation-building and the sphere of the media. It marked the rather premature end of the vision of a seamless web, with the promotion of national security and sovereignty being prioritised over the promotion of democratic institutions. As with any project of state imagination, the impact of the first amendment is also fraught with contradictions and internal conflicts. While introducing the discourse of public order into constitutional restrictions on freedom of speech and expression, it also
introduced the idea of reasonable restriction, and, as Nehru rightly predicted, it proved to be the basis for future conflicts over the media, the Constitution and state formative practices. The contradictions that arose between the three strands of the seamless web of the Constitution were seen as the disintegration of the whole, rather than as the inevitable process through which fragments work their way into monumentalist imaginations. It is also perhaps well worth looking at the crisis that precipitated the first amendment to understand our contemporary situation. In 1950, you had a situation where Nehru had to contend with speech and expression that were ideologically opposed to his liberal values, from that of the far left to that of the far right. Nehrus response was a classical case of deferring of an exercise of a democratic right, or democratic practice in favour of the larger interest or abstract norm of a democratic state. Having assumed the greater common good, he could then determine what was desirable and undesirable speech, and proceed to act with a democratic conscience. Rather than understanding the media as a perpetual site of politics and contestation over the form of the nation over what constitutes the public sphere, the media was seen to be an instrument/medium for the promotion of an assumed public interest. This perhaps also speaks to some contemporary debates where progressive intellectuals, media practitioners, etc, demand greater regulation against the hate speech of the right. We need to be a little cautious in our responses to forms of speech that offend our liberal sentiments. Very often the assumption of desirable forms of speech presumes a pre-tailored relationship between media and the properly constituted public sphere (much like the imagination of the seamless web), and a plea to the state to rule out undesirable forms of speech abandons the site of politics and converts it into a site of regulation that will merely heighten the crisis rather than resolve it. [ Article online at: http://infochangeindia.org/agenda/the-limits-of-freedom/reasonablerestrictions-and-unreasonable-speech.html ]
G. Sedition: Kedar Nath Singh vs. State of Bihar Kedar Nath Singh vs State Of Bihar (20 January, 1962) 1962 AIR 955, 1962 SCR Supl. (2) 769 SINHA, C. J. - In these appeals the main question in controversy is whether ss. 124A and 505 of the Indian Penal Code have become void in view of the provisions of Art. 19 (1)(a) of the Constitution. The constitutionality of the provisions of s. 124A, which was mainly canvassed before us, is common to all the appeals, the facts of which may shortly be stated separately. [The decision was a consolidated ruling on appeals in four cases. In the case of Kedar Nath Singh, the defendant was accused of saying, at a public meeting:
(a) To-day the dogs of the C. I. D are loitering round Barauni. Many official dogs are sitting even in this meeting. The people of India drove out the Britishers from this country and elected these Congress goondas to the gaddi and seated them on it. To-day these Congress goondas are sitting on the gaddi due to mistake of the people. When we drove out the Britishers, we shall strike and turn out these Congress goondas as well. These official dogs will also be liquidated along with these Congress goondas. These Congress goondas are banking upon the American dollars and imposing various kinds of taxes on the people to-day. The blood of our brothers- mazdoors and Kishanas is being sucked. The capitalists and the zamindars of this country help these Congress goondas. These zamindars and capitalists will also have to be brought before the peoples court along with these Congress goondas. (c) The Forward Communist Party does not believe in the doctrine of vote itself. The party had always been believing in revolution and does so even at present. We believe in that revolution, which will come and in the flames of which the capitalists, zamindars and the Congress leaders of India, who have made it their profession to loot the country, will be reduced to ashes and on their ashes will be established a Government of the poor and the downtrodden people of India. .... He also denounced a local official for cooperating with the Congress Party. Singh was convicted of violating Section 124A and 505(b) of the Indian Penal Code; his conviction was upheld by the High Court of the state of Bihar and he obtained leave to appeal to the Supreme Court on the ground that those sections were contrary to Article 19(1)(a) of the Constitution of India.] .... In this case, we are directly concerned with the question how for the offence, as defined in s. 124A of the Indian Penal Code, is consistent with the fundamental right guaranteed by Art. 19 (1) (a) of the Constitution. . . . It has not been questioned before us that the fundamental right guaranteed by Art. 19(1) (a) of the freedom of speech and expression is not an absolute right. It is common ground that the right is subject to such reasonable restrictions as would come within the purview of cl. (2), which comprises (a) security of the State, (b) friendly relations with foreign States, (c) public order, (d) decency or morality, etc. With reference to the constitutionality of s. 124A or s. 505 of the Indian Penal Code, as to how far they are consistent with the requirements of cl. (2) of Art. 19 with particular reference to security of the State and public order, the section, it must be noted, penalises any spoken or written words or signs or visible representations, etc., which have the effect of bringing, or which attempt to bring into hatred or contempt or excites or attempts to excite disaffection towards the Government established by law" has to be distinguished from the person's for the time being engaged in carrying on the administration. "Government established by law" is the visible symbol of the State. The very existence of the State will be in jeopardy if the Government established by law is subverted. Hence the
continued existence of the Government established by law is an essential condition of the stability of the State. That is why 'sedition', as the offence in s. 124A has been characterised, comes under Chapter VI relating to offences against the State. Hence any acts within the meaning of s. 124A which have the effect of subverting the Government by bringing that Government into contempt or hatred, or creating disaffection against it, would be within the penal statute because the feeling of disloyalty to the Government established by law or enmity to it imports the idea of tendency to public disorder by the use of actual violence or incitement to violence. In other words, any written or spoken words, etc., which have implicit in them the idea of subverting Government by violent means, which are compendiously included in the term 'revolution', have been made penal by the section in question. But the section has taken care to indicate clearly that strong words used to express disapprobation of the measures of Government with a view to their improvement or alteration by lawful means would not come within the section. Similarly, comments, however strongly worded, expressing disapprobation of actions of the Government, without exciting those feelings which generate the inclination to cause public disorder by acts of violence, would not be penal. In other words, disloyalty to Government established by law is not the same thing as commenting in strong terms upon the measures or acts of Government, or its agencies, so as to ameliorate the condition of the people or to secure the cancellation or alteration of those acts or measures by lawful means, that is to say, without exciting those feelings of enmity and disloyalty which imply excitement to public disorder or the use of violence. It has not been contended before us that if a speech or a writing excites people to violence or have the tendency to create public disorder, it would not come within the definition of 'sedition'. What has been contended is that a person who makes a very strong speech or uses very vigorous words in a writing directed to a very strong criticism of measures of Government or acts of public officials, might also come within the ambit of the penal section. But, in our opinion, such words written or spoken would be outside the scope of the section. In this connection, it is pertinent to observe that the security of the State, which depends upon the maintenance of law and order is the very basic consideration upon which legislation, with a view to punishing offences against the State, is undertaken. Such a legislation has, on the one hand, fully to protect and guarantee the freedom of speech and expression, which is the sine quo non of a democratic form of Government that our Constitution has established. This Court, as the custodian and guarantor of the fundamental rights of the citizens, has the duty cast upon it of striking down any law which unduly restricts the freedom of speech and expression with which we are concerned in this case. But the freedom has to be guarded again becoming a licence for vilification and condemnation of the Government established by law, in words which incite violence or have the tendency to create public disorder. A citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comment, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder. The Court, has, therefore, the duty cast upon it of drawing a clear line of demarcation between the ambit of a citizen's fundamental right guaranteed under Art. 19(1)(a) of the Constitution and the power of the legislature to impose reasonable
restrictions on that guaranteed right in the interest of, inter alia, security of the State and public order. We have, therefore, to determine how far the ss. 124A and 505 of the Indian Penal Code could be said to be within the justifiable limits of legislation. .... If we accept the interpretation . . . . as to the gist of criminality in an alleged crime of sedition, namely, incitement to disorder or tendency or likelihood of public disorder or reasonable apprehension thereof, the section may lie within the ambit of permissible legislative restrictions on the fundamental right of freedom of speech and expression. There can be no doubt that apart from the provisions of (2) of Art. 19, ss. 124A and 505 are clearly violative of Art. 19(1)(a) of the Constitution. But then we have to see how far the saving clause, namely, cl.(2) of Art. 19 protects the sections aforesaid. Now, as already pointed out, in terms of the amended cl. (2), quoted above, the expression "in the interest of...public order" are words of great amplitude and are much more comprehensive than the expression "for the maintenance of", as observed by this Court in the case of Virendra v. The State of Punjab. Any law which is enacted in the interest of public order may be saved from the vice of constitutional invalidity. If, on the other hand, we were to hold that even without any tendency to disorder or intention to create disturbance of law and order, by the use of words written or spoken which merely create disaffection or feelings of enmity against the Government, the offence of sedition is complete, then such an interpretation of the sections would make them unconstitutional in view of Art. 19(1)(a) read with cl. (2). It is well settled that if certain provisions of law construed in one way would make them consistent with the Constitution, and another interpretation would render them unconstitutional, the Court would lean in favour of the former construction. The provisions of the sections read as a whole, along with the explanations, make it reasonably clear that the sections aim at rendering penal only such activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence. As already pointed out, the explanations appended to the main body of the section make it clear that criticism of public measures or comment on Government action, however strongly worded, would be within reasonable limits and would be consistent with the fundamental right of freedom of speech and expression. It is only when the words, written or spoken, etc. which have the pernicious tendency or intention of creating public disorder or disturbance of law and order that the law steps in to prevent such activities in the interest of public order. So construed, the section, in our opinion, strikes the correct balance between individual fundamental rights and the interest of public order. It is also well settled that in interpreting an enactment the Court should have regard not merely to the literal meaning of the words used, but also take into consideration the antecedent history of the legislation, its purpose and the mischief it seeks to suppress (vide (1)). The Bengal Immunity Company Limited v. The State of Bihar (1) and (2) R.M.D. Chamarbaugwalla v. The Union of India (2). Viewed in that light, we have no hesitation in so construing the provisions of the sections impugned in these cases as to limit their application to acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence. ....
It is only necessary to add a few observations with respect to the constitutionality of s. 505 of the Indian Penal Code. With reference to each of the three clauses of the section, it will be found that the gravamen of the offence is making, publishing or circulating any statement, rumour or report (a) with intent to cause or which is likely to cause any member of the Army, Navy or Air Force to mutiny or otherwise disregard or fail in his duty as such; or (b) to cause fear or alarm to the public or a section of the public which may induce the commission of an offence against the State or against public tranquillity; or (c) to incite or which is likely to incite one class or community of persons to commit an offence against any other class or community. It is manifest that each one of the constituent elements of the offence under s. 505 has reference to, and a direct effect on, the security of the State or public order. Hence, these provisions would not exceed the bounds of reasonable restrictions on the right of freedom of speech and expression. It is clear, therefore, that cl. (2) of Art. 19 clearly save the section from the vice of unconstitutionality. It has not been contended before us on behalf of the appellant in C.A. 169 of 1957 or on behalf of the respondents in the other appeals (No. 124- 126 of 1958) that the words used by them did not come within the purview of the definition of sedition as interpreted by us. No arguments were advanced before us to show that even on the interpretation given by us their cases did not come within the mischief of the one or the other section, as the case may be. It follows, therefore, that the Criminal Appeal 169 of 1957 has to be dismissed. Criminal Appeals 124-126 of 1958 will be remanded to the High Court to pass such order as it thinks fit and proper in the light of the interpretation given by us.
H. Sedition: In Re: Arundhati Roy 2002 AIR SC1375 IN THE SUPREME COURT OF INDIA Decided On: 06.03.2002 In Re: Arundhati Roy Sethi, J. 1. 'Rule of Law' is the basic rule of governance of any civilised democratic policy. For achieving the establishment of the rule of law, the Constitution has assigned the special task to the judiciary in the country. It is only through the courts that the rule of law unfolds its contents and establishes its concept. For the judiciary to perform its duties and functions effectively and true to the spirit with which it is sacredly entrusted, the dignity and authority of the courts have to be respected and protected at all costs. After more than half a century of independence, the judiciary in the country is under a constant threat and being endangered from within and without. The need of the time is of restoring confidence amongst the people for the independence of judiciary. Its
impartiality and the glory of law has to be maintained, protected and strengthened. The confidence in the courts of justice, which the people possess, cannot, in any way, be allowed to be tarnished, diminished or wiped out by contumacious behavior of any person. The only weapon of protecting itself from the onslaught to the institution is the long hand of contempt of court left in the armoury of judicial repository which, when needed, can reach any neck howsoever high or far away it may be. 5. The facts of the case, which are not seriously disputed, are that an organisation, namely, Narmada Bachao Andolan filed a petition under Article 32 of the Constitution of India being Writ Petition No. 319 of 1994 in this Court. The petitioner was a movement or andolan, whose leaders and members were concerned about the alleged adverse environmental impact of the construction of the Sardar Sarovar Reservoir Dam in Gujarat and the far-reaching and tragic consequences of the displacement of hundreds of thousands of people from their ancestral homes that would result from the submerging of vast extents of land, to make up the reservoir. During the pendency of the writ petition this Court passed various order. By one of the order, the Court permitted to increase the height of the dam to RL 85 meters which was resented to and protested by the writ petitioners and others including the respondent herein. The respondent Arundhati Roy, who is not a party to the writ proceedings, published an article entitled "The Greater Common Good" which was published in Outlook Magazine and in some portion of a book written by her. 8. [O]n 15th October, 1999 the respondents led a huge crowd and held a Dharna in front of this Court and shouted abusive slogans against the court including slogans ascribing lack of integrity and dishonesty to this institution. It was alleged that when the petitioners therein protested, they were attacked and assaulted by the respondents. In the evening on the same day, the respondents are stated to have attacked, abused and assaulted the petitioners. In her affidavit [Arundhati Roy], amongst other averments, had stated: "On the grounds the judges of the Supreme Court were too busy, the Chief Justice of India refused to allow a sitting judge to head the judicial enquiry into the Tehelka scandal [a major political corruption scandal in India at the time], even though it involves matters of national security and corruption in the highest places. Yet when it comes to an absurd, despicable, entirely unsubstantiated petition in which all the three respondents happen to be people who have publicly -though in markedly different ways - questioned the policies of the government and severely criticized a recent judgment of the Supreme Court, the Court displays a disturbing willingness to issue notice.
It indicates a disquieting inclination on the part of the court to silence criticism and muzzle dissent, to harass and intimidate those who disagree with it. By entertaining a petition based on an FIR that even a local police station does not see fit to act upon, the Supreme Court is doing its own reputation and credibility considerable harm." (EMPHASIS SUPPLIED) .... She had accused courts of harassing her as if the judiciary were carrying out a personal vendetta against her. She had brought in matters which were not only not pertinent to the issues to be decided but has drawn uninformed comparisons to make statements about this Court which do not appear to be protected by law relating to fair criticism. It was stated by her in the court that she stood by the comments made by her even if the same are contumacious. .... 36. As already held, fair criticism of the conduct of a judge, the institution of the judiciary and its functioning may not amount to contempt if it is made in good faith and in public interest. To ascertain the good faith and the public interest, the courts have to see all the surrounding circumstances including the person responsible for comments, his knowledge in the field regarding which the comments are made and the intended purpose sought to be achieved. All citizens cannot be permitted to comment upon the conduct of the courts in the name of fair criticism which, if not checked, would destroy the institution itself. Litigant losing in the Court would be the first to impute motives to the judges and the institution in the name of fair criticism which cannot be allowed for preserving the public faith in an important pillar of democratic set up, i.e., judiciary. .... 37. In the instant case the respondent has not claimed to be possessing any special knowledge of law and the working of the institution of judiciary. She has only claimed to be a writer of repute. She has submitted that "as an ordinary citizen I cannot and could not have expected to make a distinction between the Registry and the Court". It is also not denied that the respondent was directly or indirectly associated with the Narmada Bachao Andolan and was, therefore, interested in the result of the litigation. She has not claimed to have made any study regarding the working of this Court or judiciary in the country and claims to have made the offending imputations in her proclaimed right of freedom of speech and expression as a writer. .... 40. In the offending portion of her affidavit, the respondent has accused the court of proceeding with absurd, despicable and entirely unsubstantiated petition which, according to her, amounted to the court displaying a disturbing willingness to issue notice. She has further attributed motives to the court of silencing criticism and muzzling dissent by harassing and intimidating those who disagree with it. Her contempt for the court is evident from the assertion "by entertaining a petition based on an FIR that even a local police station does not see fit to act upon, the Supreme Court is doing its own reputation and credibility consideration harm". In the affidavit filed in these proceedings,
the respondent has reiterated what she has stated in her earlier affidavit and has not shown any repentance. She wanted to become a champion to the cause of the writers by asserting that persons like her can allege anything they desire and accuse any person or institution without any circumspection , limitation or restraint. Such an attitude shows her persistent and consistent attempt to malign the institution of the judiciary found to be most important pillar in the Indian democratic set up. This is no defence to say that as no actual damage has been done to the judiciary, the proceedings be dropped. The well-known proposition of law is that it punishes the archer as soon as the arrow is shot no matter if it misses to hit the target. The respondent is proved to have shot the arrow, intended to damage the institution of the judiciary and thereby weaken the faith of the public in general and if such an attempt is not prevented, disastrous consequences are likely to follow resulting in the destruction of rule of law, the expected norm of any civilised society. .... 42. As the respondent has not shown any repentance or regret or remorse, no lenient view should be taken in the matter. However, showing the magnanimity of law by keeping in mind that the respondent is a woman, and hoping that better sense and wisdom shall dawn upon the respondent in the future to serve the cause of art and literature by her creative skill and imagination, we feel that the ends of justice would be met if she is sentenced to symbolic imprisonment besides paying a fine of Rs. 2000/-. 43. While convicting the respondent for the contempt of the Court, we sentence her to simple imprisonment for one day and to pay a fine of Rs. 2,000/-. In case of default in the payment of fine, the respondent shall undergo simple imprisonment for three months.
I. Criticism of Government: Court on its Own Motion vs. M.K. Tayal and Others. 2007(98)DRJ41 IN THE HIGH COURT OF DELHI Contempt Cas. (Criminal) No. 7 of 2007 Decided On: 11.09.2007 Court on its Own Motion Vs. M.K. Tayal and Others. R.S. Sodhi, J. 1. On 21.5.2007, a Senior Advocate of this Court, Sh. R.K. Anand, placed before us a copy of the Newspaper "Mid Day" dated 18.5.2007 (Friday) in which he alleged that a scandalous article maligning the former Chief Justice of India and tending to lower the image of the judiciary in the eyes of common man has been published. The Newspaper was placed before us and we, on going through the news item, were prima facie of the view that the publication did tend to lower the image of the judiciary in the eyes of
public. Consequently, we issued show cause notice to Sh. M.K. Tayal, Editor, Mid Day, Mr. Vitusha Oberoi and Mr. S.K. Akhtar, its Printer and Publisher. 2. On 25.5.2007, Sh. R.K. Anand, learned Senior Advocate filed yet another copy of the Newspaper "Mid Day" dated 19.5.2007 which carried a cartoon by Mr. Md. Irfaan Khan, Cartoonist. The cartoon depicted the former Chief Justice of India in his robes holding a bag with currency flowing out. It also depicted a man sitting on the side walk saying "Help! The mall is in your court" which we thought was also aimed at lowering the image of the judiciary. Consequently, we issued show cause notice to Mr. Md. Irfaan Khan also. 3. Upon notice being served, the contemnors have filed their affidavits in which they have taken up a defense that sons of the former Chief Justice of India have benefited by orders made by the Supreme Court and that they were operating their businesses from the official residence of Justice Y.K. Sabharwal. They claimed that whatever has been stated in the publications is the truth which, according to them, is a permissible defense. 4. We have carefully gone through the affidavits filed by the contemnors and have heard extensive arguments advanced by Mr. Shanti Bhushan, learned Senior Advocate. It is contended before us that the attack in the Press is focused on the Ex-Chief Justice of India at a time when he has ceased to be in office and Therefore, cannot be termed as denigrating the authority of the Supreme Court. It is contended that propriety demanded that the Chief Justice of India ought not to have been on the Bench which passed orders concerning sealing of properties where non-conforming activities were going on and further that it is the duty of a journalist to expose the corruption in the judiciary at the highest level. He also contends that the material on record is ample proof of the fact that the sons of the former Chief Justice of India were beneficiaries of sealing of commercial premises. Learned Counsel further contends that he is not challenging the correctness of the order of the Supreme Court but the order of former Chief Justice of India, who was presiding member of the Bench and who by his impropriety passed orders sealing premises in which commercial activities were being conducted in Delhi in order to benefit his sons' business. 5. We have carefully gone through the articles published as also the cartoon. We find the manner in which the entire incidence has been projected appears as if the Supreme Court permitted itself to be led into fulfilling an ulterior motive of one of its members. The nature of the revelations and the context in which they appear, though purporting to single out former Chief Justice of India, tarnishes the image of the Supreme Court. It tends to erode the confidence of the general public in the institution itself. The Supreme Court sits in divisions and every order is of a Bench. By imputing motive to its presiding member automatically sends a signal that the other members were dummies or were party to fulfilll the ulterior design. This we find most disturbing. There is sufficient case law on the subject and we need hardly add any further material to it. Suffice it to say, the Supreme Court in Haridas Das v. Smt. Usha Rani Banik and Ors. Civil Appeal No. 7948 of 2004, has clearly laid down the 'Laxman rekha' which we feel the publications have crossed. The publications in the garb of scandalizing a retired Chief Justice of India
have, in fact, attacked the very institution which, according to us, is nothing short of contempt. We, Therefore, hold Mr. M.K. Tayal, Editor Mid Day, Mr. S.K. Akhtar, Publisher, Mrs. Vitusha Oberoi, Resident Editor and Mr. Md. Irfaan Khan, the Cartoonist, guilty of contempt of court. The matter to be listed on September 21, 2007, when the contemnors shall be present to be heard on the question of sentence. NOTE ON AFTERMATH: Journalists get 4-month jail for court contempt Abhinav Garg, TNN Sep 22, 2007, 01.05am IST NEW DELHI: The Delhi high court on Friday sentenced three journalists and a publisher to four months imprisonment for carrying allegations against former Chief Justice of India Y K Sabharwal in the Mid Day daily. The journalists stuck to their stand that the law allowed truth as a defence against contempt. A Bench comprising Justice R S Sodhi and Justice B N Chaturvedi said: "In view of the fact that they neither seek an apology nor do they opt to argue (on the quantum of sentence) and reiterate their stated stand which has tarnished the image of the highest court, a four-month imprisonment would serve the ends of justice." J. Hate Speech: R.V. Bhasin vs. State of Maharashtra 2010 (112) Bom. L. R. 154 IN THE HIGH COURT OF BOMBAY Criminal Application No. 1421 of 2007 Decided On: 06.01.2010 R.V. Bhasin Vs. State of Maharashtra and Marine Drive Police Station Indian Union Muslim League and Others Ranjana Desai, J. .... 2. The applicant, who is an advocate, is the author of a book entitled "Islam - A concept of Political World Invasion By Muslims" ("the book"). The book was published in 2003 .... 3. In exercise of powers conferred by Sub-section (1) of Section 95 of the Code of Criminal Procedure, 1973 ("the Code") the Government of Maharashtra issued a notification dated 9/3/2007 ("the Notification") and declared that every copy of the book as well as of the translation thereof shall be banned and forfeited to Government. The Notification is as follows: NOTIFICATION General Administration Department
Mantralaya, Mumbai - 400 032 Dated the 9th March, 2007 Code of Criminal Procedure, 1973. No. PUB2007-C.N.15/07-XXXIV WHEREAS the national Publications having its office at 76, Bajaj Bhavan, Nariman Point, Mumbai - 400 021, has published a Book, in the year 2003, captioned as "ISLAM - A Concept of Political World Invasion by Muslims" written by one R.V. Basin, Advocate Supreme Court of India, containing 166 pages and translated in Hindi by Dr. Anil Mishra captioned as "ISLAM RAJNAITIK VISHWA PAR MUSLIM AKRAMAN KI AVADHARANA" containing 180 pages (hereinafter referred as the said Book" and "the translated Book" respectively). AND WHEREAS the author of the said book (and in the relevant translation thereof as "the translated Book") has made several derogatory and false statements about Muslim religion, Muslim community, Mohammed Paigambar and Muslim priests, as specified in Schedule appended hereto. AND WHEREAS the author of the said Book (and in the relevant translation thereof as "the translated Book") has made derogatory and false statements on page number 4 referring to Muslim religious Book Quaran that, Muslims should kill Kafirs (Non - Muslims) and if they do so it is stated on page number 4 that, they would be given 72 beautiful girls and 72 handsome youth; similarly, the author has stated on page number 5 further that, where-ever Muslims are ruling other religious people be killed and on page number 10 thereof it is stated that, Muslims do not consider and accept other religious people equal to them and that where-ever Muslim population is less they are increasing it in an attempt to make themselves equal with others, therefore it is said that "Hum Panch, Hamaare Pachhis". .... AND WHEREAS for the reasons aforesaid the Government of Maharashtra is of the opinion that the circulation and sale of the said Book and relevant translation thereof as the translated Book contain abusive language bringing meanness to Jihaad, Quaran, Mohammed Paigambar, Indian Muslims and conversion, as well as derogatory and false references therein is likely to create hatred against Muslims in the minds of non-Muslims thereby promoting enmity between classes so also the said Book and relevant translation thereof as the translated Book outrages the fillings of a Muslim section of society and maliciously insulting the religion and religious beliefs of Muslims and likely to lead to acts of violence and disharmony and that any further circulation and sale of the said Book and relevant translation thereof as a translated Book is likely to result in breach of peace and public tranquility between classes and groups, as such the said Book and relevant translated Book should be forfeited;
NOW, THEREFORE, in exercise of the powers conferred by Sub-section (1) of Section 95 of the Code of Criminal Procedure, 1973 (2 of 1974), in its application to the State of Maharashtra, the Government of Maharashtra hereby declares that every copy of the said Book "ISLAM - A Concept of Political World Invasion by Muslims" as well as the relevant translation thereof as the translated Book "ISLAM RAJNAITIK VISHWA PAR MUSLIM AKRAMAN KI AVADHARANA" shall be banned and forfeited to the Government. .... The applicant has in this application, inter alia, challenged the Notification. .... 47. We shall now turn to the gravamen of Counsel's argument that the applicant is deprived of his fundamental right of freedom of speech and expression guaranteed to him under the Constitution. 48. Freedom of speech and expression is a cherished right of every citizen. Every person has a right to express what he/she feels about any issue which according to him/ her needs to be debated upon or brought before the public eye. Freedom of expression would also include freedom to criticize. Indian democracy has survived because of the protection its Constitution has granted to its people to express freely their views on affairs of the State and on other issues concerning religion, culture, civilization, literature and personalities, which are beyond the mundane affairs of the State. This list is merely illustrative and not exhaustive. Fearlessness is the hallmark of a vibrant, democratic and secular society like ours. We are an amazing mix of people coming from different social and cultural background, people professing different religions and people who speak different languages. While we have a right to criticize each other, the criticism has to be healthy and not malicious. It must not lead to creating ill-will and hatred between different communities. Freedom of expression must be well utilized, it must lead to sensible dialogue but not senseless destruction of lives and property and breach of public order. The Constitution, therefore, while granting freedom of speech and expression under Article 19(1)(a) places reasonable restriction thereon. Under Article 19 (2), while protecting a citizen's fundamental right of freedom of speech and expression, the courts have always tried to strike a balance between this right and measure of restriction to be placed on it to prevent hurting religious and other sensibilities of people. It is a delicate and difficult task. We have only to revisit certain paragraphs of the judgments cited before us to ascertain how the balance has to be struck. .... 54. In our constitutional set up, everything is open to criticism and religion is no exception to it. Every religion, whether it is Islam, Hinduism, Christianity or any other religion, can be criticized. Freedom of speech and expression covers criticism of a religion and no person can be sensitive about it. Healthy criticism provokes thought, encourages debate and helps us to evolve. Counsel submitted that the author has through the book placed his perception of Islam before people. He submitted that the book brings the lesser known aspects of Islam before the public eye. He submitted that
the book gives correct insight into Islam, but assuming the author is wrong, he has a right to be wrong. 55. We do not want to join issue with Counsel on this aspect. The author has undoubtedly a right to be wrong. The author can say what he feels is right and if it is wrong, he cannot be punished for it. But what needs to be seen is whether the author has done this exercise bona fide with a real desire to explore the tenets of Islam and give his exposition thereof. 56. An author has a right to put forth a perspective that a particular religion is not secular. This is a view point which one has a right to assert. However, if a book reeks of hatred for a particular community, if it contains rabid material and there appears to be no sincere handling of the subject but a malafide exercise to stir communal passions one must pause and consider whether it is in the interest of general public to allow its circulation. In such a situation restriction imposed on the freedom of speech and expression by the Constitution must spring into action. It is necessary once again to remind ourselves that in Baragur, the Supreme Court has made it clear that no one has a right to impinge on the feelings of others on the premise that his right to freedom of speech remains unrestricted and unfettered and that it cannot be ignored 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. .... 78. We do not want to embark upon the difficult task of interpreting the Quaran. But anyone who ventures to do so must read what Muhammad Asad has said in his forward to his book "The Message of the Al-Quran". .... 79. It appears to us therefore that after reading the Quaran as a whole, its Ayats [proofs, evidences, verses, lessons, revelations] have to be correlated. Some of the Ayats are indeed strongly worded and appear to have been directed against idol worshipers. Having read the commentaries we feel that perhaps it is possible to urge that they relate to an era when the Muslims were attacked by the Pagans. The reference to the battle of Badr, to the battle of Uhud, the breach of the treaty of Hudaybiyah, the incidents at Mecca and Medina indicate this. The call for war, the punishment to be imposed on nonbelievers, the violence can be perhaps related to those troubled times. We have reproduced several Ayats where importance of peace, tolerance, brotherhood, equal treatment to women aversion to forceful conversions is reflected. On the author's view that spread of Islam was due to the fear of sword, we have been taken through extract from books of several authors, which state that Islam's spread in Indonesia, Malaysia, East coast of Africa was peaceful. It would be appropriate to name a few. "Islam at the Crossroads" by De Lacy Oheary Ricklefs, "A History of Modern Indonesia" 2nd Edition London : McMillan, Van Nieu Wenhuize C.A.O. (1958) Aspects of Islam in Post-Colonial Indonesia. ....
81. . . . . We have no doubt that the author must be allowed to criticize Islam. Pure and simple criticism without any intention to hurt religious feelings of a particular community must be allowed. But, here the criticism is not academic. The author has gone on to pass insulting comments on Muslims with particular reference to Indian Muslims. That is most objectionable. We shall now turn to those comments. .... 83. Whatever be the author's perception of Islam, to conclude that all Muslims want to eliminate all non-Muslims; that they want to spread Islam all over the world by violence is highly objectionable. The author has gone a step further and said that Indian Muslims have given a call for Mughalstan from out of India and that all Indian Muslims believe that Hindus and Muslims are distinctly two different nations politically, socially, culturally and religiously. The author has stated that the Indian Muslims have recommended a plan of action which inter alia includes converting every Hindu to Islam, attacking Hindu temples, abducting Hindu women, thwarting family planning programme, etc. It is these statements which are likely to incite people to violence and which may promote violence, enmity or hatred. The author has referred to inflammatory statements of Osama Bin Laden. He has made reference to speech made by Sayeed Abdul Bukhari in 1986 that Secularism has no place in Islam. He has made reference to speech made by General Zia-ul- Haq that Islam can never be secular. He has referred to extract from Dr. Ali Mohd. Naqvis book "Islam and Nationalism" to the effect that nationalism is incompatible with Islam. He has made reference to similar extracts from books written by Sayeed Abdullah Naudoode and Sayeed Ahmed Hussain. He has quoted extract from the book "Islam in Secular India" by Dr. Mushir-ul-Haq where he has said that leaving aside a small section of Indian Muslims, the majority is by no means secular and main reason for their resistance of secularism appears to be their conception of Islam. These may be views of individuals on which we do not want to comment. They are not the subject matter of this application. But, we feel that the author cannot comment on all Muslims, and the Indian Muslims in particular and paint them as villains. The author has said that the Muslims in fact considered even conspiring against the soil of India, forgetting the role played by several Muslim leaders in the freedom struggle of India as followers of Mahatma Gandhi. It cannot be denied that misguided Muslim youth have indulged in acts of terrorism. But misguided youth are there in other religions and there are instances where they have indulged in acts of violence. Because of such instances the entire Muslim community cannot be branded as terrorists. The author could not have painted the entire Muslim community with the same brush. The author has insulted a large section of Indian Muslims who are part of the mainstream of the nation's life and who are contributing to India's development in all fields. .... 89. The translation of the book is available. The possibility of its falling in the hands of an inflammable mob cannot be ruled out. The way this sensitive topic is handled by the author, it is likely to arouse the emotions or sensibilities of even strong minded people. We have held that criticism of Islam is permissible like criticism of any other religion and the book cannot be banned on that ground. But we have also held that the criticism of Islam is not academic. The author has gone on to pass insulting comments on Islam,
Muslim community with particular reference to Indian Muslims. It is an aggravated form of criticism made with a malicious and deliberate intention to outrage the religious feelings of Muslims. The contents are so interwoven that it is not possible to excise certain portions and permit circulation of the book. We may also mention that at one point of time, when this was discussed, the author declined to excise the book. In view of the above, in our considered opinion the State Government is justified in imposing a ban on the circulation of the book. The application is therefore dismissed.
K. Religious Insult: The Da Vinci Code 2006(4) CTC 193, 2006-3-LW728, (2006) 3MLJ 289 IN THE HIGH COURT OF MADRAS Writ Petition No. 18230 of 2006 Decided On: 07.07.2006 Sony Pictures Releasing of India Ltd. through Appu Kumar Singh, Authorised Signatory and A.V. Mohan, Proprietor, Anuroshni Films Vs. The State of Tamil Nadu, through its Secretary, Home Department, The Commissioner of Police, Union of India (UOI), Ministry of Information and Broadcasting, through Secretary and Central Board of Film Certification, through its Chairperson Prabha Sridevan, J. 1. We may search in vain, for a more haunting tragic hero than Satan in Milton's "Paradise Lost", who rails at God, What though the field be lost? All is not lost, the unconquerable will, And study of revenge, immortal hate, And courage never to submit or yield And what is else not to be overcome? Milton's voice was not stifled or choked for making Satan a heroic figure, no, not even for two months. In fact, in "Areopagitica", the blind poet champions free speech: Give me the liberty to know, to utter and to argue freely according to conscience above all liberties. . . . Though all the winds of doctrine were let loose to lay upon the earth, so Truth be in the field, we do injuriously by licensing and prohibiting to misdoubt her strength. Let her and Falsehood grapple; who ever knew Truth put to the worse, in a free and open encounter.
The exhibition of the film, "The Da Vinci Code", exhibited and distributed by the petitioners, which is admittedly a work of fiction, was suspended for two months by the second respondent on the ground that various sections of the Christian community have expressed their strong resentment against the alleged objectionable content of this film, which is against the Christian tenets and they are likely to resort to various forms of agitation where the film is to be screened, resulting in communal tension and acts of violence, which will result in breach of peace. The petitoners are aggrieved, they say that their liberty has been unjustly prohibited by the State, and they are before this Court. 2. In 2003, the novel "The Da Vinci Code" written by Dan Brown was published. It is a work of fiction woven around an alternate interpretation of certain aspects of Christian belief and inter alia, proposes that Holy Grail is not an object, but it is actually Mary Magdelene who carried the bloodline of Christ; that this was suppressed by the Catholic Church; that there was a child born to Jesus Christ and Mary Magdelene after she married Jesus Christ; and that Leonardo Da Vinci was aware of this secret. In the book, a Harvard Symbologist Robert Langdon and a French cryptologist Sophie Neveu set out to unravel the mystery of the Holy Grail. This novel, based on which the film has been made, had been a best seller and had been sold worldwide in 44 languages. In Kerala, which has a sizeable Christian population, the book has had a very good sale and it has also been translated in Malayalam. The book has not been banned in India. The film was adapted from the book and it has been released in 65 countries worldwide, including countries with a predominantly Christian population like Italy, Spain, U.S.A. and U.K. When the film was submitted for the Censor Certificate in accordance with the provisions of the Cinematograph Act, 1952 ('Act' in short) there was an apprehension in the Ministry of Information and Broadcasting and therefore, the Honourable Minister invited a panel of Christian leaders to view the film, since the sensibilities of the Christian community in the country occupied the concern of the Minister. .... On 18.5.2006, the Catholic Bishops' Conference of India (CBCI) offered their reflections on the film. They were of the opinion that the film has a storyline which is not acceptable to the Christian community, but that the film did not claim, as the book did, that "all descriptions of art work, architect, documents and sacred rituals are accurate". The Christian leaders who had viewed the film also observed that the objectionable interpretations of Christianity voiced by the character by name Teabing were not accepted by the chief protagonist Robert Langdon and that this was a redeeming feature of the film. They averred that the Christian community stood by freedom of faith and expression as well as the duty to respect the inviolability of the sacred and therefore, they requested that (1) A bold and lingering disclaimer, lasting at least 15 seconds, both at the beginning of the film and at the end, stating that this film is a work of pure fiction and has no correspondence to historical facts of the Christian religion, should be displayed;
(2) The film should be given a 'A' Certificate. The Christian community stands by freedom of faith and expression as well as the duty to respect the inviolability of the sacred. .... 10. An Advocate, who is a Roman Catholic, has filed M.P. No. 5 of 2005 seeking to implead himself in the writ petition. According to him, he has filed several suits to raise his voice against Bishops and Priests whenever he felt that they erred in their religious duties. According to him, the disclaimer card and the words that this film is a work of fiction would not take away the injury inflicted upon millions and millions of Christians. According to the learned Counsel, the film was released in countries abroad which are predominantly Catholic and that is because there, the community itself is a majority community and perhaps, they had no reason to feel threatened, whereas since here the Christian community is a minority community, the screening of this film threatens them. The learned Counsel submitted that history shows that Jesus Christ lived and walked the face of this earth and it also gives the details regarding the appearance of Mary Magdelene in the Bible and what she was. To concoct a story that Jesus Christ married her offends the religious sensibilities of the Christians of this State and therefore, the impugned order was rightly issued. According to him, Article 25 of the Constitution [which protects the Right to Freedom of Religion] is an individual right and must be protected. It is the subjective satisfaction of the authority regarding the breach of peace that is crucial for the issuance of the impugned order, and the order impugned in this writ petition shows that there is such subjective satisfaction. .... 19. [W]e must see whether the impugned order infringes Article 19(1)(a) or whether it is protected by Article 19(2). Freedom of expression occupies a very special position among the constitutional guarantees. The right of the State to exert its power of regulation is hemmed by Article 19(2). It does not include intolerance to expression of one's views in the market place. There will be periods of renaissance in history only when there is free inflow and outpouring of ideas, ideas which may even run counter to the dominant, traditional opinion must have their free play, and this is the hypothesis on which free speech is built, that speech can rebut speech and propaganda will answer propaganda. 20. Some opinions expressed by the Judges of the Supreme Court of the United States of America in certain important cases will now be referred to, not because they are binding, but because they highlight the importance of freedom of expression. .... In Abrams v. United States 63 L. Ed. 616, it has been observed as follows: But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas, that the best test of truth is the power of the thought to get itself accepted in the
competition of the market; and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year, if not every day, we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system, I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country. .... 33. The film is clearly stated to be a work of fiction. The interpretation regarding what is Holy Grail is not an original interpretation of the novelist. . . . 34. The issue in the present case is not whether these alternative assumptions are true. The issue is whether there can be a work of art or literature or a film which propounds such interpretations and whether the public have the right to decide whether to accept or reject such alternative interpretation. The issue is whether the petitioner' s right to freedom of expression and equally, a person's right to see the film can be curtailed by the State ostensibly on the ground that a section of the people does not accept that the petitioners have such freedom of expression. The issue is whether the State is bound to protect the person whose fundamental right is sought to be violated by people who threaten to breach peace, or whether the State will mutely watch such threats. All these issues must be answered in favour of the petitioners. .... 36. In Whitney v. California 274 U.S. 357, this is what Justice Brandeis of the U.S. Supreme Court says about repression: It is hazardous to discourage thought, hope and imagination; ...fear breeds repression; that repression breeds hate; that hate menaces stable government. True, we must pay special heed to the demands of Article 19(2) marking out the boundaries of Article 19(1), and the societal value of free speech must be subject to the 19(2) considerations. When the inter se dynamics of Articles 19(1) and 19(2) are assessed, the inescapable conclusion is that there is no reasonable basis for the impugned order. I am aware of Justice Frankfurter's warning that courts should not assume primary responsibility between political, economic and social pressures. Here, when the statutory body had granted permission to screen the film as per the guidelines, the local authority, without " thinking", had stopped the screening. 37. The impugned order clearly violates the petitioners' right of freedom of expression. If the court finds that a claimed right is entitled to protection as a fundamental right, then the law infringing it must satisfy the compelling State interest test. The question would be then whether the State interest is of such importance as would justify the violation of the fundamental right. Even if the order suspends the exhibition of the film only for a
period of two months, the violation does not lose its severity and therefore, it must be quashed since the impugned order does not satisfy the compelling State interest test. When highly respected members of the Christian community have seen the film and have not expressed any apprehension that the film is likely to incite such feelings as would result in breach of peace, and when the Censor Board has also certified that the film is worthy of being exhibited, the compulsion that forced the State to pass the impugned order is inexplicable and does not justify the violation of the fundamental right of the petitioners. When our Courts have considered it their duty and responsibility to intervene when even the Central Board of Film Certification interferes with the fundamental right of freedom of speech and expression, the duty and responsibility is heavier in this case where the film has got the Censors' approval and yet, the petitioners have been prevented from exhibiting the film by an order which has no reasonable basis. Therefore, the impugned order is void for contravention of the fundamental right. . . . 51. The persons who object to the film, are not involuntarily and forcibly exposed to the contents of the the film. They must buy the tickets to see the film. If someone is offended by what he knows to be the film's content, he is free to avoid watching the film. It is doubtful whether the objectors or the authorities have even seen the film. In the words of the learned Judge of the Andhra Pradesh High Court, there is a mechanical certification "of the heckler's veto of a few objections on dictation as it were, rather than informed satisfaction of his own as legislatively ordained". The impugned order must, therefore, be quashed. L. Incitement: The Satanic Verses India Bans a Book For Its Own Good By Salman Rushdie; published October 19, 1988 Following is an open letter to the Prime Minister of India from Mr. Rushdie, a novelist. Dear Rajiv Gandhi: On Oct. 5, the Indian finance ministry announced the banning of my novel, ''The Satanic Verses,'' under Section 11 of the Indian Customs Act. Many people around the world will find it strange that it is the finance ministry that gets to decide what Indian readers may or may not read. But let that pass, because at the end of the notification of the ban an even stranger statement appeared. The ministry -- I am quoting from The Press Trust of India's report -- ''added that the ban did not detract from the literary and artistic merit of Rushdie's work.'' To which I can only reply: Thanks for the good review. The book was banned after representations by two or three Muslim politicians, including Syed Shahabuddin and Khurshid Alam Khan, both members of Parliament. These
persons, whom I do not hesitate to call extremists, even fundamentalists, have attacked me and my novel while stating that they had no need actually to read it. That the Government should have given in to such figures is profoundly disturbing. This really is astounding. It is as though, having identified an innocent person as a likely target for assault by muggers or rapists, you were to put that person in jail for protection. This is no way, Mr. Gandhi, for a free society to behave. Clearly, your Government is feeling a little ashamed of itself and, sir, it has much to be ashamed about. It is not for nothing that just about every leading Indian newspaper and magazine has deplored the ban as, for example, ''a Philistine decision'' (The Hindu) or ''thought control'' (Indian Express). It is not for nothing that such eminent writers as Kingsley Amis, Harold Pinter and Tom Stoppard have joined International PEN and India's association of publishers and booksellers in condemning the decision. The right to freedom of expression is at the foundation of any democratic society, and at present, all over the world, Indian democracy is becoming something of a laughing-stock. When Syed Shahabuddin and his fellow self-appointed guardians of Muslim sensibilities say that ''no civilized society'' should permit the publication of a book like mine, they have got things backwards. The question raised by the book's banning is precisely whether India, by behaving in this fashion, can any more lay claim to the title of a civilized society. Let us try to distinguish truth from falsehood in this matter. Like my zealous opponents, you will probably not have read ''The Satanic Verses.'' So let me explain a few simple things. I am accused of having ''admitted'' that the book is a direct attack on Islam. I have admitted no such thing, and deny it strongly. The section of the book in question (and let's remember that the book isn't actually about Islam, but about migration, metamorphosis, divided selves, love, death, London and Bombay) deals with a prophet -- who is not called Mohammed -- living in a highly fantastical city made of sand (it dissolves when water falls upon it). He is surrounded by fictional followers, one of whom happens to bear my own first name. Moreover, this entire sequence happens in a dream, the fictional dream of a fictional character, an Indian movie star, and one who is losing his mind, at that. How much further from history could one get? In this dream sequence I have tried to offer my view of the phenomenon of revelation and the birth of a great world religion; my view is that of a secular man for whom Islamic culture has been of central importance all his life. Can the finance ministry really be saying that it is no longer permissible, in modern, supposedly secular India, for literature to treat such themes? If so, things are more
serious than I had believed. From where I sit, Mr. Gandhi, it looks very much as if your Government has become unable or unwilling to resist pressure from more or less any extremist religious grouping; that, in short, it's the fundamentalists who now control the political agenda. You know, as I know, that Mr. Shahabuddin, Mr. Khurshid Alam Khan and their allies don't really care about my novel. The real issue is the Muslim vote. I deeply resent my book being used as a political football; what should matter to you more than my resentment is that you come out of this looking not only Philistine and anti-democratic but opportunistic. Mr. Prime Minister, I can't bring myself to address finance ministries about literature. In my view, this is now a matter between you and me. I ask you this question: What sort of India do you wish to govern? Is it to be an open or a repressive society? Your action in the matter of ''The Satanic Verses'' will be an important indicator for many people around the world. If you confirm the ban, I'm afraid I, and many others, will have to assume the worst. If, on the other hand, you should admit your Government's error and move swiftly to correct it, I will be the first to applaud your honorable deed.
M. Obscenity: Lady Chatterleys Lover AIR 1962 Bom. 268, (1962) 64 BOM. L. R. 356, I.L.R. 1962 Bom. 538 IN THE HIGH COURT OF BOMBAY Criminal Revn. Appln. No. 1149 of 1961 Decided On: 06.02.1962 Ranjit D. Udeshi and Others vs. The State Patel, J. (1) The petitioner and three others, who are partners of a bookstall known as the "Happy Book Stall" situated at Colaba Causeway, Bombay, have been convicted under Section 292 of the Indian Penal Code, in that they sold and were found in possession, for the purpose of sale, of copies of a highly controversial novel "Lady Chatterley's Lover" by D. H. Lawrence which was alleged to be obscene. They were charged under this section in respect of several passages occurring in that book marked "Exhibits A-1 to A-22" in the original. The learned Additional Chief Presidency Magistrate found them guilty of the offence charged against them and sentenced them each to pay a fine of Rs. 20 and in default to suffer one week's simple imprisonment. The petitioner has filed this revision application challenging the order of conviction and sentence passed against him, by the learned Additional Chief Presidency Magistrate. ....
(3) Section 292 of the Indian Penal Code as it originally stood in 1861, made it an offence to sell, distribute, import or print for sale or hire, or wilfully to exhibit any obscene book, pamphlet, paper etc. .... (4) Section 292 does not define the word "obscene". This word has, however, been the subject-matter of much discussion in the past in England and the leading case on the point is R. v. Hicklin, (1868) 3 QB 360. It has been held in that case that the immunity must depend upon the circumstances of the publication. In the judgment at p. 371 the learned Judge laid down the test of obscenity to be, "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." .... This case has been followed in England and in India consistently, and the principle laid down therein would appear to hold good even today. .... (9) It cannot be gainsaid that standards off morality vary from region to region and it is impossible to have one inflexible standard of obscenity for all country. Circumstances always differ and the Court has to take into account all the factors before it comes to the conclusion as to whether or not a publication is an obscene publication. Authorities clearly indicate that while judging the character of a publication, the Court must consider the effect that it would produce on the mind of an average person in whose hand the book is likely to fall. While so judging, neither a man of wide culture or superb character nor a person of depraved mentality only should be taken as a reader of such publication. The standard of readers is neither one of exceptional susceptibility nor one without any susceptibility whatsoever. (10) It is also evident . . . that the Court must also consider the effect on the mind of young and unwary persons or those of impressionable age. After all, it depends on the question as to who are likely to read the book. If the book is likely to be read by adolescents, there can be no reason to exclude the consideration of effect on their minds. .... (12) The story as told is a simple one. As the name suggests, it is the story of a young healthy woman Constance, married to a baronet at a young age. During her school and college days she had a free student life, where she along with her sister did what she liked, went wherever she liked and spoke and talked whatever she liked. Clifford himself, the son of a baronet, belonged to a slightly higher strata. He was more of upper class than Constance, as he was aristocratic. Even before her marriage with Clifford, during her student days on the continent, Constance had sexual relations with those
whom she liked. She married Clifford when he was on leave from his war service and they had a month's honeymoon. Clifford then went to resume his duties during the war and was sent back after six months badly mauled. He recovered but was completely paralytic below the waist. Lady Chatterley, though she did her duties as wife in nursing him and had discussions with him on his writings, gradually felt herself frustrated and eventually rebelled. During this time, she had on sexual connection with one Michael who had visited her husband, in her own house. She then came in contact with Mellors, gamekeeper of Clifford, and had satisfactory relations with him and eventually became pregnant. In the book at several places the four lettered Anglo-sexton words are used, the passages being marked A-6, A-8 A-10, A-11, A-12, A-16, A-18, A-19 and A-20. One may not so much object to mere words but certainly to the manner of expression. Passages marked A-5, A-13, A-14, A-18 and A-21 contain immoral ideas and the rest give details of sexual performances of the pair - the gamekeeper and Constance. At several places what he considers perfect sexual intercourses have been described in great details which according to him can save man-kind. In many places the author has disapproved the sex relations when man and woman do not come off together. (See Exhibit A-5 p. 60, Exhibit A-13 p. 234 and Exhibit A-14 p. 236). He then emphasizes what he calls the warm hearted sex relationship as demonstrated by Exhibit A-15 p. 240-41. He has emphasised what he called both man and woman coming off together and described in details the sex-act in repeat performance on the same occasion and has given all glorified names to the man's organ and at Exhibit A-19 it is kinghted. (13) We have been read the opinions of some of the critic of the novel in question and it is contended relying on their views, that the book is a book of great art and cannot fall within the mischief of S. 292 of the Penal Code. In particular, we are referred to the opinion of Archibald Macleish and the introduction of Mark Schorer given in the beginning of the novel edited by Grove Press Inc., New York .... (15) On a perusal of all this material in the book, a man of ordinary understanding and knowing ordinary English according to the present day standards in this country, would be inclined to finding a man like Mellors, to satisfy her sex craving and an employee or a guest, justifiably indulging in sex relation under the roof of the husband. If this is so, it is clearly repugnant to public morals. (16) Granted as Schorer says that the characters function fully and the author allows them to speak for themselves. Yet, in the mind of an ordinary man it would have the effect of raising immoral thought. It is indeed very difficult to see much symbolism so far as Clifford is concerned, of which so much is said. It is not a sexual paralysis born of his high breed or his richness or the industrialization but paralysis due to injuries in the war. In him there is a clear physical incapacity. .... (17) The book is priced at 35 cents and is likely to be purchased by those who know English amongst whom may be college students of various ages, whose minds may well be presumed to be open to immoral influences, those who know English but not the literature, those who are of ordinary culture and have not attained high mental altitudes,
and it is difficult to deny that the effect not only of the passages which form the subjectmatter of the charge, but of the book as a whole on the minds of these persons would but be what we have indicated above. (18) We have come to this conclusion despite our being aware of the fact that the American and English Courts have taken a different view. The case came before the Court of Criminal Appeals in United States because of the action taken by the Postmaster General under powers vested in him under 18 U. S. Cooped 1461. The majority took the view: "It seems clear without dissent from the expert "evaluations presented both in the record and in the introductory material to this edition, as well as in the contemporary literature, that this is a major and a distinguished novel, and Lawrence one of the great writers of the era." .... (20) Even if the book has to be considered is a whole, on must consider the good that it is intended to achieve. Taking on overall view of the case and even considering the book as a whole, we feel, as was felt by Moore J., that the book should be held to be obscene within the meaning of S. 292 of the Penal Code. (21) We accordingly hold that the petitioners has been rightly convicted and sentenced. .... N. Privacy and Defamation: R. Rajagopal vs. State of Tamil Nadu 1995 AIR 264, 1994 SCC (6) 632 IN THE SUPREME COURT OF INDIA 7 October, 1994 R. Rajagopal vs State Of Tamil Nadu B.P. JEEVAN REDDY, J.1. This petition raises a question concerning the freedom of press vis-a-vis the right to privacy of the citizens of this country. It also raises the question as to the parameters of the right of the press to criticise and comment on the acts and conduct of public officials. 2. The first petitioner is the editor, printer and publisher of a Tamil weekly magazine Nakkheeran, published from Madras. The second petitioner is the associate editor of the magazine. They are seeking issuance of an appropriate writ, order or direction under Article 32 of the Constitution, restraining the respondents, viz., (1) State of Tamil Nadu represented by the Secretary, Home Department, (2) Inspector General of Prisons, Madras and (3) Superintendent of Prisons (Central Prison), Salem, Tamil Nadu
from taking any action as contemplated in the second respondent's communication dated 15-6-1994 and further restraining them from interfering with the publication of the autobiography of the condemned prisoner, Auto Shankar, in their magazine. . . . 3. Shankar [alias] Gauri Shankar [alias] Auto Shankar was charged and tried for as many as six murders. He was convicted and sentenced to death by the learned Sessions Judge, Chenglepat on 31-5-1991 which was confirmed by the Madras High Court on 17-7-1992. His appeal to this Court was dismissed on 5-4- 1994. It is stated that his mercy petition to the President of India is pending consideration. 4. The petitioners have come forward with the following case: [While incarcerated, Auto Shankar wrote a 300-page biography. With the knowledge and approval of the jail authorities, he gave the manuscript to his wife for deliver to his lawyer, who was to publish it in the magazine Nakkheeran. In several letters, Auto Shankar confirmed his desire to have the autobiography published. When Nakkheeran announced its intent to publish Shankars autobiography, it hit police and jail officials like a shock wave, as they feared (correctly) that the autobiography would expose their close complicity with Auto Shankar over the years. They responded by using physical force to coerce Shankar into sending letters both to the magazine and to the Inspector General of Prisons requesting that his autobiography not be published. The IG eventually wrote to Nakkheeran, which had started publishing it in serial installments, asserting that Shankar had not written the autobiography and did not cause it to be delivered to the magazine, and that therefore publishing it would be unlawful. The IG threatened legal action for blackmail and demanded a halt to publication. Nakkheeran responded that the claims in the IGs letter were not true, and asserted that they feared arrest and destruction of their press, citing the face that the magazines presses were damaged by police after a 1991 incident in which it illegal wiretapping.] [Since Shankar, his wife and lawyer were not parties to the proceeding, the Supreme Court could not resolve any factual disputes relating to Auto Shankars authorship and authorization of publication, the Court decided to] proceed on the assumption that the said prisoner has neither written his autobiography nor has he authorised the petitioners to publish the same in their magazine, as asserted by the writ petitioners. We must, however, make it clear that ours is only an assumption for the purpose of this writ petition and not a finding of fact. . . . 8. On the pleadings in this petition, following questions arise: (1)Whether a citizen of this country can prevent another person from writing his life story or biography? Does such unauthorised writing infringe the citizen's right to privacy? Whether the freedom of press guaranteed by Article 19(1)(a) entitles the press to publish such unauthorised account of a citizen's life and activities and if so to what extent and in what circumstances? What are the remedies open to a citizen of this
country in case of infringement of his right to privacy and further in case such writing amounts to defamation? (2) (a) Whether the Government can maintain an action for its defamation?
(b)Whether the Government has any legal authority to impose prior restraint on the press to prevent publication of material defamatory of its officials? and (c)Whether the public officials, who apprehend that they or their colleagues may be defamed, can impose a prior restraint upon the press to prevent such publication? (3) Whether the prison officials can prevent the publication of the life story of a prisoner on the ground that the prisoner being incarcerated and thus not being in a position to adopt legal remedies to protect his rights, they are entitled to act on his behalf? Question Nos. 1 and 2 9. The right to privacy as an independent and distinctive concept originated in the field of Tort law, under which a new cause of action for damages resulting from unlawful invasion of privacy was recognised. This right has two aspects which are but two faces of the same coin (1) the general law of privacy which affords a tort action for damages resulting from an unlawful invasion of privacy and (2) the constitutional recognition given to the right to privacy which protects personal privacy against unlawful governmental invasion. The first aspect of this right must be said to have been violated where, for example, a person's name or likeness is used, without his consent, for advertising or non-advertising purposes or for that matter, his life story is written whether laudatory or otherwise and published without his consent as explained hereinafter. In recent times, however, this right has acquired a constitutional status. We shall proceed to explain how? Right to privacy is not enumerated as a fundamental right in our Constitution but has been inferred from Article 21. . . . A more elaborate appraisal of this right took place in a later decision in Gobind v. State of M.P. wherein Mathew, J. . . . traced the origins of this right and also pointed out how the said right has been dealt with by the United States Supreme Court in two of its well- known decisions in Griswold v. Conneticut and Roe v. Wade. . . . [T]he learned Judge stated the law in the following words: . . . "... privacy-dignity claims deserve to be examined with care and to be denied only when an important countervailing interest is shown to be superior. If the Court does find that a claimed right is entitled to protection as a fundamental privacy right, a law infringing it must satisfy the compelling State interest test. [P]rivacy primarily concerns the individual. It therefore relates to and overlaps with the concept of liberty. The most serious advocate of privacy must confess that there are serious problems of defining the essence and scope of the right.
Privacy interest in autonomy must also be placed in the context of other rights and values. Any right to privacy must encompass and protect the personal intimacies of the home, the family, marriage, motherhood, procreation and child-rearing. This cataloger approach -to the question is obviously not as instructive as it does not give analytical picture of the distinctive characteristics of the right of privacy. Perhaps, the only suggestion that can be offered as unifying principle underlying the concept has been the assertion that a claimed right must be a fundamental right implicit in the concept of ordered liberty. . . . The right to privacy in any event will necessarily have to go through a process of case-by-case development. Therefore, even assuming that the right to personal liberty, the right to move freely throughout the territory of India and the freedom of speech create an independent right of privacy as an emanation from them which one can characterize as a fundamental right, we do not think that the right is absolute. .... Since the right to privacy has been the subject-matter of several decisions in the United States, it would be appropriate to briefly refer to some of the important decisions in that country. [The Court then discusses Time Inc. v. Hill, Cox Broadcasting Corp. v. Cohn, Griswold v. Connecticut, Roe v. Wade, and New York Times v. Sullivan, from which the Court draws this quote: The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice' that is, with knowledge that it was false or with reckless disregard of whether it was false or not.] .... 18.The principle of the said decision has been held applicable to "public figures" as well. This is for the reason that public figures like public officials often play an influential role in ordering society. It has been held that as a class the public figures have, as the public officials have, access to mass media communication both to influence the policy and to counter-criticism of their views and activities. On this basis, it has been held that the citizen has a legitimate and substantial interest in the conduct of such persons and that the freedom of press extends to engaging in uninhibited debate about the involvement of public figures in public issues and events. 19.The principle of Sullivan was carried forward and this is relevant to the second question arising in this case - in Derbyshire County Council v. Times Newspapers Ltd., a decision rendered by the House of Lords. The plaintiff, a local authority, brought an action for damages for libel against the defendants in respect of two articles published in Sunday Times questioning the propriety of investments made for its superannuation fund. The articles were headed "Revealed: Socialist tycoon deals with Labour Chief' and
"Bizarre deals of a council leader and the media tycoon". A preliminary issue was raised whether the plaintiff has a cause of action against the defendant. The trial Judge held that such an action was maintainable but on appeal the Court of Appeal held to the contrary. When the matter reached the House of Lords, it affirmed the decision of the Court of Appeal but on a different ground. Lord Keith delivered the judgment agreed to by all other learned Law Lords. In his opinion, Lord Keith recalled that in Attorney General v. Guardian Newspapers Ltd. (No. 2) popularly known as "Spycatcher case", the House of Lords had opined that "there are rights available to private citizens which institutions of... Government are not in a position to exercise unless they can show that it is in the public interest to do so". It was also held therein that not only was there no public interest in allowing governmental institutions to sue for libel, it was "contrary to the public interest because to admit such actions would place an undesirable fetter on freedom of speech" and further that action for defamation or threat of such action "inevitably have an inhibiting effect on freedom of speech". The learned Law Lord referred to the decision of the United States Supreme Court in New York Times v. Sullivan and certain other decisions of American Courts and observed and this is significant for our purposes"while these decisions were related most directly to the provisions of the American Constitution concerned with securing freedom of speech, the public interest considerations which underlaid them are no less valid in this country. What has been described as 'the chilling effect' induced by the threat of civil actions for libel is very important. Quite often the facts which would justify a defamatory publication are known to be true, but admissible evidence capable of proving those facts is not available." Accordingly, it was held that the action was not maintainable in law. .... 21.The question is how far the principles emerging from the United States and English decisions are relevant under our constitutional system. So far as the freedom of press is concerned, it flows from the freedom of speech and expression guaranteed by Article 19 (1)(a). But the said right is subject to reasonable restrictions placed thereon by an existing law or a law made after the commencement of the Constitution in the interests of or in relation to the several matters set out therein. Decency and defamation are two of the grounds mentioned in clause (2). Law of torts providing for damages for invasion of the right to privacy and defamation and Sections 499/500 IPC [which define the penalties for the crime of defamation] are the existing laws saved under clause (2). But what is called for today in the present times is a proper balancing of the freedom of press and said laws consistent with the democratic way of life ordained by the Constitution. Over the last few decades, press and electronic media have emerged as major factors in our nation's life. They are still expanding and in the process becoming more inquisitive. Our system of Government demands as do the systems of Government of the United States of America and United Kingdom constant vigilance over exercise of governmental power by the press and the media among others. It is essential for a good Government. At the same time, we must remember that our society
may not share the degree of public awareness obtaining in United Kingdom or United States. The sweep of the First Amendment to the United States Constitution and the freedom of speech and expression under our Constitution is not identical though similar in their major premises. All this may call for some modification of the principles emerging from the English and United States decisions in their application to our legal system. The broad principles set out hereinafter are evolved keeping in mind the above considerations. But before we set out those principles, a few more aspects need to be dealt with. 22. We may now consider whether the State or its officials have the authority in law to impose a prior restraint upon publication of material defamatory of the State or of the officials, as the case may be? We think not. No law empowering them to do so is brought to our notice. As observed in New York Times v. United States, popularly known as the Pentagon papers case, "any system of prior restraints of (freedom of) expression comes to this Court bearing a heavy presumption against its constitutional validity" and that in such cases, the Government "carries a heavy burden of showing justification for the imposition of such a restraint". We must accordingly hold that no such prior restraint or prohibition of publication can be imposed by the respondents upon the proposed publication of the alleged autobiography of "Auto Shankar" by the petitioners. . . . [N]either the Government nor the officials who apprehend that they may be defamed, have the right to impose a prior restraint upon the publication of the alleged autobiography of Auto Shankar. The remedy of public officials/public figures, if any, will arise only after the publication and will be governed by the principles indicated herein. 23. We must make it clear that we do not express any opinion about the right of the State or its officials to prosecute the petitioners under Sections 499/500 IPC. This is for the reason that even if they are entitled to do so, there is no law under which they can prevent the publication of a material on the ground that such material is likely to be defamatory of them. Question No. 3 24. It is not stated in the counter-affidavit that Auto Shankar had requested or authorised the prison officials or the Inspector General of Prisons, as the case may be, to adopt appropriate proceedings to protect his right to privacy. If so, the respondents cannot take upon themselves the obligation of protecting his right to privacy. No prison rule is brought to our notice which empowers the prison officials to do so. Moreover, the occasion for any such action arises only after the publication and not before, as indicated hereinabove. .... 26. We may now summarise the broad principles flowing from the above discussion: (1) The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a "right to be let alone". A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, childMcLaughlin - Free Speech - Readings for Week 4 for India - Page 42 of 47
bearing and education among other matters. None can publish anything concerning the above matters without his consent whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages. Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy. (2) The rule aforesaid is subject to the exception, that any publication concerning the aforesaid aspects becomes unobjectionable if such publication is based upon public records including court records. This is for the reason that once a matter becomes a matter of public record, the right to privacy no longer subsists and it becomes a legitimate subject for comment by press and media among others. We are, however, of the opinion that in the interests of decency [Article 19(2)] an exception must be carved out to this rule, viz., a female who is the victim of a sexual assault, kidnap, abduction or a like offence should not further be subjected to the indignity of her name and the incident being publicised in press/media. (3) There is yet another exception to the rule in (1) above - indeed, this is not an exception but an independent rule. In the case of public officials, it is obvious, right to privacy, or for that matter, the remedy of action for damages is simply not available with respect to their acts and conduct relevant to the discharge of their official duties. This is so even where the publication is based upon facts and statements which are not true, unless the official establishes that the publication was made (by the defendant) with reckless disregard for truth. In such a case, it would be enough for the defendant (member of the press or media) to prove that he acted after a reasonable verification of the facts; it is not necessary for him to prove that what he has written is true. Of course, where the publication is proved to be false and actuated by malice or personal animosity, the defendant would have no defence and would be liable for damages. It is equally obvious that in matters not relevant to the discharge of his duties, the public official enjoys the same protection as any other citizen, as explained in (1) and (2) above. It needs no reiteration that judiciary, which is protected by the power to punish for contempt of court and Parliament and legislatures protected as their privileges are by Articles 105 and 104 respectively of the Constitution of India, represent exceptions to this rule. (4) So far as the Government, local authority and other organs and institutions exercising governmental power are concerned, they cannot maintain a suit for damages for defaming them. (5) Rules 3 and 4 do not, however, mean that Official Secrets Act, 1923, or any similar enactment or provision having the force of law does not bind the press or media. 651 (6) There is no law empowering the State or its officials to prohibit, or to impose a prior restraint upon the press/media.
27. We may hasten to add that the principles above mentioned are only the broad principles. They are neither exhaustive nor all-comprehending; indeed no such enunciation is possible or advisable. As rightly pointed out by Mathew, J., this right has to go through a case-by-case development. The concepts dealt with herein are still in the process of evolution. .... 29. Applying the above principles, it must be held that the petitioners have a right to publish, what they allege to be the life story/autobiography of Auto Shankar insofar as it appears from the public records, even without his consent or authorisation. But if they go beyond that and publish his life story, they may be invading his right to privacy and will be liable for the consequences in accordance with law. Similarly, the State or its officials cannot prevent or restrain the said publication. The remedy of the affected public officials/public figures, if any, is after the publication, as explained hereinabove. 30.The writ petition is accordingly allowed in the above terms. No costs.
O. Enter the Internet Gaurav Mishra, Shiv Sena's Orkut Campaign: The Limits to Freedom of Expression in an Intolerant India (Global Voices Online, 28 February 2009) Available via CourseWork, or at: http://globalvoicesonline.org/2009/02/28/shiv-senas-orkut-campaign-the-limits-tofreedom-of-expression-in-an-intolerant-india/ Wall Street Journal: Google and India Test the Limits of Liberty (4 January 2010) Available via CourseWork, or at: http://online.wsj.com/article/SB126239086161213013.html Wall Street Journal: Savita Bhabhi: A (Sex) Symbol of Free Speech? (14 January 2010) Available via CourseWork, or at: http://online.wsj.com/article/SB126327347865425871.html
P. Information Technology (Intermediaries guidelines) Rules, 2011 .... 3. Due diligence to be observed by intermediary. The intermediary shall observe following due diligence while discharging his duties, namely : (1) The intermediary shall publish the rules and regulations, privacy policy and user agreement for access or usage of the intermediarys computer resource by any person. (2) Such rules and regulations, terms and conditions or user agreement shall inform the users of computer resource not to host, display, upload, modify, publish, transmit, update or share any information that (a) belongs to another person and to which the user does not have any right to; (b) is grossly harmful, harassing, blasphemous, defamatory, obscene, pornographic, paedophilic, libellous, invasive of another's privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever; (c) harm minors in any way; (d) infringes any patent, trademark, copyright or other proprietary rights; (e) violates any law for the time being in force; (f) deceives or misleads the addressee about the origin of such messages or communicates any information which is grossly offensive or menacing in nature; (g) impersonate another person; (h) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer resource; (i) threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign states, or or public order or causes incitement to the commission of any cognisable offence or prevents investigation of any offence or is insulting any other nation.
(3) The intermediary shall not knowingly host or publish any information or shall not initiate the transmission, select the receiver of transmission, and select or modify the information contained in the transmission as specified in sub-rule (2): provided that the following actions by an intermediary shall not amount to hosting, publishing, editing or storing of any such information as specified in subrule (2) (a) temporary or transient or intermediate storage of information automatically within the computer resource as an intrinsic feature of such computer resource, involving no exercise of any human editorial control, for onward transmission or communication to another computer resource; (b) removal of access to any information, data or communication link by an intermediary after such information, data or communication link comes to the actual knowledge of a person authorised by the intermediary pursuant to any order or direction as per the provisions of the Act; (4) The intermediary, on whose computer system the information is stored or hosted or published, upon obtaining knowledge by itself or been brought to actual knowledge by an affected person in writing or through email signed with electronic signature about any such information as mentioned in sub-rule (2) above, shall act within thirty six hours and where applicable, work with user or owner of such information to disable such information that is in contravention of sub-rule (2). Further the intermediary shall preserve such information and associated records for at least ninety days for investigation purposes. (5) The Intermediary shall inform its users that in case of non-compliance with rules and regulations, user agreement and privacy policy for access or usage of intermediary computer resource, the Intermediary has the right to immediately terminate the access or usage rights of the users to the computer resource of Intermediary and remove non-compliant information.. (6) The intermediary shall strictly follow the provisions of the Act or any other laws for the time being in force. (7) When required by lawful order, the intermediary shall provide information or any such assistance to Government Agencies who are lawfully authorised for investigative, protective, cyber security activity. The information or any such assistance shall be provided for the purpose of verification of identity, or for prevention, detection, investigation, prosecution, cyber security incidents and punishment of offences under any law for the time being in force, on a request in writing stating clearly the purpose of seeking such information or any such assistance. ....
[ Full text available online at http://www.mit.gov.in/sites/upload_files/dit/files/ RNUS_CyberLaw_15411.pdf ]
OPTIONAL READINGS: On Freedom of Art & Obscenity: Maqbool Fida Hussein vs. R. K. Pandey and Others, (High Court of Delhi, 8 May 2008). Decision available on CourseWork. On Sedition: Siddharth Narrain, Disaffection and the Law: The Chilling Effect of Sedition Laws in India, Economic & Political Weekly, Vol. XLVI, No. 8, 33 (Feb. 19, 2011). Available on CourseWork.

India's Constitutional Protections for Freedom of Speech

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India's Constitutional Protections for Freedom of Speech

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Andrew McLaughlin Freedom of Speech in a Digitally Interconnected World Stanford Law School, Autumn 2011, LAW 570 Wednesday,

October 5, 4:15-7:15pm, 285

READINGS FOR WEEK 4: India & South Korea

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[ Full text available online at http://www.mit.gov.in/sites/upload_files/dit/files/ RNUS_CyberLaw_15411.pdf ]

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