Abhinav Chandrachud’s Republic of Rhetoric is a compelling commentary on the mythical idea of free speech in the present day when comedians are censured for fear their talent may offend high power centres. Once battered by the colonial masters for speaking their minds, leaders of the freedom struggle turned around to retain the hybrids of the same gag laws of the Englishman against their own countrymen in independent India.
The Constitution of India, Chandrachud argues, has made “little or no substantive difference to the right to free speech in India.” Prior to India’s independence, there were four exceptions to the right to free speech. Sedition (and hate speech), obscenity, contempt of court and defamation. They remain virtually unchanged in the Constitution. As K.T. Shah pithily explained free speech and its exceptions in the Constituent Assembly, “what is given by one right hand seems to be taken away by three or four or five left hands.”
Chandrachud points out that prosecutions for sedition relentlessly launched against leaders of the freedom struggle like nationalist Bal Gangadhar Tilak continue to be used to silence students leaders and civil rights organisations.
The pages are replete with anecdotes. One of which is how the climax of the iconic Bollywood film Sholay was changed on the orders of a conscientious Censor Board. The board played scriptwriter to save the life of the villain Gabbar Singh (Amjad Khan) in the climax. The original script had Thakur Baldev Singh (Sanjeev Kumar) kill Gabbar. But the board thought that this would have sent the ‘wrong message’ to the public about policemen taking the law into their own hands.
The cuts ordered in the kissing scenes in the James Bond flick Spectre and the refusal to certify Udta Punjab show that the Censor Board still holds dear its suspect authority of prior restraint on creative art.
Like films, theatre too suffers from the sly official explanation that visual arts have greater impact on public minds and need to be closely watched. Actor Amol Palekar has challenged the constitutional validity of the Bombay Police Act of 1951 which shackles free expression in theatre. Similarly, we had the government punish FTV with a ban on its broadcast for 10 days because their late-night programme contained ‘female nudity.’
The book asks why the Supreme Court upheld criminal defamation when it had already ceased to be an offence in England in 2009.
Free speech is a luxury not just for the man on the street but also for judges. A few high courts expect lawyers to delete their Facebook accounts when they are elevated to the Bench.
What one man considers a work of art, another may consider it obscene and fit to be banned. Vladamir Nabokov’s Lolita had Prime Minister Pandit Jawaharlal Nehru and Finance Minister Morarji Desai on opposite sides of the culture war. Desai said the book about an adult man's relations with an 11-year-old girl was ‘sex perversion.’ But Nehru intervened and saw to it that the book was not banned in India. The book’s publisher in India sent Nehru a copy of the book as a token of gratitude.
Republic of Rhetoric quotes from Justice Wilmot’s unpublished 1765 judgment in Rex versus Almon to explain that the object of the law of contempt is to “keep a blaze of glory around judges.” It argues that contempt proceedings should not be initiated for scandalising the court to vindicate the judge as a person. The U.S. judges anyway thought of scandalising the court as ‘English foolishness.’ Contempt of court should be rarely employed and only when the act or omission results in blocking the administration of justice.
One of the first reported judgments on scandalising the court in colonial India involved a British judge, Chief Justice of Calcutta High Court Barnes Peacock, who convicted a Briton, William Tayler, for having besmirched the reputation of Justice Dwarakanath Mitter, the second Indian judge to be elevated to the Calcutta HC.
Recently, a Supreme Court judge complained to a senior lawyer about an article published in a legal website on his alleged conduct with a disabled petitioner. It is here one remembers the bit about Chief Justice Beaumont observing that contempt proceedings for scandalising the court are not meant to be initiated in order to relieve a particular judge’s feelings.
There is a reference to the Supreme Court’s recent effort to instil ‘constitutional patriotism’ in cinema-goers. The 2016 interim order by Chief Justice of India Dipak Misra found a critic in his junior colleague on the Supreme Court Bench. Justice D.Y. Chandrachud, the author’s father, orally observed in open court that an Indian need not stand up in a cinema hall for the national anthem to be considered patriotic. The book puts the issue in context by quoting Justice Robert H. Jackson of the U.S. Supreme Court: “Compulsory unification of opinion achieves only the unanimity of the graveyard.”
Republic of Rhetoric: Free Speech and the Constitution of India ; Abhinav Chandrachud, Penguin Random House, ₹599.
