Mumbai: When Bal Gangadhar Tilak was booked for sedition in British India, the section was non-cognisable, which meant he couldn’t be arrested without a magistrate’s permission. When Kanhaiya Kumar was booked for the same offence in 2016, the police could arrest him without approaching a magistrate first.
The sedition law has been strengthened after the British left, as have hate speech laws. Obscenity provisions and those relating to contempt of court remain, leaving us virtually no better on the free expression front than were were during colonial rule.
“The constitution is considered to be the fountainhead and source of all our rights in this country, but counterintuitively, the Constitution gave us no right to free speech,” says Abhinav Chandrachud, a practicing lawyer and author of Republic of Rhetoric , a historical examination of free speech laws in the country. Released last month, his book looks at the history and legacy of these laws in colonial and post-colonial India, and draws on court judgments and constituent assembly debates. “Whatever right to free speech we enjoy today also existed in theory prior to Independence, and all the Constitution did was maintain the status quo,” he adds.
Though free speech is every citizen’s right, there have always been curbs, including on speech that could threaten the country, lead to public disorder or lower the dignity of the judiciary. Constitutional provisions, though, aren’t always enough, simply because threats to free speech don’t necessarily come from the government alone, but from fellow citizens.
For instance, though criminal proceedings against painter M.F. Husain for offending Hindus with his ‘obscene’ depictions of goddesses were quashed by the Delhi High Court, he lived outside India in self-imposed exile due to threats from other citizens. Mr. Chandrachud says, “You can ask for police protection. But how long can you go on asking for police protection? At the end of the day, it’s the culture and cultural norms that are going to dictate what you can and can’t say.”
This means such laws can be easily invoked by vigilante groups or disgruntled individuals, most often not leading to trials but simply serving the purpose of harassment. As Mr. Chandrachud describes in his book, you could carry a defamation or obscenity charge with you like a lifestyle disease; it’s a nuisance you learn to live with. “Because a case takes so long to be decided, you basically have to learn to take your pill, like a diabetic; keep going to court, going to a lawyer; though you may eventually not be convicted, you still have to put up with the fear that you may be arrested.”
Colonial hangover
Some of the colonial imperatives for these laws remain: for instance, seeking to protect the poorly-educated masses from ‘obscenity’, or preventing the public from hearing a negative remark against judges. “This is an argument made in colonial times, that Indians are ignorant and that’s why we need these harsher laws in a place like India, unlike in England. But those arguments continue to be made today when they aren’t really justifiable.”
The UK itself has long since moved on from its own restrictive laws. “In England, the country from which we got these laws, where there is no written constitution, sedition, contempt in the form of ‘scandalising’ the court and criminal defamation have been done away with. In India, we have a written Constitution, yet these colonial-era laws remain.”
So if these laws are so pernicious, why can’t they simply be deleted? Sometimes, politicians may not have an incentive to remove them, or they prefer going to court rather than legislating.
“As a practising lawyer, I find it very interesting that people in power come to lawyers to try and resolve their problems, when they have the power to resolve those problems themselves. I guess it’s easier for a politician to allow the courts to take that decision so he doesn’t have to take any political responsibility for the decision.”
