An odd pitch to curb free speech

The Maharashtra government circular, on free speech and sedition, is unconstitutional as it is violative of the freedom of speech guaranteed by the Constitution.

September 08, 2015 01:50 am | Updated March 28, 2016 07:16 pm IST

The Maharashtra government circular, of > September 4, 2015 , while clarifying an earlier circular dated August 27, states that if words or signs or representations by someone cause hatred, enmity, contempt or disloyalty against the government and can also be an incitement to violence or are intended to cause public disorder, then charges of sedition under Section 124A IPC can be invoked against that person. However, it was clarified, comments expressing disapproval, with a view to bring about change in government by lawful means cannot by themselves be regarded as an act of treason.

[The background to this is as follows — this comes after a “submission” made by the Advocate-General in the Bombay High Court in a case involving political activist and cartoonist Aseem Trivedi that the Home Department would issue these guidelines in the form of a circular to all policemen. Later, the State government clarified that these guidelines were part of a general circular, and not a Government Resolution, and were strictly in accordance with the orders issued by the Bombay High Court.]

Unconstitutional move

Markandey Katju

There are many things done by the Union and Maharashtra governments that do not strike a chord with many people and which causes them to express their contempt, enmity and disaffection openly. Some have even called for a revolution in view of the massive levels of poverty, unemployment, malnourishment, price rise, a lack of health care, farmers’ suicides, and discrimination against the minorities, women and Dalits to name some of the issues that are still prevalent in India. But is this a valid reason to send such people to jail? I believe it isn’t and they cannot.

For example, the recent agitation in Gujarat by the Patel community resulted in a lot of disorder. Similarly, the agitation by ex-servicemen on the ‘One Rank One Pension’ issue could have resulted in large-scale public disorder. The one day, nation-wide Bharat Bandh observed by 15 crore workers across India resulted in a lot of public disorder especially in West Bengal. In my opinion, in a democratic country, these are perfectly valid methods of expressing dissent and disenchantment with our governments, both Central and State.

Establish imminent threat In Whitney vs. California, 274 US 357 (1927), Justice Brandeis of the U.S. Supreme Court observed: “Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burned women. It is the function of free speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced and that the danger apprehended is imminent ... The wide difference between advocacy and incitement, between preparation and attempt, between assembling and conspiracy, must be borne in mind.”

He went on to observe: “Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is imminent . The remedy to evil counsel is more speech, not enforced silence.”

In Yates vs. U.S., 354 US 298 (1957), Justice Harlan of the U.S. Supreme Court observed: “In failing to distinguish between advocacy of forcible overthrow as an abstract doctrine and advocacy of action to that end, the District Court appears to have been led astray by the holding in Dennis that advocacy of violent action to be taken at some future time was enough. The District Court apparently thought that Dennis obliterated the traditional dividing line between advocacy of abstract doctrine and advocacy of action.”

Freedom and state action In Brandenburg vs. Ohio, 395 US 444 (1969), the U.S. Supreme Court reversed its earlier decision in Whitney vs. California, 274 US 357 (1927) and observed: “The Constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action”.

In Gitlow vs. New York, 268 US 652 (1925), Justice Holmes of the U.S. Supreme Court observed: “Every idea is an incitement.”

In his dissenting judgment in that case (with which Justice Brandeis joined), Justice Holmes observed: “It is manifest that there was no present danger of an attempt to overthrow the government by force on the part of the defendants. It is said that this Manifesto was more than a theory, that it was an incitement. Every idea is an incitement… The only difference between the expression of an opinion and an incitement is the speaker’s enthusiasm. Eloquence may set fire to reason. But the Manifesto had no chance of starting a present conflagration. If, in the long run, the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.

“If the publication of this document attempted to induce an uprising against government at once, and not at some indefinite time in the future, the object would have been one with which the law might deal, subject to whether it was not futile and too remote from possible consequences. But the indictment alleges the publication and nothing more.”

In Noto vs. U.S. 367 US 290 (297-298), Justice Harlan of the U.S. Supreme Court observed: “The mere teaching of Communist theory, including the teaching of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action. There must be some substantial direct or circumstantial evidence of a call to violence now or in the immediate future.”

In Noto’s case ( supra ), Justice Hugo Black wrote: “In 1799, the English Parliament passed a law outlawing certain societies on the ground that they were engaged in ‘a traitorous Conspiracy… in conjunction with the persons from time to time exercising the powers of government in France…’.” One of the arguments made by those who opposed this law was by a member, Mr. Tierney, who said: “The remedy proposed goes to the putting an end to all these societies together. I say these attempts lead to consequences of the most horrible kind. I see that government is acting thus: “Those whom they cannot prove to be guilty, they will punish for their suspicion. To support this system, we must have a swarm of spies and informers.” The decision in this case, in my judgment, illustrates the continuing vitality of this observation. The Government has failed to produce evidence the Court believes sufficient to prove that the Communist Party presently advocates the overthrow of the Government by force.”

In Communist Party vs. Subversive Activities Control Board, 367 US 1 (1961), Justice Hugo Black observed: “The first banning of a political party or association because it advocates hated ideas marks a fateful moment in the history of a free country. That moment seems to have arrived for this country. This whole Act, outlaws groups that preach doctrines nearly all Americans detest. When the practice of outlawing parties and public groups begins, no one can say where it will end. In most countries, such a practice once begun ends with a one party government.”

In Joint Anti-Fascist Refugee Committee vs. McGrath, 341 US 123, 174 (1951), Justice Douglas observed: “In days of great tension when feelings run high, it is a temptation to take short cuts by borrowing from the totalitarian techniques of our opponents. But when we do, we set in motion a subversive influence of our own design that destroys us from within.”

Part of Indian law All these judgments of the U.S. Supreme Court were referred to with approval by the Indian Supreme Court in Sri Indra Das vs. State of Assam , 2011, and, therefore, are a part of the law of the land in India too.

In his historic decision in New York Times vs. U.S. 1971 , Justice Hugo Black observed: “In the First Amendment, the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell. In my view, far from deserving condemnation for their courageous reporting, The New York Times , The Washington Post and other newspapers should be commended for serving the purpose that the Founding Fathers saw so clearly. In revealing the workings of government that led to the Vietnam war, the newspapers nobly did precisely that which the Founders hoped and trusted they would do.”

(Justice Markandey Katju is a former judge of the Supreme Court and former Chairman, Press Council of India.)

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