How India curbed its Freedom of Speech and Expression

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First published on Scroll/Quartz

Within only a year of the Constitution coming into force, Parliament passed the First Amendment which placed “reasonable restrictions” on free speech

The horrific attack on the office of Charlie Hebdo seems to have pitched India into a free speech maelstrom with some awkward, even depressing results. The day after the murders took place, HT Media’s business newspaper, Mint, decided to publish some of Charlie Hebdo’s cartoons as a defiant protest in favour of freedom of expression. Embarrassingly, only a few days later however, it put out a notice saying that it had “removed” the cartoons. The reason for this, Mint claimed, was that the cartoons had “offended some people”.   More odiously, the state moved in as well: Mumbai’s police blocked purportedly offensive social media posts related to Charlie Hebdo.

Neither incident came as a surprise, of course: India has a glorious tradition of restricting free speech. In fact, so vital is this quality to the nation’s lifeblood that the very first amendment made to India’s newly minted constitution sought to restrict freedom of speech. In an ironic coincidence, the First Amendment to the US’ constitution prohibits any abridgment of free speech. Maybe a lot can be said about a country from only its first amendment.

Indians get freedom of speech and expression

On 26 January, 1950, our founding fathers awarded India a fine constitution which, amongst other things, guaranteed its citizens “the right to freedom of speech and expression”. Almost immediately though, they were to regret this overgenerosity, as the judiciary started to limit executive action on the basis of freedom of expression. 

In Bihar, a government order to restrict a violent political pamphlet was quashed by the Patna High Court. So liberal was India’s freedom of speech at the time that a judge on the case held that “if a person were to go on inciting murder or other cognizable offences either through the press or by word of mouth, he would be free to do so with impunity because he could claim freedom of speech and expression”. This is remarkably similar to the US Supreme Court’s 1969 ruling in the Brandenburg case which held that the State cannot forbid advocacy of the use of force or of law violation unless the violence was intended, likely and imminent.

In Delhi, the government’s attempts at pre-censoring the RSS’ mouthpiece, the Organizer met the same fate. The East Punjab Public Safety Act, 1950, under which the curbs were being applied, was held to be unconstitutional by the Supreme Court.

The third case (May, 1950) turned out to be the most impactful and involved a left-leaning journal called Crossroads, published by Romesh Thapar from Mumbai. At the time, Madras state had banned the Communist Party and, as part of that policy, prohibited the entry and circulation of Crossroads in the state. Thapar contested this ban legally and won, with the Supreme Court declaring the Madras Maintenance of Public Safety Act, 1949 unconstitutional.

The Communist Party ha, at the time, declared war on the new dominion with the slogan “Yeh azadi jhooti hai” (this freedom is fake) and in Telangana was directly battling the Indian army. Thapar, while not a card-carrying member of the party, was widely seen to be a communist sympathiser and, therefore this decision by the Supreme Court greatly alarmed the administration.

The First Amendment is put in place

Within a week of the decision, Home Minster Vallabhbhai Patel wrote to Nehru, complaining that this ruling “knocks the bottom out of most of our penal laws for the control and regulation of the press”. Patel also expressed concern that this meant that the government would be unable to gag Hindu Mahasabha leader, SP Mookerjee, who was leading a troublesome campaign to get Bengal’s partition annulled (ironic, because just 3 years back, he was one its biggest supporters).

Nehru and Patel did not often see eye to eye but on this matter there was perfect agreement within the duumvirate: both leaders believed in a strong, centralised state.  In fact, not only Nehru and Patel, there was broad agreement on this matter throughout the government. Ambedkar, while less hawkish that either Nehru or Patel on the matter, still agreed on the need for curbs.

Events moved fast. By February, 1951, Nehru had constituted the Cabinet Committee on Amendment to modify Article 19 (which contained within in it, the freedom of speech). Law Minister, Ambedkar opined that the phrase “reasonable restrictions” be added. Patel’s Home Ministry, unsatisfied by the qualifier “reasonable” sought to have it removed. This qualifier left it up to the judiciary to decide what “reasonable” meant, curtailing the powers of the government.

Nehru came down on the side of the Home Ministry and the draft bill introduced in Parliament allowed the State to make laws which imposed “restrictions” on freedom of speech and expression “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 opposition to this bill was fierce, spearheaded by SP Mookerjee. Restrictions on free speech in the interests of “friendly relations with foreign States” directly gagged his efforts to overturn partition and he was naturally indignant. “The Prime minister believes that agitation to end partition is harmful to the country, but I think partition should be annulled. So why can we not each give our views and let the public decide,” argued Mookerjee in a forceful response to the bill.

In the face of this fierce opposition, the government backed down a bit. Nehru reintroduced the qualifier “reasonable”. This compromise in place, Parliament passed the bill 228 to 20.

Later on, in 1963, the Sixteenth Amendment would add another condition to the above seven: “the sovereignty and integrity of India” aimed at curbing Tamil separatism. Till then Dravida Munnetra Kazhagam had the secession of South India as part of its agenda, which it then subsequently dropped.

A (limited) freedom of expression

The can of worms this opened meant that modern India has lived with vaguely defined hate speech laws (Section 153A) and a blasphemy law (Section 295A). Faced with the diffused nature of the Internet, the government passed Section 66A of the Information Technology Act 2000 which even went so far as to penalise “offensive” electronic messages.

Backers of a limited right to expression usually argue that unrestricted free speech would cause law and order issues in India, much as the government did in 1951. The fact that India is a volatile country is not in doubt. Just 6 months back, a young Muslim man in Pune was murdered by a mob, incensed by derogatory images of Shivaji and Bal Thackeray (unlike in Paris, the murderers did not even bother to find out the source of the image).  

Like a number of other statist solution, however, curbs on free speech in the service of public order looks far better on paper than on the ground. As we’ve seen in Mumbai in 1993 or even in Gujarat in 2002, the state does not really seek to clamp down on free speech for such altruistic purposes. Instead, free speech curbs are used for petty political ends, banning books, movies, paintings and even Facebook status updates.

In spite of the widespread and frequent curbs on free speech, this is really not a political issue in India and there exists remarkable political consensus on their continuation. So deep is the rot that in most cases—from Penguin to Mint—people now simply censor themselves, which really is the best curb on freedom of expression anyone could wish for. 

Meet the icons of India's refurbished history: Mukherjee, Upadhyaya, Malaviya

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With India’s medieval history irrevocably communalised, the rise of the BJP now portends a steady reworking of modern history to suit its Hindutva agenda

[A version of this piece was first published on Scroll.in]

When well-meaning people protest history being politicised, it’s a bit like complaining about water being wet. Nineteenth century ideals of positivism, of history being an objective science seem to still be extremely popular. Of course, there is nothing perfectly objective about the writing of history—subjectivity in interpreting facts is a necessary part of the discipline. This also means that history can be, and often is, utilised by politics for its own needs. After all, whoever controls the past tends to controls the future.

It is in this light that we must see the flurry of activity in the usually sedate world of academic history ever since the Modi government assumed power with an absolute majority on May 16. Most recently, the Akhil Bhartiya Itihas Sankalan Yojana (ABISY), a historical research organisation with ties to the RSS, held a symposium to celebrate Hemu, the so-called last Hindu king of Delhi, who controlled the city with his Afghan forces for exactly 29 days. Unfortunately, like so much of Hindutva “history”, the core facts of the argument were simply made up and, in one rather hilarious example, scenes from the Bollywood movie Jodha Akbar were screened as part of a “documentary” on the period.

Medieval history has already been communalised

The ABISY might have made a hash of things, but it must be noted that at the popular—and political—level, the object of politicising medieval history has already been realised. Publicly, India has disowned the Muslim rulers who governed most of the subcontinent. Delhi and Agra might have been the capitals of the vast Mughal Empire but Mughals today are absent from the city’s roundabouts where you’re far more likely to find a statue of Shivaji, who ruled a kingdom 1,500 km away. On the Internet, there are many rants about roads named after Mughals in Delhi, but the fact is that in independent India, street nomenclature has scrupulously avoided medieval Muslim monarchs: the existing “Aurangzeb Road” and so on are parting gifts bequeathed by the British builders of Lutyens’ Delhi. In Lucknow, there is a road named after Maharana Pratap of Mewar but, ironically, Wajid Ali Shah, the tragic last nawab of the city itself, has been ignored by Lucknow’s civic planners.

Medieval therefore being won, the real fight is in more recent history. And some headway has already been made there, starting with attacks on Nehru, whose liberal policies make him a special hate figure in the Sangh Parivar. Modi set the ball rolling right at the campaign stage where he opined that Patel would have made a better Prime Minster than Nehru, echoing his guru, M.S. Gowalkar who greatly admired the Sardar as well.

However, communalising modern history isn’t going to be as easy as medieval history was. The latter has been undergoing this process since the time of the British who found it convenient to silo India’s history into “Hindu” and “Muslim”. The communalisation of modern history, though, is something which is far more recent. This explains the paradox of Modi, quite suddenly, calling upon the legacies of Nehru and Gandhi as he tries to build political capital for his schemes. Nehru as a political icon is no pushover and while Modi might love to snap his fingers and have the Pandit airbrushed from the scene, currently he will have to compromise with the past in order to secure his future.

India’s potential new icons

This does not mean an abject surrender to the Nehruvian version of the nineteenth and twentieth centuries but a steady erosion of it. Sure enough, the previous budget had social schemes named after Right-Wing stalwarts such as Shyama Prasad Mukherjee, Deendayal Upadhyaya and Madan Mohan Malaviya. All three are relatively unknown in the popular discourse but hold a special significance for the BJP as well as the larger Hindutva movement.

Shyama Prasad Mukherjee was the founder of the Bharatiya Jana Sangh, a party he started with the backing of the RSS in 1951 after falling out with Nehru. He persuaded the RSS to involve itself directly in political affairs. Till then the RSS had avoided politics, preferring to direct its energies towards Hindu society instead. The current BJP is, of course, the direct successor of the Jana Sangh. For its position on Kashmir and Article 370, the BJP takes direct inspiration from Mukherjee, even as it ignores the fact that he was a party to the disastrous decision to refer to the Kashmir issue to the UN.

Organisationally, however, Mukherjee had a limited impact on the Jana Sangh since he died within only two years of its founding. After that, Deendayal Upadhyaya took up the task of building up the Jana Sangh and had a seminal role to play in shaping the party’s ideology. His philosophical tract, Integral Humanism still has a key impact on the BJP, even being named in several manifestos. In it, Upadhyaya lays out the Hindutva view of India, rejecting Individualism and even Capitalism, both of which he characterised as Western imports alien to India and supported an “organic” form of the caste system which he felt would lead to a harmonious society. His social agenda has survived more or less intact in the BJP till this day. Upadhyaya’s Swadeshi economic agenda is less popular but rears its head every now and then as was demonstrated by Modi’s protectionist decision to reject the WTO’s Trade Facilitation Agreement.

Madan Mohan Malaviya is, of course, a Congress leader having been the party’s president on two occasions (1910 and 1918). But, like Patel, Malaviya’s religious and social conservatism endears him to today’s BJP. Additionally, he is also one of the early leaders of the Hindu Mahasabha, which during his time, functioned as a Hindu nationalist pressure group within the Congress (it would delineate itself as an independent party in the late 30s under the leadership of Savarkar). Malaviya founded the Banaras Hindu University with the aim of upholding Hindu tradition, including a hereditary caste system, even as he strongly opposed untouchability, correlating it to Muslim and Christian conversion, a strain of thinking which strongly influences the Hindu Right.

Fairly or unfairly, depending on your own political proclivities, Nehru, Gandhi and then Indira and Rajiv have dominated our public airwaves, as the Congress tried to cement its rule with help from its past icons. With the verdict of May 16, a realignment of the historical stars is on the plate. Already the BJP’s chief Twitter intellectual Subramaniam Swamy, never one to miss a chance at medievalism, has called for the books of Nehruvian historians to be “burnt in a bonfire”. “It is important to resize the stature that Nehru enjoys in Indian history,” said Swamy later on in an op-ed in The Hindu. Slowly the BJP will push its own icons to replace the old Nehruvian ones. This will include fellow ideological travellers such as Vallabhbhai Patel, Madan Malaviya, Dayanand Saraswati and Swami Vivekananda but will also include people such as S.P. Mukherjee and Deendayal Upadhyaya who have contributed organisationally to make the BJP what it is today.