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Part VII Rights—Substance and Content, Ch.45 Free Speech and Expression

Lawrence Liang

From: The Oxford Handbook of the Indian Constitution

Edited By: Sujit Choudhry, Madhav Khosla, Pratap Bhanu Mehta

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved.date: 14 June 2021

(p. 814) Chapter 45  Free Speech and Expression

I.  Introduction

The legal history of freedom of speech and expression is a fertile site from which we can explore the relationship between constitutionalism and the imagination of a democratic public sphere. Given the public nature of censorship controversies, debates on the content and scope of the freedom of speech and expression in Article 19(1)(a) of the Constitution, as well as the ‘reasonable restrictions’ in Article 19(2), have animated public imagination and fuelled contestations over the nature of democracy in India.1 A number of Supreme Court decisions have been quick to distinguish the free speech tradition in India from other jurisdictions. An illustrative instance is the Court’s observations in Life Insurance Corporation v Manubhai D Shah,2 which, unlike the First Amendment in the United States, Article 19(1)(a), is not an absolute right and must be exercised in a way that does not jeopardise the rights of another or clash with ‘the paramount interest of the State or the community at large’.3 This observation summarises the key dilemmas that have characterised the history of free speech in India. While these themes are not unique to India, there is nonetheless a sense of an Indian exceptionalism that runs through discussions of Article 19(1)(a) and Article 19(2).

This chapter begins with the classical normative arguments for free speech. I argue that the democracy argument has been the primary justification used by the judiciary in free speech cases, and examine its consequences. I then investigate a recurring assertion about the colonial character of speech-restrictive laws and consider what exactly it is about the colonial history of the regulation of speech that informs our understanding of the constitutional design of Articles 19(1)(a) and 19(2). I suggest that a constitutive split between the universal speaking subject and the infantilised native subject in the colonial period transforms itself in the post-colonial period into a problem of the ‘social’ and examine what this means for free speech. I then look at the substantive scope of Article 19(1)(a), its expansion (p. 815) in particular domains, and the standards for determining reasonableness. The chapter then traces the doctrinal history of seditious speech, before moving to a brief analysis of hate speech and obscenity. I conclude with thoughts about the necessity of supplementing the idea of a deliberative democracy with an idea of agonistic politics if we are to enrich and strengthen the free speech tradition that has evolved over the past sixty years.

II.  Justifying Free Speech

There are a number of competing theories that provide a normative justification for free speech. Scholars typically base free speech either on instrumental theories (which are aimed towards securing or promoting other values such as democracy) or intrinsic value theories (where speech is valued in and of itself).4 Familiar versions of instrumental theories are the ‘marketplace of ideas’, ‘speech promoting democracy’, ‘watchdog theory’, or ‘speech promoting the truth’. Non-instrumental theories, on the other hand, posit that speech and expression are essential to the development of the autonomy of an individual regardless of their social utility and this is a desirable end in and of itself. The Indian experience has a well-developed jurisprudence of the instrumental theory of speech, but a much weaker tradition of promoting the intrinsic value of speech. Similarly while many cases focus on the question of freedom of speech, very few actually address the scope of ‘expression’ in Article 19. Consider the example of someone who refuses to stand when the national anthem is played, claiming his right to do so under Article 19(1)(a). Does he automatically become an anti-nationalist? In 1987, in a significant free speech case, three students who belonged to the religious group ‘Jehovah’s Witnesses’ were suspended from their school in Kerala for refusing to sing the national anthem in school. The Supreme Court overturned their suspension on the grounds that the right to freedom of speech and expression included the right to remain silent.5 It held that while the students did not join in the singing of the anthem, they had not shown any disrespect, since they stood up along with the other students. Does this mean that the refusal to stand up would automatically qualify the act as being a disrespectful one and one which falls outside of the scope of protectable speech and expression under Article 19(1)(a)? This question hinges on how we understand the phrase ‘expression’. Debates on free speech often focus on the speech element but ignore the expression element. If the right to free speech includes the right to remain silent, then would free expression include a non-action? As per Section 3 of the Prevention of Insults to National Honours Act 1971, ‘Whoever intentionally prevents the singing of the Indian National Anthem or causes disturbances to any assembly engaged in such singing shall be punished with imprisonment for a term, which may extend to three years, or with fine, or with both.’ It is clear that the law requires an active act of disturbance to constitute an offence but does it include a quiet refusal to stand for the national anthem?6(p. 816)

Normative theories of free speech are not mutually exclusive and courts can use a particular justification in one case while relying upon a different justification in another. One way of thinking about the choice of the normative theory in free speech cases is to think of it as a framing device—an outer shell determining the basic shape that free speech disputes take, with a significant impact on the outcome of free speech cases.7 Consider, for instance, the contrasting approach of the US and Indian courts to the marketplace of ideas theory. The theory originated in Wendell Holmes J’s opinion in Abrams v United States: ‘the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of 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’.8

The analogy of the marketplace is rooted in economic theories and draws on underlying free market assumptions about liberty and competition being the best form of governance.9 Indian courts have adopted a more sceptical approach towards the marketplace of ideas. In the Cricket Association of Bengal case,10 the Supreme Court implicitly rejects the free-marketplace-of-ideas theory, preferring a balance of public interest approach in deciding whether the State could have a monopoly on airwaves. Even as it was uncomfortable with the idea of an absolute State monopoly, the Court, citing critiques of the marketplace theory, leaned towards independent regulation in the public interest and recommended the setting up of an independent regulatory body to oversee the use of airwaves. The outcome was clearly informed by the choice of the outer frame. In S Rangarajan v P Jagjivan Ram,11 the Court similarly refused to extend the free marketplace metaphor to broadcast media, distinguishing between different media forms and concluding that while the metaphor could be used for newspapers, it could not be extended to films.

Of the various free speech theories, the Supreme Court has relied primarily on the relationship between free speech and the promotion of democracy. In its very first case on free speech, the Court held that the freedom of speech and of the press lay at the foundation of all democratic societies.12 Under this account, free speech does not just promote democracy but is one of the defining ingredients of democracy itself.13 In Rangarajan, the Court argued that:

Democracy is Government by the people via open discussion. The democratic form of government itself demands [from] its citizens an active and intelligent participation … public discussion with people’s participation is a basic feature and a rational process of democracy which distinguishes it from all other forms of Government.14

The Emergency imposed by Indira Gandhi in the 1970s is seen as one of the darkest periods of Indian democracy, with the suspension of fundamental rights, the gagging of the press, (p. 817) and the suppression of all dissent.15 It is arguably in light of the Emergency that we see the Supreme Court making its sharpest observations on free speech: ‘Freedom to air one’s views is the lifeline of any democratic institution and any attempt to stifle, suffocate or gag this right would sound a death-knell to democracy and would help usher in autocracy or dictatorship.’16 Yet one question which remains unaddressed, and to which I shall return, is the question of what conception of democracy the Court holds. One consequence of the democratic theory justification is an inclination towards speech that, in its view, advances the cause of democracy,17 and in the event that there is a conflict between free speech and other values the Court has held in favour of free speech.18

The Court has also carved out new rights from Article 19(1)(a) based on the democracy argument. In State of Uttar Pradesh v Raj Narain,19 the Court recognised a right to know from the freedom of speech. One can infer from its reasoning that the link between the right to speech and the right to know is built on the basis of transparency of governance. If free speech enables citizens to participate in political processes, this includes the right to demand accountability from those who govern. If democracy and free speech are understood to have a constitutive relation to each other, it is consistent to ground the right to know within the right to freedom of speech and expression. Yet one of the drawbacks of relying solely on the democracy argument is that it has almost been reduced to a normative cliché, with the Supreme Court simply recycling it in almost all free speech cases, rather than using each case as an opportunity to confirm, clarify, and create new political vocabularies for speech and democracy. If we turn, for instance, to a non-instrumental theory of speech such as the autonomy conception, which advocates the development of individual autonomy through speech, we find it to be on a much weaker footing in India.20 An example of this is the silence in the Delhi High Court decision in the Naz Foundation case on the speech rights of sexual minorities.21 While the Court discussed the relationship between equality, dignity, and privacy via Articles 14, 15, and 21, it did not address the question of the relationship between free speech and the expression of personal identity, despite it being raised by the petitioners. This reluctance, I would argue, stems from the absence of a tradition that links speech to a philosophy of expressive identity.

III.  Colonial Continuity, Sedition, and Public Order

A number of laws that curtail free speech have colonial origins.22 A recurring theme that emerges in evaluations of free speech in India is the assertion that the continued existence (p. 818) of such laws and their use testifies to the fact that in the domain of speech we face a problem of colonial continuity.23 What is it about the colonial construction of the public sphere and the speaking subject that continues to influence the State and the judiciary’s response to free speech? The Constituent Assembly debates reveal that India’s founders were acutely aware of the political misuse of penal laws such as sedition to suppress free speech, and their motivation to recognise a strong free speech right stemmed partly from their desire to distinguish the democratic republic from colonial rule. At the same time we encounter a paradox, which began with the making of the Constitution and continues to date, as we encounter a reluctance to recognise an absolute right of free speech on the ground that the Indian polity is not ready for it, thereby recycling some assumptions that had informed the logic of colonial rule. The logic of colonial rule creates a split at its very origin between a universal rational subject (the enlightened European as a bearer of rights) and the native subject (marked by a hypersensitive excess) and this foundational split reappears in the post-colonial context in terms of class, gender, and literacy. In other words, the realm of the political is circumscribed by an excessive social sphere, which is unable to shed its positivity to emerge as the properly constituted public sphere.24 If one were to map this out onto the terrain of the Constitution one can see a mirroring of this split in the distinction between Article 19(1)(a), which imagines the citizen as a rational speaking and listening subject, and Article 19(2), which circumscribes the possibilities of such speech through the incorporation of regulatory measures that have in mind an affective public sphere susceptible to outrage and provocation.25

Asad Ali Ahmed, outlining the evolution of hate speech laws in colonial India, has shown that colonial subjects were portrayed by lawmakers like Macaulay and others as highly excitable subjects who were easily prone to taking offence and responding violently to such offence.26 These racially essentialist accounts created the context for the emergence of the colonial State as a rational and neutral arbiter of emotionally excitable subjects prone to emotional injury and physical violence. Arun Thiruvengadam characterises the different historical periods of free speech as encompassing a universalist nature (dominant during the anti-colonial struggle) which were subsequently replaced (during the Constituent Assembly debates) by particularistic concerns which led them to permit several grounds of restrictions of rights in response to such conditions.27 One might add to this argument (p. 819) by suggesting that the paradox of free speech in India might be thought of in the following terms: while the right to free speech is one that is granted to all citizens, the question of who can occupy the space of the properly constituted citizen is far more tenuous. If the founding constitutional vision is seen against the backdrop of Partition and its impact on citizenship, Article 19(1)(a) can be understood as trying to create a space of deliberative democracy. It is at best a partial project where the deliberative nature of the reason underlying it is also accompanied by a sense of a nervous public sphere exemplified in Article 19(2), where the full citizen and the infantilised citizen occupy the same sphere.

IV.  The Scope of Article 19(1)(a)

1.  The Domain of Free Speech

Freedom of speech would mean very little if it were not able to respond to political, social, and technological changes. The Supreme Court has confirmed this in its assertion in Manubhai Shah that a constitutional provision is ‘never static, it is ever-evolving and ever-changing and, therefore, does not admit of a narrow, pedantic or syllogistic approach’.28 This case is an instance of a dynamic approach to speech. The Life Insurance Corporation of India (LIC) had responded in its in-house magazine to critiques levelled against it, but denied the petitioner the right to respond in the magazine, claiming that it was an in-house publication. The Court held this to be in violation of free speech and characterised LIC’s refusal as ‘unfair and unreasonable’.29 Fairness demanded that both views be placed before the readers to enable them to draw their own conclusions, and there was no logic or proper justification for refusing publication. Both reasons are premised on the right to communicate but also involve access to means of communication. By introducing the idea of fairness, the Court effectively expands the scope of Article 19(1)(a), since the fairness factor clarifies the substantive scope of Article 19(1)(a) along with reading a need for procedural fairness as a test for Article 19(2).

There are two ways in which judicial interpretations of free speech extend democratic space. One is through clarifying the scope of the right to speech and circumscribing restrictions strictly, and the other is by extending the boundaries of what amounts to protectable speech. The question of commercial speech and the right to broadcasting are examples of the latter. In Hamdard Dawakhana, the Supreme Court refused to grant commercial speech the same level of protection that it afforded other forms of speech, arguing that it does not have the same value as political or creative expression.30 It reversed its position in Tata Press Ltd v Mahanagar Telephone Nigam Ltd, clarifying that commercial speech per se was not outside the domain of Article 19(1)(a) and Hamdard was applicable only to commercial speech that was deceptive and misleading.31 The crucial question is how courts restrict or widen democratic spaces and possibilities when they choose to either contract or expand the domain of protectable expression. UR Rai, in his reading of the judgment, suggests that (p. 820) the Court would have done better to have treated commercial speech within the ambit of Article 19(1)(g) rather than Article 19(1)(a), on the ground that the relational nexus it has to traditional free speech concerns is far less than its proximity with trade.32 While Rai’s reasoning seems to offer a pragmatic solution to the question of commercial speech, I would suggest that the significance of according commercial speech protection as a speech right has two important consequences. First, an expansion of the domain of protectable speech expands the possibilities of democratic space by widening the net of public participation and legally recognised expressive forms. Secondly, it renders commercial speech susceptible to free speech claims. In recent times this has become all the more important as the lines between commercial expression and free speech concerns get blurred in the overlap between trademark, copyright, and free speech.33

The freedom of the press was read into Article 19(1)(a) in Sakal Papers,34 Bennett Coleman,35 and Indian Express,36 despite not being formally recognised in Article 19(1)(a). In contrast, the right to broadcasting has had a harder time finding recognition.37 Inheriting its doctrinal legacy from cases about film censorship, where the courts distinguished between different mediums to justify a differential treatment of cinema, there was an initial reluctance to afford a speech right to broadcasting.38 In Odyssey Communications, the Court equated the right to express oneself on television with the right to use traditional media and held that the right to exhibit films was protected in Article 19(1)(a), thereby redeeming the hitherto low status accorded to film.39 This judgment has been hailed for inaugurating a right to broadcast.40 The Court then extended this further in the Manubhai Shah case, where it held that ‘the words “freedom of speech and expression” must be broadly construed to include the freedom to circulate one’s views by words of mouth or in writing or through audio-visual instrumentalities’.41 The right to broadcast culminated in the Cricket Association of Bengal,42 which unlike the previous cases did not involve a content-based restriction but a restriction based on State monopoly over airwaves. The judges effectively recognised a right to broadcasting under Article 19(1)(a) subject to the management of scarce resources in the interests of the public. The coming together of two forms of creative expression—namely film and cricket, which remain the largest mode of mobilising the public in India—along (p. 821) with a new public sphere created by television, allowed the Court to significantly expand the scope of freedom of speech and expression.43 One way of thinking about how the scope of free speech expands is by evoking the media analogy ‘incremental amplification’ to understand how free speech metaphors that begin with the image of an individual speaker in a street corner begin to incorporate technologies from the microphone to newspapers to television, and finally the Internet. A spatial understanding of speech creates two innovative developments in the understanding of free speech jurisprudence. First, it incorporates an understanding of the ecology of speech which includes recognition of infrastructure and access to infrastructures of communication; and, secondly, given the nature of broadcasting as a mass medium, it locates the right to broadcast not only within the logic of a speaking subject but also from the perspective of spectatorial rights.

2.  The Test of Reasonableness

What tests and standards has the Supreme Court evolved in its interpretation of ‘reasonableness’ under Article 19(2)? It has applied multiple standards to determine reasonableness, including proximity, arbitrariness, and proportionality. Any law that overreaches in its attempt at curtailing free speech runs the risk of being declared unreasonable. An illustrative instance of this is Section 66A of the Information Technology Act 2000, which penalises speech on the grounds of information being ‘grossly offensive’, possessing ‘menacing character’, ‘causing annoyance’, etc. Would these restrictions stand the test of reasonableness under Article 19(2)? In March 2015, the Supreme Court answered this question.44 Such grounds were declared to be vague and undefined, and the provision was struck down as unconstitutional.

The first major test with regard to Article 19(2) is that of proximity. In Ram Manohar Lohia, the Court emphasised that for a restriction to be reasonable, it must have a reasonable relation to the object the legislation has in view and must not go beyond it.45 Here the Court was closely following the standards laid down in State of Madras v VG Row, which held that it is difficult to lay down an abstract test of reasonableness and what the judiciary needs to closely examine are ‘the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, [and] the prevailing conditions at the time’.46

This introduces a second element, namely the test of proportionality, in deciding the reasonableness of a restriction. The proportionality test looks not just at proximity but also whether a legal restriction is excessive in nature. While courts have elaborated the proximity test, they have paid relatively less attention to the proportionality test. In Virendra Ojha v State of Uttar Pradesh, the Allahabad High Court observed that in administrative action affecting fundamental freedoms, proportionality has always been applied in India even though the word ‘proportionality’ has not been specifically used.47 We find evidence of this in the Court’s reasoning in Ram Manohar Lohia when it says that a restriction becomes (p. 822) unreasonable if it is excessive. The proportionality test, which is more developed in administrative law, serves as an important test for determining whether the scope of restrictions sought to be imposed balance a legal right and a prohibition. Chintaman Rao v State of Madhya Pradesh,48 though not a free speech case, nevertheless established the proportionality test which can be usefully extended to free speech cases. Here the Court found that:

The phrase ‘reasonable restriction’ connotes that the ‘limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public’. The word ‘reasonable’ implies intelligent care and deliberation, that is, the choice of a course which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness.49

This opinion was affirmed in Sahara India Real Estate Corporation Ltd v Securities and Exchange Board of India, in which the Court had to balance the right to free speech with the postponement of the publication of news.50 Reading Chintaman Rao along with developments in European jurisprudence, the Court held that in passing orders of postponement, ‘courts have to keep in mind the principle of proportionality and the test of necessity’.51 The ‘necessity to pass such orders’ has to be evaluated ‘not only in the context of administration of justice but also in the context of the rights of the individuals to be protected from prejudicial publicity or misinformation’.52 Thus, we notice that when a law clearly violates Article 19(1)(a) by virtue of it not deriving its authority from Article 19(2), then it is not difficult for the judiciary to strike it down. However, in most instances, it is not that the constitutive offence which is missing (say, public order), but rather that the nature of the restriction sought to be imposed is either vague or overreaches. In such cases, the test to determine its reasonableness becomes the only mode to protect speech. The reasonableness test is therefore the crucial pivot that hinges a substantive commitment to free speech to procedural safeguards.

3.  A Notable Failure

While the preceding sections have outlined the positive role of the Supreme Court in expanding the domain of speech, it would be incomplete without highlighting some of its monumental failures. An important recent example is Baragur Ramchandrappa v State of Karnataka,53 in which an author appealed a Karnataka High Court decision upholding an order of forfeiture of his historical novel Dharmakaarana based on the life of Basavanna. The novel, which fictionalised the life of Basavanna, contained a section that speculated on the unclear parentage of the saint. Despite the fact that this is indeed an issue on which there has been no agreement between scholars and the assertion by the author that it was a historical novel, the Supreme Court upheld the order to ban the book. This judgment suffers from numerous conceptual problems but it is worth highlighting three.(p. 823)

First, Section 95 of the Code of Criminal Procedure 1973 empowers the government to issue an order forfeiture against any book when the book ‘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 295-A of the Indian Penal Code (45 of 1860)’. Section 95 provides the government preventive powers and hence has to be strictly interpreted. It was alleged by the petitioner that any opinion under Section 95 had to establish a prima facie case that it violated the substantive provisions cited and therefore a case had to be made that it was ‘malicious and intended to outrage the feelings of a group or class of citizens and in the absence of either of these ingredients, no order under Section 95 of the Code could be justified’.54 The Supreme Court rejected the claim that the onus fell on the government to prove these ingredients and relying on generic observations made on public order in Lalai Singh Yadav,55 the Court concluded that the word ‘appears’ does not:

[R]equire that it should be ‘proved’ to the satisfaction of the State Government that all requirements of the punishing sections including mens rea were fully established … all that Section 95(1) therefore required was that the ingredients of the offence(s) should ‘appear’ to the government to be present.56

This shifts the burden to the applicant challenging the order of forfeiture. Rather than holding the executive accountable through public reason for its actions, the Court presumes the validity of such actions even without any reason provided. It also paves the way for the executive to respond to inchoate claims of hurt sentiment without regard to substantive principles that have emerged in judicial decisions that narrow the scope of vaguely worded laws.

Secondly, the Court cited a number of its own judgments, including Rangarajan, in which the test for determining whether someone was affected by a speech act was held to be that of an ‘ordinary man of common sense and prudence and not that of an out of the ordinary or hypersensitive man’.57 It also reiterated the fact that the allegedly offending sections of a work had to be read in the context of the whole work and not in isolation, but then proceeded to ignore these principles by privileging the claims of a few members of a community and their interpretation of the work.

Finally, the Court arrogated for itself the role of literary-cum-historical interpreter of disputed claims of fact. Thus if any author writes a speculative work of fiction on a historical topic and is unable to prove the ‘facts’, and this speculation offends a small class of persons, the Court in Baragur Ramchandrappa effectively presumes that such work can be deemed to be ‘deliberately designed to be hurtful’.58 The Court concluded that ‘We also have no hesitation in observing that the novel with its complimentary passages in favour of Basaveshwara is merely a camouflage to spin and introduce a particularly sordid and puerile story in Chapter 12.’59 And it is precisely this kind of certitude without reason that undoes the reputation of the Supreme Court as a defender of free speech.

(p. 824) V.  Subversive Speech: Public Order and Sedition

The law of sedition was introduced by Section 124A of the Indian Penal Code (IPC) 1860, in 1870 as a draconian measure to counter anti-colonial sentiments. Several major leaders of the independence movement, including Gandhi and Tilak, were tried under this provision. Gandhi famously described Section 124A as the ‘prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen’.60 When the Constituent Assembly deliberated the scope and extent of restrictions that could be placed on free speech, the prominent exclusion from what eventually became Article 19(2) was the word ‘sedition’.61 In the original draft that was up for discussion the word ‘sedition’ had been included as one of the grounds for the restriction on speech. A number of the Constituent Assembly members took objection to this, highlighting the misuse of sedition laws during colonial rule.62 The first battles over free speech in post-colonial India involved the troubling legacy of sedition. Granville Austin describes the Indian Constitution as one that encompassed three strands: ‘building a strong state, establishing the institutions and spirit of democracy, and fostering a social revolution’.63 Together, they formed the ‘seamless web’ of the Constitution, but within the very first year this web began to unravel, with conflicts between the democratic thread (free speech claims) and the sovereignty thread. Given Partition, Nehru’s government was worried about two political impulses that he saw as being divisive: the extreme Left on one side and the religious right on the other. While Nehru constantly cautioned against India becoming a police state, he simultaneously mistrusted the inflammatory potential of many regional newspapers.

Two decisions of the Supreme Court triggered the first constitutional crisis in independent India. In its original form Article 19(2) used the words ‘undermines the security of the State or tends to overthrow the State’. In Romesh Thappar v State of Madras,64 the Government of Madras imposed a ban upon the entry and circulation of a magazine, Crossroads. Romesh Thappar approached the Supreme Court, arguing that the ban was a violation of his freedom of speech and expression.65 The question was whether a law which allowed for the banning of books ‘for the purpose of securing the public safety or the maintenance of public order’ violated Article 19(2), since the latter did not contain the phrase ‘public safety’ or ‘public order’, and whether it fell within a ‘law relating to any matter which undermines the security of or tends to overthrow the State’. The Court held that the phrase ‘public safety’ (p. 825) 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 and concluded that:

[U]nless 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.66

The Court alluded to the specific exclusion of the word ‘sedition’ in Article 19(2), suggesting that the intent had been to define a very narrow sphere of restriction.67

The Supreme Court arrived at a similar decision in Brij Bhushan.68 The key factor in both decisions was the absence of the phrase ‘public order’ in Article 19(2) and the Court interpreted restrictions on freedom of speech and expression as being legitimate only if they pertained to ‘undermining the security of the state or overthrowing of it’.69 Mere criticism of the government could not be considered as speech that could be restricted for the purposes of Article 19(2). Fazl Ali J delivered a dissenting decision in both cases, and argued that the various phrases ‘sedition’, ‘public safety’, ‘public order’, and ‘undermining the security’ were fungible and any act that threatens public order had the tendency to overthrow the State as well.70 From the Supreme Court’s decisions in Romesh Thappar and Brij Bhushan, we can conclude that the judiciary did not share the same apprehensions and fears that the government had about the imminent implosion of the country. The government saw the two judgments as an erosion of the sovereignty of the State and introduced the First Amendment to the Constitution within a year of its inception. This amendment has had wide consequences for the development of free speech jurisprudence and the two salient features of the Amendment include the introduction of ‘public order’ as one of the grounds for restricting speech, but also a qualification through the addition of the word ‘reasonable’ before the word ‘restrictions’.

The question of how much criticism a government can tolerate is indicative of the self-confidence of a democracy. On that count India presents a mixed picture where, on the one hand, we regularly see the use of sedition laws to curtail political criticism even as we find legal precedents that provide a wide ambit to political expression. At the heart of the debate on subversive speech is the question of how the law imagines the relationship between speech and action. JL Austin once distinguished between illocutionary speech acts and perlocutionary speech acts.71 While for the former there is no temporal gap between an utterance and its effect, in the latter there is a temporal disjuncture between utterance and effect. In thinking of the scope of free speech in relation to public order in Article 19(2) and sedition in Section 124A of the IPC, a key question has been how courts conceptualise the relationship between speech and effect. Is someone who advocates the use of violence to overthrow the government entitled to protection under Article 19(1)(a)? Does a harsh criticism of the government amount to an act that undermines the security of the State or a disruption of public order?(p. 826)

In understanding the relationship between free speech and subversive speech, Indian courts have explicitly rejected the American ‘clear and present danger’ test on the ground that fundamental rights guaranteed under Article 19(1) of the Indian Constitution are not absolute rights and are subject to the restrictions placed in the subsequent clauses of Article 19.72 The rejection of American standards by itself does not solve the problem of where the line between speech and action while interpreting Article 19(2) is drawn. Unlike the relatively straight line that can be drawn to trace the doctrinal development of subversive speech and action in the US, in India it emerges more as a criss-crossing set of lines that move between different standards and across different forms of speech. If, in American constitutionalism, the ‘bad tendency’ test established a loose nexus between speech and effect and the ‘clear and present danger’ test demanded a closer proximity between speech and consequence, in India we find a slightly different spectrum, which runs between ‘bad feelings’, ‘bad tendency’, and the standards of ‘clear and present danger’. The interpretation of sedition during the colonial era tended towards a narrower space for any subversive speech and, in that sense, Romesh Thappar and Brij Bhushan were remarkable for their ability to distinguish between different levels of threat and impact in assessing speech in a post-colonial context.

The first major significant case after the First Amendment was Ramji Lal Modi v State of Uttar Pradesh.73 While not being a sedition case, it was the first to examine the scope of the words ‘in the interest of’ and ‘public disorder’ in Article 19(2). The question in this case was whether Section 295A of the IPC was protected by Article 19(2). The petitioners argued that Section 295A sought to punish any speech which insulted a religion or the religious beliefs of a community, but not all insults necessarily lead to public disorder. Since the provision covers speech that does not create public disorder, it should be held to be unconstitutional. The Supreme Court disagreed with this interpretation and held that the phrase ‘in the interests of’ has a much wider connotation than ‘for the maintenance of’ public order.74 Thus, ‘If … certain activities have a tendency to cause public disorder, a law penalizing such activities as an offence cannot but be held to be a law imposing reasonable restriction “in the interests of public order” although in some cases those activities may not actually lead to a breach of public order.’75 The Court also held that Section 295A did not penalise every act of insult, but only those which were perpetrated with the ‘deliberate and malicious intention of outraging the religious feelings of [a] … class’.76 It introduced two tests: ‘aggravated form’, which defines the criteria for what counts as an insult, and the ‘calculated tendency’ of the insult to disrupt the public order.77 This is a confusing standard since while interpreting ‘in the interest of’ it comes close to the ‘bad tendency’ test with no requirement of any actual proximity between speech and consequence, at the same time it qualifies the ‘bad tendency’ test with ‘calculated tendency’.

The next major case was Superintendent, Central Prison v Dr Ram Manohar Lohia.78 Here, the Court discussed the idea of public order and observed that under Article 19(2) the wide concept of ‘public order’ is ‘split up under different heads’ (security of the State, friendly relations with foreign States, public order, decency or morality, etc) and argued (p. 827) that ‘while all the grounds mentioned … can be brought under the general head “public order” in its most comprehensive sense’, it was important that ‘public order’ be ‘demarcated from the others’.79 In its understanding, ‘public order’ was ‘synonymous with public peace, safety, and tranquility’.80 In its discussion of Ramji Lal Modi, the Court observed that the distinction between ‘in the interest of’ and ‘for the maintenance of’ ‘does not ignore the necessity for [an] intimate connection between the Act and the public order sought to be maintained by the Act’.81 It added that after the word ‘reasonable’ had been added to Article 19(2), it was imperative that restrictions have a reasonable relation to the object that the legislation seeks to achieve, that is, the public order.82 If the restriction has no proximate relationship to the achievement of public order, it fails the reasonableness test. The Court cited, with approval, the Federal Court decision in Rex v Basudeva,83 which established the proximity test where a restriction has to have a proximate connection or nexus with public order. Ram Manohar Lohia therefore introduced a double test—proximity and proportionality.84

The Supreme Court had the opportunity to clarify the scope of public order in Kedar Nath Singh v State of Bihar, a case which challenged the constitutional validity of Section 124A.85 The Court in Kedar Nath Singh, after examining the conflict in standards in the colonial decisions (between ‘bad feelings’ and ‘bad tendency’), observed that since sedition was not included in Article 19(2) it implied that a more liberal understanding was needed in the context of a democracy. The Court made a distinction between a strong criticism of the government and those words that excite with the inclination to cause public disorder and violence. It also distinguished between ‘the Government established by law’ and ‘persons for the time being engaged in carrying on the administration’.86 The Court further held that:

[S]trong 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.87

The Court concluded that what is forbidden are ‘words, written or spoken, etc. which have the pernicious tendency or intention of creating public disorder or disturbance of law and order’.88 So if Ramji Lal Modi introduced the idea of ‘calculated tendency’, Kedar Nath Singh provided us with the phrase ‘pernicious tendency’. Does this effectively reintroduce the ‘bad tendency’ test? It appears that part of the confusion in Kedar Nath Singh emerges from the eagerness of the Court to save Section 124A from being invalidated. Towards this end, it wants to acknowledge that if sedition were interpreted to mean disaffection in the sense of creating bad feelings alone, it would be invalid on the basis of exceeding Article 19(2). It is only by drawing a nexus between speech and consequence in a manner consistent with Article 19(2) that the provision is saved. While Kedar Nath cited Ramji Lal Modi, (p. 828) it completely ignored Ram Manohar Lohia, which had reinterpreted Ramji Lal Modi to develop a strict test of proximity.

One of the most significant tests that have emerged after Lohia and Kedarnath is the analogy of ‘spark in a powder keg’ in the Rangarajan case.89 In a crucial paragraph in Rangarajan, the Supreme Court explicitly held that while there has to be a balance between free speech and restrictions for special interest, the two cannot be balanced as though they were of equal weight. One can infer that the Court was making it clear that exceptions have to be construed precisely as deviations from the norm that free speech should prevail except in exceptional circumstances. But what counts as an exceptional circumstance?

Our commitment of freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far-fetched. It should have proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest. In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a ‘spark in a powder keg’.90

The Court in this paragraph clearly lays down the standard that has to be met in alleging a relation between speech and effect. The analogy of a spark in a powder keg brings in a temporal dimension of immediacy where the speech should be immediately dangerous to public interest. In other words, it must have the force of a perlocutionary speech act in which there is no temporal disjuncture between word and effect. A cumulative reading of the cases on public order and sedition suggests that as far as subversive speech targeted at the State is concerned, one can infer that even if there is no absolute consistency on the doctrinal tests, there is a consistency in the outer frame, namely that democracy demands the satisfaction of high standards of speech and effect if speech is to be curtailed.91

VI.  Hate Speech and Obscenity

While we do not have the space to enter into a detailed discussion of hate speech, I would like to raise one question about how we think of the two spheres (vertical speech relations and horizontal speech relations) and their intersection in hate speech doctrines. We have already seen that the law has a complex negotiation between the speech and consequences in our discussion of illocutionary and perlocutionary speech. Following Judith Butler, I will characterise the force that underlies an individual’s speech act and its possible consequences as the sovereign force of words.92 When the words of a speaker have the possibility of effecting immediate consequences (for instance, urging a crowd to demolish a structure) there is a sovereign force that propels the speech into action. On the other hand, a person could urge the violent overthrow of the State with no consequences. As a principle this (p. 829) comes close to what Joel Feinberg would characterise as the harm principle, whereas the regulation of speech amongst communities, at least in statutes, seems to rely less on the harm principle than on an offence principle, namely hurt sentiment.93 We have seen, however, that the Supreme Court, in adjudicating claims of hurt sentiment, has attempted to classify the nature of speech on a hierarchical scale requiring both a degree of intention (‘calculated tendency’) and magnitude (‘aggravated insult’) for it to fall foul of Section 295A.94 Even if it is not made explicit, there seems to be an implied recognition of the fact that sometimes speech acts fail and do not achieve their intended goals (provoking action or hatred). This failure of the sovereign force of words should serve as a way to distinguish between vertical speech relations and horizontal speech relations. The difference between the two is characterised by the relative power relations that exist between the speaker and the listener. If, for instance, the speaker is a powerful figure (for instance, a politician or a religious leader) with knowledge that his speech has the capacity of instigating people to act upon such speech, then it is clear that his speech has a much higher sovereign force. On the other hand, an individual with relatively little capacity to influence others by virtue of his speech shares a horizontal speech relation to his listeners. One of the problems posed by hate speech legislation, which needs conceptual clarification by the courts, is the flattening out of the difference between these two relations.

VII.  Doctrinal Confusion and Obscenity Standards

The standards to determine obscenity are an instance of the confusing development of doctrinal principles in free speech jurisprudence in India. I will briefly highlight two moments separated by almost fifty years but united by doctrinal confusion.

The first case, Ranjit D Udeshi v State of Maharashtra,95 applied and affirmed the Hicklin96 test in 1965, while deciding whether DH Lawrence’s Lady Chatterley’s Lover was a book that could be considered obscene for the purposes of Section 292 of the IPC.97 The appellants highlighted the redundancy of the archaic Hicklin test, arguing that the Hicklin test had given way to a more contemporary standard, the Roth test.98 The Roth test moved obscenity away from a vulnerable populations test to a contemporary community standards test and also required that the material be without social value. The Roth test was eventually (p. 830) replaced by the Miller test,99 where the necessity of ‘utterly without redeeming social value’ was rejected. In choosing to retain the Hicklin test, the Court rejected the contention that the Hicklin test chose to foreground the allegedly obscene sections of a work rather than looking at it as a whole. Hidayatullah J emphasised that Cockburn J’s words that ‘the matter charged’ must have ‘a tendency to deprave and corrupt’ and this ‘[did] not suggest that even a stray word or an insignificant passage would suffice’.100 While it appeared that the Court was qualifying the Hicklin test by insisting that a work had to be considered in its entirety, Hidayatullah J went on to observe that:

An overall view of the obscene matter in the setting of the whole work would, of course, be necessary, but the obscene matter must be considered by itself and separately to find out whether it is so gross and its obscenity so decided that it is likely to deprave and corrupt those whose minds are open to influences of this sort and into whose hands the book is likely to fall. In this connection the interests of our contemporary society and particularly the influence of the book etc. on it must not be overlooked.101

Through this move the Court strangely affirmed the Hicklin test, even while adding a layer of the Roth test to it. It then added a further dimension, the ‘artistic redemption’ test, and observed that ‘where obscenity and art are mixed, art must be so preponderating as to throw the obscenity into a shadow or the obscenity so trivial and insignificant that it can have no effect and may be overlooked’.102 It concluded that the sexual portions of the book did not pass the permissible standards, and that there was no social gain from the book. The Court included the social value component from the Roth test into its last observation, thereby creating a confusing mutation of the Hicklin and Roth standards.

Ranjit Udeshi was the decision of a constitutional bench and a number of obscenity cases subsequently—all of which cite the case as prevailing law—moved significantly away from the Hicklin test without ever explicitly rejecting it. This could be because of their inability to overrule Ranjit Udeshi by virtue of being lower courts or smaller benches.103 If we turn now to the most recent judgment of the Supreme Court in Aveek Sarkar v State of West Bengal (incidentally a two-judge bench), the Court, for the first time, explicitly rejected the Hicklin test in favour of the Roth test.104 Citing a number of cases holding that morality standards change over time and obscenity should be judged according to contemporary community standards, Aveek Sarkar adopted the community standards test from Roth. But while Roth had laid down a three-pronged test, including the necessity of the material to be ‘patently offensive’ and of no ‘redeeming social value’, the second and third parts of the test are conspicuously absent from the Court’s judgment. In essence, it seems to be saying that if, on applying community standards, a particular work ‘has the tendency to arouse the feeling of or revealing an overt sexual desire’, it can be criminalised as obscene.105 What we are left with in the area of obscenity is an entangled labyrinth of doctrinal opacity. The only reasonable route left to the courts would either be to clarify, if they are borrowing an existing (p. 831) test, which particular one they are adopting, or if they are seeking to create an amalgam of standards, to address what they consider the moral standards in India, than to develop a lucid test around such standards.

VIII.  Conclusion: Speech, Democracy, and the Value of an Agonistic Public Sphere

The philosophical foundation of free speech in India lies primarily in the role that deliberative and communicative rationality plays in the promotion of democracy. Yet, the promise of free speech also runs the risk of being undone by the strong restrictions imposed on it. How do we reimagine a more robust sphere of speech that keeps in mind the complexities of India even as it refuses to be fated towards a perpetual infantilising of the public sphere? Further, what may be the role of constitutional interpretation towards the construction of a robust public sphere? Deliberative democracies rest on the principle of consensus building and on deliberation as the means towards the creation of consensus. They require, in other words, an agreement on the criteria through which we settle fundamental questions including questions about identity, belief, liberty, and so forth. But, given India’s profound diversity, can it ever be the case that we will arrive at a consensus on these fundamental questions? And can we ever insist on the absoluteness of such agreement as a precondition to our democratic participation? If a set of shared principles is not the end but the starting point of democratic participation is there a way of thinking of rethinking the relationship between speech and democracy in a way that speaks to the realities of collective life in India?

We have seen that one way of imagining the reality of India has been to treat speech rather nervously, seeing it as a potential ally but also often as the greatest threat to democracy itself. This has resulted in the fundamental split between the confident aspirations of Article 19(1)(a) and the nervous apprehensions of ‘social realities’ of Article 19(2). But what if we were to take our differences as the starting point of our democracy and concede that a certain amount of conflict is not just inevitable but perhaps desirable in our imagination of Indian democracy? In recent times, political philosophers have alerted us to the need for thinking of an agonistic public sphere—one which privileges the idea of agonistic politics or a politics of conflict over a politics of resolution—and claims that democratic conflict and contestation are better suited for shaping policies, institutions, and practices in a heterogeneous democracy. Andrew Schapp suggests that the law plays a key role in shaping a healthy agonistic public sphere.106 Rather than locating legitimacy in an external principle (a presumed ‘we the people’), the law can play a key role in permitting conflicts to take an ‘agonistic’ form, where opponents are not enemies but adversaries among whom exists a conflictual consensus.107 William Connolly places the idea of ‘agonistic respect’ at the heart (p. 832) of a project that does not deny but accepts conflict as the basis of democracy. Agonistic respect, for Connolly, can be understood as a necessary ethos or sensibility which individuals and communities cultivate to reconcile with the ‘comparative contestability’ of their beliefs. Connolly conceptualises ‘agonistic respect’ as a democratic principle of social order in which a plurality of pursuits of identity adopt generous relations towards the differences that they require for their constitution.

The Supreme Court has had an admirable if inconsistent record on the protection and expansion of freedom of speech and expression, but it also remains beholden to a particular idea of democracy and consensus building. If the regulatory imagination of Article 19(2) and various speech-regulating laws is premised upon the idea of consensus through control, then this is a model that is clearly failing us, with the rise in the misuse of sedition and hate speech laws. Such regulating legislation has now entrenched itself within a political system where political parties, religious communities, and the moral police play the game of profitable provocation very effectively. If we are to preserve the erosion of freedom of speech and expression, it might well be the responsibility of the judiciary to reimagine a democratic politics of speech which is not shy of asserting its fundamental relationship with agonistic politics and dissent and articulating a jurisprudence of Article 19(1)(a) which creates a safe ecology for such forms of speech.

As we look to the future, one reason for hope is the Supreme Court’s decision in March 2015 in Shreya Singhal.108 Here the Court struck down Section 66A of the Information Technology Act 2000 as being violative of Article 19(1)(a). Section 66A, which punished online communication causing ‘annoyance’ and was subject to extraordinary abuse, was declared unconstitutional for its vagueness, overreach, and chilling effects on speech. The Court distinguished between three forms of speech—discussion, advocacy, and incitement—and held that mere discussion or even advocacy of a particular cause, howsoever unpopular, is at the heart of Article 19(1)(a). It is only when such discussion or advocacy reaches the level of incitement that Article 19(2) might apply. As we have seen in this chapter, the relationship between speech and consequences is defined with regard to where the line between free speech and justified censorship lies. I have argued that the Supreme Court has often vacillated between two different standards: the ‘bad tendency test’ in Ramji Lal Modi and Kedarnath, on the one hand, and the ‘proximity and proportionality’ and ‘clear and present danger test’ in Ram Manohar Lohia and Rangarajan on the other. In Shreya Singhal, the judges weigh heavily in favour of the latter to conclude that Section 66A does not simply interfere with the right of the public to receive and disseminate information; it also fails to distinguish between discussion, advocacy, and incitement. The proximity between speech and consequences demanded in the judgment is one that requires both an incitement to action and a nexus between such incitement and consequences.

It is also important to note that the judges clarified the scope of ‘reasonable restrictions’ by highlighting that the restrictions can be justified only on the grounds explicitly laid down in Article 19(2). Arguments for the validity of speech-restricting laws often appeal to ‘public interest’, something seen in even landmark decisions like Udeshi. The judgment in Shreya Singhal adopts what may be considered the equivalent of a ‘strict scrutiny’ standard in determining the validity of speech restrictions. It also establishes a clear nexus between (p. 833) vagueness and overreach as the basis for invalidating a speech restrictive law. In other words, a law must make a clear distinction between legitimate and illegitimate forms of speech. In criminalising speech that could cause ‘annoyance’ or is ‘grossly offensive’, the Court found that Section 66A also takes within its sweep protected speech.

Shreya Singhal is the first judgment in decades in which the Supreme Court has struck down a legal provision for violating freedom of speech. Through a careful use of precedent and doctrine, it simultaneously builds upon a rich body of free speech cases in India, as well as paves the way for a jurisprudence of free speech for an era of the Internet and social media. It explicitly acknowledges that the Internet has radically democratised communication, and this space for participation must be safeguarded from arbitrary laws. The real legacy of Shreya Singhal will, however, lie in whether it can reshape free speech law in areas such as sedition, hate speech, and defamation. The judgment reminds us that the role of the judiciary in upholding democracy lies as much in redefining the agonistic threshold as in preserving the status quo.

Footnotes:

1  See Rajeev Dhavan, Only the Good News (Manohar Publishers 1987); Sita Bhatia, Freedom of Press: Politico-Legal Aspects of Press Legislation in India (Rawat Publications 1997).

2  (1992) 3 SCC 637.

3  Life Insurance Corporation (n 2) [23].

4  See Eric Barendt, Freedom of Speech (2nd edn, Oxford University Press 2007).

5  Bijoe Emmanuel v State of Kerala (1986) 3 SCC 615.

6  Another interesting case which missed the opportunity to examine the scope of ‘expression’ is Acharya Jagdishwaranand Avadhuta v Commissioner Of Police (1983) 4 SCC 522 in which Anandmargis had to rely on religious freedom to claim a right to dance on the streets of Calcutta with a human skull, dagger, and trishul.

7  On frame mobilisation and the law, see Amy Kapczynski, ‘The Access to Knowledge Mobilization and the New Politics of Intellectual Property’ (2008) 117 Yale Law Journal 804.

8  250 US 616 (1919) 630. See also Geoffrey Stone, Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism (WW Norton 2005).

9  Matthew D Bunker, Critiquing Free Speech: First Amendment Theory and the Challenge of Interdisciplinarity (Routledge 2014).

10  Ministry of Information and Broadcasting v Cricket Association of Bengal (1995) 2 SCC 161.

11  (1989) 2 SCC 574.

12  Romesh Thappar v State of Madras AIR 1950 SC 124.

13  Superintendent, Central Prison v Dr Ram Manohar Lohia AIR 1960 SC 633.

14  S Rangarajan v P Jagjivan Ram (1989) 2 SCC 574 [36].

15  Government of India, White Paper on Misuse of Mass Media during the Internal Emergency (Government of India 1977). See also Soli J Sorabjee, The Emergency, Censorship and the Press in India 1975–77 (Writers and Scholars Educational Trust 1977).

16  Life Insurance Corporation (n 2) [8].

17  Life Insurance Corporation (n 2) [8].

18  R Rajgopal v State of Tamil Nadu (1994) 6 SCC 632.

19  (1975) 4 SCC 428.

20  Bijoe Emmanuel (n 5).

21  Naz Foundation v Govt of NCT of Delhi (2009) 160 DLT 277.

22  An important example is the Indian Penal Code 1860, s 295A. On the origins of the provision, see Neeti Nair, ‘Beyond the “Communal” 1920s: The Problem of Intention, Legislative Pragmatism, and the Making of Section 295A of the Indian Penal Code’ (2013) 50 Indian Economic Social History Review 317.

23  Arudra Burra, ‘Arguments from Colonial Continuity: The Constitution (First Amendment) Act, 1951’ (2008) <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2052659>, accessed November 2015.

24  Vivek Dhareshwar and R Srivatsan, ‘ “Rowdy-Sheeters”: An Essay on Subalternity and Politics’ in Shahid Amin and Dipesh Chakrabarty (eds) Subaltern Studies IX (Oxford University Press 1996) 201–31.

25  See Rajeev Dhavan, ‘Harassing Husain: Uses and Abuses of the Law of Hate Speech’ (2007) 35 Social Scientist 16.

26  Asad Ali Ahmed, ‘Specters of Macaulay: Blasphemy, the Indian Penal Code, and Pakistan’s Postcolonial Predicament’ in Raminder Kaur and William Mazzarella (eds) Censorship in South Asia: Cultural Regulation from Sedition to Seduction (Indiana University Press 2009) 172–205.

27  Arun K Thiruvengadam, The Evolution of the Constitutional Right to Free Speech in India (1800–1950): The Interplay of Universal and Particular Rationales (2013) Centre for Asian Legal Studies, National University of Singapore, Working Paper Series <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2470905>, accessed November 2015.

28  Life Insurance Corporation (n 2) [6].

29  Life Insurance Corporation (n 2) [12].

30  Hamdard Dawakhana v Union of India AIR 1960 SC 554.

31  (1995) 5 SCC 139.

32  Udai Raj Rai, Fundamental Rights and Their Enforcement (PHI Learning Pvt Ltd 2011) 40–41.

33  See Tata Sons Limited v Greenpeace International (2011) 178 DLT 705, in which the Delhi High Court held the parody of a trademark to be protected by principles of free speech.

34  Sakal Papers (P) Ltd v Union of India AIR 1962 SC 305.

35  Bennett Coleman & Co v Union of India (1972) 2 SCC 788.

36  Indian Express Newspapers v Union of India (1985) 1 SCC 641. See also MSM Sharma v Sri Krishna Sinha AIR 1959 SC 395; Re Arundhati Roy (2002) 3 SCC 343. See also Rajeev Dhavan, Publish and Be Damned: Censorship and Intolerance in India (Tulika Books 2008).

37  It is not as though the courts were not presented with challenges to the monopoly of the State over broadcasting, but in such cases, the monopoly of the State was upheld. See Prakash Vir Shastri v Union of India AIR 1974 Del 1; AB Shorawal v LK Advani AIR 1977 All 426; PL Lakhanpal v Union of India AIR 1982 Del 167.

38  KA Abbas v Union of India (1970) 2 SCC 780.

39  Odyssey Communications Pvt Ltd v Lokvidayan Sanghatana (1988) 3 SCC 410.

40  See Vikram Raghavan, ‘Reflections on Free Speech and Broadcasting in India’ in C Raj Kumar and D Chockalingam (eds) Human Rights, Justice and Constitutional Empowerment (2nd edn, Oxford University Press 2011).

41  Life Insurance Corporation (n 2) [8].

42  Cricket Association of Bengal (n 10).

43  See Monroe E Price and Stefaan G Verhulst (eds), Broadcasting Reform in India: Media Law from a Global Perspective (Oxford University Press 1998).

44  Shreya Singhal v Union of India (2015) 5 SCC 1.

45  Ram Manohar Lohia (n 13).

46  State of Madras v VG Row AIR 1952 SC 196 [15].

47  AIR 2003 All 102.

48  AIR 1951 SC 118.

49  Chintaman Rao (n 48) [6].

50  (2012) 10 SCC 603.

51  Sahara India Real Estate Corporation Ltd (n 50) [34].

52  Sahara India Real Estate Corporation Ltd (n 50) [34].

53  (2007) 5 SCC 11.

54  Baragur Ramchandrappa (n 53) [14].

55  State of Uttar Pradesh v Lalai Singh Yadav (1976) 4 SCC 213.

56  Baragur Ramchandrappa (n 53) [17].

57  S Rangarajan (n 14) [21].

58  Baragur Ramchandrappa (n 53) [24].

59  Baragur Ramchandrappa (n 53) [24].

60  See AG Noorani, Indian Political Trials 1775–1947 (Oxford University Press 2008).

61  Article 13 in the Constituent Assembly Debates. These can be found in the debates on 1–2 December 1948, 16 October 1949, and 17 October 1949.

62  See eg, Constituent Assembly Debates, vol 7 (Lok Sabha Secretariat 1986) 750–52, 2 December 1948 (Seth Govind Das). See also Constituent Assembly Debates, vol 7 (Lok Sabha Secretariat 1986) 385–86, 30 April 1947 (Somnath Lahiri); Constituent Assembly Debates, vol 7 (Lok Sabha Secretariat 1986) 712–13, 1 December 1948 (Damodar Swarup).

63  Granville Austin, The Indian Constitution: Cornerstone of a Nation (Oxford University Press 1966).

64  Romesh Thappar (n 12).

65  For an early evaluation of free speech, see PK Tripathi, ‘Free Speech in the Indian Constitution: Background and Prospect’ (1958) 67 Yale Law Journal 394.

66  Romesh Thappar (n 12) [10].

67  Romesh Thappar (n 12) [9].

68  Brij Bhushan v State of Delhi AIR 1950 SC 129.

69  Romesh Thappar (n 12) [8].

70  Brij Bhushan (n 68) [21].

71  John L Austin, How to Do Things With Words, eds JO Urmson and Marina Sbisa (2nd edn, Clarendon Press 1975).

72  Babulal Parate v State of Maharashtra AIR 1961 SC 884.

73  AIR 1957 SC 620.

74  Ramji Lal Modi (n 73) [7].

75  Ramji Lal Modi (n 73) [9].

76  Ramji Lal Modi (n 73) [9].

77  Ramji Lal Modi (n 73) [9].

78  Ram Manohar Lohia (n 13).

79  Ram Manohar Lohia (n 13) [11].

80  Ram Manohar Lohia (n 13) [11].

81  Ram Manohar Lohia (n 13) [12].

82  Ram Manohar Lohia (n 13) [13].

83  AIR 1950 FC 67.

84  Ram Manohar Lohia (n 13) [13].

85  AIR 1962 SC 955.

86  Kedar Nath Singh (n 85) [24].

87  Kedar Nath Singh (n 85) [24].

88  Kedar Nath Singh (n 85) [26].

89  S Rangarajan (n 14) [36].

90  S Rangarajan (n 14) [45].

91  Balwant Singh v State of Punjab (1995) 3 SCC 214. ‘Khalistan Zindabad’, shifting from what the words say (or, the message they communicate) to their proximate relationship with public disorder is Brandenburg reasoning.

92  Judith Butler, Excitable Speech: A Politics of the Performative (Routledge 1997).

93  Joel Feinberg, Harm to Others (Oxford University Press 1987).

94  Girja Kumar, The Book on Trial: Fundamentalism and Censorship in India, (Har-Anand Publications 1997).

95  AIR 1965 SC 881.

96  [1868] LR 3 QB 360.

97  The Hicklin test:

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 . . . it is quite certain that it would suggest to the minds of the young of either sex, or even to persons of more advanced years, thoughts of a most impure and libidinous character.

98  Roth v United States 354 US 476 (1957).

99  Miller v California 413 US 15 (1973).

100  Ranjit D Udeshi (n 95) [20].

101  Ranjit D Udeshi (n 95) [21].

102  Ranjit D Udeshi (n 95) [21].

103  For a representative list, see Samaresh Bose v Amal Mitra (1985) 4 SCC 289; Bobby Art International v Om Pal Singh Hoon (1996) 4 SCC 1; Ajay Goswami v Union of India (2007) 1 SCC 143; S Khushboo v Kanniammal (2010) 5 SCC 600.

104  (2014) 4 SCC 257 [23].

105  Aveek Sarkar (n 104) [23].

106  Andrew Schaap, Law and Agonistic Politics (Ashgate 2009).

107  Chantal Mouffe, Agonistics: Thinking the World Politically (Verso 2013).

108  Shreya Singhal (n 44).