An Indian reality: The freedom after speech question

Given how the march of technology has completely triumphed over law and regulation, the time has come to have a fresh look at Article 19 of the Constitution.
Image used for illustrative purposes only. (Express illustration | Soumyadip Sinha)
Image used for illustrative purposes only. (Express illustration | Soumyadip Sinha)

A very disturbing trend has become a norm rather than an exception over the past couple of years, and that is the orchestrated filing of defamation and sedition cases against public representatives, civil society activists and contrarian thinkers.

A statement made in some part of the country or abroad in an entirely different context can trigger a host of criminal complaints under Section 499/500 and Section 124-A of the Indian Penal Code in various other distant locations in the country. The former deals with criminal defamation, while the latter pertains to sedition. Even works of art are not spared.

The unfortunate case in point is that of celebrated artist M F Husain who ultimately breathed his last outside India. In his final interview with an international TV channel in October 2010, eight months before he died in London, he articulated rather poignantly: “There are more than 900 cases on me, and for the last 12 years, I have been paying my lawyer 60-70,000 rupees per month because I have not fled from the Indian legal system. Every summons I get, my lawyer responds to it.”

Fortuitously, the Supreme Court in May 2022 granted a stay on all further proceedings under the sedition law. Though the wordings of the orders are slightly ambiguous, it seems to have had a salutary effect so far. “We hope and expect that the State and Central Governments will restrain from registering any FIR, continuing any investigation or taking any coercive measures by invoking Section 124-A of IPC while the aforesaid provision of law is under consideration.”

Insofar as defamation, both civil and criminal, is concerned, it continues to hold the field in its original and antiquated form even though the public conversations environment has been transformed beyond recognition.

Defamation laws were brought on the statute by Lord Macaulay in 1837 in the principal draft of the Indian Penal Code. It was subsequently codified in 1860. It has remained on the statute books for 163 years without being updated or contemporised.

When the Constitution of India was being framed between December 9, 1946, and January 24, 1950, the makers of modern India envisaged very few fetters on free speech. Article 13 in the Draft Constitution was finally adopted as Article 19 and stated: Subject to the other provisions of this article, all citizens shall have the right–(a) To freedom of speech and expression.

Article 13 (2) that caveated that right read as follows, “Nothing in sub-clause (a) of clause (1) of this article shall affect the operation of any existing law, or prevent the State from making any law, relating to libel, slander, defamation, sedition or any other matter which offends against decency. Or morality or undermines the authority or foundation of the State.”

Article 19 was subsequently amended on June 18, 1951, vide the first amendment of the Indian Constitution. Article 19 (2) was amended to read as follows: “Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause 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.”

Therein hangs a tale as to why this amendment came about. In 1950 the Supreme Court, in the case of Romesh Thapar v. State of Madras, struck down the provisions of the Madras Maintenance of Public Order Act, 1949, because it violated the fundamental right to freedom of speech and expression provided in Part III of the Constitution.

In Brij Bhushan v. State of Delhi, the Supreme Court struck down the provisions of the East Punjab Public Safety Act, 1949, holding it to be violative of the fundamental right to freedom of speech and expression. In the same year, various high courts across the country applied the Supreme Court’s reasoning to strike down various sections of the Press (Emergency Powers) Act, 1931, as well as the provisions governing sedition (Section 124-A) and the promotion of enmity between groups (Section 153) of the Indian Penal Code.

The Constitution (First Amendment) Act, 1951, therefore, imposed limitations on the freedom of speech and expression by adding three more restrictions, namely, “friendly relations with a foreign State”, “public order”, and “incitement to an offence”.

Various constitutional scholars, including erudite legal academics, have argued over the decades that the first amendment laid the foundation to validate the punitiveness of sedition and even defamation laws in post-colonial India.

Given how the march of technology has completely triumphed over law and regulation through the centuries since defamation laws were first put on the statute books, the time has come to have a fresh look at Article 19 of the Constitution, which provides for freedom of speech and expression and the reasonable restrictions that trigger punitive measures on a host of grounds.

There is already a template for that in Re: Puttuswamy. The Supreme Court, while upholding the right to privacy as a fundamental right under Article 21 of the Constitution of India, stated, “Like other rights which form part of the fundamental freedoms protected by Part III, including the right to life and personal liberty under Article 21, privacy is not an absolute right…” However, it added a caveat that the right to privacy can only be transgressed upon very narrow grounds, namely legality, which postulates the existence of law; need, defined in terms of a legitimate state aim; and proportionality, which ensures a rational nexus between the objects and the means adopted to achieve them.

It is the last that is most crucial qua defamation laws. The nexus between the alleged reputational damage and the relief sought must be proportional and not vexatious and punitive. While everyone has a right to protect their reputation, it cannot come at the cost of society installing a censor in its head and always having to look over your shoulder as to whether there would be freedom after expression.

(Views are personal)

Manish Tewari

Lawyer, MP, Former Union Information and Broadcasting Minister

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