A “loyalty form” by this organization to Urdu authors and editors says that adverse comments about the government in their books can invite legal action. This brings into question freedom of speech and expression
Urdu authors and editors are outraged and up in arms. This is because the National Council for Promotion of Urdu Language (NCPUL), which does bulk purchase of their works, has come up with a “loyalty form” for them. According to media reports, this form has to be filled up so that they qualify for purchase by the NCPUL and in it they have to declare that their books are not critical of the government or its policies.
The NCPUL is an autonomous body under the Department of Higher Education of the Ministry of Human Resource Development (HRD). It was set up in 1996 and is recognized as a nodal agency for the promotion of Urdu. Its functions include production of literature in Urdu, including books on science and other branches of modern knowledge, children’s literature text books, reference works, encyclopedias, dictionaries, etc.
HELP FOR WRITERS
According to NCPUL’s website, to encourage writing of valuable books by a bona fide author/editor/translator, etc, the Council purchases a maximum number of 100 copies of a book or a journal in one year, subject to a maximum of `20,000 for a poetry book, `30,000 for the rest of the books and Rs 35,000 for periodicals and journals. If the price of the book is less than `100, then the Council may purchase a maximum of 200 copies of it. The books and periodicals are acquired directly from the authors and editors for free distribution to Urdu libraries all over India. In 2013-14, the Council purchased copies of 319 books and 53 journals in bulk, and distributed them to 280 libraries in 17 states. It incurred an expenditure of Rs 35.08 lakh on this.
The bulk purchase function of the Council may appear to be minuscule, compared to its other functions such as publication of manuscripts, Urdu press promotion, support to organizations for select Urdu promotion activities, financial assistance to various NGOs for such activities, academic projects, etc.
But the introduction of a “loyalty form” only for the beneficiaries of the bulk purchase of books causes concern as to whether it indicates a policy guiding the Council’s other functions as well. Is there an undeclared policy which suspects only minorities’ loyalty to the nation and the government? Worse, such a policy, if there is one, erroneously assumes that to be eligible for any benefits from the government, the potential beneficiaries cannot express their disagreement with it or its policies, even in an academic manner.
Specifically, the “loyalty form” reportedly stated (it appears that the contents of the form have since been somewhat diluted) that:
“I, son/daughter of — do hereby declare that my book/journal/booklet—, which has been accepted by the NCPUL’s scheme for financial assistance for bulk purchase, does not contain anything which goes against the policies of the Indian government, or anything that is against national interest, or anything which promotes disharmony between the various communities.”
The declaration was apparently backed by a warning that legal action may be pursued against the writers if they do not abide by the declaration. In such cases, monetary assistance, if already granted, has to be returned. If challenged legally, the “loyalty form”, in all likelihood, may be struck down as unconstitutional by the courts. This is because the right to criticize has been recognized as an integral part of the right to freedom of speech and expression in a catena of decisions by the Indian judiciary.
The freedom of speech and expression, guaranteed by the constitution, is however not absolute, and is subject to reasonable restrictions under Article 19(2) of the constitution. However, courts will not permit any restrictions, which cannot be located within the boundaries of Article 19(2). The grounds mentioned in Article 19(2) are sovereignty and integrity of India, 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 offense. Clearly, criticism of the government or its policies cannot be construed as being implied in any of these grounds. Moreover, as required under Article 19(2), the government or its agencies cannot on their own deprive a citizen of his freedom of speech or expression without the authority of law.
The NCPUL has reportedly clarified that the form was introduced because of a book which was found to contain incorrect information about late President APJ Abdul Kalam. Normally, in the publishing business, a simple declaration by the author/ editor regarding the factual veracity of content is considered sufficient. However, the fact that this is not applicable to beneficiaries of the government’s largesse in other languages is not a happy situation. But the courts need not go into the question of whether it violates the right to equality as the move is unsustainable.
The “loyalty form” has words like “anything that promotes disharmony among various communities” which might suggest that it enjoys constitutional protection under Article 19(2), which justifies restrictions on the ground of public order or even incitement to an offence. But the form also includes grounds like “going against the policies of Indian government” and “national interest” which are outside the scope of Article 19(2), and therefore, will invite the charge of overbreadth.
Such a restriction will also be considered disproportionate because there is a wide gap between the constitutionally permissible grounds under Article 19(2) and the extent of restriction sought to be imposed. A restriction on free speech and expression may also suffer from vagueness when persons of ordinary intelligence have no reasonable opportunity to know what is prohibited.
As the Supreme Court explained in a judgment in 1971, vagueness prevents citizens from having a fair warning of what is permitted and what is not, leaving them instead “in a boundless sea of uncertainty”.
The “loyalty form” requirement suffers from vagueness because it does not tell the beneficiaries of the government’s largesse, what constitutes “going against the policies of the Indian government” and what would be considered as against “national interest”.
However, when India Legal saw the form on April 11, it was modified: “I/We certify that the contents of the books/ periodicals/journal/ are not against of the policies or interest of the Government of India. Further I/we certify that the particulars given above are correct to my/our best knowledge and belief.”
Clearly, the outrage over the initial requirement, as reported in the media, has forced the government to abandon words like “national interest” and “anything that leads to disharmony among communities” etc. But the retention of the phrase “not against the policies or interest of the Government of India” would still make it vulnerable for legal challenge. It could be also argued that despite the deletion of words like “national interest” and “anything that leads to disharmony among communities” from the loyalty form, these could be implied in the “policies and interest of the Government of India”, criticism of which is clearly barred.
Thus the NCPUL may be well-advised to withdraw the loyalty form requirement to avoid facing judicial strictures, besides suffering the loss of credibility and trust of its beneficiaries and stakeholders.