The first constitutional amendment in 1951 placed restrictions on freedom of speech but India as a mature democracy should be able to face up to the difficult challenges of free speech.

~By Parsa Venkateshwar Rao Jr

Finance Minister Arun Jaitley, who is a lawyer and who was president of the Delhi University Students Union (DUSU) and who went to prison during the Emergency of 1975, made the caustic and pro-establishment remark at an interaction with students of the London School of Economics that freedom of speech, one of the fundamental rights, cannot go so far as to assail national sovereignty.

However offensive to libertarian ears, Jaitley was stating the constitutional position. While there will be much criticism of the BJP leader, who has turned from an anti-establishmentarian student rebel at the age of 22 to an official spokesman of the establishment at the age of 64, there is a need to look at Article 19 (1) (a) of the Constitution which enshrines the right to “freedom of speech and expression”.

The First Amendment to the Constitution in 1951 was to alter the wordings of the restrictions placed on this freedom. Article 19 (2) originally read, “Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law in so far as it relates to, or prevents the State from making any law relating to, libel, slander, defamation, contempt of court or any matter which offends against decency or morality, or which undermines the security of, or tends to overthrow, the State.”

The amended Article 19 (2) read: “Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing 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.” Then, through the Sixteenth Amendment to the Constitution in 1963, the phrase “the sovereignty and integrity of India” was inserted in Article 19 (2).

So, Jaitley and the BJP leaders in general are quoting the Constitution, and it might be said by the critics of BJP, that it is a case of the proverbial devil quoting the scripture. But there is the fact that the words in black and white stare at us from the pages of the Constitution. But the words of the Constitution will be interpreted by the courts, by the lawyers and by the public. Jaitley, the lawyer, seems to be aware of the fact that there is room for interpretation. It is for this reason that he called for a debate on the issue.

It is indeed ironic that the First and Sixteenth Amendments, altering the wording of Article 19 (2) came when Jawaharlal Nehru, the arch-liberal, was the prime minister of the country. But it becomes apparent that the government of the day felt compelled to usher in the amendments which seem anathema to lovers of freedom. In 1951, the government of the day, that is the Nehru government, apprehended danger from the communists though by that time whatever there was of communist insurgency in the then Hyderabad state was scotched. The insertion in Article 19 (2) in 1963 was in the shadow of the 1962 India-China war of 1962.

The debate crucially hinges on who is to decide whether someone has used the “right to freedom of speech and expression” (Article 19(1a) to assail “the sovereignty and integrity of India” (Article 19 (2)). The question is whether government can take arbitrary action against an individual on this count, or whether it is bound to follow Article 21 which lays down “No person shall be deprived of his life or personal liberty except according to procedure established by law.” And if there are individuals and organisations, who feel someone is indeed assailing “the sovereignty and integrity of India,” then they too would have to approach the courts seeking action. They cannot act on their own, or take law into their own hands.

Unfortunately, courts have not had to interpret the limits of the “right to freedom of speech and expression”. It is not yet determined whether the mere utterance of words against the sovereignty and integrity of the state is sufficient to punish that person, or is it necessary to prove that the person was seriously intending to “overthrow the State”, which is what the original formulation was.

It seems that contemporary sedition laws are the secular counterparts of the blasphemy laws of Christian Europe of the medieval ages and of many Muslim countries in the present. If blasphemy laws seem irrational, then sedition laws too must be pushed into the same garbage can. It has to be argued that no person should be punished for expressing ‘anti-national’ sentiments, which could just mean a relentless criticism of the nation, the state and the government but with no desire to overthrow the nation-state or the government.

It is very unlikely that the Supreme Court in India will ever take the stance of the United States Supreme Court in Texas v Johnson in 1989 and in United States v Eichmann in 1990 which held that burning of the flag was “symbolic speech” protected by the First Amendment guaranteeing freedom of speech. In both instances, it was a 5-4 verdict. One of the arguments put forward in favour of the physical burning of the flag was that if it is legal to burn a ‘soiled flag’, then it would be discrimination to prohibit it on other grounds.

The libertarian argument in India will have to turn around on whether “anti-national” speech amounts to overthrow of the state, and whether in absence of proof of the intent to overthrow the state, and the speech remains an act of protest, it amounts to being anti-national. India as a mature democracy should be able to face up to the difficult challenges of free speech.

Let us also remember that devotees of free speech have to concede “hate speech” because that is the logical implication. But even ultra-liberals are afraid to go that far. As a matter of fact, liberals oppose “hate speech” and even favour stringent laws banning it.

Erich Fromm, psychoanalyst and culture critic, wrote a famous book called “The Fear of Freedom”, also known as “Escape From Freedom”, published in 1941, where he showed that people are afraid of freedom because freedom implies taking responsibility for your acts.