Collective Conservatism and the Constituent Assembly Debates: The Case of Free Speech in India

Introduction

Article 19 of the Indian Constitution guarantees citizens the right to freedom of speech and expression, with reasonable restrictions that do not affect the operation of any existing law, sovereignty and integrity of India, security of the state, among other similar concerns. This article tells the story of its formulation by focusing on the debates of the Constituent Assembly that took place between 1946 and 1949, which birthed free speech as a fundamental right and restrictions fundamental to that right. These debates provide the context for discussions on violence in contemporary India, which impinges on the right to free speech in general and freedom of artists in particular. Statements like ‘Artists’ right to speak is the reason why Hindus are suppressed everywhere’, or ‘How can insulting someone become a right?’ Or ‘The way to hell is paved by good intentions: good intentions are that art should be given freedom. This is a way to hell’ are classic responses for the increasing attacks on artists. ² Keeping in mind the recurrent invocation of the Constitution and the language of rights by those who turn to violence, this article explores whether the creation of Article 19 itself challenges in some way the very premise of the commitment to constitutional practice, that governance be based on deliberation, consensus and reason.

When Indians formally began to make demands for civil rights to the British, through the Constitution of India Bill of 1895, the Commonwealth of India Bill of 1925, the Nehru Report of 1928, the Karachi Resolution of 1931, the Sapru Report of 1945 and finally through the Objectives Resolution of 1946 ³ issue of free speech was articulated through a stress on ‘political speech’ (Barendt, 2005; Rawls, 1993; Schauer, 1982; Weinstein, 1999) to rally mass support against colonial domination, for democratic self-governance, and to claim the public domain for those hitherto excluded from it. In the process, various other forms of speech (press, artistic, religious, scientific, etc.) were assigned a derivative position whereby, over time, their protection depended on their similarity to the dominant political discourse, and protection of popular sovereignty.

On the other hand, like many British colonies, India inherited a vast regime of censorship and regulatory laws for speech at the time of its independence in 1947. Apart from the creation of Common Law and its various manifestations through the Indian Penal Code of 1860, the English introduced specific ordinances that affected artists more than others: Dramatics Performance Act of 1876 against theatre, Press Bill of 1910 for restrictions on literature and the Indian Cinematograph Act of 1920 to regulate cinema. These legislations armed the colonial rulers with an assortment of coercive strategies, setting a trap around legally acceptable speech norms to eliminate offences, and for the first time formalized the contours of different kinds of speech, creating, in Foucauldian sense ‘a differential administration of illegalities’. But instead of being rejected, this colonial framework was ‘preserved, sustained and expanded’ (Dhavan, 2008, p. 11) for governance in independent India. Reflecting on the interplay of the state-artist relationship, this article asks: given that the foundation of Indians’ demands and deliberation over right to free speech was essentially political, can we flesh out from the Assembly debates an understanding of the limits of specific forms of speech such as artistic? In what ways can the premises behind Article 19 be discovered as contingent or credulous to the prevailing violence, which though embodies constitutional crisis of a specific nature, in broader terms may well confront the exercise of constitutional maintenance?

The Assembly in its consideration of free speech did not acknowledge the demands and dangers of various kinds of speech, including artistic. For one, constitutions need hardly be precise and are often laden with ambiguities. Importantly, speech, at the time of drafting of the constitution, was considered of value not so much for being a form of ‘self-expression or self-actualization as much as something essential for collective self-determination’ (Fiss, 1996, p. 3). What was important was the construction of broad categories by which the public sphere could be organized, among other reasons, for democracy’s administrative purposes. Constitution framers assumed that foregrounding a generic idea of free speech reflected the basic conditions for enabling a rational public discourse, one that acknowledged a degree of individual autonomy, which it did. At the same time, by not spelling out nuances for different forms of speech, the Assembly was in actuality realizing its objectives—the task of writing a constitution for an economically weak and culturally diverse population. Its deliberations mirrored the ‘political struggles’ and [agenda] of an ‘elite eager to give India a new social order’ (Bhargava, 2002, p. 27) in which various strands of a ‘fairly long history’ of Indian liberalism came together (Bayly, 2012) including a collective commitment to birth a liberal democracy. The creation of Article 19 was a testament to this liberal project, although it need not be traced by focusing only on the ideological positions of individual members or on arguments like making the individual or the group the basis for deliberating over rights (Bhargava, 2000; Hansen, 1999; Khilnani, 1997; Mahajan, 1998).

The Assembly’s liberal project can be traced also in its collective commitment to accommodate different points of view, diverse ideological tendencies and competing conceptions of good with a focus on consensus generation. ⁴ The framing of Article 19 demonstrates that the principal value of liberalism, the centrepiece of the imagination of India’s democracy, is derived from the Assembly’s remarkable focus and ability to generate internal consensus through debate, compromise, accommodation and improvisation. This, however, does not mean that there were no disagreements or tense moments of discord among Assembly members. Rather, it is precisely the presence of contrary extremes that fortify the remarkability of consensus generation, which could only be achieved, among other ways, by overlooking, postponing and even putting aside discussions on time-consuming nuances that risked further dissension. Articulations on specific forms of speech, including artistic, were ignored in favour of a more generalized discourse that carried minimum possibilities for the debates becoming unpredictable or unmanageable. The implication of this was that it brought in its wake a somewhat conservative vision of the right to free speech. Despite inaugurating a new political era, in the Assembly’s consensus were reflected the limits of political change: a collective faith in guarding what is familiar; the primacy of authoritative institutions; the creation and maintenance of its power by building on the options of the present, rather than starting with a clean state.

Many individual responses to questions of free speech were not conservative, with a distinctive collective ambition precipitating progressive change, yet a conservative mood emerges in the shadow, not as a predominant style of the Assembly, indicative of the stakes an organized group might have in maintaining established positions and selectively defending existing institutions. As the proceedings of the Assembly show, its members did not shun free discussion, nor were they in want of confidence to rally their beliefs. What they most lacked confidence in was the populace’s ability to be mature and democratic, to be prepared to handle the demands and problems of the right to free speech.

The article is divided into three parts. The first explores the Assembly’s make-up and composition; the second deals with the dominant substantive debates; and in the third part I turn to the cross-currents between the judiciary and the executive, which led to the first amendment of Article 19 in 1951.

The Assembly: An Assembly of Elites?

On 9 December 1946, the Assembly embarked on framing a constitution for a free India. It marked the near end of the Empire’s control, but one that also inaugurated the adventure of introducing, what M.K. Gandhi called, the ‘technicalities of democracy’ (Tendulkar, 1939, Vol. 5)—a democracy that would ensure equity, unity and justice with political and economic freedom for all Indians. In short, these objectives embodied nothing short of, as famously declared a ‘social revolution’—an undertaking of mammoth proportions (Austin, 2008a, p. xvii).

Curiously, not only was the Assembly convened after a long process of negotiation between Indians and the British, but when the Indian National Congress demanded, through its official policy of 1934, its creation to draft a constitution that would reflect the ‘will of the people’, many leaders—including Gandhi, Jinnah and B.R. Ambedkar, later called the ‘architect of the Indian Constitution’—were initially opposed to the idea. This was because of the way in which social hierarchies, communal relations and political power came to be actualized under the British and through the freedom movement. Regnant structures of upper-caste domination and brutality, ⁵ power of a Hindu majority and threats of majoritarian practices, borrowed institutional structures reigning over ‘pure moral authority’, ⁶ and dangers of imposing modern (western) political frameworks over a population concentrated in villages informed the scepticism of these men. Jinnah, for instance, advocated the continuation of British presence as a ‘deterrent to Congress power’ and to ‘see that justice was done to the Muslims’ (Austin, 2008a, p. 4). Because the British, by 1940s, had agreed to the demand that Indians frame their own constitution through an elected body, and because the Congress, the largest political party at the forefront of this negotiation, believed that the idea of India was not restricted to any particular religious community—even as a quarter of its population remained underrepresented after the Muslim League’s boycott—the Assembly commenced its functions by the end of 1946. Navigating its way through the poignancy of partition and the euphoria of freedom, it expanded its deliberations over the next two years, 11 months and 17 days.

As the Assembly formalized its workings, two issues came to dominate its deliberations and characterized its outcome: first, its commitment to represent the people; and second, which contradicts the demands of representation, to transform Indian society and politics, through ideas that were extensively borrowed from an assortment of Western constitutional traditions, recently termed as ‘derivative eclectism’ (Choudhry, Khosla & Mehta, 2016). In addition to the fact that liberal ideals like equality, liberty or even democracy were essentially different from the experiences and arrangement of the traditional Indian society, it was also challenging to have them reflect straightaway in the Assembly’s make-up. Once the decision to form the Assembly was taken, for the fairest possible representation, members of provinces were chosen instead of the unwieldy process of adult suffrage, by provincial assemblies, elected through popular vote in 1945 and 1946, and representatives of the princely states by legislative bodies in individual states or in the newly formed unions of such states. As a result of these elections, in which only about 28.5 per cent of the adult population voted—since the electorate was sifted through tax, property and educational qualifications leaving out the vast mass of peasants, women, small shopkeepers and countless others—members of the Indian National Congress, upper castes and men disproportionately dominated the Assembly. ⁷

But it is also this disproportionate representation that reveals their commitment to represent diversity and ensure inclusiveness. While electoral provisions ensured representation of minorities (Muslims, Sikhs, scheduled castes and tribes, Anglo Indians, Parsis or women) and provinces, the Congress—it is a well-accepted premise—was itself a ‘microcosm’. It had ‘within its fold’ socialists, liberal democrats, antimoderns, Gandhians, conservatives and quasi-communitarians, Hindu nationalists and radical egalitarians (Bhargava, 2008, p. 7), but also agriculturalists, educated professionals, businessmen, women and Anglo Indians among others. For Nehru, ‘this was natural and inevitable’ if the Congress was to be the ‘mirror of the nation’ (Nehru, 1948, p. 139). Despite assurances and adjustments, the Assembly was plagued by allegations of being unrepresentative until the end, and could claim to be representative only to an extent. ⁸ One implication was that many of its decisions were read as ‘entirely self-fulfilling, a way by which progressive elites legitimized their power over the people’ (Mehta, 2015).

Another significant aspect of its workings was the quality of deliberations, making their collective commitment to accommodate different viewpoints robust, not incidental to the process. By implication the constitution, which emerged, was not a product of and for a majoritarian impulse or even ‘bound by a particular tradition’ (Choudhry et al., 2016). Constitution building based on the vigour of arguments and knowledge was not only due to members’ acumen for eloquence and reason, which contributed to their charismatic appeal (several of them were popular leaders like Nehru, Azad and Ambedkar). It was also reflective of their professional and educational training being ferried into the writing of the constitution. Almost half of them were jurists-turned-politicians, ⁹ a tradition dating back to the creation of the INC in 1885 (Dezalay & Garth, 2001, pp. 69–90; Krishna, 1966, p. 422; Nagpaul, 1994, pp. 59–76). Others included men of letters, journalists, professors, linguists and the like. A few even achieved distinctions from universities in England and America. While many were imprisoned for extensive periods for their participation in the freedom movement, for the most part, they were schooled within a system of education introduced in India by Europeans almost a century ago. The majority had at some point in their years of formal education attended schools or colleges run by Christian missionaries. The obvious implication of this was the frequent and fluent use of the English language but also the constitution framers’ knowledge and acceptance of the Western political canon, providing if only a partial, glimpse to accusations that the constitution turned out to be un-Indian. Having said that, discussions, particularly on free speech, were precisely born out of this confrontation between Western notions of liberty, broadly as freedom from external constraints, and its ‘Indian’ counterpart, what Sudipta Kaviraj (2002) refers as a culturally rooted, complex understanding of freedom as redemption or salvation, where the source of conflict lay not necessarily between the individual and his external environment but within. With deliberations over the creation of a modern nation state, often the Western concept subverted the traditional one. However, the latter ‘persisted obscurely, improvising the meanings of the modern term’ (Kaviraj, 2002, pp. 97–142). Similarly, while the framers were inspired by the American, Irish, Swiss and British constitutions (Austin, 2008b; Basu, 1995; Choudhry et al., 2016; Hasan & Sridharan, 2002), the eventual articles emerged unique, inscribed with specificities to address India’s diversity (Mahajan, 2013) and the historical evolution of the modern state in non-Western environs (Kaviraj, 2000).

After the election of Dr. Rajendra Prasad as the Assembly’s President and Ambedkar, as Chairman of the Drafting Committee, various committees and subcommittees were created to systematically carry out the task of writing the constitution, alongside the practice of adopting agendas, proposals, debates and voting. The Fundamental Rights subcommittee with 12 members (under the Advisory Committee of 50 members) launched the preliminary discussions on free speech. Members included J.B Kripalani—Gandhian and President of Congress Committee (1946–1947)—K. T. Shah; Minoo Masani, barrister and one of the founders of the Indian Liberal Group advocating classical liberalism; A.K. Ayyar, Advocate General of the Madras Constituency (1929–1944); K.M. Munshi, also a lawyer and advocate of the free market, who later joined the Hindu Nationalist Jana Sangh; Sardar Harnam Singh, Professor of Law at Lahore University; Maulana Abul Kalam Azad; B. R. Ambedkar; Jairamdas Daulatram, Lawyer and representative of East Punjab; K. M. Panikkar; Rajkumari Amrit Kaur of the princely state of Kapurthala; and Hansa Mehta, writer and President of the All India Women’s Conference. Apart from women, princely rulers, men of letters and the law—belonging to different castes—the subcommittee included those who were acquainted with the issue of rights, having participated, for instance, at the time of the Sapru Committee. Shah, a Congressman trained in law and economics, and general secretary of the National Planning Committee (1938–1949) and Munshi, lawyer and educator, along with Ambedkar, founder of the All India Scheduled Caste Federation, were at the helm—drafting the structure of rights for the Assembly to deliberate on.

The fact of these elites spearheading the Assembly—elites, not in the sense of an exclusive club keeping themselves apart, but in the sense who believed they were capable and virtuous to influence people—is not the only issue what I had in mind in tracing the Assembly’s conservatism. It is also the substantive claims of writing a constitution on behalf of the people. True, Ambedkar’s stress on ‘constitutional morality’ entailed a suspicion of claims of representing the will of the people. Similarly, contrary to conservative beliefs in the primacy of institutions determining people’s welfare, he stressed on the ‘behaviour of people and their parties’, which might explain the success or failure of the constitution, the ‘working of its organs’, like the legislature, executive and judiciary, and by implication, democracy itself. ¹⁰ But this argument also exerts another side—the implicit assumption of keeping faith with political elites if democracy was to succeed, reminiscent of Joseph Schumpeter’s conservatism. If in the Assembly’s arguments, ‘people’ were left to choose and determine how to work the organs of the constitution, it did so without allowing them the choice of the organs in the first place. This determination remained in the hands, for the most part, of the traditional elite, again, not necessarily the oppressive elite in the Kantian sense, but the kind endowed by nature and training for their role as leaders, who saw their historical task as saving the masses from themselves. Thus, if the functioning of these organs was to be ‘consistent with the spirit of the Constitution’, it was in the best interest of the people to nominate leaders who had the ability to discern that spirit. As it were, these leaders could be easily found in this very group of elites, like Schumpeter’s democracy, entailing a ‘self-limitation of the electorate’ (Muller, 1997, pp. 275–277). In other words, if India’s elites authored the nation’s passage to a liberal democracy, they did so by ensuring, to a considerable degree, a historical continuity of the concentration of power.

The Arguments: A Conservative Side?

Following the Assembly’s adoption of the Objective Resolution on 13 December 1946, to proclaim India as an independent sovereign republic and to draw a constitution for her governance, ¹¹ the question of free speech was taken up by the Fundamental Rights Sub-Committee about two months later, on 27 February 1947. Over 10 meetings and two months, the FRSC prepared and submitted a draft as part of the Interim Report of the Advisory Committee on Fundamental Rights to the Assembly on 29 April 1947. The deliberation on this report continued until the end of the Third Session (May 1947) while specific clauses were reexamined more than a year later, in November 1948, during the debates on the draft constitution. Until the end, free speech was unanimously considered a ‘primary fundamental right of each individual’. As Shibban Lal Saxena of the United Provinces expressed: the article ‘may be truly stated to be the charter of our liberties and is probably the most important article in the whole Draft Constitution’. ¹²

Congressman K.T. Shah introduced the first draft. Defining liberty negatively, this draft rejected ‘any censorship by any public authority, except under special legislation in times of emergency like a war, maintenance of friendliness and good relations between several communities and citizens as well as to libel or slander’. This was the shadow of classical liberalism—the starting point of India’s free speech regime. It espoused minimal government interference with the belief that individuals were masters of their own morality, which need not be imposed on them by the state. It was also the only draft that made allusions to different forms of speech—‘spoken as well as written, printed or published material, pictures, photographs, cartoons and the like’. As the debates unfolded, the Assembly did not devote much attention to ‘freedom’ with respect to different kinds of speech. Despite the recognition of it, the tendency was to overlook its asymmetries in favour of an all-encompassing notion of ‘speech and expression’. Moreover, while speech as a fundamental right was widely accepted, consensus over its limits was achievable only through broad strokes, even as this remained the focus of the debates, giving the impression, in Shah’s words, ‘of making restrictions more fundamental than the fundamental right itself’.

Interestingly, the ‘arts’ were only mentioned once, that too as an analogy to favour limitations on speech. Opposing Shah’s carte blanche, Algu Rai Shastri—from United Provinces and a critic of religious conversions—argued:

Freedom is a great art—even greater than the art of music and dancing. One who is adept in music or dancing keeps his voice under control and maintains restraint and control over his bodily movements […] He has to move in accordance with certain recognized rules […] He cannot sing and dance […] in an unrestrained manner […] Full freedom is being conferred upon us but it can never mean that we should not be under any restrictions whatsoever. Freedom of speech does not mean that we can give expression to whatever comes to our mind without observing any limitation […] When a nation or community attains freedom it begins to bear a great responsibility on its shoulders. We cannot therefore say that the restrictions that have been imposed will retard our progress. ¹³

The allusion to the tension between democratic and disciplinary discourses may not have been necessarily about the fear of chaos and disorder that might follow the declaration of independence. Neither was it about an incompatibility between freedom and restraints; after all, both have been present in democratic political culture for centuries. Rather, by celebrating rationales for freedom, but through its curtailment, this tension provided an edge to the customary rules, even when not subjected to rational justification, a moral legitimacy to the new institutions that would replace the colonial regime. Such discourses were also less about formal caveats than about ensuring a culture of commitment to the antiquity of rules, not making the mistake of breaching them in the name of independence and democracy. From early meetings of the sub-committee to the penultimate debates of the Assembly, although the omission of discussions on the specific forms of speech remained a bone of contention for a few, the focus even then was largely on freedom of the press. The idea of ‘arts’ seemed to have remained wedded to the above logic of restraints.

For many, like Somnath Lahiri of the Communist Party of India, freedom of the press was a ‘vital liberty’ that had been ‘completely crushed’ by ‘an alien and autocratic government’. Its separate mention thus could be an assurance against a ‘drastic curtailment’ of liberties in future. ¹⁴ Unlike the arts, seen largely as a form of self-expression, the press by contrast was a means for collective self-assertion, whose suppression by the colonial regime signified the suppression of the demand for nationhood. Supporting Lahiri were Shah and Damodar Swarup Seth—accused of the famous Kakori Conspiracy Case of 1915, who later joined the Socialist Party—although it was only Shah who once again acknowledged that the wider implication of the term might include ‘pictorial or other similar artistic devices’. For those on the other side, like N.G. Ranga—Oxford University-educated professor of economics and political science—the question was hardly about the colonial state’s suppression of the press per se, since the term ‘expression’ assumed the inclusion of all forms of speech. ¹⁵

Not encouraging a split on the matter, Ambedkar got the Assembly to concur by slightly shifting the terms of the debate, focusing on free speech as equality (equality not just of all kinds of speech but also of the speaker) and not merely free speech as liberty:

The press is merely another way of stating an individual or a citizen. The press has no special rights which are not given or which are not exercised by the citizen in his individual capacity. The editor of a press or the manager are all citizens and therefore when they choose to write in newspapers, they are merely exercising their right of expression, and in my judgment therefore no special mention is necessary of the freedom of the press at all. ¹⁶

Acceptance of Ambedkar’s proposition reflected more than just the framers’ disinterest to prioritize discussions on different forms of speech. The consensus achieved underlined their belief in equality in the broadest sense, not binding speech to ‘any particular outcome with regard to the definition of interests arrived at by any individuals or groups’ (Luca, 2007). However, the earlier suggestion that certain kinds of speech were more vital than others was an acknowledgement of the differences that existed between forms of speech, in the same way that certain speakers are more heard, effective, useful or destructive than others. How could the Assembly then safeguard speech of the least advantageous: individual, community or even form?

To achieve equality, along with freedom, perhaps then called for unequal restrictions on different kinds of speech. With regard to forms like artistic expression, the Assembly partly attended to it by taking recourse to an already existing framework of British legislations—which included laws against cinema or drama that in some cases were more than 110 years old—but without deliberating on their implications for governance in independent India. Interestingly, while the Assembly agreed to abrogate laws if they found them to be inconsistent with rights declared as fundamental, in its conservative mood, it opted for the status quo, not putting British laws in jeopardy which, by implication, left the determination of the limits of speech, to a substantial degree, on options from the past. Widely accepted as a kind of veneration of colonial policies (Dhavan, 1987), whose elimination might lead to law-and-order issues, this has been seen as somewhat less than liberal. It is worth underlining that along with certain sections of the Indian Penal Code of 1860—like 295A, 153A or 292—assumptions underlining the Indian Cinematograph Act or the Dramatics Performance Act of 1876 continue to be the most abused instruments of the state to harass artists. Accepting them as valuable, at least under present circumstances, it is plausible that the framers’ belief in their utility might have little to do with considering colonial laws as essentially superior. What it nevertheless suggests is their preference for pragmatism of customs in state-making; a conservative stance, wherein ‘a sense of historical continuity adds to the stability and effective functioning of an institution and hence to its utility’ (Muller, 1997, p. 9).

The idea of instituting a liberal democracy in many respects came from a small but relatively diverse group of intellectuals and public figures. Although influenced by the dominant liberal consensus of nineteenth-and-early-twentieth-century European thought, many among them led the movement to resist its political domination in India. As long as the creation of an independent state with an end to colonialism was an aspiration, instituting a classical liberal democracy with minimal government intervention seemed a possibility. The exigencies and realities of governing a society marred with increasing communal violence, diversity, poverty, hunger and displacement, however, bore an indelible impact of greater control of individual freedoms through greater state intervention. In fact, a firm belief was that India’s masses were not ready for free speech, particularly in dealing with religious passions. Drawing attention to this, Alladi Krishnaswamy Ayyar suggested adding provisions to curtail speech on account of ‘public order, security and safety’ and ‘calculated to promote class hatred’ even as he recognized that these might neutralize the effect of the ‘guaranteed’ fundamental rights. ¹⁷ But these provisions were not accepted: they overlooked, for instance, an existing section 153A of the IPC, ¹⁸ and also that ‘class’ and ‘communal speech’ could mean any ‘abstract utterances’ hampering ‘the democratic right to criticize’. However, what struck a chord was his principal argument for curtailing individual freedoms in the wake of escalating religious violence. The utility of greater control hinged on this certainty: ‘in a country blemished by social inequalities and oppression’, as Mahmood Ali Baig from Madras reiterated, ‘fundamental rights were not absolute’ and therefore were subject to the interests of the general public and the safety of the state.

Not only did fear and the reality of religious passions running amok become the basis for suggesting addition of clauses sedition, obscenity and libel—inspired by section 40 (6) of the Irish constitution—it made members inclined to maximally expand the sphere of state power, occasioning a split in its ranks between liberals who held dear the doctrines of individualism and those who favoured robust governmental intervention.

Bihar Congressman Brajeshwar Prasad, Arun Chandra of West Bengal and Seth Govind Das, champion of the cause for Hindi as a national language, regarded individual power with disdain and suspicion, favouring instead strong ‘state machinery’. ‘Infancy of the Government’ and its instability merited that it retain power over individual rights. ¹⁹ Second was Prasad’s socialist impulse that ‘personal freedom ha[d] to be curtailed if the menace of capitalism [was] to be met’. ²⁰ There was also H.J. Khandekar’s caution that individual freedom could be used as a ‘weapon against political parties or labor leaders’. Curiously, for Khandekar even the ‘great apostle of individual liberty and freedom’ J.S. Mill would impose restrictions on individual freedoms in times when neither the government nor the society ‘felt sure of its position’. ²¹ But if ‘circumstances’ justified restrictions, these men also did not propose that future statesmen and lawmakers revisit the issue, once the government and the society ‘felt sure of its position’, for more robust protection of individual rights.

Interestingly, representatives of religious minorities concurred with Shah and Damodar Seth, for whom ‘personal liberty’ was the ‘mark of civilized democratic constitutions against the autocratic might of unreasoning despots’ ²² and the ‘coercive power of the state’. Mohamed Ismail, founder of the Indian Union Muslim League, supported by Congressman Kazi Syed Karimuddin, a criminal lawyer, along with Sardar Hukum Singh, also a lawyer and voice behind the Sikh Gurudwaras Act of 1925 and others like Deshbandhu Gupta, lamented that ‘in this bulky constitution the question of personal liberty is left almost like an orphan’. ²³ Karimuddin went so far as to say: with ‘so many restrictions […] if the article is passed as it stands, it is not acceptable to the minorities’. Pandit Balkrishna Sharma, Gandhian and member of the Official Language Commission, expressed his displeasure during the final discussions on the draft constitution on 25 November 1949, stating that with such excessive clauses ‘fundamental rights have been given by one hand and taken by another’.

There were also practical reasons offered to oppose the clause-laden Article, as Purnima Banerji of the United Provinces felt, since the written constitution had already become ‘bulky and rigid’. The ‘restrictive provisos’ thus ‘should not have been there’. ²⁴

Many such arguments were reflective of a liberal view that in a pluralistic society the state could not be an instrument of or for only a few, and of the fears of inherent dangers of a democratic system, which by giving precedence to the wishes of the majority—asserted over either the state or the individual—entails a risk, in the Tocquevillian sense, of the ‘tyranny of the majority’. For instance, for Hindu nationalist Laxmi Narayan Sahu, the ‘minority’ argument itself was unacceptable, not because of what they might say, but because of the ‘danger’ that once it was ‘conceded that a particular group is a minority then many others would begin to clamour for recognition’, ²⁵ giving them the moral advantage in a democracy to be heard. In theory, the resolution to this hinged on a self-evident premise: India consisted of a diverse set of communities that had to be allowed to pursue their interests freely, but who could in turn not be allowed, along with the state, to deprive individuals to express themselves freely. The state here had an added responsibility: along with being a stakeholder, it had to play a neutral umpire. However, in practice, consensus generation meant that no general criteria really emerged for resolving the conflict between community and individual rights—when one was to supersede the other. Although marginally favouring individual rights, the intent remained to balance the two, underlining an overly optimistic view of how the state might function when granted this power. If it was urgent to quell the communal tensions that greeted the birth of the nation, it also made framers conservative about change, the change to trust ordinary, though impassioned Indians, with too much liberty.

There was one issue however that reflected a clear desire of the Assembly to ‘distinguish the democratic republic from the colonial rule’, even as, paradoxically, that issue has dominated contemporary politics. While there was hardly any discussion over the terms obscene, libel or morality—provisions generously used by the English to ban literature, theatre and films (Hughes, 1999; Jaikumar, 2003)—the Assembly expressed anguish over the clause sedition, also used unsparingly but largely against political prisoners and the press (Ganachari, 2005). To T.T. Krishnammachari, it reminded of the long periods of political agitation, when it was used against Indian freedom fighters. ²⁶ For Munshi, it was best avoided because of its ‘historical ambiguity in the courts all over the world’. ²⁷ Mohammad Tahir supported its inclusion, but only in relation to religious toleration, by adding ‘communal passion’ after ‘sedition’ to curtail ‘agitating the minds of one community against the other’, which for him was ‘the single most important cause of loss for the country’. ²⁸ The matter eventually boiled down to resolving the difference between criticism of government—welcomed in a democracy—and incitement, which could undermine security of the state. It was here that Lahiri objected to Patel and Rajagopalachari’s proposition to make seditious speech a punishable crime.

The Assembly resolved to adopt the amendment to delete the ‘unhappy’ ³⁰ word sedition.

That right to free speech is not absolute remained uncontested. The contention was over manoeuvring its limits and its efficacious protection, but also over ascertaining which institution would do so. Much of classical liberalism, the starting point of the debates, remained misplaced optimism in this case, for there was little support for the belief that either the individual’s inner moral authority would harmonize conflicting interests, or that jurors and legislators would rise above their own self-interest to ascertain common good. Between Patel’s proposition to establish a strong centre—which Lahiri opposed, accusing Patel of ‘wanting even more powers than the autocratic and alien British Government’—Damodar Seth’s suspicion of the ‘high handedness of the legislature’, and Thakur Das Bhargava’s caution that by making political parties the judge of these rights, ‘we are certainly making these freedoms illusory’, it was the independent judiciary that was granted the ‘final say with regard to destinies of [Indian] nationals’. To provide therefore ‘necessary protection’ to the courts, Krishnamachari suggested adding ‘contempt of court’ along with clauses libel, slander, etc., since speaking on matters sub-judice had so far not been covered.

The proposition of adding yet another clause at the end of the reading of the Draft Constitution brought some rare moments of personal squabbling: B. Das rejected its inclusion by chiding: ‘Dr. Ambedkar has been defined as the Manu of this century, how come Manus change overnight?’ Also, granting protection to courts over citizens’ rights was problematic in that it carried the assumption that the judiciary is infallible. Moreover, ‘if anybody desires to trample the right on a mere application to the Supreme Court, a man can get his justice there’. ³¹ This was R. K. Sidhva’s argument—supported by Das and Krishna Chandra Sharma—against ‘not a consequential amendment’, backed by his ‘lawyer friends’ who he felt were not only being ‘lenient to the judges’ but also making them ‘super God’. ³² Shah also threw in caution that ‘whether the state wins or loses, the public, the country in any case will lose to one small section, that of the legal practitioners’. ³³ Furthermore, amendments in the right to constitutional remedies had been expanded to include the Parliament to authorize any court to exercise power as that of the Supreme Court, and to the president during periods of emergency, plus an additional six months during which he could suspend the right to constitutional remedies. ³⁴ For Ambedkar, the resolution of these medley of tensions eventually lay in practice: ‘however good the constitution may be, it is sure to turn out bad because those who are called to work it happen to be a bad lot’. To thus stay true to the spirit of the constitution, as its framers understood it, it was crucial for ‘people’ and their ‘parties’ to choose those who had the ability to discern this spirit. On 26 November 1949, the motion to accept ‘the Constitution as settled by the Assembly’ was passed.

The Amendment: Constitution at the Courts

In June 1951, 15 months after the constitution’s adoption, the Provisional Parliament, before the First General Elections, passed an Act for the First Amendment to Article 19, extending state’s authority over individual freedoms with the addition of clauses: ‘public order’ and ‘reasonable’ before restrictions. Another amendment, in the wake of the Indo China war in 1963, led to clause: ‘friendly relations with foreign states’. The article now reads:

nothing in sub clause (a) of clause 1 shall affect the operation of any existing law insofar as such law imposes reasonable restrictions on the exercise of the right conferred by the 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.

Widely seen in relation to the First Amendment of the American constitution, hailed for shielding the individual citizen from the tyranny of the state, its Indian counterpart did the opposite.

This was a result of three judicial decisions: two given by the Supreme Court and the third by Patna High Court—all involving the press and two ends of the ideological spectrum. Romesh Thapar v. State of Madras concerned the distribution of journal Cross Roads. ³⁵ The government in Madras, having already outlawed communist parties in the state, imposed a ban on the entry and circulation of this left sympathizing journal under the Madras Maintenance of Public Order Act of 1949. The petitioner approached the Supreme Court alleging a violation of the right to free speech. In Brij Bhushan v. State of Delhi, Delhi’s Chief Commissioner passed an order under the East Punjab Safety Act of 1949 against the right-wing Rashtriya Swayamsevak Sangh’s mouthpiece The Organizer for printing inflammatory content on Partition. ³⁶ The order entailed submission of all material such as articles and photographs on communal issues for scrutiny before publication of the weekly, putting in question the constitutional validity of a model of pre-censorship. As Lawrence Liang has explained, ‘the key factor in the two decisions was the fact that the phrase public order was not included in Article 19 (2) and that the courts interpreted restrictions on freedom of speech and expression as being legitimate only if they pertained to undermining the security of the state or overthrowing the state. Mere criticism of the government could not be considered as speech, which could be restricted for the purposes of Article 19 (2)’ (Liang, 2004). In the third case, State of Bihar v. Shailabala Devi, the Bihar government challenged the circulation of a political pamphlet on grounds that it incited violence, a claim that the Patna High Court rejected. For Judge Sarjoo Prasad even ‘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’. ³⁷

Following these decisions, many, led by Prime Minister Nehru, were concerned that a judicial dike might breach the security of the state, in a context marred by right-and-left-wing extremist violence. For Nehru, ‘it was an extraordinary state of affairs that a High Court had held that even murder or like offenses can be preached’ (Nehru, cited in Austin, 2008b). Similarly, Patel, home minister in his Cabinet, stated the ‘Cross Roads decision knock[ed] the bottom out of most of the penal laws for the control and regulation of the press’ (Patel-Nehru correspondence, cited in Austin, 2008a). As Nivedita Menon has pointed out, there was also a ‘moral problem’ that Nehru had with these decisions: ‘less responsible newssheets are full of vulgarity and indecency and falsehood […] poisoning the mind of the younger generation, degrading their mental integrity and moral standards. It is for me not a political problem but a moral problem’ (Nehru, cited in Menon, 2008). Importantly, once again following Menon, the reasons for Ambedkar, the law minister, to introduce the Amendment amid contestation, was neither the question of morality nor security of the state. Instead, he was more direct in asserting the importance of adding these clauses as guards against extreme oppression and perpetuation of caste brutality that was intrinsic to the organization of the Indian, especially Hindu, society. True, as Menon notes, the amendment was the government’s response to a ‘historical moment when the nation-state is still imbued with the legitimacy of the anti-imperialist struggle’. We can also agree that it was constrained by the ‘democratic accountability’, while the judges ‘remained untouched by pressures of political society, and thus upheld an impeccably liberal version of rights’ (Menon, 2008, p. 208). But the amendment also exerts a conservative influence, foregrounding the emphasis on ‘human moral imperfection’, and the unleashing of ‘uncontrolled impulses’, necessitating yet again institutional constraints as a ‘limit upon subjective impulse’ (Muller, 1997, p. 10). With the First Amendment, Article 19—appearing to protect free speech by denying its possibility—materialized as a realistic reminder: that if the state was the ultimate guarantor of individual freedom it was also its foremost enemy.

Conclusion

Assembly’s debates over Article 19 show the role played by India’s political elite at the helm of transition from colonial rule to reconstituting authority in an independent, liberal democratic order. While the ambition was a social revolution, it was filtered through the challenges posed by the prevailing context, expressed with an imagination not of the way India’s masses might behave under ideal conditions of democracy, but in a way that they might in the process learn about its principles and adapt to its constraints. Not surprisingly, what the Assembly prepared was based more on a sketch of disorder, than an unrealistic framework of orderliness. Particularly noteworthy was the framers’ concern with the ability of Indians to show restraint in matters of religious passions and communal inequalities. Despite these challenges, it is true that freed speech was unequivocally granted the status of a fundamental right, without clauses like sedition, abused by the colonial state. But there were responses that were ultimately indistinguishable from past institutional practices, even as the choice to opt for their continuity (due to familiarity of practice, or fear that their absence might lead to unintended consequences) was ostensibly less severe, yet contributing no less to a conservative impression.

The Assembly was diverse in its outlook, not bound by a particular tradition. Its outcomes have thus been determined by a collective commitment to generate consensus, where none existed, even if more precision might have been desirable. The conflict between community and individual rights is one example. The second main conservative side was a general scepticism regarding liberating individual freedom from sources of institutional authority, exemplified by the caution exercised in the wake of extremist violence over Partition or even during the First Amendment debates. While we see why individual freedom is a source of anxiety, it remains a vital concern for liberal democracies. In this regard, contemporary constraints on free speech do not so much reflect a breakdown of a ‘liberal’ formulation of Article 19. It is not surprising that there have been a litany of judicial inconsistencies and problems associated with some of its open-ended provisions like ‘reasonable’ or ‘public order’, which have overtime been misused by those intent on harassing artists in the name ‘hurt sentiments’. But, indeed, what contemporary politics does reflect is a complete breakdown of the framers’ commitment to a central liberal concern that led to the creation of the constitution in the first place: the commitment to generate consensus over conflict.