Freedom of speech and expression in India has become as nebulous a concept as the right to practise, profess and propagate any religion of your choice. This has become obvious with two recent controversies involving Union Minister Narayan Rane who was arrested for declaring that chief minister Uddhav Thackeray should have been hit with slippers for allegedly forgetting the year India achieved Independence and Javed Akhtar, who reportedly compared the RSS with the Taliban.
Voltaire on free speech
Voltaire was the pen name of François-Marie Arouet, who died in 1778. He famously, or perhaps infamously, declared: “I disagree with what you say but will defend to the death your right to say it.” Now, if we contrast this statement with the judgment of Justice Sarjoo Prasad of the Patna high court, who held in 1949 that “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. He would claim the privilege of free speech,” makes us do a double-think on what Voltaire said.
This passage from Justice Prasad’s judgment was the result of a woman called Shaila Bala Devi who managed a press called the ‘Bharati Press’ at Purulia in Bihar in 1949. Her press had published a leaflet called Sangram in high-flown Bengali which espoused bloody revolution as advocated through the mouth of the mother goddess Kali Mata.
In July-August 1950, a powerful Punjabi leader known as Master Tara Singh advocated a separate Punjabi-speaking state, which was the seed in later decades to blossom into the Khalistani secessionist movement. But when Singh was prosecuted for sedition (section 124-A) and promoting enmity between groups, (section 153-A), the Punjab high court held both sections were unconstitutional because they were too broad.
Now, Dr Syama Prasad Mookerjee, the founder of the Jana Sangh in 1952 which has now blossomed into the BJP, openly flayed the then Pakistani government for the anti-Hindu policies of its citizens. In a speech in Parliament in August 1950, Mookerjee, who was also for some time the vice chancellor of Calcutta University, declared the Nehru government’s appeasement of Pakistan must cease. And that “either economic sanctions must be imposed or military action must be taken against Pakistan”.
In December 1950, Mookerjee spoke at an RSS function where he said the Partition of India had “brought misery and humiliation to millions. While addressing Parliament that same month, Mukherjee said: “We are supposed to be at war with Pakistan in Kashmir,” and that “India’s policy towards Pakistan should be based on complete reciprocity”. And further that if the “situation worsens, India will have to depend … on her arms and ammunition or military strength”. In March 1951, Mookerjee said in the Lok Sabha that “Pakistan wanted war” and that if they still wanted it, “let them have the taste of that (war).”
In October 1951, at his presidential address at the founding of the All India Bharatiya Jana Sangh, he said: “We already know that the Partition of Bharat was a tragic folly. It has served no purpose and has not helped to solve any problem, economic, political or communal. We believe in the goal of a reunited Bharat… .” Mookerjee was arguably one of the architects of “Akhand Bharat” which again, is acceptable to patriotic Indians and some Bangladeshi citizens.
Amendment in 1951
As a result of such speeches and Justice Prasad’s vitriolic observations, the Nehru government introduced a Bill in the Lok Sabha on May 12, 1951, to amend some fundamental rights including the right to free speech by introducing three broad heads under Article 19 (2). This was because “the right to free speech has been held by some courts to be so comprehensive as not to render a person culpable even if he advocates murder and other crimes of violence”. Nehru was obviously referring to Justice Sarjoo Prasad.
The Supreme Court had reversed Justice Sarjoo Prasad’s vitriolic judgment but the Nehru government had already reduced free speech to a chimera. When the right to free speech was introduced by the founding fathers, only the three heads of defamation, contempt of court, and obscenity curtailed free speech. Apparently, the previous generation had more freedom to speak their mind than we do today.
So, in June 1951, three vague and insensate restrictions of “friendly relations with foreign states, public order and incitement to an offence” were included under Article 19 (2) to curtail free speech. Today, these three heads further restrict free speech and press freedom to assist our imagination that we have unbridled free speech. This amendment was passed with 228 members voting in favour of it and only 19 opposing it. Today, when we have a bellicose China illegally occupying parts of Kashmir ceded to it by a weak Pakistan which can be easily overrun by our armed forces, the restriction of friendly relations with foreign states ought to be removed by the Modi government.
Palatable truths only?
There is also no doubt that Mookerjee loved his country despite being an atheist; the Godi media cannot accuse Javed Akhtar of being anti-national. We have the right to read the opinions of both Mookerjee and Akhtar. Mookerjee championed the reunification of India with Pakistan just as the controversial Justice Markandey Katju who got at least two contempt notices from the very Supreme Court where he once presided as a judge, also advocates reunification of India, Pakistan and Bangladesh through his Indian Reunification Association, founded in 2017.
It was again Mookerjee, a president of the All India Hindu Mahasabha, seen as a patriot and great Parliamentarian, who famously declared that while the US Constitution created the right to free speech, the First Amendment to the Indian Constitution restricted it. Two of our founding fathers were reported to have said freedom of speech implied the right to speak only palatable truths but not unpalatable truths.
Today, when the Supreme Court has clearly said it cannot create a separate avenue for journalists to approach them under Article 32 to quash FIRs registered against them, journalists are reminded of the adage that in India, their freedom is that of the common citizen. Like Narayan Rane, or Javed Akhtar, or perhaps Param Bir Singh, whose complaint against his boss, former home minister, Anil Deshmukh, has landed him in more trouble than he can handle, we in India must remember free speech is a chimera.
The writer holds a PhD in law and is a senior journalist-cum-advocate of the Bombay high court