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Sedition in Liberal Democracies
Anushka Singh
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OXFORD
UNIVERSITY PRESS
Oxford University Press is a department of the University of Oxford.

It furthers the University's objective of excellence in research, scholarship,
and education by publishing worldwide. Oxford is a registered trademark of
Oxford University Press in the UK and in certain other countries. CONTENTS
Published in India by
Oxford University Press
2/11 Ground Floor, Ansari Road, Daryaganj, New Delhi 110 002, India
© Oxford University Press 2018

vii
The moral rights of the author have been asserted. Acknowledgements xi
List of AbbreviatiotlS
First Edition published in 2018
1
Introduction: Liberal Democracy and Free Speech
All rights reserved. No part of this publication may be reproduced, stored in
a retrieval system, or transmitted, in any form or by any means, without the 1. Political Offences and Speech Crimes: Comparing
prior permission in writing of Oxford University Press, or as expressly permitted 28
by law, by licence, or under terms agreed with the appropriate reprographics Legal Regimes
rights organization. Enquiries concerning reproduction outside the scope of the · ·The Past
2. Sedition and Western Liberal Democracies.
above should be sent to the Rights Department, Oxford University Press, at the 73
address above. and the Present
· tism· Sedition
3. Resistance, Suppression, and Patno · 136
You must not circulate this work in any other form
and you must impose this same condition on any acquirer.
in Colonial India
176
4. Sed 1·t·ton and t h e Ju eli eta
. I D.1scourse in Postcolonial India
225
5. Caste, Class, Community, and the Everyday Tales of Law
ISBN-13 (print edition): 978-0-19-948169-9 310
6. Indian Democracy and the 'Moment of Contradiction'
lSBN-10 (print edltion): 0-19-948169-5
Conclusion: The Life of a Law and Contradictions
ISBN-13 (eBook): 978-0-19-909182-9 363
ISBN-10 (eBook): 0-19-909182-X
of Liberal Democracies
369
Bibliography 387
Index 393
Typeset in Berling LT Std 9.5/13 About the Author
d . Graph·tcs so1utlon,
. by The . New Delhi II 0 092
Prmte tn India b R krn
y a 0 Press, New Delhi 110 020
ACKNOWLEDGEMENTS
This work evolved from my doctoral research at the Department of

Political Science, University of Delhi, and bears the imprint of the
efforts of no single individual but a collective. I express my sincere
thanks to all the faculty members, non-teaching staffs, and fellow
research students in the department for their support. I have been
extremely fortunate to receive the guidance of noted academics over
the years who have shaped my understanding of politics. I am thankful
to Achin Vanaik, Pradip Kumar Datta, and Pumima Roy. To Yogendra
Yadav I would always remain indebted for his unflinching support and
faith in me. I was privileged to receive the insightful comments and
words of encouragement from Anuradha Chenoy, Manjari Katju, and
Monica Sakhrani, which propelled the work forward.
The doctoral research fellowship at King's College, London, granted
by the Ministry of Culture Government of India, was one of the most
facilitating experiences fo; this research. I am extremely grateful to
the faculty, staff, and students at King's India Institute, King's College,
London. The incisive comments of Sunil Khilnani, Conor Gearty, and
Sandipto Dasgupta are reflected in this work. I am also thankful to
Robert Sharp at English PEN, for sharing his views and for putting
me in touch with those involved with the movement for abolition of
the offence of sedition in England. I thank the staff of British Library,
London, which was virtually my home for over three months, and
major parts of the work were written in its reading room which were
subsequently revised.
Lx
Acknowledgements
viii Acknowledgements
b th my grandmothers and Badi
familial love. Those who left midway- o
This work would be incomplete without the mention of my dear Ma-continue to live within me. 1 rvisor: critic, friend, and men-
friends, colleagues, and fellow researchers. Om Prakash, Prccti, Vikas, s
Ujjwal Kumar mg ,. h my doctora supe
world view ' and po1·ttiCS.
· 11o him.
Santana, Subarta, lndrajeet, Anusha, Kamal, Pooja, Kunal, and K.K. tor for life, has constantly mdy ch commitment to acttv-
Subha-1 cannot thank them enough for their comments, discussions, . ente resear , . h"
I owe my interest in praxts-on h b "11"1ance of which reflects m ts
and overwhelming support over the years. I also thank my colleagues at
ism, and engagement wt
"th law-t e n k fr
·s reflections on this wor om t
"ts
Gargi College, University of Delhi, for their cheerful support. Friends own work on the anti-terror laws. Ht various drafts, and persistent
at People's Union for Democratic Rights (PUDR) and their resilience inception onwards, critical book. I have deep respect for
to struggle have been constantly inspiring. I have benefitted enormously h ealed mto t lS . rt Over
encouragement ave cong t d yet unrelentt.ng suppo ·
from the various discussions and the work we did together. Anupama Roy who has been an unsdta e. rably failed at emulating the
Manoranjan Mohanty, Uma Chakravarti, and Gautam Navlakha have the years 1 have read h er w orks an rntse To Anupama Roy an d UJ·J·wal
never ceased to amaze and inspire me with their passion, commitment, strength and expression of her argument ts. and unconditionality.
and energy. While working on this book, I have found some of the . h .r sheer ove
Singh I owe this work, for t et
recent studies theorizing the nature of the liberal democratic states and
democratic rights within most engaging. In this regard, the contribu-
tion to the field made by Michael Held, Sarah Sorial, Katherine Gelber,
Jinee Lokaneeta, and Gautam Bhatia is immense. The conceptual cat-
egories innovated and theoretical interventions made by Laura Nader,
Julia Eckert, and Ujjwal Singh have benefitted this work enormously.
I am grateful to my two anonymous reviewers whose suggestions
for improvement were extremely beneficial, and to Oxford University
Press for their guidance and support.
1 thank the staff at the National Archives of India, New Delhi, and
the Nehru Memorial Museum and Library, New Delhi for their help.
The fieldwork in parts of Haryana, Maharashtra, Delhi, and Bihar
would not have been possible without the support and generosity of
the people there. Everywhere I went and stayed, 1 felt received and
aided. Many of the everyday stories I attempt to theorize in this work
bear the imprint of the ordinary and the extraordinary struggles of
these people and their institutions; naming a few would belittle the
struggles of the thousands.
The immense love and support received from my family, and
the autonomy I have been granted, has indelibly shaped this work.
Singh and Shweta Singh, would remain the strength behind
To U.N. Singh, Poonam Singh, A.K. Singh, Pushpa Kumar,
.K. Smgh, Kinshuk, and Tejrashi Mehrotra, among others, I
remam indebted. My soul sisters, Anamika Asthana and Shivani
Naram, have been my lifelines. I also thank Jamshed and Jyotsna for
ABBREVIATIONS
ABVP Akhil Bhartiya Vidyarathi Parishad

ALRC Australian Law Reform Commission
ATS Anti-Terrorism Squad
BJP Bharatiya Janta Party
BKU Bharatiya Kisan Union
BSP Bahujan Samaj Party
CM Chief Minister
CPA Communist Party of Australia
CPGB Communist Party of the Great Britain
CPI Communist Party of India
CrPC Code of Criminal Procedure
FALN Fuerzas Armadas de Liberaci6n Nacional
INLD Indian National Lok Dal
IPC Indian Penal Code
IWW Industrial Workers of the World (USA)
JCM Jagrook Chhatra Morcha
JNU Jawaharlal Nehru University
KKM Kahir Kala Manch
KMKU Krantikari Mazdoor Kisan Union
NIA National Investigating Agency
0BC Other Backward Class
PIL Public Interest Litigation
POTA Prevention of Terrorism Act
PUCL People's Union for Civil Liberties
PUDR People's Union for Democratic Rights
·---,
xii
Abbreviations
SAD
Shiromani Akali Dal
SIMI
Student
. . Isla mtc
· M ovement of India
SJSM
ShJValtk Jan Sangharsh Manch
TADA
Terrorist and Disru tiv . . .
UAPA Unlawful Activit" pp e Acttvtttes (Prevention) Act
tes revention Act
INTRODUCTION
Liberal Democracy and Free Speech
On 1 February 2017 at the University of California, Berkeley, USA,

mob violence erupted on campus with 1,500 protesters demanding the
cancellation of a public lecture by Milo Yiannopoulos, a British author
notorious for his alleged racist and anti-Islamic views. 1 Consequently,
event was cancelled triggering a chain of reactions on the desirabil-
Ity and limits of freedom of expression within American democracy.
The Left-leaning intellectuals and politicians were accused of allowing
the mob violence to become a riot on campus defending it in the name
of protest against racism fascism and social injustice. In defending the
rights of the protesters not 'illiberal' or hate speech on campus,
however, many claimed that the message conveyed was that only liber-
als had th e ng
· h t to free speech. 2
Almost contemporarily in 2016, in India, a series of criminal cases
registered involving the act of sloganeering in support of the
nght to self-determination of people in Kashmir. Kashmir is one of the
states of the Indian Union where the movement for self-determination
1
New York Times, 2 February 2017 'A Free Speech Battle at the Birthplace of
aM , .
ovement at Berkeley', available at https://www.nytimes.com/2017/02/02/
us/university-california-berkeley-free-speech-milo-yiannopoulos.html?_r=O,
accessed: 12 February 2017
2 .
htt . Matthew Vadum, 6 February 2017, 'The Sedition Left', available at
p.//www.frontpagemag.com/fpm/265 71 7/seditious-left-matthew-vadum,
accessed: 12 April 2017.
_,
'
3
Liberal Democracy mtd Free Speeclt
2 Sedition in Liberal Democracies
. d democracy, on the one hand, and
to bring together liberahsm an d th tate on the other. It is in the
has existed since its integration within the Union in 194 7. Notably, in cyan es ' ..
the imperatives o fd emocra ence of these confhcting ten-
February 2016, students of Jawaharlal Nehru University (JNU), New . fr 0 m the converg di . 15 ·
contestations emergmg peech' of which se a
Delhi, were charged and arrested for sedition for participating in a f 'extremes ' .
dencies, that the category o . f political speech, an expresston
meeting in which· it was alleged that slogans were raised to support . · ·s a form 0 a d state which 1s· 1:torb"dden
kin d , emerges. Sed tttonf •th vernment an '
1
Kashmir's freedom from India.3 In March 2017, in an interview given against the authority : e ate criticism, and, therefore, pro-
to India Today, Union Minister Venkaiah Naidu said that 'pro-freedom' for exceeding the limtt of legtttm eech and expression. By ratsmg the
slogans will not be tolerated and must be penalized, as they result in
t ec t e d by the right to freedomd
of s_p
htch speec
h may be freely exercised,
'th'
violence and endanger national unity. 4 In this case, the justification for issue of the conditions un er w d clition reveals a dilemma wt m
restriction on free speech was in the name of protecting the Indian or alternatively legitimately curbe , lds in the tensions between the
nation state, to which secessionism is interpreted as the biggest threat. liberal democracies. This between freedoms of citizens
The incident at Berkeley, presents with a case, in which restriction d the relations •P
relative preced ence an
on free speech was demanded and justified in the name of protect- and obligations of the state. of the many restrictions on
ing what is largely called the 'liberal-democratic' values from 'illiberal' di ti n are one . .
The laws to penalize se o d ex ression. Hence it ts tmpera-
political opinions. In the Indian case, however, the restriction on the the right to freedom of speech an palysis on this account would
right to freedom of expression of individuals was justified in the name tive to mention at the democracy and the right
of coagulating state security. The brief description above pre-empts not make any sweeping clatms atho' rk is the fate of those forms
the larger framework within which this work is placed, which is the f 1S wo d · t the
to free speech. The concern o des that are uttere agams
debate over the centrality of free speech and the restrictions on the of expressions within liberal thus is the state of freedom of
same. These concerns, however, gain prominence only within a specific authority of the state. The uiliority within those forms
context. An authoritarian state which does not recognize the individual h gamst e a ·
expression that citizens ave a th liberal and democratic.
as a right-bearing citizen is inappropriate for any debate on freedom to of government that claim to be bo
take shape. The appropriate context is informed by a form of govern-
ment, which we refer to as liberal democracy, which claims to guaran- ·Amalgam or a Conundrum'?
tee the liberal right to freedom of speech and expression to all citizens. Liberal Democracy: An Life and Times of Liberal
As an ideal, as well as an evaluative framework, democracy real- wrote The d · t the
In 1977 when C.B. Macp h erson . that existe pnor 0
izes itself politically through a democratic state. The process of this he excluded the entire democracy. He counted
realization is, however, fraught, since it involves reconciling conflict- nineteenth century from the frame loh"sttofY of the western democra-
ing tendencies which inhere in the logic of 'democracy' and the logic l"tica t · the way
the pre-nineteenth-century po 1 d cracy gradually pavmg d th
of the 'state'. A liberal democratic state, it may be said, is a fraught
cies as precursor mo deIs 0 f l'beral
1 emo · n ' Macph erson argue
. . 10
at
combination of competing tendencies and traditions, since it attempts
to its emergence. In rnaki ng
this dtsttnct ' 1 d
. r to libera emo
cracy were
all models of democracy that existed eties (Macpherson 1977,. P·
3 -class soct .· hip pnv-
The Indian Express, 16 March 2016, 'JNU Row: University Report Links based on either classless or one . . al equality and c1uzens
Azadi Slogans to "Outs"d1 ers " Wtt
.h . . 11 ). The understanding was that poltttc U eople belonged to the same
Covered Faces' available at http://mdtan-
express.com/artide/indi /' d"
. .
. . . ' . .
a m ta-news-mdta/}nu-report-hnks-azadt-slogans-to- ileges belonged either to one class or a. pt Greece fitted the model of
outstders-wtth-covered-faces/' accessed: 20 March 2016. class. The Athenian democracy 1·n Anc1enth privilege of At h ens-born
4 .· hip was e u·c mode1s proposed by
Naidu's interview giv t I d" one-class society where ctttzens
. . . en o n ta Today TV Network, available at http:// ) Democra
mdtatoday.mtoday.in!story/v k · h "d
.
..
en ata -nat u-ratsmg-azaadi-slogans-treason-sedi- propertied men (Held 1987, P· 23 ·
tmn-law/1/895067 .html, accessed: 10 March 201 7.
5
t of the ushering in of represent-
Rousseau in the mid-eighteenth century or Thomas Jefferson towards governmcnt.6 This was the The form that governments
ative democracy within the hbera states.
the end of the eighteenth century envisaged societies with no class dis-
tinction (Macpherson 1977, pp. 15-16). Rousseau and Jefferson dif- took then was called liberal ld be disagreements on
. da1m ere wou
h
Contrary to Macp erson s 'd t" g these principles had been
fered from the Athenian model in the sense that they did not exclude f, f rnment eno m
the property-less from the class of citizenry but both presupposed a the fact that a orm o gove the nineteenth century. In 1885,
society in which everyone who could be called a citizen, would have put in place in the west much bhe oCre t<tution commenting on consti-
V o· t Lawoft e ons.. ,
at least a little property to work on, hence a limited property right. w hen A. . 1cey _e . . and USA particularly, he traced many
Hence, within the supposed class of citizens, there would have been tutional democracies m Bntam b k to Common law and other
inequality of property but all still belonged to the same class of prop- of the principles of liberal 'rule of law' was foremost. 7
1
ertied bodies. 'practices of liberties' in Britatn, 10 w f cc al equality of all citizens
d the idea o 1orm
Liberal democratic model, for the first time in the nineteenth Rule of law was ase onb . h l"berty of all individuals.
d . . ofthe ng t to I d
century envisaged a form of government for a society that had class before law an recogmtlon b t the temporal contexts an
divisions and the rights-bearing citizens belonging to different classes. Although there may be debates fal"bou democracy all accounts of
f, h gence o 1 era1 , th
Liberal democracy hence, as Macpherson opined, was essentially a form their corollaries or t e emer . theoretical underpinnings show e
of government for a capitalist society that sustained the class divisions the life of liberal democracy and tts ·b li ...... and democracy. The idea
d" · -li era Su•
in the society while guaranteeing the same rights in theory to different coming together of two tra tttons t was· democratized in the
1
classes of citizens. (Macpherson 1977, pp. 9-20). of individuals as capable of self-deve citizens. The democratic
Liberal democracy came to be identified with a form of government sense that this was now applied y ·ghts and at the same time,
h . div• ua s n ' 8
that guaranteed equal rights to all citizens, rule of law, basic civil liber- government was to protect t e 10 d from unlimited state power. In
ties, and popular sovereignty. It is evident in Macpherson's argument the individuals were to be protecte
that liberal democracy was an imperative of the liberal state based on
. . on Moore Jr., 1966, Social Origin of
capitalist relations. Hence, liberal democracy is referred to as a form of 6 Refer to Chapters 1 and 3 10 Barnngt fthe advent of capitalist democracy
government that became liberal first and then democratic. David Held ·
D emocracy and Dzctators h"1p, 10ran account 0 · · hts
. trU lefor liberal democrattc ng ·
brings forth this argument in tracing the historical emergence of mod- in England and USA through bourgeoiS s gg d to Introduction to the Study of
em state in the west in which he makes reference to liberal state and . h r's Forewor
7 See the Editor, Roger MIC ene
k
. h d.10 1962 based on his wor a cen-
. pubhs e
liberal democracy as two different forms of modern states (Held 1992, LAw and Co1zstitution by A. v· Dlcey f l · three constituent parts-
.. f rule o aw m . f
p. 89). The liberal state was founded on the idea of constitutionalism 5 tury ago. Also see Dicey's defimtlon o f rnment secondly, the rdea o
art o gove ' . 1
that is, an idea of a limited government, private property, and firstly, absence of arbitrary power on P b the result of the ordinary aw
. . allawto e
economy. It upheld the right to life, liberty, and property of the citizens legal equality, and thirdly, constitution
hut the citizens were essentially the property-owning male adult class. ofland. See Dicey 1962, pp. 183-205· l . y of liberal democracy into
s Macpherson classified the historica JOdumel pmental democracy, and the
It ':as only in the course of many struggles fought for voting rights that the eve o S
umversal adult franchise was established as a governing principle of three models: the protective democracy, d T" es of Liberal Democracy. ee
equilibrium democracy in his work The Life an rm riated by David Held,
Macpherson 1977. The earlier t-.vo models we;e app::e demo·cracy was based
5
th d which emerged as a principle of liberal states, became later to denote the phase of liberal democracy. rotec democracy talked about
. h"l developmenta1
, e e. feature of liberal democratic states as well. Constitutionalism or on the idea of constitutional1sm w 1 e . . l"1 m as a necessary mea-
garantiSme as Sartori · . d participation in political life along with constltllutlodna ;lopment of individuals.
. ' Wntes, m mo ernity is believed to be teleological where thefu est ev
th e te1os IS securing rights t . d" "d . by limiting the power of the sure to secure individual rights, to ensure
o m lVI ua1 c1tizens
government. See Sartori 1962, pp. 853 -6 4 . See Held 1987.
6
Liberal Democracy and Free Speech 7
sum, it was the individual and her rights that were at the centre of the
philosophy of liberal democracy. democratic tradition represente d porttica. · 1 lity1'and. popular saver-
hts and liberty
It is evident hence, that the trajectory of liberal democracy, and this eignty while the liberal tradition stood for 10 tvt ua s ng Th
is strictly speaking for the west, places the liberal tradition before the to he guaranteed as a consequence o . f f limitation Ion state power.basede
democratic one at least in the historical time line. Bhikhu Parekh argues . · the exerctse o popu ar
latter imposed restncttons on f diti" ns that according to
that liberal democracy is 'liberalized democracy', that is, democracy . Th . t nee o two tra o '
on political equahty. e exts e . d d 'both perfect liberty
defined and structured within the limits set by liberalism. 9 Liberalism her, could never e pe ec
b m tl rationa 1tze rna e
ssible' (Mouffe 000, p. 10). Liberal
believes in the idea of individual as prior to state and possessing rights 2
and perfect equality become tmpo d . ti"ally a paradox that
that are above and before the state. The democratic system arranged democracy, hence, m . Mourre « •s wor s' 1s essen ·
within the liberal paradigm then accepts the state to maintain a sys- 1 · · ti" t nsions within it.
resu ts m persts ng e ·nts out to such per-
tem of individual rights in which people can control and compel the . , .. 0 f l"beral
1 democracy pot
Carl Schmttt s cntique h . . e oflt"beral democracies,
government and the authority of state (Parekh 1992, p. 165). Within . . d c"ng 1 is cnttqu
sisting tensions. Schmttt m a nta democracies, wrote that lib-
this arrangement it comes to fore that the nature of state within liberal which he referred to as the parhame ry .ty (Schmitt 1926). Prior
.th rt ·n homogenet
democracy is defined along the parameters of liberalism. The state is a eral democracies work wt ce at . th d ocratic tradition had
human creation, created to safeguard the rights of individuals, and the to the emergence of liberal democractes, only for those who
individuals retain the right to withdraw support from political author- worked on the principle of substantivthe equalt d d others For Schmitt,
ity if it violates the rights it was supposed to protect. 10 12 · d e occ u e ·
were equals. The oth ers remame a liberal idea and not
This is not to say that liberal democracy stands out to be the per- . . . I d "t their status was
equality of all mdivtdua s espt e th . dividualistic ethics of
fect peaceful amalgamation of the two different traditions, as Chantal "b t· t lked about e m
a democratic one. Lt era Jsm a ·es as Schmitt writes, are
Mouffe writes, this union was full of struggles and imposed many limits h d m democract ,
equality of all persons. T e mo IJ) that claim the equality
on how liberal democracies were to function. 11 According to her, the 'a confused combination of both ( 1926 'p.l the homogenised equals.
1 "ghts to on Y
of all persons but grant equa n h ry person is automatically
9 Th f I. b ]"eves 1 t at eve
Bhikbu Parekh makes the argument in context ofliberal democracy and it e liberal idea o equa tty e ti"c conception of equality,
The democra ,
being a form of government specific to a context, that is, the western societies, equal to every other person. who belong to the 'demos
and its universal applicability is something that the world outside of the west however, distinguishes between those t about the inequality
must 1"t The argumen
10 be apprehensive o£ See Parekh 1992, pp. 160-75.
band those who are exterior d th
to • •
uals gatns asc
endance as one of the
d etween the equals an e uneq th" k focuses upon.
• The social contract tradition within liberalism in the writings of, primar-
tly, Thomas Hobbes and John Locke took the above position regarding the .l d . that ts wor .
t emmas of liberal emocractes f the liberal democratic
emergence o .
nature of state and conditions of political obligation. In Hobbes' thoughts, right
While this holds true fior th e ld the liberal democrattc
to rebel was a right available to individuals only when threatened with life by .. . fi th t of the wor
tradttton m the west, or e res . . l of liberal democracy
0thfeh
t state.. See
h Jones
d 2002, p. 19. Locke, however, laid down a systematic defence idea travelled through colonialism. The prmctp es
e ng t to issolve
responsibilities t t dtheS sovereign
h government when it failed to fulfill its
XI . , rus · ee Jo n Locke, Two Treatises of Government, Chapter
Edztion, Corrected in 11 of
Of the Dissolution , , Government', in The Works of John Locke. A New
1 - --
of struggles as the tensions between liberty and eq uallty have persisted. See
W Sh d ' en vo umes. Vol. V. London: Printed for Thomas Tegg;
G ·.ffi an Son; G. Offor; G. and J. Robinson; J. Evans and Co.: Also R.
n 11 nan Co. Glasgow; and J. Gumming, Dublin 1823. · Mouffe
12 2000. f tradition in Europe
Chantal Mouffe calls th· · f . I .. David Held opined the same about the democra 1\ to this tradition
d th at pre-dated the emergence of h"b eraI d emo cracy. dHe re.ers
ox an d t he reason why the h·ts umon
t fo t·b
two nva trad1ttons a democratic para- th Athenian society.
ts ory o 1 era1 democracy has always been full as t he Classical model of democracy, pnman
· ·tY base on e
See Held 1987, p. 23.
9
. idea of liberal democracy that went back
democracy was a normative h' k On Liberty Mill stated
were truncated by the colonial state in terms of the denial of liberal f J h St art Mill In IS wor ' ' d
to the writings o · o n u · t that those who governe
rights, which otherwise universally belonged to all individuals. The idea . form of governmen f
that it was wit h t h IS new th lers-external to the class o
of colony was that of an exception to the universal, conditioned upon ·fied ·th ople rather an ru d d
were identi WI pe Th h governed were electe an
the 'differences' with its colonizers, not yet capable of exercising the
subjects over whom they ruled. hoselwtod them The people retained
right to liberty otherwise presented as a universal norm (Chatterjee le w o e ec e . f If
hence responsible to t he peoP d h This was the age o se -
1993, p. 18). Despite the denial of the basic principles of liberalism ho goveme t em.
power over t h e ru1ers w . h' h th tyranny of the government
by the colonial state, the idea of modern state that it represented . him m w IC e ·
d
government accor mg to ' . k dd however, that even m
was implanted, which was later appropriated by postcolonial societ- f ·t H was qutc to a ' ill
was not the greatest o evi s. e 1 did not always represent the w
ies to strive for the same liberal democratic state whose model was
the age of self-government, the ru ers th rule of each by himself
showcased by colonialism (Kaviraj 2003). While this proves to be an asn't always e ft th
of all and self-government w . of the people, more o en an
important historical digression for an analysis of the concept of liberal 11
What prevailed in the name of the W1M'll the tyrannY of majority was
democracy, it is politic to return to the context which saw the birth of
the idea of liberal democracy, the west. For the postcolonial world, the
f
not was the will of the majority. For I the government. Thus, for a
a g;eater evil compared to the tyranny o ·oritarian will, he proposed
mimesis of liberal democracy created further dilemmas that this work
society to be truly free from the each individual: first, the
would explore. st be exerctse t
th
three basic liberties at mu d freedom to pursue tas es
What eventually emerged as the liberal democratic form of govern-
ment, as discussed earlier, premised itself upon the right to liberty of
freedom of thought an
d di ssion· secon '
scu dt fr dom to unite without b emg .
that do not harm others; and lastly, eh ee on others. It would be read
individuals. Despite the contradictions that persisted in realizing the
forced to do so and WI'thout 10 · flicting farm liberal democracy wo uld h ave
universal equality of all individuals in exercising their liberty, the indi-
along that for him, a genuine fonndo t individuals (Mill1999, PP·
vidual's right to liberty formed the core of the idea of liberal democ- , h ki ds of free .oms o d th . ht
guaranteed these t ree n lib rties he prioritize e ng
racy. One of the essentials of the right to liberty is the freedom to
45-57). In the category 0 f these baste . e '
express onesel£ The historical route, as well as the theoretical models,
to freedom of thought and discusst:· ht and discussion shows why
establish the centrality of the right to freedom of expression of indi-
Mill's advocacy of freedom of oug. ty for its usefulness. Within
viduals, within a liberal democratic state. Aligned to this proposition, ted in a socte
is the question-why is free speech valuable within this framework?
free speech must b e protec . th advocacy was b ased on the
the framework of Mill's . ety 13 Mill was of the opinion
1 1n socte ·
'l'ty kn
idea of free speech being a utt . bl' atory for the society, to ow
The Value of Free Speech and the Category that freedom of speech in socte 'tytSO tg f
tion that truth o ce rt' am
of 'Extreme Speech' the truth. His theory reste d on the. assumP d n1 if they are a11owed t 0 be
beliefs or judgments can be determtn.: He based his argument
The value of free speech has been recognized in western liberal dis- debated and deliberated upon freely 1 p
course both for its normative as well as instrumentalist presence. The
defence of free speech within liberal democracy follows many strands like pleasure, happiness,
within which the right to free expression against the author- 13 d · arious ways · k \ike
UtUity could be interprete In v
0
f the utilitarian thin ers
Ity IS read as an implied right.
economic wellbeing, and so on, · the. thoughts Utilitarianism expanded the prin- ..
While tracing the historical emergence of democratic forms of gov- Bentham and James Mill. J.S. Mill 10 his book to certain ends but was tn
ernments, Macpherson referred to developmental democracy as a vari- ciple of utility saying that utility was not a ted that utility is desired In a
ant of liberal democracy guaranteeing effective freedom and an equal itself Thus, the principle of utility 1998, p. 82.
right to self-government for all (1977, pp. 50-64). Developmental society as it results in general happtness.
W!IPC
I
10
Liberal Democracy and Free Speech II
upon two hypotheses, first, that the opinion which is being suppressed
h I pear to be attempts to bring
in society is possibly true and its suppression denies truth to the society, of these defences of free speec a so ap ti' t dt'ti'ons ofliberalism
b n the compe ng ra
and second, he propounded, it may be probable that the opinion is about a rapprochement etwee k I of ideas' is a liberal way of
false, in which case its expression would make its falsity known to the d Wh'l the 'mar etp ace
and emocracy. 1e ether another argument offered
world and there would be no need for its constant denial (Mill 1999, holding liberalism and democracy b ' democratic way of doing
by Alexander Meiklejohn appeare to e a
pp. 59-60). Search for truth enhanced the utility in a society, eventu-
ally leading to the well-being of the entire society. the same.
M 'kl . h as an advocat e of the First Amendment
Seemingly, Mill's theory is a moral discourse on the objective Alexander e1 eJO n w ld th 'ght to freedom of speech
idea of what constitutes the truth, and truth itself being a utility in to the US Constitution that uphe e Speech and its Relation
S .. He wrote n'f!e
the society. Mill's argument, however, has a lot to offer in terms of and expression to U Citizens. I f free speech in functioning of
. · the roe o
the consequences of conflicting opinions in society and the ways of to Self-Govemment outl mmg a form of government
'kl . h democracy was
dealing with them towards increasing the efficiency of a democratic a democracy. For Mel eJO n, d . order to self-govern people
government. Eric Barendt opined that Mill's argument about freedom where people govern of electorate. Right to free
of expression relates to the imperiousness of political opposition in a must possess all information as f fio y ti'on and made democracy
. fr fl 0 w o m orma
democracy. Only when the opposition has the right to freely challenge speech ensured t h IS ee h 'ght to speak but the right
t muc on n ,
the actions of the government by judging them on parameters different vibrant. His focus was no so . ll kinds of views that the best
from that of the ruling power can there be a possibility of appropriate to hear, as it was only after listenmgd freedom of speech does not
action (Barendt 2005).
judgment could be made. He argueth t eryone worth speaking shall
k but a ev
Mill's theory finds resonance in a similar argument defending free mean that everyone sh aII spea ' hi'slher views apoear to be
speech, which is the 'market place of ideas'. The reference to this argu- b 'I d because ·
speak. No person shall e Sl ence believed that all political opinions
ment is found in the United States Supreme Court verdict in Abrams conflicting, false, or dangerous. He h ted at the heart of the idea
14 d b use t ey res
v. United States, 1919. According to this argument, extreme ideas deserved to be expresse eca h pie govern themselves, they
should he allowed to be circulated in the society in the hope that such thatw en peo
of self-governance. It meant the content and the nature
arguments would be argued against and eventually rejected. Justice alone have the right to pass a JU . . dgment ld be ensured only when aII
on
in landmark case in 1919 in USA outlined this idea while of the speech and no one e se. 1 Th1s cou
d (Meiklejohn 1948, pp. 24-7) ·
Issentmg With a majority decision in the court in case of a prosecution kinds of thoughts are allowed to ?e has been an emphasis on pro-
under the Espionage and Sedition Act 1917. Holmes' much quoted dis- Within the free speech scholarship, h'ch h s an important utilitarian
sent note 'the b t f th . . . I speechl6 w 1 t·ti· aal speech is often worded
es test o tection given to pohttca
accepted in the c · tru
· fIs the
h powerk 'ofs the thought to get itself . for po 1 c b
f h ompetitron
o t e theory that M'U h d o t e mar et 1 is a classic application angle of defence. This protection h fi r self-governance (Gel er
. the language of the consequenc e it as o
In
ti
an th at the argum 1 t af ' propounded.
k I It is of consequence to men-
l1'bera1de!ence
c of & en ° mar
h etp ace of ideas' was also a typically 2010, pp. 304-24).
. .
fi di free speech based on the
· · de en ng d
accorded hi h ri speec within a liberal democracy. The argument Another maJor mtervention 10 d tic principles was rna e
eren t 0 d g P onty to free speech and interpreted freedom with ref- 11
Philosophy of liberalism as we as
on emocra
.J .1 Fx:pression. This theory
ce Ynamism d b b 'T''h 0f Freeaom 0'l .
an enefits of a free market (Blasi 2004). Some y Scanlon in his work A 1' . of liberalism that believed 10
Premised itself on the basic pnnctple
14
250 u.s. (1919). 16 [I of speech about or against the
To categorize political speech as a or:m I of the ways of defining
IS Abrams v. United States, 250 U.S. (19I9). &ovemment, state, or the politica I au thon'ty ts on Yone
Political speech, which this work subscribes to.
12
Liberal Democracy and Free Speech 13
individuals as rational beings capable of self-development, an argument

that also lies at the heart of Mill's philosophy. According to Scanlon, possibility of exercising those ch mces . by e nablingf informed
t· . 1 'd as decision-
the rationality of individuals makes them capable of self-governance, making and reducing the scope 0 f sup P ression o po ttica fr d t e f. olt'ti-
much on the lines of Meiklejohn's study. He says, an act of expres- John Rawls in his Political Lt'bera z·tsm t alked. habouth . eed' om 0 p
'd al has an
.
cal speech as part of basiC erties up l'b
1 . on whtc
. eac · 10 tvt u
(R Is 1993 p.
sion is any act that is intended by its agent to communicate to one or
. . d t • eate a JUSt soctety aw ,
more persons some proposition or attitude which includes display of equal amount of clatm 10 or er o cr . . while making a staunch
symbols as well as failures to display them (Scanlon 1972). In devising 340-48). Carole Pateman and Anne Plulhps, t lked about revi-
f th · · I'b 1 al democracy, a
his theory, Scanlon talks about speech acts such as incitement, advo- feminist critique o e eXIsting edr c king sexual inequality a
. . . calle ,or rna
cacy, conspiracy, and so on to commit certain actions that are likely to sions within it. T he reviSIOn IS ld t ·1 more substantial
dd d d that wou en a1
produce harm and defends them as acts protected under freedom of concern to be a resse an . Philips 1993). They
expression based on what he calls the 'Millian' principles, extending active participation of feminists (Patemanb 2012 h 'd in order to make a
Mill's defence of freedom of thought and discussion. c
essentially re1er to t h e ng · ht 0 f women to ecc ear t lks of creating a true
. I po t·ttica
substantia . I d·a: 1nerenee· Chantal .Mouneal a pace to antagomstic . .
The Millian principle recognizes the individuals as equal, autono-
mous and rational to the effect that individuals are 'sovereigns in liberal-democratic society that would give sf those voices within
voices thereby upholding the right to expressiOn o ..
deciding what to believe and in weighing competing reasons for their d . ·17
actions' (Scanlon 1972, p. 21 5). According to Scanlon the autonomy of a polity that are dissident an competing. the ri ht to free speech in a
the individuals enables them the power of judgments hence each indi- While considering the arguments about . d that the question
· · t be borne m mm
vidual is responsible for his/her actions. If the individual wa; incited to liberal democratic soctety, tt mus h . threat to its violation.
. . h . ly when t ere ts a .
act a certain way, the responsibility of the act committed because of the of upholding th1s ng t anses on th kind of speech that ts
incitement rested with the individual who acted upon it because he/ No society would feel the need to suppress bile outlining his theory of
she had the autonomy to decide whether to act upon the incitement or either pleasant or inconsequentta · I. Scanlon w d eof expression becomes
freedom of expression mentione · d that free om ches having harmful con-
not. In case the state exercises the right to protect people against false
expressions by restricting those expressions in public space, it infringes a significant doctrine only when those speel talks about the minimal
sequences are 10 . question. . Kent Greenawa t hould not intenere _£ •
10
0ufon the autonomy of the individual as it does not concede the right
the individual to decide upon the consequences of the .
principle of ltberty t h at says th e government h th s commumcation . . m1g . ht
Free speech, hence, enables the exercise of autonomy. communication unless to preven t harm t at e
. s have been given many
c f express1on
nt.Greenawalt
sequenttalist talks about the consequentialist and the non-con- cause (1989, p. 10). Sueh IOrms 0 h d so on. This work refers to
1·u t'fi . f
tags such as harmful speech, hurt speec :an ;,., and Hare in their work
ti on constders
. s t t cat1ons
pr . fofi free speech. A consequentialist justifica-
t o certam
0
. desirableeCtion these expressions as extreme speech · Wemste... e speech as that form of
st t 0 f ccree• speech
o I'k an
h imperative, as it contributes define extrem )
of truth• tn . d'tVtdual
. a e 1 alCatrs I e dan onest government, discovery
dev
Extreme Speech and Democrac::' . of legitimate protest (2009, p. I ·
J·ustificat' lks e opment, an so speech that goes beyond the limtts ch as a broad category of
ton ta about th . f fi on. A non-consequentialist t me spee .
someth'mg about the e· Imperative o ree speech in the sense that This work, however, treats ex re . . of any liberal democratic
f t'
10 e funct10nmg
its conseq uences (GrpracttceI o free speech is right without regard to those expressions that th e rou The category of extreme
c . t0 h
value premt' f I'b eenawa t 1989). These justifications rest on the society finds discom1ort10g f ressions like hate speec •
ses o 1 eralis h h . I
speech is diverse me u mg a ran d' ge o exp
that free speech b . m rat er t an the favourable consequences
both kinds of . gs about. According to him, in a liberal democracu
JUs t cation h0 ld th J•
democracy res ts on t h e cho. s up
c f . . e value of free speech. A liberal M ffe calls an agonistic model of
Such a society is based on
17 ou
t es o ctttzens, and free speech ensures the democracy. See Mouffe 2000, PP· 9S--IOS.
15
. . l f llective deliberation among free and
pornography, libel, and so on. Sedition is also referred to as a category process in a pohty ts a resu t 0 co th h lity where all
. b sured only roug equa
within extreme speech. Many argue that the centrality of right to free equal citizens. T h ts can e .. h ts to question to inter-
'ty 'to tmttate speec ac ' ,
speech within liberalism is countenanced in a way that it provides have the same opportum , nhabib 1996, P· 70). This is equally
space for extreme speech. Freedom of expression, as Oliver Wendell rogate, and to open debate. (Be h dit' ns that is based on his
linked to Habermas' idea of tdeal speec tothat only those 'action
Holmes Jr. said, is 'not free thought for those who agree with us but . . 1 Habermas wn es
freedom for the thought of those we hate' (Soutphommasane 2006, p. notion of discourse pnnclp e. h a: cted could agree as par-
. h l1 those w o are aue
norms are valid tow h tc a p 107-8). By 'action
33). The defence of extreme speech, thus, also follows several strands . 1 d' e' (Haberrnas 1996• ·
of thought. ticipants in rattona tscours . th behaviour of people and
norms' he means general rules governhmg . te rest could be affected by
Sorial and Mackenzie talk about three kinds of defences for extreme ,h those w ose m e
speech (2011, pp. 165-88). The first argument is that the speech that by those 'affected e means . Rational discourse for him
. f th actlon norms.
urges violence is remote from actual occurrences of violence; hence, it the general practtce o ose . d t achieving an understand-
is not a cause of direct harm. This argument, however, does not find is a process by which an attempt IS rna ati'on Hence the process of
h h commumca . ,
much support even among the defenders of extreme speech, as it has ing over action norms t roug . ld be considered valid only
« . 1 w making wou
been often argued that the harm is not always direct. Literature deal- rational discourse anecting a - ££ ted and since laws affect
. . . . f all who are anec •
ing with hate speech or pornography has mostly refuted this defence, tf it has the partictpatton ° ..
. the partiCtpa 1
t'on of all. Habermas does
arguing that the nature of harm does not always have to be physical all, the process would requtre . . ti' arrive at a consensus. The
h 0 P artiCtpa ng
and evident. th
not mean that all ose w are . ·f th who are not agreeing get
· valtd 1 ose d
The second argument says that it is often difficult to distinguish process of decision-rnaking ts . their opinions and are trie
d freely votce
between extreme speech and criticism of the government, hence, an opportunity to equa11Y an hy a certain decision must
restriction on extreme speech many a times results in restriction on to be convinced by those who agree the conditions of ideal
legitimate criticism of government as well. The third argument is about be taken. This is another way of saymg onsequence of the rational
·d and are a c
maturing of a democracy. It advocates that a mature democracy should speech ensure that laws are valt
be able to tolerate ideas expressed by extreme speech as it would have discourse. h in democracy, the common
long-term consequences for democratic living. Both these arguments In all these arguments defending speefc mmon good or good of the
. idea o co h
correspond to a democratic functioning where the values of democracy running thread is that of a certam 1 tion of extreme speec ·
d through to era
are accentuated to justify toleration of extreme speech. Defending society that can be promote .. blic debate that extreme
'button to pu ld
extreme speech along the same lines, Ben Saul argued that unless we There is a certain logic of . . d that extreme speech shou
able to hear and understand the views of our political adversar- ideas can make, if tolerated. It tS tmplie£ 'ts democratic utility, either
h but10r1
Ies, we cannot chan ge th etr · mm · ds th at t h ey are wrong or change our not be protected as extreme speec ' dt's idea of shielding away from
own behaviour to a da . posttions.. going by Mill's truth argument or Bren d . £ rm of words have lesser
'gh ccommo te opposmg that' turn out to be elease tn IO
:
1
t pp. 868-86). These defences of extreme speech argue Violence as discontentment once r h N ssbaum talks of the same
. . . 1 e Mart a u h th
dcreating a deliberative sphere of adversarial political opinions. possibility of erupting m v1o enc · b'l'ties
11
approach, w ere e
1 defence of free speech through her capa h onditions to all citizens
tht era . emocracies are commttte . d to d elib eration because it is one of
· t enable t e c
e pnmary ways that ensure ctttzen
·· . . . and engagmg
parttctpation . with argument is that, lawgtverS mus .£ The prominence given to
those wh o h old extrem . b t owards a goo d conceptton · of human. 1ne. · ·
bout the constitutive
(Soria1 and Mackenz1e . e VIews must e a part of deliberative process . fr e IS hence a
2011, p. 169). f reedom of speech within t h ts am l bt'lt'ties (Gelber 2010,
. f . di ·dua capa
As per the deliberati d f · role of speech in formation o m Vl
legitimac f d ve mo e1 o democracy, the rationality and
yo emocracy can only be established if the decision making p.315).
17
Liberal Democracy Free Speech
. used b a speech, there have been stud-
Soria] and Mackenzie opine that there has to be considerable dif- On the question of to predict the reception of a
ference between extreme speech with a purpose to affect the public ies that have proved that It IS d' n the hearer speaker and
. h nge depen mg upo ' h
sphere positively and extreme speech which intends to propose reso- speec h as meanmgs c a t ffected by the same speec
., 0 H h ay people may ge a
lution of issues in public sphere through violence (2011, pp. 175-6). context.- ence, t e w . different. These studies have
11 be the targets, IS
Though there are always contingencies attached to allowing extreme even though t h ey may a h . question is not always the
'b. the speec m f
ideas to be circulated in public, as the consequence may turn out to suggested that proscn mg . d education on the lines o
be violent, however, the unintended consequences are not to be the
·t bl . fact persuasion an
best remedy avat a e, m n as impact the aggressor
th et group as we
basis of judgment. Their logic is that even if there is propagation of toleration help protect e targ
tile politics or goals of a so called terrorist organization, that must be (Weinstein and Hare 2009, P·. lOS). the causal connection between the
allowed to be heard as that would help the society make better sense The question about how tightly h been one of the most pro-
of the act of violence resorted to and also the nature of deprivation . « be drawn, as 09
speech and 1ts enects can . . f free speech (Post 20 , P·
and oppression that may have resulted in such acts. But this does not nounced defences against proscnption tlo requirement of proving the
mean that the propagation of a violent act, urging people to take up 134). In any case, no mater t how severe h.
le f h
de the contingency o t e
b speec IS ma ,
arms, should be allowed. This is based on the logic that propagation · conjectural harm cause d Y a ·th . most likely that a speech not
ay WI • 1tIS
of extreme ideas about violence may contribute towards culling out argument cannot be one aw d h ful occurrence to follow may
the truth in society and help in rational decision-making. But the same having enough ·mcttemen· t for any arm h having met all th e require- ·
ideas in form of incitement to violence do not serve the same purpose result in the unanticipated, and a speec fa harmful speech may not
hence should not be protected. IS . h parameters o
ments of proscriptiOn on t e . the question that emerges
The above argument offers a ground saying tllat there will be . A . t these dilemmas,
result in any act1on. gams
instances of expression of extreme ideas resulting in violence in society. is what can words do?
If the ideas, however, were expressed independent of an intention to
result in violence then the undesired consequence must be tolerated hA Reconsidered
for the goodness of the intention with which the idea was expressed. Sedition as a Speec ct, f which sedition is a
f
treme speech, o
This line of reasoning concludes that if the speech in question cannot When we focus on the fate ex0 minence. If speeches can
h assume pro h
he used to justify its contribution to the betterment of society then it kind the consequences of speec . the meanings that speec es
, theonze h·
should not to he protected. The argument about societal good being mean harm it is of our concem to b t consequences. The P I-
' . bring a ou .
tllrough free speech also contains, within itself, the possibil- contain and how these meamngs . . and while domg so, the
. theonzatlon ed F
Ity of a counter argument. If the purpose of speech is to contribute losophy of language he1ps t h IS . ds to be complicat · or
positively to a society, when a speech affects a society deleteriously or distinction between speech and acttons neeh act theory is parocuIar1Y
·
, k the speec th .
certain sections of the same, it ought to he restricted. This argument this purpose J.L. Austin s wor on d f the speech act eory IS
has been advanced by many scholars on hate speech specifically. 19 helpful The' assertion that can be maeo on its addressees (Btl u er
. . . . us impact up
18 that language can have an 10JUf1°
• kinSorial and Mackenzie, while giving the above argument defending cer-
tam
. . ds of extrerne speech an d not defending the others, say that this logic . . theory approach, studied
1S app11cable for th · · h h . muolcation h
. ose soc1et1es t at ave a functioning liberal democracy. For 2.0 Leets and Giles, through therr com the impact of racial speec
0 th er Circumstances ho d d ·gns to see d' th t
19 wever, a vocacy to violence might be tolerated. three different experimental case esl . ll thereby conclu mg a
Gelber uses Nussbaum's argument to revert it to say that if hate ·II t results 10 a ' · t
on people and came up with d 111 eren ps and proscription 15 no
sGpelebc °es not enhance the individual's capabilities, it must be prohibited See •10 11 target grou
the attribution of harm is different a
e er 20 IO,p.318. · 997 ·
a1ways what is required. See Leets 3 nd Giles 1
19
to the intentions of the utterer and
resulting in an act may be contraryd' f the audience. An illocutionary
in accordance with t h e uncierstan tng while perlocutionary act 1·s
0
1997, p. 16). Austin in his work, How to Do Things with Words, talks dc
about three ways in which speech and action are related; firstly, saying 1 aning an torce th f
act has a conventiona me . A ti supplements his eory 0
something is to do something; secondly, in saying something we do · t rpret1ve. us n b bal
non-conventiona1 and 10 e . d s not always have to e ver
something; and thirdly, by saying something we do something (Austin nt that 1t oe · nd
speech act with t h e argume . con)· oins the illocuuonary a
1962, p. 108). 8) h. ch sometunes f .. a
(Austin 1962, p. 11 • w 1 h t For example, an acto nus10g
The study of speech act signifies that language performs action,
hence the distinction between language and action does not exist.
perlocutionary effects of a :c .
act of intimidation, at the same
stick will constitute the ry ffect of deterring a person from
Searle, in Philosophy of Language, says that speaking a language is time it may have the e 'llocutionary effect, raising the
performing speech acts, such as making statements, giving commands, doing something. In the case o ltimidation while in the case of
referring, predicating, and so on (Searle 1969, p. 16-9). Speech act, to stick has a conventional meaning o 10 ay not be deterred. This may
the person may or m
put it simply, is the act performed in the utterance. The utterance may perlocutionary euect
cc
f speech act may not always be
or may not be verbal, could be symbolic, just as speech is also a non- mean that the perlocutionary effect o ; dith Buder writes, that illocu-
verbal form of communication. The study of speech act is the study of produced. Interpreting Austin's theory, ulapse of time as the speech act
the symbols produced in the utterance, imperative to understanding c f ns without any . ts proceed
tionary acts penorm ac 10 ) The perlocutionary ac .
the intention and the purpose of both the utterer and the utterance. 1 7
itself constitutes action ( 1997 • p. · not be sequentially followmg.
According to Searle, this kind of study of theory of language is neces- h t maY or maY k b ·nto the
by way of consequences t a h ry this war pro es 1 ful
sarily the study of theory of action. Drawing from the speech adct t .e: :nd thereby between harm b
Austin explains speech acts as having two kinds of effects-illocu- relationship between speech an actto The speech act theory esta -
tionary and perlocutionary. An illocutionary act is the performance of speech and the harm that it can injurious effects. Hence, the
an act in saying something rather than performance of an act of say- lishes that speech is capable of pro ucds to be revisited from the van-
ing something (1962, p. 99). This means that an utterance has already eech nee h t blished that
entire question of extreme 5p d Th0 ugh Austin as es a eli
produced an effect while being performed. This effect is called the
tage point of harm through wor s. senses, th ere h ave been stu all es
illocutionary effect. A perlocutionary act is that which is produced as a all speech acts are conducts in narrow esulting in further acts, not 11
consequence of saying something. Such an act results in a perlocution- · actscc or r Hence the propost'tion that a
that argue that despite b e10g
speeches can produce the same euects.t be genera11Yasse rted ·
ary effect, which the audience of an utterance feels consequently. It
.
is the actual effect of the speech act whether intended or not by the c 1' 't us performattve
words can mean harmful effects canno t of a 1e tCl o ffi
utterer (Austin 1962, p. 101). The basic difference between the two is Judith Butler talks about the acts can \
that in case of an illocutionary act the speech itself constitutes an act which is based on the idea that not a rmative is that in w tc
while in case of perlocutionary act, the act is the consequence of the on their addressees. A felicitous perfo effect (Butler 1997, p. 17)h.
speech. For example, in a Christian wedding, if a couple pronounces roduces some . b tween speec
speech that performs an act P h equivocatton e h
'I do' in front of a priest, that speech has an illocutionary effect as Hence within the speech act theoryht ethe effectiveness of the sp:ec
the act of marriage is solemnized in saying what they said. Example and is not the only debate t -un.i\e considering the 'barmal
of a perlocutionary act would be the act of convincing. An utterance . 51'gnt can . vvu . ·thin 1i er
act in producing effect ts more 'ts restrictton Wl
or speech that is making a statement to convince someone does not rm1ing ror 1 ry extreme
argument of a speech and. a o-·· e that because . ld
constitute an act in saying but it may lead to an act as a consequence (if
democracy, it is not suffictent to arguth t may be injunous, tt shou
the audience is convinced). .£arms acts
speech is a conduct and pen• . . a st take mto · account the
Austin, however, says that the effect of the perlocutionary act is b e proscribed. The deb ate on restrtctton mu
not always as intended by the utterer. The consequences of the speech
!?'!T" 5 !!!fflfM
20 Sedition in Liberal Democracies Liberal Democracy aud Free Speech 21
effectiveness of the extreme speech in performing acts that produce . eech act can produce depends upon
harmful effects. what she says, the effect that a S h S rial alternatively writes as
whtch ara o
the context of its utterance , . p. 172). Hence, any argu-
Before we get into the nuances of determining the f' bl" ntext (Sona 12012 ,
between speech and harm, it is imperative to understand the dtffer-
the criteria o ena mg co ds to be cautioned agams . t
. . peech act nee k
ent ways in which sedition as a form of extreme speech/speech act ment towards restnctmg a s . I The following chapters ta e
· · 1 0 f assessmg larm.f the identity of t h e spea ker,
using general pnne1p es
can constitute the illocutionary and perlocutionary effects. As has been . d" . the parameters o h b . f
up cases of se ttton on d equentiality as t e asts o
discussed above, the illocutionary act in saying something is constituted f . harm an cons
the intention o causmg t ·n being injurious.
by force of convention. This implies that illocutionary utterances have
determining the effectiveness of an ac t. b th a methodological and a
conventional meanings-meanings that have a general acceptance. In .. . speech act ts o th ffi
deciding the illocutionary effect of the speech act, however, it is of Constructing sed ttton as a h . t ntion is to probe e o en-
theoretical question for this democracy for which the
utmost significance to see who the utterer is. For example, banging of f d .. vtthm I era h
a hammer by a judge in a court constitutes the act of silencing and sive connotation o se ltiOn ' . I It helps examine t e extreme
disciplining the people in court but the same speech act performed
cr
speech act theory oners an e ff,ecuve too f· the potentiality o f t h e act to
by a lay person on the street may not have the same meaning. Sarah speech in question on the the practice of the speech act
produce harm while juxtaposmg tt Wlk p in the following chapters.
Sorial outlines three criteria for a speech act to take illocutionary force; on ground through t h e case studies ta en u
first, the speaker/utterer must have the appropriate authority over a
domain of audience who are the addressees of the speech act; second,
the speaker must have an intention to constitute the act he/she tries d. · · hin the L 1.bera1 Democratic Logic
Placing Se ttlon Wlt h the distinction
to constitute through the speech; and third, the addressees must rec- of extreme speec , .
ognize the speaker's intention (2012, p. 95). It is also the fulfilment of While considering the category erges on the bas1s of who
these criteria that ensures the efficacy the speech has over the action it between different classes 0 f speech acts femparticular kind o f extreme
constitutes and the effect it produces. their target is. Accordingly, the : takes shape. Sedition as a
For a seditious speech to have an illocutionary effect, and for it to speech or the rationale for its. for the author-
be restricted within a liberal democracy, it must be assumed that the class of extreme speech is restncted . of the state. One of the most
speech constitutes the act of violence/harm on its target. This work ity of the government and the secunty rity discourse of the state
considers the possibility of a seditious speech act against the state to
ks
dominant framewor to exp lain the secu °
ft n interprete d as an ffence
constitute illocutionary effect if-the speaker has authority over the is the 'reason of state'. Sed ttton,
.· most .oh" e the 'reason o f state • pa ra -
I
against the state finds exp anatiO n wtt m
· · . e of unrestricted panopIY
domain in question, the intention to constitute the act, and the audi- • th exercts C I
ence recognizes the intention. In such a scenario, would a seditious digm. Reason of state advocates with existential challenges. . ar
speech act having illocutionary force, constitute the act of violence of measures by the state when face • provides for considerations,
against the state? This question reverberates through the chapters tak- J. Friedrich suggests that 'reasons _of;t:teinsure [that] the survival of
0
ing up an array of cases of sedition for scrutiny. Which exist 'whenever it is reqmred responsible for it, no matter
. d" · ua 1
For a speech act to have perlocutionary force, it is the consequence the state must be done by the 10 lVI h s in their private capact"ty as
of the act that needs to be weighed. Austin marked the specific charac- how repugnant such an act may be tot em). These const"dera ti s are'
17
teristic of perlocutionary acts, that is, the consequences produced may decent and moral men' (Singh 20° 7• P· h"ch aim at preservmg the
however, important m . taki ng· decisions w 1
or may not be intended. Butler in her work also reiterates the argument
that speech acts have effects that we cannot predict. While arguing in existence of the state. f t are normally understood as
context of hate speech she writes, while the speaker is responsible for
. I con d"tions
°
The considerations of the reason sta he e the state is facmg
w er
. a cnsls
··
ernerging out of exceptwna 1
23
. f son of state Foucault was clear
In context of the considerations 0 rea '
situation This calls for measures that are extraordinary or exceptional . d not only when the state was
to address a crisis that is neither routine nor ordinary (Singh 2007, that they were at work all the time an 'th bl" would
. p1 saying e repu tc
p. 17). This argument brings into play the distinction between routine warding off danger. Foucault cttes a azzo ' . e if it were
d would have no continuanc
and exception. Reason of state is a manifestation of an exceptional con- not survive for a moment an . . d b n art of govern-
. t and ma1ntame Ya
dition imperilling the existence of the state, the answer to which lies in not revtewed at every momen S lf- then
1978 3 41
an exceptional non-routine legal provision. 21 Liberal democracies have ment assured by raison d'etat' ( • p. ks)St: be able to
becomes the logic on which the state wor : a e rt which Foucault
witnessed the enactment of sedition laws in response to an immediate This reqwres an a
crisis situation; however, in the course of history, these provisions have strengthen themselves and end ure. 377 _8). It is rational
been extended beyond the exceptional situation leading to the regular- calls 'Political Rationality' state perpetuation.
ization of these laws. Paradoxically, sedition laws emerge as measures knowledge that leads to the techntq . F cauit is not concerned
. ccording to ou
for crisis situations; however, they are used as ordinary routine laws for The logic of state perpetuatton a · wt"th the state and
I Th only concern 1s
ordinary times, thus complicating the defence of sedition laws based on with any general rule or aw. e f st t The entire argument
. . . 11 d h eason o a e.
the reason of state. Its exigencies, whtch IS ca e t e r th h rt of the fact that states
· t· ested at e ea
The idea of reason of state stems from the argument that it protects ab out govemmenta l rat10na tty r th th h nge 10 · context how-
. ·dWi eca '
the state, hence protects those who reside within. The rights of people should exist and were mamtame ·
are the cost of the security they enjoy. When it comes to the context of ever, this rationality also changed. . the fact that now the
. h l"b l d mocractes was
liberal democracies, however, it has to be deduced whether the logic of What changed Wlt 1 era e . der the will of the sov-
d I . ·th subJects un
'reason of state' operates any differently, and in doing so, it is Foucault's rul:rs were no ea mg WI d with rights and interests' (Rose
work that assumes significance. Foucault traces the evolution of the eretgn but with 'mdivtduals entroste ed the logic on which the state
concept of reason of state. The modern state, as it came to be recognized 2006, p. 149). This change also rnmental rationality. Colin
10
in the sixteenth and the seventeenth centuries, worked on the principle operated meaning thereby, a change gove It meant by governmen-
of reason of state understood differently from the times of the liberal G ordon in attempting to d e fi ne what Foucau
f th" king about the nature of
· wrote, •a way or system o 10. what governing is· what
t a1rat10nahty
·
democracies. Foucault treats liberal democracies as a phenomenon that
saw emergence in the eighteenth century. According to Foucault, the the practice of government (who can e forn1 of that
f making som
sixteenth-century conception of the reason of state was essentially a or. who is governed), capabl e 0
. ractitioners and to those upon
'conservative' idea that talked about identifying what is necessary and thtnkable and practicable both to tts p ) Within liberalism, with
199 3
sufficient for the state to exist and maintain itself in its integrity. He Whom it was practised' (Gordon entity and the need
emphasized that it was not a principle of the state's transformation, the recognition of the individual as a ng th rights of the individual,
of th
or even of its development but rather the perfecting of features and estate and the governmen °
t t protect e
d fr 0 m that of its sixteenth-
chara
. · · t h at a1ready constituted the state. In that sense, it was an
ct ensttcs the rationale of the reason of state change "ty and conservation.
. . d t 0 state secun
Idea of conservation of the state and its maintenance. 22 century logic which was hm1te . . this changed context and
10
Now, liberty was the condition of secunty
JJWat s·tngh explains the existence of extraordinary laws within Indian
21 u-·
democracy with inhe t d . provtsiOns
..
, ren un emocrabc presented as ,emergent' and
temporal' laws desig d dd ' . the ·ruler in form of libels and
Singh . ' ne to a ress crisis situations that are exceptional. See
2007 relation to the rebellion of subjects agamst S d"tion and rebellion were
22 dts d th ho govern. e 1
. _In his lecture, Foucault outlines while citing the views of Bacon those courses against the state an ose w th b"ects or discontentment
sttuattons that manifested th e ,reason of state' in the sixteenth century. The
' sit- cond·tttons
. emanating from et"ther poverty of e su J
.
. and sedition. Sedition was understood
uations were the occurrences of reb e11IOn frorn the rule. See Foucault 1978, PP· 348-52 ·
25
Organization of the Book

a violation of liberty would have actually meant not just violation of
h lationship between liberal democ-
rights but ignorance about how to govern (Gordon 1991, P· 20) · This work is primarily about t e re . n with other liberal democ-
Under these changed circumstances, the principle of reason of state . I d' While companso ed
racy and sedition m n ta. . ture of historically situat
th are m t 1le na
demanding the submission of rights of individuals for the maintenance racies has been done, t: • 'b t the debates on the concept
of the state by any means, negated the values of liberalism. . nd contn ute o .
illustrations to mtervene a E 1 d USA and Austraha to
. h en are ng an , , .
wrote, 'the game of liberalism (was)-not interfering, allowing free of sedition. The countnes c os b n the right to expresston
movement, letting things follow their course; laissez-faire ... basically h tussle etwee
study a common aspect-t e . k b rrows from Tush net's concept
and fundamentally means acting so that reality develops, goes its way, and the concept o f sed .ttton. · Thts wor d 0 f mparative constitutiona1
and follows its own course .. .' (1978, p. 70). For this theoretical claim . . . h. stu y o co ·f
of normative umversahsm 10 ts . al (11ushnet 2008). So 1
. 1 s are umvers
to take shape in reality, the governmental rationality had to operate law, which says that certam va ue h . a universal value, it helps
through other means rather than direct physical force. 23 Foucault by no h . ht t free speec ts th th
it is assumed that t c ng d different principles at e
means argues that liberalism is all about individual liberty and minimal- · ·
to assess the restncttons 0 n 1t base ll on
ist state and does draw a distinction between the theoretical claims and .JUrisprudence o f d'ccmeren c t ountries fo ow.
. . re1ation
rticularities tn . to
existing realities (Gordon 1991, pp. 14-27). Studies on contemporary . ent certatn pa .
The three countnes repres h ept of sedition owes tts
. rk T e cone
liberal democracies have shown that violence is integral to the working the central concern of thts wo · lib 1 democracies have been
of the liberal democratic states despite its official denial. 24 t other era .
genesis to English law an d , mos eli . . England. England ts also
1 f se tton m f
For our purpose, however, it is imperative to interrogate these theo- influenced by the Common aw 0 . h e abolished the offence 0
retical claims on which liberal democracies have been founded. If so, . l'b 1 d ocractes to av . th
one of the earhest 1 era em t liberal democracy tn e con-
does this governmental rationality allow the curtailment of individual sedition. The US is seen as the stronges b t free speech jurisprudence.
liberty for the sake of security of state? Is the concept of reason of state 1 ed a ro us
temporary world and has deve op . . l USA has retained t e aw
h l
essentially anachronistic to the principles on which liberal democracies h prmctp es, .
Despite the strongest f ree speec h made one of the ear1test
operate? Or is it the fact that the imperative of the state supersedes the ·b 1 d mocracy as b . .
of sedition. Australian lt era e l age of sedition to nng It
d'fy the angu .
other imperatives in a way that liberal democracies are left to be no and definitive attempts to mo 1 B 'des in recent times, parttcu-
. l tions. est ' .
exceptions in terms of upholding the liberal democratic rights? Within the counter-terror 1egts a f th ontemporary literature on
This work addresses these explanations while probing into the 0
larly between 2005 and 2010, most h e selected represent
theoretical defences of liberal democracies in retaining the law of sedi- sedition is Australian literature. The t ree .· h developed world wh'tch
c
tion and whether this retention truncates the value premise of liberal d rticular 1Yt e . r thi
different parts of the world an pa t of liberal democracy. It ts 1or . s
democracy. has come to hegemonize the concep d' ase becomes interestlng,
. . h the In tan c . -
reason that their companson wtt 1 . society shares the tmpres
23
For Foucault, the answer lies in govemmentality, the art of governing. For
l . l deve optng
where India being a postco onta ' . h h se countries.
the purpose of this work, however, the problematic is not governmentality but sion of being a liberal democracy wtt t he t r on four legal regimes,
the fact whether the changed governmental rationality within liberal democra- t've c ap e
The first chapter is a compara 1 d I dia dealing wit P0 ttl-
h t· .
cies help explain the existence of sedition as an offence. namely England USA, Austra1ta,
. an n nalyses two particu · 1
ar
24
Jinee Lokaneeta in her comparative work on US and Indian liberal , ' . . The chapter a h
cat offences and speech cnmes. . . as an offence-first, t e
democracies argues that these states continue to rely on excess violence as a
h
. of sed1t1on f r , d
Paradigms to study t e ex1stence h sical act 0 torce an
mode of controlling and governing the modern societies and this reliance is
conditioned by the vagaries within the law in defining the threshold of permis- conventional paradigm o f •v10 · 1ence as a fP, Y· lence through word s' ·
d' m o VlO
sible violence. See Lokaneeta 2012. second, the non-conventional para tg
27
"ud ments and deduce a theory of sedition coming from_ the.judiciary.

Within the first paradigm, sedition is compared with the allied political J g . I ments as contnbuting to the
The chapter treats the judicta pronounce th .
offences of; (a) treason, (b) incitement to disaffection/violence/over- .d tify what emerges as e cnme
throw, and (c) political conspiracies. Within the second paradigm, sedi- study of sedition as a speech act to 1 en .
I . ·d·cal regime in Indta.
of sedition within t h Iega -JUfl
1
tion is compared with four speech crimes: (a) personal libel, (b) hate d tandin of sedition emerging
speech, (c) blasphemy, and (d) pornography. Both levels of comparison The fifth chapter JUXtaposes the f thg law on the ground.
. d" . "th the practtce o e
offer deductions about specificity of sedition as a political speech act from the higher JU tctary Wl h" h 100ks at sedition in its
· · ·1 field-based, w lC
creating a discord within the value framework of liberal democracies. T h e chapter ts pnman Y . d based on caste class
. d . h the socta1 or er , ,
The second chapter leads to separate inquiries into the political everydayness intertwme wtt d th h a study undertaken of
. . I d" It procee s roug
history of the law of sedition in each of the three western democra- an d commumty tn n ta. h d Pun1·ab The regions
H Maharas tra, an ·
cies, based upon legislations, judicial trials, and targets of the law and three specific regions of aryana, th erged as field areas fol-
· . · fact ey em
its relationship with counter-terror legislations. In each country, there are not chosen as fi eld sttes, 10 '. h h "ntertwined dynamics of
h 0 d 10 . whtc t e t
is one specific moment in relation to sedition that gains prominence lowing the case law met d "t different character. This
. t· · 1 ariables 1en 1 a
through the course of study. The chapter offers a framework of three sedition wit h soctopo ttica v . . ws and the attempts to
. . f: t face 10tervte ,
specific moments, namely, 'abolition', 'restriction', and 'modernization' included personal vtslts, ace 0 • . f th actors involved, both, at
I" d eaht1es o e
that most aptly define the place of sedition in that particular country. partially experience t h e tve r th . This has also involved the
. . nd erwtse.
The third chapter is the first specific chapter on India. It discusses th e level of state institutions a 0 h" s memorialization. They
• f, . to arc tves a
the idea of sedition from its inception within the legal code by the colo- process of archiv10g, re emng l f ·maginations borrowing
. d paces o 1 '
nial regime and the different meanings that it acquired within colonial are the creation of memones an d · 2003) 'Traces' brings
, • (Appa urat ·
India. This chapter proposes that the idea of sedition within colonial from Appadurai's idea of traces. di "d t·zed notion of traces, like
. The 10 v1 ua 1
India took shape within two different discourses-the judicial and the t h e notion of wh at rema10s. . . also forms a part of the
· agtnations,
political. These two discourses are treated as two frameworks to look people's lived experiences an d 1m
at the different meanings, deployments and the politics of sedition, everyday narratives of laws. merging in the working of
· the patterns e
through a detailed study of the use of the law and various trials related The sixth chapter th eonzes . ·fie themes along which
. b 1.d tifytng specl
to it. Subsequently, it tries to see how the colonized subjects responded the law of sedition in Indta Y en ti"dian life of the law in the
n the quo
to the concept of sedition within the two discourses to conclude what the law has been used. It fiocuses 0 th wer oflaw enforcement. It
hands of the state executives w . .
orary times, its use agamst
sedition meant in colonial times. The focus of the chapter is on the
· in contemP
early trials involving the nationalists and the emerging idea of sedition ch ronicles various cases of sediuon . . s communal politics, the
, rgamzatton ,
as political resistance. The colonial literature, available as part of archi- anti-nuclear movement, students 0 Through these narratives, also
records, serves to he the most exhaustive source for constructing a dominant discourse of nation, and so on. . ·ngs and its identification
. blic jmagtnt
htstory of sedition within colonial India. emerges the idea of sedition tn pu . l' deshdroh. It also theorizes
. d , ti-nauona or . al
. The fourth chapter traces the discourse on freedom of expression Wtth what is loosely terme as an f clition and the exception
. law o se
postcolonial idea, the security imperatives of the state, the political the relationship between th e rouune Th h the patterns identified,
1 roug
htstory of the law of sedition post-Independence and its journey within or extraordinary counter-terror aws. d acy being characterized
. I di l"h ral emocr
the courts. Through this, an attempt at conceptualizing public order t h ts chapter identifies the n an e . 1
the offence of sedition.
of state and other grounds along which the act of sedition by a 'moment of contradiction' in relation to ther the common and the
penaltzed'. is made. Th"ts ch apter b egms
. wtth
. debates on sedition within The conclusion attempts to weave .tolge eech the offence of sedi-
t h"gh
e Constituent Assemhi y an d systemattcally
. · takes these debates to the ·h olittCa sp 1
uncommon between the ng t to P th f0 ur countries.
h 1 er courts · 1 d"
m n ta emp1oymg . legal hermeneutics to read into the tion, and the liberal democratic frame of e
29
Political Offeuces and Speech Crimes
. with other political offences and

. arative perspecttve f eli .
are put m a comp . ecificities to the offence o se tion
speech crimes to see tf there are sp
ratic predicament.
that result in a liberal d emoc
I
. · a1 Offence
Conceptualizing Po1ttlC .
. n to the family of offences constd-
Political offence is the name gtve d . rnment. Often these are
. h t te an gove
ered to be crimes agamst t e s a . t the nation, largely woven
POLITICAL OFFENCES AND d to be agams d"
also crimes that are construe . d ublic order. Accor mg to
SPEECH CRIMES · l secunty an P k
into the discourse of natJona h that require state to ma ·e
. . l . mes are t ose . d b
Michael Head, pol 1t1ca en S) They are beheve to e
Comparing Legal Regimes
laws related to seIf-preserva tion (2011,. P·. ·political system, t h e ··mstJ- ·
. t the extstmg . d
offences that have in t h e1r targe Th0 ugh the target onente
emment. cc 1
tutions of the state, an d t h e gov f defining political ouences,
understanding is the most common wahy o aning of 'political' in rela-
d"ng t e me d"
there are debates, however, regar 1 l .c ·ous and often contra 1C-
. 1 ds to mu tuan
tion to these offences. T h1s ea
The questions related to restrictions on the category of extreme speech tory definitions of political offences. distinguished from other
have always posed a dilemma for liberal democracies. Sedition is a kind Most commonly, political offences based on the pur-
of extreme speech that targets the political order and is thus consid- f king out Hl' . . l a:
crimes in society by way o mar d innings. Pohttca onences
. ·d 1 ·cal un erp
ered a political offence. The act of sedition, therefore, falls into the pose of the crime and tts 1 eo og1 d political cause, more
category of both political offences and speech crimes. To understand 0 f 1·deology an d"
are linked with the questions f normativity. Accor mg
the dilemma that sedition poses for liberal democracies, the specific . . h aspect o
often than not, by bringmg 1n t e h se committed by persons
conceptualization of both these categories of offences needs to be con- 1 . s are t o •
to Stephen Schafer, politica cnme larger cause. He says a con-
sidered. This chapter, therefore, offers an enquiry into the legal regimes having a certain conviction linked to somel "stic motives while other
of four liberal democracies, namely, England, USA, Australia, and India. . . for a tnu 380 7)
Victional' criminal commtts a cnme (Schafer 1972, PP· - ·
It proceeds through a comparative study of different political offences crimes are committed for selfish motive hat still finds acceptance
and speech crimes, and the parameters on which they are distinguished Schafer's understanding is debatable,_ buht wotion of purpose. Political
from each other. It employs two particular conceptual frameworks . · 1 ·mes 1st en
Within the debate on po1tttca en
to mark out these distinctions-firstly, the conventional paradigm of
'violence as a physical act of force' focusing on the specific category ·mes· crimes committed
. f olitica1 en . . .
of political offences, and secondly, the non-conventional paradigm of I Some literature describe two kinds pdb the government. The dtstmc-
'violence through words' focusing on the specific category of speech against the government and crimes commltte .yst the government are always
crimes. tion between the two is that crimes the crimes committed by the
With the changing course of liberal democracies, the legislations treated as crimes against the existing order w I e ts in defence of the order. See
nted as ac ·tt d
defining sedition have also changed. This chapter explores the early authorities/government are always prese ·gues that crimes commt e
Roebuck Weeber 1978. This work, howevder, ::od as acts in defense of the
conceptualizations of sedition within each of the four countries to ds to be un ers
study the actual form in which the offence of sedition was
. ls
In maintaining the order a 0 nee d b the existing order.
. represente Y
Interest of those whose interests are ·
within different liberal democratic regimes. These early conceptions
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Sedition in Liberal Democracies

Sedition Mazzy J. March

God, Guns, and Sedition Bruce Hoffman

Counter-Revolution: Liberal Europe in Retreat Jan

Clients And Constituents: Political Responsiveness In

Elections in African Developing Democracies 1st Edition

Police Abuse in Contemporary Democracies 1st Edition

The Wrecking of the Liberal World Order Vittorio

From Party Politics to Personalized Politics?: Party

Oxford University Press is a department of the University of Oxford.

© Oxford University Press 2018

This work evolved from my doctoral research at the Department of

ABVP Akhil Bhartiya Vidyarathi Parishad

On 1 February 2017 at the University of California, Berkeley, USA,

individuals as rational beings capable of self-development, an argument

20 Sedition in Liberal Democracies Liberal Democracy aud Free Speech 21

Organization of the Book

"ud ments and deduce a theory of sedition coming from_ the.judiciary.

. with other political offences and

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