SSRN-id2679215

THE CONSERVATIVE CONSTITUTION: FREEDOM OF SPEECH AND THE CONSTITUENT
ASSEMBLY DEBATES
- GAUTAM BHATIA*
Abstract
The framing of India’s Constitution is popularly considered to be a
transformative moment: the culmination of a decades-long movement for political
and economic self-determination, and the marker of a transition from a colonial
regime maintained by coercion to a democratic republic. The crowning glory of the
Constitution-making process, which reflects this transformation, is Part III: the
fundamental rights chapter. Guaranteeing core civil and political rights such as the
right to freedom of speech and expression, life and personal liberty, and equality
before law, Part III of the Constitution appears to place the autonomous, self-
determining individual at the heart of the Constitutional order. Nonetheless, the
rights guaranteed by Part III are not absolute. They are subject, in many cases, to
“reasonable restrictions”. Over the course of its history, the Supreme Court has
tended to interpret these clauses in a way that the restriction has often swallowed
up the right, and the State has been allowed a more or less free rein to pass rights-
infringing statutes, or take rights-infringing executive acts. The question then must
be asked: is the Court’s civil rights jurisprudence consistent with the transformative
character of the Constitution? In this essay, I will argue that it is: for the reason
that a closer look at the framing of the Constitution reveals that Part III was not
intended to be transformative in the classical sense of creating a set of rights to
serve as a bulwark in service of liberal individualism. By examining the Constituent
Assembly Debates around the framing of the free speech clause, and placing it in
both its historical context of colonial free speech law, as well as the future
trajectory of the Supreme Court’s jurisprudence, I will attempt to demonstrate that
as far as the nature and structure of fundamental rights is concerned the framing is
* BCL, M.Phil (Oxon); LLM (Yale Law School). I thank Sanjana Srikumar for
research assistance, and Udit Bhatia for helpful comments and suggestions.
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better understood as conservative, than a transformative moment; and that
consequently, the Supreme Court’s conservative approach to freedom of speech is
more, rather than less, consistent with the intent of the framers.
Sixty years ago, at the dawn of Indian constitutionalism, a young Supreme

Court was faced with an old legal question: was the State permitted to arbitrarily
expropriate a person’s property, and then claim immunity from judicial
intervention under the ancient “Act of State” doctrine?1 Justice Vivian Bose held
that under the new Constitution, with its fundamental rights chapter
guaranteeing the right to property, the State’s claim was no longer valid. With
the framing of the Constitution, he observed, “at one moment of time the new
order was born with its new allegiance springing from the same source for all,
grounded on the same basis: the sovereign will of the peoples of India with no
class, no caste, no race, no creed, no distinction, no reservation.”2
In Justice Bose’s view, the Constitution was fundamentally transformative in

character. Its framing was a historical moment that inaugurated a new legal and
social order, and marked a decisive break with the old. Laws, doctrines and
philosophies of ancient vintage (such as the Act of State doctrine) could no
longer claim the sanctification of time as a reason for their continuing legitimacy.
It would have to be shown that they remained consistent with the “new order”. If
they were not, they would have to be discarded.
What was the nature of the transformation that the Constitution had
brought about? Two elements appear in Justice Bose’s formulation: popular
sovereignty, and non-discrimination on the basis social markers such as class,
caste, race and creed. Another element appears in a case decided by the Punjab
High Court, a few years before. In Tara Singh Gopi Chand vs State3, the crime of
1 Virendra Singh v. State of Uttar Pradesh, (1955) 1 S.C.R. 415.

2 Id., at ¶43
3 Tara Chand Gopi Chand v. State, 1951 Crim.L.J. 449.
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sedition – i.e., spreading “disaffection” against the State – an old favourite of the
erstwhile colonial government, was held to violate the constitutional guarantee
of the freedom of speech and expression. Weston J. crisply observed that “India is
now a sovereign democratic State. Governments may go and be caused to go
without the foundations of the State being impaired. A law of sedition thought
necessary during a period of foreign rule has become inappropriate by the very
nature of the change which has come about…”4 Politically autonomous citizens,
creations of the new Constitution, were entitled to forms of dissent that they
hadn’t been earlier, when they were only subjects.
The Supreme Court, however, disagreed with this particular understanding of

the transformative character of the Indian Constitution. In Kedar Nath Singh vs
State of Bihar5, it upheld the constitutionality of sedition, noting that “every
State, whatever its form of Government, has to be armed with the power to
punish those who, by their conduct, jeopardise the safety and stability of the
State, or disseminate such feelings of disloyalty as have the tendency to lead to
the disruption of the State or to public disorder.”6 To get around the problem
that Section 124A of the Indian Penal Code, which defined sedition, made no
mention of disrupting the State or public order, and instead expressly
criminalized “disaffection”, the Court relied upon the dissenting opinion of
Justice Fazl Ali in Brij Bhushan vs State of Delhi7, which was one of the first free
speech cases that the it had decided. In Brij Bhushan, the majority had held that a
law authorising pre-censorship of books and journals “in the interests of public
order”8 was unconstitutional, because the then-constitutional text only
permitted restrictions in the interests of the security of the State. Justice Fazl
Ali’s dissenting opinion equated “the security of the State”, “public order” and
“sedition”, holding that the framers of the Constitution had elected to use a
single, compendious phrase to refer to all these concepts. His judgment, in turn,
relied upon Justice Maurice Gwyer’s opinion for the pre-Independence Federal
4 Id., at ¶13.
5 Kedar Nath Singh v. State of Bihar, (1962) Supl. (2) S.C.R. 769.
6 Id., at ¶18.
7 (1950) Supp SCR 245.
8 Id.
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Court9, in which the crime of sedition had been linked with its tendency to create
public disorder.
The Kedar Nath Singh judgment, therefore, invoked a continuous line of

precedent that reached back into pre-constitutional days, incorporated the
framing of the Constitution as part of that continuity, and ended by upholding
the constitutionality of a speech-restricting penal provision that itself had been
framed in colonial times, and extensively been used against the nationalist
movement.10 After all, as the Court held, sedition was a weapon needed by “every
State, whatever its form of government…” In this sense, at least, the Constitution
transformed nothing.
Three years later, in deciding upon the constitutionality of obscenity laws, the
significance of the Constitution as a (potentially) transformative moment did not
even find a passing reference in the Court’s judgment. In Ranjit Udeshi vs State of
Maharashtra11, not only did the Court uphold obscenity laws, but also elected to
continue with the pre-Independence common law definition of obscenity that
had its roots in the Victorian era (the Hicklin test).12 And five years after that, in
K.A. Abbas vs Union of India, the Court upheld a regime of film censorship set up
by the Cinematograph Act of 1952 which, in form and content, largely mimicked
its extinct colonial counterpart.13
These three examples are part of a broader, almost uniform trend. In the
sixty-five years of its existence, the Supreme Court has struck down exactly one
speech-restricting colonial legislation14, while upholding pre-censorship of the
press15, the blasphemy law16, the sedition law17, the obscenity law18, and the
9 Niharendu Dutt Majumdar v. The King, AIR 1939 Cal 703.

11 (1965) 1 SCR 65.
12 Id, at ¶6; Queen v. Hicklin, (1868) L.R. 3 Q.B. 360.
13 (1971) 2 S.C.R. 446.
14 The Superintendent, Central Prison, Fatehgarh v. Ram Manohar Lohia, (1960)
S.C.R. (2) 821.

15 State of Bihar v. Shailabala Devi, (1952) S.C.R. 654.
16 Ramji Lal Modi v. State of U.P., (1957) S.C.R. 860.

executive’s power to prohibit assemblies19 and ban books.20 Its rhetoric – as we
have seen above, and will see again – has mirrored colonial justificatory
discourses predicated upon tutelage, the non-autonomous subject, and the
maintenance of social order. In this context, Justice Vivian Bose’s vision of the
Constitution as a transformative charter of self-determination and freedom,
seems little more than empty rhetoric, judicial legerdemain. But sixty-five years
after the Constitution came into force, with little sign of change in the Court’s
free speech jurisprudence, it is perhaps time to re-examine the moment of the
framing itself, and look for some answers.
I will argue that the contradictory impulses of continuity and of

transformation were in an uneasy tension with each other throughout the
Constituent Assembly Debates. The rhetorical power of Justice Bose’s “new
order” competed with the overriding desire to consolidate the hard-won nation;
a longstanding distrust of expansive political authority against the individual
was sought to be tempered by invoking a change in the nature of authority from
foreign to local; the attractive vision of the autonomous citizen was diluted with
the lingering suspicion that India needed, for a while, to remain in the waiting
room of history21, not quite ready for the freedom that it had just earned for
itself. The final text of Article 19(2) was an unhappy attempt at reconciliation
and, as the intervening years have proved, ended up reconciling nothing.
Ultimately, the Supreme Court’s interpretations have replicated the
contradictions of the framing.
It would be simplistic, of course, to contend that there is a direct, causal

connection between the contradictory intentions of the framers, and the
contradictory nature of our free speech jurisprudence. What I would argue,
however, is that a complete analysis of the pathologies of Indian free speech law
18 Ranjit Udeshi v. State of Maharashtra, (1965) 1 SCR 65
19 Babulal Parate v. State of Maharashtra, (1961) S.C.R. (3) 423.
20 State of U.P. v. Lalai Singh Yadav, (1977) S.C.R. (1) 616.
21 DIPESH CHAKRABARTY, PROVINCIALIZING EUROPE: POSTCOLONIAL THOUGHT AND
HISTORICAL DIFFERENCE (Princeton University Press 2007).

depends upon careful engagement with the events of the framing. The Supreme
Court has only interpreted the text that the framers gave to us. A first step
towards a deeper understanding of what has happened over the last sixty-five
years might begin, therefore, with an understanding of what went into the
framing of the constitutional text.
II
On the 4th of November, 1948, at the end of a day that had been full of long
and often bitter procedural wrangles, the President of the Constituent Assembly
finally called upon Dr. B.R. Ambedkar to introduce the Draft Constitution of
India.22 Ambedkar’s speech marked the culmination of not simply a long and
exhausting day, but also of a year and a half of arduous discussions, debates and
drafting. The Constituent Assembly had first considered and debated the
proposals of its Sub-Committees from April 1947.23 At the end of August, the
Drafting Committee was constituted. It took seven months to complete its task.
By February 1948, the final document was placed before the public for eight
months. So when Ambedkar stood up to introduce the Draft Constitution, and –
in his words – to ‘meet the criticism… leveled against it’24, the battle-lines had
long been staked out, and the combatants entrenched in their respective
positions.
The Constitution’s chief architect was now going to raise the stakes: the
document he was introducing would become the Constitution of India, subject to
whatever changes and amendments members of the Constituent Assembly could
muster up enough support for. Ambedkar’s introductory speech would lay out
22 CONSTITUENT ASSEMBLY DEBATES VOL. VII (November 4, 1948), available at

http://parliamentofindia.nic.in/ls/debates/vol7p1b.htm
23 CONSTITUENT ASSEMBLY DEBATES VOL. III (November 25, 1949), available
at http://parliamentofindia.nic.in/ls/debates/vol3p1.htm
24 CONSTITUENT ASSEMBLY DEBATES VOL. VII (November 4, 1948), available at

the broad contours of the debate that would follow for more than a year, before
the Constitution was finally adopted.
It was a remarkably wide-ranging speech, moving between different

constitutional systems, institutions and structures, considering the role of the
executive in the United States, parliamentary accountability in the United
Kingdom, flexible federalism in Australia, the words of the historian Grote, the
Irish resistance, and the consolidation of Bismarck’s Germany. It was only at one
point, however, that Ambedkar felt the necessity of invoking a judgment in his
support. The topic was the restriction of fundamental rights. The judgment was
the opinion of the United States Supreme Court in Gitlow vs New York.25
Ambedkar stated:
‘It is wrong to say that fundamental rights in America are absolute. The
difference between the position under the American Constitution and the Draft
Constitution is one of form and not of substance… in support of every exception
to the fundamental rights set out in the Draft Constitution one can refer to at
least one judgment of the United States Supreme Court. It would be sufficient to
quote one such judgment of the Supreme Court in justification of the limitation
on the right of free speech contained in Article 13 of the Draft Constitution. In
Gitlow Vs. New York in which the issue was the constitutionality of a New York
"criminal anarchy" law which purported to punish utterances calculated to bring
about violent change, the Supreme Court said: "It is a fundamental principle, long
established, that the freedom of speech and of the press, which is secured by the
Constitution, does not confer an absolute right to speak or publish, without
responsibility, whatever one may choose, or an unrestricted and unbridled
license that gives immunity for every possible use of language and prevents the
punishment of those who abuse this freedom."’26
25286 US 652 (1925).

26CONSTITUENT ASSEMBLY DEBATES VOL. VII (November 4, 1948), available at

What was Gitlow vs New York, the one judgment that Ambedkar felt could be
invoked to justify the Drafting Committee’s restrictions upon fundamental rights
(derisively referred to earlier by Somnath Lahiri as having being framed “from
the point of view of a police constable”27)? A closer look at this case will, I
believe, provide us with a window into the thinking of the Drafting Committee
which, after a fierce battle, would become the thinking of the Constituent
Assembly. The concerns that motivated seven American Supreme Court judges in
Gitlow were similar to the concerns that motivated the framers, and in many
ways, form the bases of the pathologies of Indian free speech today.
Benjamin Gitlow was a member of the “Left Wing Section” of the Socialist
Party of the United States. At its first meeting, the Left Wing Section published its
Manifesto in its paper, The Revolutionary Age, of which Gitlow was the business
editor. The Manifesto called for the establishment of ‘revolutionary Socialism’
through militant means such as mass industrial revolts and mass political
strikes, ending with the overthrow of the parliamentary State, and the
establishment of the proletarian dictatorship. Gitlow was tried and convicted
under New York’s Criminal Anarchy Law, which penalized advocating the
overthrow of organised government through force, violence or other unlawful
means. The conviction was upheld on appeal. Before the Supreme Court, Gitlow’s
lawyers argued that the Manifesto’s publication had not resulted in any public
disorder, and nor had it been shown that there was any significant likelihood of
public disorder. The criminal anarchy statute had been unconstitutionally
applied by the lower courts, because they had failed to limit it to factual
situations where there was some likelihood of unlawful consequences to speech,
and instead penalized mere “utterance… of doctrine.”28
The Supreme Court disagreed. It distinguished between an abstract or

academic discussion about unlawfully overthrowing the government, and
27 CONSTITUENT ASSEMBLY DEBATES VOL. III (April 29, 1947), available at

http://parliamentofindia.nic.in/ls/debates/vol3p2.htm
28 288 US 652, at 664.

“advocacy of action for accomplishment of that purpose.”29 It then cited the
paragraph that Ambedkar quoted in his speech – that the freedom of speech did
not mean an “unrestricted and unbridled license” to every use of language. The
disturbance of public welfare and public peace, and the corruption of public
morals, were all legitimate goals which the State could invoke to curtail speech.30
In particular, the Court noted that “utterances endangering the foundations of
organized government”31 could be punished for the “imperative”32 reason that
“these imperil its own existence as a constitutional State… the primary and
essential right of self preservation; which, so long as human governments
endure, they cannot be denied.”33 But what of the contention that there was
nothing in the Manifesto that had actually endangered the government, or was
even likely to endanger it? The Supreme Court responded with an institutional
argument. It was for the State to make its own calculations about the putative
dangers of various kinds of speech, because after all “a single revolutionary
spark may kindle a fire that, smouldering for a time, may burst into a sweeping
and destructive conflagration.”34 Whether the link between the spark and the
conflagration was remote or far-fetched as expressed in law, was not a question
that the Court was competent – or entitled – to answer.
There are two overlapping ideas at the heart of Gitlow. The first is that the
expression of certain ideas is off-limits even in a speech-protecting democracy.
Extra-constitutional opposition to the constitutional order is one such idea. By
upholding the prohibition of criminal anarchy, the Supreme Court effectively
accorded the existing structure of the State legal immunity from ideological
challenge, unless such a challenge was confined within the narrow parametres
set by the State itself. The second is the assumption that citizens cannot be
trusted with hearing certain kinds of speech, and deciding for themselves
whether they find it persuasive, and wish to act upon it. In denying the
29 Id., at 665.
30 288 US 652, at 667.
31 Id.
32 288 US 652, at 667.
33 Id., at 668.
34 288 US 652, at 669.

requirement of proximity between speech and illegal action, and allowing State
to decide which “spark” could set off a revolutionary fire, the Court was also
denying the autonomy of citizens to judge and evaluate arguments for criminal
anarchy on their own merits. Both these ideas, I will argue, are crucial for
understanding the shape of what finally became Article 19(1)(a) and 19(2) of the
Constitution of India, and for understanding how the Supreme Court has
interpreted these articles over the decades.
To place the debates in the Constituent Assembly in their appropriate context,

however, we need to begin at the beginning: the gradual, embryonic
development of an understanding of the freedom of expression as part of the
nationalist movement, and the colonial British government’s response to it.
III
The first agitation for free speech in colonial India arose in a context in which
the ruling British were first beginning to grow aware of the potentialities of mass
print media in the expanding colony. In 1823, the Governor-General issued an
ordinance requiring all newspaper presses to obtain a compulsory license from
the government, providing details about the printer, publisher, proprietor etc.35
This license was revocable at the Governor-General’s pleasure. In free speech
terminology, this manner of restriction – which chokes of speech at its source,
and prevents it from even entering the marketplace of ideas – is called “prior
restraint”. Prior restraint has long been considered to be such an anathema that
writing as far back as 1769, the English jurist Blackstone – not otherwise known
for liberal views – was able to say that ‘the liberty of the press is indeed essential
to the nature of a free state; but this consists in laying no previous restraints
upon publications, and not in freedom from censure for criminal matter when
published. Every freeman has an undoubted right to lay what sentiments he
pleases before the public; to forbid this, is to destroy the freedom of the press;
but if he publishes what is improper, mischievous or illegal, he must take the
35R. Chaudhuri, ‘The Story of the Indian Press’, 7(9) Economic and Political
Weekly 291 (Feb 26, 1955.

consequence of his own temerity.’36 In Britain, ever since the expiry of the
Licensing Act in 169237, the press had not been subjected to prior restraint by
the State. In introducing the Press Ordinance, therefore, the colonial government
was introducing into India the relics of a more authoritarian English past.38
The Press Ordinance was met with substantial resistance. The most famous is
Raja Rammohan Roy’s Memorial to the Government, which he submitted during
the period fifteen-day period that the Supreme Court was considering the
legality of the Ordinance. In his Memorial, Roy made two arguments, which –
borrowing from Arun Thiruvengadam39 – I will refer to as arguments from
“particularism” and arguments from “universalism”. In his argument from
particularism – i.e., grounded in some unique of peculiar feature of the Indian
character – Roy pointed out the great opprobrium with which Indians regarded
putting their signature or seal upon an affidavit, based upon their seeming
inability to distinguish between voluntary and involuntary non-compliance, both of
which were believed to lead to equally severe divine displeasure. The argument
from universalism was more familiar: without an active press, Roy argued, the
government would remain in the dark about the misdeeds being committed by
its lesser officers. The press was an important line of communication between
the rulers and the governed, the better to apprise the former about the true state
of public opinion, and to thereby act as an aid to governance. Consequently, Roy
argued for “unrestrained liberty of publication”40, subject, of course, to the law of
the land.
36 WILLIAM BLACKSTONE, 4 COMMENTARIES ON THE LAWS OF ENGLAND 150 (1769).

37 Licensing of the Press Act, 1662, 14 Car. II. c. 33.
38 Interestingly, in an account published in 1867, John Henry Marshman pointed
out that the Ordinance was targeted, in particular, at the Calcutta Journal – a
perodical run by an Englishman
39 Arun Thiruvengadam, “The Interplay of the Universal and the Particular in the
Evolution of the Constitutional Right to Free Speech in India (1800-1950)”, CALS

Myanmar Working Paper No. 2, June 2014,
http://law.nus.edu.sg/pdfs/cals/working_papers/CALS/CWPS002.pdf
40THE ENGLISH WORKS OF RAJA RAMMOHUN ROY (Jogendra Chunder Gose ed.) 297
(1901).

In Roy’s protean defence of free speech against prior restraint, one interesting
feature is the lockstep of universalist and particularist arguments. Contentions
based in a supposedly unique Indian character, and contentions invoking the
universal value of free speech, were complementarily employed in service of the
goal of expanding free speech. This harmony was not to last: as we shall see, the
two were often in an uneasy tension with each other. Here, I wish to flag the
following point: the argument that the nature and scope of free speech must be
responsive to a specific, Indian character, is as old as the first recognisable
conceptualisation of free speech (as such) in India, and it is an argument made by
Indians. When, therefore, we see such arguments repeated in future times, what
should surprise us is not their novelty, but their continuity.
Roy was unsuccessful, and the Press Ordinance was upheld. Over the next
century and a half, the Press would go on to become one of the major terrains of
contestation between the colonial government, and a rising, assertive nationalist
movement. Press laws passed in 1878, in 1908, 1910 and 1931, often in response
to flashpoints such as the partition of Bengal and the Civil Disobedience
Movement, were specifically targeted at the press qua sites of an evolving
national and political consciousness. Through measures such as pre-publication
deposits that could be confiscated by the local government, and vesting powers
of forfeiture with the local police, the British sought to exert a tight control over
the spread and impact of the press.
The press laws were targeted at newspapers. The order weapon in the hands
of colonial authorities to quell political speech was targeted at individuals: the
law of sedition. Sedition was introduced into the Indian Penal Code by James
Fitzjames Stephen in 1870, as a response to the rising Wahabi movement.41 In its
original form, sedition criminalised the spreading of “disaffection” against the
government. In 1892, Comor Petheram C.J. at the Calcutta High Court held that
“disaffection” meant “either spoken or written words calculated to create in the
minds of the persons to whom they are addressed a disposition not to obey lawful
41 Indan Penal Code Amendment Act, No. 27 of 1870.

authority of the Government, or to subvert or resist that authority.”42 The
gravamen of the offence, therefore, was inducing disobedience of governmental
authority. The formulation gave nationalists a way out: they could simply cast or
frame their speeches in a way that made no mention of disobeying the
government, while still sending across a powerful message to their listeners. To
get around this loophole, a mere six months after Petheram C.J.’s judgment, the
test was changed. In the first of the famous Tilak trials, Justice Strachey at the
Bombay High Court held that “sedition” covered speech that was “[attributing to
the government] every sort of evil and misfortune suffered by the people, or
dwelling on its foreign origin and character, or imputing to it base motives, or
accusing it of hostility or indifference to the welfare of the people.”43 A few
months later, in Pratod’s Case, the Court expanded the definition still further, to
include causing “alienation from one’s allegiance.”44 Subsequent sedition
convictions were carried out on the basis of “attributing dishonest or immoral
motives to the government”45 (Tilak) and allegations that the government was
abusing its power46 (Pothan Joseph). An attempt by Maurice Gwyer, writing for
the Federal Court, to replace this state of affairs with a more speech-protective
public-disorder based test in Niharendru Dutt Majumdar47 was swiftly overruled
by the Privy Council.48
The broadening of sedition law, therefore, signaled a shift from preventive

action against words or speeches that could lead to active disobedience of the
government, to suppression of all forms of speech that potentially questioned its
legitimacy. In other words, it was a shift from protecting the actual authority of
the government, to protecting its symbolic authority. The character of the State
was off-limits, immune from critical speech, even if that speech had no possibility
of translating itself into tangible consequences. The similarities with Gitlow vs
42 Queen-Empress v. Jogendra Chundra Bose, (1891) ILR 19 Cal 35, ¶12.

43 Queen-Empress v. Bal Gangadhar Tilak, (1897) ILR. 22 Bom 112, at 151.
44 Queen-Empress v. Ramchandra Narayan (1897) LLR 22 Bom 152.
45 Emperor v. Bal Gangadhar Tilak, (1917) 19 BOMLR 211, ¶23.
46In Re: Pothan Joseph, (1932) 34 BOMLR 917.
47 AIR 1939 Cal 703.
48 King-Emperor v. Sadashiv Narayan Bhalerao, (1947) L.R. 74 I.A. 89

State of New York, which Ambedkar quoted in defence of free speech restrictions
in the Constituent Assembly, are obvious.
If one side of the free speech battle was political in orientation, another side
was cultural: and it was here that arguments from colonial difference played an
important role. Indians, the argument goes, are so conditioned by their social
and cultural context, that they simply cannot receive certain forms of speech as
autonomous beings, who are trusted to make up their minds for themselves
about what they are listening to. An early example of this was Section 508 of the
Indian Penal Code, framed in 1860 (it still exists today), which punishes causing,
or attempting to cause, “any person to do anything… by inducing or attempting to
induce that person to believe that he or any person in whom he is interested will
become or will be rendered by some act of the offender an object of Divine
displeasure.”49 A few years later, while discussing amendments to the sedition
provision that sought to expand its reach, criticism was countered by the
contention that “language may be tolerated in England which it is unsafe to
tolerate in India, because in India it is apt to be transformed into action instead
of passing off as harmless gas."50 The arguments from colonial difference were at
their starkest, as discussed above, in the context of stringent regulation of
cinema, premised upon the assumption that the medium of film, with its
verisimilitude, would have a specially deleterious effect upon the Indian mind
because, as William Mazarella puts it, Indians were “incapable of the kind of
critical reflexivity that was the sine qua non of coolly deliberative public
reason.”51
A denial of autonomy was at the heart of colonial obscenity law as well,

although here the arguments were no longer premised upon colonial difference.
Rather, in an interesting inversion, they were premised upon the universality of
49 Indian Penal Code, Act No. 45 of 1860, §508.

50 DONOGH, A TREATISE ON THE LAW OF SEDITION AND COGNATE OFFENCES IN BRITISH
INDIA, PENAL AND PREVENTIVE 64 (1911).
51 WILLIAM MAZARELLA, CENSORIUM: CINEMA AND THE OPEN EDGE OF MASS PUBLICITY 17
(2013).

the corruptability of the lower classes.52 The English Hicklin test was used in
India as well, with its focus upon the class of people most likely to be “corrupted”
by a certain text. This was given its clearest exposition in Public Prosecutor vs
Mantipragada Markondeyulu53, where the Court noted that “the verses are
calculated to engender lust and impure ideas in the minds of an ordinary reader,
and when it is seen that the price is fixed so low as at one anna per copy so that it
may reach the hands of as many as are capable of purchasing it.” The cheap price
of the book, in other words, ensured that it would “fall into the hands” of those
who would be seduced by its message of lust and impure ideas – i.e., those,
because of their lower socio-economic station, who were unable to resist moral
and mental corruption.
IV
We have seen, therefore, that colonial free speech regulation cleaved along
two distinct lines. One line, marked by Press Acts, the sedition law, and so on,
was aimed at defending the legitimacy of the regime from a rising nationalist
movement. The second, in the domain of cultural regulation, was built upon the
idea that of colonial difference, i.e., the incapacity of an Indian audience to
respond to speech in an autonomous manner. Kant’s vision of the Enlightenment
individual – free of tutelage, and with the courage to “use [his] own reason”54
was not the individual of the colonies.
Perhaps unsurprisingly, the throttling of free speech by the colonial

government drew a strong response from the nationalist movement. Right from
1895, the nationalists framed their own bills of rights, which provided for strong
civil rights protections. The 1895 Constitution of India Bill guaranteed the right
to “express… thoughts by words or writings, and publish them in print without
liability to censure… but [citizens] shall be answerable to abuses, which they
52 Heath, Sanitizing Modernity: Imperial Hygiene, Obscenity, and MoralRegulation

in Colonial India, in ENCHANTMENTS OF MODERNITY- EMPIRE, NATION, GLOBALIZATION
113 (Saurabh Dabe ed., 2009)
53 37 Ind Cas 521.
54 IMMANUEL KANT, AN ANSWER TO THE QUESTION: “WHAT IS ENLIGHTENMENT?” (1784).

may commit in exercise of this right and in the mode the Parliament shall
determine.”55 Annie Besant’s 1917 Congress Resolution demanded “the removal
of all hindrances to free discussion”.56 The Commonwealth of India Bill, which
was defeated in the British Parliament in 1925, called for ‘free expression of
opinion.”57 Three years later, in the Motilal Nehru Report, the guarantee was
rendered more concrete, making it subject to ‘public order or morality’.58 As Arun
Thiruvengadam perceptively notes, “what is striking…is the near absence of
language on restrictions that could be imposed on the right.”59 This attitude
towards free speech was perhaps best summed up by Gandhi, who argued that
“assemblies of people [ought to be able to] discuss even revolutionary projects,
the State relying upon the force of public opinion and the civil police, not the
savage military at its disposal, to crush any actual outbreak of revolution that is
designed to confound public opinion and the State representing it.”60 Gandhi’s
words were mirrored by that of the American judge, Louis Brandeis who, along
with Oliver Wendell Holmes, dissented in a number of important American free
speech cases in the 1920s and 30s, including Gitlow. In Whitney vs California, a
case with facts similar to Gitlow, Justice Brandeis wrote that “if there be time to
expose through discussion the falsehood and fallacies, to avert the evil by the
processes of education, the remedy to be applied is more speech, not enforced
silence.”61 At the heart of both was a vision of the autonomous citizen-individual
as listener, who was responsible for how he or she chose to respond to the
speech in question.
However, by the time Independence was around the corner, and when the
Fundamental Rights Sub-Committee presented Draft Clause 8 to the Constituent
Assembly, the structure of the free speech provision had changed radically. Draft
Clause 8 stated:
55 See B. SHIVA RAO ET AL., 1 THE FRAMING OF INDIA’S CONSTITUTION: SELECT DOCUMENTS
5 (1966).
56 Id., at 31.
57 RAO, supra note 66, at 43.
58 RAO, supra note 66, at 59.
59 Thiruvengadam, supra note 49, at 29.
60 GANDHI: SELECTED POLITICAL WRITINGS 106 (Daniel Dalton ed., 1995).
61 274 US 357, 377 (1927).

“There shall be liberty for the exercise of the following rights subject to public
order and morality or to the existence of grave emergency declared to be such by
the Government of the Union or the Unit concerned whereby the security of the
Union or the Unit, as the case may be, is threatened:
(a) The right of every citizen to freedom of speech and expression:
Provision may be made by law to make the publication or utterance of seditious,

obscene, blasphemous, slanderous, libellous or defamatory matter actionable or
punishable.”
Almost immediately, this formulation met with stiff resistance. Somnath Lahiri
accused the Fundamental Rights Sub-Committee of operating from the point of
view of a “police constable”. In particular, Lahiri was concerned about the
emergency exception that was attached to the rights. Echoing Carl Schmitt’s
logic62 – albeit for very different ends – he argued that “what constitutes a 'grave
emergency' God alone knows. It will depend on the executive obtaining at a
particular period of government. So, naturally anything that the party in power
or the executive may not like would be considered a grave emergency and the
very meagre fundamental rights which are conceded in this resolution will be
whittled down.”63 In the same speech, Lahiri highlighted the hostility of the
colonial government towards the Press, and how, through compelled security
deposits and other such weapons, the British had succeeded in crushing the
press.64 Why then, he asked, did the Constitution not explicitly guarantee the
freedom of the press? In a subsequent debate, he argued for replacing “security
of the Union” with “defence of the Union”, once again pointing out how a word as
vague as “security” had been repeatedly abused by the State to suppress
62See John McCormick, Carl Schmitt and Constitutional Emergency Powers, in LAW
AS POLITICS 218 (David Dyzenhaus ed., 1998).
64 Id.

speech.65 Lahiri’s critique, therefore, was born out of the lived experiences of the
battling a colonial government intent on repressing the freedom of speech and
expression. Implicit in his argument was the assumption that the nature of the
State – whether colonial or post-colonial – remained the same; what the
Constitution meant to transform was the relationship between State and
individual. The more powers the Constitution gave to the State, the more broad
and vaguely words restrictions it put upon the freedom of speech, the more its
transformative promise was vitiated.
Lahiri’s was not the only member of the Assembly who voiced this fear. At the
height of the debates around Draft Article 13 on December 1 and 2, 1948,
Bhopinder Singh Man accused the Drafting Committee of wanting to “continue
the old order… if a meeting is held, then for breaking it up lathis may be used,
and people may be put into jail without trial; their organisations may be banned
and declared illegal. We do not like this shape of things.”66 Other speakers
referred to colonial laws such as the Goonda and the Public Safety Acts (both of
which continue to exist in 2015), and asked whether such laws would continue
to operate because of the restrictions clause.67 Lahiri, indeed, went one step
further, proposing a specific amendment prohibiting the demanding of securities
as a precondition for keeping a Press (which had been the staple feature of all
the repressive colonial Press Acts).68 His proposal did not find its way into the
Constitution.
Distrust of the State was also the underlying motivation of another set of
objections to the wording of the restrictions clause. Sardar Hukum Singh
perceptively noted that the phrase “in the interest of”, placed just ahead of the
substantive restrictions, would serve to reduce the Supreme Court’s area of

66 CONSTITUENT ASSEMBLY DEBATES VOL. VII (December 2, 1948), available at
http://parliamentofindia.nic.in/ls/debates/vol7p18a.htm
67 CONSTITUENT ASSEMBLY DEBATES VOL. VII (December 2-3, 1948), available
at http://parliamentofindia.nic.in/ls/debates/vol7p18a.htm.

review to a very narrow sliver. The question of whether a legislation was “in the
interest” of the security of the State, for instance, would restrict the Court to
merely being able to interrogate its bona fides.69 “The proviso in article 13(3)”,
he argued, “has been so worded as to remove from the Supreme Court its
competence to consider and determine whether in fact there were circumstances
justifying such legislation.”70 Pandit Thakur Dass Bhargava suggested a way out:
add “reasonable” before “restrictions.” This, he suggested, would ensure that “the
courts shall have to go into the question and it will not be the legislature and the
executive who could play with the fundamental rights of the people. It is the
courts which will have the final say. Therefore my submission is that we must
put in these words "reasonable" or "proper" or "necessary" or whatever good
word the House likes.”71 In that context, Hukum Singh, in fact, took on Ambedkar
on his own terms. Ambedkar’s argument that he could produce a foreign
precedent for every restriction placed in draft clause 13(2), he argued, was
inapposite, because in other countries, it was the judiciary’s task to balance the
competing interests of liberty and social order.72
Singh and Bhargava’s approach was, of course, different from Lahiri’s. The
latter wanted to hamstring the power of the State by modifying or removing the
substantive restrictions that the Constitution would allow it to place upon the
freedom of speech. The former sought to do it by empowering the Courts, in the
expectation that the judiciary would play its classic counter-majoritarian role,
and keep the State in check. At the heard of both approaches, though, was the
common felt need to place a stronger barrier between the individual and the
State, than what the draft Constitution was offering.
These arguments were strongly resisted. The structure of the responses

merits close attention. Defenders of the draft Constitution were faced with

http://parliamentofindia.nic.in/ls/debates/vol7p17b.htm.
70 Id.
http://parliamentofindia.nic.in/ls/debates/vol7p17b.htm.
72 Id.

justifying continuity – continuity of wide, discretionary powers to the State, on
lines similar to that which had existed in colonial times. Despite Ambedkar’s
protestations that every Constitution allowed for restricting free speech rights,
the similarities with the colonial regime – down to the retention, in the draft
Constitution, of sedition – were too stark to go unaddressed.
Two arguments were raised for the defence. Shri K. Hanumanthaiya argued,
for instance, that the legislature was the better forum for the regulation of
fundamental rights, because “the legislature consists of real representatives of
the people as laid down in this Constitution. If, at a particular time, the
legislature thinks that these rights ought to be regulated in a certain manner and
in a particular method, there is nothing wrong in it, nothing despotic about it,
nothing derogatory to these fundamental rights.”73 Algu Rai Shastri drew a link
between representative government and the public interest, arguing that “those
who would sit in the legislatures would be representatives of the people and
they will impose only those restrictions which they consider proper.”74
Brajeshwar Prasad added to this, justifying the restrictions by arguing that “it is
wrong to regard the State with suspicion. Today it is in the hands of those who
are utterly incapable of doing any wrong to the people. It is not likely to pass into
the hands of the enemies of the masses.” Prasad’s focus on “today” reveals the
crucial move: it was the transformation of the form of government that justified
the continuity of the legal regime. The problem had never been with giving wide
powers to the State. The problem had been that the State was an alien one, which
had no legitimacy to use those powers, and frequently abused them.75 This,
indeed, reveals a tension at the heart of the “transformative” Constitution. Justice
Vivian Bose’s vision of transformation – transformation to popular sovereignty
was at odds with the Punjab High Court’s vision – transformation in the balance
of power between individual and State.

74 Id.

Lahiri, though, had already come up with an elegant rebuttal: “Sardar Patel,”
he argued, “has the support of the overwhelming masses of the people and,
therefore, he can do with much less powers to rule the country than an
autocratic government would require.”76 The question of whether or not a
popularly elected government would abuse its discretionary power, therefore,
was a secondary question: what would a popularly elected government need
discretionary power in the first place?
It was in responding to this manner of argument – the second line of defence –

that the ghost of Gitlow lingered over the Assembly. In his response to Lahiri, for
instance, Prof. N.G. Ranga argued that the reason for restrictions was to ensure
that “people who believe in liberalism at one end and communism at the other
will not be enabled to take advantage of these rights to pave the way for
totalitarianism.”77 Indeed, in responding to Lahiri’s suggestion that the word
“security” be replaced with the narrower “defence”, Patel effectively accused him
of acting in bad faith, with the intention of hamstringing the government in its
attempts to counter internal chaos.78 Shri Hanumanthaiya noted that “we are
faced, within our own society, with elements who want to take advantage of
those rights in order to do violence to men, society and laws.”79
Much like in Gitlow, the defenders of the Draft Constitution were not
concerned with making out a positive case for the linkage between speech and
the actual overthrow of the State. The observation the fundamental freedoms
could be taken advantage of in order to establish totalitarianism was justified by
entirely ahistorical invocations of the Weimar Republic.80 I would argue, on the
other hand, that it was something else that was motivating the Assembly

77 Id.

members, something that is not quite so evident in the free speech debates as it
is in the debates on the non-discrimination clause. The draft clause, when it was
introduced by Patel at the end of April 1947, read: “The State shall make no
discrimination against any citizen on grounds of religion, race, caste or sex.”
Somnath Lahiri proposed an amendment, arguing that “political creed” ought to
be added to religion, race, caste or sex, on the lines of other constitutions.81 The
response to this was telling. H.V. Kamath, for instance, immediately objected,
stating that:
“I do recognise that times may arise when we may have to discriminate

against persons who hold a creed which seeks to subvert the State by violence or
similar objectionable methods. We may have to impose discrimination against
such persons.”82
While Kamath did not clarify what these “similar objectionable methods”
were, the import of his speech was obvious: it was aimed at suppressing not the
violence, or the likelihood of the outbreak of violence that might result out of the
propagation of certain creeds, but the creeds themselves. Patel himself felt
constrained to respond to Lahiri, and he was even plainer: “I think it is an absurd
idea to provide for nondiscrimination as regards a political creed. Political creed
may be of any kind. There may be some political creeds highly objectionable.
Some may not be deserving of discrimination, but may actually be deserving of
suppression altogether.”83
This shift from actual violence or disorder – which is what Gandhi and Justice
Brandeis were concerned about – to the suppression of the idea qua idea – is
similar to the shift in sedition law from Petheram to Strachey: speech is
restricted not for its affect, but for its communicative content; and in Kamath’s
and Patel’s strong objection to including a guarantee against political
discrimination, it is clear that the content that concerned them – as it concerned
81 Id.
82 Id.
83 Id.

Strachey and the colonial lawmakers - was one that fundamentally questioned
the legitimacy of the existing order. Here again, there was continuity in the form
of the argument, but everything was changed because of the nature of the entity
that was not wielding power.
To sum up, then: the cleavage in the Constituent Assembly reflected a

disagreement over what, precisely, was the nature of the transformation that the
Constitution was supposed to reflect. For Lahiri and many others, it was meant
to fundamentally transform the balance of power between State and individual
by curtailing what the State could do to the individual. This would require a
change in the legal forms of control and authorisation within which the State
could function. Laws such as the Press Acts, and sedition, would have to go. On
the other hand, for the Drafting Committee and its supporters, the
transformation was in who ruled. The evil in the old laws was not in what they
allowed the government to do, but that the government was alien. With that
transformation, the old order, implemented by a new dispensation, could now go
on. And indeed, the very fact that the new order was legitimate, in turn, enabled
and justify it to use the force of law to resist attacks upon its legitimacy,
regardless of what tangible impact such attacks might have in the real world. The
difference is reflected starkly in Professor K.T. Shah’s protestations against the
draft Emergency provisions:
“I feel that this [the draft Emergency Provision] is utterly indistinguishable from
the series of Ordinances which were issued in 1942, wherein not only the
occurrence of commission of an act was made punishable but even the likelihood of
such an act being committed was made liable to action under the Ordinance. If this
Government that we are constituting now, if the State that we are setting up under
this Constitution, is not to be distinguishable for liberalism, for tolerance, for
freedom of thought and expression to the citizen, in any way from the preceding
Government, except that the complexion of the rulers would be different, -- then I

am afraid we are not being true to. the pledges that have been given to the people
of this country, viz., that Swaraj would be really Ram Raj on this earth.”84
If, on the one hand, the change in the nature of government was believed to
allow for the continuity of the forms of pre-colonial restrictions upon the
freedom of speech, on the other hand, it is equally important to note the
arguments that were not made. Constituent Assembly members, unsurprisingly,
did not echo arguments from colonial difference, that focused upon Indians’
inability to respond to speech in a reasoned and rational way, an argument that
was closely linked to the denial of suffrage. To be sure, arguments invoking an
Indian particularity were used: but they were arguments based on
circumstances, and not character.85 Just before he expressed his gratitude at the
removal of sedition from draft Article 13(2), Seth Govind Das observed that “I
would have myself preferred that these rights were granted to our people
without the restrictions that have been imposed. But the conditions in our
country do not permit this being done.”86 What were these conditions? He did
not specify, apart from saying that the “government is in its infancy”87, and
darkly hinting at the situation in Burma and China, which were then undergoing
a civil war. T.T. Krishnamachari used the same language, although he added a
temporal dimension to it: “it is quite possible that ten years hence the necessity
for providing in the Fundamental Rights an exclusion of absolute power in the
matter of freedom of speech and probably freedom to assemble, will not be
necessary. But in the present state of our country I think it is very necessary that
there should be some express prohibition of application of these rights to their
logical end.”88 While Pandit Hirday Nath Kunzru did understand the restrictions
84 CONSTITUENT ASSEMBLY DEBATES VOL. IX (August 2, 1949), available at

85 Thiruvengadam, supra note 49.
87 Id.

as being “considered necessary in every country”89, and Alladi Krishnaswamy
argued in the abstract language of finding a balance between freedom and social
control90 - and Ambedkar himself referred to the United States Constitution to
make his argument – there was an overwhelming concern in the Assembly to
ensure that the nation, held together in a fragile way, of its dissentient parts,
would not disintegrate. This sentiment came out particularly strongly during
debates over the Emergency provisions, where repeated references were made
to the “situation in Bengal and Madras.”91
Although Krishnamachari did hint at an Indian particularity by referring to

the “genius of our people… [and our] ideas of liberty which are still today in a
very undeveloped state,”92 this was a minority opinion. The changed ideas are
particularly visible in a debate on another, quite different question: that of
universal suffrage. The Indian Constitution was perhaps unique in its time in
providing for universal suffrage at one fell stroke. In other nations, suffrage
began as a privilege of propertied, educated males of particular racial stock,
before gradually expanding to include all adult citizens, an expansion that had to
overcome arguments that the disenfranchised, whether because of their sex,
colour or socio-economic status, did not possess the maturity to vote responsibly
and independently.93 These arguments, of course, mirrored the basic argument
of colonial difference.
The momentousness of initiating a near-complete transformation from

subject to citizen at one fell stroke was not lost upon the framers. Alladi
Krishnaswamy Ayyar, one of the towering figures of the Assembly, noted that
“more than any other provision in the Constitution. I should think the boldest

91 CONSTITUENT ASSEMBLY DEBATES VOL. IX (August 4, 1949), available at
93 ALEXANDER KEYSSAR, THE RIGHT TO VOTE: THE CONTESTED HISTORY OF DEMOCRACY IN
THE UNITED STATES (2000).

step taken by this Assembly is in the matter of universal adult suffrage with a
belief in the common man and in his power to shape the future of the country.”94
Later, he would go on to say that “in spite of the ignorance and illiteracy of the
large mass of the Indian people, the Assembly has adopted the principle of adult
franchise with an abundant faith in the common man and the ultimate success of
democratic… it cannot after all be assumed that a person with a poor elementary
education and with a knowledge of the three Rs. is in a better position to exercise
the franchise than a labourer, a cultivator or a tenant who may be expected to
know what his interests are and to choose his representatives.”95 Here, the
Constitution was transformative: every adult Indian was a citizen, presumed to
be autonomous and responsible enough so as to be capable of participation in
the core public activity of democracy. Indeed, the entire nationalist movement
had been premised upon the capacity of Indians for self-rule: it would therefore
have been paradoxical for arguments from colonial difference to find their way
into the Constituent Assembly.
Let us sum up. Colonial control over free speech was of two types: political
control, aimed at suffocating the growth of the press through burdensome laws,
and political protest through sedition. The overriding objective was to silence
challenges to the legitimacy of colonial rule. The other was cultural, expressed
through obscenity laws, film censorship etc. This was premised on colonial
difference, on the natives’ inability to receive speech in the autonomous way that
the men of the Enlightenment could. The Constituent Assembly produced a free
speech clause, whose extensive restrictions mimicked colonial law. This was
attacked for its continuity with the times before, as a betrayal of the
transformative promise of the moment of framing. It was defended on the ground
that the transformation was in the manner of government, which, in turn,
justified continuity in laws; that speech that challenged the very legitimacy of the
94CONSTITUENT ASSEMBLY DEBATES VOL. VII (November 8, 1948), available at

95 CONSTITUENT ASSEMBLY DEBATES VOL. XI (November 23, 1949)
http://parliamentofindia.nic.in/ls/debates/v11p9m.htm

new government could, for the same reason, be proscribed; and that the exigent
situation in India demanded broader restrictions than would be ideal. It was the
second and third justifications that – as we can see – mirrored colonial discourse:
the first in insulating the legitimacy of the government against challenge, and the
second as invoking an Indian particularity (albeit in a slightly different way) to
justify greater restrictions.
I will now argue that in many ways, the patterns of Indian free speech
jurisprudence replicated the discourse in the Constituent Assembly, and in one
significant way, they departed from it. Let me begin with the latter. Two years
after the Constitution was framed, the Provisional Parliament (which, at the time,
consisted of the members of the Constituent Assembly framed the
Representation of the People Act, a law for the conduct of elections. Section
123(2)(a)(ii) of the Act defined as a corrupt electoral practice ‘induc[ing] or
attempt[ing] to induce a candidate or an elector to believe that he, or any person
in whom he is interested, will become or will be rendered an object of divine
displeasure or spiritual censure.”96 Readers will note immediately the similarity
with Section 508 of the colonial penal code. In interpreting S. 123(2)(a)(ii) (and
other similar provisions), the Courts held that religious appeals effectively
overrode individual autonomy.97 In Harcharn Singh, for example, the Court
seemed to accept the argument that “Section 123(3) was designed to ensure that
‘powerful emotions generated by religion should not be permitted to be
exhibited during election and that decision and choice of the people are not
coloured in any way.”98 Here was the idea of colonial different, kept out of the
Constituent Assembly, back in streaming colours. As Pratap Bhanu Mehta put the
point, on a combined reading of the cases, “the courts assume throughout that
citizens are, when it comes to receiving religious speech, or speech about
religion, incapable of managing the impressions they receive…we are incapable
96Representation of the People Act, §123(2)(a)(ii).

97 See e.g., Ram Dial vs Sant Lal, AIR 1959 P&H 240; Orissa High Court in Yulitha
Hyde vs State of Orissa, AIR 1973 Ori 116. For a more detailed version of the
argument, see GAUTAM BHATIA, OFFEND, SHOCK, OR DISTURB: FREEDOM OF SPEECH UNDER
THE INDIAN CONSTITUTION (OUP 2015).
98 S. Harcharn Singh v. S. Sajjan Singh, AIR 1985 SC 236.

of receiving the expression on our own terms; incapable of managing our own
responses; condemned to receiving these expressions unfreely and helplessly;
incapable as it were, of self-discipline.”99
This “incapacity” to receive certain forms of speech “on our own terms” has
haunted the courts’ free speech jurisprudence. The famous case of Ramji Lal
Modi involved a constitutional challenge to the colonial Section 295A of the
Indian Penal Code, which criminalised insulting religious feelings. It was argued
that the provision violated Article 19(1)(a) of the Constitution, and was not
saved by the public order restriction, since it did not distinguish between
religious insults that, all things considered, were likely to cause public disorder,
and those that weren’t. Rejecting the argument, the Court created a legal fiction:
intentional insult to religious sentiments ex hypothesi were presumed to have a
tendency towards public disorder.100 Indians were – in Mehta’s words –
“incapable of managing their own responses.”
A similar discourse was employed in the Court’s obscenity cases which, as we

saw, adopted the Hicklin test (well after its abandonment in its home country),
expressly aimed at “protecting” those who could not protect themselves from
moral corruption. The similarities were even starker in film censorship cases. As
we saw above, in K.A. Abbas, the Supreme Court upheld pre-censorship of films
under the 1952 Cinematograph Act (strikingly contemporaneous with the
Representation of the People Act), which was strongly modeled upon colonial
lines. K.A. Abbas vs Union of India is an interesting judgment, because it reveals
continuities that operated not only at the level of legal doctrine, but also at the
level of conceptions of the role of free speech for the individual, the society, and
the State. Film censorship during the time of the British was premised on the
idea of colonial difference. Excitable natives, unable to achieve critical mental
and emotional distance especially when faced with the verisimilitude of the film
99 Pratap Bhanu Mehta, Passion and Constraint, http://www.india-

seminar.com/2003/521/521%20pratap%20bhanu%20mehta.htm (last
accessed Oct 24, 2015).
100 Ramji Lal Modi v. State of Uttar Pradesh, AIR 1957 SC 620.

screen101, were – it was argued – being “subjected to wholly unprecedented
provocations.”102 The justification for heavy-handed film censorship was part of
the broader justificatory apparatus of colonial rule: pre-Enlightenment Indians
were not yet fit for autonomous self-government, and needed the guidance and
tutelage of the British to bring them to that point, located in an undefined future
time.103
In K.A. Abbas, however, this fact seemed to have no bearing upon the Court’s
decision. The verisimilitude of the cinema; its effect upon a population somehow
lacking vital facilities of discernment; and the role of the State as tutor: each of
these reasons were adduced in the judgment, its logic proceeding in lockstep
with its colonial predecessor: “[because of] the instant appeal of the motion
picture,” noted Justice Hidayatullah, “… its versatility, realism (often surrealism),
and its coordination of the visual and aural senses… the motion picture is able to
stir up emotions more deeply than any other product.”104 The interest of the
public, he held, was in good, wholesome cinema, and the role of the State, as
“parens patriae”105, was to ensure it. Two decades later, in S. Rangarajan vs P.
Jagjivan Ram, the Court would sharpen its rhetoric even further, drawing a
distinction between (discerning) newspaper readers and the cinema-going
“mass audience who are generally not selective about what they watch…
[consequently] the movie cannot be equated with other modes of
communication. It cannot be allowed to function in a free market place just as
does (sic) the newspapers or magazines.”106 The excitable colonial subjects were
now the unselective mass audience of independent India, neither of which could
be trusted to respond responsibly to events on the screen.
101 See T. Ganti, ‘The Limits of Decency and the Decency of Limits’ in CENSORSHIP
IN SOUTH ASIA: CULTURAL REGULATION FROM SEDITION TO SEDUCTION 87 (W. Mazzarella
and R. Kaur eds., Indiana University Press 2009);
102 W. Mazzarella, ‘Making Sense of Cinema in Late Colonial India’ in CENSORSHIP
IN SOUTH ASIA: CULTURAL REGULATION FROM SEDITION TO SEDUCTION 71 (W. Mazzarella

and R. Kaur eds., Indiana University Press 2009).
103 See e.g., UDAY SINGH MEHTA, LIBERALISM AND EMPIRE: A STUDY IN NINETEENTH-
CENTURY BRITISH LIBERAL THOUGHT (University of Chicago Press 1999).

104 (1971)2 S.C.R. 446, ¶21.
105 Id., ¶41.
106 (1989) 2 S.C.R. 204.

If the Constitution, then, was meant to create the autonomous citizen who was
presumed to be competent enough to engage in the activities of self-government,
free speech judgments interpreting Article 19(1)(a), on the other hand, created
the figure of the native (as seen through colonial eyes), incapable of reasoned
and responsible choice. But was the Constitution, indeed, meant to create the
autonomous citizen, as I tentatively argued in the previous section? Perhaps not.
For all Alladi Krishnaswamy Ayyar’s ringing declarations of universal suffrage,
the Constituent Assembly was careful enough to refrain from guaranteeing a
fundamental right to vote, and careful enough to expressly provide that the
Parliament could legislate disqualifications both upon voting rights, and upon
the right to stand for elections.107 The Representation of the People Act was
framed by the very same individuals who sat in the Constituent Assembly; and
they not only adopted the divine displeasure provision for the IPC, but signaled
their distrust of voters even further, by legislating against appeals to caste and
religion as part of political campaigning.108 True, after decades of campaigning
for the right to self-rule, the members of the Assembly could hardly have
expressly endorsed colonial difference. But actions speak louder than words, and
the Representation of the People Act is a legislation enshrining colonial
difference par excellence. If the Constitution was meant to be transformative in
this sense, then the first major law passed after its birth severely undermined its
claim. Perhaps, then, the Courts have only been false to the rhetoric of the
Assembly, while remaining true to the underlying motivations of the framers. As
Edward Said reads Partha Chatterjee, “to [a statesman like Nehru] the peasants
and the urban poor are ruled by passions, not reason; they can be mobilized by
poets like Tagore and charismatic presences like Gandhi, but after independence
this large number of people ought to be absorbed into the state, to be made
functional in its development.”109 This distinction between reason and passion
motivated the speech-restricting provisions of the Representation of the People
108 The Representation of the People Act, 1951, §8(1)(a)
109 EDWARD SAID, CULTURE AND IMPERIALISM ___ (Vintage 1994).

Act, and has motivated the Court in its judgments on religious speech, on
obscenity, on hate speech etc.
In other areas, the relationship between the Debates and free speech
jurisprudence is easier to decipher. Brajeshwar Prasad and his companions’
arguments that the change in the nature of the State justified continuity in old,
widely-framed, speech-restricting laws, found judicial sanction in a doctrine of
judicial deference. In Virendra vs State of Punjab, while upholding prior restraint
upon the press under a “Special Powers Act” that strongly resembled colonial
press laws, the Supreme Court noted that “no assumption ought to be made that
the State Government or the authority will abuse its power.”110 In upholding
prior restraint upon assemblies under Section 144 of the CrPC, the Court
observed that its use should be restricted to emergencies, but refused to strike
down the provision which, in its language, made no such distinctions.111 In
interpreting Section 95 of the CrPC, which allows the State to ban and forfeit
books if it “appears” that the book has violated one of a series of listed laws, the
Court held that the State need not prove that any law had been broken, only that
there was a prima facie appearance that such might be the case. After that, the
burden of dislodging that appearance, and proving that the book had not broken
a law, lay upon the person who challenged the ban!112 All of these cases,
ultimately, invoke the same set of assumptions used by the defenders of the draft
free speech clause: that there is no need to redress the balance of power between
State and individual in favour of the latter, because the State will, it is presumed,
use its power wisely and well.
The second set of defences – that certain founding ideas about State and nation
are simply beyond questioning or criticism – has found both legislative and
judicial sanction. Under the Unlawful Activities Prevention Act of 1967 (which
has never been challenged), the mere “questioning” of the legitimacy of India’s
110Virendra vs State of Punjab, (1958) 1 S.C.R. 308, ¶14; but see a recent
exception, Shreya Singhal v. Union of India, (2015) 5 SCC 1.
111
112 Id.

territorial borders is a crime.113 In Union of India vs Naveen Jindal, the Supreme
Court held that citizens had the right to fly the national flag, as long as they did so
with respect.114 In Bijoe Emmanuel, the Supreme Court held that certain Jehovah’s
Witnesses could not be compelled to sing the national anthem as long as they
stood respectfully while it was being played.115 However, perhaps the most
significant set of cases belong in the realm of contempt of court law. In a
progression that almost mirrors the progression of colonial sedition, the Court
moved from punishing speech that had a tendency to obstruct the course of
justice, to speech that challenged the “authority” of the Court, or undermined its
“haze of glory.”116 The reputation or authority of the Court (as a wing of State),
therefore, became something to be protected as an end in itself (much like the
legitimacy of the colonial government), with the only the vaguest of connections
to actual, tangible harm.
The last of the defences in the Assembly – that special conditions needed
special laws – has been instantiated in a number of “Emergency laws” (upheld by
the Courts), a complete analysis of it would be beyond the scope of this essay.117
It has, however, also found its way into free speech jurisprudence. In R.
Rajagopal vs State of Tamil Nadu, the Supreme Court invoked the “lack of
awareness” amongst Indians (as opposed to our Western counterparts), to
justify adopting a watered-down version of the New York Times vs Sullivan118 test
for defamation of public officials. And perhaps most ironically of all, in 2014, the
Delhi High Court justified a ten-day ban on the TV Channel, Comedy Central, by
observing that in a “nascent republic” like India, social and cultural stability were
of paramount importance.119
113 The Unlawful Activities (Prevention) Act, No. 37 of 1967. §2(f)(ii).

114 Union of India v. Naveen Jindal, AIR 2004 SC 1559.
115 Bijoe Emmanuel v. State of Kerala, (!986) 3 S.C.R. 518.
116 D.C. Saxena vs CJI, (1996) 5 SCC 216.
117 R. Rajagopal v. State of Tamil Nadu, AIR 1995 SC 264.
118 376 US 254 (1967).
119 Viacom Media 18 Pvt Ltd vs Union of India, LPA 374/2013, CMs No.
8716/2013 (for stay) & 3187/2014.

Sixty-seven years after Independence, according to the High Court we are still
a “nascent republic”. When we think of this in the context of our free speech
jurisprudence in cases of electioneering, religious speech and film censorship,
one might be forgiven for thinking that the British never really left: we continue
to remain in the waiting room of history, in perpetual watch for the day when we
shall finally be ready to receive subversive speech with the engaged detachment
of the autonomous, responsible Enlightenment individual. As we have seen,
however, that idea is not the invention of the Courts. Its roots lie in the moments
of the framing, and in its immediate aftermath.

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THE CONSERVATIVE CONSTITUTION: FREEDOM OF SPEECH AND THE CONSTITUENT

Sixty years ago, at the dawn of Indian constitutionalism, a young Supreme

In Justice Bose’s view, the Constitution was fundamentally transformative in

1 Virendra Singh v. State of Uttar Pradesh, (1955) 1 S.C.R. 415.

The Supreme Court, however, disagreed with this particular understanding of

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The Kedar Nath Singh judgment, therefore, invoked a continuous line of

9 Niharendu Dutt Majumdar v. The King, AIR 1939 Cal 703.

S.C.R. (2) 821.

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I will argue that the contradictory impulses of continuity and of

It would be simplistic, of course, to contend that there is a direct, causal

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22 CONSTITUENT ASSEMBLY DEBATES VOL. VII (November 4, 1948), available at

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It was a remarkably wide-ranging speech, moving between different

25286 US 652 (1925).

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The Supreme Court disagreed. It distinguished between an abstract or

27 CONSTITUENT ASSEMBLY DEBATES VOL. III (April 29, 1947), available at

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To place the debates in the Constituent Assembly in their appropriate context,

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36 WILLIAM BLACKSTONE, 4 COMMENTARIES ON THE LAWS OF ENGLAND 150 (1769).

Evolution of the Constitutional Right to Free Speech in India (1800-1950)”, CALS

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41 Indan Penal Code Amendment Act, No. 27 of 1870.

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The broadening of sedition law, therefore, signaled a shift from preventive

42 Queen-Empress v. Jogendra Chundra Bose, (1891) ILR 19 Cal 35, ¶12.

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A denial of autonomy was at the heart of colonial obscenity law as well,

49 Indian Penal Code, Act No. 45 of 1860, §508.

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Perhaps unsurprisingly, the throttling of free speech by the colonial

52 Heath, Sanitizing Modernity: Imperial Hygiene, Obscenity, and MoralRegulation

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(a) The right of every citizen to freedom of speech and expression:

Provision may be made by law to make the publication or utterance of seditious,

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65 CONSTITUENT ASSEMBLY DEBATES VOL. III (April 29, 1947), available at

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These arguments were strongly resisted. The structure of the responses

69 CONSTITUENT ASSEMBLY DEBATES VOL. VII (December 1, 1948), available at

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73 CONSTITUENT ASSEMBLY DEBATES VOL. VII (December 2, 1948), available at

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It was in responding to this manner of argument – the second line of defence –

76 CONSTITUENT ASSEMBLY DEBATES VOL. III (April 29, 1947), available at

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“I do recognise that times may arise when we may have to discriminate

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To sum up, then: the cleavage in the Constituent Assembly reflected a

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84 CONSTITUENT ASSEMBLY DEBATES VOL. IX (August 2, 1949), available at

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Although Krishnamachari did hint at an Indian particularity by referring to

The momentousness of initiating a near-complete transformation from

89 CONSTITUENT ASSEMBLY DEBATES VOL. III (April 29, 1947), available at

THE UNITED STATES (2000).

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94CONSTITUENT ASSEMBLY DEBATES VOL. VII (November 8, 1948), available at