6 Genesis of the Right to Free Speech and Expression

Prof. Abhishek Sudhir

Learning Outcomes

The purpose of this chapter is:

• To give the students an overview of the theoretical underpinnings of the right to free speech.
• To help the students understand the development of the right in the Indian context by introducing them to the Constituent Assembly debates.

Introduction (Voice Over)

This module will introduce you to the significant theoretical and political discourse that has developed on the right to free speech and expression. The module will survey the literature on the philosophical foundations of the right. The module will also introduce students to the Constituent Assembly debates on free speech and expression, as it will provide a sound basis for understanding the development of the right in India.

3. Political Theory – Freedom of Speech

3.1 John Stuart Mill – The Harm Principle and Free Speech

Mill in his famous work ‘On Liberty’ strongly advocates for free speech. He argues that free speech is imperative for intellectual and social progress. He contends that even a false opinion is more productive, as a silenced opinion contains no element of truth simply because it was never expressed. Mill placed a premium on open debate as he did not want people to accept truth as it is or because it is told to them that “this is truth”. According to Mill, individuals should come to a conclusion on their own that what is being told to them is in fact the truth.

Mill contends that even if only one individual expresses a dissent on a particular proposition, then he shall also be allowed the same liberty to speak his mind as any other.

Mill in his own words defines the limit of free speech by using the harm principle as follows:

“The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.”

Mill explains the harm principle using the example of a corn dealer. He writes that if one writes on a piece of paper that corn dealers are responsible for starving the poor and circulates it, this should be allowed. On the other hand, if an angry mob comprising of starving poor is standing outside the house of a corn dealer and a person tells them it is because of this corn dealer that they are starving while he lives a prosperous life, it should not be allowed. Mill distinguished the two scenarios as in the former act there is no threat to the corn dealer by the statement while in the latter there is an imminent threat to life and property of the corn dealer as the crowd excited by these words may turn into a vigilante mob.

3.2 – Joel Feinberg’s Offense Principle

Joel Feinberg’s offense principle is a critique of JS Mill’s harm principle. Feinberg is of the belief that the harm principle raises the bar too high. He argues that if only those offenses are prohibited which causes harm to other individuals it will be inconsistent with various existing criminal prohibitions. Feinberg argues that “It is always a good reason in support of a proposed criminal prohibition that it would probably be an effective way of preventing serious offense (as opposed to injury or harm) to persons other than the actor, and that it is probably a necessary means to that end ”. The offense principle helps in censoring speech and expression that may escape persecution under harm principle such as a man walking naked in public cannot be prosecuted under the harm principle but can be prosecuted under the offense principle.

Feinberg in his own words explains the principle as given below:

“It is always a good reason in support of a proposed criminal prohibition that it would probably be an effective way of preventing serious offense…to persons other than the actor, and that it is probably a necessary means to that end…The principle asserts, in effect, that the prevention of offensive conduct is properly the state’s business”

Feinberg’s principle is not an absolute prohibition on every kind of material that may offend anyone; rather he explains that things that may offend a person and could be avoided by that person should not be banned. For example, it is common knowledge that a Hindu may find the recent book by Wendy Doniger on Hinduism to be offensive; so rather than getting the book banned, they should avoid reading it. This is because if we ban the book, it goes against the very principle of free speech and one should not prohibit something until and unless it cannot be avoided.

Feinberg’s offense principle in comparison to Mill’s harm principle is much better suited to the temperament of democracies like India where freedom of speech is comparatively restricted unlike nations such as the United States where the right to freedom of speech is near absolute. For example, the recent order by the Supreme Court of India to ban pornography websites can only be justified using the Feinberg’s offense principle, as if one is to apply Mill’s harm principle then there is no person whose liberty is being violated and watching pornography in effect is actually a victimless crime which could only be regulated by the application of Feinberg’s offense principle.

4. Genesis of the Right to Freedom of Speech & Expression in India

The members of constituent assembly of India were not elected by universal adult suffrage but were indirectly elected by the members of the provincial assemblies. They began the difficult task of making the Constitution on December 9, 1946 and concluded on November 26, 1949. Much of the debates focusing on freedom of speech and expression took place on 1st and 2nd December 1948 and 16th and 17th October 1949.

Article 19 which was the Article 13 of the draft constitution, guaranteed to each citizen the right to freedom of speech and expression, but this would not prevent the State from making any law abridging this freedom in so far as it related to libel, slander, defamation, contempt of court or any matter which offended against decency or morality or which undermined the security of, or tends to overthrow, the State.

The restrictive content of this clause was in question. In Damodar Swarup Seth’s opinion it was clear that the rights guaranteed in article 13 had become non-existent by the restrictions placed in that very section and were at the mercy or the high-handedness of the legislature. However, no change was made with regard to restrictions placed on the article. B.R. Ambedkar explained why:

“What the Draft Constitution has done is that instead of formulating fundamental rights in absolute terms and depending upon our Supreme Court to come to the rescue of Parliament by inventing the doctrine of police power, it permits the State directly to impose limitations upon the fundamental rights. There is really no difference in the result. What one does directly the other does indirectly. In both cases, the fundamental rights are not absolute.”

Thus, the fundamental rights included in the article 13 of the Draft Constitution were not absolute in nature. Article 13(1) guaranteed the freedom of speech and expression but later in the same clause it gives right to the legislature in the interest of general public to formulate any law which may be not in accordance to the article or may be curtailing the rights in the article. The question arose in the assembly was, who will judge what is in the interest of the general public. The restrictions levied upon the article were highly resented. But a majority of the Assembly was of the opinion that the freedom of speech and expression could not be absolute and there was a need to strike a fine balance between individual liberty and social control.

This view was expressed eloquently by Alladi Krishnaswami Ayyar, who spoke in the backdrop of the bloody events of partition: “The recent happenings in different parts of India have convinced me, more than ever, that all the fundamental rights guaranteed under the Constitution must be subject to public order, security and safety though such a provision may to some extent neutralize the effect of the fundamental rights guaranteed under the Constitution.”

He was supported by C. Rajagopalachari, who argued that the fundamental peace and orderly progress of the country depended upon communal peace and harmony and therefore speeches and utterances which were likely to foster communal hatred must be prevented as a matter of necessity. However, K.M. Munshi disagreed and stressed that the practice of all civilized countries and the opinion of all constitutional experts was in favour of permitting freedom of public expression, even tending to class or communal hatred, up to the point where it led to a breach of the peace or public order.

There was also some dissatisfaction with the use of the word “morality”. K.T. Shah was critical of the use of the term “morality” as, in his view, it was “very vague” and its connotation changed substantially from time to time. He opined that In a land of many religions, with different conceptions of morality, different customs, usages and ideals, it would be nigh on impossible to ascertain what constituted morality. He stated that If it was not to degenerate into tyranny of the majority, it was necessary either to define more clearly what was meant by the term “morality” or drop it altogether.

The next issue that came up for consideration was with regard to the word ‘expression’. The word ‘expression’ in the clause was considered to have a wider meaning. According to K.T.Shah, expression and speech should have been running parallel to each other. But he also added that the expression also includes pictorial and other types of expression and not merely the speech.

Another important question that was raised dealt with the omission of freedom of press from the clause. K T Shah considered freedom of press as a very important part of the clause. In his opinion, the freedom of press shouldn’t have been misunderstood as a licence to publish whatever the publisher deems fit be it misuse of the liberty. He opined that if it is found that the liberty verging upon the licence is misused then laws can be passed to regulate the same, but ultimate omission of the freedom of press is not an apt decision considering the making of the constitution and the fundamental rights.

However, B.R. Ambedkar explained why there was no need to explicitly guarantee the freedom of the press, as it was implicit in the freedom of speech and expression guaranteed to an individual. Therefore, an individual who was a member of the press had the freedom to express his opinions, much like any other individual, subject to the provisions of the Constitution.

A very important amendment moved regarding this article was omitting the word ‘sedition’ from the clause. Its definition as stated in the debates “sedition embraces all those practices whether by word or deed or writing which are calculated to disturb the tranquillity of the State and lead ignorant persons to subvert the Government”. But article 124-A of the Indian Penal Code used to work somewhat other way. Even a criticism of district magistrate was considered as sedition. But this wouldn’t work in the democratic form of government. Criticism of the government should be welcomed and not considered as sedition. It was stated that, the essence of the democracy is its criticism and adding the word sedition in the clause would be a big hindrance to the freedom of speech and expression.

In 1951, Article 19(1) and 19(2) of the Constitution was amended to read as follows:

Protection of certain rights regarding freedom of speech etc

(1) All citizens shall have the right

(a) to freedom of speech and expression…

(2) Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.

The Government of the day, led by Pandit Jawaharlal Nehru, justified the amendment thus:

During the last fifteen months of the working of the Constitution, certain difficulties have been brought to light by judicial decisions and pronouncements specially in regard to the chapter on fundamental rights. The citizen’s right to freedom of speech and expression guaranteed by article 19(1)(a) has been held by some courts to be so comprehensive as not to render a person culpable even if he advocates murder and other crimes of violence. In other countries with written constitutions, freedom of speech and of the press is not regarded as debarring the State from punishing or preventing abuse of this freedom.

The Article has not been amended since and the onus has shifted to the judiciary to determine the scope and extent of the right to free speech and expression.

5. Summary

The debates on free speech were significant as it was the one fundamental right that formed the very basis of the freedom movement. That being said, it was necessary to deliberate on the extent to which the freedom of speech and expression was to be constitutionally guaranteed: Whether it should be absolute or restrictive? If restrictive, then till what extent should it be restrictive? As a result of this deliberative process, the Constitution-makers decided to give the citizenry the freedom of speech and expression, albeit with restrictions, which was long denied to the people of India by the erstwhile colonial rulers.

Reference

• Feinberg, J., 1984, Harm to Others: The Moral Limits of the Criminal Law, Oxford: Oxford University Press.
• Justice as Fairness: A Restatement , E. Kelly (ed.), Cambridge, MA: Harvard University Press.
• Mill, J.S., 1978. On Liberty, Indianapolis: Hackett Publishing.
• King, Marshall. ‘The Troubles Of Free Speech Theory’. Academia. N.o., 2014. Web. 10 Nov. 2014. (https://www.academia.edu/1957344/The_Troubles_of_Free_Speech_Theory)
• Scanlon, Thomas. “A theory of freedom of expression.” Philosophy & Public Affairs (1972): 204-226. (http://philosophyfaculty.ucsd.edu/faculty/rarneson/Courses/SCANLONfreeexpression.pdf)
• Van Mill, David, “Freedom of Speech”, The Stanford Encyclopedia of Philosophy (Winter 2012 Edition), Edward N. Zalta (ed.), (http://plato.stanford.edu/archives/win2012/entries/freedom-speech )