[Column] 'Article 19(1) (a) Is Antithetical to Intolerance' by Navroz Seervai

It would be useful to start a consideration of this subject by clarifying some basic meanings and concepts. To know the meaning of Freedom, as understood in Article 19(1) (a), we must turn to the meaning of the word "free". The Concise Oxford Dictionary defines "free" as under:

1. "Not in bondage to or under the control of another; having personal rights and social and political liberty"
2. "(Of a state, or its citizens or institution) subject neither to foreign domination nor to despotic government; having national and civil liberty (a free press, a free society)"
3. "Unrestricted, unimpeded, not restricted or fixed"

And, "freedom" is defined as the condition of being free or unrestricted.

"Personal or civil liberty": Conceptually the concept of freedom has both a positive and negative context. On the one hand, the definitions employ words like "not" and "neither…nor". Equally we find the use of the word "having", as in "having personal rights and civil liberty" and "having national and civil liberty"- a free press and a free society.

Keeping these meanings in mind, I pose three questions and raise certain conceptual issues regarding the scope and content of Article 19(1) (a) and the present day threats to this right:

I. What does Article 19(1) (a) recognize as being fundamental, and why?

II. Where lies the danger to this constitutionally recognized Fundamental Right? How many "Trojan Horses" must it fend off, if it is to remain meaningful? As elaborated later, I believe that the right guaranteed under Article 19(1) (a) is in grave peril, and faces a serious threat from various sources.

III. Given the very disturbing trend of threats and attacks on the freedom of speech and expression emanating from the Government in Delhi; and the Supreme Court having seemingly abandoned it's Constitutional role as the "sentinel on the qui vive", to use the felicitous language of Chief Justice Patanjali Sastri in State of Madras vs. V.G. Rao, ought those who framed our Constitution to have embodied the 1st Amendment to the United States Constitution as our Article 19(1) (a)? In other words should our Constitution have contained an absolute and unrestricted right to free speech and expression?

Turning to the first question, I think it is useful to start by quoting the relevant part of the 1st Amendment to the United States Constitution:

"Congress shall make no law…abridging the freedom of speech, or of the press."

It is important to recognize at the outset, no right is given or conferred by Congress. There is an interdict placed on Congress; and the right is recognized as absolute or unrestricted. What does that tell us of the content of this right, conceptually and as a matter of jurisprudence? To me, it harks back to the philosophical doctrine of "Natural Rights" which inhere in a human being because he/she is human. It is, in this sense, fundamental. The ancient Greeks recognized these Natural Rights, none more eloquently then Sophocles in the great soliloquy of Antigone:

"Yea, for these laws were not ordained of Zeus,
And she who sits enthroned with gods below,
Justice, enacted not these human laws.
Nor did I deem that thou, a mortal man,
Could'st by a breath annul and override
The immutable unwritten laws of Heaven.
They were not born today nor yesterday;
They die not; and none knoweth whence they sprang."

In the modern world the most famous proponents of this philosophy were the French philosophers Rousseau and Voltaire; and in England, it was John Locke. Rousseau's famous aphorism: "Man is born free, but everywhere he is in chains" is both an assertion of the theory of Natural Rights and the recognition that the State as the oppressor, tries to deprive Man of those rights with which he/she is born, and which inherently makes them human and therefore free.

Ranged against this theory, is the Positivist Theory of State given rights. In 1651 Thomas Hobbes' great book, whose full title tells the reader at the outset where Hobbes stood in this debate, was published. It was titled: "Leviathan: Or the Matter, Form and Power of a Commonwealth, Ecclesiastical and Civil"; and in it he wrote a sentence so famous that it is often quoted, without context. Hobbes wrote that the life of man outside society would be "solitary, poor, nasty, brutish and short". And what was the suggested solution? The solution was, significantly, to put some powerful individual or Parliament in charge. The individual in the state of nature would have to enter into a "social contract"– an agreement to give up some of their dangerous freedoms for the sake of safety. The Leviathan was published in the second year of Oliver Cromwell's rule as Lord Protector—in effect the dictator of England– and two years after the execution of King Charles I .

The significance of, and terrible danger in, accepting this theory of State given rights, so beloved to tyrants as well as dictators of the Right and Left, and to Hegel's "Strong Man", is that the individual can be entirely stripped of all rights– free speech, thought, expression and belief, and indeed of life itself. The former Attorney General for India, Niren De, in the infamous "ADM Jabalpur" case solemnly made these submissions on behalf of a dictatorial regime. To the everlasting shame of the Supreme Court, four out of five judges accepted this argument.

Attractive as the various theories propounded by modern day Positivists are at first blush, ('The Concept of Law' by H.L.A Hart being a good example), I believe there is a great threat to freedom, liberty and to civil and human rights, in accepting this seemingly attractive theory– for when translated into practice it can, and often does, lead to an authoritarian government, masquerading in the guise of a democracy; or worse, straight to Hitler, Mussolini and Franco on the one hand, and Lenin, Stalin and Mao on the other. History tells us where these men led their countries, and indeed the world at large, in the bloodiest century in history– the 20th century.

To revert to Article 19 (1) (a), it is to be noticed that our Constitution does not "grant", "give" or "confer" this (natural) human right. It merely recognizes it as fundamental, in all its manifestations. Significantly, the Preamble uses the phrase "to secure to all its citizens… "LIBERTY of thought, expression, belief, faith, and worship". And equally importantly the Preamble nowhere mentions the State or Government. It says: "We the People…" I would contend that this is a clear recognition that these are basic human rights with which all human beings are born; and that the Constitution recognizes this, and secures these rights, including liberty of thought and expression. It is not a right given by the Constitution, let alone the State. Citizens of the country have always had this right, and the Constitution merely recognizes it, and secures it to all its citizens.

The great importance of Article 19(1) (a) and the strict interpretation of the enumerated restrictions contained in Article 19(2), have been the subject of several great judgements of our Supreme Court, beginning with Romesh Thappar vs. State of Madras in 1950. This article does not attempt to enlist the numerous judgments delivered by the Supreme Court over the past 70 years, nor to discuss or comment on them. They can and must be read and digested by all students of the law, practicing advocates, as well as conscious citizens, who wish to know of their rights, and protect them against an overbearing, authoritarian executive. If however I were to mention only one judgment on the subject as a locus classicus, it would be to the judgment in Sakal Papers. It is probably the clearest and most pithy exposition of the principles governing Article 19(1) (a) read with Article 19 (2). But if I were to quote from only one judgement on the fundamental, over-riding importance of Article 19 (including 19(1) (a)) it is Chief Justice Chandrachud's landmark judgment in Minerva Mills vs. Union of India.

Minerva Mills dealt with a challenge to the infamous 42nd Amendment, effected during the Emergency. It amended Article 31C, as originally enacted by the 25th Amendment, an amendment which had been upheld in Keshavananda Bharati, except for the last clause of Article 31C, which sought to prevent judicial review and scrutiny of a law under Articles 14 and 19, if that law declared it to be in furtherance of Articles 39 (b) and (c). The 42nd Amendment extended this exclusion of a challenge under Articles 14 and 19 to all the Directive Principles in Part IV. While striking down amended Article 31C, Chief Justice Chandrachud, speaking for four out of the five judges on the bench (P.N. Bhagwati J. dissenting) in felicitous language said :

"Three articles of our Constitution, and only three, stand between the heaven of freedom which Tagore wanted his country to awake and the abyss of unrestrained power. They are Articles 14, 19 and 21. Article 31C has removed two sides of that golden triangle which affords to the people of this Country an assurance that the promise held forth by the Preamble will be performed by ushering an egalitarian era through the discipline of fundamental rights, that is, without emasculation of the rights to liberty and equality, which alone can preserve the dignity of the individual."

So, Article 19(1)(a) recognizes the right to freedom of speech and expression as fundamental. Through a catena of judicial pronouncements, many of which are landmarks in the law, celebrated as a resounding affirmation of this right as a cherished fundamental right, Article 19 (1) (a) has been held to include freedom of the press, the electronic media, commercial free speech, artistic expression, and the prohibition of prior restraint. Negatively it is a restraint on the State. Only eight restrictions, which have to be both in the public interest and reasonable can be imposed by law i.e. legislation, and not executive action. Significantly, and this has repeatedly been judicially noted, "public interest" is not one of the restrictions. Interestingly, the positive manifestation of this right also includes its negative qua the citizen. The right to freedom of speech and expression includes the right not to speak or express oneself.

Before I turn to questions two and three, I must deal with one facet of free speech. Freedom of speech does not mean freedom only for that which people want to or like to hear! And that is the great philosophical and legal paradox of free speech. For it entails, as it must, the freedom to speak that which others don't like, or don't agree with, or even find odious, obnoxious and hateful. Without this, freedom of speech is meaningless- a right writ in water! The most famous, though by no means the greatest, exposition of this vital aspect of free speech is ascribed to Voltaire, by Evelyn Beatrice Hall in "The Friends of Voltaire": "I disapprove of what you say, but I will defend to the death your right to say it."

In short, Article 19(1) (a) is antithetical to intolerance. Free speech, thought and expression flourishes only in an open, tolerant society. That is why those inimical to this right, be it the government, or intolerant or motivated goons and trolls who go around intimidating persons into silence, first attack the institutions which permit free speech to flourish. Their targets are the press, electronic media, educational institutions and cultural or artistic institutions. We have seen this throughout history. The Roman Catholic Church banned books which were put on the Index. Incidentally, once a book was placed on the Index and thus banned, more people read that book than if it had not been banned and put on the Index.

This article does not attempt to analyze in any detail this principle of tolerance. The issue is many–layered and nuanced. To give but one example, the law in Germany which prohibits 'Holocaust Denial' and makes it a crime to assert that the Holocaust never took place, and is merely a myth, is clearly a valid restraint on the principle of tolerance, given Germany's tragic and terrible history from 1933 to 1945 under Hitler and the Nazis.

A few years ago the second question could have been easily answered. Not so today. The enlightened leaders and members of our Constituent Assembly, who between 1946 and November 1949 drafted and crafted our Constitution, were men and women of vision who believed in freedom and democracy. They knew that the greatest threat to our Fundamental Rights, especially those contained in Articles 14, 19, 21, 25, 26, 29 and 30 would come from the State itself –from political parties in power, both at the Centre and in the States. They created what they believed would be an independent, fearless, incorruptible hierarchy of Judges in the High Courts and Supreme Court. And they made these judges the trustees of our Constitution, especially of Part III. They were to be its guardians and the final arbiter between the State and its citizens—the "sentinel on the qui vive" to which Patanjali Sastri alluded way back in 1952.

The initial attacks on free speech, thought and expression as expected, came from the State. Romesh Thappar, Brij Bhushan, the Indian Express cases of 1958, 1985 and 1986, Sakal Papers, Bennett Coleman and Co. to only mention a few, all showed that freedom of speech was under attack from the State. For 60 years and more, judges of the High Courts and the Supreme Court consistently upheld that right– often in glorious language, often resoundingly and emphatically. The one aberration of course was the shameless conduct of the Supreme Court (with noble and notable exceptions) during the Emergency of 1975-77.

Today, and for the past several years there is another more insidious threat and peril to free speech, thought expression and belief —a threat from a Trojan horse. It is a threat from within, not from without. Regrettably, the institutions of free thought, speech and expression, have by and large buckled– self-censorship and self-imposed prior restraint are the norm. Again, some of the judgments and orders of the Supreme Court in the past few years have left much to be desired. I believe that today one of the greatest threats to Article 19 (1) (a) comes not from the Government (for that was always expected) but from a corrupt, pliant and venal press—witness, only by way of a recent example, the brazen self-censorship by the Hindustan Times of Ramchandra Guha's article denouncing the grandiose plans, which effectively destroy Luytens Delhi and it's glorious heritage and architecture, in the guise of beautifying it.

But there is an even more dangerous threat to freedom of speech and the press. It is exemplified in the recent Order passed by the Supreme Court in a matter where the Central Government bared its teeth– by asking the Court to pass an order directing that all Covid-19 relate news be approved by the Government before being published. Shades of George Orwell's 1984; or worse, Stalinist pre-censorship! Mercifully, the Court refused this incredible and impudent request from the executive. But, quite unnecessarily, the Court opined on "fake news" emanating from the media and berated the media for this. No examples of "fake news" were forthcoming from the Government for this allegation; none was sought by the Court. On the mere assertion of the government, the press and the electronic media were berated by the Court. The alleged fake news, namely that the lockdown may last more than three months, with hindsight doesn't seem so far off from the reality— a lockdown that lasted well over two months. One wonders what the Court has to say, now that the so-called "fake news" turned out to be pretty accurate. Ironically, the falsehood about no migrants walking on the roads – "fake news" if ever there was any– was uttered by the Government. Surely the Court knew that the greatest and most consistent purveyor of fake news is not the press and electronic media, but the Government itself. Yet another recent example of a disturbing and distressing judgement is that in the J&K internet case. An entire state deprived of the means of communication; to exercise the fundamental right of free speech and expression. But no relief was granted to the petitioners, though the matter cried out for relief under Article 19(1)(a). Instead what we got was a long academic disquisition on the importance of freedom of speech.

We have, alas, travelled far down the road, from Romesh Thappar, Sakal Papers, Bennet Coleman, the three Indian Express judgments and Minerva Mills to the Order passed in the context of COVID-19 and the press; and the Order passed in the J&K internet case. Well may we echo Mark Anthony: "Oh what a fall was that my countrymen." And these Orders are not outliers. Order after order over the past few years has emanated from the Supreme Court which tends to undermine the cherished fundamental right under Article 19(1)(a). Maybe we can usefully turn to the ancients once more, to sum this up. The Roman poet Juvenal in his "Satires" posed the pertinent question: "Quis custodiet ipsos custodes?"- "Who will guard the guards themselves?"

I now turn to question three. Should we have adopted the 1st Amendment as our Article 19(1) (a)? In posing this question, I realize that it is a purely theoretical and abstract question. But it makes for stimulating and lively debate. Having given thought to it, first as a student of political science and philosophy; and also as a lawyer who during 39 years of practice has had a fair number of case dealing with issues under Article 19(1) (a) , my position on this issue is that I am against censorship in all its forms. I detest the "Nanny State" of which Singapore is a prime example. I believe that in a genuinely liberal, free, democratic country, the State must trust to the better judgement of the vast majority its citizens– knowing that freedom and liberty can, and will, always be abused by a minority. Better such abuse, but a society in which free speech thought and expression flourishes, than that it be abused by the executive or legislatures, with no recourse to the courts of law. History is replete with what fate a society suffers when the "Nanny State", not to mention totalitarian regimes, decide for the people what can and cannot be spoken or written. To those who would say that you cannot trust the people, and that it is better to leave it to the wisdom of the government, I would remind them of the terrifying lines of the German essayist and poet Heinrich Heine: "Wherever they burn books, in the end will also burn human beings."

America has proved this theory of unfettered free speech, accepting it's abuse by an irresponsible minority, to be workable in a free democratic and liberal State, with a free press and an independent judiciary not in hock to the executive —and it has done so over the past two hundred and thirty years. Even in America, there is no absolute right to free speech. There are minimal restraints which are judicially recognized. Child pornography is one subject on which the right to free speech and expression has been judicially proscribed. Outright incitement to secession, revolt and violence leading to criminal activity is another such subject where the assertion to unfettered free speech is prohibited. In Germany, Holocaust Denial is banned. Thus we see that a country can either by judicial precedent, or legislation, either due to its past history, or because the subject matter so requires, exclude a subject from the absolute and unfettered right of freedom of speech. Dr. Benes, the President of Czechoslovakia, in his brilliant autobiography, "On Democracy", wrote that in the 1930s the newly created democratic countries of Europe, made the mistake of giving freedom of speech and action to those whose avowed political aims and objectives was to destroy democracy. With these few well defined and well circumscribed exceptions, I do believe that the 1st Amendment as an alternative, increasingly seems an attractive proposition for the country, considering the concerted attacks on the right to free speech and a free press by an authoritarian and overbearing executive.

When Dr. Benjamin Franklin emerged from Independence Hall in Philadelphia after the Constitutional Convention in 1787, Elizabeth Powel, wife of the mayor of Philadelphia, is supposed to have shouted out, "Doctor, what have we got? A republic or a monarchy?" Franklin, ominously replied, "A republic, if you can keep it."

In the context of 19(1) (a), indeed Part III of our Constitution as a whole, it is a quote, with suitable variations, of which it is well worth reminding our judges of the Supreme Court.

(Navroz H. Seervai is a Senior Advocate based in Mumbai. He has been a lawyer for 40 years, and active in the fields of environment and civil liberties.)

(Adapted from a Webinar Talk Given on 24.4.2020 )

This article was first published in lawanthology.com . You can read the original article here

Copyright @Navroz Seervai

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