Had The Constitution Specified A Right To Free Press, Prior Restraints On It Could Have Become Impossible, Says Author And Advocate, Abhinav Chandrachud

Abhinav Chandrachud’s latest book, Republic of Rhetoric: Free Speech and the Constitution of India, has received rave reviews for its in-depth examination of the subject from both historical and contemporary perspectives. An accomplished scholar, Abhinav now practices law as an advocate in the Bombay High Court. LIVE LAW caught up with him, amidst his busy schedule, to answer a few questions on the book as well as related issues, via email.

Excerpts:

LIVE LAW: Why, according to you, did the framers not consider it necessary to ensure a special place for freedom of the press in the Constitution?

ABHINAV CHANDRACHUD: The framers of our Constitution believed that the freedom of the press was already covered by the right to freedom of “expression” under Article 19(1)(a), and that a separate right to a free press was not required to be specifically enumerated. I found this interesting because nationalist leaders like Tilak and Gandhi had newspapers in the colonial era and were prosecuted for their writings. The Supreme Court has held that prior restraints can be imposed on the press, so long as they are within the exceptions to the right to free speech under Article 19(2). I wonder if prior restraints could be imposed on the press in independent India if the Constitution had specified a right to a free press.

LIVE LAW: You mention that the decision to give right to free speech only to citizens was perhaps taken because members of the Sub-Committee believed that non-citizens could not be trusted with the right to free speech because they would not necessarily have had India’s best interests at heart. As you recall the contribution of Annie Besant and B.G.Horniman, did the framers consider them as exceptions?

ABHINAV CHANDRACHUD: It is true that Britons like Annie Besant and B.G. Horniman spoke out against the colonial regime and in favor of Indian independence in British India. I therefore found it interesting that the right to free speech, like all the freedoms contained under Article 19, were only given to citizens. However, today, there is a great concern in the U.S. about Russian propaganda and fake news on social media having influenced the outcome of the U.S. presidential elections of 2016. I wonder if, on balance, the framers did not want foreigners to influence public opinion in India, or for foreign propaganda to influence the outcome of elections in India. At the same time, in today’s post-Gopalan India, I wonder whether a foreigner’s right to free speech would now be included in the right to “personal liberty” under Article 21 of the Constitution.

LIVE LAW: How important is the right to free speech for artificial persons, who cannot be citizens? Why did Parliament not amend the Constitution to remedy this aberration and the one denying free speech to non-citizens?

ABHINAV CHANDRACHUD: Most newspapers today would be run by companies in order to take advantage of limited liability. After all, newspapers can be sued for defamation, and limited liability is useful if a decree of Rs. 100 crores is issued against a newspaper for defamation. However, while the right to free speech is only given by the Constitution to citizens (and therefore not artificial persons like companies), the Supreme Court has repeatedly held that companies can enforce rights to free speech through their shareholders/editors who may be citizens.

LIVE LAW: You refer to the transformation of K.M.Munshi, a Constituent Assembly member, from being a proponent of limitations on free speech to his later liberal outlook. Can you throw light on what led to his transformation?

ABHINAV CHANDRACHUD: This is a great subject for further research. Perhaps Munshi strongly believed in the right to free speech on account of how India’s nationalist leaders were treated for writing against the colonial government. Granville Austin thought that Munshi was an opponent of the fundamental rights, but this certainly wasn’t true of the right to free speech. As a lawyer, Munshi also thereafter appeared for the petitioners in some of the early cases on the right to free speech which came up before the Supreme Court.

LIVE LAW: In p.75, you refer to Justice Fazal Ali as the sole Muslim Judge on the bench of the Supreme Court. In subsequent years of the Court’s history, journalists and observers don’t refer to Judges by their religion. Was this a phenomenon generally associated with the immediate post-independent period?

ABHINAV CHANDRACHUD: Justice Fazl Ali was one of the greatest dissenters that the Supreme Court of India has ever produced, and many of his dissents subsequently became the law in India. He dissented in the early Romesh Thapar and Brij Bhushan cases decided by the Supreme Court and held that even a communal riot could affect the “security of the state”. His view was vindicated when the Constitution was amended in 1951 and the words “public order” were inserted into Article 19(2). It would certainly be wrong to reduce the identity of a man of the stature of Justice Fazl Ali simply to his religion. However, Prof. Gadbois has written that Justice Fazl Ali occupied the “Muslim seat” on the Supreme Court of India. In colonial India, one seat on the Federal Court was reserved for a Muslim judge. This continued in independent India as well. Justice Fazl Ali’s dissent in the Romesh Thapar and Brij Bhushan cases perhaps gave voice to the insecurity of religious minorities in an era of communal rioting in post-Partition India.

LIVE LAW: You refer to the chilling passage in Justice Sarjoo Prasad’s judgment in Shaila Bala Devi as the precipitating factor for the First Amendment, which imposed restrictions on the right to free speech. Could you give more details about this Judge and the judgment. Was the judgment correct in your view, as the Constitution stood before the First Amendment?

ABHINAV CHANDRACHUD: In Bharati Press v. Chief Secretary, AIR 1951 Pat 12, Justice Sarjoo Prasad of the Patna High Court held that “if a person were to go on inciting murder or other cognizable offences either through the press or by word of mouth, he would be free to do so with impunity” as “he would claim the privilege of exercising his fundamental right of freedom of speech and expression”. This chilling passage was almost single handedly responsible for the first amendment to the Constitution in 1951, which inserted words like “public order” and “incitement to an offence” as exceptions to the right to free speech. Later, when this case came to the Supreme Court, Justice Mahajan said that Prasad’s judgment revealed “a complete lack of understanding of the precise scope” of the Romesh Thapar and Brij Bhushan decisions. Prasad interpreted the pre-1951 Constitution a little too literally. Interestingly, he was not really penalized for his judgment in the Bharati Press case. He was made the Chief Justice of the Rajasthan High Court in 1959.

LIVE LAW: What made leaders misjudge that people would be easily misled in the context of First Amendment?

ABHINAV CHANDRACHUD: The British justified their rule over India by arguing that Britons were superior to Indians. They believed that Indian men were effeminate, that Indians were illiterate and were not ready to govern themselves. What’s interesting is that these arguments continued to be made in independent India. At the time of the first amendment in 1951, a member of India’s provisional Parliament, Reverend D’Souza, said that Indians were more receptive to incitement than Englishmen. “[W]e must not…forget the phlegmatic English character is not [as] easily ruffled and does not respond to incitement”, he said. Even Pandit Thakur Das Bhargava, who was instrumental in introducing the word “reasonable” into the restrictions on the freedoms contained in Article 19, said that India’s population was “ignorant and illiterate” and that in India, “it is very easy to mislead our people as they are apt to believe readily whatever appears in print.”

LIVE LAW: You observe in p.107 that criticism of territorial boundary of India cannot be considered as undermining sovereignty or integrity. You meant academic criticism here? Or can one say that Constitution guarantees right to criticise even accession of an Indian State to India?

ABHINAV CHANDRACHUD: Under the Criminal Law Amendment Act, 1961 (as amended in 1990), it is an offence to question the territorial integrity of the frontiers of India in a manner which is or is likely to be prejudicial to the interests of the safety or security of India. It is also an offence under that Act to merely publish a map of India “which is not in conformity with the maps of India as published by the survey of India”. Justice Nariman has recently held in Shreya Singhal’s case that mere advocacy of a viewpoint, however abhorrent, is not barred, and it is only when a person incites the commission of an offence that his speech must be prohibited. One wonders whether the 1961 Act satisfies Justice Nariman’s advocacy-incitement test. If a magazine, say, the Economist, were to merely publish the de facto line of control along India’s borders, that might fall foul of the 1961 Act, though no incitement would thereby be said to have taken place.

LIVE LAW: What makes you say that Hicklin test has not been abandoned in its entirety?

ABHINAV CHANDRACHUD: The Hicklin test, popularly understood, came to stand for two propositions: (i) Firstly, whether a work is obscene can be determined on the basis of isolated passages and not the work as a whole. In other words, one single erotic page in a book of four hundred pages could, under the Hicklin test, render the entire book obscene. (ii) Secondly, whether something was obscene or not was to be determined from the point of view of the most perverted or hypersensitive adult or the most immature adolescent, and not the reasonable person. Understood in this manner, the Hicklist test no longer stands in India. Both these tests have been abandoned by the Supreme Court of India. However, Chief Justice Cockburn in R v. Hicklin also developed other formulations, e.g., contemporary books could not be looked at in order to determine whether something was obscene. In Devidas Tulzapurkar’s case, the Supreme Court recently held that contemporary books could not be looked at to judge whether something was obscene – an endorsement of Cockburn’s formulation in Hicklin. Therefore, it would not be entirely correct to say that Hicklin has been fully rejected by the Supreme Court of India.

LIVE LAW: In P.152, you observe that pornography challenges conventional patriarchal hierarchy, because it portrays women as beings who enjoy sexual intercourse, for reasons other than reproduction. Are you in favour of decriminalising pornography, except for the child pornography? Many are concerned about the unrestricted online access to adult pornography as well. The Supreme Court has given a slew of directions in the sex videos case, for example.

ABHINAV CHANDRACHUD: The test of obscenity which has been adopted by the Supreme Court in numerous cases is that a work will be considered obscene if its sole purpose is to sexually arouse the viewer or reader. My book argues that this test is problematic for several reasons. Firstly, as Justice Harlan wrote, “one man’s vulgarity is another’s lyric”. Justice Hidayatullah found no argument worth protecting in the book Lady Chatterley’s Lover, but Justice Stewart of the U.S. Supreme Court found that the book made the argument that “adultery under certain circumstances may be proper behaviour”. It’s hard to tell whether something is purely designed to excite lust. Secondly, the book asks the question: what’s wrong if something is purely designed to sexually arouse the reader or viewer? As Justice Stable said, without sex, “the human race would have ceased to exist thousands of years ago”. Of course, there are some serious concerns with pornography. The most important of these is that no person should be harmed in the making of a pornographic film. That obviously means that child pornography is barred. “Revenge porn”, which is filmed or broadcast without the consent of a participant or participants, is barred. Films showing women who are being raped are obviously barred.

LIVE LAW: On the book bans, while the SC has refused to ban Kancha Ilaiah’s book, it was reluctant to vacate the ban on Mate Mahadevi’s book recently. Do you think these two decisions are distinguishable by facts?

ABHINAV CHANDRACHUD: The Supreme Court has, by and large, rejected the idea of the “heckler’s veto”. The great Justice Krishna Iyer had held, in Lalai Singh Yadav’s case, that speech and expression could not be judged from the standpoint of “a few fanatics [who] hold obdurate views”. However, in recent years, speech or expression involving religion has been treated with kid-gloves by the Supreme Court. This happened in Baragur Ramachandrappa’s case, where the Surpeme Court upheld the Karnataka government’s ban on a book which possibly offended the sentiments of members of the Veerashaiva sect. The court held that “India is a country with huge diversities in language and religion and the weaker amongst them must be shown extra care and consideration.” For this reason, I have my doubts that a play akin to The Book of Mormon, dealing with any religion practiced in India, can ever be shown in India. The history of the enactment of Section 295-A of the IPC goes back to colonial Lahore and has been discussed in my book. However, I believe that in Mate Mahadevi’s case, the Supreme Court merely dismissed an SLP through a non-speaking order, which means that the judgment of the Karnataka High Court has not merged into the order of the Supreme Court.

LIVE LAW: In the chapter on contempt of court, don’t you think you could have also mentioned Hans Dembowski and how the Calcutta High Court’s contempt case against his publishers, virtually banned the circulation of his book.

ABHINAV CHANDRACHUD: My book primarily relies on judgments of the Supreme Court due to constraints of space, but there are several examples of free speech cases at the High Courts as well. Dembowski’s case presents a good example which supports the argument made in the book, that we need to start debating whether contempt in the form of scandalizing the court should now be restricted to only those cases which undermine the day to day dignity and decorum of the court (i.e., contempts which occur “in the face of the court”) and to contempts which incite people to disobey court orders. In other words, the law of contempt in the form of scandalizing the court should now satisfy Justice Nariman’s advocacy-incitement formulation in Shreya Singhal’s case.