The irony of Subramanian Swamy’s newest challenge to India’s hate speech and blasphemy laws is lost on many of his supporters. The same laws were used to prosecute Wendy Doniger and harass Maqbool F Hussain, as well as Shirin Dalvi and others who published images depicting the Prophet Muhammad.

Free speech in India is messily contested. But amidst its history lie clues to its future.

When William Jones, the brilliant polyglot who founded the Asiatic Society, arrived in India in the late eighteenth-century, he found colonial governance hampered by the lack of a codified, prescriptive, and uniform system of law.

Mindful of the entrenchment of existing laws in India, the first British colonisers resolved to leave them unmolested. “The laws of the natives must be preserved inviolate”, declared Jones, who learned Sanskrit, Persian, and Arabic to supervise the creation of an authoritative digest of local laws. But Jones was not convinced of the pedigree of Indian laws, he was certain that English law was superior.

At that time, modernity had created the notion of the sovereignty of law (as opposed to the will of the sovereign) and the individual rights and freedoms of subjects. For Jones that was unsuited to India since “even a system of liberty, forced upon a people invincibly attached to [the] opposite, would be a system of tyranny”.

So a dual system of law was born. English law governed all Europeans while ‘Indian law’, a colonial pastiche of prevalent Hindu and Islamic principles, governed the natives.

This dichotomy bred tension between the two which continues to inform free speech in India today. The colonisers viewed the natives and their law as intractably pre-modern, ill-suited to rationality, and prone to fanaticism. This was shared by Thomas Macaulay who, while drafting the Indian Penal Code (IPC), warned: “There is perhaps no other country in which the Government has so much to apprehend from religious excitement among the people.”

The concerns of the community

While the IPC represents the hegemonising triumph of colonial modernity over native law, Macaulay deliberately failed to import the principles of freedom of expression and individual sovereignty to protect individuals from community morals and state powers. As a result, the IPC incorporated a wide selection of community-interest and public-order offences including unlawful assembly, wanton provocation, public nuisance, obscenity, disturbing a religious assembly, and wounding religious feelings. At the same time, it also punished private offences including causing insult, annoyance, and intimidation.

These crimes continue to form the backbone of India’s current apparatus of censorship.

However, native sensibilities were not soothed. Increasing incidents of violence prompted an amendment of the IPC in 1898 to introduce in section 153A the new crime of promoting enmity between communities, a peculiarly Indian formulation with a lower threshold than hate speech.

Interestingly, Macaulay did not criminalise blasphemy. In 1927, a Hindu publisher circulated a pamphlet about the Prophet Muhammad titled Rangeela Rasool, for which he was tried but acquitted in the absence of a specific blasphemy offence. Freed, he was soon stabbed to death by a young Muslim man who had taken offence.

Instead of defending its law and courts from this type of legal insurgency, the colonial state surrendered to the threat of native vigilantism and amended the IPC again in 1927 to enact a blasphemy provision in section 295A. The introduction of these two new open-ended crimes regarding inter-community enmity and blasphemy, in addition to the IPC’s pre-existing restrictions, signalled the dismantling of the right to offend in India.

The capitulation of law and the state to the irrational violence of the pre-modern and illiberal native marks a narrative that began in colonial India and still flourishes today. Within this narrative, the Rangeela Rasool affair is significant for demonstrating the state’s readiness to overturn its courts and suppress free speech when faced with community protest.

The state speaks

But free speech does not only suffer at the hands of the community, it is also forfeit to the state. Curiously, the original IPC did not criminalise sedition although Macaulay’s earlier draft contained such a provision. In 1870, James Fitzjames Stephen remedied this “unaccountable mistake” by inserting section 124A to criminalise seditious libel. Sedition was twice used to silence Bal Gangadhar Tilak, and once forced the arrest of Mohandas Gandhi. Far from being discredited, sedition has enjoyed a recent resurgence against cartoonists, doctors, and writers.

When colonisers are heavily outnumbered, the imperative of colonial law is control. This is why the IPC and other colonial law contained several restrictive public-order provisions. At independence in 1947, many expected India’s laws to be cleansed of the strictures that imprisoned its freedom fighters and impeded free speech. But the newborn Indian state, free but precarious, was quick to deploy the apparatus of colonial censorship it inherited.

Although the Constitution did not permit censorship in the interest of public order, two laws from Delhi and Madras did exactly that. When challenged, the Supreme Court struck down both to uphold potentially disruptive speech. But Jawaharlal Nehru and Vallabhbhai Patel added the First Amendment to the Constitution which introduced three new grounds of censorship including public order, which has survived undefined ever since. Again, the courts were overturned in the face of violence to restrict free speech.

Nehru did not stop at expanding the legal grounds of censorship, he was equally concerned with moulding public discourse by privileging certain forms of speech. He appointed the First Press Commission which called on the press to participate in nation-building, an effort to co-opt dissent and privilege the interests of the state. In the 1970s, Indira Gandhi stretched this argument to demand a committed press on pain of imprisonment.

A more frontal engagement with the press was made by the Second Press Commission, reconstituted after Indira Gandhi’s return in 1980, which proposed creating an inspector of newspapers, deterring press criticism of government officials, and retaining official secrecy. Rajiv Gandhi’s anti-defamation bill, which would have muzzled democratic questioning of political leaders, should be seen in this light.

Rajeev Dhavan notes that censorship need not be confined to the written content of publications. Press regulation has existed since Richard Wellesley instituted a pre-censorship system in 1799, marked by the licensing of all publications, prior restraint on speech, subsequent censorship, and harsh penalties for editors and writers. A diluted colonial-era law for the registration of books and news media remains in force today, reminding us of the state’s continued power to control the publication of free speech in addition to its content.

New perils

The only thing consistent about free speech in India is that it has been imperilled by the interests of the community and the state, an encounter from which it has yet to emerge. Experience teaches us that strong governments endanger free speech. Today, the inchoate claims of the community have gained currency, and they threaten to ally with the considerable censorial power of the Indian state and the strongest government since 1984 to seriously undermine free speech.

In this light, Swamy’s oddly inconsistent petition is welcome, but should be swiftly joined by other non-political free speech proponents to present the Supreme Court with a diversity of intellectual views.



Bhairav Acharya is a constitutional lawyer

Twitter: @notacoda