In 1929, Mahatma Gandhi called for a countrywide agitation demanding the repeal of Section 124A.

WikiCommons/ gandhiserve.org
Features Books Friday, September 16, 2016 - 18:21

By Ramachandra Guha

‘In my humble opinion,’ wrote Gandhi, ‘every man has a right to hold any opinion he chooses, and to give effect to it also, so long as, in doing so, he does not use physical violence against anybody.’

*****

This caveat in place, let me now analyse what I regard as the eight major threats to freedom of expression in contemporary India. The first threat is the retention of archaic colonial laws. There are several sections in the Indian Penal Code (IPC) that are widely used (and abused) to ban works of art, films, and books. These include Section 153 (‘wantonly giving provocation with intent to cause riot’); Section 153A (‘promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony’); Section 295 (‘injuring or defiling [a] place of worship with intent to insult the religion of any class’); Section 295A (‘deliberate and malicious acts, intended to outrage the religious feelings of any class by insulting its religion or religious beliefs’); Section 298 (‘uttering words, etc., with deliberate intent to wound the religious feelings of any person’); Sections 499 and 500, which make defamation or harming another person’s ‘reputation’ a criminal offence; Section 505 (‘statements conducing to public mischief’); and most dangerously, Section 124A, the so-called sedition clause (‘whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India, shall be punished with imprisonment for life’).

These sections give the courts and the state itself an extraordinarily wide latitude in placing limits to the freedom of expression. Ironically, the penal code of which these sections are a part was originally drafted by Thomas Babington Macaulay. Macaulay was also the man who promoted English-language education in India. Left-wing patriots dislike Macaulay because he was an imperialist, while right-wing patriots detest him because, while promoting English, he brimmed with contempt for indigenous intellectual and literary traditions. Hindutva ideologues have even coined a phrase, ‘Macaulay putra’, to describe those intellectuals, cosmopolitan from one vantage point if deracinated from another, who write largely in English and are open to western ideas and influences.

Thomas Babington Macaulay by Claudel (Image courtesy: WikiCommons/The Works of Lord Macaulay. Albany edition …, by Macaulay, Thomas Babington)  

The Indian Left and the Indian Right both profess to dislike Thomas Babington Macaulay. And yet the penal code drafted by Macaulay has been enthusiastically used by the Communist Party of India (Marxist) (CPI[M]) and the Bharatiya Janata Party to suppress freedom of expression when these parties are in power in the states, and, in the case of the BJP, when in power in the Centre as well.

These IPC sections have, of course, been extensively resorted to by governments run by the Congress party too. The Congress claims to revere Mahatma Gandhi; and Gandhi was a lifelong Congressman himself. One should remind the Congress of Sonia and Rahul Gandhi that the asli or greater Gandhi was himself often a victim of the sedition clause in the IPC. I’ve spoken of how his book Hind Swaraj was banned in 1910. Twelve years later, after he had returned to India, Gandhi was arrested after the non-cooperation movement he had initiated generated massive popular support. This unnerved the British, who decided to prosecute and imprison Gandhi, basing their case on articles he had published in his journal Young India, these deemed ‘seditious’ under Section 124A of the IPC.

Gandhi was not the first (nor would he be the last) nationalist prosecuted and jailed by the British Raj for writing articles critical of state policy. Gandhi hoped that these laws, which had no space in a democratic and free government, would be removed after Independence. In 1929, he wrote a stirring editorial in Young India calling for a countrywide agitation demanding the repeal of Section 124A. The section, said Gandhi, constituted ‘a rape of the word “law”’; it ‘hung over our heads’ whether ‘we are feasting or fasting’. Section 124A was ‘established by the naked sword, kept ready to descend upon us at the will of the arbitrary rulers in whose appointment the people have no say’. The ‘repeal of that Section and the like,’ remarked Gandhi, ‘means repeal of the existing system of government which means attainment of swaraj. Therefore the force required really to repeal that Section is the force required for the attainment of swaraj.’

Tragically, after India became independent in August 1947, instead of doing away with Section 124A and the like, we have retained and even strengthened them. This may have happened in any case, as many states like laws that give them residual powers to suppress dissent. But two events soon after Independence added to the insecurities of the Indian state. The first was the murder of Gandhi on 30 January 1948 by a fanatic acting ostensibly on his own, but in fact part of a wider political movement to make India a Hindu Pakistan. Six weeks later, at a secret conclave in Calcutta, the Communist Party of India (CPI) called for an armed war against the Indian state. Thus, the newly-born government of free India was threatened by right-wing extremism as well as by left-wing extremism. Adding to the worries was scarcity of food, the challenge of settling millions of Partition refugees, and the conflict with Pakistan over Kashmir.

Nehru, Gandhi and Patel (Image courtesy: WikiCommons/ Life Photo Archives)

How would the Centre hold? This was the question faced by the prime minister, Jawaharlal Nehru, the home minister, Vallabhbhai Patel, and the law minister, Dr B.R. Ambedkar. Seeking to buttress a fragile Centre against the violent extremists of Left and Right, the government now banned the Organiser, the weekly mouthpiece of the Rashtriya Swayamsevak Sangh, as well as a communist journal called Crossroads. The editors of these journals appealed to the courts, who struck down the ban, saying that free expression must be maintained. Nehru, Patel and Ambedkar then introduced what became the first amendment to the Constitution of India. Article 19(2) of the Constitution, as originally drafted and passed, had stated that the state could make laws restricting freedom of expression where the exercise of such freedom ‘offends against decency or morality or which undermines the security of, or tends to overthrow, the State’. The first amendment expanded the areas where the state could intervene to restrict freedom of expression. The revised Article 19(2) thus stated that the state could make laws restricting freedom of expression ‘in the interests of the security of the State, friendly relations with foreign States, public order, [and] decency or morality’.

The new clauses introduced by the first amendment were ‘friendly relations with foreign States’ and ‘public order’. The second clause especially was capable of very flexible interpretation, since, if any book or film or work of art now offended a few people and they protested on the streets, it could constitute a threat to ‘public order’. The original Article of the Constitution would have most likely rendered infructuous Sections 153, 153A, 295, 295A, 499, 500 and 505, since ‘public mischief’, ‘outraging religious feelings’, ‘wantonly giving provocation’, ‘defaming reputations’, etc. do not constitute a threat to the state itself. But they can, in the eyes of a conservative judge or judiciary, be construed as constituting a threat to ‘public order’.

Nehru, Patel and Ambedkar were acting under great duress, taking extraordinary measures at a time when the very survival of independent India was at stake. Yet that first amendment was not, in retrospect, conducive to the freedom of expression in India. For, it reintroduced the power of the colonial laws which the Constitution had tried to remove or supersede. The amendment allowed the government of independent India much leeway in suppressing dissent and criticism, but the courts little leeway in protecting it.

Excerpted with permission from ‘Democrats and Dissenters’ by Ramachandra Guha and published by Penguin Books

You can buy the book here