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Home >Mint-lounge >Mint-on-sunday >Violent words, free speech and the Indian Constitution

Article 19(2) of the Constitution lists eight grounds on the basis of which the state can restrict the freedom of speech and expression. Four of these have to do not so much with the content of speech, or what words are said, but the consequences that speech might have, especially in promoting violence. These are “sovereignty and integrity of India", “security of the State", “public order" and “incitement to an offence".

While Article 19(2) allows the state to restrict speech “in the interests of" these categories, it also insists that the restrictions must be “reasonable". Soon after the Constitution came into being, the Supreme Court stated—not very helpfully—that a “reasonable" restriction is one that establishes a relationship of proportionality between the goal that the state wants to achieve and the extent to which it aims to restrict speech.

In the context of restrictions formulated on the basis that certain kinds of speech will lead to violence or actual destruction (the four categories mentioned above), this question has taken the form of a “proximity" enquiry: that is, at what stage of the causal connection between speech and violence can the state act?

The classic example is that of “shouting fire in a crowded theatre". Nobody doubts that it is constitutionally legitimate to prohibit—and punish—shouting fire in a crowded theatre. On the other hand, if the state was to prosecute an individual for calling upon people to protest the government’s policies by refusing to pay their taxes, the position might be very different.

This is not, as it turns out, a hypothetical scenario. At the turn of the 1950s, Ram Manohar Lohia, the famous socialist leader, was prosecuted for doing just that: exhorting citizens not to pay their taxes. The applicable law was a colonial statute that prohibited the kind of speech that Lohia engaged in, and its constitutionality was challenged before the Supreme Court.

The state argued that even something as innocuous as a call not to pay taxes could be a “spark" that would one day set the country ablaze in the flames of revolution. The court, however, rejected this argument. It held that the state must establish a “proximate" or “imminent" connection between speech and violence, and not merely rely upon hypotheticals, or remote possibilities.

Furthermore, the Supreme Court would carefully scrutinize the justification offered by the state, and decide for itself whether the relationship of proximity was satisfied. Here, it found the link between an exhortation not to pay tax and eventual revolution too remote and fanciful to justify upholding the statute. The law was struck down.

Lohia’s case is one of the most important free speech judgements in the Supreme Court’s history. It marked a decisive break with a jurisprudence that the court had developed in the 1950s. In various cases, the court had upheld pre-censorship of the press, the colonial Press Act and Section 295A of the Indian Penal Code (blasphemy law).

In each of these cases, the court had held that as long as there was some connection between speech and public disorder, it would not substitute its own views about how realistic or proximate the threat was, but simply defer to the state’s assessment. James Madison, one of the framers of the US Constitution, had once famously referred to a bill of rights as a “parchment barrier’ against state overreach. The Supreme Court’s jurisprudence of the 1950s seemed set to prove Madison right.

Decided in 1960, Lohia’s case was the first to add a layer of brick to the parchment. By actively requiring the state to demonstrate the proximity between speech and violence or disorder, the court ensured that the word “reasonable" in Article 19(2) was not rendered entirely meaningless.

Initially, the impact of the Lohia case was limited. In 1962, the Supreme Court upheld Section 124A of the Indian Penal Code (the law of sedition), jettisoning Lohia’s approach of proximity—and indeed, not even referring to Lohia at all. Soon after, the court also upheld Section 144 of the Code of Criminal Procedure, which allows executive magistrates to ban public assemblies in advance, and without any prior judicial oversight. In these cases, once again, the bogey of public disorder was invoked to justify far-reaching restrictions upon the freedom of speech.

Although the SC refined Lohia’s test in the intervening years (in S. Rangarajan vs P. Jagjivan Ram, for instance, it said that the relationship between speech and public disorder must be like that of a “spark in a powder keg"), it was only in 2011—more than 50 years after Lohia’s case—that the doctrine of proximity began to have actual impact.

In a set of cases dealing with anti-terror laws such as the Terrorist and Disruptive Activities (Prevention) Act, the court held that a clause prohibiting and penalizing “membership" of unlawful organizations would have to be “read down" (that is, interpreted narrowly) in order to survive the test of constitutionality.

The court drew a distinction between “active membership" and “passive membership". Defining “active membership" as the incitement to imminent violent action, the court held that anything short of that—including participation in meetings and propagation of ideology—was protected by the constitutional guarantee of freedom of speech, expression and association.

Using this, the court granted bail to, and acquitted, various individuals whom the state had charged with being members of unlawful associations, but against whom it was unable to prove any actual incitement to violence.

Lohia’s case had a further impact in the famous Shreya Singhal vs Union of India judgement, where the Supreme Court struck down Section 66A of the Information Technology Act, which criminalized “grossly offensive" or “menacing" online speech. Drawing together various threads from previous judgements, the court distinguished between “advocacy" and “incitement", and held that only the latter could be constitutionally prohibited.

At the heart of the distinction is the philosophical idea that as autonomous individuals, we are all entitled to receive and listen to speech, evaluate it for its merits, and decide for ourselves whether or not we agree with it. The state disrespects the autonomy of individuals when it takes that decision upon itself, and blocks access to speech on the grounds that individuals might, on listening to it, come to hold wrong views, or do illegal things.

The famous American judge Louis Brandeis once stated that as long as there was time for “counter-speech", the remedy for unpleasant speech was more speech, and not an enforced silence. Around the same time, Mahatma Gandhi wrote that assemblies of citizens should be allowed to discuss even revolutionary projects, with the state stepping in only when there was an actual outbreak of violence.

Both men were committed to the idea of autonomy at the front and centre of any understanding of free speech, and the relationship between the state and the individual.

There are, of course, situations where “counter-speech" is not possible, and where human beings operate under circumstances of diminished autonomy. This is why the state can step in to proscribe shouting fire in a crowded theatre, or punish incitement to imminent lawless action.

However, the set of such circumstances is a small one, and the court must carefully scrutinize the state’s claims on that point. This has now become established judicial wisdom in the Indian constitutional landscape, and we have Lohia’s case to thank for that.

Gautam Bhatia is a New Delhi-based lawyer. His book Offend, Shock, or Disturb: Free Speech Under the Indian Constitution is available on Amazon.

Case Studies looks at why we have the laws that we have and what it means to change them.

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