The Indian Constituent Assembly by Bhatia Udit

Author:Bhatia, Udit
Language: eng
Format: epub
Publisher: Taylor & Francis (CAM)
Published: 2017-03-22T16:00:00+00:00

IV

We have seen, therefore, that colonial free speech regulation cleaved along two distinct lines. One line, marked by Press Acts, the sedition law and so on, was aimed at defending the legitimacy of the regime from a rising nationalist movement. The second, in the domain of cultural regulation, was built upon the idea that of colonial difference, i.e. the incapacity of an Indian audience to respond to speech in an autonomous manner.55 Kant’s vision of the Enlightenment individual – free of tutelage, and with the courage to “use [his] own reason”56 – was not the individual of the colonies.

Perhaps unsurprisingly, the throttling of free speech by the colonial government drew a strong response from the nationalist movement. Right from 1895, the nationalists framed their own bills of rights, which provided for strong civil rights protections. The 1895 Constitution of India Bill guaranteed the right to “express … thoughts by words or writings, and publish them in print without liability to censure … but [citizens] shall be answerable to abuses, which they may commit in exercise of this right and in the mode the Parliament shall determine”.57 Annie Besant’s 1917 Congress Resolution demanded “the removal of all hindrances to free discussion”.58 The Commonwealth of India Bill, which was defeated in the British Parliament in 1925, called for ‘free expression of opinion”.59 Three years later, in the Motilal Nehru Report, the guarantee was rendered more concrete, making it subject to “public order or morality”.60 As Arun Thiruvengadam perceptively notes, “what is striking … is the near absence of language on restrictions that could be imposed on the right”.61 This attitude towards free speech was perhaps best summed up by Gandhi, who argued that “assemblies of people [ought to be able to] discuss even revolutionary projects, the State relying upon the force of public opinion and the civil police, not the savage military at its disposal, to crush any actual outbreak of revolution that is designed to confound public opinion and the State representing it”.62 Gandhi’s words were mirrored by that of the American judge, Louis Brandeis who, along with Oliver Wendell Holmes, dissented in a number of important American free speech cases in the 1920s and 1930s, including Gitlow. In Whitney v. California, a case with facts similar to Gitlow, Justice Brandeis wrote that “if there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence”.63 At the heart of both was a vision of the autonomous citizen-individual as listener, who was responsible for how he or she chose to respond to the speech in question.

However, by the time independence was around the corner, and when the Fundamental Rights Sub-Committee presented Draft Clause 8 to the Constituent Assembly, the structure of the free speech provision had changed radically. Draft Clause 8 stated:

There shall be liberty for the exercise of the following rights subject to public order and morality or to the existence

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