Talkin’ About a Revolution

In 1962, the law of sedition was tweaked, following the Federal Court rather than the Privy Council. We should also not be surprised if we find that in 1965, Lady Chatterley’s Lover was found obscene by India’s Supreme Court, or that a Supreme Court decision of 2013 refused to decriminalise homosexuality between consenting adults. In 2015-16, Supreme Court judges are struggling to abolish criminal defamation. All the penal code offences dealing with communal disharmony and enmity between groups have been found to be constitutionally valid — somehow fitting nicely with Article 19(2) of the Constitution permitting reasonable restrictions by law relating to defamation, contempt, public order, decency, morality, incitement of offence, security of state and sovereignty of India. Provoked also by Partition, these empowerments were part of the Raj-infected dominant tradition.

Yet, the Supreme Court struck the right note against mindless cinema and TV censorship, including on works like Tamas, Ore Ore Gramathile and Bandit Queen. Now, Modi’s government has “packed” censorship boards. India is plagued by social censorship, by attacks on movie theatres and the burning or outlawing of books (like Wendy Doniger’s on Hinduism or Meera Kumar’s on Gujarat) by frightening reputed publishers.

Justice Jeewan Reddy’s Auto Shankar judgment (1995) brought in American jurisprudence to permit greater bonafide criticism of public persons without attracting defamation laws. A more elaborate use of this foreign jurisprudence was made in the IT case (2015) by Justice Nariman. Although Justice Krishna Iyer’s judgment lifting the ban on the Periyar Ramayan invokes Voltaire, his inspiration flows from an enlightened indigenous instinct to ban the ban. Justice Muralidhar’s Delhi judgment in the Babri film (2011) and Srishti (2011) cases follow a similar instinct against excessive government control grounded in the free speech tradition. Justice Sanjay Kaul’s liberation of Khuswant Singh’s autobiography in 2002 confronts the dominant tradition with the lesser pro-free speech tradition. Over the years, the juristic centrality of the “free speech” tradition has gained ground — as in the Khushboo case (2014). What enriches the triumph of free speech is not foreign precedent (somehow, always quoted for good value) but an intrinsic shift to recognising the role of free speech in a democracy.
I suppose this is what Bhatia, in another context, calls constitutional morality.

While it is true that in the Boris Becker case (2014), the archaic “Lady Chatterley” test of 1965 has been distanced, I am not sure that the American community standards test in Miller (1973) invoked in the Devidas Ramchandran Tuljapurkar case (2015) on censoring the poem ‘I met Gandhi’, by substituting “contemporary community standards”, will take us further. Now, we are faced with the homosexuality case (2013), a version of the community standards test, daring Parliament to do what it will.

Most judges, lawyers, jurists and politicians are wedded to the dominant Raj tradition. Yet a Krishna Iyer, Jeewan Reddy, Murlidhar, Sanjay Kaul, Nariman and Dipak Mishra have made a difference. I do not rate India’s jurisprudence through American or other eyes. The invocation of foreign jurisprudence may be floral or a genuine pitch for ideas. It is the Indian judge who must find answers through Bhatia’s constitutional morality test in India’s democratic context.

A splendid scholar, Gautam Bhatia has written a most exciting book. It interrogates, articulates, fights without retreat and shows subtlety with distinction.

Offend, Shock or Disturb: Free Speech under the Indian Constitution
Author: Gautam Bhatia
Publisher: Oxford University Press
pages: 392
Price: Rs 713