Title: Republic of Rhetoric: Free Speech and the Constitution of India
Author: Abhinav Chandrachud
Publisher: Penguin Random House India
Pages: 304 pages
Price: Rs 599
Lawyers are inclined to read cases by looking at the ratio of a decision (and reasons for the decision), the facts and the obiter statements which are carelessly related to both. Abhinav Chandrachud, a scholar of brilliant achievements, goes further to analyse law and court decisions and locate them in the context of the immediate history in which they were conceived. This is worthy effort to relate context to imperial law but lacks a consistent socio-legal theory. Various historians have used cases with insightful depth, such as Sudhir Chandra in Enslaved Daughters (on Rukmabai’s case). Chandrachud is not a historian; that does not detract from his perceptions to enrich our understanding of legal concepts and how they were imposed, enabling state and social control.
To say that this book simply reminds us that post-Independence Indian law is still enmeshed in the labyrinth by which the British ruled India would be uncharitable. Of course, the latest Supreme Court decision refusing to de-criminalie defamation shows the continuing influence of Macaulay and his descendants. Yet this book, without echoing EP Thomson’s thesis of the rule of law as a mixed blessing, shows that law and ideas flowing from it are often double-edged, providing unintended results. This gives the rule of law an expanded and creative meaning. Law favours the rich but can be used differentially by the oppressed to a limited extent.
Chandrachud’s narrative of the Constituent Assembly mentions, only in passing, TD Bhargava introducing the concept of “reasonable” in the Article 19, which guaratees freedoms. He is right in stating that KM Munshi’s draft on rights prevailed over Ambedkar and Harnan Singh, but it was Bhargava’s concept of ‘reasonableness’ which is pivotal to the Indian Constitution and foundational to the constitutional discourse today. Munshi was a conservative twice inspired.
Over its most splendid narrative, Chandrachud’s book can be broadly divided into laws which protect the state (sedition, public order, contempt of court, licensing and institutional pressures), and those dealing with morality (obscenity and censorship). Of course, the discussion is much more exciting than my bland overview in Only The Good News (1987). I include ‘contempt’ in state control on the basis of the discussions on contempt of court (narrated in my book Contempt of Court and the Press) in the 1925-6 debates.
The most exciting and rich part of the book is its analysis of sedition, which repressed the freedom of the press and speech through the executive and judiciary — pretending that the judicial arm of the state was really independent from the colonial state. If the state was unspeakingly blunt in its implementation, the colonial judiciary was more subtle in its juristic elucidation of legal concepts which energised the state into imposing the fear of state law by judicially controlled doctrines. There couldn’t be anything more obvious than the statism imposed by the law of sedition. Here, Chandrachud is brilliant in the depth of analysis and the serpentile coil of sedition laws. He takes us to contemporary repression (as on Kanhaiya of JNU fame) in the name of sedition. In this the Modi ‘state’ is more resolute and vindictive than the colonial.
Second, from ‘statism’ I turn to moral and social expression. Here too, Chandrachud tells a full story. By the time we reach Justice Hidayatullah’s decision in the Lady Chatterly Case (1965), we find the judge upholding the English test of 1869 while writing a literary review of the book! From then, there is a clutter of decisions — some nicely setting standards, like Justice KJ Shetty in the Ore Oru Gramathile case (1989). But the problem has been that the intuitive test applied by judges is to reject censorship, which that judge found abhorrent. Few really echo Justice Krishna Iyer on the Periyar Ramayana case (1972) on the near absolution of free speech with sensible restraints in a sensitive area. American doctrine balances things differently. At one time in Roth (1957) the US Supreme Court found obscenity speech not constitutionally protected per se. The first trajectory of creative judgments included those relating to good writing (Fanny Hill (1961), Ginsberg vs New York (1968)). The second line of cases were about privacy and protecting the home and travelling suitcase. This trajectory on privacy went from Stanley (1969) to Paris Adult Theater (1973) which is an amusing decision indeed. The first trajectory on restrictions resulted in the community standards test in Miller (1973). This test is uncontrollable and a gift to Hindutva. British judgments and US doctrines are not easy to handle in our context. We must create our own jurisprudence on free speech and the reasonable restrictions that can be imposed on it. But a theory of a balance of principles used still eludes us — certainly the executive.
Chandrachud incidentally but rightly dwells on the social elimination of social speech which is self-evident from deplorable incidents including the murder of Kalburgi, Pansare, Dabholkar and Gauri Lankesh, and the beef murders. I leave aside Chandrachud examining contempt law which unfortunately does not examine constructive contempt other than scandalising judges. This consists of judicial reactions on interference with the judicial process by the press, by commentary and criticism of live cases. But an author’s restraints must be appreciated.
All in all, this is a wonderful book, the best of its kind for a long time. The research is exceptional, the narrative brilliant and it is more thought-provoking than any other book in this space, including my own.