Sedition and patriotism seem to have become simplistic antonyms in the present Indian context — sedition means friendliness or tolerance towards Pakistan and patriotism means hostility. Prime Minister Narendra Modi’s Independence day speech openly invoked Balochistan, a sensitive issue and an internal matter of Pakistan. Recently, the Kannada actor Ramya (Divya Spandana) was accused of sedition and being “anti-national” for refuting Manohar Parrikar’s claim that Pakistan is like hell. It is obvious that freedom of expression does not extend to tolerant views on Pakistan and this becomes ironic when you consider the constitutional history of this right.
The first amendment to our Constitution was with respect to Article 19 (1) which guarantees freedom of expression to Indian citizens. What prompted the framers of the Constitution and then Prime Minister Jawaharlal Nehru to amend it were two cases which had caused them severe anxiety — Romesh Thapar vs. state of Madras and Brij Bhushan vs. state of Delhi. The verdicts in both cases called into question the foundational premises governing free speech.
The Brij Bhushan case was filed by the printer, publisher and editor of the journal Organiser in the Supreme Court in 1950, in response to an order passed by the chief commissioner of Delhi accusing it of publishing “highly objectionable matter”, a euphemism for anti-Pakistan views. What was least desirable at that point of time for a country reeling from the bloodbath of Partition were inflammatory reports which could stoke the dying embers. The chief commissioner’s order asking for pre-censorship of the journal was seen by the state as a preventive measure implemented to maintain public order. The journal was asked to submit all material for scrutiny before publication, especially “all communal matter and news and views about Pakistan including photographs and cartoons”.
The Romesh Thapar case was filed against the state of Madras, and concerned the publication of the left-wing journal Crossroads, of which Thapar was the editor, printer and publisher. It was opposed to Nehruvian policies and was banned in the state of Madras. The state’s contention here too was that the journal could pose a threat to public order.
Both editors, despite their antithetical political ideologies, claimed that the orders passed on their publications were violating the fundamental right guaranteed to them under Article 19 (1) (a) which stated that “All citizens shall have the right to freedom of expression”. The state’s contention was that the sub-clause Article 19 (2) clearly placed a rider on what appeared to be an unqualified freedom, because it stated that nothing could prevent the state “from making any law relating to libel, slander, defamation, contempt of court or any matter which offend against decency, or morality or which undermines the security of the state or tends to overthrow the state”. The problem was that it listed very specific offences and did not mention a threat to public safety as a potential crime. The courts did not agree with the state’s contention that Crossroads should be prevented because it posed a threat to public safety. Likewise, publishing objectionable material about Pakistan in the Organiser was not seen as a threat to the security of the state or a move that could overthrow the state.
The constitution, within one year of its inception, was facing its first existential crisis. The courts had demonstrated how the democratic right of free speech had the potential to subvert the foundations of the new-born democratic nation, and particularly with the Brij Bhushan case, to undermine its ideal of secularism. A cabinet committee was formed in 1951 to look into the possibilities of an amendment to Article 19. The committee sought to plug the loophole in the existing law by dropping the phrase “to overthrow the state” and incorporate “public order” and “friendly relations with foreign states”. Nehru also had to bow to the wishes of others who wished to qualify “restrictions” with the adjective “reasonable”. He felt that the term “reasonable” was vague and would be interpreted in various ways which would prove detrimental to democratic debate.
There were acrimonious debates when these amendments were introduced in Parliament. Ambedkar supported the amendment, stating that freedom of speech is not an absolute right. The opposition came mainly from Shyama Prasad Mukherjee of the Hindu Mahasabha, Somnath Lahiri (CPI) and H. N. Kunzru. Eventually, Mukherjee became the lone crusader for free speech while Nehru advocated restrictions. Mukherjee’s opposition was in keeping with his open hostility to Pakistan; he had resigned as minister of industry from Nehru’s cabinet in disagreement over the pact with Liaqat Ali Khan. The prevalent feeling was that the proposed amendment was primarily meant to muffle extreme right-wing parties and their opposition to Pakistan. Friendly relations with Pakistan was a desired option back then. This could be an indication of the axiom that the supremely cynical world of realpolitik knows no permanent foes or friends.