New Delhi: In April 2023, the Law Commission of India issued Report No. 279 on ‘Usage of the Law of Sedition’. It concluded that the problem with the sedition offence (defined and punished under section 124-A of the Indian Penal Code, 1860) was one of improper use, nothing more. 

A crime punishing speech that spread disaffection against the government with a tendency to incite violence was imperative for India, a country plagued by threats to its unity and integrity. Or, to put it in other words, a citizen’s right of speech was legitimately restricted in the interests of curbing any perceived threats to the nation’s very existence. 

More recently, the Karnataka High Court on 30 June, 2023 dismissed a petition by X. Corp—the legal entity behind Twitter—that sought to challenge how the Indian Government used its powers of censoring online speech under section 69-A of the Information Technology Act, 2000. 

Again, one of the main reasons offered by the High Court for supporting broad, and less restricted, powers of censorship was the threat posed by ‘anti-national’ speech to the unity and sovereignty and integrity of India. Pre-emptive blocking of such speech, without offering full reasons, was considered justifiable, given the threat it posed to the very existence of the nation state.

Both these developments have generated a fair amount of commentary already (see, for example, here, here and here). This has been largely critical of the documents for, in the eyes of the commentators, disregarding principles of law and truncating the constitutionally guaranteed freedom of speech in the name of nationalist rhetoric. 

To criticise the Law Commission’s Report and the High Court’s judgement for ignoring or misapplying the law to achieve a rights-restricting outcome proceeds on an unstated but essential assumption: that the legal regime itself does not further such a rights-restricting outcome. This, as I will try and demonstrate here, is either wilful blindness or plain naivete. 

The structure of our laws is not built to enhance, but restrict the fullest enjoyment of civil liberties and basic rights. To defend retaining sedition as a crime, or endorse broader censorship powers, both in the name of perceived harm to the nation state, is not in defiance of the Constitution but in adherence to it. 

The Police Constable’s Constitution

For India, the move away from a colonial, anti-democratic setup to a constitutional, republican one, has often been expressed with the idea of how the identity of the people changed from subjects to citizens. Subjects must obey, citizens must question, and a constitutional guarantee for free speech and expression was essential towards fostering this spirit of debate. 

Of course, the conversation goes, there are lines to be drawn, and most of the attention is then devoted to the idea of how the free-speech guarantee must be read together with the restrictions, which are also spelt out in the Constitution itself. 

For instance, reasonably restricting free speech when doing so is in the interests of maintaining public order, or India’s sovereignty and integrity. Restrictions that were only increased after 1950 by way of amendments (here and here) to the Constitution (both the examples in the previous sentence were not present in the original text of the document).

The content of the restrictions only tells us a small part of the story. The other parts have been developed by constitutional courts tasked with interpreting and applying the legal regime. Courts had to make a multitude of choices—do we allow the speech to take place and then permit further restriction / prosecution, or do we allow prior restraint? What kinds of restrictions are permitted? Who, and on what grounds, is allowed to restrict speech? What are the consequences for any restriction / attempted restriction later found to be wrongful? 

Most of these choices were made by constitutional courts by the 1970s, and erected a structure which facilitated more, not less, regulation of speech. Thus, Parliament could make laws restricting the exercise of speech on Article 19(2) grounds which may extend to prior censorship, and delegate the task of enforcing these rights-restricting laws to the ordinary police or government official. 

In other words, the policeman decides whether speech may prejudice the interests of maintaining public order, or is seemingly ‘anti-national’, and can send me to jail for it. Whether or not this determination was ‘reasonable’ is then decided by a court while giving due deference to the immediate decision made by the government, giving the aggrieved some post-dated enjoyment of the exercise of speech at best.

Restricting free speech was aggressively defended by the framers of the Constitution—who were also in power at the time—as entirely ordinary (the Law Commission extracts some of these speeches in Chapter 3 of its Report on Sedition). Rather than leaving the scope of rights uncertain and dependent on a case by case determination by courts, the Indian model was presented as being better as it outlined the scope of rights clearly. 

But as Somnath Lahiri, the lone member of the Communist Party in the Assembly, argued in 1947 with remarkable foresight, that a regime with restrictions to speech hardwired within the Constitutional text sends a different message altogether, and carries a potential to subvert priorities. It is not the right that is superior, but the omnipresent shadow of the restriction which the right can never move out of. The citizen has freedom but the State is firmly in-charge.

Moreover, there is a more serious problem where restrictions are on aspects such as public order, security, national integrity, all of which may be loosely summed up as ‘State Interests’. Who decides what these interests are, and when they are implicated or threatened? The State itself. 

Courts are left with little more than a watching brief, for how can a Court ever be expected to controvert what the Government says is a threat to national interests. There are, of course, times when courts will be stirred to act.  But that does not alter the deeply imbalanced premise of the entire exercise.

The result is to make the State the judge and executioner on matters of various kinds of speech, usually that which is critical of what the State does. Exhortations of national pride from the political pulpit coexist with a permanent sense of vulnerability or fragility. The end product, In Lahiri’s words, is that we give to ourselves not a citizen’s Constitution, but that of the police constable, that most visible symbol of official superiority over the lives of ordinary subject-citizens.  

Free, But Unequal, Speech

What makes these interpretive choices more intriguing is the facts in which they were made by the courts. It was not just the content of speech, but the context which justified the greater regulation of speech in these cases. 

Debates about ideas in scholarly volumes contributed to discourse. However, debates conducted by means of newspapers in regional languages had the ability to stir tensions in the uninformed public about matters, which meant restricting their content in advance was justified in the interests of public order. 

The Supreme Court endorsed this logic in Virendra vs State of Punjab (1957), approving a regime that allowed the Government to issue prohibitory orders to newspaper editors in the Punjab region, restricting them from publishing any material on a political issue of the time (the ‘Save Hindi’ agitation of the mid 1950s). 

In Kedar Nath Singh, a 1962 judgement that the Law Commission endorsed wholeheartedly in its 279th Report on Sedition, we again find the Supreme Court batting for broad restrictions on the power of criticising the government in the interests of maintaining public order or national unity. It was not lost on the Court that the result was to confer upon the Government the power to decide when it was permissible to ask questions of it. Rather, it found such a scheme justified, because of the risks carried by a mob to the fabric of society.   

Similar was the treatment of film censorship by the Supreme Court in K A Abbas vs Union of India (1970). It agreed with the government that films were not like art or poetry or scholarly volumes. Instead, they were like regional newspapers and pamphlets, pandering to the shoddy and vulgar tastes of the masses. Laws permitting prior restraint for such content, and allowing the State to decide what content was permissible, were found constitutional and eminently reasonable as well. 

Viewed through another lens, high-brow speech merited free expression because it contributed to the discourse. Whereas low-brow speech merited State regulation, for it carried an assumption that it could implicate Article 19(2) restrictions if left unsupervised. 

To call this regime a rights-based one is a mistake. Instead, it reinforces the idea that while some classes of citizens are suited for the enjoyment of rights, for another class of citizens there is still a need for a patriarchal state which decides what is best. It is similar to the kind of logic employed by colonial legislators (demonstrated by J. Barton Scott in his recent book on secularism, which in turn develops on the work of Partha Chatterjee, among others).

This conflict which earlier could be seen in the realm of pamphlets and films has today manifested itself in the context of platforms such as Facebook and Twitter. Both the government and courts insist that these spaces are being used by ‘uninformed’ persons who are vulnerable to exploitation at the hands of others. This might easily spread virulent ‘anti-national’ propaganda or false information weakening the democratic framework of the country. In other words, platforms are not spaces of high-brow speech that merits promotion, but encourage low-brow speech that merits regulation. 

The Karnataka High Court’s judgement in X. Corp endorses this logic, repeatedly bringing to the fore the importance of both the audience and medium. Twitter encouraging an exchange of ideas is not something to embrace but to fear because of how it can seemingly be used to manipulate public opinion. It is no better than the newspaper stirring religious feelings or the film pandering to vulgar tastes. 

So concerned was the Court by this line of thought that it was willing to dilute the existing minimal judicial review and procedural safeguards designed to exercise some checks on how the State exercises its regulatory function (as dealt with in detail by the commentary already mentioned above). 

Good Law, Bad Law

The history of free speech, and fundamental rights for that matter, is a chequered one from the get-go. This makes engaging in meaningful critique of documents like the Law Commission’s Report on Sedition and the Karnataka High Court’s judgement in X. Corp tricky endeavours. 

It is all too easy to lapse into the comfortable logic of arguing that these documents are misapplying the law, by placing the law at a separate pedestal outside of the politics of what is ‘treacherous’ or ‘anti-national’. 

Unfortunately, there is no such pedestal. The law does not exist outside the nationalist rhetoric, but is deeply entrenched within it by design, rendering the task of extricating it a hopelessly Sisyphean one. There is no escaping the looming shadow of the police constable’s Constitution without confronting its most fundamental assumptions in the face and dismantling them one by one. 

Maybe, at the end of that exercise, the citizen might regain a right to free speech. 

(Abhinav Sekhri is a Delhi-based lawyer who writes on criminal law and procedure.)

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