India’s Illiberal First Amendment
The Indian government’s tendency to crack down on speech of which it disapproves dates from the founding of the republic.
The Indian government recently decided to press charges against the writer Arundhati Roy for comments she made on the situation in Kashmir a decade ago. In a 2010 speech, Roy claimed that the state of Kashmir, which has been the subject of a longstanding dispute between India and Pakistan, has never been an integral part of India.
There has been understandable shock in the international media at the vagueness of the laws under which she has been charged and the blatant disregard for free speech they permit. But in fact, speech-related laws and court judgements in India have always been ambiguous and contradictory.
The Indian government’s tendency to crack down on speech of which it disapproves dates from the founding of the republic. Unlike the American First Amendment, which guaranteed freedom of expression, the Indian First Amendment increased the number of restrictions on speech that already existed in the nation’s constitution.
India’s First Amendment was drafted in direct response to two landmark cases.
The first was a protest by communist political prisoners in February 1950. According to an account by Madhava Menon, then minister for prisons in the state of Madras, 200 inmates attacked the local police who were guarding them with timber looms, injuring several policemen. The police retaliated by locking the prisoners in a hall and opening fire, killing 22 and grievously injuring many others in an event known as the Salem Prison Massacre. Romesh Thapar, the communist editor-in-chief of the magazine Cross Roads, published a series of articles criticising the Madras government’s handling of the situation. The state government responded by prohibiting the distribution of the magazine. Thapar challenged the censorship in the Supreme Court, citing the fundamental right to free speech granted by the new Indian Constitution.
Meanwhile, at the other end of the political spectrum, the Hindu nationalist publication the Organizer had harshly critiqued the Jawaharlal Nehru government’s handling of Partition and treatment of Hindu refugees from the new state of Pakistan. In response, the chief commissioner of Delhi ordered all articles and cartoons relating to Partition and/or Pakistan to be subjected to pre-publication inspection by government censors. The editor of the Organizer, K.R. Malkani, objected to what he called a “handy tool for tyrants” and, like Thapar, he appealed to the Supreme Court.
The Court heard both cases concurrently. They both raised the fundamental question of what restrictions the state can impose on the press in the interests of preserving public order. The court ruled that, in both cases, the suppression of the respective magazines—Cross Roads and the Organizer—was inconsistent with the principles formulated in the constitution. In its ruling, the Court differentiated between “minor breaches of the peace of a purely local significance” and “serious and aggravated forms of public disorder which are calculated to endanger the security of the State.” Minor breaches of the peace and local disturbances were not considered sufficient grounds for restricting speech. On 26 May 1950, the Court ruled in favour of the plaintiffs in both cases.
The widespread implications of these judgements were immediately recognized. The then Chief Justice of the Bombay High Court, M.C. Chagla, castigated the government for using emergency legislation to place limitations on fundamental rights granted by the constitution. High Court judge P.R. Das decried the government’s actions as that of a one-party state as repressive as Mussolini’s Italy. The socialist leader Jayaprakash Narayan argued that the freedom of the individual was more important than national security.
The government was now on the defensive. But Nehru and his deputy prime minister Vallabhbhai Patel were still keen to impose censorship on inconveniently outspoken critics of their policies. One particular thorn in the government’s flesh was right-wing political leader Shyama Prasad Mookerjee, founder of the Bharatiya Jana Sangh, the precursor to the current ruling party, the BJP and an outspoken critic of the government’s policy towards Pakistan. Patel was concerned that the Supreme Court judgements would prevent the government from acting against such men. The growing chorus of press criticism as well as the vocal opposition to Pakistan policy from Mookerjee—a prominent figure, who had been part of the cabinet only months before—irked the Nehru administration. As historian Granville Austin has documented, Patel wrote about this in a letter to Nehru dated 3 July 1950:
I find no legal powers to deal with either Press or men like Syama Prasad Mookerjee. Before you left for Indonesia, I drew your attention to the Supreme Court decision in Cross Roads and Organiser cases. That knocks the bottom out of most of our penal laws for the control and regulation of the Press. The views which they have expressed in that judgment on the question of sedition make it doubtful whether we can do anything not only about the speeches of Syama Prasad Mookerjee but also those of the more extremist type. As you say, we have involved ourselves in so many legal and constitutional difficulties that we do not know how to overcome them.
These developments led Nehru to introduce the First Amendment of the Indian Constitution the following year.
Article 19(1)(a) of the Indian Constitution states that “all citizens shall have the right to freedom of speech and expression.”
These laws were upheld by the Indian judiciary on multiple occasions. On 10 May 1951, however, the Nehru government added the following amendment, to the effect that “nothing” in article 19(1)(a)
shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right [to freedom of speech] in the interests of the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. [Changes to the original constitutional text are shown in bold.]
The vagueness of these caveats has allowed the state to curtail the freedom of the press and to suppress criticism of state policy on multiple occasions. For example, in 2014, the Congress Party government banned the airing of Callum Macrae’s acclaimed documentary, No Fire Zone: The Killing Fields of Sri Lanka, which charts human rights abuses during the last days of the Sri Lankan civil war, on the pretext that the film would result in “straining friendly relations” between the two countries. In 2017, the Central Board of Film Certification denied certification to Venkatesh Kumar’s movie Neelam, also set against the backdrop of the Sri Lankan civil war, under the same pretext.
Debasish Roy Chowdhury and John Keane
In his speech justifying the addition of the First Amendment, Nehru argued that newspapers were spreading “vulgarity,” “indecency,” and “falsehood” among the younger generation, leading to a “degradation” of their “mental integrity and moral standards.” Given the “delicate state of the affairs in this world”—he was probably thinking specifically of the tense relations between the newly-fledged sibling nations of India and Pakistan—Nehru argued that it was imperative for the state to take action to avoid a potentially grave international conflict. Mookerjee’s response to Nehru was both eloquent and pointed. Nehru, the Hindu nationalist argued, was “cutting at the very root of the fundamental principles of the Constitution” by his attempt to silence the critics of the administration. He warned that this encroachment on the “liberty of the people of Free India” set a dangerous precedent.
Many of the arguments put forth by the parliamentarians of the day in favour of Nehru’s First Amendment were reminiscent of the reasons colonial administrators like Thomas Macaulay had used to suppress free speech in British-ruled India. In his 1835 Introductory Report upon the Indian Penal Code, Macaulay argues that “there is perhaps no country (other than India) in which more cruel suffering is inflicted by injuries which affect only the mental feeling.” An insult to the religion of Mohammedan or depriving a Hindu of his caste would lead the individual to react more violently than he would in retaliation against “severe bodily harm.” It would be “unjust and unreasonable,” Macaulay argues, to legislate based on British values when making laws for Indians. Using a strikingly similar line of argument, the Jesuit priest and Congress Party parliamentarian Jerome D’Souza argued in 1951, during the parliamentary debate on the First Amendment, that “if we must follow the English political precedent here, that we must not also forget the phlegmatic English character which is not easily ruffled and does not respond to incitement.” Nehru’s Congress Party colleague Pandit Thakur Das Bhargava, responding to Mookerjee, stated that “the restraints and discipline which are acquired by free countries by long exercise of freedom have yet to be fully enshrined in our people. The population is ignorant and illiterate, and it is very easy to mislead our people as they are apt to believe readily whatever appears in print.” Such condescension is indicative of the limited respect that many in power have always had for the Indian public.
Nehru’s amendment enabled certain political tendencies that were to shape the actions of the Indian legislature and government for decades to come. Given that the then prime minister introduced the legislation explicitly in response to court judgements, it set the precedent that the government could use legislation to overturn the Supreme Court whenever it suited them. The political theorist Nivedita Menon has argued that the amendment sought to empower the government over the individual. In this, it was deeply illiberal since the individual is the cornerstone of any liberal democracy.
Nehru’s First Amendment, argues Menon, disabled Indian liberalism. The Indian constitution promotes a form of affirmative action designed to correct the systemic discrimination that has resulted from India’s two-millennia-old caste system. As result, it naturally tends to privilege community rights over individual rights. This does not, however, fully explain the illiberalism of Indian speech laws. For Menon, the Indian First Amendment is indicative of the gulf between India’s elite civil society and the general public over whom they govern. This same gulf explains Nehru’s anger at newspapers “peddling filth” and causing moral degeneracy.
The First Amendment set the precedent that the state could interfere in every aspect of public life and dictate the limits of popular speech. In the years that followed, Nehru’s daughter, India’s third prime minister, Indira Gandhi, was to exploit this precedent to create a national security state.
During Indira Gandhi’s two terms in office (1966–77 and 1980–84), the government strengthened its hand with a series of draconian laws, including the 1971 Maintenance of Internal Security Act (MISA) and the 1980 National Security Act (NSA). It also strengthened existing laws, such as the 1967 Unlawful Activities (Prevention) Act (UAPA), through constitutional amendments. These changes were often billed as temporary measures to help the government deal with a crisis.
There was precedent for this. The Preventive Detention Act of 1950, for instance, was presented as a temporary act to deal with the extraordinary circumstances of the riots that took place in the aftermath of Partition, which led to a million deaths. But it remained in force for two decades and was only repealed once its provisions had been incorporated into other laws, such as MISA, NSA, and the Terrorism and Disruptive Activities Act (TADA) of 1985.
In practice, all political parties have since used these laws to imprison opposition leaders, critics, and protestors. In the state of Uttar Pradesh, for example, more than half of those arrested under the National Security Act in 2020 were accused of the crime of “cow slaughter.” The NSA makes no explicit mention of this “crime,” but the wide power that law grants allows the police to carry out arrests on arbitrary grounds like these.
One particularly pernicious effect of the First Amendment is that it strengthens India’s blasphemy laws. Section 295A of the Indian Criminal Code, enacted by the colonial British government in 1927, punishes anyone who “insults or attempts to insult the religion or the religious beliefs of any class of Indian citizens” through speech, writing, or visual representation. This provision has allowed the state to censor movies, books, and works of art. In 1988, India was the first country to ban Salman Rushdie’s brilliant novel The Satanic Verses. Multiple Indian states have banned screenings of Ron Howard’s 2006 film adaptation of Dan Brown’s novel The DaVinci Code. In 2022, the BBC documentary India: The Modi Question, which questions the Prime Minister’s role in the 2002 Gujarat riots, which took place while he was the state’s Chief Minister, was banned in India. India’s colonial blasphemy laws have been legally challenged, but so far without much success. In the 1957 case Ramji Lal Modi vs the State of Uttar Pradesh, the court cited the need to maintain “public order” described in the First Amendment in justification of such laws.
The victory of the Hindu nationalist BJP party under the leadership of Prime Minister Narendra Modi in 2014 has led to the widespread use of such laws. In fact, Modi’s government has demonstrated remarkable adeptness in strengthening and applying this legislation. Some of the laws have been updated to make them even more draconian. For example, the Unlawful Activities (Prevention) Act previously only allowed organizations—not individuals—to be classified as “terrorist.” In 2019, the BJP amended this act to allow individuals to be classified as “terrorists,” too. This may appear a justified change at first glance. Anders Breivik, for example, is just one of many lone-wolf terrorists who committed heinous acts under the influence of far-right ideology without any organizational assistance. However, the UAPA’s definition of a “terrorist” seems all too malleable. Under UAPA, a “Terrorist Act” can include “an attempt to overawe any public functionary by means of criminal force and any act to compel the government or any person to do or abstain from doing any act etc.” This legislation covers acts that are planned but never carried out and acts that do not threaten the security of the Indian state. It gives the government blanket permission to arrest anyone deemed “likely to threaten the unity, integrity, security, economic security and sovereignty of India.” The presumption of innocence is reversed here: the state can now detain individuals indefinitely on mere suspicion.
It is not possible for the BJP government to directly arrest journalists and critics merely for expressing dissent—at least not without being subjected to judicial scrutiny. These national security laws, however, provide a useful loophole that allows the government to justify persecuting individuals on the basis that they are carrying out “anti-national” terrorist activities. There have been many such incidents. Under the BJP, there has been a 72% increase in UAPA cases, which have a conviction rate of just 2%.
One particularly harrowing case is that of Stan Swamy. In 2020, the octogenarian Jesuit priest and tribal rights activist was detained on charges of terrorism. During his first weeks in prison, he was denied the use of his sipper and straws (utensils that he needed to be able to eat and drink, since he suffered from Parkinson’s disease). The unsanitary conditions in prison almost certainly contributed to the deterioration of his health and he eventually died in custody. In another shocking case, 36-year old activist Umar Khalid has been in jail under the provisions of UAPA for the last three years, without bail or trial, simply for making “provocative speeches.”
In the past, political parties have been hampered in their desire to abuse power by both the judiciary and by Indian civil society. But the BJP—motivated by a lethal combination of ethnonationalism and a cult of personality surrounding Modi—has made it increasingly difficult for dissenters to express protest. Arundhati Roy herself has eloquently summed up the current state of Indian civil society: “The most heinous crimes, the most horrible declarations calling for genocide and ethnic cleansing are greeted with applause and political reward.”
The US First Amendment famously secures the free speech rights of American citizens. Sadly, India’s First Amendment has done the opposite. The censorship we are now subjected to was enabled by the actions of our own founding fathers.
