The Indian conundrum, on the issue of balancing free speech and public order, is encapsulated in Article 19 of the Constitution that guarantees the right to freedom of speech and expression, among other liberties, and lists down its limits. Article 19 (2) gives the State the power to impose “reasonable restrictions” on freedom of speech “in the interests of the sovereignty and integrity of India, 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.”
As we witness increasing polarisation not only within India but across the world, bringing with it a rise in political violence and public disturbance, the question of the link between speech and violent action is repeatedly coming to the fore. Former US President Donald Trump faced impeachment proceedings before the Senate, in the aftermath of the Capitol Hill attack on January 6th, for urging his supporters to “fight like hell” after his electoral defeat. India has seen a string of arrests against the backdrop of anti-CAA and farmers protests. At the same time, the absence of legal action against individuals like Kapil Mishra and Ragini Tiwari, who have been captured on camera making incendiary and hateful statements, has drawn attention, if not umbrage. Such circumstances warrant a closer look at the connection between speech and disruption of public order, or incitement to violence, both conceptually and in the Indian context.
The State and the Citizen
Borrowing from Gautam Bhatia’s ‘Offend, Shock, Or Disturb’, the complicated relationship between speech and public (dis)order can be exemplified with the help of four instances: an academic treatise on a particular community’s beloved historical leader ‘causes’ members of that group to protest and vandalise, a newspaper editorial is published that advocates material support to Naxalites’ express goal of overthrowing the Indian State, a leader stands on a pulpit before an angered crowd reminding them of historical wrongs done to them at the hands of another religious community and motivates them to destroy their religious building located nearby, and a man shouts ‘fire’ in a crowded theatre. The criminal liability in each case can be ascertained by the degree of causation between the original utterance and the consequent action. The relevant precedents, in turn, will inform what quantum of distance between the speech and action is acceptable or unacceptable, thereby determining the validity of executive action and the constitutionality of the underlying legislation.
Public Order Restriction: An Overbearing State
A more State-deferring, restrictive approach to freedom of speech is embodied in the Ramji Lal Modi v. State of UP case from 1957. An editor of a monthly magazine called Gaurakshak was prosecuted for writing an article that allegedly hurt Muslim sentiments and the defendant sought to challenge the constitutionality of Section 295A, which criminalised insulting or attempting to insult religious beliefs of any class of citizens of India, upon which his conviction was based. He argued that the law impinged upon his right to freedom of expression enshrined in Article 19 (1) (a) and that Section 295A did not meet the requirement of reasonability when restricting in the interest of public order.
The Court held otherwise, thereby affirming the constitutionality of the law and departing from previous non-binding decisions in Romesh Thappar v. State of Madras and Brij Bhushan v. State of Delhi. Both these cases involved laws that gave the state governments wide powers to impose restrictions on the journalistic expression of publications for maintenance of public order. Both were struck down by the respective courts for being too broad in reach, resulting in restriction of speech that might not be detrimental to public order. The government responded by amending Article 19 (2) to weaken the threshold of restriction by replacing “for the maintenance of public order” with “in the interest of public order”. The UP Court in Ramji Lal Modi acquiesced to this modification, giving the State the ability to regulate all speech with the ‘tendency’ to cause public disorder. Instead of rejecting the legislation for overreach, the principle of reasonable restriction was diluted to accommodate for the State’s domination. The mere existence of probable disorder resulting in possibility of State action is reminiscent of the United States in the late 1910s and 1920s, with judgements like Abrams v. United States, Schenck v. United States,Gitlow v. New York, and Whitney v. California, and in the 1950s under the influence of McCarthyism.
Therefore, in such a distant conception of the nexus between speech and public disorder with a low degree of required causality, all of the previous examples of possibly inciteful speech can accrue criminal liability. Just the fact that the infuriated mob caused mayhem after the publication of the editorial, or that the provision of support to an organisation with undesirable aims might, in the possible future, contribute towards the success of those aims makes state intervention reasonable.
Bhatia points out a fundamental flaw with this argument that links liability to probability. Focussing on the possibility of protest rather than its cause, he says “provides a private privilege of censorship to anyone who has the ability to break the law with impunity”. Criticism of one prickly group, more prone to militate, might bring censorship while criticism of another docile group, even along the same lines but with differing results, may not. These divergent standards, which could also result in some groups being able to escape criticism more easily, though natural in society, cannot be perpetuated in the law. The behaviours of varying groups are tied to historical and cultural contexts that are steeped with inequalities. Shaping law according to these power structures rather than against them is practicing majoritarianism.
The State can maneuver around the low threshold in the probability or ‘tendency’ requirement by imposing an additional check for intent. Article 295-A talks about “deliberate and malicious intention”. It has recently come into the public eye with the arrest of comedian Munawar Faruqui for allegedly joking about Hindu deities, The details of the Faruqui case further bring out a fundamental flaw with the law. When liability incurs on the basis of a completely subjective assessment of the perpetrator’s intention, the law moves away from fact. In the absence of any video evidence of Faruqui’s alleged blasphemy and given that the arrest was made before he got a chance to present his stand-up comedy, the Muslim comedian’s “intentions to hurt Hindu sentiments” has become the basis for his detention.
Free Speech : A Retreating State
The judicial ethos on the nexus between speech and public order quickly took a speech-protective form soon after Ramji Lal. Beginning with Dr. Ram Manohar Lohia vs State Of Bihar in 1965, the Court made a shift from a ‘tendency’ test to ‘proximity’ test when restricting speech. In Kameshwar Prasad v. State of Bihar, in 1962, a rule prohibiting government officials from participating in strikes was struck down and the government’s argument regarding the requirement of committed and disciplined public servants to maintain public order was rejected for stretching the line of causation beyond reasonability. In O.K. Ghosh v. E.X. Joseph, in the same year, the Court said “a restriction can be said to be in the interests of public order only if the connection between the restriction and the public order is proximate and direct”. Thirty years later, this progression of judicial opinion in India that demanded a higher causation between to-be-restricted speech and action saw a peak. In S. Rangarajan v. P. Jagjivan Ram in 1989, the Court raised the ‘proximity’ test requirement to that of inseparability and inevitability. The Supreme Court in that judgement said, “the expression of thought should be intrinsically dangerous to the public interests. In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a “spark in a powder keg”.”
The Rangarajan case and spark-in-powder keg analogy increased the probability of violence threshold for curtailment of speech from previous judgements. With this higher requirement of inseparability between speech and action came a better protection of autonomy for both speaker and listener. The speaker’s autonomy is protected because she is held liable only for consequences directly tied to her utterance. The state does not misattribute responsibility by holding her responsible for the actions of others. Drawing a distinction between means and reasons, this judicial position also avoids disrespecting the autonomy of listeners by allowing them to come to their own opinion about controversial speech. Furthermore, it recognises situations where an action was taken by an audience operating at diminished capacity and autonomy. This brings us back to the previously mentioned examples of the man screaming ‘fire’ in a crowded theatre and the religious leader in front of an incensed crowd. While due to the logistics of the former case in terms of lack of light, narrow exits, etc., the dearth of autonomy is apparent, it is less obvious in the latter case. This is also what makes the recent case of Donald Trump, a public figure in front of a mass of impassioned supporters, so interesting. It is important to note that the relevant precedent in this case is the landmark Brandenburg v. Ohio judgement of the United States Supreme Court. While we are yet to see its precise applicability, Brandenburg does offer legal scope for Trump’s impeachment, if not criminal conviction. Curiously, it bears a lot of resemblance to Rangarajan. This similarity includes not only in its legal reasoning but also its role and importance in the respective judicial domains.
Therefore, we are now able to imagine the parameters of speech-protective legal reasoning in the form of probability and autonomy. The second dimension of autonomy is necessary when thinking about free speech as it helps us escape from previous criticisms of promotion of censorship through protests and the underlying threat of majoritarianism. This is because a game of mere probability can be rigged by powerful actors. A powerful, conspicuous and angry group can censor others by constantly and regularly rioting. Indeed, autonomy brings the normative requirement in drawing a causation between speech and action.
Free Speech in Emergencies
So far we have gone over certain key considerations when analysing a legal case and legislation regarding speech and public order. These considerations can be complicated by the element of contingency. In normal circumstances, the State shall enjoy ordinary powers but enjoys a more free reign in emergency situations. The Courts, again, can play a role in protecting rights by either deferring to the State or standing up to it. When the judiciary leaves the assessment and definition of circumstances to the legislature, it rewards it more discretion. In Virendra v. State of Punjab, the Court upheld the Punjab Special Powers Act which allowed the government to censure publication on any issue for a specified duration in the interest of public order. This was further used to censor the magazine Pratap in communally charged Punjab. The Court did not engage in any assessment of its own into whether the situation warranted such drastic measures━ a departure from previous precedent. The Indian judiciary has course-corrected since then; putting the burden of proof of justification in this regard on the State instead of putting its trust entirely in the government and its interpretation of circumstances. This is a desirable outcome when seen in light of India’s constitutional vision.
Having explored broadly the spectrum of thought on restriction of speech in the interest of public order, we can see that there is a dominant judicial trend of speech protection in India and the United States, and for good reason. In recent times, however, the continuation of this trend has become questionable with the rise of the phenomenon of democratic backsliding in the world, and more specifically, with judiciaries being more politicised, and often government-aligning, in India and the US. There is still hope though as we enjoy the privilege of a legacy of sound legal decisions and an attendant, citizen-driven civil rights tradition.
Rishabh Chawda is a third-year undergraduate student at Ashoka University studying Political Science and International Relations.