From the iconic film “Sholay” to the famous novel “Lady Chatterley’s Lover”, here are eight facts about the freedom of speech and expression which you might not have heard before:
The Censor Board in India was responsible for changing the ending of an iconic Indian Bollywood film, Sholay, shot in the 1970s. In the original version, one of the chief protagonists, Thakur Baldev Singh (portrayed by Sanjeev Kumar), a former police officer, kills the villain, Gabbar Singh (portrayed by Amjad Khan), at the end of the film. The Censor Board directed the film’s makers to change the ending so that the protagonists give Gabbar Singh over to the police, as the Censor Board did not want a police officer being shown as taking the law into his own hands (or in this case, legs), worried as they were of unrest during the Emergency in India at the time.
Justices of the US Supreme Court used to gather in the basement of the court’s building to watch special screenings of pornographic movies involved in cases before them, in order to determine whether they were obscene or not. Justice Harlan, who had become nearly blind towards the end of his life, would bring one of his law clerks to watch these movies, and the clerk would have to give Justice Harlan a detailed account of what was going on in the movie. Justice Harlan would then exclaim, ‘By Jove, extraordinary!’ It was Harlan who famously wrote, in Cohen v. California,‘one man’s vulgarity is another’s lyric’.
In 1959, it was largely on account of Prime Minister Nehru that the critically acclaimed novel “Lolita”, written by Vladimir Nabokov, was not banned in India. Several copies of the book were being imported into India by Jaico Publishing House in Bombay. The consignment was detained by the Collector of Customs at Bombay for investigation in April 1959 on the ground that its contents might be obscene. The following month, D.F. Karaka, editor of the Bombay weekly, “Current”, wrote a letter to Finance Minister Morarji Desai, complaining that the novel glorified the sexual relations of an adult man with a child of 11 or 13 years and that this was disgusting. Desai wrote in the file, “I do not know what book can be called obscene if this cannot be. It is sex perversion. Home Ministry should be consulted.” However, Nehru intervened and allowed the book to be released. Jaico profusely thanked Nehru and sent him a copy of the novel “Lolita” with their compliments.
Sedition became a ‘cognizable’ offence for the first time in the 1970s, several decades after India became independent. A ‘cognizable’ offence is one in which a police officer may arrest the accused and investigate the case without a warrant or direction from a magistrate. In other words, during the British colonial era in India, a person accused of sedition could not be arrested by a police officer without the officer first obtaining a warrant from a magistrate. By contrast, today, a police officer may, even without a warrant from a magistrate, arrest a person accused of sedition. This change was brought about by the Indira Gandhi government in the 1970s, only a few years before the Emergency was declared in India.
The framers of India’s Constitution decided to give a right of free speech and expression only to Indian citizens. This was despite the fact that those who were not Indians had often exercised a right to free speech in British India. In particular, Britons like Annie Besant and B.G. Horniman had helped espouse the nationalist cause in India’s freedom movement. These two had been a thorn in Britain’s backside, to the point that Chief Justice Norman Macleod of the Bombay High Court once opined that they ‘ought to have been put on board a ship long ago and sent home’. Horniman, as editor of the Bombay Chronicle, was summarily deported to England in 1919.
In recognition of Horniman’s contribution to India’s freedom movement, Mumbai’s iconic and historic ‘Elphinstone Circle’ (previously known as ‘Bombay Green’) was renamed ‘Horniman Circle’ when India became independent. The memorial plaque at Horniman Circle now reads: ‘Dedicated to the Memory of Benjamin Guy Horniman 1873—1948 who lived and worked for the freedom of the Press in India.’ Yet, if Horniman has any Irish great-grandchildren surviving him today, for some strange reason they would not have a right to free speech under India’s Constitution.
Ranjit Udeshi was the partner of a firm which owned a book stall in Bombay. He was prosecuted for selling the book “Lady Chatterley’s Lover” written by D.H. Lawrence. The novel told the story of a baronet who had been wounded in the war and was paralysed from the waist downwards. He permitted his wife, Constance (Lady Chatterley), to engage in sexual relations with other men, sensing her sexual frustration. The case was decided by the Supreme Court of India in the 1960s. Justice Hidayatullah wrote the judgment of the court. Several decades previously, in 1929, Hidayatullah had read Lady Chatterley’s Lover as a student at Cambridge. He had read it not out of any academic curiosity as a law student, but because of its titillating content. As he candidly admitted in a speech in the US later on, “I was a young man then and my interest was very different, an interest of which…the law takes note.”
The case in the Supreme Court was heard over three days. The Attorney General of India supplied five sealed packets to the court’s judges, each containing one copy of the book. When he read the book once again as a Supreme Court judge, Justice Hidayatullah ‘did not find it absorbing’. “Perhaps I had grown old“, he wondered, or the book had ceased to have an impact on him because he was reading it again. However, to his colleagues on the Bench, who had not read it, the book ‘came as a bomb’, the impact on them ‘was terrific’, and their ‘attitude was definitely hostile’. It was Justice Hidayatullah alone who claims to have hesitated, on account of his ‘liking for the author’, in holding the book to be obscene. ‘But in the end, I saw that it would not do to introduce the book into India’, he later explained to an audience of law students in the US. The Supreme Court found that the book was obscene.
In May 1948, the Governor of West Bengal, C. Rajagopalachari, wrote a letter to Home Minister Sardar Vallabhbhai Patel complaining about a violent film which was being prepared on the ‘Chittagong Armory Raid’ of 1930, in which armed Indian revolutionaries attacked and captured armories of the police in Chittagong. Rajaji wanted the film to be censored because it would add to the ‘romantic attraction of crime for semi-educated people’, especially since the film had ‘an aura of patriotic effort round it’.
Patel wrote back saying that the Center, at that time, had ‘no control over the production of films, nor over censorship’, which was controlled by provincial Governments. Patel said that the central Government was contemplating introducing ‘central censorship’. In the meantime, he advised Rajaji to drop a ‘hint’ that “even after the film is ready it might not be possible to permit its exhibition”. It was against this backdrop that the Cinematograph Act, 1952, which remains in force to this day, was enacted. It is under this Act that the Censor Board censors films in India.
A lady called Shaila Bala Devi was the keeper of a printing press called the ‘Bharati Press’ at Purulia in Bihar. The press had published a Bengali leaflet entitled ‘Sangram’. Written in ‘high-flown Bengali’ the leaflet, in an abstract manner, called for a revolution in India. In September 1949 (i.e., before the Constitution came into force), the Government of Bihar issued an order which required Devi to deposit with the Government a security in the amount of ₹2000. Devi took her case to the Patna High Court. In one of the concluding paragraphs of his judgment, one of the judges who decided the case, Justice Sarjoo Prasad, held that even a person who preached murder and incited violence had the freedom to do so under Article 19(1)(a) of the Constitution (i.e., the right to free speech). Prasad said that ‘if a person were to go on inciting murder or other cognizable offences either through the press or by word of mouth, he would be free to do so with impunity’ as ‘he would claim the privilege of exercising his fundamental right of freedom of speech and expression’. This chilling passage of Justice Sarjoo Prasad’s judgment was almost single-handedly responsible for the First Amendment to the Constitution, which substantially watered down the right to free speech in India.
The writer is an advocate at the Bombay High Court, and the author of “Republic of Rhetoric: Free Speech and the Constitution of India” (Penguin, 2017)