In the Indian constitution the words “freedom of the press” do not find express mention, but are comprehended within Article 19(1)(a), i.e. every citizen’s fundamental right to free speech and expression. While the old adage (recently brought back into the limelight by Steven Spielberg’s “The Post”), “the press was to serve the governed, not the governors” certainly applies in principle to the Indian context. There are certain restrictions on this freedom of speech and expression that constitutional amendments have brought about.
The first amendment of the Constitution in 1951 introduced in Article 19(2), enumerated three expressions, to reasonably restrict the abuse of this fundamental right of free speech and by extension fundamental right of the free press. Reasonable restrictions were placed on free speech in the interest of upholding of ‘public order’, ‘friendly relations with foreign States,’ and ‘incitement to an offence’.
In today’s day and age much of the press as well as social media by their consistent and daily barrage of jingoism, hyper-nationalism, misinformation as well as the unfettered amplification by social media platforms of extreme voices, have created an increasingly negative atmosphere causing major rifts in society. We can certainly say that there is a major deviation from the society envisioned by our founding fathers who played a role in bringing about the 1st Constitutional amendment. This is better understood by drawing a parallel between the present and the events leading to the introduction of the 1st Constitutional amendment.
We do live in similar times to those that prevailed when the 1st Constitutional amendment was brought about in 1951. Today, communal rhetoric is rampant from our political leadership. Responsible journalists are defamed for saying things they actually didn’t to create a sense of divisiveness and television studios have turned into simulated war-rooms devoid of reasonable conversation. The historical background (we benefit from Abhinav Chandrachud’s ‘Republic of Rhetoric’ to understand this period) to the introduction and subsequent coming into force of the 1st Amendment is of immense contemporary importance.
In the late 1940s, Syama Prasad Mookerjee’s Hindu Mahasabha was speaking about an ‘Akhand Bharat’ (unified India), a direct incentive to conflict with the newly created state of Pakistan. Mookerjee’s speeches dealt primarily with criticizing the ill-treatment of Hindus in Pakistan stating that while minorities in India were secure, Hindus in Pakistan faced severe persecution.
Mookerjee in this light went on to make several speeches bordering on calling for a war between India and Pakistan and their forcible reunification. These speeches violated certain clauses of the pact signed by the Indian and Pakistani Prime Ministers, Jawaharlal Nehru and Liaquat Ali Khan – a clause of the pact required the governments of both countries to prohibit propaganda, which incited war between the two countries.
Interestingly, Mookerjee resigned from independent India’s first cabinet given his disagreement with this pact. Patel and Nehru (contrary to what today’s ruling class would have you believe) exchanged serious letters figuring out a way to find a way to enforce this pact under Indian law.
In a letter to Nehru dated July 3, 1950, Patel wrote as follows: “I find no legal powers to deal with either the Press or men like Syama Prasad Mookerjee…My feeling is that very soon we shall have to sit down and consider constitutional amendments.”
A judgment by the Patna High Court in the case of Shaila Bala Devi (which extended the right of free speech to not render a person culpable even if he advocates murder and other crimes of violence) served as an immediate cause for a constitutional amendment for ‘freedom of speech and expression.’ Many members of Parliament at the time supported the amendment because it would also enable the government to clamp down on hate speech. There were numerous reports of the press spreading misinformation leading to communal tensions. Therefore to deal with these grave concerns of the day, the three above-mentioned expressions were added by way of the Amendment to the Constitution.
In the present day and age, large sections of the press for a variety of purposes are stoking communal tensions and encouraging hate speech by their editorial standpoints. With the addition of social media, excessive airtime has been given to divisive rhetoric be it coming from persons with extreme viewpoints or from top leaders of our country who hold constitutional positions, in order to gain electoral victories.
At such junctures in a nation’s history, it is important for those with an interest in the progress of the country within the ambit of the constitution to understand historical circumstances that have shaped the constitution as it is today and to use the nation’s constitutional memory to not let history repeat itself.
Checks On Social Media: Post the Striking Down of Section 66A, IT Act, 2000
While the Indian constitution certainly provides for the freedom of the press, the press being an organization with certain editorial guidelines – there are certain constitutional questions being raised around the world about where to draw the line with free speech and social media.
While websites may now have certain guidelines for objectionable content, a citizen while expressing himself in cyberspace is only checked by his conscience. Section 66A of the Information Technology Act, 2000 which dealt with ‘punishment for sending offensive messages through communication services etc.’ was recently deemed draconian and unconstitutional by the Supreme Court in a 2015 judgment.
This was in the aftermath of an incident wherein two girls were arrested in Mumbai for Facebook posts questioning the shut down of the city on the death of Shiv Sena supremo Balasaheb Thackeray. Given this on one side and the continual negative atmosphere created via social media on the other side – there must be an attempt to reach a middle ground.
There should surely be an attempt to write legislation that reaches a middle ground by not being too draconian yet incorporating the reasonable restrictions as espoused by Article 19(2) of the Constitution and creating a law that tempers uncensored voices.
About the author: Yash Johri is a first-year student at the Faculty of Law, Delhi University. He is an alumnus of Georgetown University’s School of Foreign Service. He majored with a focus on China, South East Asia, and India through the lens of international law, foreign policy as well as politics. Yash also minored in Mandarin (Chinese) and has attained proficiency. While at Georgetown, Johri was a founding member of the Georgetown University India Initiative and was the founding editor of GU India Ink, a blog dedicated to covering policy and political issues related to India from Washington DC. Follow on Twitter: @yashjohri6