The framers of India’s constitution were primarily concerned with three broad themes pertaining to the right to free speech and expression.
Firstly, whom should the right be given to, only Citizens or non-Citizens?
Secondly, should the right to a press be specifically recognized?
Thirdly, and perhaps most importantly, what restriction ought to be imposed on it?
This third question occupied much time in the constituent assembly. The framers of the constitution asked themselves questions such as whether the right to free speech should give away to the existing laws on sedition, which had been used by the colonial government to stifle, prosecute and imprison members of India’s freedom movement. And whether the right to free speech should be subordinated towards ensuring that hate speech is not used to create tension between members of different religious communities, especially in the context of the large-scale partition related rioting.
The constituent assembly itself was a chamber of intelligent community. Smaller committees of the Assembly were established to aid in the drafting process of India’s constitution. Among these, there was an Advisory Committee on Fundamental Rights, a body of approximately fifty members whose ranks included the likes of Dr B.R Ambedkar, Vallabhbhai Patel, K.M Munshi and others.
While the Advisory committee in turn created a smaller sub-committee on fundamental rights consisting of approximately ten members. Additionally, the Drafting Committee, consisting of approximately seven members, was responsible for the overall drafting of the constitution.
Three draft Constitutions had been prepared for India in the colonial era which spoke of a right to free speech.
The First of these, the Constitution of India Bill 1895, was prepared under the guidance of Bal Gangadhar Tilak. The second, the Commonwealth of India Bill, 1925 was drafted by a ‘National Convention’ of over 255 members.
The third was a report prepared by a committee under the chairmanship of Motilal Nehru, which came to be known as the Nehru Report, 1928. Apart from that, at least four drafts on fundamental rights prepared by members of the sub-committee appeared to have been in circulation at the time of the second meeting of the sub-committee which was held on 24 March 1947, which contained any mention of a right to free speech.
These were the drafts of Pro. K.T Shah, K.M Munshi, Harnam Singh and DR. B.R Ambedkar.
Pertaining to Press, none of the three colonial-era draft constitutions provided for a separate right for the press. Among the early draft which was in circulation at the time of the second meeting of the Sub-Committee, whose draft was prepared by K. Munshi, Ambedkar and Harnam Singh, provided for a separate right for the press.
Prof. K.T Shah’s draft was the only one that did not specifically identify the separate right for the press. But later, on March 26 1947, the sub-committee decided by a majority vote that no separate provisions need be made in the constitution for the rights of the press ‘in view of the right to Freedom of Speech and expression already included’.
In the constituent assembly, K.T Shah, whose draft had not identified a separate right for the Press, opined that a separate provision must be made to ensure the rights of the press.
Two other members of the Assembly also asked for a separate right of speech geared towards the press. And it was very interesting that later, Dr Ambedkar changed his opinion and rejected the demand for a separate press right, by arguing that the right of the press was covered by the broader right to free speech and expression.
And hence B.N Rao, who was the constitutional adviser to the Constituent Assembly, also opined that it was not necessary to provide specifically for the freedom of the press because this was covered by the right to free speech and expression.
The U.S constitution, in the 1st Amendment, provides that ‘Congress shall make no any law which abridging the freedom of speech, or of the Press’. However, though the framers of India’s Constitution were inspired by the US constitution for other clauses, a specifically articulated right for the press did not find its way into the Indian constitution.
This is particularly puzzling and interesting because the press in Colonial India, both the Indian language press and the English language press in Indian hands, were used as tools for disseminating Nationalist propaganda.
Our Nationalist leaders like Gandhi and Tilak had newspapers and they were often prosecuted for their writings. As I have mentioned earlier, several laws were enacted during the colonial regime that infringed the rights of the press. It is therefore very surprising that the framers of the constitution did not consider it necessary to ensure a special place for the freedom of the press in the constitution.
While the Constitution of India Bill, 1895, conferred a right to free speech only on Citizens, both the Commonwealth of India Bill 1925 and the Nehru report 1928, gave a right to free speech to all persons, Citizens and non-Citizens. Among the four members of the Sub-committee who prepared drafts on fundamental rights, there appeared to have been broad agreement that the right to free speech should be available to non-Citizens as well.
Drafts prepared by K.T Shah, Harman Singh and Dr Ambedkar did not qualify the right to free speech as belonging to Citizens alone.
Munshi’s draft conferred the right to free speech on Citizens alone. However, on 25 March 1947, the Sub-committee decided by a vote of 5-3 that the Right to free speech was to be given only to citizens (Republic of Rhetoric Free Speech and the Constitution of India, Abhinav Chandrachud).
This decision, which almost went without question thereafter, was perhaps taken because members of the Sub-Committee believed that non-citizens could not be trusted with the right to free speech because they would not necessarily have had India’s Best interest at heart.
But if this argument is so, then this is also very puzzling because there were at least two Britons, Annie Besant and B.G Horniman, who played a prominent part in the nationalist movement, and several others like them who were very sympathetic towards the nationalist cause in varying degrees. Further, by restricting the right to free speech only to citizens, the framers of the constitution, whether consciously or otherwise, denied the right to free speech to artificial persons who cannot be citizens.
This was first published here.