The fundamental rights sub-committee of the constituent assembly, headed by Sardar Vallabhbhai Patel, placed a draft interim report on fundamental rights before the assembly for its consideration on April 29, 1947.
In response to the interim report, Somnath Lahiri, who was the sole representative of the Communist Party of India, remarked that the fundamental rights had been framed from the point of view of a police constable. The reason for such consternation was that almost all such rights had been subjected to provisos (clauses which restrict the main clause) which took away the right completely in “grave emergency.”
He pointed out that Indians had suffered in the past due to denial of rights by an “alien and autocratic government” which restricted the liberty of the press. Therefore, he felt it necessary that the press in free India should be free of restrictions and protected by the constitution. He remarked that the provisions sought to be brought in would leave Indians worse off than earlier.
He made a special mention of restriction of seditious speech by contending, “Here according to Patel a seditious speech is a punishable crime. If I say at any time in the future, or the Socialist Party says, that the government in power is despicable, Sardar Patel if he is in power at that time, will be able to put the Socialist Party people and myself in jail, though as far as I know, even in England a speech, however seditious it may be, is never considered a crime unless an overt act is done.”
Lahiri was not done yet. He attacked an amendment proposed by C Rajagopalachari that wanted to make the restriction more stringent. He said, “These are the fundamental bases of the fundamental rights of a free country, but here a seditious speech is going to be an offence; and Shri Rajagopalachari wants to go further. Sardar Patel would punish us if we make a speech, but Rajaji would punish us even before we have made the speech. He wants to prevent the making of the speech itself if in his great wisdom he thinks that the fellow is going to make a seditious speech.”
He concluded his objection by asserting that the political opposition must have full freedom to express its views for democracy to develop.
The severe opposition mounted by Lahiri proved to be effective as Sardar Patel deleted the word “seditious” from the proviso to Clause 8, which granted liberty for the exercise of freedom of speech. After much debate, the draft constitution of India was tabled before the assembly on Feb. 21, 1948.
Fundamental rights were enumerated under Chapter III of the draft constitution with Article 13 providing for “protection of certain rights including freedom of speech, etc.” Article 13(1)(a) guaranteed all citizens the right to freedom of speech and expression. However, Article 13(2) provided that such freedom of speech and expression would not affect any existing law or prevent the State from making any law relating to “libel, slander, defamation, sedition or any other matter which offends against decency or morality or undermines the authority or foundation of the State.”
Sedition found its way back as a restriction of freedom of speech and, as (lawyer) Gautam Bhatia points out, restrictions on the right to freedom of speech and expression were not qualified by the word “reasonable,” thereby potentially empowering the government to draft sweeping legislations to curb free speech.
The debate on Article 13 commenced on Dec. 1, 1948 with Damodar Swarup Seth suggesting an amendment which proposed absolute freedom of speech with no riders and added the freedom of press as a right distinct from freedom of speech and expression. He was of the view that Article 13 in its original form cancelled out the rights guaranteed under it by placing onerous restrictions.
He pointed out that the restrictions to freedom of speech and expression were couched in very broad terms, which would ensure that the Indian press would not have any greater freedom than what existed under British rule. He was of the view that even citizens would have no means of getting the law against sedition invalidated despite the same having the potential to violate their civil rights.
Thereafter, KM Munshi proposed an amendment to Article 13 whereby he sought to remove the word “sedition” from the list of restrictions to free speech while retaining restrictions on libel, slander and defamation. He also proposed to substitute the words “undermines the authority or foundation of the State” with the words “undermines the security of, or tends to overthrow the State.”
He said, “The importance of this amendment is that it seeks to delete the word ‘sedition’ and uses much better phraseology… The object is to remove the word ‘sedition’ which is of doubtful and varying import and to introduce words which are now considered to be the gist of an offence against the State.”
He quoted the judgment of the federal court in the Niharendu Dutt Majumdar case to underline that criticism of the government is the essence of democracy. He demanded that a distinction be drawn between criticism of the government and incitement of which would undermine the security or order on which civilised life is based. He advocated that Justice Gwyer’s interpretation of Section 124A of the IPC better reflected the evolution of Indian society and anything contrary to that would be bad law.
Sardar Hukum Singh, a representative from East Punjab, went one step ahead and proposed that all the restrictive clauses of Article 13 should be done away with. He felt that the fundamental freedoms granted under Article 13 would be left at the mercy of the state machinery if the restrictions were not removed.
He was followed by Thakur Das Bhargava, another representative from that region, who proposed that restrictions on free speech should be preceded by the word “reasonable,” and the word “sedition” be deleted altogether.
By suggesting the insertion of the word “reasonable,” Bhargava was trying to put a soul in the lifeless Article 13. He was of the view that if the word “reasonable” was inserted, then it would leave the door open for courts to see whether the restrictions imposed were reasonable and necessary or not. It would act as a safeguard against executive and legislative overreach and prevent the infringement of freedoms by the government of the day.
When the debate on Article 13 continued the next day, Seth Govind Das mounted an opposition to “sedition” as a restriction on free speech. It will be worthwhile to reproduce what he had to say about the desirability of “sedition” in Article 13.
Consequently, the word “sedition” was dropped from Article 13 of the draft constitution. The freedom of speech and expression appeared in Article 19 (originally Article 13) in the final constitution of India as Article 19(1)(a) with 19(2) placing certain restrictions on it.
However, the constitutionality of Section 124A of the IPC was in doubt after the removal of “sedition” from Article 19 as well as because of Article 13, which provides that any law existing as on the date of the commencement of the constitution, that is, Jan. 26, 1950, would be void to the extent it was inconsistent with fundamental rights under Part III of the constitution.
Sedition under Section 124A of the IPC continued to be a statutory offence as Article 372 of the constitution provides that any existing law in force in India as on Jan., 1950 would continue to be in force unless explicitly modified or repealed by the legislature.
Excerpted from Chitranshul Sinha’s The Great Repression with permission from Penguin Random House. We welcome your comments at ideas.india@qz.com.