Section 124A cannot be treated as a reasonable restriction on the freedom of speech because of the serious harm it inflicts on the ability of people to engage in free political speech. We have seen the importance of elevating political speech to a higher pedestal of constitutional justice. But that elevation will be unhelpful if the ability of the State to regulate political speech is not sufficiently hedged.

When it comes to political speech directed against the government, such speech has to be understood in an absolute sense. In the paradigm of the Constitution, “absolute” must mean that political speech is immune from all forms of regulation. In other words, laws cannot be made to curtail it.

In the discussion and advocacy of political interests, political ideals, political critique, government officials, holders of public office and the development of politically transformative ideas, the freedom of speech must always remain unabridged.

Regulations can only be formulated to deal with those narrow sets of situations in which political speech is “brigaded” with the spectre of an assault on the security of the State. If political speech is used only for the purposes of bringing about an imminently inevitable assault on State security, the brigading of speech with such violent actions can be the subject matter of regulation. However, any regulation that is framed must be reasonable, and the simple invocation of State security – or for that matter public order – must not give the State a free pass to defeat all forms of political speech.

There is also the important issue of the form that political speech takes. It is naïve to believe that people will only engage in political speech which is sober, sophisticated, and has all the trappings of what one may believe are the markers of civility. Political speech involves criticism and implicitly demands change and transformation, and that demand can result in speech and writings often being vituperative, offensive, and insulting. As the US Supreme Court put it, “one man’s vulgarity is another’s lyric.” As a result, the Constitution does not allow the government to decide how a message is to be conveyed; that decision is left within the sole domain “of taste and style so largely to the individual.”

In India, early on in 1951, the Supreme Court struck a note of caution in alerting the government against overreacting to expressions which were vituperative in nature. The idea was that the tone and choice of words in and of itself cannot make the suppression of free speech constitutionally permissible. As the Court put it, if a person were to write calling for a “bloody revolution” and “total annihilation”, writings containing a “good deal of demagogic claptrap,” the State should ideally not act upon it unless there is a compelling justification.

To be sure, when political speech is involved, the principle is clear. Since the Constitution has secured liberties for the people, the discussion of political affairs is not to be unduly fettered.

Consider, for instance, the decision of the US Supreme Court in New York Times v Sullivan. It was recognised that the moment political speech is involved, it is but an inevitability that the tenor of the critique may take varying forms:

Thus we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.   

Building on this, the US Supreme Court in 1969 declared, “[t]he language of the political arena,” where speech targets political officials, including the head of State, can “often be vituperative, abusive, and inexact.”

Personal preferences cannot control constitutional choices, much less the enforcement of the freedom of speech. The ideal to be achieved is complete freedom in the sphere of political speech. Outlawing speech only on the basis of how it has been projected is impermissible.

From a constitutional perspective, the form that political speech takes must not be the controlling factor which justifies its suppression. Rather, what is paramount is the content of the speech. Even though a person may use words which from one view may seem revolting if not outright worthy of condemnation, what must be taken into account is the political content of the speech.

It is well-nigh impossible to regulate each person’s choice of language; it is certainly not the business of the law to do so when it comes to political speech. The desire of the State to control the method in which political speech is conveyed will almost certainly sound the death knell of political speech altogether. At any rate, as a general matter, political speech should be beyond the reach of ordinary methods of regulation. The State ought not to engage in tempering speech in which the State itself is at the receiving end.

Whatever regulation is imposed on core political speech must be treated as valid only if it draws a proportional balance between the speech and certain consequences affecting State security. People must have the full freedom – and more importantly, have the sense of complete freedom – of expressing their views and opinions on political matters.

The justification for thinking along these lines is the democratic interest. To ensure the survival of Indian democracy, to guarantee the success of the Indian republic, and to maintain the continued vitality of Indian political thought, it is critical that people are constitutionally empowered to engage in political speech which touches on matters of democracy and governance, without the slightest fear that a jail cell awaits them at the end of their exposition.

Excerpted with permission from A Constitution to Keep: Sedition and Free Speech in Modern India, Rohan J Alva, HarperCollins India.