The Supreme Court on Tuesday struck down Section 66A of the Information Technology Act that criminalised the posting of “offensive” content online.

The reaction to this judgment was immediate and jubilant. Twitter exploded, as did the press. Politicians of all stripes welcomed the judgment too – with as much enthusiasm as they had once promulgated and defended Section 66A in the first place.

This cathartic reaction was, in many ways, expected. Freedom of speech winning in India is rare. In fact, the country has a glorious tradition of restricting free speech. So vital is this quality to the nation’s lifeblood that the very first amendment made to India’s constitution sought to restrict freedom of speech. In an ironic coincidence, the First Amendment to the US’s constitution prohibits any abridgement of free speech. Maybe a lot can be said about the path a country wants to take from only the first amendment to its constitution.

On 26 January, 1950, our founding fathers awarded India a fine constitution which, among other things, guaranteed its citizens “the right to freedom of speech and expression”. Almost immediately though, the government was to regret this over-generosity, as the judiciary started to limit executive action on the basis of this right.

Indian courts weighed in

In Bihar, a government order seeking to restrict a violent political pamphlet was quashed by the Patna High Court in October, 1950. So liberal was India’s freedom of speech at the time that a judge on the case held that “if a person were to go on inciting murder or other cognisable offences either through the press or by word of mouth, he would be free to do so with impunity because he could claim freedom of speech and expression”. This is remarkably similar to the US Supreme Court’s 1969 ruling in the Brandenburg case, which held that the State cannot forbid advocacy of the use of force or of law violation unless the violence was intended, likely and imminent.

But the Patna High Court judge had also gone on to say:
"I cannot with equanimity contemplate such an anomalous situation but the conclusion appears to be unavoidable on the authority of the Supreme Court judgments with which we are bound. I, therefore, wish that my decision on the point would sooner than ever come to be tested by the Supreme Court itself and the position re-examined in the light of the anomalous situation pointed out above."

Earlier, in March 1950, in Delhi, the government’s attempts at pre-censoring the Rashtriya Swayamsevak Sangh’s mouthpiece, the Organiser, had been over-ruled. The East Punjab Public Safety Act, 1949, under which the curbs were being applied, was held to be unconstitutional by the Supreme Court.

Another case in May 1950, involving a left-leaning journal called Crossroads, published by Romesh Thapar from Mumbai (the 66A judgment, in fact, drew on this case), met with the same fate. At the time, Madras state had banned the Communist Party and, as part of that policy, prohibited the entry and circulation of Crossroads in the state. Thapar contested this ban legally and won, with the Supreme Court declaring the Madras Maintenance of Public Safety Act, 1949 unconstitutional.

The Communist Party had, at the time, declared war on the new dominion with the slogan “Yeh azadi jhooti hai” (this freedom is fake) and in Telangana was directly battling the Indian army. Thapar, while not a card-carrying member of the party, was widely seen to be a communist sympathiser and, therefore, this decision by the Supreme Court greatly alarmed the administration.

Agreement on curbs

Within a week of the decision, Home Minister Vallabhbhai Patel wrote to Prime Minister Jawaharlal Nehru, complaining that this ruling “knocks the bottom out of most of our penal laws for the control and regulation of the press”. Patel also expressed concern that this meant that the government would be unable to gag Hindu Mahasabha leader S P Mookerjee, who was leading a troublesome campaign to get Bengal’s partition annulled (ironic, because just three years before, he was one of its biggest supporters).

Nehru and Patel did not often see eye to eye but on this matter there was perfect agreement within the duumvirate: both leaders believed in a strong, centralised state. In fact, not only Nehru and Patel, there was broad agreement on this matter throughout the government. BR Ambedkar, while less hawkish than either Nehru or Patel on the matter, still agreed on the need for curbs.

Events moved fast. By February 1951, Nehru had constituted the Cabinet Committee on Amendment to modify Article 19 (which contained the freedom of speech). Law Minister Ambedkar suggested that the phrase “reasonable restrictions” be added. The Home Ministry, unsatisfied by the qualifier “reasonable”, sought to have it removed. This qualifier left it up to the judiciary to decide what “reasonable” meant, curtailing the powers of the government.

Opposition from Hindu Mahasabha

Nehru came down on the side of the Home Ministry and the draft bill introduced in Parliament allowed the State to make laws imposing “restrictions” on freedom of speech and expression “in the interests of the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence”.

The opposition to this bill was fierce, spearheaded by SP Mookerjee. Restrictions on free speech in the interests of “friendly relations with foreign States” directly gagged his efforts to overturn partition and he was naturally indignant. “The Prime Minister believes that agitation to end partition is harmful to the country, but I think partition should be annulled. So why can we not each give our views and let the public decide,” argued Mookerjee in a forceful response to the bill.

In the face of this fierce opposition, the government backed down a bit. Nehru reintroduced the qualifier “reasonable”. The compromise in place, Parliament passed the bill 228 to 20.

This might seem like a minor legal quibble but this one adjective was perhaps crucial to the eventual scrapping of 66A. The Supreme Court judgment discussed what “reasonable restrictions” meant and in the end pronounced that “Section 66A arbitrarily, excessively and disproportionately invades the right of free speech and upsets the balance between such right and the reasonable restrictions that may be imposed on such right”.

Misuse of curbs

In spite of the softening effect that the adjective “reasonable” had, this amendment did still have a rather devastating impact on freedom of speech in India. It meant, for instance, that modern India has seen the continued existence of a vaguely defined hate speech law (Section 153A of the Indian Penal Code) and a blasphemy law (Section 295A of the Indian Penal Code).

Backers of a limited right to expression usually argue that unrestricted free speech would cause law and order issues in India, much as the government did in 1951. The fact that India is a volatile country is not in doubt. Just last year, a young Muslim man in Pune was murdered by a mob, incensed apparently by derogatory images of Shivaji and Bal Thackeray.

Like a number of other statist solutions, however, curbs on free speech in the service of public order looks far better on paper than on the ground.  As we have seen in Mumbai in 1993 or in Gujarat in 2002, the state does not really seek to clamp down on free speech for such utilitarian purposes of public good. Instead, free speech curbs are used for petty political ends, banning books, movies, paintings and even Facebook status updates.

In spite of the silver lining of this judgment, it is important to keep in sight the large dark clouds that India’s structural curbs on free speech are. Freedom of expression is really not a political issue in India and there exists remarkable political consensus on their continuation. From Modi to the Congress, every politician - no matter their unctuous statements now - supported Section 66A and probably will continue to do so for other restrictions on free speech.


Corrections and clarifications:  This article had been edited to include information about the Patna High Court judgement in October 1950, and the Supreme Court judgement in the Organiser case in March 1950.