The Free Speech Journal

P03 THE PRINCELY LAW
Gandhis Disaffection
P06 REASONABLE RESTRICTIONS

The Crisis of Public Order
P10 ONE TIGHT SLAPP

Getting Silchar-ed
THE FREE
Speech Journal
PARRHESIA SCHOOL OF LEARNING
... And that's how the Supreme Court

upheld the Bombay High Court's
decision, overturning the ban on
publishing James Laines Shivaji.
Our Courts are so

progressive on free
speech issues!
Um, were we even listening

to the same lecture?!
Well, what about the fact that Laine was

harassed by being forced to be part of
the long proceedings?
What do
you mean?
But that's just the

Court process ...
Why is it so easily invoked? How is

this protecting the freedom of
speech and expression?
But the Court gave the

right decision in the end!
Youre both right in a way.

To understand why, lets
ask a more basic question.
The Free Speech Journal
02
Why is free speech

necessary at all?
Lets hear it from Mr.
John Stuart Mill, the
great philosopher and
political economist of
the 19th century.
Without free speech, how do we

criticise unfair government laws and
measures? Free Speech, thus helps us
discern what is right Free Speech is
necessary for the discovery of Truth!
Isnt it Mr. Holmes? You have
handled enough cases as a judge
at the US Supreme Court?
Mohandas Karamchand Gandhi
Sure, and that's why everyone should be able to

voice their concerns freely and that includes
minorities, even the miniscule ones should be
able to participate in public discourse. That's
what a democracy is about.
John Stuart Mill
Oliver Wendell Holmes
Oh, yes, I have! And how do we ensure the

discovery of Truth? Only by allowing everyone
to speak their opinions freely so that a free
trade in ideas is possible ... And the best idea
emerges! Tell us more, Mr. Gandhi!
03
Wait! I'm not
done yet
And to ensure that every citizen of

India is able to participate in a
democracy, our Constitution enacts
Article 19(1)(a).
In 1922, when we were denitely

not a democracy, I was put on
trial for voicing my concerns in
the newspaper, Young India.
Let's just say I was feeling
disaffectionate.
ARTICLE 19(1)(a)
All Citizens Shall
Have the Right to
Freedom of Speech
and Expression.
What's so wrong
with being
disaffectionate? I
feel disaffectionate
about my boyfriend
all the time.
Well, I was disaffectionate

towards the Government
the British Government.
And they weren't nearly
as forgiving as your
boyfriend.
THE PRINCELY LAW

Under Section 124A of the Indian Penal Code,
individuals who speak or make any kind of
representation that might incite disaffection
towards the Government or bring it into
hatred and contempt are guilty of sedition.
But what did

Gandhi say?
Judge Broomeld
Young India
We seek arrest because the
so-called freedom is slavery.
We are challenging the
might of this Government
because we consider its
activity to be wholly evil.
We want to overthrow the
Government. We want to
compel its submission to
the people's will.
That sounds
perfectly
reasonable
04
That's what I said! Section 124 A

under which I am happily charged, is
perhaps the prince among the
political sections of the Indian Penal
Code, designed to suppress the
liberty of the citizen. Affection
cannot be manufactured or
regulated by law. I hold it to be a
virtue to be disaffected towards a
Government which in its totality has
done more harm to India than any
previous system.
I kind of like
this chap ...
Which was six

years in prison.
Even those who differ from you in

politics look upon you as a man of high
ideals and of noble and even saintly
life. So I'll give you the lightest
sentence possible for sedition
Gandhi's sentence was reduced to

just two years in prison on grounds
of health, but sedition sadly
continues to retain its princely
position, even though we're now
living in a democracy.
05
Tell me about it!
59
59
53
53
49
49
46
46
43
43
2010
BINAYAK SEN
CHHATTISGARH
Sens arrest became the rallying point for

a national campaign, and the medical
community joined, followed by Nobel
laureates, writers, activists and people
from all over the country. He was denied
bail, and subsequently lost his case in the
trial Court in 2010, being sentenced to
life imprisonment. Subsequently, Sen was
let out on bail by the Supreme Court in
April 2011.
Activists celebrated, and he continued
his legal battle, appealing his sentence in
the Chhatisgarh HC.
But how is this still

possible now that we're
a proper democracy?
THE
DOCTOR
GOES TO
JAIL
Ah, of course
Mr. Sen.
inayak Sen, a health worker

and an activist working in the remote
areas of Chhattisgarh was arrested in May
2007 for sedition. Accused of being a
courier between an imprisoned Maoist
leader he was treating and his comrades,
the evidence against him was imsy. It
included emails written by his wife to the
ISI (Indian Social Institute) as evidence of
ISIs (Pakistans Inter-Services
Intelligence) involvement.
AND have a
constitutionally
protected right to free
speech and expression!
Well, there are

always exceptions,
as long as they are
reasonable.
06
REASONABLE RESTRICTIONS
In 1946, the Constituent Assembly converged in Delhi.
Frank Anthony
Thakur Das Bhargava
S. P. Mookherjee
Pandit Nehru
B. R. Ambedkar
There was excitement all around.
Communal tensions
seem to be escalating!
The British are

withdrawing!
Our American, Chinese

and Australian friends
send their best wishes!
There was consensus on at least one point.
We need to depart from the British system of un-enumerated rights

and have enumerated rights that will be listed in the Constitution.
07
Debates in the Fundamental Rights
Committee were particularly heated ...
The Draft Constitution in 1947 had proposed the

protection of an absolute freedom of speech,
expression and assembly under the predecessor of
Article 19(1)(a), which was then Article 13.
The communal situation

in the country is very
dangerous now. There
are riots in Punjab and
NWFP, and unrest in
Assam and Bengal
In such a time, I wonder if it
is the best idea to have
absolute freedom of speech
and expression?
But class hatred is a

matter already addressed
by the Indian Penal Code!
Have not all our freedom
ghters been arrested for
sedition? And the Constitution
still intends to criminalise it?
These so called fundamental

rights have been framed from the
perspective of a police constable!
We should protect the right to freedom of speech and

expression under our Constitution, subject to public order,
morality, security of State and national security and
prevent any speech which promotes class hatred and
communal hatred, as well as seditious obscene and
libellous matter.
08
But we cannot have absolute freedom of speech!

Even the American Constitution is not absolute in
this regard, and I can cite at least one US Supreme
Court judgment restricting freedom of speech on
each of these grounds!
I move another amendment to

introduce the word reasonable
before these restrictions suggested
by the Drafting Committee ... This will
put the soul back in Article 13.
Having these restrictions under our

Constitution itself will prevent
endless litigation where courts will
have to intervene
REASONABLE
RESTRICTIONS
Thakur Das Bhargava
Finally ...
Nothing [...] shall affect the

operation of any existing law
in so far as it relates to, or
prevent the State from
making any law relating to,
libel, slander, defamation,
contempt of Court or any
matter which offends against
decency or morality or which
undermines the security of, or
tends to overthrow, the State.
But I made sure

it got back in!
By a quirk of history, the word

reasonable was left out in the nally
drafted provision of Article 19(1)(a).
Following two Court decisions which

struck down government attempts to
ban publications from both ends of
the political spectrum, Nehru felt that
19(1)(a) needed to be amended to
hold the country together and ensure
law and order. A Select Committee
was formed, which decided to
introduce the terms in the interests
of public order and friendly relations
with states in the list of exceptions to
19(1) a. They also introduce the word
reasonable before the term
restriction for 19(1)a.
09
Meanwhile, in the Parliament ...
No country can be governed by force

or by coercion!
State legislatures might use such
powers to crush political opposition!
S. P. Mookherjee
How many of you remember, or

have you forgotten about the
complete breakdown of law and
order during the partition just three
and a half years ago in the city of
Delhi, or in Punjab, or in that entire
body of western Pakistan? This
constitution was not there, but I am
not thinking of the constitution.
Where was freedom not
constitutional freedom, but the
freedom of normal human impulses
where were those freedoms?
Frank Anthony
The text nally imposed reasonable

restrictions on the right to 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.
Amongst other matters, the

amendments will help the
government curb cases of social
boycott of scheduled castes, by caste
Hindus in villages and further curb
practices like preventing scheduled
caste individuals from using wells.
This First Amendment to the
Constitution was put to vote and
passed in 1951.
10
Looking through free speech

jurisprudence in our country,
note that Courts don't have a
particularly bad record when it
comes to free speech.
Ah, yes - our progressive free speech

jurisprudence has unfortunately not
been enough to stop people from
getting SLAPPed
But what about all the

unreasonable cases
we've been hearing
about in the news?
SLAPPed?
ONE
TIGHT
SLAPP
2005: Rashmi Bansal is a blogger
and editor of Just Another
Magazine (JAM) based in Mumbai.
Bansal's magazine ran an expose
unveiling the truth behind claims
made by IIPM, which then
demanded I 25 crore from her, for
the presumed loss of goodwill.
Oh, and they led

a suit against me
in Silchar, Assam!
2009: Maheshwar Peri is the

publisher of the magazine
Careers360 based in New Delhi.
Peri's magazine ran an article
titled IIPM - Best only in claims?,
investigating the authenticity of
many of the claims made by the
IIPM in their advertisements.
They also led a

suit against me
and my publisher
in Silchar.
2011: Siddharth Deb is an author

publishing a chapter of his upcoming
book in Caravan Magazine, based in
New Delhi. Deb's piece was a prole
of Arindam Chaudhuri, which shows
how Chaudhuri built an image for
himself and how he runs his
educational institution.
You guessed it.

Silchar-ed!
The Indian Institute of Planning and

Management is a par excellence
business school, headquartered in
New Delhi, with a number of
branches across India. Founded in
1973, by the great M. K. Chaudhari,
the current honorary dean of the
institution is his son, Arindam
Chaudhari, which is obviously me.
11
So what do these
three individuals
have in common?
That's right. You could

say they were all
SLAPPed by me!
Bad luck?
They all had

cases led in
inconveniently
far locations!
Well put, Arindam. Strategic Litigation

Against Public Participation or SLAPPs,
refer to cases where suits have been
led with the intent of silencing voices
of protest and public opinion.
These cases aren't just held together

by a common plaintiff: they are also
bound by the fact that the case led
had a very slight substantive basis.
That's a bit
extreme.
But they caused unfathomable

damage to the reputation of IIPM and
affected innumerable future
operations of IIPM.
Yes, a somewhat inated

charge and one that
Appellate Courts in the
country would be quick to
strike down in upholding
the principle of free speech.
Like in James
Laines case!
But they still

have to go
through this
ridiculous
harassment!
The problem is the way they are so

easily entangled in the arduous legal
process: the Process itself becomes
the punishment.
12
Ive been
SLAPPed around
a fair bit myself.
In 2004, M. F. Hussain sold a

canvas painting of a nude woman whose
shape mimicked the contours of the
map of India, with names of Indian cities
written over the body. The painting
became controversial two years later,
when it was advertised as part of an
online auction where it was referred to
as Bharat Mata. It was subjected to a
prolonged campaign of legal action and
allegations of hate speech'. Complaints
were led against Hussain in Bhopal,
Indore, Haridwar, Pandharpur and
Ah! How can we

forget, Mr. Hussain!
Rajkot; as a result, he sought to have all

proceedings transferred to a single court
the High Court of Delhi.
The judge, Sanjay Kishan Kaul, ruled in
Hussain's favour: Our culture breeds
tolerance, both in thought and actions.
I have penned down this judgment
with this fervent hope that it is a
prologue to broader thinking and
greater tolerance for the creative
eld. A painter at 90 deserves to be in
his home painting his canvas!
Delhi
Haridwar
Bhopal
Rajkot Indore
Pandharpur
Amen.
THE FREE
Speech Journal
Supported by
PUBLISHED BY
Alternative Law Forum
122/4 Infantry Road
Next to Balaji Art Gallery
Bangalore, India
560001
CONTRIBUTORS
Alternative Law Forum
PRINTED AT
Kolorkode
Shantinagar, Bangalore
PUBLICATION DESIGN
By Two Design
Tejas Pande
ILLUSTRATION
By Two Design

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P03 THE PRINCELY LAW

P06 REASONABLE RESTRICTIONS

P10 ONE TIGHT SLAPP

... And that's how the Supreme Court

Our Courts are so

Um, were we even listening

Well, what about the fact that Laine was

But that's just the

Why is it so easily invoked? How is

But the Court gave the

Youre both right in a way.