The right to free speech in India presents a fascinating inherent contradiction. It is free so long as you are a citizen. And for so long as your chosen manner of expression doesn’t fall under the so-called “reasonable restrictions.” Recent newsworthy events perhaps invite us to take a closer look at the public order exception, which finds its genesis in two seminal Supreme Court judgements, Romesh Thappar vs The State of Madras, 1950 AIR 124 and Brij Bhushan and Ors. vs. The State of Delhi, AIR 1950 SC 129. Importantly, at the time the Supreme Court was examining the issues in both cases, Article 19(2), which spells out the exceptions to Article 19(1)(a), only applied to existing or future laws related 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 not of any “reasonable restrictions” or “public order.”
In Brij Bhushan, the Chief Commissioner of Delhi directed Brij Bhushan, the printer and publisher, and K.R Malkani, the editor, of the Organizer, a weekly magazine published by the RSS, to submit for pre-publication scrutiny any portions of the magazine that deal with communal news or news about Pakistan. These directions, passed under the East Punjab Public Safety Act, 1949 (as extended to the Delhi Province), were made since the Organizer, as per the authorities, was publishing “highly objectionable matter (sic) constituting a threat of public law and order.”
The legislation in question was framed under the Government of India Act, 1935, which permitted Provincial Legislatures to frame laws with respect to matters of “public order”, similar to how states are permitted to frame laws with respect to matters like labour laws, as contained in the State List of the Constitution of India, 1950. The petitioners challenged the section of the legislation under which the order was issued, claiming that it infringes the right to freedom of speech and expression and that it does not fall within the ambit of the exceptions under Article 19(2). The Court, noting that prior restraints are a violation of the right to free speech and expression, allowed the petition and quashed the Chief Commissioner’s order for reasons similar to those given in its decision on even date in Romesh Thappar.
Justice Fazl Ali, in dissent, agreed that prior restraints were incompatible with Article 19(1)(a), though he disagreed with the majority’s finding on the impermissibility of the restriction vis-à-vis Article 19(2). Noting that, as per the Government of India Act, 1935, anything that affects public tranquility of a province would also affect public order, and therefore a state legislature is empowered to frame laws on public tranquility and public order. The act under examination used the term “public safety,” which, according to him, was a matter allied with the issue of public order, though their relationship required a separate examination. For this, he referred to their opposite concepts, namely public unsafety and public disorder, finding that public disorder was wide enough to include matters ranging from riots to a demonstration that affects a small group of people, while public unsafety would include serious disturbances of public tranquility and security of State. To him, “public order” could be equated with or contextualized as public tranquility, and “public safety” was equivalent to security of the State. Finding that public disorders and the disturbance of public tranquility both undermine the security of State, he held that any law seeking to prevent such actions should be permissible under Article 19(2).
Similarly, in Romesh Thappar, the State of Madras prevented the entry and circulation of a weekly magazine called Cross Roads, that was published, printed and edited by Romesh Thappar in Bombay. Under the powers granted to the Governor of Madras under a section of the Madras Maintenance of Public Order Act, 1949, (which was also framed under the public order provision of Government of India Act, 1935) the ban was issued, “for the purpose of securing the public safety and the maintenance of public order.” The key question before the Court here was whether the powers permitting the restriction on speech under the legislation fell within the exception to Article 19(1)(a) for “undermining the security of, or tends to overthrow, the State.”
Here, we see another split in the Court, with the majority noting that “public safety” would ordinarily mean and include the security of the public and freedom from danger, and anything that prevents dangers to public health would also be regarded as securing public safety, with the meaning varying as the context may require. However, the construct of the legal provision in question was wide enough to include trivial matters and not just grave violations affecting the security of State. Here, since the law was not narrowly tailored to only provide for more serious or aggravated actions that affect the security of State and that it was not directed solely towards restricting speech that affects security of State, it should not be permitted under Article 19(2). Therefore, the law in question was inseverable and unconstitutional.
Justice Fazl Ali, again in dissent, instead found that the petition should be dismissed and that the law should not be struck down. Building on his dissent in Brij Bhushan, he noted that the real issue at hand was whether actions that affect public safety and the peace and tranquillity of a province also undermine security of the State. He felt that it should be, and that any law that prohibits the circulation and entry of any materials on account of maintaining public order and securing public safety ought to be permissible under Article 19(2). He found himself unable to agree with the majority on the proposition that the circulation of a document that is calculated to disturb public tranquillity and affect public safety cannot be prohibited since such matters are not matters that can undermine security of the State.
Seemingly agreeing with Justice Fazl Ali’s dissent in these two verdicts and questioning the inability to make law on matters affecting the wider conceptualization of “public order,” Parliament passed the Constitution (First Amendment) Act, 1951, amending Article 19(2) to include, with retrospective effect, 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,” a construct more familiar to us today to Brij Bhushan and Romesh Thappar. Though later decisions, most notably Dr. Ram Manohar Lohia vs State of Bihar and Others, 1966 AIR 740, have attempted to define and narrow the understanding of the public order exception, we see repeated cases of widening application, as it continues to remain an unfortunately oft-used mechanism to restrict speech.
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