An inspired dissent

ruled in Redmond-bate vs Director of Prosecutions that free speech included not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative, provided it did not tend to provoke violence. Freedom only to speak inoffensively was not worth having. What the Speakers’ Corner in the Hyde Park, where the law applied as fully as anywhere else, demonstrated was the tolerance which was both extended by the law to opinion of every kind and expected by the law in the conduct of those who disagreed, even strongly, with what they heard.

“From the condemnation of Socrates to the persecution of modern writers and journalists, our world had seen too many examples of state control of unofficial ideas.”

It is a thousand pities that the Supreme Court of an independent India should uphold a law that was inspired by racist and colonial sentiment. Section 124A had once been Section 113 of Thomas Babington Macaulay’s Draft Penal Code of 1837, but it was omitted in the Indian Penal Code when it was enacted in 1860. It was introduced through an amending Bill by the Law Member of the Governor General’s Executive Council, Sir James Fitzjames Stephen, on August 2, 1870. He said: “This law was substantially the same as the law of England at the present day, though it was much compressed, much more

BENJAMIN GITLOW, a member of the left wing of the Socialist Party of the United States, was convicted under the Criminal Anarchy Act for writing a pamphlet called The Left Wing Manifesto, which advocated non-parliamentary methods. In 1925, the U.S. Supreme Court affirmed his conviction. Oliver Wendell Holmes, one of the judges in the case, wrote a dissent in which another judge, Louis Brandeis, joined:

“It is said that this manifesto is more than a theory, that it was an incitement. Every idea is an incitement. It offers itself for belief and, if believed, it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth. The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker’s enthusiasm for the result. Eloquence may set fire to reason. But whatever may be thought of the redundant discourse before us, it has no chance of starting a present conflagration. If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.” distinctly expressed, and freed from a great amount of obscurity and vagueness with which the law of England was hampered.”

Section 124A of the Indian Penal Code was, thus, deeply rooted in English law as its very language reveals: “Whoever…brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the government established by law in India, shall be punished with imprisonment for life…or with imprisonment which may extend to three years plus fine.”

Its purpose was to crush Indian rebels. To Stephen, the phrase “liberty of the press” was mere rhetoric. As a small mercy, comments expressing disapprobation of official acts and policies were permitted by Section 124A but with a proviso: those comments must not arouse any of the dreaded emotions it listed.

He said: “But after all, these arguments are more or less academic. No one in his senses would contend that because a given law is good and suitable in England, it is therefore, good and suitable in India. If a rule of law exists in England we may fairly consider whether it is suitable to India, but the answer to the question must always depend on the conditions which prevail in India. How much licence of speech can be safely allowed is a question of time and place. If I smoke a cigar on the maidan it pleases me, and hurts no one else. If I smoke a cigar in the powder magazine of the Fort, I endanger the lives of many, and, do an act well deserving punishment. Language may be tolerated in England which it is unsafe to tolerate in India, because in India it is apt to be transformed into action instead of passing off as harmless gas. In legislating for India we must have regard to Indian conditions, and we must rely mainly on the advice of those who speak under the weight of responsibility and have the peace and good government of India under their charge.”

The Lieutenant Governor of Bengal, Sir Alexander Mackenzie, said: “It is clear that a sedition law which is adequate for a people ruled by a government of its own nationality and faith may be inadequate, or in some respects usuited, for a country under foreign rule and inhabited by many races, with diverse customs and conflicting creeds. It is impossible in India to accept the test of direct incitement to violence or intention to commit rebellion, and limit the interference of the government to such cases. It is not the apparent intention of the writers or speakers so much as the tendency of the writings or speech which has to be regarded, and the cumulative effect of depreciatory declamation on the minds of an ignorant and excitable population has to be taken into consideration.”

An English barrister at the Calcutta High Court wrote a whole book in defence of sedition for racist reasons: The Law of Sedition and Cognate Offences in British India by W.R. Donogh; Thacker, Spink & Co.; 1911.

Oliver Wendell Holmes’ words (see box) in Gitlow vs New York (268 U.S. 652 at 673) in 1925 are a classic on the subject. $