The Debate | Opinion | South Asia

Why Is Free Speech Limited in India?

Indians generally believe that protecting religious sentiments is warranted, and that preventing incitement and subsequent public disorder is desirable.

Why Is Free Speech Limited in India?

The Constitution of India at the Geospatial World Forum 2017, Hyderabad, India.

Credit: Wikimedia Commons/Nikhil1830978

In the course of my work on India, many individuals I talked to displayed incredulity that colonial-era British restrictions on free speech in India remain the law. These restrictions are mostly found in the Indian Penal Code of 1860 and include laws proscribing: sedition (Section 124A), promoting enmity between different groups on grounds of religion, race, place of birth, or residence (Section 153A), and group defamation or hate speech (Section 295A).

While I have advocated for minimal legal and societal constraints on speech, it can nonetheless be observed that governments — with a few notable exceptions — tend to reflect the mores of the societies from which they emerge; this is as true in autocracies as it is in democracies. India’s approach to free speech reflects both the needs and values of its society and its ruling classes. In today’s India, British-era laws restricting free speech are not merely a colonial-era holdover, but are the result of the persistence of precolonial values and the agency of postcolonial Indian society. As I have argued before, Indian society, while deeply democratic — and in many ways tolerant of heterogeneity in religious matters — is also illiberal in many ways, and it is therefore inevitable that the values of its people will be reflected in its governance and laws.

Contemporary Indians often get riled up about perceived insults to family, caste, and deities, among other things. Ancient India was no different. While there was a certain level of theological and philosophical freedom, personal insults or speech that was perceived as targeting the state or social hierarchy were all punished. For example, according to the Yājñavalkya Smṛti, a 3rd century CE Sanskrit text on law that was influential in classical and medieval India:

If someone insults people who lack a limb or a sense organ or are sick, whether truthfully or untruthfully, or with phony praise, he should be fined thirteen and a half paas [ancient currency]. When a man abuses someone, saying: You are a mother-fucker or a sister-fucker! the king should make him pay a fine of twenty-five.

Various premodern Indian states often had similar rules, enforced as much by custom and tradition in local communities as they were by state administration. In the 19th century, after the British consolidated their rule over the subcontinent, they enacted the Indian Penal Code (IPC) of 1860, which was an attempt to standardize a previously heterogeneous legal landscape. The IPC was mostly a codified version of English common law, with elements of Hindu and Islamic law.

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While, unsurprisingly, the British were more concerned over public order than civil rights, the IPC reflected domestic phenomena in India to some extent. For example, the IPC was amended to include Section 295A after an anonymous Hindu published the book “Rangila Rasul” (Colorful Prophet) in 1927, a work that insulted the Prophet Muhammad and lead to riots in Punjab province. Section 295A — which reads, in part: “whoever, with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India… insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment” — remains popular as a tool that has been used by religious communities, ethnic and linguistic groups, and castes to litigate insults against their group, however spurious the reason.

In a recent case from 2020, a citizen in the state of Madhya Pradesh filed a case against two Netflix executives under Section 295A of the penal code “for certain kissing scenes featured in the web series ‘A Suitable Boy’ which allegedly hurt religious sentiments as they were shot in a temple premise.” While such cases are often dismissed, they also demonstrate why laws such as Section 295A are popular: Because they remain an outlet by which offended citizens believe they can vent their anger at perceived insults to their communities or religious beliefs. Indians are generally not a people who are blasé about such matters. For example, many of the over 150 cases filed since 2010 against individuals for engaging in sedition online were filed by private persons on their own initiative, often complaining about objectionable social media posts by their neighbors or shopkeepers.

Therefore, many British and Indians believed that the state was indeed justified in restricting speech and expression because doing so was necessary in a country as heterogeneous and diverse as India. For example, India’s first prime minister, Jawaharlal Nehru, felt that “less responsible” speech did not deserve freedom of the press protections. Upon independence, India’s new constitution, which came into effect in 1950, attempted to square the provisions of the penal code — inherited unmodified from the British Raj — with the liberal principles favored by the document’s drafters. Article 19 of the Indian constitution provided for freedom of speech, albeit with some limits relating to defamation and the security of the state. Very soon, Indian courts began ruling parts of the IPC unconstitutional: in Tara Singh Gopi Chand vs The State (November 28, 1950), the Punjab High Court declared that  Section 124A (sedition) “has become void as contravening the right of freedom of speech and expression guaranteed by Article 19 of the constitution.”

For India’s post-independence political leaders, this made India’s free expression jurisprudence too permissive, almost akin to the United States’ First Amendment jurisprudence. Consequently, the Indian government introduced the first amendment to the Indian Constitution in 1951, now found in Article 19(2), which imposes “reasonable restrictions on the exercise of the right [to free expression]…in the interests of the sovereignty and integrity of India, 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.” Prime Minister Nehru argued that such an amendment was necessary in order to stop both the left and right from impeding progress, whether through the press or through speeches: “if all our schemes [for reform] are stopped…the country have to wait with social and economic conditions.” He further added, “I have no doubt that the Communist Party have been guilty of atrocious crimes and that we have to deal with it as such. Nevertheless, I feel that certain communal elements in India are far more dangerous to our unity and to any progress that we might hope to make…”

After the addition of the first amendment to the Indian Constitution, Indian courts have mostly upheld the provisions of the IPC penalizing sedition, incitement, defamation, and insulting religious beliefs. In Ramji Lal Modi vs State of UP (1957), a court argued that censoring a cow-protection publication run by Hindu that allegedly incited Muslims was justified under Section 295A because “the calculated tendency of this aggravated form of insult is clearly to disrupt the public order.” The law upholding hate speech was upheld and further qualified in Superintendent, Central Prison vs Ram Manohar Lohia (1960) which argued that if the “restriction [to speech] has no proximate relationship to the achievement of public order, it cannot be said that the restriction is a reasonable restriction.”

Another case, this one concerning Section 124A (sedition), Kedar Nath Singh vs State Of Bihar (1962), upheld the law’s constitutionality because restrictions on the freedom of speech were permissible when in the interests of public order and thus “lie within the ambit of permissible legislative restrictions.” While Kedar Nath stressed that the seditious conduct must rise to the level of inciting violence against the state, central and local governments from all major political parties weaponized the law — with little pushback from their supporters — for decades, frequently citing a perceived disruption to public order to harass and muzzle critics, although convictions are rare.

The logic of these cases — the desire to preserve security, public order, and communal sentiments — has carried over to the internet age, where older Indian case law has combined with newer rules relating to online use, such as the Information Technology Act, 2000, which allows the application of elements of the IPC to the virtual world.

Will the provisions of the Indian Penal Code restricting freedom of speech remain in place in the 21st century? Political parties often criticize these laws when in opposition, only to use them with relish when in power. Citizens enjoy the continued ability to sue for defamation and hurt religious sentiments. And while India’s Supreme Court recently directed the government to suspend the sedition law in May 2022 after years of misuse, it is unlikely that Parliament will rescind the law in its entirety.

One major roadblock to reform in the Indian context lies in the fact that certain provisions of the IPC such as Section 295A (protecting religious beliefs from insult) and Section 124A (sedition) are deemed by governments to have beneficial uses in a country like India: preventing communal riots that may stem from hurt “sentiments” or preserving the country’s security vis-à-vis Pakistan or China during times of hostility. Too much reform would be seen as throwing the baby out with the bathwater. Violence aside, virtually no major religious group in India would support removing Section 295A for fear of seeming supportive of allowing insults to their religions. Even activists may not favor a comprehensive overhaul of restrictions on free speech that could abolish both hate speech and sedition laws. Few Indians, therefore, believe that India’s freedom of speech regime should be as permissive as the United States’, a country in which laws against hate speech, blasphemy, insulting religions, and sedition would all be found unconstitutional.

Therefore, while restrictions to freedom of expression in India are often cast as a colonial-era hangover, or a tool by which governments can harass their opponents and the press, they are also rooted in the popular feelings of society — and the governments that emerge from that society — and are in a sense, reflective of local norms. Indians and Indian governments generally believe that protecting religious sentiments is warranted, and that preventing incitement and subsequent public disorder is desirable in a country as diverse and tense as India. Moreover, the presence of hostile neighbors and perceived hostile domestic ideologies seen as undermining India underlays continuing support for sedition laws. This is why free speech was, and remains limited in India — not to the extent it is in an authoritarian country, but certainly not allowing free speech to the extent to which it is permitted in the United States. While excessive applications of sedition or other laws may (and should) be curtailed, it is unlikely that the Indian Parliament will remove such laws in their entirety.