Dissent has been iterated by Justice D.Y. Chandrachud in the Bhima Koregaon case as the safety valve of a democracy. It is asserted by left-leaning civil liberty activists that the curb on freedom of speech and expression has become an institutional mechanism to police the opinions and curb lively debate and a robust exchange of ideas in a healthy democracy.[i] However, the necessity to retain public order within the text of Article 19(2) becomes relevant due to the political context that underlies the preservation of such public order. In the wake of separatist movements that resort to violent, radical, oppressive and anti-democratic means to subvert the unity of the Indian state; it becomes an essential prerogative of the state to step in and regulate the dissemination of such ideas, ideologies and propagandas. India, being a welfare state, has the onus to ensure the peace and security of every citizen in light of the violence being propagated in Maoist infiltrated areas and by separatist outfits in Jammu and Kashmir.[ii] The restriction on free speech to protect the public order within the union thus, becomes an indispensable tool in the hands of the State to safeguard its existence and hence the existence of democracy itself.[iii]
The Jurisprudence Behind ‘Public Order’
The primary area of contention with respect to seditious speech vis-à-vis the limitations on the same under Article 19(2) arise on account of the nature and scope of what constituted ‘Public Order’. The law as it stands today aims to strike a fine balance between the two paradigms – One where free speech is respected and the other where the unity of the state along with its peaceful existence is guaranteed to the citizenry.[iv] The threshold which has to be met under the law is not whether a particular speech is anti-nationalist, but rather, whether it is seditious.[v] This stance has been made abundantly clear by the Indian judiciary in its wisdom over the years through its various interpretations of the term ‘public order’ as a ground to curb subversive speech.
The court has employed a more objective and calculated tendency of acts of speech to disrupt public order. Reliance must be placed on the judgement passed by the Supreme Court in the case of Ramji Lal Modi v State of Uttar Pradesh[vi] wherein it was clarified at the outset that the use of strong words to express disapprobation of the measures employed by the Government which do not excite feelings which trigger the inclination to cause public disorder by acts of violence would not attract liability. The court justified the inclusion of the term ‘public order’ by attaching a necessary prerequisite of establishing a nexus between the impugned act and the public order sought to be protected. The aforementioned nexus ought to be supplemented with yet another nexus of proximity between the ‘reasonable restriction’ as stipulated under the Section and the achievement of public order.[vii] By steering clear of the ambiguous subjectivity of ‘bad and pernicious tendencies[viii] that have been previously read into the section post the pronouncement of the court in Kedar Nath Singh v State of Bihar,[ix] the retention of the political expression ‘public order’ has the potential to curb unjust curtailments of political criticism in a free and liberal democracy like ours.
The scope of the restrictions placed within Article 19(2) can be further narrowed by differentiating between what constitutes public order as distinct from the ambit of ‘law and order’. Often, mere law and order issues are escalated to the level of public disorder since they are treated as synonymous terms, however, the Supreme Court in Dropti Devi and Ors. vs. Union of India (UOI) and Ors.[x] held that the two differ in degree and extent and that the expression ‘law and order’ has a wider import with regard to the effect that a contravention of law has on order. Every infraction of law must necessarily affect order, but an act affecting law and order may not consequently affect the public order of the State. Public order, bearing a narrower construction, includes only those instances of contravention of law which affects wide spectrum of the public at large. It is the length, magnitude and intensity of the terror wave unleashed on account of a particular eruption of disorder that forms the touchstone of distinction between acts affecting ‘public order’ from acts concerning ‘law and order’ issues.[xi]
In Kishori Mohan Bera v. The State of West Bengal[xii] the Apex court explained ‘Public Order’, ‘law and order’ and the ‘security of the State’ as three concentric circles with the largest and outermost circle representing law and order, the next representing public order and the innermost circle representing the security of the State. Thus, an act affecting the law and order which adversely impacts the sentiments of the dominant narrative does not necessarily fall within the purview of public disorder on account of its lack of consequence on the even tempo of the life of the community at large.[xiii] The State must endeavor to protect the views of the minority and the court have been cognizant of the potential chilling effect on their freedom to speech is the restrictions on free speech are misuses qua the narrative of the minority sections of the society.
Once loosely worded, the term ‘Public Order’ has since been shaped in concrete, objective and narrow terms through judicial interpretation and leaves little room for arbitrary curbs on speech acts. The court has iterated on several occasions that statements of dissent and political expression contrary to the interest of the government shall not be deemed as seditious. Furthermore, various tests have been institutionalized to ensure that acts inciting violence are the sole acts of speech that attract restrictions. By steering clear of the ambiguous subjectivity of ‘bad and pernicious tendencies[xiv] that have been previously read into the section, the retention of the political expression ‘public order’ thus, has the potential to curb unjust curtailments of political criticism in a free and liberal democracy like India’s.
[i] Barendt, Eric, FREEDOM OF SPEECH, (Oxford University Press, 2005).
[ii] Jhon H. Mansfield, Religious Speech under Indian Law in Comparative Constitutional Law, 1989.
[iii] Austin, Granville, WORKING A DEMOCRATIC CONSTITUTION: THE INDIAN EXPERIENCE, (Oxford University Press, 1999).
[iv] Redish, Martin H. & Mollen, Abby Marie, Understanding Post’s and Meiklejohn’s Mistakes: The Central Role of Adversary Democracy in the Theory of Free Expression, Northwestern University Law Review, Northwestern University School of Law, Vol. 103, No. 3, (2009).
[v] Noorani, A. G., Hate Speech and Free Speech, Economic and Political Weekly, Vol. 27, No. 46 (Nov. 14, 1992).
[vi] AIR 1957 SC 620.
[vii] Rex v Basudeva AIR 1950 FC 67.
[viii] Kedar Nath Singh v State of Bihar AIR 1962 SC 955
[ix] AIR 1962 SC 955.
[x] (2012) 7 SCC 499.
[xi] Law Commission of India, Two Hundred Sixty Seventh Report: Hate Speech (Government of India, March 2017); Sathe, S. P., Freedom of Speech and Contempt of Court, Economic and Political Weekly, Vol. 5, No. 42 (Oct. 17, 1970).
[xii] AIR 1972 SC 1749
[xiii] Pushkar Mukherjee v. State of West Bengal MANU/SC/0027/1968 : 1970CriLJ852 ; Arun Ghosh v. State of West Bengal MANU/SC/0035/1969 : 1970CriLJ1136 ; Nagendra Nath Mondal v. State of West Bengal MANU/SC/0181/1972 : 1972CriLJ482.
[xiv] Kedar Nath Singh v State of Bihar AIR 1962 SC 955
The author is a third-year student at National Law University, Delhi.