The unreasonable restrictions imposed by Jawaharlal Nehru on the right to freedom of speech and expression appear to be perfectly reasonable after the brutal attack on Salman Rushdie and the murder of those who supported Nupur Sharma’s remarks against the holy Prophet of Islam. For India and Goa have not matured enough to enjoy robust free speech like Portugal where there are minimal restraints on free discourse.
For religion is the anti-thesis of free speech because the right to criticise another’s dogma can arouse hatred among radical elements which is why Salman Rushdie was blinded in one eye and Nupur Sharma’s remarks provoked outrage among 14 Islamic nations and attracted the unwanted attention of the Al Qaeda. The Satanic Verses uses excellent prose unlike Nupur Sharma’s attack on the holy Prophet of Islam.
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Every religion has irrational quirks like Hinduism’s caste system or the alleged misogyny of Islam’s Sharia law or what the saffron brigade alleges is Christianity’s attempts to convert others. Attacking these basic tenets will ignite riots which is why free speech should be curtailed by invoking sections 153 (a) and 153 (b) which was introduced in 1898 by the British after amending the Indian Penal Code enacted in 1860.
Interestingly, the first amendment to the Indian Constitution had the exact opposite effect as the first amendment to the US Constitution which removed all restrictions on free speech. Conversely, the first amendment to the Indian Constitution added the restrictions of sovereignty and integrity of the country, friendly relations with foreign states and public order to the already existing restrictions in Article 19 (2), reducing the right to free speech and a free press guaranteed by Article 19 (1) (a) to a moth-eaten fragment.
The Portuguese Constitution guarantees press freedom, whereas the cumbersome Indian Constitution, with 470 verbose articles and 12 schedules, is silent on this aspect. While the judiciary has laid down that press freedom is a species of free speech, how free the Indian media is today emerges from the fact that India ranked 142 out of 180 countries on the World Press Freedom Index as of 2020.
Exactly four months after the Constitution came into force on January 26, 1950, the Supreme Court declared that “public order” was not an enumerated exception in Article 19 (2) which imposed reasonable restrictions on free speech. This was laid down in Romesh Thapar versus State of Madras and Brij Bhushan versus State of Delhi followed by decisions of the Punjab, Patna and Madras high courts which went even further in striking down such restrictions.
Justice Sarjoo Prasad of the Bihar high court, who went on to become the chief justice of the Rajasthan high court in 1959, declared that “if a person were to go on inciting murder or other cognisable offences either through the press or through world-of-mouth, he would be free to do so with impunity” as “he would claim the privilege of exercising his fundamental right of freedom of speech and expression”.
After resigning from the Jawaharlal Nehru government in April 1950, former minister and founder of the Bharatiya Jana Sangh, Syama Prasad Mukherjee, explaining why he resigned from the Nehru cabinet, declared in Parliament in December 1950, that India’s policy towards Pakistan should be based on complete reciprocity and if the situation worsened, India would have to depend on her military strength.
In March 1951, Mukherjee said in the Lok Sabha “if Pakistan wanted war, let them have the taste of that”. In October 1951, at the founding of the Bharatiya Jana Sangh, (now the BJP), he said: “We already know the partition of Bharat was a tragic folly. It has served no purpose and has not helped to solve any economic, political or communal problems. We believe in the goal of a reunited Bharat.”
The present RSS chief, Mohan Bhagwat, in his Independence Day speech, reiterated the commitment to an akhand Bharat which is laudatory. The only spoiler in 1950 was Pakistan’s late foreign minister and former judge of the Federal Court of British India, Zafrulla Khan, who objected to Mukherjee’s speeches. All this culminated in the two other nebulous heads of “friendly relations with foreign states and sovereignty and integrity of India” being imported into the already over-burdened Article 19 (2) with the first amendment to the Indian Constitution.
Compare this with Article 37 of the Portuguese Constitution which guarantees free speech without Constitutional restrictions. Unlike the ponderous and verbose Indian Constitution, the 1974 Constitution enacted in Portugal is simple and direct with just 296 articles, sub-divided into a maximum of 27 clauses with Article 37 which guarantees free speech, sub-divided into just four clauses.
Our Constitution needs to look at the simplicity and brevity of the Portuguese Constitution. To demand an apology from Goa’s Antonio Louis Santos de Costa for excesses committed by Portugal’s monarchy during the 1500s and 1600s when the Indian Republic had not come into existence is a preposterous abuse of free speech. We should be proud that a Goan from Margao rose to become Portugal’s head of government in 2015 instead of demanding an apology from him for excesses he never committed.
Religion can be abused by scoundrels to claim they are nationalists. The fanatic who blinded Salman Rushdie is a scoundrel but whether Nupur Sharma who attacked the holy prophet of Islam was a pest in the garb of a nationalist is a never-ending quest.
(Olav Albuquerque is a senior journalist-cum-advocate of the Bombay HC)
