Libels, Licenses, Liberties: Conceptualising Freedom of Speech in Colonial and Postcolonial India

ABSTRACT

Analysing legal cases involving libel, rioting, sedition, and breaches of the press acts in colonial and postcolonial India, this article emphasises the continued relevance of eighteenth-century common law precedents to the conceptualisation of ‘freedom of expression’. Lawyer Thomas Erskine’s advocacy of liberty of speech in a series of seditious libel trials and Lord Mansfield’s notable commentary in the Shipley (Dean of St. Asaph) case provided a resilient framework for adjudicating the issue until the 1950s. Changes in the Indian political climate, however, prompted varying reassessments of these findings. Prior to 1910, judges and defendants in the trials of Reverend James Long, Kahanji Dharamsingh, and B. G. Tilak mined Erskine’s speeches as a resource that could help them clarify authorial intent, gauge the ‘tendency’ of texts, and specify the constitutional role of the jury. After this period, debates over freedom of expression increasingly centred upon Mansfield’s ruling — popularised by scholar A. V. Dicey — that solely associated liberty of speech with the absence of licenses for publication. Thereafter, critics of the Indian press acts weaponized Mansfield’s ruling to challenge the colonial state’s burgeoning autocracy. By the 1950s, a third shift had occurred as justices and parliamentarians offered contrary interpretations of Dicey’s own analysis in debating the Indian government’s continued reliance on censorship laws.

KEYWORDS:

• Libel
• sedition
• common law
• free speech
• India
• British Empire
• press
• censorship

Disclosure Statement

No potential conflict of interest was reported by the author(s).

Notes

1 Full and Authentic Report, 91.

2 However, scholars have examined restrictions on extreme speech by either comparing cases in England, the United States, and Australia or by highlighting the impact of American judicial rulings on Indian deliberations. See Singh, Sedition; Bhatia, Offend, Shock, or Disturb.

3 Prasad, “Imprimatur,” 345.

4 Barns, The Indian Press, 210–1.

5 Ibid., 250–5.

6 John Bruce Norton, Topics for Indian Statesmen, 326–7. Tilak referenced this chapter in his 1908 testimony. See Full and Authentic Report, 148.

7 Mitra, Anglo-Indian Studies, 198.

8 Barns, The Indian Press, 291; Kaul, “Media, India and the Raj,” 195.

9 Chatterjee, The Nation and its Fragments, 24–5. This act was only violated on one occasion — by the Bengali Som Prokash journal in 1879. See Balfour, Lord Lytton’s Indian Administration, 521.

10 William Gladstone denounced the 1878 act for drawing distinctions between the vernacular and Anglo-Indian presses, confusing private libels with seditious writings, and transferring the ‘prosecutions from the ordinary tribunals to the executive’. See “India in Parliament,” 720.

11 Singh, Sedition, 18.

12 Kamra, The Indian Periodical Press, 104, 114. Emergency legislation passed in the 1920s and 1930s further entrenched this juxtaposition between violent, terroristic agitators who operated outside of civil society and politically responsible, moderate subjects who ‘could be made into appropriate heirs to a liberal government’. See Ghosh, Gentlemanly Terrorists, 19.

13 Agathocleous, Disaffected, 6; Misra, “Freedom of Speech,” 119; Singh, Sedition, 146.

14 Donogh, A Treatise on the Law of Sedition, 66.

15 Kamra, “Law and Radical Rhetoric,” 547, 557.

16 Mukherjee, “Sedition,” 458, 467.

17 Ibid., 470.

18 Scott, Slandering the Sacred, 16, 64.

19 Dicey, Introduction, 237.

20 The Libel Act of 1843 determined that a written claim did not amount to criminal libel if it could be proven true and served the public good. See Pollock, Speech to House of Commons; Folkard, The Law of Slander and Libel, 480.

21 Lobban, “From Seditious Libel,” 311; Giffard, The Laws of England, 605.

22 Dicey, Introduction, 239.

23 Oldham, English Common Law, 219.

24 Lobban, “From Seditious Libel,” 316–7.

25 Green, “The Jury, Seditious Libel and the Criminal Law,” 63.

26 Page, “The Dean of St Asaph’s Trial,” 24–5.

27 The Speeches of the Hon. Thomas Erskine, 139.

28 Ibid., 169.

29 Ibid., 155.

30 An Authentic Copy of the Judgement, 4.

31 Patterson, Nobody’s Perfect, 216.

32 An Authentic Copy of the Judgement, 22.

33 Page, “The Dean of St Asaph’s Trial,” 29.

34 An Authentic Copy of the Judgement, 24.

35 Petty, Speech to House of Lords, 438.

36 Stanhope, Speech to House of Lords, 352.

37 The Whole Proceedings, 121.

38 Ibid., 113.

39 Ibid., 121.

40 Patterson, Nobody’s Perfect, 221.

41 The Whole Proceedings, 156.

42 Crosby, “‘The Voice of Flattery,” 94.

43 Petty, Speech to House of Lords, 441.

44 Harling, “The Law of Libel,” 120–2.

45 For a fulsome account of the trial, see Oddie, Missionaries, 118–42.

46 Unlike a request for criminal information, the preferment of an indictment precluded Long from justifying his own conduct.

47 The History of the Nil Durpan, 22.

48 Ibid., 25–7.

49 “Queen Empress v. Kahanji,” 759.

50 Ibid., 764–5.

51 Ibid., 767.

52 Ibid., 769.

53 Kamra, “Law and Radical Rhetoric,” 553.

54 Full and Authentic Report, 168.

55 Ibid., 91.

56 Ibid., 92, 98.

57 Mukherjee, “Sedition,” 15.

58 Full and Authentic Report, 96–7.

59 Ibid., 170, 175.

60 Dicey also adopted a comparative framework to demonstrate the ‘relative liberality of English laws’ compared to those of France and Belgium. See Allison, “History in the Law of the Constitution,” 277–8. For a granular account of the ISLC’s genesis, see Walters, A. V. Dicey, 122–31.

61 Dicey, Introduction, 242.

62 Ibid., 263.

63 Ibid., 243.

64 “Extracts from the proceedings,” 13–14.

65 This legislation permitted the government to seize presses if they produced literature that incited murder or offences under the Explosive Substances Act.

66 “Notes in the Criminal Intelligence Office,” 17.

67 A Collection of the Acts, 3.

68 All-India Journalists’ and Press-owners’ Conference, Second Session, 19; Barns, The Indian Press, 328–330.

69 Barrier, Banned, 44–8.

70 At the same time, colonial officials were cosying up to metropolitan journalists who toured India in the hope of garnering favourable coverage. See Kaul, Reporting the Raj, 106.

71 Bevir, “In Opposition,” 73.

72 Bevir, “The Formation,” 345–6.

73 “Note by M. I.-5 War Office,” 243, 245. However, its London branch, which was based at 1 Robert Street, had only attracted 58 members.

74 Robb, “The Government of India,” 110.

75 “Annexure to the Memorandum on Commonweal,” 223.

76 Scurr, “Rule of Folly in India,” 204.

77 “Extract from a Note by the Superintendent,” 243.

78 “Note by M. I.-5 War Office,” 244.

79 These dealt with a range of topics including ‘Prussianism in India’, racial segregation in railway cabins, ruminations on the ‘misguided idealism’ of Bengali terrorists, and critiques of emergency wartime ordinances.

80 “Letter from the Government of Madras,” 247.

81 “Mrs. Annie Besant v. Government of Madras,” 159.

82 Ibid., 217.

83 Ibid., 211.

84 According to the advocate-general of Madras, the Press Act held that it was the words of an article — and not their author — that performed the action of incitement. See “Mrs. Annie Besant v. Government of Madras,” 199.

85 “Mrs. Annie Besant v. Government of Madras,” 215.

86 “Mrs. Annie Besant v. Emperor,” 265–7.

87 “The Outlook,” The Commonweal, 40.

88 Ibid., 175.

89 Robb, “The Government of India,” 124.

90 Rejection of the Appeal, 12.

91 Ibid., 14.

92 Ibid., 16.

93 Ibid., 48.

94 Gwynne, Amendment, 18–20.

95 Montagu to Thesiger, 2. For background on the GOI’s counter-propaganda efforts, see Barrier, Banned, 41–4, 75.

96 Webb to the Secretary to the Government of India, 31.

97 All-India Press Conferences, First Session, 11.

98 For an overview of India’s domestic typewriter production, see Arnold, Everyday Technology, 107–14.

99 The Indian Press Ordinance, 1930, 3–4.

100 All-India Journalists’ and Press-owners’ Conference, Second Session, 15.

101 All-India Journalists’ and Press-owners’ Conference, Second Session, 19–22. The year prior, the government of Nigeria had authorised similar sedition ordinances that targeted left-wing publications. See Matera, Black London, 49.

102 All-India Journalists’ and Press-owners’ Conference, Second Session, 28.

103 A Criminal Law Amendment Act in 1935 made the temporary 1931 Act permanent. For background on the legislative genesis of these laws, see Barrier, Banned, 122–4.

104 All-India Journalists’ Conference, Third Session, 44. The 1932 Act further prohibited the approval or admiration of any person — real or fictious — who may have committed offences under Section 4.

105 “Combating Civil Disobedience,” 676.

106 All-India Journalists’ Conference, Third Session, 71–3.

107 Chakrabarty, “The Repressive Press Laws,” 432.

108 Report of the Press Laws Enquiry Committee, 19.

109 Ibid., 27.

110 Ibid., 26.

111 Ibid., 33, 45.

112 Ambedkar insisted upon the ‘textual recognition of rights’ so that the document might serve as pedagogical tool and instil a ‘constitutional morality’ in a country that was ‘essentially undemocratic’. He believed that the constitutional provisions that constrained these rights were preemptively performing the same function as Supreme Court rulings in America that limited speech. See Kholsa, India’s Founding Moment, 43, 57–9.

113 Singh, Sedition, 186–92.

114 Romesh Thappar v. State of Madras and Brij Bhushan v. State of Delhi.

115 “Sm. Shaila Bala Devi v. Chief Secretary,” 310–2.

116 Ibid., 324.

117 Dicey, Introduction, 244–5.

118 “Sm. Shaila Bala Devi v. Chief Secretary,” 320.

119 King, The Law of Criminal Libel, 121.

120 “Sm. Shaila Bala Devi v. Chief Secretary,” 320.

121 “The State of Bihar v. Shailabala Devi,” 662–3.

122 Ibid., 673.

123 Kaul, “Media, India and the Raj,” 203.

124 Speech of Deshbhandu Gupta, September 11, 1951, 2400; Speech of H. N. Kunzru, September 14, 1951, 2568.

125 Sethi, War over words, 218–9.

126 Singh, Sedition, 190.

127 “The Restored Freedom,” 370.

128 The Press (Objectionable Matter) Act, 1951.

129 Speech of Shiva Rao, October 1, 1951, 3985.

130 Speech of Thakur Das Bhargava, September 14, 1951, 2555.

131 Speech of B. K. P. Sinha, September 12, 1951, 2469.

132 Speech of C. Rajagopalachari, September 12, 1951, 2470.

133 Speech of B. K. P. Sinha, September 12, 1951, 2471.

134 Speech of C. Rajagopalachari, September 15, 1951, 2635.

135 Speech of Naziruddin Ahmad, October 1, 1951, 3940–1.

136 Speech of S. P. Mukherjee, October 3, 1951, 4052–3. That same year, Mukherjee founded the Bharatiya Jana Sangh, the immediate forerunner of the modern Bharatiya Janata Party (BJP). Somewhat ironically, the BJP has increasingly relied on Section 124A to suppress dissent in recent years.

137 Speech of C. Rajagopalachari, October 3, 1951, 4102.

138 Schwartz, “Civil Liberties,” 399; Indian Law Institute. Essays on the Indian Penal Code, 138.

139 This act was revoked in 1956.

140 Speech of Naziruddin Ahmad, October 5, 1951, 4353.