Civil liberties in the early constitution

Abstract

My paper examines the early constitutional history of free speech in India, taking as may starting point the first two free speech cases to come before the Supreme Court of India, in May 1950 – Romesh Thapar vs. State of Madras, and Brij Bhushan and Another vs. State of Delhi. The first concerned the Communist magazine Crossroads, while the second concerned the Organiser, organ of the RSS. I am particularly interested in the kinds of free speech arguments made in defense of these publications by civil liberties groups at this time. The legal arguments for the Organiser were made by N. C. Chatterjee, then President of the All- India Hindu Mahasabha. While the argument which prevailed in the Supreme Court was a narrowly textualist one, his oral arguments before the Court, as well as his activism outside it, explicitly invoked an American free speech tradition – often framed in terms of the dictum, attributed to Voltaire, that one can fight for another's right to say something while disagreeing with what they say. Indeed, both Chatterjee and a later right-wing defender of free speech, Shyama Prasad Mookerjee, were involved with civil liberties groups such as the All-India Civil Liberties Union, whose office-bearers included both Communists and members of the Hindu right, and whose proceedings were approvingly reported in the pages of both the Organiser and Crossroads. I claim that this alliance should not be regarded either as a hypocritical marriage of convenience between the ideological foes against a common enemy (the ruling Congress government). Rather, it tells us something about the nature of civil liberties – namely, that they are best conceived as “neutral” with respect to partisan political ideology, and stem from a general mistrust of state power, regardless of who exercises it.