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

Abstract

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.