The Evolution of the Constitutional Right to Free Speech in India (1800-1950): The Interplay of Universal and Particular Rationales

Abstract

This paper seeks to provide a descriptive account of the evolution of free speech in colonial and post-independence India, while remaining alert to significant analytical considerations. The paper focuses on crucial periods in the evolution of Indian constitutional jurisprudence on the right to free speech. It starts its narrative with the introduction of the printing press in India in 1778 and the creation of the first Indian newspapers and newsletters in the early 19th century. The bulk of the paper focuses on the debates within the framers of the Constitution of India on the issue of free speech that occurred between 1947-50. The principal argument advanced in this paper is that while both universal and particularist arguments played vital roles in preparing the ground for public support for free speech and the eventual adoption of a constitutional right to free speech, there are specific phases where the dominance of one over the other was markedly felt. Broadly speaking, universal arguments for free speech were dominant during the colonial era, when intellectuals and nationalists drew on universal and comparative understandings (mixed often with local and particular reasons that played a lesser role) to advance arguments for free speech. By contrast, when the framers of Independent India began drafting the rights provisions, the overall influence of universal arguments for free speech was considerably moderated by the pressing demands of the social, political and economic conditions in mid-twentieth India, which led them to permit several grounds of restrictions of rights in response to such conditions. This is not to suggest, however, that universal influences were always towards expansion of free speech, or that particularlist influences were only towards restrictions on speech. As we will see, the story is more complex and some particularist justifications for embodying a strong free speech right in India were also advanced. This paper is very much work-in-progress and is part of a larger project that tries to understand post-colonial Indian constitutionalism against a wider historical trajectory, which in my view is often lost sight of, and is not emphasized enough, in contemporary scholarship on Indian constitutional law.