The Constitution of India gives citizens the right to freedom of speech subject to certain restrictions. This article will briefly look at how antecedent constitutional documents – historical constitutions - articulated freedom of speech with a focus on the restrictions that were attached to the right.
In almost all historical constitutions we find that a right to freedom of speech was always restricted. The Constitution of India Bill, 1895 is the first document that contains such a freedom of speech provision: it gave citizens a right to free speech but made citizens ‘answerable for abuses, which they may commit in the exercise of this right, in cases and in the mode the Parliament to determine’.
The terms ‘public order’ and ‘morality’ used in the Indian Constitution as restrictions on freedom of speech were used for the first time in the Commonwealth of India Bill, 1925. Almost all other historical constitutions (except M.N. Roy’s Constitution of Free India – freedom of speech was guaranteed to all except ‘enemies of the people’) that were produced after this Bill used ‘public order’ and ‘morality’ as staple restrictions in their articulations of a right to freedom of speech; these included: the Nehru Report, 1928, Karachi Resolution, 1931, Gandhian Constitution for Free India,1946, States and Minorities, 1945, and the Socialist Draft Constitution, 1948.
‘Public order’ and ‘morality’ are also found as restrictions on free speech in a range of documents that were part of the Indian constitution making process: in individual submissions and committee reports - right up to the Draft Constitution prepared by the Constitutional Advisor.
However, in the first Draft Constitution prepared by the Drafting Committee, the term ‘public order’ was dropped (‘morality’ was retained) – this would be reflected in the final version of the Constitution as adopted by the Constituent Assembly.
Interestingly, in 1951, a little more than a year after the Constitution came into effect, ‘public order’ was reintroduced as a restriction to the freedom of speech through the First Amendment to the Constitution.
On glancing through critical documents part of India’s constitutional history, it becomes clear that freedom of speech was never viewed as an absolute right. Also, there is a constant tension between the aims of balancing the freedom of speech of citizens with considerations of how situations arising out the of the right’s abuse could be avoided. This becomes acute during the framing of India’s constitution and the immediate years that followed it – restrictions were dropped, those that were dropped were reintroduced, and new restrictions too were added to the constitutional text.