Freedom of expression is superior or the right to protest
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The law in the current form finds its root in the Hate Speech Law Section 295(A) enacted by the British Administration in India. This act was brought about in the backdrop of a series of murders of Arya Samaj leaders who polemicized against Islam. This started in 1897 with the murder of Pandit Lekhram by a Muslim because he had written a book criticizing Islam.[2] Koenraad Elst argues that "Section 295A was not instituted by Hindu society, but against it. It was imposed by the British on the Hindus in order to shield Islam from criticism".[2] The murder series caught lime-light in December, 1926 after the murder of Swami Shraddhananda for the protection he gave to a family of converts from Islam to Hinduism in addition to writing Hindu Sangathan, Saviour of the Dying Race in 1926.[2][3]
Precedence to this law started even before this as in a case against Arya Samaj preacher Dharm Bir in 1915, ten Muslims were sentenced for rioting, but Dharm Bir was also charged under section 298 for "using offensive phrases and gestures (…) with the deliberate intention of wounding the religious feelings" of another community; and under Section 153, for "wantonly provoking the riot which subsequently occurred" and "a judge was brought in who could assure conviction".[4]
Constitutional Antecedents
The Constitution of India 1950 was drafted by the Constituent Assembly from 1946-1950. However, this Constitution drew on a longer history of antecedents documents drafted either as legislation governing British India or aspirational political documents.[5]
The Constitution of India Bill 1895, widely considered to be the first Indian articulation of a constitutional vision, contained the following provision related to freedom of speech and expression - 'Every citizen may express his thoughts by words or writings, and publish them in print without liability to censure, but they shall be answerable to abuses, which they may commit in the exercise of this right, in the cases and in the mode the Parliament shall determine.'
Other constitutional antecedent documents too contained provisions on freedom of speech and expression. These included: Commonwealth of India Bill 1925, Nehru Report 1928, and States and Minorities 1945. In most cases, the provisions contained some form of restrictions on freedom of speech and expression.
The Debate in the Constituent Assembly
The Constituent Assembly of India debated freedom of speech and expression (Article 13(1) of the Draft Constitution,1948) on 1 December 1948, 2 December 1948 and 17 October 1949. The Draft Article read:
'Subject to the other provisions of this article, all citizens shall have the right – (a) to freedom of speech and expression; …
Proviso: Nothing in sub-clause (a) of clause (1) of this article shall affect the operation of any existing law, or prevent the State from making any law, relating to libel, slander, defamation, sedition or any other matter which offends against decency or morality or undermines the security of, or tends to overthrow, the State.'
Most members of the Constituent Assembly welcomed the inclusion of the right However, conflict emerged around the proviso in the Article that placed restrictions on the right: while some members opposed the mention of restrictions on the right, others supported it. Members who opposed the restrictions argued that 1. there was no point in having a right to freedom of speech and expression in the presence of restrictions. 2. Putting restrictions on the freedom of speech and expression was a British practice. Members who supported the restrictions argued that 1. Restrictions are fine as the government now is not a colonial one 2. No where in the world is freedom of speech and expression absolute. 3. Law and order and security of the state cannot be compromised.
In the end, the Constituent Assembly voted on the Article and included a right to freedom of speech and expression in the Constitution of India, 1950 with restrictions similar to the ones mentioned in the Draft Constitution, 1948.