LASSnet 2010: Law and its Publics: S. P. Sathe Memorial Panel
The central questions that I will be asking in this paper are: What do judicial interpretations of 'public order' and 'public safety' in the Fundamental Rights chapter tell us about the 'public' that they are addressed to? I will be offering two seemingly parallel accounts using the early jurisprudence of the Indian Supreme Court. My enquiry entails distinguishing the idea of a 'public' in constitutional doctrine. Instead of looking at 'public' in opposition to a 'private' or in any other way, I will be viewing the 'public' in opposition to the idea of a 'people' as an overarching theme.
The article proceeds thus: Part II is a discussion of the decisions in Romesh Thapar v. State of Madras and Brij Bhushan v. State of Delhi. These cases draw a distinction between different kinds of violence – some that pose a threat to the security of the state and others that will only pose disruptions to public order. Constitutional guarantees would protect against certain kinds of violence, but not others. Part II will deal with the context in which the different Public Safety Acts, which were the subject of constitutional challenge in these cases, were enacted. It was not merely the fear of physical violence in the form of communal violence or secession from a newly independent India that the government was afraid of, but the possibilities of violence that 'provocative' ideas created. In this sense, the colonial logic of press control is being reproduced. Parts III and IV use the theoretical framework of a 'public sphere' to understand how the judicial imagination of the 1950s understood 'public order' and 'public safety'. While several publics exist, it is the kind of public that the government of the day wants to protect that will be the beneficiaries of constitutional guarantees. Part V concludes by looking at how the judicial interpretation of a 'public' did not just define the scope of operation of constitutional guarantees, but also defined how the public participated. Thus, this piece adopts a legal historical approach to understanding the constitutional doctrines evolved by the early Supreme Court.
II. The Romesh Thapar and Brij Bhushan judgments
Romesh Thapar was Petition 16 of 1950 before the newly constituted Supreme Court of India. 'Crossroads', ostensibly a mouthpiece for the Communist Party of India that was started in April 1949, was banned entry and circulation into Madras under the Madras Maintenance of Public Order Act, 1949. Section 9 (1-a) of the Madras Maintenance of Public Order Act said that purpose of securing public safety or maintenance of public order to (1) prohibit or (2) regulate entry of circulation, sale and distribution of any documents or class of documents in the whole of the Madras province or any part of it.
According to the majority judgment delivered by Justice Patanjali Sastri, the Act was to ensure 'public order', which in his estimation signifies "a state of tranquility which prevails among the members of a political society as a result of the internal regulations enforced by the government which they are established." Since the Provincial Governments are only competent to enact laws relating to public order, then Section 9(1-A), which uses the term 'public safety' in its clause, must envisage public safety to come under public order. It rejected the argument of the respondents, which equated 'public safety' with the security of the state, the state referring to the provincial government in its constitutional sense. 'Public safety' had to be read in context, although it can never be elevated to include "…aggravated forms of prejudicial activity which are calculated to endanger the security of the state". Therefore, while public order is targeted at a greater violence, public safety relates to a lesser violence. Hence, the law was unconstitutional.
Justice Fazl Ali delivers the dissenting judgment both in Romesh Thapar and another case on similar facts, Brij Bhushan, which was decided on the same day. In his estimation, the distinction between a greater and a lesser violence is irrelevant. As he argues, "the misuse of the law is one thing and it being unconstitutional is another". Quoting precedent in Brij Bhushan, he argues that the expression 'public safety' in the context of legislation such as the Madras Maintenance of Public Order Act and the East Punjab Public Safety Act, 1949 would be equated with the safety and security of the state. In his estimation, cases of public disorder may escalate to situations that present a threat to 'public safety'. Therefore for Justice Fazl Ali, public safety connotes a greater violence and public order deals with degrees of lesser violence. Since the Constitution expressly refers to the greater violence ('security of the state'), it would not be logical to leave out any kind of lesser violence. Hence, the law was constitutional.
The First Amendment to the Constitution in 1951 was a direct consequence of the decisions in Romesh Thapar and Brij Bhushan, which did not find favour with the government of the day, headed by Jawaharlal Nehru. The Statement of Objects and Reasons in the Act specifically mentions how the robustness of the Fundamental Rights chapter was being affected by the judicial interpretations of Article 19 (i) (a), amongst others. It introduced 'public order' as a reasonable restriction on the freedom of speech, thus clearing up the confusion that had given rise to these cases. It is not difficult to trace this back to the decisions of the majority in the above two cases. With this move, the legislature changed the composition and nature of the 'public' to which the Fundamental Rights would be addressed. But before we examine this aspect, an examination of the background to the cases is called for.
III. Communist Propoganda versus a Nehruvian Agenda
Both Brij Bhushan and Romesh Thapar dealt with the constitutionality of state-level Public Safety Acts, enacted between the period 1947 – 1950, ostensibly to deal with the communal riots. Features that were common to these Acts were provisions relating to a] preventive detention and b] press controls. The story of 'Crossroads' in Romesh Thapar has already been narrated in Part II. The Organiser, which was the periodical in question in Brij Bhushan was supposedly trying to propogate anti-Pakistan sentiments, for which its pre-censorship was ordered. On the other hand, Romesh Thapar and his wife, Raj Thapar perceived to be members of the Communist Party of India and Crossroads, the party 'voice', was presumed to run under their supervision. The Communist Party itself had declared the beginning of a communist revolution in February 1948, accusing the Nehruvian government of being an agent of 'imperialist' and 'semi-feudal' forces. An All India railway strike was declared on 9 March 1949, but it was met with little success. (Chandra: 2008, 257). While the Nehruvian government offered support to communist regime in China in 1949, these political trends were certainly was not enjoying any popularity at home. The Party, under Nehru's orders, had been banned in Madras and in West Bengal.
Crossroads was being published from Bombay, long recognized to be a nerve centre of communist activity, but the ban under the Madras Act related only to the Madras Presidency. In the Madras Presidency, the Communist Party had been gaining in strength since its inception in the early 1920s and was a constant source of tension for the administration. Thanjavur had became a focal point for their activities in the rural areas and the first communist-leaning newspaper, Janasakthi was started there in 1937. At this time in Bombay, a Report on the Police Conference recommended that police resources be pooled to counter the communist uprisings as they constituted a threat to internal peace and security. One of the countermeasures would involve locating their printing presses, which were used to spread their propaganda. Under Defence of India Rules 38 and 39, these editors and publishers could prosecuted. This was considered preferable to the charges under the Press Act or under 'ordinary law'. Communist literature circulated by railway packages was subject to strict scrutiny and resulted in the interception in Madras and Calcutta. The law firm of Row and Reddy set up in Madras, to ostensibly advocate communist causes was banned under the Criminal Law Amendment Act, 1908 as an unlawful association. Not coincidentally, the first few constitutional law cases – I'm talking about the period from 1950 – 1952 were also targeted at creating a "freer" atmosphere in the new republic.
What is evident in the factual background to the cases is that a plethora of legislation post-Independence was, inter alia, consciously used to target ideas and ideologies that would have debilitated the Nehruvian liberal development agenda. But the judiciary is not complicit in this project as one would have expected. This is evident not just from the facts of the case, but also in terms of the legal players involved. One might also look to the authors of these decisions to see where we might begin to make conjectures about their political and social philosophy. Justice Patanjali Sastri was appointed from the Madras High Court and was the Chief Justice at the time of the two decisions. Romesh Thapar was heard on appeal from the Madras High Court. So perhaps the context was itself too well known to the author? The more interesting aspect relates to Justice Fazl Ali, who wrote the dissent in both. According to the Gadbois interviews, the Fazl Ali families were well acquainted with the Nehru families. I take special care to note at this point that this is merely conjecture and by no means, a definitive conclusion. However, as any extensive discussion on the factual matrix is absent in both cases, these are likely to remain at the level of conjecture.
IV. The People, the Public and Split Public Spheres
In this section, I look at the question of how a 'public' relates to Fundamental Rights and reasonable restrictions. S.P. Sathe, in whose honour this panel has been constituted, has suggested that saying that sovereignty lies in the Indian 'people' is to engage in a mere academic exercise and refer to something emotive. Apart from instances where constitutional doctrine has failed to match up to practice, one might start with the creation of the Constituent Assembly and show how the very writing up of the Constitution itself was not representative of the people in whose name the Constitution was enacted. One might, at the same time, look to the kind of rights that were made justiciable and others that were made non-justiciable to see if it was only a bourgeois liberal conception of 'public' that was being privileged. But as the cases discussed above show, there is a third question that may be asked: what is the nature of the 'public' as a legal entity as distinct from the people? So, even though there is a 'people' in whose name the constitution is written, it is this 'public' in whose interest, the limits of Fundamental Rights would be created.
The idea of courts constituting the public in the language of 'security' is not new, and it is yet to go out of vogue. So there is a public as a legal entity which is distinct from the 'people'. However, even within the understanding of the 'public', there is a deliberate privileging of a certain kind of public – one to which rights and duties are ascribed and another which has to be excluded from its purview. We see its early manifestations in the high profile sedition trials of nationalist elite such as that of Tilak or Savarkar – one public to be protected from another - and its contemporary avatar as the 'public-spirited individual' in public interest litigation cases – a public has to be protected from one malafides advocate, speaking in the name of another public. So it is in the case of constitutional interpretation. However, it is evident why newspapers, in English and in the vernacular were the target of colonial legislation - printed matter was just the most visible means of galvanizing any public. Legislation was targeted not just at the regulation of newspapers, as the above section shows, but also targeted a variety of modes of communication, including dramatic performances and films. The rise of an underground press is a direct reaction to press control laws. Therefore, criminality, not just illegality, attaches to whatever poses a threat to the basis of rule – Radhika Singha describes how in the early days of the East India Company in India, dacoity was considered equivalent to waging war against the state, during the later phases of colonialism, sedition was the highest of crimes. For the first, the basis is economic, in the second, conservation of ideology. 'Judicial officers' were often quick to reproduce these sentiments – the qazi in the Company days or the High Courts in the later colonial times. A single constitution for the entire nation was supposed to change all that, but A 'public' that supports the particular visions would be beneficiaries of the new constitutionalism. However, the Public Safety Acts that were the subject of constitutional challenge here were 'colonial' legislation, temporally speaking, since they were after 1947. But they are certainly enacted and implemented, colonial-style. So the continuity in terms of press controls is certainly aimed at controlling ideas, constituting a particular kind of 'public'.
It is in this context that the judiciary of the earliest times in independent India confronts Romesh Thapar and Brij Bhushan. As I mentioned earlier, the text of the judgment reveals little. But in fact, the ostensibly positivist interpretation of the Supreme Court in these early cases were in reality opening up Nehruvian ideology to critique. So within the constitutional scheme, the public sphere ought not to include Crossroads or Organiser, for communism or right wing propaganda would certainly affect reasoned debate, which is central to the idea of a liberal 'public'. Here, note how the fear of unreasonable arguments is not just that it would result in a skewed debate, but that it would go further to result in actual concrete manifestations as public disorder. Kannabiran, in looking at the (mis)use of the terms 'public safety' and 'law and order' has highlighted how there is a certain overriding quality attached to these terms, i.e. the interests of the state, or rather of government. As he often says, rights are not fundamental, but restrictions. Of which restricting violence is foremost. This is evident in the way that the government reacts to the decisions in Romesh Thapar and Brij Bhushan, by restricting free speech to prevent all kinds of violence. Viewed from both these angles, it is clear that the constitution has in evolving a hierarchy of restrictions on rights, looked to different degrees of violence. Even the possibility of violence through the circulation of ideas is not spared.
V. Creating Public Participation in/through Courtrooms
As these earliest cases in the Supreme Court show, judicial interpretation constitutes the public for the constitutional text, not as the 'people' in whose name the constitution is enacted, which was what the Constituent Assembly had imagined it to be. There are reasonable restrictions on what kind of 'public' can be eligible to receive the protection of courts. This, then, is the legal 'public'. They are created in opposition to other, lesser 'publics' that are recognized, but do not exist in the legal imagination. But the implication of this goes further than to simply note who constituted the public, but it goes further to say how this public would participate. In order to do that, we must leave the now familiar examples of Romesh Thapar and Brij Bhushan and look at the jurisprudence of the Court a few years down the line.
The cases of Brij Bhushan and Romesh Thapar are inextricably linked to the decisions of the Court in V.G. Row v. Union of India & State of Travancore and the earlier A.K.Gopalan v. Union of India. The two cases dealt with ostensibly widely divergent topics – the banning of the People's Education Society as an unlawful association and the preventive detention provisions under the Preventive Detention Act, 1950. What binds them together is the fact that all of these cases addressed the twin concerns in civil liberties jurisprudence – that of press control and of preventive detention. In fact, the provisions of the Public Safety Acts were built around these ideas.
V.G. Row was decided in March 1952 and as with Romesh Thapar and Brij Bhushan, the majority decision was written once again, by Justice Patanjali Sastri, who by then had become the Chief Justice. C.R. Pattabhiraman appeared on behalf of V.G. Row, as he had for Romesh Thapar. The constitutional provision in question here was Article 19 (i) (c) deciding the scope of the right to freedom to form associations. As with the decision in Romesh Thapar, the allegation against the People's Education Society was that it was using its stated objective of spreading political education to spread propaganda on behalf of the Communist Party in Madras, which had itself been banned. Justice Sastri sees the role of the court as taking into account a wide variety of circumstances in order to judge reasonableness. Even by the early 1950s then, the Supreme Court had established itself as the protector of rights and responsibilities, as opposed to the legislature or the executive. It is interesting to see echoes of Romesh Thapar, when Justice Sastri writes about the lack of one-size-fits-all test for reasonableness under Articles 19(2) to Articles 19 (6). Unlike the Supreme Court of the 1980s which had proclaimed itself as the upholder of social justice, the 1950s Supreme Court states clearly why it had adopted this positivist interpretation. "…If then, the courts in this country face up to such an important and none too easy task, it is not out of any desire to tilt at legislative authority in a crusader's spirit but in discharge of a duty plainly laid upon them by the Constitution". It is interesting that the decision strictly keeps away from the implications of the judgment or letting a "unpopular" ideology run loose because of this decision. The understanding of 'public' to whom constitutional rights could be accorded is the 'public', irrespective of what ideology they profess. So participation in public life was to be reasonable, which entailed liberties understood in this particular sense, staying clear of volatile ideas and violence.
In their seminal work, John and Jean Comaroff highlight the fact that the postcolonial predicament is characterized by disorder and violence and by a simultaneous fetish for rules of law. As though one produces the other. So what the 1951 amendment had paved the way for is a constant replaying of the same logic of drowning out ideas. Curbing ideas and curbing violence can now be mentioned in the same breath. Whether it is the case of booking Syed Shah Geelani under the Jammu and Kashmir Public Safety Act or the countless alleged Naxalite supporters under the more recently enacted Chhatisgarh Special Public Safety Act, it is one public against another, although legal texts will seldom show this multiplicity of public spheres. Apart from those laws that state their concerns for public safety upfront, there are also legal provisions in the everyday that are ostensibly used in the name of public safety – Section 144 of the Code of Criminal Procedure that regulates everything from communal riots to cybercafé users and the various state-level 'Goondas' Act, whose preventive detention provisions still remain outside the scope of any constitutional challenge. And yet, the postcolonial predicament does not turn away from rights-talk. What it is ostensibly aimed at is the full expression of a people within the Constitution. What rights adjudication often sustains is the existence of a bourgeois liberal public sphere.
Introducing the 'public' as a legal entity forces one to look at the state not as a monolithic entity, but as possessing different faces. The 1950s public order cases are also interesting of the different ways in which reasonable restrictions were viewed by the legislature and the judiciary. Public order operated at the level of the small emergency, not the Emergency provisions that involved the high constitutional offices of the Governer or the President. Greater attention might be paid to these 'reasonable restrictions' for shows in a sense what Walter Benjamin would refer to as to the law-maintaining violence. This distinction appeared in the Romesh Thapar and Brij Bhushan cases and it then became politically unviable to argue that it be taken away. For what violence could be so insignificant that it not threaten the state? So at every point, the legal process would pick out which of the publics posed a threat. This then, would no longer be part of the other, real 'public' sphere in whose interest the state perpetuates.
Title: Terror/Tranquillity: Romesh Thapar and its Precedents Speak on the Subject of 'Public Safety'
(ABSTRACT) changed to 'Unruly Ideas and Unlawful Associations: Reasonable Restrictions on the Constitution's Public'
Speaker: Kalyani Ramnath, National Law School of India University
Abstract: This paper aims to explore the origins of a language of rights in the context of a newly inaugurated Constitution in India. Case law in the first years of the Constitution, exhibit a preoccupation with "public safety" and "maintenance of public order" at the same time that they talk of the freedom of speech and movement that the newly made citizens of the republic are to enjoy. Several terms enter the constitutional schema here -- "public order", "public safety" and "public tranquillity" -- and are placed in a definite hierarchy as judges attempt to resolve challenges on grounds of violations of Fundamental Rights. This paper is an attempt to provide a context to this method of scaling violence that is employed by the court.
A lively discussion on what level of violence undermines the security of the state is evident in Romesh Thapar, a case filed by a newspaper involving a challenge to the Madras Maintenance of Public Order Act, 1949 on grounds of violation of Article 19 (i) (a) and decided by the Supreme Court in May 1950. The precedents that it refers to are an interesting illumination of legal-social developments in late colonial and early independent India -- including the Government of India Act, 1935, the institution of the Federal Court, the Public Safety Acts in the context of Partition and consequent communal riots in 1947- 1949 and finally, the coming into force of the Constitution -- and attempts to evolve, within a judicial decision, "citizen" from subject and separate "criminal" from cause lawyers. In what ways did the transition from colonial to popular government affect the understanding of rights in the judicial imagination, given that a majority of precedents in Romesh Thapar were pre-constitutional? Do legal precedents speak louder than the call to right historical wrongs? In what ways, to parody Foucault, might society be defended from the dangers of public disorder?