Our opinion makers malign Rightists as being illiberal, intolerant, and retrograde. Therefore, Bharatiya Janata Party leader Subramanian Swamy’s challenge to hate speech laws in the Supreme Court may appear odd, an exception to the rule that conservatives are against the freedom of expression. But, as in most cases, the truth is exactly the opposite of what the popes and archbishops of public discourse say it is.
Swamy has said that several provisions of the Indian Penal Code dealing with offences of “hate speech” violate the Fundamental Right to freedom of expression as enshrined in the Constitution. He has mentioned Sections 153, 153A,153B, 295, 295A, 298, and 505 in this context. He has rightly asserted that these legal provisions are used to penalize the citizens of India in the exercise of their right to freedom of expression and, there, should be invalidated.
If accepted by the apex court, this invalidation would be one of the biggest victories for liberty in India in the last one hundred years, to be ranked alongside Justice H.R. Khanna’s note of dissent in 1975 that upheld fundamental rights against the deluge of Indira Gandhi’s tyranny. For these sections restrain the mind. “All these sections do not have any safeguards within which a person can publicize his analysis of various nuanced truths of interaction between groups which differ on the basis of religion, race, place of birth, residence, language, caste or community,” Swamy said in his petition.
The governments in Independent India should have provided the needed safeguards to uphold the cause of liberty, but they did the exact opposite. Right from the beginning, our political masters tried to shrink rather than expand the sphere of liberty. The very first Amendment to the Constitution introduced “reasonable restrictions” on freedom of expression. The purpose was to ban or subdue anything opinion, whether on the Left or the Right, that was unfavorable to Jawaharlal Nehru, the self-righteous megalomaniac who considered himself to be the repository of all wisdom.
The instant provocations were: ban on Romesh Thapar’s Left-leaning magazine Crossroads by the Madras government which was set aside by courts on the grounds that it was ultra vires of the Constitutional provisions related to the right to freedom of expression; and Nehru’s displeasure with the RSS mouthpiece, Organiser.
So, the Nehru government decided to undermine the freedom of expression and other Fundamental Rights, thus initiating a process which ultimately led to the scrapping of one Fundamental Right, the right to property, in 1978 and weakening of all Fundamental Rights in general.
We have been tutored to believe that Nehru was an erudite liberal who had the temperament and tenderness of a poet and prudence of a statesman. Few would doubt his erudition, but fewer would call him tolerant if all facts about the First Amendment and his other misdemeanors are made public—which are not because of the conspiracy of silence by Leftists and liberals, and the philistinism of saffronites.
In its May 28, 1951, issue, the Time magazine gave a vivid description of Nehru’s intolerance: “Part of the Indian press, said [Nehru], is dirty, indulges in ‘vulgarity, indecency and falsehood.’ To teach it manners, Nehru proposed an amendment to India’s constitution that would impose severe restrictions on freedom of speech and expression. He asked for power to curb the press and to punish persons and newspapers for ‘contempt of court, defamation and incitement to an offense’ Nehru told Parliament: ‘It has become a matter of the deepest distress to me to see the way in which the less responsible news sheets are being conducted… not injuring me or this House much, but poisoning the minds of the younger generation.”
Nehru’s illiberality evoked considerable response in Parliament, the fiercest from Syama Prasad Mookerjee, who was earlier Minister of Industry in the Nehru Cabinet and who went on to found the Bharatiya Jana Sangh, which would later evolve into the BJP. Mukherjee fought the First Amendment tooth and nail. According to the Time report:
Mookerjee (to Nehru): You’ve got 240 supporters in this House, but outside in the country millions are against you.
Nehru (shaking his fists): [Your] statements are scandalous…
Mookerjee: Your intolerance is scandalous…
Nehru (shouting): Any person who says that this amendment of mine curbs the liberty of the press utters lies…
As Nehru explained it: “We should not only give the press freedom, but make it understand that freedom.”
Notice the vanity and superciliousness of Nehru; he considered himself no less than God, for freedom is an inalienable right of human beings which can be given only by God, if you are a believer, or by nature, if you are not. At any rate, no government gives freedom as a gift to the people, certainly not the government run by a man as illiberal as Nehru.
And yet we are told that Nehru was a great liberal and Mukherjee a ‘communal’ leader! Swamy, of course, is a maverick, a mad man, a loose cannon. May the madness of the maverick succeed, for his challenge to the sections restraining freedom of expression is his noblest endeavor.