What self-styled nationalists could learn from the Hindu Right's own past record on free speech
Here's
a reality check: Syama Prasad Mookerjee and NC Chatterjee drew
unapologetically upon a Western liberal tradition while making a strong
case for the right to free speech.
Last week, senior journalist Siddharth
Varadrajan was “held
hostage for around half an hour” inside the
office of the Allahabad University vice chancellor by Akhil Bharatiya Vidyarthi
Parishad. He was not allowed to address a symposium, following
protests that charged him of being “pro-naxal” and his ideas as “anti-nationalist”.
One might add this to a long list of ways
in which the Hindu right has responded to inconvenient or inoffensive speech in
recent years: legal action, the threat of legal action, political lobbying,
protests, boycotts, physical violence of all kinds. In pointing this out, one
should not forget that all but the last are perfectly legal, and that the Right
hardly has a monopoly on their use. But their deployment certainly does not
suggest an ideological commitment to free speech as such: Subramanian Swamy is an interesting, ambiguous,
exception.
It was not always thus: in the 1950s, the
Hindu right played an important role in the development of Indian free speech
doctrine, and in political activism to highlight its importance. Interestingly,
it articulated this importance in the language of the Western liberal
tradition. Those on the Hindu right today who equate being “pro-naxal” with
being “anti-national” might be interested to learn that in the 1950s at least
some of their ideological forebears explicitly defended the free speech rights
of communists, and allied with them in the common cause of defending civil
liberties, regardless of party-political affiliation or ideology. Background
The most visible legal challenge by the
Hindu right to restrictions on speech came from the Organiser in a case
called Brij
Bhushan and another vs. State of Delhi(the “another” was
its editor, KR Malkani; Brij Bhushan was its printer and publisher). The
case was decided in May 1950, along with a case involving a magazine called CrossRoads,
explicitly communist in its sympathies, founded and edited by Romesh Thapar –
later founder-editor of Seminar, brother of Romila Thapar. Because the Court’s
reasoning in Brij Bhushan was an application of its decision in Romesh
Thapar vs. State of Madras(often known as the CrossRoads
case), the Organiser case is not much studied, even by lawyers. But its
story is worth an independent retelling.
In order to understand that story, one must
begin with an incident in 1949 in Khulna district of what was then East
Pakistan. A police squad had gone to a
village called Kalshira to arrest suspected communists. While it did not find
any communists, it was alleged to have mistreated women in what was a
predominantly Hindu village. This led to a clash with the villagers in which
two policemen were killed. A larger party of police, along with a militia aided
by local Muslims, retaliated by destroying houses and assaulting villagers in
the area.
Some of these villagers then escaped to
West Bengal, carrying with them accounts of harassment and violence. The
recounting of Muslim violence in East Bengal led to anti-Muslim riots in
early
February, allegedly fomented by the Hindu Mahasabha. These in turn led
to the
migration of Muslims out of West Bengal to East Pakistan, and a fresh
cycle of
anti-Hindu riots in Dhaka, followed by further migration to West Bengal.
In
August 1950 the Government of India claimed that between February 7 and
April 8, 1950, over eight lakh Hindus had left East Pakistan for India,
and over three
lakh Muslims had left in the reverse direction.
As Srinath Raghavan points out in his
wonderful book, War and Peace in Modern India, Jawaharlal Nehru faced enormous pressure from within his party, as well as the country as a
whole, to take “strong steps” in response to the situation in East Pakistan –
including the possibility of going to war if necessary, or if not, to force a
transfer of populations between the two countries, accompanied by an exchange
of land. Nehru was opposed to war for a number of reasons, though he did not
rule it out: while he was confident of the prospects of a military victory, he
thought it would be disastrous from the point of view of protecting the rights
of Hindu minorities in Pakistan, who would face the brunt of retaliatory
violence. He also argued that India’s responsibilities towards protecting
Muslims in India did not diminish with Pakistan’s treatment of Hindus in its
territory.
In the end, after a great deal of diplomacy
as well as some military manoeuvring, he persuaded his Pakistani counterpart,
Liaquat Ali Khan, to sign a joint declaration in April, affirming a joint
intention to protect minorities, restore communal harmony, and provide help
both to migrants and refugees who wished to return. The Nehru-Liaquat Pact was
seen as unsatisfactory by some of Nehru’s opponents like Syama Prasad
Mookerjee, who resigned from the Cabinet in protest. The Organiser case
It was in this atmosphere of calls to war
with Pakistan and violence against Muslims in West Bengal that the Organiser
published, on February 27 1950, a front-page article entitled “Six
Questions.” Another article, “Villains versus Fools,”
criticised the government for wanting to administer claims to Muslim evacuee
property on an individual basis rather than disburse it to the most needy Hindu
refugees. It proceeded to question Muslim loyalty more generally:
“it
is easier for a camel to pass through the needle’s eye than for a
Leaguer to be loyal to Bharat. Wolves in sheep-skin are Wolves all the
same.”
Malkani was called to explain himself to
the Central Press Advisory Committee for these three articles. He protested in
an editorial two weeks later:
We
owe it to the public to lay before it official acts of harassment of
the press for publication of undisputed facts in a manner which has not
disturbed, and is not likely to endanger, the public peace. To threaten
the liberty of the press for the sole offence of non-conformity to
official view in each and every matter, may be a handy tool for tyrants
but only a crippling curtailment of civil liberties in a free democracy.
In March Malkani was served with a
“pre-censorship” order under the East Punjab Public Safety Act, 1949, requiring
him to submit all “communal matter and news and views about Pakistan” for prior
scrutiny before publication. He published the order in the March 13 issue of Organiser,
writing
Facts are
sacred. To withhold their publication because they are unpalatable would
be to play false to Truth. If the administration earnestly wants ugly
facts not to appear in the press, the only right and honest course for
it is effectively to exert itself for the non-occurrence of such brutal
facts.
On April 17 the Organiser announced
that it was challenging the constitutionality of the East Punjab Public Safety
Act in the “Supreme Court of Bharat.” A great part of its issue of May 1 was devoted
to the case, including a transcription of the oral arguments before the Court.
Finally on June 5, it announced on its front page news of “A Great Event”: the
Court had declared the relevant section of the East Punjab Public Safety Act
unconstitutional. Malkani wrote triumphantly
After
a gruelling three months subjection to the galling orders of an
over-reaching executive we once again breath[e] the air of freedom. Our
felicity is heightened by the fact that the freedom achieved is for the
whole nation and not a mere personal salvation. For our freedom marks
the guaranteeing of the freedom of the entire press of the Nation.
Generations yet unborn will look upon this decision as the corner stone
of the arch of liberty for the people no less than for their press. For
the press it is a veritable Magna Carta under whose provisions it can go
from strength to strength in an empyrean of liberty. We have no words
to congratulate the Supreme Court for its supreme sense of duty to
uphold the spirit of our Democratic Republican Constitution. We thank
them not only on behalf of ourselves but on behalf of the entire
national Press of Bharat.
He concluded with a reference to CrossRoads
– the first time either of these journals had acknowledged the other’s role
in the legal battle for press freedom:
[D]emocracy
lives by a free press. The free press is the first casualty of fascist
regimes the world over. Democracy lives, so long as press lives to
inform, instruct, and organise public opinion. If free press goes
democracy too goes even as the day passes with the setting of the sun.
That we and our Bombay contemporary should have been the vehicle of this
democratic dispensation to the national press is a source of
gratification to us.
The Organiser’s cartoonist put the
matter somewhat differently: Five takeaways
The Organiser and CrossRoads cases
were followed by a number of High Court judgements across the country
invalidating various speech-restrictive laws, including the sedition clause of
the Indian Penal Code. The Government reacted by enacting the First Amendment
to the Indian Constitution, which reinstated these laws and weakened the
constitutional free speech protections guaranteed in Article 19. In the debates
around the Amendment, it was Syama Prasad Mookerjee who articulated most
clearly the liberal case in favour of protecting free speech.
These
events hold at least five lessons for the present. First, one can
exercise constitutional rights in ways that are unwise or even morally
dubious. I am not sure whether or not Brij Bhushan and CrossRoads were decided correctly – indeed, I think pre-censorship of the Organiser was not unreasonable in the circumstances. But even if I was convinced of the Organiser's
constitutional case, I see no reason to celebrate the its front-page
first-personal reports of Muslim violence in East Pakistan in a
communally charged atmosphere, its frankly articulated suspicion of
Muslim loyalty, or the general war-mongering of the right-wing press at
the time.
Second, the free-speech defence offered by
the Organiser were not sectarian in spirit (“the freedom achieved is for
the whole nation and not a mere personal salvation”). The Organiser’s lawyer
was NC Chatterjee, a Vice-President of the Hindu Mahasabha, but also a
member of the Calcutta-based Civil Liberties Committee, set up to defend
Communists in the wake of their suppression by the BC Roy government in the
1940s. Indeed, he was actively involved in civil liberties work defending
communists throughout his career, and his son Somnath – with his blessings –
was later to become a distinguished member of the Communist Party of India (Marxist), as well as Speaker of
the Lok Sabha. There is no question that he would have regarded the charge of
being a “Naxal” or a “Naxal-supporter” as a reason to defend their civil
liberties rather than take them away.
Similarly, in reading Syama Prasad
Mookerjee’s impassioned defences of free speech in the Parliamentary debates
around the First Amendment, one cannot help thinking that he would be appalled
that those who claim to be his heirs should prosecute someone like Arundhati
Roy for sedition in a speech about Kashmir. (He might have disagreed with
what she said, but I think he would have defended her right to say it).
Third, despite Organiser’s invocation
of Rishi Vashista, the free-speech arguments made by Chatterjee and Mookerjee
in Court, in Parliament, and in public, drew unapologetically upon a Western
liberal tradition. Indeed, both Mookerjee and Chatterjee were office-bearers of
the All-India Civil Liberties Council, which had ties with the International
League for the Rights of Man. So much for contemporary fears of “foreign
influence”, of either organisations or ideologies! My guess – pending further
investigation – is that they would have been mystified that the term “liberal”
is currently a term of abuse by the Hindu right.
Fourth, the positions adopted by the
parties involved at the time don’t align easily with those of their present-day
appropriators. It would be easy for the Hindu right today to blame Nehru for
the suppression of speech during this period, but it was Patel as home minister
who was concerned that the Organiser and CrossRoads judgements
would prevent the government from taking action against Syama Prasad Mookerjee
for his speeches on Kashmir, and Ambedkar as law minister who made the
strongest case for amending the Constitution to reduce free speech protections.
Finally, this episode should make us wonder
whether we are well-served by dividing the contemporary political world into
neat, oppositional categories, with “bhakts” and “chaddiwalas” at one end, “libtards”
and “sickularists” at the other. There is no question that Mookerjee and
Chatterjee were Hindu nationalists, but their relationship to Hindu nationalism
was complex: Mookerjee resigned from the Hindu Mahasabha because he felt that
Hindus didn’t need a separate political body after Partition and was appalled
by the anti-Muslim violence in Calcutta; Chatterjee joined Gandhi at Noakhali,
grew disaffected with the Mahasabha after Gandhi’s assassination, and flirted
electorally with the Communists for a time.
But I suspect that a certain kind
of liberalism – perhaps of a kind unfamiliar in post-Independence India – also
ran deep within them. How freeing it would be if our political imagination, and
our political vocabulary, had space for figures who exhibit such complexities
today.
