India

By Caitlin Rodriguez

900px-Flag_of_India.svgIntroduction

India is said to be the world’s largest democracy being the seventh largest country in the world and the second most populated with a population of over 1.2 billion people. But comparing the current events of the country today with the history revolving around the creation of its constitution reveal that not everything promised in the document is being upheld. From 2010 onward what has been considered to be one of the most democratic countries has taken a drastic plunge into eliminating the voices that challenge the country’s government. 

Historical Background: 

India was under British rule from 1857 to 1947 and did not begin its journey to independence until 1935 when the last British/India constitution, The Government of India Act, was written. It was the first act to introduce direct elections and voter turnout increased from 7 million to 35 million in the process. After such a turnout India couldn’t “continue such a program of relentless oppression” (Gledhill). Unfortunately the start of World War II prevented India from getting further with their independence and they regressed until 1947. In 1947, India was split into what is now considered India and Pakistan and they followed the principles that were established in the 1935 act that became the basis for the Constitution they have now. The establishment of their independence in 1947 meant the “removal of British control and the expansion of what was left of the existing structure to fill up the gaps caused by the removal” (Gledhill). A constitution committee came into existence on December 9, 1946, and consisted of attendees from each state, one representative for each million of the population. On July 29, 1947, a drafting committee was formed and headed by Dr. Bhimrao Ramji Ambedkar who is known as the father of the Indian Constitution. Following the draft,  the Constitution was tabled and went through many revisions as well as the adding of amendments. The constitution was adapted by the assembly on November 26, 1949 and came into effect January 1950. At its finish India’s Constitution is now the longest constitution of any sovereign country in the world, consisting of 80,000 words and taking two years, 11 months and 18 days to write. It has 25 parts and contains 448 parts with 98 amendments to date. 

Free Speech: 

The Constitution of India addresses free speech in Article 19 when it lists the seven rights guaranteed by that amendment. They include: 

(1) All citizens shall have the right 

(a) to freedom of speech and expression; 

(b) to assemble peaceably and without arms; 

(c) to form associations or unions; 

(d) to move freely throughout the territory of India; 

(e) to reside and settle in any part of the territory of India; and 

(g) to practice any profession, or to carry on any occupation, trade or business 

  

The article also details the restrictions that are put on those seven “guaranteed” rights. They include speech that threatens the security of the state, endangers friendly relations with foreign states, disrupts public order, violates decency and morality guidelines, implores defamation, incites people to commit offense, or challenges the sovereignty and integrity of India. 

On January 25, 1978 the Indian court held a landmark case that determined that Article 19 and freedom of speech has no geological limitation within India and thoughts can be shared by individuals in India but can also be shared abroad as well. In the case of Maneka Gandhi v. Union of India, Gandhi was issued a letter by the government saying the government was going to impound her passport to benefit the public interest, and she was required to surrender her passport within seven days of receiving the letter. Gandhi responded to the letter and requested that they elaborate on the public interest reason they had given, and when they refused, she filed a Writ Petition. At the time of the case the Universal Declaration of Human Rights was being drafted which declares that everyone has the right to freedom of speech and expression, and includes the right to import and export those ideas across borders. The case concluded with the court widening the scope of the words “personal liberty” which is addressed in Article 21 and gave additional protection to Article 19 with free speech. 

In 2002, the Supreme Court in a case entitled The Association for Democratic Reforms v. Union of India, issued an order that demanded that the Election Committee make public the criminal, educational, and financial records of anyone running for political office. The request was filed by the Indian state of Gujarat by the Association for Democratic Reform and was meant to contest the election of Parliament and state legislatures. The Union of India appealed to the Supreme Court saying that they did not have the right to ask for the backgrounds of candidates up for election. But the court ruled against them in saying that the information did fall under freedom of expression and right to obtain information and should be released. Highlighting Article 19 the court said that the focus shouldn’t be on knowing a candidates’ personal affairs but rather being given the information to be able to gauge whether or not they would be good candidates for office. 

India is dealing with similar free speech confusion when it comes to the limitations of what can and cannot be posted online. Recently two girls in Mumbai were arrested for asking why their city had been virtually shut down for the funeral of one of their regional leaders. Two Air India employees were also arrested for an online post they made that “annoyed” a trade union leader and other politicians. Currently those two cases are both awaiting trial but as a result they have brought up issues that need addressing within the country. Dealing with the questions that arise with the implications of new technology can be challenging, but when sweeping censorship is a country’s answer one has to question just how clearly they’re adapting their version of freedom to fit the changing world. 

Free Press: 

Even though freedom of speech is addressed directly in Part A of Article 19 in their constitution, freedom of press is only implied and is said to be grouped together with freedom of expression. 

In May 1950, the Indian Supreme Court heard Romesh Thapar v. State of Madras where Thapar filed against the State of Madras for refusing to publish and circulate his written journal entitled “Crossroads.” printed in Bombay. The court found this to deal directly with freedom of the press and held that the ban was in violation of freedom of expression. They considered the position from which the law was written and concluded that it allowed restrictive action to be taken even in cases where no public harm was displayed and was therefore unjustifiable. 

In the 1958 case Indian Express Newspapers v. Union of India the issue of free press was directly addressed. The court ruled on the importance of free press and declared that it is absolutely essential in order to maintain a fully functioning democratic government. It broke down freedom of the press into three crucial elements: freedom of access to all types of information, freedom of publication, and freedom of circulation. 

Currently in India free press rights are still being fought against by members of the “Hindu right” and ultra conservative Muslims. Reporters Without Borders ranks India 140th on their Freedom of Press Index; the United States ranks 32, and even Afghanistan is ranked higher than India at 128. The majority of what has been contributing to India’s current plunge in the rankings is the sweeping amount of censorship that has struck the nation. Wendy Doniger, history of religions professor at the University of Chicago had her book, “The Hindus”, banned by her publisher in India because her application of Freudian analysis to certain time periods upset traditionalists. Similarly Taslima Nasreen, who lives in exile, had her television series “Dusahobas” pulled by Orthodox Muslims before it could ever air because it addressed certain gender topics such as rape, dowry, and forced marriage. Also recently, India has reinstated its ban on same-sex relationships under the 157-year-old law in Section 377 against “unnatural offenses”. Activists agree that this is a big step backwards for the country.

Critical Comparison: 

The government in India follows a parliamentary system where the executive becomes directly accountable for the legislature. They do have a president and vice president but unlike the United States, those two roles are more of figurehead positions only used to perform ceremonial rituals. Each state and union have their own form of government. The new constitution formulated by the Indian government was more of a symbol of their newfound freedom and did little rejecting of the British policy which once controlled them. As a result of that within their constitution there are still remnants of British oppression. It’s easy to make the comparison of India’s constitution with our own being that we both escaped from British rule and the style of both documents are similar in some aspects. The way both documents list the rights of the people to include speech and assembly show their similarities. The differences begin however when investigating what is mentioned in our First Amendment but not in Article 19. The First Amendment specifically mentions freedom of press and freedom to petition the government. Article 19 only implies freedom of press and eliminates freedom of religion altogether while instead focusing on freedom to move within Indian borders and practice any profession. Those slight differences illuminate the amount of control that India’s government still maintains over its citizens while simultaneously appearing to be offering them a large amount of freedom. The most substantial difference between the documents  lies in the actual acting on the freedoms that are laid out in the constitutions. The United States claims to be the freest country in the world, and similarly India boasts the largest democracy. They way that the two countries specify freedom of speech is actually very similar; The main difference lies in the fact that the United States also refers to freedom of the press directly and which India does not. Similarly as in The Association for Democratic Reforms v. Union of India in the United State’s case of the Miami Herald Publishing Co. v. Tornillo the court ruled that the government cannot make a newspaper publish what they do not want to publish. When Pat Tornillo was running for the Florida House of Representatives and had critical editorials published about him he demanded that his responses to said editorials be published as well. But the Supreme Court overturned Florida’s “right to reply” act on the grounds that it violated the First Amendment. 

Conclusion: 

Similarities between the United States’ Constitution and India’s have been made, one, because they were both motivated to declare independence in order to escape British rule, and two because of the similar structure of the two documents. India did have the advantage of being able to draw on the ideas of everyone before them since their Constitution was written only 64 years ago. The real difference between the two however is really the degree to which what is described in the Constitution is put into actual practice. Both countries on the surface have forms of government in place that should protect the rights of the people no matter what the cost. Sometimes however certain viewpoints can be silenced by the majority and it is the job of the people to stand up and protect the rights that may not be given to them even when it is written that they should be. 

This post was last updated on April 30, 2014.

Bibliography: 

Print sources 

1.) Gledhill, Alan. The Republic of India: The Development of Its Laws and Constitution. London: Stevens, 1964. Print.

2.) Price, Monroe E., and Stefaan Verhulst. Broadcasting Reform in India: Media Law from a Global Perspective. Delhi: Oxford UP, 1998. Print.

3.) Sen, Sarbani. The Constitution of India: Popular Sovereignty and Democratic Transformations. New Delhi: Oxford UP, 2007. Print.

4.) Unnithan, N. Prabha. Crime and Justice in India. Print.

Online sources 

1.) http://www.article19.org/resources.php/resource/3293/en/india:-romesh-thappar-v.-state-of-madras 

2.) http://www.article19.org/resources.php/resource/3297/en/india:-union-of-india-v.-association-for-democratic-reforms-and-anr.

3.) http://www.indialawjournal.com/volume3/issue_4/article_by_dheerajendra.html

4.) http://www.theguardian.com/world/2014/jan/28/india-supreme-court-refuses-review-ban-gay-sex

5.) http://en.rsf.org/press-freedom-index-2013,1054.html

6.) http://www.oyez.org/cases/1970-1979/1973/1973_73_797

7.) http://www.indiankanoon.org/doc/1218090/

8.) http://www.nytimes.com/2014/02/21/opinion/muzzling-speech-in-india.html?_r=0

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