Free Speech Manifesto

A Free Speech
Manifesto
The case for absolute free speech
and for the repeal of all
anti- free speech laws in India
Sanjeev Sabhlok
https://www.facebook.com/Absolute.Freedom.of.Spe
ech
Preliminary Draft
23 ebruary 2!"#
$ork in pro%ress& 'appy to receive input at sabhlok(%mail&com
i
)ontents
"& The case for absolute free speech&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&"
"&" Definition of speech* It is + ,-,-.I-/0,T -PI,I-,&&&&&&&&&&&&&&&&&&&&&&&&&&&&&"
"&2 India is at the "#!th position in the world1s press freedom inde2&&&&&&&&&&&&&2
"&3 3y views re* Swamy4 5ushdie4 etc& 6 and commitment to 7almost8
absolute free speech&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&9
"&# reedom of e2pression* from my draft manuscript The Discovery of
reedom&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&& 9
"&: reedom of e2pression* a %reat challen%e for India&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&;
"&9 5eli%ions are like an 0mperor without clothes4 but don1t want that to be
told< "2
2& 5epeal India1s anti- free speech laws and unban all books and
movies&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&"#
2&" India1s anti free-speech laws* an overview&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&"#
2&2 5epealin% the anti-free speech laws of India4 e%& s&":3 and s&2;:+ IP)
and s99+ of IT +ct&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&"9
2&3 =nban all books and movies4 etc&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&">
2&# Sone ?i )hidiya reform a%enda* total commitment to free speech&&&&&&&&">
3& 'istory of destruction of free speech in India&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&";
3&" India1s anti free-speech laws* 'ow 3acaulay chose to pander to cra@y
Indians than to insist on freedom and order&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&";
3&2 rom s&":3+ 7fryin% pan8 into the fire 7s&2;:+8* 3uslim fanatics forced
Aritish rulers to destroy free speech&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&2"
#& Indian advocates of absolute free speech&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&2B
#&" 'induism stands for +AS-/=T0 free speech&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&2B
#&2 ?aulitya advocated the freedom to offend4 althou%h his support for free
speech left much to be desired &&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&3!
#&3 ACPD.'PDSan%h Parivar are 3uslims D)hristians who pretend to be
E'induF3"
#&# 5aja 5ammohun1s fi%ht for freedom of e2pression in India&&&&&&&&&&&&&&&&&&&&32
#&: Gandhi on +AS-/=T0 freedom of speech&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&3#
#&9 Sardar 'ukum Sin%h fou%ht for our liberty in the )onstituent +ssembly
a%ainst anti-free speech provisions &&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&3:
#&> Sardar Ahopinder Sin%h 3an also fou%ht for our liberty in the )onstituent
+ssembly a%ainst anti-free speech provisions&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&3>
#&B Somnath /ahiri protested in the )onstituent +ssembly a%ainst massive
powers to %overnment a%ainst citi@ens 6 more than the Aritish had&&&&&&&&&3B
#&; ? 3 3unshi1s defence of freedom of speech&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&3;
#&"! 3ahboob +li Aai% fou%ht for our liberty in the )onstituent +ssembly
a%ainst anti- free speech provisions&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&#!
#&"" Ca%dish Aha%wati1s defence of +AS-/=T0 freedom of speech&&&&&&&&&&#!
#&"2 Custice 3arkandey ?atju defendin% +seem Trivedi1s freedom to publish
his cartoons&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&& #"
ii
ree Speech 3anifesto
:&
,on-Indian advocates of absolute free speech&&&&&&&&&&&&&&&&&&&&&#2
:&" Thomas 3ore1s EPetition for reedom of SpeechF 3ade as Speaker of
the 'ouse of )ommons To ?in% 'enry .III4 "B +pril ":23&&&&&&&&&&&&&&&&&&&&&&&#2
:&2 Dierdre 3c)loskey on +AS-/=T0 freedom of speech& Aecause the only
other way is violence&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&#3
:&3 )hristopher 'itchens on +AS-/=T0 free speech& A5I//I+,T
ar%uments that %o beyond 3ill&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&##
:&# )hristopher 'itchens demolishes the myth that 3uslims have any
special ri%hts to block free speech&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&:"
:&: )hristopher 'itchens objectin% to attempts to block publication of
Satanic .erses in =S+&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&:"
:&9 Aein% offended %ives no ri%ht to violent reprisal& )hristopher 'itchens4
once a%ain&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&& :"
:&> )hristopher 'itchens shows Shashi Tharoor the meanin% of free speech&
,ot cowardice it is&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&:2
:&B + rousin% defence of +AS-/=T0 freedom of speech by 5ichard
Dawkins& /et 'induism not %enerate 3ad 3ullahs4 as well&&&&&&&&&&&&&&&&&&&&&&:2
:&; ,oam )homsky describes how freedom of speech in =S+ has been
I,)50+SI,G throu%h activism&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&:2
:&"! 3r Aean1s ST5-,G advocacy of absolute freedom of speech 75owan
+tkinson8&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&& :3
:&"" 3ark Steyn on +AS-/=T0 free speech& +nd how radical Islam is
shuttin% down speech all over the world&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&::
:&"2 +brams clarifies the increasin%ly +AS-/=T0 nature of freedom of
speech in =S+&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&& ::
:&"3 Custice 'u%o Alack1s Cames 3adison /ecture* +ssertin% +AS-/=T0
freedom of speech&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&:9
:&"# Cohn ?ennedy on the irst +mendment and free press&&&&&&&&&&&&&&&&&&&&9;
9& Illustrations of India1s attack on free speech&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&>!
9&" irst of all please be very clear that Pen%uin was -5)0D +T
G=,P-I,T to destroy the Doni%er book&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&>!
9&2 ?oenraad 0lst lashes out a%ainst fake E'indusF like 3alhotra who are
celebratin% the destruction of Doni%er1s book&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&>"
9&3 ?apil Sibal1s attack on free speech&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&>2
9&# Government attacks on free speech&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&>3
9&: Aooks banned in India&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&>3
9&9 $orryin% developments&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&>;
9&> +l%u 5ai Shastri 6 an enemy of liberty in the Indian )onstituent
+ssembly&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&& >;
9&B Shashi Tharoor has entirely lost me 6 by insistin% that free speech
already e2ists in India&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&B!
>& 5ecommended resources&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&B"
>&" ree books&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&& B"
>&"&" reedom to 02press and offence by 5avi Shanker ?apoor&&&&&&&&&&&B"
>&"&2 Give 3e /iberty -r Give 3e Death Patrick 'enry4 3arch 234 ">>:&
&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&& B"
>&"&3 reedom of 02pression by ?embrew 3c/eod&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&B"
>&2 -ther books&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&& B"
>&2&" ?indly InHuisitors* The ,ew +ttacks on ree Thou%ht&&&&&&&&&&&&&&&&&&&B"
iii
>&2&2 ";B# by Geor%e -rwell&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&B"
>&2&3 'itch 22* + memoir4 by )hristopher 'itchens&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&B"
>&2&# The )ulture of Terrorism by ,oam )homsky&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&B"
>&3 /ists B"
>&3&" $ikipedia&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&& B"
>&3&2 +bout&com&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&B"
>&3&3 =penn&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&& B"
iv
"& The case for absolute free speech
"&" Definition of speech* It is + ,-,-.I-/0,T -PI,I-,
Ay speech I mean a non-violent e2pression of -PI,I-, on +,I subject under the
sun4 re%ardless of whether that opinion is deemed offensive by some&
Ay speech I do not mean a libellous 7false4 commercially harmful8 attack on someone
or any other form of direct violent harm or direct threat of violence& This means thin%s
like child porno%raphy4 speeches intended to directly provoke violence durin%
communal violence4 etc& is ,-T speech but a form of violence&
There is %reat confusion when people mi2 up -PI,I-,S on issues 7includin%
reli%ions8 with false attacks on specific individuals or any other form of violence&
5epeatedly bullyin% someone is a form of violence&
$hen it is kept clearly in mind that speech is an -PI,I-, and not an +)TI-,4 then
the confusion becomes clearer&
+ll speech4 like any other freedom4 is subject to 7social8 accountability&
,ote*
Comment received on my blog
I find it curious and rather naive you have defined speech as inherently non-violent
thereby side-stepping the issue of allowed and disallowed speech. This short-cut and
does not make good law.
Also, in your exclusions as to what is not speech, you have this:
..!arming the reputation of a person leading to commercial loss"
Take this instance, where a bad surgeon botches up his operations every once in a
while but cleverly hides the facts from the public, puts out nice ads in the local
papers #effectively buying the media$, donates well to aid social work etc, gets
awards like %olden &eacock or whatever is easy, thus building up a good reputation.
'ow one of his patients s(ueals on him, harming the surgeon)s reputation
commercially, it seems that you want to disallow such speech and*or make the
patient take back the words and pay damages. &lease comment.
Also you place great emphasis on accountability of the speaker which means
identification, possible +,A&&+ etc. +peech as a medium for whistleblowing doesn)t
seem to occur to you at all.
My response
Speech as truth-findin% mechanisms are non-violent discourse and must be fully
protected&
The idea of libel is a civil matter that would need be tested in a court& In in the
e2ample you cite 7bad doctor84 if it is demonstrated in court that the patient was ri%ht4
no cause lies a%ainst any such speech by the patient& So havin% evidence is a %ood
idea before directly attackin% someone1s commercial reputation& 3ere commercial
harm is not e2cuse4 however4 for then you could never catch a thief because the thief
would incur a Jcommercial harm1& +ccountability is the key principle& The doctor was
misleadin% others4 so he is at fault re%ardless of any loss he under%oes throu%h the
Jtruth1 speech&
I think these three thin%s* 7a8 non-violence4 7b8 truth and 7c8 accountibility can throw
adeHuate li%ht on any J%ray1 area&
The key point I1m makin% in this Jmanifesto1 is about the +AS-/=T0 freedom to
critiHueDlampoon reli%ion or have opinions on matters of science or society* such
opinions can1t be objected to re%ardless of any EoffenceF felt by anyone& It is such
opinions that are basically bein% debated& ,o one is worried about libel or
whisleblowin% here& Aannin% booksDmovies is about opinion that someone finds
EoffensiveF& That4 I1m afraid4 is not tenable in a free society&
"&2 India is at the "#!th position in the world1s press freedom
inde2
3y blo% post&
)an someone please tell the smu% and self-con%ratulatory Shashi Tharoor
that India ranks "#!th out of ">; countries in freedom of the pressK LData
sourceM
+nd can someone please ask the Islamic4 )hristian and 'indutva fanatics4
lunatics and madmen in India to pipe down and allow India to developK
!hy does "#"$%&'" in (ndia want to crush liberty) +nd these people
%loat that India is shinin%K<
,o economic freedom4 no property ri%hts4 no freedom of speech&
'ow4 then4 can India developK
0veryone must be free to hold opinions and e2press them throu%h speech4
writin%4 print4 art4 or throu%h any other medium& This freedom of speech4 bein%
verbal4 not directly leadin% to violent conseHuence4 must be absolute&
there ought to exist the fullest liberty of professing and discussing,
as a matter of ethical conviction, any doctrine, however immoral it may
be considered. John Stuart Mill
Those who know me4 are aware that I insist that freedom must be constrained
throu%h accountability& That e2ists even in this case 7throu%h civil dama%e
laws4 for instance4 should one dama%e someoneNs reputation falsely8& Aut free
speech4 the most vital part of liberty4 must otherwise be absolute& This is the
most DI50)T form of liberty4 the most obvious&
?ey reasons are provided below&
A* +(,"$-%
* Free speech is of value in itself. a necessary part of our humanity
-ur mind is always free& E/ock up your libraries if you likeO but there is no
%ate4 no lock4 no bolt that you can set upon the freedom of my mind&F P
.ir%inia $oolf4 + 5oom of -neNs -wn&
'ow do we e2ist as free men in this world without e2pressin% our mindK
Speech is an e2pression of our uniHueness& It is a basic reHuirement if human
7as opposed to animal or slave8 e2istence& +nimals imitate others and need
not think for themselves& The human4 however4 must employ all his faculties
includin% reasonin% and jud%ment& +s 3ill wrote* Eit is better to be a human
bein% dissatisfied than a pi% satisfiedO better to be Socrates dissatisfied than a
fool satisfied&F +nd so4 as Cohn 3ilton said* QGive me the liberty to know4 to
utter4 and to ar%ue freely accordin% to conscience4 above all liberties&Q
/
Speech is therefore valuable in itself& It is part of our liberty& This can be
called the deontolo%ical ar%ument for free speech& +s Aenedict Spino@a wrote
in the seventeenth century* JThe most tyrannical %overnments are those
which make crimes of opinions4 for everyone has an inalienable ri%ht over his
thou%hts1&
+nd as )hris Aer% says4 QThe free4 morally autonomous individual is one who
can construct their own identity4 form their own beliefs4 and pursue their own
desires while toleratin% the identities4 beliefs and desires of others&Q 7In
Defence of reedom of Speech* rom +ncient Greece to +ndrew Aolt8&
/* Speech is the only non0violent means of persuasion
'umans can persuade others only throu%h two means* verbal or throu%h
violence& The alternative to speech is violence& 5e%ardless of how offensive
it mi%ht be4 speech falls into the cate%ory of non-violence& 'ence it must be
left to individuals to choose its use4 as they do not physically harm anyone in
this process&
,* 1-(-+(-%
2* Speech is instrumental in human advancement
This is the utilitarian ar%ument for free speech4 attributable to 3ill& The
reasons we must permit free speech are that*
a8 a censored opinion mi%ht be true 7hence of value8& Ay censorin% it4 we
destroy value& +s Custice -liver $endell 'olmes wrote in his dissent in
+brams v& =nited States4 truth can only emer%e throu%h free trade in the
marketplace of ideasO
b8 even if the opinion is partly false4 it may contain part of the truth4 hence
important to have a discussion around it4 to distin%uish the elements of the
truthO and
c8 even if the opinion is wholly false4 it should be allowed as contrast to other
opinions4 thus preventin% any opinion from becomin% do%ma& +ny
unchallen%ed opinion loses its meanin% and it is best viewed in li%ht of false
opinions& QThere is a dan%er that the received truth4 unless debated and
challen%ed4 will be held in the manner of prejudice or dead do%ma4 its
meanin% for%otten or enfeebled4 and4 therefore4 this truth will be inefficacious
for %ood& 3oreover4 without free speech4 totally false heretical opinions4 which
could not survive open discussion4 will not disappear& Instead4 driven
under%round4 these opinions will smolder4 their fallacies protected from
e2posure and oppositionQ LHuote from 'uman /iberty and reedom of Speech
by )& 0dwin AakerM&
reedom of e2pression can be messy& Aut as +le2is de TocHueville said* QTo
enjoy the inestimable blessin%s of a free press it is necessary to tolerate the
ills that it en%enders& To believe you can have one without the other is a
delusion&Q I personally am not a utilitarian& I donNt believe that I must make an
appeal to the QbenefitsQ of freedom in order to demand freedom& reedom is
an G--D I, ITS0/& That is the messa%e I brin%&
C* 31,+(C C4&(C"/ 5&#"$'M"'- FA(+1$"
6* -he impossibility of finding a perfect censor
$ork in pro%ress& 'appy to receive input at sabhlok(%mail&com 2
This is the public choice ar%ument4 accordin% to which4 it impossible to find a
consistent and wise re%ulatorDcensor of speech& 0ven if some norms could be
decided re%ardin% limitations on speech4 the person authorised to so censor
our speech will brin% to the table his or her own limitations of knowled%e and
understandin% 6 invariably makin% it impossible to a%ree to the restriction or
the manner of restriction& In any event4 no one is infallible& Therefore one
should be loath to limit discussion&
(F S3""C4 CA1S"S 7($"C- 34%S(CA+ A'7 C&MM"$C(A+ 4A$M (-
,"C&M"S A F&$M &F #(&+"'C"
reedom is always circumscribed by accountability& There is no licence to
harm& Speech can harm in a few circumstances& or instance*
a8 causin% a riot or %roup panic* no one can cause shout NNfireNN in a packed
theatre&
b8 weakenin% national security throu%h leaka%e of secrets to the enemyO
c8 harmin% a reputation of a person which leads to commercial harmO
d8 directly incitin% or formin% part of a conspiracy to injure or cause harm&
These are predicated on the direct prompting of specific harm 6 a form of
violence& To the e2tent speech remains non-violent in intent and merely
e2presses an opinion4 however poorly informed4 it cannot be restricted or
punished&
e&%& bullyin% causes real harm& It is a form of violence&
Q+ccordin% to 3ill4 there are two major clauses to free speech& The 4arm
3rinciple and The &ffense 3rinciple& The first is valid 7e2amples of use
include hate speech4 incitement of violence and makin% death threats8 and
the second is not 7e2amples of use include blasphemy4 critici@in% an ideolo%y4
supportin% an ideolo%yDreli%ion8&Q LSourceM&
M%-4S S1$$&1'7('5 S3""C4
,ow that we have understood the key ar%uments for absolute freedom of
speech4 we can rebut the commonly touted myths&
The myth that we are entitled to respect
Cust because someone believes in somethin% does not entitle that person to
have those beliefs respected by others& + person may well believe somethin%
and so4 %ood on that person& Aut that1s all there is to it& reedom to believe is
not freedom to impose those beliefs on others& ,o one is reHuired to respect
your beliefs&
EI disapprove of what you say4 but I will defend to the death your ri%ht to say
itF 6 attributed to .oltaire&
EIf you believe in freedom of speech4 you believe in freedom of speech for
views you donNt like& Stalin and 'itler4 for e2ample4 were dictators in favor of
freedom of speech for views they liked only& If youNre in favor of freedom of
speech4 that means youNre in favor of freedom of speech precisely for views
you despise&F L,oam )homsky4 3anufacturin% )onsent* ,oam )homsky and
the 3edia4 ";;2M
The myth that we are entitled to perfect accuracy
6
'uman knowled%e is e2tremely weak and limited& ,o one in the world can be
entirely accurate& There can therefore be no e2pectation that someone1s
speech be entirely accurate& If someone1s speech is so important that you
wish to debate it or correct it4 by all means do so& That person is not obli%ed
to debate with you nor to Jcorrect1 hisDher inaccuracy& Iou are also not obli%ed
to en%a%e with such personDs or hire their services for your or%anisation&
EPeople have the ri%ht of freedom and e2pression whatever their views4 that
the importance of defendin% these ri%hts is all the %reater when the person
e2presses views that are abhorrent to virtually everyone& I do defend the ri%ht
of aurisson to publish falsehoods4 as I defend the ri%ht of anyone else to do
so4 includin% Professor Smokler& F L,oam )homsk4 September ";B:4 -aily
.amera 7Aoulder4 )-8 /etter to the editor written in response to a letter
commentin% on a nationally-syndicated column by ,at 'entoffM
The myth that we are entitled not to be offended
There can be no free speech without the ri%ht to offend& +ll human pro%ress
has arisen from speech that %ave offence to at least some people& ,o one is
obli%ed to say sweet thin%s about your beliefs4 or couch them in Jpolitically
correct1 lan%ua%e&
5estrictions are applicable for limitations4 as with libel4 slander4 obscenity4
sedition 7includin%4 for e2ample incitin% ethnic hatred84 copyri%ht violation4
revelation of information that is classified or otherwise&
The myth that hatred cannot be e2pressed
This is a sub-set of the Jwe can1t be offended1 myth& It can1t be sustained& -nly
by allowin% vent to hatred can we know the state of a society1s mind4 and
work out ways to deal with it throu%h debateDreason& 0ven if the person who
e2presses hatred is not amenable to reason4 that1s fine so lon% as no violence
is used&
S1MMA$%
,o matter which way you look at it4 there can be ,- .I-/0,)0 7destruction
of books4 etc&8 in response to non-violence& There can be no ban on booksD
destruction of books under +,I circumstance& + writerDartist is takin% a
PI0)0 - P+P05D)+,.+S and puttin% down his mind onto it& $e can view
hisDher mind throu%h that paper4 and accept the ideaD reject itD pity the
writerDartist&
Aut merely puttin% a thin% down on paperDcanvas or sin%in% about it is no
reason to behave badly by D0ST5-II,G physical property 7booksDart8 or 6
as in the case of 3uslims fundamentalists 6 destroyin% lives&
%&1$ -"'7"'C% F&$ #(&+"'- ,"4A#(&1$ (S '& 81S-(F(CA-(&'
F&$ M" -& '&- S3"A9 M% M('7. 5& F(: %&1$S"+F F($S-.
(F %&1$ $"+(5(&' ;('C+17('5 4('71(SM* ,"+("#"S (' ,&&9
7"S$-1C-(&'. ( !(++ ," -4" "'"M% &F %&1$ $"+(5(&' F&$ +(F".
50)-330,D0D $5IT05SDT'I,?05S -, T'IS S=AC0)T
Cohn 3ilton
C&S& 3ill 7-n /iberty8
Dierdre 3c)loskey 7the discussions about rhetoric8
$ork in pro%ress& 'appy to receive input at sabhlok(%mail&com <
,oam )homsky
)hristopher 'itchens
5ichard Dawkins
5owan +tkinson
"&3 3y views re* Swamy4 5ushdie4 etc& 6 and commitment to
7almost8 absolute free speech
Source* 3y blo% post&
I've been asked on twitter whether I have defended Taslima Nasreen and
Subramanian Swamy (Harvard incdnt).
Well I may or may not comment on each and every case of disru!tion of free s!eech in India.
"any of my comments I can't readily find (!erha!s I commented on #$% emails etc.) but
some e&am!les below
'o artists have license to abuse freedom of e&!ression( ("ay )* +,,-)
#reedom of e&!ression. a /reat challen/e for India (0u/ust )1 +,),)
2a3a 2ammohun4s fi/ht for freedom of e&!ression in India (November 5 +,),)
The fundamental ri/ht to offend (0!ril )6 +,)))
The few (but dan/erous) mad "uslims of India and the T77TH89SS Indian
/overnment (:anuary +) +,)+) ;contains a view on 2ushdie<
#ree s!eech is 0$S78=T9 e&ce!t for > (well almost nothin/) (7ctober * +,))) ;contains a
view on Swamy<
8et4s not restrict hate s!eech but ruthlessly curb direct threats of violence (:une +? +,)+)
etc. 0nd there was an e&tensive debate re. a !lay re. @anesha in "elbourne.
Alus I've /ot an e&tensive section on free s!eech in The 'iscovery of #reedom.
"&# reedom of e2pression* from my draft manuscript The
Discovery of reedom
Freedom of expression is a well known pillar of freedom, but rarely it is it
found. Even otherwise free countries like Singapore fail in this regard. British
liberal philosophers were perhaps the first to advocate a strong form of freedom
of expression, perhaps none more eloquently than J.S. Mill in his 1859 essay, On
Liberty. India imbibed many of these ideals during British rule. Despite the
rampant corruption found in the Indian press today (news can be readily
purchased), India does maintain a largely free press.
But India never internalised this concept. Salman Rushdies Satanic
Verses and many other books were banned; and the screening of Da Vinci Code
prohibited. The government failed to protect Deepa Mehta during the making of
her film, Water, and D.N.Jha similarly force to publish his book, The Myth of the
Holy Cow, outside India.
Im not suggesting absolute freedom of expression. Like all other freedoms,
freedom of expression must be closely integrated with accountability. But since
writing something against someone is merely an opinion, not a direct physical
attack, the relevant accountability must be lower than accountability for physical
violence. People can ignore writings they dont agree with.
=
In the USA, as Glenn Greenwald has explained:
The government is absolutely barred by the Free Speech clause from punishing
people even for advocating violence. That has been true since the Supreme
Courts unanimous 1969 decision in Brandenburg v. Ohio, which overturned
the criminal conviction of a Ku Klux Klan leader who had publicly threatened
violence against political officials in a speech.
The Supreme Court ruled that except where such advocacy is directed to
inciting or producing imminent lawless action such as inciting a mob to
burn down a house or hiring a hit man the constitutional guarantees of free
speech and free press do not permit a state to forbid or proscribe advocacy of
the use of force. [Source]
John Danford explains J.S. Mills views on freedom of speech in his book, thus:
What is most clearly outside the bounds of government regulation, according
to Mill, is the realm of speech and opinion. The expression of mere opinions,
Mill argues, can harm no one. The suppression of any point of view is
unjustifiable because to suppress an opinion is to claim a monopoly on truth,
which no one possesses. The power to control the expression of opinion, then,
is illegitimate. The best government has no more title to it than the worst,
Mill says. lt is as noxious, or more noxious, when exerted in accordance with
public opinion, than when in opposition to it. If all mankind minus one were
of one opinion, and only one person were of the contrary opinon, mankind
would beno more justified in silencing that one person, than he, if he had the
power, would be justified in silencing mankind.
It is not merely unjust to suppress opinions but also unwise or even
dangerous, according to Mill. The peculiar evil of silencing the expression of
an opinion is, that it is robbing the human race; posterity as well as the
existing generation; those who dissent from the opinion, still more than
those who hold it. If the opinion is right, they are deprived of the opportunity
of exchanging error for truth: if wrong, they lose, what is almost as great a
benefit, the clearer perception and livelier impression of truth, produced by
its collision with error. Thus there are two branches to his argument: We
can never be sure that the opinion we arc endeavoring to stifle is a false
opinion; and if we were sure, stiffing it would be an evil still.
Mills arguments for complete freedom of speech are probably the most
famous portion of On Liberty, and are widely accepted in societies such as
the United States, where the legal system in recent decades has refused to
permit oven democratically elected legislatures to go very far in curtailing
speech. including speech deemed offensive or obscene by a large majority. Of
course, no freedom is absolutely without some limit, and, as Mill himself
admitted, even opinions lose their immunity when the circumstances in
which they are expressed are such as to constitute their expression a positive
instigation to some mischievous act. An opinion that corn-dealers are
starvers of the poor, or that private property is robbery, ought to be
unmolested when simply circulated through the press, but may justly incur
punishment when delivered orally to an excited mob assembled before the
house of a corn-dealer, or when handed about among the same mob in the
form of a placard. But of course speech in such a circumstance can readily
he considered to be something other than mere words, and thus to fall into
$ork in pro%ress& 'appy to receive input at sabhlok(%mail&com >
the category of action or conduct, which Mill concedes may be regulated by
society.
1
Given the complexity of the issues involved, demarcating the boundaries of
freedom of expression remains a challenge. Two examples can give us a sense of
the difficulties involved.
Burning the national flag
Consider someone who, convinced that his freedoms have been trampled
upon by the nation, burns the national flag in protest: doesnt attack anyone, just
burns the flag. Is that a crime? Certainly it is, in India. The Prevention of Insults
to National Honour Act, 1971 provides for imprisonment of up to three years or
fine, or both, for anyone who (in public view) mutilates, defaces, defiles,
disfigures, destroys, tramples on, or otherwise brings the National Flag into
contempt. I believe this law is incompatible with liberty.
I do not make this assertion lightly. I claim that the national flag must be
defended with our own life. But on the other hand, no citizen will usually take
the extreme step of burning the flag casually. Such an act signals that something
is wrong. The nation should therefore investigate the cause of the unrest.
The US imparted a lesson in liberty to all nations when it ruled out the
criminalisation of flag burning. In 2006, an amendment to the US Constitution
was proposed to prohibit flag burning, but the US Senate rejected the
amendment. Senator Daniel K. Inouye, who lost an arm in World War II,
fighting for USA, said during the debate that that flag burning is obscene,
painful and unpatriotic, [b]ut I believe Americans gave their lives in the
many wars to make certain that all Americans have a right to express
themselves even those who harbor hateful thoughts.
2

Such commitment to freedom is uniquely American, it would appear.
Hundreds of its own soldiers die in wars to protect the American flag, but the
same soldiers who risk their lives insist on defending the right of their fellowmen
to burn that flag. That is what they fight for. The national flag is subordinate to
the claims of liberty.
Artistic license?
It has become fashionable for artists and writers, claiming artistic license, to
insult Islam, Christianity, Hinduism and other religions. But they are wrong;
they have no such license. While an analytic critique of a religion is perfectly
legitimate, vilification and abuse is not. Artists are in no way special, in now way
exempt from the laws of the land. Everyones liberty must be subject to the same
standards of accountability. And so artists must exercise self-restraint.
But what about artists who dont restrain themselves? Should we ban their
work or kill them? Clearly not. Three things must happen in the free society:
"
Danford, John W., Roots of Freedom, Washington: ISI Books, 2000, p.166-167.
2
Reported in the Washington Post, June 28, 2006, [http://www.washingtonpost.com/wp-
dyn/content/article/2006/06/27/AR2006062701056.html]
?
As the saying goes, sticks and stones may break my bones but words will
never hurt me. We must therefore learn to tolerate others opinions, no matter
how tasteless. And if we dont like a particular artists work, we dont need to
go out of the way to look for it. We must therefore foster forbearance,
forgiveness; even a thick skin.
It is legitimate to take offence to some types of art but that offence can be
resolved through a civil suit. The plaintiff can try to prove, for instance, that
he tossed and turned and lost, say, five hours of sleep because of the offensive
art. The court can then compensate the plaintiff for the lost sleep. Class-action
suits could be pursued where a number of people feel offended.
But no matter what an artist does, violence against an artist can never be
condoned. The law must punish violence against any artist; even stupid
artists deserve the protection of the law.
Unfortunately, governments world-wide seem to have formed a habit of
banning books, movies, and even internet blogs, arguing that failure to do so
would endanger public order. That is usually a specious argument. The
governments job is to ensure freedom of expression and law and order. Just
because an unruly crowd protests and threatens public order doesnt mean the
freedom of the artist can be reduced.
True, there might be a few instances where a society could reasonably
impose a generic ban on freedom of expression, such as banning nudity in public
places on grounds of protecting common decency. However, situations of this sort
could be resolved by demarcating separate areas for nudists. Im not advocating
this, but this is one way to deal with the problem. The goal must be to maximise
liberty while minimising demonstrated, proven harm.
"&: reedom of e2pression* a %reat challen%e for India
$y San3eev Sabhlok (Aublished in Freedom First 0u/ust +,),)
$ritish liberal !hiloso!hers were !erha!s the first to advocate freedom of e&!ression none
more eloBuently than :.S. "ill in his )*5- essay On Liberty. India imbibed some of these
ideas durin/ $ritish rule. 0nd des!ite the corru!tion ram!ant in the Indian !ress C where
news can be readily !urchased C we do have a broadly free !ress.
$ut we never internalised the idea of liberty. Salman 2ushdie4s Satanic Verses was banned
(amon/ many other books since inde!endence). The screenin/ of Da Vinci
Codewas!rohibited. 7ur /overnments failed to !rotect 'ee!a "ehta durin/ the makin/ of her
filmWater and '.N.:ha was similarly force to !ublish his book The Myth of the Holy
Cowoutside India. 7ur /overnments readily cave in to the flimsiest threat from our millions
of rabid fundamentalists.
$ork in pro%ress& 'appy to receive input at sabhlok(%mail&com @
I4m not su//estin/ that anyone has absolute freedom of e&!ression. That4s not what I4m
sayin/. 0ll I4m su//estin/ is that India has to do far more if it wants to become a free society.
The e&am!les below will illustrate how this can be done.
Electoral funding limits
9ven a cursory understandin/ of the conce!t of liberty will make clear to us that im!osin/
arbitrary limits on electoral fundin/ is incom!atible with liberty. DitiEens of the free society
must remain free to conduct any le/itimate activity and in doin/ so to s!end any amount they
wish. We must remain free to fund the reli/ion of our choice or to advertise our !roducts. So
too nothin/ should !revent us from s!endin/ any amount on our !referred !olitical !arty or
candidate. 0fter all freedom of belief in ideas is the most fundamental of all freedoms.
$ut socialists see red with such a su//estion. They rush in with !aternalistic ar/uments to
!revent !eo!le from su!!ortin/ a !olitical !hiloso!hy of their choice. They tell us that the
Indian voter is a fool hi/hly susce!tible to !olitical advertisin/. $ut in reality the Indian voter
dis!lays /reater maturity and wisdom than our socialist intellectuals. The Indian voter is
smart enou/h to listen to all sides (and even take unsolicited /ifts from the wealthier
candidates) but vote in the secrecy of the !ollin/ booth for his own choice.
Settin/ whimsical limits on electoral e&!enses is also an act of hy!ocrisy for such limits we
know are invariably violated C particularly by our ma3or !olitical !arties. These totally
corru!t !arties not only use crores of ru!ees of black money but billions of dollars of forei/n
funds stashed away in SwitEerland. #raudulent accounts are then lod/ed and they !retend
that they have s!ent within the limitF What a fraud on democracyF =tter hy!ocrisy.
In brief all limits of e&!enditure on !olitical activity must be abolished. Instead mechanisms
to stron/ly enforce the disclosure of !olitical recei!ts and e&!enditures must be !ut in !lace.
In addition reforms detailed in my book rea!in" Free of
#ehru(htt!.%%bfn.sabhlokcity.com%) are needed. If clean money !romotes !olitical ideas
even socialism then we will have nothin/ to fear. It is only hy!ocrisy use of forei/n funds
fraud and corru!tion that we must be afraid of. 8et there be honesty. 0nd freedom of
e&!ression.
Flag burning
Now consider someone who u!on bein/ convinced that his freedoms have been tram!led
u!on burns the national fla/ in !rotest. 'oesn4t attack anyone 3ust burns the fla/. Is that a
crime(
Dertainly it is in India. The $re%ention of &nsults to #ational Honour 'ct )-1) !rovides for
im!risonment of u! to three years or fine or both for anyone who in !ublic view mutilates
defaces defiles disfi/ures destroys tram!les on or otherwise brin/s the National #la/ into
Gcontem!t4. $ut I believe this !osition is entirely contrary to liberty.
I do not make this assertion li/htly. I claim that our fla/ must be defended with our own life.
$ut on the other hand no citiEen is likely to take the e&treme ste! of burnin/ the fla/
casually. Such an act si/nals that somethin/ is seriously wron/. We would be better off as a
nation if we investi/ate the cause of the unrest instead of focusin/ on the incident of fla/
burnin/.
A
"ore im!ortantly we must take a serious lesson in liberty from the =S which has ruled
outthe criminalisation of fla/ burnin/. In +,,H an amendment to the =S Donstitution was
!ro!osed by someone to !rohibit fla/ burnin/. $ut the =S Senate re(ected this amendment.
Senator 'aniel I. Inouye who lost an arm in World War II fi/htin/ for =S0 said that fla/
burnin/ Gis obscene !ainful and un!atriotic4 > G;b<ut I believe Americans gave their
lives in the many wars to make certain that all Americans have a right to express
themselves C even those who harbor hateful thou/hts.4;)<
Such uneBuivocal commitment to freedom is what 0merica teaches us. 7ur heart /oes out to
0merica for clarifyin/ the standard of liberty even on such an evocative issue. Hundreds of its
own soldiers die in wars to !rotect the 0merican fla/ but these very same soldiers insist on
defendin/ the ri/ht of their fellowmen to burn that fla/. That is why they fi/ht for. #or
freedom. The true fla/ we must fi/ht for is the fla/ of freedom. The national fla/ must
subordinate its claims to those of liberty.
Artistic license
It has become fashionable these days for artists and writers claimin/ artistic Glicense4 to
braEenly insult Islam Dhristianity Hinduism and other reli/ions. $ut they are wron/ in doin/
so. They have no such license. While an analytic critiBue of a reli/ion is fine vilification and
abuse of a reli/ion is not.
0rtists must sto! bein/ stu!id. They must e&ercise selfJrestraint. In no way are they s!ecial
or e&em!t from the laws of the land. 9veryone4s liberty is sub3ect to the same standard of
accountability.
$ut what about those artists who refuse to e&ercise selfJrestraint( What can be done about
them( Should we ban their work or kill them( Dlearly notF Three thin/s must ha!!en in the
free society as outlined below.
#irst we must develo! a thick skin. 0s they say GSticks and stones may break my bones but
words will never hurt me4. We must tolerate others4 o!inions no matter how tasteless.
Second an offensive !iece of art can constitute a ci%il offence. The !laintiff in such a case will
need to !rove that he tossed and turned in bed for say five hours because of the offensive art.
The court would com!ensate the !laintiff for the value of this lost slee!. DlassJaction suits
could also be lod/ed a/ainst the offendin/ artist.
$ut third no matter what ha!!ens there can ne%er be any cause for violence bein/ used
a/ainst the artist. The /overnment must !ut behind bars anyone who browbeats an artist.
9ven stu!id artists deserve to be !rotected.
Freedom Team of India
8et4s be clear about this thou/h that no e&istin/ ma3or !olitical !arty in India will ste!
forward to defend our liberties. They are more interested in forcin/ socialism or Hindutva
down our throat. 0 !olitical !latform focused on the defence of our freedoms is therefore
des!erately needed. The #reedom Team of India (htt!.%%freedomteam.in%) is workin/
towards such a !latform. Alease 3oin or otherwise su!!ort #TI. $ecome a #reedom AartnerF
"&9 5eli%ions are like an 0mperor without clothes4 but don1t want
that to be told<
There seems to be an QoffenceQ industry that has sprun% up 7just like we have
the poverty industry8&
Aut reli%ions for%et that their story is $0+?& .05I $0+?& They have no
%round to walk on&
0ven a school child canNt ever be satisfied with the absurd stories that
reli%ions e2pect us to believe&
INm Huotin% an e2tract from +esopNs fable4 T'0 03P05-5NS ,0$ S=IT
The %ood old minister went into the room where the swindlers sat
before the empty looms& Q'eaven preserve us<Q he thou%ht4 and opened
his eyes wide4 QI cannot see anythin% at all4Q but he did not say so& Aoth
swindlers reHuested him to come near4 and asked him if he did not
admire the e2Huisite pattern and the beautiful colours4 pointin% to the
empty looms& The poor old minister tried his very best4 but he could see
nothin%4 for there was nothin% to be seen& Q-h dear4Q he thou%ht4 Qcan I
be so stupidK I should never have thou%ht so4 and nobody must know it<
Is it possible that I am not fit for my officeK ,o4 no4 I cannot say that I
was unable to see the cloth&Q
Q,ow4 have you %ot nothin% to sayKQ said one of the swindlers4 while he
pretended to be busily weavin%&
Q-h4 it is very pretty4 e2ceedin%ly beautiful4Q replied the old minister
lookin% throu%h his %lasses& Q$hat a beautiful pattern4 what brilliant
colours< I shall tell the emperor that I like the cloth very much&Q
Q$e are pleased to hear that4Q said the two weavers4 and described to
him the colours and e2plained the curious pattern& The old minister
listened attentively4 that he mi%ht relate to the emperor what they saidO
and so he did&
'ere is a very prominent T5=T' that no one can possibly deny* that the
B5odB alleged by the various religions is absolutely invisible.
I canNt see any God4 nor can I 7therefore8 deny God& The 3+,I contorted
stories of various reli%ions and their %ods are purely unbelievable& INm entitled4
therefore4 to speculate that the stories are the case of the the Qinvisible
clothesQ of the 0mperor& $ithout proof why should I believeK
In the fable4 a child pointed out that the 0mperor has no clothes4 but the
0mperor and his stooges pretended that the child was wron%&
The emperor marched in the procession under the beautiful canopy4
and all who saw him in the street and out of the windows e2claimed*
QIndeed4 the emperorNs new suit is incomparable< $hat a lon% train he
has< 'ow well it fits him<Q ,obody wished to let others know he saw
nothin%4 for then he would have been unfit for his office or too stupid&
,ever emperorNs clothes were more admired&
QAut he has nothin% on at all4Q said a little child at last& QGood heavens<
listen to the voice of an innocent child4Q said the father4 and one
/
whispered to the other what the child had said& QAut he has nothin% on
at all4Q cried at last the whole people& That made a deep impression
upon the emperor4 for it seemed to him that they were ri%htO but he
thou%ht to himself4 Q,ow I must bear up to the end&Q +nd the
chamberlains walked with still %reater di%nity4 as if they carried the train
which did not e2ist&
=nlike these QsmartQ people who can QseeQ the invisible4 or QseeQ the truth of
stories written in books4 I D-,NT& I canNt&
( am like the child who wants to see direct proof. ( want even more than
that. A thorough interview with 5od to check out every BclaimB made.
/ike inHuirin% into the truth about 3odi&
=nlike most people4 I actually use the -,/I instrument of understandin% that
I have* my mind&
The point INm makin% is that when reli%ions can only offer us a +A/04 how
can then then also demand the ri%ht to prevent others from Huestionin% their
fableK
-,/I 500 SP00)' )+, 0/I3I,+T0 D0/=SI-,S 5-3 T'IS $-5/D&
Don1t stop the child from speakin%&
;)< 2e!orted in the Washin"ton $ost :une +* +,,H ;htt!.%%www.washin/ton!ost.com%w!J
dyn%content%article%+,,H%,H%+1%02+,,H,H+1,),5H.html<
2& 5epeal India1s anti- free speech laws and
unban all books and movies
2&" India1s anti free-speech laws* an overview
3y blo% post&
I now !ro!ose to e&!lore some of India's antiJfree s!eech laws C of the ty!e which allowed
Hindutva bullies to destroy the 'oni/er book (this bein/ only one of many either banned or
destroyed in India).
!ETE"#E $F F!EE %EE#& I" T&E #$"%TIT'TI$"
0rticle )- ()) of the Donstitution K/uaranteesK to citiEens si& freedoms the first bein/ the
Kri/htK to freedom of s!eech and e&!ression (article )-()) (a)).
$ut this freedom of s!eech is not absolute unlike in the =S0 (where it has been not as
absolute as one would like it to be but close enou/h). =nlike in the 0merican Donstitution
India's Donstitution sets out Lreasonable restrictionsM on free s!eech.
0rticle )-(+) allows the State to im!ose such Greasonable restrictions4 in the interests of Gthe
soverei/nty and inte/rity of India4 Gthe security of the State4 Gfriendly relations with forei/n
States4 G!ublic order4 Gdecency or morality4 or in relation to Gcontem!t of court defamation or
incitement to an offence4.
It is throu/h this article that antiJfree s!eech laws of India /et their o&y/en. In !articular it is
on the /round of G!ublic order4 that India has !rohibited and !enaliEed Ghate s!eech4.
We have seen here that KoffenceK is no cause to restrict free s!eech. However India has
mastered this lame e&cuse and created almost im!enetrable limitations on free s!eech.
&ATE(A"TI ) F!EE*%EE#& +A,%
(Here is an e&tensive discussion of hate laws in India.)
LIn the Indian conte&t > hate s!eech has !rimarily been understood > as referrin/ to s!eech
intended to !romote hatred or violence between India4s reli/ious communities. L
)) s -./A I# makes it an offence to s!read communal hate (an offence to !romote enmity
between /rou!s Kon /rounds of reli/ion race !lace of birth residence lan/ua/e caste or
community or any other /round whatsoeverK).
The section also !rohibits.
N the !romotion of Gdisharmony or feelin/s of enmity hatred or illJwill4 between different
communities throu/h Gwords either s!oken or written or by si/ns or by visible
re!resentations or otherwise4 (section )5?0())(a))O
N acts which are G!re3udicial to the maintenance of harmony4 between communities or which
Gdisturb or ;are< likely to disturb the !ublic tranBuility4 (section )5?0())(b)).
+) s0-./1 I#2 s )5?$ !rohibits Gim!utations and assertions !re3udicial to nationalJ
inte/ration4. The section criminalises the use of Gwords either s!oken or written4 si/ns Gor by
visible re!resentations or otherwise4 which inter alia.
6
N im!ute to any class of !ersons (by reason of their membershi! of a !articular community)
an inability to Gbear true faith and alle/iance to the Donstitution of India4 or Gu!hold the
soverei/nty and inte/rity of India4 (section )5?$())(a))O
N assert counsel advise !ro!a/ate or !ublish that any class of !ersons by reason of their
membershi! in any community shall be denied or de!rived of their ri/hts as citiEens of India
(section )5?$())(b))O
N assert counsel advice !lead or a!!eal concernin/ the obli/ations !ossessed by any class
of !ersons (by reason of their membershi! in any community) where Gsuch assertion
counsel !lea or a!!eal causes or is likely to cause disharmony or feelin/s of enmity or hatred
or illJwill between such members and other !ersons4 (section )5?$())(c)).
?) s 34.A I# !rohibits Gdeliberate and malicious acts intended to outra/e reli/ious feelin/s
or any class by insultin/ its reli/ion or reli/ious beliefs4O
6) s 345 I# !rohibits Gutterin/ words etc with deliberate intent to wound reli/ious feelin/s'
5) s0.6.7-8 I# !rohibits Gstatements conducive to !ublic mischief4
H) s0.6.738 I# !rohibits Gstatements creatin/ or !romotin/ enmity hatred or illJwill
between classes4.
1) =nder s 99A of the Information Technology Act 3666 !ublication of material which
Gis /rossly offensive or has menacin/ character4 or which is broadcast des!ite bein/ known to
be false for the !ur!ose of Gcausin/ annoyance inconvenience dan/er obstruction insult
in3ury criminal intimidation enmity hatred or ill will4 is !rohibited.
The Information Technolo/y (Intermediaries @uidelines) 2ules +,)) functionin/ in addition
to the 0ct further e&!and the ca!acity of the /overnment of India to !rohibit Ghate s!eech4.
Si/nificantly unlike !rior Ghate s!eech4 !rovisions they e&!licitly !rohibit the Ghost;in/<
dis!lay u!load;in/< modif;ication< !ubli;cation< trans;mission< u!dat;in/< or shar;in/<4 of
any information which as !er clause ?(+)(b) of the 2ules is Gblas!hemous4O such explicit
reference to blasphemy is unprecedented.
In addition clause ?(+)(b) of the 2ules !rohibit the dissemination of material which is
Gracially ;or< racially ob3ectionable4 or Gotherwise unlawful in any manner whatsoever4 while
clause ?(+)(i) !rohibits material which Gthreatens the unity inte/rity defence security or
soverei/nty of India friendly relations with forei/n states or !ublic order or causes
incitement to the commission of any co/nisable offence or is insultin/ to any other nation.4
*) 'nlawful Activities 7revention8 Act: -49; bans any or/anisation which violates s
)5?0 amon/ other such !rovisions.
I'll commence analysis of these and related laws in the comin/ days.
A<<E"<'=
0lso censorshi! laws.
So far censorshi! of films in India is concerned the !ower of le/islation is vested with the
Aarliament under 9ntry H,1H of the =nion 8ist (or 8ist I)11 of the Schedule PII of the
Donstitution. The States are also em!owered to make laws on cinemas under 9ntry ??1* of
the Sate 8ist (or 8ist II)1- but sub3ect to the !rovision of the
central le/islation. The !rime le/islation in this res!ect is the Dinemato/ra!h 0ct )-5+ No.
?1 of )-5+ (hereinafter )-5+ 0ct) and the Dinemato/ra!h (Dertification) 2ules )-*? @en.
S.2. ?*)(9) (hereinafter 2ules). ;Source<
It a!!ears that Aakisan has many similar laws (see this).
Wiki!edia entry on this to!ic.
=I%'%E $F T&E%E +A,%
The colonialJera sedition law which !rohibits any words or re!resentation that can cause
Lhatred or contem!t or e&cites or attem!ts to e&cite disaffectionM toward the /overnment has
often been abused. In a landmark rulin/ in )-H+ the Su!reme Dourt said criticism or
comment on /overnment action was !rotected under the fundamental freedoms of s!eech
and e&!ression unless there was incitement to violence. Qet cases in which there was no
incitement continue to be filed as was the case with 0seem Trivedi whose offence was to
criticise members of Aarliament with a !olitical cartoon. In +,), activistJdoctor $inayak Sen
was sentenced to life in !rison for sedition for defendin/ the ri/hts of members of the rebel
"aoist movement thou/h he was never linked to any violence. In Tamil Nadu the !olice has
!ursued thousands of sedition cases a/ainst farmers and fishermen !rotestin/ the
construction of a new nuclear !lant because of environmental concerns. ;Source<
2&2 5epealin% the anti-free speech laws of India4 e%& s&":3 and
s&2;:+ IP) and s99+ of IT +ct
3y blog post.
ree speech was severely restricted even in IndiaNs ori%inal )onstitution&
$eNve seen how people like Sardar Ahopinder Sin%h 3an and Sardar 'ukum
Sin%h ar%ued vi%orously a%ainst anti-free speech provisions in the
)onstitution4 but lost&
IndiaNs commitment even to this very low level of freedom of speech was
further diluted by the first amendment to the )onstitution by ,ehru4 who
panicked when he was criticised by 5omesh Thapar&
)oupled with the D5+)-,I+, A5ITIS' /+$S such as ":3+ and 2;:+ of
IP)4 India had virtually no freedom of e2pression by the early ";:!s& LSee the
separate analyses on this blo%4 e&%& thisM&
)ourt rulin%s after that4 bein% influenced often by natural bi%otry than any
foundations of justice 7particularly in the lower courts8 further cost India its
basic liberty of speech&
LAut even the hi%hest court found all kinds of reasons to restrict speech* or
the first time before the Supreme )ourt the constitutionality of censorship
under the ";:2
+ct alon% with the 5ules framed under it was challen%ed in the case of ?&+&
+bbas v& =nion of India& The Supreme )ourt upheld the constitutionality
within the ambit of +rticle ";728 of the )onstitution and added that films have
to be treated separately from other forms of art and e2pression because a
motion picture is Eable to stir up emotions more deeply than any other product
of artF& +t the same time it cautioned that it should be Ein the interests of
societyF& EIf the re%ulations venture into somethin% which %oes beyond this
le%itimate openin% to restrictions4 they can be Huestioned on the %round that a
le%itimate power is bein% abused&Q sourceM
=
-oday we have virtually no liberty of speech. 3aybe 2 out of "!&
If oneNs opinion is likely to be QcontroversialQ it is either censored by a
publisher or self-censored4 to avoid potentially violent QretributionQ by lumpens
from all reli%ious %roups& -r some of these lumpens mi%ht choose to use the
draconian laws 7hence the %un of the state8 to destroy books&
-he time has come to repeal all laws that reduce liberty of speech.
-,/I .I-/0,)0 3=ST A0 P=,IS'0D& There is no freedom of speech if it
does not imply a ri%ht to offend& $hat is Qfreedom of speechQ worth if it is only
applicable to QconvenientQ viewsK
-ffence to NsentimentN cannot be punished4 particularly offence to N%roupN
sentiment&
Instead of these anti-liberty laws4 we may have laws applicable only to the
violence or threat of violence component of e2istin% free speech limitations&
All violence must be S"#"$"+% punished. 3articularly violence that is
in response to free speech.
People should4 however4 be free to A=I books and destroy these privately*
even in a public place& +et Muslim fanatics ,1% as many copies of
Satanic #erses that can be produced by (ndian presses working
overtime. and destroy them at private eCpense. +ikewise for 4indus who
want to buy and destroy 7onigerDs book.
Aut there can be no cause to ask the state to ban any book4 or to force
7throu%h law8 to destroy a book&
-he right to non0violent free speech must be absolute&
I will now compile all recent blo% posts into a booklet4 to be further improved
and e2panded4 and to form the basis of a 500 SP00)' 3+,I0ST- for
India&
2&3 =nban all books and movies4 etc&
This will be the natural conseHuence of the liftin% of anti- free speech laws in India&
2&# Sone ?i )hidiya reform a%enda* total commitment to free
speech
Source* sonekichidiya&inDpublicationsDa%enda-for-chan%eD
7onEt tell us what we can or canEt say
India1s herita%e is one of free speech4 discourse4 and tolerance& 'owever4 durin%
Aritish rule we lost much of it and have never recovered since& Draconian sections
like s&":3+ and s2;:+ of the Indian Penal )ode are desi%ned to pander to all kinds
of fundamentalist views& The constitution itself does nothin% much to protect free
speech&
+s a result4 Indian press freedom stands at "#!
th
out of ">; nations in the world4 a
deplorable state of affairs for what should have been a proud4 democratic nation&
$e will foster citi@en1s ri%hts to absolute free speech& $e will assure ourselves4 as
Indians4 the closest appro2imation to absolute freedom of speech outside of the
=S+4 if necessary by introducin% a )onstitutional amendment& Speech must be free&
The only restriction would relate to civil liability for libel4 direct threats or incitement of
violence4 and reasonable restrictions on speech for appropriateness of audience
7e&%& time-based limitations on T. pro%rammin%8& 0ven laws about how national
symbols and fla% are treated will be reviewed to brin% them into consonance with
freedom of speech& The ri%hts of citi@ens 6 who e2press their dissent in peaceful
ways 6 are more important and si%nificant than the ri%hts of a EnationF to protection of
its symbols& India must be a free nation4 not a nation slave to ima%es or symbols&
$e will repeal any law that curtails freedom of speech 7includin% the IP) sections
cited above and laws like s&99 of the IT +ct that make certain online comments an
offence or permit bans and censorship8& $e will remove all bans on books and
movies and prevent such bans from bein% imposed in the future& $e will also
e2amine ways to democratised broadcastin% services 7T.4 radio8 on payment of
market determined fee for the relevant spectrum which is owned collectively by the
people of India&
?
3& 'istory of destruction of free speech in India
3&" India1s anti free-speech laws* 'ow 3acaulay chose to pander
to cra@y Indians than to insist on freedom and order
"y blo/ !ost.
"acaulay one of the /reatest classical liberals and Whi/s of all time was !resented while draftin/
the Indian Aenal Dode with a choice of either moderninsin/ India's cultural norms or embeddin/
them in the law itself. He choose the latter for reasons he e&!lained at len/th
thereby feeEin/ India to a !rimitive state of medieval Islamic des!otism for ever.
We are now faced with the intricate !roblem of e&tractin/ India from its !rimitive antiJfree
s!eech laws.
RR
9ST20DT from The @lobaliEation of $las!hemy
The Indian Aenal Dode was drafted in )*?1 by the Indian 8aw Dommission under the
chairmanshi! of the 8ord Thomas $abin/ton "acaulay. In theircommentaries "acaulay and his
fellow commissioners observed that India is L!re/nant with dan/ersM because of a susce!tibility to
Lreli/ious e&citementM !eculiar to "uslims and Hindus. It is La truth which needs no !roofM that
there are Lmany !ersons of such sensitive feelin/s amon/ the hi/her ranks of the Natives of IndiaM
for whom Linsults have as /reat a tendency as bodily in3uries to e&cite violent !assion.M They wrote.
0 !erson who should offer a /ross insult to the "ahomedian reli/ion in the !resence of a Eealous
!rofessor of that reli/ion . . . would !robably move those whom he insulted to more violent an/er
than if he had caused them some severe bodily hurt.
Thou/h they mi/ht have viewed a violent res!onse to s!eech as an unwarranted and unacce!table
breach of !ublic order in !rinci!le the framers ado!ted a model of Indian tem!erament that
naturaliEed it. :ud/es would use their discretion to determine whether a /iven e&!ression Lwould
be likely to move a !erson of ordinary tem!er to violent !assion not 3ust any person . . . but a
!erson of the same habits manners and feelin/s.M
The colonial authorities saw themselves as showin/ due re/ard for the sensibilities of the natives
even thou/h they did not share them. LWe are le/islatin/ for them and thou/h we may wish that
their o!inions and feelin/s may under/o a considerable chan/e it is our duty while their o!inions
and feelin/s remains unchan/ed to !ay as much res!ect to those o!inions and feelin/s as if we
!artook of them.M
9ST20DT from a book I found on /oo/le books (click for lar/er ima/e) ;Codification) Macaulay
'nd The &ndian $enal Code by Wri/ht Dhan Win/JDheon/ Dhan $arry Wri/ht 0nd Stanley Qeo
Win/JDheon/ Dhan and $arry Wri/ht 0nd Stanley Qeo<
$ork in pro%ress& 'appy to receive input at sabhlok(%mail&com @
Note that there is an e&cellent e&tract from this book here. 0nd more here on
"acaulay's contribution to the law makin/ systems of the world.
0nd finally from this.
"acaulay in his commentary u!on the Indian Aenal Dode e&!licitly endorsed this
inter!retation of Ghate s!eech4 under Indian law observin/ that the !rinci!le underlyin/
Dha!ter SP (!rohibitin/ Goffences relatin/ to reli/ion and caste4) is that Gevery man should be
suffered to !rofess his own reli/ion and> no man should be suffered to insult the reli/ion of
another.4
The im!ortance of Ghate s!eech4 laws in the $ritish !ro3ect of maintainin/ stability in India
(necessary for the !er!etuation of colonial rule) and the e&tent to which the $ritish !erceived
Indian colonial sub3ects as uniBuely vulnerable to reli/ious insults are made clear by "acaulay4s
commentary on G7ffences 2elatin/ to 2eli/ion and Daste4 within the Indian Aenal Dode.
GThe Buestion;< whether insults offered to a reli/ion ou/ht to be visited with !unishment does not
a!!ear to us at all to de!end on the Buestion whether that reli/ion be true or false> The reli/ion
may be false but the !ain which such insults /ive to the !rofessors of that reli/ion>4
290'IN@
0sad 0li 0hmed S!ecters of "acaulay. $las!hemy the Indian Aenal Dode and Aakistan4s
Aostcolonial Aredicament in 2aminder Iaur and William "aEEarella (eds) D9NS72SHIA IN
S7=TH 0SI0. D=8T=208 29@=80TI7N #27" S9'ITI7N T7 S9'=DTI7N Indiana
=niversity Aress +,,- )1?.
/A
3&2 rom s&":3+ 7fryin% pan8 into the fire 7s&2;:+8* 3uslim
fanatics forced Aritish rulers to destroy free speech
"y blo/ !ost.
So now we know how the e&istence of "uslim%Hindu fanatics !ersuaded even the /reat classical
liberal "acaulay to im!ose restrictions.
Neeti Nair has written an e&cellent descri!tion of the circumstances surroundin/ the
enactment of s.+-50 of the IAD. The full article G$eyond the 'Dommunal' )-+,s. The Aroblem
of Intention 8e/islative Ara/matism and the "akin/ of Section +-50 of the Indian Aenal
Dode4 !ublished in &ndian *conomic Social History +e%iew +,)? 5,. ?)1 can be
download here.
I4m !rovidin/ a few e&tracts below.
There are a number of wellJknown actors involved in this includin/ "I @andhi 8a3!at 2ai and
"0 :innah. @andhi started the condemnation of a !articular writin/ but he o!!osed /overnment
re/ulation of such bad writin/. 8a3!at 2ai thou/ht the bill Gretro/rade4 althou/h he considered it to
be a Gnecessity4 under the !revailin/ Gemer/ency4. :innah defended the IAD section but ho!ed that
it would secure the Gvery im!ortant and fundamental !rinci!le that those who are en/a/ed in
historical works those who are en/a/ed in the ascertainment of truth and those who are en/a/ed
in bona fide and honest criticism of a reli/ion shall be !rotected4. That did not ha!!en. We /ot the
worst of all !ossible laws which has effectively destroyed all !ossibility of free s!eech in India.
We are sufferin/ from $ritish India4s failure to insist on liberty and tolerance. The result is /hastly
and unima/inable. @andhi would have been shocked at the total chokin/ of free s!eech in India. So
would have :innah.
7nly "uslim fanatics 0N' N7W LHinduM fanatics are able to re3oice. They4ve taken the 9NTI29
country of ).+ billion !eo!le hosta/e.
Time to !ut them in their !lace. Anyone who feels the urge to be violent upon
seeing(reading a piece of paper must be put behind bars.
!EEA+ A++ A"TI*F!EE %EE#& +A,% $F I"<IA0
RRRRR
The failure of s0-./ to stop >hate? speech
It was in the summer of )-+6 that a !am!hlet !ur!ortin/ to describe real events in the life of the
Aro!het "uhammad made its a!!earance in Aun3ab. The !am!hlet G2an/ila 2asul4 came to the
attention of a broader readershi! when it was mentioned by @andhi in a lon/ article on HinduC
"uslim unity. The "ahatma com!lained in Qoun/ India.
0 friend has sent me a !am!hlet called 2an/ila 2asul written in =rdu. The author4s name is not
/iven. It is !ublished by the "ana/er 0rya Austakalaya 8ahore. The very title is hi/hly offensive.
The contents are in kee!in/ with the title. I cannot without /ivin/ offense to the reader4s sense of
the fine /ive the translation of some of the e&tracts. I have asked myself what the motive !ossibly
could be in writin/ or !rintin/ such a book e&ce!t to inflame !assions. 0buse and caricature of the
$ork in pro%ress& 'appy to receive input at sabhlok(%mail&com /
Aro!het cannot wean a "usalman from his faith and it can do no /ood to a Hindu who may have
doubts about his own belief. 0s a contribution therefore to the reli/ious !ro!a/anda work it has no
value whatsoever. The harm it can do is obvious.
With these words @andhi immediately raised the Buestion of motive in the !ublication of such
Gliterature4.
In late :une word came of a ban and !rosecution under section )5?0 of the Indian Aenal Dode
(hereafter IAD).
In his statement before the court of D. H. 'isney "a/istrate #irst Dlass 8ahore the accused
"ahashe 2a3!al !ublisher of the !am!hlet announced that he had been motivated by a desire for
social reform. #or over two years the case dra//ed throu/h the trial court of the 'istrict
"a/istrate then the Sessions :ud/e and finally the Aun3ab Hi/h Dourt.
The :ud/e of the Hi/h Dourt a!!ointed for the case :ustice 'ali! Sin/h Buoted the above e&tract
from the rulin/ of the Sessions :ud/e and added that althou/h the !am!hlet was Gundoubtedly >
nothin/ more or less than a scurrilous satire on the founder of the "uslim reli/ion>4 he could not
find anythin/ in it that showed Git was meant to attack the "ahomedan reli/ion as such or to hold
u! "ahomedans as ob3ects worthy of enmity or hatred.4
'ali! Sin/h felt the sub3ect of a malicious satire on the !ersonal life of a reli/ious teacher was
outside the !urview of section )5?0. 2a3!al was acBuitted.
The 1ritish were under great pressure from =uslim threats
The case was decided on the 6th of "ay )-+1. The only immediate reaction came from the !ul!it of
the :ama "as3id in 'elhi. "aulana "ohamed 0li !redicted that Gvery serious conseBuences4 would
follow the acBuittal.
0 de!utation of leadin/ "uslims called u!on the Aun3ab @overnor "alcolm Hailey to !rotest
a/ainst the Hi/h Dourt rulin/. The @overnor4s res!onse widely !ublished and commented u!on
seemed to /ive a free !ass to subseBuent "uslim e&!ressions of an/er as it sym!athised with those
"uslims who felt G3ustifiably offended4 by the !am!hlet and felt they had no Gle/al wea!on by
which its re!etition could be !revented in the future.4 Hailey admitted that the 3ud/ement had left
the /overnment Gmuch concerned4 for if this ty!e of Greli/ious controversy could be carried on with
im!unity4 there lay a Gvista of endless trouble before the !ublic4. He also let on that the /overnment
had consulted their le/al advisers on the a!!ro!riateness of undertakin/ a modification of the law
as 'ali! Sin/h had su//ested.
The movement to demand a chan/e in the !enal code /rew e&!onentially an/rier in the days to
come. When leaders in a series of !ublic meetin/s in 'elhi and 8ahore referred to the sharia
permitting death for defamation of the rophet: members of the Hindu !ress be/an
demandin/ that the !reachin/ of violence be checked.
"aulana "ohamed 0li who had been e&tensively Buoted for su//estin/ that G> the demand that
the Secretary of State should com!el the :ud/e to resi/n is > the best illustration of Aun3ab
humour4 now chan/ed his stance or at least em!hasis by announcin/ to 1,,,, "uslims
//
assembled at 'elhi4s 9dward Aark facin/ the :uma "as3id that only an amendment of the law
could !revent the lives of offenders from bein/ in dan/er.
;San3eev. It is im!ortant to !oint out that this was not 3ust a $ritish doin/ but a 3oint action by
Indians involved in the !rocess<
NonJofficial elected and nominated le/islators would 3oin hands with $ritish officials to amend the
law. $y the )-+,s colonial law was res!ondin/ to the !ressures of multi!le constituenciesT
reli/ious communities as well as !articular occu!ations such as the !ress academia and
lawmakers who were takin/ crucial res!onsibility for the broader business of /overnin/ a diverse
country.
To be/in with the Home "ember :. Drerar !ro!osed the bill as a measure to make Ga scurrilous
attack u!on reli/ion as the substantive matter4 so that it was no lon/er necessary to have to !rove
that feelin/s of enmity or hatred between different classes had arisen out of the !ublication in
Buestion for it to come under the law.
The first and most endurin/ set of ob3ections to this !ro!osal was in fact raised by members from
across the country. 0bdul Haye and 8a3!at 2ai from the Aun3ab ".0. :innah and '.P. $elvi of
$ombay Hari Sin/h @our from the Dentral Arovinces and T.0.I. Sherwani from the =nited
Arovinces all com!lained that the sco!e of the bill was too wide.
S!ellin/ out the s!ecial circumstances that had /iven rise to this bill the Aun3abi Hindu
re!resentative 8a3!at 2ai thou/ht the bill Gretro/rade4 althou/h he considered it to be a Gnecessity4
under the !revailin/ Gemer/ency4. He referred to the case of !eo!le who criticise their own reli/ion
and !ointed out that social reform was closely tied with reli/ious reformO fore/roundin/ the
!roblem of intention 2ai reBuested an e&!lanation or chan/e in lan/ua/e so that Gbona fide
criticism historical research and all that leads to the inter!retation of reli/ious te&ts in such a way
as to lead to !ro/ressive reform in social matters will not be affected4. ". 0. :innah too felt that
the Select Dommittee to which the bill would be referred should strive to Gsecure this very
im!ortant and fundamental !rinci!le that those who are en/a/ed in historical works those who
are en/a/ed in the ascertainment of truth and those who are en/a/ed in bona fide and honest
criticism of a reli/ion shall be !rotected4. :innah added that on this matter there a!!eared to be no
difference of o!inion between the /overnment and those seated on his side of the House.
0lso in a/reement with the !rinci!le of the bill was "r S. Srinivasa Iyen/ar leader of the
Swara3ists in the House who reminded his !arty that members could vote accordin/ to their
individual conscience on the bill. Iyen/ar invoked 0shoka and declared that Gtolerance4 had been
Gthe law of the land4. Now that conditions had deteriorated the bill was Glon/ overdue4. He felt the
Gconsiderations of a united nationO the considerations of !eace and /oodwill>and the o!!ortunity
that we are denied for doin/ other thin/s when !eo!le break each other4s heads4 made it
im!erative that the bill Gmade wordJ!erfect>and consistent with reasonable liberty of the Aress
the !eo!le and all sections of the House4 be !assed. Iyen/ar also touched on the lar/er Buestion of
what constituted reli/ion when he ar/ued that reli/ion had become Gbut a !laythin/>but a toy and
you use it for the !ur!ose of your secular ambitions and for your secular Buarrels and rivalries4. He
$ork in pro%ress& 'appy to receive input at sabhlok(%mail&com /2
concluded by a!!ealin/ to the /overnment for their Gle/islative assistance4 because they wanted the
Gsanction of le/islation4 to !revent !eo!le from G!rofanin/ the sacred name of reli/ion4.
$ut what !recisely was the bill su!!osed to do( The key to confirmin/ /uilt under the new law
would have to be around the Gintention4 with which an author wrote about Greli/ious beliefs4. Hari
Sin/h @our !ointed out that the !enal code already had three other classes of cases dealin/ with
defamation. of the state also known as sedition ()+60)O of a class ()5?0) and of a !erson (6-- and
5,,). Was this new law sim!ly about defamation of a new cate/ory that of reli/ion( If that was the
case @our ar/ued !erha!s it should be called the law of blas!hemy. He also su//ested that
Gintention4 had been analysed in two distinct ways. one an e&!ress intention whereby Gnothin/ is
said to be done intentionally which is not done with that intention4 and two a !resumed intention
whereby Gevery man is !resumed to intend the natural conseBuences of his act4. @iven the
difficulties of the use of the term Gintentionally4 @our su//ested its re!lacement with GWhoever with
intent>4 This founder Pice Dhancellor of 'elhi =niversity also s!oke stron/ly for.
Historical writin/s of a scientific character writin/s even of a !olemical character are not all
!unishable and should not be !unishable under the new clause or under section )5?0 of the Indian
Aenal Dode because by doin/ so you would be /a//in/ the e&!ression of free discussion and I am
!erfectly certain that it is the ob3ect of the le/islature here that there must be the ma&imum of
!ersonal liberty /iven to the !eo!le of this country to e&!ress their views without the fear that they
would be !rosecuted merely for an e&!ression of o!inion that their intention may be to im!rove
other reli/ions or it may be a mere matter of social reform or their intention may be merely to
!ublish the views which are the results of !rolon/ed research.
At "adan "ohan "alaviya a Sanatanist from 0llahabad and :hansi 'ivision alon/ with several
other members o!!osed the motion for the circulation of the bill as he believed it would delay a
measure that was des!erately needed. 0 clear believer he em!hatically s!oke for criticism to be
Greverential and well considered4. 0lludin/ to the 2a3!al case "alaviya ur/ed that he was Gless
concerned with the facts of the life of any of these /lorious men of the world than with the fact that
millions of my fellowJmen hold each of them in reverence4. "alaviya s!oke for writin/s that
a!!ealed to the intellect rather than the heart> Ghis heart should be left unhurt it should be
res!ected as one would wish his own heart to be res!ected4.
In a similar emotional vein I.D. Neo/y of 'acca 'ivision admitted that he was Gashamed and
!ained4 at the circumstances that had made this law necessary. GThe criminal law of a country is the
inde& of its civilisation and its social conditions4 and this law would Gstare us in the face and
!roclaim to the world the unha!!y relations that subsist between the different communities in our
land4. ".2. :ayakar from $ombay invoked :ustice 2anade while assertin/ that the !rinci!le
behind the bill had to be ke!t in mind.
the /ist of the offence is an insult to the > reli/ious feelin/s of the citiEen. It is not the /ist of the
offence that a !ro!het is attacked or that an avatar is assailed > when the !eace harmony and
/oodwill of the community are disturbed in the name of reli/ion an offence is committed a/ainst
the State. It is not an offence a/ainst reli/ion.
:ayakar asked that the Home "ember Gre/ard these manias as I do from the !oint of view of an
Indian and treat them as a tem!orary !henomenon4. He also ho!ed the /overnment would deal
/6
with the real cause of the !roblem and would brin/ in or allow a nonJofficial member to introduce
a measure that would make sure that Geach conversion is really a !sycholo/ical chan/e of faith and
not brou/ht about or in an atmos!here of fraud dece!tion !romises threats or even !olitical
considerations4. :ayakar thou/ht that the sur/e in obno&ious !ublications attackin/ one or the
other community was directly related to the rival movements for conversion that were then in
vo/ue. This kind of le/islation could not be a cureO it was merely an Ge&!edient measure4.
These heartfelt ar/uments won the day as a motion to circulate the bill to ascertain more widely
the views of all !rovinces was defeated. Those in the minority such as '.P. $elvi ".I. 0charya of
South 0rcot and Thakur 'as $har/ava of Aun3ab de!lored the Gbreathless haste4 with which this
bill was bein/ sent to the Select DommitteeO $har/ava and ". S. 0ney of $erar also wanted the
initiative for !rosecution to lie at the hands of individuals not a /overnment which they re/arded
as biasedO and 2am Narayan Sin/h of Dhota Na/!ur assailed the /overnment for lackin/ the
Gcoura/e > stren/th > ;and< sense4 to le/islate for civic ri/htsO the Greli/ious Buarrels4 were merely
another form of false consciousness.
The bill to amend the criminal law went into a Select Dommittee armed with ar/uably some of the
best le/al minds in the countryTthese included ".0. :innah Srinivasa Iyen/ar and N.D. Ielkar.
The !rinci!les underlyin/ its amendment emer/ed out of the discussions in the assembly. The
Select Dommittee members were !articularly concerned to limit the sco!e of the bill so that it met
with several of the ob3ections already raised. 0s a result the substantive !art of the amended bill
read.
0fter section +-5 of the IAD the followin/ section shall be inserted namelyT +-50. Whoever with
deliberate and malicious intention of outra/in/ the reli/ious feelin/s of any class of His "a3esty4s
sub3ects by words either s!oken or written or by visible re!resentations insults or attem!ts to
insult the reli/ion or the reli/ious beliefs of that class shall be !unished with im!risonment of
either descri!tion for a term which may e&tend to two years or with fine or with both.
The words Gdeliberate and malicious4 were inserted to ensure that the section would be Gboth
com!rehensive and at the same time of not too wide an a!!lication4. The bill also came with three
im!ortant minutes of dissent. The first a :oint 'issentin/ "inute si/ned by 0. 2an/aswami
Iyen/ar 0rthur "oore I.D. 2oy N.D. Dhunder and N.D. Ielkar o!ined that the bill would not
achieve its !ur!ose of deterrin/ !eo!le from Gscurrilous attacks u!on reli/ion4.The bill was
deemed to be a regrettable concession to intolerance@ it might even increase
fanaticism because it creates a new offence0 The dissentin/ members thou/ht the e&istin/
laws were adeBuate to deal with a breach of !eace. The second minute of dissent was a sin/le line
authored by :innah su//estin/ the offence be made nonJbailable and the third minute authored
by N.D. Ielkar deemed it better if an e&ce!tion were added to the section. Such an e&ce!tion
would indicate that.
it would not be an offence under this section to criticiEe the !rinci!les doctrines or tenets or
observances of any reli/ion with a view to investi/ate truth or im!rove the condition of human
society or to !romote social and reli/ious reform. Such an e&ce!tion may seem su!erfluous but
would make thin/s Buite clear and be a /ood /uide to the :ud/e.
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These dissentin/ minutes enca!sulate the contours of the debate that ensued in the le/islative
assembly.
7ne of the main cleava/es between those who su!!orted and those who o!!osed the amended bill
occurred alon/ the lines of occu!ation. Several members of the !ressT0. 2an/aswami Iyen/ar of
Tan3ore I.D. 2oy of $en/al $. 'as of 7rissa felt that the bill did not !rovide adeBuate safe/uards
to the Ghonest !ublisher4 and the Ghonest !rinter4. Su!!ortin/ such ar/uments N.D. Ielkar added
several other classes of !eo!le to those who needed !rotection. the Gdou/hty doubter > the dili/ent
sociolo/ist > the absentJminded !hiloso!her > the mischievous but kindly humourist4. He felt he
would G/o further and claim !rotection even for the a!!arently merciless satirist who uses the knife
but only in the s!irit of a sur/eon when !erformin/ what may be a necessary o!eration for the
/ood of society4. Dlearly India4s early le/islators had a keen a!!reciation for criticism of many
kindsTfrom the academic disci!lines of sociolo/y and !hiloso!hy and the !ortals of the !ress to
/enres as com!le& and critical as satire.
In the course of the debate one of the authors of the 3oint dissentin/ minute I.D. 2oy felt that
the bill was inconsistent with the spirit of toleration that had characteriAed the work
of generations of Englishmen and Indians0 2oy ar/ued that e&istin/ laws includin/ the
de!ortation act were sufficient to deal with men res!onsible for Gcommunal disturbances4 in north
India and confined the demand for the bill to a Ghandful of men in the Aun3ab4. 2oy felt that the
bill put a premium on intolerance and bigotry and did not at all think the bill was a
progressive measure0
0nother dissenter '.P. $elvi addressed the limits of le/islation and called on his fellow le/islators
to reco/nise that they were Gle/islatin/ for many crores of !eo!le4. He Buestioned if they could
/enuinely call themselves Gdemocrats4 when the bill had not yet been translated into the various
vernaculars or circulated amon/ the various !rovinces. $elvi !roceeded to Buote his favourite
!olitical !hiloso!her 9dmund $urke on Gthe consistency of those democrats who when they are
not on their /uard treat the humbler !art of their community with the /reatest contem!t4 and
reminded them that the 7fficial Secrets 0ct had been rushed throu/h the Im!erial 8e/islative
Douncil in 3ust a few hours. 0lthou/h not a member of the !ress $elvi referred to the large*scale
denunciation of the bill in the leading newspapers and su//ested that the Go!inions of
!eo!le who educate the !ublic4 also be taken seriously.
7thers who stron/ly disa/reed with the !ur!oses of the bill included $.A. Naidu of @untur and $.
'as of 7rissa. "aidu thought this was a piece of panicky legislation that would deal a
death*blow to religious and historical research. $. 'as !redicted that Gclassic books4
would not be !ublished in India if this bill became lawO there would be Gno real discussion of
reli/ious Buestions even if they be !urely historical4>this was a Gthorou/hly bad !iece of
le/islation4. 'as also !redicted that the bill would lead to further controversies by followers of
various sects and of G@urus bo/us @urus of bo/us 0vatars scattered all over India4.
Section +-50 of the IAD was ori/inally introduced to !rotect the Gfeelin/s4 of the Gordinary citiEen4
from those who Gwith deliberate and malicious intention4 insulted or attem!ted to insult the
reli/ious beliefs of any class of His "a3esty4s sub3ects. In the ei/htyJfive years since section +-50
has been used to intimidate a wide ran/e of authors and artists.
The sorry saga of s034.A
/=
This Wiki!edia !a/e shows how freBuently this section has been used in India to muEEle free
s!eech.
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#& Indian advocates of absolute free speech
#&" 'induism stands for +AS-/=T0 free speech
I4m com!ilin/ a few (a very fewF) of the many sources%ar/uments that confirm the
commitment of Hinduism to 0$S78=T9 free s!eech. Alease send me as many links%sources
as you can to bolster this !ost.
"o culture of book burning in India
It is true that books that !eo!le did not a/ree with were not necessarily !reserved throu/h the
oral tradition but there is no record (to the best of my knowled/e) of systematic book
burnin/% destruction in Hinduism.
$pen*ness to ideas expressed in !ig Beda
The 2i/ Pedas state clearly. L8et noble thou/hts come to us from all sides.M
Aedants mi/ht ar/ue that this a!!lies only to LnobleM ideas not to Li/nobleM ones but a
broader analysis of the Indian tradition shows that this a!!lied to 088 ideas re/ardless of
their !reJ3ud/ed merit.
&induism is not doctrinaire2 you get to pick your own path
0 lon/ time a/o I studied Tantra for an article I wrote. I was amaEed at the varieties of beliefs
in Hinduism. Hinduism is not a doctrinaire reli/ion and allows all kinds of beliefs. 0s :eff
S!innerJHalev notes (Hinduism Dhristianity and 8iberal 2eli/ious Toleration in Aolitical
Theory Pol. ?? No. ) (#eb. +,,5) !!. +*J51).
2eli/ious affiliation is not a matter of beliefJthe Hindu can believe whatever she likesJbut of
social belon/in/.+, Qou can decide that you will not /ive offerin/s to a !articular Hindu /odO
you can even announce that you do not believe that the Hindu deities e&ist and still remain a
Hindu. Qou can celebrate Dhristmas and remain a Hindu or you can !ray with "uslim Sufi
saints and remain a Hindu as many do. Since Hinduism like many 0sian reli/ions has no
doctrine to kee! !ure it easily incor!orates rituals of other traditions within it (thou/h
leavin/ behind certain !ractices is another matter).
Full*fledged alternative world views: e0g0 religious fictions and atheism
This is one of the most interestin/ as!ects of Hinduism. "y father often talks about the
"ahabharata bein/ a story devised to illustrate key as!ects of the Pedas. This idea that
ancient sa/es of India created reli/ious stories deliberately with a view to illustratin/ key
s!iritual or moral !oints is uniBuely Indian. The /a! between belief lo/ic and fiction is
seamlessly traversed and all o!tions to analyse or !resent a messa/e considered valid.
Salman 2ushdie said in a recent talk.
/?
LS. 2adhakrishnan would talk about how many of the earliest te&ts of Hinduism do not
contain the idea of the e&istence of @odO and contem!oraries of the $uddha Buoted also in
this article would say that there is no other world than this one and would deny the idea of a
divine s!here. So a/ain in the oldest !arts of Indian culture there is an atheistic tradition in
which the ideas of blas!hemy and heresy have no meanin/ because there is no divinity to
blas!heme or be heretic a/ainst. This is our culture. This is not an im!orted culture. It's not
alien to the Indian tradition. This is the Indian tradition and those who say it's not are the
ones who deform that tradition.
These ancient sa/es thou/ht and I think that @od is an idea that men invented to e&!lain
thin/s they didn't understand. 7r to enca!sulate wisdoms that they wanted to ca!ture. That
@ods in fact are fictions. So when there's an attack by @ods or their followers on literature it's
as if the fans of one work of fiction were to decide to attack another fiction. ;Source<
%pecific commitment to free speech in "atya %hastra
Here4s Salman 2ushdie tellin/ us a nice little story from Natya Shastra.
T20NSD2IAT.
$ut the Indian tradition also includes from its very earliest times very !owerfuldefences of
free e&!ression. When 'ee!a "ehta and I were workin/ on the film of Midni"ht,s Children
one of the thin/s that we often discussed was a te&t dear to our hearts the #atya Shastra. In
the #atya Shastra we see the @ods bein/ a little bit bored in heaven and decidin/ they
wanted entertainment. 0nd so a !lay was made about the war between Indra and the 0suras
tellin/ how Indra used his mi/hty wea!ons to defeat the demons. When the !lay was
!erformed for the @ods the demons were offended by their !ortrayal. The demons felt that
the work insulted them as demons. That demonesswas im!ro!erly criticiEed. 0nd they
attacked the actorsO whereu!on Indra and $rahma came to the actors' defence. @ods were
!ositioned at all four corners of the sta/e andIndra declared that the sta/e would be a s!ace
where everythin/ could be said and nothin/ could be !rohibited.
So in one of the most ancient of Indian te&ts we find as e&!licit and e&treme a defence of
freedom of e&!ression as you can find anywhere in the world. This is not alien to India. This is
our culture our history and our tradition which we are in dan/er of for/ettin/ and we would
do well to remember it ;Source<.
ACvakra 7in !amayana and =ahabharata8 as example of why not to stop free
speech
0shtavakra was in the time was tretayu/a before 2ama4s birth. He refuted his father when he
was !ronouncin/ some shlokas in the Pedas wron/ly. His father was so an/ry that he cursed
him to become wron/ly sha!ed at ei/ht ocations in the body and hence the name 0shtavakra.
$ut the irony is that the same 0shtavakra had to save his father when he was held ca!tive by
Paruna. This was !erha!s one of the last cited cases where freedom of s!eech had been
curtailed. ;I've !ara!hrased from Harsha's blo/ !ost. Source<
"ote2 %uch liberty was not available to %udras and <alits
The above a!!lied lar/ely to the hi/her castes. Sudras and 'alits did not always have this
freedom.
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I won4t /o into details of this issue at the moment (that4s a se!arate to!ic alto/ether) but it
can be said that in principle: &induism is committed firmly to absolute freedom of
speech.
A<<E"<'=
<eepak %harmaDs analysis
KHinduismK is much more resilient and tolerant than the behavior of the censors would lead
one to believe. In fact there is a KHinduK tradition that embraces te&ts that conflict with its
fundamental doctrine. The "Udhva school of PedUnta founded in the )?th century by
"adhvUcUrya thus considers moha-.stras (confusin/ te&ts) which conflicted with "Udhva
doctrine to be canonical and an inte/ral com!onent of its system. In
hisMah.bh.ratat.tparyaniraya a commentary on the Mah.bh.rata "adhvUcUrya
states.
The -.stras ;te&ts< whose meanin/ is confusin/ are made by the servants of Hari ;i.e. Piu<.
$ecause these ;-.stras< have been described as unacce!table ;they< /uide theasuras(demons)
to hell. 0s these te&ts are com!osed by Viva etc. by the order of Piu>;)<
In a subseBuent !assa/e "adhvUcUrya a/ain states that Piu is res!onsible for these te&ts.
I ;Piu< emit this confusion that will confuse !eo!le. Qou 7h 2udra 7h Stron/ 0rmed 7ne
cause the confused -.stra to be com!osed. Show those false ;-.stra< 7h Aowerful 7ne. "ake
;your< Self renowned and conceal me.K This is stated in the words of the V.r.ha $ur.a and
similarly in the rahm.a $ur.a.;+<
"adhvUcUrya thus includes te&ts that conflict with his doctrine as vital com!onents of his
system. They are te&ts that serve a !ur!ose for those who are easily deluded and who are not
destined for mo!a (release from the cycle of birth and rebirth). They also !lace any te&t that
conflicts with "Udhva theolo/y within the "Udhva narrative thereby e&!lainin/ away their
dan/er. The te&ts then when conte&tualiEed are thus neither !rohibited nor harmful. If a
!erson were to read them and were to be convinced by them then it would !rove that the
!erson is destined to hell and will not achieve mo!a.
#rom this it would follow that te&ts like 2amanu3an's essay e&ist by the /race of @od (i.e.
Piu). Such te&ts moreover delude those who are meant to be deluded. #or that matter
2amanu3an's e&istence itself is at the !leasure of Piu himself.
#&2 ?aulitya advocated the freedom to offend4 althou%h his
support for free speech left much to be desired
'ereNs an e2tract from The /irst %reat &olitical 0ealist: 1autilya and !is
Arthashastra by 5o%er Aoesche LSourceM
RR
?autilya sou%ht to curtail severely what we would call the ri%ht to free speech&
Q+ person deserves the lowest fine 7for violence84Q he wrote4 Qfor revilin% his
own country and villa%e4 the middle fine for revilin% his own caste or
corporation4 and the hi%hest for revilin% %ods and sanctuaries&Q 7+&3&"B&"24
2#>8
2A
It is unclear how strictly this was enforced4 because 9autilya apparently
approved of actors making fun of almost anything. QL+ctorsM may4 at will4
entertain by makin% fun of the 7customs of8 countries4 castes4 families4
schools and love-affairs&Q 7++&"&9"4 2:B8 This approval of humor and
entertainment is rare in the +rthashastra4 which is almost always a somber
and serious book& +bove all4 one must not critici@e the kin%& Q'e shall cause
the ton%ue to be rooted out of one who reviles the kin% or divul%es secret
counsel or spreads evil news 7about the kin%8&Q 7+&#&""&2"4 2B:8
urther*
In his deli%htful readin% of the +rthashastra4 Sibaji Aandyopadhay alerts us to
the myriad restrictions that e2isted to control ?usilavas 7the term for
entertainers which included actors4 dancers4 sin%ers4 storytellers4 minstrels
and clowns8& These re%ulations ran%ed from the re%ulation of their movement
durin% monsoon to prohibitions placed on them4 ensurin% that they shall not
Epraise anyone e2cessively nor receive e2cessive presentsF& $hile some of
the re%ulations appear harsh and unwarranted4 Aandyopadhay says that in
contrast to PlatoNs 5epublic4 which banished poets alto%ether from the ideal
republic4 the Arthashastra goes so far as to grant to 9usilavas what we
could now call the right to offend. .erse #&"&9" of the +rthashastra says4
EIn their performances4 Lthe entertainersM may4 if they so wish4 make fun of the
customs of re%ions4 castes or families and the practices or love affairs 7of
individuals8F& LSourceM
INd like to empahsise that I do not support all of what ?autilya stood for& 'e
was a far %reater analyst of libertyDeconomics than almost anyone in India
today4 but perhaps his circumstances made him deviate from even %reater
liberty&
#&3 ACPD.'PDSan%h Parivar are 3uslims D)hristians who pretend
to be E'induF
0n amaEin/ !henomenon has come into India over the !ast few decades. there are bunch of
!eo!le who have for/otten everythin/ about India's /lorious !hiloso!hical !ast and started
D7AQIN@ the worst elements of Islam and Dhristianity.
We know that Dhristianity was the W72ST Kreli/ionK of the world for nearly +,,, years.
0lmost no reli/ion comes even close to it in terms of intolerance. $urnin/ books burnin/
anyone with a different view C these were re/ularly !racticed in this Kreli/ionK.
7nly after many determined attacks a/ainst its brutality includin/ from !eo!le like 8ocke
and Poltaire did Dhristianity become a somewhat civilised reli/ion. 9ven in the +,th century
it was dee!ly involved in the killin/ of millions of !eo!le includin/ in NaEi @ermany.
Similarly Islam has a troubled history. 0lthou/h liberal in its foundations it /rew
increasin/ly intolerant and book burnin/ was !art of its re/ular !ractice.
Therefore there is no sur!rise when we hear of "uslims /oin/ on a ram!a/e a/ainst anyone
they don't like.
These monothesitic reli/ions are intellectual deadJends. There is no life%fertility of thou/ht in
them.
Dhristianity led to the 'ark 0/es where the li/ht of science was com!letely blocked for ),,,
years. Without nonJbelievers like Newton 9uro!e would have remained in the 'ark 0/es for
ever.
Similarly Islam could N9P92 have !roduced any of the discoveries of modern science on its
own. 7il would have remained below the /round on which they lived like barbaric uncouth
tribals interested only in loot and !lunder.
These are the 'dark' reli/ions of mankind. No li/ht of knowled/e can shine throu/h them into
the human mind. 9ither you believe in their 'books' or you are an a!ostate.
Not so was India.
Hinduism (by which I mean the entire con/lomeration of !hiloso!hies and schools of
thou/hts of ancient India) was an 7A9N 'reli/ion'.
9verythin/ was u! for discussion%debate. N7 $77I W0S 9P92 $=2NT 72 '9ST27Q9'
IN IN'I0.
Till recently.
2ecently a bunch of "uslims and Dhristians callin/ themselves KHinduK and leadin/
or/ansations called KPishwa Hindu AarishadK $:A and the like have started destroying
&induism from within0 +ike a TroEan &orse0
These "uslims and Dhristians are a!in/ the W72ST characteristics of Dhristianity and Islam
and have commenced the destruction of books.
I ob3ect to these !eo!le who want to destroy Hinduism as I know it.
#&# 5aja 5ammohun1s fi%ht for freedom of e2pression in India
Dontinuin/ my discussions on the key contribitions of India's /reat classical liberal 2a3a
2ammohun 2oy here is an e&tract from The Life and Letters of +a(a +ammohun +oy ;Word
version here<. The selection outlines his fi/ht for freedom of e&!ression in India. Note that his
ar/uments !recede :.S. "ill's essay On Liberty and must rank as a landmark in mankind's
search for liberty.
RR9ST20DTRR
0t the celebration of the death anniversary of the 2a3a on +1th Se!tember )-,6 The Hon4ble
$abu Surendra Nath $aner3ee said in the course of a s!eech. L+et it be remembered that
!ammohun was not only the Founder of the 1rahmo %omaE and the pioneer of
all social reform in 1engal: but he was also the Father of constitutional agitation
in India.M
2/
1efore the time of !ammohun !oys public activities in #alcutta there was no
glimmering of a political life in the country0 eople had no conception of their
civil rights and privileges@ nobody ever thought of approaching Fovernment to
make known their grievances and ask for redress0 !aEa !ammohun !oy was the
first to enunciate the rights and privileges of the people: and in the name of the
nation to speak to the Fovernment of their duties and responsibilities as the
sovereign power0
The first stand made by the !eo!le of India in defence of their civil ri/hts was when 2a3a
2ammohun 2oy in his own name and in the name of five of his friends submitted
amemorial to the %upreme #ourt in #alcutta: on the /-st =arch: -53/ against the
$rdinance of the then acting Fovernor Feneral: =r0 Adarn: prescribing that
thenceforth no one should publish a newspaper or other periodical without
having obtained a licence from the Fovernor Feneral in #ouncil.M The conce!tion
as well as the e&ecution of the memorial was 2ammohun 2oy4s own. "iss Dollet has 3ustly
said of the memorial Lit may be re/arded as the 0reo!a/itica of Indian history. 0like in
diction and in ar/ument it forms a noble landmark in the !ro/ress of 9n/lish culture in the
9ast.M
,hether for cogent reasoning or for convincing appeal the memorial could
hardly be excelled0 It would do credit to any statesman of any age0 ,ith a broad:
liberal: farsighted statesmanship it enumerates the inestimable blessings of a
free press both for the rulers and the ruled0
9ST20DT #27" 222'S "9"72I08 T7 TH9 S=A29"9 D7=2T
K0fter this 2ule and 7rdinance shall have been carried into e&ecution your memorialists are
therefore sorry to observe that a complete stop will be put to the diffusion of
knowledge and the conseGuent mental improvement now going on: either by
translations into the popular dialect of this country from the learned languages
of the east: or by the circulation of literary intelligence drawn from foreign
publications. 0nd the same cause will also !revent those Natives who are better versed in
the laws and customs of the $ritish Nation from communicatin/ to their fellow sub3ects a
knowled/e of the admirable system of @overnment established by the $ritish and the !eculiar
e&cellencies of the means they have ado!ted for the strict and im!artial administration of
3ustice.
0nother evil of eBual im!ortance in the eyes of a 3ust 2uler is that it will also preclude
the natives from making the Fovernment readily acGuainted with the errors and
inEustice that may be committed by its executive officers in the various parts of
this extensive countryO and it will also preclude the "atives from communicating
frankly and honestly: to their Fracious sovereign in England and his #ouncil: the
real condition of &is =aEestys faithful subEects in this distant part of his
dominions and the treatment they experience from the local FovernmentO since
such information cannot in future be conveyed to 9n/land as it has been either by the
translations from the Native !ublications inserted in the 9n/lish news!a!ers !rinted here and
sent to 9uro!e or by the 9n/lish !ublications which the Natives themselves had in
contem!lation to establish before this 2ule and 7rdinance was !ro!osed. 0fter this sudden
deprivation of one of the most precious of their rights which has been freely
allowed them since the establishment of the 1ritish power a ri/ht which they are
not cannot be char/ed with havin/ ever abused the inhabitants of #alcutta would be
no longer Eustified in boasting > that they are secured in the enEoyments of the
same civil and religious privileges that every 1riton is entitled to in England.M
When this memorial was re3ected by the Su!reme Dourt the 2a3a !re!ared a fresh memorial
to be submitted to the Iin/. "iss Dollet has characterised this latter as Lone of the noblest
!ieces of 9n/lish to which 2ammohun !ut his hand. Its stately !eriods and not less stately
thou/ht recall the eloBuence of the /reat orators of a century a/o. In a lan/ua/e and style for
ever associated with the /lorious vindication of liberty it invokes a/ainst arbitrary e&ercise of
$ritish !ower the !rinci!les and the traditions which are distinctive of $ritish history.M It was
really a marvellous !roduction considerin/ the a/e and the circumstances under which it was
written. $ut it had !roduced no better results than its !redecessor.
The Arivy Douncil in November )*+5 after si& months4 consideration declined to com!ly with
the !etition.
As a final protest: !ammohun !oy stopped his weekly 'rdu paper: Miratul
Akhbar: declaring his inability to publish it under what he considered degrading
conditions0
In )*+1 2ammohun 2oy made another s!irited !rotest a/ainst the illiberal !olicy of the
@overnment which reveals his ever wakeful solicitude for the rights of his
countrymen as well as his deep political insight.
#&: Gandhi on +AS-/=T0 freedom of speech
F$"" S3""C4 AS A' "+"M"'-A$% $(54-
Q-he person of a citiFen must be held inviolate& It can only be touched to arrest or
to prevent violenceQ LIoun% India4 2# +pril ";3!M
Indians like others ou%ht to be allowed Qfree speechQ etc& as these are fundamentals
of Aritish )onstitution&Q L"B;:4 SourceM
QThe present stru%%le is not so much to ri%ht the Punjab and ?hilafat wron%s4 much
less for swaraj& $e are now fi%htin% for the elementary rights of free speech and
freedom to form associations LIoun% India4 : Canuary ";22M
QIndividual freedom alone can make society pro%ressive& If it is wrested from him4 he
becomes an automation and society is ruined& ,o society can possibly be built on a
denial of individual freedom& It is contrary to the very nature of man&Q L'arijan4 3
ebruary ";#2M 7cited here8
Qthe elementary ri%hts of free speech4 free association and free PressQ LSourceM
QThe immediate task before the country4 therefore4 is to rescue from paralysis
freedom of speech4 freedom of association andfreedom of the Press&Q LSourceM
Qreedom of speech of the individual is the foundation of SwarajQ LIoun% India4 2#
+u%ust ";#:M 7cited here8
Qreedom of speech and pen is the foundation of swarajQ L'arijan4 2;-;-";#!M
26
F$"" S3""C4 (' ,$(-(S4 ('7(A !AS ('S1FF(C("'-
Qthe Punjab Government cannot tolerate free speech&Q LSourceM
Q5eadin% is tryin% to emasculate India by forcibly makin% free speech and popular
or%ani@ation impossible&Q LSourceM
Qaroused mi2ed feelin%s of surprise and re%ret amon%st all those who hold the
democratic ri%hts of fair criticism and free speech dear&Q LSourceM
QThere is no freedom of speech in Aritish India much less in ,ative States&Q
L";&!3&";#" SourceM
Qree speech has been stifled& Goondaism is bein% practised in the name of law and
order&Q LSourceM
C&'C+1S(&'
+lthou%h Gandhi often objected to hate speech4 he never asked the Government to
step in& 'e was all in favour of self-restraint and civilised discourse&
It is a pity that Gandhi did not comment on s&":3 and s 2;:+ of IP)& It would have
been very helpful to India had he thorou%hly condemned such laws&
#&9 Sardar 4ukum Singh fought for our liberty in the
Constituent Assembly against anti0free speech provisions
In IndiaNs )onstituent +ssembly Sardar 'ukum Sin%h advocated +AS-/=T0
freedom of speech 7article "3 referred to in the speech became the final
article ";8
RR
Sardar 4ukum Singh 70ast Punjab* Sikh8* 3r& .ice-President4 Sir4 I be% to
move*
QThat clause 7284 7384 7#84 7:8 and 798 of article "3 be deleted&Q
Sir4 in article "37"84 sub-clauses 7a84 7b8 and 7c84they %ive constitutional
protection to the individual against the coercive power of the State4 if
they stood by themselves&
Aut sub-clause 728 to 798 of article "3 would appear to take away the very soul
out of these protective clauses& These lay down that nothin% in sub-clauses
7a847b84 7c8 of article "3 shall effect the operation of any of the e2istin% laws4
that is4 the various laws that abro%ate the ri%hts envisa%ed in sub-clause 7"8
which were enacted for the suppression of human liberties4 for instance4 the
)riminal /aw +mendment +ct4 the Press +ct4 and other various security +cts&
(f they are to continue in the same way as before. then where is the
change ushered in and so loudly talked of)
-he main purpose of declaring the rights as fundamental is to safeguard
the freedom of the citiFen against any interference by the ordinary
legislature and the eCecutive of the day.
The ri%hts detailed in article "37"8are such that they cannot be alienated by
any individual4 even voluntarily& The Government of the day is particularly
precluded from infrin%in% them4 e2cept under very special circumstances&
$ork in pro%ress& 'appy to receive input at sabhlok(%mail&com 2<
,ut here the freedom of assembling. freedom of the press and other
freedoms have been made so precarious and entirely left at the mercy of
the legislature that the whole beauty and the charm has been taken
away.
It is not only the e2istin% laws that have been subjected to this clause4 but the
State has been further armed with eCtraordinary powers to make any law
relating to libel. slander etc. It may be said that every State should have the
power and jurisdiction to make laws with re%ard to such matters as sedition4
slander and libel&
Aut in other countries like America it is for the Supreme )ourt to jud%e the
matter4 keepin% in view all the circumstances and the environments4 and to
say whether individual liberty has been sufficiently safe%uarded or whether
the le%islature has trans%ressed into the freedom of the citi@en& The balance
is kept in the hands of the judiciary which in the case of all civili@ed countries
has always wei%hed honestly and conseHuently protected the citi@en from
unfair encroachment by le%islatures&
,ut a curious method is being adopted under our Constitution by
adding these sub0clauses ;/* to ;=*. The 'onourable 3over defended these
sub-clauses by remarkin% that he could Huote at least one precedent for each
of these restrictions&
Aut it is here that the difference lies4 that whereas in those countries it is
the Gudiciary which regulates the spheres of these freedoms and the
eCtent of the restrictions to be imposed. under article 2. it is the
legislature that is being empowered with these powers by sub0clauses
;/* to ;=*.
-he right to freedom of speech is given in article 2;*;a*. but it has been
restricted by allowing the legislature to enact any measure under
2;/*.relating to matters which undermine the authority or foundation of
the StateO the ri%ht to assembly seems %uaranteed under "37"87b84 but it has
been made subject to the Hualification that le%islation may be adopted in the
interest of public order6"3738& urther under "37#8 to"37984 any le%islation
restrictin% these liberties can be enacted Qin the interest of the %eneral publicQ&
'ow who is to Gudge whether any measure adopted or legislation
enacted is Bin the interest of the general publicB or Bin the interest of
public orderB. or whether it relates to Bany matter which undermines the
authority or foundation of the StateB) The sphere of the Supreme )ourt
will be very limited& The only Huestion before it would be whether the
le%islation concerned is Qin the interest of the public orderQ& -nly the bona-
fides of the le%islature will be the main point for decision by the )ourt and
when once it is found by the court that the Government honestly believed that
the le%islation was needed Qin the interest of the public orderQ4 there would be
nothin% left for its interference&
The proviso in article "3738 has been so worded as to remove from the
Supreme )ourt its competence to consider and determine whether in fact
there were circumstances justifyin% such le%islation& The actual provisions
and the e2tent of the restrictions imposed would-be out of the scope of judicial
determination&
2=
or further illustration we may take the law of sedition enacted under "3728&
+ll that the Supreme )ourt shall have to adjudicate upon would be whether
the law enacted relates to QseditionQ and if it does4 the judiciary would be
bound to come to a findin% that it is valid& it would not be for the Cud%e to
probe into the matter whether the actual provisions are oppressive and unjust&
(f the restriction is allowed to remain as it is contemplated in 2;/*. then
the citiFens will have no chance of getting any law relating to sedition
declared invalid. howsoever oppressive it might be in restricting and
negativing the freedom promised in 2;*;a*. The QcourtQ would be bound
to limit its enHuiry within this field that the Parliament is permitted under the
)onstitution to make any laws pertainin% to sedition and so it has done that&
The constitution is not infrin%ed anywhere4 and rather4 the draft is declaring
valid in advance any law that might be enacted by the 3arliamentHonly if
it related to sedition. Similar is the case of other freedom posed in
article 2;* but eclipsed and negatived in clauses ;/* to ;=*.
It may be ar%ued that under a national %overnment4 the le%islature4
representative of the people and elected on adult franchise4 can and should
be trusted for the safe custody of citi@ensN ri%hts& ,ut as has been aptly
remarked. I(f the danger of eCecutive aggression has disappeared. that from
legislative interference has greatly increased. and it is largely against this danger
that the modern declarations of fundamental rights are directed. as formerly they
were directed against the tyranny of autocratic kings.B
-he very obGect of a ,ill of $ights is to place these rights out of the
influence of the ordinary legislature4 and if4 as under clauses 728 to 798 of
article "34 we leave it to this very body4 which in a democracy4 is nothing
beyond one political party. to finally Gudge when these rights. so
sacred on paper and glorified as Fundamentals. are to be
eCtinguished. we are certainly making these freedoms illusory&
(f the other countries like the 1.S.A. have placed full confidence in their
8udiciary and by their lon% e2perience it has been found that the confidence
was not misplaced4 why should we not depend upon similar %uardians to
protect the individual liberties and the State interests4 instead of hedging
round freedom by so many eCceptions under these sub0
clauses)
Sir4 I commend this amendment to the 'ouse&
#&> Sardar Ahopinder Sin%h 3an also fou%ht for our liberty in the
)onstituent +ssembly a%ainst anti-free speech provisions
urther to this4 here was another fi%hter for liberty&
Sardar ,hopinder Singh Man 70ast Punjab* Sikh8* SL3r&.ice-President4 I
re%ard freedom of speech and e2pression as the very life of civil liberty4 and I
re%ard it as fundamental& or the public in %eneral4 and for the minorities in
particular4 I attach %reat importance to association and to free speech& It is
throu%h them that we can make our voice felt by the Government4 and can
stop the injustice that mi%ht be done to us&
$ork in pro%ress& 'appy to receive input at sabhlok(%mail&com 2>
For attaining these rights the country had to make so many struggles.
and after a grim battle succeeded in getting these rights recognised. ,ut
now. when the time for their enforcement has come. the 5overnment
feels hesitantJ what was deemed as undersirable then is now being
paraded as desirable. !hat is being given by one hand is being taken
away by the other. "very clause is being hemmed in by so many
provisos.
To apply the e2istin% law in spite of chan%e conditions really amounts to
trifling with the freedom of speech and eCpression.
rom the very be%innin% we have stood against the eCisting laws.
but now you are imposing them on us. LSanjeev* The A5ITIS' +,TI-
500 SP00)' /+$S $050 I3P-S0D -, I,DI+ +,D 3+D0 0.05
ST5-,G054 TI// T-D+I ,- /IA05TI 503+I,S I, I,DI+M
Iou want to continue the old order so that there should be no opportunity of a
trial4 of puttin% up defence and of an appeal& If a meetin% is held4 then for
breakin% it up lathis may be used4 and people may be put into jail without trialO
their or%anisations may be banned and declared ille%al&
$e do not like this shape of thin%s&
(f you want to perpetuate all that. then ( would like to say that by
imposing all these restrictions you are doing a great inGustice.
#&B Somnath /ahiri protested in the )onstituent +ssembly a%ainst
massive powers to %overnment a%ainst citi@ens 6 more than
the Aritish had
This is a fascinatin/ s!eech in the Donstituent 0ssembly. Dlearly "0NQ !eo!le were P92Q
unha!!y with the ho!elessly truncated Kfundamental ri/htsK in the constitution. The chicken have
all come home to roost now. 7r to use another worn cliche the horse of liberty has bolted.
India will increasin/ly become an Islamic slave nation. Islamic because the #902 of Islamic
terrorists and mad men looms hi/h in the minds of those who fear liberty of s!eech. 0nd now
IS80"ID HIN'=S ($:A%PHA etc.) have 3oined the bandwa/on of those who o!!ose freedom of
s!eech.
=r0 %omnath +ahiri ($en/al. @eneral). I feel that many of these fundamental ri/hts have been
framed from the !oint of view of a !olice constable and many such !rovisions have been
incor!orated. Why( $ecause you will find that very minimum rights have been conceded
and those too very grudgingly and these so*called rights are almost invariably
followed by a proviso0
0lmost every article is followed by a !roviso which takes away the ri/ht almost com!letely because
everywhere it is stated that in case of /rave emer/ency these ri/hts will be taken away. Now Sir
what constitutes a '/rave emer/ency' @od alone knows. It will de!end on the e&ecutive obtainin/ at
a !articular !eriod of /overnment. So naturally anythin/ that the !arty in !ower or the e&ecutive
may not like would be considered a /rave emer/ency and the verymeagre fundamental
rights which are conceded in this resolution will be whittled down.
2?
I should like to mention one or two thin/s as e&am!les. What should be our conce!tion of
fundamental ri/hts( 0!art from the knowled/e that we can /ather from the e&!erience of other
countries there is also the knowled/e born out of our own e&!erience that is there are certain
ri/hts which we have been denied in the !ast by an alien and autocratic /overnment. We have
come u! a/ainst those difficulties. We want to incor!orate every one of those ri/hts which our
!eo!le want to /et.
7ne vital thin/ which our !eo!le have been sufferin/ from in the !ast has been the curtailment of
the liberty of the !ress by means of securities and by other methods. The !ress has been crushed
com!letely. This is a thin/ a/ainst which every !atriotic Indian is u! in arms includin/ every
con/ressman and therefore in his heart of hearts every Indian feels that in a free India in order
that !eo!le may feel freedom and act u! to it there should not be such drastic curtailment of
liberties of the !ress. $ut what do we find( There is not even a mention of the liberty of the
press in this whole list of fundamental rights submitted by the Dommittee e&ce!t a solitary
mention made at one !lace that there will be liberty of e&!ression. Sir this is somethin/ which
/oes a/ainst our e&!erience and must be !rotected.
That is why I am constrained to say that these are fundamental ri/hts from a !olice constable's
!oint of view and not from the !oint of view of a free and fi/htin/ nation. Here whatever right is
given is taken away by a proviso0 > here we find that none of the e&istin/ !rovisions of the
!owers of the e&ecutive has been done away withO rather in some res!ects those !owers are sou/ht
to be increased.
0nd if some of the amendments are !assedCs!ecially that of Sri 2a3a/o!alachariarC it will in
certain cases be even worse than the conditions obtaining at present0 I will /ive one
e&am!le. Here accordin/ to Aatel a seditious s!eech is a !unishable crime. If I say at any time in
the future or the Socialist Aarty says that the @overnment in !ower is des!icable Sardar Aatel if
he is in !ower at that time will be able to !ut the Socialist Aarty !eo!le and myself in 3ail
thou/h as far as I know: even in England a speech: however seditious it may be: is
never considered a crime unless an overt act is done0
These are the fundamental bases of the fundamental ri/hts of a free country but here a seditious
s!eech also is /oin/ to be an offenceO and Sri 2a3a/o!alachariar wants to /o further. Sardar Aatel
would !unish us if we make a s!eech but 2a3a3i would !unish us even before we have made the
s!eech. He wants to !revent the makin/ of the s!eech itself if in his /reat wisdom he thinks that
the fellow is /oin/ to make a seditious s!eech. ;Source<
#&; ? 3 3unshi1s defence of freedom of speech
I have written about ?3 3unshi 7who joined Swatantra Party8 here& 'ereNs an
e2tract re%ardin% his defence of freedom of speech in the constituent
assembly&
Initially4 one of the %rounds proposed under +rticle "3 728 was sedition but it
was not finally approved& +dvocatin% for the deletion of the same4 ?&3&
3unshi4 3ember of the Draftin% )ommittee4 opined*
-ur notorious Section "2#+ of Penal )ode was sometimes construed so
widely that I remember in a case a criticism of a District 3a%istrate was ur%ed
to be covered by Section "2#+& Aut public opinion has chan%ed considerably
$ork in pro%ress& 'appy to receive input at sabhlok(%mail&com 2@
since and now that we have a democratic Government4 a line must be drawn
between criticism of Government which should be welcome and incitement
which would undermine the security or order on which civili@ed life is based4
or which is calculated to overthrow the State& Therefore the word Jsedition1
has been omitted& +s a matter of fact the essence of 7emocracy is
criticism of 5overnment& The party system which necessarily involves an
advocacy of replacement of one Government by another is its only bulwarkO
the advocacy of different system of %overnment should be welcome because
that %ives vitality to a democracy& LSourceM
#&"! 3ahboob +li Aai% fou%ht for our liberty in the )onstituent
+ssembly a%ainst anti- free speech provisions
I chanced upon this article 7which INve not yet read in full8 and was deli%hted
to come across a 3=S/I3 I,DI+, /0+D05 who fou%ht a%ainst anti- free
speech restrictions in IndiaNs )onstitution&
Q3ahboob +li Aai% went ahead to compare the situation with the 5erman
Constitution under Adolf 4itler. where Fundamental $ights were
subGected to the provisions of law made by the legislature&Q
This is what he said*
This means the citi@ens could only enjoy those ri%hts which the le%islature
would %ive them4 permit them from time to time& That cuts at the very root of
undamental 5i%hts and the undamental 5i%hts cease to be fundamental&
L,eed to double check the cited source4 but appears correct at first si%htM
It is crucial that we di% out the writin%s of these 500D-3 IG'T05S 7as
opposed to P-$05 S00?05S8 and circulate them as part of an Indian
reedom 3anifesto&
+ny youn% thinkers willin% to do this homeworkK Please spare your time to %o
to ,ational +rchives and di% around in the writin%s of these people& Step "*
find out the whereabouts of Prof& Subhradipta Sarkar and reHuest him for
%uidance&
#&"" Ca%dish Aha%wati1s defence of +AS-/=T0 freedom of speech
6A
)hanced upon an article by Ca%dish Aha%wati on the topic of current interest to me
7freedom of speech8&
)alled + 3odest Proposal in Defense of ree Speech4 it says4 amon% other thin%s*
In each case4 however4 the principled defense of the ri%ht of free e2pression4
indeed of what we mi%ht call the Eri%ht to ridicule4F has been lar%ely left to
these admirable prime ministers from small Scandinavian countries& The
only important non-Scandinavian stateswoman to have come to the defense
of this ri%ht has been )hancellor +n%ela 3erkel4 who just received the
presti%ious 3edal of reedom from President -bama& She spoke at an
event in September 2!"! at Potsdam4 where the Danish cartoonist was
awarded the 3"!! 3edia Pri@e 2!"!4 declarin% emphatically that Eit is
irrelevant whether his cartoons are tasteless or not& T Is he allowed to do
thatK Ies4 he can&F
5ead his modest proposal there& I donNt Huite a%ree with such a proposal& I prefer the
stron% and clear position of the Scandinavian countries&
+AS-/=T0 500D-3 - SP00)'& P05I-D&
#&"2 8ustice Markandey 9atGu defending Aseem -rivediEs
freedom to publish his cartoons
Iat3u is a controversial man (as you can see from his style of res!ondin/ to Buestions).
However he has a valid !oint. There can be N7 limits to o!inions no matter how distasteful.
There is no freedom without the freedom to offend.
LSee video on my blo%M
:&
,on-Indian advocates of absolute free speech
:&" Thomas 3ore1s EPetition for reedom of SpeechF 3ade as
Speaker of the 'ouse of )ommons To ?in% 'enry .III4 "B
+pril ":23
I've /ot this from the internet. This /oes towards the other utilitarian ar/ument for free
s!eech. that only throu/h honest o!inion can the best course of affairs be determined.
RR
The #irst Such Aetition on 2ecord (William 2o!er 8ives !!. *J- but moderniEed by "ary
@ottschalk).< ;Source<
9ditorial note. In )5+? Thomas "ore was chosen to be S!eaker of the House of Dommons of
Aarliament. Pery hesitant to acce!t the !ost he asked Iin/ Henry PIII to release him from
the duty. The kin/ refused his reBuest and acce!tin/ the !osition "ore made a second
reBuest to the kin/. a reBuest for free s!eech the first such reBuest ever known to be made.
This historic !etition follows.
RRRR
"y other humble reBuest most e&cellent Arince is this. 7f your commoners here assembled
by your hi/h command for your Aarliament a /reat number have been in accord with the
customary !rocedure a!!ointed in the House of Dommons to treat and advise on the
common affairs amon/ themselves as a se!arate /rou!. 0nd most dear lie/e 8ord in accord
with your !rudent advice communicated everywhere by your honorable commands due
dili/ence has been e&ercised in sendin/ u! to your Hi/hness4s court of Aarliament the most
discreet !ersons out of every area who were deemed worthy of this officeO hence there can be
no doubt that the assembly is a very substantial one of very wise and !olitic !ersons.
0nd yet most victorious Arince amon/ so many wise men not all will be eGually wise:
and of those who are eGually wise: not all will be eGually well*spoken.And often
it happens that Eust as a lot of foolishness is uttered with ornate and polished
speech: so: too: many coarse and rough*spoken men see deep indeed and give
very substantial counsel0
0lso in matters of /reat im!ortance the mind is often so !reoccu!ied with the sub3ect matter
that one thinks more about what to say than about how to say it for which reason the wisest
and best*spoken man in the country may now and then: when his mind is
engrossed in the subEect matter: say something in such a way that he will later
wish he had said it differently: and yet he had no less good will when he spoke it
than he has when he would so gladly change it.
6/
0nd therefore most /racious Soverei/n considerin/ that in your hi/h court of Aarliament
nothin/ is discussed but wei/hty and im!ortant matters concernin/ your realm and your own
royal estate many of your discreet commoners will be hindered from giving their
advice and counsel: to the great hindrance of the common affairs: unless every
one of your commoners is utterly discharged of all doubt and fear as to how
anything that he happens to say may happen to be taken by your &ighness0
0nd althou/h your well known and !roven kindness /ives every man ho!e yet such is the
seriousness of the matter such is the reverent dread that the timorous hearts of your naturalJ
born sub3ects conceive toward your hi/h "a3esty our most illustrious Iin/ and Soverei/n
that they cannot be satisfied on this !oint unless you in your /racious bounty remove the
mis/ivin/s of their timorous minds and animate and encoura/e and reassure them.
It may therefore !lease your most abundant @race our most beni/n and /odly Iin/ togive
to all your commoners here assembled your most gracious permission and
allowance for every man freely: without fear of your dreaded displeasure: to
speak his conscience and boldly declare his advice concerning everything that
comes up among us0 Whatever any man may ha!!en to say may it !lease your noble
"a3esty in your inestimable /oodness to take it all with no offense: interpreting
every mans words: however badly they may be phrased: to proceed nonetheless
from a good Aeal toward the profit of your realm and honor of your royal person
the !ros!erous condition and !reservation of which most e&cellent Soverei/n is the thin/
which we all your most humble and lovin/ sub3ects accordin/ to that most bindin/ duty of
our heartfelt alle/iance most hi/hly desire and !ray for.
:&2 Dierdre 3c)loskey on +AS-/=T0 freedom of speech&
Aecause the only other way is violence&
Here is one of my favourite livin/ !ro!onents of liberty e&!lainin/ why free s!eech is the
7N8Q way of civilisation. $ecause the only other way is violence.
;See video on my blo/<
0=T7 T20NSD2IAT #27" Q7=T=$9
'eirdre "cDloskey #ree s!eech is a sacred !hrase in our society. 9veryone thinks it4s a /ood
idea. It4s in the first amendment to the Donstitution. Hey it4s /reat. $ut I want to com!licate
thin/s a little bit because I want to associate free s!eech with the ancient word for !ersuasion
all the way back to the @reeks. rhetoric. Now that sounds like a bad word. Aeo!le are always
sayin/ oh senate cam!ai/n mired in rhetoric. Is bein/ !ersuaded a bad thin/( Well it would
be a bad thin/ if there was somethin/ other than !ersuasion that could /et us to the truth but
there isn4t. We4re humansO we de!end on lan/ua/e. 0ll we can do is !ersuade each other about
the Aytha/orean Theorem or !ersuade each other about the virtues of @eneral "otors
!roducts or !ersuade each other about who to vote for in the ne&t election. Why is it the only
alternative( $ecause the only other thin/ you can do besides tryin/ to sweet talk !eo!leT
tryin/ to chan/e their minds as we sayTis violence. I can chan/e at least your actions if not
your minds by drawin/ out my .?* which I kee! in my !urse and sayin/ LQou believe in
economics or I4ll shoot you.M 0nd you say L7h yeah yeah I believe in economics. Qeah
economics is /reat.M 0nd that4s all we have. #or e&am!le advertisin/. Now advertisin/ has a
bad !ress. They always use the word mani!ulation I mentioned before. 7h it4s terrible.
Aeo!le are tryin/ to !ersuade you. Now wait a second. If an alternative is violence how else
are we /oin/ to decide whether Doke is the real thin/( How else are we /oin/ to decide what
automobile to buy e&ce!t by !eo!le tryin/ to charm us( In a society of free choice free ideas
free consum!tion you have !ersuasion as the only alternative to violence. So a free society is
an advertisin/ of society. 0 free society is a rhetorical society. 0 free society is a s!eakin/
rather than violent society.
:&3 )hristopher 'itchens on +AS-/=T0 free speech& A5I//I+,T
ar%uments that %o beyond 3ill&
Stron/ly recommend this short but im!ortant talk C no matter whether you a/ree with
Hitchens !oints re. reli/ion or not.
#hristopher &itchens: speaking at &art &ouse: 'niversity of Toronto:
"ovember -.th: 3669
Here's the transcri!t in A'#. 0nd in te&t below.
RR
Fire in a #rowded Theatre
Dhristo!her Hitchens s!eakin/ at Hart House =niversity of Toronto
November )5th +,,H
#I29F #ire fire> fire. Now you4ve heard it. Not shouted in a crowded theatre admittedly as I
realise I seem now to have shouted it in the Ho/warts dinin/ room C but the !oint is made.
9veryone knows the fatuous verdict of the /reatly over!raised :ustice 7liver Wendell Holmes
who asked for an actual e&am!le of when it would be !ro!er to limit s!eech or define it as an
action /ave that of shoutin/ LfireM in a crowded theatre.
It4s very often for/otten what he was doin/ in that case was sendin/ to !rison a /rou! of
Qiddish s!eakin/ socialists whose literature was !rinted in a lan/ua/e most 0mericans
couldn4t read o!!osin/ Aresident Wilson4s !artici!ation in the #irst World War and the
dra//in/ of the =nited States into this san/uinary conflict which the Qiddish s!eakin/
socialists had fled from 2ussia to esca!e.
In fact it could be 3ust as !lausibly ar/ued that the Qiddish s!eakin/ socialists who were 3ailed
by the e&cellent and over!raised :ud/e 7liver Wendell Holmes were the real fire fi/hters
were the ones shoutin/ LfireM when there really was a fire in a very crowded theatre indeed.
66
0nd who is to decide( Well kee! that Buestion if you would Cladies and /entlemen brothers
and sisters I ho!e I may say comrades and friendsC before your minds.
I e&em!t myself from the s!eaker4s kind offer of !rotection that was so /enerously ;offered< at
the o!enin/ of this evenin/. 0nyone who wants to say anythin/ abusive about or to me is Buite
free to do so and welcome in fact at their own risk.
$ut before they do that they must have taken as I4m sure we all should a short refresher
course on the classic te&ts on this matter. Which are :ohn "ilton4s 0reo!a/itica
L0reo!a/iticaM bein/ the /reat hill of 0thens for discussion and free e&!ression. Thomas
Aaine4s introduction to The 0/e of 2eason. 0nd I would say :ohn Stuart "ill4s essay 7n
8iberty in which it is variously said
CI4ll be very darin/ and summariEe all three of these /reat /entlemen of the /reat tradition of
es!ecially 9n/lish liberty in one /o.C
What they say is it4s not 3ust the ri/ht of the !erson who s!eaks to be heard it is the ri/ht of
everyone in the audience to listen and to hear. 0nd every time you silence someone you make
yourself a !risoner of your own action because you deny yourself the ri/ht to hear somethin/.
In
other words your own ri/ht to hear and be e&!osed is as much involved in all these cases as is
the ri/ht of the other to voice his or her view.
Indeed as :ohn Stuart "ill said if all in society were a/reed on the truth and beauty and
value of one !ro!osition all e&ce!t one !erson it would be most im!ortant in fact it would
become even more im!ortant that that one heretic be heard because we would still benefit
from his !erha!s outra/eous or a!!allin/ view.
In more modern times this has been !ut I think best by a !ersonal heroine of mine 2osa
8u&embour/ who said that freedom of s!eech is meanin/less unless it means the freedom of
the !erson who thinks differently.
"y /reat friend :ohn 74 Sullivan former editor of the National 2eview and I think !robably
my most conservative and reactionary Datholic friend once said Cit4s a tiny thou/ht
e&!erimentC he says if you hear the Ao!e sayin/ he believes in @od you think Lwell the
Ao!e is doin/ his 3ob a/ain todayM. If you hear the Ao!e sayin/ he4s really be/un to doubt the
e&istence of @od you be/in to think he mi/ht be on to somethin/.
Well if everybody in North 0merica is forced to attend at school trainin/ in sensitivity on
Holocaust awareness and is tau/ht to study the #inal Solution about which nothin/ was
actually done by this country or North 0merica or the =nited Iin/dom while it was /oin/
onO but let4s say as if in com!ensation for that everyone is made to swallow an official and
unalterable story of it now and it is tau/ht as the /reat moral e&em!lar the moral eBuivalent
of the morally lackin/ elements of the Second World War a way of stillin/ our uneasy
conscience about that combat>
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If that4s the case with everybody as it more or less is and one !erson /ets u! and says LQou
know what this Holocaust I4m not sure it even ha!!ened. In fact I4m !retty certain it didn4t.
Indeed I be/in to wonder if the only thin/ ;isn4t< that the :ews brou/ht a little bit of violence
on themselves.M
;Then< That !erson doesn4t 3ust have a ri/ht to s!eak that !erson4s ri/ht to s!eak must be
/iven e&tra !rotection. $ecause what he has to say must have taken him some effort to come
u! with mi/ht contain a /rain of historical truth mi/ht in any case /et !eo!le to think about
Lwhy do they know what they already think they knowM. How do I know that I know this
e&ce!t that I4ve always been tau/ht this and never heard anythin/ else(
It4s always worth establishin/ first !rinci!les. It4s always worth sayin/ Lwhat would you do if
you met a #lat 9arth Society member(M Dome to think of it how can I !rove the earth is
round( 0m I sure about the theory of evolution( I know it4s su!!osed to be true. Here4s
someone who says there4s no such thin/O it4s all intelli/ent desi/n. How sure am I of my own
views( 'on4t take refu/e in the false security of consensus and the feelin/ that whatever you
think you4re bound to be 7I because you4re in the safely moral ma3ority.
7ne of the !roudest moments of my life that4s to say in the recent !ast has been defendin/
the $ritish historian 'avid Irvin/ who is now in !rison in 0ustria for nothin/ more than the
!otential of utterin/ an unwelcome thou/ht on 0ustrian soil. He didn4t actually say anythin/
in 0ustria. He wasn4t even accused of sayin/ anythin/. He was accused of !erha!s !lannin/ to
say somethin/ that violated an 0ustrian law that says only one version of the history of the
Second World War may be tau/ht in our brave little Tyrolean re!ublic.
The re!ublic that /ave us Iurt Waldheim as Secretary @eneral of the =nited Nations a man
wanted in several countries for war crimes. Qou know the country that has :or/e Haider the
leader of its own fascist !arty in the cabinet that sent 'avid Irvin/ to 3ail.
Qou know the two thin/s that have made 0ustria famous and /iven it its re!utation by any
chance( :ust while I4ve /ot you. I ho!e there are some 0ustrians here to be u!set by it. Well a
!ity if not but the two /reat achievements of 0ustria are to have convinced the world that
Hitler was @erman and that $eethoven was Piennese.
Now to this !roud record they can add they have the coura/e finally to face their !ast and
lock u! a $ritish historian who has committed no crime e&ce!t that of thou/ht in writin/. 0nd
that4s a scandal. I can4t find a seconder usually when I !ro!ose this but I don4t care. I don4t
need a seconder. "y own o!inion is enou/h for me and I claim the ri/ht to have it defended
a/ainst any consensus> any ma3ority> anywhere> any !lace any time. 0nd anyone who
disa/rees with this can !ick a number /et in line C and> kiss my ass.
Now I don4t know how many of you don4t feel you4re /rown u! enou/h to decide for
yourselves and think you need to be !rotected from 'avid Irvin/4s edition of the @oebbels
'iaries for e&am!le out of which I learned more about the Third 2eich than I had from
studyin/ Hu/h Trevor2o!er and
6=
0. :. $. Taylor combined when I was at 7&ford. $ut for those of you who do I4d recommend
another short course of revision.
@o a/ain and see not 3ust the film and the !lay but read the te&t of 2obert $olt4s wonderful
!lay 0 "an #or 0ll Seasons Csome of you must have seen it. Where Sir Thomas "ore decides
that he
would rather die than lie or betray his faith. 0nd one moment "ore is ar/uin/ with the
!articularly vicious witchhuntin/ !rosecutor. 0 servant of the kin/ and a hun/ry and
ambitious man.
0nd "ore says to this man
C Qou4d break the law to !unish the devil wouldn4t you(
0nd the !rosecutor the witchhunter says
C $reak it( Che saidC I4d cut down I4d cut down every law in 9n/land if I could do that if I
could ca!ture himF
C Qes you would wouldn4t you( 0nd then when you would have cornered the devil and the
devil4d turn around to meet you where would you run for !rotection all the laws of 9n/land
havin/ been
cut down and flattened( Who would !rotect you then(
$ear in mind ladies and /entleman that every time you violate or !ro!ose the violate the
ri/ht to free s!eech of someone else you in !otentia ;are< makin/ a rod for your own back.
$ecause the other Buestion raised by :ustice 7liver Wendall Holmes is sim!ly this. who4s
/oin/ to decide to whom do you award the ri/ht to decide which s!eech is harmful or who is
the harmful s!eaker( 7r to determine in advance what the harmful conseBuences ;are< /oin/
to be that we know enou/h about in advance to !revent( To whom would you /ive this 3ob( To
whom are you /oin/ to award the task of bein/ the censor(
Isn4t a famous old story that the man who has to read all the !orno/ra!hy in order to decide
what4s fit to be !assed and what is ;not< is the man most likely to become debauched(
'id you hear any s!eaker in the o!!osition to this motion eloBuent as one of them was to
whom you would dele/ate the task of decidin/ for you what you could read( To whom you
would /ive the 3ob to decide for you( 2elieve you of the res!onsibility of hearin/ what you
mi/ht have to hear( 'o you know any one Chands u!C do you know any one to whom you4d
/ive this 3ob( 'oes anyone have a nominee(
Qou mean there is no one in Danada who is /ood enou/h to decide what I can read( 7r hear( I
had no idea>
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$ut there4s a law that says there must be such a !erson or some subsection some !iddlin/ law
that says it.
Well to Hell with that law then. It is invitin/ you to be liars and hy!ocrites and to deny what
you evidently know already about this censorious instinct.
We basically know already what we need to know and we4ve known it for a lon/ time it
comes from an old story about another /reat 9n/lishman Csorry to sound !articular about
that this evenin/C 'r Samuel :ohnson the /reat le&ico/ra!her com!lier of the first /reat
dictionary of the 9n/lish lan/ua/e. When it was com!lete 'r :ohnson was waited u!on by
various dele/ations of !eo!le to con/ratulate him. 7f the nobility ; ... < of the Dommon of the
8ords and also by a dele/ation of res!ectable ladies of 8ondon who attended on him in his
#leet Street lod/in/s and con/ratulated him.
C L'r :ohnsonM they said LWe are deli/hted to find that you4ve not included any indecent or
obscene words in your dictionary.M
C L8adiesM said 'r :ohnson LI con/ratulate you on bein/ able to look them u!.M
0nyone who can understand that 3oke Cand I4m !leased to see that about ten !er cent of you
canC /ets the !oint about censorshi! es!ecially !rior restraint as it is known in the =nited
States where it is banned by the #irst 0mendment to the Donstitution. It may not be
determined in advance what words are a!t or ina!t. No one has the knowled/e that would be
reBuired to make that call and C
more to the !ointC one has to sus!ect the motives of those who do so. In !articular those who
are determined to be offended of those who will /o throu/h a treasure house of 9n/lish Clike
'r :ohnson4s first le&iconC in search of filthy words to satisfy themselves and some instinct
about which I dare not s!eculate>
Now I am absolutely convinced that the main source of hatred in the world is reli/ion and
or/aniEed reli/ion. 0bsolutely convinced of it. 0nd I am /lad that you a!!laud because it4s a
very /reat !roblem for those who o!!ose this motion. How are they /oin/ to ban reli/ion(
How are they /oin/ to sto! the e&!ression of reli/ious loathin/ hatred and bi/otry(
I s!eak as someone who is a fairly re/ular tar/et of this and not 3ust in rhetorical form. I have
been the tar/et of many death threats I know within a short distance of where I am currently
livin/ in Washin/ton I can name two or three !eo!le whose names you !robably know who
can4t /o anywhere now without a security detail because of the criticisms they4ve made on one
monotheism in !articular. 0nd this is in the ca!ital city of the =nited States.
So I know what I4m talkin/ about and I also have to notice that the sort of !eo!le who rin/
me u! and say they know where my children /o to school Cand they certainly know what my
home number is and where I live and what they are /oin/ to do to them and to my wife and to
meC and whom I have to take seriously because they already have done it to !eo!le I know
6?
are 3ust the !eo!le who are /oin/ to seek the !rotection of the hate s!eech law if I say what I
think about their reli/ion which I am now /oin/ to do.
$ecause I don4t have any what you mi/ht call ethnic bias I have no /rud/e of that sort I can
rub alon/ with !retty much anyone of any Cas it wereC ori/in or se&ual orientation or
lan/ua/e /rou! C e&ce!t !eo!le from Qorkshire of course who are com!letely untakableC and
I4m be/innin/ to resent the confusion that4s bein/ im!osed on us now Cand there was some of
it this evenin/C between reli/ious belief blas!hemy ethnicity !rofanity and what one mi/ht
call Lmulticultural etiBuetteM.
It4s Buite common these days ;for e&am!le< for !eo!le now to use the e&!ression LantiJ
Islamic racismM as if an attack on a reli/ion was an attack on an ethnic /rou!. The word
Islamo!hobia in fact is be/innin/ to acBuire the o!!robrium that was once reserved for racial
!re3udice. This is a subtle and very nasty insinuation that needs to be met head on.
Who said Lwhat if #alwell says he hates fa/s( What if !eo!le act u!on that(M The $ible says
you have to hate fa/s. If #alwell says he is sayin/ it because the $ible says so he4s ri/ht. Qes it
mi/ht make !eo!le /o out and use violence. What are you /oin/ to do about that( Qou4re u!
a/ainst a /rou! of !eo!le who will say Lyou !ut your hands on our $ible and we4ll call the hate
s!eech !oliceM. Now what are you /oin/ to do when you4ve du/ that tra! for yourself(
Somebody said that the antiSemitism and Iristallnacht in @ermany was the result of ten
years of :ewbaitin/. Ten years( Qou must be 3okin/F It4s the result of two thousand years of
Dhristianity based on one verse of one cha!ter of St. :ohn4s @os!el which led to a !o/rom
after every 9aster sermon every year for hundreds of years. $ecause it claims that the :ews
demanded the blood of Dhrist be on the heads of themselves and all their children to the
remotest /eneration. That4s the warrant and license for and incitement to anti:ewish
!o/roms. What are you /oin/ to do about that( Where is your !iddlin/ subsection now( 'oes
it say St. :ohn4s @os!el must be censored(
'o I who have read #reud and know what the future of an illusion really is and know that
reli/ious belief is ineradicable as lon/ as we remain a stu!id !oorly evolved mammalian
s!ecies think that some Danadian law is /oin/ to solve this !roblem( AleaseF
No our !roblem is this. our !refrontal lobes are too small. 0nd our adrenaline /lands are too
bi/. 0nd our thumb%fin/er o!!osition isn4t all that it mi/ht be. 0nd we4re afraid of the dark
and we4re afraid to die and we believe in the truths of holy books that are so stu!id and so
fabricated that a child can Cand all children do as you can tell by their BuestionsC actually see
throu/h them. 0nd I think it should be Creli/ionC treated with ridicule and hatred and
contem!t. 0nd I claim that ri/ht.
Now let4s not dance around not all monotheisms are e&actly the same at the moment.
They4re all based on the same illusion they4re all !la/iarisms of each other but there is one in
!articular that at the moment is !ro!osin/ a serious menace not 3ust to freedom of s!eech
and freedom of e&!ression but to Buite a lot of other freedoms too. 0nd this is the reli/ion
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that e&hibits the horrible trio of selfhatred selfri/hteousness and self!ity. I am talkin/ about
militant Islam.
@lobally it4s a /i/antic !ower. It controls an enormous amount of oil wealth several lar/e
countries and states with an enormous fortune it4s !um!in/ the ideolo/y of Wahhabism and
Salafism around the world !oisonin/ societies where it /oes ruinin/ the minds of children
stultifyin/ the youn/ and its madrases trainin/ !eo!le in violence makin/ a culture death
and suicide and murder. That4s what it does /lobally it4s Buite stron/.
In our society it !oses as a crin/in/ minority whose faith you mi/ht offend which deserves all
the !rotection that a small and vulnerable /rou! mi/ht need.
Now it makes Buite lar/e claims for itself. 'oesn4t it( It says it4s the final revelation. It says
that @od s!oke to one illiterate businessman in the 0rabian Aeninsula three times throu/h an
archan/el and the resultin/ material (which as you can see when you read it is lar/ely ;and
ine!tly< !la/iariEed from the 7ld and the New Testament ; ... < ) is to be acce!ted as a divine
revelation and as the final and unalterable one and those who do not acce!t this revelation
are fit to be treated as cattle infidels !otential chattel slaves and victims.
Well I tell you what I don4t think "ohammad ever heard those voices. I don4t believe it. 0nd
the likelihood that I4m ri/ht as o!!osed to the likelihood that a businessman who couldn4t
read had bits of the 7ld and New Testament redictated to him by an archan/el I think !uts
me much more near the !osition of bein/ ob3ectively correct.
$ut who is the one under threat( The !erson who !ro!a/ates this and says LI4d better listen
because if I don4t I4m in dan/erM or me who says LNo I think this is so silly you could even
!ublish a cartoon about itM(
0nd u! /o the !lacards and u! /o the yells and the howls and the screams L$ehead those>M
Cthis is in 8ondon this is in Toronto this is in New Qork it is ri/ht in our midst nowC
L$ehead those $ehead those who cartoon IslamM.
'o they /et arrested for hate s!eech( No. "i/ht I /et in trouble for sayin/ what I4ve 3ust said
about the !ro!het "ohammad( Qes I mi/ht.
Where are your !riorities ladies and /entlemen( Qou4re /ivin/ away what4s most !recious in
your own society and you4re /ivin/ it away without a fi/ht and you4re even !raisin/ the
!eo!le who want to deny you the ri/ht to resist it. Shame on you while you do this. "ake the
best use of the time you4ve /ot left. This is really serious.
Now if you look anywhere you like
Cbecause ;toni/ht< we had invocations of a rather drivellin/ and sickly kind of our sym!athy.
Lwhat about the !oor fa/s what about the !oor :ews the wretched women who can4t take the
abuse and the slaves and their descendants and the tribes who didn4t make it and were told
that land was forfeit>MC
<A
look anywhere you like in the world for slavery for the sub3ection of women as chattel for the
burnin/ and flo//in/ of homose&uals for ethnic cleansin/ for antiSemitism for all of this
you look no further than a famous book that4s on every !ul!it in this city and in every
syna/o/ue and in every mosBue.
0nd then 3ust see whether you can sBuare the fact that the force that is the main source of
hatred is also the main caller for censorshi!. 0nd when you4ve realiEed that you4re therefore
this evenin/ faced with a /i/antic false antithesis I ho!e that still won4t sto! you from /ivin/
the motion before you the resoundin/ endorsement that it deserves. Thanks awfully.
4Ni/ht ni/ht. Stay cool.
;sBuare brackets indicate minor edits made for clarity durin/ the transcri!t from a video
recordin/<
:&# )hristopher 'itchens demolishes the myth that 3uslims have
any special ri%hts to block free speech
Some "uslims have a tendency to use PI789ND9 when they think their 'reli/ious beliefs' are
affected. Here is Hitechens demolishin/ the idea that Islam or 0NQ reli/ion or 0NQ7N9 has
any ri/ht to violence to defend their beliefs from satire%criticism. I'm #=88Q with Dhisto!her
Hitchens on this (with re/ard to 0NQ reli/ion or 0NQ idea).
:&: )hristopher 'itchens objectin% to attempts to block publication
of Satanic .erses in =S+
:ust like Aen/uin in India has buckled because of the Indian /overnment laws that curb free
s!eech =S !ublishers were runnin/ scared after the Iran fatwa a/ainst 2ushdie. In this
interview of that time ()-*-) Hitchens firmly asserts the !rimacy of freedom of s!eech.
:&9 Aein% offended %ives no ri%ht to violent reprisal& )hristopher
'itchens4 once a%ain&
Hitchens outlines clearly how he is 7##9N'9' by those who !revent others' ri/ht to free
s!eech. $ut bein/ offended /ives N7 7N9 any ri/hts of re!risal !articularly violent re!risal.
The volume on this section was not very /ood (on my s!eaker) so make it loud enou/h.
:&> )hristopher 'itchens shows Shashi Tharoor the meanin% of
free speech& ,ot cowardice it is&
Here's Hitchens makin/ some fundamental !oints in favour of liberty. Shashi is bothered
about Klaw and orderK. Well if "uslims are allowed to use violence and /et away with it
they'll use "729 7# IT.
0 bully "=ST be brou/ht to a halt. If "uslims use violence when they feel KoffendedK (like the
PHA has started doin/) let them be !icked u! and !ut behind bars for the rest of their life.
A92I7'. What's the !oint of /ivin/ the state a mono!oly over the use of force if it is unable to
ST7A violence(
Enough is enough0
;See the video on my blo/<
:&B + rousin% defence of +AS-/=T0 freedom of speech by
5ichard Dawkins& /et 'induism not %enerate 3ad 3ullahs4 as
well&
This is a mustJlisten. 0 clearer and more rousin/ defence of free s!eech rarely heard.
I mean T7 7##9N' the "ad "ullahs of all reli/ions. 0lon/ with 2ichard 'awkins I
'IS29SA9DT TH9". I disres!ect those who will burn%shred%!ul! books or threaten or in
any form or sha!e (includin/ behind the shelter of law) take resource to violence. ;See video
on my blo/<
:&; ,oam )homsky describes how freedom of speech in =S+ has
been I,)50+SI,G throu%h activism&
Noam Dhomsky has written some e&cellent work on freedom of s!eech e./.
LAeo!le have the ri/ht of freedom and e&!ression whatever their views that the im!ortance of
defendin/ these ri/hts is all the /reater when the !erson e&!resses views that are abhorrent to
virtually everyone. I do defend the ri/ht of #aurisson to !ublish falsehoods as I defend the
ri/ht of anyone else to do so includin/ Arofessor Smokler. M ;Noam Dhomsk Se!tember )-*5
'aily Damera ($oulder D7) 8etter to the editor written in res!onse to a letter commentin/ on
a nationallyJsyndicated column by Nat Hentoff<
KIf you believe in freedom of s!eech you believe in freedom of s!eech for views you don't like.
Stalin and Hitler for e&am!le were dictators in favor of freedom of s!eech for views they
liked only. If you're in favor of freedom of s!eech that means you're in favor of freedom of
s!eech !recisely for views you des!ise.M ;Noam Dhomsky "anufacturin/ Donsent. Noam
Dhomsky and the "edia )--+<
</
Here he is describin/ the evolution of freedom of s!eech in the =S0. 7nly from the )-H,s did
"0:72 Su!reme Dourt 3ud/ements defendin/ liberty of s!eech start comin/ out. 8ike I've
described in '7# the inter!retations of ancient documents are increasin/ly bein/ reJ
invented in favour of /reater liberty.
In re/ard to freedom of s!eech the =S0 remains the current world leader. ;See the video on
my blo/<
:&"! 3r Aean1s ST5-,G advocacy of absolute freedom of speech
75owan +tkinson8
"r $ean offers some e&cellent ar/uments in favour of free s!eech. When all these ar/uments
are added u! a stron/ combined ar/ument for 0$S78=T9 freedom of s!eech can be
assembled.
T20NSD2IAT
This is from youtube's automatic transcri!t system.I've tried fi&in/ the first few !aras but no
time. If you can hel! fi& this !lease do so and I'll re!lace with the correct version.
0t my startin/ !oint when it comes to the consideration on any issue relatin/ to free s!eech is
my belief that the second most !recious thin/ in life is the ri/ht to e&!ress yourself freely. The
most !recious thin/ in life I think is food in your mouth and the third is !recious is a roof over
your head .
$ut a fi&ture for me in the number two slot is free e&!ression 3ust below need to sustain life
itself that is because I have en3oyed free e&!ression in this country all my !rofessional life and
fully e&!ect to continue to do so. Aersonally I sus!ect I am hi/hly unlikely to be arrested for
whatever laws e&ist to contain free e&!ression because of the !rivile/ed !osition that is
afforded to those with a !ublic !rofile.
So my concerns are less for myself and more for those more vulnerable because they're lower
!rofile like the !erson arrested in 7&ford for callin/ a !olice force G/ay4 or a teena/er arrested
for callin/ the Dhurch of Scientolo/y a Gcult4 or the cafe owner arrested for dis!layin/
!assa/es from the $ible on the TP screen.
I remember that I had been here before in a fictional conte&t. I ran a show called not the Nine
7'Dlock News years a/o and we did a sketch where @riff 2hys :ones !layed constable sava/e a
manifestly racist !olice officer to whom I as his station commander is /ivin/ a dressin/Jdown
for arrestin/ a black man on a whole strin/ ridiculous trum!edJu! ludicrous char/es. The
char/es include. walkin/ on the cracks in the !avement walkin/ in a loud shirt in a builtJu!
area and one of my favorites C Lwalkin/ around all over the !laceM. He was also arrested for
urinatin/ in a !ublic convenience and lookin/ at me in way. who would have thou/ht that we
would end u! with the law that would allow life to imitate art so e&ec I read somewhere
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defender of the status Buo claimin/ that the fact that the /ay course case was dro!!ed after
the arrested man refused to !ay to !ay the fine and that the scientolo/y case was also dro!!ed
at some !oint durin/ the court !rocess was !roof that the law was workin/ well i/norin/ fact
that the only reason these cases were dro!!ed was because of the !ublicity that they had
attracted the !olice sense the ridicule was 3ust around the corner and withdrew their actions
but what about the thousands about the case but did not en3oy the o&y/en of !ublicity that
weren't Buite ludicrous and not to attract media attention even for those actions that were
withdrawn !eo!le were arrested Buestioned taken to court and then release you know that is
the law workin/ !ro!erly that is censorious serve the most intimidatin/ - /uaranteed to have
as load is says the chillin/ effect on free e&!ression and free !rotest !arliament's :oint
Dommittee on Human 2i/hts summariEed as you may know this whole issue very well by say
while arrestin/ a !rotest for usin/ threatenin/ or abusive s!eech made a de!endin/ on the
circumstances be a !ro!ortionate res!onse we do not think that lan/ua/e or behaviour that is
merely insultin/ should ever be criminaliEed in this way but clear !roblem with the outlawin/
you've been so is that too many thin/s can be inter!reted as such criticism is easily construed
isn't sold by certain !arties ridicule easily construed as in so suck ass unfavorable could
com!arison merely statin/ an alternative !oint of view to the orthodo&y can be inter!reted as
in soil and because so many thin/s can be inter!reted as in so it isn't sur!risin/ that's only
thin/s ha!!y as the e&am!les I talked about earlier show althou/h the law and the discussion
has been on the statute book for over +5 years it is indicative over culture that is takin/ hold
of the !ro/rams that successive /overnments that with the reasonable and wellJintentioned
ambition to contain obno&ious elements in society has created a society of an e&traordinarily
authoritarian and controllin/ nature that is what you mi/ht call the new intolerance a new but
intense desire to /a/ uncomfortable voices descent I am N7T intolerance say many !eo!le say
many softly s!oken hi/hlyJeducated liberalJminded i've only intolerant the vid tolerance
mmm and !eo!le tend to not say she is and yes wise words wise words if you think about this
su!!osedly inar/uable statement for lon/er than five seconds you realiEe that all it is
advocatin/ is the re!lacement of one kind of intolerance with another which to be doesn't
re!resent any kinda !ro/ress at all underlined !re3udices in3ustices all resentments and not
address by arrestin/ !eo!le they are addressed by the issues bein/ a u! use and dealt with
!referably outside the le/al !rocess for me the best way to increase society's resistance to
insultin/ or offensive s!eech is to allow a lot more of it as with childhood disease you been
better resist those /yms to which 7lym!ian e&!ose we need to build our community takin/
offense so that we can deal with the issue the !erfectly 3ustified criticism can raise u! !riority
should be to deal with the messa/e not the messen/er as Aresident 7bama said in an address
to the =nited Nations only a month so laudable efforts to restrict s!eech can become a tool to
silence critics or o!!ress minorities the stron/est wea!on a/ainst hateful s!eech is not
re!ression it is more s!eech and that's the essence of my thesis more s!eech if we want to
robust society we need more robust dialo/ue and that must include the ri/ht to insult or to
offend and as even if as 8ord this is you know the freedom to be an offensive is no freedom at
all the re!eal it this word in this clause will be only a small ste! but it would like to be a
critical one in what should be a lon/er term !ro3ect two !ools and slowly rewind cree!in/
cultural since stories it is a small skirmish in the battle in my o!inion to deal with what sir
Salman 2ushdie refers to as the outra/e industry selfJa!!ointed of it is that the !ublic /ood
<6
encoura/in/ media still and ra/e to which the !olice feel under terrible !ressure to react a
news!a!er rin/s at Scotland Qard someone has said somethin/ sli/htly insultin/ on Twitter
about someone who we think a national treasure what you're /oin/ to do them the !olice
!anic in the scramble around and then /ras!ed the most ina!!ro!riate lifeline all section 5
the Aublic 7rder 0ct that thin/ where you arrest anybody sayin/ anythin/ that mi/ht be
construed by anyone else has been sold you know they don't seem to need a real victim they
need only to make the 3ud/ment that somebody could have been offended if they had the
already what has been said the most ludicrous de/ree left she the storms that surround
Twitter and #acebook comment racism fascinatin/ issues about free s!eech which we haven't
really yet come to terms with firstly that we all have to take res!onsibility to what we say
which is Buite a /ood this to learn but secondly we learned how a!!allin/ly !rickly and
intolerance society has become that even the mildest adverse comment the law should not be
* and a bit this new intolerance free s!eech can only suffer if the law !revents us from dealin/
with its conseBuence I offer my wholehearted su!!ort to the reform H5 cam!ai/n thank you
very much
:&"" 3ark Steyn on +AS-/=T0 free speech& +nd how radical
Islam is shuttin% down speech all over the world&
I wrote about 3ark Steyn a while a%o 7here8&
3ark Steyn has done a lot for free speech& Do subscribe to his twitter
account&
'is main book re%ardin% free speech is* /i%hts -ut* Islam4 ree Speech +nd The
Twili%ht -f The $est L,ook U +ma@onM& 'avenNt read it but hereNs a review&
/isten to him*
3ark Steyn on ree Speech at the IP+ from Institute of Public +ffairs on imeo&
+nd this Lsee blo%M
It was e2tremist Islam that shut down speech in Aritish India& It is time for
I,DI+ T- 50+SS05T ITS )-33IT30,T T- +AS-/=T0 500 SP00)'
+,D T'5-$ +$+I T'0 S'+)?/0S - 5+DI)+/ IS/+3&
+lso many more on youtube
:&"2 +brams clarifies the increasin%ly +AS-/=T0 nature of
freedom of speech in =S+
This summary of the le/al !osition re. the #irst 0mendment in =S0 and the witherin/ away
of libel for a number of !eo!le by #loyd 0brams. This is !recisely what we need in India.
9ven more. ;See video on my blo/<
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:&"3 Custice 'u%o Alack1s Cames 3adison /ecture* +ssertin%
+AS-/=T0 freedom of speech
I came across this lecture which I think is worth makin/ note of in full. It was !ublished in the
New Qork =niversity 8aw 2eview Pol. ?5 0!ril )-H,. Note !articularly its insistence on absolute
freedom of s!eech (i.e. no 80W to abrid/e s!eech). Note clearly the INT9NT of "adison whose
ori/inal draft of the #irst 0mendment is cited in this talk. I'll annotate in the comin/ weeks. $ut
!lease note the key annotations re/ardin/ freedom of s!eech.
TH9 $I88 7# 2I@HTS())
H=@7 8. $80DI(+)
I am honored to be the first s!eaker in your new annual series of :ames "adison lectures. The title
of the series su//ested the title of my talk. The $ill of 2i/hts. "adison lived in the stirrin/ times
between )15, and )*?H durin/ which the Dolonies declared fou/ht for and won their
inde!endence from 9n/land. They then set u! a new national /overnment dedicated to 8iberty and
:ustice. "adison's role in creatin/ that /overnment was such a ma3or one that he has since been
/enerally referred to as the #ather of our Donstitution. He was a most influential member of the
Ahiladel!hia Donvention that submitted the Donstitution to the !eo!le of the statesO he alone ke!t
a com!rehensive re!ort of the daily !roceedin/s of the DonventionO he was an active member of
the Pir/inia Donvention that ado!ted the Donstitution after a bitter fi/htO finally as a member of
the #irst Don/ress he offered and s!onsored throu/h that body !ro!osals that became the first ten
amendments /enerally thou/ht of as our $ill of 2i/hts. #or these and many other reasons
"adison's words are an authentic source to hel! us understand the Donstitution and its $ill of
2i/hts. In the course of my discussion I shall have occasion to refer to some of the many thin/s
"adison said about the meanin/ of the Donstitution and the first ten amendments. In doin/ so I
shall refer to statements made by him durin/ the $ill of 2i/hts debates as re!orted in the 'nnals
of Con"ress/ There has been doubt cast u!on the accuracy of the re!orts of Don/ressional debates
and transactions in the 'nnals. I am assured by "r. Irvin/ $rant the eminent bio/ra!her of
"adison that "adison's discussions of the $ill of 2i/hts as re!orted in the 'nnals are shown to be
correct by "adison's own manuscri!ts on file in the 8ibrary of Don/ress.(?)
What is a bill of ri/hts( In the !o!ular sense it is any document settin/ forth the liberties of the
!eo!le. I !refer to think of our $ill of 2i/hts as includin/ all !rovisions of the ori/inal Donstitution
and 0mendments that !rotect individual liberty by barrin/ /overnment from actin/ in a !articular
area or from actin/ e&ce!t under certain !rescribed !rocedures. I have in mind such clauses in the
body of the Donstitution itself as those which safe/uard the ri/ht of habeas cor!us forbid bills of
attainder and e& !ost facto laws /uarantee trial by 3ury and strictly define treason and limit the
way it can be tried and !unished. I would certainly add to this list the last constitutional
!rohibition in 0rticle Si& that Kno reli/ious Test shall ever be reBuired as a Wualification to any
7ffice or !ublic Trust under the =nited States.K
I shall s!eak to you about the $ill of 2i/hts only as it bears on !owers of the #ederal @overnment.
7ri/inally the first ten amendments were not intended to a!!ly to the states but as the Su!reme
Dourt held in )*?? in arron %/ altimore)012 were ado!ted to Buiet fears e&tensively entertained
that the !owers of the bi/ new national /overnment Kmi/ht be e&ercised in a manner dan/erous to
liberty.K I believe that by virtue of the #ourteenth 0mendment the first ten amendments are now
<=
a!!licable to the state a view I stated in'damson %/ California.(5) I adhere to that view. In this
talk however I want to discuss only the e&tent to which the $ill of 2i/hts limits the #ederal
@overnment.
In a!!lyin/ the $ill of 2i/hts to the #ederal @overnment there is today a shar! difference of views
as to how far its !rovisions should be held to limit the lawmakin/ !ower of Don/ress. How this
difference is finally resolved will in my 3ud/ment have farJreachin/ conseBuences u!on our
liberties. I shall first summariEe what those different views are.
Some !eo!le re/ard the !rohibitions of the Donstitution even its most uneBuivocal commands as
mere admonitions which Don/ress need not always observe. This view!oint finds many different
verbal e&!ressions. #or e&am!le it is sometimes said that Don/ress may abrid/e a constitutional
ri/ht if there is a clear and !resent dan/er that the free e&ercise of the ri/ht will brin/ about a
substantive evil that Don/ress has authority to !revent. 7r it is said that a ri/ht may be abrid/ed
where its e&ercise would cause so much in3ury to the !ublic that this in3ury would outwei/h the
in3ury to the individual who is de!rived of the ri/ht. 0/ain it is sometimes said that the $ill of
2i/hts' /uarantees must Kcom!eteK for survival a/ainst /eneral !owers e&!ressly /ranted to
Don/ress and that the individual's ri/ht must if outwei/hed by the !ublic interest be subordinated
to the @overnment's com!etin/ interest in denyin/ the ri/ht. 0ll of these formulations and more
with which you are doubtless familiar rest at least in !art on the !remise that there are no
KabsoluteK !rohibitions in the Donstitution and that all constitutional !roblems are Buestions of
reasonableness !ro&imity and de/ree. This view comes close to the 9n/lish doctrine of le/islative
omni!otence Bualified only by the !ossibility of a 3udicial veto if the Su!reme Dourt finds that a
con/ressional choice between Kcom!etin/K !olicies has no reasonable basis.
I cannot acce!t this a!!roach to the $ill of 2i/hts. It is my belief that there areHabsolutesH
in our 1ill of !ights: and that they were put then on purpose by men who knew what
words meant: and meant their prohibitions to be Habsolutes0H The whole history and
back/round of the Donstitution and $ill of 2i/hts as I understand it belies the assum!tion or
conclusion that our ultimate constitutional freedoms are no more than our English
ancestors had when they came to this new land to get new freedoms0 The historical and
!ractical !ur!oses of a $ill of 2i/hts the very use of a written constitution indi/enous to 0merica
the lan/ua/e the #ramers used the kind of threeJde!artment /overnment they took !ains to set
u! all !oint to the creation of a government which was denied all power to do some
things under any and all circumstances and all !ower to do other thin/s e&ce!t !recisely in
the manner !rescribed. In this talk I will state some of the reasons why I hold this view. In doin/
so however I shall not attem!t to discuss the wholly different and com!le& !roblem of the
mar/inal sco!e of each individual amendment as a!!lied to the !articular facts of !articular cases.
#or e&am!le there is a Buestion as to whether the #irst 0mendment was intended to !rotect
s!eech that courts find Kobscene.K I shall not stress this or similar differences of construction nor
shall I add anythin/ to the views I e&!ressed in the recent case of Smith %/ California.(H) I am
!rimarily discussin/ here whether liberties admittedly covered by the $ill of 2i/hts can
nevertheless be abrid/ed on the /round that a su!erior !ublic interest 3ustifies the abrid/ment. I
think the $ill of 2i/hts made its safe/uards su!erior.
Today most 0mericans seem to have for/otten the ancient evils which forced their ancestors to flee
to this new country and to form a /overnment stri!!ed of old !owers used to o!!ress them. $ut
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the 0mericans who su!!orted the 2evolution and the ado!tion of our Donstitution knew firsthand
the dan/ers of tyrannical /overnments. They were familiar with the lon/ e&istin/ !ractice of
9n/lish !ersecutions of !eo!le wholly because of their reli/ious or !olitical beliefs. They knew that
many accused of such offenses had stood hel!less to defend themselves before biased le/islators
and 3ud/es.
:ohn 8ilburne a Auritan dissenter is a cons!icuous e&am!le.(1) He found out the hard way that a
citiEen of 9n/land could not /et a court and 3ury trial under 9n/lish law if Aarliament wanted to try
and !unish him in some kind of summary and unfair method of its own. Time and time a/ain
when his reli/ious or !olitical activities resulted in criminal char/es a/ainst him he had demanded
3ury trials under the Klaw of the landK but had been refused. 'ue to KtrialsK either by Aarliament its
le/islative committees or courts subservient to the Iin/ or to Aarliament a/ainst all of which he
vi/orously !rotested as contrary to Kdue !rocessK or Kthe law of the landK 8ilburne had been
whi!!ed !ut in the !illory sent to !rison heavily fined and banished from 9n/land all its islands
and dominions under !enalty of death should he return. This last sentence was im!osed by a
sim!le 0ct of Aarliament without any semblance of a trial. =!on his defiant return he was arrested
and sub3ected to an unfair trial for his life. His chief defense was that the Aarliamentary conviction
was a nullity as a denial of Kdue !rocess of lawK which he claimed was /uaranteed under "a/na
Dharta the )H+* Aetition of 2i/ht and statutes !assed to carry them out. He also challen/ed the
!ower of Aarliament to enact bills of attainder on the same /roundsTdue !rocess of law. 8ilburne
re!eatedly and vehemently contended that he was entitled to notice an indictment and court trial
by 3ury under the known laws of 9n/landO that he had a ri/ht to be re!resented by counsel that he
had a ri/ht to have witnesses summoned in his behalf and be confronted by. the witnesses a/ainst
himO that he could not be com!elled to testify a/ainst himself. When 8ilburne finally secured a
3ury it coura/eously acBuitted him after which the 3ury itself was severely !unished by the court.
Arom!ted lar/ely by the desire to save 9n/lishmen from such le/islative mockeries of fair trials
8ilburne and others stron/ly advocated ado!tion of an K0/reement of the Aeo!leK which contained
most of the !rovisions of our !resent $ill of 2i/hts. That 0/reement would have done away with
Aarliamentary omni!otence. 8ilburne !ointed out that the basic defect of "a/na Dharta and
statutes com!lementin/ it was that they were not bindin/ on Aarliament since Kthat which is done
by one Aarliament as a Aarliament may be undone by the ne&t Aarliament. but an 0/reement of
the Aeo!le be/un and ended amon/st the Aeo!le can never come 3ustly within the Aarliament's
co/niEance to destroy.K(*) The !ro!osed K0/reement of the Aeo!leK 8ilburne ar/ued could be
chan/ed only by the !eo!le and would bind Aarliament as the su!reme Klaw of the land.K This
same idea was !icked u! before the ado!tion of our #ederal Donstitution by "assachusetts and
New Ham!shire which ado!ted their constitutions only after !o!ular referendums. 7ur #ederal
Donstitution is lar/ely attributable to the same current of thinkin/.
=nfortunately our own colonial history also !rovided am!le reasons for !eo!le to be afraid to vest
too much !ower in the national /overnment. There had been bills of attainder hereO women had
been convicted and sentenced to death as KwitchesKO Wuakers $a!tists and various Arotestant
sects had been !ersecuted from time to time. 2o/er Williams left "assachusetts to breathe the free
air of new 2hode Island. Datholics were barred from holdin/ office in many !laces. Test oaths were
reBuired in some of the colonies to bar any but KDhristiansK from holdin/ office. In New 9n/land
Wuakers suffered death for their faith. $a!tists were sent to 3ail in Pir/inia for !reachin/ which
<?
caused "adison while a very youn/ man to de!lore what he called that Kdiabolical hellJconceived
!rinci!le of !ersecution.K(-)
In the li/ht of history therefore it is not sur!risin/ that when our Donstitution was ado!ted
without s!ecific !rovisions to safe/uard cherished individual ri/hts from invasion by the
le/islative at well as the e&ecutive and 3udicial de!artments of the National @overnment a loud
and irresistible clamor went u! throu/hout the country. These !rotests were so stron/ that the
Donstitution was ratified by the very narrowest of votes in some of the states. It has been said and
I think correctly that had there been no /eneral a/reement that a su!!lementary $ill of 2i/hts
would be ado!ted as soon as !ossible after Don/ress met the Donstitution would not have been
ratified. It seems clear that this wides!read demand for a $ill of 2i/hts was due to a common fear
of !olitical and reli/ious !ersecution should the national le/islative !ower be left unrestrained as it
was in 9n/land.
The form of /overnment which was ordained and established in )1*- contains certain uniBue
features which reflected the #ramers' fear of arbitrary /overnment and which clearly indicate an
intention absolutely to limit what Don/ress could do. The first of these features is that our
Donstitution is written in a sin/le document. Such constitutions are familiar today and it is not
always remembered that our country was the first to have one. Dertainly one !ur!ose of a written
constitution is to define and therefore more s!ecifically limit /overnment !owers. 0n allJ!owerful
/overnment that can act as it !leases wants no such constitutionJunless to fool the !eo!le. 9n/land
had no written constitution and this once !roved a source of tyranny as our ancestors well knew.
:efferson said about this de!arture from the 9n/lish ty!e of /overnment. K7ur !eculiar security is
in the !ossession of a written Donstitution. 8et us not make it a blank !a!er by construction.K(),)
0 second uniBue feature of our @overnment is a Donstitution su!reme over the le/islature. In
9n/land statutes "a/na Dharta and later declarations of ri/hts had for centuries limited the
!ower of the Iin/ but they did not limit the !ower of Aarliament. 0lthou/h commonly referred to
as a constitution they were never the Ksu!reme law of the landK in the way in which our
Donstitution is much to the re/ret of statesmen like Aitt the elder. Aarliament could chan/e this
9n/lish KDonstitutionKO Don/ress cannot chan/e ours. 7urs can only be chan/ed by amendments
ratified by threeJfourths of the states. It was one of the /reat achievements of our Donstitution that
it ended le/islative omni!otence here and !laced all de!artments and a/encies of /overnment
under one su!reme law.
0 third feature of our @overnment e&!ressly desi/ned to limit its !owers was the division of
authority into three coordinate branches none of which was to have su!remacy over the others.
This se!aration of !owers with the checks and balances which each branch was /iven over the
others was desi/ned to !revent any branch includin/ the le/islative from infrin/in/ individual
liberties safe/uarded by the Donstitution.
#inally our Donstitution was the first to !rovide a really inde!endent 3udiciary. "oreover as the
Su!reme Dourt held in Marbury %/ Madison)0332 correctly I believe this 3udiciary has the !ower to
hold le/islative enactments void that are re!u/nant to the Donstitution and the $ill of 2i/hts. In
this country the 3udiciary was made inde!endent because it has I believe the !rimary
res!onsibility and duty of /ivin/ force and effect to constitutional liberties and limitations u!on
the e&ecutive and le/islative branches. :ud/es in 9n/land were not always inde!endent and they
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could not hold Aarliamentary acts void. DonseBuently 9n/lish courts could not be counted on to
!rotect the liberties of the !eo!le a/ainst invasion by the Aarliament as many unfortunate
9n/lishmen found out such as Sir Walter 2alei/h who was e&ecuted as the result of an unfair
trial and a lawyer named William Arynne whose ears were first cut off by court order and who
subseBuently by another court order had his remainin/ ear stum!s /ou/ed out while he was on a
!illory. Arynne's offenses were writin/ books and !am!hlets.
0ll of the uniBue features of our Donstitution show an underlyin/ !ur!ose to create a new kind of
limited /overnment. Dentral all of the #ramers of the $ill of 2i/hts was the idea that since
/overnment !articularly the national /overnment newly created is a !owerful institution its
officialsJall of themJmust be com!elled to e&ercise their !owers within strictly defined boundaries.
0s "adison told Don/ress the $ill of 2i/hts' limitations !oint Ksometimes a/ainst the abuse of the
9&ecutive !ower sometimes a/ainst the 8e/islative and in some cases a/ainst the community
itselfO or in other words a/ainst the ma3ority in favor of the minority.K()+)"adison also e&!lained
that his !ro!osed amendments were intended Kto limit and Bualify the !owers of @overnment by
e&ce!tin/ out of the /rant of !ower those cases in which the @overnment ou/ht not to act or to act
only in a !articular mode.K()?) In the li/ht of this !ur!ose let us now turn to the lan/ua/e of the first
ten amendments to consider whether their !rovisions were written as mere admonitions to
Don/ress or as absolute commands !roceedin/ for convenience from the last to the first.
The last two 0mendments the Ninth and Tenth are /eneral in character but both em!hasiEe the
limited nature of the #ederal @overnment. Number Ten restricts federal !ower to what the
Donstitution dele/ates to the central /overnment reservin/ all other !owers to the states or to the
!eo!le. Number Nine attem!ts to make certain that enumeration of some ri/hts must Knot be
construed to deny or dis!ara/e others retained by the !eo!le.K The use of the words Kthe !eo!leK
in both these 0mendments stron/ly em!hasiEes the desire of the #ramers to !rotect individual
liberty.
The Seventh 0mendment states that KIn Suits at common law where the value in controversy shall
e&ceed twenty dollars the ri/ht of trial by 3ury shall be !reserved . . . . K This lan/ua/e clearly
reBuires that 3ury trials must be afforded in the ty!e of cases the 0mendment describes. The
0mendment /oes on in eBually uneBuivocal words to command that Kno fact tried by a 3ury shall
be otherwise reJe&amined in any Dourt of the =nited States than accordin/ to the rules of the
common law.K
0mendments #ive Si& and 9i/ht relate chiefly to the !rocedures that /overnment must follow
when brin/in/ its !owers to bear a/ainst any !erson with a view to de!rivin/ him of his life
liberty or !ro!erty.
The 9i/hth 0mendment forbids Ke&cessive bailK Ke&cessive finesK or the infliction of Kcruel or
unusual !unishments.K This is one of the less !recise !rovisions. The courts are reBuired to
determine the meanin/ of such /eneral terms as Ke&cessiveK and Kunusual.K $ut surely that does
not mean that admittedly Ke&cessive bailK Ke&cessive finesK or Kcruel !unishmentsK could be
3ustified on the /round of a Kcom!etin/K !ublic interest in carryin/ out some /enerally /ranted
!ower like that /iven Don/ress to re/ulate commerce.
=A
0mendment Si& !rovides that in a criminal !rosecution an accused shall have a Ks!eedy and !ublic
trial by an im!artial 3ury of the State and district wherein the crime shall have been committed
which district shall have been !reviously ascertained by law and to be informed of the nature and
cause of the accusationO to be confronted with the witnesses a/ainst himO to have com!ulsory
!rocess for obtainin/ witnesses in his favor and have the 0ssistance of Dounsel for his defence.K
0ll of these reBuirements are cast in terms both definite and absolute. Trial by 3ury was also
/uaranteed in the ori/inal Donstitution. The additions here doubtless !rom!ted by 9n/lish trials
of 0mericans away from their homes are that a trial must be Ks!eedy and !ublicK Kby an im!artial
3uryK and in a district which Kshall have been !reviously ascertained by law.K If there is any one
thin/ that is certain it is that the #ramers intended both in the ori/inal Donstitution and in the
Si&th 0mendment that !ersons char/ed with crime by the #ederal @overnment have a ri/ht to be
tried by 3ury. Su!!ose 3uries be/an acBuittin/ !eo!le Don/ress thou/ht should be convicted. Dould
Don/ress then !rovide some other form of trial say by an administrative a/ency or the military
where convictions could be more readily and certainly obtained if it thou/ht the safety of the
nation so reBuired( How about secret trials( $ypartial 3uries( Dan it be that these are not absolute
!rohibitions(
The Si&th 0mendment reBuires notice of the cause of an accusation confrontation by witnesses
com!ulsory !rocess and assistance of counsel. The e&!erience of centuries has demonstrated the
value of these !rocedures to one on trial for crime. 0nd this 0mendment !ur!orts to /uarantee
them by clear lan/ua/e. $ut if there are no absolutes in the $ill of 2i/hts these /uarantees too can
be taken away by Don/ress on findin/s that a com!etin/ !ublic interest reBuires that defendants
be tried without notice without witnesses without confrontation and without counsel.
The #ifth 0mendment !rovides.
No !erson shall be held to answer for a ca!ital or otherwise infamous crime unless on a
!resentment or indictment of a @rand 3ury e&ce!t in cases arisin/ in the land or naval forces or in
the "ilitia when in actual service in time of War or !ublic dan/erO nor shall any !erson be sub3ect
for the same offence to be twice !ut in 3eo!ardy of life or limbO nor shall be com!elled in any
criminal case to be a witness a/ainst himself nor be de!rived of life liberty or !ro!erty without
due !rocess of lawO nor shall !rivate !ro!erty be taken for !ublic use without 3ust com!ensation.
"ost of these #ifth 0mendment !rohibitions are both definite and uneBuivocal. There has been
much controversy about the meanin/ of Kdue !rocess of law.K Whatever its meanin/ however
there can be no doubt that it must be /ranted. "oreover few doubt that it has an historical
meanin/ which denies @overnment. the ri/ht to take away life liberty or !ro!erty without trials
!ro!erly conducted accordin/ to the Donstitution and laws validly made in accordance with it.
This at least was the meanin/ of Kdue !rocess of lawK when used in "a/na Dharta and other old
9n/lish Statutes where it was referred to as Kthe law of the land.K
The #ourth 0mendment !rovides.
The ri/ht of the !eo!le to be secure in their !ersons houses !a!ers and effects a/ainst
unreasonable searches and seiEures shall not be violated and no Warrants shall issue but u!on
!robable cause su!!orted by 7ath or affirmation and !articularly describin/ the !lace to be
searched and the !ersons or thin/s to be seiEed.
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The use of the word KunreasonableK in this 0mendment means of course that not all searches and
seiEures are !rohibited. 7nly those which are unreasonable are unlawful. There may be much
difference of o!inion about whether a !articular search or seiEure is unreasonable and therefore
forbidden by this 0mendment. $ut if it is unreasonable it is absolutely !rohibited.
8ikewise the !rovision which forbids warrants for arrest search or seiEure without K!robable
causeK is itself an absolute !rohibition.
The Third 0mendment !rovides that..
No Soldier shall in time of !eace be Buartered in any house without the consent of the 7wner nor
in time of war but in a manner to be !rescribed by law.
0mericans had recently suffered from the Buarterin/ of $ritish troo!s in their homes and so this
0mendment is written in lan/ua/e that a!!arently no one has ever thou/ht could be violated on
the basis of an overwei/hin/ !ublic interest.
0mendment Two !rovides that.
0 well re/ulated "ilitia bein/ necessary to the security of a free State the ri/ht of the !eo!le to
kee! and bear 0rms shall not be infrin/ed.
0lthou/h the Su!reme Dourt has held this 0mendment to include only arms necessary to a wellJ
re/ulated militia as so construed its !rohibition is absolute.
This brings us to the First Amendment0 It reads.
Don/ress shall make no law res!ectin/ an establishment of reli/ion or !rohibitin/ the free e&ercise
thereofO or abrid/in/ the freedom of s!eech or of the !ressO or the ri/ht of the !eo!le !eaceably to
assemble and to !etition the @overnment for a redress of /rievances.
The !hrase KDon/ress shall make no lawK is com!osed of !lain words easily understood. The
#ramers knew this. The language used by =adison in his proposal was different: but no
less emphatic and uneGuivocal0 That proposal is worth reading.
The civil rights of none shall be abridged on account of religious belief or worship:
nor shall any national religion be established: nor shall the full and eGual rights of
conscience be in any manner: or on any pretext: infringed0
The people shall not be deprived or abridged of their right to speak: to write: or to
publish their sentiments@ and the freedom of the press: as one of the great bulwarks
of liberty: shall be inviolable0
The people shall not be restrained from peaceably assembling and consulting for
their common good@ nor from applying to the +egislature by petitions: or
remonstrances: for redress of their grievances.()6)
"either as offered nor as adopted is the language of this Amendment anything less
than absolute0 "adison was em!hatic about this. &e told the #ongress that under it HThe
right of freedom of speech is secured@ the liberty of the press is expressly declared to
be beyond the reach of this Government . . . .K()5) 9m!hasis added in all Buotations.) Some
years later "adison wrote that Kit would seem scarcely !ossible to doubt thatno power
=/
whate%er over the !ress was su!!osed to be dele/ated by the Donstitution as it ori/inally stood
and that the amendment was intended as a positi%e and absolute reser%ation of it/40352 With
reference to the !ositive nature of the #irst 0mendment's command a/ainst infrin/ement of
reli/ious liberty "adison later said that Kthere is not a shadow of ri/ht in the /eneral /overnment
to intermeddle with reli/ionK()1) and that Kthis sub3ect is for the honor of 0merica !erfectly free
and unshackled. The "o%ernment has no (urisdiction o%er it/K()*)
To my way of thinkin/ at least the history and lan/ua/e of the Donstitution and the $ill of 2i/hts
which I have discussed with you make it !lain that one of the !rimary !ur!oses of the
Donstitution with its amendments was to withdraw from the @overnment all !ower to act in
certain areasCwhatever the sco!e of those areas may be. If I am ri/ht in this then there is at least
in those areas no 3ustification whatever for Kbalancin/K a !articular ri/ht a/ainst some e&!ressly
/ranted !ower of Don/ress. If the Donstitution withdraws from @overnment all !ower over sub3ect
matter in an area such as reli/ion s!eech !ress assembly and !etition there is nothin/ over
which authority may be e&erted.
The #ramers were well aware that the individual ri/hts they sou/ht to !rotect mi/ht be easily
nullified if subordinated to the /eneral !owers /ranted to Don/ress. 7ne of the reasons for
ado!tion of the $ill of 2i/hts was to !revent 3ust that. S!ecifically the !eo!le feared that the
Knecessary and !ro!erK clause could be used to !ro3ect the /enerally /ranted Don/ressional !owers
into the !rotected areas of individual ri/hts. 7ne need only read the debates in the various states to
find out that this is true. $ut if these debates leave any doubt "r. "adison's words to Don/ress
should remove it. In s!eakin/ of the Knecessary and !ro!erK clause and its !ossible effect on
freedom of reli/ion he said as re!orted in the 'nnals of Con"ress6
Whether the words are necessary or not he did not mean to say but they had been reBuired by
some of the State Donventions who seemed to entertain an o!inion that under the clause of the
Donstitution which /ave !ower to Don/ress to make all laws necessary and proper to carry into
e&ecution the Donstitution and the laws made under it enabled them to make laws of such a
nature as mi/ht infrin/e the ri/hts of conscience and establish a national reli/ionO to !revent these
effects he !resumed the amendment was intended and he thou/ht it as well e&!ressed as the
nature of the lan/ua/e would admit.()-)
It seems obvious to me that Don/ress in e&ercisin/ its /eneral !owers is e&!ressly forbidden to
use means !rohibited by the $ill of 2i/hts. Whatever else the !hrase Knecessary and !ro!erK may
mean it must be that Don/ress may only ado!t such means to carry out its !owers as are K!ro!erK
that is not s!ecifically !rohibited.
It has also been ar/ued that since freedom of s!eech !ress and reli/ion in 9n/land were narrow
freedoms at best and since there were many 9n/lish laws infrin/in/ those freedoms our #irst
0mendment should not be thou/ht to bar similar infrin/ements by Don/ress. 0/ain one needs only
to look to the debates in Don/ress over the #irst 0mendment to find that the #irst 0mendment
cannot be treated as a mere codification of 9n/lish law. "r. "adison made a clear e&!lanation to
Don/ress that it was the !ur!ose of the #irst 0mendment to /rant /reater !rotection than 9n/land
afforded its citiEens. He said.
In the declaration of ri/hts which that country has established the truth is they have /one no
farther than to raise a barrier a/ainst the !ower of the DrownO the !ower of the 8e/islature is left
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alto/ether indefinite. 0lthou/h I know whenever the /reat ri/hts the trial by 3ury freedom of the
!ress or liberty of conscience come in Buestion in that body the invasion of them is resisted by
able advocates yet their "a/na Dharta does not contain any one !rovision for the security of those
ri/hts res!ectin/ which the !eo!le of 0merica are most alarmed. The freedom of the !ress and
ri/hts of conscience those choicest !rivile/es of the !eo!le are un/uarded in the $ritish
Donstitution.
$ut althou/h the case may be widely different and it may not be thou/ht necessary to !rovide
limits for the le/islative !ower in that country yet a different o!inion !revails in the =nited States.
(+,)
It was the desire to /ive the !eo!le of 0merica /reater !rotection a/ainst the !owerful #ederal
@overnment than the 9n/lish had had a/ainst their /overnment that caused the #ramers to !ut
these freedoms of e&!ression a/ain in the words of "adison Kbeyond the reach of this
@overnment.K
When closely analyEed the idea that there can be no KabsoluteK constitutional /uarantees in the $ill
of 2i/hts is fri/htenin/ to contem!late even as to individual safe/uards in the ori/inal
Donstitution. Take for instance the last clause in 0rticle Si& that Kno reli/ious Test shall ever be
reBuiredK for a !erson to hold office in the =nited States. Su!!ose Don/ress should find that some
reli/ious sect was dan/erous because of its forei/n affiliations. Such was the belief on which
9n/lish test oaths rested for a lon/ time and some of the states had test oaths on that assum!tion
at the time and after our Donstitution was ado!ted in )1*-. Dould Don/ress or the Su!reme
Dourt or both !ut this !recious !rivile/e to be free from test oaths on scales find it outwei/hed by
some other !ublic interest and therefore make =nited States officials and em!loyees swear they
did not and never had belon/ed to or associated with a !articular reli/ious /rou! sus!ected of
disloyalty( Dan Don/ress in the name of overbalancin/ necessity sus!end habeas cor!us in
!eacetime( 0re there circumstances under which Don/ress could after nothin/ more than a
le/islative bill of attainder take away a man's life liberty or !ro!erty( Hostility of the #ramers
toward bills of attainder was so /reat that they took the unusual ste! of barrin/ such le/islative
!unishments by the States as well as the #ederal @overnment. They wanted to remove any
!ossibility of such !roceedin/s anywhere in this country. This is not stran/e in view of the fact that
they were much closer than we are to the /reat 0ct of 0ttainder by the Irish Aarliament in )H**
which condemned between two and three thousand men women and children to e&ile or death
without anythin/ that even resembled a trial.(+))
Aerha!s I can show you the conseBuences of the balancin/ a!!roach to the $ill of 2i/hts liberties
by a !ractical demonstration of how it mi/ht work. The last clause of the #ifth 0mendment is Knor
shall !rivate !ro!erty be taken for !ublic use without 3ust com!ensation.K 7n its face this
command looks absolute but if one believes that it should be wei/hed a/ainst the !owers /ranted
to Don/ress there mi/ht be some circumstances in which this ri/ht would have to /ive way 3ust as
there are some circumstances in which it is said the ri/ht of freedom of reli/ion s!eech !ress
assembly and !etition can be balanced away. 8et us see how the balancin/ conce!t would a!!ly to
the 3ust com!ensation !rovision of the $ill of 2i/hts in the followin/ wholly ima/inary 3udicial
o!inion of :ud/e S.
=6
KThis case !resents an im!ortant Buestion of constitutional law. The =nited States is en/a/ed in a
stu!endous national defense undertakin/ which reBuires the acBuisition of much valuable land
throu/hout the country. The !laintiff here owns 5,, acres of land. The location of the land /ives it
a !eculiarly strate/ic value for carryin/ out the defense !ro/ram. 'ue to the /reat national
emer/ency that e&ists Don/ress concluded that the =nited States could not afford at this time to
!ay com!ensation for the lands which it needed to acBuire. #or this reason an act was !assed
authoriEin/ seiEure without com!ensation of all the lands reBuired for the defense establishment.
KIn reachin/ a 3ud/ment on this case I cannot shut my eyes to the fact that the =nited States is in a
des!erate condition at this time. Nor can I under established canons of constitutional
construction invalidate a Don/ressional enactment if there are any rational /rounds u!on which
Don/ress could have !assed it. I think there are such /rounds here. Hi/hly im!ortant amon/ the
!owers /ranted Don/ress by the Donstitution are the !owers to declare war maintain a navy and
raise and su!!ort armies. This of course means the !ower to Donduct war successfully. To make
sure that Don/ress is not unduly restricted in the e&ercise of these constitutional !owers the
Donstitution also /ives Don/ress !ower to make all laws 'necessary and !ro!er to carry into
e&ecution the fore/oin/ !owers . . . .' This 'necessary and !ro!er' clause a!!lies to the !owers to
make war and su!!ort armies as it does to all the other /ranted !owers.
KAlaintiff contends however that the #ifth 0mendment's !rovision about com!ensation is so
absolute a command that Don/ress is wholly without authority to violate it however /reat this
nation's emer/ency and !eril may be. I must re3ect this contention. We must never for/et that it is
a constitution we are e&!oundin/. 0nd a constitution unlike ordinary statutes must endure for
a/esO it must be ada!ted to chan/in/ conditions and the needs of chan/in/ communities. Without
such ca!acity for chan/e our Donstitution would soon be outmoded and become a dead letter.
Therefore its words must never be read as ri/id absolutes. The $ill of 2i/hts' commands no more
than any others can stay the hands of Don/ress from doin/ that which the /eneral welfare
im!eratively demands. When two /reat constitutional !rovisions like these conflictJas here the
!ower to make war conflicts with the reBuirements for 3ust com!ensationJit becomes the duty of
courts to wei/h the constitutional ri/ht of an individual to com!ensation a/ainst the !ower of
Don/ress to wa/e a successful war.
KWhile the Buestion is not without doubt I have no hesitation in findin/ the challen/ed
Don/ressional act valid. 'riven by the absolute necessity to !rotect the nation from forei/n
a//ression the national debt has risen to billions of dollars. The @overnment's credit is such that
interest rates have soared. =nder these circumstances Don/ress was rationally entitled to find that
if it !aid for all the lands it needs it mi/ht bankru!t the nation and render it hel!less in its hour of
/reatest need. Wei/hin/ as I must the loss the individual will suffer because he has to surrender his
land to the nation without com!ensation a/ainst the /reat !ublic interest in conductin/ war I hold
the act valid. 0 decree will be entered accordin/ly.K
7f course I would not decide this case this way nor do I think any other 3ud/e would so decide it
today. "y reason for refusin/ this a!!roach would be that I think the #ifth 0mendment's
command is absolute and not to be overcome without constitutional amendment even in times of
/rave emer/ency. $ut I think this wholly fictitious o!inion fairly illustrates the !ossibilities of the
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balancin/ a!!roach not only as to the 3ust com!ensation clause but as to other !rovisions of the
$ill of 2i/hts as well. The /reat dan/er of the 3udiciary balancin/ !rocess is that in times of
emer/ency and stress it /ives @overnment the !ower to do what it thinks necessary to !rotect
itself re/ardless of the ri/hts of individuals. If the need is /reat the ri/ht of @overnment can
always be said to outwei/h the ri/hts of the individual. If Kbalancin/K is acce!ted as the test it
would be hard for any conscientious 3ud/e to hold otherwise in times of dire need. 0nd laws
ado!ted in times of dire need are often very hasty and o!!ressive laws es!ecially when as often
ha!!ens they are carried over and acce!ted as normal. #urthermore the balancin/ a!!roach to
basic individual liberties assumes to le/islators and 3ud/es more !ower than either the #ramers or
I myself believe should be entrusted without limitation to any man or any /rou! of men.
It seems to me that the Kbalancin/K a!!roach also disre/ards all of the uniBue features of our
Donstitution which I described earlier. In reality this a!!roach returns us to the state of le/islative
su!remacy which e&isted in 9n/land and which the #ramers were so determined to chan/e once
and for all. 7n the one hand it denies the 3udiciary its constitutional !ower to measure acts of
Don/ress by the standards set down in the $ill of 2i/hts. 7n the other hand thou/h a!!arently
reducin/ 3udicial !owers by sayin/ that acts of Don/ress may be held unconstitutional only when
they are found to have no rational le/islative basis this a!!roach really /ives the Dourt alon/ with
Don/ress a /reater !ower that of overridin/ the !lain commands of the $ill of 2i/hts on a findin/
of wei/hty !ublic interest. In effect it chan/es the direction of our form of /overnment from a
/overnment of limited !owers to a /overnment in which Don/ress may do anythin/ that Dourts
believe to be Kreasonable.K
7f course the decision to !rovide a constitutional safe/uard for a !articular ri/ht such as the fair
trial reBuirements of the #ifth and Si&th 0mendments and the ri/ht of free s!eech !rotection of the
#irst involves a balancin/ of conflictin/ interests. Strict !rocedures may release /uilty menO
!rotectin/ s!eech and !ress may involve dan/ers to a !articular /overnment. I believe however
that the #ramers themselves did this balancin/ when they wrote the Donstitution and the $ill of
2i/hts. They a!!reciated the risks involved and they decided that certain ri/hts should be
/uaranteed re/ardless of these risks. Dourts have neither the ri/ht nor the !ower to review this
ori/inal decision of the #ramers and to attem!t to make a different evaluation of the im!ortance of
the ri/hts /ranted in the Donstitution. Where conflictin/ values e&ist in the field of individual
liberties !rotected by the Donstitution that document settles the conflict and its !olicy should not
be chan/ed without constitutional amendments by the !eo!le in the manner !rovided by the
!eo!le.
"isuse of /overnment !ower !articularly in times of stress has brou/ht sufferin/ to humanity in
all a/es about which we have authentic history. Some of the world's noblest and finest men have
suffered i/nominy and death for no crimeJunless unorthodo&y is a crime. 9ven enli/htened 0thens
had its victims such as Socrates. $ecause of the same kind of bi/otry :esus the /reat 'issenter
was !ut to death on a wooden cross. The flames of inBuisitions all over the world have warned that
men endowed with unlimited /overnment !ower even earnest men consecrated to a cause are
dan/erous.
==
#or my own !art I believe that our Donstitution with its absolute /uarantees of individual ri/hts
is the best ho!e for the as!irations of freedom which men share everywhere. I cannot a/ree with
those who think of the $ill of 2i/hts as an )*th Dentury strait3acket unsuited for this a/e. It is old
but not all old thin/s are bad. The evils it /uards a/ainst are not only old they are with us now
they e&ist today. 0lmost any mornin/ you o!en your daily !a!er you can see where some !erson
somewhere in the world is on trial or has 3ust been convicted of su!!osed disloyalty to a new /rou!
controllin/ the /overnment which has set out to !ur/e its sus!ected enemies and all those who had
dared to be a/ainst its successful march to !ower. Nearly always you see that these !olitical
heretics are bein/ tried by military tribunals or some other summary and sure method for
dis!osition of the accused. Now and then we even see the convicted victims as they march to their
e&ecution.
9&!erience all over the world has demonstrated I fear that the distance between stable orderly
/overnment and one that has been taken over by force is not so /reat as we have assumed. 7ur
own free system to live and !ro/ress has to have intelli/ent citiEens citiEens who cannot only think
and s!eak and write to influence !eo!le but citiEens who are free to do that without fear of
/overnmental censorshi! or re!risal.
The !rovisions of the $ill of 2i/hts that safe/uard fair le/al !rocedures came about lar/ely to
!rotect the weak and the o!!ressed from !unishment by the stron/ and the !owerful who wanted
to stifle the voices of discontent raised in !rotest a/ainst o!!ression and in3ustice in !ublic affairs.
Nothin/ that I have read in the Don/ressional debates on the $ill of 2i/hts indicates that there was
any belief that the #irst 0mendment contained any Bualifications. The only ar/uments that tended
to look in this direction at all were those that said Kthat all !a!er barriers a/ainst the !ower of the
community are too weak to be worthy of attention.K(++)Su//estions were also made in and out of
Don/ress that a $ill of 2i/hts would be a futile /esture since there would be no way to enforce the
safe/uards for freedom it !rovided. "r. "adison answered this ar/ument in these words.
If they ;the $ill of 2i/hts amendments< are incor!orated into the Donstitution inde!endent
tribunals of 3ustice will consider themselves in a !eculiar manner the /uardians of those ri/htsO
they will be an im!enetrable bulwark a/ainst any assum!tion of !ower in the 8e/islative or
9&ecutiveO they will be naturally led to resist every encroachment u!on ri/hts e&!ressly sti!ulated
for in the Donstitution by the declaration of ri/hts.(+?)
I fail to see how courts can esca!e this sacred trust.
Since the earliest days !hiloso!hers have dreamed of a country where the mind and s!irit of man
would be freeO where there would be no limits to inBuiryO where men would be free to e&!lore the
unknown and to challen/e the most dee!ly rooted beliefs and !rinci!les. 7ur #irst 0mendment
was a bold effort to ado!t this !rinci!leJto establish a country with no le/al restrictions of any kind
u!on the sub3ects !eo!le could investi/ate discuss and deny. The #ramers knew better !erha!s
than we do today the risks they were takin/. They knew that free s!eech mi/ht be the friend of
chan/e and revolution. $ut they also knew that it is always the deadliest enemy of tyranny. With
this knowled/e they still believed that the ultimate ha!!iness and security of a nation lies in its
ability to e&!lore to chan/e to /row and ceaselessly to ada!t itself to new knowled/e born of
inBuiry free from any kind of /overnmental control over the mind and s!irit of man. 8oyalty comes
from love of /ood /overnment not fear of a bad one.
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The #irst 0mendment is truly the heart of the $ill of 2i/hts. The #ramers balanced its freedoms of
reli/ion s!eech !ress assembly and !etition a/ainst the needs of a !owerful central /overnment
and decided that in those freedoms lies this nation's only true security. They were not afraid for
men to be free. We should not be. We should be as confident as :efferson was when he said in his
#irst Inau/ural 0ddress.
If there be any amon/ us who would wish to dissolve this =nion or to chan/e its re!ublican form
let them stand undisturbed as monuments of the safety with which error of o!inion may be
tolerated where reason is left free to combat it.(+6)
). 2e!rinted from New Qork =niversity 8aw 2eview Pol. ?5 0!ril )-H,.
+. Hu/o $lack is 0ssociate :ustice of the Su!reme Dourt. This article was delivered as the first
:ames "adison 8ecture at the New Qork =niversity School of 8aw on #ebruary )1 )-H,. 2e!rinted
from N9W Q72I =NIP92SITQ 80W 29PI9W Pol. ?5 0!ril )-H,.
?. See also $rant The "adison Herita/e ?5 N.Q.=.8. 2ev. **+ ()-H,).
6. ?+ =.S. (1 Aet.) +6+ +6- ()*??).
5. ??+ =.S. 6H 1)J1+ ()-61) (dissentin/ o!inion).
H. ?H) =.S. )61 )55 ()-5-) (concurrin/ o!inion).
1. See The Trial of :ohn 8ilburn and :ohn Wharton (Star Dhamber )H?1) in ? How. St. Tr. )?)5
()*)H).
*. 8eveller "anifestoes of the Auritan 2evolution 6+? (Wolfe ed. )-66).
-. ) 2ives History of the 8ife and Times of :ames "adison 66 ()*5-).
),. 6 :efferson Writin/s 5,H (Washin/ton 9d. )*5-).
)). 5 =.S. () $ranch) )?1 ()*,?).
)+. ) 0nnals of Don/. 6?1 ()1*-).
)?. Ibid
)6. ) 0nnal of Don/. 6?6 ()1*-).
)5. ) 0nnals of Don/. 1?* ()1*-).
)H. H "adison Writin/s ?-) (Hunt ed. )-,H).
)1. 5 "adison Writin/s )1H (Hunt ed. )-,6).
)*. Id. 0t )?+.
)-. ) 0nnuals of Don/. 1?, ()1*-) (9m!hasis added.)
=?
+,. ) 0nnals of Don/. 6?H ()1*-).
+). See :oint 0ntiJ#ascist 2efu/ee Domm. P. "c@rath ?6) =.S. )+? )6HJ6- ()-5)) (a!!endi& to
concurrin/ o!inion of $lack :.).
++. ) 0nnals of Don/. 6?1 ()1*-).
+?. ) 0nnals of Don/. 6?- ()1*-).
+6. * :efferson Writin/s +J? (Washin/ton ed. )*5-).
:&"# Cohn ?ennedy on the irst +mendment and free press
Here is Iennedy on the !rotections available to the 0merican !ress.
LSee video 7audio8 on my blo%M
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9& Illustrations of India1s attack on free speech
9&" irst of all please be very clear that Pen%uin was -5)0D +T
G=,P-I,T to destroy the Doni%er book
I am tryin/ to move to the substantive issue in the 'oni/er case. the antiJliberty laws of India.
However I'm bein/ constantly distracted by ill*informed opinion amon/ many (both on
this blo/ and on #$) that this destruction of the book is 7I because it was a!!arently
somethin/ fou/ht throu/h a Kle/al caseK for four years and it was in the end
Aen/uin'sHvoluntaryH decision to destroy the books.
%uch a view is beyond stupid0
#ortunately a few days a/o Aen/uin clarified its !osition. I'm co!yin/ its statement here with
annotations in blue for those inca!abale of distin/uishin/ between P78=NT02Q DH7ID9
and D7"A=8SI7N 0T @=N A7INT.
A9N@=IN IN'I04S ST0T9"9NT 7N GTH9 HIN'=S4 $Q W9N'Q '7NI@92
#eb +,)6
Aen/uin $ooks India believes and has always believed in every individual4s ri/ht to freedom
of thou/ht and e&!ression a ri/ht e&!licitly codified in the Indian Donstitution. ;San3eev.
Aen/uin is not bein/ honest here. The ri/ht to freedom of e&!ression was destroyed throu/h
the Indian first amendment and weakened so much that it is now nearly nonJe&istent.< This
commitment informs Aen/uin4s a!!roach to !ublishin/ in every territory of the world and we
have never been shy about testin/ that commitment in court when a!!ro!riate. 0t the same
time a !ublishin/ com!any has the same obli/ation as any other or/anisation to res!ect the
laws of the land in which it o!erates however intolerant and restrictive those laws
may be;San3eev. this is Aen/uin's indictment of the antiJliberty Indian laws<.
We also have a moral responsibility to protect our employees against threats and
harassment where we can ;San3eev. this is Aen/uin bein/ honest about the
PI789NT Hindutva bri/ade J now co!yin/ Islam to the T<.
The settlement reached this week brin/s to a close a four year le/al !rocess in which Aen/uin
has defended the !ublication of the Indian edition of The Hindus by Wendy 'oni/er.
We have !ublished in succession hardcover !a!erback and eJbook editions of the title.
International editions of the book remain available !hysically and di/itally to Indian readers
who still wish to !urchase it. We stand by our ori/inal decision to !ublish The Hindus 3ust
as we stand by the decision to publish other books that we know may cause
offence to some segments of our readership. We believe however that the Indian
enal #ode: and in particular section 34.A of that code: will make it increasingly
difficult for any Indian publisher to uphold international standards of free
expression without deliberately placing itself outside the law. This is we believe an
issue of /reat si/nificance not 3ust for the !rotection of creative freedoms in India but also for
>A
the defence of fundamental human ri/hts. ;San3eev. this is as clear an indication of
D792DI7N as anyone can !ossibly /ive<
#or those still doin/ the drama that this is a KvoluntaryK KmarketJbasedK decision of Aen/uin
I ho!e it is ),, !er cent clear now that.
). Aen/uin was #72D9' $Q TH9 0NTIJ8I$92TQ IN'I0N 80WS (in !articular s.+-50 of
IAD) C which means was forced at the !oint of a /un (the @overnment's /un).
+. Aen/uin was 08S7 #72D9' $Q #902 7# A7T9NTI08 PI789ND9 #27" HIN'=TP0
#0N0TIDS.
This is no KfreeK decision by Aen/uin.
0nd thus have the @overnment of India and Hindutva fanatics killed free s!eech.
A<<E"<'=
'on't blame Aen/uin for withdrawal of Wendy 'oni/er's book ask the /overnment
9&2 ?oenraad 0lst lashes out a%ainst fake E'indusF like 3alhotra
who are celebratin% the destruction of Doni%er1s book
Source* my blo% post&
I don't read Ioenraad 9lst but know he has been an influential member of the KHindutvaK
bri/ade. Someone !ointed me to this which is sur!risin/ and !leasin/. I'm !ublishin/
e&tracts. 2ead the full version here. Note a/ain (and a/ain) that I'm N7T defendin/ 'oni/er's
work. I don't even have time to read% comment on it. I'm defendin/ her ri/ht to say whatever
she wishes. In !eace.
Numerous Hindus ;San3eev. e./. 2a3iv "alhotra< come across as 3ubilant and trium!hant now
that they or some of them have mana/ed to !ressure Aen/uin books into a/reein/ to
withdraw Wendy 'oni/er's book The Hindus6 an 'lternati%e Historyand destroy its stock. I
am not that happy about it0 0nd I agree with ,endy that the real villain of the
piece is Art0 34.A of the Indian enal #ode: which !rohibits insultin/ reli/ious
communities and was successfully invoked by 'ina Nath $atra to threaten the !ublishin/J
house with a 3udicial condemnation.
0rt. +-50 was never the doin/ of Hindu society. It was im!osed by the $ritish on the Hindus
in order to shield Islam from criticism. ;San3eev. That's why I say that these are Islamic
Hindus who are co!yin/ the worst elements of Islam.<
For the &indus: this is a yrrhic victory0 The publicity they gain worldwide is
entirely negative: and it corroborates their image as authoritarian and
intolerant0 They also admit that they are unable to fight back with arguments0
Ioenraad 9lst ($haratJ$harati )+ #eb +,)6)
9&3 ?apil Sibal1s attack on free speech
IT 3inister ?apil Sibal decided that Indians were te2tin% too much -- the fact that
te2tin% played a role in coalescin% and coordination of the unprecedented anti-
corruption movement was4 of course4 simply coincidence& So he declared he was
%oin% to cap te2ts to "!! messa%es per day per SI3 card 7phone number8&
Ausinesses that rely on te2ts for bookin%s and confirmations4 like cab companies4
were thrown into disarray& The uproar was so %reat4 Sibal relented& Sort of&
The cap is now 2!! messa%es per day per SI34 forcin% some businesses to buy
multiple phone numbers to meet their te2tin% demands4 and leavin% many Indian
teena%ers practically incommunicado&
Then Sibal 7or4 more likely4 his political bosses8 took offence at the way some in
%overnment were bein% portrayed in social media& ,ow4 smart political operators
would have used the sites and tweets to %au%e public sentiment and put to%ether a
counter-strate%y& -r4 if the impact was relatively minor4 just i%nored them as a small
price to pay for the %ood fortune of livin% in a democracy&
Instead4 Sibal summoned acebook4 3icrosoft4 Iahoo4 Goo%le and others into the
principalNs office for a little chat& 'e reportedly demanded that they use real humans
to prescreen and censor social media for objectionable content&
$hile not bein% e2plicit about what would be considered objectionable4 it doesnNt
take a %enius to make an educated %uess -- a Huick look at the %overnmentNs track
record will do& +ccordin% to Goo%le4 between Canuary and Cune 2!""4 Indian officials
asked for 3:B items to be removed from sites like IouTube and Alo%%er& 0i%ht were
for hate speech4 three were for porno%raphy4 one was on national security %rounds4
and 2:: were for Q%overnment criticism&Q LSourceM
>/
9&# Government attacks on free speech
the %overnment caved in to demands by 3uslim %roups to redact the film 2eenaxi:
A Tale of Three .itiesO a government minister from =ttar Pradesh4 3ohammad
IaHoob Vureishi4 offered a W"" million bounty on ?urt $ester%aard4 the Danish
cartoonist who depicted Sunni Islam1s final prophet as a terrorist& In 2!!94 the 3ajlis-
e Ittehadul 3uslimeen4 a political party4 attacked Aan%ladeshi author Taslima
,asreen1s book tour for writin% a book that portrayed the treatment of women in
Islam and 'indus in Aan%ladesh in a ne%ative li%ht& India became the first country to
ban Salman 5ushdie1s +atanic 3erses and the author was recently deterred from
attendin% the Caipur /iterature estival& In Aombay4 the Shiv Sena threatened to
disrupt the screenin% of Shah 5ukh ?han1s film 2y 'ame is 1hanO in 2!!34 another
mob ransacked Pune1s Ahandarkar -riental 5esearch Institute over dissatisfaction
with Cames /aine1s+hiva4i: A !indu 1ing in Islamic India& In 2!!;4 5avindra ?umar
and +nand Sinha of The +tatesman were char%ed for merely reprintin% Cohann
'ari1s article 5hy +hould I 0espect 6ppressive 0eligions7& +nd most recently4
3uslim %roups demanded a ban on ?amal 'aasan1s 3ishwaroopam&
The selective paeans in defence of free speech and the failure of the central and
state %overnments a%ainst %roups 6 and even ministers 6 actin% in the name of
reli%ion4 ethnicity4 or political parties has brou%ht India to this juncture when
corporations no lon%er have faith that their premises and employees will be safe after
the publication of a controversial book& In contrast4 despite a loud campai%n by the
)hurch a%ainst Dan Arown1s The -a 3inci .ode4 Doubleday kept the book on shop
shelves and actually benefitted from a lar%e bump in sales& LSourceM
9&: Aooks banned in India
The list of banned books is found on $ikipedia4 here& + version provided below&
7ate !ork Author 'otes
";2# 5an%ila 5asul +nonymous
L
"M
In 3ay ";2#4 this =rdu booklet was published in /ahore& The
booklet purportedly described Prophet 3uhammadNs
relationship with women& The publisher4 5aj Pal4
L2M
was
char%ed under ":3+ of the Indian Penal )ode for hate
speech by the Punjab %overnment& The final disposition
came in 3ay ";2>&
L2M
The court declared that law does not
prohibit satirical writin%s about the deceased and the
publisher was acHuitted with a warnin%&
L"ML3M
-n 9 +pril ";2;4
the publisher was murdered&
L3ML#M
The murderer4 a 3uslim
youth4 was sentenced to death and the sentenced was
carried out on 3" -ctober ";2;&
L:M
";3# 'indu 'eaven 3a2 $ylie It cannot be brou%ht into India&
L9M
3a2 $ylie4 the creator The
lyin% ,un T. show4 researched this book while teachin% in
/ahore&
L>M
The novel Huestioned the work of +merican
missionaries in India&
LBML;M
It also dealt with the harsh effects of
the climate on the missionaries&
L"!M
";39 The ace of
3other India
?atherine
3ayo
It cannot be imported into India&
L9M
This illustrated book was
banned for its pro-3uslim and anti-'indu bias&
L""M
";39 -ld Soldier Sahib rank
5ichards
The book cannot be imported into India&
L9M
The book is a
memoir of the authorNs time in Aritish India as a veteran
$ork in pro%ress& 'appy to receive input at sabhlok(%mail&com >2
soldier&
L;M
";3> The /and of the
/in%am
+rthur 3iles It cannot be imported into India&
L9M
The book is about
'induism4 caste and phallicism&
L"2M
";#! 3ysterious India 3oki Sin%h The book cannot be imported into India&
L9M
The book
purportedly contained stereotypes&
L"3M
";#: The Scented
Garden*
+nthropolo%y of
the Se2 /ife in the
/evant
Aernhard
Stern
This book cannot be imported into India&
L"#M
This is a book
about se2ual practices and marria%e rites of the people of
3iddle 0ast 7/evant8&
L":M
The book was alle%edly se2ually
e2plicit&
L"3M
";:! Pakistan-
Pasman@arwa
Peshman@ar
'ameed
+nwar
This book4 ori%inally in =rdu4 cannot be imported into India&
L"#M
";:! )ease-ire +%ha Aabar This book4 ori%inally in =rdu4 cannot be imported into India&
L"#M
";:! ?hak +ur ?hoon ,a@im
'aja@i
L"#M
";:2 )hadramohini This book4 ori%inally in =rdu4 cannot be imported into India&
L"#M
";:2 3arka-e-Somnath 3aulana
3uhammad
SadiH
'ussain
Sahab
SadiH
SiddiHui
Sardanvi
L"#M
";:# Ahupat Sin%h ?aluwank
5avatwank
This book4 ori%inally in Gujarati4 cannot be imported into
India&
L"#M
";:# $hat has 5eli%ion
done for 3ankind
L"#M
This is a book
published by the $atch Tower Aible and Tract Society&
L"9M

This book tries to refute 0astern reli%ions&
L">M
";:: 5ama 5etold +ubrey
3enen
L"#M
It was a play
L"BM

which was a spoof of the 5amayana&
L";M
It was one of the first
books to be banned in independent India&
L"BM
The +merican
edition was simply called The 5amayana&
L";M
";:: Dark =r%e 5obert $&
Taylor
L"#M
";:B )aptive ?ashmir +@i@ Ae% This book cannot be imported into India&
L2!M
";:; The 'eart of India +le2ander
)ampbell
L2!M
+le2ander
)ampbell was Time ma%a@ineNs ,ew Delhi correspondent&
The book is a fictionali@ed and humorous account of Indian
bureaucracy and economic policies&
L2"M
";9! The /otus and the
5obot
+rthur
?oestler
This book contains the authorNs e2periences in India and
Capan& The book was hi%hly critical of the cultures of both
nations&
L22M
The book was banned for its ne%ative portrayal of
Gandhi&
L23M
";92 ,ine 'ours to
5ama
Stanley
$olpert
L2!M
The book and the
movie based on it4 both were banned in India& The book was
thou%ht to be justifyin% the actions of ,athuram Godse who
murdered Gandhi&
L2#M
The book also points to the lapse in
>6
security&
L"3ML2"M
";93 ,epal Toni 'a%en This book cannot be imported into India&
L2!M
";93 +yesha ?urt
rischler
L2!M
The ori%inal
German title was +ischa* 3ohammedNs /ieblin%frau 7+ischa*
3ohammedNs avorite $ife8&
L2:M
";9# +n +rea of
Darkness
.& S&
,aipaul
Aanned for its ne%ative portrayal of India and its people&
L2"M
";9B The Cewel in the
/otus
+llen
0dwardes
L2!M
+llen 0dwardes
was the pen-name of a scholar who wrote on 3iddle 0ast
and -riental erotica&
";9; The 0volution of
the Aritish 0mpire
and
)ommonwealth
from the +merican
5evolution
+lfred
/e5oy Aurt
L29M
";9; + Stru%%le
between two lines
over the Huestion
of 'ow to Deal
with =&S&
Imperialism
'siu-chu
an
L29M
";>! 3an from 3oscow Greville
$ynne
L29M
Greville $ynne
was a courier for the Aritish Secret Intelli%ence Service
73I98& The book is about his involvement with -le%
Penkovsky&
L2>M
The book was banned for purportedly
misrepresentin% Indian policies&
L22M
";>: 0arly Islam Desmond
Stewart
L29M
The book
purportedly contained %rievous factual errors&
L22M
";>: ,ehru* + Political
Aio%raphy
3ichael
0dwards
L29M
The book
purportedly contained %rievous factual errors&
L22M
";>9 India Independent )harles
Aettelheim
L29M
It was banned for
criticisin% the policies of the Indian %overnment&
L2"M
";>B )hina1s orei%n
5elations Since
";#;
+lan
/awrence
L29M
";>; $ho killed Gandhi /ourenXo de
Salvador
L29M
The book was
considered inflammatory and ill-researched&
L2"ML22M
";B3 The Price of
Power* ?issin%er
and ,i2on in the
$hite 'ouse
Seymour
'ersh
Ariefly banned for alle%in% 3orarji Desai to be a )I+
informer&
L2"M
The book claimed that 3orarji Desai was paid
2!4!!! =SD per year4 startin% from the time of /yndon A&
Cohnson& Desai obtained an injunction from the Aombay
'i%h )ourt for a temporary ban and sued for dama%es worth
: million =SD in =S&
L2BM
";BB The Satanic
.erses
Salman
5ushdie
The book was banned after 3uslim %roups protested that it
was blasphemous and hurt their reli%ious sentiments&
L2"M
India
was the first country to ban this book&
L22M
";;: The 3oorNs /ast
Si%h
Salman
5ushdie
The book had a character that resembled the composite of
several Indian politicians& -ne of the politicians was Shiv
SenaNs Aal Thackeray& Despite bein% provoked by the media
and publishers4 he refused to %ive his opinion on the book
$ork in pro%ress& 'appy to receive input at sabhlok(%mail&com ><
and claimed that he had not read it& The publishers then took
the step of bannin% the book and blamin% Thackeray& +s this
controversy was playin% out4 the P&.& ,arasimha 5ao
%overnment banned the book when it found that a do% in the
book was named Cawaharlal after IndiaNs first Prime 3inister
Cawaharlal ,ehru& /ater4 the Supreme )ourt declared the
ban unconstitutional&
2!!: The True urHan +l Saffee4 +l
3ahdee
Aanned for purportedly mockin% Islam&
L2"M
The book has been
alle%edly written by a )hristian evan%elical %roup to
proselytise 3uslims&
L22M
The import of this book is strictly
prohibited&
L2;M
$egional
This section lists books that were banned by a state %overnment& The Section ;: of the
.ode of .riminal &rocedure, 89:; allows the state %overnments to declare any publication
as forfeit&
L3!M
7ate !ork Author $egion;s* 'otes
2!!3 Dwikhandito Taslima
,asrin
$est
Aen%al
The )PI738 %overnment banned the book on
2B ,ovember 2!!3 fearin% that book could
incite communal discord&
L3"M
In ,ovember 2!!34
the )alcutta 'i%h )ourt put out an injunction
a%ainst publication after a poet4 Syed 'asmat
Calal4 filed an "" crore I,5 defamation suit&
L32M

-n 22 September 2!!:4 the court lifted the ban&
L33M
2!!# Shivaji* 'indu
?in% in Islamic
India
Cames
/aine
3aharastra -n Canuary 2!!#4 a mob alle%in% dispara%in%
remarks made about Shivaji attacked
Ahandarkar -riental 5esearch Institute where
/aine had researched the book& Several rare
manuscripts were destroyed in the process&
L3#M

-n "# Canuary4 the state %overnment run by
the )on%ress Party under Sushil ?umar Shinde
banned the book&
L3:M
In 2!!>4 the Aombay 'i%h
)ourt revoked the ban&
L39M
The state %overnment
challen%ed the decision in the Supreme )ourt&
Supreme )ourt upheld the previous decision
and lifted the ban in 2!"!&
L3>M
2!!9 The 0pic of
Shivaji* +
Translation and
Study of ?avindra
Paramananda1s
Sivabharata
Cames
/aine
3aharastra The book was banned for alle%edly containin%
dero%atory references on %rounds that it could
cause a law and order problem&
L3BM
2!!9 Da .inci )ode Dan
Arown
,a%aland The book was banned by the )on%ress
%overnment for alle%edly containin%
blasphemous remarks about Cesus&
L3;M
2!!> Islam* + )oncept
of Political $orld
Invasion
5& .&
Ahasin
3aharashtr
a
The book was released in 2!!3& It was banned
by the )on%ress %overnment in 2!!> %round
that it contained dero%atory remarks about
Islam and Prophet 3ohammad&
L#!M
In 2!"!4
Aombay 'i%h )ourt upheld the ban&
L#"M
The
decision was challen%ed in the Supreme )ourt
>=
7ate !ork Author $egion;s* 'otes
but it rejected the appeal&
L#!M
2!!; Cinnah* India4
Partition4
Independence
Caswant
Sin%h
Gujarat Aanned in Gujarat but overturned&
L2"M
The book
was on banned on "; +u%ust 2!!;4
L#2M
for
containin% defamatory references to Sardar
.allabhbhai Patel&
L#3M
Caswant Sin%h was also
e2pelled from his political party4 ACP4 for writin%
this book&
L##M
-n # September4 the Gujarat 'i%h
)ourt revoked the ban&
L#2M
2!"" Great Soul*
3ahatma Gandhi
and 'is Stru%%le
$ith India
Coseph
/elyveld
Gujarat The bio%raphical book su%%ested that Gandhi
was a bise2ual&
L#:M
It is banned in the state of
Gujarat 7where Gandhi was born8 on 3" 3arch
2!""&
L#9M
The =nion /aw 3inister .eerappa
3oily hinted that the )entre may also ban the
book& GandhiNs %randsons4 Tushar Gandhi4
L#>M

5ajmohan Gandhi
L#BM
and Gopalkrishna Gandhi4
L#;M
e2pressed opposition to the ban proposal&
-n # +pril4 3oily ruled out the ban&
L:!M
2!"3 3eende@hum
Pandiyar .aralaru
75esur%ence of
Pandiyan 'istory8
?&
Senthil
3allar
Tamil ,adu The Tamil ,adu %overnment banned this Tamil
book on 3! 3ay 2!"3 on %rounds that it may
cause violence and promote discord amon%
communities& The book alle%edly claims the
Dalit community called Pallar4 were amon% the
rulers of the Pandya kin%dom& The author has
appealed in the 3adras 'i%h )ourt a%ainst the
ban&
L:"ML:2M
&ther challenged books
This section lists books that have been le%ally challen%ed to impose a ban or to e2clude from
a syllabus&
";;BThe Polyester
Prince* The
5ise of
Dhirubhai
+mbani
'amish
3cDonald
This unofficial bio%raphy of Dhirubhai +mbani never went to
print because 'arper )ollins anticipated le%al action from the
+mbani family&
L2"ML:3M
2!!"'oly )ow*
Aeef in Indian
Dietary
Traditions
Dwijendra
,arayan Cha
+ preview of the book was posted on a website initially which
tri%%ered the controversy&
L:#ML::M
+ spokesperson for the
.ishwa 'indu Parishad
L:#M
stated that the book was an
attempt to insult 'indus& The book alle%edly said that beef
was eaten by ancient Indians& The author received
anonymous threat calls and had to be provided a police
escort&
L::ML:9M
+ civil court in +ndhra Pradesh put a temporary
stay order on the book until verdict&
L:9M
Pushpesh Pant
L:#M

supported the book by statin% that the evidence e2ists in
historical and mytholo%ical te2ts& The book is also known as
The 3yth of the 'oly )ow&
L::M
2!!2ive Past
3idni%ht in
Ahopal
DominiHue
/apierre and
Cavier 3oro
The book is a dramati@ed account of the Ahopal disaster& In
2!!24 Swaraj Puri filed a defamation suit a%ainst the authors
worth "! million =SD& Puri4 who was the police commissioner
of Ahopal durin% the disaster is mentioned in the book&
L:>ML:BM

In 2!!;4 the court put an order to halt publication of the book&
$ork in pro%ress& 'appy to receive input at sabhlok(%mail&com >>
L:>ML:BM
Aut4 the 3adhya Pradesh 'i%h )ourt revoked the order
later&
L:;M
2!!BThe )ollected
0ssays of +& ?&
5amanujan
+& ?&
5amanujan
The books contains an essay called Three 'undred
5amayanas* ive 02amples and Three Thou%hts on
Translation4 which alle%edly described a version of the
5amayana in which 5ama and Sita were siblin%s&
L9!M
The
essay was a part of the syllabus of Aachelor of +rts 7'istory8
in Delhi =niversity& In 2!!B4 +khil Aharatiya .idyarthi
Parishad protested a%ainst it claimin% it to be offensive&
5eportedly there were incidents of vandalism and at least
one professor was manhandled&
L9"M
In 2!"!4 the Supreme
)ourt directed that an e2pert panel be formed to look into the
matter& The e2pert panel voted 3*" for retention of the essay&
Aut the university dropped it from the course in 2!""&
L92M
2!!BThe /ives of
Sri +urobindo
Peter 'eehs -n : ,ovember 2!!#4 the -disha 'i%h )ourt put a stay
order on the release of the book4 after a petition was filed&
L93M

The petitioner alle%ed that the book is blasphemous in nature
and defamatory re%ardin% Sri +urobindoNs character&
L93ML9#M
2!"!The 5ed Sari
70l Sari 5ojo8
Cavier 3oro The book was ori%inally published in -ctober 2!"!
L9:M
in
Spanish& The book is a fictional
L9:M
novel alle%edly based on
Sonia Gandhi& 3oro claimed that )on%ress lawyers and
spokesperson +bhishek Sin%hvi had written to his publishers
demandin% them to withdraw the book from shops&
L9:ML99M

+bhishek Sin%hvi claimed that the book violated a personNs
privacy for monetary %ain&
L9>M
2!"!Such + /on%
Courney
5ohinton
3istry
-n # -ctober 2!"!4 this ";;! Aooker nominated book was
removed from the Aachelor of +rts 70n%lish8 syllabus of the
3umbai =niversity4 after Aharatiya .idyarthi Sena4 the
student-win% of the Shiv Sena protested& The book alle%edly
contained anti-Shiv Sena passa%es and remarks dero%atory
to 3aharastrians&
L9BML9;M
The protests were led by +ditya
Thackeray&
L9BM
3istry later e2pressed his dismay in an open
letter to the university&
L9BM
2!"3Dhundi Io%esh
3aster
The author of the ?annada novel was arrested on 2; +u%ust
2!"34 after several 'indu or%anisations accused the book of
containin% objectionable material a%ainst the %od Ganesha&
The author was char%ed under Section 2;: + and 2;B of the
Indian Penal )ode&
L>!M
The complaint was filed by Sri 5am
Sene leader Pramod 3uthalik4 and others&
L>"M
2!"3Sahara* The
=ntold Story
Tamal
Aandyopadhy
ay
-n "! December 2!"34 Sahara India Pariwar acHuired a stay
order on the release of the book from the )alcutta 'i%h
)ourt& /ater on "3 Canuary 2!"#4 it filed a 2!! crore
defamation suit a%ainst the author and the publisher4 Caico
Publishin% 'ouse&
L>2M
2!"#The Descent of
+ir India
Citendra
Ahar%ava
The publisher4 Aloomsbury India4 a%reed to withdraw all
copies of the book4 after former +viation 3inister Praful Patel
filed a defamation suit in a 3umbai court& The publisher also
issued a public apolo%y&
L>3ML>#M
2!"#The 'indus*
+n +lternative
'istory
$endy
Doni%er
+n or%ani@ation called Shiksha Aachao +ndolan had brou%ht
a civil suit a%ainst the publisher4 Pen%uin India4 in 2!"" for
alle%ed inaccuracies4 libel and alle%ed pla%iarism& In early
2!"#4 the publisher a%reed to recall and destroy all copies of
the book&
L>:M
>?
9&9 $orryin% developments
Source*
+mon% other worryin% developments*
- The Ahandarkar -riental 5esearch Institute4 which had one of our
best historical archives4 was sacked&
- The Caipur /iterary estival was compelled to cancel a live video
link with the Aooker Pri@e winnin% author4 Salman 5ushdie&
- 3& & 'usain4 one of India1s most reputed painters4 felt he had no
alternative but to abandon India&
- Cames /aine1s e2cellent bio%raphy of Shivaji was banned by the
3aharashtra %overnment4 before the ban was lifted by the rulin%s of
the 'i%h )ourt and the Supreme )ourt&
- -=P India withdrew +&?& 5amanujan1s essay4 EThree 'undred
5amayanasF in spite of the fact that its scholarly value is indisputable&
- Delhi =niversity1s .ice )hancellor and its +cademic )ouncil4
hardly any of whom are historians4 overruled the view 7re%ardin%
whether the essay should be kept on the list of readin%s
recommended to students8 of the =niversity1s own 'istory
Department4 as well as the majority opinion 73 to "8 of an +cademic
02pert )ommittee appointed by India1s Supreme )ourt4 to remove the
essay from the 'istory Department1s list of readin%s<
9&> +l%u 5ai Shastri 6 an enemy of liberty in the Indian
)onstituent +ssembly
3y blo% post&
$hen I read +l%u 5ai ShastriNs speech re* article "; 7then "38 in the
)onstituent +ssembly4 I was very an%ry at his Q+SS=5+,)0Q to fob those
who protested a%ainst the makin% a mockery of liberty&
'is speech is here but what is particularly distressin% is his QassuranceQ 6
completely in violation of +// e2perience re%ardin% misuse of power by the
state 6 that*
QI submit that those who would sit in the le%islatures would be representatives
of the people and they will impose only those restrictions which they consider
proper& Such restrictions would be in the interest of the people& ,o restriction
will be imposed merely to destroy the liberties of the people&Q
$ell4 we know that ,ehru was the I5ST -,0 to D0ST5-I liberty&
,ow4 finally4 we have ,- /IA05TI I, I,DI+4 +T +//&
$ork in pro%ress& 'appy to receive input at sabhlok(%mail&com >@
The 0.I/ QfatwaQ by an 0.I/ man 7?homeini8 on Satanic .erses was lon%
withdrawn and that man is lon% dead but this book continues to be banned in
India&
+mon% many others&
-ur representatives have been the %reatest destroyers of liberty&
It was on the shoulder of ST=PID representatives in the )onstituent
+ssembly4 like +l%u 5ai Shastri4 that India mana%ed to %et one of the worldNs
worst constitutions 6 made even worse by its politicians&
9&B Shashi Tharoor has entirely lost me 6 by insistin% that free
speech already e2ists in India
3y blo% post&
Shashi Tharoor seems to believe in nothin% of any value& Instead of defendin%
freedom of speech4 he has continuously been tryin% to say that India is a
vibrant democracy with a lot of freedom of speech&
+ few days a%o I heard his e2tremely poor discussion with )hristopher
'itchens 7see a recent blo% post elsewhere on this blo%8&
,ow INve chanced upon this 7from here8& LSee video on my blo%M
I think we need to be very sceptical about such a person& Shashi is no
promoter of liberty& /et Shashi Tharoor un-ban all books and movies in India&
Till he demands that4 he should be merely treated as a power-hun%ry 3uslim-
fatwa and 'indutva violence fearin% nincompoop&
+ %overnmentNs job is to P5-T0)T liberty4 not cave in at every step to mad
men&
?A
>& 5ecommended resources
>&" ree books
>.. Freedom to "Cpress and offence by $avi Shanker 9apoor
>../ 5ive Me +iberty &r 5ive Me 7eath 3atrick 4enry. March /2. >><.
>..2 Freedom of "Cpression by 9embrew Mc+eod
>&2 -ther books
>./. 9indly (nKuisitors: -he 'ew Attacks on Free -hought
>././ @?6 by 5eorge &rwell
>./.2 4itch //: A memoir. by Christopher 4itchens
>./.6 -he Culture of -errorism by 'oam Chomsky
>&3 /ists
>.2. !ikipedia
http*DDen&wikipedia&or%DwikiD)ate%ory*AooksYaboutYfreedomYofYspeech
>.2./ About.com
http*DDatheism&about&comDodDbooksfreespeechD
>.2.2 1penn
http*DDonlinebooks&library&upenn&eduDwebbinDbookDbrowseK
typeRlcsubcZkeyRreedom[of[speech
$ork in pro%ress& 'appy to receive input at sabhlok(%mail&com ?

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