Pilate’s Paramount Duty: Constitutional 'Reasonableness' and the Restriction of Freedom of Speech and Assembly
T. John O'Dowd
UCD School of Law
April 1, 2010
COMPARATIVE CONSTITUTIONALISM IN SOUTH ASIA, Khilnani, Sunil, Raghavan, Vikram and Thiruvengadam, Arun, eds., Oxford Univ Press India, 2010
Sir James Fitzjames Stephen was one of the most subtle and obstinate critics of the arguments which John Stuart Mill put forward in On Liberty (1859), particularly Mill’s defence of liberty of thought and discussion. Stephen began composing this reply to Mill on the voyage back to England from India, where amongst other official duties, he had been responsible for the revision of the Indian Penal Code (IPC) so as to introduce an offence of sedition. Against this background it is particularly interesting to examine how the Indian courts have dealt with the IPC offences of sedition, of promoting enmity, hatred or ill-will between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to the maintenance of harmony, of making imputations, assertions prejudicial to national integration, of committing deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs and of making statements conducting to public mischief. In broad terms, these or similar offences are to be found also in the Penal Codes of Pakistan, Bangladesh and Myanmar (Burma). This book chapter focuses on India, as the only one of those countries in which (the Emergency apart) national electoral democracy and constitutional judicial review have consistently functioned. The chapter examines how the Indian courts have interpreted these parts of the IPC in the light of the constitutional guarantee of freedom of expression. It also considers the scope and use of the powers to impose prior restraints on freedom of speech and freedom of assembly which state governments and the executive magistracy have under sections 95 and 144 of the Indian Code of Criminal Procedure. The chapter also compares the approach of the Indian courts to expression likely to provoke enmity, hatred or ill-will on grounds of religion (or caste) with the approach taken to such matters by the European Court of Human Rights. It concludes by re-examining the disagreement between Mill and Stephen on the scope of liberty of thought and discussion, in the light of these examples of the relevant law and practice in South Asia.
Number of Pages in PDF File: 21Accepted Paper Series
Date posted: April 5, 2010
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