Collective Conservatism and the Constituent Assembly Debates: The Case of Free Speech in India

AuthorMalvika Maheshwari
Published date01 December 2017
Date01 December 2017
Subject MatterSpecial Section: Conservatism
05INP727979_F.indd Article
Collective Conservatism and
Studies in Indian Politics
5(2) 218–232
the Constituent Assembly Debates:
© 2017 Lokniti, Centre for the
Study of Developing Societies
The Case of Free Speech in India
SAGE Publications
DOI: 10.1177/2321023017727979
Malvika Maheshwari1
This article outlines the conceptual foundation of India’s free speech regime by focusing on the debates
of the Constituent Assembly (1946–1949), and traces the development of the Article 19 of the
constitution, which guarantees all citizens the right to free speech and expression, albeit certain
‘reasonable restrictions’. While offering a synoptic account of the conservative side of its development—
as framers negotiated the discrepancies between their imagined ideal and the existing, often-conflicting
reality—the idea here is not to uncover some grand master plan of Indian democracy from which it has
faltered, but to explore ways in which it might lend a fissure to violent outbursts of ‘hurt sentiments’
in contemporary India, which impinges upon the idea and enjoyment of free speech in general, and
freedom of artists in particular.
Free speech, artists, Constituent Assembly, constitution, conservative
Article 19 of the Indian Constitution guarantees citizens the right to freedom of speech and expression,
with reasonable restrictions that do not affect the operation of any existing law, sovereignty and integrity
of India, security of the state, among other similar concerns. This article tells the story of its formulation
by focusing on the debates of the Constituent Assembly that took place between 1946 and 1949, which
birthed free speech as a fundamental right and restrictions fundamental to that right. These debates
provide the context for discussions on violence in contemporary India, which impinges on the right to
free speech in general and freedom of artists in particular. Statements like ‘Artists’ right to speak is the
reason why Hindus are suppressed everywhere’, or ‘How can insulting someone become a right?’
Or ‘The way to hell is paved by good intentions: good intentions are that art should be given freedom.
This is a way to hell’ are classic responses for the increasing attacks on artists.2 Keeping in mind the
1 Ashoka University, Kundli, Haryana, India.
2 Quotes from interviews conducted between 2008 and 2011 with members of the Sangh parivar and Shiv Sena, who have been at
the forefront of the attacks against artists since the early 1990s.
Corresponding author:
Malvika Maheshwari, Ashoka University Campus, Plot #2, Rajiv Gandhi Education City, Post Office Rai,

Near Rai Police Station, Sonepat, Haryana 131029, India.

Maheshwari 219
recurrent invocation of the Constitution and the language of rights by those who turn to violence, this
article explores whether the creation of Article 19 itself challenges in some way the very premise of
the commitment to constitutional practice, that governance be based on deliberation, consensus and
When Indians formally began to make demands for civil rights to the British, through the Constitution
of India Bill of 1895, the Commonwealth of India Bill of 1925, the Nehru Report of 1928, the Karachi
Resolution of 1931, the Sapru Report of 1945 and finally through the Objectives Resolution of 19463
issue of free speech was articulated through a stress on ‘political speech’ (Barendt, 2005; Rawls, 1993;
Schauer, 1982; Weinstein, 1999) to rally mass support against colonial domination, for democratic self-
governance, and to claim the public domain for those hitherto excluded from it. In the process, various
other forms of speech (press, artistic, religious, scientific, etc.) were assigned a derivative position
whereby, over time, their protection depended on their similarity to the dominant political discourse, and
protection of popular sovereignty.
On the other hand, like many British colonies, India inherited a vast regime of censorship and regula-
tory laws for speech at the time of its independence in 1947. Apart from the creation of Common Law
and its various manifestations through the Indian Penal Code of 1860, the English introduced specific
ordinances that affected artists more than others: Dramatics Performance Act of 1876 against theatre,
Press Bill of 1910 for restrictions on literature and the Indian Cinematograph Act of 1920 to regulate
cinema. These legislations armed the colonial rulers with an assortment of coercive strategies, setting a
trap around legally acceptable speech norms to eliminate offences, and for the first time formalized
the contours of different kinds of speech, creating, in Foucauldian sense ‘a differential administration of
illegalities’. But instead of being rejected, this colonial framework was ‘preserved, sustained and
expanded’ (Dhavan, 2008, p. 11) for governance in independent India. Reflecting on the interplay of the
state-artist relationship, this article asks: given that the foundation of Indians’ demands and deliberation
over right to free speech was essentially political, can we flesh out from the Assembly debates an under-
standing of the limits of specific forms of speech such as artistic? In what ways can the premises behind
Article 19 be discovered as contingent or credulous to the prevailing violence, which though embodies
constitutional crisis of a specific nature, in broader terms may well confront the exercise of constitutional
The Assembly in its consideration of free speech did not acknowledge the demands and dangers of
various kinds of speech, including artistic. For one, constitutions need hardly be precise and are often
laden with ambiguities. Importantly, speech, at the time of drafting of the constitution, was considered
of value not so much for being a form of ‘self-expression or self-actualization as much as something
essential for collective self-determination’ (Fiss, 1996, p. 3). What was important was the construction
of broad categories by which the public sphere could be organized, among other reasons, for democra-
cy’s administrative purposes. Constitution framers assumed that foregrounding a generic idea of free
speech reflected the basic conditions for enabling a rational public discourse, one that acknowledged a
degree of individual autonomy, which it did. At the same time, by not spelling out nuances for different
forms of speech, the Assembly was in actuality realizing its objectives—the task of writing a constitution
for an economically weak and culturally diverse population. Its deliberations mirrored the ‘political
struggles’ and [agenda] of an ‘elite eager to give India a new social order’ (Bhargava, 2002, p. 27) in
which various strands of a ‘fairly long history’ of Indian liberalism came together (Bayly, 2012) includ-
ing a collective commitment to birth a liberal democracy. The creation of Article 19 was a testament
to this liberal project, although it need not be traced by focusing only on the ideological positions of
3 For a historical overview of the framing of India’s Constitution, see Austin (2008).


Studies in Indian Politics 5(2)
individual members or on arguments like making the individual or the group the basis for deliberating
over rights (Bhargava, 2000; Hansen, 1999; Khilnani, 1997; Mahajan, 1998).
The Assembly’s liberal project can be traced also in its collective commitment to accommodate
different points of view, diverse ideological tendencies and competing conceptions of good with a focus
on consensus generation.4 The framing of Article 19 demonstrates that the principal value of liberalism,
the centrepiece of the imagination of India’s democracy, is derived from the Assembly’s remarkable
focus and ability to generate internal consensus through debate, compromise, accommodation and
improvisation. This, however, does not mean that there were no disagreements or tense moments of
discord among Assembly members. Rather, it is precisely the presence of contrary extremes that fortify the
remarkability of consensus generation, which could only be achieved, among other ways, by overlook-
ing, postponing and even putting aside discussions on time-consuming nuances that risked further
dissension. Articulations on specific forms of speech, including artistic, were ignored in favour of a more
generalized discourse that carried minimum possibilities for the debates becoming unpredictable or
unmanageable. The implication of this was that it brought in its wake a somewhat conservative vision of
the right to free speech. Despite inaugurating a new political era, in the Assembly’s consensus were
reflected the limits of political change: a collective faith in guarding what is familiar; the primacy of
authoritative institutions; the creation and maintenance of its power by building on the options of the
present, rather than starting with a clean state.
Many individual responses to questions of free speech were not conservative, with a distinctive
collective ambition precipitating progressive change, yet a conservative mood emerges in the shadow,
not as a predominant style of the Assembly, indicative of the stakes an organized group might have in
maintaining established positions and selectively defending existing institutions. As the proceedings of
the Assembly show, its members did not shun free discussion, nor were they in...

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