Double-talk on free speech

The colonial government imposed harsh punishment for sedition, but when it came to non-political speech like art and literature, British India and England, Briton and Indian, were treated alike

Illustration: Satwik Gade

It is intuitive to think that Indians did not enjoy the right to free speech in British India. After all, the law of sedition heavily discriminated against us. In 19th century England, for example, sedition was a mere “misdemeanour” or lesser offence which attracted a maximum sentence of only two years in prison, but a person convicted of sedition under the Indian Penal Code could be sent off or “transported” to an overseas prison for life. However, not all speech-related laws in British India were repressive. The colonial law of obscenity, for instance, was very similar to its counterpart in the metropole. While subversive speech was heavily restrained in British India, non-political art and literature were assessed through the same legal lens as they would have been in England at the time.

The Hicklin test

In 19th century England, obscenity was punishable with a maximum sentence of three months in prison. What was obscene there was authoritatively defined in a case decided in 1868,

Regina v. Hicklin . The question in this case was whether a pamphlet called “The confessional unmasked” was obscene. The pamphlet attacked Roman Catholicism and contained extracts of instructions given to Roman Catholic priests. About half of it dealt with subjects which were sexually explicit, for example: “How women may commit adultery with impunity”, “How they may afterwards deceive their husbands”. While finding the pamphlet to be obscene, Chief Justice Cockburn laid down the classic test that something would be considered obscene if its tendency was “to deprave and corrupt” or excite “thoughts of a most impure and libidinous character” in “those whose minds are open to such immoral influences”.

The ‘Hicklin test’ of obscenity, as it came to be known, was particularly regressive for two reasons. First, while judging whether a work was obscene or not, a court did not have to consider the work as a whole, but it could look merely at isolated passages within it. As one commentator later wrote, the Hicklin test made four words count for more than four hundred pages. Second, to decide whether something was obscene, a court had to place itself in the shoes of the most immature adolescent, or the most hypersensitive or perverted adult. Unlike other legal tests, the Hicklin test did not look at art or literature from the standpoint of the “reasonable person”.

In England, the Hicklin test underwent modification in the 1950s. In

R v. Warburg (1954), for example, Justice Stable informed the jury that a work could not be considered obscene merely because it dealt with acts of sexual passion. Had it not been for sex, he said, “the human race would have ceased to exist thousands of years ago.”

Like England, the offence of obscenity in British India attracted a maximum sentence of three months’ imprisonment. The Hicklin test was also readily followed by the High Courts here. For example, in

Public Prosecutor v. Mantripragada (1916), the Madras High Court found a Telugu booklet called “Vidi Natakam”, originally written by the 15th century writer Srinadha, obscene. The 37th stanza of this booklet was found “calculated to excite lust and to instil improper ideas into the minds of the reader.”

However, not all obscenity cases in British India resulted in convictions. For example, in Emperor v. Harnam Das (1947), the Lahore High Court was concerned with an Urdu book which provided sexual advice for married couples. The High Court held that the book was not obscene. It was found to be “undoubtedly a serious work intended to give advice to married people, and particularly husbands, on how to regulate the sexual side of their lives to the best advantage”. Crudeness, the court said, was not the same as obscenity.

In Kherode v. Emperor (1912), the Calcutta High Court was considering whether a book containing a story on the lives of Radha and Krishna was obscene. While applying the Hicklin test, Justice Chatterjea held that Hindus generally did not think of Krishna and Radha as human beings, and did not “judge their doings by the standard of human conduct”. For this reason, the book did not “raise immoral thoughts in people”, and was not obscene.

The Hicklin test was at times also sensibly modified by courts in British India. For example, in one of the first cases to deal with obscenity, the Allahabad High Court in Empress v. Indarman (1881) held that obscenity must be judged from the standpoint of “ordinary and decent-minded persons”. In other words, contrary to the Hicklin test, it was the reasonable person, not the perverted adult or immature adolescent, from whose eyes the obscenity of a work was to be assessed. Eventually, most of the Hicklin test has been discarded by the Supreme Court of independent India.

Non-political speech

Sedition was subversive. It called into question the legitimacy of the British Empire and threatened the foundations of the colonial state. It was therefore natural for the colonial government to heavily crack down on seditious speech. Political writings were heavily penalised in “vernacular” or Indian language newspapers, newspapers like Lokmanya Tilak’s Kesari , because colonial courts unfairly presumed that those who read them were ignorant and unintelligent, and therefore more susceptible to seditious influences. However, when it came to non-political speech like art and literature, British India and England, Briton and Indian, were surprisingly treated alike.

Abhinav Chandrachud is an advocate at the Bombay High Court.