1.The upcoming crisis in Indian federalism
The national compact has to be reimagined so that post 2026, the most successful States are not punished politically
The Indian Constitution may face an unprecedented crisis in 2026 when there will be a dramatic change in the composition of the Lok Sabha. Since 1976, seats in the Lok Sabha have reflected the 1971 census and have not taken into account changes in the population. The primary reason for this has been unequal population growth among States. India’s most highly developed and prosperous States have been successful at family planning, while the poorer States continue to expand. The freeze was thus a chance to ensure that India’s most successful States are not punished politically for their success. Post 2026, when this compact ends, there will be a seismic shift in national power towards India’s poorest and most populated States, which is sure to generate much resentment among the States that will lose political and economic power and influence. This calls for a realignment in the balance between the democratic principle and the federal principle in the Indian Constitution.
The essence of the Union
As Article 1 of the Indian Constitution says, India is a Union of States. The choice of words is deliberate: it is the several States that, together, make up the Indian Union. Admittedly, unlike in other federations, there is no separate State citizenship or State Constitutions. However, one need only study the history that led up to the linguistic reorganisation of States in 1956, and to subsequent movements for Statehood afterwards, to understand that States are distinct associative communities, within the federal structure of the Indian Union. Indeed, in a polity as plural as ours – linguistically, culturally, and ethnically – it could not be any other way.
Big versus small States
Having established, thus, that States are important, self-contained units within the Indian constitutional scheme, we must turn to an inherent contradiction between the principles of democracy and federalism, when federal units are unequal in size, population and economics. This is easy to comprehend. In a democratic set up, all citizens are equal and are thus entitled to equal representation in governance. But this would imply that bigger States are likely to dominate the national conversation over smaller States. Small States fear that they would get a smaller share of the pie economically, a much reduced say in national issues, and be irrelevant in the political governance of the country.
In order to assuage this legitimate fear, federal democracies have incorporated into their governing structures various kinds of compromises to ensure a balance between democratic principles and federal ones.
For example, when the Americans adopted their Constitution, they protected smaller States in four ways. First, national powers over the States were limited. Second, each State regardless of size had two seats in the Senate, giving smaller States an outsized role in national governance. Third, Presidents are elected by electoral votes, which means they must win States rather than the total national population. Fourth, and deplorably, the slave-owning States which did not confer citizenship on slaves were allowed to count the slaves for purposes of representation, with each slave being counted as three-fifths of a person.
This essential structure remains the bedrock of the American Constitution today, though the Americans have rid themselves of slavery (fortunately) and have dramatically increased the scope of federal intervention. This federal structure has led to the severing of causational links between the national vote and presidential elections. Presidents George W. Bush and Donald Trump won without winning the popular vote.
The current movement to remove the power of a minority to filibuster legislation is based on democratic principles seeking to mitigate the pathology of excessive federalism: indeed, the American structures of government go so far in the other direction, that they have been accused of essentially facilitating and entrenching minority rule through the Senate, which favours rural, sparsely populated States that are also predominantly white.
The Indian structure
Other federations (Switzerland and Belgium come to mind) have adopted other — less extreme — forms of reconciliation. However, India’s quasi-federal structure has always been sui generis. Our founders knew that India’s diversity made federalism inevitable, but, fearing fissiparous tendencies among States that had never been a single political unit, they also created a strong centre. While history has been chequered, the fears for Indian national unity simply on the basis of giving States greater powers have proven to be unfounded — and if at all, it has been the other way. The 1956 reorganisation of States on linguistic lines was a popular recognition of federal principles and yet did not result in separatist tendencies. Since then, new States within the Union have been created in response to the demands of people for greater autonomy.
In India, any clash between federal principles and democracy will inevitably also have linguistic, religious and cultural implications and may result in new forms of sub-regional chauvinism. Thus, there is an urgent need to reimagine our national compact — another freeze will only kick this thorny issue down the road and will continue to perpetuate an increasingly undemocratic set up.
Fine-tune these elements
We have the components of such a new balance that need to be fine-tuned to Indian realities. First, the powers of States vis-à-vis the Centre contained in the Lists and in the provisions dealing with altering boundaries of States must be increased to assuage the fear of smaller States that they will be dominated by bigger ones. There is no reason to believe that empowering our States would cause national disintegration. On the contrary, more localised decision-making is bound to increase national prosperity. Indeed, this was the entire goal of the creation of Panchayat governance through the 73rd and 74th Amendments to the Constitution, whose promise remains — unfortunately — unrealised.
Second, the role and composition of the Rajya Sabha, our House of States, must be expanded. This would allow smaller States a kind of brake over national majoritarian politics that adversely impact them.
Third, constitutional change and the change in financial redistribution between the States must require the consent of all or nearly all States (the fate of the Goods and Services Tax, or GST, serves as a salutary warning in this regard). Constitutional provisions dealing with language and religion must also be inviolate. If India is a joint venture between majority and minority shareholders, the minority must be protected by a comprehensive list of “consensus items” that require unanimity — or at least, a super-majority — and not simple majority.
Fourth, serious thought must be given to breaking up the biggest States into smaller units that will not by themselves dominate the national conversation.
The unity of India is, of course, the fundamental premise underlying this discussion; but this unity does not depend on an overbearing Centre for its survival. National bonds of affection and patriotism will not be severed by devolution of powers though they will be at least severely strained when one part of the country is empowered over another. Lampedusa’s Il Gattopardo contains the memorable quote, Everything must change for everything to remain the same. This includes the question of how we are to balance the competing claims of democracy and federalism, in the years to come.
2.Disable unconstitutional sections
Several steps can be taken to ensure that people are not booked under laws held unconstitutional
Recently, while hearing an application filed by the People’s Union for Civil Liberties (PUCL), the Supreme Court expressed shock that despite its declaration of Section 66A of the Information Technology (IT) Act, 2000 as being unconstitutional six years ago (Shreya Singhal vs. Union of India), criminal cases are still being registered by the police under this Section. The PUCL said that 1,307 cases had been registered since 2015 across States and therefore the Court must issue guidelines against the registering of FIRs by the police under this head.
In 2015, the Supreme Court had declared Section 66A of the IT Act, which made online posting of information considered as “grossly offensive” a crime punishable by jail, as being violative of Article 19(1)(a) of the Constitution and not saved under the ambit of reasonable restrictions defined in Article 19(2). It had also said that the expressions used in Section 66A were open-ended, undefined and therefore arbitrary.
In 1983, the Court had struck down Section 303 of the Indian Penal Code (IPC), which provided capital punishment for murder by a person serving a life term in another case, as being unconstitutional. In Mithu v. State of Punjab, it heldthat the punishment was not based on rational principle as no judicial discretion was available to a life convict. In 2018 (Navtej Singh Johar v. Union of India), the Court read down Section 377 of the IPC criminalising “unnatural sex” as being unconstitutional. Similarly, in Joseph Shine v. Union of India (2018), the Court held adultery as defined under Section 497 of the IPC as being manifestly arbitrary, discriminatory and violative of the dignity of a woman and therefore, unconstitutional.
Negligence by the police
Undoubtedly, the registration of FIRs by the police under these sections is illegal and violative of the Court’s directions. Though such cases may not always be registered intentionally, negligence by Station House Officers (SHOs) must be nipped in the bud. The supervisory police officers at the sub-divisional level must ensure that such sections, if invoked due to lack of knowledge at the police station level, are removed at the earliest. The Superintendents of Police must fix responsibility on the erring officer and take corrective action. Everyone responsible for the negligence should not only be answerable to the courts for contempt but also be liable for departmental action. If the SHOs and others don’t mend their ways despite reprimands, their annual confidential reports could be dented with adverse entries. Action can also be initiated under the new Section 166A of the IPC which provides punishment for up to two years for disobeying directions under the law.
The best way to avoid registration of offences under sections held unconstitutional is to educate police officers of all ranks about such provisions in basic training institutes. Second, as the Attorney General of India, K.K. Venugopal, had suggested, there could be a mention in brackets near the provision that the provision has been struck down, so that FIRs are not registered under those sections. Third, unconstitutional sections of the IPC can be disabled in the Crime and Criminal Tracking Network and Systems (CCTNS). Most States register FIRs in the CCTNS either on a real-time basis or in offline mode and synchronise this data with the State Data Centre as soon as connectivity is restored. In case police stations don’t have connectivity, the data (i.e., FIR in electronic format) are taken to the nearest police station that has connectivity and uploaded. The CCTNS came in handy when the Supreme Court directed the States in 2016 to upload FIRs on official websites within 24 to 72 hours of registration. In Chhattisgarh, we have disabled these Sections in the system. Other States could follow suit.
The police must ensure that no FIR is registered under unconstitutional sections and no one is harassed for the negligent actions of SHOs.
According to Article 19(1)(a): All citizens shall have the right to freedom of speech and expression.
- This implies that all citizens have the right to express their views and opinions freely.
- This includes not only words of mouth, but also a speech by way of writings, pictures, movies, banners, etc.
- The right to speech also includes the right not to speak.
- The Supreme Court of India has held that participation in sports is an expression of one’s self and hence, is a form of freedom of speech.
- In 2004, the SC held that hoisting the national flag is also a form of this freedom.
- Freedom of the press is an inferred freedom under this Article.
- This right also includes the right to access information because this right is meaningless when others are prevented from knowing/listening. It is according to this interpretation that the Right to Information (RTI) is a fundamental right.
- The SC has also ruled that freedom of speech is an inalienable right adjunct to the right to life (Article 21). These two rights are not separate but related.
- Restrictions on the freedom of speech of any citizen may be placed as much by an action of the state as by its inaction. This means that the failure of the State to guarantee this freedom to all classes of citizens will be a violation of their fundamental rights.
- The right to freedom of speech and expression also includes the right to communicate, print and advertise information.
- This right also includes commercial as well as artistic speech and expression.
Importance of Freedom of Speech and Expression
A basic element of a functional democracy is to allow all citizens to participate in the political and social processes of the country. There is ample freedom of speech, thought and expression in all forms (verbal, written, broadcast, etc.) in a healthy democracy.
Freedom of speech is guaranteed not only by the Indian Constitution but also by international statutes such as the Universal Declaration of Human Rights (declared on 10th December 1948), the International Covenant on Civil and Political Rights, the European Convention on Human Rights and Fundamental Freedoms, etc.
- This is important because democracy works well only if the people have the right to express their opinions about the government and criticise it if needed.
- The voice of the people must be heard and their grievances are satisfied.
- Not just in the political sphere, even in other spheres like social, cultural and economic, the people must have their voices heard in a true democracy.
- In the absence of the above freedoms, democracy is threatened. The government will become all-too-powerful and start serving the interests of a few rather than the general public.
- Heavy clampdown on the right to free speech and free press will create a fear-factor under which people would endure tyranny silently. In such a scenario, people would feel stifled and would rather suffer than express their opinions.
- Freedom of the press is also an important factor in the freedom of speech and expression.
- The second Chief Justice of India, M Patanjali Sastri has observed, “Freedom of Speech and of the Press lay at the foundation of all democratic organizations, for without free political discussion no public education, so essential for the proper functioning of the process of Government, is possible.”
- In the Indian context, the significance of this freedom can be understood from the fact that the Preamble itself ensures to all citizens the liberty of thought, expression, belief, faith and worship.
- Liberal democracies, especially in the West, have a very wide interpretation of the freedom of speech and expression. There is plenty of leeways for people to express dissent freely.
- However, most countries (including liberal democracies) have some sort of censorship in place, most of which are related to defamation, hate speech, etc.
- The idea behind censorship is generally to prevent law and order issues in the country.
The Need to Protect Freedom of Speech
There are four justifications for freedom of speech. They are:
- For the discovery of truth by open discussion.
- It is an aspect of self-fulfilment and development.
- To express beliefs and political attitudes.
- To actively participate in a democracy.
Restriction on Freedom of Speech
Freedom of speech is not absolute. Article 19(2) imposes restrictions on the right to freedom of speech and expression. The reasons for such restrictions are in the interests of:
- Sovereignty and integrity of the country
- Friendly relations with foreign countries
- Public order
- Decency or morality
- Hate speech
- Contempt of court
The Constitution provides people with the freedom of expression without fear of reprisal, but it must be used with caution, and responsibly.
Freedom of Speech on Social Media
The High Court of Tripura has held that posting on social media was virtually the same as a fundamental right applicable to all citizens, including government employees. It also asserted that government servants are entitled to hold and express their political beliefs, subject to the restrictions laid under the Tripura Civil Services (Conduct) Rules, 1988.
In another significant judgment, the HC of Tripura ordered the police to refrain from prosecuting the activist who was arrested over a social media post where he criticized an online campaign in support of the Citizenship Amendment Act (CAA), 2019 and warned people against it. The High Court held that these orders are in line with the very essence of the Indian Constitution.
The Supreme Court of India had asked the Law Commission to make recommendations to the Parliament to empower the Election Commission to restrict the problem of “hate speeches” irrespective of, whenever made. But the Law Commission recommended that several factors need to be taken into account before restricting a speech, such as the context of the speech, the status of the maker of the speech, the status of the victim and the potential of the speech to create discriminatory and disruptive circumstances.
Freedom of Speech in Art
In relation to art, the court has held that “the art must be so preponderating as to throw obscenity into a shadow or the obscenity so trivial and insignificant that it can have no effect and may be overlooked.”
There are restrictions in what can be shown in cinemas and this is governed by the Cinematograph Act, 1952.
Safeguards for Freedom of Speech and Expression under Article 19(2)
The Constitution of India guarantees freedom of speech and expression to all its citizens, however, these freedom are not absolute because Article 19 (2) of the constitution provides a safeguard to this freedom under which reasonable restrictions can be imposed on the exercise of this right for certain purposes. Safeguards outlined are discussed below-
Article 19(2) of the Indian constitution allows the state to make laws that restrict freedom of speech and expression so long as they impose any restriction on the –
- The state’s Security such as rebellion, waging war against the State, insurrection and not ordinary breaches of public order and public safety.
- Interest id Integrity and Sovereignty of India – this was added by the 16th constitutional amendment act under the tense situation prevailing in different parts of the country. Its objective is to give appropriate powers to impose restrictions against those individuals or organizations who want to make secession from India or disintegration of India as political purposes for fighting elections.
- Contempt of court: Restriction can be imposed if the speech and expression exceed the reasonable and fair limit and amounts to contempt of court.
- Friendly relations with foreign states: It was added by the First Amendment Act, 1951 to prohibit unrestrained malicious propaganda against a foreign-friendly state. This is because it may jeopardize the maintenance of good relations between India and that state.
- Defamation or incitement to an offense: A statement, which injures the reputation of a man, amounts to defamation. Defamation consists in exposing a man to hatred, ridicule, or contempt. The civil law in relating to defamation is still uncodified in India and subject to certain exceptions.
- Decency or Morality – Article 19(2) inserts decency or morality as grounds for restricting the freedom of speech and expression. Sections 292 to 294 of the Indian Penal Code gives instances of restrictions on this freedom in the interest of decency or morality. The sections do not permit the sale or distribution or exhibition of obscene words, etc. in public places. However, the words decency or morality is very subjective and there is no strict definition for them. Also, it varies with time and place.
Need of these Safeguards of Freedom of Speech & Expression
- In order to safeguard state security and its sovereignty as a speech can be used against the state as a tool to spread hatred.
- To strike a social balance. Freedom is more purposeful if it is coupled with responsibility.
- Certain prior restrictions are necessary to meet the collective interest of society.
- To protect others’ rights. Any speech can harm a large group of people and their rights, hence reasonable restrictions must be imposed so that others right is not hindered by the acts od one man.
Right to Information
As mentioned before, the right to information is a fundamental right under Article 19(1). The right to receive information has been inferred from the right to free speech. However, the RTI has not been extended to the Official Secrets Act.
3.Supreme Court offers a way out of Kathmandu political impasse
Verdict is another rebuke of Oli’s attempts at one-upmanship
The decision by a five-member Constitutional Bench of the Supreme Court of Nepal to yet again overturn Prime Minister Khadga Prasad Oli’s dissolution of the House of Representatives was expected. Mr. Oli’s decision, ratified by President Bidhya Devi Bhandari who repeated the action taken in December 2020, came about in controversial circumstances in late May.
After both Mr. Oli and the Nepali Congress’s Sher Bahadur Deuba were unable to establish majority support in Parliament in trust votes, they presented claims to the President with signatures affirming support. Mr. Deuba’s claim presented to Ms. Bhandari with signatures of 149 legislators was more valid than Mr. Oli’s, whose claim of support from 153 lawmakers were based on signatures of the leaders of the parties rather than from each individual.
The discrepancy in Mr. Oli’s claims was due to the fact that both the ruling Communist Party of Nepal (Unified Marxist-Leninist) (UML) and the Janata Samajbadi Party (JSP) in the Opposition were vertically split with rebel factions supporting Mr. Deuba’s candidacy, even though the parliamentary leaders of the parties gave their signatures affirming support for Mr. Oli.
Right before the President’s decision, Mr. Oli had asked her to invoke Article 76 (5), which allows the President to appoint a member with majority support of the House through representation. However, the clause clearly specifies that this is possible only if the Prime Minister goes through a trust vote [Article 76 (3)], and Mr. Oli’s ploy to seek the President’s invocation of Article 76(5) raised the Opposition’s hackles. Ms. Bhandari rejected both claims and decided to dissolve the House and called for general elections to be held in November.
The Supreme Court has now not only overruled Mr. Oli’s decision to dissolve the House, but also said the rejection of Mr. Deuba’s claim with the support of 149 legislators of the 275-member House was unconstitutional as per Article 76(5). This led to Ms. Bhandari’s appointment of Mr. Deuba as the new Prime Minister.
The 149 lawmakers supporting Mr. Deuba’s candidacy included those from Pushpa Kamal Dahal-led Communist Party of Nepal (Maoist-Centre), the Baburam Bhattarai-Upendra Yadav-led faction of the JSP and the Madhav Nepal-Jhalanath Khanal-led faction in the ruling UML.
The court’s ruling also offered a way out of the political impasse – the Bench has allowed lawmakers to utilise their individual agency during the trust vote by making it clear that they are free to defy their parties’ whips. But in a party system that thrives heavily on patronage, whether individual lawmakers will apply such an agency during the trust vote remains to be seen.
It is still not clear if Mr. Madhav Nepal’s faction within the UML will decide to vote formally for Mr. Deuba in the trust vote. Already Mr. Oli has sought to avoid a split within his party by coming up with concessions to the Nepal-Khanal faction, and this could still throw a spanner in the works for Mr. Deuba. If Mr. Deuba fails again, the extended stalemate could only result in calling for fresh elections later this year.
Nevertheless, the Supreme Court’s decision is yet another rebuke of Mr Oli’s attempts at one-upmanship that set the stage for a constitutional breakdown.
The ruling also brings scrutiny on the role of Ms. Bhandari whose decisions to rubber-stamp her former party colleague, Mr. Oli, have now been overturned twice by the court.
The President’s office had in fact argued in a petition to the court last month that her actions cannot be subject to a judicial review, but the verdict categorically rejected this view by saying, “The action taken by the President falls under the executive function. In such a situation, if the President’s moves are kept out of the judicial review it will be an attack on the principle of the separation of power, control and balance”, as reported in The Kathmandu Post.