Review: Abhinav Chandrachud’s Republic of Rhetoric: Free Speech and the Constitution of India

Abhinav Chandrachud’s Republic of Rhetoric: Free Speech and the Constitution of India (2017) is not Gautam Bhatia’s Offend, Shock and Disturb: Free Speech under the Indian Constitution (2016).

Admittedly, both books are examinations of free speech law in India by young advocates who, between their legal practices and busy careers as legal writers, seemingly never sleep. (They do, however, write for different law blogs. Bhatia hosts the extraordinary Indian Constitutional Law and Philosophy, whereas Chandrachud writes for this blog.)

But they are different books with different priorities. Even given the overlap in subject matter, Bhatia’s book devotes greater attention to attempting to identify consistent doctrinal trends and ideological underpinnings in Indian free speech law – and, in doing so, to identifying inconsistencies and fallacies within decisions and in lines of authority. (My review of Bhatia’s book can be found here.) Chandrachud’s book, by contrast, places greater emphasis upon the historical context of the legal status of free speech in India, including detailed treatment of legal and political events before 1947, in support of its key thesis: that ‘a closer look at [the] history and evolution’ of the Constitution of India ‘reveals that the enactment of the Constitution made little or no substantive difference to the right to free speech in India’ (p 4). (Of course, Bhatia’s book also examines historical developments and Chandrachud’s book criticises misbegotten lines of authority; the latter work is concerned with ‘the existing state of the law of free speech in India’ (p 13) in general, not merely restrictions imposed by the Raj.)

Both books are analysing, or arguing, different things in different ways. We are very lucky to have them both.

Chandrachud’s book can broadly be divided into two parts. After an overview of the book’s themes in chapter 1, chapters 2 to 6 are predominantly historical – describing the roots of legal guarantees of freedom of speech and of the press in India (including by reference to comparable developments in the United Kingdom) under the Raj and under the Constitution. Chapters 7 to 15 examine particular case studies – obscenity (chapters 7-8), contempt of court and the sub judice rule (chapters 9-11), criminal defamation (chapter 12), hate speech (chapter 13), insults to national symbols (chapter 14) and freedom of the press (chapter 15). This division is not rigid; chapter 2, for example, is predominantly historical but contains a detailed examination of the history of sedition offences, whereas chapter 10 draws upon unpublished research by the late George H. Gadbois, jr to recount controversial comments made by Nehru on former justice Vivian Bose in 1959.

Republic of Rhetoric covers a wide and complicated range of aspects of free speech in clear, straightforward prose. Its accounts of particular areas of the law move smoothly between recounting the facts of particular cases and adopting a more general view of the content of the law. Its historical narratives effectively balance political history with a reckoning of how this history has shaped the Constitution and its interpretation. It wears the substantial amount of scholarly and legal research underpinning its analysis (as demonstrated by its extensive endnotes) lightly, never passing too far into technicalities or complex legalese. Its detailed account of the First Amendment in chapter 5, in particular, draws extensively upon Lok Sabha debates and archival materials to present a far more comprehensive and nuanced account of the controversies that followed Brij Bhushan and Romesh Thapar than one would necessarily expect given the amount of ground that the book needs to cover. That is, despite the broad sweep of the book’s topics, it is still capable of addressing particular debates and controversies with close attention to detail.

My principal criticism of Republic of Rhetoric is structural. Even given that the above-noted division between chapters 2 to 6 and 7 to 15 is somewhat permeable, there is still a fairly sharp distinction between the two. Whereas there is a clear narrative running through the early chapters (from nineteenth-century experiments in codification to responses to separatist and nationalist movements) which lends itself well to Chandrachud’s thesis regarding colonial continuity, the subsequent case study chapters digress to some degree from this thesis, even given its occasional recurrence (for example, in the discussion on criminal defamation). Although this is of course consistent with Chandrachud’s book’s concern for the existing state of free speech in India, these chapters lack the cohesion and focus of earlier sections (potentially due to this lack of a tightly-defined and unifying argument) and do not always segue smoothly from one to another. These issues are compounded by the lack of a concluding chapter to synthesise the themes and concerns of the first and second halves of the book, which hence seems to end with a jarring halt.

Nonetheless, Republic of Rhetoric is a very welcome book. It is an accessible, engaging and learned account, which skilfully employs its author’s remarkable gifts as a chronicler of Indian legal history.

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