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Independence Day is an occasion to celebrate freedom from a colonial regime that not only cast chains of economic and political bondage upon Indians, but also fettered their freedom to think, dissent, and express themselves without fear. Demands for a right to free speech, and for an end to political, cultural and artistic censorship, were at the heart of our freedom struggle, and which culminated in the celebrated Article 19(1)(a) of the Indian Constitution. Last week, however, two events revealed that 70 years after Independence, the freedom of speech still occupies a fragile and tenuous place in the Republic, especially when it is pitted against the authority of the State. The first was the Jharkhand governments decision to ban the Sahitya Akademi awardee Hansda Sowvendra Shekhars 2015 book, The Adivasi Will Not Dance, for portraying the Santhal community in bad light. And the second was an order of a civil judge at Delhis Karkardooma Court, restraining the sale of Priyanka Pathak-Narains new book on Baba Ramdev, titled Godman to Tycoon.

Neither the ban on The Adivasi Will Not Dance, nor the injunction on Godman to Tycoon, are the last words on the issue. They are, rather, familiar opening moves in what is typically a prolonged and often tortuous battle over free speech, with an uncertain outcome. Nevertheless, they reveal something important: censorship exists in India to the extent it does because it is both easy and efficient to accomplish. This is for two allied reasons. First, the Indian legal system is structured in a manner that achieving censorship through law is an almost costless enterprise for anyone inclined to try; and second, the only thing that could effectively counteract this a strong, judicial commitment to free speech, at all levels of the judiciary does not exist. Together, these two elements create an environment in which the freedom of speech is in almost constant peril, with writers, artists, and publishers perpetually occupied with firefighting fresh threats and defending slippery ground, rather than spending their time and energy to transgress, challenge and dissent from the dominant social and cultural norms of the day.

The Jharkhand governments ban on The Adivasi Will Not Dance followed public protests against the writer, with MLAs calling for a ban on the book on the ground that it insulted Santhal women. The legal authority of the government to ban books flows from Section 95 of the Code of Criminal Procedure (which, in turn, was based upon a similarly worded colonial provision). Section 95 authorises State governments to forfeit copies of any newspaper, book, or document that appears to violate certain provisions of the Indian Penal Code, such as Section 124A (sedition), Sections 153A or B (communal or class disharmony), Section 292 (obscenity), or Section 295A (insulting religious beliefs). Under Section 96 of the CrPC, any person aggrieved by the governments order has the right to challenge it before the high court of that State.

The key element of Section 95 is that it allows governments to ban publications without having to prove, before a court of law, that any law has been broken. All that Section 95 requires is that it appear to the government that some law has been violated. Once the publication has been banned, it is then up to the writer or publisher to rush to court and try and get the ban lifted.

The CrPC is therefore structured in a manner that is severely detrimental to the interests of free speech. By giving the government the power to ban publications with the stroke of a pen (through a simple notification), the law provides a recipe for overregulation and even abuse: faced with political pressure from influential constituencies, the easiest way out for any government is to accede and ban a book, and then let the law take its own course. Furthermore, litigation is both expensive and time-consuming. Section 95 ensures that the economic burden of a ban falls upon the writer or the publisher, who must approach the court. It also ensures that while the court deliberates and decides the matter, the default position remains that of the ban, ensuring that the publication cannot enter the marketplace of ideas during the course of the (often prolonged and protracted) legal proceedings.

The most noteworthy thing about the Karkardooma civil judges injunction on Godman to Tycoon is that it was granted without hearing the writer or the publisher (Juggernaut Books). In an 11-page order, the civil judge stated that he had given the book a cursory reading, and examined the specific portion produced by Baba Ramdevs lawyers in court which he found to be potentially defamatory. On this basis, he restrained the publication and sale of the book.

In this case, it is the judicial order of injunction that is performing the work of Section 95 of the CrPC. Effectively, a book is banned without a hearing. The book then stays banned until the case is completed (unless the writer or publisher manages to persuade the court to lift the injunction in the meantime). Once again, the presumption is against the rights of writers, and against the freedom of speech and expression.

In fact, the Karkardooma civil judges injunction order is contrary to well-established principles of free speech and defamation law. Under English common law which is the basis of the Indian law of defamation it is recognised that injunctions, which effectively amount to a judicial ban on books, have a serious impact upon the freedom of speech, and are almost never to be granted. The only situation in which a court ought to grant an injunction is if, after hearing both sides in a preliminary enquiry, it is virtually clear that there could be no possible defence advanced by the writer or publisher. The correct remedy, in a defamation case, is not to injunct the book from publication on the first hearing itself, but to have a full-blown, proper trial, and if it is finally proven that defamation has been committed, to award monetary damages to the plaintiff.

In 2011, the High Court of Delhi held that this basic common law rule acquired even greater force in the context of Article 19(1)(a) of the Constitution, and reiterated that injunctions did not serve the balance between freedom of speech and a persons right to reputation. The high court reaffirmed the basic principle of our Constitution: that the presumption always ought to be in favour of the freedom of speech and expression. In this context, the Karkardooma civil judges order granting an injunction before even hearing the writer and publisher is particularly unfortunate.

While the banning of The Adivasi Will Not Dance reflects the structural flaws in our criminal law that undermine the freedom of speech, the injunction on Godman to Tycoon reveals a different pathology: even where the law is relatively protective of free speech, it will not help if judges who are tasked with implementing the law have not themselves internalised the importance of free speech in a democracy.

The first problem is a problem of legal reform. The solution is obvious: to repeal Sections 95 and 96, take the power of banning books out of the hands of the government, and stipulate that if indeed the government wants to ban a book, it must approach a court and demonstrate, with clear and cogent evidence, what laws have been broken that warrant a ban. The second problem, however, is a problem of legal culture, and therefore, a problem of our public culture. It can only be addressed through continuing and unapologetic affirmation of free speech as a core, foundational, and non-negotiable value of our Republic and our Constitution.

Gautam Bhatia, a Delhi-based lawyer, is the author of Offend, Shock, or Disturb: Free Speech Under the Indian Constitution

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The architecture of censorship - The Hindu