ORIGIN OF FREEDOMS & LIBERTIES AND RELIGIOUS PERSPECTIVE


Human beings with unique abilities and capabilities of thinking, understanding, imagining, forming associations, and devising the rationale, have made them the most distinct, evolved, and successful species on this Planet. The origin of freedoms & liberties can be traced to the inception of humankind from the Stone Age and the instinctual component of freedoms & liberties would be the innate nature of human beings that comes into being with the birth as a free being. Freedoms & liberties complemented with a power to express freely, the human beings have brought the significant positive changes to the world through various revolutions as demonstrated in the reliable historical references.

Religion expressed freedoms & liberties in a slightly different way within its religious code: Vedas, Upanishads, and other ancient religious texts had semblance to the human rights. Freedoms & Liberties had been propagated by Catholic Church within its institutional structure to convey ecclesiastical laws through Papal Bull which is the Public Decree issued by the Popes in the Vatican.

HISTORICAL DOCUMENTS – CORPUS JURIS CIVILIS & MAGNA CARTA


Latin Codex Justinianus
– Code of Justinian – ‘Body of Civil Law’, is a collection of laws and legal interpretations established between 529 and 565 CE under the sponsorship of Byzantine Emperor Justinian I. In those times, Slavery was an institution and this code formalized the freedoms of freedmen and slaves in distinct ways. It further categorized liberties into three distinct categories of King’s subjects.

Magna Carta– Under a revolt by Barons, King John was forced to sign Magna Carta on 15 June 1215. Magna Carta was written in Latin, but the spoken language of that time was French. Clause 39 of the Magna Carta held that no freeman shall be taken, imprisoned, disseised, banished, or in any manner destroyed, and we shall neither go upon nor send upon any freeman except upon the lawful judgment of his peers or according to the law of the Land. This omnibus document, in a sense, was the formal common law enforceable legislation that is a fountainhead of freedoms and liberties that we cherish in the Modern Age. Although, Pope Innocent III – an extremely powerful Pope – annulled the Magna Carta on 24 August 1215 as he got annoyed with the arrogant behaviour of Barons who were challenging his authority through the Magna Carta. Later on, Magna Carta was reintroduced and got amended from time to time.

CONSTITUTIONAL CULTURE


A constitution is a social contract between the government and its citizens, and the purpose of the Constitutions, in orderly societies, is to ensure that the freedoms & liberties are safeguarded for ourselves & our posterity. The States and Union shall have coordination in terms of Governance, justice is delivered to all segments of the society, maintenance of peace & tranquillity and to promote general welfare in society are other features of a Constitution. A society governed by the Rule of Law ought to respect constitutionally guaranteed freedoms & liberties for all times to come. The constitution of the United States is one of the oldest constitutions in the World came into operation in 1789. In the same year, the Bill of Rights was introduced that had 10 amendments ensuring the panoply of Freedoms and Liberties guaranteed to its citizens. The constitution of India was a big leap in the direction of guaranteeing freedoms & liberties as compared to the Government of India Act, 1935 wherein the chapter of Fundamental Rights was absent. Our founding fathers pervaded freedoms & liberties within the constitutional culture of India after long debates in the Constituent Assembly. However, unfortunately, our first amendment went in the exact opposite direction to the Bill of Rights and it was serious inroads to the Fundamental Rights.

ORIGIN, HISTORY AND EVOLUTION OF THE REPRESSIVE LAWS IN THE UK AND THE US

UNITED KINGDOM:


Sedition dates back to the Statute of Westminster 1275 when the King was thought to be the possessor of Divine authority. To establish the offence of sedition, not only, the veracity of the speech was evaluated, but also its intention. Sedition was originally designed to prohibit speeches that were detrimental to necessary respect for government. King Edward, I passed the Statute of Westminster in 1275, Chapter 34 of it provided that:

“Forasmuch as there have been oftentimes found in the Country Divisors [devisers] of Tales, whereby Discord, or Occasion of Discord, hath many times arisen between the King and his People, or the great Men of this Realm; For the damage that hath and may thereof ensue, it is commanded That from henceforth none be so hardy to tell or publish any false News or Tales, whereby Discord, or Occasion of Discord or Slander may grow between the King and his People or the great Men of the Realm; and he that doth so, shall be taken and kept in Prison until he hath brought him into the Court, which was the first Author of the Tale.

King Edward III also passed Treason Act, 1351 wherein the punishment for treason was the death penalty. Thereafter, the UK matured as a democracy and it abolished the offence of Sedition in 1967, and in 2009, the British Parliament gave a clarification that sedition did not even exist in their common law system.

REPRESSIVE LAWS OF THE UNITED STATES AND ITS SUPREME COURT ON FREEDOM OF EXPRESSION AND SPEECH:


The administration of President John Adams brought
Sedition Act, 1798 which expired in 1801, but nothing much happened in consequence of the Act, and President Woodrow Wilson brought in the Aliens & Sedition Act, 1918. Schenck was the secretary of the Socialist party and he printed 15000 leaflets that declared that the draft related to Selective Act was not only, illegal, but also, evil. He propagated that the US should not go to war, when in fact, the US was at war in World War I. 

The matter reached the U.S. Supreme Court in Schenck vs. United States, 249 US 47 (1919), wherein it was ruled that the constitutional protection of Freedom of Speech afforded in the First Amendment of the US Constitution could be restricted if the remarks uttered or printed posed a ‘clear and present danger. Justice Holmes points out a beautiful example in the judgment that if an individual falsely shouts fire in a crowded theatre, obviously, it will create disruption of enormous order, and must be stopped instantly, but short of that, if there is no clear and present danger of anything untoward or illegal happening, the free speech cannot be curbed. The majority opinion speaking through Justice Oliver Wendell Holmes explained that the inquiry in every case is whether the words employed are used in such circumstances and are of such a kind as to create a clear and present danger that they would, bring about the substantive harms that Congress has the power to prevent. The proximity and degree is the question. When a nation is at war many things that might be stated in a time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right. It seems to be recognised that if an actual obstruction of the recruiting service were shown, culpability for remarks that caused that effect might be enforced. The statute of 1917 under Section 4 punishes conspiracy to obstruct as well as actual obstruction. If the act, (speaking, or disseminating a document,) its tendency and the aim with which it is done are the same, it is not justified for concluding that success, alone justified declaring the act a crime.

Read the latest order dated 11.05.2022 passed by the Hon’ble Supreme Court on the misuse of Sedition

In Abrams vs. United States, 250 US 616 (1919), 5 persons of Russian origin also distributed leaflets depicting pretty much the reasoning as Schenck had mentioned. The majority judgment convicted them following  Schenck vs. United States, 249 US 47 (1919), but the celebrated Justice Oliver Wendell Holmes of the US Supreme Court in a dissenting opinion accompanied by another equally celebrated, Justice Louis Brandeis. Justice Oliver Wendell Holmes articulated these words which have become classic, and passed into the literature of Law:

“Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care whole-heartedly for the result, or that you doubt either your power or your premises. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas-that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country. I wholly disagree with the argument of the Government that the First Amendment left the common law as to seditious libel in force. History seems to me against the notion. I had conceived that the United States through many years had shown its repentance for the Sedition Act of 1798, by repaying fines that it imposed. Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants making any exception to the sweeping command, “Congress shall make no law . . . abridging the freedom of speech.” Of course I am speaking only of expressions of opinion and exhortations, which were all that were uttered here, but I regret that I cannot put into more impressive words my belief that in their conviction upon this indictment the defendants were deprived of their rights under the Constitution of the United States.

Alien & Sedition Act, 1918 was repealed in 1920, but another extremely repressive legislation was brought in called Smith Act, 1940. Several judgments were pronounced as a result of this Act and the most notable was Dennis vs. United States, 341 US 494 (1951), the US Supreme Court quite regressively held that it was enough for an individual to say something against the government, or to abuse the government of the US without intending any imminent lawless action, and consequently, the person could be put behind the bar or the free speech to be stopped completely.

Also Read:
SEDITION & UAPA – Are These Provisions License to Abuse Power? – Part 2
SEDITION & UAPA – Are These Provisions License to Abuse Power? – Part 3
SEDITION & UAPA – Are These Provisions License to Abuse Power? – Part 4
SEDITION & UAPA – Are These Provisions License to Abuse Power?- Complete Article

In Yates vs. United States, 354 US 298 (1957), the US Supreme Court did something to mitigate Dennis vs. United States, it held that free speech must translate itself or must be thought to translate itself into some kind of disorder. Finally, in Brandenburg vs. Ohio, 395 US 444 (1969), the test laid down which has been followed to date is that free speech cannot be curbed unless there is proper perception as to imminent lawless action.

Authors: 

Lalima Gupta
Intern
The Law Codes

Dr. Rohit Samhotra
Advocate
Supreme Court of India