JOHN KENNETH GALBRAITH, Professor Emeritus of Harvard University, was one of the foremost economists of the 20th Century. He distinguished himself during the Nehru-Kennedy years as an exemplary Ambassador to India. After the Second World War, Galbraith was sent to conduct a study in Germany on inter alia the efficiency of the German war machine. He wrote two incisive and influential essays titled “Germany Was Badly Run” and “Retrospect on Albert Speer” on Nazi Germany’s war preparations.
Contrary to popular perception, Galbraith found the Nazi leaders lacked the competence to efficiently run a war economy. For instance, German aircraft procurement was a disaster. The vastly superior twin-jet fighter ME 262 was delayed for months by an irrational effort to convert it into a bomber. Furthermore, women were not employed in armament factories, which led to these critical factories in Germany shutting down at night. Despite a scarcity of steel, nearly fifty million metric tons remained unutilised. In Nazi Germany unilateral wrong decisions could not be corrected.
By contrast, Galbraith argued, in democracies like America, any ill-conceived move by the President would provoke the military generals to seek a course correction. If that failed, senior Senators would be made to intercede. The issue would ultimately leak to the press, provoking a public debate. He put it pithily:
“All of this would have taken a couple of weeks; someone perhaps would have complained of the slow and circuitous ways of democracy. Germany got quick decisions, but speed is not an advantage if the decisions must later be reversed. Perhaps that is one of the advantages the democracies enjoyed in the war.”
Free speech and the US Supreme Court
It is difficult to say how much this far reaching empirical finding had any impact on American polity. However, the U.S. Supreme Court in Bond v. Floyd (1966) endorsed free speech, when Julian Bond, a legislator, was sought to be ousted from his legislative seat because of his criticism of the Vietnam War. Chief Justice Earl Warren wrote for the Court, “the manifest function of the First Amendment in a representative government requires that legislators be given the widest latitude to express their views on issues of policy statements criticizing public policy.”
In another important First Amendment ruling, the U.S. Supreme in New York Times Co. v. United States (1971) that the government could not prohibit the New York Times and the Washington Post from publishing a series of articles about some highly classified documents called ‘the Pentagon Papers,’ about the U.S. government’s role in the Vietnam War. The Court voiced: “Only a free and unrestrained press can effectively expose deception in government.”
Free speech: The Indian historical context
In India, it was in a climate of yearning for freedoms that the Constituent Assembly meticulously crafted free speech provision into Article 19 (1) of our Constitution. The exceptions in Article 19 (2) were not made for the triumphalism of the state over the citizen. It was rather the opposite. In Shreya Singhal v. Union of India (2015), the Supreme Court outlined the Euclidean algorithm of Article 19(2) holding, “It is only when such discussion or advocacy reaches the level of incitement that Article 19(2) kicks in.”
The trajectory of the Supreme Court rulings on Article 19 is revealing. In Romesh Thapar v. State of Madras (1950), the Supreme Court held free speech “essential for the proper functioning of the processes of popular government.” In Sakal Papers (P) Ltd. v. Union of India (1962), a Constitution Bench of the Supreme Court held: The “freedom of propagation of ideas, and this freedom is ensured by the freedom of circulation.”
An important decision of the Supreme Court of recent vintage was in the case of Imran Pratapgarhi v. State of Gujarat (2025). A poem was in question and the poet was prosecuted. Justice Abhay Oka has meticulously elaborated the need to protect the dialectics of dissent in a democracy, “even if a large number of persons dislike the views expressed by another, the right of the person to express the views must be respected and protected.” The role of the judiciary in this situation is highlighted, “if the police or executive fails to honour and protect the fundamental rights”
The development of fundamental rights in India is not a listless chronology. The history of court rulings is an aggregation of the many contours of the right which, with the passage of time, can only expand. It cannot be reduced. If it is reduced in accretion, then the question will arise if the constitutional balance has been distorted.
Ali Khan Mahmudabad
The arrest of Ali Khan Mahmudabad caused a consternation.
In the first of his posts, the author, a professor, contrasts the optics and the reality of present-day politics. While Colonel Sofia Qureshi was rightly publicly applauded, many Muslims continue to suffer mob lynching, arbitrary demolitions, and political hate-mongering. The core argument of the post was that communalism has deeply infected the Indian body politic. It canvases for tangible change in attitudes, for otherwise the gestures and public posturing would amount to hypocrisy.
His second article continues in the vein of a long historical tradition of authors, writers, playwrights, musicians, and artists who challenge the rationalization of war itself. It included references to religious texts.
The interim ruling of the Supreme Court led to widespread criticism.
Were the apprehensions warranted? Were the moral judgements passed on the order justified?
The answer is a no.
However, in hindsight, there is wisdom in the order.
First of all, it is both commendable and paradigmatic that the Supreme Court promptly entertained the matter under Article 32 of the Constitution and granted the professor his much-needed liberty by way of interim bail. What was causing concern is the constitution of an SIT comprising three directly recruited IPS officers. An SIT in a matter of, what is essentially a free speech issue does have a chilling effect in a democratic polity. A silver lining in the ruling, however, was hopelessly missed. It is to be noted that the officers of the SIT were not to belong to the prosecuting states of Haryana or Delhi, therefore, not dependent on official patronage. An unnoticed methodology was built in for fair play.
The Court then directed the professor to refrain from writing any online posts or articles or making any oral statements on the subject matter of the investigation. It is this part of the order that was concerning. The two posts touch upon a wide range of issues: war, politics, communalism, religion and more. The real conundrum lies in the fact that these prohibitions apply only to the petitioner, while many others have and continue to write, debate, and discuss these very issues. But when a matter is under investigation, it is but natural that the acts alleged to constitute offence cannot be allowed to be repeated.
The questions swirling in the polity are: ‘Will this attack on the professor by the state be read as an encouragement to deal with dissenting free speech with hostile prosecutions? Does this sanction a kind of redemptive violence for voicing against the state? How far can the judiciary protect these assaults?’ These questions are predicated by contemporary attacks on journalistic freedoms.
George Orwell, in his iconic essay ‘Why I Write’, defines the sine qua non of free speech in a democracy.
“When I sit down to write a book, I do not say to myself, ‘I am going to produce a work of art.’ I write it because there is some lie that I want to expose, some fact to which I want to draw attention, and my initial concern is to get a hearing.”
This, in essence, is the litmus test of our constitutional right to free speech. Would judicial interventions guarantee a writer ‘a hearing’? Only time and future constitutional dynamics will provide an answer.