Pilate’s Paramount Duty

Sunil Khilnani, Vikram Raghavan and Arun K. Thiruvengadam

in Comparative Constitutionalism in South Asia

Published in print December 2012 | ISBN: 9780198081760
Published online January 2013 | e-ISBN: 9780199082360 | DOI:
Pilate’s Paramount Duty

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This chapter discusses the particular relevance to South Asia of the disagreement between the ideas of two nineteenth-century thinkers—John Stuart Mill and James Fitzjames Stephen. While Mill searched for some categorical principle that would restrict limitation of freedom of thought to cases in which serious harm would result from its untrammelled exercise, Stephen argued that public authorities could not properly ignore the content of what was being communicated, and that the substantial limits on the powers of the state to restrict expression arose from the pragmatic considerations of the costs and benefits of censorship. In this essay, the author reviews how his experience in India shaped Stephen's objections to Mill's classic argument; examines the legacy of the Indian Penal Code which Stephen so admired on the Code of Criminal Procedure; considers what the application of those provisions has been in practice (and particularly how the Supreme Court of India has sought to interpret them in accordance with the presumption of constitutionality); and assesses how far it is European human rights law, and the concept of a ‘democratic society’ which it embodies, to which Indian (and Pakistani and Bangladeshi) courts should appropriately turn for persuasive guidance as to what are reasonable restrictions on freedom of expression in this area.

Keywords: Indian Penal Code; freedom of speech; restrictions on freedom of expression; Sir James Fitzjames Stephen; Interpretation of Indian Penal Code; Code of Criminal Procedure; Supreme Court of India; criminal law; John Stuart Mill; Criminal Procedure Codes

Chapter.  14541 words. 

Subjects: Constitutional and Administrative Law

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