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The Supreme Court last week agreed to examine a plea challenging the expansion of restrictions to the fundamental right to freedom of speech and expression that was made by the first amendment to the Constitution. The petitioner, who has challenged the law nearly seven decades after it came into force, argued that the amendment damages the basic structure doctrine.
What was the first amendment to the Constitution?
Just over a year into the working of the Constitution, then Prime Minister Jawaharlal Nehru introduced a Bill to amend the Constitution. On May 18, 1951, the amendment Bill was referred to a Select Committee which considered the issue for six days. The amendment officially came into effect on June 18, 1951.
The Constitution (First Amendment) Bill sought to make several consequential changes — from exempting land reforms from scrutiny to providing protections for backward classes in the Constitution. Notably, it also expanded on the scope of the restrictions on the right to free speech.
So what exactly is the constitutional position on free speech?
Article 19(1)(a) in Part III of the Constitution guarantees the fundamental right to freedom of speech and expression. But this freedom is not absolute or unfettered. It is followed by Article 19(2), which lists exceptions or “reasonable restrictions” on that right.
The text of Article 19(2) in the original Constitution read: “Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to, libel, slander, defamation, contempt of Court or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow, the State.”
Following the amendment, Article 19(2) was changed to read as follows: “Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence…”
Thus, the first amendment made two key changes:
First, it introduced the qualification “reasonable” to the restrictions that Article 19(2) imposed. In a 2015 paper, legal scholar Gautam Bhatia placed this term in context, and traced its origins to debates in the Constituent Assembly. The insertion of the term “reasonable”, he argued, keeps the door open for the courts to step in and examine the legitimacy of the restrictions imposed by Parliament.
Second, the amendment introduced into the Constitution the specific terms “public order” and “incitement to an offence”. This set of new, narrower terms in the provision were necessitated by two Supreme Court rulings in 1950, that went against the state’s power to curb free speech.
What were these two verdicts passed by the Supreme Court?
Both these verdicts involved the press: Brij Bhushan v State of Delhi (March 1950), and Romesh Thappar v State of Madras (May 1950). It was the verdicts in these cases that essentially promoted the first amendment.
ROMESH THAPPAR CASE:
In 1949, the Madras government (Tamil Nadu had not been created then) had banned ‘Cross Roads’, a left-leaning magazine, for its criticism of the government’s foreign policy. This led to the first significant free speech ruling by the Supreme Court in Romesh Thappar v State of Madras.
The petitioner had challenged Section 9(1-A) of the Madras Maintenance of Public Order Act, 1949 as unconstitutional. This provision authorised the government to impose restrictions for the wider purpose of securing “public safety” or the “maintenance of public order”.
The court had to define the terms “public safety” and “public order”, and examine if they fell within the scope of the restrictions allowed in Article 19(2). The government argued that the words “undermining the security of the State” in Article 19(2) could be equated with “public safety” and “maintenance of public order.”
In its majority opinion in the case, the court disagreed with the government and struck down the provision as unconstitutional. The court found a vast difference in degrees between the two provisions.
Justice Fazal Ali dissented from the majority view and said that disrupting public order is a means to undermine the security of the State.
BRIJ BHUSHAN CASE:
In 1950, the Chief Commissioner of Delhi issued a “pre-censorship order” on the RSS mouthpiece ‘Organiser’ which too was critical of the government. Its publisher Brij Bhushan challenged Section 7(1)(c) of the East Punjab Public Safety Act, which allowed pre-publication scrutiny of material “prejudicial to public safety or the maintenance of public order”.
The issue in this case was essentially the same as the one in Romesh Thappar. And the verdict of the Supreme Court followed the same pattern as in the earlier case.
Then Chief Justice of India Hiralal Kania, and Justices M Patanjali Sastri, Mehr Chand Mahajan, Sudhi Ranjan Das, B K Mukherjea formed the majority that struck down the law. Justice Fazal Ali again dissented.
