A Tale of Two First Amendments (Part 4)

08th December, 2017

The Constitution (First Amendment) Act, 1951 was introduced in the Parliament of India barely seventeen months after the Constitution was adopted. The grave Statement of Objects and Reasons, written by none other than Prime Minister Jawaharlal Nehru, said, “During the last fifteen months of the working of the Constitution, certain difficulties have been brought to light by judicial decisions and pronouncements specially in regard to the chapter on fundamental rights. The citizen's right to freedom of speech and expression guaranteed by article 19(1)(a) has been held by some courts to be so comprehensive as not to render a person culpable even if he advocates murder and other crimes of violence. In other countries with written constitutions, freedom of speech and of the press is not regarded as debarring the State from punishing or preventing abuse of this freedom.”

Nehru addressing the Parliament

In our last post, we discussed the historic cases that Nehru alluded to in the statement above. What he didn’t mention in the statement was that the judgments in those cases were not only causing internal upheaval, but also adversely affecting relations with Pakistan.


Impact on a Pact


In December 1949, economic ties between India and East Pakistan (now Bangladesh) were finally severed. This led to a mass exodus of about a million people. Hindus from East Pakistan crossed over to India and Muslims from India went in the opposite direction. Communal tension and violence escalated alarmingly in 1950. The Prime Ministers of India and Pakistan – Nehru and Liaquat Khan – met on April 2, 1950 to discuss the security of the minorities in both nations. After six days of detailed discussions, they decided to sign an agreement as a confidence-building measure. On April 8, 1950, the “Nehru-Liaquat Pact”, also known as the “Delhi Pact”, was signed.

Nehru and Liaquat Ali Khan signing the Pact in Delhi

Under the Pact, each country promised to give its minorities “complete equality of citizenship, irrespective of religion, a full sense of security in respect of life, culture, property and personal honour, freedom of movement within each country and freedom of occupation, speech and worship, subject to law and morality. Members of the minorities shall have equal opportunity with members of the majority community to participate in the public life of their country, to hold political or other office, and to serve in their country's civil and armed forces.” The Governments of both countries were to ensure that the migrants would be able to return to dispose of their property, abducted women would be reunited with their families, stolen property would be returned and forced conversion would be unrecognised.

There was also a clause in the Pact that stated that both Governments would “[n]ot permit propaganda in either country directed against the territorial integrity of the other or purporting to incite war between them and shall take prompt and effective action against any individual or organisation guilty of such propaganda.”


Dr. Mookerjee declares War


Dr. Syama Prasad Mookerjee was, in many ways, a brilliant man. The son of a Calcutta High Court judge, he had had an impressive academic career, become a barrister in England, and at the age of 33, become the youngest Vice-Chancellor of the University of Calcutta. Dr. Mookerjee was also what you would now call a staunch Hindu nationalist. Before Independence, he had become the president of the Hindu Mahasabha. He had been elected to the Constituent Assembly and went on to become a member of the Interim Central Government in the newly independent India as a Minister for Industry and Supply. However, he had bitter disagreements with Nehru on several policies, especially those involving Jammu and Kashmir and relations with Pakistan. In April 1950, he quit Nehru’s cabinet principally because he felt the Nehru-Liaquat Pact was a huge mistake.

The first Cabinet of independent India, with Dr. Syama Prasad Mookerjee on the far right of the front row

Dr. Mookerjee then travelled around India giving fiery speeches about atrocities carried out on Hindu minorities in East Pakistan, and openly calling for war against Pakistan. This was not only whipping up communal hatred but also in flagrant violation of the Pact, and Pakistan’s Foreign Minister Sir Muhammad Zafrulla Khan pointed out as much. Sardar Patel sent him a telegram in which he wrote: “I am telegraphing… regarding Dr Syama Prasad’s activities… Prime Minister has already explained constitutional position. That position affects activities of individuals as well as of press and inextricably binds us. Subject to that position we are doing all we can to ensure activities of individuals and press conform to letter and spirit of agreement.”


What was Wrong with the Right?


This was the problem Patel and Nehru faced. Thanks to the Supreme Court’s liberal interpretation of the freedom of speech in the Romesh Thappar and Brij Bhushan cases discussed in our last post, the Government found itself unable to crack down on people who were indulging in hate speech and promoting communal violence. As Patel wrote to Nehru in a letter, “The views which they have expressed in that judgment on the question of sedition make it doubtful whether we can do anything not only about the speeches of Syama Prasad Mookerjee but also those of the more extremist type. As you say, we have involved ourselves in so many legal and constitutional difficulties that we do not know how to overcome them. I sounded a note of warning and caution when these provisions were being debated in the Drafting Committee, but then we were led away by our idealistic exuberance. We seldom paused to consider the practical and administrative applications of the many constitutional provisions and even their interrelation. My own feeling is that very soon we shall have to sit down and consider constitutional amendments.”

Nehru and Patel

They did much more than just consider constitutional amendments. Soon after Justice Sarjoo Prasad’s chilling judgment in the Shaila Bala Devi case (also discussed in our last post), Nehru wrote to then Law Minister Dr. Ambedkar suggesting an amendment to Article 19(2) of the Constitution. Dr. Mookerjee’s inflammatory anti-Pakistan speeches were perhaps the final straw. The Constitution (First Amendment) Act, 1951 was introduced in the Parliament of India on May 10, 1951.


The Amendment


The proposed amendment to Article 19(2) read: "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 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." In effect, the new terms added to the Article were “friendly relations with foreign States”, “public order”, and “incitement to an offence”. One can almost draw a direct connection between these additions and the events that we have discussed over this series of posts.

What is worth noting here is that the term “public order”, which had been dropped from the original draft of the Article for being too wide and prone to be misused by the State, was brought back in the first ever amendment to the Constitution, less than a year and a half after it came into effect. The leaders of our freedom movement, who had once so ardently struggled to hold on to their right to speak out against State authority, found a largely unbridled right to freedom of speech dangerous and inconvenient when the reins of the Government came into their hands.

When the Bill was being discussed in Parliament, Dr. Mookerjee suggested that “public order” should be interpreted according to the “clear and present danger” test devised in the US by Justice Oliver Wendell Holmes. In fact, the US Constitution came up again and again. The irony of the situation was not lost on the members of the Parliament: While the first amendment of the US Constitution expanded the right to freedom of speech prohibiting Congress from enacting any laws restricting it, the first amendment of the Indian Constitution imposed further restrictions on an already restricted right to freedom of speech. But after much debate and discussion, the Bill was passed.

This was the story of the first amendment to the Indian Constitution in contrast with the first amendment to the US Constitution. Was it really a coincidence that the first amendments to the Constitutions of the two biggest democracies in the world were about the freedom of speech? Maybe. But the two amendments could not be more different, and maybe that explains several differences between the countries.