A Tale of Two First Amendments (Part 3)


17th November, 2017

On June 18, 1951, less than a year and a half after the Constitution of India came into force, the Constitution (First Amendment) Act, 1951 was passed by the Parliament. It made some amendments to Articles related to the functioning of the Central and State Legislatures, but the Act is remembered today for bringing in two historic changes: it added the Ninth Schedule to the Constitution, and placed broader restrictions on the fundamental right to the freedom of speech and expression. Since we are focusing on the freedom of speech in these posts, we won’t go into the vast topic that the Ninth Schedule is on its own.

The American Constitutional Convention and the Indian Constituent Assembly

What is of interest here is that unlike the US Constitution, which was amended to add the freedom of speech, the Indian Constitution included the right when it was first drafted. But while the US Constitution contains no explicit restrictions on free speech, the Indian Constitution enumerated restrictions on free speech right from the beginning. And while no amendment has ever been made to the US Constitution to impose any restriction on free speech (the US judiciary has, over the years, imposed a few restrictions, but these have never been specifically added to the Constitution), the first amendment to the Indian Constitution expanded the restrictions already included in the original. Why did this happen?

 

Two Publications

 

In the late 1940s, Romesh Thapar, a member of the Communist Party of India (Marxist), edited and published an English weekly called Cross Roads. The journal reflected his strongly communist views, regularly featuring withering critiques of Prime Minister Jawaharlal Nehru’s policies. At the same time, a communist movement was on the rise in the western part of what was then the state of Madras (now Kerala). Although Cross Roads didn’t have a very wide circulation (given that it was a high-brow English publication), the Governor of Madras felt that it might spark a full-blown revolution in the area, and hence, on March 1, 1950 passed an order banning the entry and circulation of the journal in the state of Madras. Section 9(1-A) of the Madras Maintenance of Public Order Act, 1949 gave him the authority to do so to secure “public safety” and maintain “public order”.

An old edition of Cross Roads (Source: india-seminar.com) and a recent edition of The Organiser (Source: Wikimedia Commons)

Meanwhile, something very similar was happening at the opposite end of country with another publication on the opposite end of the political spectrum. The Organiser, the journal of the Rashtriya Swayamsevak Sangh (RSS) printed and published by Brij Bhushan, was featuring articles that the Chief Commissioner of Delhi felt would inflame communal passions and worsen the already horrific violence erupting all over post-Partition India. He imposed a prior restraint on the journal on March 2, 1950 requiring it to submit each issue for scrutiny before publication. He did so under Section 7(1)(c) of the Punjab Public Safety Act, 1949.

 

The Judgments

 

Both Romesh Thapar and Brij Bhushan approached the Supreme Court separately stating that their fundamental right to freedom of speech and expression under Article 19(1)(a) had been violated. On May 26, 1950, a six-judge bench of the Supreme Court that included then Chief Justice of India Hiralal Kania, gave judgments in both cases. Both landmark judgments went in favour of the petitioners and essentially said the same things.

Last week we had discussed how the restrictions on free speech were inserted into the Constitution by the Constituent Assembly, and we had seen that the Assembly had preferred to enumerate specific restrictions such as libel, slander, defamation, etc. instead of broad restrictions such as “public order”. In giving their judgments for Romesh Thappar vs. The State of Madras and Brij Bhushan and Anr. vs. The State of Delhi the Supreme Court judges also looked back into the Constituent Assembly debates and by a 5-1 majority concluded that since “public order” had been left out of Article 19(2) of the Constitution, laws restricting freedom of speech for “maintaining public order” were unconstitutional. An argument had been made that speech that “undermines the security of, or tends to overthrow, the State” was restricted by Article 19(2). However, the majority interpreted the restriction narrowly and stated that violence and disorder localised to certain areas (in these cases, Madras and Delhi) could not be considered a threat to the whole State.

The six-judge bench, from left to right: Chief Justice Kania, Justice Sastri, Justice Mahajan, Justice Das, Justice Mukherjea and Justice Saiyed (the lone dissenter)

Domino Effect

 

Immediately, High Courts all over the country began to apply the principles laid down in these landmark judgments to a number of similar cases. Chief among them was the case of Bharati Press, Sm. Shaila Bala Devi vs. The Chief Secretary to the Government of Bihar. Shaila Bala Devi owned a printing press called Bharati Press in Purulia, Bihar that had published a Bengali leaflet entitled Sangram, which in very abstract terms, called for a revolution in India. The Government of Bihar had asked Devi to deposit a security amount of Rs. 2000 that would be forefeited if it appeared to the State Government that the press was being used to incite violence. Ironically, this order was made under the Indian Press (Emergency Powers) Act, 1931, a colonial era law used by the British Raj to muzzle local publications. Justice Sarjoo Prasad very reluctantly held the law unconstitutional and warned that the Supreme Court had made it possible for people to freely incite murder and violence.

He said that, “if a person were to go on inciting murder or other cognizable offences either through the press or by word of mouth, he would be free to do so with impunity inasmuch as he would claim the privilege of exercising his fundamental right of freedom of speech and expression. Any legislation which seeks or would seek to curb this right of the person concerned would not be saved under Article 19(1)(a) of the Constitution and would have to be declared void. This would be so, because such speech or expression on the part of the individual would fall neither under libel nor slander nor defamation nor contempt of Court nor any matter which offends against decency or morality or which undermines the security of or tends to overthrow the State. I cannot with equanimity contemplate such an anomalous situation but the conclusion appears to be unavoidable on the authority of the Supreme Court judgments with which we are bound.”

The dead lie in the streets of Delhi after communal violence during the Partition

Many historians believe that it was Justice Sarjoo Prasad’s chilling judgment in Shaila Bala Devi’s case that finally prompted Prime Minister Nehru and Home Minister Vallabhbhai Patel to push through amendments to Article 19(2) of the Constitution. Indeed, merely six days after the judgment, Nehru wrote to Law Minister B.R. Ambedkar suggesting that Article 19 needed amending. But both Nehru and Patel had been contemplating the amendment for some time. In the wake of the Partition, the nation was in turmoil because of internal and external factors, and Nehru and Patel had begun to realise that a right to freedom of speech without stronger restrictions was going to be a liability for the State.

Next week, in the concluding part of A Tale of Two First Amendments, we’ll look at the other major factor that led to the first amendment to the Indian Constitution and how the amendment was passed.