A Tale of Two First Amendments (Part 2)

11th November, 2017

Last week, we looked into the First Amendment to the US Constitution, the peculiar circumstances under which it was passed and how that has informed how courts in the US have interpreted the right to, and restrictions on, the freedom of speech through the years. The judicial system in the US has evolved to be exceedingly suspicious of any kind of restriction placed by the State on free speech, giving protection even to hate speech and flag burning – things that Indian law simply does not allow. Why have the interpretations of the right to freedom of speech in India taken such divergent paths?

The American Constitutional Convention and the Indian Constituent Assembly

The very first act to amend the Indian Constitution was enacted less than a year and a half after the Constitution came into force, and it introduced some massive and historically important changes, the merits and demerits of which are subjects of endless debate to this day. Perhaps the most important change it brought was increasing and widening the scope of the restrictions on the freedom of speech and expression. But we need to remember that, unlike the US Constitution that mentions no restriction on the right to free speech, the Indian Constitution contained certain restrictions even before the amendment came in. Before we get to the first amendment to the Indian Constitution, we need to know how these restrictions came about in the first place.


To restrict or not to restrict


The Advisory Committee on Fundamental Rights in the Constituent Assembly had created a further 10-member Sub-Committee on Fundamental Rights that was tasked with making the initial drafts of the Fundamental Rights in the Constitution. The freedom of speech was included in Clause 8 of its draft, which read as follows:

There shall be liberty for the exercise of the following rights subject to public order and morality or to the existence of grave emergency declared to be such by the Government of the Union or the Unit concerned whereby the security of the Union or the Unit, as the case may be, is threatened: 

a)        The right of every citizen to freedom of speech and expression:

Provision may be made by law to make the publication or utterance of seditious, obscene, blasphemous, slanderous, libelous or defamatory matter actionable or punishable.”

Sedition, obscenity, blasphemy, slander, libel and defamation were specific restrictions included in the draft. However, restriction on the freedom of speech was a highly contentious issue in the Constituent Assembly. Having just emerged from the tyrannical rule of the British who had used the law to muzzle the press and imprison political leaders who had expressed dissent, many members of the Assembly were squarely opposed to restricting the freedom to express views in any manner. In fact, opinions against restrictions were so strong that when Sardar Vallabhbhai Patel introduced the draft Clause 8 to the Assembly on April 30, 1947, he left out the proviso containing the restrictions entirely.

Sardar Patel at the Constituent Assembly. K.M. Munshi is seated behind him.

However, several members felt differently. K.M. Munshi felt that the right to free expression of opinion should be “within the limits of the law of the Union and in accordance therewith.” In essence the opposite of the American First Amendment that prohibits Congress from passing any law restricting the freedom of speech, Munshi’s broad and sweeping language restricted the right to the limits of what the State would legally allow. Dr. B.R. Ambedkar, however, took a slightly more balanced approach. He based his draft of the Article on the Irish Constitution and made the freedom of speech and expression subject to “public order and morality”.


Ambedkar’s American Defence


In fact Ambedkar was, perhaps a little surprisingly, a passionate advocate for restrictions on freedom of speech. When members of the Constituent Assembly raised objections to the restrictions pointing out that the US Constitution permitted no such free speech restrictions, he argued, “it is wrong to say that fundamental rights in America are absolute. The difference between the position under the American Constitution and the Draft Constitution is one of form and not of substance. That the fundamental rights in America are not absolute rights is beyond dispute.” To further bolster his point and defend his stance, he quoted from the majority judgment of the Supreme Court of the US (SCOTUS) in the case of Gitlow vs. New York.

Justice Oliver Wendell Holmes who dissented in Gitlow vs. New York

This was a little puzzling. The case, in which a member of the Socialist Party of America was convicted for disseminating newspapers that seemingly advocated the violent overthrow of the government, had been decided in 1925 amidst the paranoia that came in the aftermath of the First Red Scare. By 1948 (the year Ambedkar quoted the judgment) the SCOTUS had begun to move away from the way “clear and present danger” was interpreted in Gitlow. In fact, even in 1925 Justice Oliver Wendell Holmes, the judge who had come up with the “clear and present danger” doctrine, had written a dissenting opinion in Gitlow, stating that the “bad tendency” test that the majority had used was erroneous. Even in the early 1940s the “clear and present danger” doctrine was being applied very differently by the SCOTUS.


Irish Inspiration


Eventually, the drafters of the Constitution decided to borrow more from the Irish Constitution. Instead of putting a broad restriction or no restriction at all, they decided to enumerate specific restrictions on the freedom of speech. Apart from public order and morality, the Irish Constitution also makes an exception in cases of blasphemy, sedition and indecency. While the restriction on “blasphemy” was included in early drafts of the Indian Constitution, it was soon removed without much debate. In the Draft Constitution of February 1948, the Draft Article 13(2) read:

“Nothing in sub-clause (a) of clause (1) of this article shall affect the operation of any existing law, or prevent the State from making any law relating to libel, slander, defamation, sedition or any other matter which offends against decency or morality or undermines the authority or foundation of the State.”

A number of members argued against including “sedition” among the exceptions to free speech, pointing out that it was only a remnant of colonial law. K.M. Munshi, who had initially suggested a very broad restriction on the freedom of speech, now argued fervently to remove sedition from the Draft Article. He said, “Our notorious Section 124-A of Penal Code was sometimes construed so widely that I remember in a case a criticism of a District Magistrate was urged to be covered by Section 124-A. But the public opinion has changed considerably since and now that we have a democratic Government a line must be drawn between criticism of Government which should be welcome and incitement which would undermine the security or order on which civilised life is based, or which is calculated to overthrow the State.” By December 1948, the word “sedition” had been removed from Draft Article 13(2), and the words “authority or foundation of the State” were replaced by “security of, or tends to overthrow, the State.”


Add contempt


On October 17, 1949, T.T. Krishnamachari moved a last-minute amendment to the Draft Article, proposing to add “contempt of court” among the restrictions on free speech. “The idea,” he said, “was to cover one category of what might be called lapses in the exercise of freedom of speech and expression, namely, a person might be speaking on a matter which is sub judice and thereby interfere with the administration of justice. That is a category of offences, which is not covered by the exceptions mentioned in clause (2) or article 13, so far as the right of freedom of speech and expression is concerned.”

T.T. Krishnamachari (front row, second from right)

Ultimately, in the final draft of the Constitution, Article 19(2) read as follows:

“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.”

One would think that after so much debate, discussion and deliberation, there would be no need to revisit the restrictions for the next several decades. But that is not how history works. That is not how India works. Next week, we will look into the fascinating story of how and why we got the first amendment to the Indian Constitution.