A Conservative Amendment in a Liberal Constitution: The First Amendment

[Editorial Note: The author would like to thank Tripurdaman Singh for his book Sixteen Stormy Days: The Story of the First Amendment of the Constitution of India and Amit Varma for a wonderful discussion on his podcast Seen and the Unseen]

It was the year 1951 and the Supreme Court had passed two judgments, Brij Bhushan v. the State of Delhi and Romesh Thapar v. the State of Madras, upholding the freedom of speech and expression as guaranteed under the Article 19(1) of the Indian Constitution. It was before the First Constitutional Amendment when the Constitution was considered to be ‘fairly liberal’ as the freedoms guaranteed under Article 19 were not subject to so many restrictions as we see today. Restrictions were there in the original Constitution as well, no doubt, as they are necessary. Then, the freedoms were the rights and the restrictions were the exceptions to those rights. But what followed after these two judgments was an act of Parliament (more of Nehru’s) which turned the freedoms into (somewhat) exceptions.

The First Constitutional Amendment, 1951

It has to be kept in mind that the first amendment was discussed and passed by the provisional parliament which did not have a ‘popular mandate’. It was the provisional Parliament’s members who framed the Constitution but they were not the constituent assembly. But for Nehru, it did not make any difference, as he said in the assembly:

“Now, that Constituent Assembly which has gone into the history of India is no more; but we who sit here, or nearly all of us, still continue that tradition, that link. In fact, it is we after all, who was the Constituent Assembly and who drafted this Constitution. Then we were not supposed to be competent enough to draft the Constitution. But now, the work we did was so perfect that we are not now competent enough to touch it! That is rather an odd argument.” 

He was right somehow, they were not competent to amend the Constitution as they did not have any popular mandate and this amendment could have waited till the elections. But it was nothing, but sixty stormy days of debates, discussion and dictatorial behaviour! Before the amendment, Article 19(2) read as:

“(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law in so far as it relates to, or prevents 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.”

It did not have any ‘reasonable restriction’ clause in it. But the restrictions were not so much. After the amendment, clause 2 of Article 19 read as follows:

“(2) 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.

This means that parliament can frame a ‘law’ which can restrict the freedom of speech and expression if that law is in furtherance of the restrictions given thereunder. Restrictions like public order or incitement to an offence are vague and can create a long-lasting chilling effect and they are, even now. Suppose, there is a rally in protest against any law passed by the state, then the state can restrict that protest and say it violates the public order, hence, citizens cannot exercise their right to speak against the government and they can invoke the draconian section 124A (Sedition) of IPC, 1860 [which is an offence under a law made by the state].

The Reasons for Amendment and the Opposing Views

In the cases of Brij Bhusan and Romesh Thapar, the government attempted to curb the freedom of the press and the right to free speech and expression. But the Court struck down that imposed restraint on civil liberties. When the question of interpretation of Article 19 came up, the Supreme Court held that if the maintenance of public, order or securing the public safety was something which did not affect the security of the State or the overthrowing of the State, then there could be no restriction on freedom of speech. The amendment was being made to overrule these judgments [hence, the words public order etc. were added], but PM Nehru said ingeniously in the assembly as he said: “We are not putting down any kind of curb or restraint. We are removing certain doubts so as to enable Parliament to function if it so chooses and when it chooses. Nothing else happens when this Bill is passed except to clarify the authority of Parliament.” These amendments have chilling effects till now. We still see so many violations of civil rights in the name of these so-called restrictions.

Nehru’s vision of freedom was more conservative (and not so liberal) as a Prime Minister than as a leader of the Congress party during the freedom struggle. According to him, the freedom of speech ‘carries with itself responsibilities and obligations’ and if they are not performed, then there would be no freedom. This goes against liberal thought.

The Parliament and the government could have dealt with the problems of public order or incitement of offence through preventive detention laws. Now, supposing there are persons who are preaching murder and who are doing, something of that character, supposing there is some newspaper which is doing something of that character and the writer is there, the individual can be secured under the Preventive Detention Act. So, if the Parliament or the Government want to prevent a person or group of persons from committing acts which they consider to be against the interests of public order, then they are already clothed with sufficient authority to do so.

The amendment does not bear any fruit, except increasing the power of the government. Another restriction which is placed is the restriction on criticism or speech on ‘friendly relations with other states’. On this Shyama Prasad Mukherjee, who I feel is a text-book example of a classic liberal during the debates, said: “I have not been able to find any precedent in any part of the civilised world whereby law under the provisions of the Constitution criticism of foreign powers is taboo.

He cast doubts on the meaning of ‘friendly relations with other states’, as he said: “we may say anything about a foreign country with the utmost friendship in our hearts but if that country misunderstands and says that it offends it or it affects our friendly relations with them, you are at once bound by the provisions of the Constitution.” If the government today passes any law in furtherance of these restrictions, then anything can be restricted and the civil liberties and freedoms will merely become exceptions.

The fears apprehended by Dr Shyama Prasad Mukherjee are now re-surfacing back in 2020 as we witness internet shutdown(s) in Kashmir using Section 144 of Criminal Procedure Code, use of draconian laws like National Security Act and Unlawful Activities Prevention Act (UAPA) to curb Freedom of Speech and Expression among other violations. We see these violations of free speech and civil liberties and the reason (not the sole reason though) behind such regressive measures is this hurried, hasty and (“unconstitutional”) First Constitutional Amendment Act. PM Nehru, despite his charismatic leadership and vision, did put the Constitution and civil liberties in danger.

In conclusion, let us revisit the prophetic warning given by Dr Mukherjee and try to draw parallels in contemporary times:

“Maybe you [Nehru] will continue for eternity, in the next generation, for generations unborn; that is quite possible. But supposing some other party comes into authority? What is the precedent you are laying down?

The fears imagined by Mukherjee in 1951 still haunts us today!

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