Stormy amendments

by June 16, 2020 0 comments

There is much debate on the misuse of the sedition law these days but what is not known is that Nehru’s First Amendment wanted to curb freedom of speech

The Indian Constitution has been amended 104 times and many of the modifications, including the ones passed by Parliament during the dreaded Emergency, have been extensively discussed. But there has not been sufficient debate on the amendment that started it all — the controversial “First Amendment.” It was mooted by the first Prime Minister of India, Jawaharlal Nehru, in May 1951 within 15 months of the adoption of the Constitution the previous year. The intent was to impose restrictions on freedom of speech and other fundamental rights and to save anti-zamindari laws. These amendments, which were carried out by the Provisional Parliament, were meant to overcome judicial verdicts that struck down laws that affected the Press and individual freedom.

The statement of Objects and Reasons appended to the First Amendment Act said that certain difficulties had cropped up in the working of the Constitution because of judicial decisions, especially with regard to the fundamental rights. The citizen’s right to freedom of speech and expression, guaranteed under Article 19(1)(a), “had 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.” Therefore, restrictions were sought to be fortified in the name of “public order”, “friendly relations with foreign states” and “incitement to an offence.”

There is much debate on the use and misuse of the sedition law these days but what is not well known is that one of the purposes of Nehru’s First Amendment was to fortify Section 124 A of the Indian Penal Code (IPC) under which the charge of sedition is pinned on individuals for speaking or writing against the State.

Credit goes to Tripurdaman Singh, a post-doctoral fellow at the Institute of Commonwealth Studies, University of London, for throwing light on the politics surrounding this event in his exceptionally readable book, Sixteen Stormy Days — The Story of the First Amendment to the Constitution of India, published by Penguin.

The First Amendment needs to be remembered for many things, including the first major clash between the President and the Prime Minister; the introduction of “reasonable restrictions” in Article 19(2) in the Constitution; and the idea of placing legislation in the Ninth Schedule so as to insulate them from judicial review.

It is indeed a fascinating story with many sub-plots such as the debate over “reasonable restrictions.” Nehru wanted to impose “restrictions” on freedom of speech and expression in the light of some cases pertaining to the media. In Romesh Thappar vs the State of Madras, the Supreme Court had held in May 1950 that a Madras State law barring entry and circulation of the petitioner’s magazine, Crossroads, on the ground that it disturbed “public order” was unconstitutional as the Constitution did not provide for it. Further, it said, “liberty of circulation is as essential to that freedom (of propagation of ideas) as that of the publication.” In Brij Bhushan vs the State of Delhi (the Organiser case), the magazine was subjected to pre-censorship because the then Nehru Government did not like what it was saying about Pakistan. The magazine challenged the order and the Supreme Court held that pre-censorship violated Article 19(1)(a). In Master Tara Singh’s case, the East Punjab High Court had held that Section 124(A) (sedition) and Section 153(A) of the IPC were violative of the fundamental rights guaranteed under Article 19.

Nehru felt frustrated by these judicial pronouncements and wanted to remedy the situation via the First Amendment. He wanted restrictions imposed on the freedom of speech and expression in the name of “public order”, “friendly relations with foreign states” and “incitement to an offence.” Senior parliamentarians, including members of the Congress, wanted the restrictions to be circumscribed by the word “reasonable.” Nehru did not like it one bit. In the midst of the raging controversy, he wrote to TT Krishnamachari, Congress leader and MP, and confessed that he did not like the word “reasonable” before “restrictions” because it would be an invitation for every such case to go to the courts.

However, eventually, he yielded when he found that there were many in the Congress Parliamentary Party (CPP) who disagreed with him. In fact, as the author notes, 77 MPs wrote to him asking for a free vote on the First Amendment. That was when Nehru realised that the game was up and he gave in to the popular demand to make the restrictions “reasonable.” Thanks to Syama Prasad Mukherjee, Acharya Kripalani and other stalwarts in the Congress, the Supreme Court has had the constitutional mandate over the last seven decades to examine whether the laws made by Parliament and the State legislatures, imposing restrictions on free speech, are “reasonable” or not.

Former President Rajendra Prasad, Syama Prasad Mukherjee, Acharya Kripalani, HN Kunzru and many other leading parliamentarians questioned Nehru’s intentions and warned him about the dangerous precedent he was creating.  But Nehru was adamant — the judiciary and the Press had to be reined in. The leaders felt that the Constitution should, if necessary, be amended after the first general election and the constitution of the two Houses — the Lok Sabha and the Rajya Sabha. They argued that a single chamber, the Provisional Parliament, was not competent to amend the Constitution when Article 368 prescribed the procedure to be followed by the two Houses.

During the debate, Kameshwar Singh accused Nehru of “sowing the seed of executive despotism.” Syama Prasad Mukherjee had said that Nehru was “disfiguring” the Constitution by bringing in “public order” as a restriction. He said, “It is the beginning of the encroachment of liberty of the people of free India.” His words have proved to be prophetic.

The President repeatedly clashed with Nehru on the latter’s proposals and even asked senior Congress leader, Alladi Krishnaswamy Aiyyar, whether he could give his assent to an unconstitutional legislation when he is under oath to “preserve, protect and defend” the Constitution.

The First Amendment also introduced Article 31(B), to add the Ninth Schedule, which the author describes as a “Constitutional vault,” to bar judicial review of laws placed in the schedule. Syama Prasad Mukherjee warned Nehru against creating such a precedent and said, “any nonsensical law can be put there” and placed beyond judicial review. Sure enough, Nehru’s daughter, former Prime Minister Indira Gandhi, misused this provision on many occasions.

Tripurdaman Singh calls the Ninth Schedule “constitutional skulduggery” and says it granted constitutional protection to the Constitution’s abusers. All the evidence he gathers compels the author to deliver a harsh indictment. He says, “In the reckless, impetuous bid to establish the Government’s supremacy and open the constitutional doors to the Congress’ social revolution…all caution had been thrown to the wind. The creation of the Nehruvian State demanded constitutional blood — and the Prime Minister and his acolytes were willing to spill it…”

(Writer: A Surya Prakash; Courtesy: The Pioneer)

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