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  • Decode Politics: Did Nehru govt ‘curb’ speech in first-ever amendment | Political Pulse News

Decode Politics: Did Nehru govt ‘curb’ speech in first-ever amendment | Political Pulse News

AT his last Mann Ki Baat broadcast Sunday, Prime Minister Narendra Modi said it was regretful that the very first amendment to the Indian Constitution “curtailed the freedom of speech and expression”, a fundamental right guaranteed under Article 19 (1) (a).

This was a significant statement by Modi given that it is the BJP government that is accused by the Opposition of curbing free speech.

So what was the PM referring to

The First Constitutional Amendment Bill Of 1951 was introduced by then PM Nehru himself in the Lok Sabha. While the Bill sought quite a few small amendments, Modi seemed to be referring to amendments to Article 19 (2), which lay down restrictions on the right to freedom guaranteed by Article 19 (1).

The amendment Bill added ‘reasonable’ before the word ‘restrictions’ – to make the Article explicitly justiciable, as the reasonability of a restriction was to be determined by a court of law – and also added categories like ‘public order’, ‘friendly relations with foreign states’, ‘security of the State’ and ‘incitement to an offence’ as restrictions on the freedom of speech and expression.

What it meant in operation

In other words, Article 19 (1) (a) could now not override any law in existence or legislated by Parliament to impose “reasonable” restrictions on the freedom of speech, if it disturbed public order, incited people to commit an offence, endangered the security of the State or jeopardised friendly relations with foreign States. Whether the restriction imposed was indeed reasonable – meaning, the remedy must not be harsher than the mischief to strike a fine balance – would be determined by the judiciary on a case-to-case basis.

What happened when the Bill was introduced

Festive offer

In his address introducing the Bill, on May 29, 1951, Nehru said: “Take, for instance, Section 153 of the Indian Penal Code which deals with what may be called communal discord or the preaching of enmity between communities. I have no doubt that the amendment we are seeking to put in brings back into operation – the exact words might be different – how it should be worked. That, if there is going to be preaching of communal hatred, certainly if this is passed, that can be dealt with.”

H V Kamath, a member of the Constituent Assembly and the Provisional Parliament after Independence (1950-52), interrupted Nehru and said that this was a matter of fundamental rights. Kamath had been removed from the Congress in 1949 for “indiscipline”.

The PM responded: “Does he mean that a matter of fundamental rights ought to be allowed to lead to not just confusion, but to grave danger to the State? Surely not. I say nothing, not a single fundamental right can survive grave danger to the State.”

Before the amendment legislation was introduced, a 22-member select committee of Parliament that included Nehru, B R Ambedkar, C Rajagopalachari and many others submitted a report, with some dissent notes, on the need for amending some Articles of the Constitution.

Was there a trigger for the amendment Bill

Significantly, the amendment in relation to freedom of speech and expression was a response to some court judgments. In the Brij Bhushan case, the Supreme Court had struck down pre-censorship imposed by the Chief Commissioner of Delhi on The Organiser, a publication close to the RSS. In the Romesh Thapar case, the court had struck down a ban imposed on the Cross Roads magazine in Madras under the Madras Maintenance of Public Order Act, 1949.

The government thought such court orders necessitated amending the Constitution to flesh out restrictions on free speech with greater clarity, even while allowing the judiciary to take a call on their reasonability on a case-to-case basis.

What did the dissenters say

In the Select Committee looking at the matter before the introduction of the Bill, H N Kunzru (an Independent member) registered a dissent note as regards The Organiser and Cross Roads, noting that the Supreme Court had struck down both pre-censorship and the banning of a magazine in the name of public order as unconstitutional.

“Is it the intention of this government to validate the exercise of these powers by the State?” Kunzru wondered in his dissent note.

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