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Reasonable restrictions and unreasonable speech

Two cases – one related to the left-leaning journal Crossroads and the other related to the RSS mouthpiece Organizer – led to the first amendment of the Indian Constitution which, unlike the first amendment in the USA, did not promote freedom of expression but curtailed it, prioritising the promotion of national security and sovereignty over the promotion of democratic institutions. Lawrence Liang reports

It is always through the curious histories of irony that larger stories reveal themselves. The irony that concerns us is that of an apparently innocuous phrase -- “the first amendment”. The first amendment in the context of the US Constitution refers to the right of freedom of speech and expression, a right which has been held to be almost absolute in the US. The first amendment in India refers to the first amendment to the Constitution in 1951 which attempted to strengthen state regulation over the freedom of speech and expression by expanding the scope of Article 19 (2). This article narrates the history of the first amendment to the Constitution of India as the history of the first media crisis in post-colonial India, and the response of the state to the crisis.

This crisis of media in the early life of the ‘new’ nation was -- not surprisingly -- seen to be a crisis of the nation, and this configuration of the ‘national crisis’ has remained the spectral fear that permeates much of media history in post-colonial India. It also provides for us the first instance of what Upendra Baxi terms as “constitutionalism as a site of state formative practices” (1). Article 19 (1) (a) in its original form read as follows: “All citizens shall have the right to freedom of speech and expression.” This fundamental right was, however, limited by Article 19 (2) which said: “Nothing in sub-clause (a) of clause 1 shall affect the operation of any existing law insofar as it relates to or prevents the state from making any law relating to libel, slander, defamation, contempt of court or any matter which offend against decency or morality or which undermines the security of the state or tends to overthrow the state.”

The first amendment to the Constitution was to the proviso to Article 19 (1) (a), namely Article 19 (2), and after the amendment the provision read as follows: Article 19 (2) “Nothing in sub-clause (a) of clause 1 shall affect the operation of any existing law insofar as such law imposes reasonable restrictions on the exercise of the right conferred by the 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.”(2)

The three significant additions brought about by the amendment were: a) addition of the word ‘reasonable’ before restrictions b) addition of ‘friendly relations with foreign states’ as one of the grounds for restricting freedom of speech and expression, and finally c) the addition of ‘public order’.

Before we begin to understand why this amendment was made, it is important to provide a background to the emergence of the Constitution, and the philosophy that it sought to articulate, and the structural logic it adopted to realise its goals. While India gained independence on August 15, 1947, it was not until two-and-a-half years later -- on January 26, 1950 -- that India adopted a formal Constitution. The headline of the Hindustan Times on January 26, 1950, triumphantly announced: “Hail our sovereign republic… a day of fulfilment… good wishes from near and far… Rejoicings all over.” The day marked the end of three years of debate and drafting, and the paper’s editorial went on to say: “Today India recovers her soul after centuries of serfdom and resumes her ancient name.”(3) The Constitution was therefore seen to be both a document that articulated the hopes and aspirations of the new nation, as well as one which was structurally designed to actualise these aspirations.

The greatest challenges for the framers of the Constitution included: “How could authority be centralised enough to enhance national unity and to promote economic development without alienating subordinate levels of government and stultifying local initiative? How, while applying the rule of law, would social economic reform be fostered and democratic institutions strengthened in a huge society in which religion and tradition sanctioned inequality and exploitation? How would government achieve these and other national goals -- indeed, how would it govern when the law, the courts and the administration failed to reach so many citizens effectively?” (4)

According to Austin, the Indian Constitution sought to ensure a structure which would tie in all these concerns in a non-contradictory manner. The core vision of the Constitution “may be summarised as having three strands: protecting and enhancing national unity and integrity; establishing the institutions and spirit of democracy; and fostering a social revolution to better the lot of the mass of Indians. The framers believed, and Indians believe today, that the three strands are mutually interdependent and inextricably intertwined. Social revolution could not be sought or gained at the expense of democracy. Nor could India be truly democratic unless the social revolution had established a just society. Without national unity, democracy would be endangered and there could be little progress towards social and economic reform. And without democracy and reform the nation would not hold together. With these three strands, the framers had spun a seamless web”(5).

However, the early history of the Constitution of India is precisely about the strains that begin to emerge in this imagination of the seamless web, as the three strands start to contradict each other and work against each other. On the one hand, the project of nation-building in terms of national sovereignty and security begins to conflict with the exercise of democratic rights, especially freedom of speech and expression. On the other, the promotion of social justice by way of land reforms conflicts with the right to property and equality under the Constitution. Was this seamless web then an impossible project right from the beginning? If the seamless web were to be resolved, then could it be done in a harmonious manner, or would it require the prioritisation of one strand over the other? How could you resolve the differing interpretations of different organs of the state, from the legislature to the judiciary, over the interpretation of the Constitution in the case of a conflict between one of the strands?

Between the left and right of free speech

The first real strain on the seamless fabric of the Constitution emerged in the context of three decisions, one by the Patna High Court (6) and two by the Supreme Court over the interpretation of what constituted freedom of speech and expression in a democracy and what were the powers of the state to impose restrictions on the exercise of these rights. In the Romesh Thapar v State of Madras (7) case the petitioner was the printer, publisher and editor of an English journal called Crossroads. Crossroads was printed and published in Bombay and was considered a left-leaning journal, very critical of a number of the policies of the Nehruvian government. The Madras government had declared the communist parties illegal. The Government of Madras, in exercise of their powers under Section 9 (1-A) of the Madras Maintenance of Public Order Act, 1949 purported to issue an order No MS 1333 dated March 1, 1950, whereby they imposed a ban on the entry and circulation of the journal in that state. Romesh Thapar approached the Supreme Court of India and alleged that this ban was a violation of his freedom of speech and expression as guaranteed under Article 19 (1) (a). The court stated that the ban would prima facie constitute a clear violation of the fundamental right of freedom of speech and expression unless it could be shown that the restriction was saved by the exceptions provided by Article 19 (2) of the Constitution. The question that therefore arose was whether Section 9 (1-A) of the Madras Maintenance of Public Order Act was saved by Article 19 (2). Section 9 (1-A) authorised the Provincial Government “for the purpose of securing the public safety or the maintenance of public order, to prohibit or regulate the entry into or the circulation, sale or distribution in the Province of Madras or any part thereof of any document or class of documents”. Given the fact that Article 19 (2) did not contain the phrase ‘public safety’ or ‘public order’, the question was whether it could fall under the language of Article 19 (2) and be considered a “law relating to any matter which undermines the security of or tends to overthrow the state”. The government argued that the expression “public safety” in the Act, which is a statute relating to law and order, means the security of the Province, and, therefore, “the security of the state” within the meaning of Article 19 (2) as “the state” has been defined in Article 12 as including, among other things, the government and the legislature of each of the erstwhile Provinces. The court however stated that the phrase ‘public safety’ had a much wider connotation than ‘security of the state’, as the former included a number of trivial matters not necessarily as serious as the issue of the security of the state. It concluded that “unless a law restricting freedom of speech and expression is directed solely against the undermining of the security of the state or the overthrow of it, such law cannot fall within the reservation under clause (2) of Article 19, although the restrictions which it seeks to impose may have been conceived generally in the interests of public order. It follows that Section 9 (1-A) which authorises imposition of restrictions for the wider purpose of securing public safety or the maintenance of public order falls outside the scope of authorised restrictions under clause (2), and is therefore void and unconstitutional”.

In the second case, Brij Bhushan v State of Bihar (8), the chief commissioner of Delhi passed an order under Section 7 (1) (c) of the East Punjab Public Safety Act, 1949 against an English weekly from Delhi called the Organizer. If in the Romesh Thapar case the order was against the far left, in this case the order was against the far right, as the Organizer was the mouthpiece of the RSS. The commissioner had issued the order against the Organizer for printing inflammatory materials with respect to the Partition. As per the order, the editor of the Organizer had to submit for scrutiny, before publication, all communal matter and news and views about Pakistan including photographs and cartoons other than those derived from official sources or supplied by the news agencies, viz, Press Trust of India, United Press of India and United Press of America. The question arose as to whether this order of pre-censorship could be held to be constitutionally valid. This decision was delivered on the same day as the Romesh Thapar case, and the majority in this case referred to their decision in Thapar’s case and concurred with the findings in the Thapar case. The key factor in both the decisions was the fact that the phrase ‘public order’ was not included in Article 19 (2) and that the courts interpreted restrictions on freedom of speech and expression as being legitimate only if they pertained to “undermining the security of the state or overthrowing the state”. Mere criticism of the government could not be considered as speech which could be restricted for the purposes of Article 19 (2). It is interesting to note that Justice Fazl Ali delivered a dissenting decision in both the cases, and his argument was that a literal construction of the phrase ‘public order’ would justify restrictions even in the case of trivial offences. However, in the context of the two legislations, it could only relate to serious offences affecting public order.

These two decisions of the Supreme Court precipitated in the minds of the government the first major crisis of the nation state. The crisis can be read at various levels; it exposed the inherent tensions between balancing freedom of speech and expression and the promotion of national security and sovereignty. It also posed the question as to who the guardians of the Constitution were. And finally it set in motion a debate which would haunt Indian democracy -- viz the exercise of a democratic right as a threat to the larger abstract ideal of a democratic state.

The first amendment: Bringing order to speech

Sardar Patel, the home minister, thought that the Crossroads decision “knocked the bottom (out) of most of our penal laws for the control and regulation of the press” (9), while Nehru was livid with the interpretation of the court. He immediately wrote to Ambedkar “expressing the view that the Constitution’s provisions pertaining to law and order and subversive activities needed to be amended. Reflecting the difficulties the government was having with the courts over the fundamental rights, Nehru added that the provision affecting zamindari abolition and nationalisation of road transport also needed to be amended”(10). In February 1951, Nehru formed a cabinet committee to examine the proposed amendment. The home ministry recommended to the cabinet committee that ‘public order’ and ‘incitement to a crime’ should be included among the exceptions to the right of freedom of speech. It preferred dropping ‘to overthrow the state’ in favour of a wider formulation, ‘in the interests of the security of the state’. It is to be noted that the original Article 19 (2) did not have the word ‘reasonable’ before the word ‘restrictions’, and the law ministry was of the opinion that the word ‘reasonable’ as used in Article 19 should be retained and even added to Article 19 (2). The cabinet committee, however, strongly disagreed with Ambedkar and felt that while it was reasonable to retain the word ‘reasonable’ in the other provisions in Article 19, restrictions on freedom of speech and expression should not be qualified in any manner. This slightly contradictory logic was justified on the ground that they feared the political repercussions of taking away the protection that ‘reasonable’ accorded to the other freedoms in the article. But they were so alarmed by the dangers to national security, friendly relations with foreign states, public order, etc, that they felt that possible curbs on free speech did not have to be ‘reasonable’. President Rajendra Prasad, on a reading of the Supreme Court decision, did not think that it was necessary to amend the Constitution and he was of the view that “amendments should only come if it was found impossible to bring the impugned provisions of law ‘in conformity with the Constitution’”.

The draft amendment without the word ‘reasonable’ and with the addition of ‘public order’ was introduced on May 12, 1951. Nehru defended the amendment stating that it fulfilled the need of the hour. Referring to the statement by the judge in the Patna High Court, he stated: “It was an extraordinary state of affairs that a high court had held that even murder or like offences can be preached.” Critics of the bill included H N Kunzru who argued that this was not an amendment but a repeal of Article 19 (1) (a). Shayama Prasad Mookerjee of the Hindu Mahasabha delivered a scathing critique of the proposed amendment. In response to the various apprehensions articulated, and as a compromise gesture, Nehru suggested adding the word ‘reasonable’ to qualify the restrictions on freedom of speech and expression.

The addition of the word ‘reasonable’ was a partial defeat for Nehru, as it was clear that given a choice he would have preferred not having any qualifications to the restrictions. In a subsequent letter to T T Krishnamachari, Nehru stated that the reason why he did not like the word ‘reasonable’ was because the word was an ambiguous one and it would open up the possibility of the court being called to interpret whether a particular act was reasonable or not.

The Cabinet accepted the recommendation in order to avoid a split in the Cabinet and ensure a two-thirds majority. On the first of June 1951, Parliament passed the bill by a vote of 228 to 20.

Conclusion

Over the decades there have been many more amendments to the Constitution, not all of which have great historical significance. However, one thing is certain -- every period of conflict in the history of India can almost be mapped alongside a history of moves to amend the Constitution, the constitutional history during the Emergency being a classic case. The first amendment, however, retains a significant space in this history, not merely because it was the first amendment but because in many ways it also signalled the kinds of battles that would take place between the project of nation-building and the sphere of the media. It marked the rather premature end of the vision of a ‘seamless web’, with the promotion of national security and sovereignty being prioritised over the promotion of democratic institutions.

As with any project of state imagination, the impact of the first amendment is also fraught with contradictions and internal conflicts. While introducing the discourse of public order into constitutional restrictions on freedom of speech and expression, it also introduced the idea of ‘reasonable restriction’, and, as Nehru rightly predicted, it proved to be the basis for future conflicts over the media, the Constitution and state formative practices. The contradictions that arose between the three strands of the seamless web of the Constitution were seen as the disintegration of the whole, rather than as the inevitable process through which fragments work their way into monumentalist imaginations. It is also perhaps well worth looking at the crisis that precipitated the first amendment to understand our contemporary situation. In 1950, you had a situation where Nehru had to contend with speech and expression that were ideologically opposed to his liberal values, from that of the far left to that of the far right. Nehru’s response was a classical case of deferring of an exercise of a democratic right, or democratic practice in favour of the larger interest or abstract norm of a democratic state. Having assumed the greater common good, he could then determine what was desirable and undesirable speech, and proceed to act with a democratic conscience. Rather than understanding the media as a perpetual site of politics and contestation over the form of the nation over what constitutes the public sphere, the media was seen to be an instrument/medium for the promotion of an assumed public interest. This perhaps also speaks to some contemporary debates where progressive intellectuals, media practitioners, etc, demand greater regulation against the ‘hate speech’ of the right. We need to be a little cautious in our responses to forms of speech that offend our liberal sentiments. Very often the assumption of desirable forms of speech presumes a pre-tailored relationship between media and the properly constituted public sphere (much like the imagination of the seamless web), and a plea to the state to rule out undesirable forms of speech abandons the site of politics and converts it into a site of regulation that will merely heighten the crisis rather than resolve it.

Note: This essay by Lawrence Liang was published in Sarai Reader 04 (2004)

(Lawrence Liang is a researcher at the Alternative Law Forum)

Endnotes
1 See Upendra Baxi, Constitutionalism As a Site of State Formative Practices, 21 Cardozo L Rev 1183
2 Article 19 (2) was subsequently amended again in 1963 by the 16th Amendment Act following the Indo-China war
3 Glanville Austin, Working a Democratic Constitution: The Indian Experience (New Delhi: OUP, 1999) p 13
4 Ibid at p 14
5 Ibid at p 6
6 We will not be referring to the Patna High Court decision. But an important point to note is that Justice Sarjoo Prasad’s statement would later be used by Nehru while defending the first amendment. Justice Sarjoo Prasad had stated that ‘if a person were to go on inciting murder or other cognisable offences either through the press or by word of mouth, he would be free to do so with impunity, because he could claim freedom of speech and expression’
7 AIR 1950 SC 124
8 AIR 1950 SC 129
9 Glanville Austin at p 42
10 Ibid

Infochange News & Features, July 2011