COMMENTARY 42nd amendment, did try to arrogate to First Amendment to Constitution itself supreme unfettered powers to amend the Constitution. of The introduction to the statement of objects and reasons for the amendment, laid on the table of the Lok Sabha on C K Mathew 1 September 1976, reads: Parliament and the State Legislatures em- India’s Constitution has been he 100th amendment to the Con- body the will of the people and the esse nce amended over a hundred times stitution was passed after due of democracy is that the will of the people process in Parliament, and was should prevail. Even though arti cle 368 of since its inception in 1950. The T the Constitution is clear and categoric with notifi ed on 28 May 2015 by the Ministry landmark amendments are regard to the all inclusive nature of the amend- of Law and Justice. The amend ment ena- ing power, it is considered necessary to put discussed with special emphasis bles the transfer of certain properties of the matter beyond doubt. It is proposed to on the fi rst amendment, which India to Bangladesh and certain other strengthen the presumption in favour of the properties of Bangladesh to India, there- constitutionality of legislation enacted by altered the way the freedom Par liament and State Legislatures by provid- by resolving an issue that was as old as of speech and expression was ing for a requirement as to the minimum independent India itself. It received the number of Judges for determining questions originally understood by the unanimous support of all political par- as to the constitutionality of laws and for a framers of the Constitution. ties, and was widely welcomed by the special majority of not less than two-thirds peoples of the two countries, especially for declaring any law to be constitutionally invalid. It is also proposed to take away the those living in the areas concerned, and jurisdiction of high courts with regard to de- those adjoining the transferred places. termination of Constitutional validity of Cen - Undoubtedly, India is the only country tral laws and confer exclusive jurisdiction in in the world with a written constitution this behalf on the Supreme Court so as to that has been amended so many times in avoid multiplicity of proceedings with regard to validity of the same Central law in different the six and a half decades since its incep- high courts and the consequent possibility tion in 1950. The fact that the Constitu- of the Central law being valid in one State tion has indeed been amended a hundred and invalid in another State (The Constitu- times sometimes gives rise to two con- tion (Forty-Second Amendment) Act 1976). fl icting trends of thought. One school of Parliament achieved this purpose by thought derides the constant and unend- inserting a new article, namely, Article ing process by which the Constitution is 131A, after Article 131, which removed being mutated and, some would say, the powers of the high courts in matters mutilated, to suit the needs of the politi- related to validity of constitutional mat- cal party in power. Such criticism is ters and gave exclusive jurisdiction for often made with reference to the contro- the same to the Supreme Court. The new versial 42nd amendment brought in by article reads as follows: at the height of the Emer- Article 131A. Exclusive jurisdiction of the gency, when her powers were supreme. Supreme Court in regard to questions as to Yet others argue that the Constitution is the Constitutional validity of Central laws. a living document and must refl ect the (1) Notwithstanding anything contained in any other provision of the Constitution, the growing aspirations of the people of Supreme Court shall, to the exclusion of any India from time to time. Hence, it is other court, have jurisdiction to determine argued that amendments to the Consti- all questions relating to the constitutional tution are not merely refl ective of such validity of any Central law. aspirations but also emphasise and Concurrently the 42nd constitutional translate the will of the people to carve amendment, through a new article, out their own destiny. Article 228A, also curtailed the powers of The procedure for such amendment is high courts by restricting their jurisdic- Views expressed are personal. laid out in Article 368 of the Constitu- tion over central laws; “Article 228 A(1). C K Mathew ([email protected]), retired tion and indeed can be said to protect No high court shall have the jurisdiction from the Indian Administrative Service, the sanctity of the Constitution as well to declare any Central law to be consti- was former Chief Secretary, Government of as to check the arbitrary power of tutionally invalid.” Rajasthan, and is presently Senior Fellow in Parliament. Nevertheless, it cannot be In order to ensure that Parliament re- the Public Affairs Centre, Bengaluru. denied that Parliament, through the mains supreme, Article 368 was suitably

20 may 7, 2016 vol lI no 19 EPW Economic & Political Weekly COMMENTARY amended by the insertion of the clauses Constitution would hold precedence, it of the First Amendment Bill reads as (4) and (5) as reproduced below: is now the right time to examine how the follows: Article 368 (4) No amendment of this Con- very fi rst constitutional amendment did During the last fi fteen months of the work- stitution... made or purporting to have been succeed in abridging the most valued of ing of the Constitution, certain diffi culties made under this article...shall be called in fundamental right of a citizen, namely have been brought to light by judicial decisions question in any court on any ground. that of freedom of speech. Of course, these and pronouncements specially in regard to the chapter on fundamental rights. The citizen’s (5) For the removal of any doubts, it is here- actions took place before the contentious by declared that there shall be no limitation right to freedom of speech and expression whatever on the constituent power of parlia- issues brought to the fore by the 42nd guaranteed by Article 19 (1) (a) has been held ment to amend by way of addition, variation amendment. The fi rst constitutional by some courts to be so comprehensive as not or repeal the provisions in this Constitution amendment was brought in by the Gov- to render a person culpable even if he advo- under this article. ernment of India’s fi rst Prime Minister cates murder and other crimes of violence. In other countries with written constitutions, Indeed the promulgation of Emergency in 1951. He moved freedom of speech and the press is not re- in the country was hugely unpopular and the bill on 12 May 1951 and the same garded as debarring the State from punish- its most controversial issue was the 42nd was enacted by the Provisional Parlia- ing or preventing abuse of this freedom. (The amendment. In time, judicial pronounce- ment of India (called thus until as when Constitution (First Ame ndment) Act 1951). ments restricted the power of Parlia- the full- fl edged Parliament was consti- ment for making constitutional amend- tuted through adult franchise in 1952) Colonial Censorship ments only in such cases as where the basic on 18 June 1951. From where did this concern arise? Be- structure of the Constitution is not altered. The fi rst amendment of the Constitu- fore we address this issue, it would be In this regard, we may in passing tion, offi cially known as the Constitution relevant to take a quick look at the vari- mention three judgments which addre- (First Amendment) Act, 1951, made sev- ous measures that were imposed by the ssed this contentious issue: eral changes to the Fundamental British government prior to independ- (i) The Golaknath v State of Punjab (AIR Rights provisions of the Constitution ence. This is necessary because it would 1967 SC 1643), where it was upheld that and other important provisions. It pro- give an idea of the kind of suppression of constitutional amendments through vided against abuse of freedom of speech speech and expression that the Indian Arti cle 368 were subject to fundamental and expression, validation of zamind- newspapers, and indeed the nationalist rights issue; ari abolition laws, and clarifi ed that movement, had to face against a foreign (ii) The Keshavananda Bharathi judgment the right to equality does not bar the en- government. (1973) 4 SCC 225, where the doctrine actment of laws which provide “special We are aware of the censorship that was espoused that the Constitution has a consideration” for weaker sections of so- the British government imposed on the basic structure of constitutional princi- ciety. The device of the Ninth Schedule people of India ever since the days of the ples and values and that the judiciary has to protect certain legislations from judi- fi rst war of independence, derisively re- the power to review and strike down cial review also found its origins in the ferred to by the British as a sepoy mutiny. amendments which confl ict with, or fi rst amendment. Immediately thereafter, a “Gagging Act” seek to alter, this basic structure of the In fact, this amendment set the prec- was passed by the new British govern- Constitution; and edent for amending the Constitution to ment that took over the reins of admi- (iii) The Minerva Mills Ltd and Ors v Union overcome judicial judgments which nistration of the country. Its aim was of India and Ors judgment (AIR 1980 SC purportedly impeded the fulfi lment of unabashedly to regulate the printing 1789), that applied and evolved the basic the government’s responsibilities to presses and restrain them from printing structure doctrine of the Constitution, particular policies and programmes. infl ammatory matter in the papers. All unanimously ruling that Parliament can- The amen dment’s language gave it ret- presses, English and vernacular, had to not exercise unlimited power to alter this rospective and prospective effect: this have a licence issued by the government. basic structure or tread upon the funda- feature was used by Jawaharlal Nehru’s The act proscribed all printed material mental rights of individuals, including the daughter, and heir to the chair of Prime right to liberty and equality. Minister, Indira Gandhi, when, as we Permission for Reproduction of The Janata Party government, led by have just seen during Articles Published in EPW Morarji Desai, sought to rectify these she attempted to render constitutional, excesses made at the height of the Emer- the actions that had been both illegal No article published in EPW or part thereof gency by the 43rd constitutional amend- and unconstitutional. should be reproduced in any form without ment, but was only partly successful. We will only examine the crucial issues prior permission of the author(s). related to the amendment on the Con- A soft/hard copy of the author(s)’s approval Most Valued Fundamental Right stitution with regard to the fundamental should be sent to EPW. Having discussed the background in which right of freedom of speech and expres- In cases where the email address of the the entire issue of constitutional amend- sion as enunciated in Article 19(1)(a). author has not been published along with ments was agitated and how the dictates A brief extract from the statement of the articles, EPW can be contacted for help. of the immutable basic structure of the Objects and Reasons at the introduction

Economic & Political Weekly EPW may 7, 2016 vol lI no 19 21 COMMENTARY which criticised the motives of the British (Emergency Powers) Act, 1931 gave had lost everything when India was parti- Raj, and which incited hatred, contempt sweeping powers to provincial govern- tioned to create . and unlawful resistance to its orders. ments to suppress any material used for Though Thapar’s Cross Roads was a Not satisfi ed with the impact of this act, the Civil Disobedience Movement. It was stridently secular publication, in order the British government created an even further amplifi ed in 1932 to include all to counter any charge of bias, the gov- more forcible law known as the Vernac- activities calculated to undermine gov- ernment banned Cross Roads at the same ular Press Act. There is an apocryphal ernment authority. In the World War II time as the Organiser. According to Cross story that the Lieutenant Governor of period, existing laws were reviewed and Roads, the new government was a colla- Bengal, Ashley Eden, had summoned made more stringent. At one time, publi- borative regime which had not succeeded the editors of the various vernacular cation of all news related to Congress in ushering in social and political reforma- newspapers demanding that he be given activity was declared illegal. tion which was, according to the maga- fi nal editorial approval for matter print- zine’s radical views, necessary for India’s ed in these papers. Sisir Kumar Ghose, Post-independence Censorship real emancipation. At this same time, a editor of the Amrita Bazaar Patrika re- It is in this light of continuous imposition communist movement was gathering fused, remarking that “there ought to be of restrictions in the pre-independence strength in the western parts of Madras at least one honest journalist in the days, personally experienced and suffered state (which areas later became Kerala) land.” The Vernacular Press Act might by Indian freedom fi ghters, that we must and this prompted the local administra- be said to have been sparked from this look at the reasons for a free India to resort tion to take the unilateral step of ban- incident. In justifi cation of the enact- to a similar, if not identical, restrictions on ning this magazine. ment, Ashley commented that 45 sedi- free speech and expression. A brief look at Thapar petitioned the Supreme Court tious writings published in 15 different the backdrop in which the fi rst constitu- to overturn the ban. The case was heard vernacular papers were presented to tional amendment was introduced would together with Brij Bhushan v the State of him before the act was fi nalised. be helpful. In 1950, a journal in English Delhi. This led to the landmark judgment The Vernacular Press Act 1878 stated with admittedly leftist leanings called the of the Supreme Court in Brij Bhushan v that any magistrate or commissioner of Cross Roads, published by Romesh Thapar, the State of Delhi on 26 May 1950 (AIR 1950 police had the authority to call upon the was banned by the Madras State for pub- SC 129). The Court found that the impo- printer or publisher of a newspaper to lishing critical views on Nehruvian policy. sition of pre-censorship on a journal is a enter into a bond, undertaking not to In fact, the Nehru government’s original restriction on the liberty of the press print any material deemed objectiona- grievance was against another publica- which is an essential part of the right to ble. What was seditious news was to be tion, called the Organiser. Regarded as freedom of speech and expression declared determined by the police, and not by the right wing, the Organiser had published by Article 19(1)(a). The executive orders judiciary and no redress could be sought some cartoons depicting Pakistan, which for banning the journal were shot down. in any court in the land. Under this act was viewed by the union government as Piqued by this judgment, the Nehru many of the papers were fi ned, their being communal and infl a mmatory in government decided to take action to editors jailed. its import. The government, therefore, enable the executive to place curbs on the There were other regulations and sta- wanted to impose restrictions on Organ- unfettered freedom of expression where tutes that the British government bro- iser. However, Organiser was seen as a issues of public tranquillity and order ught in, including the Newspapers (Incite- patriotic publication whose cartoons are involved. This led eventually to ment to Offences) Act 1908, which tar- refl ected the views of many Indians who the First Amendment of the Constitution, geted extremist nationalist activity, and empowered magistrates to confi scate Oral History Archives press property with objectionable mate- rial that was likely to cause incitement On behalf of EPW, the Centre for Public History, Srishti School of Design, Bengaluru, to murder or acts of violence. Similarly has put together extended interviews of 30 individuals associated with Economic there was the Indian Press Act, 1910, Weekly and EPW. which empowered the government to These are interviews with present and former staff, readers, writers and trustees, all demand a security at registration of a closely associated with the journal. newspaper with the penalty to deregis- The interviews cover both the EW and EPW years, some are of the 1950s, others the ter it if it was proved to have printed 1960s and some even later. Each interview lasts for at least an hour and a few are offending material: the printer had to multi-session interviews. submit two copies of each issue to local government free of charge. The interviews maintained in audio files (with transcripts) are available at the EPW offices in for consultation by researchers. During the World War I too, the De- fence of India rules imposed a gag on Individuals interested in researching those times and the history of EW/EPW may write free public criticism and political agita- to [email protected] to explore how the files may be heard and used. tion. More importantly, the Indian Press

22 may 7, 2016 vol lI no 19 EPW Economic & Political Weekly COMMENTARY when Parliament amended Section 19(1) which offends against decency or impose much the same restrictions in (a) of the Constitution of India to place m orality or which undermines the secu- a free and independent India against restrictions on the freedom of speech and rity of, or tends to overthrow, the state,” its own citizens. Indeed, the foreign expression by making it a crime to incite even though it may militate against the colonial government had taken these public disorder. The case brought atten- unfettered and unrestricted free dom of actions for gagging speech and expres- tion to Cross Roads, which had been un- speech and expression. The newly in- sion to perpetuate their control and known up to that point of time, but also serted clause stipulates that reasonable supremacy over a vassal country. But on caused a number of its advertisers and restrictions can be imposed by the state attainment of Independence too, the contributing writers to distance them- in “the interests of the sovereignty and nature of realpolitik made it incumbent selves from the publication. integrity of India, the security of the on the government to restrict speech Let us now look at Article 19 of the State, friendly relations with foreign and expression, even at the cost of Constitution in its original form, while, States, public order, decency or morality amendment to the Constitution in the of course, restricting our examination or in relation to contempt of court, defa- most primary and supreme of funda- only to the matter of the freedom of mation or incitement to an offence.” mental rights. speech and expression. Out of this constitutional amendment Toning Down Idealism came the Press (Objectionable Matter) Article 19. Protection of certain rights re- garding freedom of speech, etc.- The idealism brought in by the freedom Act, 1951 which empowered the govern- (1) All citizens shall have the right- movement and the new Constitution ment to demand and forfeit security (a) to freedom of speech and expression;... with regard to freedom of speech and for publication of “objectionable matter.” (2) Nothing in sub-clause (a) of clause (1) shall expression had to be toned down in the Aggrieved owners and printers were affect the operation of any existing law in so face of the real problems and issues that given the right to demand trial by jury. It far as it relates to, or prevents the State from making any law relating to, libel, slander, were unleashed in the new country in remained in force till 1956. Of course, defamation, contempt of court or any mat- its day-to-day management. The amen- the gagging of the press during the dark ter which offends against decency or moral- ded clause (2) has taken into account days of the Emergency needs no reitera- ity or which undermines the security of, or the situation that had arisen out of the tion here when the Prevention of Publi- tends to overthrow, the State. Organiser’s critical comments against cation of Objectionable Matter Ordi- The above clause (2) was deleted by Pakistan. But it also generated fear of nance 1975 was promulgated. After the the fi rst amendment, and replaced by legal action which could be taken defeat of the Indira Gandhi government the following: against those papers or journals which in 1977, the new government restored (2) Nothing in sub-clause (a) of clause (1) dared to make any observations that freedom of expression and speech through shall affect the operation of any existing could be adversely interpreted as chal- the restoration of the Parliamentary Pro- law, or prevent the State from making any lenging the sovereignty and integrity of ceedings (Protection of Publications) Act law, in so far as such law imposes reasonable India as well as affecting public order, 1956. The Supreme Court in a wide range restrictions on the exercise of the right con- decency, etc. It can be seen that the of judgments have clarifi ed its views on ferred by the said sub-clause in the interests of the sovereignty and integrity of India, the powers now with the executive to pro- each of the causes mentioned in the security of the State, friendly relations with scribe or prohibit free speech, even amended clause (2) of Article 19 of the foreign States, public order, decency or mo- though such observations may have Constitution, that can be purported to rality or in relation to contempt of court, been made in the genuine interests of grant justifi cation to the executive to im- defamation or incitement to an offence. the country and its democratic princi- pose restriction on freedom of speech It would be interesting to conjecture ples and values, could be open to inter- and expression. the idealistic vision that may have pro- pretation and punitive action. It is also To summarise, in the wake of the mpted the framers of the Constitution of clear that the reason behind the fi rst 100th constitutional amendment, this 1950 to originally provide for freedom of amendment was not only the need to article was but an exercise to under- expression. The fi rst of the fundamental preserve friendly relations with foreign stand how the process of such amend- freedoms elucidated in Article 19 is in- states (in this case, Pakistan), but also ments to the Constitution were initiated deed the freedom of speech and expres- to prevent future critical comments by way of the fi rst amendments and the sion. The leaders of the fl edgling nation against the government, the likes of important issues involved in the same may have been moved by the need to which had been made by Romesh that had wide-ranging implications on have sweeping freedom of speech and Thapar’s Cross Roads. the liberty and freedom of the citizens expression in view of the diffi culties It is an irony that the very freedom of the country. they themselves faced while battling for fi ghters who protested against the many References independence for the country. The de- restrictions that the British government “The Constitution (First Amendment) Act (1951),” leted clause (2) of the Article 19 provided had imposed on freedom of speech and India Code, http://indiacode.nic.in/coiweb/ only for some measure of protection for expression during the struggle for Inde- amend/amend1.htm. laws relating to “libel, sla nder, defama- pendence, had, on assuming the govern- “The Constitution (42nd Amendment) Act (1976),” India Code, http://indiacode.nic.in/coiweb/ tion, contempt of court or any matter ance of the country themselves, to amend/amend42.htm.

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