The Constitution and the press

BY Lawrence Liang| IN Media Freedom | 03/06/2010

A quick perusal of any Supreme Court decision on the scope of freedom of speech and expression will reveal that they always begin with paying lip service to the critical importance of freedom of speech and expression in India, but then automatically goes on to state that free speech can not be absolute and has to be within ‘reasonable restrictions’. In order words, there has always been an inherent suspicion of the media by the state and the law. Rather than any serious investment in the idea of what it may mean to promote free speech and create intuitions of speech, the state has always framed the media within the anxiety of ‘law and order’.

Freedom of speech and expression is guaranteed in India vide Art. 19(1)(a) of the Constitution but subject to reasonable restriction laid down in Art.19(2) of the constitution.

The Indian constitution also limited the right to citizens and did not expressly include the right of the press to freedom of speech and expression. Dr. Ambedkar, the chairman of the constituent assembly, said, "The press is merely another way of stating an individual or a citizen. The press has no special rights which are not given or which are not exercised by the citizen in his individual capacity. The editor of a press or the manager are all citizens and therefore when they choose to write in newspapers, they are merely expressing their right to freedom of speech and expression and in my judgment therefore no special mention is necessary of the freedom of the press at all".

Crisis of the emerging nation

This is a bit of a puzzle given the fact that claims for free speech were central to the arguments of the anti colonial nationalist movement, and indeed many of the prominent leaders from Gandhi to Tilak to Nehru were subject to harsh censorship laws during the colonial period. Perhaps the massive violence that took place in the wake of the Partition as well as the difficulties of consolidating a nation that had consisted of thousands of princely and feudal states overshadowed the creation of independent India.

It is therefore not surprising that the some of the first crises of the new nation stemmed from its ability to curb sentiment that was critical of the form of the nation, as well as of its decision to restrict free speech in the interests of maintaining communal harmony. In a sense it could be argued that the Indian constitution is not a classical liberal constitution, in so far as it does not privilege individual rights over community rights.

One of the first constitutional battles in independent India was on the question of the freedom of the press. The constitutional crisis caused by the judgments of the Supreme court in Romesh Thapar’s case and the Brij Bhushan case precipitated the first amendment to the constitution of India, in less than a year of its existence. And interestingly the amendment was to the freedom of speech and expression clause.

Constitution Law experts such as Granville Austin said that the greatest challenges for the framers of the constitution included, the centralisation of authority to ‘enhance national unity and promote economic development without alienating subordinate levels of government and stultifying local initiative’. Austin argues that the Indian constitution attempted to resolve these different strands by creating what he has described as a seamless web. The core vision of the constitution "may be summarized as having three stands: protecting and enhancing national unity and integrity, establishing the institutions and spirit of democracy; and fostering a social revolution to better the lot of mass of Indians. The framers believed, and the Indians believe today, that the three strands are mutually inter-dependent and inextricably intertwined.".

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?

The First Amendment to the Constitution

In its original form,  the text of  Article 19(1)(a) and Art.19(2) reads as follows:

"All citizens shall have the right to freedom of speech and expression. This fundamental right was, however limited by Art. 19(2) which said that "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, morality or morality or which undermines the security of the state or tends to overthrow the state".

The scope of Art.19(2) was already quite wide, but as the noticeable absence from the proviso are the familiar phrases ‘reasonable restrictions’.  The first amendment to the constitution was to the proviso to Art. 19(1)(a), namely Art. 19(2), and after the amendment the provision read as follows: Art. 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 ground for restricting freedom of speech and expression, and finally

c)     The addition of ‘public order’ which replaces ‘tends to overthrow the state’

Romesh Thapar, Brij Bhushan and the First Amendment

The first real strain on the seamless fabric of the constitution and on press freedom emerged in the context of three decisions, one by the Patna High Court 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.

The first case, Romesh Thapar v. State of Madras involved Romesh Thapar, a prominent journalist and member of the communist party. Thapar was the printer, publisher and editor of an English journal called Cross Roads, which was printed and published in Bombay and was somehat of a mouthpiece of the communists and 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 1st March 1950, whereby they imposed a ban upon 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 Art. 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 Art. 19(2) of the Constitution.

The question that therefore arose was whether Sec. 9 (1-a) of the Madras Maintenance of Public Order Act was saved by Art. 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 Art. 19(2) did not contain the phrase ‘public safety’ or ‘public order’, the question was whether it could fall under the language of Art. 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".

The second case, Brij Bhushan v. State of Bihar also dealt with a similar question, except that the case involved the magazine Organizer which was the mouthpiece of the RSS. The RSS was one of the organization that had been banned because they were involved with the assassination of Mahatma Gandhi. The 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 Art. 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 Art. 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. It posed the question as to who the guardians of the constitution were, and finally it also set in motion a debate which would haunt Indian democracy for the next fifty years 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 Cross Roads decision "knocked the bottom of most of our penal laws for the control and regulation of the press" 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 nationalization of road transport also needed to be amended".

In Feb 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’.

Interestingly,  the original Art. 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 Art. 19 should be retained and even added to Art. 19(2). The cabinet Committee, however, strongly disagreed with Ambedkar and felt that while the word reasonable could be retained in the other provisions in Art. 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.

The draft amendment without the word reasonable and with addition of public order was introduced on 12^th May 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".

The critics of the bill included H N Kunzru who argued that this was not an amendment but a repeal of Art. 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 it would the word ‘reasonable’ was an ambiguous one and it would open up the possibility of the court being called on 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 two-thirds majority. On the first of June 1951 Parliament passed the bill by a vote of 228 to 20.