Dasu Krishnamoorty
We remember Jawaharlal Nehru for several reasons. We remember the great institutions and infrastructures he had built - the science labs, the IITs, space and atomic energy establishments, the Akademis, the river dams, to cite a few. His press policy was, however, an enigma because it benefited as well as hurt the press. On the credit side were measures like the wage boards for journalists, the press commission etc. But the very first decision he took on freedom of expression took away the shine from the good he did for the press.
Journalists of the Nehru era knew of the times when he had bypassed norms both of democracy and free press because he thought they came in the way of building an India of his dreams. "It is dishonest to hail him as a democrat without reckoning with his lapses from democratic norms; a champion of press, he also placed curbs on the press," wrote eminent jurist A.G.Noorani reviewing Nehru¿s works in Frontline (25 September, 2004).
In the very first year of the Indian Republic¿s anniversary, Nehru became impatient enough with the press and the judiciary to propose the first amendment to the Constitution that would have proved the Damocles¿ sword over the head of the press if it were passed according to its original draft that sought to impose curbs on free expression that need not necessarily be reasonable.
In a statement (20 May 1951) on the objects and reasons for the first amendment, he said, "During the last fifteen months of the working of the Constitution, certain difficulties have been brought to light by judicial decisions and pronouncements specially in regard to the chapter on fundamental rights. The citizen`s right to freedom of speech and expression guaranteed by article 19(1)(a) has 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." Nehru also thought dilatory litigation held up his land reform programmes.
In a lengthy paper submitted to the Alternative Law Forum, its founder Lawrence Liang provided details of what had so upset Nehru that he needed to amend the Constitution. Two Supreme Court decisions coming on the same day, Romesh Thapar vs. State of Madras and Brijbhushan vs. State of Bihar, rattled Nehru who resented the decisions as hurdles in the way of social change.
In the Thapar case, the Government of Madras, which had already banned the Communist Party, prohibited in March 1951 Crossroads, a progressive weekly edited by Romesh Thapar, very critical of a number of the policies of the Nehru government, from entering or circulating in the state. On appeal by Thapar, the Supreme Court held that the ban was ultra vires of Art. 19 (1) (a) because provisions in the Madras law sanctioning the ban were not covered by exceptions as mentioned in Art. 19 (2). The Madras government ban was imposed on grounds of public safety/public order, words which did not find mention at that time as grounds for curbing freedom of expression. So, the apex court held that the ban had offended Art. 19 (1) (a).
In the second case which was a case of prior restraint, the Chief Commissioner of Delhi passed an order against the Organizer, mouthpiece of the Rashtriya Swayamsewak Sangh, under the East Punjab Public Safety Act, directing the newspaper to submit for scrutiny before publication all articles, news, cartoons, analyses and pictures relating to communal issues or Pakistan for printing inflammatory materials with respect to the partition. On appeal, the Supreme Court declared that section 7 (1) (c) of the Punjab Act under which the order was passed was unconstitutional because the restrictions imposed were outside the purview of Article 19 (2) as it then stood, which did not include public order as a permissible head of restriction. Common to both the decisions was the reference to the absence of public order in Art.19(2).
These two decisions and their endorsement by the press sparked the first constitutional crisis of the young Republic. Home Minister Sardar Patel thought that the Crossroads decision "knocked the bottom of most of our penal laws for the control and regulation of the press." Nehru was not happy either and wrote to Law Minister B. R. 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". He also set up a Cabinet Committee to examine the amendment. The Home Ministry recommended to the Cabinet Committee that ¿public order¿ and ¿incitement to a crime¿ be included among the exceptions to the right of freedom of speech.
The Law Ministry felt that the word reasonable as it appeared 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 it was reasonable to retain the word reasonable in the other provisions in Art. 19, restrictions on freedom of speech and expression should not be qualified in any manner. Nehru too argued that the proposed restrictions on free speech did not have to be reasonable.
So, the draft amendment without the word reasonable and with addition of public order was introduced in Parliament on 12 May 1951. Nehru defended the amendment stating that it fulfilled the need of the hour. He also tried to support the amendment by referring to the statement of a judge (Justice Sarjoo Prasad) in a Patna High Court case. He said, "It was an extraordinary state of affairs that a high court had held that even murder or like offences can be preached." In a case that came up before him, Justice Sarjoo Prasad had said that "if a person were to go on inciting murder or other cognizable 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."
But in the face of fierce opposition, the government agreed to include the word reasonable to qualify the restrictions on freedom of speech and expression. In a letter to T. T. Krishnamachari, Nehru said he did not like the word reasonable because the word was ambiguous and would permit the courts to put their own gloss on whether a particular Act was reasonable or not. The Cabinet accepted the recommendation in order to avoid a split and ensure two-thirds majority. Parliament passed the bill on 1 June 1951. The All India Newspaper Editors¿ Conference condemned the amendment and asked newspapers all over the country to suspend publication for a day to indicate protest. Thus was born the very first amendment to the Constitution. The Press (Objectionable Matter) Act too came in the same year.
Noorani quotes a more damaging excerpt (reproduced below) from the book he was reviewing for Frontline that showed Nehru in poor light in an interview to American journalist Michael Brecher:
Nehru: Again criticism was made about our dealing with the press here. You may have seen the press here. I don¿t know if you have seen the worst part of the press, in Hindi and Urdu and these languages?
Brecher: No, I am afraid not.
Nehru: Terrible, something terrible and we found it did little good. We put an end to it.
Brecher: That gave rise to the Press Objectionable Matters Act?
Nehru: Yes, some say we are suppressing the press. It is absurd. You see the press here, how it functions.
There was also this story about how civil servant A. D. Gorwala`s column in The Times of India written under the pseudonym "Vivek" was discontinued at Nehru`s insistence for it was too critical of him. The dismissal of the democratically elected Namboodiripad government and defence of measures like preventive detentions do raise uncomfortable questions about Jawaharlal Nehru¿s governance. But nobody can be an unmixed blessing all the time.