First amendment: The truth is complicated

There’s a narrative which argues that the very first amendment to the Constitution of India, passed in 1951, dramatically restricted the free speech guaranteed by the Constitution.

Open your copy of the Constitution and this narrative seems to have some justification. You will see that after Article 19(1), which lists out fundamental freedoms, Clauses (2) to (6) of Article 19 have been added by the first amendment. This might give the impression that these clauses were only added in 1951, but that is not correct. The original Constitution carried all these clauses but in a slightly different form.

No legal right is ever limitless, and the original Constitution did contain several grounds on which the right to free speech could be limited.

However, the first amendment did increase the number of grounds on which free speech can be limited by law. Defamation, contempt of court, “decency or morality”, and security of the State are common grounds across the two versions though slightly different words are used. The new grounds inserted by the first amendment were “friendly relations with foreign governments”, “incitement of an offence” and “public order”.

These changes were needed thanks to two questionable judgements of the Supreme Court of India and some even more questionable judgements by the High Courts. The judgements of the SC in the Romesh Thapar and Brij Bhushan cases struck down laws which were used to prevent the circulation of the Communist publication Cross Roads and the RSS publication Organiser, respectively. Not for the last time did the Communists and the Hindu right-wing find themselves on the same side over this.

The SC judgements in these cases followed a very pedantic reading of the old Article 19(2). The majority judgements held that “public order” or “public safety” is not the same as “national security” and since neither Cross Roads nor Organiser actually called for the overthrow of the Union government, it was held that they could not have been censored on grounds of “public order”. This was a somewhat absurd reading of the Constitution -- the implication being that the State could do nothing to stop someone from inciting a communal riot unless the riot was intended to overthrow the State itself! This absurd logic was followed by the Patna High Court in Bharati Press case, where even an incitement to commit an offence was protected as free speech!

The first amendment was therefore an attempt to correct and clarify the wrong interpretations of the courts which, quite clearly, would have imperilled the new republic at a time when it was dealing with all sorts of challenges. The debate whether this should be done, and in what manner it was done, occupied Sixteen Stormy Days as Tripurdaman Singh put it in his book, but it was not a clear case of black-and-white.

However, new grounds for limiting free speech were not the only changes to Article 19(2). Another very important word was added to Article 19(2) -- “reasonable”. The word reasonable, as scholars have pointed out, actually expanded the power of the judiciary in the context of free speech. Adding “reasonable” means that the SC and HCs, when faced with a law limiting free speech, will also make sure that the law doesn’t go beyond what is necessary. This isn’t a theoretical exercise -- courts have used this power to strike down several problematic laws, most recently Section 66A of the Information Technology Act in Shreya Singhal.

While Section 66A did reproduce some of the grounds found in Article 19(2), the court found that it was overbroad in punishing online speech and therefore unconstitutional -- a finding that would have been hard to make if the word “reasonable” was not present in Article 19(2).

The first amendment to the Constitution was not and is not a disastrous failure of democracy. It managed to both restrict and expand the scope of free speech at the same time. That is not a paradox -- historical truth is almost always complicated.