Introduction

On 9^th December 2019 under the title “Citizenship Bill against Constitution: Congress” leading national daily “Economic Times” carried a news piece describing how Manish Tiwari of congress party expressed his anguish against the Citizenship bill in parliament and reportedly, main thrust of his argument was that the bill is against the Constitution of India as it discriminates against the refugees on the basis of religion. It is not for the first time that congress and allies have leveled allegations against Modi government for undermining constitution, few years back rally under the banner ‘Samvidhan Bachao’ was organized by so called secular leaders to orchestrate that the incumbent government is antithetical to Constitutional ethos and in order to counter the impression painted by self-proclaimed torch bearers of Constitution, Modi government initiated celebration of “Constitution Day” in the country on 26^th November, every year. In this backdrop we need to ask congress as to what was the history of first amendment of constitution in India and why Nehru who is portrayed as underpinning force of democracy, introduced certain features in the Constitution to undermine freedom of thoughts and expression.

Nehru and History of First Amendment

The history of first amendment goes back to 1951 when Nehru incorporated fetters in holy book of India to clamp down on the right to freedom of speech and expression guaranteed therein. Nehru was least tolerant to opposition parties and vehement in bringing out an amendment in Article 19 of Constitution in order to curb animadversion to his policies which he wish to implement without any hindrance.

To start with, let us take the text of Article 19(2) as it stood at the time the Constitution was adopted:

“(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law in so far as it relates to, or prevents the State from making any law relating to, libel, slander, defamation, contempt of court or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow, the State.”

After the First Amendment

“(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said 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.”

It is fact that certain reasonable restrictions were already there in the constitution however, Nehru added few more to implement his pre-determined governing policies. In other words, some qualifying restrictions were added by Nehru merely to nip the opposition in the bud. Let us take an example of Nehru-Liaquat Ali pact signed between Nehru and the then Prime Minister of Pakistan Liaquat Ali Khan in 1950 to protect the interests of minorities affected due to the partition of India and being persecuted at the hands of majority. Shyama Prasad Mookerjee, a Hindu Mahasabha representative and the then Industry minister resigned from the Nehru cabinet against this pact and he was vocal against this pact inside and outside the parliament. Nehru gone overboard against the Shyama Prasad’s criticism and interpreted his statements the way he wished to interpret. Shyama Prasad was batting for idea of ‘Akhand Bharat’ which was interpreted by Nehru as an invitation to war against Pakistan and this figment of imagination led to insertion of qualification ‘friendly relations with foreign States’ in the Article 19(2). Late Mr. Arun Jaitley ex-Finance Minister of India have summed up very well on this point and it is difficult to resist temptation to quote him. He states in his blog as follows;

 “The Bill to amend the Constitution which, amongst others, contained the restriction relating to “friendly relations with foreign states” was introduced in Parliament. There were some amendments which had been necessitated because of the judgement of the Supreme Court quashing the ban on certain publications. The Bill was referred to the Select Committee of Parliament. Those days Ministers’ could also be a Member of the Select Committee. The Prime Minister himself became a Member of the Select Committee. The Select Committee submitted a report within a week along with a note of dissent. The report of the Select Committee was debated in the Lok Sabha on 29th May, 1951.

Several senior members such as H.V. Kamath, Acharya Kripalani, Dr. Mookerjee and Naziruddin Ahmad, amongst others, questioned the need for this amendment. They argued that such a provision does not exist in any Constitution in the world. It was too widely worded and could even prevent a legitimate debate of foreign policy issues. It was argued that the Constitution had been in force for only sixteen months and it may not be prudent to bring a hurried Constitution amendment. But Pt. Nehru was determined to go ahead. His principal response was if you criticize a Head of a State or a foreign State, that country may launch a war against us. This would adversely impact India’s sovereignty. He argued that “we cannot imperil the sovereignty of the whole nation in the name of some fancied freedom which puts an end to all freedoms”. Dr. Mookerjee argued that such widely worded amendment could prevent a legitimate debate on issues pending with Pakistan, not merely on the treatment of minorities or what was happening in Jammu and Kashmir, it would also prevent us from commenting on issues relating to evacuee property etc. The Bill was eventually passed and it became a part of the Indian Constitution.”

We can safely conclude that the specific qualification in amendment was incorporated only to muzzle Shyama Prasad and his freedom of expression.

Curbing a Press freedom

A left leaning magazine Crossroads which was sharply critical of Nehru government was banned in the then Madras under section 9(1-A) of ‘Madras Maintenance of Public Order Act 1949’. The printer and publisher of the magazine Mr. Romesh Thapar challenged the order of Madras government in the Supreme Court of India under Art. 19 of Constitution of India. Court held that merely banning any publication for the public safety or Public Order will not come under the ambit of restrictions laid down under Constitution of India unless there is threat to security of the state.

In another case namely Brij Bhushan & Another.v. State of Delhi similarly issued a ban on right leaning weakly Organiser under the pretext of danger to public order and public safety came up for the consideration of Supreme Court. While passing judgment, majority of judges held that “inasmuch as s. 7 (1) (c) authorized the imposition  of restrictions  on the fundamental right of freedom of  speech and expression guaranteed by art. 19 (1.) (a) of the Constitution for the purpose of preventing activities prejudicial to public safety and maintenance of public order, it was not a law relating to "a matter which undermines the security of or tends to overthrow, the State" within the meaning of the saving provisions contained in cl. (9.) of art. 19 and was therefore unconstitutional and void”

Supreme Court in both the cases unequivocally held that freedom of speech and expression should not be circumscribed unless there is danger to security of state however, Nehru wanted to curb the speech and expression of dissenting voices in the country hence the “Public Order” became another qualification by way of first amendment to clamp down on the freedom of speech and expression of dissidents.

Time magazine on 28^th of May 1951 quoted him and the report is as follows;

“Part of the Indian press, said (Nehru), is dirty, indulges in ‘vulgarity, indecency and falsehood.’ To teach it manners, Nehru proposed an amendment to India’s constitution that would impose severe restrictions on freedom of speech and expression. He asked for power to curb the press and to punish persons and newspapers for ‘contempt of court, defamation and incitement to an offense’ Nehru told Parliament: ‘It has become a matter of the deepest distress to me to see the way in which the less responsible news sheets are being conducted . . . not injuring me or this House much, but poisoning the minds of the younger generation.” 

Nehru said his measure was aimed at Communist and Hindu extremist agitation. His real targets: Atom, Current, Struggle and Blitz, four Bombay-published sensational weeklies which have consistently attacked Nehru’s domestic and foreign policy, scurrilously attacked the US. 

Prime Minister Nehru got his law to curb India's press. Voting 228 to 20, Parliament amended the 1949 constitution, which guaranteed freedom of speech and expression to all citizens. Under the amendment, the government may introduce laws fining newspapers for ‘defamation or incitement to an offense.’ The courts will set the penalties.

A small but determined parliamentary opposition, led by Dr Syama Prasad Mookerjee, former Minister for Industry, bitterly attacked the amendment.

Mookerjee (to Nehru): You've got 240 supporters in this House, but outside in the country millions are against you.

Nehru (shaking his fists) : [Your] statements are scandalous...

Conclusion

In India it is oft-repeated sentence among the circle of  so called ‘liberals’ that Nehru was torch bearer of democracy and freedom of speech and expression and in equal spirit they do not fail to condemn Narendra Modi by saying that he is democratic dictator and wish to suppress dissenting voices in the country to perpetuate his so called ‘Hindutva’ agenda. However, they conveniently failed to bring out true history of Nehruvian era wherein he not only tried to muzzle opposition voices but also carried out suitable changes in Constitution of India by virtue of majority he enjoyed in parliament and state assemblies. It is also to be noted that Nehru pulled all stops to create an environment which will set the discourse suitable to his ideological leaning and thereby cornering opposition voices by way of branding them as anti-national or threat to national security. The new generation of India is duty bound to pin down itself on the task of finding out true history of the India and to bring into limelight the facts which have been hidden as of now by so called rationalist. I would like to conclude by famous sentence of Voltaire

“I disapprove of what you say, but I will defend to the death your right to say it" 

References

https://economictimes.indiatimes.com/news/politics-and-nation/citizenship-bill-against-constitution-congress/articleshow/72443435.cms?from=mdr

https://www.facebook.com/ArunJaitley/posts/819110911610792

https://www.opindia.com/2017/11/cartoonist-jailed-for-insulting-cm-it-is-all-nehrus-gift-to-free-speech/

https://indconlawphil.wordpress.com/2016/06/27/on-reasonable-restrictions-and-the-first-amendment/

https://www.firstpost.com/india/sec-66a-curbs-on-free-speech-are-part-of-nehru-family-legacy-544470.html

https://www.dailypioneer.com/2019/columnists/a-politician-of-principles.html