India introduced the Constitution fully in 1950. It is interesting to note that the Constituent Assembly which had framed the Constitution, amended it for the first time in 1951. This amendment was triggered by various factors, including two landmark judgments of the Supreme Court which changed the contours of the freedom of speech and expression as it stands today.
These judgments, passed in May 1950, celebrate 70 years this month. While freedom to speech and expression stands hotly debated across the country, it is necessary to revisit how it was dealt by the Supreme Court for the first time.
The State of Tamil Nadu as we know today did not exist at the time of independence. When India became independent in 1947, Madras Presidency became the Madras State, comprising parts of present-day Andhra Pradesh, Karnataka and Kerala. The first government there, particularly relevant for this article, was that of the Indian National Congress led by Prime Minister Jawaharlal Nehru, through Chief Minister PS Kumaraswamy Raja.
Similarly, Delhi was not a Union Territory at the time of independence, but was rather the Chief Commissioner’s Province of Delhi, under the same political control.
The Supreme Court of India which came into existence on January 26, 1950, had six judges at that time - Chief Justice HJ Kania and Justices Saiyed Fazl Ali, M Patanjali Sastri, MC Mahajan, BK Mukherjea and SR Das. All of them had transitioned to become judges of the Supreme Court from being judges of the its predecessor Federal Court. As the work was comparatively less, all six judges used to sit together, hear and decide the matters.
While Article 19(1)(a) of the Constitution, which grants the fundamental right to speech and expression, still stands the same, the much-debated Article 19(2) [which is in form of a restrictive clause to Article 19(1)(a)] was not in its present form initially. It was instead worded as follows:
“Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law in so far as it relates to, or prevent 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.”
No one at that time knew that two magazines (one right wing and the other left wing), from different and distant parts of the country, would change the course of the restrictions on the freedom of speech and expression.
A weekly journal in English called Cross Roads was printed and published in Bombay by one Romesh Thapar. Thapar, brother of historian Romila Thapar, was a known Marxist ideologue and the magazine published articles which were critical of Nehru’s policies, especially his foreign policy.
At the time, a communist movement was gaining steam in the western part of Madras state, which is now the state of Kerala. Fearing that Cross Roads may ignite the communist ideology, the Congress-led government, in exercise of its powers under Section 9(1A) of the Madras Maintenance of Public Order Act, 1949, issued an order imposing a ban on the circulation of Cross Roads in March 1950.
Another magazine run by the name of the Organizer by the Rashtriya Swamsevak Sangh (RSS), with Brij Bhushan as its printer/publisher and KR Halkani as its editor, was issued a notice in March 1950 under Section 7(1)(c) of the East Punjab Public Safety Act, 1949 (as extended to the Province of Delhi).
It is important to keep in mind the surcharged communal atmosphere in the country around that time due to Partition. There was a large scale exodus of Hindus and Muslims and riots. In the wake of these riots, the Nehru-Liyaqat Pact was signed. In April 1950, two days before the Pact was signed, Shyama Prasad Mookerjee had resigned from Nehru’s cabinet.
Amidst cries for an ‘Akhand Bharat’, Organizer had carried two articles consecutively titled “Six Questions” and “Villains versus Fools,” criticising the government for wanting to administer claims to property evacuated by Muslims on an individual basis rather than disburse it to the Hindu refugees. It was alleged in the notice that Organizer was publishing material which was communal in nature, and it directed the magazine to submit all material to the government for prior censorship.
Needless to say, this was all being done within two months from the advent of the Constitution.
Both magazines, through their editors, invoked the Constitution and approached the Supreme Court under Article 32. Both challenged the constitutional validity of the respective provisions of law mentioned above.
In Romesh Thapar, the State took an objection of the petitioner coming to the Supreme Court directly without exhausting the alternate remedy under Article 226. It was also urged by the State that that Section 9(1A) could not be considered wholly void, as, under Article 13(1), an existing law inconsistent with a fundamental right is void only to the extent of the inconsistency and no more.
Insofar as securing public safety or maintenance of public order would include the security of the State, the impugned provision, as applied to the latter purpose, was covered by Article 19(2) and must be declared valid. Both contentions were rejected.
In Brij Bhushan, the Court found that to impose pre-censorship on a journal as had been ordered by the Chief Commissioner in the case, is a restriction on the liberty of the press included within the right to freedom of speech and expression guaranteed by Article 19(1)(a).
The Supreme Court decided both cases with a majority of 5:1 against the Nehru government. The majority judgment in both cases was authored by Justice M Patanjali Sastri and Justice S Fazl Ali dissented in both cases.
The majority judgment held that unless a law restricting freedom of speech and expression is directed solely against the undermining of the security of the State, such law cannot fall within the reservation under Article 19(2), although the restrictions which it seeks to impose may have been conceived generally in the interests of public order.
It follows that a provision 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) of Article 19, and is therefore void and unconstitutional. It was concluded that ‘public order’ was not an enumerated exception to the right to free speech, and that a law which restricted speech on the ground that it would disturb the public order was unconstitutional.
These decisions were followed by the Punjab, Patna and Madras High Courts in a series of decisions. Justice Sarjoo Prasad at the Patna High Court held that even a person who preached murder and incited violence had the freedom to do so under Article 19(1)(a) of the Constitution. It will not be wrong to say that these judgments were equally responsible for the First Amendment to the Constitution.
The Constitution was amended in June 1951 - within seventeen months of its coming into force and within thirteen months of the two judgments - by the Constituent Assembly itself. It amended Article 19(2) to include three new enumerated ‘reasonable restrictions’ to the right to free speech. These were “public order”, “friendly relations with foreign states”, and “incitement to an offence”.
Chief Justice Kania died of a sudden heart attack in late 1951. As there was no seniority convention then, Nehru opposed the appointment of Justice M Patanjali Sastri to become the Chief Justice of India (CJI). After the entire Supreme Court threatened to resign, Nehru had to succumb and Justice Sastri became the CJI and served till 1954.
Justice Ali, who wrote the dissenting judgment in both cases, superannuated in September 1951 but was again appointed as a judge of the Court under Article 128 of the Constitution within a month. He remained a judge till May 1952.
While he was working as a judge of the Supreme Court, the Nehru government announced his appointment as the Governor for the State of Orissa. He served as Orissa’s Governor until early 1954 when he resigned to accept Nehru’s request to take on an extremely important and sensitive post – Chairman of the States Reorganization Commission. In 1956, the Nehru government awarded him the Padma Vibhushan, country’s second highest civilian honour. The showering of accolades on Justice Ali did not stop here, and he was made Governor of Assam in May 1956 which was the most demanding Governorship at that time. He died in 1959 of cancer.
The fight hasn’t changed much in the last 70 years. Instead, it escalated for a considerable while. The country faced a brutal Emergency, attempts to create a ‘committed judiciary’ were made, judges who passed unfavourable verdicts were superseded, and a number of attacks on freedom to speak freely were deliberated. The fight between the freedom of speech/expression and state-sponsored reasonable restrictions upon it, remains perhaps the most hotly contested battle between citizens and the authorities.
There is another angle to the issue as well. The Supreme Court was approached in March 1950 and it delivered the judgments in May 1950. The two cases involved serious questions of seminal importance on freedom of speech and expression. The judgments have been written in a short and concise manner without unnecessary jargon.
As pen pushers, while we sincerely hope the present day Supreme Court will also dispense justice by writing short, quick and effective judgments like these, we also hope we don’t have to face repressive regimes controlling our pen. Till then, fingers crossed!
The author is an Advocate-on-Record at the Supreme Court of India.