Freedom of expression was once wide-ranging in India. Then Jawaharlal Nehru asked for changes

In June 1951, within seventeen months of the Constitution coming into force, the Constituent Assembly (now functioning as a unicameral, provisional Parliament for India) amended Article 19(2) to include three new enumerated restrictions to the right to free speech. These were “public order”, “friendly relations with foreign states”, and “incitement to an offence”.

Broadly speaking, there were three reasons why the Constitution (First Amendment) Act, 1951 (hereinafter, the “First Amendment”) came to be passed. Firstly, judgments of the Supreme Court and the Punjab, Patna and Madras High Courts had made it difficult for the government to restrict hate speech or speech which promoted enmity between different groups, and which the government believed was responsible for large-scale communal violence among Hindus and Muslims.

Secondly, these courts had made it difficult for the government to curb speeches which called for war between India and Pakistan and for the annulment of Partition (especially because of the manner in which Hindus were being treated in East Pakistan) — speeches which were being made by Syama Prasad Mookerjee against the backdrop of the Nehru-Liaquat Pact.

Thirdly, members of Parliament were deeply disturbed by a chilling observation made by Justice Sarjoo Prasad of the Patna High Court in his judgment in a case, where he said that the right to free speech in India included the right to preach and incite murder and violent crimes unhindered.

Judgments Which Precipitated the Amendment

The Constitution came into force, for historical reasons, on 26 January 1950. Within a few months thereafter, state governments started imposing restrictions on some newspapers and printing presses which, it was believed, were disturbing the public order, promoting enmity or hatred between different groups, inciting murders or other violent crimes, or which were otherwise seditious in nature. In imposing these restrictions, state governments relied on many laws which had been enacted during the colonial period, most notably the Indian Press (Emergency Powers) Act, 1931, which had been enacted to combat Gandhi’s civil disobedience movement in the 1930s.

State governments resorted to banning the circulation of newspapers in their states, forfeiting books which were published in their states, requiring newspapers to submit their materials for prior scrutiny, or forfeiting the security deposited by printing presses with the government for publishing objectionable material. Aggrieved by this, newspapers and printing presses filed proceedings in the Supreme Court of India and in the Punjab, Patna and Madras High Courts. What followed was that in a series of decisions issued by these courts, statutes which imposed the aforesaid restrictions on free speech were struck down as being unconstitutional for falling outside the ambit of Article 19(2) of the Constitution.

On 26 May 1950, the six judges of the Supreme Court decided two cases which would have far-reaching implications for the right to free speech in India, Romesh Thapar v State of Madras and Brij Bhushan v State of Delhi. In these cases, the court held that “public order” (a term which Ambedkar had tried to bring into the Constitution, from Motilal Nehru’s report and the Irish Constitution) 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 which arguably went even further.

Romesh Thapar, then a noted communist, was the printer, publisher and editor of a new English weekly called Cross Roads printed in Bombay. Cross Roads published articles which were critical of Prime Minister Nehru’s policies, especially his foreign policy. At the time, a communist movement was beginning to gain steam in the western parts of Madras state, now Kerala.

Fearing that Cross Roads would provide a further impetus to the communist movement there, the Government of Madras, on 1 March 1950 (ie, within a little over a month of the coming into force of the Constitution), issued an order imposing a ban on the entry and circulation of Cross Roads in Madras. The order was issued under Section 9(1-A) of the Madras Maintenance of Public Order Act, 1949, which authorised the government, for securing “public safety” or the maintenance of “public order”, to ban the circulation, sale or distribution of newspapers in the province of Madras. Thapar filed a petition directly before the Supreme Court of India, ie, without approaching a high court first. He argued that Section 9(1-A) of the Act was contrary to the Constitution.

By a majority of 5-1 (with Justice Fazl Ali dissenting), the court struck down the provision.

Justice Patanjali Sastri, who wrote the judgment for the court, relied on the early drafts of the right to free speech in the Constituent Assembly, and noted that words like “sedition” and “public order” had been left out of Article 19(2). On the other hand, the words “public order” and “public safety” in the Madras Act had a very wide connotation, and not every speech which affected public order was capable of undermining the security of the State or of tending to overthrow the State.

After all, a speech which created a local disturbance could be one which affected “public order” or “public safety”. However, Article 19(2) only allowed the government to impose limits on free speech if the speech in question was likely to have a tendency to “overthrow” the State. A local disturbance, like a communal riot, would not have such a tendency. Consequently, Section 9(1-A) of the Act was declared unconstitutional.

The RSS, a Hindu right-wing group, ran (and continues to do so) an English weekly in Delhi called the Organiser. Brij Bhushan was its printer and publisher while KR Halkani was its editor. On 2 March 1950, the chief commissioner of Delhi imposed a prior restraint on the Organiser under Section 7(1)(c) of the East Punjab Public Safety Act, 1949 which extended to Delhi as well. Under this provision, a provincial government was authorised, for protecting “public safety” and “public order”, to require a newspaper to submit the newspaper for scrutiny before publication.

This was akin to the prior restraints which had been imposed on the press in 1799 by Governor-General Wellesley during the Fourth Mysore War, and under the Defence of India Rules, 1939 at the time of the Second World War. The government’s order imposing the restraint stated that the Organiser was “publishing highly objectionable matter constituting a threat to public law and order”. Its printer, publisher and editor were required to “submit for scrutiny...all communal matter and news and views about Pakistan including photographs and cartoons...”

Once again, by a majority of 5-1, the court struck down the chief commissioner’s order. However, the court essentially held that a prior restraint is permissible under the Constitution, so long as the restraint is imposed in furtherance of any of the enumerated exceptions to free speech under Article 19(2) of the Constitution.

The sole Muslim judge on the court at the time, Justice Fazl Ali, dissented once again. He agreed that the term “public order” was wide enough to cover even “a small riot or an affray”, but held that in some cases “even public disorders of comparatively small dimensions may have far-reaching effects on the security of the State.” He noted that Delhi had been declared a “dangerously disturbed area” at this time, an obvious reference to Hindu-Muslim riots, justifying a law of this nature.

In short, the Romesh Thapar and Brij Bhushan cases had far- reaching implications for the manner in which the government could restrict speech which was designed to incite Hindu-Muslim riots and killings.

The court’s judgments could be read to mean that not every local Hindu-Muslim riot or mass murder was capable of threatening the security or existence of the Indian State. Consequently, the government would be powerless to restrain hate speech which was designed to incite such local disturbances, which were nonetheless deeply troublesome.

The Supreme Court’s decisions were then followed and applied in several high courts throughout the country. For instance, in Punjab, a man called Amar Nath Bali wrote a book called Now It Can Be Told. The book was a narrative of events following the partition of India, describing the riots which took place in West Punjab, and how Muslims there attacked Hindus and Sikhs.16 In fact, many partition families were said to typically be Jana Sangh voters who were distrustful of the Nehru government.

In April 1950, the chief commissioner of Delhi issued an order forfeiting all the copies of the book, under Section 4(1)(h) of the colonial-era Indian Press (Emergency Powers) Act, 1931, perhaps fearing that Hindus and Sikhs would, after reading the book, engage in retaliatory violence against Muslims. The section allowed the state government to forfeit books which appeared to “promote feelings of enmity or hatred between different classes of the citizens of India”. Bali took his case to the Punjab High Court, which held that Section 4(1)(h) was unconstitutional.

A lady called Shaila Bala Devi was the keeper of a printing press called the “Bharati Press” at Purulia in Bihar.

The press had published a Bengali leaflet entitled Sangram. Written in “high-flown Bengali” with a good deal of “demagogic claptrap”, leaflet, in an abstract manner, called for a revolution in India. For instance, it said: “I am the blood-thirsty goddess Kali who lives and moves about in the cremation ground...I am thirsty. I want blood. I want revolution, I want faith in the struggle. Tear, tear the chain of wrongs.”

In September 1949 (ie, before the Constitution came into force), the Government of Bihar issued an order under the Indian Press (Emergency Powers) Act, 1931, which required Devi to deposit with the government a security in the amount of Rs 2000. Section 4(1)(a) of the Act enabled the government to forfeit the deposit where it appeared to the government that the press was being used to incite or encourage “the commission of any offence of murder or any cognisable offence involving violence”. Devi took her case to the Patna High Court. The court held that Section 4(1)(a) of the Act was unconstitutional.

However, in one of the concluding paragraphs of his judgment, one of the judges, Justice Sarjoo Prasad, 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. Prasad said that “if a person were to go on inciting murder or other cognisable offences either through the press or by word of mouth, he would be free to do so with impunity” as “he would claim the privilege of exercising his fundamental right of freedom of speech and expression”.

This chilling passage of Justice Sarjoo Prasad’s judgment was almost single-handedly responsible for the First Amendment to the Constitution.

The Nehru-Liaquat Pact

Meanwhile, between 1949-50, there were large-scale communal riots in East Pakistan, which led to a huge exodus of Hindus into West Bengal. In the wake of these riots, the prime ministers of India and Pakistan, Nehru and Liaquat Ali Khan, signed an agreement known as the ‘Nehru-Liaquat Pact’ or ‘Delhi Pact’.24 This was a confidence-building measure, aimed at securing peace between India and Pakistan, and at ensuring that both countries would protect their respective minorities. Clause (C)(8) of the Pact required the governments of both countries to prohibit propaganda which incited war between the two countries. However, it was felt that this clause in the Pact could not be enforced under Indian law.

In March 1950,26 about two weeks before the Pact was signed, Nehru wrote to Home Minister Sardar Vallabhbhai Patel alarmed by the fact that Syama Prasad Mookerjee’s Hindu Mahasabha was speaking about “Akhand Bharat” (or unified India), which was “a direct incentive to conflict”. Nehru was worried that war with Pakistan was “openly (being) talked about”, which Nehru was strongly against. Patel responded by telling Nehru that the Constitution was getting in the way of what the government could do about this.

In a letter to Nehru, he wrote: We are now faced with a Constitution which guarantees fundamental rights – right of association, right of free movement, free expression and personal liberty – which further circumscribe the action that we can take. That means that for every executive action there must be legal sanction and judicial justification.

In June 1950, Nehru wrote to Patel and said that the “chief culprit” against the smooth working of the Nehru-Liaquat Pact was “Hindu Mahasabha propaganda”, “the Calcutta Press as well as Syama Prasad Mookerjee”.

Patel was disturbed by the decisions of the Supreme Court in the Romesh Thapar and Brij Bhushan cases. Patel thought that these decisions now made it impossible for the government to take any action against Mookerjee and other more extreme persons. Patel was of the opinion that the Constituent Assembly had drafted very idealistic provisions in the Constitution which were not rooted in practical considerations. In a letter to Nehru dated 3 July 1950, Patel wrote as follows:

“I find no legal powers to deal with either Press or men like Syama Prasad Mookerjee. Before you left for Indonesia, I drew your attention to the Supreme Court decision in [the] Cross Roads and Organiser cases. That knocks the bottom out of most of our penal laws for the control and regulation of the Press. The views which they have expressed in that judgment on the question of sedition make it doubtful whether we can do anything not only about the speeches of Syama Prasad Mookerjee but also those of the more extremist type. As you say, we have involved ourselves in so many legal and constitutional difficulties that we do not know how to overcome them. I sounded a note of warning and caution when these provisions were being debated in the Drafting Committee, but then we were led away by our idealistic exuberance. We seldom paused to consider the practical and administrative applications of the many constitutional provisions and even their interrelation. My own feeling is that very soon we shall have to sit down and consider constitutional amendments.”

The decision of the Patna High Court in Shaila Bala Devi was delivered on 13 October 1950. Six days later, Nehru wrote to Law Minister BR Ambedkar, opining that the right to free speech required amendment.

Excerpted with permission from Republic of Rhetoric: Free Speech and the Constitution of India, Abhinav Chandrachud, Penguin Viking.