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How Nehru added ‘conditions apply’ to Article 19(1)(a) & India lost way to gates of freedom

The 16-day freedom of speech debate in Parliament pitted Jawaharlal Nehru against Syama Prasad Mookerjee. Their echoes continue to bedevil and bruise India today.

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The mood of Parliament was sombre. It was 29 May 1951, the 14th day of the 16-day heated debate to bring the first amendment to the Constitution of India. The thumping of the tables and shrill voices of the Members of Parliament disrupting speeches were matched by the rising tempers. Freedom of speech was at stake.

For two weeks, interim Prime Minister Jawaharlal Nehru had been passionately pressing for ‘changes’ in the Article guaranteeing freedom of speech, which, according to him, were urgently needed. But the changes, which he called small and simple, were about to redact the freedoms which the country—and its press—was only starting to enjoy barely 46 months into India’s Independence.

“Every freedom in the world is limited,” said an impassioned Nehru in Parliament, debating why the press needed to be leashed. The press, he argued, must have some balance of mind, which it seldom possesses, if it wants to enjoy the freedom. “They cannot have it both ways – no balance and freedom,” he added.

For the first time in history, perhaps, Gandhians such as Acharya Kriplani, socialists such as Jayprakash Narayan and Right-leaning leaders such as Syama Prasad Mookerjee united to defend the rights of Indian citizens. Fists were clenched, tables thumped, names called. The battle over the freedoms spilled out of Parliament. It was fought in newspaper editorials, in courtrooms, in public squares and on the streets. But on 18 June 1951, with 228 ayes, 20 nos and about 50 abstentions, the amendments were passed. Nehru won but it was the day India lost its way to the gates of freedom.

The restrictions to Article 19(1)(a) have altered the social and political contours of the nation. And the echoes of the debate continue to bedevil, batter and bruise India. From Salman Rushdie’s Satanic Verses to M.F. Husain’s paintings; from Leena Manimekalai’s interpretation of Kaali to Mohammed Zubair’s tweets; from Kanhaiya Kumar’s speeches to Prashant Bhushan’s criticism of the Chief Justice of India, freedom of speech and expression has always been up for contestation.

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How the bar was lowered

Before the amendment, many laws which were used as legal tools by the government to clamp down on the press, like public safety laws, had no constitutional sanctity, says Tripurdaman Singh in his book, Sixteen Stormy Days, which documents closely how the first amendment was brought in.

“The Constitution raised the bar quite high,” he writes. For instance, no one could be jailed unless it was proven in court that their actions are going to overthrow the state. But the amendments brought these laws back. Now, instead of overthrowing the state, if the government was of the view that that person’s actions are against the interest of the security of the state, he or she could be penalised.

“Nehru felt that he was passing on these laws to the next generation and said to Parliament that you should trust me,” Singh told ThePrint.

But the fight to reintroduce these repressive laws was not easy. In the days that led up to the amendment, the fault lines within the nationalist leaders were visible.

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The fault lines

Sedition, the most contentious section under the Indian Penal Code to curtail freedom of speech, would be reintroduced, taking the country back to colonial times, said Naziruddin Ahmad, member of the Constituent Assembly representing West Bengal in his long address to Parliament.

Though Nehru had the support of Congress leaders Renuka Ray, Krishna Chandra Sharma and M.P. Mishra, independent members like H.N. Kunzru and Ramnarain Singh and opposition member Hussain Imam tore his arguments apart. Leaders such as K.T. Shah also gave a tough fight.

The fiercest opposition to Nehru, however, came from Mookerjee. “You are treating this Constitution as a scrap of paper,” he said.

The arguments between Nehru and Mookerjee turned so aggressive that at one point, Nehru challenged him to combat, writes Singh in his book.

“I say this opposition is not a true opposition, not a faithful opposition, not a loyal opposition. I say it deliberately,” said Nehru, infuriated, calling Mookerjee a liar.

“Yours is not a true bill,” responded Mookerjee, “Your intolerance is scandalous.” He called Nehru a dictator, an arch-communist responsible for the country’s Partition.

Outside Parliament, the move by the PM was criticised from all quarters. Bar Associations called the changes to the Constitution undemocratic and against the fundamental rights of the citizens. Former judges S.P. Sinha and N.C. Chatterjee also spoke against it at public platforms. Gandhian and former Congress president Acharya Kriplani, who resigned from the party, and socialist leader Jayaprakash Narayan, held Nehru personally responsible.

Even globally, Nehru wasn’t spared. “For the first time, a disparate band of political opinion such as socialists, old school liberals, Gandhians all came together to oppose the amendment. The Constitution had been enforced only for 16 months and it was a provisional Parliament that had moved the Bill for amendment. The general election had not happened. It was also a global story. Nehru was criticised in the West as well for bringing the amendments,” says Singh.

To add drama to the debates, which would go down in history, rain poured inside Parliament, drenching many MPs and the power went out, reported The Times of India the next day. The chamber was covered in darkness. “Freedom of speech is being taken away, and there is a storm over it,” commented H. V. Kamath, member of the constituent assembly.

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The unmissable irony

The tragedy is that India never had absolute freedom. After a crushing 200-year British rule, a written Constitution laying down freedoms to the Indian citizens was a breakthrough. And at the heart of these freedoms were the fundamental rights – including freedom of speech and expression under Article 19(1)(a). It was welcomed with gusto by the Parliamentarians, most of whom were themselves once victims of repressive laws regulating free speech under British rule.

When the Constitution was adopted on 26 January 1950, it was hailed as a new dawn for India. That day, said B.R. Ambedkar, chairman of the Constitution drafting committee and minister of law and justice, India would be truly independent, amid cheering members.

The irony is that the freedom of speech and expression granted in the Constitution was never absolute. Article 19(1)(a) which extends this freedom, came with restrictions in clause (2).

Speech had to be within the bounds of libel, slander, defamation, contempt of court or any matter which offends against decency or morality or which undermines the security of the state, or tends to overthrow it.

But these restrictions, the ruling government said, were not enough to keep the powers restored with them, says RSS ideologue Arun Anand. Nehru and his army of Congressmen, including the architect of the Constitution, Ambedkar, pushed for the amendments.

However, the likes of Mookerjee fought it to the bitter end. “…However much the prime minister might attempt to say that the changes are simple, that there is no controversy about it, he knows it and knows it in his heart of hearts, champion of liberty that he has been throughout his life, that what he is going to do is nothing short of cutting at the very root of the fundamental principles of the Constitution which he helped, more than anybody else, to pass only about a year and half ago,” he said on the floor of the House.

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A battle on multiple fronts

India was set to hold its first general elections in 1952. Communal tensions were erupting in parts of the country, and the whole world was watching. But instead of leading the way for Nehru’s vision of a socially and politically transformed India, the Constitution soon became a hindrance for the Congress, notes Singh in Sixteen Stormy Days.

“The very makers of the Constitution now rallied against ‘too much liberty’. Nehru’s solution was straightforward – to bend the Constitution to the government’s will, overcome the courts and pre-empt any further judicial challenges. In his view, wider social policy had to be determined by the government, and neither the courts nor the Constitution could be allowed to stand in the way,” writes Singh in his book.

Ahead of the elections, Nehru was waging battles on multiple fronts, pushing for amendments to fundamental rights such as right to property, fair compensation, and employment in the Constitution.

Citizens of a free India were not willing to oblige. Invoking their new rights, the zamindars, the meritorious students from upper castes, political prisoners and the press took their state governments to the courts.

The seriousness with which the courts upheld the fundamental rights of the citizens was visible in landmark judgments that followed between January and October 1950. For instance, the government’s relentless efforts of over two decades to abolish the zamindari system and bring land reforms were quashed by the Patna High Court. The zamindars, said the court, had fundamental right to property and fair compensation. Reservations for backward classes in educational institutions were unconstitutional, the courts held.

People and publications critical of the government or the Congress and those calling for war and revolution could no longer be banned under the garb of ensuring public order. Free speech was just one of the many battles.

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Setting precedence: Courts and the press

In 1950, the year it came into existence, the Supreme Court of India passed two landmark judgments that paved the way for freedom of the press under Article 19(1)(a). It ruled in favour of communist magazine, Cross Roads and RSS mouthpiece, Organiser.

Cross Roads, edited and published by Romesh Thapar from Bombay, had run a series of articles condemning the Congress and the Madras government over the ‘cold-blooded’ shooting of 200 jailed communist prisoners in Salem Central Jail.

The prisoners wanted to be treated as political detainees rather than criminals. But when they protested and allegedly attacked the police, the policemen locked them up in a room and opened fire. Twenty-two men died and over a 100 were injured.

The state government banned the magazine under the Madras Maintenance of Public Order Act. It had also been banned in Bombay (though the court order was later stayed). Thapar’s sister, Romila Thapar, who would go on to become one of India’s a distinguished historians, too had criticised the police clampdown of trade unionists in an article.

Meanwhile, communal riots had gripped West Bengal and the Organiser mocked Nehru and Pakistani Prime Minister Liaquat Ali Khan for the blood bath. The magazine ran cartoons ridiculing Nehru and Liaquat. It demanded, through a series of articles, that the property of Muslim evacuees be given to the Hindu refugees. Leaders such as Syama Prasad Mookerjee, still in Congress, and Mahant Digvijainath (of the Gorakhpur math), general secretary of Hindu Mahasabha, supported the Organiser and demanded a reunification of India and Pakistan and the formation of ‘Akhand Bharat’ (unified India).

This media coverage rattled Pakistan at a time when Nehru and Liaquat were negotiating a peace pact. The government decided to take action.

In a huge setback for Nehru, on 26 May 1950, the Supreme Court quashed the order to ban Cross Roads in Madras on the ground that the security of the state was neither undermined, nor was the state overthrown. It called the Madras Maintenance of Public Order Act and East Punjab Public Safety Act “ultra vires” and hence void. In the Organiser’s case, the court dismissed the pre-censorship order, and declared certain sections of the Act void.

Similar incidents were unfolding in other parts of India. In Bihar, Shaila Bala Devi, owner of Bharathi Press published a pamphlet calling for a revolution. The pamphlet, said the Patna High Court, does not undermine the security of the state.

While these cases were refining the understanding and interpretations of the right to freedom of speech and expression and the liberties enjoyed by the press, the government was growing restive.

The development leading up to the amendments were troubling Nehru, notes Singh in his book. Public safety acts, which were used by the governments to detain dissenters and crush rebellion, were called void by the courts.

In Punjab, the high court had freed Master Tara Singh, an Akali Dal leader and a staunch critic of Nehru, who was imprisoned in the Karnal jail for sedition and spreading enmity between communities — sections 124A and 153A of the Indian Penal Code, respectively. Once free, he pledged to unite the opposition against Nehru and the amendments he was proposing.

“A law of sedition thought necessary during a period of foreign rule has become inappropriate by the very nature of the change which has come about,” the judge noted.

But Nehru grew all the more adamant on the need for restrictions on free speech. The free run which the courts gave to the press, he felt, was going against him, notes Singh.

“Nehru was an authoritarian politician. He wanted to win elections. Though his intent at that time was not wrong, his approach was misplaced. He could not incorporate criticism. All other powerful leaders were side-lined by him and he wanted to get his agenda through,” says Arun Anand.

Support from Nehru’s own party was waning. Members such as H.V. Kamath, Syamnanadan Sahay and Deshbandhu Gupta started opposing him. At a Congress Parliamentary Party meet on 25 May 1951, Gupta argued against the proposed amendments to Article 19.

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Nehru’s defence

It was in the backdrop of these events that Nehru introduced the amendment in Parliament.

“A Constitution which is unchanging and static, it does not matter how good it is, how perfect it is, is a Constitution that has past its use. It is in its old age already and gradually approaching its death. A Constitution to be living must be growing; must be adaptable; must be flexible; must be changeable,” he said in Parliament.

The members of Parliament were not convinced.  “The PM says that the Constitution must grow…But to grow in what direction? In the way of enlarging fundamental rights or curtailing them?” questioned Naziruddin Ahmad.

Recent events hold the answer. What transpired on the floor of Parliament in 16 days in 1951 has grown deep roots in society today.

According to The Week’s report, the latest crime data shows that the number of cases registered under section 153A, spreading enmity between communities, rose six times between 2014 and 2020. From 323 cases, the number shot up to 1,804. States such as Tamil Nadu, Uttar Pradesh, Andhra Pradesh, Assam, Telangana and Kerala have seen the biggest rise in the cases between 2018 and 2020.

In May, when Ratan Lal, a Delhi University professor, called a shivling a cylindrical object made of stone in his tweet over the Gyanvapi mosque issue in Varanasi, he was booked for spreading enmity between communities on a complaint by Hindu groups. And when BJP spokesperson Nupur Sharma’s comments on Prophet Muhammad went viral, calls were made from various sections of society to invoke section 153A against her as well.

The use of sedition law is also rampant. Disha Ravi, a climate change activist, who was accused of her alleged involvement in the farmers’ protests in India last year, was booked for sedition and sent to five-day police custody. She is out on bail.

Student activists Umar Khalid and Sharjeel Imam and have been in and out of jail since 2016 and 2020, respectively, on various charges, including sedition and promoting enmity between communities, related to their speeches.

Films continue to be censored, books are banned and courts still do not welcome criticism.

The Indian Constitution does not provide for a separate fundamental right of freedom of the press, the fourth pillar of a democracy. The courts in the country have judged the press freedom within the purview of Article 19(1)(a). This lacuna, Ambedkar had highlighted in November 1949.

“I want that there should be a mention of the Freedom of Press in our Constitution also in specific terms. I am sure that time will come when Members of our Parliament will also consider this issue and will not hesitate in inserting an amendment regarding this and our Press will also acquire the status which it deserves in our Constitution,” Ambedkar had said.

(Edited by Anurag Chaubey)

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