HT This Day: May 26, 1951 – CLAUSE ON FREEDOM OF SPEECH AMENDED – Hindustan Times

NEW DELHI -SENSING the growing opposition to the most contentious provision in the Constitution (First Amendment) Bill, the Select Committee on the Bill has inserted the qualification " reasonable " before the list of restrictions on the fundamental right of freedom of speech and expression so as to place in the hands of the judiciary the power to determine whether a restrictive legislation is " reasonable " or not.

The Committee's report was presented to Parliament today by the Prime Minister. There are as many as six minutes of dissent appended to the report, the more important among them being those of Dr S. P. Mookerjee and Pandit Kunzru.

The Committee has also, for the sake of clarification, recommended the addition of a new clause (4) to Article 15 where it thinks it would be preferable to refer to the advancement of any socially and educationally backward classes of citizens," instead of referring to the educational, economic .or social advancement of any backward class of citizens."

While some apprehensions have been expressed in respect of this amendment, the Committee feels this provision " is not likely to be, and cannot indeed be, misused by any Government for perpetuating any class discrimination against the spirit of the Constitution, or for treating non-backward classes as backward for the purpose of conferring privileges on them."

ANOTHER CHANGE

Another change proposed by the Select Committee relates to future legislation providing, for acquisition of estates. In this clause the Committee has made two amendments- one, to the effect that wher6 the law is made by a State Legislature, it should be reserved for the consideration of the President and should receive his assent before the law could claim the protection given to it by the new Article. The other amendment merely seeks the definition of estate to cover existing laws which have been enacted in Hindi or Urdu and where the equivalent of estate in the local language has been used.

The only other Change made by the Committee is that even where the first session of Parliament or State Legislature after a general election happens to be the second session in that year there should be provision for an address by the President or the Governor. The original amendment made provision for the address only for the first session of each year.

MINUTES OF DISSENT

P.T.I. adds:

Mrs Durga Bai in her minute of dissent has suggested the power to restrict the freedom of speech and expression proposed to be given under the new clause 19(2) should be vested in Parliament alone, to the exclusion of the State Legislatures.

She says: " I feel there is considerable force in the criticism that in regulating the freedom of speech and expression, uniformity of laws can be secured only if the legislative decisions are taken by Parliament. Further the present amendment authorizes the curtailment of this freedom in the interest, inter alia of friendly relations with foreign States which obviously is a subject falling entirely and exclusively in the legislative ambit of the Union. The substitution of the word ' Parliament ' for the word ' State ' in the clause will ensure to Parliament the exclusive power of abridging the fundamental right of freedom of speech in the plenitude of its wisdom."

The argument that the change suggested would entail revision or interference with the legislative lists, she says, has no basis. After referring to the difference provided in the Constitution for amendment for the legislative lists and certain other articles and an amendment of the fundamental rights chapter, she says: " It is obvious no clause on the fundamental rights can he amended without restricting or enlarging the scope of the legislative power of Parliament or the State legislatures*

PUBLIC APPREHENSIONS

Pointing out the many instances in the fundamental rights chapter where Parliament had been given exclusive jurisdiction, she says " On the other hand, to include the new items, public order, maintenance of friendly relations with foreign States, does justify the apprehension that these extensions may result m serious encroachments on the liberty of person. and the Press, specially at the time of elections. There are going to be tens of thousands of polling stations and even after the general election, there will be about 100 by-elections every year. It will be open to any State legislature to abridge the freedom of the Press and the public and then take the chance of being overruled by Parliament. "

No other reason can be or has been assigned for opposing this suggestion which, I believe, will go a long way towards allaying public apprehensions so vigorously and vehemently voiced by powerful sections of the Press that the extensive power of control over the fundamental right of freedom of speech and expression might be abused by some of the State legislatures. There is no more effective remedy for dispelling such apprehensions than the conferment upon Parliament the exclusive right 'to exercise that control in the manner suggested by me."

NO CONVINCING CASE

Pandit II. N. Kunzru in his minute of dissent says Government have not established " any clear and convincing case for the proposed amendments." The Constitution had been in force only for 16 months and general elections would be taking place in a few months and yet Government " propose to force these amendments to the Constitution through Parliament immediately."

It is a matter of deep regret." he continues, " that Government should not have given to the Committee full information in regard to the laws that had become void as a result of the recent Judicial pronouncements and that are to be validated though they were repeatedly asked to place before the Committee a clear picture of the position created by the decisions."

Pandit Kunzru has recalled that in the case of " Brig. Bhushan vs the Delhi State," the Supreme Court had held there could be no pre-censorship of news while in the case of " Romesh Thapar vs. Madras State." the order banning the entry and circulation of The Cross Roads into Madras in the interests of public order were considered unconstitutional.

" Is it the intention of Government to validate the exercise of these powers by the State?" he asked.

After referring to the fact that in Master Tara Singh's case Sections 124 A and 153 A of the Penal Code had been declared ultra vires, Pandit Kunzru says, " The history of Section 124 A is well known. It was passed in its present form in 1898 to curb the activities of Indian patriots. While in England sedition is treated as a minor offence, in India it is regarded as a major offence for which severe punishment can be imposed. Now that India is free it should find no place in a statute book in its existing form."

IMPORTANT CHANGE

Welcoming the use of the word " reasonable "' before " restrictions," he says it introduces * a very important change " and places in the hands of the judiciary the power to determine whe. ther a restrictive legislation is reasonable or not.

Referring to the retrospective validation of the laws, he says " Government should give an assurance that no one will be prosecuted for having acted in contravention of these laws while they were invalid."

In regard to the amendment to article 15, Pandit Kunzru says: " I think a central authority should determine which classes should be regarded as backward so that a uniform standard may be observed in respect of the specification of such classes pending the report of the Commission referred to in article 340 of the Constitution. A provision similar to the one contained in 341 and 342 of the Constitution is necessary to enable the President to decide which classes should be regarded as backward."

Mookerjee'S CRITICISM

Dr S. P. Mookerjee in his minute of dissent has questioned the need for the further restrictions on the freedom of speech. He has supported Mrs Durga Bal's suggestion the power to impose such restrictions should be vested only in Parliament.

Dr Mookerjee says the onus of proving the need for changes had not been " satisfactorily discharged " by the proposers of the amendments. The procedure adopted indicates " how the Constitution is being denied its inherent sanctity and sacredness."

The main ' reason advanced for the amendments was that the judiciary had pronounced its opinion on certain laws which were disfavoured by the Government in power. Though the members of the Select Committee repeatedly asked for it, they had not been furnished with the list of laws which had been declared invalid and which created dif6culties for Government.

The judiciary having been clothed with the duty of ensuring that the laws conform to the Constitution " nothing should be done to impair, the independence of the judiciary or To lower its prestige." Instead of bringing the old " repressive and retrograde " laws in line with the fundamental rights of the Constitution, " we are following the strange procedure of adhering to such reactionary laws and changing our fundamental rights."

WHOLESOME CHANGE

Welcoming the use of the words * reasonable restrictions " in the proposed Article 19(2), Dr Mookerjee says it is "a wholesome change." making 19(2) Justiciable and " I do not wish to minimize the importance of this change in the protection of civil liberty." The existing restrictions on the right to free speech and expression are " more than sufficiently restrictive " and there should be no fresh additions to these the only lacuna, if at all, is that limitations did not cover " incitement to violence " and this might be removed, but there is no justification for " forging fresh fetters." The term " public order " used in the amendment is vague and should be subject to " the clear and present danger test," namely, that the substantive evil must be extremely serious and the degree of imminence extremely high.

FOREIGN STATES

Dr Mookerjee says there is no justification for bringing in the unrestricted provision of "friendly relations with foreign States." At the most, the phrase should not extend beyond defamatory attacks on heads of foreign States or similar acts. Though the Government agreed to this principle, it is not prepared to make it clear and unambiguous in the Constitution itself.

Pointing out that the State legislatures, under the proposed amendments. would be able to exercise powers at protecting the rights and liberties of the people. resulting in " conflicting approaches " Its different States. Dr Mookerjee says: " These laws, at least those relating to the restrictions of fundamental rights, should be framed by Parliament and not by the State legislatures."

Referring to the retrospective character of the amendment, he says: " This is most undesirable and may theoretically clothe the Government with the authority to launch prosecutions for alleged offences committed during a period when the laws were void according to court decisions." The Prime Minister and the Home Minister, he adds, have assured this was not the Governments intention and instructions would be issued to the State Governments accordingly, if necessary. " Still the dangerous implications of such retrospective legislation cannot be minimized."

NEW ARTICLES 31-A & B

In regard to the new Article 31-A and 31-B. Dr Mookerjee says the Patna Act had been declared invalid by the High Court as a violation of Article 14. If the Government appealed to the Supreme Court, and if it gave a verdict not acceptable to the Government, that could have been a justification for amending the Constitution. But nothing had as yet happened to justify the taking away of the jurisdiction of the judiciary in this sweeping manner. At least the wording of Article 31-A should be so modified that the responsibility to see that the provisions of Article 31 were complied with, should vest in the President.

As regards 31-B, some of the laws proposed to be validated are pending before the courts. To include in the Constitution itself particular laws which had been deliberately declared invalid by the judiciary was " an extraordinary procedure." The laws should at least be carefully tested again by the President to see that they do not violate the provisions of the Constitution. Only thereafter should they be declared valid.

So long as they had a written constitution and fundamental rights, they have to abide by its provisions No Government could afford to brush them aside or hurriedly seek their alteration on the plea that judicial interpretations are not to its liking. " A better and more honourable course would have been not to have a written constitution at all and make Parliament the supreme body."

MINUTES OF DISSENT

Three members, Prof. K. T. Shah. Sardar Hukam Singh and Mr Naziruddin Ahmad, have submitted a joint minute of dissent and also separate ones.

They say the experience gained in the working of the Constitution was too short and too few to warrant the conclusion that an amendment was needed.

Amendment of the Constitution by the present Parliament was open to question on grounds of propriety if not of constitutionality. With elections barely six months off the proposed amendment could hardly be said to be in the best traditions of constitutional progress, democratic ideas or of effective popular sovereignty.

The three members have also voiced the complaint that the Committee did not have sufficient material before them and they did not also have the text of the laws which were to be validated.

Amendment to Article 15 was " objectionable as being incompatible with the letter and spirit of the Constitution.' Though the entire population of the country could be said to be backward, certain so-called backward classes were being selected for special treatment " Those in power arid authority have done nothing hitherto to implement any important article in the chapter on the directives of policy, which breathe the spirit of the Constitution, even though somewhat asthmatically."

NEW RESTRICTIONS

Far more objectionable, they say, is the proposed amendment to Article 19. At least three new categories have been introduced, while those already in the article have been in some respects materially modified. In the amendment as it now stood the term " reasonable is added before " restrictions." To this extent it is a welcome improvement. " We, however, see no justification for ' including ' friendly relations ' with foreign States to restrict, however reasonably, freedom of speech and expression." The Press in India as a whole has shown no evidence to justify this wholly gratuitous and unwarrantable restriction on civil liberties.

As regards the proposed new Article, 31-A, special consideration is shown to owners of landed property, namely, reserving a Bill for consideration by the President and for his assent, it is sought to abolish land ownership or, corresponding rights in land. But no such consideration will be shown to any Bill aimed at restricting civil liberty. particularly in regard to freedom of speech and expression.

Mr Naziruddin Ahmad, in his additional minute of dissent, says: " Up to 8-45 a.m. on May 25 I have not, and so far as I could ascertain, no other member of the Select Committee has seen the actual text of the Bill as finally settled by the Select Committee after several revisions. This has acted as an additional handicap in the way of drawing up any accurate and up-to-date dissentient note."

THE ECONOMICALLY BACKWARD

Mr Ahmed has suggested that besides the advancement of socially and educationally backward classes of citizens provided for in the new Article 15(4), the advancement of the economically backward classes also should be provided.

Referring to the argument of Dr Ambedkar in the House, that the Supreme Court should have imported the principle of " police powers of the State " in interpreting the Constitution. Mr Ahmad has said that the Court had correctly interpreted the Constitution. The police powers of the State flowed from the use of the words " due process of law " in the U.S. Constitution, and this had not found a place in the Indian Constitution.

In regard to Article 19(2), the words " incitement to offence " were too vague and go too far. Even under the I.P.C . which had stood the test of over 90 years, mere incitement to offence was not an offence unless it was followed by a criminal act. Only emergency legislations provided for this offence.

Another serious fault in the proposed Article 19(2) was that it empowers legislation to punish defamatory at, tacks on foreign States and also anything which impairs friendly relations with foreign States. The power sought presently went too far and might be used too easily to prohibit and punish ordinary and fair criticism of foreign affairs. Again, any fair and outspoken criticism might be made punishable by law.

Unfortunately, the existing penal and other laws had not been adapted to bring them in line with the Constitution. If this had been done there will be a clearer picture. By reviving the obsolete and dead laws with retrospective effect, their real shape and effect could not be known with any certainty or exactitude.

LAND QUESTION

In regard to the new Article 31-A, Mr Ahmad says the principle of the clause is widely accepted but the crucial test is payment of adequate or proper compensation as admitted by the Prime Minister himself in Parliament. But the revival of all existing laws, whether good or bad in that respect, is being attempted. "

This is utterly expropriatory and shows high-handedness and would serve as a warning to owners of other properties and business of their approaching fate. The result will be widespread panic and uncertainty rendering industrialization of the country a difficult process.

By introducing the Ninth Schedule, reviving all dead and half-dead enactments, irrespective of their propriety or adequacy, " Parliament is asked to put rubber stamp certificates of fitness to them without examining their contents." Some - alarming examples " of injustice and arbitrariness brought to light in the Acts and which should be condemned " outright as outrageous " are going to be " sanctified " by the validation process and it could never be justified on any grounds of principle or policy.

The entire Bill was hastily conceived and was being rushed through Parliament without proper or satisfactory scrutiny by the public.

HUKAM SINGH'S NOTE

Sarder Hukam Singh in his separate minute of dissent has said that the Constitution was made the touchstone to test the laws. Instead of changing the old repressive and defective laws, the Constitution is now sought to be amended. While the use of the word * reasonable " is welcome, the scope of limitations is still too wide.

The amendment proposed to Article 15 indirectly amends Article 20 (2) and this is beyond the scope of the Select Committee. The present amendment will leave very wide scope to the State legislatures and consequently to the executive to corrupt the list of backward classes by including groups that were not backward.

Sarder Hukam Singh has also objected to the amendment to Article 19(6). While he accepted the principle of the State carrying on trade or business, h,(r referred to instances in U.P. and Bombay, where, while bus owners had been deprived of their right to carry on trade, their vehicles had not been taken over. This was a device to get over the clear provisions of law allowing compensation to them. The Allahabad and Bornbay High Courts had given some relief to them. Under the present amendment they would be completely out of court and entirely at the mercy of the executive.

K. T. SHAH'S NOTE

Prof. K. T. Shah, in his minute of dissent, says that Article 31 A by restricting its scope to proprietorial or analogous rights in land as against the scope of Article 31 which extends to landed as well as personal wealth in commerce and industry, creates " a needless and unjustifiable discrimination which is de8nitely against the spirit of the Constitution, aiming at an egalitarian society."

Again, while bills relating to landed rights were to be reserved for consideration of the President, no such safeguards were being provided for the protection of civil liberties when threatened by State legislation.

The proposal to validate all the laws mentioned in the schedule was open to fundamental objection. Not all of them had been declared invalid by courts and none of them had been examined' by the Select Committee. To declare the summarily valid and give them protection en bloc is a dangerous precedent.

The new additions by the Committee to Articles 31-A and 31-B made no provision to guard against the entire purpose of such legislation being defeated by the setting up of smaller and more tenacious landlord or peasant proprietors. Unless the dispossession of large landlords was accompanied by a simultaneous nationalisation of land permitting collective or at least co-operative cultivation, there would be no real benefit from the amendment.

The provision authorizing the summoning of either House of Parliament was not only unnecessary but was likely to pave the way for a presidential dictatorship.

The proposed amendment enabling the appointment of non-citizens to high judicial office in the Union, including the office of Chief Justice of the Supreme Court was objectionable both on grounds of national self-respect as well as the limited number of persons for whom the amendment appears to have been proposed. It was said there were only four non-citizens who would be benefited. "

I see no reason why these persons should not acquire Indian citizenship if they desire to serve this country in such exalted positions," Prof Shah concludes.

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HT This Day: May 26, 1951 - CLAUSE ON FREEDOM OF SPEECH AMENDED - Hindustan Times