First Amendment to Constitution Challenged

Context

Recently the Supreme Court agreed to examine a plea challenging the expansion of restrictions to the fundamental right to freedom of speech and expression that was made by the first amendment to the Constitution.

Probable Question

Elaborate on the first amendment to the Constitution in 1951 and the significance to revisit those in today’s time.

About the First Amendment to the Constitution

• The Constitution of India was first amended almost seven decades ago, just over a year into the working Constitution.
• The amendment officially came into effect on June 18, 1951.
• It made several consequential changes from exempting land reforms from scrutiny to providing protections for backward classes in the Constitution. 
• The scope of the restrictions on the right to free speech was also expanded by the amendment.

About the Current Petitioner’s Arguments

• Objectionable insertions: 
  • Section 3(1) of the 1951 Amending Act substituted original Clause (2) of Article 19 with “two objectionable insertions” allowing restrictions also “in the interest of public order” and “in relation to incitement to an offense”. 
• Neglecting National Security: The new Clause (2) also omitted the expression “tends to overthrow the State” as appearing in the original Clause (2).
• Declaring Section 3(1) & 3(2) void: 
  • Section 3 (2) of the amending Act effected validation of certain laws even if they took away or abridged the right to freedom of speech and expression.
  • The two sections “damage the basic or essential features of the Constitution and destroy its basic structure”.
• Insertions Protect Sections:
  • Sections 124A of the Indian Penal Code (sedition).
  • Section 153A of IPC (promotes enmity between different groups verbally, physically, or by signs or by visible representations prejudicial to the maintenance of harmony.
  • Section 295A of IPC (deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs).
  • Section 505 of IPC (statements conducing to public mischief).

About the Constitutional Position on Free Speech

• Article 19(1)(a) in Part III of the Constitution: It guarantees the fundamental right to freedom of speech and expression, which is neither absolute nor unfettered.
• Article 19(2): 
  • It lists exceptions or “reasonable restrictions” on that right.
  • Original Article 19(2) of the Constitution: “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.”
• Changes made by the first amendment:
  • It introduced the qualification “reasonable” to the restrictions that Article 19(2) imposed. 
  • The insertion of the term “reasonable”, keeps the door open for the courts to step in and examine the legitimacy of the restrictions imposed by Parliament.
  • It also introduced the specific terms “public order” and “incitement to an offense”, which were necessitated by two Supreme Court rulings in 1950, that went against the state’s power to curb free speech.
  • Also Read: Indian Acts Simplified Series - Understand Laws Better

The Supreme Court’s Two Verdicts

Romesh Thappar Case v State of Madras: 

• Cause: In this first significant free speech ruling by the Supreme Court in Romesh Thappar v State of Madras in 1949, the Madras government banned ‘Cross Roads’, a left-leaning magazine, for its criticism of the government’s foreign policy.
• Petition: 
  • It challenged Section 9(1-A) of the Madras Maintenance of Public Order Act, 1949 as unconstitutional. 
  • This provision authorized the government to impose restrictions for the wider purpose of securing “public safety” or the “maintenance of public order”.
• Government Argument: The words “undermining the security of the State” in Article 19(2) could be equated with “public safety” and “maintenance of public order.”
• Courts Verdict:
  • It had to define the terms “public safety” and “public order”, and examine if they fell within the scope of the restrictions allowed in Article 19(2). 
  • The court disagreed with the government and struck down the provision as unconstitutional. 

Brij Bhushan Case

• Cause: The Chief Commissioner of Delhi issued a “pre-censorship order” on the RSS mouthpiece ‘Organiser’ in 1950, which too was critical of the government. 
• Petition: Its publisher Brij Bhushan challenged Section 7(1)(c) of the East Punjab Public Safety Act, which allowed pre-publication scrutiny of material “prejudicial to public safety or the maintenance of public order”.
• Courts verdict: 
  • The Supreme Court formed the majority that struck down the law. Justice Fazal Ali again dissented.
  • It was held in the judgment that any pre-censorship before the publication is unreasonable to the freedom of the press.

Way Forward

• In these unprecedented times, revisiting fundamental rights for freedom of speech and expression can be of substantial importance.
• Revisiting Freedom of speech and expression at this time when social media sites and other mediums of speech and expression are widely used, can be a great step towards strengthening and protecting it.

News Source: The Indian Express

https://indianexpress.com/article/explained/first-amendment-to-constitution-challenged-supreme-court-8252509/

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