In The Hindustan Times, Avantika Mehta has written a perceptive review of Offend, Shock, or Disturb: Free Speech under the Indian Constitution. In particular, I found this observation interesting, and one that calls for a response:
“… when Bhatia discusses hate speech without bringing up parliamentary debates on the issue or a beloved politician’s contribution to enacting the law he finds so vile – yes, we are referring to Nehru’s introduction of the “reasonable restrictions” clause of our FOE — he does a disservice to history and to his readers. Historians have noted that the clause was brought in to muzzle the Hindu Mahasabha. The amendments were later used by the Supreme Court to uphold the law of sedition, which Bhatia extensively discusses in the book without looking into the realpolitik of the situation.”
There is considerable controversy over Nehru’s role in the constitutional history of the free speech provision. It is therefore important to clarify what Nehru was responsible for, and what he wasn’t. To start with, let us take the text of Article 19(2) as it stood at the time the Constitution was adopted:
“(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law in so far as it relates to, or prevents 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.”
After the First Amendment (which was brought about in response to cases such as Romesh Thappar vs State of Madras and Brij Bhushan vs State of Delhi), the modified Article 19(2) now read:
“(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.”
Two points need to be made.
First, restrictions upon the freedom of speech were not introduced by Nehru via the First Amendment. Article 19(2) was part of the original Constitution. The final wording of the sub-clause was the result of intense and bitter debate in the Constituent Assembly, but – interestingly enough – Nehru was not a very active participant in that debate. The intellectual defence of a restrictions clause was provided by Ambedkar in a lengthy speech, where he cited Gitlow vs New York (American Supreme Court) for the specific proposition that free speech must be constrained in certain circumstances. Sardar Patel also provided strong support for Article 19(2) (then draft Article 13(2)), on more than one occasion. A perusal of Nehru’s speeches indicate that he was clearly in favour of the restrictions clause, but the heavy lifting – at least in the Assembly – was primarily done by Ambedkar and Patel, and certain other members such as Brajeshwar Prasad. Opposition to the restrictions clause came from two quarters: the Left (Somnath Lahiri, in particular), and the (Hindu) Right, both of whom advanced nuanced and subtle arguments calling for the restrictions clause to be scrapped altogether, or to be watered down. Unfortunately, they lost.
Secondly – and this is crucially important – the First Amendment did two different things, which need to be kept separate. First, it expanded the scope of Article 19(2) by introducing the terms “public order” and “incitement to an offence”. This was clearly done with a view to get around the decisions of the Supreme Court in Romesh Thappar and Brij Bhushan, which had struck down a ban on a left-wing journal and pre-censorship of a right-wing (RSS) journal respectively (N.B.: it wasn’t just about suppressing the Hindu Mahasabha – it was equally about suppressing communism), on the basis that the original Article 19(2) did not authorise the State to impose restrictions upon free speech in the interests of public order, but required it to discharge the higher burden of showing a threat to the security of the state. This was a regressive step, and as the mover of the Amendment, Nehru deserves to be severely criticised for it.
However, this was not all that the First Amendment did. In addition to expanding the scope of Article 19(2), it also introduced the word “reasonable” into the sub-clause. This word did not come out of a vacuum, but had a long history behind it. In a forthcoming paper on free speech in the Constituent Assembly Debates, I attempt to explain the significance of the word “reasonable”, for the framers. Consider the following excerpt:
“Distrust of the State was also the underlying motivation of another set of objections to the wording of the restrictions clause. Sardar Hukum Singh perceptively noted that the phrase “in the interest of”, placed just ahead of the substantive restrictions, would serve to reduce the Supreme Court’s area of review to a very narrow sliver. The question of whether a legislation was “in the interest” of the security of the State, for instance, would restrict the Court to merely being able to interrogate its bona fides. “The proviso in article 13(3)”, he argued, “has been so worded as to remove from the Supreme Court its competence to consider and determine whether in fact there were circumstances justifying such legislation.” Pandit Thakur Dass Bhargava suggested a way out: add “reasonable” before “restrictions.” This, he suggested, would ensure that “the courts shall have to go into the question and it will not be the legislature and the executive who could play with the fundamental rights of the people. It is the courts which will have the final say.” In that context, Hukum Singh, in fact, took on Ambedkar on his own terms. Ambedkar’s argument that he could produce a foreign precedent for every restriction placed in draft clause 13(2), he argued, was inapposite, because in other countries, it was the judiciary’s task to balance the competing interests of liberty and social order.” [Footnotes omitted]
The word ‘reasonable’, therefore, was meant to legitimise judicial review over free speech restrictions. Note that Romesh Thappar and Brij Bhushan were decided on the basis that the laws in question related to “public order”, and not to “security of the State”. Without the introduction of the word “reasonable”, this jurisprudence would have very soon hit a dead end, since the only enquiry that the Court could undertake would be whether there existed some discernible relationship between the restriction and the contents of Article 19(2). The nature of that relationship would have remained beyond judicial review.
It was the word “reasonable”, in fact, that allowed the Supreme Court to introduce a proximity requirement between speech and public disorder in Ram Manohar Lohia’s Case, and kickstarted the limited free-speech protections that we find in the Supreme Court’s jurisprudence today. Without that word, the few progressive free speech decisions in our constitutional history would not have existed: there would have been no Lohia, no Arup Bhuyan, and no Shreya Singhal.
It’s possible, of course, that a more textually constrained Court would have found more creative ways to protect civil rights, and ended up developing a better and more coherent free speech jurisprudence. The history of the Court, however, suggests that this would have been a highly unlikely outcome.
In sum, therefore, it’s important to reiterate two basic points that seem to repeatedly get submerged in discussions about the Constituent Assembly and the First Parliament, in the context of free speech. First, an extensive restrictions clause existed in the original Constitution, and one that was accepted by all the major figures of the Assembly – Ambedkar, Patel, Nehru, Alladi Krishnaswamy, and so on. And secondly, the First Amendment was regressive in that it expanded the scope of 19(2), but progressive in that it also expanded the scope of judicial review (what the Court has done with its expanded powers is a different question entirely).