Initiating the dialogue on the Movement of Thanks on the President’s Deal with within the Lok Sabha on Monday, BJP Hamirpur MP Anurag Thakur took on the Opposition’s assaults on the ruling occasion over “risk to the Structure”, saying: “Nehruji completed off the soul of the Structure. The primary assault on the Structure was 15 months after it was enacted,” he stated, including that Indira Gandhi had later “murdered” it with the Emergency in 1975.
Earlier, throughout a Mann ki Baat handle in November 2023, Prime Minister Narendra Modi stated it was a matter of remorse that the very first modification to the Indian Structure “curtailed the liberty of speech and expression”.
What’s the reference to?
The First Constitutional Modification Invoice Of 1951 was launched by then PM Nehru himself within the Lok Sabha. Whereas the Invoice sought fairly just a few small amendments, the reference by Thakur now and Modi earlier appears to have been to amendments to Article 19 (2), which laid down restrictions on the best to freedom assured by Article 19 (1).
The modification Invoice added ‘cheap’ earlier than the phrase ‘restrictions’ – to make the Article explicitly justiciable, because the reasonability of a restriction was to be decided by a courtroom of regulation – and likewise added classes like ‘public order’, ‘pleasant relations with overseas States’, ‘safety of the State’ and ‘incitement to an offence’ as restrictions on the liberty of speech and expression.
In different phrases, Article 19 (1) (a) may no longer override any regulation in existence or legislated by Parliament to impose “cheap” restrictions on the liberty of speech, if it disturbed public order, incited individuals to commit an offence, endangered the safety of the State or jeopardised pleasant relations with overseas States. Whether or not the restriction imposed was certainly cheap – that means, the treatment should not be harsher than the mischief to strike a wonderful stability – could be decided by the judiciary on a case-to-case foundation.
What occurred when the Invoice was launched?
In his handle introducing the Invoice, on Might 29, 1951, Nehru stated: “Take, as an example, Part 153 of the Indian Penal Code which offers with what could also be referred to as communal discord or the preaching of enmity between communities. I’ve little question that the modification we’re looking for to place in brings again into operation – the precise phrases is perhaps totally different – the way it must be labored. That, if there may be going to be preaching of communal hatred, definitely if that is handed, that may be handled.”
H V Kamath, a member of the Constituent Meeting and the Provisional Parliament after Independence (1950-52), interrupted Nehru and stated that this was a matter of elementary rights. Kamath had been faraway from the Congress in 1949 for “indiscipline”.
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The PM responded: “Does he imply {that a} matter of elementary rights must be allowed to result in not simply confusion, however to grave hazard to the State? Certainly not. I say nothing, not a single elementary proper can survive grave hazard to the State.”
Earlier than the modification laws was launched, a 22-member Choose Committee of Parliament that included Nehru, B R Ambedkar, C Rajagopalachari and lots of others submitted a report, with some dissent notes, on the necessity for amending some Articles of the Structure.
Was there a set off for the modification Invoice?
Considerably, the modification in relation to freedom of speech and expression adopted some opposed courtroom judgments. For instance, within the Brij Bhushan And One other vs The State Of Delhi case, the Supreme Courtroom struck down “pre-censorship” imposed by the Chief Commissioner of Delhi on The Organiser, a publication near the RSS. Equally, within the Romesh Thappar vs The State Of Madras, the Courtroom struck down a ban imposed on the Cross Roads journal in Madras below the Madras Upkeep of Public Order Act, 1949.
These circumstances attracted a number of public consideration, with the Nehru authorities receiving criticism from all quarters.
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It was felt that in response to those courtroom orders, the federal government noticed a have to amend the Structure to flesh out restrictions on free speech with larger readability, even whereas permitting the judiciary to take a name on their reasonability on a case-to-case foundation.
What did the dissenters say?
One of many foremost criticisms concerning the modification Invoice was that the Structure had been in drive just for 16 months, and that Nehru headed a provisional Parliament, with common elections not having occurred as but.
Within the Choose Committee that appeared on the matter earlier than the introduction of the Invoice, H N Kunzru (an Unbiased member) registered a dissent notice as regards The Organiser and Cross Roads, noting that the Supreme Courtroom had struck down each pre-censorship and the banning of {a magazine} within the title of public order as unconstitutional.
“Is it the intention of this authorities to validate the train of those powers by the State?” Kunzru questioned in his dissent notice.
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The talk on the Invoice went on for 16 days, with disparate figures reminiscent of Acharya Kriplani, Jayaprakash Narayan and Syama Prasad Mookerjee discovering themselves on the identical facet in opposition to the transfer.
In his ebook Sixteen Stormy Days, which paperwork the controversy across the first modification, Tripudarman Singh wrote that the fiercest opposition to Nehru got here from Mookerjee. “You’re treating this Structure as a scrap of paper,” the Jana Sangh chief stated.
“I say this Opposition just isn’t a real Opposition, not a devoted Opposition, not a loyal opposition. I say it intentionally,” stated Nehru at one level, as per the ebook.
“Yours just isn’t a real Invoice,” responded Mookerjee, “Your intolerance is scandalous.” He referred to as Nehru a dictator, an arch-Communist chargeable for the nation’s Partition.
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In his defence, as per Parliamentary proceedings, Nehru stated: “… we now have in India an odd behavior of constructing gods of assorted issues… If we need to kill a factor on this nation, we (deify) it… So, in case you want to kill this Structure make it sacred and sacrosanct – definitely. However in order for you it to be a useless factor, not a rising factor, a static, unwieldy, unchanging factor, then by all means achieve this, realising that that’s one of the best ways of stabbing it within the entrance and within the again.”
What did the Invoice suggest?
In its ‘Assertion of Objects and Causes’, the Structure (First Modification) Act, 1951, stated: “Over the past fifteen months of the working of the Structure, sure difficulties have been dropped at gentle by judicial selections and pronouncements particularly in regard to the chapter on elementary rights. The citizen’s proper to freedom of speech and expression assured by Article 19(1)(a) has been held by some courts to be so complete as to not render an individual culpable even when he advocates homicide and different crimes of violence… Whereas the phrases cited are complete sufficient to cowl any scheme of nationalisation which the State could undertake, it’s fascinating to put the matter past doubt by a clarificatory addition to article 19(6).”
The Invoice additionally talked of “unanticipated difficulties” arising out of Article 31, “because of which the implementation of vital measures, affecting massive numbers of individuals, has been held up”.
“The primary objects of this Invoice are, accordingly to Amend article 19 for the needs indicated above and to insert provisions absolutely securing the constitutional validity of zamindari abolition legal guidelines usually and sure specified state Acts specifically,” the Invoice stated.
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Lastly, with 228 ‘ayes’, 20 ‘nos’ and about 50 abstentions, the amendments had been handed.
Has there been a problem to the primary modification Act?
In October 2022, the Supreme Courtroom agreed to look at a PIL difficult modifications made to the best to freedom of speech and expression by the primary modification to the Structure in 1951, with the petitioner contending that the modification damages the fundamental construction doctrine.
The petitioner, Senior Advocate Ok Radhakrishnan, stated Part 3 (2) of the amending Act effected validation of sure legal guidelines even when they took away or abridged the best to freedom of speech and expression, together with offering safety to Part 124A (sedition).
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