Excerpts : The First Amendment
December 23, 2019
Free
scholar Lawrence Liang has interestingly pointed out the contrast between the
First Amendment to the US Constitution
and the First Amendment to the Indian one. While the former created and
recognized the right to free speech in the US, the latter restricted the right
to free speech in India. This contrast, however, becomes less stark when one
realizes that the First Amendment to the US Constitution was actually the Third
Amendment-the states of that country did not ratify the first two amendments. Thus,
it is not really possible to argue that the framers of the US Constitution
believed the right to free speech to be a preferred right. The free speech
amendment was actually third on the founding father’s list.
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During
the debate on the motion to refer the First Amendment Bill (Indian) to the
Select Committee, Pandit Thakur Das Bhargava, champion of reasonableness in the
Constituent Assembly, stood up once again to advocate the inclusion of the word
‘reasonable’ in Article 19(2).
‘I want
that the liberties of the citizen of this country should be protected’, he said, ‘and unless and until the word “reasonable”
is placed before the word “restrictions” [the Constitution] would not ensure
that liberty”.
Interestingly,
when Ambedkar stood up to support the Bill, Syama Prasad Mookerjee interrupted
him and asked, ‘Why have you omitted the word “reasonable” from the existing clause?’ This was an irony because
Ambedkar and his ministry had privately advocated the inclusion of the word ‘reasonable’ in the proposal amendment to
Article 19(2) even prior to its introduction in the House. Ambedkar responded
by virtually acknowledging that this was an unjustified omission: ‘That is a matter which may be discussed’,
he said.
When
the Bill was referred to the Select Committee, the only substantial change
which the Select Committee made was that the word ‘reasonable’ was now included in the proposed amendment to Article
19(2). One member of the Parliament later said that it was a ‘common belief’
that the home minister at the time, C.Rajagopalachari, was persuaded to include
the word ‘reasonable’ in the First
Amendment, ‘after a great deal of argument’. Virtually all the dissenting
members of the Select Committee acknowledged that this was a very substantial
change. When Nehru moved the Bill again in Parliament, he said that the word ‘reasonable’ had now been included in the
amendment, even though according to him its presence was always implied in Article 19(2). In fact, Nehru
privately thought that the insertion of the ‘reasonable’ would be an invitation for all free speech cases ‘to go
to the courts with ensuring uncertainty’.
The
inclusion word ‘reasonable’ in
Article 19(2) was an important compromise.
The First Amendment added three restrictions to the right of free speech: public order, friendly relations with
foreign States, and incitement to an offence. However, the word ‘reasonable’ in Article 19(2) now meant
that a court could determine whether a restriction imposed on any of the
enumerated grounds was reasonable or not.
Earlier,
Syama Prasad Mookerjee had pointed out the irony that while the First Amendment
to the US Constitution created the right to free speech, the First Amendment to
the Indian Constitution was seeking to restrict it. However, after seeing the
change made to the Bill by the Select Committee, Pandit Thakur Das Bhargava
said that the First Amendment Bill in India now also enlarged freedoms like the First Amendment in the US.
This is an excerpt from the book
Excerpts is a
series where we post thoughtful passages from different books that provide for
a quick and easy reading.
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