First amendment to Constitution challenged: What happened in SC in 1950 that provoked Nehru to amend Article 19(2)?

Source: The post is based on the article “First amendment to Constitution challenged: What happened in SC in 1950 that provoked Nehru to amend Article 19(2)?” published in The Hindu on 7th November 2022. 

What is the News?

The Supreme Court has 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. 

What was the Constitution First Amendment Act, 1951?

The First Amendment was passed in 1951 by the Provisional Parliament, members of who had just finished drafting the Constitution as part of the Constitutional Assembly.

It sought to make several consequential changes — from exempting land reforms from scrutiny to providing protections for backward classes in the Constitution. It also expanded on the scope of the restrictions on the right to free speech.

What changes did the First Amendment make to the right to free speech (Article 19)?

The first amendment made two key changes:

First, 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.

Second, the amendment introduced into the Constitution the specific terms “public order” and “incitement to an offense”. This set of new narrower terms in the provision was necessitated by two Supreme Court rulings in 1950, that went against the state’s power to curb free speech.

What were these two verdicts passed by the Supreme Court?

Romesh Thapar Case: In 1949, the Madras government banned ‘Cross Roads’, a left-leaning magazine, for its criticism of the government’s foreign policy. This led to the first significant free speech ruling by the Supreme Court in Romesh Thappar v State of Madras.

The petitioner had 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”.

The court examined whether these provisions fell within the scope of the restrictions allowed in Article 19(2). The government argued that the words “undermining the security of the State” in Article 19(2) could be equated with “public safety” and “maintenance of public order.”

In its majority opinion in the case, the court disagreed with the government and struck down the provision as unconstitutional. 

Brij Bhushan Case: In 1950, the Chief Commissioner of Delhi issued a “pre-censorship order” on the RSS mouthpiece ‘Organiser’ which too was critical of the government. 

Its publisher 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”.

The Supreme Court struck down the provision as unconstitutional. The court held that the pre-censorship of a journal was an unreasonable restriction on the liberty of the press.