Initiating the discussion on the Motion of Thanks on the President’s Address in the Lok Sabha on Monday, BJP Hamirpur MP Anurag Thakur took on the Opposition’s attacks on the ruling party over “threat to the Constitution”, saying: “Nehruji finished off the soul of the Constitution. The first attack on the Constitution was 15 months after it was enacted,” he said, adding that Indira Gandhi had later “murdered” it with the Emergency in 1975.

Earlier, during a Mann ki Baat address in November 2023, Prime Minister Narendra Modi said it was a matter of regret that the very first amendment to the Indian Constitution “curtailed the freedom of speech and expression”.

What is the reference to?

The First Constitutional Amendment Bill of 1951 was introduced by then PM Nehru himself in the Lok Sabha. While the Bill sought quite a few small amendments, the reference by Thakur now and Modi earlier seems to have been to amendments to Article 19 (2), which laid down restrictions on the right to freedom guaranteed by Article 19 (1).

The amendment Bill added ‘reasonable’ before the word ‘restrictions’ – to make the Article explicitly justiciable, as the reasonableness of a restriction was to be determined by a court of law – and also added categories like ‘public order’, ‘friendly relations’ with foreign States’, ‘security of the State’ and ‘incitement to an offence’ as restrictions on the freedom of speech and expression.

In other words, Article 19 (1) (a) could now not override any law in existence or legislated by Parliament to impose “reasonable” restrictions on the freedom of speech, if it disturbed public order, incited people to commit an offense, endangered the security of the State or jeopardized friendly relations with foreign States. Whether the restriction imposed was indeed reasonable – meaning, the remedy must not be harsher than the mischief to strike a fine balance – would be determined by the judiciary on a case-to-case basis.

What happened when the Bill was introduced?

Festive offer

In his address introducing the Bill, on May 29, 1951, Nehru said: “Take, for instance, Section 153 of the Indian Penal Code which deals with what may be called communal discord or the preaching of enmity between communities. I have no doubt that the amendment we are seeking to put in brings back into operation – the exact words might be different – ​​how it should be worked. That, if there is going to be preaching of communal hatred, certainly if this is passed, that can be dealt with.”

HV Kamath, a member of the Constituent Assembly and the Provisional Parliament after Independence (1950-52), interrupted Nehru and said that this was a matter of fundamental rights. Kamath had been removed from the Congress in 1949 for “indiscipline”.

The PM responded: “Does he mean that a matter of fundamental rights ought to be allowed to lead to not just confusion, but to grave danger to the State? Certainly not. I say nothing, not a single fundamental right can survive grave danger to the State.”

Before the amendment legislation was introduced, a 22-member Select Committee of Parliament that included Nehru, BR Ambedkar, C Rajagopalachari and many others submitted a report, with some dissent notes, on the need for amending some Articles of the Constitution.

Was there a trigger for the amendment bill?

Significantly, the amendment in relation to freedom of speech and expression followed some adverse court judgments. For example, in the Brij Bhushan And Another vs The State Of Delhi case, the Supreme Court struck down “pre-censorship” imposed by the Chief Commissioner of Delhi on The Organiser, a publication close to the RSS. Similarly, in the Romesh Thappar vs The State Of Madras, the Court struck down a ban imposed on the Cross Roads magazine in Madras under the Madras Maintenance of Public Order Act, 1949.

These cases attracted a lot of public attention, with the Nehru government receiving criticism from all quarters.

It was felt that in response to these court orders, the government saw a need to amend the Constitution to flesh out restrictions on free speech with greater clarity, even while allowing the judiciary to take a call on their reasonableness on a case-to-case basis. base

What did the dissenters say?

One of the foremost criticisms regarding the amendment Bill was that the Constitution had been in force only for 16 months, and that Nehru headed a provisional Parliament, with general elections not having happened as yet.

In the Select Committee that looked at the matter before the introduction of the Bill, HN Kunzru (an Independent member) registered a dissent note as regards The Organizer and Cross Roads, noting that the Supreme Court had struck down both pre-censorship and the banning of a magazine in the name of public order as unconstitutional.

“Is it the intention of this government to validate the exercise of these powers by the State?” Kunzru wondered in his dissent note.

The debate on the Bill went on for 16 days, with disparate figures such as Acharya Kriplani, Jayaprakash Narayan and Syama Prasad Mookerjee finding themselves on the same side against the move.

In his book Sixteen Stormy Days, which documents the debate around the first amendment, Tripudarman Singh wrote that the fiercest opposition to Nehru came from Mookerjee. “You are treating this Constitution as a scrap of paper,” the Jana Sangh leader said.

“I say this Opposition is not a true Opposition, not a faithful Opposition, not a loyal Opposition. I say it deliberately,” said Nehru at one point, as per the book.

“Yours is not a true Bill,” responded Mookerjee, “Your intolerance is scandalous.” He called Nehru a dictator, an arch-Communist responsible for the country’s Partition.

In his defence, as per Parliamentary proceedings, Nehru said: “… we have in India a strange habit of making gods of various things… If we want to kill a thing in this country, we (deify) it… So, if you wish to kill this Constitution make it sacred and sacrosanct – certainly. But if you want it to be a dead thing, not a growing thing, a static, unwieldy, unchanging thing, then by all means do so, realizing that that is the best way of stabbing it in the front and in the back.”

What did the Bill propose?

In its ‘Statement of Objects and Reasons’, the Constitution (First Amendment) Act, 1951, said: “During the last fifteen months of the working of the Constitution, certain difficulties have been brought to light by judicial decisions and pronouncements especially in regard to the chapter on fundamental rights. The citizen’s right to freedom of speech and expression guaranteed by Article 19(1)(a) has been held by some courts to be so comprehensive as not to render a person guilty even if he advocates murder and other crimes of violence… While the words cited are comprehensive enough to cover any scheme of nationalization which the State may undertake, it is desirable to place the matter beyond doubt by a clarificatory addition to article 19(6).”

The Bill also talked of “unanticipated difficulties” arising out of Article 31, “as a result of which the implementation of important measures, affecting large numbers of people, has been held up”.

“The main objects of this Bill are, accordingly to amend article 19 for the purposes indicated above and to insert provisions fully securing the constitutional validity of zamindari abolition laws in general and certain specified state Acts in particular,” the Bill said.

Finally, with 228 ‘ayes’, 20 ‘nos’ and about 50 abstentions, the amendments were passed.

Has there been a challenge to the first amendment act?

In October 2022, the Supreme Court agreed to examine a PIL challenging changes made to the right to freedom of speech and expression by the first amendment to the Constitution in 1951, with the petitioner contending that the amendment damages the basic structure doctrine.

The petitioner, Senior Advocate K Radhakrishnan, said 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, including providing protection to Section 124A (sedition).