First Amendment Of Indian Constitution Law Constitutional Administrative Essay

Published Date: 02 Nov 2017

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MADE BY :

RISHABH JAISWAL

R120211013

B.TECH CS +LLB

500016487

ACKNOWLEDGEMENT

This project comprehensively aims tocover the topic –

REASONABLE RESTRICTIONS UNDER INDIAN CONSTITUTION

Assigned to me by my constitutional law teacher Mr. ARVIND ANANDAN.

I take the opportunity to express my sincere thanks to sir for giving me the opportunity to prepare my constitutional law project.

This project could not have been successfully completed without the support of my friends .With their helpand my thoughts I have been able to give this project an appropriate shape.

Thank

you

Table of Content

Introduction

History

First Amendment of Indian Constitution

Article 19 (with regard to reasonable restriction)

Reasonable restriction

Cases

Hypothesis

Conclusion

Refrence

INTRODUCTION

Article 19 deals with Freedom of speech and expression .

Though the constitution of India clearly does not mention Freedom of the press , it has been included as part of freedom of speech and expression , as a basic fundamenta right of human being.

Freedom of press is implied from freedom of speech and expression guaranteed under the Article 19(1)(a) of the Constitution.

Freedom of press is essential for proper functioning of democracy .

And for Democracy it is necessary to maintain and preserve freedom of speech and expression , but it is also necessary to pose some restrictions on this freedom for the maintenance of social order, as no freedom can be absolute or completely unrestricted.

Lord Denning in his book – " Road to Justice" stated that :

‘ Press is the watchdog to see that every trial is conducted fairly , openly and above board, but the watchdog may sometimes break loose and has to be punished for misbehaviour.’

First Amendment to constitution 1951 , emphasized on expanding the scope of Article 19(2).

Under Article 19(2) : REASONABLE RESTRICTIONS can be posed on freedom of speech and expression by the laws made by state in the interest of public on some grounds .

Laws so enacted to specify certain restrictions on the right to freedom of speech and expression have to be construed meaningfully and with the constitutional object in mind.

Reasonable restriction contemplated under the Indian Constitution brings the matter in the domain of the court as the question of reasonableness is a question primarily for the Court to decide. {Babulal Parate v. State of Mharashtra }* .

*[(1961) 3 SCR 423]

HISTORY

The First Amendment: Bringing order to speech Sardar Patel, the home minister, thought that the Cross Roads decision "knocked the bottom of most of our penal laws for the control and regulation of the press

Nehru was livid with the interpretation of the court. He immediately wrote to Ambedkar "expressing the view that the constitution’s provisions pertaining to law and order and subversive activities needed to be amended

10 In Feb 1951, Nehru formed a cabinet committee to examine the proposed amendment. The home ministry recommended to the cabinet committee that ‘public order’ and ‘incitement to a crime’ should be included among the exceptions to the right of freedom of speech

 original Art. 19(2) did not have the word reasonable before the word restrictions, and the law ministry was of the opinion that the word reasonable as used in Art. 19 should be retained and even added to Art. 19(2). 

The cabinet Committee, however, strongly disagreed with Ambedkar and felt that while it was reasonable to retain the word reasonable in the other provisions in Art. 19, restrictions on freedom of speech and expression should not be qualified in any manner.

contradictory logic was justified on the ground that they feared the political repercussions of taking away the protection that ‘reasonable’ accorded to the other freedoms in the article. But they were so alarmed by the dangers to national security, friendly relations with foreign states, public order, etc. that they felt that possible curbs on free speech did not have to be reasonable. 

 The draft amendment without the word reasonable and with addition of public order was introduced on 12th May 1951. Nehru defended the amendment stating that it fulfilled the need of the hour. 

The addition of the word reasonable was a partial defeat for Nehru, as it was clear that given a choice he would have preferred not having any qualifications to the restrictions

In a subsequent letter to T T Krishnamachari, Nehru stated that the reason why he did not like the word reasonable was because it would the word ‘reasonable’ was an ambiguous one and it would open up the possibility of the court being called on interpret whether a particular act was reasonable or not.

The cabinet accepted the recommendation in order to avoid a split in the cabinet and ensure two-thirds majority. On the first of June 1951 parliament passed the bill by a vote of 228 to 20.

Importance :

first amendment  retains a significant space in this history because signalled out to the kinds of battles that would take place between the project of nation building and the sphere of the media.

While introducing the discourse of public order into constitutional restrictions on freedom of speech and expression, it also introduced the idea of ‘reasonable restriction’, and as Nehru rightly predicted, it proved to be the basis for future conflicts over the media, the constitution and state formative practices.

In 1950 you had a situation where Nehru had to contend with speech and expression that were ideologically opposed to his liberal values, from that of the far left to that of the far right. Nenru’s response was a classical case of deferring of an exercise of a democratic right, or democratic practice in favour of the larger interest or abtract norm of a democratic state.

Rather than understanding the media as a perpetual site of politics and contestation over the form of the nation, over what constitutes the public sphere, the media was seen to be an instrument/ medium for the promotion of an assumed public interest. This perhaps also speaks to some contemporary debates where progressive intellectuals, media practitioners, etc. demand greater regulation against the ‘hate speech’ of the right. We need to be a little cautious in our responses to forms of speech that offend our liberal sentiments. Very often the assumption of desirable forms of speech presumes a pre-tailored relationship between media and the properly constituted public sphere (much like the imagination of the seamless web), and a plea to the state to rule out undesirable forms of speech abandons the site of politics and converts it into a site of regulation that will merely heighten the crisis rather than resolve it

First Amendment of Indian Constitution

Relevance of the first amendment of the Indian constitution is that :

1. It added the word reasonable before restrictions ,

2. Addition of friendly relations with foreign states ,

3. Public order was added .

ARTICLE 19

 Protection of certain RIGHTS regarding FREEDOMOF SPEECH re

Clause 1 :   All citizens shall have the right –

(a)  to freedom of speech and expression;

(b)  to assemble peaceably and without arms;

(c) to form associations or unions;

(d) to move freely throughout the territory of India;

(e) to reside and settle in any part of the territory of India;

(f ) omitted

(g) to practice any profession, or to carry on any occupation,

trade or business.

Clause 2 : Nothing in clause (a) of Article 19 ( 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 sovereignty and

integrity of India, 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.

*Incitement : motive or prompt to ,

REASONABLE RESTRICTIONS

The first amendment of Indian Constitution made provision that the state may make law that impose reasonable restriction on the exercise of right to freedom of speech and expression which are in the interest of public on basis of eight grounds namely :

1. Public order ,

2. Friendly relation with foreign states ,

3. Security of state ,

4. Contempt of court ,

5. Decency and morality ,

6. Defamation ,

7. Incitement of an offence ,

8. Sovereignty and Integrity of India .

It is the constitutional obligation of the court to ensure that the restrictions imposed on media are reasonable and related to purposes as defined by ARTICLE 19(2).

* Obligation : course of action required to take .

1. PUBLIC ORDER :

The expression implies the sense of public peace , serenity* and safety .

It was added by Constitution First amendment act , 1951 to meet the situations

arised from supreme court’s decision in Romesh Thapar’s case *.

CASE 1 : Romesh Thapar v. State of Madras

Facts of the case –

The petitioner was CROSS ROADS (English journal) – editor , printer and Publisher.

Cross Roads was printed and published in Bombay and was considered a left leaning journal, very critical of a number of the policies of the Nehruvian government.

The Madras government had declared the communist parties illegal.

The Government of Madras, in exercise of their powers under section 9(1-A) of the Madras Maintenance of Public Order Act, 1949 purported to issue an order No. MS.1333 dated 1st March 1950, whereby they imposed a ban upon the entry and circulation of the journal in that State. Romesh Thapar approached the supreme with a appeal that his freedom of speech and expression guaranteed under Article 19(1)(a) was violated by this ban.

Section 9(1-A) authorised the Provincial Government "for the purpose of securing the public safety or the maintenance of public order, to prohibit or regulate the entry into or the circulation, sale or distribution in the Province of Madras or any part thereof of any document or class of documents".

QUESTION -

1. Whether Sec. 9 (1-a) of the Madras Maintenance of Public Order Act was saved by Art. 19(2) ?

2. Art. 19(2) did not contain the phrase ‘public safety’ or ‘public order’, the question was whether it could fall under the language of Art. 19(2) and be considered a "law relating to any matter which undermines the security of or tends to overthrow the State"

*serenity : state of being calm or tranquil

Government argued that the expression "public safety" in the Act, which is a statute relating to law and order, means the security of the Province, and, therefore, "the security of the State" within the meaning of article 19(2) as "the State" has been defined in article 12 as including, among other things, the Government and the Legislature of each of the erstwhile Provinces.

Decision -

The court stated that the ban would prima facie** constitute a clear violation of the fundamental right of freedom of speech and expression unless it could be shown that the restriction was saved by the exceptions provided by Art. 19(2) of the Constitution .

"unless a law restricting freedom of speech and expression is directed solely against the undermining of the security of the State or the overthrow of it, such law cannot fall within the reservation under clause (2) of article 19, although the restrictions which it seeks to impose may have been conceived generally in the interests of public order.

It follows that section 9(1-A) which authorises imposition of restrictions for the wider purpose of securing public safety or the maintenance of public order falls outside the scope of authorised restrictions under clause (2), and is therefore void and unconstitutional.

* AIR 1950 SC 124

** Prima facie

CASE - 2. Brij Bhushan v. State of Bihar :

FACTS OF THE CASE :

Chief Commissioner of Delhi passed an order under section 7(1)(c) of the East Punjab Public Safety Act, 1949 against an English weekly of Delhi called the Organizer.

 The commissioner had issued the order against the organizer for printing inflammatory materials with respect to the partition. As per the order, the editor of the Organizer had to submit for scrutiny, before publication, all communal matter and news and views about Pakistan including photographs and cartoons other than those derived from official sources or supplied by the news agencies, viz., Press Trust of India, United Press of India and United Press of America.

The Question arose:

Whether this order of pre-censorship could be held to be constitutionally valid.

Decision :

This decision was delivered on the same day as the Romesh Thapar case and the majority in this case referred to their decision in Thapar’s case and concurred with the findings in the Thapar case.

The key factor in both the decision was the fact that the phrase ‘public order’ was not included in Art. 19(2) and that the courts interpreted restrictions on freedom of speech and expression as being legitimate only if they pertained to "undermining the security of the state or overthrowing the state". Mere criticism of the government could not be considered as speech which could be restricted for the purposes of Art. 19(2).

2. Friendly relation with foreign states :

If the freedom of speech and expression tends to risk the friendly relation of India with other state then state may impose reasonable restriction on it .

By the Constitution first amendment act 1951 this was added.

HYPOTHESIS

The following suggestions can be made with regard to reasonable restrictions under Indian constitution in this connection :

- Freedom of press may be inserted as a specific fundamental right under

Article 19 of the Constitution of India.

- Parameters of freedom of press should be clearly earmarked.

- Information must be available at an affordable cost within specified, definite

and reasonable time-limits.

- Free press should not violate right to privacy of an individual.

- Free press must be law enforcing and preventive of crime.

- Rule of law must be followed by the free press.

- Influence through free press upon the judiciary should not be exercised.

CONCLUSION

In democracy, the Government cannot function unless the people are well informed and free to participate in public issues by having the widest choice of alternative solutions of the problems that arise.

Articles and news are published in the press from time to time to expose the weaknesses of the governments. The daily newspaper and the daily news on electronic media are practically the only material which most people read and watch.

The people can, therefore, be given the full scope for thought and discussion on public matter, if only the newspapers and electronic media are freely allowed to represent different points of views, including those of the opposition, without any control from the Government.

Lord Denning in his book – " Road to Justice" stated that :

‘ Press is the watchdog to see that every trial is conducted fairly , openly and above board, but the watchdog may sometimes break loose and has to be punished for misbehaviour.’

Hence we can conclude that Freedom of press is necessary for proper democratic functioning but at the same time it is essential too to have reasonable restrictionon these freedom .

REFRENCES

Romesh Thapar v. State of Madras : AIR 1950 SC 124

Brij Bhushan v. State of Bihar

Babulal Parate v. State of Mharashtra : ( 1961) 3 SCR 423