The recent debate over the government’s decision to restrict freedom of expression brings back the memory of 1950s when decisions of three State Governments to curb freedom of expression triggered fierce controversies. The apex court’s decisions in this case impacted the Nehru government’s move of the first amendment to the Constitution. The first Amendment made the fundamental right to freedom of speech more restricted. A brief look into the past is necessary. In 1950, the Bihar Govt. clamped restrictions on Bharati Press, which published a Bengali pamphlet, Sangram. These restrictions were imposed by using the Indian Press (Emergency) Act.

Bharati Press was ordered to deposit a security amount of Rs. 2,000 which would be forfeited, if any of its publications was believed to be inciting violence. Smt. Shailabala Devi, the proprietor of the press, challenged the decision in Patna High Court arguing that Section 4(1) of the Press Act which empowered the government to demand security deposit and seize it, militated against the right to free speech. Patna High Court declared the concerned part of the Press Act unconstitutional.

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It should be mentioned that the Supreme Court had already curtailed the powers conferred by the Press Act by enumerating certain principles in the cases of the journal, ‘Crossroads’, and the weekly, ‘Organiser’. The Supreme Court declared that the provision authorising imposition of restrictions for public safety or maintenance of public order are outside the scope of the limitations which Article 19 (2) authorised and as such, it was unconstitutional.

Thus, Patna High Court, declaring the impugned part of the Press Act unconstitutional, followed only the apex court’s decision. It is widely believed that Patna High Court’s Judge Sarjoo Prasad’s observation led to the Nehru government’s decision to propose the first amendment. Justice Prasad said, as quoted in Granville Austin’s ‘Working a Democratic Constitution’, ‘‘if a person were to go on inciting murder or other cognizable offences either through the press or by word of mouth, he would be free to do so with impunity because he could claim freedom of speech and expression’’. But a close reading of Justice Prasad’s statement gives us a different picture. In the concluding paragraphs of the judgment he said, “… the conclusion appears to be unavoidable on the authority of the Supreme Court judgments’’.

Justice Prasad, in so many words, wanted to point out that freedom of even inciting murder in speeches was only an extension of logic inherent in Supreme Court’s judgments. Nehru used Justice Prasad’s comments, while introducing the amendment bill, to add more restrictions to the existing ones on freedom of expression. He did not refer to Justice Prasad’s conclusion. Why was he so desperate to curb free speech?

It has frequently been propagated that Nehru was a champion of the highest democratic values. But history tells us something entirely different. He was always intolerant of the press’s scrutiny of his government. He was also deeply annoyed with the court’s resistance to restrain critical observations made in the press. He complained to Bidhan Chandra Roy, “we have been putting up with the most virulent writings in the press, because we were told we could do nothing about it since our judges have interpreted the constitution.’’

[Nehru to B.C. Roy, 18 December1950: Selected Works of Nehru edited by S. Gopal, Vol. 15/2 p.257] With this purpose in view, the Nehru government brought the First Amendment to put the fundamental right to freedom under fetters. It was fiercely objected to by men like Shyama Prasad Mukherjee and Hari Vishnu Kamath. Kamath said, “what needed amending was not the Constitution, but the policies of the Government’’. The debates ultimately focused on two major issues viz, whether the proposed restrictions were really necessary and whether the word ‘reasonable’ should be added to the restrictions.

Shyama Prasad Mukherjee asked why the existing laws prohibiting acts offending decency and morality and undermining security of the state were not found sufficient to regulate freedom of speech and expression. He pointed out, in this connection, that the restriction in the interest of relations with foreign states was in fact, targeted at his criticism of Pakistan and desire to annul Partition. He argued that ‘democratic freedom’ implied circulation of any viewpoint in the country as long as it did not advocate violence and chaos.

Eventually, scrutinising the amending bill, Nehru decided to insert the protective word ‘reasonable’ in the draft bill of amendment to qualify his proposed limitations on the freedom of speech. This was a compromise he made, apprehending resentment over any sweeping decision to do away with the scope for judicial review. After the First amendment was enacted, Parliament passed the Press (Objectionable matter) Act in October 1951.

Objectionable Matter referred to, among others, incitement to violence for the purpose of overthrowing the government and incitement to the committing of murder. In a way, the legislation was a reaction to Bihar High Court’s observations. The Act was repealed in 1957. But, the controversy over regulation of free speech did not subside. The recent efforts to apply Sedition laws have revived it once again. Sedition laws were used by the British Indian government to suppress India’s freedom movement. There is ample justification for discarding this relic of the colonial period.

Nevertheless, one cannot just ignore the circumstances under which it is invoked time and again. One should also examine how some utterances have been found not only seditious, but also treasonous. All these and a lot more have to be looked into.

The writer is former Head of the department of Political Science, Presidency College, Kolkata