Your intolerance is scandalous

India’s First Amendment

A lurker on Atanu Dey’s blog pointed to two fantastic reports from TIME magazine’s archives.

May 28, 1951…Part of the Indian press, said (Nehru), is dirty, indulges in “vulgarity, indecency and falsehood.” To teach it manners, Nehru proposed an amendment to India’s constitution that would impose severe restrictions on freedom of speech and expression. He asked for power to curb the press and to punish persons and newspapers for “contempt of court, defamation and incitement to an offense.” Nehru told Parliament: “It has become a matter of the deepest distress to me to see the way in which the less responsible news sheets are being conducted . . . not injuring me or this House much, but poisoning the minds of the younger generation.”

Nehru said his measure was aimed at Communist and Hindu extremist agitation. His real targets: Atom, Current, Struggle and Blitz, four Bombay-published sensational weeklies which have consistently attacked Nehru’s domestic and foreign policy, scurrilously attacked the U.S. [TIME]

In the event, parliament passed the first amendment that placed curbs on fundamental rights, including on the rights to speech and property.

June 11, 1951…A small but determined parliamentary opposition, led by Dr. Syama Prasad Mookerjee, former Minister for Industry, bitterly attacked the amendment.

Mookerjee (to Nehru): You’ve got 240 supporters in this House, but outside in the country millions are against you.

Nehru (shaking his fists) : [Your] statements are scandalous . . .

Mookerjee: Your intolerance is scandalous . . .

Nehru (shouting): Any person who says that this amendment of mine curbs the liberty of the press utters lies . . .

As Nehru explained it: “We should not only give the press freedom, but make it understand that freedom.” There was a lot of doubt whether Nehru himself understood the meaning of freedom. His excuse for requesting the law: the scurrilous outpouring of Indian scandal sheets. But as the All-India Newspaper Editors Conference pointed out: there was nothing to prevent the government from using its new powers against the legitimate press when & if it chose. [TIME]

Nehru’s followers have been consistent in following in his footsteps. Dr Mookerjee’s modern-day followers would do well to heed the position of their political-intellectual forefather.

21 thoughts on “Your intolerance is scandalous”

  1. Thanks for this Nitin!

    Nehru’s bootlicking to Communism is well-documented. In the context of this post, little wonder Dr. Mookerjee was murdered.

  2. SP Mukherji’s loss was grievious indeed.

    INC’s legacy and record at burying the contribution and greatness of even Cong leaders outside the Nehru-Gandhi dynasty is too well known to bear repetition (from SC Bose to LB Shastri to PVN Rao), what to speak of non-cong leaders (like VD Savarkar, Rajaji and the like).

    Power over the press (and influence in academia, esp the history and sociology departments) is essential for achieving these dubious goals.

  3. Amazing find.

    I am no great fan of Nehru, but have been somewhat sympathetic to the view that his detractors have gone too far in vilifying him. These Time reports are suggesting that that sympathy is unwarranted. They are also revealing to us the secret as to how the Indian media got to be the Congress party’s pocket borough.

    Do any of the numerous hagiographies written on Nehru mention his “contribution” to the first amendment?

  4. Does anyone notice the irony?

    The first amendment to the American constitution guarantees freedom of speech while the first amendment to the Indian constitution circumscribes the rights the founding fathers had already granted to the Indian citizen.

  5. Unfortunately, heirs of SP Mookerjee have not quite lived up to his standards on freedom of expression. The leadership itself appears to have its heart in the right place but continues to partner with the likes of Shiv Sena.

  6. Actually, small correction Nitin.
    Does the TIME magazine mention that Blitz was anti-Nehru?
    If so, then they have got their facts wrong.

    Blitz,the most popular news magazine in those days, published by R.K. Karanjia was staunchly leftist from the forties right upto the eighties.

    Karanjia was friendly with Menon.
    He was the one who was instrumental in creating the image of JNehru as a ‘great leader’.
    At no point of time, did he become ‘anti-Nehru’.
    The Kaangresis even used to hide in his house/press during tumultuous times during the 40s and 50s.

    However , Karanjia , who expired recently, shunned this very philosophy in the 80s, which is another story 🙂

  7. Khabri

    Thanks. I think TIME magazine’s objectivity then (and now) can be reasonably questioned.

  8. One cannot really compare the US Constitution with its Indian counterpart. Both countries had very different concerns in mind at the time of the founding of their independent republics and in each case, the framers did their best to address them. Unlike in the American founding where protection of individual rights was a major source of worry, in India, the preeminent concern was socioeconomic development and the prevention of violence, the first because of the widespread social evils and rampant poverty and the second, owing to the trauma of partition. The socialist notion of the state assuming the preeminent role in promoting the common good was also in keeping with the prevailing ideological environment of the 1940s. Fundamental rights were sought to be naturally curtailed to the extent that these objectives were sought to be achieved by the state.

    Nehru was not the only person behind the first amendment. Sardar Patel , as Home minister sought to curtail the freedom of the rightwing press because he feared that their coverage was inflammatory and would fan more violence – with hundreds of thousands dead, one cannot discount that as a baseless fear.

    In fairness, however, the US First Amendment, notwithstanding the broad language, has never been understood to imply absolute freedom of speech. It has always been interpreted to allow traditional exceptions for libel, hate speech, obscenity, etc. The increasingly stringent limitations imposed on these restrictions (with several prominent judgments such as NYT v. Sullivan, the framing of the Roth test on obscenity, etc.) is a relatively recent phenomenon witnessed since the late ‘50s and ‘60s. The Indian framers were well aware of American precedents and the inclusion of morality under 19(2) – one of the most prominent and controversial of the restrictions – was consistent with the prevailing western sentiment of the time. So the mere fact that we happen to see things differently today does not necessarily imply the fault of the Nehru government.

    The stark difference between the US First Amendment and its Indian counterpart has been known for a long time. K.Santhanam observed this in the Constituent Assembly when he said that the job of the courts in India will be to police the restrictions rather than to defend our freedoms. In fact, the word ‘reasonable’ added before restrictions at the insistence of Thakur Das Bhargava was meant to attenuate the sweeping power of the government to regulate freedom of speech, a concession that Nehru agreed to. The reason that it has failed its purpose is not because of Nehru but rather owing to the failure of our courts to build a sound body of jurisprudence over the last half a century upon this point unlike their American counterparts.

    On the property question, land reform would have been impossible without extraordinary laws – indeed, despite these laws, an extended period of conflict followed that only ended with the infamous judgment in Keshavananda Bharati. Again, here it is incorrect to say that the Supreme Court alone was right and Nehru was wrong. Some of the judgments (regarding mainly compensation for acquisition of private property) were innovative interpretations by an activist Supreme Courtt that were never intended by the framers – no less than A.K. Iyer, an eminent lawyer and member of the drafting committee has testified to this fact.

    On the right to equality, the inclusion of the exception was simply a reflection of an understanding that had already been reached and put in place in British India (as an alternative to proportional representation) for the advancement of Dalits – again, it enjoyed support of prominent members of his Cabinet. This was not a sudden Nehruvian idea but the continuation of what was established policy by that time.

  9. Nice try Cupid! So because the socialists were the way they were, Nehru was okay? That’s exactly what we saying too – that Nehru was socialist and couldn’t care about fundamental freedoms. And your defence of Nehru is his cabinet agreed to his actions? Indira’s cabinet also approved her emergency plan, after the president signed the emergency law – I suppose that means emergency wasn’t just Indira’s idea. The rest of the arguments to say, it’s not just Nehru but the courts are to be blamed is bogus. The post is about constitutional amendment in 1951. How else would you expect courts to interpret the law?

    It’s also extraordinary to say that because there were clashes during the partition – most of the migration was complete, and the ensuing massacres have stopped by ’51 – although still fresh in mind – when constitution was adapted and when the first amendment was discussed. But the main point is, does one create a constitution for the next decade or a constitution that would survive forever? A constitution should be about fundamental ideas and ideals, not about what was going at the moment. If it so, why don’t we tear up the constitution every decade, rewrite it. BTW, Sardar was dead by then – he wasn’t for any constitutional curtailment of anything. After Sardar, Nehru was a sole towering figure in Congress party – few disagreed with him and those who did weren’t in high positions much longer.

    Also, with respect to American first Amendment. Too much is made out of it. (I couldn’t log in to Atanu’s blog to comment on it.) The same guy who wrote the first amendment, Jefferson, owned slaves by the hundreds. And slavery continued for another hundred years and racial discrimination for another hundred. Until recently, Catholics and Jews were discriminated against. Native Indians are routinely discriminated against – even now. Even as recently as this year, Mormon candidate for presidency was talked down by the certain sections of Americans. Only in the past 30-40 years – some two hundred years after the country became a republic – has American constitution started to work for everyone in US. So when one says Mera America is Mahan, one has to wonder. US is now surely a vastly better country – but it took awhile to get there.

    So I think will Bharat too. Despite Nehru and his progeny, we will survive and continue building a better nation – surely Mera Bharat Mahan is a start….

  10. Chandra writes: “Native Indians are routinely discriminated against – even now.”

    Tell me where so I can avoid going there. You see, I am native Indian (born in India, etc).

    Oops, sorry. I read the whole piece and now I realize that you were really referring to native Americans. They are not native Indians, they are native Americans — that is, people who did were not visitors but were there for a long time. They are Americans and they are native there. Ergo, native Americans. The people of central America are not Indians. They are central Americans. And if they have been there for many many many generations, they are native central Americans — not Indians.

    Indians are from India. These are the people who are native to India and therefore they are native Indians. Native Indians are found only in India.

    Native Brazilians are found in Brazil. Native Mexicans are found in Mexico. The people who have lived thousands of years in Mexico, the people who were there before the Spaniards came (that is the native Spaniards), they are not Indians; they are native Mexicans.

    Repeat after me: Native Indians come from India. Native Americans come from America. Native Mexicans come from Mexico.

    End of rant.

  11. Atanu, 100% agree with you rant. Native Americans, of course. My mistake. (When I was thinking about my response later on, I was very sure I wrote Native Americans.)

  12. Chandra,
    My point is that the restrictions on individual liberties in order to protect certain state interests was very much of a part of the thinking and political discourse at the time. Nehru’s pushing for the restrictions incorporated through the first amendment was very significant but not a bolt from the blue or altogether exceptionable at the time (unlike the emergency). Sardar Patel was no doubt dead but the origins of the troubles that led to the amendment can be traced to the time when he was the Home Minister. Sure, the partition was complete but that did not mean that the deep scars in the polity and the chances of renewed communal violence where minority numbers were considerable were altogether insignificant. It was widely recognized that the state had an obligation to take extraordinary measures if necessary to prevent renewed violence – K.M.Munshi and A.K.Iyer, as members of the drafting committee, both agreed upon the point and strongly advocated, during the proceedings of the CA, for a curtailment of individual liberty on the ground of public order (Iyer also wanted restrictions for hate speech). The SC’s overturning of several sections of different State security acts on the grounds that public order was a not basis for restricting freedom of speech (Brij Bhushan v. State of Delhi, Romesh Thapar v. State of Madras, etc.) along with similar judicial interventions in other areas were the proximate cause for the introduction of the first amendment. Ambedkar, who as law minister was given to exercising independent judgment, advocated for the amendment as well when the CA was debating the implications of these rulings.

    As regards whether a constitution is created to endure for the ages or for a few years, the answer is obviously the former. But every constitution’s structure and purposes are influenced by the events at the time of its framing and the Indian document is no different in this respect.

    You say that the courts are not to be blamed because this is all after the amendment was passed. Well, most certainly they must share a portion of the blame for what the restrictions of the first amendment have come to mean after it was enacted – the very reason that the word ‘reasonable’ was added was to allow for judicial review of the restrictions. By evolving clear red lines on distinguishing between reasonable and unreasonable restrictions, they could have safeguarded freedom well. That has not happened, so who is to blame?

  13. Cupid,

    >>The SC’s overturning of several sections of different State security acts on the grounds that public order was a not basis for restricting freedom of speech

    What is the basis for your belief in the above claim?

    >>the very reason that the word ‘reasonable’ was added was to allow for judicial review of the restrictions

    Nehru was opposed to having this word in the amendment. He had to yield to the opposition’s demand.

    “..the draft amendment without the word reasonable and with addition of public order was introduced in Parliament on 12 May 1951. Nehru defended the amendment stating that it fulfilled the need of the hour….But in the face of fierce opposition, the government agreed to include the word reasonable to qualify the restrictions on freedom of speech and expression. In a letter to T. T. Krishnamachari, Nehru said he did not like the word reasonable because the word was ambiguous and would permit the courts to put their own gloss on whether a particular Act was reasonable or not.”

  14. Oldtimer,

    The original wording of Art.19 only mentioned ‘security of the state’ (apart from other things like libel, slander, defamation, etc.) as a ground for restricting freedom of speech and expression and the courts interpreted this (correctly in my view) to be a distinct and narrow exception that did not extend to disturbances in public order (see the judgment in Brij Bhushan here).

    You are right that Nehru did not like the word ‘reasonable’ because of the subjectivity it would introduce, a concern that history shows was justified to some extent (by the fact that the courts have still not evolved any principles to decide what constitutes reasonableness). But he nevertheless made the concession in light of the support that Bhargava’s amendment had. The courts could well have narrowly (but clearly) construed these exceptions thereby safeguarding our freedoms but have unfortunately failed to do so.

  15. Cupid, I don’t think you can have it both ways. Courts are to be blamed because Nehru didn’t define the restrictions clearly? Surely reasonable is an unreasonable word when it comes to clarity. But it’s up the legislature to clarify what the specific restrictions are, not for the courts. And not all cases go to the courts, so the appeasing so-called secular politicians, of which exhibit A is Nehru, play their little games under the cover of this amendment.

    As far as design of constitution goes, it most definitely should not be based on transient events of the day. It’s bond between the state and the people, not for the people or state of that decade or of that generation. That’s one reason why many look up American constitution because it is small, to the point, and talk about underlaying principals of that bond (and need I say easy to read) – not every little detail – and has survived for so long with few changes. Unfortunately, like you say, Bharatiya constitution has too much nitty gritty deals – rules/laws for the executive branch. So it is mangled by every government beginning with Nehru during his long 17 years rule. Looking at the recent EU constitutional monstrosity, may be the Americans were lucky to have created their constitution when they did.

  16. Chandra,
    It is for the legislature to say what the restrictions are but its for the courts to say which of those are reasonable. When words are open to multiple interpretations, it is emphatically the job of the court to say what the law is (Marbury v. Madison). A number of cases have come before the courts over the years where the SC could have done this but it has chosen to decide each case based on its facts thereby leaving the next case to again climb its way through the judicial system before its outcome is known. Had clear red lines been laid down, for one thing, the politicians would know what they can and cannot do and for another, intervention at the level of the lower courts would be sufficient to resolve the issue one way or the other. This failure has been a costly one – as J. O’Connor said, ‘Liberty knows no refuge in a jurisprudence of doubt’ – well, that is exactly what we have today, a ‘jurisprudence of doubt’.

    Constitutions are invariably influenced in every country by the political sentiments of the day and events of the time do play a part in influencing them. That is because it usually requires a general level of agreement on the values that are fundamental to the governance of the society and, as everyone knows, values are seldom decided in a vacuum. They usually embody the traditions and collective experiences of a nation (and to the extent that it does not conflict with their own experiences, that of other nations is also taken into account) up to that time – both recent and past – and are therefore written in light of the prevailing understanding of what is good and workable for the country. There are many examples I can quote of this phenomenon – the post-war German constitution was heavily influenced by the horrific events of the holocaust, the religion clause of the American constitution was to avoid the religious conflicts that had plagued Europe, the current French constitution has provisions tailor-made to fit De Gaulle’s views and tastes, etc. I am aware of no constitution which is drafted based on values in the abstract.

    The very same thing applies to India – the Directive Principles of state policy, wording of the fundamental rights, privileges of the legislatures, abolition of untouchability, etc. are all heavily influenced by the values of the dominant nationalist sentiment of the day, the functioning of governmental institutions of British India at that time and Anglo-American jurisprudential / democratic experiences – indeed, the history of most provisions could be traced to one of these. The first amendment of 1951 was simply an effort to preserve the state’s latitude in terms of authority as it existed in British times under the terms of a written constitution. The events of the day, namely the prevailing violence and the possibility, even likelihood, of future communal pogroms only served to bring the necessity of empowering the state into added focus. History of British India was already replete with random acts of violence which had to be put down by the government with all instruments at its command including force, harsh punishments and censorship. The Nehru’s government’s efforts to push through the amendment ought to be seen in light of this continuing (and consistent) predilection for sudden, relatively unpredictable and violent episodes and cannot therefore be termed exceptionable.

    As for your last point, the American constitution is really a poorly written document – it is not to the point nor it does it lay down principles in terms that lend themselves to unambiguous interpretation. It is broadly written and has led to numerous controversies over the years. The Indian drafting committee was well aware of these problems and it designed the provisions of our own document very carefully and clearly (for the most part though subsequent amendments did not always exhibit the same kind of precision) precisely to obviate these controversies. The reason for what you call the ‘nitty-gritty’ was because they wanted everyone to know exactly what they are trying to say. The Indian constitution, notwithstanding its length and detail, is not all that complicated a complicated document; if the rules of statutory construction are properly followed, its meaning is relatively easy to construe.

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