8 highlights
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First, restrictions upon the freedom of speech were not introduced by Nehru via the First Amendment. Article 19(2) was part of the original Constitution. The final wording of the sub-clause was the result of intense and bitter debate in the Constituent Assembly, but – interestingly enough – Nehru was not a very active participant in that debate.
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A perusal of Nehru’s speeches indicate that he was clearly in favour of the restrictions clause, but the heavy lifting – at least in the Assembly – was primarily done by Ambedkar and Patel, and certain other members such as Brajeshwar Prasad.
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Secondly – and this is crucially important – the First Amendment did two different things, which need to be kept separate. First, it expanded the scope of Article 19(2) by introducing the terms “public order” and “incitement to an offence”. This was clearly done with a view to get around the decisions of the Supreme Court in Romesh Thappar and Brij Bhushan, which had struck down a ban on a left-wing journal and pre-censorship of a right-wing (RSS) journal respectively
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In addition to expanding the scope of Article 19(2), it also introduced the word “reasonable” into the sub-clause.
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The word ‘reasonable’, therefore, was meant to legitimise judicial review over free speech restrictions
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Without the introduction of the word “reasonable”, this jurisprudence would have very soon hit a dead end, since the only enquiry that the Court could undertake would be whether there existed some discernible relationship between the restriction and the contents of Article 19(2)
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It was the word “reasonable”, in fact, that allowed the Supreme Court to introduce a proximity requirement between speech and public disorder in Ram Manohar Lohia’s Case, and kickstarted the limited free-speech protections that we find in the Supreme Court’s jurisprudence today
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In sum, therefore, it’s important to reiterate two basic points that seem to repeatedly get submerged in discussions about the Constituent Assembly and the First Parliament, in the context of free speech. First, an extensive restrictions clause existed in the original Constitution, and one that was accepted by all the major figures of the Assembly – Ambedkar, Patel, Nehru, Alladi Krishnaswamy, and so on. And secondly, the First Amendment was regressive in that it expanded the scope of 19(2), but progressive in that it also expanded the scope of judicial review (what the Court has done with its expanded powers is a different question entirely).