The Supreme Court (SC) in India has recently agreed to examine a Public Interest Litigation (PIL) submitted against changes made to the right to freedom of speech and expression by the first amendment to the Constitution in 1951. This move has sparked discussions about the implications of the said amendment and its impact on national security.
The Petitioner’s Arguments
The petitioner argues that Section 3(1) of the amending Act replaced original Clause (2) of Article 19 with a new Clause (2). These clauses deal with the reasonable restrictions on the freedom of speech and expression, which is guaranteed under Article 19(1)(a). Two main insertions in the new clause have been deemed as objectionable as they allow for restrictions “in the interest of public order” and “in relation to incitement to an offence”.
Section 3(2) of the amending Act also validates certain laws that potentially curtail the right to freedom of speech and expression. The petitioner further argues that the amendment overlooks national security by dropping the phrase ‘tends to overthrow the State’. This has raised concerns given the current threats from radicalism, terrorism, and religious fundamentalism.
Protection for Sections of the Indian Penal Code
The problematic insertions in the amendment provide protection for several sections of the Indian Penal Code, including sedition, promoting enmity between different groups, deliberate and malicious acts meant to outrage religious feelings, and statements that lead to public mischief, from unconstitutionality.
Arguments for Voiding Parts of the First Amendment
The plea urges the court to declare Section 3 (1)(a) and 3 (2) of the First Amendment as exceeding the Parliament’s power to amend. They contend these sections harm the Constitution’s basic or essential features and destroy its fundamental structure.
About the Constitution First Amendment Act, 1951
The First Amendment was passed in 1951 by the Provisional Parliament, whose members had recently completed drafting the Constitution. The amendment changed several articles in the Constitution, added a Ninth Schedule to protect land reforms and other laws from judicial review, and inserted Articles 31A and 31B after Article 31. The immediate reasoning behind the amendments emerged from a string of judgements that deemed certain laws incompatible with the right to freedom of speech.
Implications of the Amendments
The Ninth Schedule, introduced by the first amendment act 1951, has been widely criticized for its misuse. Laws listed in this schedule cannot be challenged on the grounds of violating fundamental rights of citizens, allowing the State considerable power with respect to acquiring estates or taking over properties in the public interest. This has led to numerous political debates about the relevance and efficacy of democracy.
The Road Ahead
The power to propose amendments lies with the Parliament/Executive, often used to assert its supremacy. The Supreme Court’s role becomes crucial as it interprets and evaluates these judgements. It falls on the judges to limit or declare unconstitutional any arbitrary and flawed amendments. In light of these controversies and heated discussions, revisiting the amendment to rectify its shortcomings is seen as a positive step towards upholding democracy. The UPSC Civil Services Examination also included a previous year question regarding the introduction of the Ninth Schedule.
