By R Vaidyanathan
There has been huge consternation and hand-wringing by legal and other experts about section 66A of the Information Act 2000, as amended in 2008, and which got the presidential assent on 5 February 2009. This bill, and several others, were passed on 23 December 2008, the last day of the winter session of the 14th Lok Sabha in seven minutes flat.
The way the Act is worded, many experts feel it is ultra vires the Constitution’s Article 19(1)(a), which enshrines freedom of speech. The Supreme Court is currently hearing a petition on it and it has issued notices to state governments like Maharashtra and also the Centre. The next hearing is scheduled for 14 January 2013.
The issue is much more deep rooted and ingrained in our governance system and was originally planted by Jawaharlal Nehru, who introduced the first amendment to the constitution to curtail press freedom.
In the debates surrounding the first amendment to the Indian Constitution, Nehru came under severe attack from opposition leaders for compromising the right to free speech and opinion. Two court decisions in 1949, upholding the right to free speech by people on the far right and far left impacted him.
The cases involved Romesh Thapar, in which the Madras government, after declaring the Communist party illegal, banned the Left leaning magazine Crossroads as it was sharply critical of the Nehru government. The court held that banning a publication on the ground of threat to public safety or public order was not supported by the constitutional scheme since the exceptions to 19(1)(a) were much more specific and had to entail a danger to the security of the state.
The other case related to an order by the Chief Commissioner, Delhi, asking Organiser, the RSS mouthpiece, to submit all communal matters and materials related to Pakistan to scrutiny.
It was in this context that Nehru’s government decided to amend the Constitution inserting the words ‘public order’ and ‘relations with friendly states’ into Article 19(2).
More than the amendments, it is the intolerance exhibited by Nehru for his opponents in the Lok Sabha during the debate which is much more frightening.
Let us quote him from a Time magazine report of 28 May 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 US.
A further quote:
“Prime Minister Nehru got his law to curb India's press. Voting 228 to 20, Parliament amended the 1949 constitution, which guaranteed freedom of speech and expression to all citizens. Under the amendment, the government may introduce laws fining newspapers for ‘defamation or incitement to an offense.’ The courts will set the penalties.
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...
The fury with shaking fists exhibited by Nehru was carried forward by his daughter Indira Gandhi when she imposed an internal emergency and introduced comprehensive censorship of the media and, unfortunately, most of our media” crawled when asked to bend.”
In addition to the common man, the judiciary and the media bore the maximum brunt of the impact of the emergency. The Supreme Court, by a majority of four to one, held that a person could be arrested or detained without legitimate grounds and there was no remedy in the law courts since all fundamental rights were suspended. The attorney-general of India argued — a citizen could be killed illegally and no remedy was available since there were no fundamental rights of the citizen any more.
Censorship was imposed on newspapers and barring a few, like The Indian Express, other newspapers did not have the courage to defy the censorship orders.