Musings on Right to Free Speech & Privacy Narasimhan Vijayaraghavan Origins and Debate in Constituent Assembly

 

 

Musings on Right to Free Speech & Privacy

Narasimhan Vijayaraghavan

  • Origins and Debate in Constituent Assembly

 

There were 299 members in the Constituent Assembly. It began on December 7,1946 and Constitution was adopted on November 26th,1949. There were 166 sessions or days used. Over 13 lakh words were expensed. There was a separate and specific Sub Committee on Fundamental Rights. The Constituent Assembly had appointed an advisory committee on fundamental rights headed by Sardar Vallabhbhai Patel on January 24, 1947. This advisory committee dealt with the rights of citizens, minorities, tribal and excluded areas.

 

The first explicit demand for the fundamental rights came in the form of the “Constitution of India Bill, 1895″ which was created under guidance of Bal Gangadhar Tilak. This bill popularly called “Swaraj Bill 1895” spoke about freedom of speech, right to privacy, right of franchise etc. After that numerous drafts had been created.  In the Madras session of 1927, a resolution was adopted to draft a “Swaraj Constitution” for India. The Motilal Nehru Report of 1928 demanded inalienable fundamental rights for the people of India. It was basically inspired by the American bill of rights, which had a great impact on the thinking of Indian Leaders. The Motilal  Nehru report was discarded by Simon Commission.

 

The  Tej Bahadur Sapru committee report was published in 1945.” A comprehensive declaration of fundamental rights should be incorporated in the future constitution of India assuring (a) the liberties of the individual; (b) the freedom of Press and association; (c) equality of rights of citizenship of all nationals irrespective of birth, religion, colour, caste or creed; (d) full religious toleration, including non-interference in religious beliefs, practices and institutions; (e) protection to language and culture of all communities. It should further contain specific declarations on the lines indicated in the reports of the Scheduled Castes and Minority Sub-Committees, for the complete abolition of disabilities imposed by tradition and custom on the Scheduled Castes and the safeguarding of special religious customs like wearing of Kirpans by the Sikhs. The precise formulation of these rights should be undertaken by a special committee of experts at the time of the framing of the new

 

This committee divided fundamental rights into two parts viz. Justiciable  Rights and Non-Justiciable  rights. The Justiciable  rights were those enforceable by a court of law. These enforceable rights were incorporated in the Part III of the Constitution. The non-justiciable rights were incorporated as a directive to the state to take all measures to provide those rights to individuals without any guarantee. They were incorporated in the part IV of the constitution and were called Directive Principles of State Policy. DPSP was a guiding star for the State on Governance principles in framing legislations and executive policy making.

 

To quote Gautam Bhatia on Ambedkar’s speech on December 1,1948 vis a vis fundamental rights chapter and contextually the freedom of speech and expression, “ On the 4th of November, 1948, at the end of a day that had been full of long and often bitter procedural wrangles, the President of the Constituent Assembly finally called upon Dr. B.R. Ambedkar to introduce the Draft Constitution of India.Ambedkar’s speech marked the culmination of not simply a long and exhausting day, but also of a year and a half of arduous discussions, debates and drafting. The Constituent Assembly had first considered and debated the proposals of its Sub-Committees from April 1947. At the end of August, the Drafting Committee was constituted. It took seven months to complete its task. By February 1948, the final document was placed before the public for eight months. So when Ambedkar stood up to introduce the Draft Constitution, and – in his words – to ‘meet the criticism… leveled against it’, the battle-lines had long been staked out, and the combatants entrenched in their respective positions.

 

The Constitution’s chief architect was now going to raise the stakes: the document he was introducing would become the Constitution of India, subject to whatever changes and amendments members of the Constituent Assembly could muster up enough support for. Ambedkar’s introductory speech would lay out the broad contours of the debate that would follow for more than a year, before the Constitution was finally adopted.

It was a remarkably wide-ranging speech, moving between different constitutional systems, institutions and structures, considering the role of the executive in the United States, parliamentary accountability in the United Kingdom, flexible federalism in Australia, the words of the historian Grote, the Irish resistance, and the consolidation of Bismarck’s Germany. It was only at one point, however, that Ambedkar felt the necessity of invoking a judgment in his support. The topic was the restriction of fundamental rights. The judgment was the opinion of the United States Supreme Court in Gitlow vs New York.Ambedkar stated, “ It is wrong to say that fundamental rights in America are absolute. The difference between the position under the American Constitution and the Draft Constitution is one of form and not of substance… in support of every exception to the fundamental rights set out in the Draft Constitution one can refer to at least one judgment of the United States Supreme Court. It would be sufficient to quote one such judgment of the Supreme Court in justification of the limitation on the right of free speech contained in Article 13 of the Draft Constitution. “

 

In Gitlow Vs. New York in which the issue was the constitutionality of a New York “criminal anarchy” law which purported to punish utterances calculated to bring about violent change, the Supreme Court said: “It is a fundamental principle, long established, that the freedom of speech and of the press, which is secured by the Constitution, does not confer an absolute right to speak or publish, without responsibility, whatever one may choose, or an unrestricted and unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom.”

 

Now read what Thakur Dass Bhargava, a fellow member abs eminent Supreme Court advocate then, said on the need to impose ‘reasonable restrictions’ over the fundamental rights.  “ As regards the amendment for the addition of the word ‘reasonable’ I will beg the House kindly to consider it calmly and dispassionately. We have heard the speeches of Sardar Hukam Singh and Mr. Mahboob Ali Baig. Both of them asked what would happen to the Fundamental Rights if the legislature has the right to substantially restrict the Fundamental Rights? That is quite true. Are the destinies of the people of this country and the nationals of this country and their rights to be regulated by the executive and by the legislature or by the courts? This is the question of questions. The question has been asked, if the Legislature enacts a particular Act, is that the final word? If you consider clauses (3) to (6) you will come to the conclusion that, as soon as you find that in the Statement of Objects and Reasons an enactment says that its object is to serve the interests of the public or to protect public order, then the courts would be helpless to come to the rescue of the nationals of this country in respect of the restrictions. Similarly, if in the operative part of any of the sections of any law it is so stated in the Act, I beg to ask what court will be able to say that, as matter of fact the legislature was not authorised to enact a particular law. My submission is that the Supreme Court should ultimately be the arbiter and should have the final say in regard to the destinies of our nationals. Therefore, if you put the word ‘reasonable’ here, the question will be solved and all the doubts will be resolved.

 

Sir, one speaker was asking where the soul in the lifeless article 13 was? I am putting the soul there. If you put the word ‘reasonable’ there, the court will have to see whether a particular Act is in the interests of the public and secondly whether the restrictions imposed by the legislatures are reasonable, proper and necessary in the circumstances of the case. The courts shall have to go into the question and it will not be the legislature and the executive who could play with the fundamental rights of the people. It is the courts which will have the final say.

 

Therefore my submission is that we must put in these words “reasonable” or “proper” or “necessary” or whatever good word the House likes. I understand that Dr. Ambedkar is agreeable to the word “reasonable”. I have therefore put in the word “reasonable” to become reasonable. Otherwise if words like “necessary” or “proper” had been accepted, I do not think they would have taken away from but would have materially added to the liberties of the country. Therefore I respectfully request that the amendment I have tabled maybe accepted so that article 13 may be made justiciable. Otherwise article 13 is a nullity. It is not fully justiciable now and the courts will not be able to say whether the restrictions are necessary or reasonable. If any cases are referred to the courts, they will have to decide whether restriction is in the interests of the public or not but that must already have been decided by the words of the enactment. Therefore the courts will not be able to say whether a fundamental right has been infringed or not. Therefore my submission is that, if you put in the word “reasonable”, you will be giving the courts the final authority to say whether the restrictions put are reasonable or reasonably necessary or not. With the words, I commend this amendment to the House.” That is how the Art.19(1)(a) was construed by our founders.

 

Allusion to free speech and expression origins,  as a constitutionally mandated fundamental right may suffice with these minuscule references to the debates in the Constituent Assembly. That,in the context of this work as a storybook of the landmark decisions is all we may need to confine ourselves to. Or so I believe.

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