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Arudra Burra, Princeton University (aburra@princeton.

edu) December 7, 2008


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Arguments from Colonial Continuity: The Constitution (First


Amendment) Act, 19511
I. Introduction

I will use the term “an argument from colonial continuity” to describe any argument against an
institution, an idea, a policy, or a law, in which the fact that such an idea is continuous with,
associated with, or representative of, colonial rule is used as a reason that counts against it. Such
arguments are familiar in current political discourse: think of the way in which opposition to s. 377
of the Indian Penal Code is sometimes framed, or of one mode of criticizing repressive anti-terrorism
laws.2 In each case the charge that the law being criticized is a “colonial law” is meant as more than a
pejorative term, or simply an indication that the law in question is dated. Just what the implied
criticism consists in is not always made clear, but it is not hard to see how it might be spelled out:
that the law in question is illegitimate because it could only have been passed by an authoritarian
state, that it is somehow fundamentally anti-democratic in nature, and so forth.

Of course the same may be said for institutions, people, and ideas, as well. And it is a familiar charge
that many of our laws and institutions do indeed display a great deal of continuity with the Raj. The
members of the Constituent Assembly had been elected under the Government of India Act, 1935,
which was a British statute. The structure of the judiciary and the administration was retained
essentially unchanged after Independence, with more or less the same personnel (much to the chagrin
of some commentators, who wished, for instance, that the Indian Civil Service had been swept away
along with the “other cobwebs of colonial rule.”). 3 The judges of the first Supreme Court were all

1
This is a revised and condensed version of a paper written for President Aharon Barak in a seminar at the Yale Law
School in May 2007. In addition to him, I’d like to thank the following people for helpful comments, conversation,
and references: Yael Berda, Professor Andre Beteille, Anuj Bhuwania, Jessica Boyd, Rohit De, Deborah Dinner,
Mathew John, Siddharth Narrain, Vikram Raghavan, Bhavani Raman, Daniel Rothschild, Jeff Redding, Professor
Peter Schuck, and Arkaja Singh. Thanks also to the Program in Law and Public Affairs at Princeton University, and
the Annual South Asia Conference at the University of Wisconsin-Madison, for providing me the opportunity to
present this work.
2
See, e.g. Anil Kalhan, Gerald P. Conroy, Mamta Kaushal, Sam Scott Miller, and Jed S. Rakoff, “Colonial
Continuities: Human Rights, Terrorism, and Security Laws in India,” Columbia Journal of Asian Law 20.1 (2006):
93-234.

S. 377 of the Indian Penal Code criminalizes consensual same-sex sodomy, and has been challenged as
unconstitutional in a Public Interest Litigation (PIL), pending in the Delhi High Court (Naz Foundation vs. Govt.
of NCT of Delhi & Ors., civil writ petition 7455/2001). The petition notes that s. 377 is a “vestige of the colonial
order,” and in written submissions to the Court, the Alternative Law Forum argues that “While disgust and
revulsion may have been a valid ground for colonial rulers to legislate by decree, it is clearly not the case in a
civilized society governed by a Constitution.” (My thanks to Siddharth Narrain for making these available to me).
So arguments from colonial continuity have a great deal of contemporary resonance.
3
“ The Problem,” in Seminar 84 (1966), 11, quoted by David Potter, India’s Political Administrators (Oxford:
Oxford University Press, 1986). Potter provides an excellent account of the institutional continuities across
Independence of the Indian Civil Service.

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serving members of the Federal Court when they were appointed to the Supreme Court; British judges
continued in the High Courts well into the 1950s, as did many members of the Armed Forces.

In addition to continuity of personnel, there was a great deal of institutional continuity. 4 As W. H.


Morris-Jones points out, the idea that India should be governed by a Parliamentary system of
Government, on the Westminster model, was more or less taken for granted in the Constituent
Assembly. 5 The Constitution itself was modeled in large measure on the Government of India Act,
1935, as Ambedkar acknowledged on the floor of the Constituent Assembly when he introduced the
Draft Constitution on November 4, 1948:

One likes to ask whether there can be anything new in a constitution framed at this hour in
the history of the world.

As to the accusation that the Draft Constitution has produced a good part of the provisions
of the Government of India Act, 1935, I make no apologies. There is nothing to be ashamed
of in borrowing.6

Ambedkar was here being quite forthright in claiming that arguments from colonial continuity could
be disregarded in deliberations about institutional design for post-Independence India. In this he was
unusual. As I will argue, such arguments played a crucial role in constitutional debate in this period.
This claim is based on a detailed study of discussions concerning the right to freedom of speech and
expression in the Constituent Assembly, the Courts, and Parliament between the years 1946-51.

The topic is of special interest because these debates culminated in the first amendment to the Indian
Constitution, enacted by the Constitution (First Amendment) Act, 1951. 7 This Act sought to
overrule rulings by the High Courts and the Supreme Court to the effect that laws governing press
censorship and “public order,” on the one hand, and zamindari abolition and land reforms on the
other, were unconstitutional because they were inconsistent with the Fundamental Rights enumerated
in Part III of the Constitution. 8 Press censorship laws ran afoul of Art. 19(2) of the Constitution,
which granted a limited set of exceptions to the right to freedom of speech, while land reform laws
were held to conflict with the right to property guaranteed by Art. 31 of the Constitution.

4
A fact which many commentators have found remarkable. See, for instance, H. C. L. Merillat, Land and the
Constitution in India (New York: Columbia University Press, 1970).
5
Parliament in India, London: Longmans (1957).
6
B. Shiva Rao, ed., The Framing of India's Constitution: Select Documents IV, 427-8 (4 vols., Delhi: Indian
Institute of Public Administration, 1966-68). (Henceforth abbreviated as ‘BSR’).
7
I will occasionally refer to this as the First Amendment Act. Of course, what was debated in Parliament was not
the Act (which is a term reserved for legislation that has been accepted by Parliament), but over the Constitution
(First Amendment) Bill. Where there is no room for confusion, I will sometimes use the terms “Act” and “Bill”
interchangeably.
8
The Act also sought to amend the non-discrimination clause in Art. 15(1) of the Constitution.

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The debates on the Bill were among the longest, and the most contentious, of all Parliamentary
Debates to take place in the immediate aftermath of the Constitution's adoption; and it was the first
in which constitutional issues were at the forefront. In this paper I wish to examine these debates and
the Court cases which, according to the Government, had prompted the amendments in the first
place.

I will concentrate on the discussions around freedom of speech in Art. 19 of the Constitution. In
some ways this was the most contentious of the three fundamental rights which the Bill sought to
amend. There was a great deal of consensus within Parliament about the overall aims of policies
regarding land reform (in particular, those regarding the abolition of zamindari estates), and the role
of the State with respect to compensatory discrimination: the quarrels were, by and large, on matters
of detail. Land reform legislation had been challenged in various states as violative of Art. 31, but
only in the Patna High Court had it actually been struck down (though on other grounds): the matter
had not reached the Supreme Court at the time the amendments were proposed.9 And while the
Supreme Court had struck down caste-based reservations for Government professional colleges in
Madras on the grounds that these violated Art. 29(2), the facts of the case were relatively narrow.10

My aim in this paper is two-fold. First, as I indicated, I am interested in the role that “arguments
from colonial continuity” played in debates around the Constitution in these years. But I also think a
study of these debates can tell us something about how different institutional actors – in the
Constituent Assembly, the Courts, and Parliament – conceived of their proper place within the
Constitutional scheme: who had ultimate authority to interpret the Constitution? What was the
proper scope of judicial review? What was the relationship between Parliament and the Government?
So this paper is also a study of contests around “constitutional morality” at this early point in the
history of the Republic.11

As an account of constitutional morality in this period, I should emphasize four important ways in
which this study is limited. One limitation I have already noted, viz. that my discussion of the Bill is
limited to the debates around Art. 19. The second limitation is that I completely ignore

9
Merillat, Land and the Constitution in India (op. cit.) is an excellent study of these debates.
10
Art. 29(2) provides that “No citizen shall be denied admission into any educational institution maintained by the
State or receiving aid out of State funds on grounds only of religion, caste, language or any of them.” The Supreme
Court struck down the Madras ‘Communal Government Order’ in State of Madras v. Champakam (1951 AIR(SC)
226). The definitive work on the legal issues surrounding caste-based discrimination and reservation is Marc
Galanter, Competing Equalities: Law and the Backward Classes in India (Berkeley: University of California Press,
1985).
11
In the same speech I quoted above, Ambedkar spoke of the importance of a “constitutional morality” for the
effective functioning of a Constitution, and bemoaned the fact that

Constitutional morality is not a natural sentiment. It has to be cultivated. We must realize that our people
have yet to learn it. Democracy is only a top-dressing on an Indian soil, which is essentially undemocratic.

BSR IV, 427-8

It’s not clear to me just what he meant by this phrase, but my omnibus use seems to me as good an appropriation
of the term as any.

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Arudra Burra, Princeton University (aburra@princeton.edu) December 7, 2008
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Constitutional debates about preventive detention laws in this period, despite their obvious
connection to the issues discussed in this paper. 12 The third is that my discussion does not cover an
important institutional actor, viz. Nehru’s Government: it would be fascinating to study the debates
around the First Amendment Bill in Cabinet and amongst officials in the Ministry of Law at this
time. 13 Finally, I say nothing of how the lawyers and litigants who brought these cases regarded the
Constitution, the Fundamental Rights, or the laws they sought to challenge.

My paper is organized as follows. In §II I provide more information about the Bill and the particular
– and peculiar – institutional context in which it was introduced and discussed. In §III I examine the
debates around the right to freedom of speech and expression in discussions in the Constituent
Assembly: how did the shape of the right change in the course of the debate, and what sorts of
arguments were used to justify these changes?

I proceed to an examination, in §IV, of the cases in the High Courts and Supreme Court which led to
the First Amendment Act. What were the statutes in question, and why were they being litigated?
How did the Courts reason their way into the conclusion that these statutes were unconstitutional,
and what does their mode of reasoning tell us about how they conceived of their institutional role vis-
à-vis the other institutions of the State?

In §V I turn to the Parliamentary Debates around the First Amendment Bill in mid-1951. How did
the Government frame the need for such a Bill, and how did it try to articulate the proper role of the
Court with respect to Constitutional matters? What sorts of arguments were used to oppose the Bill?
I conclude, in §VI, with a summary of what we can learn from these debates about the use of
arguments from colonial continuity.

II. Background

A. The First Amendment Bill

12
There are many parallels. The post-Independence government justified both preventive detention and press
censorship laws on the grounds that they were required to “ maintain law and order” at a time of great unrest. In each
case Communists and right-wing Hindu groups were the primary targets of these laws. Preventive detention and
press censorship laws were both heavily debated in the Indian Parliament in 1950-51 (and before that in the
Constituent Assembly), and in each case the Government had to face the charge that they were re-enacting colonial
policies which should have been rejected after Independence. Both issues involved fundamental rights in Part III of
the Indian Constitution, and each was the subject of early constitutional deliberation by the Supreme Court. (The
first constitutional case which came before the Supreme Court was A. K. Gopalan v. State of Madras (AIR 1950 SC
27), which was decided on 19 May 1950, just four months into the new Constitution, and a week before the two
Supreme Court cases which struck down “public order” statutes on the grounds that they infringed the right to
freedom of speech). What is interesting, and worth studying further, is that the Court upheld the constitutionality of
preventive detention in Gopalan while rejecting the constitutionality of restrictions on freedom of speech.
13
These three sets of issues are treated to some extent in Granville Austin’s two magisterial studies of the Indian
Constitution: The Indian Constitution: Cornerstone of a Nation (New York: Oxford University Press, 1966) and
Working a Democratic Constitution: a History of the Indian Experience (New Delhi; New York: Oxford University
Press, 2003).

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The First Amendment Bill was introduced in Parliament because, as the Statement of Objects and
Reasons put it, “certain difficulties” had been brought to light in the last fifteen months of the
working of the Constitution, particularly with respect to the chapter on Fundamental Rights. In
particular

The citizen's right to freedom of speech and expression guaranteed by article 19(1)(a) has
been held by some courts to be so comprehensive as not to render a person culpable even if
he advocates murder and other crimes of violence. In other countries with written
constitutions, freedom of speech and of the press is not regarded as debarring the State from
punishing or preventing abuse of this freedom. 14

This part of the Bill was in response to two Supreme Court judgements, and a number of High Court
judgements, which had struck down various laws – the Press (Emergency Powers) Act, 1931, ss. 124-
A and 153 of the Indian Penal Code, and various “Public Safety” Acts on the grounds that they
violated the fundamental right to freedom of speech and expression guaranteed in Part III of the
Constitution. 15 This right was granted in Art. 19(1)(a) of the Constitution, subject to various
exceptions articulated in Art. 19(2):

19(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law in
so far as it relates to, or prevent the State from making any law relating to, libel, slander,
defamation, contempt of Court or any matter which offends against decency or morality or
which undermines the security of, or tends to overthrow, the State.

The legal question arising in these cases was whether the statutes in question related to any matter
which “undermines the security of, or tends to overthrow, the State.” In every case the statute in
question was struck down on grounds of overbreadth: that it allowed for a much greater scope of
restrictions on free speech than would be covered by this relatively narrow exception.

The claim that judicial decisions needed to be overturned because of the imperatives of public order
(in the case of Art. 19(1)(a)) and social reform (in the case of Art. 31) are familiar in any tussle
between Parliamentary or executive authority and the Courts. But the circumstances in which these
debates were conducted were anything but familiar. For one thing, the Constitutional provisions in
question had been discussed at great length during the deliberations of the Constituent Assembly in
1946-49; yet the Government sought to amend them only fifteen months after that Constitution
was adopted. Thus the Bill was criticized for the unseemly haste with which it was brought about:
without time for either public consultation or much deliberation within Parliament. 16

More importantly, the Amending Act gave an unusual degree of protection from judicial review to
the laws which had been struck down by the Courts. Art. 19(2) was amended to expand the range of
exceptions to the right to free speech, and was given retrospective effect, by “being deemed always
14
Statement of Objects and Reasons,. Unfortunately, I have not been able to procure a copy of the Bill as it was
originally presented to the Parliament; hence the section numbers given in this paper refer to the Bill as it was
finally passed. In most cases this does not make a difference, because it is possible to read back to the original Bill
from the amendments proposed an accepted during the course of the Parliamentary debates.
15
See Table 2 for a list of the cases and relevant statutes.
16
Or, in the case of Art. 31, by the Supreme Court.

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Arudra Burra, Princeton University (aburra@princeton.edu) December 7, 2008
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to have been enacted,” (s. 3(a), Amending Act); in addition, the amendment rehabilitated all laws
which had been declared void because violative of Art. 19(2) as it was originally enacted.17

B. The institutional context

If the content of the First Amendment Bill was unusual in a country which had just enacted a Bill of
Rights, the context in which the Bill was brought was also unusual. It will be helpful to review some of
the relevant institutional history in order to better understand this context. 18 In September 1945, the
Viceroy Lord Wavell announced the intention of the then just-elected Labour Government in Britain
convene a constitution-making body for India as soon as possible.19 As a first step, elections to the
Central and Provincial Legislatures were to be held in the winter of 1945-46. These would be
conducted under the terms of the Government of India Act, 1935 (25 & 26 Geo. 5.) and would be
based on a restricted franchise.20 As a result of the elections, the Congress won 90% of the votes cast
for the central legislature in non-Muslim seats, and came to form governments in eight Provinces.21

In March 1946 a Cabinet Mission was dispatched to India to work out further details for the creation
of a Constituent Assembly. The Cabinet Mission Plan was made public in May 1946. While it
recognized that the most satisfactory method in setting up such an Assembly would be by an election
based on adult franchise, it rejected this solution as unacceptably slow.22 Instead, it proposed that a
Constituent Assembly be elected indirectly by the Provincial Legislative Assemblies.23 On the basis of
17
The immunity from judicial review was even more striking in the case of rights with respect to the compulsory
acquisition of property. Laws which provided for the acquisition of estates could not be held void for conflicting
with any of the fundamental rights enumerated in Part III of the Constitution. (Art. 31A, inserted by s. 4, holds that
“...no law providing for the acquisition by the State of any estate or of any rights therein or for the extinguishment
or modification of any such rights shall be deemed to be void on the ground that it is inconsistent with, or takes
away or abridges any of the rights conferred by, any provisions of this Part.”) Acts and Regulations specified in the
Ninth Schedule to the Constitution were also held to be valid with retrospective effect, “notwithstanding any
judgement, decree or order of any court or tribunal to the contrary.” (Art. 31B, inserted by s. 5).
18
Some of what follows derives from Granville Austin, The Indian Constitution: cornerstone of a nation (New
York: Oxford University Press, 1966), 1-25.
19
For the text of the Viceroy’s broadcast, see BSR I, 145-46.
20
The Sixth Schedule to the Act provided a detailed specification of qualifications the holding of which would
entitle a person to vote in Provincial elections. These included qualifications with respect to taxation, property,
literacy, and military service (with variations specified in the Schedule for each Province). Members of the Federal
Assembly were chosen indirectly by voting in the Provincial Legislative Assemblies. In 1937, some 30 million
people – one-sixth of the adult population – had the right to vote under the terms of this Act (Metcalf and Metcalf, A
Concise History of India (Cambridge: Cambridge University Press, 2002), 193). Austin calculates that in 1946
roughly 28.5% of adults were eligible to vote in the Provincial elections. Austin, op. cit., 10.
21
The Muslim League won all 30 reserved seats in the central legislature, and all but eight of the 500 reserved seats
in the Provincial Assemblies. See Metcalf and Metcalf, op. cit., 209.
22
For the text of the Plan, see BSR I, 208-18.
23
The proposal was slightly more complicated than this, since the numerical strength of the Legislative Assemblies
was not proportional to the population of their Provinces; and the distribution of seats according to community

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this proposal, elections to the Constituent Assembly were held in July and August, 1946: of a total of
296 seats in the Assembly, 208 were held by Congress nominees, and 73 by the Muslim League.24
The inaugural session of the Constituent Assembly took place on 9 December 1946.

Under the terms of the India Independence Act, 1947 (10 & 11 Geo. 6.), the power of legislation, in
the first instance, would reside with the Constituent Assemblies of each of the new Dominions. 25 And
so on 15 August 1947 the Central Assembly (elected along with the Provincial Assemblies in 1945-
46) was dissolved, and the Constituent Assembly assumed legislative powers as well, sitting as the
‘Dominion Parliament’ in the mornings, and as the Constituent Assembly in the afternoons.26 After
the Constitution was adopted on 26 January 1950 and India ceased to be a Dominion, the Constituent
Assembly was dissolved, and what had been until then the Dominion Parliament was now known,
pending elections under the new Constitution, as the ‘Provisional Parliament’. 27

The relevance of this background is as follows. The first elections under the new Constitution were
not held until the winter of 1951, and so it was the Provisional Parliament which debated the First
Amendment Bill in May-June 1951. Though the Constitution granted Parliament broad amending
power in Art. 368, the Provisional Parliament had not itself been elected under the Constitution.
Since elections were around the corner, surely it would be better to wait for a new Parliament, elected
under a universal franchise, to amend the Constitution? So the institutional status of the Provisional
Parliament – the fact that it was provisional – was used to question the legitimacy of the First
Amendment.

On the other hand, as Nehru pointed out to critics who made this objection, the moral authority of
the Provisional Parliament to amend this constitution was not in doubt: for until January 1950, it
was the very same body, sitting as the Constituent Assembly, which had written the Constitution!
Who better to interpret the constitution, and amend it when the Courts had shown themselves to
interpret it incorrectly, than the very people who wrote the Constitution? This idea that Parliament
had a special moral authority -- derived not from its nature as a democratically elected body, but
from the fact that most of its members had been part of the Constituent Assembly -- was to be a
major theme in the debates that followed.

within each Assembly was not proportional to the relative proportions of the community within that population.
Paragraphs 18 and 19 of the Cabinet Mission Plan laid out the necessary adjustments.
24
As Austin points out, op. cit. 11-15, many of the Congress nominees were not in fact members of the Congress
Party. In November 1946, Jinnah formally disassociated the League from the Constituent Assembly, and so only
207 members took part at the inaugural session. The League never lifted this boycott.
25
S. 8(1) of the India Independence Act. The Act also specified (s. 8(2)) that the new Dominions and their Provinces
would be “governed as nearly as may be in accordance with the Government of India Act, 1935” unless the
Constituent Assembly deemed otherwise.
26
Austin, op. cit 8.
27
In Working a Democratic Constitution: a History of the Indian Experience (New Delhi; New York: Oxford
University Press, 2003), 5, Austin seems to suggest that the terms ‘Dominion’ and ‘Provisional’ Parliament can be
used interchangeably to describe this body both before and after the adoption of the Constitution. Here I believe he is
incorrect, because once India became a Republic it ceased to be a Dominion.

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Nehru also made arguments from colonial continuity based on the institutional history of the Courts.
The Constitution had a Bill of Rights, and Art. 13 gave Courts an implied right of judicial review.28
But in questioning the exercise of this power in the cases that led to the First Amendment Bill, Nehru
sought to undermine the Courts based on their institutional continuity with the Raj.29 These Courts
were staffed by judges who had been appointed by the British under the old regime and represented, so
Nehru claimed, “old ways of thinking.” In particular, they were static institutions, incapable of
responding to rapid changes in social conditions.

One can see the debate around the Bill functioning on two levels: first, as a debate about the
legitimacy of the two contending institutions, Parliament and the Supreme Court, to interpret or
amend the Constitution; and second, about the substantive merits of giving Parliament greater powers
to restrict the freedom of speech. The institutional debates were, I shall argue, framed around the two
arguments surveyed above: an argument from ownership, as well as an argument from dynamism; in a
sense, both involved elements of an argument from continuity – for it was the continuity of the
judiciary with the Raj that, Nehru claimed, rendered it suspect; and it was Parliament’s continuity
with the Constituent Assembly, and through it the freedom movement, that gave it the legitimacy to
enact the amendment.

The debate on the merits was perhaps more clearly couched in the language of colonial continuity.
For those who opposed the Bill invoked on their side the fact that the laws which the amendment
sought to protect were precisely those – the Press Acts, the sedition laws, and the public order laws –
which the British had used in order to suppress the freedom movement. But against this charge of
colonial continuity, Nehru had one of his own to offer: that it was those who opposed the Bill on
these grounds who truly betrayed the colonial mindset, for they shared with the British a distrust of
the capacities of Indians to rule themselves.

III. Freedom of Speech in the Constituent Assembly

The question of the proper scope of the Constitutional protection for freedom of speech and
expression had already been played out at several stages in the Constituent Assembly, a fact which
opponents of the First Amendment Bill pointed out with some regularity. The history of the
Fundamental Rights in the Constituent Assembly is a complicated one, and I will touch upon it only
briefly, in order to provide the necessary background.30

The task of framing the fundamental rights began with the constitution of an Advisory Committee
on January 24, 1947 (BSR II, 56). This Committee was further broken down into five sub-

28
Art. 13 specifies that laws inconsistent with the Fundamental Rights are void.
29
Amongst the “temporary and transitional” provisions of Part XXI of the Constitution, Art. 374 provided that
Judges of the Federal Court holding office immediately before the commencement of the Constitution would become
Judges of the Supreme Court (Art. 376 did the same with respect to the High Courts). All but one of the six justices
who were sworn in to the Supreme Court on 26 January 1950 had been judges in the Federal Court. Austin,
Working a Democratic Constitution, 124.
30
Granville Austin, The Indian Constitution: cornerstone of a nation (op. cit.) has a great deal of material on the
structure and function of the Constituent Assembly, as well as on the debates over Fundamental Rights. Shiva Rao,
The Framing of India’s Constitution (op. cit.) is an invaluable resource for some of the key documents and
discussions, as are, of course, the Constituent Assembly Debates.

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committees, of which one was the sub-committee on Fundamental Rights. This sub-committee sat
through the middle of April 1947, when it submitted a final report to the Advisory Committee. The
Advisory Committee in turn presented an interim report to the Constituent Assembly later that
month, where it was vigorously debated.

The second stage began in October 1947, when B. N. Rau, the Constitutional Adviser, prepared a
Draft Constitution based on the various Committee Reports and their discussion in the Assembly.
This in turn was discussed by the Drafting Committee chaired by Dr. B. R. Ambedkar, which
submitted a Draft Constitution to the President of the Constituent Assembly in February 1948.
Between February and October 1948, the Draft Constitution was circulated widely for public
comment, inviting the views of Provincial Legislatures, Ministries, the Federal and High Courts, and
the general public. These comments were then reviewed by the Drafting Committee, and subsequently
by a Special Committee constituted by the President. In October 1948, the Drafting Committee once
again reviewed the comments of the Special Committee, as well as the public, and issued a reprint of
the Draft Constitution along with amendments proposed in the light of the comments received.
Finally, this draft was introduced in the Constituent Assembly in November 1948, where it was
discussed for over a year before it was finally accepted.

As this summary indicates, opponents of the First Amendment Bill were right in pointing out that
these fundamental rights had been exhaustively discussed for several years prior to the adoption of
the Constitution. Table 1 provides an outline of how these debates affected Art. 19(1) and 19(2) as
they finally took shape (I have highlighted in boldface what I take to be the most important changes
with respect to my concerns in this paper).

Table 1: The changing shape of the right to freedom of speech

Draft Provision

9. There shall be liberty for the exercise of the


following rights subject to public order and
morality:
Draft Report of the Sub-
(a) The right of every citizen to freedom of
committee on Fundamental
speech and expression.
Rights, April 1947 (BSR II,
138) The publication or utterance of seditious,
obscene, slanderous, libellous or defamatory
matter shall be actionable or punishable in
accordance with law.

10. There shall be liberty for the exercise of the


Final Report of the Sub- following rights subject to public order and
Committee on Fundamental morality or to the existence of grave
Rights, April 1947 (BSR II, e m erg ency declared to be such by the
172) Government of the Union or the unit concerned
whereby the security of the Union or the unit,

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as the case may be, is threaten ed…

8. There shall be liberty for the exercise of the


following rights subject to public order and
morality or to the existence of grave emergency
declared to be such by the Government of the
Union or the Unit concerned whereby the
security of the Union or the Unit, as the case
Interim Report of the Advisory may be, is threatened:
Committee, April 1947 31
(a) The right of every citizen to freedom of
speech and expression:

Provision may be made by law to make the


publication or utterance of seditious, obscene,
blasphemous, slanderous, libellous or defamatory
matter actionable or punishable.

15. (1) There shall be liberty for the exercise of


the following rights subject to public order and
morality, namely:

(a) the right of every citizen to freedom of


speech and expression;

Draft Constitution prepared by (2) Nothing in this section shall restrict the
B. N. Rau, October 1947 (BSR power of the State to make any law or to
III, 8-9) take any ex ecutive action which under this
Co nstitution it has power to ma ke or to
take, during the period when a
Procla matio n of Emerg ency issued under
sub-section (I) of section 182 is in force, or,
in the case of a unit during the period of any
grave emergency declared by the Government of
the unit whereby the security of the unit is
threatened.

13. (1) Subject to the other provisions of this


Draft Constitution prepared by article, all citizens shall have the right –
the Drafting Committee and
submitted to the President of (a) to freedom of speech and expression;
the Constituent Assembly,
February 1948 (BSR III, 522) …

Nothing in sub-clause (a) of clause (1) of this

31
Constitutional Assembly Debates III:2, annexure (Tuesday 29 April 1947). Henceforth abbreviated as ‘CAD’

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article shall affect the operation of any existing


law, or prevent the State from making any law,
relating to libel, slander, defamation, sedition or
any other matter which offends against
decency or morality or undermin es the
authority or foundation of the State.

13. (1) Subject to the other provisions of this


article, all citizens shall have the right –

(a) to freedom of speech and expression;


Draft Constitution introduced
in the Constituent Assembly in Nothing in sub-clause (a) of clause (1) of this
November 1948 (BSR IV, 39) article shall affect the operation of any existing
law, or prevent the State from making any law,
relating to libel, slander, defamation, sedition or
any other matter which offends against decency
or morality or undermines the security of, or
tends to overthrow, the State.

19. (1) All citizens shall have the right ---

(a) to freedom of speech and expression;

Revised Draft Constitution, (2) Nothing in sub-clause (a) of clause (1) shall
introduced and adopted in affect the operation of any existing law in so far
November 1949 (BSR IV, 755) as it relates to, or prevent the State from
making any law relating to, libel, slander,
defamation, contempt of Court or any matter
which offends against decency or morality or
which undermines the security of, or tends to
overthrow, the State.

I take the major alterations in the course of these deliberations to be the following:

1. Earlier formulations qualify the right to freedom of expression as “subject to public order and
morality.” In later formulations, this qualification is no longer built into the statement of the
right which all citizens are held to have, but rather, into a statement about the powers of the
State to legislate. These powers are now held to include issues “relating to” any matter which
“offends against decency or morality.” Note that the phrase “public order” does not appear
in the final version of Art. 19(2).
2. The word “sedition” is removed from the list of qualifications to the right at a rather late
stage (in the revised Draft Constitution introduced in November 1949).

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3. The fact that the right is qualified during times of Emergency is introduced explicitly in the
Final Report of the Sub-Committee on Fundamental Rights (April 1947). This provision is
removed in the Draft Constitution presented to the President of the Constitutional
Assembly in February 1948.
4. The phrase “undermines the authority or foundation of the State” is replaced by “undermines
the security of, or tends to overthrow, the State.”
5. In later drafts, the scope of the State’s power to make laws is left quite open-ended by means
of the phrase “relating to.”

In a way my interest is less in these changes than in the sorts of arguments that were used in these
discussions, since they pre-figured the arguments made in Parliament in 1951. The advocates of
strong constitutional protections for speech and expression were concerned about Executives in the
future acting like the British in the past, and using press censorship laws to curb political dissent.
Those who denied that such protections were necessary did so on two grounds: (a) that press
censorship laws were necessary for the governance of India in the turbulent times that the country
was undergoing; and (b) that the executive would not misuse power since it was now under democratic
oversight. It was left to members in the political opposition – people such S. P. Mookerjee and
Somnath Lahiri -- to doubt the quality, and the good faith, of such oversight. 32

Thus Somnath Lahiri, in criticizing the interim report on fundamental rights, famously said that the
provisions seemed to have been framed “from the point of view of a police constable.”

Does Sardar Patel [then Home Minister of India, and the Chairman of the Advisory
Committee] want even more powers than the British Government -- an alien Government,
an autocratic Government which is against the people -- needs to protect itself? Certainly
not.

CAD III:2, 385-6

He was particularly critical of the provision on sedition:

Here according to Sardar Patel a seditious speech is a punishable crime. If I say at any time in
the future, or the Socialist Party says, that the Government in power is despicable, Sardar
Patel, if he is in power at that time, will be able to put the Socialist Party people and myself
in jail, though, as far as I know, even in England a speech, however seditious it may be, is
never considered a crime unless an overt act is done.

If I am in the opposition or if some one else is in the opposition it is certainly his business to
say that the existing government is despicable; otherwise he would not be in the opposition.
Why should my right to say that be curtailed and at the same time we should assume that
political opposition will grow and democracy will develop? It cannot; it will have to depend
on the sweet will and the tender mercies of the party in power or the executive in power.
That is not the basis of democracy.

32
And of course, it was the Communists and the Hindu right wing who bore the brunt of censorship restrictions in
the early post-Independence years.

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ibid.

When the Draft Constitution was being discussed in the Constituent Assembly in December 1948,
Damodar Swarup Seth argued that phrases such as “undermining the authority or foundation of the
State” were vague and over-broad: the implication being that they would be liable to misuse of
executive power. He also deplored the fact that the draft placed these rights “at the mercy or the
high-handedness of the legislature.” “It is therefore clear,” he said, that

under the Draft Constitution we will not have any greater freedom of the press than we
enjoyed under the cursed foreign regime and citizens will have no means of getting a sedition
law invalidated, however flagrantly such a law may violate their civil rights.

CAD VII, 712

The response from Congress members was that a democratically elected Government simply could or
would not be an engine of repression after the British manner: or at least that such repression as was
warranted under the circumstances would have been validated as expressing the will of the populace.
Thus, for instance, the statement of Algu Rai Shastri:

I submit that those who would sit in the legislatures would be representatives of the people
and they will impose only those restrictions which they consider proper. Such restrictions
would be in the interest of the people. Only those restrictions will be imposed which would be
necessary in the interest of public health, unavoidably necessary for the maintenance of
public peace and desirable from the viewpoint of public safety. No restriction will be imposed
merely to destroy the liberties of the people.

CAD VII, 767

The response to this line of thinking was proposed by Mr. Mohamed Ismail Sahib, while discussing
the question of personal liberty, and the extent to which it had been curtailed by Public Safety Acts
enacted and enforced across the country. 33

Now, Sir, another contention is being indulged in, and that is that it was different when the
Britisher, the foreigner was in the country and that now its [sic] is our own rule. True, but
that does not mean that we can deal with liberty of the citizens as we please. Bureaucracy is
bureaucracy, whether it is under foreign rule or self-rule. Power corrupts people not only
under foreign rule, but also under self-government. Therefore, Sir, the citizen must be
protected against the vagaries of the executive in a very careful manner as other self-
governing countries have done. 34

CAD VII, 725

33
As it happens, the first Supreme Court cases on constitutional protections of freedom of speech concerned such
acts -- the Madras Maintenance of Public Safety Act, and the East Punjab Public Safety Act. These are discussed
below.
34
A similar point was made by Sardar Hukum Singh, CAD VII, 733.

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To the extent that we can glean a “constitutional morality” from these debates, it seems clear that
the voices for specifically institutional protections for civil rights tended to be those of political
minorities: Muslims, Sikhs, Communists, and the Hindu right-wing. This is hardly surprising. But even
these structural or institutional points tended to be made in the language of colonial continuity: the
problem with the way in which the right to free speech was qualified was that protected laws would be
as liable to abuse under the new administration as they were under the British.

But even more significant than the structural argument against a strongly qualified right to free
speech was a symbolic worry: that the purpose of framing the right in this way was to protect laws
which had been enacted for repressive purposes by the British. T. T. Krishnamachari emphasized the
symbolic aspect of this debate in his discussion of K. M. Munshi's proposal to delete the word
‘sedition’ from Art. 13(2). While he was in favor of the amendment, he pointed out

The value of that amendment happens to be only, to a very large extent, sentimental. The
word ‘sedition’ does not appear therein. Sir, in this country we resent even the mention of
the word ‘sedition’ because all through the long period of our political agitation that word
‘sedition’ has been used against our leaders, and in the abhorrence of that word we are not by
any means unique.

CAD VII, 773

IV. Freedom of Speech in the Courts

A. The statutes

The statutes held void by the Courts in the 1950s were a diverse bunch. They included some, such as
the Indian Penal Code (1860) of venerable antiquity, and others, such as the Press (Emergency
Powers) Act, 1931 which were more intimately related to the suppression of anti-colonial
movements. Many of the other acts, however, were “Public Safety” or “Public Order” acts passed by
legislatures at both the Centre and the Provinces just after Independence to deal with the riots and
disturbances which followed Partition. Table 2 summarizes the impugned acts and the cases in which
they figured.

Table 2: Relevant Cases and Statutes

Madras Maintenance of Public Order Act, 1949 Ro mesh Thapar v. State of Madras 35

East Punjab Public Safety Act, 1949 Brij Bhushan v. State of Delhi 36

Press (Emergency Powers) Act, 1931 Amar Nath Bali v. The State37

Press (Emergency Powers) Act, 1931 In re Bharati Press38

35
AIR (37) 1950 Supreme Court 124 (Supreme Court, 26 May 1950)
36
AIR (37) 1950 Supreme Court 129 (Supreme Court, 26 May 1950)
37
AIR (38) 1951 Punjab 18 (Punjab High Court, 12 September 1950)
38
Also known as Shailabala Devi, AIR (38) 1951 Patna 12 (Patna High Court, 13 October 1950)

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Press (Emergency Powers) Act, 1931 Srinivasa v. State of Madras 39

Indian Penal Code, 1860 Tara Singh Gopi Chand v. The State40

The Indian Penal Code, 1860

“Sedition” was made a punishable offence under s. 124-A of the Indian Penal Code, as amended in
1870. An offender under this section was one who “by words, either spoken or written, or by signs,
or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or
excites or attempts to excite disaffection towards Her Majesty or the Crown Representative.” The
explanatory note to this section specifies that ‘the expression “disaffection” includes disloyalty and
all feelings of enmity.’ As we shall see below, the interpretation of s. 124-A was an important
ingredient of many of the decisions with which we are concerned.

In addition to s. 124-A, the Indian Penal Code also made it an offence to “promote enmity” between
different groups, on grounds of religion, race, place of birth, residence, and language (s. 153-A).

The Press (Emergency Powers) Act, 1931

The preamble to the Indian Press (Emergency Powers) Act (Act XXIII of 1931) proclaimed that it
was “An Act to provide against the publication of matter inciting to or encouraging murder or
violence.” 41 It was enacted in October 1931, at the height of the Civil Disobedience movement, and
the statement of objects and reasons made it clear that it was regarded as a tool against that
movement. It read

Experience has shown that propaganda in furtherance of subversive movements and of


crimes of violence is carried on by newspapers, leaflets, pamphlets, bulletins and the like.

The Act gave the Government a great deal of power with respect to press censorship. The principal
weapon in this regard was the power to require owners of printing presses and newspapers to furnish
security deposits on the basis of executive judgement. These could be forfeited if the press or
newspaper published material which met the criteria set down in s. 4 of the Act; if security deposits
had not been paid, the printing press could itself be forfeited on such grounds. The Act also
empowered the executive to declare all such material forfeited to the Government.

Initially s. 4 specified that these penalties were applicable to printing presses which were used to
produce material which could

(a) incite to or encourage, or tend to incite to or to encourage, the commission of any


offence of murder or any cognizable offence involving violence, or

(b) directly or indirectly express approval or admiration of any such offence, or of any
person, real or fictitious, who has committed or is alleged or represented to have committed
any such offence.
39
AIR (38) 1951 Madras 70 (Madras High Court, 2 November 1950)
40
AIR (38) 1951 Punjab 27 (Punjab High Court, 28 November 1950)
41
In what follows, I will occasionally refer to this as the ‘Press Act’.

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The Press Act was amended in 1932 by the Criminal Law Amendment Act (Act XXIII of 1932),
which made the link between press censorship and the suppression of the nationalist movement even
more explicit. The Statement of Objects and Reasons to that Act acknowledged that these
amendments to the criminal law were necessitated by the Civil Disobedience Movement, and claimed
that “it is no difficult matter to start or revive such subversive movements” in the absence of the
special powers it proposed to add to the existing criminal law. The preamble of the Indian Press
(Emergency Powers) Act was altered so that it was now described as “An Act to secure greater
control over the Press” (s. 14, Criminal Law Amendment Act). And s. 16 amended s. 4 of the Press
Act to include a variety of new grounds for the forfeiture of security deposits.42 Forfeiture now
applied to publications which tended, directly or indirectly,

d) to bring into hatred or contempt His Majesty or the Government established by law in
British India or the administration of justice in British India or any class or section of His
Majesty's subjects in British India, or to excite disaffection towards His Majesty or the said
Government, or

(f) to encourage or incite any person to interfere with the administration of the law or with
the maintenance of law and order, or to commit any offence, or to refuse or defer payment
of any land-revenue, tax, rate, cess or other due or amount payable to Government or to any
local authority, or any rent of agricultural land or anything recoverable as arrears of or along
with such rent, or

(g) to induce a public servant or a servant of a local authority to do any act or to forbear or
delay to do any act connected with the exercise of his public functions or to resign his office,
or(h) to promote feelings of enmity or hatred between different classes of His Majesty's
subjects

These were all clear references to the tactics employed by the Congress in the Civil Disobedience
movement. So there was some substance to the charge -- examined below -- that the Constitution
(First Amendment) Bill sought to resurrect laws which had been used to suppress the nationalist
movement.

Public Safety Acts

Finally, we come to the two statutes which were at issue in the Supreme Court cases of Ro mesh
Thapar and Brij Bhushan. Two features distinguish these statutes -- the Madras Maintenance of
Public Order Act, 1949, and the East Punjab Public Safety Act, 1949 -- from the ones considered
above. First, they were enacted by Provincial Governments, rather than by the Centre; second, they
were enacted after Indian independence in 1947. They were, nonetheless, quite restrictive. The order
in question in Romesh Thapar read

In exercise of the powers conferred by S. 9 (1-A), Madras Maintenance of Public Order Act,
1949 (Madras Act XXIII of 1949), His Excellency the Governor of Madras, being satisfied
42
Ss. 14 and 16 were repealed by the Repealing Act of 1938 (Act I of 1938).

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that for the purpose of securing the public safety and the maintenance of public order it is
necessary so to do, hereby prohibits, with effect on and from the date of publication of this
order in the Fort St. George Gazette the entry into or the circulation, sale or distribution in
the State of Madras or any part thereof of the newspaper entitled Cross Roads an English
weekly published at Bombay.

Romesh Thapar, AIR 1950 SC 126

While in Brij Bhushan the constitutional question arose with respect to the validity of S. 7(i)(c) of
the East Punjab Public Safety Act, 1949, which read

The Provincial Government or any authority authorised by it in this behalf if satisfied that
such action is necessary for the purpose of preventing or combating any activity prejudicial
to the public safety or the maintenance of public order may, by order in writing addressed to a
printer, publisher or editor –

(c) require that any matter relating to a particular subject or class of subjects shall before
publication be submitted for scrutiny.

Brij Bhushan, AIR 1950 SC 129

In these post-Independence statutes the focus shifts from ‘disaffection,’ ‘disloyalty,’ and incitements
or inducements to disobey the law, to more generic problems having to do with “public safety” and
“the maintenance of public order.” These Acts were not aimed at preventing or combating
expressions of opinion against the State (which was now Indian): the worry was now with respect to
expression which could lead to communal violence, as in the post-Partition riots.

Notice that these Acts gave the Executive a great deal of power. Whether or not a publication is such
as to pose a danger to public safety or public order is a matter much more open to discretion (and
therefore discretionary abuse), than, e.g., whether or not it incites people to disobey the law. These
Public Safety Acts also contemplated a high the degree of press control -- through pre-censorship (as
in Brij Bhushan) or complete blocks on circulation (as in Ro mesh Thapar). This degree of
continuous interference with the process of publication is absent in the Press Act and the Indian
Penal Code.

B. The cases

The appellate opinions tell us very little about the fact-situations that gave rise to the cases. Romesh
Thapar (future founder-editor of Seminar) was the editor, printer, and publisher of a journal called
“Cross Roads,” which was actually the weekly organ of the Communist Party of India, of which
Thapar was a member. 43 Brij Bhushan was the printer and publisher of the Organizer, the organ of

43
The petitioner in A. K. Gopalan v. State of Madras (AIR 1950 SC 27) -- a landmark case which upheld the
constitutionality of preventive detention laws -- was also a Communist leader; Sardar Patel, the Home Minister,
discussed the dangers of communism while justifying preventive detention laws in a heated Parliamentary debates in
1950 (Parliamentary Debates, Part II: vol. II:2, 874-927; 28 February 1950. Henceforth, Parliamentary Debates will
be abbreviate `PD').

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the Rashtriya Swayamsevak Sangh (RSS). Though the ban on the RSS was lifted in July 1949 after the
Government was satisfied that it would remain loyal to the national constitution, and see itself as
primarily a “cultural” rather than a “political” body, the Chief Commissioner of Delhi sought to
require prior scrutiny (under the terms of the East Punjab Public Safety Act) of the Organizer for the
publication of “communal matter and news and views about Pakistan including photographs and
cartoons other than those derived from official sources.” (Brij Bhushan, AIR 1950 SC 129, 134).

In Amar Nath Bali, the offending publication was a book entitled Now it Can be Told, written by the
petitioner in order to “to raise the conscience of the country, giving it a glimpse of the hell which
the prosperous and proud people of the North-West Pakistan had to suffer in those critical days and
to appeal to the leaders to learn from their past mistakes and take determined and suitable measures
in hand to undo the evil effects of the greatest ‘wrong’ of history.”(Amar Nath Bali, AIR 1951 Punj
18, 21). Two of the three judges on the Bench commented that the material was sufficiently
innocuous as not to reach the s. 4(1)(h) requirement at all (the third did not address the issue). T he
Chief Commissioner of Delhi ordered all copies of this book to be forfeited under s. 4(1)(h) of the
Press Act, which related to material which tended “to promote feelings of enmity or hatred between
different classes of His Majesty's subjects.”44

In Bharati Press, the State of Bihar had ordered the Press to pay a security deposit under s. 3(3) of
the Press Act, because the Press was being used to publish material which fell under the scope of s.
4(1)(a) of the Press Act. 45 The offending document was a leaflet entitled ‘Sangram’ (Struggle), which
seems to have advocated violent revolution of a somewhat unspecific sort. 46 Justice Sarjoo Prasad
concluded that it did fall within the scope of s. 4(1)(a), though he commented wryly that it was most
unclear just who the oppressor was supposed to be, and just what particular acts of murder or violence
were being advocated. However, he held, s. 4(1)(a) was itself voided on Constitutional grounds.47

44
The Commissioner had evidently forgotten to substitute “Government” for “His Majesty” in his initial order -- a
piquant example of the problems of transition with which the Government had to deal.
45
Recall that this clause related to material which tended to “incite to or encourage, or tend to incite to or to
encourage, the commission of any offence of murder or any cognizable offence involving violence.”
46
Justice Sarjoo Prasad's opinion quotes a number of passages (in translation) to give a flavor of its tone:

I am the cremation ground, I am the blood thirsty goddess Kali who lives and moves about in the
cremation ground. Plague or Famine is my great joy…I am thirsty, I want blood, I want revolution, I want
faith in the struggle. Tear, tear the chain of wrongs. Break, break thou the proud head of the oppressor.

If you are true, if you are the gift of God, if you are not a bastard, then come forward with a fearless heart to
struggle against the oppressor's improper conduct, oppression and injustice. We should not tolerate
wrongful oppression. Oh, thou the people, with the burning pain of thine heart burn the heart of oppressive,
highhanded oppressor. Let all wrongs, all highhandedness, all oppressions all tyrannies be burnt in the
flame.

In re Bharati Press, AIR 1951 Pat 12, 14-15


47
The opinion notes that this Constitutional argument was made at a very late stage of the hearing, during
arguments before the Court (AIR 1951 Pat. 13). The case had been filed in 1949, before the Constitution had come
into effect: another illustration of the difficulties of transition.

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In Srinivasa the facts are alluded to very briefly indeed. The case concerned two different petitions --
one from the keeper of a printing press who had been ordered to make a security deposit after the
District Magistrate found that a book of poems published by him came under the scope of s. 4(1)(a)
of the Press Act, and another from the publisher of a newspaper whose contents had been held to
come under s. 4(1)(d) of the Act. 48 While the Bench did find that some of the poems “incited
commission of offence of murder and encouraged commission of cognizable offences of violence,”
and that some of the newspaper articles did excite disaffection, hatred, and contempt towards the
Government, we learn nothing more about what the offending material contained, and what was
objectionable about it.

Finally, in Tara Singh, no mention is made at all of the contents of the offending speeches for which
the petitioner was prosecuted under ss. 124-A and 153-A of the Indian Penal Code. These speeches
would again have concerned the Partition, for Master Tara Singh had become an ineluctable
opponent of Pakistan at this time. 49

It is clear from this brief review that the situations in which press censorship was being applied were
not those for which the press censorship laws had originally contemplated. Though it is hard to say
so in the absence of further evidence, I imagine that the material relating to Partition did not
advocate the overthrow of the State, even though it may have questioned the legitimacy of the
Congress Government and violently disagreed with its policy vis-a-vis Pakistan. 50 It is hard to think
of this mode of speech as seditious, whatever else it might be -- for in a democracy, at least,
exhortations to undermine the Government are not exhortations to undermine the State. When, as
was the case under the British, the State and the Government are closely identified, all political
dissent carries with it the danger of sedition. It is, in Maurice Duverger's phrase, conflict about a
regime rather than conflict within a regime.51

I think it is fruitful to see the debates around Art. 19(2) in terms of Duverger's distinction. In the
original constitution, the only political restrictions on freedom of speech and expression were with
respect to matter which “undermines the security of, or tends to overthrow, the State.” This was
still, in some ways, on the colonial model: Constitutional restrictions on freedom of speech were still
directed at preventing expressions which attacked the legitimacy of the State. Yet after
Independence the Government found itself dealing with a great deal of -- often very violent –
48
This provision related to publications which tended, directly or indirectly, “to bring into hatred or contempt His
Majesty or the Government established by law in British India or the administration of justice in British India or
any class or section of His Majesty's subjects in British India, or to excite disaffection towards His Majesty or the
said Government.”

49
Hugh Tinker reports that he had been implicated in plans to assassinate Jinnah in 1947. See “Pressure,
Persuasion, Decision: Factors in the Partition of the Punjab, August 1947,” Journal of Asian Studies, 36:4, 695-
704 (Aug., 1977), p. 699.
50
I hasten to say that this is speculation on my part, since I do not know of the range of anti-Partition views that
were being held and expressed at this time: nor can I tell to what extent something similar is true of the Communist
literature published by Romesh Thapar.
51
Duverger makes this distinction in The Idea of Politics: the Uses of Power in Society; translated [from the
French] by Robert North & Ruth Murphy (London: Methuen, 1966). My thanks to Professor Andre Beteille for
bringing this to my attention.

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political conflict which was still “within” the regime, in the sense that it was not aimed explicitly at,
and did not directly have the effect of, either overthrowing the State or endangering its security. 52
The extent to which this politics was “within the regime” can be seen from the very fact that the
people prosecuted under these laws were content to use the Constitution in their defense! As I will
discuss below, the Courts always found that the use of press censorship laws against speech which
fomented this sort of violence was unconstitutional.

C. The judgements

The legal issue involved in all these cases is not complex, though Ambedkar -- erstwhile Chairman of
the Drafting Committee of the Constitution and Law Minister at the time of the First Amendment
Bill -- criticized the Supreme Court for having decided the issue incorrectly. 53 The Courts all agreed
that the right to freedom of speech and expression implied the right to freedom of the press, even
though this right did not find explicit mention in the Constitution. They also agreed that provisions
such as s. 9(1-A) of the East Punjab Safety Act, most sub-clauses of s. 4(1) of the Press Act, and s.
124-A of the Indian Penal Code, were prima facie restrictions on the freedom of the press.

The Constitutional question was simply this: were these impugned provisions saved by Art. 19(2) of
the Constitution? In particular, did they relate to matters which undermined the security of, or
tended to overthrow, the State? The answer, uniformly, was that these laws were overbroad: their
reach extended well beyond the narrow exceptions provided in Art. 19(2). Though Art. 13 of the
Constitution provided that laws inconsistent with the Fundamental Rights shall be void only to the
extent of their inconsistency, the Courts in general felt that the impugned provisions were not
severable, and had to be voided in their entirety. 54

The cases reveal three different kinds of arguments in favor of rendering these press restrictions
unconstitutional: a textualist argument, an originalist argument, and a jurisprudential argument. First,
as a matter of ordinary language, the terms “public order” and “public safety” were held to have a
wide connotation: for instance, anything which might prejudice public health might also be held to
prejudice public safety. Thus a Public Safety Act may be invoked to deal with minor breaches of the
peace, of a purely local significance, which cannot be said to undermine the security of the State. But
if that is the case then such an Act is unconstitutional, for it allows the restriction of speech on
grounds that are not enumerated in the Art. 19(2) exceptions.

The point was elaborated upon by Justice Sarjoo Prasad in Bharati Press, in a passage that came to
provide important ammunition to proponents of the First Amendment Bill, finding its way into the
Statement of Objects and Reasons:

Cases may be conceived where the publication may relate to murders or offences involving
acts of violence without any political motives and yet publications relating to murders or
offences involving acts of violence without any political motives and yet publications
52
It is not hard to see why a Government composed of a party which has for most of its existence engaged in conflict
about a regime should be disposed to see all political conflict in this light.
53
See §IV, below.
54
For a judgment on severability, see Justice Patanjali Sastri's majority opinion in Romesh Thapar, AIR 1950 124,
129.

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relating to such murders may come within the mischief of s. 4(1)(a) of the Act. Cases may be
conceived where directly or indirectly murders or acts of violence of that kind may be
approved or admired. Let us, for instance, take the case of an individual who is a terror in a
particular locality because of his being the head of a gang of dacoits and robbers. The man
may have been clever enough to escape the clutches of the law, yet the people in the locality
are so tired of him that pamphlets or leaflets are published inciting his murder or
assassination. It may also be that even after the man is murdered, the people of the locality
or some of them may publish documents approving the conduct of the murderer. Evidently,
these acts have been done not with any political motive, yet these publications come as much
within the mischief of s. 4(1)(a) and (b) as any other publication relating to crime of a
political character.

AIR 1951 Patna 12, 18-19

There was a second, “originalist,” argument in favor of holding these laws to be unconstitutional,
which had to do with the deletion of the word “sedition” from the draft of Art. 13(2) (ancestor to
19(2)), which I described earlier in §II. The claim proceeded on two independent grounds. First,
according to Sir James Fitzjames Stephen's influential Criminal Law of England, the essential
element of “sedition” was the disturbance of public tranquillity. 55 Had the Constituent Assembly
wanted to allow the State to restrict freedom of speech and expression in situations affecting public
tranquillity, it could have done so by retaining the word “sedition” among the Article 19(2)
exceptions. That it nevertheless chose to delete the word suggested that censorship was not regarded
as justified merely in order to preserve public order and safety.

Second, the famous decision of Queen-Empress v. Bal Gangadhar Tilak, re-affirmed by the Privy
Council in 1947, held that

the offence consisted in exciting or attempting to excite in others certain bad feelings
towards the Government and not in exciting or attempting to excite mutiny or rebellion, or
any sort of actual disturbance, great or small.

Romesh Thapar, AIR 1950 SC 123, 128

Given this construction of the word “sedition,” the fact that it was deleted suggested, to Justice
Patanjali Sastri, that

criticism of Government exciting disaffection or bad feelings towards it is not to be regarded


as a justifying ground for restricting the freedom of expression and of the press, unless it is
such as to undermine the security of or tend to overthrow the State.

55
The passage quoted by the majority in Romesh Thapar and the minority in Brij Bhushan reads

Unlawful assemblies, riots, insurrections, rebellions, levying of war, are offences which run into each other
and are not capable to being marked off by perfectly defined boundaries. All of them have in common one
feature, namely, that the normal tranquillity of a civilised society is in each of the cases mentioned
disturbed either by actual force or at least by the show and threat of it.

AIR 1950 SC 123, 128

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ibid.

The effect in both cases was to narrowly construe what might be meant by the phrase “undermine
the security of or tend to overthrow the State.” Speech that merely threatened the “normal
tranquillity of a civilised society” did not come under this exception, and so was protected by Art.
19(1). And speech directed at undermining the Government could not be restricted so long as it did
not (tend to) undermine the State.

Notice that both the textualist and the originalist arguments are in a sense highly conservative. In
making them, the Courts were not taking sides on the merits of censorship, or trying to articulate a
jurisprudence of free speech. The arguments are introduced as merely interpretative, as issuing in an
invitation to the legislature to fix the language of the statute or the Constitution to better achieve
the purposes it has set for itself.

There are glimpses, however, of what could become the basis of a constitutional jurisprudence of free
speech. Justice Patanjali Sastri noted in Ro mesh Thapar that

Thus, very narrow and stringent limits have been set to permissible legislative abridgement of
the right of free speech and expression, and this was doubtless due to the realisation that
freedom of speech and the press lay at the foundation of all democratic organisations, for
without free political discussion no public education, so essential for the proper functioning
of the processes of popular Government, is possible. A freedom of such amplitude might
involve risks of abuse. But the framers of the Constitution may well have reflected, with
Madison who was ‘the leading spirit in the preparation of the First Amendment of the
Federal Constitution’, that ‘it is better to leave a few of its noxious branches to their
luxuriant growth, than, by pruning them away, to injure the vigour of those yielding the
proper fruit.’

ibid., 129

Another argument on jurisprudential grounds was made by Justice Weston (a British judge) in Tara
Singh. He makes the point which I earlier described as an application of Duverger's distinction:

India is now a sovereign democratic State. Governments may go and be caused to go without
the foundations of the State being impaired. A law of sedition thought necessary during a
period of foreign rule has become inappropriate by the very nature of the change which has
come about.

AIR 1951 Punj 27, 29

In a sense, what Patanjali Sastri and Weston are doing here is provide the seeds of a doctrine of the
Constitutional protection of free speech on grounds, broadly speaking, of political philosophy: the
Constitution is being interpreted in the light of its being a Constitution for a democratic country.
But this is on the whole a muted tone in the decisions I have considered here.

In fact, it is remarkable how little there is in these decisions any recognition of the historic
significance of what the Courts were doing: interpreting the Constitution of a sovereign democratic
country which had just emerged from a long period of colonial rule. Only occasionally do we find
glimpses of this recognition. There is just a hint of a suggestion in Justice Panchapagesa Sastri's

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opinion in Srinivasa that the historical connection between press restrictions and colonialism is a
reason for striking them down. He writes:

The history of the press laws in India is well known…it is sufficient to say that the Press Act
of 1908 gave rise to an agitation in this country that the press laws were unduly oppressive
and the same was ultimately repealed on the recommendation of a committee. Consequent on
the starting of the Civil Disobedience Movement in 1931 as part of the struggle for the
attainment of Swaraj, the Governor-General passed an Ordinance in the first instance which
was ultimately replaced by this Indian Press (Emergency Powers) Act, 1931…What originally
started as a temporary measure to meet an emergency, was in 1935 made permanent, and
according to some, continued to disfigure the statute book of this country since then. 56

AIR 1951 Madras 70, 75

D. What the Courts are doing

I should like to point out three ways in which the Courts’ actions and opinions ought to seem
puzzling:

1. They are exercising judicial review over laws passed by legislatures with a great deal of
democratic legitimacy (based on participation in the anti-colonial movement, rather than on
universal suffrage), and claimed by a popular government to be essential to governing the
country at what is obviously a difficult time. Yet they do so without saying anything about
the proper scope and exercise of judicial power.

2. They are protecting the fundamental right to freedom of speech and expression while doing
very little to create a constitutional jurisprudence of the proper scope of the right, and the
values it serves.

3. They are doing so using interpretive strategies that are largely neutral with respect to politics
and political values. In fact, these interpretive strategies can hardly be said to determine the
outcome of the cases.57 For instance, it would have been easy enough to argue for an
expansive reading of the Art. 19(2) exception on textualist grounds. Texts should always be
read with an eye to avoiding “absurd” consequences; but what consequence could be more
absurd than the claim that the State had no power to proscribe speech advocating murder?58

56
There is a revealing moment earlier in the same opinion: while considering a hypothetical public recital of the
Pledge of Independence, Justice Sastri comments in passing that it is “happily not needed any longer.” AIR 1951
Madras 70, 75.
57
President Barak emphasized this point to me.
58
One point on which both minority and majority judgments often agreed, in dicta which made their way,
eventually, to the floor of Parliament, and into the Statement of Objects and Reasons of the First Amendment Bill,
was that a strict construal of the Romesh Thapar position would invalidate any law which prohibited the incitement
to violent crimes or murder. In adopting a narrow reading of the Art. 19(2) exceptions, the Supreme Court seemed
to have denied the Legislature the power to legislate over a vast array of topics relating to non-political aspects of
law and order. See, for instance, Justice Sarjoo Prasad's opinion in Bharati Press (AIR 1951 Patna 12, 21), and
Justice Kapur's opinion in Amar Nath (AIR 1951 Punjab 18, 26).

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And surely an “originalist” strategy of Constitutional interpretation could equally well have
followed Nehru’s line, and given special weight, in the interpretation of Constitutional
provisions, to the opinions of the people who wrote the Constitution?

How can one explain these puzzles? Before proposing some suggestions of my own, let me suggest a
line of argument that, while initially plausible, is I think ultimately unsatisfactory. This is the
thought that these judges were in some sense prisoners of their training, unaccustomed to reasoning
about democratic constitutional values because of their background as judicial officers serving a
colonial regime. This would be consistent with Burt Neuborne’s claim that “ The Court’s initial
philosophy of interpretation was narrowly positivist, hewing closely to the literal text and reading
each article of the Constitution as a self-contained unit.” 59

Neuborne bases this claim on the Gopalan decision, in which the Court declined to treat the Art. 21
restrictions on due process as imposing substantive constraints that could disqualify preventive
detention laws for violating the rights to free speech, freedom of movement, and equality. 60 To be
sure, the written opinion in Gopalan, as well as the opinions I have discussed above, provide ample
warrant for such a claim, and for the further inference that the first justices of the Supreme Court
were ideologically and methodologically conservative because they abjured any substantive discussion
of the value of basic civil rights.

But consider the following observations. First, even in Gopalan the Court, while declining to exercise
judicial review, asserted its authority to do so. 61 Second, even on originalist and textualist grounds,
there would have been ample scope for the Court to invoke language that could have been used to
articulate a more fully-voiced jurisprudence of free speech, e.g. in the Constituent Assembly Debates
I surveyed in §III. Fourth, even though the Courts may not have had actual experience of
interpreting a Constitution with a Bill of Rights, there was no dearth of material available from which
they could draw upon, e.g. in the free speech jurisprudence developed by the United States Supreme
Court. 62 So had they wished to strike down these laws on principled free speech grounds, they could
easily have done so. Fifth, to the extent that they were bound by their background as common law
judges, one would expect them to have a great deal of respect for the doctrine of Parliamentary
supremacy; and, under a colonial regime, one might expect them to defer to the Executive a great
deal as well.63 Yet, though they do not advertise their decisions as such, they are clearly asserting the
right to judicial review in the Art. 19 and Art. 31 cases.

59
Burt Neuborne, “The Supreme Court of India,” International Journal of Constitutiona Law 2003 1(3), 479. I am
grateful to Professor Peter Schuck for this reference.
60
Art. 21 (“Protection of life and personal liberty”) guarantees that “No person shall be deprived of his life or
personal liberty except according to procedure established by law.” The Court in Gopalan held, by a vote of four to
two, that this requirement would be met as long as the preventive detention statutes satisfied the purely procedural
requirements of Art. 22 (“Protection against arrest and detention in certain cases”). See Neuborne, op. cit.
61
Thanks to Rohit De for pointing this out to me.
62
Justice Patanjali Sastri’s opinion in Romesh Thapar makes clear that this jurisprudence had been brought to their
attention. (In any case, legal actors in this period made a great deal of use of comparative constitutional
jurisprudence, as one can see from the Constituent Assembly Debates, as well as the Gopalan opinion).
63
Though Rohit De’s paper in this panel casts some doubt on this assumption.

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Let me suggest an alternative explanation, based on the institutional ambiguity of the Courts’
position at this moment in time. 64 For a Court to exercise judicial review in terms of a constitutional
jurisprudence that is committed to the protection of rights, it must have a certain institutional
credibility. 65 One source of this credibility is legal expertise, a superior technical knowledge of how to
interpret the Constitution. Another source of credibility is a history of fighting for democratic
values, or for protecting “the rule of law”. But the High Courts and Supreme Court interpreting the
Constitution at this time lacked credibility of either kind. How to claim superior knowledge of what
the Constitution says than, as Nehru did not tire of pointing out, the very body that wrote it? And
how to claim democratic legitimacy of any sort when until recently the institution was an arm of the
British Raj? In a battle for such legitimacy, the Courts would lose easily to a Government,
Parliament, and Party which derived their legitimacy from the long association with the
Independence movement. So the Courts’ institutional history rendered them vulnerable to precisely
the kinds of “arguments from continuity” Nehru made against them during the Parliamentary
Debates:

Recall also the centrality of arguments from continuity to the opposition to restrictions on freedom
of speech in the Constituent Assembly (and, I’m sure, in the public sphere at large). An argument
from colonial continuity is especially charged when it is made against a person or party or
Government which has secured its own legitimacy through opposition to colonial rule. And it is
especially poignant when it is made by other participants in the same struggle – it has here the force
of a charge of betrayal: we fought all along for the same things, but now you are turning into the
very thing we (and you) once fought against. 66 Because the justices of the High Courts and the
Supreme Court had been, in some sense, agents of colonial rule, they lacked – as it were – the locus
standi to invoke arguments from colonial continuity.

So I think that the caution with which these judgements are written reflects a quite deliberate policy,
borne out of genuine (and justifiable) uncertainty as to where the Supreme Court stood with respect
to the Government and Parliament. And the fact that they refused to exercise judicial review in
Gopalan while asserting the right to do so, and exercised judicial review in Romesh Thapar without
asserting the right to do so, suggests to me that they were using this cautious approach to see how far
they could go. How would Government, Parliament, and the country as a whole react to their
constitutional decisions in these early cases? I suspect that this background issue has a great deal to do
with the language and content of these judgements.

It is, on reflection, an extremely ambivalent position to be in: how do you assert judicial
independence against a Government and Parliament which are in power on account of their
participation in the anti-colonial movement, without being tarred by the brush of an argument from
colonial continuity? Only, presumably, if you had a reputation for independence with respect to the
colonial government as well (and this, I take it, is something they lacked). So it strikes me that the

64
I should emphasize that what follows is pure speculation at this point.
65
Thanks to Professor Andre Beteille for making me see this point.
66
I think one can see this rhetoric very much at play in the debates in the Constituent Assembly and later on in
Parliament; hence the importance of figures like Pandit Kunzru and Acharya Kripalani, who once belonged to the
Congress fold but then abandoned it.

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Court is here navigating some very tricky waters with a great degree of delicacy and skill, so as to be
able to carve out a core of judicial independence without being charged with being anti-democratic. 67

V. Freedom of Speech in Parliament

On May 16, 1951, Nehru, proposed in Parliament that a Bill to amend the Constitution be placed
before a select committee. The Bill proposed to amend Art. 19(2) as follows (I have emphasized the
main changes that were sought to be made):

19. (2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law in
so far as it imposes, or prevent the State from making any law imposing, in the interests of
the security of the State, friendly relations with foreign States, public order,
decency or morality, restrictions on the exercise of the right conferred by the said sub-clause,
and in particular, nothing in the said sub-clause shall affect the operation of any
existing law in so far as it relates to, or prevent the State from making any law
relating to, contempt of court, defa mation or incitem ent to an offence.

PD v. XII, pt 2, 16 May 1951, col. 8827

It is important to remember that the central legal question in a Constitutional debate is not over the
legitimacy of this or that statute, but about the legitimacy of giving the Legislature the power to
enact a statute of a certain form. Nehru pointed out this distinction repeatedly during the debates in
Parliament over the First Amendment Bill, responding to the charge that his Government was
seeking to revive the hated “colonial laws;” the proposed Amendment only enabled future legislative
action. But critics responded that the only motivation to amend the Constitution with such haste was
to revive particular laws which had been struck down by the Supreme Court. In announcing that the
Government had the right to make certain laws, the Government was also conceding that it was
sometimes legitimate to do so.

So it is helpful to distinguish two issues. The first concerned the legitimacy of Parliament to amend
the Constitution in the first place. What authority did Parliament have to overturn the Supreme
Court judgements and amend the Constitution so soon after it had come into force, and so shortly
before the first elections under the new Constitution could be held? This sort of argument could be
made without reference to the pros and cons of censorship laws per se. The second issue concerned
the merits of the kinds of laws that the Amendment was designed to protect or resurrect. In this
section I will discuss each of these arguments in turn. I will argue that in each case, the notion of
colonial continuity had a central role to play.

A. On the legitimacy of Parliament to amend the Constitution

The first issue, then, related to the authority of Parliament to amend the Constitution. There were
two questions: first, could Parliament legitimately amend the Constitution? Second, what was the
proper scope of judicial review with respect to Constitutional matters?

On the first point, the Government could point to the legal authority granted to Parliament to
amend the Constitution, and to the moral authority granted by the fact that the Constituent
67
It would be an interesting exercise to compare what was happening here with the situation in Pakistan at the same
point in time.

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Assembly had been coextensive in membership with the Parliament. 68 In his speech on the initial
motion to refer the Bill, Nehru made this point explicitly:

Now, there is no doubt that this House has that authority. There is no doubt about that, and
here, I am talking not of the legal or constitutional authority, but of moral authority, because
it is, roughly speaking, this House that made the Constitution. We are not merely
technically, the inheritors of the fathers of the Constitution. We really shaped it and
hammered it after years of close debate. Now we have come to this House for amendments
because we have noticed some lacuna… It has been pointed out to us by judicial
interpretations that some of these lacunae exist.

ibid., col. 8816

In a reprise of arguments made earlier in the Constituent Assembly, Nehru argued that there was no
reason to worry about this increase in Parliamentary power, for such authority to enact repressive
laws would only be used in cases of severe crisis. To be suspicious of such power, was, by implication,
to be suspicious of democracy itself:

It is only here we seem not to rely on ourselves, not to have faith in ourselves, in our
Parliament or our Assemblies, and rely, just as some of us may have relied on external
authority like the British power of old days; we rely on some external authority -- maybe
geographically internal -- and not perhaps have faith in this Parliament.

ibid., col. 8825

Nehru is here applying the currency of arguments about continuity to ingenious effect. It is not the
Government which displays continuity with the colonial regime by trying to preserve laws enacted by
the British for the purposes of Press Censorship. It is the opponents of the Government who
exemplify this continuity: just as the British did not trust Indians to rule themselves, so too these
opponents do not put their trust in Parliament, but in “external authority,” i.e. the Courts.

In S. P. Mookerjee Nehru found the most eloquent defender of the right to freedom of speech. He
was also, of course, implacably opposed to Nehru himself, though he was at one time a member of
Nehru’s cabinet (he resigned because of differences arising with respect to Partition). His speech on
the initial motion to refer the Bill to a select committee provides an indication of this animus:

I do not know why he has thrown up this challenge. Is it due to fear? Does he feel that he is
incapable today to carry on the administration of the country unless he is clothed with more
and more powers to be arbitrarily utilised so that his will may be the last word on the subject?
Or is it his doubt in the wisdom of the people whose champion he has been all his life? Does
he feel that the people of India have run amuck and cannot be trusted with the freedom that
has been given to them? What is it that he has in his mind?69

68
Art. 368 of the Constitution gave Parliament wide power to amend the Constitution. The rationale for doing so
was articulated, in the Constituent Assembly,
69
Later speakers, such as Pandit Thakur Dass Bhargava claimed that this was a ‘political’ speech with an agenda
beyond the merits of the amendment itself (ibid., col. 8867).

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ibid., col. 8838

With this, I think the basic terms of the debate had been set, one in which colonial continuity (and
its surrogate, “suspicion of democracy”) played a crucial part. According to Nehru, opponents of the
amendment are suspicious of representative democracy, because they worry about the possibility that
such a democracy may throw up a Parliament which will proceed to repress them. According to
Mookerjee, it was the proponents of the amendment who were suspicious of democracy -- hence
their willingness to protect laws which could be used to suppress political dissent.

B. Parliament vs. the Courts

I noted, in the previous section, that though the Courts exercised the power of judicial review in
overturning laws restricting the freedom of speech, they made no explicit claims about the limits of
Parliamentary vs. judicial authority. So it’s interesting that so much of the debate in Parliament was
over the relative supremacy of Parliament over the Courts in Constitutional matters. In amending
the Constitution, Parliament was not merely making it easier to pass laws to deal with law-and-order
problems; it was also making an assertion of right, sending a signal to the Courts about who was boss
when it came to the Constitution. 70

Though Nehru claimed to acknowledge the “right and privilege of the highest Courts in the land” to
interpret the Constitution as they saw fit, his arguments tried to undermine their authority, in two
ways. The first was through an argument from ownership. This was not just the claim to the special
moral authority of this Parliament to amend the Constitution: it was also more generally a claim to
Parliamentary supremacy over the Courts. One aspect of this claim was an argument from colonial
continuity: the Courts lacked legitimacy because of their association with colonial rule; the judges
who presided in it were wedded to “old ways of thinking.”

The second was an argument from dynamism. Courts were not institutionally equipped to deal with
the challenges facing the country, because they were by nature static institutions, constrained, as
Nehru put it, to interpret “the written word in all its rigid aspects” (ibid., col. 8818). This precluded
them from adapting to the rapidly changing circumstances around them, and prevented them from
appreciating what needed to be done in order to advance a program of social reform. Deference to
Parliament was appropriate because the challenges were unpredictable and rapidly evolving.

And so the Government proceeded to justify the Constitutional amendments along three somewhat
inconsistent lines. According to the first, the Courts were simply mistaken in their interpretation of
the Constitution, and it was the task of Parliament to correct these judicial errors. Another line of
argument was to claim, not that the Courts had got constitutional interpretation wrong, but that their
(correct) interpretation of the Constitutional text showed that the Constituent Assembly had been
mistaken in its drafting – the Amendment was then designed not so much to change the
Constitution, as to fix certain lacunae in the original document. The third line of argument was to
suggest that, while neither the Courts nor the Constituent Assembly had made mistakes, the

70
One should recall that Nehru’s worry with respect to Art. 31 and the striking down of zamindari abolition laws
was perhaps even greater than his worry with respect to Art. 19. So the signal to the Courts may well have been to
go slow on these laws, since the Government would have predicted a great deal of future litigation from dispossessed
landowners. The prediction turned out to be accurate, though the Courts’ increasing willingness to strike down
these laws was perhaps unexpected.

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circumstances had changed so as to require changes in the Constitution in order to govern the
country at this difficult time. 71

The motion to refer to the Select Committee

As Nehru put it in a famous passage in his initial speech,

Many of us present here are lawyers and have had some training in law which is a good
training and many of us respect lawyers. But nevertheless a lawyer represents precedent and
tradition and not change, not a dynamic process. Above all, the lawyer represents
litigation…Somehow we have found that this magnificent Constitution that we have framed
was later kidnapped and purloined by the lawyers.

ibid., col. 8832

The passage illustrates both the argument from ownership (the Constitution has been “kidnapped”)
as well as the argument from dynamism. It was not, Nehru said, that he begrudged the fact that the
Constitution had become “a paradise for lawyers”: what he did object to was “the shutting of the door
and of barring and bolting it and preventing others from coming in.” (ibid.).

Nehru's charge of conservatism was directed at the Court as an institution. Professor N. G. Ranga
extended the charge to the judges who staffed the Court. He compared the Indian situation with that
of the US Supreme Court when it resistance the New Deal: this, he claimed, had held up Roosevelt's
progressive legislation until some of the errant Justices had retired:

Are we to be condemned to a similar plight? Are we even in regard to these very essential
matters to depend entirely upon the natural forces of the age of the Supreme Court Judges so
that some of those people might either die or might be obliged to retire before it would be
possible for our own Government to replace them by more progressive minded Supreme
Court Judges?

[W]e have to safeguard ourselves from the conservatism or from the fancies or for the social
matrices of these Supreme Court Judges, day to day and from time to time to the extent that
it is possible.

ibid., col. 8681

The response from Mookerjee was that the Supreme Court should not be framed, as Nehru tried to
do, as an alien institution (an “external authority”), one which represented some reactionary element
somehow opposed to the spirit of the constitution. The response makes clear the work that
arguments from colonial continuity were doing on both sides:

71
The decisions studied in the previous were the subject of much discussion and debate, not least because so many
of the members of Parliament were lawyers themselves. There were thus disputes about whether the decisions of the
Supreme Court had indeed left it open for people to get away with preaching murder. See, for instance, the exchange
between Pandit Balkrishna Sinha and S. P. Mookerjee (PD Pt II, v. XII, 16 May 1951, col. 8840).

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Here are a set of men who are selected by the Government. They are not foreigners coming
from outside. They are our own chosen selected men holding office during their life, entrusted
with the duty of seeing whether the country is being administered in the spirit of the
Constitution.

ibid., col. 8855

Not even Nehru had claimed that the Courts had simply got it wrong -- indeed, he was at pains to
admit the legitimacy of their interpretation of the Constitution. Ambedkar, however, had no
difficulty in saying that he found a judgement of the Supreme Court to be “utterly unsatisfactory”'
and not in consonance with the Constitution: one which he was bound to obey, but not bound to
respect (ibid., 9006-7). 72 This was an attack, not on the right of the Courts to interpret the
Constitution, but on whether they had made mistakes in interpreting it. 73

This was an attitude for which he was criticized by many members later in the debate. He was rebuked
by the Speaker for passing strictures on Supreme Court judgments (ibid., 9006) and by Professor K.
K. Bhattacharya for showing scant respect towards the judges (ibid., 9048). But it was R. K.
Chaudhuri who pointed out a more fundamental problem with Ambedkar's approach to the judiciary:

To him [Dr. Ambedkar] I would put a straight question whether in his opinion the
Constitution which he framed about fifteen months ago is defective or not. If it is defective
according to him, I can understand the justification for bringing this Bill. If it is not defective,
then I would say that there is absolutely, on the face of it, no justification for such an
amendment. So far as I could understand, Dr. Ambedkar said that the judgement that was
delivered by some of the courts of the realm was unsatisfactory, that is to say, that they had
gone against the clear meaning of the Constitution. If that is the position, no amount of
amendment will help us at all.

Because if the Judges give a perverse decision, are you going to amend after every decision
given by a Judge? If a Judge gives an erroneous judgement, are you going every day to amend
the Constitution? That is the question which I am asking and whether he seriously means that
his Constitution is perfect and the decision of the judges is not correct. In that case, I would
humbly submit for the consideration of this House as well as of the Prime Minister whether it
will be worthwhile to amend the Constitution or not. You amend the Constitution now in
order to satisfy a particular judiciary, a judiciary which is now functioning. What guarantee is
there that in spite of your amendment, the next Judge sitting on judgment on such questions

72
The judgement in question did not concern Art. 19, but Art. 15: what is important for our purposes is what light
this sheds on the general stance Ambedkar takes with respect to the Courts in this debate.
73
What follows from the claim that the Court has made a mistake depends on one’s view of judicial authority with
respect to the Constitution. One might regard the authority as final; this seems to be Ambedkar’s position, since he
noted that he was bound to obey though not respect. But if one believes, as Nehru claimed, that Parliamentary
authority is supreme, then the fact that the Courts have got the law wrong is grounds for amending the Constitution
(especially when Parliament can claim special authority by virtue of having drafter the Constitution in the first
place). Of course, if Parliamentary authority is supreme, Parliament can amend the Constitution even in the absence
of judicial error – this is the third line of argument I described at the beginning of this section. For present purposes,
it is enough to see that Ambedkar and Nehru are arguing along quite distinct lines.

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will not pronounce the Acts passed under this amendment are also ultra vires? Will you come
back again and ask for an amendment of the Constitution in a particular way? Will
Parliament only abide by the wishes of a particular Judge or a particular judiciary? Is that the
position to which we are drifting?

ibid., col. 9062

After the Select Committee

The Select Committee produced its report on the 25th of May, and Nehru moved a motion to
consider it on the 29th. 74 His opening speech reveals an interesting change of tone from that in
which he made his initial motion. It was far more conciliatory: he no longer referred to the
“ownership” of the Constitution, and nor did he have anything disparaging to say about the Courts or
the democratic legitimacy of judicial review. In fact, he went out of his away to assure the House that
even the retrospective validation of the impugned laws did not render them immune from judicial
review: “Ultimately it can only be decided by the courts of the land as to what effect this particular
amendment when passed has on a particular law.” (PD Pt. 2 v. XII, 29 May 1951, col. 9620).

Indeed, the Select Committee had proposed an important change to the First Amendment Bill, which
was the introduction of the word “reasonable” in the Art. 19(2) exceptions to the right to free
speech. Parliament was now given the power only to make laws that placed “reasonable restrictions”
on the exercise of the right. This was nothing less than an explicit invitation to judicial review.

The reason why the word “reasonable” had not been put in sooner was not, he said “that we wished
to avoid the courts coming into the picture to give their interpretation;” rather, it was “to avoid an
excess of litigation about every matter,” which would not only hold up the working of the State, but
produce “mental confusion” in people's mind, at a time when such confusion might do “grave injury”
to the State (ibid., col. 9623). So what had begun as an issue of the proper sphere for the exercise of
judicial review had ended as a worry about an increase in litigation -- surely a remarkable change of
tack. 75

Nehru's speech retained one element from his previous one, though it too was played in a different
key. This was the point of the importance of approaching the Constitution in a “dynamic” spirit.
But the target here was not the ‘static’ Courts, but the fears of members of Parliament that they
were tampering with the Constitution so soon after it had come into force:

Some hon. Members who have written their minutes of dissent [in the Select Committee
Report] have referred to the sacred and sacrosanct character of this Constitution. A
Constitution must be respected if there is to be any stability in the land. A Constitution must
not be made the plaything of some fickle thought or fickle fortune -- that is true. At the
same time we have in India a strange habit of making gods of various things, adding them to
our innumerable pantheon and having given them our theoretical worship doing exactly the
reverse. If we want to kill a thing we deify it. That is the habit of this country largely.

74
Unfortunately, I have not been able to trace this report at the time of writing this paper.
75
Austin, Working, 47-8 makes a similar point.

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So, if you wish to kill this Constitution make it sacred and sacrosanct -- certainly. But if you
want it to be a dead thing, not a growing thing, a static, unwieldy, unchanging thing, then by
all means do so, realising that that is the best way of stabbing it in the front and in the back.

ibid., col. 9624

The need for flexibility in the Constitution arose from the uncertainties of the times:

We live in a haunted age. I do not know how many hon. Members have that sense and that
feeling -- we in this country or in the world -- of ghosts and apparitions surrounding us, ideas,
passions, hatred, violence, preparations for war, many things which you cannot grip,
nevertheless which are more dangerous than other things…Hon. Members tell me that this
Constitution has been in existence for sixteen months. Can any Member tell me what the
fate of the world will be in another sixteen months? I cannot.

ibid., col. 9626-27

Of course, the trouble with this language -- beautiful as it undoubtedly is -- is its lack of specificity,
and this was one of the features upon which the opposition fastened. The question, as K. T. Shah
pointed out, was not whether the Constitution had been in force for 16 months or 16 years: what
mattered was whether the circumstances of the last 16 months had been such as to justify the
amendments. He argued, as did many others, that they had not (ibid., col. 9639).

C. On the merits of restricting free speech

This second round of debate introduced another new element into the discussion. By 1951 India had
been independent for almost four years, which was ample time for disillusionment to set in among
those who had hoped that the coming of Independence would solve the country's problems. Thus
some were concerned not about the possibility of government abuse, but with its actuality in the
current regime. Consider Acharya J. B. Kripalani, who had been the Chairman of the Fundamental
Rights Committee in the Constituent Assembly. He is discussing the proposal to expand the scope of
Art. 19(2):

Then, the phrase public order. This is another vague thing. We know how public order is
disturbed in this country under the present regime. If a procession is taken out public order is
disturbed. If some students want some facilities in their schools and colleges, public order is
disturbed. If there is a hunger-march and people want food, public order is disturbed. When
public order is thus disturbed, what do the Government do. They have ample powers. They
use the police. Our police are very good at shooting. They shoot to kill.

PD, Pt 2, v. XII, 30 May 1951, col. 9723

The point was two-fold. Not only did the present government misuse executive discretion in its
handling of what it called “public disorder.” More importantly, allowing the State to criminalize
certain forms of protest obscured the fact that much of this protest was legitimate, a democratic
response to failed governance. The trouble was that the Government wanted powers to tackle the
“agitator.” But as Kripalani put it, “ The agitator is not the trouble but the trouble is the conditions in
this country. Improve those conditions and all the power you want we will give you.” (ibid., col.
9729).

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Another new voice in the debate was that of C. Rajagopalachari, who had taken over as Home
Minister after Sardar Patel had passed away. He reiterated the “lacunae” argument made by Nehru,
being careful, unlike him, not to criticize the judiciary. The right to freedom of expression was, as he
put it, a natural right, not like “a right given in a clause or lease or an insurance policy, to be
enforced like Shylock's pound of flesh, according to the letter of the law.” The content of this right
simply did not include, for instance, the freedom to incite murder. The fact that the language of the
Constitution permitted -- even mandated -- this interpretation was a reason to clarify it:

Judges have given their opinions with reference to the facts in each case, and they generally
express their opinion carefully and after much consideration. What have they said in this
case? I need not waste the time of the House by repeating everything, word for word. But it
has been clearly pointed out and eminent judges have held that the language as it stands
permits, and Parliament cannot pass any law and Government cannot deal with any man who
makes speeches, writes pamphlets and distributes literature, inciting people to murder -- that
is to say the extreme case.

ibid., col. 9761

Rajagopalachari made another ingenious point, this time with respect to the question of continuity.
One of the primary charges made against the amendment with respect to “incitement of offence”
and “public disorder” was that it would lead to the penalization of forms of non-violent protest that
had formed the moral basis for the Independence movement. Thus Kripalani had said

What is not an offence? As a matter of fact, during all our struggle we were preaching against
what was considered by the State laws as offences. The whole of our satyagraha movement
was to break the law, to break such provisions of the law that created offences. Today, if you
pass this amendment, even satyagraha can come to be legislated against.

ibid., col. 9722

Rajagopalachari's response was that the whole point of civil disobedience conceived of as a form of
protest was that it should be punished: it was the acceptance of the penalty which gave such protest
its moral force. So to the extent that such a form of political agitation was worth preserving, it was
important to allow it to be punished. To do otherwise would be like “trying to learn to ride on a
wooden horse. It must be a real horse; it must kick and throw out” (ibid., col. 9765).

D. The passage of the Bill

Once the motion to consider the Bill had been passed (by a majority of 246 votes in favor, and only
14 against), it was left to consider and debate the individual clauses in the Select Committee's Bill (PD
Pt 2 vol. XII, 1 June 1951, col. 9801). The discussion began on the 1st of June, and concluded on the
2nd. By now, as the Speaker of the House noted, the Bill had been dealt with ``threadbare'' on at least
three occasions -- before it had been referred to the Select Committee, in the Select Committee, and
then during the motion for consideration of the Bill. As a result, the scope for discussion was now
strictly limited to discussions and proposed amendments on particular clauses (ibid., col. 9807).

During the final debate on the bill as a whole, Professor Shibban Lal Saksena summarized the case of
those who opposed it. It might be useful to enumerate these points:

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1. The Bill was brought in undue haste, without taking the House into confidence about just
what were the difficulties that rendered it so urgent.

2. The Prime Minister's case was inconsistent: on the one hand, he urged that the Constitution
not be regarded as sacrosanct; on the other, he insisted that the Bill did not seek to change
the Constitution, but only to bring out explicitly what was already in it implicitly.

3. This latter claim was false: it is unlikely that a Constituent Assembly which had spent three
years drafting the Constitution would have made trivial mistakes of phraseology; and it was
unlikely that the Supreme Court had misinterpreted this language.

4. It was inappropriate to create ``a sort of antagonism'' between the Supreme Court and the
`will of the community.' While it is true that the `will of the community' was supreme, it is
the Supreme Court's job to interpret this will in the light of the laws of the country. This was
a job they did well, and we should abide by their interpretation.

5. So it would do an injustice to the Supreme Court to claim that it misinterpreted the `will of
the community' as expressed in the Constitution. It would be better to claim -- if this were
true -- that the will of the community had changed between the framing of the Constitution
and the present.

6. In fact it is incorrect to say that the amendment Bill is an attempt to restore, by


clarification, the original will of the community. For those who played a hand in drafting the
constitution themselves dispute this. Thus Acharya Kripalani, the chair of the Fundamental
Rights Committee, claims that the constitution, as written, correctly represents the will of
the community as it was then.

7. If the claim is that the will of the community has changed since the framing of the
Constitution, the correct test would be to wait until the forthcoming elections to test that
will.

8. It was also incorrect to say, as the Prime Minister did, that the Bill was only an enabling Bill,
intended to widen the powers of Parliament to make laws. First, it gave the power to all State
legislatures as well as Parliament to enact legislation affecting fundamental rights.

9. In fact the Bill also resurrected laws which had been rendered void by the original Art. 19:
they had become laws “by the back-door,” without even consulting Parliament. This showed
that the Bill was also an enacting Bill, not merely an enabling one.

10. In fact the laws thus enacted are obnoxious, and were used by the British to suppress the
nationalist movement.

11. It is irrelevant to claim, as the Prime Minister did, that he did not intend to use these powers
to enact repressive laws. For one thing, if this were true, there would be no urgency in passing
this amendment. For another, the powers given by this amendment could be used for less
benign purposes by future governments.

12. It was also foolish to say that the purpose of passing these amendments was to render the
task of the new Parliament smoother -- for that Parliament would have been perfectly
competent to amend the constitution if it so wished.

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13. Finally, it was irrelevant to say that these powers would only be used in emergencies -- for
the Constitution already provides for emergencies.

PD Pt 2, vol. XII, 2 June 1951, cols. 10039-10043

Few other voices of dissent were raised during this last debate. Shyama Prasad Mookerjee reiterated
the complaint that the Government had started an unhealthy convention by refusing to circulate the
amendment bill to elicit public opinion. He also pointed out that the House was not a perfect mirror
of public opinion because it was dominated by a single party under a party whip (ibid., col. 10084).
Finally, he responded to the exhortation to “trust the Government” with an exhortation to “trust
the people:” increasing government powers in this way was a sign of mistrust.

The last word lay with the Prime Minister, Jawaharlal Nehru. His final speech reiterated many of the
arguments he and others had made in favor of the Bill. He was also uncharacteristically aggressive
towards the Bill's opponents -- calling them “petty critics” who seemed to “live in some distant age”
(ibid., col. 10096). He accused them of lacking a grip on reality, and stunting the growth of the
country by their narrow-mindedness (ibid., cols 10096, 10100). Nevertheless, he claimed to have
welcomed the debate, for tending to revitalize a democracy that was otherwise moving away from
“great public debate.”

Given the Congress majority in the House, and the Congress whip, it was a foregone conclusion that
the Bill would pass. In the end it did, with 228 votes in favor, and only 20 against (ibid., col. 10103).

VI. Conclusion

At one point in the debate on fundamental rights in the Constituent Assembly, T. T. Krishnamachari
attempted to lower the temperature by saying

Sir, language is always a rather difficult affair. What language conveys to me it may not
convey to another person, and as my honourable Friend Dr. Ambedkar put it, we are
legislating in a language which is foreign to us, the exact import of which we do not
understand. Should we do it in one of our own languages? The difficulty would be all the
greater for the reason that the language of one set of people is not the language of another
set of people. Besides, precise thinking in our own language so that we could adopt it for
constitutional purposes has not yet developed.

CAD VII, 771; 2 December 1948

The “language which is foreign to us” is not, I think, a reference to English (which with most
members of the Constituent Assembly would have been familiar). The broader point Krishnamachari
is making here has to do with the unfamiliarity of Constitutional deliberation. The members of the
Assembly had been exhaustively instructed in comparative constitutional law through a series of
pamphlets authored by the Constitutional Adviser, B. N. Rau.76 Many were lawyers of some
distinction, and displayed an impressive knowledge of English and American constitutional law while

76
In a series called Constitutional Precedents (1948). Rau had also sought constitutional advice by travelling
outside India, e.g. to the US -- where he met Justice Frankfurter and President Truman (having met President
Roosevelt on an earlier occasion) -- and Ireland, where he met Eamon de Valera. For a note on one of these trips, see
BSR III, 217-37.

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arguing, both in the Assembly and then in Parliament. 77 Nonetheless, as they frequently pointed out
themselves, it was no easy to task to apply these lessons to their own situation.

Part of the argument of this paper is that arguments from colonial continuity -- which took as their
focal point Independence and a break from the past -- played an important role in constitutional
deliberation, given that the language of constitutional deliberation was itself “foreign to us.” Those
who attacked restrictions on the freedom of the Press did not couch their arguments in institutional
terms having to do with the place of the Press in a democracy; nor were their arguments generally
couched in terms of free speech as a basic civil right. Rather, they couched their opposition in terms
having to do with the continuity of the new Indian regime with the one it displaced. Independence
carried with it the promise of making a clean break with the past in order to ensure freedom and
progress. Those who sought to protect or re-enact Press laws were criticized on the grounds that they
were no different from the British in this respect; that this would be a betrayal of the promise of
Independence.

We have seen that this idiom of continuity and change played out back and forth between supporters
and opponents of Government power in the matter press freedom. Those in favor of protecting the
Government's capacity to restrict press freedom argued that the similarity to the British was only in
form. In reality things were very different: the new government was representative of the people,
and not interested in repression. Though the British had used these laws to quell the nationalist
movement, they were now being used for a very different purpose: to protect India's fragile
democracy during a period of turmoil.

In making this point, it is important not to confuse the grounds upon which an argument is being
made, and the language in which these grounds are expressed. I do not mean to say that, e.g.,
institutional questions about the separation of powers did not arise for the participants in these
debates -- of course they did, and sometimes (as with Somnath Lahiri) they were made explicitly in
these terms.

The point is rather that the currency of argument tended to be in terms of the issue of continuity
with British rule. As I have noted, the exchange of this currency was extremely sophisticated: recall
Rajagopalachari's point about civil disobedience (namely, that real satyagrahis would want to be
punished for their disobedience of the law), or Nehru's insinuation that those who were skeptical of
Parliamentary bona fides in an independent India were themselves relying on “external authority
like the British power of old days.”

This sophistication of rhetoric around colonial continuity suggests one way in which such arguments
are limited: they can be used for and against the same position, depending on the feature one isolates
and identifies as “colonial.” Another sense in which these arguments might be termed limited was
illustrated in my speculation about the caution of the early Supreme Court’s jurisprudence of free
speech. If colonial continuity was the only idiom in which the right to free speech could be debated as
a political value, then it is not surprising that the Supreme Court did not do so: for such arguments
would not be taken seriously when coming from an institution so clearly associated with the Raj (and
directed at a legislative body and an executive consisting of people who fought against the Raj). An

77
The debates in the Constituent Assembly and later in Parliament contain references to a range of different
constitutions -- from the Swedish to that of the Weimar Republic.

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argument about guilt by association cannot be made by those who are themselves guilty of such
association.

There is a third way in which such arguments may be thought suspect, at least with respect to laws.
For it does not seem to follow, from the fact that a law was passed by a colonial regime, that it is
thereby illegitimate -- even though enacted by an illegitimate regime. Legal regimes seem to be able
to survive quite drastic changes to the underlying political regimes which gave birth to them. 78 Would
it be open, for instance, to someone imprisoned for (say) automobile theft under some statute
enacted in Nazi Germany to say he or she was not guilty merely because the regime which enacted it
was illegitimate? I’m not sure. Similarly, consider a law regulating, say, the killing and capture of wild
elephants: does the fact that it was enacted by the British in 1931 provide, in itself, a reason to reject
it? 79 Again, I’m not sure. It seems better in all such cases to go for arguments directed at the content
of these laws, rather than at their origins, that is to say, to replace arguments from continuity with
arguments from principle.

78
I think this is one way in which we might make sense of the claim that the domain of law is somehow
“autonomous” from the domain of politics.
79
See the Elephants' Preservation Act, 1879 (Act 6 of 1879).

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VII. References
Cases

A. K. Gopalan v. State of Madras AIR (37) 1950 SC 27


Amar Nath Bali v. The State AIR (38) 1951 Punjab 18
Brij Bhushan v. State of Delhi AIR (37) 1950 SC 129
In re Bharati Press known as Shailabala Devi AIR (38) 1951 Patna 12
Romesh Thapar v. State of Madras AIR (37) 1950 SC 124
State of Madras v. Champakam AIR 1951 SC 226
Tara Singh Gopi Chand v. The State AIR (38) 1951 Punjab 27

Statutes

Indian Penal Code, 1860


Press (Emergency Powers) Act, 1931
Government of India Act, 1935
India Independence Act, 1947
Madras Maintenance of Public Order Act, 1949
East Punjab Public Safety Act, 1949
Constitution (First Amend ment) Act, 1951

Official documents

Constitutional Assembly Debates


Constitution of India
Constitutional Precedents
Parliamentary Debates

Other docume nts

Naz Foundation vs. Govt. of NCT of Delhi & Ors., civil writ petition 7455/2001
Alternative Law Forum, written submissions in the petition Naz Foundation India and others v.
Union of India and others

Secondary literature

Austin, Granville. The Indian Constitution: Cornerstone of a Nation. New York: Oxford University
Press, 1966.

Working a Democratic Constitution: a History of the Indian Experience. New Delhi: Oxford
University Press, 1999.

Duverger, Maurice (trans. Robert North & Ruth Murphy). The Idea of Politics: the Uses of Power in
Society. London: Methuen, 1966.

Editors. “ The Problem” Seminar 84 (1966), 11

Galanter, Marc . Competing Equalities: Law and the Backward Classes in India. Berkeley:
University of California Press, 1985.

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Kalhan, Anil, Gerald P. Conroy, Mamta Kaushal, Sam Scott Miller, and Jed S. Rakoff. "Colonial
Continuities: Human Rights, Terrorism, and Security Laws in India," Columbia Journal of Asian Law
20.1 (2006): 93-234.

H. C. L. Merillat. Land and the Constitution in India. New York: Columbia University Press, 1970.

Metcalf, Barbara D. and Thomas R. Metcalf. A Concise History of India. Cambridge: Cambridge
University Press, 2002.

W. H. Morris-Jones. Parliament in India. London: Longmans, 1957.

Neuborne, Burt. “ The Supreme Court of India,” International Journal of Constitutional Law 2003
1(3):476-510.

Potter, David C. India's Political Administrators. Oxford: Oxford University Press, 1986.

B. Shiva Rao, ed. The Framing of India’s Constitution: Select Documents. 4 vols. Delhi: Indian
Institute of Public Administration, 1966-68.

Tinker, Hugh. “Pressure, Persuasion, Decision: Factors in the Partition of the Punjab, August 1947,”
Journal of Asian Studies, 36:4, 695-704 (Aug., 1977).

39