July 6 this year marked the 115th birth anniversary of Syama Prasad Mookerjee. A Minister in Jawaharlal Nehru’s Cabinet, Mookerjee had resigned to form the Bharatiya Jana Sangh, to which the Bharatiya Janata Party traces its origins. However, a little known fact about him went unnoticed. Mookerjee was one of the primary targets of the first amendment to the Constitution, by which the words “friendly relations with foreign States” were introduced as an exception to the right to free speech.The Nehru-Liaquat pact
In 1949-50, there were large-scale communal riots in East Pakistan (now Bangladesh), which led to a huge exodus of Hindus into West Bengal. In the wake of these riots, the Prime Ministers of India and Pakistan, Nehru and Liaquat Ali Khan, signed an agreement known as the Nehru-Liaquat Pact or Delhi Pact aimed at securing peace and ensuring that both countries would protect their respective minorities. Clause (C)(8) of the pact required the governments of both countries to prohibit propaganda inciting war between the two countries. However, it was felt that this clause in the treaty could not be enforced under Indian law.
In March 1950, about a month before the pact was signed, Nehru wrote to Sardar Vallabhbhai Patel alarmed by the fact that Mookerjee’s Hindu Mahasabha was speaking about “Akhand Bharat” (or unified India), which was “a direct incentive to conflict”. Nehru was worried that war with Pakistan was “openly (being) talked about”. Patel responded by telling Nehru that the Constitution was getting in the government’s way. In a letter to Nehru, he wrote: “We are now faced with a Constitution which guarantees fundamental rights — right of association, right of free movement, free expression and personal liberty — which further circumscribe the action that we can take.”
In April 1950, two days before the pact was signed, Mookerjee resigned from the Cabinet, telling Nehru that the policy he was following towards Pakistan was sure to fail, that time alone would prove this. Thereafter, it seems Mookerjee openly started making speeches calling for war between India and Pakistan. Pakistan’s Foreign Minister Zafrulla Khan took exception to the speeches.
Patel sent a telegram to Khan, explaining that the “constitutional position… affects activities of individuals as well as of press and inextricably binds us.”
In June 1950, Nehru wrote to Patel and said that the “chief culprit” against the smooth working of the pact was “Hindu Mahasabha propaganda”, “the Calcutta Press as well as Syama Prasad Mookerjee”. It was in this context that Patel wrote a telling letter in July 1950 to Nehru, where he said that the Supreme Court’s “ Cross Roads and Organiser cases ” ( Romesh Thapar v. State of Madras AIR 1950 SC 124 and Brij Bhushan v. State of Delhi AIR 1950 SC 129) had knocked the bottom out of “most of our penal laws for the control and regulation of the Press.” In Romesh Thapar , the Supreme Court had invalidated a ban imposed by the Madras government on a communist publication, Cross Roads, which had been critical of Nehru’s foreign policy. In Brij Bhushan , the court had similarly struck down a prior restraint imposed by the Delhi government on a Rashtriya Swayamsevak Sangh publication. “My own feeling is that very soon we shall have to sit down and consider constitutional amendments,” Patel wrote to Nehru.
At the time, Article 19(2) of the Constitution contained very limited exceptions to the right to free speech. Broadly, these were defamation, obscenity, contempt of court and the security of state. In June 1951, India’s provisional unicameral Parliament passed the Constitution (First Amendment) Act, 1951. Among other things, it introduced three new exceptions to the right to free speech. Now, citizens did not have the right to speak freely if their words imperilled “public order”, incited the commission of an offence, or affected “friendly relations with foreign States”.The First Amendment
The “friendly relations with foreign States” restriction seems to have been targeted at Mookerjee and his like. In a speech in Parliament, Nehru said: “If an individual does something which might result in war, it is a very serious matter. No State, in the name of freedom, can submit to actions which may result in wholesale war and destruction.” On the other hand, Mookerjee, in his speech in Parliament against the First Amendment, said that Partition was a mistake and that it should be undone someday, even by force. He said that he did not know whether the “friendly relations with foreign States” exception related to “the demand which is being made in certain quarters about a possible reunion of India and Pakistan”.
The official explanation for the insertion of “friendly relations with foreign States”, adopted by B.R. Ambedkar in his speech in support of the Bill, was that it was intended merely to prevent the defamation of foreign state heads. However, the anxious correspondence exchanged between Nehru and Patel in 1950 makes it abundantly clear that Mookerjee’s calls for the forcible reunification of India and Pakistan were the chief targets of the insertion. Interestingly, since 1951, this exception to the right to free speech has seldom been used.
Abhinav Chandrachud is an advocate at the Bombay High Court.