Equality before Law and Equal Protection of Law
|1951 - When India Lost Its Freedom, Yet Again!|
|Written by Hanumant's Law Journal|
|Monday, 10 December 2012 20:37|
India has been ruled by some or the the outsider every now and then throughout past 1000 years. It is a wonder how such a huge landmass and a huge population was ruled over for such a long time. Anyway, this on and off cycle of subjugation seemed to have ended in 1947.
But just because the land was free of colonial masters didn't mean that there was no need for it to be governed. It was still the same huge land with same huge population. On top of that, the now free people wanted to realize their potential, their ambitions. People were ecstatic. They wanted to enjoy their hard earned freedom. India was finally a free society with no controls. The adoption of the Constitution on 26th Jan 1950, which gave several fundamental rights to the population was like adding fuel to the fire. The people seemed to have gone berserk exercising those rights.
So how do you govern and control such people? It shouldn't be a surpise if the tools and techniques developed by the British to rule over Indian subcontinent, could still be used by the new ruler, i.e. the Govt. of India! And that's exactly what it did. It used the same weapon that the Britishers used to rule the people. And that's when we lost our freedom yet again. What the govt did at that juncure was so subtle that we never even noticed it but its implications were so profound that we are pretty much going back to square one of subjugation and that too by our own. Here is what happened.
Article 19 of original consitution that was adopted on 26th Jan 1950 gave the most important of all fundamental rights to the people of India. That is the Right to Freedom of Speech. This is not some itsy bity thing. Freedom of speech is the ultimate fruit, the Holy Grail, the Amrit of the Manthan for the freedom struggle. No society that limits this right has progressed, ever. Never ever.
Dr. Ambedkar and his team got that right...well, not entirely. The original Article 19 (1) (a) said, "All citizens shall have the right to freedom of speech and expression." and the "not entirely" part is contained in another sub clause 19(2), which said, "Nothing in sub-clause (a) of clause 1 shall affect the operation of any existing law insofar as it relates to or prevents the state from making any law relating to libel, slander, defamation, contempt of court or any matter which offend against decency, or morality or which undermines the security of the state or tends to overthrow the state."
So during 1950, there was a newspaper named "Cross Roads" published in Madras by a guy named Romesh Thaper. This newspaper had communist leanings and it used to publish articles that were critical of the Goverment. Some of the articles even caused minor riots, not just in Chennai but as far as Mumbai. The Government of Madras banned it and Romesh Thaper took the matter to the Supreme Court (FYI, Article 32 gives you the right to directly approach the Supreme Court if any of your fundamental rights is being violated.).
The Govt. claimed that the ban is constitutional because the right to Freedom of Speech under Article 19 (1)(a) is not unlimited. It is restricted by 19(2). Thapar's newspaper was a threat to public safety and public order and was thus not protected. Notice that the original article 19(2) did not contain the phrases "public safety" or "public order".
The question before the court was whether the restrictions imposed by 19(2), specifically the words, "undermines the security of the state or tends to overthrow the state", can be construed to mean "public safety" or "public order".
Kudos to the wise men hearing the case. They stated that "public safety" had a much wider connotation than "security of the state", as the former included a number of trivial matters not necessarily as serious as the issue of the security of the state. They concluded that unless a law restricting freedom of speech and expression is directed solely against the undermining of the security of the State or the overthrow of it, such law cannot fall within the reservation under clause (2) of Article 19. The court, with majority in favor of Romesh Thapar, held that the ban was unconstitutional. Indeed, anything can cause people to get riled up but that does not necessarily threaten the existence of the state. A riot does not necessarily mean that rioting public wants to overthrow the state. It is the state's responsibility to control the rioting public and maintain law and order but not at the cost of freedom of speech. God bless the Supreme Court.
So what was the problem? The problem was that this didn't go well with the masters of the country. They couldn't fathom the idea that anybody should be able to say anything against anybody and yet not be thrown in jail. They couldn't digest the fact that a common man was now so powerful as to question the policies of the prime minister of the country.
This brings us back to the original premise with which I started this article. How do you control the large masses of people who have the right to question you? How do you control such masses without hanging the "trouble makers" from a tree? The right way to do that is to educate the masses and make people realize how important it is to respect everyones right to freedom of speech no matter what they say, to invest in law and order machinery, to increase the efficiency of the court system. Of course, that would take a lot of time and lot of efforts. Even a human being takes 18 years to mature. India was only 3 yrs old. All it needed was time to learn to walk and not the crutches. It was the right age to let the concept sink in and let masses learn. The cost would have been worth it.
Alas, that was not meant to be. The masters of the country chose the cheap and the wrong way. It was obvious to them that this fundamental right to freedom of speech and expression was thorn in their way to unbridled exercise of power. Just like the problem the British had faced, which they solved most effectively and ruthlessly- you speak, you'r hanged on the charge of sedition. But how do you do that without being labeled a dictator or without being seen as a despot? How do you go against the Supreme Court?
You do it by amending the constitution under the pretext of, well, maintaining law and order. You take away that right from the people for "their own protection".
The Wrong Turn
On 10th May 1951, the constitution was amended for the first time. The preamble of the amendment says it all -
During the last fifteen months of the working of the Constitution, certain difficulties have been brought to light by judicial decisions and pronouncements specially in regard to the chapter on fundamental rights. 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. The citizen's right to practise any profession or to carry on any occupation, trade or business conferred by article 19(1)(g) is subject to reasonable restrictions which the laws of the State may impose "in the interests of general public".
Clause 19(2) was amended to read:-
Nothing in sub-clause (a) of clause 1 shall affect the operation of any existing law insofar as such law imposes reasonable restrictions on the exercise of the right conferred by the sub clause in the interests of the security of the state, friendly relations with foreign states, public order, decency, or morality or in relation to contempt of court, defamation, or incitement to an offence.
There was no aftermath. There was no opposition. There was no protest. Nobody noticed that the whole country was just robbed blind. The amendement was swift and subtle.
This small change, in my opinion, was the most important turning point in the history of India. A hundred yrs of freedom struggle was negated on this day. This small change essentially made India grow into a crippled democracy. People are killed, riots are incited, private property is destroyed exactly because India hasn't at all learned how to respect the right to freedom of speech and express. It should not come as a surpise that people are arrested for comments made on Facebook, for publishing cartoons, for speaking out against oppression. It is just a natural progression of "public order, decency, and morality".
The price that we were made to pay for "our own protection" was our freedom. We were made to sacrifice our freedom just so that nobody would criticize our religions, our beliefs, our morals, our idols, and above all, our political masters.
|Last Updated on Monday, 10 December 2012 20:48|
CFA, LLB (Hons)