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A PIL challenging changes made to the right to freedom of speech and expression by the 1951 Constitution amendment has been accepted by the Supreme Court, and the petitioner claims that the changes harm the basic structure doctrine.
This court took up the plea earlier this month under the chairmanship of Justice Sanjiv Khanna and said there was a “legal issue” that needed to be considered. It asked the Centre for its opinion on the matter.
It was stated in the October 17 order of the bench, which also included Justice J K Maheshwari, that as legal issues arose, the petitioner, who appeared in person, and counsel for the respondents were permitted to submit written synopses, not exceeding five pages, along with relied upon judgments.
He argued that Section 3(1) of the 1951 Amending Act replaced Article 19’s original Clause (2) (which deals with reasonable restrictions on freedom of speech and expression) with a new Clause (2) that contained two objectionable insertions allowing restrictions to also be applied “in the interest of public order” and “in connection with incitement to crime.”
A similar change was made to Clause (2), which omitted the phrase “tends to overthrow the State”.
The petitioner argued that Section 3 (2) of the amending Act validates certain laws regardless of whether they take away or abridge freedom of speech.
This petition asserted that these two insertions protected Sections 124A (sedition) and Section 153A (promoting enmity between different groups based on religion, race, place of birth, residence, language, etc., by words, written or spoken, by signs or by visual representations, or otherwise, and by acts prejudicial to maintaining harmony, A violation of 295A (deliberately and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs) and 505 (statements conducive to public mischief) of the Indian Penal Code is deemed unconstitutional.
The two questionable expressions inserted unduly abridge the fundamental right under Article 19 (1)(a), the petition said. Radhakrishnan claimed that this undue abridgment “does not advance or subserve any constitutional objectives”, but instead damages democracy, republicanism, and the supremacy of the Constitution, among other things.
As a result of dropping the expression ‘tends to overthrow the State,’ the amendment neglects national security, he said. “The glaring omission of ‘tends to overthrow the State’ raises grave concern in light of radicalism, terrorism, and religious fundamentalism’s threat to the concept of secular democratic republic,” he said.
In the petition, the plaintiffs urged the court to declare sections 3 (1)(a) and 3 (2) of the First Amendment null and void since they damage and destroy the Constitution’s structure and fundamental features.
