Supreme Court has agreed to consider a petition challenging changes made to the right to freedom of speech and expression by the first amendment to the Constitution in 1951. The petitioner argues that the amendment damages the constitutional doctrine of the basic structure.
A bench presided by Justice Sanjiv Khanna, which heard the case earlier this month, stated there was a “legal issue”, which arose “for consideration”, and asked the Centre for its views.
The bench, which also consisted of Justice J K Maheshwari, stated in its order on October 17 that if a legal issue arises for consideration, the petitioner, who appears in person, and learned counsel for the respondents may submit a written synopsis, not exceeding five pages, along with the judgments referred to.
In his plea, the petitioner, Senior Advocate K Radhakrishnan, argued that Section 3(1) of the 1951 Amending Act substituted original Clause (2) of Article 19 – which concerned reasonable restrictions on the freedom of speech and expression guaranteed under Article 19(1)(a) – with a new Clause (2), containing “two objectionable insertions” allowing restrictions to also be imposed “in the interest of public order” and “in relation to incitement to an offence”. Additionally, the new Clause (2) does not contain the phrase “tends to overthrow the State” as it did in the original Clause (2).
The petitioner argued that section 3(2) of the amending Act allowed certain laws to be validated even if they abridged or restricted freedom of speech and expression.
According to the petition, these two insertions protect sections 124A (sedition), 153A (promoting enmity between groups by means of words, either spoken or written, or by signs, or by visible representations or otherwise), and 154A (promoting enmity between groups by means of religion, race, place of birth, residence, language, etc.), as well as acts detrimental to maintaining harmony, There are two sections of the Indian Penal Code “from the vice of unconstitutionality”, 295A (deliberate and malicious acts, with the intent to offence religious feelings of any class by insulting its religion or religious beliefs) and 505 (statements conducive to public mischief).
According to the petition, “the two questionable expressions inserted unduly abridge the fundamental right under Article 19 (1)(a).” According to Radhakrishnan, this undue abridgement “does not advance or subserve any constitutional objectives”, but rather “damages democracy, republicanism, and the supremacy of the Constitution”.
By omitting the phrase “tends to overthrow the State,” the amendment neglects national security, he added. The glaring omission of the phrase ‘tends to overthrow the State’ raises grave concerns in light of the dangers posed by radicalism, terrorism, and religious fundamentalism to the concept of secular democratic republics.
In the petition, the court urged it to declare Sections 3 (1)(a) and 3 (2) of the First Amendment “beyond the power of Parliament to amend” and void since they “damage and destroy the fundamental features of the Constitution.”.