Total Recall

Total Recall

Tracing the very first amendment
The new Constitution came into force on 26th January 1950. All six of us were sworn in by the President as the Judges of the Supreme Court. At the first sitting of the Court, Chief Justice Kania and the Attorney General made short speeches. The function in the Supreme Court was attended by the Prime Minister of India, and the Chief Justices of all the High Courts who had been invited for the occasion. The Advocates-General of the various States and the Attorney-General of India also attended.

Under the new Constitution, the Supreme Court was to compromise eight Judges including the Chief Justice. The Court, therefore, needed two more Judges. Mr Justice Vivian Bose, who was then Chief Justice of the Nagpur High Court, was appointed as the seventh Judge and Mr Justice Chandrasekhar Aiyar, a retired judge of the Madras High Court, as the eighth Judge. These eight Judges therefore constituted the first bench of the Supreme Court of India, a very cohesive and friendlyteam....

Before the Supreme Court could dispose of appeals (before the court), the Union Government decided to amend the Constitution. The statement of the objects and reasons of the First Bill to amend the Constitution declared that as ``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 advocated murder and other crimes of violence'', it was necessary to amend the Constitution. In the discussion that followed in Parliament on the Bill, a good deal of adverse criticism was directed against the courts, particularly the Supreme Court.

The critics of the Court based their attack on the interpretation which the two High Courts had placed on our decision in Romesh Thapar vs The State of Madras. As it turned out, when the matter came up before the Supreme Court again in the State of Bihar vs Shailabala Devi, the Court clarified its position and declared that incitement toviolence under certain circumstances did undermine the security of the State and was as such punishable under the law....

The First Amendment to the Constitution Act seemed to some to raise the question of the relations of the judiciary with the Government. It was asserted that the Government had insulted the Supreme Court by abridging a fundamental right soon after its scope had been determined by the Supreme Court. Leaving aside the question of the wisdom of the amendment, the Supreme Court had no reason to complain in the matter.

There was nothing new or surprising in the legislature changing a law in this way when it found a decision of the highest court unpalatable. That it was the Constitution that was amended did not make it any the more exceptional. The British Parliament had similarly changed the law following a decision of the House of Lords. Some of the amendments to the Constitution of the United States had their origin in a clash between the President and the Court.

What seemed to some ofus a dangerous precedent lay rather in the fact that the First Amendment protected certain specified statutes passed by various state legislatures against attack for unconstitutionality before the Court. Of course, the Indian Parliament had not gone thanks to the Constitution itself to the lengths to which the US Congress had once proceeded when it had taken a case already before the Court away from it! As the protected statutes mostly concerned existing rights which the government was modifying and in some states even entirely extinguishing, this provision seemed to some of us to be a sad failure on the part of the legislative draftsmen in clothing the intentions of the legislature in proper statutory form!

Excerpted from Mahajan's memoir `Looking Back'