I’m posting this interesting paper from Arudra Burra, a law student at Yale, on the history of the First Amendment to our Constitution. I have always been fascinated by that amendment, which was passed by the provisional parliament, which was the same body as the Constituent Assembly. The ostensible rationale for the amendment was the Patna High Court’s decision interpreting Article 19 (1) (a) rather broadly. While the decision itself can be debated (it was overruled by the Supreme Court subsequently anyway), the First Amendment was an unfortunate precedent that paved the way for constitutional amendments in subsequent years to overcome inconvenient decisions. I welcome thoughts from my co-bloggers and readers on this paper.
A Study of the First Amendment
Further reading
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A “[p]art of the argument of this paper” is that the desire to break with India’s colonial past “was something approaching a constitutional morality” at least with regards to the Constituent Assembly and the Parliament. This seems to contradict Ambedkar’s assertions that “Constitutional morality is not a natural sentiment. It has to be cultivated. We must realize that our people have yet to learn it. Democracy is only a top-dressing on an Indian soil, which is essentially undemocratic.” The paper failed to convince me that Ambedkar was wrong. Rather as the paper notes, the arguments relating to Article 19 were seldom “couched in terms of free speech as a basic civil right.” It seems that most proponents and opponents of freedom of speech did not rely on the concept of “marketplace of ideas”. Presumably, because they were not completely familiar with this concept, which is fundamental to freedom of speech jurisprudence.
I also want to caution the author to read the historical record of the constitutional debates with a sceptical eye. The Constituent Assembly was composed of several lawyers (as noted by the paper), who were comfortable mouthing the language of fundamental rights but their understanding of why such rights were necessary in terms of political theory may have been quite superficial.
Separately, the “language which is foreign to us” (pg. 46 – 47) as used by Krishnamachari refers to English language contrary to the author’s assertions. If not, I think the author needs to further clarify his reasoning.
Lastly, the use of “remarkable” and “remarkably” is so frequent that it is almost annoying.