Recently, the Supreme Court agreed to hear a petition challenging the 1st Constitutional amendment’s expansion of restrictions on the freedom of speech and expression (Article 19(1)(a)) on the grounds that the amendment violates the basic structure doctrine.


What is ‘Article 19 of the Constitution’?

  • Title — Protection of certain rights regarding freedom of speech, etc.
  • Rights enlisted under Article 19 (1): All citizens shall have the right —
    1. to freedom of speech and expression;
    2. to assemble peaceably and without arms;
    3. to form associations or unions;
    4. to move freely throughout the territory of India;
    5. to reside and settle in any part of the territory of India;
    6. to practise any profession, or to carry on any occupation, trade or business.
  • Reasonable restrictions are imposed on Article 19(1)(a) in 19(2)— In the interests of
      • The sovereignty and integrity of India,
      • The security of the State,
      • Friendly relations with foreign States,
      • Public order, decency or morality,
      • In relation to contempt of court,
      • Defamation,
      • Incitement to an offence.


What is the ‘first amendment to the Constitution’?

  • Background —
    • In State of Madras v. Champakam Dorairajan (1951), the SC held that the reservation in government jobs and colleges cannot be provided on the basis of caste, as it violates Article 29(2) of the Indian Constitution.
      • Article 29(2) — The State shall not deny admission to any individual to educational institutes maintained by or those receiving help from it solely on the basis of race, religion, caste, language, or any of them.
    • The Constitution (First Amendment) Act, 1951 was enacted in response to this judgement.
  • About the Constitution (First Amendment), Act 1951 —
    • It made numerous significant changes in the Constitution, including exempting land reforms from scrutiny and providing protections for backward classes.
    • Notably, it broadened the extent of the restrictions on the right to free expression.
    • This amendment established the precedent of modifying the Constitution to overcome judicial decisions restricting the government’s perceived responsibilities to specific policies and programs.
  • The first amendment made two key changes in Article 19(2) —
    • First, it introduced the qualification reasonable” to the restrictions that Article 19(2) imposed, which leaves the door open for the courts to intervene and review the validity of restrictions imposed by Parliament.
    • Second, the amendment introduced into the Constitution the specific terms public order” and “incitement to an offence”.
    • This new set of narrower terms in the provision was necessitated by two SC rulings in 1950 that went against the state’s power to curb free speech. Both these verdicts (Brij Bhushan v State of Delhi (March 1950), and Romesh Thappar v State of Madras (May 1950)) involved the press.
    • In both the cases, the court had to define the terms “public safety” and “public order” and examine if they fell within the scope of the restrictions allowed in Article 19(2).
    • The court struck down the laws imposing restriction on free speech on the grounds of “public safety” and “public order” as unconstitutional.


About the ‘Basic Structure Doctrine’

  • Background —
    • The idea of basic structure has been borrowed from Germany.
    • It was originally suggested in the Sajjan Singh case (1965) by the Supreme Court of India.
    • In Kesavananda Bharati case (1973), the SC by a 7-6 majority held that Parliament can amend the Constitution but does not have power to destroy its “basic structure”.
  • Meaning —
    • The basic structure is a judicial innovation neither part of the Indian Constitution nor defined by the court.
    • The Supreme Court, on a case-by-case basis, lists principles as being part of basic structure.
    • Something, which may not be part of the text of any specific article of the Constitution, can also be part of basic structure. For example,
      • Federalism’ is not mentioned in the text but has been consistently included within basic structure.
      • Similarly, ‘Secularism’ was not in the text until 1976, but in 1973 it had been included within the basic structure.