Daily Archives: November 23, 2014

Margaret Marshall: Citizens United and the Judicial Branch
Margaret Marshall, former chief justice of the Supreme Judicial Court of Massachusetts, discusses how recent interpretations of the First Amendment are impacting judicial ethics opening...

By: Harvard Kennedy School

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Margaret Marshall: Citizens United and the Judicial Branch - Video

Margaret Marshall: Surveillance and the First Amendment
Margaret Marshall, former chief justice of the Supreme Judicial Court of Massachusetts, discusses why increased surveillance in the wake of 9/11 is a serious threat to freedom of speech and...

By: Harvard Kennedy School

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Margaret Marshall: Surveillance and the First Amendment - Video

Attorney - What Does the First Amendment Protect in White Plains, NY?
This Informational Law Video has Been Brought to You by Kim Patricia Berg an Experienced White Plains, NY Attorney Specializing in Employment Law, Discrimina...

By: Gould Berg, LLP

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Attorney - What Does the First Amendment Protect in White Plains, NY? - Video

Imprinted in the minds of Indians are Jawaharlal Nehru's words delivered at the stroke of midnight on that most important day: when the soul of a na tion, long suppressed, finds utterance. Everyone longed for their beloved India to sprout wings and fly . I find myself wondering today , what is the point of it all, if the wings are used to fly in the wrong direction? Towards a direction that is not in tune with our innate culture? We made one such unfortunate turn early in our independent history .

Freedom-loving liberals among us must remember and hang our heads in shame at the regrettable turn we took on May 10, 1951. That was the day Jawaharlal Nehru piloted the First Amendment to the Indian Constitution (which was passed into law within a few weeks). Among other restrictions on our fundamental rights, this also restricted freedom of expression.

Many feel that this was in response to the Supreme Court judgment in 1950 on the `Romesh Thappar vs The State of Madras' case, through which the ban on Thappar's magazine (a Marxist journal called Crossroads) was lifted. Many lawyers opine that in effect, the Supreme Court had recognized unfettered freedom of expression as compliant with our original Constitution; just like it was in the US and far better than in Europe at the time. Legal luminaries also hold that since unfettered freedom of expression would have been recognized as a fundamental right, the illiberal IPC Section 295(a), a gift bequeathed by the British Raj, through which many books have been banned, would be overridden.

Why did the Nehru government pass the first amendment? Critics of Nehru will hold this as proof that he was not a classical liberal (defined as one who defends political and economic freedoms for all). Supporters of Nehru will say that he had to ensure unity of purpose in the first few years of independent India to stabilize our country; and some freedoms were a small price to pay for this. I'll let historians pass judgment on this issue.

I merely offer my take on the events that transpired; an observation that is based on my strong belief in freedom of expression. And this is not just as a liberal, but also as an inheritor of a culture that has a proud, millennia-long tradition of ideational freedom.

Freedom of expression is, frankly , the most Indian of values; one that was staunchly defended by Lord Brahma himself in the Natya Shastra. In ancient India one was free to create and encourage various versions of the holiest of epics like the Ramayan and Mahabharat; and all versions, some even unorthodox, were celebrated.In fact, one could even be an atheist in ancient India, as the Charvaks were (probably from the seventh century BC), and nobody would commit violence against them for being `ungodly'. One could practise out-of-the-ordinary rituals, as the Aghoras did (like ritual sex), and unlike in modern India, nobody would ban their practices as long as they didn't hurt another. Everyone had a right to find their own truth, in keeping with the spirit of the Rig Vedic maxim: Ekam Sat Vipraha Bahuda Vadanti. Truth is one, but the wise men speak it as many .

I would ask for only two restrictions to be placed on freedom of expression. On someone who exercises freedom of expression to suppress the freedom of expression of another; that is unacceptable. And on anyone who uses freedom of expression to directly call for violence. In every other case, absolute and unfettered freedom of expression should be practised.Every banned book should be unbanned. Every argument, no matter how troubling it may be, should be allowed expression. Sigmund Freud had said that the first human who hurled an insult instead of a stone was the founder of civilization.

All of us who count ourselves as liberals and are proud Indians must ask for the First Amendment to be repealed.Moreover, we must not practise the kind of hypocritical freedom of expression that the westerners practise, where views not in alignment with the prevailing orthodoxy are suppressed; not through violence, but by ensuring that one is prevented from visiting various public forums or one's works are not published (for example, the gagging of Ayaan Hirsi Ali). I must state that I disagree with many things Ms Ali says; but we must defend the right to speak even of those whose views are deeply troubling, provided that there is no direct call for violence.

Stopping the free flow of ideas is against India's innate culture. We are not in any sense being "westernized" if we ask for unfettered freedom of expression. In fact, we are being very Indian. Furthermore, as our ancestors realized thousands of years ago, freedom of expression is the foundation of a liberal and decent society .

As the Rig Veda says: `In speech is enshrined blessed glory , is enshrined Mother Lakshmi herself.'

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Time to do away with Jawaharlal Nehru's first amendment to the Indian Constitution