Benjamin Franklin (1722-1790) was the Founding Father of America. He was a renowned polymath, political thinker and a scientist. He had drafted The Declaration of Independence and also the Constitution of America. His Voltairian philosophy led to the passage of the Bill of Rights (1791), introduced post-humously, by James Madison which also contained the most salutary right guaranteed under the First Amendment, ratified in December 1791. It is this Amendment which makes America the free-est democracy in the world.
Franklin was deeply influenced by two great British historians, Lord Gibbon (The Decline And Fall of Roman Empire) and David Hume. He also admired the political philosophy of the French Enlightenment author, Voltaire (1694-1778), which upheld the maxim ‘People First’/ ‘Freedom First’, as against the populist slogan ‘Nation First’ which was propounded by King Frederick of Prussia (old Kingdom of Germany which lasted until 1918).
This Voltairian philosophy was duly implemented in the Bill of Rights and the First Amendment which guaranteed absolute freedom to the American citizens without any crippling Proviso of ‘reasonable restrictions’.
Ironically, the First Amendment of our country (1951) runs exactly contrary to its counterpart of American Constitution.
While reading autobiography of Franklin, one cannot ignore a his prophetic vision and unflinching commitment towards freedom and liberal democracy which has stood the test of time even after two centuries.
Franklin’s photo adorns the $ 100 notes in America. The only hitch about this book is the Victorian English which makes the reading a bit difficult at times.
Instead, I would recommend ‘Quotes of Benjamin Franklin’. They speak volumes on the present world, leaning towards majoritarianism and exclusivity.
"The First Amendment of Indian Constitution: A Paradoxical Legacy of Rabindranath Tagore's Philosophy and American Constitution"
In India, Rabindranath Tagore’s philosophy (Geetanjali 1913, And Nationalism, 1917) could be a reflection of Benjamin Franklin’s philosophy and the Bill of Rights (1791). In fact, the Founding Fathers of Indian Constitution had largely borrowed from the American Constitution, especially the Bill of Rights which came to be incorporated in Chapter III of Indian Constitution. But within 15 months, the First Amendment was introduced. It was opposed by many liberal Congress leaders in the Parliament. The Bill was also bitterly opposed by Gandhians like Jai Prakash Narayan, KN Katju (then a Governor) and jurists like MC Chagla and PR Das, President of All India Civil Liberties Conference. Surprisingly, Hindu Nationalists like SP Mookerji and KR Malkani had also opposed this Amendment while batting for individual freedom and civil liberties! Today, the ideological descendants of Mookerji may not like to remember that famous speech in the Parliament. The Bill was drafted by the then Law Minister Dr. Babasaheb Ambedkar who had been keen on re-writing Article 15 by inserting Clause (4) & (5) therein (Special Provision for Advancement of Socially Backwards Classes and SC/ST). While the Bill was passed by thumping majority, it cast an everlasting shadow on Indian liberalism. Part III of the Constitution had been radically re-written thereby vandalizing the soul of Constitution. With the insertion of Article 31-A & B, the Nineth Schedule was created to protect the laws specified therein from judicial scrutiny. While these provisions were necessary for agrarian reforms and upliftment of peasants, this Amendment unwittingly dealt a deadly blow on civil liberties in the name of public order and safety. After having achieved the laudable objects, the legislature ought to have, but did not, restore the freedom guaranteed in Article 19.
Many historians and jurists believe that the proviso in Article 19 of Indian Constitution was the first assault on the Constitution as originally framed by the Founding Fathers. Ironically, the same members of the Constituent Assembly who drafted the Constitution, had introduced this Amendment. The legislative intent behind the Amendment, no doubt, was noble and meant for achieving agrarian reforms (land-to-tiller), abolition of zamindaari and upliftment of socially backwards classes. Notwithstanding the political compulsions of the then Government behind this Amendment in a newly-born Republic, the undeniable fact remains that insertion of additional clauses in Article 19 had laid the trappings for denial of freedom and liberty as collateral damage in future .
This Amendment introduced new grounds for curbing the freedom of speech for nebulous reasons – Public Order and Security of the State. In the original Constitution, such curbs had been restricted only to libel, defamation and contempt of Court. This Amendment also led to all kind of repressive legislations in subsequent years. Be it preventive detention or draconian legislations in complete departure from the established law. Instances are galore. MISA, NSA, Unlawful Activities (Prevention) Act, censorship, banning of books, films and literature, restricting freedom of expression are all legacy of the First Amendment which has now degenerated our democracy into the category of ‘partly-free democracy’. Till today the SC has not defined this relative phrase, ‘reasonable restriction’. It can’t be. And there lies the rub for misuse by the Executive.
In 2018, Arun Jaitley (the then FM) had referred to First Amendment as a “Paradox in our Jurisprudential Evolution…”.
Article 13 of Indian Constitution mandated that any existing law in derogation with the Constitution shall be rendered void. Thus S. 124 A of IPC (Sedition), a remnant of British Colonialism, had no Constitutional support to remain on the statute books by virtue of Doctrine of Eclipse (Article 13), but after the First Amendment, it got validated retrospectively and has been remained on our statute books. In the year 1952, Nehru, under apparent realization of the lurking danger, had publicly advocated the repeal of S. 124 A of IPC. But that did not happen. As a result, the law of Sedition has been routinely misused to silence the dissent. History tells us that Nehru himself or his government never misused these powers but had unwittingly created a fertile ground for his predecessors to do so. No doubt, in the case of Kedar Nath - 1962, the Supreme Court had read down S. 124-A and laid down stringent conditions for invoking the provisions of sedition which was reiterated in the case of Balwant Singh - 1995. Similarly, in Keshvanand Bharati judgment, the Supreme Court partially restored some of the rights infringed by the said Amendment by invoking the theory of ‘Basic Structure’ (courtesy -- Nani Palkhiwala). But by and large, the Supreme Court has not been able to reverse the tide on freedom and liberty which was guaranteed in the original Constitution. As a result, intellectuals, writers, human rights activists and even comedians have been bearing the brunt of a repressive state, the infrastructure of which was embodied in 1951.
Years later, Dr. Ambedkar also expressed his fear that India might lose both its Constitution and its democratic freedom in future, given the lack of democratic traditions, the endemic ‘bhakti’ (hero worshipping) and the rampant socio-economic inequality. The Constitutional history of India is not all that glorious as it is widely perceived and projected on the Republic days. After all our Founding Fathers were not infallible.
Whether or not the consequences of the First Amendment on freedom and liberty can be reversed would be a matter of legislative adventure and bold judicial activism.
The ball lies in the Court of the Constitutional Bench.
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