Sixteen Stormy Days
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TRIPURDAMAN SINGH
Sixteen Stormy Days
The Story of the First Amendment to the Constitution of India
PENGUIN BOOKS
Contents
Introduction
1. The Build-up
2. Will the People Wait?
3. The Deepening Crisis
4. The Gathering Storm
5. The Clouds Burst
6. The Battle Rages
7. The Aftermath
Illustrations
Appendix
Notes
Acknowledgements
Follow Penguin
Copyright
Introduction
‘Somehow, we have found that this magnificent constitution that we had framed was later kidnapped and purloined by lawyers,’ thundered Prime Minister Jawaharlal Nehru as he moved the Constitution (First Amendment) Bill to be referred to a standing committee in Parliament on 16 May 1951.1 Fundamental rights, individual liberty and freedom had been the dominating ideas of the nineteenth century, he declared, relics of a static age trying to preserve existing social relationships and social inequalities. These ideas were now passé, overtaken by the bigger and better ideas of the twentieth century, dynamic ideas of social reform and social engineering, enshrined in the Directive Principles of State Policy as guidelines for the newly independent state, and embodied in the grand programmes of the Congress party.2
He had every reason to be angry. Land reform, zamindari abolition, nationalization of industry, reservations for ‘backward classes’ in employment and education, a pliant press—these were the shining new schemes of social engineering that were going to remake the social and political fabric of the new nation.3 Zamindari abolition and land reform had been a part of the Congress programme for close to twenty years at the time. Nationalization and a planned economy had been the driving force behind the creation of the first National Planning Committee in 1938, presided over by Nehru himself. The social and economic framework of the newly independent society was to be transfigured, with the prime minister himself leading the charge.4
And yet, three-and-a-half years since Independence, when the Congress party held unchallenged sway over the state, these flagship schemes had almost ground to a halt. The government’s entire social and economic policy was in danger of failing. Armed with Part III of the new constitution—guaranteeing the fundamental rights of citizens—zamindars, businessmen, editors and concerned individuals had repeatedly taken the Central and state governments to court over their attempts to curtail civil liberties, regulate the press, limit upper-caste students in universities and acquire zamindari property. Over the fourteen months the constitution had been in force, the courts had come down heavily on the side of the citizens and struck mighty blows against the government.
In Delhi, the government’s attempt to censor The Organiser, an RSS newspaper, had been countermanded.5 In Bombay, the government’s order banning Cross Roads, a left-leaning weekly critical of Nehru and the Congress government, had been quashed.6 In the resultant case, laws used to censor and punish the press under the tropes of ‘public order’ and ‘public safety’—the relevant sections of the Madras Maintenance of Public Order Act and the East Punjab Public Safety Act—had been declared void by the Supreme Court on account of their violation of the freedom of speech. Zamindari abolition had met a similar fate. In Uttar Pradesh, the Allahabad High Court had passed a series of injunctions restraining the government from taking any action under the newly passed Zamindari Abolition Act while it examined its constitutional validity. In Bihar, the State Management of Estates and Tenures Act had been declared ultra vires of the constitution by the Patna High Court, violating Article 31 (the right to property) and Article 14 (the right to equality).7
In Madhya Pradesh, the Central Provinces and Berar Regulation of Manufacture of Bidis Act, that controlled and regulated the production of bidis, was held void and declared inoperative by the Supreme Court because it violated the right to carry on any trade or profession.8 Nationalization of road transport in Bombay survived by a whisker after parliamentary intervention. In Madras, the infamous ‘Communal Government Order’ granting caste-based reservations in educational institutions had been struck down by the Madras High Court which pointedly observed that Article 15(1) preventing discrimination on caste, communal, racial and linguistic grounds would become an ‘empty bubble’ if such orders were held to be legal and constitutional.9 The decision was upheld by the Supreme Court, which then went on to also strike down communal reservations in government jobs.10 In the courts and in the press, the government had repeatedly come in for withering criticism.
The entire Congress programme to remake India and consolidate its position had encountered formidable roadblocks: fundamental rights guaranteed by the Constitution, tenacious citizens, a belligerent press and a resolute judiciary determined to vigorously uphold fundamental freedoms. By early 1951, with elections looming and major initiatives continuing to run afoul of constitutional provisions, Prime Minister Nehru had grown increasingly exasperated with his plans being thwarted. Impatient and stubborn at the best of times, he chafed at the temerity of those that came in his way. The situation, in his own words, was intolerable.11 ‘It is impossible to hang up urgent social changes because the Constitution comes in the way . . .’ he wrote to his chief ministers. ‘We shall have to find a remedy, even though this might involve a change in the Constitution.’12
The very same Constitution that the Congress had championed barely twelve months ago now became its bugbear. The very freedoms so ceremoniously granted on 26 January 1950 were now major stumbling blocks on the road to progress. The very makers of the Constitution now railed against too much liberty. Nehru’s solution was straightforward—to bend the Constitution to the government’s will, overcome the courts and pre-empt any further judicial challenges. In his view, wider social policy had to be determined by the government, and neither the courts nor the Constitution could be allowed to stand in the way.13
Declaring that the courts stressing fundamental rights over the Directive Principles of State Policy and resultant social changes was hindering the ‘whole purpose’ of the Constitution itself,14 the prime minister introduced the Constitution (First Amendment) Bill in Parliament on 12 May 1951 to remove the constitutional roadblocks that held back his grand plans. The changes envisaged turned out to be more profound and pervasive than anyone had anticipated, went further than anyone had expected. In fact, so far did they stray from the original that India’s pre-eminent legal historian Prof. Upendra Baxi called it ‘the second constitution’ or ‘the Nehruvian constitution’.15
In a nutshell, the bill proposed several major modifications. It sought to introduce new grounds on which freedom of speech could be curbed—public order, the interests of the security of the state and relations with foreign states. In the original constitution, these had been limited to libel, slander, defamation, contempt of court and anything that undermined the security of the state or tended to overthrow it. With the addition of the three nebulous new provisos, left to the government of the day to define, the right to freedom of speech and expression was to be drastically curtailed.
The bill sought to enable caste-based reservations by restricting the right to freedom against discrimination from applying to government provisions for the advancement of backward classes. Nothing would now prevent Parliament from creating special measures for backward communities, and none of these measures would be legally challengeable even if they breached any of the fundamental rights provisions. It sought to circumscribe the right to property and validate zamindari abolition by adding two new articles empowering the state to acquire estates without paying equitable compensation and en
suring that any law providing for such acquisition could not be deemed void even if it abridged this right. And finally, it sought to introduce a special schedule where laws could be placed to make them immune to judicial challenge even if they violated fundamental rights—a veritable repository of unconstitutional laws beyond the court’s purview, a schedule described by the jurist A.G. Noorani as an ‘obscenity created by wilful resolve’.16
The amendment proved to be a lightning rod for criticism and galvanized opposition to the Congress regime. ‘Cutting at the very root of the fundamental principles of the constitution,’ charged the leader of the Opposition, S.P. Mookerji,17 as he led the counter-attack against the bill, calling it ‘the beginning of the encroachment of the liberty of the people of Free India’.18 ‘Further curbs on freedom,’ blared the headline in a prominent newspaper.19 ‘Improper, unjustified and highly undemocratic,’ declared the Nagpur High Court Bar Association.20 And these were only the opening salvos. What unfolded over the next two weeks, as Parliament debated and then passed the Bill, can only be described as the first battle of Indian liberalism, as a disparate band of forces took up the fight to preserve the expansive freedoms the Constitution had originally granted.
Outside Parliament, the press, the intelligentsia, traders, constitutionalists and lawyers joined the battle. Newspapers sharply criticized the government. Opinion pages bristled with indignation. The All India Newspaper Editors’ Conference and the Federation of Indian Chambers of Commerce and Industry protested against the move, passing resolutions and sending delegations to meet the prime minister. Across the country, bar associations and the legal fraternity came together to oppose any amendments to civil liberties, and retired judges organized and attended protest meetings. An outraged young lawyer (and future judge), Rajinder Sachar,21 angrily wrote to the editor of the Times of India, calling the amendment a move to ‘literally stifle all genuine criticism of the Government’.22
Inside Parliament, a small and scattered but vocal and spirited Opposition took up the challenge of defending civil liberties. Luminaries of the freedom movement and the original Constituent Assembly, such as Shyama Prasad Mookerji, Acharya Jivatram Kripalani, Hari Vishnu Kamath, Naziruddin Ahmed and Hriday Nath Kunzru, savaged the Bill when it was presented and launched blistering attacks on the government. Nehru challenged them to ‘combat here, in the marketplaces, in the country, everywhere and at any level’.23 In fiery exchanges, Nehru accused Mookerji of being a liar, while Mookerji called Nehru a dictator. Tempers ran high. Debate was heated and impassioned, and furious oratory was witnessed in a parliamentary session described by a major newspaper as being at ‘the lowest level of parliamentary dignity’.24
Lest anyone be deceived, this was no storm in a teacup. Several Congress parliamentarians took the government to task. Others pointed out that it was inappropriate for an unelected provisional parliament to amend the Constitution. Initially, even Nehru was daunted. ‘The Bill for the amendment of the Constitution is meeting with a good deal of opposition in the press and elsewhere,’ he wrote to his chief ministers, ‘but we hope to get it through, even though it requires a two-third majority.’25 ‘Until the last moment, I shall not know whether we can have the requisite two-thirds majority,’ he worriedly confessed to Bidhan Roy, the chief minister of West Bengal.26 Congress whips were pressed into action to try and shepherd their flock, and prevent the bill from being criticized in the House. Despite the strong pressure, however, several conscientious objectors refused to budge. Still others criticized the government in Parliament, but eventually chose to abstain when the House voted.
The battle raged for two weeks, in Parliament and outside, across the columns and opinion pages of newspapers, in bar associations and courtrooms, through protest meetings and angry letters to editors. The bill was eventually passed after a bitterly acrimonious debate on 2 June 1951, with 228 ayes, twenty noes and a large number of abstentions, the final numbers obscuring the intensity of the battle. The storm blew over just as quickly as it had gathered. Things returned to normal. Parliament moved on to debating the Representation of the People Bill. The brevity of the whole event partially masked the gravity of its implications. But no one was fooled.
What had come to pass was nothing short of a radical rewriting of Part III of the Constitution. The original constitutional provisions on fundamental rights were effectively ripped apart. The relationship between the state and the citizen was altered for all time. A precedent was set for easy, almost casual amending of the Constitution and the passing of retrospective legislation. A mechanism for bypassing judicial review was created. Sedition had been retrospectively validated. A host of public safety and press control laws had been made operational again. Free speech was curtailed—no longer would it be necessary for the security of the state to be seriously undermined for it to proscribe free expression, it merely had to be in its interests to now do so. The subservience of the Constitution to government policy was demonstrated. The constitutional groundwork was laid for a host of repressive legislation to follow. A vital, cardinal change had occurred, which would have immense long-term consequences for India, its people and its politics.27
In the case of the Madras Communal General Order, a full bench of the Supreme Court had confirmed: ‘[The] chapter of Fundamental Rights is sacrosanct and not liable to be abridged by any Legislative or Executive Act or order, except to the extent provided in the appropriate article in Part III. The directive principles of State policy have to conform to and run as subsidiary to the Chapter of Fundamental Rights.’28 This entire system of reasoning, the bedrock of the constitutional order of things, was overturned as a denial of democracy.29
‘Without adequate reasons,’ as Shyama Prasad Mookerji accused Nehru, ‘you have sought to curtail rights and liberties deliberately given only sixteen months ago.’30 We have yet to realize, let alone fully appreciate, the profound consequences that have flowed from the First Amendment, the legislative powers it has conferred and the legal instruments it has enabled.31 Since then, activists, human rights figures, intellectuals, writers, historians, politicians, journalists and even comedians have often faced the brunt of a repressive state and onerous laws, for which the enabling constitutional infrastructure was built by this amendment in 1951.
Yet, this view of the Constitution and of fundamental rights to which the Nehru government subscribed was exceedingly new. The right to frame a constitution for India and defend the personal liberties of individual Indians had been a pivotal demand of the nationalist struggle for independence. From the time the demand was first articulated in 1895 through the Constitution of India Bill (popularly called the Swaraj Bill and rumoured to have been authored by Bal Gangadhar Tilak), through the Commonwealth of India Bill in 1925,32 the Motilal Nehru Report in 192833 and the Purna Swaraj resolution of 1930,34 the journey had been long and arduous.
The Constitution was thus seen as the culmination of the efforts of several generations of nationalists, and the fulfilment of the Congress pledge to achieve complete freedom for the Indian people. ‘The coming of the Republic is a very big landmark in our history and the beginning of a new era,’ wrote Jawaharlal Nehru. ‘It brings fulfilment on the political side at least of the dream of vast numbers of Indians for generations past. It is the fulfilment of our pledge.’35 In his message to the nation, he called it ‘the consummation of one important phase of our national struggle’.36
From the outset, when the new Constituent Assembly first convened at 11 a.m. on 9 December 1946, no one had been in doubt as to the momentous nature of the task at hand. ‘We are here to guarantee the rights of the people,’ Mahavir Tyagi,37 future minister in the Nehru government, had argued.38 On his election as the permanent chairman of the Constituent Assembly, Dr Rajendra Prasad had proudly declared its intent to ‘place before the world a model of a constitution that will satisfy all our people, all groups, all communities, all religions inhabiting this vast land, and which will ensure to everyone freedom of acti
on, freedom of thought, freedom of belief and freedom of worship’.39
The chairman of the Drafting Committee and the minister of law, Bhim Rao Ambedkar, described individual rights, and the constitutional remedies designed to enforce and safeguard them, as the ‘very soul of the Constitution and the very heart of it’.40 He exhorted the government and the people to observe constitutional morality, noting that ‘if parliamentary government was to succeed, both the people and the government should observe certain morals or conventions of the constitution’.41 ‘Indeed, if I may say so,’ he had emphatically asserted in the Constituent Assembly, ‘if things go wrong under the new Constitution, the reason will not be that we had a bad Constitution. What we will have to say is that man was vile.’42
On 26 January 1950, when the new Sovereign Democratic Republic of India was proclaimed, the Constitution was called ‘a formidable document embracing in its range the structure of government, fundamental rights, the legal framework and the directive principles of State policy’.43 ‘India enters into her new existence as a Republic under the best constitutional auspices,’ gushed the Times of India.44 It was, as the leading headline in the Hindustan Times called it, ‘a day of great significance and fulfilment’,45 and in the words of the noted lawyer C.P. Ramaswamy Iyer, the beginning of ‘the most far-reaching and significant experiment in human history’.46
One of the Constitution’s authors, the great educationist and writer K.M. Munshi, proudly called it ‘a remarkable achievement of the Indian nation . . . the first free act of Free India’.47 ‘If this constitution endures,’ he wrote, ‘we will emerge as one of the most powerful countries on earth.’48 Another author, H.N. Kunzru, weighed in and ‘called the chapter on fundamental rights and assurances of the greatest value’.49 A third author (and future minister) K. Santhanam wanted to ‘develop the idea of the sanctity of our Constitution’ and make the people firmly believe in its sacredness.50 Prime Minister Nehru himself described it as the foundation of the country’s republican freedom.51