How, then, did ‘this magnificent Constitution’ in Nehru’s words, ‘the most elaborate declaration of human rights yet framed by any state’, as the editors of the Times of India called it,52 ‘the biggest liberal experiment in democratic government’, as the Oxford don and the world’s leading professor of constitutional law, Sir Kenneth Wheare, described it,53 go from being a charter of freedom for India’s people and the fulfilment of their dreams in 1950 to being an impediment in the way of the will of the same people by 1951?
How did fundamental rights—the heart and soul of the constitution, so ceremoniously and pointedly given in 1950—become lacunae in the same Constitution and the cause of grave difficulties by 1951? What led to the leading framers of the Constitution turning on their own creation within fifteen months, to the Government of India and the Congress party taking the extraordinary step of radically amending the Constitution they themselves had piloted in 1950? Who got up to defend the newly granted fundamental rights when the moment came, and how did this climactic battle unfold? And finally, what were the consequences? Were there lacunae in the Constitution, as Nehru believed, or was man (and the government) vile, as Ambedkar had asserted before the Constituent Assembly? These are the questions this book seeks to explore, and within them lies the story it seeks to tell.
It is the story of how the Government of India discovered that mouthing platitudes to civil liberties was one thing, and upholding them as principles was quite another. It is the story of how the primacy of a government’s social agenda over the Constitution and individual freedom was affirmed. It is the story of how the entire chapter on fundamental rights was vandalized and the courts emasculated—and the long shadow this has cast over Indian politics ever since. It is the story of how this amendment came to be and how it was passed. It is the story of how the great liberal promise of our Constitution was belied. But more than anything else, this is the story of the great but ultimately futile—and now forgotten—battle that was waged to preserve the original Constitution and the individual freedoms and civil liberties it had granted.
The battle over the first amendment was the first battle of Indian liberalism, and its intrepid warriors the first great defenders of our individual rights and freedoms. They included the unlikeliest of characters – Hindu nationalists like S.P. Mookerji and M.R. Jayakar, Gandhian stalwarts like Acharya Kripalani, committed socialists like Shibban Lal Saksena and Jayaprakash Narayan, conscientious Congress rebels like H.V. Kamath, Syamnandan Sahay and K.K. Bhattacharya, jurists like Pran Nath Mehta and M.C. Chagla, press associations, editors, lawyers and businessmen; men who’s ideological and editorial successors today might scarcely believe (but would do well to remember) that their predecessors held the views they did. Nehru and the Congress bent on pruning fundamental rights, Mookerji and the RSS batting for individual freedom and civil liberties—it was a truly dramatic period in Indian history.
Even as memory of those fateful events has receded, their relevance to contemporary politics, legislation and public discourse in India has only grown. As governments across the board have shown themselves only too eager to both create and utilize repressive and coercive legislation, it has grown ever more important to identify and understand how constitutional support for such legislation was created through the first amendment. This was acknowledged as late as 2018, when India’s finance minister and legal luminary Arun Jaitley hinted that he thought the first amendment almost a ‘paradox in our jurisprudential evolution’ and vulnerable to challenge.54
This book is an attempt to shine a spotlight on this paradox, the events that led up to it, the people who created it, the people who resisted it and fought against it, and the debate it generated. This is a story that deserves to be told, not only because it has been all but forgotten,55 not only because the first amendment holds the key to understanding the position of civil liberties and freedoms today and has had immense consequences for India, but also because it is a cautionary tale of the precariousness of individual rights from which there is much to learn. Not least, that the easy dichotomies that have traditionally been drawn, more so in recent times, between liberal and authoritarian visions of India, between Nehru and Mookerji, between the Congress and the RSS, between progressive and reactionary politics, are more than blurred when taken up for closer examination.
In the current political climate in India, constitutionalism, sedition and fundamental rights have come to dominate public discourse. As political conflicts over fundamental precepts such as the freedom of speech, the right to dissent, the laws of sedition and the role of reservations have escalated, the Constitution has been firmly brought to the centre of Indian political life. Hawks within the current establishment often demand an amendment to the Constitution to bring it in line with their own political inclinations (most recently to enable the construction of a temple in Ayodhya), prompting fears about the constitutional order itself.56 On the other side, the idea of an existential threat to the Constitution from the BJP and the RSS animates the Opposition, with figures such as Shashi Tharoor accusing the Modi-led government of ‘orchestrating a deliberate and strategic assault on the Constitution and fundamental rights’.57
This is now a frequent lament that freedom of speech and expression and the right to dissent are under threat, that critical and oppositional voices are being silenced and the constitutional foundations of the republic are being eroded.58 Nevertheless, even in all this cacophony, the furious exchange of allegations and counter-allegations, it is forgotten that these questions all go back to a single moment in Indian political and constitutional history: the first amendment, when the political and constitutional relationship between the state and the citizen was remade, and the gateway opened to the progressive encroachment of civil liberties. The constitutionally and legally sanctioned ability of the government to censor and prosecute dissenting voices wasn’t born overnight. Neither was its intention or, indeed, its determination to do so. This is a story that began in 1951.
For example, Section 124A of the Indian Penal Code, which deals with sedition, is today cited as a remnant of British colonialism, now misused as a means of silencing dissent.59 Yet, not even its most prominent critics ever note that the founding fathers of the Constitution of India did not intend for it to remain on the statute books. It had found no constitutional support in the original Constitution. It was revalidated in 1951, despite intense opposition, by the introduction of new grounds under which free speech could be curtailed—‘the interests of the security of the state’ rather than undermining the security of the state or overthrowing it. Far from being a simple remnant of colonialism, sedition is an outcome of the first amendment of the Constitution, and the Nehru government’s desire to clamp down on critical voices, unencumbered by constitutional obligations—a truly ‘deliberate and strategic assault on the constitution and fundamental rights’.
The sixteen months between the promulgation of the Constitution of India in January 1950 and its amendment in June 1951 constitute one of the most significant periods in Indian political and constitutional history. The relationship between state and society and the balance of power between the great organs of state—the entire social, political and constitutional fabric of the nation, the basic social contract—was decisively altered. This is the story of that alteration.60
1
The Build-up
The background
Fundamental rights and individual freedom had been the basic and essential foundation for the entire constitutional enterprise from the minute the Constituent Assembly had begun its work. The idea, and indeed, the intent, to frame the Constitution of India as a charter of freedom had been affirmed from the moment President Rajendra Prasad declared the assembly’s resolve to:
[P]lace 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 action, freedom of thought, freedom of belief an
d freedom of worship, which will guarantee to everyone opportunities for rising to his highest, and which will guarantee to everyone freedom in all respects.1
The Constitution, specifically the provisions for civil liberties and their enforcement, were thought to be a crucial factor that was to distinguish the newly independent government from its colonial predecessor. It was going to certify that the nature of post-Independence government rule was going to be fundamentally different from its colonial past; that the British Raj was not going to be replaced by Congress Raj; that the white sahibs were not simply going to be replaced by brown sahibs. This difference was going to be illustrated by the government’s desire to uphold individual freedoms rather than encroach on them. Independence and the Constitution were thus imagined to represent a clear dividing line between a repressive colonial past and a liberal new present.2 This was the majority belief, at any rate.
As a Constituent Assembly member from West Bengal, P.L.K. Maitra stated, ‘Now that we have got our own state, our own government elected by the people, with a President elected by the people and of the people . . . there is no danger of civil liberties being trampled under ruthlessly and carelessly as it has been done in the past under British rule.’3 Most members professed similar confidence in their government when it came to the protection of fundamental rights, even while expressing concern for the misuse of provisions such as preventive detention. Durgabai Deshmukh4 was only echoing majority sentiment when, in a moment of rhetorical flourish while discussing preventive detention, she forcefully asked, ‘Can there be a greater advocate and champion of personal freedom than our government, our Prime Minister, and our Deputy Prime Minister who always are here to give relief to the poor, and the needy and those who suffer?’5
Personal freedom, civil liberties and individual rights had thus been a constant theme running through the tenure of the Constituent Assembly, at the back of every member’s mind and the backdrop to a great many debates over the specific forms of their manifestation in the Constitution. The appointment of the redoubtable Sardar Vallabhbhai Patel as the chairman of the Advisory Committee on Fundamental Rights, Minorities and Tribal and Excluded Areas demonstrated the importance that the assembly attached to these subjects. Despite his own ambivalence towards expansive personal freedoms and his desire to subject them to grounds of public order, morality and grave emergencies,6 the Sardar still very much acknowledged the all-encompassing nature of fundamental rights as a concept.
He was fully conscious that they represented a break from the colonial past and placed major restrictions on the formidable powers that the colonial state had granted itself under the Government of India Act, 1935. The supremacy of the Constitution was noted and definitively asserted by Patel when he presented the interim report of the Advisory Committee to the assembly in April 1947. Fundamental rights were to be justiciable—enforced by the courts of the land. They were to stand above all other legislation, previously enacted laws and regulations which would have to comply with them under all circumstances. This was the crux of Clause 2 in the interim report he presented, which basically stated that all laws and regulations inconsistent with the rights guaranteed by the Constitution would stand abrogated. This indeed was to be critical to the new independent republic shedding the baggage of its colonial antecedents.
Everything considered, the very purpose of having fundamental rights in the Constitution was to safeguard individual freedom, both from executive fiat and legislative overreach, bad regulation as well as repressive legislation. This was the position that Patel supported and endorsed when he encouraged the assembly to adopt this clause. He declared:
It is essential that this clause should be passed if these rights are considered justiciable and fundamental. If they are not justiciable then they are not consistent. But if it is considered that those clauses which confer rights on citizens which could be enforced in law, then it is necessary that any act, custom, regulation or notification which takes away or abridges this right must be abrogated. Otherwise it is meaningless.7
When the clause was put to vote by President Rajendra Prasad, the principle ‘that all existing laws, notifications, regulations, customs or usages in force within the territories of the Union inconsistent with the rights guaranteed under this part of the Constitution shall stand abrogated to the extent of such inconsistency’ was unanimously accepted by the Constituent Assembly, to loud and persistent applause.8
Thus, as early as April 1947, even before the provisions on fundamental rights were given concrete shape or inserted into the Constitution, the centrality of fundamental rights, and the principle that all existing and future laws inconsistent with them would stand invalidated, was accepted and confirmed by the founding fathers. So was the principle that they were justiciable—that ordinary citizens would move the courts to protect those rights, and the courts would judge whether laws or regulations contravened the rights that the Constitution would guarantee. Even more importantly, these fundamental rights were not thought of as expedients to be junked at momentary difficulties but as enduring and permanent guarantees to citizens, as Nehru himself argued before the assembly. ‘A fundamental right should be looked upon, not from the point of view of any particular difficulty of the moment,’ he surmised, ‘but as something you want to make permanent in the Constitution.’9
These principles—that fundamental rights were permanent guarantees to be upheld even when it was inexpedient, that laws and regulations inconsistent with constitutional provisions would be abrogated and that the extent of inconsistency would be judged by the courts—formed a clear dividing line between colonial and independent India. They became Article 13 of the new Constitution. This conception of fundamental rights and their position in the political, institutional and legal framework of the new republic was the foundation of the Constitution and the constitutional order. It undergirded the lengthy debates over the wordings and insertion of specific articles. It was accepted across political divides, even when limitations to fundamental rights were written into the Constitution itself.
In this way, when the Constitution came into force on 26 January 1950, it was not only the result of endless study and discussion in the Constituent Assembly and an endless search for compromise, as K.M. Munshi wrote, but also a broad acceptance of the principles that underlined the whole enterprise.10 Everyone—the press, concerned citizens, legal experts and assembly members themselves—understood, accepted and loudly proclaimed the implications of the fundamental rights (and their limitations) enshrined in the Constitution. This included proponents of limitations on fundamental rights who wished to prioritize the needs of the state, like Munshi himself.
Highlighting the features of the new Constitution, the Times of India boldly wrote, ‘Laws inconsistent with the provisions of the part on fundamental rights shall to the extent of such inconsistency, be void.’11 It noted that there were no exceptions, that any law in contravention would automatically stand nullified.12 That the courts were to judge the extent of such inconsistency was also not lost on anyone. ‘These articles are primarily intended to warn the legislatures that they should be careful in legislating in this field,’ wrote K. Santhanam, assembly member and future minister, ‘and that the Supreme Court has the final, if an indeterminate, voice in these matters.’13 ‘The judiciary is, and always will be, the guardian of the people’s liberties,’ added M.C. Chagla, the chief justice of Bombay (and another future Cabinet minister).14
These were precisely the implications that gave the chapter on fundamental rights its elemental importance. It was no surprise that Ambedkar proudly described individual rights and constitutional remedies to enforce and safeguard them as ‘the heart and soul of the whole Constitution’.15 It was for these reasons that on its inauguration, analysts of the new Constitution called it ‘the most elaborate declaration of human rights yet framed by any state’,16 the foundation of India’s republican freedom,17 fulfilment of the Congress party’s pledge of purna swaraj to the p
eople18 and the ‘biggest liberal experiment in democratic government.’19
Despite the fact that limitations on these rights and the grounds for circumscribing them were written into the Constitution itself, such overarching praise was more than justified for the simple principles that Patel had emphasized as far back as 1947, principles that underpinned the entire constitutional edifice—fundamental rights as permanent guarantees that were judged and enforced by the courts, and which no ordinary laws could contravene. This explicit, unambiguous principle was the line that set the new republic apart from its colonial predecessor. It signified, in Nehru’s own words, ‘the beginning of a new era’.20
Yet, when the new era dawned on 26 January 1950, it roused profoundly ambivalent feelings within the government and the establishment. ‘Few of us, I suppose, are satisfied or feel happy about conditions in the country,’ wrote Nehru.21 Now that the last remaining tie with the erstwhile colonial masters was broken, it was as if nationalist stalwarts who had seamlessly transitioned from colonial prisons to the mansions of Lutyens Delhi, with all the trappings of power and paraphernalia of authority, finally awoke to the enormity of the change that had been wrought. Their own commitment to the freedom of their fellow citizens was about to be tested.
Ambedkar had openly expressed his anxiety before the Constituent Assembly that India might lose both its Constitution and its democratic freedoms in the future. Given the lack of a democratic tradition, the rampant presence of ‘bhakti’ or political ‘hero worship’ and the wide disparity between the republican promises of the Constitution and rampant socio-economic inequality, he thought this a distinct and ever-present possibility.22 As the new republic was announced, Patel weighed in with cryptic pragmatism, telling the people, ‘We worked hard to achieve our freedom. We shall have to strive harder to justify it.’23 Santhanam struck a note of caution: ‘If the people of India are not imbued with the principles of individual liberty and their representatives in the Central Parliament and State Legislatures are inclined to be tyrannical,’ he warned, ‘the constitutional provisions will give the citizen only a very limited protection.’24
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