Sixteen Stormy Days

by Tripurdaman Singh

  In the end, it was left to Chakravarti Rajagopalachari, the outgoing governor general, to express just how uncomfortable the establishment was with the kind of freedom they were granting their own citizens. ‘We must restore the unqualified reverence for the state that our ancients cultivated, reverence for law and discipline . . .’ he insisted with remarkable candour. ‘In fact, we want a revival of feudal manners and chivalry but in terms of modern democracy.’25 The last official representative of colonial rule, one of the leading figures of Indian liberalism, eulogizing feudal manners and unqualified devotion to the state, even as he vacated his exalted position and the country celebrated the birth of the new republic – it was a moment of fitting juxtaposition that laid bare the contradictions inherent in India’s transition to democracy.

  Rajaji’s views seem like a paean for a mythical past where the state held unrivalled power, and perhaps they were. But more than a yearning for the glories of the ancient past, they probably represented the dawning of the realization that the relationship between the rulers and the ruled had now been altered forever. How or indeed why such unqualified reverence for the state was to be restored, or how compatible this view was with the new democratic and republican constitution, was anyone’s guess. Rajaji did not elaborate. But his statement graphically revealed the deep ambivalence within the Congress establishment towards the Constitution and individual rights, the establishment’s tendency to prioritize the interests of the state over the personal freedoms of citizens, and its distrust of citizens who would choose to exercise the rights that the Constitution was granting them. Just how strong this tendency and this distrust was would soon become apparent.

  The beginning

  In any event, it did not take long for the government to start tripping over the new Constitution. Two weeks past the birth of the new republic, the government was already running afoul of constitutional provisions that it had drafted only a short while ago. On 8 February 1950, exactly fourteen days after the new Constitution came into force, the Bombay High Court struck the first judicial blow by releasing suspected communists who had been detained indefinitely under the Bombay Public Safety Measures Act, finding that such open-ended preventive detention ran counter to constitutional provisions.

  What had happened was this: In May 1949, twenty-eight alleged communists had been detained in Bombay under orders issued by the commissioner of police using powers conferred by the draconian Bombay Public Safety Measures Act. Detained without charge, the unfortunate detainees languished in prison without a trial for eight long months, even as the country’s representatives debated high constitutional principles and drafted independent India’s new Constitution. As later events in Salem showed, the threat of a grisly death at the hands of the police was ever present. With nothing but the government’s whim as a cause, no access to mechanisms of justice, no possibility of parole and little chance of reprieve or release, the twenty-eight detainees faced the bleak prospect of unending detention as 1950 dawned. Almost two years after independence, with democracy on the anvil, little seemed to have changed for those on the receiving end of government power and police batons.

  On 26 January 1950, the situation was turned on its head in ways that no one—government or dissident, police or detainee—had ever anticipated, let alone prepared for. The new Constitution expressly forbade indefinite detention under Article 22, which required an advisory board to approve detentions beyond a period of three months. That heavy-handed state repression could not go hand in hand with the new republican Constitution now became glaringly obvious. Indefinite and open-ended preventive detention was conspicuously and unarguably unconstitutional. The chapter on fundamental rights handed these detainees a powerful new tool to check the dominance of the government, and make a bid for freedom.

  As the Yale historian Rohit De has argued, the Constitution, a document of high principles and supposed elite consensus, came alive in the popular imagination as an avenue to renegotiate the relationship between the rulers and the ruled, between ordinary citizens and officers of the state.26 The detainees were no longer subjects seeking the government’s leniency and clemency; they were free, rights-bearing citizens, newly empowered by the Constitution written in their name, with the ability to knock on the doors of the highest court of the land to demand the liberties guaranteed to them. Suddenly, there was a power beyond the government, beyond the state itself: the power of the sovereign promises that the people of India had made to themselves, which the government, watched over by the courts, was duty-bound to uphold. Taking these promises to heart, the twenty-eight detainees took their battle to court.

  On 6 February 1950, in one of the first major invocations of fundamental rights, the detainees filed a petition before the Bombay High Court challenging the validity of the Bombay Public Safety Measures Act ‘in so far as it relates to the detention of a person for more than three months without the opinion of an Advisory Board as required by the Indian Constitution (under Article 22)’.27 No such advisory boards existed. Caught unprepared, the state found it impossible to fight back. There was a short hearing on 7 February, at which the Bombay government argued that the Constitution could not be applied retrospectively, despite this principle of its applicability to all existing laws being firmly enshrined in the Constitution itself.28 Predictably, the court refused to buy the government’s flimsy arguments and on 8 February 1950, a full bench set aside the orders passed by the commissioner of police. The court took the opportunity to warn the police against using such ‘public security measures’ as a cloak and guise to override ordinary criminal law, making no bones about where judicial inclinations lay.29

  If this wasn’t embarrassing enough for the new democratic government, other setbacks soon followed. The Opposition, led by the Socialist Party and the Peasants and Workers Party demanded the immediate repeal of public security measures in view of their manifest incompatibility with constitutional ideals and civil liberties.30 Two days later, the same Bombay High Court held that the government had no power to extern a person from the province under the Bombay Public Safety Measures Act.31 The Allahabad High Court declared that the wide-ranging detention provisions in the UP Public Safety Act were inconsistent with the Constitution. The Patna High Court, which, on 19 January—exactly a week before the Constitution came into force—had upheld the Bihar Public Safety Ordinance,32 had a change of heart on 15 February and declared the entire act ‘ultra vires’ of the Constitution and hence void.33 Indefinite preventive detention with no recourse to appeals was effectively consigned to history.

  Sardar Patel, the man who had piloted the chapter on fundamental rights and established the principles of their foundation, was caught in a bind. For the tough, no-nonsense home minister responsible for the new republic’s security, the choice was stark. Support civil liberties and allow preventive detention to end, as Opposition figures demanded? Or prevent the erosion of the coercive power at the government’s disposal, as he and his ministry desired? He plumped for the latter. Facing armed communist rebellion in Telangana (and the prospect of it elsewhere), habituated to heavy-handed and repressive methods, still in the process of coming to terms with the new constitutional order, the Government of India scrambled to undo the damage to its legal arsenal.

  A new Preventive Detention Bill was hurriedly drawn up to bring the various security acts in the provinces into one central act conforming to the preventive detention provisions in the Constitution. Advisory boards were swiftly created. Moving the bill in Parliament, Patel described it as an emergency legislation against communists, who ‘constituted a danger to the existence and security of the state,’ which, as he observed, ‘cannot deal with them under the provisions of ordinary law.’34 The safety and security of the newly created republic apparently could not be defended without such drastic legislation—not even against its own citizens in peacetime.

  The new legislation was unanimously passed on 25 February 1950 after Patel threw his weight behind it. But it al
so became clear that Parliament was not entirely comfortable with such repressive legislation. During the debate, Rohini Kumar Chaudhary35 gave vent to the frustrations of many when he dramatically rose to say that ‘had not the Sardar been the author of the Bill, I would have called it a black bill’,36 demonstrating the lingering apprehension in certain sections about the government’s inability to work within the bounds of ordinary legislation. Curiously, however, or perhaps predictably, instead of supporting the courts in doing their job—striking down legislation inconsistent with the Constitution that he himself had drawn up, and upholding the principles he himself had laid before the Constituent Assembly—the home minister took the opportunity to complain that judicial pronouncements were creating major difficulties in the states.37 For those watching the government’s attitude towards constitutional morality, it was not a good omen.38

  How deeply the Sardar held these views is impossible to determine with precision. But the fact that he chose to forego the chance to support the courts indicates a broader sense of annoyance with being held back by constitutional provisions and judicial procedures, and a prioritization of the needs of the state over the freedoms of the individual. Prime Minister Nehru and Deputy Prime Minister Patel differed over many great questions of policy. The use of sweeping powers under the public safety measures, employed in the fashion of their colonial predecessors, was not one of them (a hesitant Nehru’s protestations that they should not function like the British government notwithstanding).39 Their commitment to civil liberties and individual freedom, or the lack thereof, represented a rare consensus between the two giants of Indian politics.

  For the moment, preventive detention survived. Parliamentary intervention created a new legal framework to enable the government to continue jailing citizens without charging them or presenting them in court, or even informing them of the reasons for their arrest. The government breathed a sigh of relief. But even as one debate over public safety legislation was ending, another, altogether more contentious, was only beginning. Its roots also lay in the tumultuous weeks following the inauguration of the Constitution. This time, the flashpoint was the freedom of speech.

  Confrontation over free speech

  On 11 February 1950, barely three days after the Bombay High Court freed the twenty-eight communist prisoners in Bombay, over 200 communist prisoners in the Madras province went on strike in Salem Central Jail. Demanding that they be treated as political detainees rather than as common criminals, the prisoners refused to comply with the jailors’ instructions to work in the workshop or wear the black caps worn by ordinary inmates. A posse of policemen attempted to get the prisoners to revoke their strike and withdraw their demands. The ‘rabid’ communists, according to the minister for jails, Madhava Menon, then attempted to attack the policemen with the ‘timber parts of their looms’.40 In the ensuing fracas, several policemen, including the deputy jailor, were injured.41 So the matter might have ended—a minor footnote in a regional newspaper.

  But the men in uniform, personifying the might and majesty of the state, refused to take such insubordination lying down. The enraged policemen retaliated by locking the 200-odd offenders in a hall with no means of escape and opening fire on them, killing twenty-two people in cold blood and injuring 107 others in a gruesome demonstration of the new republic’s lack of respect for the life and liberty of its citizens.42

  The Communist Party had repeatedly asserted that transfer of power from the British to the Congress did not mean freedom for the people. The savagery of the killings—and the cavalier attitude of the Madras government, which justified the firing—lent credence to this assertion, and left even those without communist leanings shocked and disturbed. Other prisoners went on a hunger strike to protest against the incident. An uneasy Sardar Patel wrote to the Madras government to express his concern about the number of casualties.43 A visibly distressed Nehru fretted about the damage to the government’s reputation and confided his fears to Patel: ‘We are losing the support of the public and a feeling is rising against the police such as existed under the British regime.’44 ‘There can be little doubt’ he wrote, ‘that people in India as well as abroad are greatly perturbed at these developments.’45

  Among the many perturbed people, however, few were as outraged as the young Romesh Thapar,46 editor, printer and publisher of Cross Roads, a left-leaning weekly based out of Bombay that was sympathetic to the communist cause and strongly critical of the Congress party, especially its dubious commitment to civil liberties and its eagerness to jail its communist opponents.47

  In February, Cross Roads published a series of articles criticizing the Madras government over its high-handed actions and its appalling handling of the situation. Wary of further disaffection and afraid that public criticism would hasten support for growing communist activity in parts of the state, the Madras government responded on 1 March by banning circulation and distribution of the magazine in the province under the relevant sections of the Madras Maintenance of Public Order Act. In its issue of 17 March, Cross Roads replied by launching a broadside against the Congress government in Madras, calling the attack on its circulation ‘one more proof that the Congress rulers are afraid of the truth. Their ways are the ways of Hitler and Mussolini. They are out to muzzle the voice of the common people.’48

  Thapar himself was an unusual figure. Nephew of General P.N. Thapar, distantly related to Nehru, he was an establishment man who developed Marxist leanings over the course of his education in England and remained a lifelong member of the Communist Party of India. He was well connected in journalistic circles, having been trained and introduced to journalism by the legendary Frank Moraes, the man who became the first Indian editor of the Times of India in 1949. Born to wealth and privilege, Thapar had started Cross Roads out of a sense of ideological conviction, editing and funding the magazine himself. With age, his radicalism would mellow and he would find himself aligned with the Congress establishment in the 1960s and 1970s, receiving several sinecures of power in the process.

  But in 1950, as a young, articulate and fiery radical, with the strength of the (officially banned) Communist Party behind him, Thapar was not one to roll over easily. He decided to take the fight back to the government, and the new Constitution became his primary weapon. In its issue of 1 April, Cross Roads appealed to its readers to raise funds to legally challenge the ban, and in its issue of 7 April, proudly announced the filing of the petition in the Supreme Court.49 The stage was set for a legal showdown.

  Interestingly enough, this was not the only province Cross Roads was banned in. It had also been banned in Bombay in July 1949 for criticizing police action against trade unionists. As a curious aside, the headline for the offending article in that case had been written by a young college student visiting Bombay for a holiday: Romesh’s sister Romila, who would go on to become one of India’s most distinguished historians.50 Though the ban there had been stayed by the Bombay High Court after several rounds of litigation in October 1949, the matter still remained sub judice when the ban in Madras came into force.

  * * *

  Thapar’s fight with the government in Bombay and Madras was mirrored by another confrontation in Delhi during the same period. In this case, the offending publication was from the opposite end of the political spectrum—the Organiser, the weekly news magazine of the Rashtriya Swayamsevak Sangh (RSS), the Hindu nationalist organization that had been briefly banned from February 1948 to July 1949 after accusations of involvement in Gandhi’s assassination.

  In February, in the context of widespread communal rioting in Dhaka and elsewhere in East Pakistan, and the migration of thousands of Hindu refugees into West Bengal, the Organiser published some items criticizing Nehru and his policies about Muslim evacuee property, the refugees streaming across the border, and the volatile situation in East Pakistan. These included cartoons of Nehru and Liaquat Ali Khan, the Pakistani prime minister, and a piece titled ‘Villains vs Fools’, which argued that ‘t
he villainy of Pakistan is matched only by our own idiocy’.51 In other articles, it demanded the disbursement of Muslim evacuee property to Hindu refugees, who it claimed were being forced by penury to exchange blood for bread at blood banks.

  January and February 1950 had been particularly bloody months for Bengal. As thousands upon thousands of refugees fled pogroms in East Pakistan, the communal situation deteriorated in West Bengal and the police were frequently called out to deal with disorder. Nehru, who had been proposing confidence-building measures and joint commissions to a reluctant Liaquat Ali Khan, came under immense pressure both from within his own party and outside to respond to the situation, even if it meant a forced exchange of populations or military action against Pakistan.52 So sharp was the disapproval of the government’s approach in certain quarters of the Congress that an irate prime minister even threatened to resign, accusing his colleagues of being ‘out of touch with the government’s policies and activities’.53

  Leaders from Bengal, such as the minister of industries and supplies, S.P. Mookerji, supported by the right-leaning press, were particularly scathing in their criticism. Others such as Mahant Digvijainath, the general secretary of the Hindu Mahasabha (and a spiritual predecessor of Yogi Adityanath),54 demanded an annulment of Partition and reunification of India and Pakistan for the benefit of both, pledging their allegiance to the idea of ‘Akhand Bharat’—a demand the government considered unwise, undesirable and downright dangerous, describing it as ‘the stupidest of proposals’ and a ‘direct incentive to conflict’.55