Sixteen Stormy Days

by Tripurdaman Singh

  The prime minister himself was equally desperate to avoid any such precipitous action, especially military action, that could jeopardize the upcoming meeting with his Pakistani counterpart. He was deeply troubled by the open derision of his leadership and the vocal demand for a decisive showdown with Pakistan by the Hindu Mahasabha—which he accused of trying to push and bully him into war, much against his own wishes.56 He was even more annoyed with the role of the press, especially the vernacular press, where the Mahasabha demand had found wide echo. ‘I feel the Calcutta papers are responsible for a great deal of mischief and this must be brought home to them. They are playing very irresponsibly with fire,’ he later complained to Bidhan Roy. ‘The Hindu Mahasabha and RSS propaganda both for war and for a Hindu State has a very bad effect in the present tense situation.’57 When questioned on the issue later, he harangued journalists for running down his reputation with a campaign based on ‘malicious misrepresentation of facts’ and outright fabrications.58

  Such trenchant criticism of Pakistan, and the government’s policies towards it, by the Mahasabha and the RSS infuriated Nehru, who scorned their idea of nationalism and resented the public pressure they brought to bear. ‘I find that progressively we are being driven to adopt what is essentially the Pakistan or Hindu Mahasabha policy in this respect,’ he lamented to Patel.59 ‘I am being pressed all round for what is called action. This is a euphemism for war,’ he later wrote to Rajagopalachari. ‘I do not react to it favourably and, being perverse, hate being bullied.’60 Just how much he resented this supposed ‘bullying’ would soon become apparent. Visibly riled, he wrote to his chief ministers on 1 March:

  I am certain that the Hindu Mahasabha policy is fatal for India. Their talk of putting an end to partition is foolish in the extreme. We cannot do so, and we should not try to do so. If by any chance partition was ended, while present passions last on either side, it would mean tremendous new problems for us to face. We would be worse off than ever. Therefore, there must be no thought of putting an end to Partition and having what is called ‘Akhand Bharat’.61

  On 2 March, the Central Press Advisory Committee met to consider the items published in the Organiser, and the very same day, the chief commissioner of Delhi issued a ‘pre-censorship order’ under the East Punjab Public Safety Act, requiring the editor and publisher to submit to the government for approval all communal matters and news and views about Pakistan, including cartoons, other than those derived from official sources.62 The order was a blatant attempt not only to curtail criticism of the prime minister and the government, but more specifically, to make public discourse on Pakistan conform to the government’s view. It was a clear indication of where the government’s inclinations lay, the grand promises of the Constitution notwithstanding.

  K.R. Malkani,63 the dedicated editor of the Organiser (who would go on to achieve the dubious honour of becoming the first man to be arrested during the Emergency), however, was not to be cowed. In the very next issue, he defiantly wrote:

  To threaten the liberty of the press for the sole offence of non-conformity to official view in each and every matter, may be a handy tool for tyrants but (is) only a crippling curtailment of civil liberties in a free democracy . . . A government can always learn more from bona fide criticism of independent thinking citizens than the fulsome flattery of charlatans.64

  In the issue of 13 March, he again advised the government:

  If the administration earnestly wants ugly facts to not appear in the press, the only right and honest course for it is effectively to exert itself for the non-occurrence of such brutal facts. Suppression of facts is no solution to the Bengal tragedy. Surely the government does not hope to extinguish a volcano by squatting the more tightly on its crater.65

  On 10 April 1950, within days of the Cross Roads petition, Malkani and Brij Bhushan, the Organiser’s editor and printer, respectively, followed Thapar to the Supreme Court. Here, too, the Constitution became the primary weapon against the high-handedness of the executive. The RSS and the communists, the two opposite poles of the ideological spectrum, found themselves on the same side as victims of the government’s aversion to criticism and its eagerness to control dissenting opinion. Coincidentally (or perhaps not), in the past, both magazines had openly derided the Congress party’s lack of commitment to fundamental rights and called for the repeal of the draconian public safety acts.

  In court, the Organiser was represented by N.C. Chatterjee, former president of the Hindu Mahasabha (and father of future communist stalwart Somnath Chatterjee),66 who argued that the pre-censorship order was an infringement on freedom of speech, and in fact the East Punjab Public Safety Act itself was void because it did not fall under any of the provisos in the Constitution under which fundamental rights could be abridged.67 This case in itself was curious, succinct and informative—and an example of a great tradition of liberal thought within the Hindu nationalist movement that now seems to have been lost and forgotten.68

  * * *

  Over the course of April and May 1950, the Supreme Court concurrently heard both cases: Brij Bhushan v. The State of Delhi69 and Romesh Thappar v. The State of Madras.70 Raising, as they did, vital questions about the interpretation of Article 19(1) of the Constitution of India, which guaranteed the freedom of speech, both cases attracted widespread attention. While the hearings unfolded, outside the courtrooms, concern about the government’s disdain for fundamental rights and its reliance on restrictive colonial era laws was mounting. Questions were raised about the prime minister’s own beliefs, and leading political and legal figures denounced him in the most excoriating terms.

  The socialist leader Jayaprakash Narayan took the opportunity of his address to the All India Civil Liberties Conference on 16 April to lambast the government. ‘The Prime Minister of India talked in the language of dictators when he maintained that when we had to choose between security of the state and freedom of the individual, we must choose the former,’ charged Narayan. In the name of ‘emergency’ (for which he coined the caustic term ‘sankatvad’) and security, there had been cases of arrests and detention which had no relation to the security of the state, he warned, and ‘while lip service was being paid to the ideal of democracy, freedom and civil liberties, those in power did not mean what they said’.71

  The chief justice of the Bombay High Court, M.C. Chagla, castigated the government while giving a public lecture in Poona on 1 May. He took the opportunity to emphatically declare that the Constitution was supreme, that any law that violated fundamental rights was ‘ultra vires’ of the legislature and void, and that judges were the ultimate and final interpreters of the Constitution. In his long speech, he warned against the dangers of emergency legislation and the tendency of the state to seek more and more special and extraordinary powers because ‘the executive could always see clouds on the horizon and every cloud was capable of bringing about a storm’.

  Chagla then proceeded to deliver a stinging rebuke to the Congress party. To directly quote a news report of his speech:

  Ultimately, since it was the party in power that makes laws, . . . it was therefore for that party to place limitations upon its own power and be neither ruthless nor dictatorial in its exercise. But these limitations were objective in their nature and it was for the judiciary to decide whether the limitations conformed to the objective standards laid down. The Constitution had not left it to the party in power in the legislature or the caprice of the executive to limit, control or impair any fundamental rights . . . the right to express opinion, however critical it might be of the government or society as constituted, was one of the most fundamental rights of the individual in a democratic form of government. A facile concurrence with the policy of the rulers was not necessarily a sign of patriotism.72

  At the Democratic Convention in Lucknow—a joint session of the Democratic Party and the UP Zamindars Conference—the prominent jurist P.R. Das,73 president of the All India Civil Liberties Conference, brother of Congress
stalwart C.R. Das, and a former judge of the Patna High Court, bluntly declared:

  We have in India today a one-party state just as Hitler’s Germany was a one-party state, Mussolini’s Italy was a one-party state and Stalin’s Russia is a one-party state . . . The danger which I apprehend is that the government may suppress all political parties which do not believe in the Congress government on the plea that the interests of public order demand that these parties should be suppressed.74

  In Bengal, no less a person than its highest constitutional functionary, Governor Kailash Nath Katju,75 himself a noted jurist (and future Union minister) felt compelled to go on record with the warning: ‘We must take care that in the name of preservation of State and stopping of subversive activities we may not stifle democracy itself.’76

  Narayan, Chagla, Katju, Das—this was not criticism by fringe figures. But even such pointed criticism from the highest ranks of the intelligentsia failed to moderate the government’s stand. The legal battle continued.

  * * *

  The Supreme Court finally gave its verdict on both matters on the same day, 26 May 1950. In the case of Cross Roads, the court quashed the order banning its circulation in Madras. It further held the relevant sections of the Madras Maintenance of Public Order Act, which authorized the government to prohibit circulation of documents in the state on grounds of public safety, to be ultra vires and hence void. It noted that ‘unless a law restricting freedom of speech and expression is directed solely against the undermining of the security of the State or the overthrow of it, such law cannot fall within the reservation under cl. (2) of art. 19 of the Constitution.’77 In the Organiser case, again, the court held that the grounds on which the restriction had been imposed under the East Punjab Public Safety Act did not fall within the reservations provided in the Constitution. As a result, not only was the pre-censorship order quashed, but the relevant section of the Act was also held to be invalid and ‘repugnant to the Constitution’.78

  The judgments expressed a singular precept: that the grounds on which the fundamental right to freedom of speech could be abridged were written in the Constitution itself, and only laws pursuant to those grounds could be held valid. In other words, laws could only impose restrictions based on the criteria in clause 2 of Article 19 in the Constitution itself: libel, slander, defamation, contempt of court or undermining the security of the state. Any other reason, including public order, was unacceptable. Under no law could freedom of speech be restricted, a publication banned or subjected to censorship because it supposedly constituted a threat to public safety or had the potential to create disorder. In order to justify restrictions on free speech, the magnitude of disorder had to be so great that it seriously imperilled the security of the state.

  These were landmark judgments, declaring that the opinions of individual citizens and the views of the press could not be restricted by law on the grounds that they were prejudicial to public order. They ratified the principle, to quote directly from the judgment, that:

  [V]ery narrow and stringent limits have been set to permissible legislative abridgement of the right of free speech and expression, and this was doubtless due to the realization that freedom of speech and of the press lay at the foundation of all democratic organizations, for without free political discussion no public education, so essential for the proper functioning of the processes of popular government, is possible.79

  The Supreme Court’s attitude and the principles it delineated were a resounding blow to the government’s attempt to regulate free expression, stifle critical voices and circumvent their own constitutional provisions. As a frustrated Patel wrote to Nehru, the bottom had been knocked out from penal laws for control and regulation of the press. Sedition could no longer be a crime.80

  In this first major confrontation, the Supreme Court came out decisively in favour of individual freedom and civil liberties. It refused to buy the government’s argument that public safety could be equated with the security of the state, or that the security of the state could be seriously threatened by such critical opinion. The judgments were widely welcomed as laying the foundation of the freedom of the press, and as one newspaper remarked, ‘made it clear that criticism of the government, creating disaffection or bad feelings towards it was not to be regarded as a justifying ground for restricting the freedom of the press unless it was such as to undermine the security of the state’.81 The dreaded public safety acts were toast.

  For the governments, both in the provinces and in Delhi, it was an embarrassing defeat. For dissenters, Opposition figures of all political persuasions, writers, thinkers and intellectuals, this was a major victory that kept the heavy-handed state in check. No longer was it possible for the government to ban publications critical of the Congress party on the subjective assessment of a threat to public order, to stifle dissenting voices by subjecting them to censorship or indeed, to even contemplate new laws for doing so. Henceforth, nothing short of seriously undermining the security of the state would do.

  In the Constituent Assembly, Nehru and Patel had been hailed as ‘champions of personal freedom’, leading a new government, our own government, which would no longer threaten civil liberties. Four months after the Constitution’s inauguration, it was becoming increasingly clear that the champions of personal freedom had feet of clay, that beneath the surface of an ostensibly democratic leadership lurked deeply authoritarian instincts. Evidently, the clear dividing line between the colonial and the post-colonial state that had existed in the minds of many of the Constitution’s founders was more blurred than had been thought, and the establishment’s ambiguity towards fundamental rights deeper than had been imagined. How much of the new republic represented a rupture from the past, and how much of it represented a continuity, was a ratio still being worked out within the top echelons of power.

  Yet, as Jayaprakash Narayan maintained, the central problem wasn’t simply the repressive tendencies of the state, but the inability of the masses, or indeed their leaders, to associate the idea of freedom with civil liberties rather than national freedom.82 This three-way contradiction—between an expansively liberal, enlightened and progressive constitution, a heavy-handed and overbearing state, and a governing party with questionable commitment to fundamental rights—was still to be properly resolved. Further conflict was inevitable. And as one chapter of the confrontation ended in New Delhi, another one, altogether more serious, was already brewing in Uttar Pradesh and Bihar. This chapter would concern the Right to Property and the Congress programme of land reform, and it would shake the government and the establishment to its foundations.

  2

  Will the People Wait?

  The stage is set

  In 1949, before it got down to the more arduous task of drafting and debating zamindari abolition and land reform legislation to enable acquisition of zamindari property, the Bihar Legislative Assembly passed the Management of Estates and Tenures Act to allow the government to take over management of zamindari estates, in anticipation of the eventual dispossession of the feudal magnates once the Constitution of India came into force. While it prepared for final acquisition, the state would manage the estate and pay the proprietor 20 per cent of the revenue.

  Land reform had been a central part of the Congress agenda since the 1930s, and the major pivot around which its grand plans for social engineering revolved. Zamindari abolition and land redistribution were to be the new republic’s biggest social reforms, meant to usher in a social and economic revolution that would remake the social and political fabric of the countryside—breaking feudal power and creating a bourgeois (and more equal) landowning village society more to the Congress’s liking. Most states were thus already gearing up for political combat over land redistribution when the metaphoric first bullet was fired in the far-flung district of Hazaribagh1 in the dying days of 1949—even before the Constitution was formally adopted—inaugurating, in deceptively innocuous fashion, a legal confrontation that was to shake the repu
blic to its core.

  In Hazaribagh, the proud and spirited Raja Kamakhya Narain Singh of Ramgarh—future Swatantra Party stalwart and cabinet minister who became the first person in India to use a helicopter for an election campaign—received a notice from the deputy commissioner informing him that he was soon to be stripped of his power to manage his estate and his employees.2 The raja promptly applied for, and received, an order of injunction from the subordinate judge at the Hazaribagh district court, restraining the government from taking over the management of the Ramgarh estate.3 In a brazen display of bureaucratic power, however, the deputy commissioner calmly brushed off the injunction and had it proclaimed by the beat of drums across the district that people were no longer required to pay rent to the raja.

  Stunned by such open defiance of court orders, the Patna High Court in January 1950 issued a ruling calling upon the state government to show cause why proceedings for contempt of court should not be started against the deputy commissioner and his subordinates for violating the orders of the subordinate judge.4 Stung and embarrassed, the government scurried to file an appeal against the injunction in the high court. The court in turn, after a few short hearings, dismissed the government’s appeal in February 1950 and maintained the injunction against the takeover of further zamindari properties.5 In the interim, with the Constitution having come into force, the court took the entire Management of Estates and Tenures Act up for examination to judge its constitutional validity in a separate suit instituted by Bihar’s pre-eminent zamindar, Maharaja Sir Kameshwar Singh of Darbhanga, one of the new Constitution’s authors and a member of Parliament.6 The Bihar government was left red-faced.