Sixteen Stormy Days

by Tripurdaman Singh

  Nehru’s critics quickly realized that they had little chance of dividing the party ranks against him. The picture was clear: they would either have to sit tight or seek avenues outside the party. His stature and reputation considerably enhanced and his hold over the party cemented, all thoughts of resignation were promptly forgotten as Nehru turned to cutting Tandon and the new Working Committee down to size. But he was right in that there were limits to the tendency to please him. Indeed there were, and Tandon delineated them in his presidential address when he gave ‘his unqualified support’ to the Constitution, calling for it to be worshipped as a symbol of the country’s collective will and aspiration, and describing defiance of the Constitution as a criminal act.49 It was a remark directed as much at Nehru as it was towards his friends in the Hindu Mahasabha.

  Nevertheless, the prime minister returned from Nasik with a spring in his step. With his popularity unquestionable and his authority unchallengeable, with his policies on everything from Pakistan to zamindari abolition definitively endorsed, he now strode like a colossus over the political arena, in a position to dictate terms to his party. Directions were issued to ministers and chief ministers to make their administrative activities conform to not only the words, but also the spirit of the Nasik Congress.50 ‘So far as Congressmen are concerned,’ he informed his chief ministers, ‘ . . . they are bound by the directions issued by the Nasik Congress . . . which must be understood and acted upon.’51

  As he now turned his attention back towards the land reforms bill in Bihar and his plans to rapidly rearrange the socio-economic fabric of the nation, the Constitution really was the only potential obstacle left in his path. His ascendancy was complete.

  Events crowd in

  While attention was riveted on Nasik and the internal politics within the Congress, another vital legal battle had drawn to a close in Madras. In a ham-handed attempt to suppress organizations that the government disapproved of—chiefly Hindu groups, trade unions and propaganda associations functioning as fronts for the Communist Party of India—the Madras government had passed the Indian Criminal Law Amendment (Madras) Act that empowered the state to declare an association unlawful based on its own subjective assessment of the situation. The People’s Education Society, a society supposedly promoting social and political education among the public (in short, indulging in communist propaganda), which had found itself banned under the abovementioned law in March 1950, had challenged its ban and the constitutional validity of the law in the Madras High Court.52

  On 13 September, the court held the Criminal Law Amendment (Madras) Act unconstitutional and hence void. The government had boldly asserted before the court that it had ‘the prerogative to declare associations unlawful and imprison their members in the interests of public order’.53 ‘Such an argument was never heard in England after the Magna Carta and assertions of such prerogatives cost an English king his head,’ the bench sternly admonished the Madras advocate general, ‘and such a contention is unthinkable under our Constitution.’54 In a strongly worded response, the court described the Act as an ‘illustration of the exercise of naked arbitrary powers’ and affirmed the primal importance of Article 19 of the Constitution, which guaranteed the right to form associations or unions. Such rights, as the bench observed, could not be tamed by ordinary legislation.55

  Through this judgment, the judiciary struck another blow for civil liberties. Another repressive law bit the dust. Another ungainly attempt to trample on constitutional rights and assert executive power came to nought. The government received another reprimand from the judges, and was forced to surrender another tool in its arsenal. Having repeatedly been raked over the coals over its lack of commitment to fundamental rights and constitutional provisions, the verdict represented another major embarrassment for the Congress party—especially in the run-up to Nasik. Whether anyone within the organization was paying much attention was anyone’s guess. But to those who were, it was now apparent that when it came to defending civil liberties in the face of executive power, there was going to be no vacillation or prevarication from the third pillar of the state. Government attempts to stymie and evade the Constitution were going to be vigorously contained.

  For the Congress party, with its commitment to zamindari abolition and nationalization newly reaffirmed at Nasik, the resolute position of the judiciary now represented a major concern. In Bihar, where the new Land Reforms Act had just become operational, and in Delhi, where Congress grandees believed their prestige was at stake, it was a cause of existential anxiety. With the first ever general election planned for May 1951 and Congress pledges of social revolution remaining unfulfilled, state governments grew restless and uneasy. In certain provinces—Bihar, Madras and Punjab, for example—anxiety levels were high enough for the administration to attempt to delay the election by studiously obstructing all preparations.

  An annoyed Nehru chided his chief ministers:

  I have written to you frequently about the necessity of having our general elections the latest by May next year. This was easily possible and yet is possible if we work hard. I am sorry to say, however, that some State Governments do not appear to appreciate this urgency and perhaps imagine that they can prolong the preliminaries for as long as they like . . . All kinds of obstructions have been placed in the way of preparation. It would almost appear that there is a deliberate desire not to have these elections fairly early next year.56

  It wasn’t an appearance. There was indeed a deliberate desire to avoid early elections on the part of Congress governments afraid of going to the people. With zamindari abolition, reservations and nationalization still under a constitutional cloud, they were unwilling to face accusations of broken promises. Food shortages were rife, inflation was rampant and the economic outlook remained dire. In this setting, unnerved state governments were keen to put off the prospect of facing a restive population for as long as possible. Earnest as he was in his desire for early elections, there was precious little Nehru could do to either force the hands of his obstructionist chief ministers or assuage their fears. But as he returned from his resounding triumph in Nasik, events took on a momentum of their own.

  The Bihar government issued a notification under the Land Reforms Act on 24 September declaring that from the following day, the three largest estates in the province—belonging to Maharaja Sir Kameshwar Singh of Darbhanga, Raja Bahadur Vishweshwar Singh of Darbhanga and Raja Bahadur Kamakhya Narain Singh of Ramgarh—would pass to and become vested in the state. Already prepared for battle, the three zamindars immediately applied to the Patna High Court for an interim injunction restraining the Bihar government from taking possession of their property. An interim injunction was quickly granted two days later, and a suit was instituted to challenge the constitutional validity of the Land Reforms Act.57

  The injunction effectively restrained the state from taking possession of any landed property until the suit was decided, dashing any hopes the Bihar government had entertained about a swift resolution of the property conundrum. Dreams of expeditious takeover of property, brisk disbursement of land and rapid transformation of the countryside receded into the distance. Zamindari abolition was temporarily halted as the Bihar government was directed to prepare a rejoinder. The threat to the Congress’s social agenda was no longer an academic question, it could no longer be ignored. The possibility of zamindari abolition, the most important element of the government’s socio-economic agenda, being declared unconstitutional was now very real. From the heady days of May and June, the fall in morale was steep and agonizing. The single most important legal battle in the history of the republic had begun.

  Fear gripped the Bihar government. Sri Krishna Sinha, Bihar’s beleaguered chief minister, was now well and truly in a legal and constitutional soup. Legal and constitutional complications, however, were only one problem. The bigger problem was political—and it was a problem for the entirety of the Congress party. A vivid, eloquent vision of a Congress-directed highwa
y to ‘progress’—on which zamindari abolition and land redistribution were crucial milestones—had been conjured up and steadily sold to the public over the years. Animated by this vision, thousands of Congress leaders and workers had gone forth promising social revolution. Along with the devout pledges of Congress leaders, this entire vision was now under serious threat. The party’s agenda or the nation’s Constitution—which was to have the government’s primary loyalty? The question needed an answer.

  A flustered Sinha wrote to Nehru on 15 October expressing his helplessness at the situation and pleaded for Central intervention. The prime minister, equally agitated by the situation, was sympathetic towards Sinha’s predicament. ‘I am as concerned as you are with these quibblings of lawyers coming in the way of our social progress,’ he replied on 19 October. ‘I entirely agree with you that we shall have to consider seriously an amendment of the Constitution. I am consulting the law ministry in regard to it.’58

  Tipping point

  Evidently unmindful of the great legal and constitutional conflicts that had been flowering around them, and seemingly oblivious to the clear and uncompromising stance taken by the judiciary with reference to the Constitution, the Punjab Legislative Assembly waded into the debate over reservations and constitutional provisions in the opening week of October by passing a resolution demanding reservation of posts and employment opportunities in favour of ‘statutory agriculturists’59 and backward classes.60 The passage of the resolution confirmed that caste divisions and urban–rural conflict in Punjab were as sharp as ever.

  Punjab cabinet ministers excitedly went on record with assurances that the resolution, which they labelled ‘a triumph for rural interests’, would definitely be implemented in the near future. ‘How little Ministers and legislators understood the Constitution, or having understood it, honour its provisions is illustrated by the passage of this resolution,’ a prescient commentator observed.61 This ‘triumph for rural interests’, as the incisive commentator noted, was in fact a defeat for the Constitution, which it was ‘the duty of Congressmen more than others to respect’.62 Whether Punjab’s legislators and ministers were wilfully ignorant about what had transpired in Madras or whether they were simply wet behind the ears when it came to constitutional matters is anybody’s guess, but the impression that Congress leaders were amenable to playing fast and loose with the Constitution was now becoming unmistakable.

  A few days later in Bihar, where the state administration was already panicking about land reform, the Patna High Court passed another judgment further embarrassing the government. The case had started in the remote district of Purulia, where Shaila Bala Devi, the proprietor and keeper of the Bharati Press, had published a Bengali pamphlet titled Sangram, calling for a revolution in India—‘a good deal of demagogic claptrap with some pretence to poetic flourish’, in the words of the judges.63 The government had retaliated by using the Indian Press (Emergency Powers) Act, a colonial-era law once used with merry abandon by the government’s British predecessors to muzzle critical opinion, to order her to deposit a security amount of Rs 2000 that would be forfeited if they believed the press was publishing material inciting violence.64 An aggrieved Devi had taken her case to the Patna High Court arguing that Section 4(1) of the Press Act, under which the government could demand and seize security amounts, was inconsistent with the right to freedom of speech.

  On 13 October, the court upheld Devi’s contention and declared the aforementioned part of the Press Act unconstitutional and void. Legally and constitutionally, the powers conferred by the Press Act had already been curtailed by the principles enumerated by the Supreme Court in the Cross Roads and Organiser cases. Through these principles, the Supreme Court had essentially erected a legal dyke around fundamental rights which could only be breached if the security of the state was undermined. Following this lead, there was little else the high court could have said. The government should have read the writing on the wall. In legal terms, therefore, it was a good but unexceptional judgment, a rap on the executive’s knuckles to remind them that the days of repressive laws and curtailment of ‘undesirable’ speech were now over.

  But in the concluding paragraphs of his judgment, Justice Sarjoo Prasad speculated that people were now free to preach murder and violence with impunity. Since such speech would fall neither under the categories of libel, slander or defamation, nor under the categories of contempt of court or offending against morality and decency, and definitely not under the proviso for undermining the security of or tending to overthrow the state, any legislation seeking to curb this right would have to be declared unconstitutional. ‘I cannot with equanimity contemplate such a situation,’ the honourable judge mused, ‘but the conclusion appears to be unavoidable on the authority of the Supreme Court judgments with which we are bound’.65

  Justice Prasad’s musing was not meant to be a declaration of law, only a statement of what he believed to be an anomalous position that he hoped the Supreme Court would soon re-examine and clarify. It merely pointed towards a potential loophole that he hoped would be closed. It did not reconstitute Article 19, it did not even seek to expansively reinterpret it beyond any reasonable assumption. But for a state accustomed to quasi-arbitrary power and resentful at being deprived of it, and for a political leadership given to authoritarian impulses and acclimated to utilizing coercive methods to tackle criticism, the judge’s views provided a perfect alibi for claiming that the Constitution was deficient. They latched on to it with gusto.

  Against this backdrop, the Bombay High Court caused another political earthquake on 16 October by declaring the Bombay State Road Transport Corporation (BSRTC)—through which the Bombay government was attempting to nationalize bus routes across the state—an illegal body and terminating its existence.66 The decision knocking down the much-touted programme came as a huge setback to the Bombay government. For the Congress, which had only recently reaffirmed its commitment to nationalization and controls in nearby Nasik, it was a double whammy.

  The story was this: Nationalization of road transport had faced persistent legal hurdles right from the word go. In Uttar Pradesh, where the government had attempted to nationalize bus routes by executive fiat (denying permits to private operators) in March and April 1950, private bus owners had petitioned the high court arguing that the exclusion of private enterprise was unconstitutional because it deprived them of the right to carry on any trade or profession.67 In that case,68 while the court upheld the validity of nationalization through duly enacted legislation, it had shot down the UP government’s attempt to create a state monopoly by preferentially giving permits to its own Regional Transport Authorities while denying them to private operators.69 An overworked UP government had then had to go back to the drawing board and draft a new Nationalization of Transport Bill, which had pushed their nationalization plans back by several months, besides laying the whole exercise open to potential litigation in the future.70

  In Bombay, even though the legislative assembly had passed a bill conferring wide powers on the State Road Transport Corporation,71 the corporation itself had been set up by a government notification even before the Constitution had come into force, using the authority granted by the Road Transport Corporation Act, a Central law that allowed state governments to set up their own corporations by executive fiat. Bombay had been slightly more circumspect than UP, but it still attempted to use the same method of preferentially granting permits to the state corporation while denying them to private operators. Unsurprisingly, the matter landed in the Bombay High Court, where celebrated lawyer Nani Palkhivala, appearing for private bus operators, argued that the state was unconstitutionally attempting to prohibit private enterprise through the back door.72

  The Bombay High Court partially agreed with Palkhivala, and declared the corporation illegal. It also held the enabling Central act allowing the setting up of state corporations by mere notification, without defining their rights and privileges, to be void, since it amounted
to an unconstitutional abdication of legislative functions by Parliament in favour of provincial governments.73 Again, while the constitutionality of nationalization was not strictly questioned, the court’s decision threw the ball back into Parliament’s court. Even if it didn’t disrupt the government’s nationalization plans, the need for duly enacted enabling legislation, albeit a perfectly reasonable demand from the judiciary, meant an inevitable delay in the entire process.

  K. Santhanam, Union minister of transport, scurried to draft the requisite enabling legislation, which Parliament would eventually pass on 30 November.74 A desperately skittish Union government breathed a sigh of relief. Nationalization, another major pillar of the Congress party’s social agenda, had survived by a whisker. But it had been a mightily close-run affair. And the very fact that the courts had been presumptuous enough to test the legality of nationalization, the very fact that the possibility of it being struck down had been entertained by the judiciary, put Congress politicians on edge. It was as if the party was under judicial siege.

  It was in this context that Nehru wrote to the Bihar chief minister on 19 October assuring him that he was going to consult the law ministry about the possibility of an amendment to the Constitution. Land reform, nationalization and the regulation of free expression coalesced into one big problem. Matters were rapidly reaching a tipping point. Constitution or no Constitution, preparations to break the judicial siege would have to begin. The Prime Minister made up his mind.

  The very same day, soon after he had written to Sri Krishna Sinha, Nehru wrote to Law Minister B.R. Ambedkar ‘expressing the view that the Constitution’s provisions pertaining to law and order and subversive activities needed to be amended. Reflecting on the difficulties the government was having with the courts over other fundamental rights, Nehru added that the provisions affecting zamindari abolition and nationalization of road transport also needed amending.’75 The prime minister and the Constitution were now on opposite sides. The game, to borrow a term from Sherlock Holmes, was now afoot.