Sixteen Stormy Days

by Tripurdaman Singh

  Decisions, decisions

  Two days after the prime minister wrote to Ambedkar conveying his desire for a constitutional amendment, the Union Cabinet met in Delhi. An enfeebled Sardar Patel, now mostly confined to his sick bed, was unable to attend. Nehru was now supremely in command. The cabinet officially directed the law ministry to examine the issues of land reform, nationalization, regulation of the press, incendiary speech and sedition, and accordingly prepare draft amendments to the Constitution.76 Others present in the meeting, including Maulana Azad, C. Rajagopalachari, B.R. Ambedkar and Jagjivan Ram, concurred with the idea. With Patel’s health rapidly failing and Nehru’s authority unchallenged, there were none left within the government to question the desirability of a constitutional amendment. Even as the Supreme Court was seized of the matters, much before any judgments had been delivered, the Union government had already decided, at least in principle, to amend the Constitution.

  That very day, as the Cabinet deliberated, another petition concerning the infamous Madras Communal General Order was filed in the Supreme Court. In this case, the petitioner was B. Venkataramana, a Brahmin advocate from Nellore who had applied for the post of district munsif77 in the Madras Subordinate Civil Judicial Service. Venkataramana had degrees in law and mathematics, and had done well in the examination and the viva voce conducted by the Madras Public Service Commission. Since the selection was done in June 1950 in pursuance of the strict caste and communal ratios prescribed in the Communal GO, the petitioner had found himself without a spot in the list of selected candidates. On 21 October, he approached the court with a prayer to direct the authorities to consider his application on its merits, without taking into account questions of caste and community.78 Much to the chagrin of the Madras government, already dealing with the political fallout of the decision pronounced by the Madras High Court on the matter of reservations in educational institutions, the Supreme Court accepted the petition and directed the government to file a reply.

  Still hopeful of having a general election by the next summer, Nehru spoke directly to the chief electoral officers of all the states on 31 October and directed them to ensure that an election was held before May 1951. ‘The present government,’ he informed them, ‘could not continue to act as a caretaker government for an indefinite period.’79 The prime minister’s awareness that he was heading a caretaker government that lacked the legitimacy of a democratic mandate was admirable, and combined with his desire for an early election, served to burnish his democratic credentials. But it made his clash with the Constitution, his attempts to undermine fundamental rights and his decision to seek a constitutional amendment in order to have his own way all the more jarring. He wanted democratic validation, he wanted the boost it provided to his global image—he was just not willing to pay the price that leading a republican government entailed. In any case, with their grand social revolution yet to get off the ground, most Congress chief ministers were reluctant to go to the electorate. They certainly had no intention of complying with Nehru’s requests.

  In Madras, the government led by P.S. Kumaraswamy Raja had just filed an appeal in the Supreme Court against the high court’s decision on the Communal GO. Backward caste groups were clamouring for a constitutional amendment and accusing Congress leaders of betrayal, Dravidian ultras were demanding secession, and the Communist Party of India in the Telegu-speaking parts of the state had decided to abandon armed rebellion in favour of electoral politics. In such a situation, given its inability to defend its own social agenda, the party’s provincial unit was terrified of going back to the people. What would it tell them—that reservations were unconstitutional and they should simply accept the new status quo and move on? The prospect was too frightening. The party’s subsequent failure to win a majority in the next election—with the chief minister and almost half the cabinet failing to win their own seats—testified to the fact that Raja’s fears were not without merit.

  A similar state of affairs prevailed in Bihar. With the fate of zamindari abolition still hanging in the balance, land redistribution still a chimera, and its ability to stifle unfriendly political voices severely eroded, Sri Krishna Sinha’s government dreaded the prospect of facing the electorate. Faith in Congress pledges was running low, and neither Sinha nor his colleagues were in any rush to test their popularity. Likewise, in Punjab, where an intense battle was being waged between the Congress and the Shiromani Akali Dal, the Sikh party, there were growing cleavages between Hindus and Sikhs. Demands for a separate Sikh-majority state were being voiced, and Akali leader Master Tara Singh—a fearsome Congress critic—had been thrown into jail for sedition along with hundreds of his supporters in a blatant misuse of police power.80 Like their counterparts in Bihar, Congress leaders in Punjab were also loath to face the voter in this situation.

  By dragging their feet when it came to ensuring administrative preparedness for an election, the obstructionist chief ministers were effectively scuttling the prospect of it taking place in the first half of 1951. Punjab, Bihar and Madras plainly confessed that they could not hold elections in April and May 1951 and suggested postponing them till October.81 But they were not the only ones. As the Times of India reported on 12 November:

  An informal decision to postpone the first general election under the new Constitution until October next year has been made by the government . . . despite the Election Commission’s preparedness to have the preliminary arrangements completed in time, pressure from a good number of states, for one reason or another, has impelled the Central Government to postpone the elections by six months.82

  Ultimately however, the prime minister himself was in sympathy with this position. In private, he himself had voiced similar opinions, accepting that having raised the public’s expectations, he couldn’t go back on his word—complaining about the Constitution getting in the way; or assuring his party colleagues that the Constitution would be amended to fulfil the pledges in the Congress manifesto. Nehru was personally identified with the policies in question, especially land reform. In spite of his public stance, he was thus equally hesitant when it came to facing the voter while zamindari abolition, nationalization and reservations remained constitutionally suspect—a feeling to which he would freely admit some time later. More importantly, having already declared his resolve to avoid all delay in the fulfilment of the party’s social agenda (for delay was dangerous) and having recently instructed Ambedkar to prepare the draft amendment to the Constitution, he was hardly likely to have wanted to get drawn into a lengthy election campaign that would further delay any attempt to settle these questions.

  Consequently, the Union government decided to postpone the general election to November 1951.83 That would give it enough time to win its judicial battles with the Constitution. The volte-face by the prime minister, who had been publicly insisting on early elections till a few weeks ago, caused considerable disquiet in the ranks of the Opposition, which foresaw grave danger to the democratic future of the country.84 Socialist leaders Jayaprakash Narayan and Acharya Narendra Deva, for example, expressed ‘grave concern at the sudden postponement of general elections’ and ‘called upon the government to lay down a definite programme for holding the election all over the country and give a solemn promise that they will adhere to that programme’.85

  With his dominance over the party now secured and plans for constitutional change already being drawn up, democratic propriety was, however, far from Nehru’s mind. For example, in an apparent concession to constitutional rectitude, the prime minister directed all ministries to refer to him as ‘Shri Jawaharlal Nehru’ rather than ‘Pandit Jawaharlal Nehru’ since titles denoting castes and communities—obvious markers of community identity—were now against the Constitution.86 Yet, behind the scenes, blueprints were already being prepared to maraud the very same aspects of the Constitution in the headlong pursuit of the Congress’s social revolution. In the obdurate, unvarnished attempt at building a Nehruvian state, propriety was an early
casualty. And in the corridors of power, constitutional amendments could not be expected to remain secret.

  Out and about

  With whispers of a government attempt to change the Constitution growing louder, the latter part of November 1950 brought little cheer to its leaders. On 16 November, Justice S.R. Tendolkar of the Bombay High Court, speaking under the auspices of the Bombay Progressive Group, publicly warned that ‘power was an incomparable intoxicant and the tendency existed in governments the world over to encroach upon citizens’ rights’. ‘Eternal vigilance being the price of liberty,’ he exhorted his listeners, ‘it was the duty of every citizen to ensure his fundamental rights were not violated.’87

  As if on cue, on 21 November, the Allahabad District Zamindars Association announced its intention to fight the Zamindari Abolition Act in the courts when it was enforced, on the grounds that it would violate fundamental rights that had been guaranteed under the Constitution.88 Addressing the association’s annual conference, Democratic Party MLA Guru Narain

  [C]alled upon the zamindars to fight the elections in which the Congress would be just another party with its manifesto before the country . . . the Zamindari Abolition Act, the provisions of which were unjust, would be as much an unsettled fact after the elections, with the Congress beaten at the polls, as it was a settled fact today.89

  On 28 November, the Punjab High Court ordered the release of Akali leader and Nehru baiter Master Tara Singh, arrested for sedition and spreading disaffection against the government, who had been cooling his heels in Karnal jail.90 Tara Singh had been charged under Sections 124A and 153A of the Indian Penal Code. Section 124A referred to sedition, and Section 153A referred to spreading enmity between groups or classes of people. Both had become constitutionally untenable after the Supreme Court’s judgments in the Organiser and Cross Roads cases. In its judgment, the court restated the position that there could be no dispute that Section 124A contravened the right to freedom of speech and expression guaranteed by the Constitution and had thus become void. The same could be said for Section 153A.

  ‘India is now a sovereign democratic State,’ the court observed.

  Governments may go and be caused to go without the foundations of the State being impaired. A law of sedition thought necessary during a period of foreign rule has become inappropriate by the very nature of the change which has come about . . . The limitation placed by Clause 2 of Article 19 upon interference with the freedom of speech is real and substantial . . . So long as the possibility of its [Section 124A] being applied for purposes not sanctioned by the constitution cannot be ruled out, it must be held to be wholly unconstitutional and void.91

  The observations were as categorical as the court could possibly get in describing to the executive what the legal and constitutional state of affairs actually was in the new republic. Why governments throughout the country could not understand the obvious was now an open question. Were they simply obstinate? Or were they fundamentally authoritarian and unable to come to terms with constitutional bounds?

  The court’s decision, as observers and commentators noted, could hardly have been otherwise—given the principles the Supreme Court had already delineated. It conferred no new civil liberty, only confirmed a right already guaranteed by the Constitution. Freedom of speech and expression could only be restricted in respect to subjects that undermined the security of the state or tended to overthrow it. Attempts to promote discontent against the government may tend to overthrow the state—or they may not. But as long as the possibility existed that someone promoting discontent against the government but falling short of endangering the very foundations of the state could be charged with sedition, Sections 124A and 153A of the penal code had to be considered invalid. In plain English, the Congress government was not the state. And being critical of it did not amount to undermining the state.

  ‘The law of sedition is conspicuous by its absence in this saving clause [the grounds for restricting the freedom of speech]; and its omission is inevitable,’ noted one commentator. ‘The government is not the State, and it is not open to any government, however broad-based on the will of the majority, to assert imperially after the manner of the Grand Monarque: The State? I am the State.’92 In the words of another, ‘A clear distinction thus exists between the Government and the State. To equate the two, as the Attorney-General sought to do, is to negate democratic freedom.’93 Negating democratic freedom, however, was precisely the plan that the government had—and by this point it was barely bothering to conceal its true intentions.

  ‘Freedom of Speech and Expression and of Association and Assembly,’ as newspapers reported, was causing immense disquiet to the authorities.94 With rumours swirling about Nehru’s decision to press for a constitutional amendment, the suspicion that the Congress was out to breach the legal dyke the judiciary had built around fundamental rights appeared to be confirmed. The impression that the government’s commitment to the Constitution was just a veneer, an expedient to be junked when the power and authority of the Congress party was questioned, now began to catch on in public discourse. For most discerning observers, it was now becoming glaringly evident that constitutional freedoms were under threat and an assault on Part III was imminent. And resistance started to grow.

  The first thing Tara Singh did on release from jail was to state that ‘chaos was certain in the country unless it was freed from the Congress’ and announce his intention to agitate against the proposed curtailment of fundamental rights guaranteed by the Constitution.95 He invited both the Communist Party of India and the Hindu Mahasabha to join him on this common platform. ‘Reports that the Law Ministry has been asked to draft amendments to the Constitution underline the urgency of speedy disposal of appeals,’ urged a major newspaper, and ‘attempts to destroy the democratic content of the Constitution at this stage are to be deplored and should be resisted.’96 Bombay labour leader N.M. Joshi, one of the founders of the All India Trade Union Congress (AITUC), denounced the free and casual use of repressive powers by the government and warned that giving higher priority to the interests of the state in fundamental freedoms would lead to totalitarianism.97

  Socialist stalwart Jayaprakash Narayan alleged that the Congress was inexorably heading towards dictatorship, and cautioned ‘the people against the contemplated attempt by the Government to restrict their civil liberties by introducing amendments in the Constitution.’98 Speakers at the Punjab State Civil Liberties Conference challenged the representative character of an indirectly elected provisional parliament, and its authority to change the Constitution.99 The most savage criticism came in an editorial in the Times of India newspaper:

  It is a tragic irony that our popular governments should at every stage feel the need of repressive laws against which leaders of our struggle for freedom cried themselves hoarse for generations. The whirling of time brings some strange revenges. The decriers of a Government, once termed Satanic, flatter our previous rulers by imitation. They resort to preventive detention even without declaring a state of emergency.100

  Nehru decried Tara Singh’s efforts to ‘bring about strange alliances’ where the only common factor was a dislike of the present government and its policies and argued that it only demonstrated the extreme poverty of Sikh leadership in thought and action.101 ‘[The Sikhs] are excellent soldiers, good farmers and fine mechanics,’ he informed his chief ministers. ‘In spite of this they have repeatedly allowed themselves to be misled and unfortunately, even past experience does not teach wisdom.’102 In Parliament, his cabinet colleague N.V. Gadgil reprimanded the judiciary for ‘going far beyond its legitimate jurisdiction’ by pronouncing on the reasonableness of legislation.103 In correspondence, Nehru himself complained about the ‘tendency on the part of some High Court judges to indulge in strong criticism of the government not only from the bench but also from other platforms.’104

  The cat, so to speak, was now out of the bag. The confrontation between the government and the Constitution
was now public knowledge. In the midst of this turmoil, on 15 December, Sardar Patel, Nehru’s deputy and India’s iron-willed home minister, a true political giant of his time, breathed his last. Over the years, he had exuded an air of calm, collected pragmatism, and exerted a tremendous moderating influence on some of Nehru’s more radical and authoritarian impulses.105 He had, for example, firmly counselled him against trying to use a charge of sedition against Shyama Prasad Mookerji,106 advised him to tread carefully on land reform and cautioned him against straying beyond constitutional bounds. On the other hand, despite his consistent support for constitutional propriety, Patel had been no great friend of personal freedom—and on occasion, had admitted to considering the prospect of a constitutional amendment in the future.107

  Whether Patel would have resisted the idea of a constitutional amendment, or reduced the size and scope of the one Nehru was contemplating, will remain a matter of conjecture. He had submitted to Nehru’s impulses as often as he had contained them. But given his views on the associated issues, it seems quite likely that he would have queered the pitch, especially when it came to provisions concerning the right to property and the right to freedom against discrimination. In India’s political landscape, Patel had been the prime minister’s only rival—in stature, in popularity and in authority. His death removed from the scene the one man who (should he have desired) had both the political capital and the organizational capacity to either thwart Nehru’s plan or check his petulant confrontation with the judiciary. The path to an amendment was now relatively clear.