4
The Gathering Storm
The year ends
Amidst chatter of a constitutional amendment and an impending attack on the freedom of the press, Prime Minister Nehru addressed the annual session of the All India Newspaper Editors Conference (AINEC) on 3 December 1950. Rights did not exist without obligations, he warned them, and freedom came with responsibility:
I think I can say that whatever our other failings may be at the present moment, the amount of freedom of expression that is allowed or indulged in by the press can hardly be exceeded in any country in the world. I shall be quite frank with you. Much that appears because of that freedom seems to me exceedingly dangerous from many points of view. Nevertheless, I have no doubt in my mind that the freedom of the press from the larger point of view, is an essential attribute of the democratic process.1
The assembled newspapermen, who had been worried by the prospect of being leashed by the government, took Nehru’s caveat about the democratic process and his view that ‘it was bad to interfere with freedom’ to mean that there was no longer any fear of the Constitution being changed to restrict the freedom of the press.2 Deshbandhu Gupta, AINEC president and a member of Parliament, thanked him voluminously for this assurance. ‘Many of us feared,’ he said, ‘that in view of certain judgments given by the Supreme Court and the High Courts, there might be some attempt to modify the Constitution with a view to curbing the press. I particularly value the assurance you have given in this respect.’3
Nehru, who had already directed the law ministry to prepare a draft of the amendment, did not care to correct him. Unbeknownst to the doyens of the press, while they were thanking the prime minister for his graciousness in abandoning the idea of a constitutional amendment, their shackles were already being prepared. Even as his assurances pacified the agitated pressmen, Nehru complained to Bidhan Roy: ‘We have been putting up with the most virulent writings in the press, because we were told we could do nothing about it since our judges have interpreted the Constitution.’4
In the Supreme Court, where the Patna High Court’s decision to strike down the Bihar Management of Estates and Tenures Act had been challenged by the Bihar government, the judges declined to hear the appeal and directed that the matter should be taken up only after the high court had disposed of the application challenging the validity of the Bihar Land Reforms Act.5 It was another red flag in the government’s eyes. In the meantime, G.V. Mavalankar, the Speaker of Parliament, wrote to the prime minister to express his concern about the government’s reckless use of ordinances to bypass regular parliamentary procedure and debate, endangering the conventions of democracy even before they had taken root.
‘Parliamentary procedure is meant to give the fullest opportunities for consideration and debate and to check errors and mistakes creeping in,’ came Nehru’s perfunctory reply. ‘That is obviously desirable. But all this involved considerable delay. The result is that important legislation is hung up.’6 Irked at being called out on his errant ways, he offered a simple explanation to the speaker that discussion and debate were holding up important legislation and taking up too much time. ‘We are living in rather extraordinary times both from the national and international points of view,’ he added by way of justification, ‘and the situation changes from day to day.’7
By this point, with the government still feeling like it was under judicial siege and the prime minister feeling like he was being pushed further and further into a corner, notions of democratic process, traditions and conventions were quickly being thrown by the wayside. In the wake of Patel’s death, the balance of power in the government had tilted overwhelmingly in Nehru’s favour8—and with the brakes on his power rapidly dissolving, residual commitments to constitutionalism were also fast being dispensed with. On 18 December, within days of Patel’s funeral, he wrote to his chief ministers:
Recent judgments of some High Courts have made us think about our Constitution. Is it adequate in its present form to meet the situation we have to face? We must accept fully the judgments of our superior courts, but if they find that there is a lacuna in the Constitution, then we have to remedy that. The matter is under consideration.9
When the Constitution had been inaugurated, it had been taken to signify a clean dividing line between the colonial past and the republican present; a representation of the nationalist resolve to shake off the state’s colonial antecedents; evidence of the new government’s commitment to freedom and republican democracy. By December 1950, it was clear that not only was this line more blurred than imagined, in many cases, it did not exist at all. The new republican government, much like its colonial predecessor, was finding it excruciatingly difficult to function within constitutional bounds. Congress figures, the inheritors of the Raj, were proving to be almost as irascible, as intolerant of criticism and challenge, and as eager to jail dissidents as their former British overlords. Judicial pronouncements restricting executive action became identification marks for deficiencies in the Constitution. Fundamental rights, the heart and soul of the Constitution barely a year ago, were now lacunae that needed fixing. Indeed, the Constitution itself was now a problem that needed a remedy.
Over the years, Nehru had been variously described as proud, rash, stubborn, impetuous, petulant and intemperate. Sardar Patel had interpreted Nehru’s conception of his own role as prime minister to be ‘wholly opposed to a democratic and cabinet system of government’.10 The writer Nirad C. Chaudhuri was to call him ‘virtually a dictator but not a scoundrel’, a dictator without a dictator’s will.11 Over a decade before his first taste of executive power, in a fascinating self-portrait, Nehru himself had claimed to have all the makings of a dictator.12 As the year ended and the first anniversary of the republic approached, the epithet ‘authoritarian’ began to gain public currency. On the final day of 1950, Nehru affirmed his desire to his chief ministers: ‘ . . . we have to make clear that no individual in India, whoever he may be, can challenge the authority of the State or of Parliament . . . So far as we are concerned, we are not going to tolerate any defiance of the State’s authority.’13
The anniversary of the republic
The Uttar Pradesh Legislative Council, which had been making its way through the gigantic Zamindari Abolition and Land Reform Bill, suggested a number of amendments and sent the bill back to the legislative assembly for consideration on 22 December. ‘The Government’s No. 1 election winning measure—otherwise known as the Zamindari Abolition Bill—has been returned to the Assembly by the Upper House with minor changes,’ reported the Times of India, ‘But the bill is as good as on the Statute Book, for the only freedom now left for Congress MLAs is to vote as they are told.’14 Zamindar elements within the legislature, emboldened by the stiff fight being put up by their compatriots in Bihar, warned the government that it was counting its chickens ‘without bothering to check whether they will be hatched’.15
The UP Legislative Assembly, which had been in recess, was summoned back for a special session on the first day of the new year to accommodate the government programme of announcing the end of landlordism on 26 January, the first anniversary of the new republic.16 In the zamindar camp, preparations to challenge the bill in court were on full speed under the watchful eye of P.R. Das, the acclaimed lawyer and civil liberties activist who had been chosen to pilot the case.17 After the unpredictable twists and turns that the land requisition battle had taken—and was still taking—in Bihar, political observers watched, enthralled, as another critically decisive clash took shape. Events now moved at lightning speed.
At 5 p.m. on 10 January 1950, the UP Legislative Assembly accepted the amendments recommended by the Legislative Council and passed the final version of the Zamindari Abolition Bill, a full four years and six months after it had first been drafted. As Democratic Party legislators, led by Nawab Jamshed Ali Khan of Baghpat, staged a walkout in protest, they were heckled from the Congress benches, which rang out with loud slogans of ‘Bharat Mata ki J
ai’18 and ‘Kisan Mazdoor Raj Zindabad’.19 Six days later, the final version of the bill went to the Legislative Council, where it was quickly passed and sent to the governor. The governor, in turn, promptly sent it on to the president for his assent.20 UP Chief Minister Govind Ballabh Pant was determined to bring the curtains down on the old order on Republic Day. The representatives of the old order, inspired by the victories in Bihar, were equally determined to make a stand. Both the government and the zamindars girded their loins for the battle they knew was now unavoidable.
Neighbouring Bihar had its own concerns. It had been asked to file its reply to the suit initiated by the maharaja of Darbhanga.21 Forty-eight hours after UP had passed its bill, the state of Bihar filed its reply with a prayer to dismiss the maharaja’s suit. The affidavit argued that ‘the abolition of the zamindari system and the introduction of certain land reforms in the state as envisaged by the Bihar Land Reforms Act are essential to achieve the economic progress of or promote adequately the welfare of the people of the state’.22 Clause 4 of Article 31, which governed and restricted the right to property, basically stated that if a law for acquisition of property received the president’s assent, then notwithstanding anything else said in the Constitution, that law could not be challenged in a court on the ground that it did not fix the amount, principle or manner of compensation. The state therefore contended that since the Act had received the assent of the president, no question of compensation could be raised in the court—indeed the court itself was unqualified to adjudicate on the matter.23
Meanwhile, in Delhi, true to Nehru’s instructions, the law ministry had already got to work to prepare draft amendments to the Constitution. On 6 January, Joint Secretary S.N. Mukherjee—who, as chief draftsman in the Constituent Assembly Secretariat, had played a pivotal role in the drafting of the Constitution—prepared a note detailing his mechanism to safeguard legislation restricting the freedom of speech from the judiciary.24 The Constitution permitted the imposition of ‘reasonable restrictions’ on most fundamental rights in Article 19, such as the right to assemble peaceably or the right to form associations. No such qualifications were available as far as the freedom of speech and expression was concerned. Mukherjee recommended the removal of the word ‘reasonable’ from all parts of Article 19 to achieve consistency throughout the article, and the addition of a provision to enable the government to make ‘restrictions’ to the freedom of speech for whatever purposes it desired. In this way, Mukherjee concluded, the government would be able to both draw up legislation imposing restrictions on fundamental rights, and preclude the need to justify the reasonableness of such legislation before the courts.25
Mukherjee’s superior, Principal Secretary K.V.K. Sundaram, agreed, and proposed a rewording of Article 19(2) to enable the government to impose ‘restrictions’ (without the qualifier ‘reasonable’) on the freedom of speech. He suggested that grounds for such restrictions be expanded to include the interests of the security of the state (rather than undermining the security of the state), public order, decency, morality and relations with foreign states.26 Sundaram, apparently encouraged by Bihar chief minister Sri Krishna Sinha, also came up with the idea of wording the amendment to completely exclude judicial review of zamindari abolition legislation—the genesis of what would become the infamous ninth schedule.27 Both Mukherjee and Sundaram concurred with the government’s view that politicians and legislatures were, and should be, the final authority deciding the nature of restrictions on fundamental rights, not the judges and the courts.28 The notes were sent to Law Minister B.R. Ambedkar and Prime Minister Nehru for their perusal.
Zamindars from across Uttar Pradesh gathered in Allahabad and Lucknow in anticipation of a presidential nod for the UP Zamindari Abolition Bill, which was expected at any point before 26 January. They were armed for battle. ‘Over 1000 applications for writs of mandamus and prohibition under Article 22629 of the Constitution against the enactment of the Uttar Pradesh Zamindari Abolition and Land Reforms Bill are proposed to be moved by the zamindars of the State in the Allahabad High Court within the next few days,’ reported the Times of India on 18 January.30 The government, the Opposition and political observers of all hues watched with bated breath.
On 24 January 1950, President Rajendra Prasad gave his assent to the bill, described by the Hindustan Times as ‘the biggest socio-economic Central or State legislation yet’.31 Chief Minister G.B. Pant, who received news of the presidential assent around 3 p.m., called it the ‘consummation of many years of labour and fulfilment of the Congress pledge to the peasantry’ and declared that ‘the fabric of the new order’ was now complete.32 Within the hour, hundreds of petitions challenging the validity of the act were making their way to the high court benches in both Allahabad and Lucknow, pre-empting the publication of the new law in the Gazette of India. By the time the day was over, the applications of more than 4000 zamindars had been filed, sending the authorities into a tizzy. Carrying the briefs of the maharajas of Balrampur and Kapurthala, P.R. Das rolled up his sleeves.
Like their Bihari cousins, UP’s aristocrats—the big, the small, the affable, the astute, the benevolent and the degenerate—suddenly and collectively found themselves recast as guardians of fundamental rights. The transformation of India’s feudal lords, scorned in Nehru’s India as a class of vicious parasites and ruthless exploiters out of step with the republican mood, into defenders and promoters of constitutional freedoms was one of the many moments of supreme irony that the first years of Nehruvian politics was to generate.
The petitions were heard by benches in both Allahabad and Lucknow the next day. Arguing in Allahabad, Das contended that the bill served no public purpose beyond giving effect to Congress policy, and ‘public purpose was not public policy. The policy of the party in power was not public purpose’.33 In his view, even the presidential assent didn’t protect the law from challenge because ‘an unconstitutional Act was no law, and it did not confer any right and it did not impose any duty’. ‘This piece of legislation,’ he asserted before the court, ‘is a fraud on the Constitution. It defies the terms of Article 31. It offends Article 19. It infringes Article 13.’34 Das prayed to the court to issue an injunction to the state preventing the takeover of any property until the zamindars’ petitions were disposed of.
Both benches of the Allahabad High Court granted the zamindars’ prayers and ‘issued interim injunctions restraining the UP Government from taking possession of the zamindars’ properties in UP and from issuing any notification under Section 4 of the Act specifying the date of vesting of the estates in the state . . . pending the disposal of the applications.’35 To forestall any precipitous action by the government while the courts were closed over the weekend, the Lucknow bench even said ‘that the order would be drawn up immediately and communicated to the parties’.36 The socio-economic fabric of Pant’s new order was not complete just yet.
The Uttar Pradesh government and the Congress leadership were shocked and dismayed. The grand plan for a triumphant announcement of the end of the old order on Republic Day had been blown out of the water. Instead, on 26 January 1951, India awoke to the headline ‘Zamindari Abolition in UP Stayed: Allahabad High Court Issues Injunctions’.37 The old order was not going to give in without a fight. What was to become of zamindari abolition in Uttar Pradesh? No one could quite say. Even though the act itself remained to be examined, the psychological blow was tremendous. Unlike the fumbling in Bihar, in UP, the land reform programme had been painstakingly and fastidiously drawn up under Pant’s leadership to reflect his maxim ‘justice to all and injustice to none’. If such a meticulous scheme could be stalled, who could predict the future course of events? The very future of zamindari abolition now in the balance, there was confusion and hysteria within the ranks of the Congress party.
Work begins in earnest
On the morning of 25 January 1951, the Congress Working Committee (CWC) met at the All India Congress Committee headquarters at 7, Jantar
Mantar Marg in New Delhi for over three hours to discuss ‘the question of how to galvanize the Indian National Congress so as to maintain its moral and political hold over the people’.38 Over much of the final quarter of 1950, with the death of Sardar Patel, splits in provincial units in UP and Bengal and the formation of a dissident ‘Democratic Front’ led by Acharya Kripalani and Rafi Ahmed Kidwai, newspapers had often asked if the party was going to crack or whether the departure of such senior figures would make a dent in its popularity.39 At the CWC meeting, many in the party, including the prime minister, now ‘stressed the necessity of doing something to pull up the Congress organization so that its policy and programme may attract the people much more’.40 Other more passionate members ‘pointed out that the Congress organization had already laid down its economic and social programmes and it was now for the government to give shape to those programmes’.41
It was against this backdrop, hours after the CWC meeting, that news of the injunctions issued in Allahabad was received in Delhi. In the meeting, Nehru had been told by several members in no uncertain terms that to attract more people to the Congress, it was imperative that the government implemented the party’s social and economic programmes. Zamindari abolition and land reform were a critical part of this programme, the central pillar of its social and economic agenda. The news from UP, coming hours after this meeting and months after a similar set of events in Bihar, must have seemed to him a body blow. With both high courts having stayed the operation of zamindari abolition laws while they decided on their constitutional validity, the entire land reform agenda effectively ground to a temporary halt. It might pass the hurdle, or it might not—but the very fact that the party’s social agenda, which he himself had mostly dictated, was having to face up to the Constitution and the judiciary was to him a step too far. The prime minister was livid.
Sixteen Stormy Days Page 11