The Allahabad High Court’s decision to grant injunctions to ‘stop any implementation of this legislation’, in Nehru’s opinion, raised several starkly important questions. In his letter to his chief ministers on 1 February, he amply and abundantly set out his views:
Parliament, representing the will of the people, decides on certain essential social reforms. These are then, by a process of interpretation of the Constitution, held up by the judiciary. The result may well be trouble in the rural areas of the States concerned. It is the right of the judiciary to interpret the Constitution and to apply it and none of us can or should challenge that. But if the Constitution itself comes in our way, then surely it is time to change the Constitution to that extent. It is impossible to hang up urgent social changes because the Constitution comes in the way, according to the interpretation of the courts. This has happened in Bihar also. We shall have to find a remedy, even though this might involve a change in the Constitution.42
It was apparent that the prime minister was more or less set on a particular course of action in pursuit of his social agenda. In the background, the law ministry was hard at work preparing for his assault on the Constitution. But even then, Nehru’s views were troubling for several different reasons. First, the injunctions did not ‘stop any implementation of this legislation’, as he asserted—they only prevented the state from making any move to acquire property while the constitutional validity of the law, which on the face of it shared several similarities with the law struck down in Bihar, remained under doubt. Second, neither in Bihar nor in UP had the courts actually pronounced any judgment on the constitutional validity of their respective zamindari abolition legislations. To all intents and purposes, while both were under a constitutional cloud, their legal validity was still an open question awaiting a judicial decision. Even if the high court was to eventually give an adverse judgment, the possibility of an appeal to the Supreme Court remained. In essence, at this point, land reform was delayed but not denied.
That the Prime Minister had already decided, even at this early stage, that it was time to change the Constitution because it was getting in his way was firm testament to the undeniable certitude that in the mind of the establishment, the end result of the unfolding legal battle had already been determined. It was proof of the prime minister’s belief that victory ultimately belonged to him and the Congress party’s social agenda, rather than the Constitution and fundamental rights. ‘Impatient’43 was an adjective often used in conjunction with Nehru—after all, here was a leader who self-admittedly took recourse to ordinances because regular parliamentary procedure took too long. In this case, however, impatience would be an understatement; and even his peers found themselves hard-pressed to understand, much less justify, the prime minister’s almost frenzied rush towards a constitutional amendment.
What Nehru was saying was this. The people’s representatives—an overwhelming majority of whom belonged to the Congress party, and all of whom had been elected on a limited franchise under British rule—had determined a social agenda and passed laws to give effect to it. The judiciary was doing its job by examining the laws when their constitutional validity was challenged. No judgment had yet arrived, and when it did, the law might be found constitutional or it might not. But the legal process of testing legislation against the Constitution was taking up time and delaying the implementation of these laws, thus holding up the party’s social agenda and hindering the social revolution it had promised. They did not want their social agenda to be held up by such mundane questions of legality and constitutionality. Therefore, to nip such questions in the bud and safeguard against them arising in the future, it was now time to change the Constitution. The logical sequence was breathtakingly audacious.
Barely two months after newspaper editors had cheered Nehru in the mistaken belief that his assurances meant that plans to amend the Constitution and curb fundamental rights had been dropped, formal preparation for a constitutional amendment began in earnest. As the week progressed, a Cabinet Committee was constituted for the specific purpose of examining matters related to criticism in the press and piloting the proposed amendment through Parliament. Apart from Nehru, such luminaries as C. Rajagopalachari, Maulana Azad, K.M. Munshi, Jagjivan Ram and B.R. Ambedkar were made members. A similar committee was appointed by the Congress Parliamentary Party to invite opinions and suggestions from MPs and to make recommendations to the government on the party’s behalf.44 It was reported that Thakurdas Bhargava, Mohan Lal Gautam45 (whose daughter Sheela would later become a prominent BJP leader), Renuka Ray and Punjabrao Deshmukh were members.46
The government’s intent to amend the Constitution was now guardedly made public. A newspaper reported on 14 February:
Informed circles suggest, however, that any changes in the Constitution . . . based on the experience gained in its working during the last year, as well as in light of various judicial pronouncements can only be brought forward at the next session of Parliament in August or September. The present phase of discussions . . . on the proposed changes in the Constitution is therefore stated to be exploratory in character.47
‘It is realized in Congress circles,’ the correspondent continued, ‘that they should not hustle through and suggest changes in haste.’48 Little did the correspondents realize that while they reported on the ‘exploratory’ discussions within the Congress party, the government’s preparations were already moving full steam ahead.
In Parliament, Prime Minister Nehru lambasted the press for its supposedly nefarious role in public affairs. ‘May I also say that some periodicals in various parts of India fall very greatly below any standard of decency and legitimate criticism,’ he thundered.
Indeed, it has amazed me to find to what depths these periodicals can fall and how they go on giving publicity to an amalgam of falsehood and indecency . . . I should say something about this false and malicious campaign . . . What I am especially concerned about is the degradation of some parts of our press.49
‘While appreciating the role of newspapers generally,’ he informed his chief ministers, ‘I pointed out [in Parliament] that some weekly periodicals specially had passed all limits of decency and were carrying on persistently a propaganda full of falsehood and malice . . . to remain silent may also have consequences.’50 ‘I have appealed to the newspaper editors to take it in hand,’ he added, ‘[but] if they fail, then something else will have to be thought of.’51 It was not an idle threat.
To take his colleagues and other major figures in the party into confidence, the prime minister requested senior leaders for their opinions on the right to freedom of speech and expression and the right to property. Freedom of expression had been wantonly abused, replied Chief Minister Govind Ballabh Pant of UP. ‘Venomous and filthy attacks are being made . . . against the central and state governments . . . maliciously and in an extremely vulgar and indecent manner.’52 Like the mandarins of the law ministry, Pant also recommended to Nehru that zamindari abolition should be made invulnerable to judicial challenge. He also advised Nehru to think about constitutional support for nationalization.53 Hare Krishna Mahtab, minister of commerce and industry, stated that ‘reasonable restrictions’ would lead to an uncertain legal framework and it would be much better to not have any such qualifiers at all. The real culprits in his opinion—‘serious blunders, impediments in the way of economic democracy’—were actually Article 13, which mandated that all laws inconsistent with fundamental rights provisions would be void, and Article 14, which guaranteed equality before the law.54 Much of the Congress party, Nehru learnt, had now turned against the Constitution and echoed his own views that the people’s constitutional freedoms were in need of pruning. As they waited on tenterhooks for the Patna High Court to announce its decision on the Bihar Land Reforms Act, such extreme opinions became the norm within the ruling establishment.
Pandemonium
The Patna High Court ended the suspense on 12 March 1951 when it held the Bihar Land Ref
orms Act to be unconstitutional and ultra vires because it violated Article 14 of the Constitution by providing for differential rates of compensation for different categories of landholders. It also held that a presidential assent under Clause 4 of Article 31 (that prevented from courts from ruling on appropriateness of compensation) did not debar ‘the Court from entering into the question of compensation in order to decide whether or not the impugned act offended against Article 14’.55
In a searing indictment of the Congress party and the Bihar government’s manifest authoritarianism, the judges denounced the Act as an ‘unconstitutional law enacted in the belief that the right of the plaintiffs to challenge it and ask for relief from its operation has been taken away’.56 The court’s decision shook the government and the Congress party to its core. It shattered the illusion of the current regime having inherited the absolute power of the Raj. The Bihar Land Reforms Act bit the dust. An entire pillar of the Congress party’s social agenda stood virtually crippled. The establishment’s worst dreams seemed to be coming true.
For the powers that be in New Delhi, this defeat was a specially ‘bitter pill to swallow’.57 The government had wrangled over the Act for months, it had clashed with President Rajendra Prasad and overruled his objections, it had threatened him to receive his assent. For the Congress party itself, this had been an article of faith. Party workers and leaders had toured the country to pledge their word, and staked their reputations on the altar of zamindari abolition and land redistribution. As both the government and the party faced the daunting prospect of their entire social programme potentially falling to pieces, there was panic and pandemonium in the corridors of power.
For the prime minister, to whom hysterical Congress leaders from Bihar now turned for deliverance, this was the proverbial last straw. His patience exhausted, a furious Nehru addressed the press and blew the bugle for battle:
If the Constitution is interpreted by the Courts in a way which comes in the way of the wishes of the legislature in regard to basic social matters, then it is for the legislatures to consider how to amend the Constitution so that the will of the people as represented in the legislature should prevail.58
It was an extraordinary proposition that the ephemeral will of the people was enough to overturn the very basis of constitutional democracy. The moment of truth in his confrontation with the Constitution had arrived.
On 14 March, responding to the prime minister’s frenzy over criticism and freedom of speech and expression and questions about the right to property and zamindari abolition in the aftermath of the Bihar judgment, Ambedkar prepared a long memorandum for the Cabinet Committee. The rulings of the courts had not recognized any limitation on the freedom of expression unless it had been specified by the Constitution, he informed the committee, but he opposed the deletion of existing limitations and their replacement with others in order to prevent the Supreme Court from reinterpreting them into Article 19 through the concept of ‘due process of law’.59 Provisions for restricting the freedom of speech were already detailed in Article 19—libel, slander, undermining the security of the state, etc.—and, in his opinion, rather than adding to them or replacing them, they should just be amended to the extent of allowing laws placing such restrictions to be exempted from judicial intrusion.60
As far as the right to property went, Ambedkar recommended that Article 31 be amended so that nothing should prevent the government from prescribing different principles of compensation for different classes of people, or affect the validity of any law the government should create for divesting property owners of their property. He also added his opinion that ‘the Supreme Court ought not to be invested with absolute power to determine which limitations on fundamental rights were proper’, for if that were to be the case, then Parliament would be placed in the position of having to constantly amend the Constitution to proclaim and uphold its sovereign position.61 Ambedkar’s views were a near-overturning of the constitutional order, an order he himself had helped draft and institutionalize.62 They represented a growing consensus within the government that there had to be a clipping of the judiciary’s wings and a reassertion of what the constitutional historian Harshan Kumarasingham termed ‘the ultimate power of the central executive’.63
On the matter of freedom of speech and expression, the home ministry, now led by Chakravarti Rajagopalachari, the keeper of Gandhi’s conscience and future guiding light of Indian liberalism, was one step ahead of the authoritarian curve. It recommended to the Cabinet Committee that the list of grounds to curb the right to free speech be expanded to include ‘public order’ and ‘incitement to a crime’, and the expression ‘undermine the security of or tend to overthrow the State’ be broadened to ‘in the interests of the security of the State’.64 To prevent the courts from adjudicating on what was or was not ‘reasonable’, Rajaji’s ministry recommended that the word ‘reasonable’ be dropped altogether. The home ministry’s note concluded by suggesting that not only freedom of speech, but all other freedoms in Article 19—freedom of movement, the right to reside in any part of the republic, the right to own property, etc.—also be made subject to martial law, in addition to all the other grounds for restriction already written in the Constitution.65
Accustomed to reigning over a subservient population, given to treating their constitutional freedoms with disdain, uncomfortable with the idea of civil liberties, and resentful at its legal armoury being wrecked by the courts, the home ministry wanted little more than to be granted its draconian powers back. Its recommendations represented nothing short of a brazen desire among India’s ruling elite to wind the clock back to the glory days of colonial rule, substituting their own selves for their former colonial overlords. Fourteen months into the new republic, they wanted their old punitive measures back. Fourteen months after granting their fellow citizens a comprehensive set of constitutional freedoms, India’s rulers were already ruing their over-generosity. They now craved a new legal order that was, in the words of the economist Meghnad Desai, ‘firmly founded on old British laws, warmed up for independent India’.66
From Nehru to Rajagopalachari and from Ambedkar to Munshi, there was nigh a hint of opposition within the government. Patel was dead. Mookerji, Neogy and Matthai had resigned. There were none left to resist. Within the party, members and leaders hungry for a party ticket in the upcoming general election were unwilling to jeopardize their chances by protesting. As those seated at the high table debated their plans for an assault on constitutional freedoms, there was hardly a whimper of protest from the bottom. Agitated and incensed, the prime minister replied to Ambedkar the same evening, instructing him to ‘proceed with the utmost expedition’ to ensure that the necessary amendments could be brought before Parliament within the current session.67 From top to bottom, an establishment enraged at being thwarted by the Constitution was now resolved to fight back.
‘A recent decision of the Patna High Court about zamindari abolition has raised rather vital issues for all of us,’ Nehru wrote to his chief ministers.
It is well known that the abolition of the zamindari system has been a principal plank in the Congress programme for many years . . . If this is to be prevented, then our entire social and economic policy fails and the hundreds of millions of peasants and agriculturalists can well charge us with a breach of promise. An intolerable situation would be created. While our courts have the right to interpret the Constitution and we must respect and honour their decisions, the fact remains that the wider social policy of the country must be determined by Parliament or the State Legislature. Any other course would be a denial of democracy . . . The Government is no longer an agency for the mere carrying on of routine functions. It has to lay down social policies and give effect to them. Therefore it has become necessary for us to consider an amendment to the Constitution, so as to remove the lacunae which have apparently crept into it.68
The prime minister was essentially making three claims. First, that the failure of the Congre
ss social agenda when confronted with the Constitution should be regarded as an intolerable situation. Since he did not want to face the populace and be accused of breaching his promise, the Constitution would have to give way to the primacy of the Congress programme. Second, that the social policies devised by elected legislatures—sites of popular sovereignty—being held unconstitutional by the courts was a denial of democracy, even if the legislatures had been elected on a distinctly limited and narrow franchise. In true democratic spirit, the Constitution would have to bend to accommodate the ‘will of the people’ as represented by a legislature elected indirectly and on a limited franchise. Third, the three pillars of the state—the judiciary, the executive and the legislature—were not equal. The executive was to create and give effect to social policy, and it was to have primacy over the other wings of the state, especially the judiciary. It was a slippery slope.
Nehru’s views represented a radical departure not only from conventional constitutional thought, but also from what had come to be accepted by the Constituent Assembly. They were a veritable denial of the elemental importance of the Constitution in setting the terms of reference for a political community. They embodied his—and indeed the Congress party’s and the post-colonial elite’s—vision of expansive, untrammelled executive power, intolerant of dissent, unhindered by constitutional obligations and ideas of democratic propriety, and unencumbered by the restraining powers of the judiciary. From being the charter of republican freedom, the Constitution was now a barrier in the path of progress, an impediment to be overcome. Faced with an obstacle to their will, the government saw only one solution: a blatant reassertion of executive power over the judiciary and a full-scale assault on the offending constitutional provisions.
Sixteen Stormy Days Page 12