Sixteen Stormy Days

by Tripurdaman Singh

  The same evening, 14 March, the advocate general of Madras, V.K.T. Chari, wrote to Law Secretary K.V.K. Sundaram ‘suggesting that Sundaram’s idea to name in Article 31 the tenure laws to be exempted from its reach be expanded to create a separate schedule to the Constitution that would contain acts certified by the President and deemed valid retrospectively and prospectively notwithstanding anything in the Constitution.’69 The apparatchiks in the law ministry loved the idea of the inclusions in the Constitution of a schedule of unconstitutional laws beyond the purview of the courts. India’s democratic politicians, unwilling to submit to constitutional confines, salivated at the prospect of such a power grab. Thus was born the controversial Ninth Schedule, an extraordinary legal device designed to allow laws (and by extension, Parliament and the government) to evade the Constitution, a device that would one day cause Chief Justice Hidayatullah to quip that ours was the only Constitution that needed protection against itself.70

  The true position

  Contrary to the panic-stricken, apocalyptic interpretations being given to the Patna High Court’s judgment, however, the judiciary had neither struck down land reform per se, nor intruded into the legislature’s domain to deny democracy. If anything, the court had been broadly supportive of the government’s aims and dispassionate in discharging its constitutional duty of adjudicating on the constitutional validity of legislation, a duty and a power provided to it under Articles 13, 32 and 226 of the Constitution.

  To the charge, levelled by the zamindars’ lawyers P.R. Das and N.C. Chatterjee, that the Bihar Land Reforms Act was not designed to serve any public purpose but only to augment public revenue, the court replied:

  Under our Constitution land, or certain kinds of landed property, are not sacrosanct. On the contrary the Constituent Assembly, by enacting clauses (4) and (6) of Article 31, gave their express approval to legislation abolishing the Permanent Settlement and extinguishing certain rights in land. Whatever our own views may be, we must in my opinion, regard the scheme embodied in the impugned act as a scheme intended to benefit the public. We cannot shut our eyes to the patent fact that the makers of the Constitution regarded it as likely to do so. Whatever construction might have to be put on the expression ‘public purpose’ in Article 31(2), we are, in my opinion, estopped from saying that the acquisition of tenures and estates is not an acquisition for such a purpose. That it is, has been decided by the Constituent Assembly itself.71

  In effect, the court declared that since both the Constituent Assembly and the state legislature had decided this was a measure that served a public purpose, the bench should defer to their decision and refrain from deciding what was or was not a governmental function unless ‘public purpose’ was shown to be a complete impossibility.72

  Even when the court examined the compensation mechanisms of the Act and struck them down as void because they prescribed a sliding scale of compensation where landholders got different rates of compensation depending on the size of their landholding, it did so not on account of the size, scope, amount or method of compensation, but on account of the fact that such an arbitrary scale was a clear violation of Article 14, the fundamental right to equality before the law. The bench observed:

  Legislation which affects only one particular class is permissible so long as it does not discriminate against individuals within the class, so long as it can be said that such a class does, in fact, exist; that there is something to distinguish the citizens composing it from all other citizens. It is, I think, clear that proprietors of estates and tenure-holders may be said to form a distinct class, in that they all enjoy an income which is an unearned income from land . . . The impugned Act, however, discriminates between individuals falling within the class which it affects. In fact, it divides the class into a large number of sub-classes, and to these sub-classes differential treatment is meted out. It is quite impossible to say that this sub-division is based on any rational grounds. On what principle for instance, ought a proprietor whose net income is Rs. 20,000 to be given eight years purchase while a proprietor whose net income is Rs. 20,001 is given only six years purchase? At one end of the scale are a vast number of proprietors and tenure-holders who are to be allowed twenty years purchase . . . At the other end of the scale are the great zamindars who are to be allowed only three years purchase . . .73

  In other words, what the court was objecting to was simply the unequal situation where some zamindars were to be compensated at the rate of twenty times their net income, while others were to be compensated at the rate of three times their net income—with many others falling somewhere in the middle of this scale. Neither the quantum nor the method of compensation had been the deciding factor in the judgment. It was the discriminatory nature rather than the inadequacy of compensation that had been the problem. The bigger zamindars, as the court observed, were to be given little or no compensation so that the smaller zamindars could be compensated adequately. If there had been uniform rates of compensation, the large landholders would get a lot more and the smaller landholders would get a lot less. This was the crux of the problem.

  The judgment then did not bolt the door on land reform at all, and in fact the court had conspicuously accepted the inevitability and the intrinsic justice of zamindari abolition as an idea. Indeed, the bench spelled this out openly and precisely: ‘If, the State is prevented from invading the plaintiff’s right to equality, it is material that the State is indirectly prevented from invading their right to property which it could have invaded if it had not, in doing so, also invaded their right to equality.’74 This was the only ground on which the Act was found unconstitutional—and it was openly disclosed and discussed. The Times of India, for example, noted this fact while reporting on the judgment on 14 March when it stated, ‘If the Supreme Court upholds the Bihar judgement, the remedy might lie in amending the legislation so as to make compensation uniform and to prescribe that all the estates would be taken over by the Government.’75 Yet no one seemed to press for this course of action, and the reason was glaringly evident—such a course would ‘arouse a storm within the Congress party which contained a large element of small landlords’.76

  The utter consternation in the corridors of power was thus not simply about the immediate consequences of the Bihar judgment, the hurdles of which could be surmounted relatively easily by amending the requisite legislation. The government’s panic was as motivated by its fear of having to delay land reform legislation and face the electorate with its promise unfulfilled as it was by a sense of outrage over the fact that the courts had had the temerity to create this delay in the first place. By this point, the government had realized that an amendment was an easy way to constitutionally ratify all of its policies and programmes that were either facing or had the potential to face constitutional roadblocks in the near future. This included both the nationalization programme and the policy of caste- and community-based reservations. For all of its troubles, from criticism by Opposition leaders to a disobedient press and from the constitutional validity of land reform to the legalization of reservations, an amendment was the simplest and easiest of solutions.

  In the end, however, the biggest motivation was the establishment’s quasi-vengeful desire to enforce its will and show the Constitution and the judiciary their place in the pecking order, a desire borne of its inability to truly and fundamentally accept constitutional bounds on its own power. The government wanted to make the unconstitutional constitutional, to demonstrate the primacy of its power over the judiciary and such things as the Constitution—hence why it refused to either seriously contemplate bringing its legislation in line with constitutional provisions or wait for an appeal to the Supreme Court, but enthusiastically plumped for the idea of a constitutional amendment instead. The establishment, to quote the legal scholar Sarbani Sen, was asserting an old conceptual maxim: ‘sovereign power, by its very definition, cannot be subjected to a constitution’.77

  If there were any within the government that w
ere still dithering on the need for a constitutional amendment to secure their social revolution, the necessary push was given by the Calcutta High Court on 22 March when it rejected the stand taken by the West Bengal government that compensation for land calculated on the date a property had been notified for acquisition in 1946 would still be valid when it was actually acquired in 1950.78 Here, the government had acquired property to resettle refugees from East Pakistan, but declined to pay compensation at prevailing market rates, instead calculating compensation as on the date the acquisition had been notified in 1946. The court struck this skulduggery down, noting that the word ‘compensation’ carried within it a sense of being both just and fair, even if these words had not been pencilled out in the Constitution.79

  What the court had held was this: Apart from zamindari abolition, the government would have to provide appropriate compensation pegged at market rates for whatever property it acquired. Even if the Constitution had not specified that it had to be so, the word compensation by itself assumed justness and equity. Unlike zamindari abolition, there was no avenue for a presidential assent to allow ordinary legislation for property acquisition to elude the constitutional requirement to pay fair compensation. The government could no longer acquire property at whatever price it felt like, and even though this formulation was not applicable to zamindari abolition, the timing of the judgment caused tremendous heartburn. It was like the proverbial straw that broke the camel’s back.

  The Cabinet Committee met again at the end of the month in a sombre mood. Ambedkar and the law ministry were insisting that the word ‘reasonable’ be retained in all clauses in Article 19, and that it should be added before any restrictions on the freedom of expression. The inclusion of the word ‘reasonable’ would, they felt, prevent the state from gaining the draconian power of abridging or denying such a freedom in its entirety. Ambedkar’s views were the diametric opposite of what the home ministry desired. The members of the committee disagreed with Ambedkar and agreed with Rajaji. They considered it expedient to leave the term ‘reasonable’ in other parts of Article 19 where it existed, but did not believe that any restrictions on freedom of speech ought to be so qualified. They absolutely did not want the judiciary to sit in judgment over the reasonableness of their attempts to muzzle the press or throttle public criticism.

  Members of the committee perhaps feared the political repercussions that might have followed the removal of the protection that ‘reasonable’ provided to the other freedoms in Article 19: the demonstrable ability of the judiciary to adjudicate on whether legislation abridging those rights could be considered ‘reasonable’. Yet, in their opinion, criticism by Opposition leaders, brickbats from commentators and disparagement in the press represented such a great threat to the security of the republic and its friendly relations with foreign states—the latter an obvious euphemism for the government’s policy vis-à-vis Pakistan—that the need for any possible restrictions on the freedom of speech to be reasonable was now redundant. The threat was so compelling, the need for protection so urgent, that all thought of waiting till August and September was also jettisoned, much like the need for reasonableness. The committee would now aim to prepare, present and pass the amendment within the current session.80

  On his departure as India’s last governor general, C. Rajagopalachari had verbalized the establishment’s desire to ‘restore the unqualified reverence for the state that our ancients [had] cultivated . . . reverence for law and discipline’.81 As home minister, it was now apparent how literal he had been. What did this state of affairs say about ‘the biggest liberal experiment in democratic government’?82 A decade before Independence, in a pseudonymous article, Jawaharlal Nehru had confessed to ‘an intolerance of others and a certain contempt for the weak and the inefficient’ and warned that one day, when he had executive authority, he could take advantage of his powers, ‘sweeping aside the paraphernalia of a slow moving democracy’.83 Could there have been a grain of truth in his statement? He already had near-complete dominance over the government and over the party—were the Constitution and the judiciary next?

  5

  The Clouds Burst

  Public proposition

  Over February and March 1951, as hysteria over zamindari abolition and feverish preparation for an amendment had overtaken the Government of India and occupied the centre of its attention, in the precincts of the Supreme Court, the hearings for two major cases had been drawing inexorably to a close. These were the cases that concerned the constitutional validity of caste- and community-based reservations. The first of these was the Tamil Nadu government’s appeal against the Madras High Court’s order invalidating its Communal General Order and quashing reservations in educational institutions.1 The second was the petition filed by B. Venkataramana against the operation of the Communal GO and the policy of reservations and quotas in selections for government employment.2 The constitutional future of another pillar of the Congress party’s social agenda was about to be decided.

  Formal orders in both cases were reserved by the Supreme Court on 26 March. Though no one really knew what the court had decided, in light of the prevailing judicial winds the press felt emboldened to speculate that the Madras government’s appeal was likely to have been dismissed, and all signs indicated that the bench had found that its ‘order fixing the number of candidates for admission to colleges conflicted with Article 29(2) of the Constitution.’3 Such reports further unnerved the already apprehensive Tamil Nadu government, whose leaders, like their counterparts in Bihar, now desperately turned to Nehru for deliverance. Increasingly insistent appeals from Madras for a revalidation of communal representation streamed into Delhi, adding to the pressure on the Government of India and the Union Cabinet.

  At its meeting, the Cabinet Committee parried such requests—for the moment at least. In principle, it accepted the need to amend Article 15 prohibiting discrimination in order to save the idea of caste-based reservations.4 But members were hesitant about accepting the Madras government’s demand for fixed community-wise quotas, which would require even more far-reaching constitutional chicanery. This had little to do with the intensity of the political pressure from Madras, which rivalled that from Bihar, and a lot to do with the prime minister’s own reluctance in accepting the principles behind special quotas.

  Many of the committee’s (and the Cabinet’s) views and recommendations were thus shaped as much by the opinions they thought Nehru expected of them or their beliefs about what Nehru wanted, as they were by political pressure from state governments. Nehru’s biographer Sarvepalli Gopal—the son of India’s first vice-president, Sarvepalli Radhakrishnan, and a founder of the JNU Centre for Historical Studies—termed it ‘the eager subservience of mouldering mediocrities who claimed to be his [Nehru’s] colleagues’.5 The committee, like the Cabinet itself, looked to the prime minister for ‘absolute leadership and direction.’6 For his part, as Gopal7 noted, Nehru had to ‘curb his inclination to take all decisions and make out that they were the results of innumerable discussions. He had to disown the eagerness of his colleagues to leave all the policy making to him and insist on the cabinet seeming to function as reality’.8

  Which bits of political pressure were amplified and which bits were abbreviated and resisted followed the vagaries of the prime minister’s personal opinions, despite the often pedantic adherence to the use of deliberative mechanisms like committees and the idea of collective policymaking. India was, in Gopal’s words, a ‘one-man show’ with Nehru as its ‘thaumaturgic personality.’9 If political pressure from Madras was being partially resisted, it was down to the prime minister himself rather than any particular desire on the part of the Cabinet. It was a measure of his suzerainty rather than any measure of the efficacy of political pressure from the states. Much of the decision-making in Delhi was now being driven more by the force of the prime minister’s personality than by political pressures being brought to bear by his colleagues or chief ministers.

&nb
sp; It was against this backdrop that detailed reports about the proposed amendments first appeared in the press. ‘Five major amendments relating to fundamental rights in the constitution are proposed to be made by the Government of India,’ reported the Times of India on 9 April:

  The amendments proposed are in respect of Article 14 guaranteeing equality before the law, Article 15 prohibiting discrimination on grounds of religion, Article 19 guaranteeing certain personal rights of the citizen such as freedom of speech, Article 31 relating to compulsory acquisition of private property and Article 32 regarding the right to move the Supreme Court for the enforcement of fundamental rights. Amendments to the Constitution became necessary as judicial interpretations of fundamental rights created difficulties in the execution of the policy of the Government . . . The proposed amendments, it is suggested should be of a retrospective character . . . (and) expected to be passed before Parliament adjourns towards the end of May.10

  Other newspapers were even more scathing in their reportage. The Statesman, for example, described the proposed amendment in bold letters in its headline as a ‘Move to Abridge Fundamental Rights of Citizens’.11 Information that had so far remained a secret, contained within the top echelons of the government and the Congress party, or hinted at only cryptically in the press, now became public.

  On the same day, as India woke up to news about the nature and extent of the government’s offensive against fundamental rights, the Supreme Court announced its verdict on the Communal GO. In the first case, the judges upheld the Madras High Court’s order holding the Communal GO inconsistent with Article 29(2) of the Constitution, which prevented discrimination in admissions to educational institutions. The Madras government had contended that its responsibilities to promote the welfare of backward classes via the Directive Principles of State Policy overrode its obligation to respect fundamental rights. A Constitution bench of the Supreme Court—Justices Hiralal Kania, Saiyid Fazal Ali, M. Patanjali Shastri, Mehr Chand Mahajan, Sudhi Ranjan Das, B.K. Mukherjee and Vivian Bose—unanimously rejected this contention in its entirety. ‘The chapter on Fundamental Rights is sacrosanct,’ the bench reminded the Madras government, ‘and not liable to be abridged by any Legislative or Executive Act or Order, except to the extent provided in the appropriate article in Part III. The Directive Principles of State Policy have to conform to and run as subsidiary to the Chapter of Fundamental Rights. In our opinion, that is the correct way in which the provisions found in Parts III and IV have to be understood.’12