In the second case, the Supreme Court struck down the use of the principles of caste- and community-based quotas in the selection of candidates for employment by the state.13 Unlike Article 29 however, which prohibited discrimination in admission to educational institutions, Article 16, which did the same for matters of employment by the state, did have a clause declaring that nothing in the said article would prevent the state from making special provisions in favour of backward classes. The court noted nevertheless that there was a schedule of such classes set out in the Madras Provincial and Subordinate Service Rules, and while reservations for these classes might be upheld on this account, they could not be upheld for any other communities, including Muslims, Christians and non-Brahmins. The bench found the Communal GO void, illegal and repugnant to the Constitution.14
The phrase ‘repugnant to the Constitution’ found a prominent place in newspaper reports about the judgments the next day, embarrassing and annoying the Madras government no end.15 Equally importantly, however, it was observed by the court, and reported by the newspapers, that the Constitution explicitly enabled reservations for backward classes in matters of state employment, even if it made no such provision in the case of admissions to educational institutions.16 In other words, reservation of posts for backward classes, based on some form of assessment, was not to be regarded as unconstitutional—but arbitrary communal rationing was. Reservations of all kinds in educational institutions were a constitutional anathema—but the Cabinet Committee had already caught on to that predicament and was seized of the matter.
Nonetheless, none of these nuances made any difference in Madras, where a panicked Chief Minister Kumaraswamy Raja again beseeched Nehru to amend the Constitution to retain the Communal GO in its entirety because it was necessary, in the interests of south India, to maintain the status quo with respect to both recruitment to services as well as admissions to colleges.17 To his credit, the prime minister immediately shot Raja’s request down and firmly suggested that the best course was to ‘frame a new GO strictly within the terms of Article 16, keeping in mind that any special concessions can be made only for really backward classes of citizens and solely on that ground and not on the ground of equal distribution for all communities or on a basis of rationing for the several communities.’18
Nehru’s prompt and firm denial of Kumaraswamy Raja’s request, coupled with an equally firm directive to comply with constitutional provisions, was the plainest indicator that if push came to shove, the prime minister was in a position to withstand all manner of pressure from the party’s state units. It was a clear sign that even more than political pressure from the provinces or the desires and inclinations of the Congress party, the narrative around the proposed amendments to the Constitution was being driven by the prime minister’s own views and appetites. Tamil Nadu MLAs agitated and complained, ministerial delegations came pleading, but Prime Minister Nehru was having none of it and sternly ticked them off. This bit of political pressure, which did not agree with his own opinions, was not going to be amplified.
In his stand, he was encouraged and supported by the press. ‘Local MLAs who regard themselves as custodians of caste interests rather than representatives of the people should not be allowed to devise other means of perpetuating the existing discrimination,’ advised the Times of India. ‘The State Government’s legitimate solicitude for the backward sections can find better expression in the provision of free tuition, scholarships and free hostels. When it takes the vindictive form of Communal GOs, such crutches create vested interests hard to dislodge.’19
Inundation and disapproval
News of the Supreme Court’s stamp of approval on the Madras High Court’s judgment declaring the Communal GO void, and its continuing tough stance on matters of constitutional liberty and individual freedom, coincided with the appearance of newspaper reports detailing the government’s proposed changes to the Constitution. Together, they brought the issues of constitutional morality, civil liberties, fundamental rights and democratic propriety back to the centre of public discourse and resulted in an outpouring of thought and opinion on the matter.
Isolated reports about a plan to amend the Constitution had appeared in the press over the year, triggered either by an intemperate remark by someone in the government, or in the form of apocalyptic warnings of a threat to freedom and democracy by Opposition leaders like Jayaprakash Narayan and Shyama Prasad Mookerji. For the first time, men and women beyond the rarefied circles of power became aware of the government’s plans and gained access to enough information to conduct appraisals. As political figures, commentators, editors, thinkers and ordinary citizens contemplated the nature and extent of the government’s proposals, the government was inundated with a deluge of criticism—the fightback began.
‘Should politics be allowed to play pranks with constitutional rights and guarantees?’ asked one scathing editorial in the Times of India.
With an eye obviously on the coming electoral battle, the Government of India propose to introduce a Bill for amending Part III of the Constitution of India which embodies the fundamental rights guaranteed to the citizen. It is complained that certain judicial interpretations have created difficulties in implementing official policies, notably in the field of nationalization or state participation in industries and in the abolition of zamindaris. If the purpose of the amendments is to make these constitutional guarantees more concrete and practical and eliminate the possibility of individual rights being pushed to fantastic lengths, they will be welcomed by the public. But these changes seem animated more by a desire to conserve and consolidate the power and patronage of the executive and the government vis-à-vis the rights and liberties of the individual . . . Particularly dangerous is the attempt to qualify freedom of speech . . . Superficially these may seem innocuous provisos, but the country has good reason to remember the protean forms which arbitrary power takes in its efforts to maintain public order. Moreover, the relations between the State and the Fourth Estate are best left to convention and mutual understanding . . . There are few spheres affecting public life and opinion where the letter of the circumscribing law can be more easily abused.20
‘The State Governments have been betraying a most undemocratic and indeed thoroughly lawless temper in their eagerness to maintain their powers and enforce their pet policies,’ complained another.
They not only encroach on public rights and liberties, regardless of the laws and constitutional guarantees, but at times proceed unabashedly to make new laws or twist old ones to suit their autocratic impulses. Now the infection appears to be spreading towards the Centre, to the very heart and core of our independent, sovereign, secular Republic, founded on the eternal democratic principles of Liberty, Equality, Fraternity, and Justice. An apprehension is created that the Government of India themselves propose to amend the Fundamental Rights out of existence . . . But to tinker with the Constitution in its most vital and precious parts so soon after its inauguration can only mean one of two things, both equally humiliating: either that, with all our vociferous vaunts, we are not quite fit for self-government and the democratic order, or that the popular representative governments in the States and in the Centre are unable to govern within the framework of the Constitution which we have been flourishing in the face of an admiring world.21
‘Apart from its expediency,’ the commentator warned, ‘an attempt to amend or alter the Constitution as soon as its principles are found inconvenient would be laying down a most unwholesome practice. It would justify tampering with the Constitution to suit the transient whims of every clique in power for the time being.’22
‘The proposed amendments by the provisional Parliament must be viewed with alarm and . . . [they] cannot be allowed to be hatched by the executive to be imposed on the country as a fait accompli,’ declared Pran Nath Mehta of the Constitution of India Society. ‘The chapter on fundamental rights is the pivot on which the whole Constitution revolves. To proceed to amend, alter an
d modify the very basis of the constitutional structure is an abuse of the amending right granted by Article 368.’23 The society implored the Government of India to defer any amendments till after the first general election, and took the position that ‘the freedom of speech and expression is a right of so fundamental a character that any attempt to further abridge it is tantamount to the repudiation of the Constitution.’ In doing so, it warned, the government risked turning the Constitution into ‘a poor, ambiguous, senseless, unmeaning adjective, for the purpose of accommodating any new set of political or administrative notions’.24
The lack of democratic legitimacy of a provisional parliament indirectly elected on a limited franchise was also brought up by P.R. Das—eminent jurist, former judge of the Patna High Court and founder of the Civil Liberties Conference—who called the approach of the governments of Bihar and UP ‘disgraceful’ and charged the Government of India with having ‘no moral right to amend the Constitution without the verdict of the people’.25
Dr M.R. Jayakar, one of India’s finest legal luminaries—the only Indian to be nominated to the Judicial Committee of the Privy Council and a member of the original Constituent Assembly—weighed in on the government’s proposals and expressed his fear ‘that those Articles which had been considered by judicial tribunals as most important guarantees of the rights of the people would be interfered with’.26 The fundamental rights chapter in the Constitution was an assurance or guarantee to the public that the state would observe its foundational principles of liberty, justice and democracy, he argued, advising the prime minister that ‘it would be unwise to create the impression that the Government are only too anxious to interfere with such public guarantees in the Constitution as soon as those guarantees are found inconvenient.’27 Standing alongside Chief Justice M.C. Chagla of the Bombay High Court during his address—the same one who had rebuked the Congress party for its authoritarian impulses over freedom of speech—Jayakar entreated his listeners ‘to be watchdogs of the Constitution’ and entrusted them with the responsibility to be ‘agents of the public weal’.28
Jayakar’s rousing call struck a chord with the legal fraternity, which responded strikingly in defence of constitutional liberties. Determined to mark their objection to the government’s domineering ways, the Bombay State Lawyers Conference recorded an emphatic protest against the proposed amendment of fundamental rights, and apprised the governments of their view ‘that if it was found absolutely necessary to do so, any amendment should be undertaken only after obtaining a mandate from the people after the General Elections’.29 The views of the Bombay lawyers found wide echo among a large number of advocates and bar associations across the country, many of whom joined their Bombay compatriots to register their protest against the government’s desire to abridge constitutional guarantees.
Not to be outdone by the lawyers, businessmen and industrialists also got on the protest bandwagon. The executive committee of the Federation of Indian Chambers of Commerce and Industry (FICCI) prepared a long representation to the law ministry urging the government to postpone all consideration of amending the Constitution until after the first general elections. ‘The very fact that the General Elections are not far away,’ observed the committee, ‘should be enough not to hustle through far-reaching changes in the Constitution, particularly when they are likely to be misunderstood as electioneering tactics by the party in power.’ ‘Arbitrary revision of such fundamental provisions designed to meet conflicting points of view,’ the representation pointed out, was ‘in effect a breach of faith not calculated to inculcate much respect either for the Constitution or for the authors of such amendments.’30
Apart from organizations such as the zamindar associations, lawyers conferences and FICCI, large numbers of individual citizens who studied the reports on the amendment also responded to the government plans with an outpouring of criticism and scorn.
Concerned citizens wrote to the newspapers to express their consternation. ‘Every time a decision given by the judiciary regarding the Constitution goes contrary to the policy of the party in power and is hence disapproved by them the Constitution cannot be amended,’ wrote two angry citizens from Bombay, ‘otherwise the sanctity of the Constitution would disappear . . . Hence the Constitution of India should not be amended to suit the current policies of the party in power.’31 Others conceded the government’s and Parliament’s legal power to amend the Constitution, but still advised against any hurried attempt to tamper with fundamental rights until the first election on a universal franchise had been conducted.32
An ambitious young lawyer from Delhi, appalled at the government’s intended depredations against his rights and freedoms, wrote a letter to the editor of the Times of India denouncing the government’s proposals in the most withering terms:
In the garb of protecting the Zamindari Abolition Acts the Government are going to change Article 19 and make freedom of speech more restricted. The two restrictions on freedom of speech namely ‘in the interests of foreign powers’ and ‘in the interests of public order’ are full of dangerous possibilities. The second restriction has been interpreted to mean that the satisfaction of a junior official is considered enough to deprive me of my fundamental right. The interpretation that unless freedom of speech led to ‘clear and present danger’ no restriction could be placed is going to be thrown overboard. This will literally stifle all genuine opposition and criticism of the government. Can this be allowed?33
‘A convenient handle is being obtained by the government to suppress all comments on their foreign policy,’ the angry young lawyer continued. ‘Why is Mr Nehru becoming so shaky about his policy by wishing to suppress all criticism of it?’34
The young lawyer’s letter raised crucial, searching questions. The two restrictions were indeed full of the most dangerous possibilities: they represented a virtual desecration of the most pivotal parts, the ‘heart and soul’, of the republican Constitution. Was the government proposing to stifle all genuine criticism and suppress all opposition? Did criticism of Pakistan and the government’s foreign policy really threaten the safety and security of the nation? Why was Mr Nehru shaky? What was the government terrified of? As a strong leader prepared to steamroll his way through, there were no answers forthcoming.
And who was the source of this bitterly caustic assessment of the Nehru government and its motives? None other than the future liberal icon, high court chief justice and civil liberties activist Rajinder Sachar. His letter graphically illustrated the unrestrained hauteur with which India’s first government viewed the Constitution and the contempt in which it held the rights and liberties of individual citizens.
Much later in life, when he would become known for speaking his mind, Sachar wrote in a much acclaimed article in 2016:
Wherever there is a written Constitution, the Supreme law is the law of the Constitution and for even the Parliament to accept that its powers are limited by the written Constitution is not in any manner to derogate from its sovereignty but only to accept that its sovereignty, like the sovereignty of the executive and the judiciary, is limited by the written Constitution.35
These views—the complete opposite of Nehru and the Congress party—had first been firmed up in 1951 when he had watched the Nehru government brazenly refuse to accept such limitations on its authority. He had been saying much the same thing in 1951 as he had in 2016, to little avail and even less concern. A landmark precedent was in the process of being set.
A presidential objection
The deluge of criticism that appeared in the press seemed to the government, however, like water off a duck’s back. Neither the charge that the Constitution was being vandalized to place the Congress party on a stronger footing in the upcoming general election, nor the accusation that the amendment was a power grab by the executive in order to muzzle critical opinion—and not even grave questions of democratic legitimacy and allegations of breach of faith—perturbed the prime minister. Calls to set a positive p
recedent, seek a democratic mandate, uphold constitutional morality or simply avoid hustling through the amendment and wait for a general election were equally blithely brushed aside.
Unfazed by the continuing stream of criticism that was appearing in the press and being voiced by the intelligentsia, the Cabinet Committee reported in mid-April with further recommendations. It wanted to leave Article 31 as it currently stood, but the main aim being to protect current and future legislation related to zamindari abolition and land acquisition, it desired the addition of a new Article 31A ‘saying that nothing in the fundamental rights could be used to invalidate laws for the taking of estates or rights in them’.36 The committee also awoke to the potential risks that the right to practise any profession or carry on any occupation might entail for government plans for nationalization of industry and the exclusion of private enterprise. It recommended that Article 19(6), which qualified the right to practise any profession or carry on any business, be amended to the effect that the said right would not ‘affect the operation of any existing law for the carrying on by the government of any trade, business, industry, or service to the exclusion of citizens’.37
Sixteen Stormy Days Page 14