Sixteen Stormy Days
Page 15
Mindful of the need to avoid an electoral backlash in Madras and revalidate caste-based reservations, the committee also advocated amending Article 15—the right to freedom from discrimination—to read that nothing in the said article would prevent the state from making any special provisions for the advancement of any socially or educationally backward class of citizens, as well as any Scheduled Castes or Scheduled Tribes.38 The committee’s recommendations fulfilled most of the prime minister’s requirements, and none of his demands were resisted. The Tamil Nadu government’s requests to ensure that the amendment supported the Communal GO’s reservation policy based on communal rationing was firmly turned down, but the demand to make reservations constitutionally invulnerable was enthusiastically upheld, as the prime minister desired. As a courtesy, a copy of the report was sent to President Rajendra Prasad.
On 19 April, the Constitution Changes Committee of the Congress party conferred with the Cabinet Committee to apprise them of their views. It light of what transpired at the meeting, it was suggested in newspaper reports that ‘only amendments to Article 19 and 31 will be sponsored since only those clauses would be touched which needed imminent change’.39 This view, being given out to the press by government and party sources, was mainly misdirection and obfuscation meant to lull the public and the Opposition into a sense of complacency. ‘Informed circles suggest,’ one report read, ‘that the Government of India will not embark on any large-scale modification of the Constitution just at present.’40 Establishment sources kept harping on how the changes were ‘limited in number and scope’41 even as they realized full well that it would radically change the relationship between the state and the citizen.
Tremendously agitated at the Cabinet Committee’s refusal to revalidate the Communal GO in its entirety, Chief Minister Kumaraswamy Raja led a ministerial delegation to Delhi on 27 April to ‘hold discussions on the situation arising from the Supreme Court’s order on the Communal GO’.42 Their request was denied. Another ministerial delegation led by the finance minister came calling a week later to again demand, in the words of a major newspaper, the revalidation of ‘the twenty-year-old tradition of doling out privileges and preferences on a communal basis’.43 ‘It is sad that the Congress Ministry in Madras,’ commented an editorial, ‘agitated over losing support from the castes and sub-castes which thrive on the Communal GO, has failed to imbibe the spirit and to respect the provisions of India’s democratic and secular constitution.’44 Nehru sent them packing again—demonstrating again his mastery of the situation and testifying to the fact that rather than any political pressure from below, the amending process was now being driven by his own will.
Meanwhile, President Rajendra Prasad, who had examined the Cabinet Committee’s report as well as the draft amendment prepared by the law ministry, wrote to the prime minister on 30 April with his comments. Conversant with the law, well equipped to understand legal and constitutional nuances, well informed about the political situation and supremely knowledgeable about the intentions of the Constituent Assembly over which he had presided, Rajendra Prasad was not pleased with what he read. Unlike members of the Cabinet and the party, Prasad considered himself Nehru’s equal in stature. They might have pandered to Nehru’s will; he was having none of it.
‘The Constitution has a sanctity which does not attach to ordinary laws enacted by Parliament or the Legislature of a State,’ the president wrote bluntly, ‘and should not ordinarily be sought to be amended unless and until every other method available for dealing with any problem that has arisen has been tried and found to be inadequate.’45 He was greatly dismayed by the cavalier disdain with which the democratic government was treating the provisions for fundamental rights and individual freedom—the most pivotal part of the entire Constitution. ‘Part III of the Constitution which lays down the Fundamental Rights has a special importance and significance of its own,’ he added indignantly, ‘ . . . It is an irony of fate that this Part which stands above every other Part of the Constitution is the first to be assailed.’46
The present Parliament, he argued, was provisional in nature and acting under the transitory provisions of the Constitution until a new bicameral legislature came into being—‘and although it has all the powers of Parliament and anything it does cannot be questioned on the ground of lack of competence, expediency and propriety ought to dictate caution’.47 Since this was already the fag end of a long session on the eve of the general election, Prasad opposed any precipitate action to tamper with the Constitution without giving full time not only to members of Parliament but also to the public and the country at large to consider and comment on the implications of the amendment.48
Turning to the substance of the proposed amendment, Prasad took Nehru and the Cabinet to task for the offhand manner in which they were treating so serious a subject. As far as Sections 124A and 153A of the Indian Penal Code and other public security legislation to curb the freedom of speech were concerned, the president had ‘an impression that the Supreme Court has not gone to that extent [of giving any extreme decisions] and the extreme decisions of the High Courts have not been affirmed by the Supreme Court’.49 ‘If I am correct in my reading of the extent to which decisions have been finalized,’ he forcefully asserted, ‘I venture to think that no case for amending the Fundamental Rights Articles has arisen.’ ‘We must test the correctness of the extreme decisions of the High Courts by bringing them in appeal or otherwise before the Supreme Court,’ he advised the Cabinet. ‘If on the other hand, the decisions have been finalized by the Supreme Court the first attempt should be to bring the impugned provisions of law in conformity with the Constitution.’50
President Prasad was equally irked by the proposed addition of Article 31A, which he considered ill-thought-out and malicious. The Bihar Land Reforms Act may have been invalidated by the Patna high court, but a similar land reform bill had been upheld by the high court in Nagpur after the decision in Bihar, indicating that zamindari abolition as such was not prohibited by the Constitution. If any particular act had been held to be invalid, he noted, it was not because there was anything wrong with the Constitution but that the Bihar legislation contained wrong provisions which might be changed to make it conform to the Constitution.
‘I would therefore suggest,’ he brusquely counselled Nehru,
[T]hat instead of taking the very serious step of amending the Constitution, the first step should be to get a verdict of the Supreme Court on the correctness or otherwise of the Patna decision. Simultaneously the impugned Act should be examined by the Government with a view to so amending it as to bring it into conformity with the Constitution.51
Like most dispassionate observers, the constitutional head of the republic objected to both the content and the timing of the amendment, which ravaged the fundamental rights of individual citizens and violated the norms of democratic conduct. Prasad was perceptive to both—the need to establish positive democratic conventions, and the need to display moral and constitutional rectitude in these situations—and warned the prime minister to tread cautiously and avoid any hasty action. Any changes to the Constitution, he felt, should be made in the most proper and democratic way possible, or else it would undermine India’s nascent constitutional democracy and create a terrible precedent for the future. ‘On the whole,’ the president presciently concluded, ‘ . . . the amendment will create more problems than it will solve and the objective of preventing further litigation . . . is not likely to be achieved.’52
The edge of the precipice
In the reckless, impetuous bid to establish the government’s supremacy and open the constitutional doors to the Congress’s social revolution, however, all caution had been thrown to the wind. The creation of the Nehruvian state demanded constitutional blood—and the prime minister and his acolytes were willing to spill it. Smug in the knowledge that he commanded overwhelming public adulation, enjoyed near-undisputed supremacy over the Congress Parliamentary Party and had an unchallengeab
le majority in Parliament,53 the prime minister had little reason to engage with his critics or moderate his approach. Not even at the insistence and urging of the president of the republic, the highest constitutional authority in the land. Much like the prime minister’s other critics, Rajendra Prasad found his views contemptuously disregarded.
Undeterred by the storm of criticism swirling around him and dismissive of the president’s objections, Nehru wrote to his chief ministers to inform them that a constitutional amendment was now imminent. ‘In the course of this amendment we shall endeavour to get some lacunae filled,’ he declared. ‘But the main purpose of the amendment is two-fold: one to remove certain difficulties owing to judicial interpretations of fundamental rights . . . The other . . . relates to social measures relating to land which various State Assemblies have passed and which have been held up by judicial decisions.’54 Having come this far, the prime minister was now set on his course, and neither the reluctance of the president nor the disapproval of the press nor the displeasure of the intelligentsia was going to dissuade him. The government of India now went into overdrive to make sure the amendment was tabled in Parliament as soon as possible.
As this frenetic preparation continued in the background, on 10 May, the Allahabad High Court finally pronounced its judgment on the Uttar Pradesh Zamindari Abolition and Land Reform Act. Contrary to the expectations of many lawyers and major zamindars, a full bench of the high court held ‘that the Zamindari Abolition Act did not contravene any of the provisions of the Constitution and was not invalid on that account.’55 The applications of over 4000 zamindars were dismissed without costs. The decision came as a huge reprieve for the Uttar Pradesh government, and especially for Govind Ballabh Pant, who had personally put his considerable shoulders to the wheel to get the act drafted and passed through the assembly. Prime Minister Nehru and the Government of India, however, were put in an immense quandary.
The judgment took the wind out of the sails of Nehru’s arguments and made clear, once and for all, that there was little to negligible risk of the Constitution standing in the way of properly conceived and executed legislation for land reform and zamindari abolition. It was now apparent to anyone who cared that the problem lay not so much with constitutional provisions and fundamental rights, as with the legislation prepared in Bihar and the posture and sensibilities of Congress leaders. President Rajendra Prasad was proven to be right: the courts were not holding up zamindari abolition, and amending the offending act to make it conform to the constitution should be the first step in this situation.
Over the preceding months, Prime Minister Nehru had been harping on the necessity of an amendment in light of the danger the Constitution posed to the Congress party’s dreams of social revolution; the binary choice between saving zamindari abolition and respecting the fundamental rights provisions in the Constitution. The Allahabad High Court’s judgment demonstrated the conspicuous falsity of these claims. The prime minister had consistently claimed that the judicial pronouncements on zamindari abolition were the prime reason that the amendment had to be hurried through as soon as possible. It was now evident that this was mostly a smokescreen for a power grab by the executive. Now that the major cause of its annoyance was taken away, one might have thought the government would pause and relent, take stock of the situation and avoid a frontal assault on the Constitution. But Nehru and his government were not to be dissuaded.
The latent, barely suppressed authoritarianism that had characterized India’s new democratic rulers was now given open expression. As the sole inheritors of the British Raj, India’s post-colonial leaders had assumed the same sense of entitlement: to stifle dissent, to censor adverse opinion and muffle all opposition. Throughout the nationalist struggle, Congress leaders had claimed to be the only true representatives of the Indian people, and the only ones entitled to speak for them; laying claim, in the name of the nation, to possession of the state and its territory.56 The exclusion of other parties from a seat at the political high table had been as much a Congress goal as the orderly transfer of institutional power into its own hands. Congress leaders, as a contemporary observer remarked, equated political freedom with political agreement—with themselves and their opinions.57 The creation of the new democratic republic forced them to theoretically end this position.
India’s new democratic leaders had now to contend not only with the representative claims of other groups and criticism by ideological opponents, but also the pre-eminent constraining power of the Constitution. To their surprise, they realized that unlike their colonial predecessors, they could not do as they felt and would be forced to endure their opponents. Furthermore, they would have to submit to and be bound by constitutional restrictions. Having enjoyed disproportionate and unchecked power since 1947, however, this ‘cluster of notables’, as the constitutional historian Harshan Kumarasingham referred to them,58 was not going to cede ground so easily. The rush to amend the Constitution then was a part of what Kumarasingham described as ‘the executive struggle and search for constitutional pre-eminence . . . conducted without the involvement or the open knowledge of the electorate’.59
Few thus doubted what the amendment was truly about. The headline in The Statesman of 11 May 1951 said it all: ‘Provision Against Sedition to Be Made in Constitution: Mr. Nehru Might Introduce Bill This Week’.60 ‘Firmly rejected during the discussion in the Constituent Assembly as an anachronism in Free India,’ read the report,
[S]edition is to be introduced into the Constitution through an official amendment. Contrary to earlier reports that the intention to amend Article 19, relating to personal freedoms had been abandoned, the final draft of the amending bill, it is learnt, imposes substantial restrictions on the freedom of speech and expression . . . the exceptions that Parliament by legislation may enforce are to be extended by the addition of sedition and activity which may endanger foreign relations.61
The same evening, the evening before the amendment was introduced in Parliament, Alladi Krishnaswamy Aiyyar—the very person who had argued against reservations in court and had the Communal GO invalidated—advised Law Secretary K.V.K. Sundaram that Article 29(2) prohibiting discrimination in admissions to educational institutions be altered in the manner of Article 15 to completely protect the government’s reservation policy.62 On that hot summer evening of 11 May 1951, the nation, its constitutional future and the liberties and freedoms of its citizens teetered at the edge of a precipice. It was the government’s penultimate chance to step back from the edge. It chose not to.
On the morning of 12 May 1951, at exactly 9.31 a.m., Prime Minister Jawaharlal Nehru interrupted the long-running debate on the Representation of the People Bill and introduced the Constitution (First Amendment) Bill in Parliament. Till that moment, the government had provided no official intimation of what exactly it was planning to do; few had known the precise form the amendment would take. First on his feet was Hussain Imam, the Muslim League leader from Bihar, who, like his compatriots Chaudhary Khaliquzzaman and Hussain Shaikh Suhrawardy, would also one day end up in Pakistan.
‘What is to be amended? What is to be amended? This is a very unusual thing,’63 he sputtered as other similarly agitated Opposition members rose in support. ‘Let us not deal with it at this stage,’ retorted an equally surprised Speaker G.V. Mavalankar, ‘the Bill will be made available to study.’64 Fifteen months after the inauguration of the new republic, the first battle to protect the original Constitution and the constitutional vision of the founding fathers, the first battle to defend civil liberties and fundamental rights—indeed, the first battle of Indian liberalism—had begun.
The battle begins
The official introduction of the amendment in Parliament gave the press and the public their first glimpse of the specific clauses that made up the amending bill. It acted as a lightning rod for criticism and galvanized the Opposition. ‘Nehru Introduces Bill to Amend Constitution: Further Curbs on Freedom,’ blared the headline in The Sta
tesman.65 ‘The Constitution Amendment Bill is legally bad and subversive of the Constitution,’ declared P.N. Mehta, General Secretary of the Constitution of India Society. He lambasted Nehru for his duplicity:
Only a few months ago the Prime Minister, while addressing the All India Newspaper Editors Conference at Delhi, categorically and emphatically announced that the Government had absolutely no intention to abridge the Freedom of Speech and Expression. Is not the country now entitled to know what immediate and present danger has arisen during this short interval which is endangering ‘public order’ and ‘foreign relations’ that such a drastic curtailment is necessary?66
One of India’s most respected lawyers, the man who had defended Bhagat Singh in the Lahore Conspiracy Case, then issued his clarion call: ‘The destruction of Freedom of Speech and Expression would be an event so evil in its consequences that the country for decades together may remain bound hand and foot. This invasion of our liberty must be repelled. The Constitution must be saved.’67 His words electrified the legal fraternity. In Delhi, over fifty senior advocates led by N.C. Chatterjee (the father of future Communist leader Somnath Chatterjee) and Gopi Nath Kunzru (brother of the liberal parliamentarian Hriday Nath Kunzru) issued an appeal ‘to all fellow lawyers and in particular all Bar Associations throughout India to protest against the proposal to abridge the fundamental rights embodied in the Constitution of India’.68