The Times of India published a damning editorial, in which the government and the prime minister were raked over the coals:
An air of indecent haste pervades the Prime Minister’s efforts to amend the constitution . . . and it is an illuminating commentary on the democratic workings of the Centre and the States that they should so soon have found it difficult to accommodate themselves within the framework of the constitution. This monumental piece of legislation has been operative for barely fifteen months. Conventions and judicial interpretations ordinarily govern the growth of constitutional practice, and for a government to seek amendment even before the first general election of a newly independent country is probably unprecedented . . . Though it is proper that such freedoms should not degenerate into licence what is the provocation or justification for so hedging in the right of expression as to make it perilous for the press to comment freely on foreign affairs or such expansive subjects as public order?69
‘Too many dictatorships have been reared in the sacred name of public order,’ warned the commentator, ‘and to leave the interpretation of this term to the tender mercies of officialdom is to barter away a precious privilege.’70 It was now unmistakable: Nehru’s amendment represented an outright repudiation of the powerful and expansive vision of republican freedom and individual rights that had been envisioned in the original Constitution and articulated by the judiciary. It was the first step towards the creation of the Nehruvian state, with its odious state apparatus, its prescriptive dominance of a personality-driven social agenda, its overwhelming primacy of executive authority, and its grim, resolute suppression of alternative ideological positions—all precariously balanced against a pedantic dedication to democratic procedure and collective policymaking.
The amendment radically reconceived the relationship between the government and the citizen in direct contradiction to the imagination of the Constituent Assembly. It was a victory for the supporters of the quotidian injustices that the state and its democratic helmsmen meted out to their critics and opponents using the arbitrary powers they had inherited from their colonial forebears; a tool to strengthen their hands and cement the grip of the Congress party on institutional power, unfettered by constitutional constraints. In the words of the Times of India: ‘the bulk of Congress members now feel that the time for action—drastic action—is here and now and that no impediments to progress can be allowed to take root in the soil of constitutional obscurantism.’71 The translation of fundamental rights into constitutional obscurantism was a grim reminder of how far attitudes within the establishment had shifted since the heady days of January 1950.
The main question that everyone, from the president downwards, was asking was ‘why’—what was the need for this tearing hurry? What was the prime minister thinking? As a major newspaper reported:
The urgency with which this measure is being canvassed has itself been the subject of considerable comment. Large sections of the press and other independent bodies like the Supreme Court Bar Association have written and spoken in terms of varying disapproval of what they fear might be construed as indecent haste and immoral precedent . . .72
The prime minister answered in Parliament. On 16 May 1951, debate began on the Constitution (First Amendment) Bill. Prime Minister Nehru opened proceedings by tabling a motion to refer the bill to a twenty-one-member Select Committee led by himself for consideration, with the report expected in five days. The committee was to include leaders from the Opposition like Shyama Prasad Mookerji, Hriday Nath Kunzru and Prof. K.T. Shah, whereas Congress nominees included C. Rajagopalachari and B.R. Ambedkar, among others. Another member of the committee gaining first-hand experience in constitutional subversion was the young Congress leader (and future Congress president) Dev Kant Barooah, who would set a new benchmark of sycophancy during the Emergency with the slogan ‘India is Indira and Indira is India’.
By this time, it had also been openly reported in the press that Congress members had been discouraged from making any critical speeches, and a strong party whip was expected to cover any genuine misgivings.73 Convinced that he was in command of the situation, the prime minister rose to commence his seventy-five-minute-long address. ‘The Bill is not a very complicated one, nor is it a big one,’ he began. ‘Nevertheless, I need hardly point out that it is of intrinsic and great importance.’74
Parliamentary encounter I: Nehru takes the stage
First, the prime minister took up the points raised by his critics. There had been no haste, he insisted, the bill had been brought forward ‘after the most careful thought to the problem’.75 Even the early date set for the Select Committee to report back was not due to any desire to hurry, but because he could not ‘see how a prolongation of this date for a relatively simple bill, however important, enables us to give greater thought to it’.76 In fact, his government had no desire to seek the powers that the amendment was creating at all, and was unlikely to take advantage of them; what they really wanted to achieve, instead, was to ‘leave something for the succeeding parliaments and the younger generation . . . that they can wield and handle with ease for the advancement of India.’77
Just how restrictions on free speech were a gift to the younger generation to be used for the advancement of India, Nehru refused to divulge. But he did tell them about why they were necessary: ‘We live at a time of grave danger in the world, in Asia, in India. No man can say what the next few months, or if you like the next year, may bring. I am not thinking of the election, but rather of other happenings that are bigger than elections. Now at this moment when great countries . . . think almost of a struggle for survival, when they think that in spite of their greatness and power they are in danger, all of us have to think in terms of survival.’78 He could not, of course, tell his colleagues what these grave happenings were, or, indeed, what steps he was going to take to avert this danger—only that grave international issues were involved and that things said and done repeatedly may lead to the gravest consequences with regard to foreign countries.79
The press came in for a savage verbal flaying:
It has become a matter of great distress to me to see from day to day some of these newssheets which are full of vulgarity and indecency and falsehood, day after day, not injuring me or this House much, but poisoning the mind of the younger generation, degrading their mental integrity and moral standards. It is not for me a political problem but a moral problem. How are we to save our younger generation from this progressive degradation and the progressive poisoning of their mind and spirit?80
Fake news, which undermined the morale of the armed forces and corroded the nationalist sentiment of the youth, was also a major concern:
From the way untruth is bandied about and falsehood thrown about it has become quite impossible to distinguish what is true and what is false. Imagine our younger generation in schools and colleges reading this, imagine, I ask this House, our soldiers and our sailors and our airmen reading this from day to day. What kind of impression do they carry? . . . when there is no sense of responsibility and obligation, what are we to do? How are we to stop this corroding influence?81
The amendment was not only necessary but eminently desirable, he told Parliament, because if these changes were not made, the whole purpose of the Constitution ‘may be defeated or delayed’—and it was their duty to see that the Constitution was correctly interpreted to reflect the ‘will of the community’.82 The whole purpose of the Constitution, Nehru apprised the assembled members, was a dynamic movement towards certain objectives. How was this purpose of the Constitution being defeated? By the courts of the land laying more stress on justiciable fundamental rights, which represented a ‘static element’, than on the non-justiciable Directive Principles of State Policy, which truly represented this dynamic movement.83
In other words, the enforcement of fundamental rights was defeating the Constitution. Nehru was telling Parliament that directive principles—which included instructions on sundry matters ranging
from reduction of inequality and provision for maternity benefits to protection of cows and the organization of animal husbandry, and included the still contentious direction to create a Uniform Civil Code—reflected the true purpose of the Constitution and trumped the chapter on fundamental rights, the supposed ‘heart and soul’, which in reality was actually hindering the Constitution from fulfilling its purpose. The whole conception of fundamental rights and the protection of individual liberty, he argued, was an old nineteenth-century idea drawn from the French Revolution, an idea that had now been superseded by the dynamic ideas of the twentieth century as represented by the directive principles: ideas of social justice, economic and legal reform, cow protection and animal husbandry.
The state and the Constitution, rather than protecting the rights and freedoms of the individual, were to champion these ideas. In the normal course of events, such issues were resolved through the development of conventions and the slow process of judicial interpretation, which, as Nehru stated, other countries with written constitutions had gone through. But because we lived in rapidly changing times, he declared, India could not wait for judicial interpretation or the development of conventions. Neither could the Congress party’s social agenda. ‘You, I and the country [sic] has to wait with social and economic conditions . . . and we are responsible for them,’ he thundered. ‘How are we to meet them? How are we to answer them? How are we to answer the question: for the last ten or twenty years, you have said we will do it. Why have you not done it? It is not good for us to say: We are helpless before fate and the situation we have to face at present.’84
Nehru’s views were an audacious and extraordinary inversion of the foundational principles of the constitutional order, deploying the standard authoritarian tropes of vague threats against the state and the constitutional imperatives of a social revolution. He had been saying much the same thing to his colleagues and chief ministers over the year. Only now, in Parliament, with recent events having demonstrated the complete inaccuracy of most of his claims, they were far more insidious, unsettling Congressmen and Opposition figures alike. They were, equally, a statement of his power and a confession of his fears. He had promised his people a social revolution, and neither his critics, nor the lawyers kidnapping and purloining his magnificent Constitution,85 nor the judiciary, nor indeed the magnificent Constitution itself, were going to come in his way.
Parliamentary encounter II: Mookerji replies
Shyama Prasad Mookerji, the unofficial leader of the Opposition, rose to reply immediately after Nehru finished speaking. Unlike Nehru’s long, rambling declamation, Mookerji’s speech was sharp and hard-hitting. His careful and eloquent deconstruction of Nehru’s explanations, which he termed weak, halting and unacceptable,86 electrified his audience and led to repeated thumping of desks by appreciative non-Congress members.
‘What is the sad picture that we present to the country today?’ he asked the House with his trademark rhetorical flourish.
Within a year and a half of enacting the Constitution we have come forward, and however much the Prime Minister might attempt to say that the changes are simple, that there is no controversy about it, he knows it in his heart of hearts . . . that what he is going to do is nothing short of cutting at the very root of the fundamental principles of the Constitution which he helped, more than anybody else, to pass only about a year and a half ago. This is the challenge he has deliberately thrown to the people of India. I do not know why he has thrown up this challenge. Is it due to fear? Does he feel that he is incapable today to carry on the administration of the country unless he is clothed with more and more powers to be arbitrarily utilized so that his will may be the last word on the subject? Or is it his doubt in the wisdom of the people whose champion he has been all his life? Does he feel that the people of India have run amuck and cannot be trusted with the freedom that has been given to them?87
Mookerji proceeded to calmly and clinically take Nehru’s claims apart, repeating many of the criticisms that had been aired in the press. He called the restrictions on the freedom of speech a ruse to penalize the government’s political opponents, reminding the prime minister that action against a small group spreading venom and vulgarity did not require a change in the Constitution; the powers provided to Parliament and the state legislatures were broad enough.88 He admonished the prime minister for taking away rights that had deliberately been given only a year and a half ago,89 and emphasized the need to set good democratic precedents and create good democratic conventions while decrying the desire to constantly arm the executive with new and arbitrary powers.90 He believed that the ‘dangerous’ qualifier on relations with foreign states was targeted at his criticism of Pakistan and his desire to annul Partition, arguing that democratic freedom necessarily implied that any viewpoint be allowed to circulate in the country so long as it did not advocate violence and chaos.91
He echoed the views of President Rajendra Prasad that the Patna High Court judgment had only recognized the flaws in the Bihar legislation rather than indicating any problems with zamindari abolition. On the principle of zamindari abolition with fair compensation, there was unanimous approval of the House—and such legislation was anyhow protected in the Constitution. The inability of the government to create a set, uniform formula for such legislation was down to its own incompetence and could not be blamed on the Constitution. The only ‘logical, fair and equitable procedure’ in this situation, Mookerji argued, was to approach the Supreme Court and wait for its judgment. In his opinion, only if the Supreme Court came to a conclusion that invalidated the fundamental principle of zamindari abolition could there be any justification for amending the Constitution.92
The Ninth Schedule—the repository of unconstitutional laws—became the subject of a ferocious attack:
What you say is that particular laws which are mentioned in a schedule to the Constitution, no matter whether they infringe any provision of the Constitution or not, are deemed to be valid. Is that any way in which the Constitution should be amended? . . . By this amendment you are saying that whatever legislation is passed, it is deemed to be law. Then why have your Constitution? Why have your fundamental rights? Who asked you to have these fundamental rights at all? . . . You passed the fundamental rights deliberately and you clothed the judiciary with certain powers not for the purposes of abusing the provisions of the Constitution but for giving interpretations and generally acting in a manner consistent with the welfare of the people. If the Supreme Court has gone wrong, come forward and say that the Supreme Court has come to such and such conclusions which are repugnant to the basic principles on which the Constitution was based. But the Supreme Court has not had a chance to consider this matter and you come forward with this hasty proposal that any law mentioned in the schedule would be deemed to be valid. Not only that. I can even understand your considering the laws before you, but you are saying that in future if any law is passed in regard to these subjects, it would be deemed to be valid notwithstanding the provisions of the Constitution. Can anything be more absurd and more ridiculous?93
Mookerji went after Nehru with a vengeance. ‘For a period of so-called emergency,’ he sarcastically advised the prime minister,
[Y]ou can pass a law and say that the entire task of framing, interpreting and working the Constitution will be left in the hands of Pandit Jawaharlal Nehru, assisted by such people whom he may desire to consult. Pass a simple amending bill. And then declare that for the next two years nothing more need be done in India . . . But do not have a camouflaged Constitution . . . You are treating this Constitution as a scrap of paper . . .94
The leader of the Opposition cautioned Nehru against the headlong rush to enforce his will, encouraging him to reflect on the future and the dangerous precedent he was setting. ‘Maybe you will continue for eternity,’ he warned, ‘in the next generation, for generations unborn; that is quite possible. But supposing some other party comes into authority? What is the precedent which you are layi
ng down?’95
Concluding his gripping, exhilarating oration, Mookerji exhorted his fellow parliamentarians to stand up for the Constitution and resist ‘this encroachment on the liberty of the people of Free India’ with the stirring words: ‘For the saddest epitaph which can be carved in memory of a vanished liberty is that it was lost because its possessors failed to stretch forth a saving hand while yet there was time.’96
Parliamentary encounter III
Mookerji’s rousing words triggered protracted applause from all quarters, including several senior Congress members. So compelling was his oratory that the next speaker, Congress stalwart (and future Swatantra Party luminary) N.G. Ranga described it as ‘one of the most powerful and eloquent speeches’ he had ever heard, and called Mookerji ‘the Indian Burke’ after the great British parliamentarian and conservative philosopher.97 ‘I began to think,’ gushed Ranga, ‘how the British Parliament must have reacted to that other great man as he was reeling out his great eloquence.’98 Reporting on one of the greatest verbal duels in Indian parliamentary history, the Times of India approvingly noted, ‘Mr Nehru’s sentiment was more than outmatched by the impassioned logic of Dr Mookerjee.’99
For a moment, even the government’s strongest supporters wavered in their commitment to their party manifesto and their subservience to the party agenda. Both Ranga and Thakurdas Bhargava, the second Congress speaker of the day, only offered their qualified support to the measure. Both backed the need for a constitutional amendment, particularly with reference to Article 31 and zamindari abolition, but both demanded that some of the concerns raised by Mookerji regarding civil liberties and the right to freedom of speech be addressed, and the government examine the amendment’s potential for misuse.100 Bhargava repeatedly pressed the government to introduce the word ‘reasonable’ before any restrictions on free speech that were written into the Constitution.
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