Sixteen Stormy Days

by Tripurdaman Singh

  Maharaja Kameshwar Singh, the man who had spearheaded the legal fight against the Bihar Land Reforms Act, accused Nehru of ‘sowing the seed of executive despotism’ and ‘playing with the supremacy of the Constitution for party advantage’.101 He again reiterated his commitment to zamindari abolition with a fair and uniform rate of compensation and recommended that any such laws be made to conform to the Constitution. ‘Let it not be said,’ he implored the prime minister, ‘that the champion of democracy is following dictatorial methods.’102

  Nehru had begun the amending process certain that in light of a Congress majority, the bill would have easy passage. The sharp words from the unofficial leader of the Opposition and the hesitation visible on the treasury benches, combined with the burgeoning tide of criticism in the press, left him troubled and disturbed. ‘The Bill for amendment of the Constitution is meeting with a good deal of opposition in the press and elsewhere,’ a daunted prime minister wrote to his chief ministers as the day ended. ‘We hope to get it through, even though that requires a two-third majority . . .’103

  6

  The Battle Rages

  A vigorous defence

  On the evening of 15 May 1951, the evening before fireworks began in Parliament, Speaker G.V. Mavalankar wrote to Prime Minister Nehru to express his objections to the proposed amendments. Echoing the critics outside the Congress, Mavalankar thought the amendment ill-timed and unnecessary in the present circumstances. Like the president, he didn’t believe there was any pressing need to curb free speech, and even if there was, the amendment must not be pushed through without soliciting a wide range of public opinion. He also found the changes to Article 31 a grave infringement which would effectively deprive the individual of all fundamental rights in relation to property, on which, he argued, most peaceful progress and social reorganization depended.1

  ‘We have felt the urgency of having some such amendment because the situation in the zamindari areas is becoming increasingly difficult,’ replied Nehru. ‘We are on the eve of what might be called a revolutionary situation . . . It is in our opinion, very important that rapid effect should be given to the Zamindari Abolition Acts.’2 ‘Any attempt to postpone this measure rather indefinitely may well lead to very serious consequences,’ he admitted to the Speaker. ‘For the Congress it would be fatal, because they would have failed in their primary objectives. I feel therefore that any circulation of the Bill involving long delays would be unjustified and possibly dangerous.’3 Coming straight from the metaphoric horse’s mouth, it was a remarkably candid admission about the cause of the prime minister’s frenzied rush towards an amendment, and confirmation of the Opposition’s charge that the Constitution was being changed to suit the Congress party. Much like the president, the Speaker ultimately also found his objections curtly brushed aside.

  Of the continuing parliamentary debate over 17 and 18 May, the Times of India reported:

  Whatever of the Prime Minister’s imperative to Parliament to amend the Constitution survived the incisive logic of criticism yesterday was today well and nigh totally demolished by the formidable tide of argument that flowed from Congressmen and Independents alike, which not one supporter of the Bill was able to adequately answer.’4

  Despite supportive speeches from Congress leaders like Renuka Ray, Krishna Chandra Sharma and M.P. Mishra—who even contended that there was no need to elicit any public opinion because ‘no public opinion can be more weighty than the will of the Members of this Parliament’5—Nehru was eviscerated by his opponents, who, according to press reports, ‘decimated the force’ of his arguments.6 Such opponents included not only independent members like H.N. Kunzru and Ramnarain Singh and Opposition figures like Hussain Imam, but also—to Nehru’s surprise and discomfiture—renegade Congressmen like Deshbandhu Gupta, H.V. Kamath and Syamnandan Sahay.

  Kunzru declared that Articles 19 and 31 were not being amended, they were effectively being repealed, and if passed, the new article would extinguish freedom of speech and expression almost entirely.7 There was only one reason for this extraordinary course of events: the upcoming general election.8 H.V. Kamath suggested ‘that what needed amending was not the Constitution, but the policies of the Government’. The blanket validation of land reform legislation and the creation of the Ninth Schedule constituted, in his opinion, ‘nothing short of midsummer madness’.9 Hussain Imam described the amendment as ‘laying the foundations of an authoritarian state’ and Syamnandan Sahay thought it tragic that the Constitution was being reduced to the level of ordinary legislation. Deshbandhu Gupta charged the prime minister with showing little faith in the people of the country, who, according to the Preamble to the Constitution of India, more than any Parliament, had given themselves the Constitution as a charter of freedom.10

  The government found itself struggling to answer the simplest questions: If they did not desire to use any of the enabling provisions of the amendment, then what was the hurry? If the Supreme Court hadn’t pronounced any verdict on zamindari abolition, where was the need to change the Constitution? Why was the government so keen to circumscribe freedom of expression? What was the imminent threat that Nehru kept referring to? Why were they so disinclined to set a positive example and create exemplary democratic traditions? Unable to face the heat, the government wheeled out Law Minister B.R. Ambedkar to mount a vigorous defence.

  In a nearly two-hour-long speech, Ambedkar assured the House that the government did not intend to misuse any of the powers it was acquiring, and the amendment was only meant to arm Parliament with the power to pass certain legislation when necessary rather than enact any specific laws in the immediate future. He reiterated Nehru’s spiel that judicial pronouncements were ‘utterly unsatisfactory’ and not in consonance with the Constitution—especially the invalidation of the Communal GO and the policy of quotas—and that the government was committed to fulfilling its obligations as enumerated in the directive principles. New restrictions on free speech were necessitated by the refusal of the Supreme Court to interpret into the Constitution the doctrine of ‘inherent police powers’11 like the United States, he argued. In order to secure itself from threats and fulfil its obligations, he maintained, it was vital that the Constitution be amended.12

  Keen critics of the proposed Article 31B, which created the Ninth Schedule as a constitutional vault for land reform legislation, Naziruddin Ahmed, Syamnandan Sahay and H.V. Kamath questioned Ambedkar on the need for such an outrageous constitutional device to provide blanket protection to bad and possibly unconstitutional laws. ‘Just imagine the amount of burden that would be cast upon myself, on the Law Ministry, the Food and Agriculture Ministry and other Ministries involved if we were to sit here and examine every section of each of these Acts to find out whether they deviate,’ came Ambedkar’s terse reply.13 A more graphic revelation of the government’s unending search for short cuts and its apathetic and lackadaisical attitude would have been hard to find.

  In his closing speech requesting MPs to refer the bill to the Select Committee, Nehru too spoke with fervour in defence of the amendment to Article 15 and continued to dwell on the confusion caused by the contrary judgments of the Allahabad and Patna High Courts—an obviously disingenuous turn of phrase. ‘This business of equality before the law,’ he exclaimed,

  . . . [Is] a dangerous thing . . . and it is completely opposed to the whole structure and method of this Constitution and what is laid down in the Directive Principles . . . I am not changing the Constitution by an iota . . . I am merely giving effect to the real intentions of the framers of the Constitution and the wording of the Constitution.14

  An overwhelming majority of MPs did in the end vote to send the bill to the Select Committee, with instructions to report back on 23 May. Only two votes were cast against Nehru’s motion, demonstrating yet again the prime minister’s firm grip on the Congress Parliamentary Party.15 The measure clearly had the support of a substantial number of Congress MPs. But the ferocity of the debate, the eq
uivocation from several Congressmen—particularly with regards to freedom of speech—and outright hostility from others, also brought home to Nehru that he was in for stormy days ahead, even if Congress MPs remained subservient for the moment.

  The dramatic resignation of Acharya Kripalani from the Congress amid the ongoing parliamentary combat heightened this sense of tension.16 Declaring war on the government, Kripalani announced his intention to bring all Opposition forces into one fold.17 Some even speculated that another high-profile resignation from Communications Minister Rafi Ahmed Kidwai, a member of Kripalani’s dissident Democratic Front, could soon follow. Eventually, no such schism surfaced and Kidwai and other supposedly dissident members remained loyal to Nehru.

  When the Congress Parliamentary Party met two days later, however, a formal motion to drop the proposed amendment to Article 19 was moved by Deshbandhu Gupta. It was easily defeated.18 But the fact that it was suggested and voted on at all was an unambiguous indication to the ‘high command’ that it could not rely blindly on the support of all its MPs; that many of them were getting restive about the assault on the freedom of speech and on the constitutional ideals that they themselves had helped shape. The unceasing criticism was also getting to Nehru. ‘I think much of the criticism is misconceived,’ he wrote to his chief ministers. ‘There is a strange fear in the minds of some that Parliament might misbehave and therefore should not have too much power given to it.’19 None bothered to tell him that such a robust fear of excessive executive power was the bedrock of liberal democracy.

  A twelve-member delegation of the All India Newspaper Editors Conference (AINEC) led by its president—the same renegade Congress MP Deshbandhu Gupta—also met the prime minister on 20 May to press its demand that the government drop the proposed amendments in the present circumstances or postpone it to a later date so that ‘public opinion may be fully elicited on the subject’. The doyens of the press were told by the prime minister that while the government was not prepared to meet either demand, it would nevertheless try to modify the amendment to try and mitigate their concern.20 Many wondered, was the unrelenting pressure forcing him to soften his stand? AINEC remained unconvinced.

  The interlude

  From Parliament, the Constitution (First Amendment) Bill now made its way to the Select Committee. Much like Parliament itself, the Select Committee was dominated by the Congress party. Having weathered the torrid debate in the House, Congress members were confident of passing this hurdle with relative ease. Opposition leaders Shyama Prasad Mookerji, H.N. Kunzru, Sardar Hukam Singh, K.T. Shah and Naziruddin Ahmed, who made up a small but vocal and vociferous minority, were equally determined to mount a strenuous defence of fundamental rights and civil liberties. Both supporters and detractors of the bill now waited with breathless anticipation for the Select Committee’s report to appear and settled down to a brief interlude.

  Meanwhile, outside the corridors of power, the emotionally charged debates in Parliament provoked an ever-growing torrent of adverse opinion. As the committee deliberated on the clauses of the amendment, vehement criticism from pressmen, businesses, lawyers, civil society groups and political figures alike continued to flood the pages of newspapers and the government’s undue haste and lack of respect for democratic propriety became a common topic of public discussion.

  The Supreme Court Bar Association took the lead by denouncing the amendment and demanding that the executive function within the limits prescribed by the Constitution. Assembled lawyers appealed to all ‘public bodies who believe in civil liberties and particularly freedom of speech and expression’ to ‘mobilize public opinion and express themselves in unequivocal terms’.21 Following in its footsteps, the Nagpur High Court Bar Association ‘passed a resolution expressing its emphatic view that the proposed amendments were improper, unjustified, highly undemocratic and opposed to the fundamental rights of the citizens of India’.22 Former judges like N.C. Chatterjee of the Calcutta High Court and S.P. Sinha of the Allahabad High Court also inveighed against the measure and gave public statements castigating the government.23

  The Progressive Group, Bombay—a liberal organization consisting mostly of Muslims and Parsees—challenged the competence of a provisional parliament elected on a limited franchise and opposed any amendment of the Constitution before a general election.24 The All India Newspaper Editors Conference, unconvinced by Nehru’s assurances to its delegation, restated its demand for the complete withdrawal of the proposed amendment to Article 19 and the freedom of speech and expression. The Standing Committee of AINEC ‘placed on record its considered opinion that the proposed amendment (was) unwarranted and uncalled for, and hoped that the representations made by the President would persuade the Government to reconsider their attitude’.25

  Nehru, concerned at the reactions in the press, invited major editors and correspondents—Devadas Gandhi of Hindustan Times, Ramnath Goenka of the Indian Express and Shiva Rao of The Hindu—for a briefing with him.26 It did little to stem the tide of disapproval. In private correspondence, Deshbandhu Gupta informed the prime minister that his verbal assurances lacked any constitutional validity, and to give concrete form to them, suggested the inclusion of a new clause in the Constitution guaranteeing the freedom of the press—something akin to Article 1 of the American Constitution.27 ‘These wide powers [which the government was appropriating via the amendment],’ Gupta maintained, ‘were an open invitation to parliamentary majorities to abridge the freedom of the press.’28 Nehru promptly rejected Gupta’s suggestions out of hand.

  In Kanpur, the tremendously well-respected elder statesman Sir Jwala Prasad Srivastava, former cabinet minister, former member of the Viceroy’s Executive Council and former member of the original Constituent Assembly, stated that the proposed amendments ‘were ill-timed, inept and ill-advised’ and warned that they ‘sought to take away the guarantees in the Constitution’.29 An interesting aside: Srivastava’s son-in-law Minocher ‘Minoo’ Masani would one day found the Swatantra Party and become one of Nehru’s fiercest critics, leading the liberal fightback against Congress dominance.

  Within the fourth estate, reactions to an amendment that placed ‘the press literally at the mercy of bureaucratic whims’30 were universally condemnatory and vituperative, with open declarations that the ‘press will and must organize its resources to fight this encroachment on fundamental freedoms.’31

  One writer railed:

  Public order is the foundation of a stable state. But to empower governments with the expansive right to abridge freedom of expression in matters pertaining to public order is surely to strike at the roots of democratic rule and life . . . Tomorrow a communist government under cover of the proposed amendment to restrict free comment on foreign affairs might dragoon the press into bowing to the behests of the Kremlin . . . In the name of public order a dictatorial administration . . . may scotch all opposition to itself by a blanket ban on criticism against the Government on the ground that this is likely to undermine public order. These are the dangers to democracy and democratic rule inherent in the new amendments.32

  ‘The whirling of time has indeed brought forth its revenges’ mused another senior commentator.

  Those who in former times championed most vociferously freedom of speech and expression, having now settled down in the seats of power, see no incongruity in themselves proposing to impose more rigid restrictions upon them. Clearly they show no understanding of the nature of freedom.33

  ‘If further restrictions are to be imposed’ he asked the government,

  [It] must surely be shown that because of the absence of these restrictions our friendly relations with foreign governments have been imperilled, public order has been endangered and there has been widespread incitement to offences. So far as one can make out from the debates, there has been no attempt to show that throughout the country conditions have been such as to necessitate these changes. All we find is mention of a few judicial pronouncements—occasionally even judicial
obiter dicta—from which it is argued that the changes are necessary.34

  Without the amendments of Articles 15 and 31, ‘certain inconveniences will undoubtedly be caused to the party in power, certain policies sponsored by the party will not show all the results expected from them, and this may cause the electorate in certain areas to be not too enthusiastic in its support,’ he argued. ‘But surely these furnish no reasons for forcing through fundamental changes . . .’35

  The legal correspondent for the Times of India accused Law Minister Ambedkar of trying to be too clever by half in censuring the Supreme Court for refusing to support his doctrine of ‘implied police powers’ and published long extracts of his speeches to the Constituent Assembly in 1948 to demonstrate how he had gone back on his own claims. In 1948, Ambedkar had categorically asserted before the Constituent Assembly that instead of formulating fundamental rights in absolute terms and depending on the Supreme Court to invent the doctrine of ‘police powers’ and read limitations into them (as happened in the United States), they were going to directly write such restrictions into the Constitution itself, forestalling the need or the ability of the Supreme Court to invent any doctrines. Having made such a statement in the Constituent Assembly, in the correspondent’s opinion, for the law minister to now demand ‘implied police powers’ was nothing short of dishonesty.36

  ‘In supporting the Constitution (First Amendment) Bill the prime minister stated, inter alia, “it was not to be used by the present Government but will be handed down as a legacy to future parliaments,” wrote an irate citizen from Bombay in a letter to a major newspaper. ‘Then what is the necessity of introducing it in the present Parliament? If, as Mr Nehru admits, “nothing could be static or unchanging” and the situation may alter radically, it is hardly fair to act presumptuously towards the next Parliament.’37