The spate of criticism and adverse opinion, incessant and implacable, momentarily shook the prime minister. Within the Select Committee, he came under increasing pressure on the issue of freedom of speech and expression, on which a growing number of Congressmen disagreed with him. Many supporters pressed him to include the phrase ‘reasonable restrictions’ to allow any of the restrictions placed to be justiciable rather than grant the government blanket and arbitrary powers to curb free speech and completely exclude any possibility of judicial review. Nehru, who self-confessedly wanted to circumscribe the judiciary’s power and show the judges their place in the pecking order, recoiled at this advice.
‘I confess I do not like the word “restriction” or “reasonable” added to it,’ he wrote to T.T. Krishnamachari, Congress MP from Madras and former member of the Drafting Committee in the Constituent Assembly.
So far as I can see, the courts have always had the right to consider any legislation . . . It is true that if this amendment is passed, they will be somewhat restricted in their interpretation. But I feel that putting in the word “reasonable” would be an invitation for every such case to go to the courts with ensuing uncertainty.38
In the prime minister’s own words, he did not want the restrictions on the freedom of speech to need to pass any test of reasonableness. He wanted to exclude the courts from adjudicating on them altogether. The word or the idea of restrictions may not have appealed to him very much, but the idea of them being reasonable appealed to him even less. It was a strangely contradictory position to take: to dislike restrictions but want them to be overarching and non-justiciable when written into the Constitution. Between the fundamental rights of the country’s citizens and the prime minister’s single-minded devotion to remaking India in his own image, the latter was the undeniable victor.
Resistance, rebellion and sleight of hand
The Select Committee finished its deliberations on the evening of 22 May 1951. By Nehru’s own account, Opposition figures forced extensive discussions on every single issue, often compelling the committee to meet both in the morning and in the afternoon to complete its work. Article 19 and the freedom of speech remained a major bone of contention. ‘I feel quite exhausted,’ the prime minister confessed at the end of four days of deliberations.39
Outside, the storm of criticism refused to abate. Under fire from the press, the commentariat and the Opposition, large numbers of Congress MPs began to vacillate on the extent of their support for Nehru’s line, particularly the attack on Article 19. When the Congress Parliamentary Party met on 23 May to take stock of the situation, the prime minister was presented with a petition signed by seventy-seven MPs asking for a free vote when the amendment was discussed in Parliament.40 Nehru was taken aback by the move and surprised by the rapid slide in support. From a near-unanimous majority for the amendment to Article 19 in the meeting on 20 May to the demand for a free vote on 23 May, the deterioration in the party’s mood was swift and, for Nehru, dangerous.
The prime minister sensed the precariousness of the situation. The party might have been in his thrall and there may not have been any open rebellion, but there were enough doubters and dissidents to deny him his victory over the Constitution if he did not moderate his stand. By the time the Union Cabinet met in the evening, Nehru was already under significant pressure from rebellious MPs and probably mulling his options. Within the Cabinet, several ministers now started to insist that the word ‘reasonable’ be included in the amending bill to safeguard judicial oversight of restrictions on fundamental rights. Many perhaps realized that without it, the amendment constituted a near-existential threat to Part III of the Constitution. Support for Nehru’s draconian vision of emasculating the courts was now fading at an alarming rate.
The surprising turn of events shocked the prime minister and convinced him of the need to pedal back. It brought home the limits to which both the Cabinet and the Congress Parliamentary Party were willing to obey his diktats. Hemmed in on the issue, Nehru conceded ground and accepted the inclusion of the word ‘reasonable’ in order to prevent a split in the Cabinet and ensure that there were fewer avenues for internal dissent when trying to muster a two-thirds majority.41 ‘The cabinet is understood to have decided to meet the mounting criticism against the proposed amendment to Article 19(2) of the Constitution, relating to “restrictions” on the freedom of speech and expression by accepting a modification that will render it justiciable,’ reported a correspondent. ‘The clause in question is to be amended by limiting to “reasonable restrictions” the proposed unfettered right of the State to impose restrictions in the interests of public order and maintaining friendly relations with foreign states.’42
It was a very limited concession, extracted much against the prime minister’s own will and volition. But it served to dilute the absolute worst part of the proposed amendment and placate the agitated members of the Cabinet. Whatever restrictions the government might legislate on the right to freedom of speech, they would have to submit to a judicial determination of their reasonableness. The unrestrained ability of the state to curtail fundamental rights, the most extreme of Nehru’s ideas, was negated. Unbeknownst to the participants in that momentous Cabinet meeting, their rearguard action had just warded off one of the gravest threats the Constitution ever faced, or was likely to face in the future. A handful of doubters and dissenters, having built up the conviction to stand up to a larger-than-life prime minister that towered over them in the public eye, had just saved the foundations of Indian democracy and its constitutional order.
Whether the concession would be enough to mollify restive Congress parliamentarians, of course, was another question altogether. The sobering experiences of 23 May left Nehru unsettled and disturbed. Could he rely on his MPs to fall in line behind him as in the past? Suddenly he was not so sure. ‘You can have no idea whatever of the tremendous difficulties we have had with this Bill and we are not out of the woods yet,’ he confided to West Bengal chief minister Bidhan Chandra Roy. ‘Till the last moment I shall not know whether we can have the requisite two-thirds number for passing these clauses.’43
While the effects of the concession on the Congress Parliamentary Party remained a matter of conjecture, it distinctly failed to impress the doyens of the press. Now decidedly nervous, the All India Newspaper Editors Conference resolved to hold a special plenary session ‘to consider the steps which should be taken to protect the liberties of the press now threatened by the proposed amendment to Article 19(2) of the Constitution’.44 In an attempt to embarrass Nehru into reconsidering his stance, correspondence between Deshbandhu Gupta and the prime minister was made public. It had little effect.
On the question of reservations and Article 15, however, there was much more consensus within the Cabinet. Insistent requests had continued to pour in from Madras arguing that the proposed alteration of Article 15 was insufficient to protect reservations for the backwards and ‘hence a new clause should be added to the article to the effect that nothing in the article or in Article 29(2) should prevent special provisions for the educational, economic, and social advancement of the backward classes.’45 Cabinet ministers, and Congress members in the Select Committee, accepted this demand to bring Article 29—which prohibited discrimination in admissions to schools and colleges—into the ambit of the amending bill. They were now of the view ‘that this provision is not likely to be, and indeed cannot be, misused by any government for perpetuating any class discrimination against the spirit of the Constitution, or for treating non-backward classes as backward for the purpose of conferring privileges on them’.46
In a new twist, they also recommended that all references to ‘economic’ and ‘economically’ be dropped and the language be limited to ‘socially and educationally backward classes’.47 Through this sleight of hand, the cabinet sought to achieve two objectives. First, it would remove any prospect of economic criteria coming in the way of calculating the backwardness of a class based on their �
��social and educational’ standing. Second, it would pre-empt and negate any demands for special provisions or reservations for those who could be termed economically backward without the corresponding status of social or educational backwardness. In other words, they wanted to acquire the power to legislate for caste- and community-based reservations—what the Constitution scholar Granville Austin called ‘compensatory discrimination’48—while preventing the creation of any affirmative action mechanisms based on economic criteria.
The exclusion of economic backwardness from the ambit of India’s reservation and affirmative action policies—either as a test for community-based reservations or as a criterion in and of its own accord—would open up a new political fault line that has endured to this day. Today, the debate around this fault line is expressed either in terms of demands for reservation for ‘economically weaker sections’ among the forward castes or demands for exclusion of the ‘creamy layer’ in reservations for Other Backward Classes. But few recall just where the race to social backwardness first began. Much before V.P. Singh and Mandal in 1990, much before the ninety-third amendment and Arjun Singh in 2006, it was in this dimly remembered cabinet meeting that the constitutional groundwork for this debate was first laid.
President Rajendra Prasad, who had been keeping a close eye on proceedings as the debate raged in Parliament and outside, now made a final, eleventh-hour effort to persuade the government to abandon the reckless course it had set itself on. In a note to the prime minister, Prasad reminded him of his view that the amendment was ‘premature and uncalled for’, and of the need to lead by example by establishing good conventions.49 He again cautioned Nehru against an attempt to overrule judicial pronouncements through a constitutional amendment, admonishing him that it would raise fundamental issues related to the separate functions of the legislature and the judiciary.50 Nehru, already irritated by what he thought was Rajendra Prasad’s propensity to exceed his brief, was incensed.
‘As you are aware, the Bill for the amendment of the Constitution has been discussed with great thoroughness both in Parliament and the Select Committee, as well as in the Press and by the outside public,’ came the prime minister’s terse response to the substance of the President’s objections.
Before the Bill took shape, the matter was considered by a sub-committee of the Cabinet and a committee appointed by the Congress party in the Parliament. The two committees held consultations together. We consulted also eminent lawyers, including the Attorney-General and Shri Alladi Krishnaswamy Aiyyar. Both of them were clearly of the opinion that it was within the competence of Parliament to consider and pass this measure . . . After this very full consideration of this subject from every point of view, the Cabinet have come to certain firm conclusions, which are now embodied in the Select Committee’s report . . . The Government is convinced of the necessity as well as the validity of the amendments proposed.51
‘It would be exceedingly unfortunate if the public became aware that the President held a contrary opinion to that of the Cabinet in such a matter and was pressing for its adoption by the Cabinet,’ he reprimanded Rajendra Prasad. ‘I shall certainly place your note before the Cabinet as desired by you . . . I do not propose to circulate this for fear of leakage and undesirable publicity. I trust also that your office has not sent copies of this note to anyone else.’52 For the second time, the president of the republic found his advice spurned and his views treated as unworthy of serious consideration. Committed to the constitutional order and the maintenance of decorum, Rajendra Prasad, despite his strong feelings on the matter, followed Nehru’s advice and scrupulously avoided publicizing his opposition.
‘Not enough’
On 25 May 1951, the new draft of the Constitution (First Amendment) Bill emerged from the Select Committee. Along with the draft, the report from the Select Committee was submitted to Parliament the same morning. After several days of intense deliberations, the twenty-one members produced an eighteen-page-long report.53 Recommendations from the committee took two pages; scathing minutes of dissent by Opposition members filled sixteen. As the press prominently noted, ‘All the five non-Congress members of the committee recorded minutes of dissent, some of them including Dr Shyama Prasad Mookerjee and Pandit Hriday Nath Kunzru doubting the very advisability of amending the Constitution in such haste after it had been in operation for only sixteen months.’54
In his minute of dissent, S.P. Mookerji strongly questioned the need for any further restrictions on the freedom of speech and expression. ‘The onus of proving the need for changes has not been satisfactorily discharged,’ he argued. ‘The main reason advanced was that the judiciary had pronounced its opinion on certain laws which were disfavoured by the government.’ ‘The existing restrictions on the right to free speech and expression were more than sufficiently restrictive and there should be no fresh additions to these restrictions,’ he urged, and ‘the word public order must be subject to the “clear and present danger” test, namely that the substantive evil must be extremely serious and the degree of imminence extremely high.’55 ‘Nothing has as of yet happened to justify the taking away of the jurisdiction of the judiciary in this sweeping manner,’ he wrote, castigating the government for its scramble to amend Article 31 and create a schedule of unconstitutional laws.56 ‘Instead of amending the lawless laws and making their provisions consistent with fundamental rights, the Government are following a strange procedure of adhering to such reactionary laws and changing the fundamental rights.’57
‘Restrictions like the pre-censorship of news and the banning of the entry of a newspaper into a state were imposed during the war under the Defence of India Rules,’ read the excoriating observations of H.N. Kunzru, challenging the Congress to explain ‘why the Government in a free India should be allowed to exercise such powers as were not exercised even during the British regime in peacetime’.58 Turning his attention to the revalidation of Sections 124A and 153A of the Indian Penal Code—sedition and causing enmity between groups respectively—Kunzru wrote: ‘The history of Section 124A is well known. It was passed in its present form in 1818 to curb the activities of Indian patriots . . . Now that India is free, it should find no place in a statute book in its existing form.’59
K.T. Shah, Sardar Hukam Singh and Naziruddin Ahmed produced a joint minute of dissent asserting their opinion ‘that the experience gained under the Constitution was insufficient to justify an amendment, they did not have the texts of the laws to be validated [laws that would be placed in the Ninth Schedule] and there was no evidence at all to justify this wholly gratuitous and unwarranted restriction on civil liberties’.60 ‘We have grave doubts and misgivings as to the wisdom, propriety and justification of the Bill,’ the trio concluded, flagging their reluctance to support the government’s invasion of individual freedom.61
In the new democratic republic, however, the views of the Opposition, no matter how well reasoned or how well intentioned, counted for little in the eyes of the country’s new regime. Opposition leaders, much like the president and the Speaker, found themselves sidelined and their views treated with indifference and scorn. This was to become a norm. In this new Nehruvian India, ‘there were numerous committees and consultation was frequent,’ wrote Sarvepalli Gopal, ‘ . . . the deficiency was in spirit and animation.’62
If ever more evidence was needed, the Select Committee report convincingly demonstrated the complete and utter lack of consensus on the matter and the absence of any respect for the Opposition’s views. There was little doubt left that the amendment of the Constitution was a Congress project driven by the prime minister with no support from Opposition figures—not even from those who conceded the principles of land reform and affirmative action.
Despite the passionate arguments put forward by Opposition figures, the majority of the Select Committee felt otherwise. Fervent appeals to Nehru’s sense of democratic propriety and the need for the ‘provisional parliament’ to show moral uprightness by waiting for a g
eneral election fell on deaf ears. All warnings that a dangerous precedent was being created went unheeded. The only major changes the committee recommended were the use of the word ‘reasonable’ before restrictions to make justiciable any legislation on the subject in respect of Article 19, a limitation of the language to ‘socially and educationally backward’ and the removal of all reference to economic backwardness, and the inclusion of Article 29(2) within the ambit of the qualification to be added to Article 15. In all other respects, including the alteration of Article 31 and the creation of the hugely controversial Ninth Schedule, the committee ignored the intense resistance of the Opposition and placed its stamp of approval on the bill drafted by the government.
Newspapers had been optimistically speculating on the concessions that Nehru might agree to in a bid to propitiate his critics and assuage his restive MPs. The recommendations of the Select Committee left them disappointed and angry. ‘Except for a grudging concession to the press and certain other modifications for elucidating other provisions the Bill to amend the Constitution has emerged unscathed from the 21 member Select Committee,’ lamented a report in a major newspaper.63 Having ruminated on the changes suggested by the committee for several days, another correspondent reaffirmed the stand of the press by stating that ‘the so-called concessions to popular demand are no adequate substitutes for existing safeguards’.64
In a muscular editorial evocatively titled ‘Not Enough’, the Times of India contended that phrases such as ‘reasonable restrictions’, meant to be safeguards against the heavy hand of the government ‘can at best constitute only a partial check on the executive’s abuse of powers. Experience shows that terms such as “reasonable compensation” can carry a multitude of meanings. Moreover, those who may be victims of the new repressive laws are not always likely to have the means to seek legal redress.’65 ‘A more pernicious feature of the new amendment is that the scope of the permitted restrictions remains as wide as the original draft,’ raged the writer. ‘As for the new restrictions allowed in the sacred name of public order, these can only help unscrupulous regimes to identify their own safety with the “security of the state” and to stifle all organized protest.’66
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