Sixteen Stormy Days

by Tripurdaman Singh

  ‘Why are “economically backward” people less deserving of help than “socially and educationally backward classes”?’ the editorial fumed. ‘As for securing special rights for Backward Classes, Clause 4 of Article 15 as redrafted does not prevent the treating of non-Backward Classes as Backward for the purpose of privileges on them.’67 Positively seething, the writer of the editorial warned Nehru: ‘At the root of democratic progress is the belief that the heterodoxies of today may become the orthodoxies of tomorrow and that the opposition of today may in the course of time achieve the majesty of government.’68 It was a warning that was apocalyptic and oracular in equal measure. Nearly seventy years on, facing the full force of the amendment, the Congress party, Nehru’s ideological descendants and co-travellers, and the one-time cheerleaders of the Nehruvian offensive, live on to testify to the veracity of the unknown writer’s prophetic warning.

  Nevertheless, at that moment in May 1951, so far-fetched did the possibility of the Opposition achieving the majesty of government seem that none bothered to take it seriously. Small in number, limited in electoral appeal and lacking any party organization, the threat of the Opposition one day using Nehru’s own stick to beat him with carried near-negligible weight as a deterrent. But what the Opposition lacked in numbers and electoral appeal, it made up for in its strength of purpose and its dedication to the defence of the Constitution. Having failed to convince the government to heed their opinions in the Select Committee, Opposition leaders now prepared to make a last ditch stand in Parliament.

  ‘The Opposition’ noted one journalist,

  [M]ay be numerically small in view of a strong Congress Party whip, and many doubters have certainly been satisfied by the change rendering justiciable the restrictions that might be imposed on freedom of speech and expression. But for all that, the Opposition will be intense and will probably be speaking for more than those who might care to walk out of the “noes” lobby . . . Members of the former Democratic Front [Kripalani’s group of dissident Congressmen] have taken counsel together on this measure . . . they are expected to oppose tooth and nail the very principle of a constitutional amendment at this stage.69

  As the amendment bill and the debate around it moved inexorably towards a conclusion, Opposition figures from across the political spectrum, few and far between as they were, now braced themselves and prepared for a fateful parliamentary confrontation. Much like the warriors of yore, woefully outnumbered and comprehensively outgunned, these intrepid defenders of constitutional freedoms unsheathed their verbal swords and rode out to battle.

  Parliamentary encounter IV: Storm over Parliament

  The battle was joined on 29 May 1951 as Prime Minister Nehru moved the bill as amended by the Select Committee for Parliament’s consideration. Even before Nehru began speaking, he was interrupted by H.V. Kamath objecting to the ‘vitiated’ proceedings in the Select Committee.70 He was quickly shouted down by the Speaker to allow Nehru to begin proceedings. The mood was sombre—this time, there would be no niceties.

  ‘We live in a haunted age,’ Nehru informed his colleagues.

  I do not know how many members have this sense . . . of ghosts and apparitions surrounding us, ideas, passions, hatred, violence, preparations for war, many things you cannot grip, nevertheless which are more dangerous than other things . . . Hon. Members tell me that this Constitution has been in existence for sixteen months. Can any member tell me what the fate of the world will be in another sixteen months?71

  The apocalyptic imagery was fitting.

  In his seventy-minute address, the prime minister justified the amendments to Article 19 by vague allusions to a grave danger to the state and repeated the allegation that fundamental rights were now an obsolete idea. The addition of the word ‘reasonable’ made anything done under the act patently justiciable, he continued, and admitted that they had avoided using that word earlier ‘to avoid an excess of litigation about every matter, everything being held up and hundreds, maybe thousands, of references constantly made by odd individuals or odd groups thereby holding up the work of the state.’72

  The brazen admission by the prime minister that he considered individuals fighting for their constitutional rights to be odd and had wanted to prevent them from knocking on the doors of the judiciary provoked an indignant reaction from H.V. Kamath about the sacrosanct nature of fundamental rights. Nehru remained unfazed. ‘I wish the House would be clear about this and realize the times we live in,’ he sneered, ‘in this country and other countries, and not to quote so much some ancient script or ancient thing that was said at the time of the French Revolution or the American Revolution. Many things have happened since then.’73

  ‘It is not merely a question of what words you put in the Constitution’ he glowered.

  It is a question of dealing with the situation . . . of saving the country from going to pieces, as some people want and try to make it . . . Are we going to fight it with these words, to be told that this word comes in the way and that word prevents you from doing this? No word will be allowed to come in the way because the country demands it . . . Do you think any Constitution will prevent me from dealing with such a situation? No. Otherwise the whole Constitution goes . . . I want to be perfectly clear in declaring that if I am responsible and this Government is responsible, anything that goes towards disrupting the community . . . will be met with the heavy hand of the Government. There has been enough loose talk about this. It is for this country and this House to have or not to have this Government. But these are the terms of this Government, no other terms.74

  If the exposition of his repressive and absolutist vision for the new republic needed further elaboration, Nehru proceeded to delineate it while giving the press a piece of his mind. ‘I know something of the press, and I have been connected with the Press too somewhat, and can understand their apprehensions,’ he insisted.

  Yet I say that what they have said is entirely unfair to this Government. And I say that the Press, if it wants that freedom—which it ought to have—must also have some balance of mind which it seldom possesses. They cannot have it both ways—no balance and freedom. Every freedom in the world is limited.75

  As for why the government had included relations with foreign states as a ground to restrict fundamental rights, Nehru’s reasoning was equally outlandish. He only wanted to cover incitement to war and defamation of foreign heads of state, he claimed, but it was phrased to say friendly relations with foreign states because it was a friendly way of saying this and nice from the literary point of view.76 Exactly what amounted to a danger to friendly relations with foreign states, as usual, Nehru declined to specify. None bothered to point out that constitutional provisions were unlikely to be judged on literary merit. But the grim prognosis of the heavy hand of government and the limits of freedom evoked lusty cheers from Congress MPs.77

  The prime minister mounted a spirited defence of the amendment to Article 15, which he contended, had been necessitated by the events in Madras. ‘The argument of the Courts was valid from one point of view,’ he contended, ‘namely that communities as such could not be discriminated against. But for a variety of historical reasons, all manner of socially, educationally and economically backward classes existed and in order to encourage their progress ‘something special’ had to be done for them.’78

  ‘Some apprehensions had been expressed that this amendment might be used to perpetuate class discrimination,’ reported an eyewitness, ‘but Mr Nehru assured the House, this power would not be misused.’79 Some critics such as K.T. Shah and H.V. Kamath had pointed out that 80 per cent of the people were backward in those terms, regardless of their caste or community. Any special provisions should thus cater for all of them. ‘It is no good saying that,’ Nehru replied disdainfully.

  Much of this was, of course, a reiteration of what the Prime Minister had previously argued—an elaboration of his views and an outline of his perspective on democracy. They were the standard tropes: the Cons
titution needed to be flexible and follow the curves of life; it could not be allowed to ossify around ancient slogans from the French Revolution and archaic ideas about fundamental rights; the press and his critics were out of control and needed to be disciplined; the Constitution could not be allowed to come in the way of the Congress manifesto; the judiciary was overreaching itself by preventing the government from ignoring the Constitution and doing whatever it wanted to, which of course was obviously for the security of the nation. It was the most articulate depiction of the premises that underpinned Nehru’s conception of the democratic state, premises that progressively became principles of the new post-colonial order.

  Opposition leaders K.T. Shah and Naziruddin Ahmed, who were the next to speak, both ripped into Nehru’s contention. ‘Prof. K.T. Shah threw ridicule on this (the PM’s) argument by stating that the Constitution already made adequate provision for grave emergencies,’ reported a newspaper. ‘By a declaration of emergency, the President could suspend the entire Constitution and Government would be armed with unfettered power to take any measure that might be necessary.’80 Naziruddin Ahmed maintained that if any laws had been invalidated,

  [T]he fault lay not with the Courts, which had interpreted the Constitution correctly, but with the Government, who had failed to adapt such laws as was enjoined upon them by Article 372 of the Constitution . . . (much) as the British Government had adapted a whole series of enactments to the 1935 Act by a single consolidated measure.81

  The gods now decided it was their turn to communicate their displeasure. Claps of thunder rolled across the sky. As Naziruddin Ahmed savaged the amending bill, a sudden thunderstorm broke over the national capital. ‘The gale and accompanying thunder showers came upon New Delhi so suddenly,’ reported the Times of India, that even before windows and skylights could be closed, many MPs on the Congress benches were drenched in the rain. On a more portentous note, power went out and the lighting inside Parliament failed, plunging the chamber into gloom.

  The darkness was an unmistakable omen for the new republic, a moment of delicious irony. ‘Freedom of Speech is being taken away,’ remarked H.V. Kamath to general guffaws, ‘and there is a storm over it.’82

  Parliamentary encounter V: No holds barred

  As the debate over taking the bill into consideration played out over 30 and 31 May, Parliament witnessed a fierce war of words on the subject as a spirited Opposition continued to confront the government. ‘As an obvious result of yesterday’s party whip, Congress members abandoned all criticism in the House and this only brought into sharp relief whatever opposition came from independent members,’ noted The Statesman.83 Having weathered tremendous criticism, several proponents of the amendment were pressed into service to give speeches supporting the government’s stand. Yet, even here, support was either lukewarm or often driven by ulterior motives or general frustration.

  Reverend Jerome D’Souza, Congressman and Jesuit priest, was enthusiastic about the restoration of the Madras Communal GO because it was impossible to overlook the fact of backwardness, but he was more concerned with extending caste-based reservations for Christians so that socially backward classes could freely convert to Christianity without losing their backward status. He wanted race and culture as well as caste and community to be recognized to determine such backwardness, but insisted that religious differences should be ignored,84 presaging the modern demand for recognition of Schedule Caste and Backward Class Christians. As for freedom of speech as given and practised in England, he professed his condescending belief that since Indians did not possess the ‘phlegmatic’ English character distinguished by its stolidity and balance, it was necessary to restrain the organs of public opinion.85 The statement was greeted by widespread cheering across the treasury benches.86

  The famous Anglo-Indian educationist Frank Anthony, venting his frustration over the conundrum the bill represented, declared that he was not ‘prepared to accept the argument that these amendments are only an amplification, a clarification . . . They are a revolutionary, radical change in the original Article 19(2).’87 ‘The only way to stop the inevitable, ultimate dictatorship, communist dictatorship is a dictatorship of Jawaharlal Nehru,’ he lamented. ‘But because I believe that a dictatorship today is the only way to prevent a later dictatorship, I am prepared to give blanket powers to Jawaharlal Nehru. That is my only reason for supporting these amendments completely.’88

  Our leaders are incapable of thinking and practising in terms of democracy,’ he continued with his complaint. ‘The British occupation taught us . . . respect for the forms and trappings of democracy but the spirit and content of democracy have escaped the people and they have escaped our leaders . . . If the Constitution is largely dead, if it is largely still-born, why worry about making an excision?89

  On the Opposition side, the charge was led by Shyama Prasad Mookerji and Acharya Kripalani.

  Mookerji reminded the House that they had deliberately chosen a written Constitution incorporating a chapter on fundamental rights. They could well have decided not to create a chapter on fundamental rights in writing, but having done so, they necessarily had to admit the corollary that their powers to legislate on such matters were limited by the Constitution they themselves had created. Fundamental rights ‘were so many checks on the hasty and tyrannical action of the majority and served to protect the liberty of individuals and minorities,’ he stressed. ‘And if fundamental rights were enumerated in writing, that was in order to withdraw them from the arena of political controversy.’90 ‘You cannot pass or amend a Constitution to fight with ghosts,’ he warned Nehru, likening him to the Prince of Denmark fighting imaginary troubles in Shakespeare’s Hamlet.91

  In spite of the opponents of the bill being in a minority, Mookerji argued vehemently against the revalidation of repressive laws originally created to stifle Indian freedom under colonial rule, warning that they were ‘sounding the death-knell of democracy’.92 ‘We are giving more powers to Parliament to enact more laws restricting freedom,’ he censured his colleagues. ‘I submit that this is a completely wrong approach to the problem.’ ‘But in any case,’ he remonstrated with the government, ‘the power which you are now taking is not power which is necessary for any emergency that has arisen in the country, but for perpetuating certain lawless laws which our British masters had forged for the purpose of curbing freedom in India. That is what we are doing.’93

  ‘Let me exhort and conjure you never to suffer an invasion of your political constitution, however minute the instance may appear, to pass by without a determined persevering resistance,’ he fervently entreated the House, quoting the Letters of Junius, a tranche of open letters written by an anonymous eighteenth century British polemicist critical of King George III. ‘They soon accumulate and constitute law. What yesterday was fact, today is doctrine.’94

  Acharya Kripalani, veteran Gandhian, erstwhile Congress president and a leading light of the struggle for independence, was vitriolic in upbraiding the government. The country was pledged to zamindari abolition, he argued, and the population’s views on the subject were well known. It was perfectly reasonable to change the Constitution to effect this, ‘but the country was also solemnly pledged to the freedom of speech and expression, especially in light of the restrictions imposed on these freedoms by an alien government. Yet these freedoms were now to be abridged.’95 Public order and incitement to offence were undefinable terms, the Acharya opined. Satyagraha was an offence, all processions and demonstrations disturbed public order. Were all these to be stopped by using the might of the state against its own citizens?96

  There were no replies. Kripalani, one of Gandhi’s most ardent disciples, spoke slowly and with a bite to his voice, relishing the opportunity to take his former party apart. Sidelined, ignored and humiliated by his one-time colleagues, he now laid into them with bitter acerbity. The chamber, which had emptied out as Congress leaders dutifully extolled the virtues of the amendment, rapidly began to fill as Krip
alani continued.97 ‘It is superfluous to speak at this stage. Government seem to have made up their mind and they have a solid majority behind them; whatever is proposed will be carried out,’ he acknowledged with unsentimental frankness. ‘But sometimes, it becomes one’s duty to raise a voice of protest when things that we never imagined before are done.’98

  ‘We are accused of being idol worshippers,’ he claimed. ‘By whom are we accused? I am sure the greatest beneficiary of this idol worship is our Prime Minister and also, may I add, his government. But for this idol worship this government would have fallen at least twenty times during the course of the last three years.’99 ‘I know from experience that when people who are weak are given power, they use their power to their own injury,’ he apprised the prime minister, his voice gleaming with glacial sarcasm.

  A government that cannot dismiss a peon in office wants to clothe itself with extraordinary powers! I submit, these extraordinary powers will be used to your injury; and who will use them? It will be they that will come after you. You are not going to be eternal. No government is going to be eternal . . . More power will only injure you. So please be satisfied with limited power, because your capacity is very limited indeed.100