Sixteen Stormy Days

by Tripurdaman Singh

  President Rajendra Prasad, who was as unhappy at the turn of events as the Chief Justice, was not allowed the luxury of publicly expressing his displeasure. He did, however, write to Alladi Krishnaswamy Aiyyar to ask for his opinion. He now raised substantial legal objections. The problem as he saw it was twofold. First, the provisional parliament only had one House whereas Article 368, which gave Parliament the power to amend the Constitution, required a two-thirds majority in both Houses. Was a single chamber provisional parliament then competent to amend the Constitution?

  Second, the government had got around this difficulty by adapting Article 368 to temporarily refer to Parliament rather than two separate Houses by using the Constitution (Removal of Difficulties) Order No. 2—issued by the president on 26 January 1950 (under powers granted to him by Article 392) to make minor adaptations to the Constitution in order to remove any procedural difficulties that arose before a full Parliament was elected. Could this adaptation itself be ultra vires since, under the guise of removing difficulties, it effectively (albeit temporarily) amended Article 368 without adhering to the amending procedure as the article itself required?7

  ‘If any or both of the above contentions are correct and the amendments are ultra vires of the Parliament,’ Prasad queried Aiyyar, ‘is it the duty of the president to assent to the Bill even when he knows them to be ultra vires, particularly in view of Article 60 whereby he is required by his oath of office to the best of his ability to preserve, protect and defend the Constitution?’8 In other words, what the president was asking was whether the government could use a presidential order to change the procedure to amend the Constitution that Article 368 detailed without following that very procedure in the first place? Could it then use the amended and changed procedure to make significant amendments to something as cardinal as fundamental rights, when Article 13(2) prevented Parliament from making any law to abridge them? Was this not a textbook example of the misuse of the powers granted to the president under Article 392?

  Aiyyar’s response, as Granville Austin notes, is not on record. ‘But earlier, when Prasad had addressed him with such concerns, Aiyyar had told him he must give his assent.’9 Unwilling to risk a public confrontation with the prime minister and mindful of the need to maintain the constitutional order, Rajendra Prasad assented to the bill on 18 June 1951. And just like that, some of the most precious individual rights that the citizens of the new republic had enjoyed under the new Constitution were seized by the state, never to be returned to its citizens again. In a conversation with AINEC president Deshbandhu Gupta after signing the bill into law, Rajendra Prasad noted:

  So far as the Prime Minister was concerned, he had given them [the press] an assurance that the Government was not going to fetter freedom of the Press, but what they apprehended was that once the power was taken by the Government, they could not be sure it would be used against the Press later on. The best safeguard was contained in the Constitution and if the Constitution itself is amended, the Press is left to depend upon the goodwill of the Government for the time being.10

  Concerned zamindars and lawyers, still entertaining hopes of fighting the government, took the matter to the Supreme Court in a final effort to block the amendment—raising many of the same contentions that President Prasad had raised with Alladi Krishnaswamy Aiyyar. In its judgment on the matter, delivered on 5 October 1951, the Supreme Court threw these contentions aside and upheld the amendment on the ground that it had been enacted validly and that Parliament had unlimited power to amend the Constitution without any exception whatsoever.11

  The judgment only confirmed what had now been known for several months. The original provisions for individual freedom and civil liberties had been deformed and diminished. What remained was a vastly enfeebled imitation of what the Constituent Assembly had first drawn up; so much so that India’s pre-eminent legal scholar, Prof. Upendra Baxi, termed it ‘the Second Constitution’.12 Even before the first democratic election had been held, even before the teeming millions of the new republic had been given a chance to elect their representatives and voice their political preferences, the nation’s new democratic rulers had already launched an egregious and far-reaching attack on the rights of their subjects—the effects of which would reverberate through time.

  II

  The immediate ramifications of the amendment, which had already been delineated over the course of the debate and commentary that had surrounded the passage of the bill, were full and fearsome. Sections 124A and 153A of the Indian Penal Code were revalidated and made operational again by the addition of new grounds for restricting freedom of speech and expression, making ‘sedition’ and ‘promoting ill-will between communities’ into major criminal offences. Ditto for public order and public safety regulation. With the revalidation of such laws, the government reclaimed the coercive powers that its colonial predecessor had once had, and which the Constitution had originally denied it. As Deshbandhu Gupta told President Rajendra Prasad,

  All those repressive laws which were inconsistent with or contravened the fundamental rights had become void. This amendment of the Constitution revives them all by a stroke of the pen . . . all that had been achieved by the joint efforts of the Press and the Congress within the last forty years or more had now been nullified.13

  Parliament soon passed The Press (Objectionable Matter) Act penalizing the publication of material it did not like, giving concrete shape to Gupta’s fears.

  Article 31, which had restrained the state from acquiring property except by the authority of law for a public purpose and on payment of compensation, was swept aside. The additional Article 31A now declared that no law providing for acquisition of landed estates shall be deemed void on the grounds that it contravened Article 14, the right to equality, or Article 19, clause 1(f) of which guaranteed to citizens the right to acquire, hold and dispose of property as they saw fit. The new Article 31B created the Ninth Schedule, and declared that no law specified in the schedule ‘shall be deemed to be void, or ever to have become void’ on the grounds that it takes away or abridges any of the rights conferred by the Constitution—and no contrary judicial pronouncement could prevail.

  In this way, a constitutional vault was created to store certain laws and give them blanket protection from the Constitution—and at the same time, a mechanism was devised to emasculate the courts and exclude the possibility of judicial review entirely. The Ninth Schedule became, for all acts and purposes, a repository of potentially unconstitutional or actually unconstitutional laws and regulations beyond the purview of the courts. Any legislation declared void by the courts, once it received the protection of the Ninth Schedule, became legal and constitutional again. As one legal scholar observed, ‘Even if any of the Acts had driven a coach and pair through the Fundamental Rights guarantees, it could not be questioned and if it was unconstitutional, it became constitutional.’14 In effect, the schedule granted constitutional protection to the constitution’s abusers. Through such constitutional skulduggery, under the guise of Nehru’s social revolution, India’s political class was given the green light to ride roughshod over both the Constitution and the judiciary.

  Similarly, Articles 15 and 29, which prohibited discrimination on grounds of race, sex, caste, religion, etc., were made ineffective by the introduction of the caveat that nothing in those articles would prevent the state from making special provisions for the advancement of socially and educationally backward classes of citizens. Reservations for (the yet to be identified or demarcated) ‘backward classes’ (above and beyond Scheduled Classes and Scheduled Tribes) was made constitutionally permissible, laying the groundwork for a tectonic shift in Indian social and political life—making a mockery of the idea of individual rights while producing and reinforcing the seductive idea of collective rights. For all intents and purposes, an individual became constitutionally defined by and subsumed into their community-based identity.

  The explicit removal of any reference to economic crite
ria ensured that all benchmarks of backwardness would remain focused on caste, religion and community; other personal circumstances were made irrelevant and redundant. Reservations for ‘backward classes’ were made constitutionally permissible, regardless of economic standing. Reservations for ‘forward classes’ were made constitutionally impermissible, regardless of economic standing. Enduring resentment ensued. ‘Social backwardness’ became a defining feature of Indian public life, launching a race to be defined as ‘socially and educationally backward’.

  Of course, many argue that given the powers that Nehru had appropriated from the Constitution, and the consequent capacity for mischief and malevolence that legislation under it possessed, the amendment’s effects were fairly limited over most of his rule. In other words, in proportion to the quantum of power he appropriated, Nehru made use of a comparatively limited portion of it.15 The various legal instruments that the amendment gave birth to, despite their strong wording, did not supress critical opinion as much as they might have. This is only partly true. Nehru made use of many of the powers the amendment granted, even if in moderation, and never considered returning the rights and powers he had unceremoniously seized from the people and the judiciary.

  For example, he twice wrote to his chief ministers expressing the view that ‘any interference with the freedom of the press has to be avoided’16 and ‘none of us wants, for instance, the old sedition law to continue on the statute book’.17 Like many of the pious affirmations in Parliament during the debate, these sentiments were honoured only in breach. The sedition law continued on the statute books, as did Sections 153A and 295A of the Indian Penal Code. To them was soon added the Press (Objectionable Matter) Act. Nehru himself may have made only limited use of them—but he bequeathed them intact to his successors as a stick to beat India’s people with, to do with as they willed. He did so after having been warned repeatedly about the consequences by his opponents within Parliament and outside. His contempt for the Opposition and his faith in his righteous superiority was such that he failed to take heed. The constitutional infrastructure he provided, and never repealed, outlived him, providing a building block for the legal armouries of his successors, to be unleashed on the country’s hapless citizens whenever they step out of line.

  III

  In her work on the relationship between constitutionalism and popular sovereignty, the legal scholar Sarbani Sen argued that Article 368 and the power of amendment it conferred opened up ‘the possibility of legalising through the use of constitutional law, future constitutional transformations that seek to reject some elements of past constitutional traditions.’18 Yet, the first amendment went much further than simply rejecting some elements of past constitutional traditions. There was precious little by way of constitutional tradition to reject in 1951 anyway, apart from the institutional memory of the colonial state that much of the post-colonial government had absorbed by osmosis and imitation. Not even the founders, the vast bulk of whom also sat in the provisional parliament, had ever imagined a constitutional transformation in fifteen months, even before the first election had taken place.

  The first amendment thus did not just legalize a constitutional transformation that rejected past traditions. As the first of over 100 amendments, it created major precedents both legally and politically, inaugurating certain traditions and crystallizing other tendencies already present in the nation’s political sphere. In the immediate term, it effected certain changes such as the revalidation of sedition and blanket security for land reform legislation. But in the longer term, it was, as Granville Austin noted, ‘consequential far beyond its immediately visible content’.19 The immediate ramifications of the amendment had already been delineated over the debate and commentary that surrounded the passage of the Constitution (First Amendment) Bill. Longer-term consequences, many unfolding to this date, came to light much later, proving many of the bill’s opponents to have been correct.

  Foremost among the precedents Nehru created was the precedent of amending the Constitution to overcome and overturn judicial pronouncements. By retrospectively amending the Constitution to overcome adverse judicial pronouncements supposedly impeding the fulfilment of certain government policies and programmes, Nehru established a new template of using constitutional amendments to overcome court judgments and to render constitutional actions that at the time of their commission had been patently and apparently unconstitutional. As he wrote to his chief ministers:

  A Constitution must be held in respect, but if it ceases to represent or comes in the way of the spirit of the age or the powerful urges of the people, then difficulties and conflicts arise. It is wise therefore to have not only stability and fixity of purpose, but also a certain flexibility and pliability in the Constitution. A rigid Constitution may well come in the way of change in a transitional age.20

  This became a maxim, institutionalizing and promoting the view that the Constitution, rather than being the foundation of the nation’s social contract, was a legal document to be amended and abridged at will whenever it suited the government or came in the way of the supposed urges of the people. By extension, it was implied that executive power had to subdue the judiciary; in every conflict between the two, the will of the government and of the legislature must prevail. In Parliament, Mookerji had warned that treating the republic’s foundational document as a scrap of paper would only encourage others to disrespect it even further. Over a hundred amendments later, he has been proven right. Fundamental rights, which started out as permanent guarantees, became—to quote Chief Justice Hidayatullah—‘the plaything of special majorities’.21

  Worse, the reasons Prime Minister Nehru used to justify the amendment—fundamental rights as obsolete remnants of the ideas of the French Revolution, the superiority of the directive principles over fundamental rights, the state’s obligations to collective rights and community identity—represented a complete inversion of the very basis of the constitutional order. With these, Nehru rationalized and condoned a profoundly illiberal vision that was strikingly at odds with the moral imagination that had animated the original Constituent Assembly.

  ‘Each restriction of individual rights in this amendment,’ noted the JNU political scientist Nivedita Menon,

  [S]ought to empower a different subject—the first a cultural community, the second the state, and the third a class. Clearly if the individual is understood to be the cornerstone of modern liberal democracies, then the first amendment can be understood to have further disabled . . . Indian liberalism.22

  It was a debilitating blow from which Indian liberalism is yet to recover.

  The constant affirmation of the primacy of the Congress party’s manifesto over the Constitution, the repetition ad nauseam of the argument that the courts should not be allowed to get in the way of government policies, the recurrent references to unseen dangers and the use of a brute parliamentary majority to push through a constitutional amendment exposed the latent authoritarianism that lurked beneath the republican exterior of India’s new democratic government and its leaders. The open disregard for democratic propriety and the need for establishing healthy democratic traditions on part of India’s first independent government only legitimized and normalized a spirit of authoritarianism, majoritarianism and constitutional subversion—a spirit that, like the amendment itself, would outlive Nehru and continue to cast a long shadow over the history of independent India. The passing of a major constitutional amendment curbing fundamental rights by a provisional parliament elected on a limited franchise, in the face of vociferous criticism and against the advice of the president and the Speaker, in furtherance of a party agenda, was nothing short of a constitutional travesty.

  A precedent both novel and terrible was thus established by the first amendment. From then, each precedent has only built on the one preceding it, civil liberties and fundamental rights being progressively watered down, leaving the Constitution—to paraphrase the historian Sunil Khilnani—as an edifice that cont
inually looms over public life as a permanently embarrassing monument, representing an ideal of legality and procedural conduct regularly ignored by state and society alike.23 Step by subversive step, the executive has acquired vast coercive powers, diminishing both the citizen and the judiciary. Fundamental rights, civil liberties—indeed, the very concept of the judiciary and the Constitution as checks on the government—have been unfortunate but easy casualties in this assertion of executive power, reinforcing precisely those traits and powers of the state that Indian nationalists had struggled against when they had been ruled by their colonial masters.

  No single piece of legislation has encapsulated those traits and powers as comprehensively as Section 124A of the Indian Penal Code (IPC) which dealt with the crime of sedition. The grounds added to Article 19 for enabling restrictions on the freedom of speech and expression—public order, the interest of the security of the state, relations with foreign states and incitement to an offence—provided the constitutional architecture for this, and a whole host of coercive and repressive legislation. The simple change of grounds on which the right could be legally abridged from ‘any matter which undermines the security of or tends to overthrow the state’ to ‘in the interest of the security of the state’ combined with the addition of public order opened the floodgates for drastic and oppressive laws. From Sections 124A, 153A and 295A of the IPC—sedition, promoting enmity between groups and outraging religious feelings, respectively—to penal provisions of the Information Technology Act to draconian legislation like the National Security Act, the Maintenance of Internal Security Act and the Unlawful Activities Prevention Act, it is the first amendment that has provided the constitutional groundwork for them to exist.