Through the years, such legislation has been routinely used by governments to stamp their power while playing fast and loose with the rights guaranteed by the Constitution. Many such legal provisions, used to stifle free speech and critical opinion by banning books, arresting journalists, jailing activists and harassing political opponents, owe their continued survival to the first amendment and the sledgehammer it took to the fundamental rights provisions guaranteed by the Constitution. They are not, as often believed, a remnant of colonialism but a consequence of the drive for power displayed by India’s post-colonial elite. Opposition figures such as Shyama Prasad Mookerji demanded that any restrictions on fundamental rights in the name of the security of the state must meet the test of ‘clear and present danger’—to little avail. Far from being remnants of colonialism, then, laws like sedition are the outcome of the Nehruvian state.
And nothing has exemplified Nehru’s social revolution as much as the Ninth Schedule, the infamous repository of unconstitutional laws. ‘Neither Nehru nor others recognized the genie they had loosed: that the Schedule would be used for the protection of land laws regardless of their quality or legality, for laws other than land reform laws; for laws regulating business; and for laws to serve the personal interests of the powerful,’ Granville Austin argued.24 That, again, is only partly true, for both inside Parliament and outside, critics and opponents had requested the prime minister to tread with caution. He chose to ignore those warnings. ‘Nehru’s actions,’ noted Gopal Sankaranarayanan,
[T]hough probably justified at the time, showed a lack of prescience, because with one fell blow, he created two mechanisms by which the supremacy of Parliament would be emphasized: a) the power of the Constitutional Amendment to nullify the judgments of the courts, used for the first time in this instance and b) the Ninth Schedule, by which the very power of judicial review of legislative action (one accorded by the Constitution itself) would be excluded. In the years to come, these two instruments more than any other would be used by less responsible governments to trammel the judiciary and muzzle the electorate.25
By excluding the power of judicial review from a whole class of legislation and granting constitutional protection to unconstitutional laws, solely in the pursuit of the Congress party’s social agenda, Nehru emasculated the judiciary and emphasized the power of the executive and the legislature—and by extension, himself and the Congress party. Once it became easy for Parliament to validate any piece of unconstitutional legislation by putting it in the Ninth Schedule, where its constitutionality could not be challenged, India’s democratic politicians jumped at the opportunity to have their own way, indulging in all forms of constitutional chicanery. Over the years, the repository of unconstitutional laws continued to overflow as his successors, following in his footsteps, continued to draft, pass and secure unconstitutional legislation. Originally framed as a repository for land reform legislation, in 2006, the number of potentially or actually unconstitutional laws placed in the Ninth Schedule stood at 284. Laws relating to industrial development, nationalization and economic offences; laws relating to elections, reservations and representation—all found a cosy home. In the words of the jurist A.G. Noorani, ‘. . . an incongruity, introduced as a result of sheer neglect became an obscenity created by wilful resolve’.26
With its judgments in Kesavanand Bharati27—which established the doctrine of ‘basic structure’—and I.R. Coelho,28 the Supreme Court has, of course, partially taken back many of the worst powers that Nehru had wrested from it in 1951. But it has been unable to reverse the damage that the fundamental rights provisions in the Constitution have sustained. Even more troublingly, the illiberal, authoritarian tendencies within India’s ruling dispensations, of which the first amendment was an early manifestation—with the consequent disdain for civil liberties, prioritization of the needs of the state, and offhand dismissal of the norms of democratic propriety—have only grown, each executive power grab begetting one greater than the last. Like its detractors predicted, the amendment only proved to be the start of a slippery slide towards authoritarianism.
IV
On the one hand, the passage of the amendment exposed the despotism that lurked below the surface of the new democratic republic, and on the other, it also testified to the pusillanimity and lack of commitment to any democratic or republican values on the part of the first generation of independent India’s leaders—to quote Sarvepalli Gopal—the subservient mouldering mediocrities who comprised the Nehru cabinet. Many of these luminaries would soon be exposed by events.
‘Since Mr. Rajagopalachari assumed the office of Home Minister,’ observed the Times of India a few days after the passage of the amendment,
[T]here has been a severe curtailment of fundamental rights both within the framework of the Constitution and in the day to day business of administration. The Home Ministry’s proposed move to clothe the military with certain powers to cope with civil disorders is yet another manifestation of the authoritarian trend creeping into government.29
Having presided over the desecration of the Constitution’s fundamental rights provisions and laid the foundations of repression and coercion, a few years later, Rajaji would found the Swatantra Party to make the case for liberalism and civil liberties and fight against the Nehruvian state. By then, it was much too late. Coercive powers, once usurped, were never going to be surrendered.
Law Minister B.R. Ambedkar did not even have to wait as long as Rajagopalachari. Within months of the amendment, failing to get Nehru to bend on the Hindu Code Bill and facing the obduracy of the conservative wing in the Congress, he would be forced into resigning from the Cabinet. Again, having drafted and helped pass the drastic changes to Article 31 and the effective curtailment of the right to property, including the exclusion of judicial review, Ambedkar would now appear in the Supreme Court on behalf of the zamindars of Uttar Pradesh and Bihar to argue against the very zamindari abolition acts he had helped secure against the Constitution.30 There he would bleat about the ‘spirit of the Constitution’ and argue that ‘the Constitution being avowedly one for establishing liberty, justice and equality and a government of a free people with only limited powers, must be held to contain an implied prohibition against taking private property without just compensation and in the absence of a public purpose.’31 It was again, too little, too late.
Congress MPs, significant numbers of whom had been on the verge of revolt on the eve of the vote on the amendment—seventy-seven of them having pointedly asked for a free vote on it—had also quickly fallen in line. Why had they done so? ‘If the Treasury benches ultimately carried the day,’ a commentator observed, ‘it was not because the House was with them but because the elections hold a Damocles’ sword over the head of every Congress Member . . . there was much tumult and shouting on the part of Congressmen but the same spirit was not evident in the lobby. How else is one to explain the strange spectacle of scathing criticism of the Constitution Amendment Bill and the opposition of a bare handful when the division bell rang?’32
Much of this was in a sense symptomatic of a broader contradiction within the Congress, and inevitably, in India’s transition to democracy and republicanism. Before Independence, the Congress imagination had been divided between Gandhi’s vision of self-rule and village republics, Nehru’s vision of socialism and a third incoherent idea of Hindu revivalism. Divided between these strands, liberal democracy was an outlier with little serious thought behind it. Liberty was understood not in terms of individual rights and freedoms but solely as a nation’s collective right to self-determination. In nationalist thought, the idea of democracy and individual freedom was only posited as a counterweight to colonial rule; it enjoyed no firm backing in practice. The Congress ‘could not pretend to any developed meditation on democracy, though it did embody a formidable will to power’.33
From its earliest days, the Congress party had claimed to speak for the entirety of the nation and to represent all Indians. The party
was as committed to denying every other group or party a seat at the political high table as it was to gaining control of the levers of power. As the self-declared representative of the nation, the Congress laid claim to possession of the colonial state and all of its territory.34 With the advent of democracy and the inauguration of the Constitution, this position—incompatible with any idea of constitutional democracy—was strained to breaking point. When its collectivist moorings and its intolerance of opposing ideologies clashed with an expansively liberal Constitution, the Congress party, instead of defending the normative foundations of democracy and the fundamental rights enshrined in the Constitution, instinctively turned on its own creation.
A good example of the party’s inability to deal with challenges to its claims of possessing the colonial state is the Congress stalwart Govind Ballabh Pant, then chief minister of UP and later home minister in the Nehru Cabinet, schooling a crowd in Mathura:
If you have any complaints against the present Government, you should not use the same methods for redress of grievances which you did in the days of the British. You should approach the proper authorities and place your suggestions before them. It is not proper to criticise your own ministers on the public platform. Making defamatory statements about the Government, ministers and officials on the basis of false or distorted stories is not a good tendency . . . Loose talk about the Government, ministers or officials should cease. In countries like England, America, Germany and France you will not find people talking in streets, shops and bar associations against the government or ministers.35
In such a setting, ‘individuality as a way of social being was a precarious undertaking’.36 It was because of these reasons that Sunil Khilnani—the originator of the phrase ‘the idea of India’—described Indian liberalism to be ‘crippled from its origins: stamped by utilitarianism and squeezed into a culture that had little room for the individual’.37 Yet, for a brief period between 26 January 1950 and 18 June 1951, Indian liberalism enjoyed a blooming of sorts. The liberal, enlightened and progressive Constitution that the Constituent Assembly had framed was given free reign, vigilantly upheld by the judiciary and vigorously backed by the Opposition. The idea of fundamental rights as a judicial dyke against the caprice and high-handedness of executive power was forcefully defended, and India’s new democratic rulers were compelled to come to terms with their reduced status in the new republic.
Indian democracy may have been established in a fit of absent-mindedness,38 but there was nothing absent-minded about its functioning in its first year. The original Constituent Assembly had articulated an expansive new republican vision. Through this period of sixteen months, the judges of the high courts and the Supreme Court, liberal parliamentarians like H.N. Kunzru and H.V. Kamath, Hindu nationalists like K.R. Malkani and S.P. Mookerji, Gandhians like Kripalani, as well as disparate figures from all sides of the political spectrum—editors, writers, businessmen alike—advocated and doggedly defended this vision in the face of a determined onslaught by the government. It was to this vision that the first amendment dealt a crippling blow.
The legally and constitutionally sanctioned ability of the government to censor and prosecute dissenting voices and critical opinion, the vanished right to property, an enduring and endemic political fault line over ‘backward class’ reservations, the regularity of constitutional subversion and the legitimacy of constitutional subterfuge, the naked disregard for civil liberties, the apparent lack of commitment to the Constitution and open contempt for democratic propriety—these are the legacies of the first amendment. So are the steady marginalization of classical liberal thought as represented by men like Kunzru, the utter evaporation of a moderate, liberal strand of Hindu nationalism represented by men like Mookerji and Malkani and the steady degradation of the norms of democratic conduct represented by conscientious objectors like Kamath, Kripalani and Bhattacharya.
India has often been said to be flirting with authoritarianism. Yet, this was not always so. There was once a time, before authoritarianism became enshrined in its Constitution, when India also flirted with liberalism. At that moment, Mookerji had warned Nehru to stick with the original Constitution, that he was creating legal tools that would one day be wielded by his opponents, that his rule or that of his ideological co-travellers would not be eternal. It is a warning that every government and every citizen would do well to remember.
Signatories to the Constitution 1: A page from the Constitution bearing (among others) the signatures of J.B. Kripalani, Purushottam Das Tandon, Hriday Nath Kunzru, Govind Malaviya, Begum Aizaz Rasul, Sucheta Kripalani, Shibban Lal Saksena, Mahavir Tyagi, Mohanlal Gautam and Algu Rai Shastri.
Signatories to the Constitution 2: A page from the Constitution bearing (among others) the signatures of Renuka Ray, Shankarrao Deo, K.M. Munshi, R.R. Diwakar, Naziruddin Ahmed and K. Kamaraj.
Jawaharlal Nehru signing the Constitution, 1950.
A Constituent Assembly meeting, 1949. B.R. Ambedkar sat in the centre.
Two legal luminaries—B.R. Ambedkar and C. Rajagopalachari—1948.
B.R. Ambedkar, chairman of the Drafting Committee, presenting the final draft of the Constitution to Rajendra Prasad, chairman of the Constituent Assembly, 25 November 1949.
A stamp bearing the portrait of the Anglo-Indian leader and educationist Frank Anthony.
A stamp bearing the portrait of the liberal leader Hriday Nath Kunzru.
The Constituent Assembly in session.
Jawaharlal Nehru addresses a committee meeting, 1949. Rajendra Prasad and Sardar Patel are seated to his left.
Jawaharlal Nehru addresses the Constituent Assembly, 1946.
Colleagues and competitors: (L to R) Shyama Prasad Mookerji, Jairamdas Daulatram, Govind Ballabh Pant, Jagjivan Ram and Jawaharlal Nehru.
The first Cabinet of the Republic of India with the president, 31 January 1950: (Seated L to R) B.R. Ambedkar, Rafi Ahmed Kidwai, Baldev Singh, Abul Kalam Azad, Jawaharlal Nehru, Rajendra Prasad, Sardar Patel, John Matthai, Jagjivan Ram, Amrit Kaur and Shyama Prasad Mookerji. (Standing L to R) Khurshed Lal, R.R. Diwakar, Mohan Lal Saksena, N. Gopalaswami Ayyangar, N.V. Gadgil, K.C. Neogy, Jairamdas Daulatram, K. Santhanam, Satya Narayan Sinha and B.V. Keskar.
Appendix
Articles 15, 19, 31 of the Constitution: 1950 v. 1951
Article 19
Original Constitution 1950
19. (1) All citizens shall have the right—
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India;
(f) to acquire, hold and dispose of property; and
(g) to practise any profession, or to carry on any occupation, trade or business.
(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to libel, slander, defamation, contempt of court or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow the State.
[ . . . ]
(6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevents the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub-clause shall affect the operation of any existing law in so far as it prescribes or empowers any authority to prescribe, or prevent the State from making any law prescribing or empowering any authority to prescribe, the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business.
Article 19
First Amendment 1951
19. (2) Nothing in sub-clause (a) of clause (1)
shall affect the operation of any existing law, or prevent the State from making any law insofar as such a law imposes reasonable restrictions on the exercise of the rights conferred by the said sub-clause in the interests of the security of the state, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.
19. (6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to—
(i) The professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or
(ii) The carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise.
Article 15
Original Constitution
15. (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to—
(a) access to shops, public restaurants, hotels and places of public entertainment; or
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