“Somehow, we have found that this magnificent constitution that we had framed was later kidnapped and purloined by lawyers.”— Jawaharlal Nehru
The Patna High Court ended the suspense on 12 March 1951 when it held the Bihar Land Reforms Act to be unconstitutional and ultra vires because it violated Article 14 of the Constitution by providing for differential rates of compensation for different categories of landholders. It also held that a presidential assent under Clause 4 of Article 31 (that prevented from courts from ruling on appropriateness of compensation) did not debar “the Court from entering into the question of compensation in order to decide whether or not the impugned act offended against Article 14”.
In a searing indictment of the Congress party and the Bihar government’s manifest authoritarianism, the judges denounced the Act as an “unconstitutional law enacted in the belief that the right of the plaintiffs to challenge it and ask for relief from its operation has been taken away”. The court’s decision shook the government and the Congress party to its core. It shattered the illusion of the current regime having inherited the absolute power of the Raj. The Bihar Land Reforms Act bit the dust. An entire pillar of the Congress party’s social agenda stood virtually crippled. The establishment’s worst dreams seemed to be coming true.
For the powers that be in New Delhi, this defeat was a specially “bitter pill to swallow”. The government had wrangled over the Act for months, it had clashed with President Rajendra Prasad and overruled his objections, it had threatened him to receive his assent. For the Congress party itself, this had been an article of faith.
Party workers and leaders had toured the country to pledge their word, and staked their reputations on the altar of zamindari abolition and land redistribution. As both the government and the party faced the daunting prospect of their entire social programme potentially falling to pieces, there was panic and pandemonium in the corridors of power.
For the prime minister, to whom hysterical Congress leaders from Bihar now turned for deliverance, this was the proverbial last straw. His patience exhausted, a furious Nehru addressed the press and blew the bugle for battle:
“If the Constitution is interpreted by the Courts in a way which comes in the way of the wishes of the legislature in regard to basic social matters, then it is for the legislatures to consider how to amend the Constitution so that the will of the people as represented in the legislature should prevail.”
It was an extraordinary proposition that the ephemeral will of the people was enough to overturn the very basis of constitutional democracy. The moment of truth in his confrontation with the Constitution had arrived.
On 14 March, responding to the prime minister’s frenzy over criticism and freedom of speech and expression and questions about the right to property and zamindari abolition in the aftermath of the Bihar judgment, Ambedkar prepared a long memorandum for the Cabinet Committee.
The rulings of the courts had not recognised any limitation on the freedom of expression unless it had been specified by the Constitution, he informed the committee, but he opposed the deletion of existing limitations and their replacement with others in order to prevent the Supreme Court from reinterpreting them into Article 19 through the concept of “due process of law”.
Provisions for restricting the freedom of speech were already detailed in Article 19 – libel, slander, undermining the security of the state, etc. – and, in his opinion, rather than adding to them or replacing them, they should just be amended to the extent of allowing laws placing such restrictions to be exempted from judicial intrusion.
As far as the right to property went, Ambedkar recommended that Article 31 be amended so that nothing should prevent the government from prescribing different principles of compensation for different classes of people, or affect the validity of any law the government should create for divesting property owners of their property. He also added his opinion that “the Supreme Court ought not to be invested with absolute power to determine which limitations on fundamental rights were proper”, for if that were to be the case, then Parliament would be placed in the position of having to constantly amend the Constitution to proclaim and uphold its sovereign position.
Ambedkar’s views were a near overturning of the constitutional order, an order he himself had helped draft and institutionalise. They represented a growing consensus within the government that there had to be a clipping of the judiciary’s wings and a reassertion of what the constitutional historian Harshan Kumarasingham termed “the ultimate power of the central executive”.
On the matter of freedom of speech and expression, the home ministry, now led by Chakravarti Rajagopalachari, the keeper of Gandhi’s conscience and future guiding light of Indian liberalism, was one step ahead of the authoritarian curve. It recommended to the Cabinet Committee that the list of grounds to curb the right to free speech be expanded to include “public order” and “incitement to a crime”, and the expression “undermine the security of or tend to overthrow the State” be broadened to “in the interests of the security of the State”.
To prevent the courts from adjudicating on what was or was not “reasonable”, Rajaji’s ministry recommended that the word “reasonable” be dropped altogether. The home ministry’s note concluded by suggesting that not only freedom of speech, but all other freedoms in Article 19 – freedom of movement, the right to reside in any part of the republic, the right to own property, etc – also be made subject to martial law, in addition to all the other grounds for restriction already written in the Constitution.
Accustomed to reigning over a subservient population, given to treating their constitutional freedoms with disdain, uncomfortable with the idea of civil liberties, and resentful at its legal armoury being wrecked by the courts, the home ministry wanted little more than to be granted its draconian powers back. Its recommendations represented nothing short of a brazen desire among India’s ruling elite to wind the clock back to the glory days of colonial rule, substituting their own selves for their former colonial overlords.
Fourteen months into the new republic, they wanted their old punitive measures back. Fourteen months after granting their fellow citizens a comprehensive set of constitutional freedoms, India’s rulers were already ruing their over-generosity. They now craved a new legal order that was, in the words of the economist Meghnad Desai, “firmly founded on old British laws, warmed up for independent India”.
From Nehru to Rajagopalachari and from Ambedkar to Munshi, there was nigh a hint of opposition within the government. Patel was dead. Mookerji, Neogy and Matthai had resigned. There were none left to resist. Within the party, members and leaders hungry for a party ticket in the upcoming general election were unwilling to jeopardise their chances by protesting.
As those seated at the high table debated their plans for an assault on constitutional freedoms, there was hardly a whimper of protest from the bottom. Agitated and incensed, the prime minister replied to Ambedkar the same evening, instructing him to “proceed with the utmost expedition” to ensure that the necessary amendments could be brought before Parliament within the current session. From top to bottom, an establishment enraged at being thwarted by the Constitution was now resolved to fight back.
Excerpted with permission from Sixteen Stormy Days: The Story of the First Amendment to the Constitution of India by Tripurdaman Singh, Vintage Books.
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