Jawaharlal Nehru was in a quandry of sorts. Several problems were staring in the eye of the Congress party barely months after it had assumed power in India under his leadership. The issues of land reform and reservations – both extensively discussed during the drafting of the Constitution and the Congress party’s flagship programmes – were now at risk of being struck down by the judiciary as unconstitutional.
Both were populist measures, and the Congress and Nehru knew that having raised the expectations of the people and asking them to believe in the promises the leaders had made, it would be tough to go back to the people and explain the legal and constitutional niceties.
"Who was going to tell the people that the word of the government and the prime minister was not the law, that there was now a greater power, the Constitution of India?" writes Tripurdaman Singh in his fascinating slice of history book, Sixteen Stormy Days.
To that end and to put an end to the delays that were besetting the programes he had envisaged, Nehru wrote a note to this chief ministers: "It is clear that we have got to go through this programme of abolition of zamindaris and to avoid all delay, for delay is dangerous. Unfortunately, the law and the Constitution sometimes come in the way... It is certain that if the law comes in the way, ultimately the law will have to be changed."
Thus, in just six months since the new republic had been inaugurated, the country’s first prime minister began making a case for amending the Constitution because it was coming in his way, "the very constitution that he had once described as the foundation of the country’s republican freedom. Between the Constitution and his own political agenda, his faith in the latter clearly trumped his allegiance to the former," says Tripurdaman, in a video interview with Friday.
His book, the story of the first amedment to the Constitution of India, excellently portrays the early years of independent India and the uncertainties of politics that were clearly evident at the time.
Describing in detail the scenes that ensued following the initial tensions between political priorities and consititutional values, the book shines a light on how the resulting First Amendment came about, the machinations that ensued in the corridors of power and what it meant to the country and its people.
The amendment introduced in Parliament on May 12, 1951, was historic to say the least.
Among the changes included were new grounds on which freedom of speech could be curbed, enabling caste-based reservations and validating abolition of zamindari. Very importantly, and something that would have far-reaching repercussions, it also introduced a special schedule in the Constitution under which laws could be placed to make them immune to judicial challenge even if they violated fundamental rights.
A British Academy postdoctoral Fellow at the Institute of Commonwealth Studies at the University of London, Tripurdaman, who hails from the land of the Taj Mahal, Agra, in Uttar Pradesh, says that he first came across the First Amendment in the context of the zamindari abolition. (For those who came in late, zamindar means landowner, and zamindars were typically hereditary holding enormous tracts of land and had the righ to keep it idle. To hasten agrarian land reforms, the first government promised to abolish the system to help cultivators.)
"Knowing next to nothing about it, I decided to dig a bit deeper and soon discovered just how contentious and consequential the amendment had been," says the Fellow of the Royal Asiatic Society, explaining what led him to writ the book. "The entire story of its passing [in the Parliament] was so fascinating, counter-intuitive and gripping, I quickly became hooked. It was a story that needed to be told, and a part of [Indian] history that needed to be analysed. Little had been written about the First Amendment, so I was conscious that there was a gap waiting to be filled."
Tripurdaman who read politics and international studies at the University of Warwick and who has a doctorate in history from the University of Cambridge, admits that a lot of research went into the book. "Given how contentious the subject was, I made sure to cover all bases, going through newspaper reports, parliamentary debates, select committee reports, correspondence of major figures, archival records, judicial pronouncements and existing scholarship. Historical records are rarely neutral or objective in their entirety, so it was important to use a wide cross-section of sources to place the events and frame the arguments in their proper context. Bringing together this wide range of sources into a coherent and fast-paced narrative was a major challenge."
Excepts from the interview:
With the advantage of hindsight, do you think Nehru was right in pushing so hard for the First Amendment in 1951?
If anything, I think hindsight has further demonstrated the error of Nehru’s ways when it came to the First Amendment. The president, the speaker, opposition leaders, newspapers, the legal fraternity – all thought the amendment to be ill-timed and ill-advised. It generated a storm of criticism within parliament and outside. No one beyond the government thought it necessary. Many considered it an executive power grab – which it indeed was. Its consequences, in terms of curbs on free speech for example, or in the precedents it laid, have been severe. Figures like [freedom fighter and a long-time Parliamentarian Hridya Nath] Kunzru and [barrister, politician and academician Syama Prasad] Mookerjee warned Nehru about the damaging consequences that would ensue for Indian democracy. They have been proven right.
Like many around him, Nehru was a ‘communitarian’ for whom the cause of social progressivism as he defined it came first and foremost. Individual liberty of the kind we associate with classical liberalism came much lower down the order of priorities. Through the amendment, Nehru gave force to his vision. He seriously damaged individual rights in the process, although some might say he gave added impetus to group rights and social justice in the process.
Do you think that in some way history will be repeated?
I don’t think history is ever really repeated, but it does rhyme in many ways. One only has to take a look at contemporary debates over the constitution and civil liberties – we are debating the same issues, the same arguments are being put forward, the same questions are being asked. Only the sides keep changing, depending on who is in government. And, of course, once in power, no one has sought to undo the pernicious restrictions on civil liberties! I think that is partly because liberalism has enjoyed such little purchase in India, right from the outset.
With the first amendment, Nehru set a precedent of sorts of getting his way with the law when rulings were against him or his policies. But wasn’t he not the one who championed the causes of freedom of expression and other rights? So what led him to adopt this stance barely months into his tenure?
Nehru did champion the causes of freedom of expression and other civil liberties. But like his compatriots in the nationalist movement, this championing was a method of opposing colonial rule – by using the liberal tenets that the British confessed to holding in high regard. Months into the new republic, he found his social engineering schemes – zamindari abolition, reservations – being stalled because they were found to be potentially running afoul of the Constitution. Plus, elections loomed, and he came under scathing criticism. In this situation, a constitutional amendment offered an easy way out. Of course, it helped that Nehru believed social progressivism rather than protection of individual liberty was the true purpose of the Constitution.
Once done, this did become a precedent – as opponents, including President Rajendra Prasad and opposition leader Shyama Prasad Mookerjee had warned. Retrospective legislation to overcome adverse judicial pronouncements became common, with very deleterious consequences for Indian democracy.
Do you think Nehru was able to get his way because Sardar Vallabhai Patel was pretty much indisposed and unwilling to engage with Nehru in a dialogue?
Partly. Patel was no great champion of fundamental rights – even going as far as calling them a result of ‘irrational exuberance’. But he was wary of playing fast and loose with constitutional provisions. His death removed from the scene a crucial check on Nehru’s authority. What form the amendment would have taken if Patel had been alive is hard to guess, but my inclination is that Patel would not have been in favour of curtailing the right to property and the right to freedom from discrimination. He probably would have supported the widening of potential restrictions on free speech.
Was Dr Ambedkar, the architect of the constitution, also okay with the amendment?
I think Ambedkar was ambivalent about what was happening. On the one hand, he was insistent on the word ‘reasonable’ being added to the ‘restrictions’ being placed on freedom of speech – to allow the judiciary to adjudicate on whether these restrictions were reasonable or not. Nehru was against the inclusion of the word ‘reasonable’. On the other hand, Ambedkar was a supporter of community-based reservations and at one point even proposed a partial dismantling of the right to equality before the law. In the end, he defended the amendment in parliament. I’d hazard a guess to say that the question of affirmative action ultimately swung his opinion in favour of the amendment even if he disagreed with parts of it.
You mention how the then chief justice of the Supreme Court had made it clear that if there was a change in balance of power between the three pillars of democracy the result could be authoritarianism. Should we be worried that it could come true?
Yes, Chief Justice Kania made a statement to that effect after the amendment had received a presidential assent. Given that the amendment was, among other things, also meant to demonstrate the supremacy of parliament over the judiciary, Kania’s apprehension made a lot of sense. In some ways Kania was off the mark – the Indian Supreme Court is one of the most powerful constitutional courts in the world. But no one would deny that the executive very much has the upper hand in the relationship. I think 1951 did mark a critical juncture in this regard.
There is a view that the second amendment reduced the importance of the individual vis-a-vis the state. Your take?
Yes, it very much did. Right at the outset the Constitution had privileged the state vis-à-vis the individual – primarily because individual liberty had never really had much firm backing in practice. Despite this, as events showed, the chapter of fundamental rights was still formidable. The strong defence of free speech mounted by the judiciary is testament to this. The first amendment seriously undermined this position, drastically curtailing the ambit of individual liberty vis-à-vis the state. Looking at how consequential it was, the legal scholar Upendra Baxi called it ‘the second constitution’.
Critics of Nehru believe a true representation of the first prime minister is not available and that many documents portray a hagiographic picture of him. Is your book an attempt to set this right?
First and foremost, my book is an attempt to examine an aspect of our history that has been largely neglected in conventional accounts. But doing so, I think, does illuminate a side of Nehru’s character and politics that is generally kept under wraps. I don’t think documents paint a hagiographic picture of him; this is very much a later creation as some historians and biographers continued to provide politically convenient accounts of the Nehruvian years, with major critiques only coming from the Left. A certain orthodoxy took root that, like all orthodoxies, came to be quite rigidly enforced. New revisionist accounts are challenging this orthodoxy, and standard interpretations of events, and my book is definitely a part of this. There is considerable space for such revisionist scholarship now, including excavating parts of our history considered ‘inconvenient’ or kept out of the public eye. My book is this very much an attempt to challenge Nehruvian shibboleths, and hopefully allow a more complete understanding of Nehru’s politics.
In the light of all that you have discovered through your research how would you describe Nehru?
I’d describe him as a formidable politician who seemed to have an instinctive ability to acquire and wield political power. You see it in the way he outmaneuvered figures like Bose and Patel, established unchallenged dominance over the Congress and then over parliament itself. While it is true that he never sought to transcend democratic frameworks or appeal to extra-parliamentary authority, he was still given to twisting constitutional and institutional structures to achieve his political ends. Like the complex and contradictory man he was, his legacy is also decidedly mixed – and it is important that we acknowledge and unpack that.