Draconian past and present: History is neither partial nor merciful towards anybody

By: |
April 5, 2020 2:30 AM

A timely reminder that foundations of India’s authoritarian laws were laid right after independence, to be exploited by successive regimes

Critics of the present government often attack it for measures like preventive detention, curbs on freedom of speech, and invoking anti-sedition laws at the slightest provocation.Critics of the present government often attack it for measures like preventive detention, curbs on freedom of speech, and invoking anti-sedition laws at the slightest provocation.

In the initial days of the protest against the Citizen Amendment Act (CAA), a photo of a Delhi University student went viral. She was holding a placard which read: “My father thinks I am studying history but here I am making history”. Needless to add, the so-called left-liberals lauded her protest as well as the placard. In doing so they forgot a crucial adage: “Those who do not read history, make bad history”. This is not a place to debate CAA, but the point that if told factually, history is neither partial nor merciful towards anybody, particularly rulers, needs to be brought home.

Critics of the present government often attack it for measures like preventive detention, curbs on freedom of speech, and invoking anti-sedition laws at the slightest provocation. While criticising the government, such laws are referred to as ‘colonial’. Another visible streak is invoking the leaders of our freedom movement and initial years of post-independence, when Jawaharlal Nehru was prime minister, claiming they all would be aghast at the measures being currently undertaken.

The most vocal critics of the Modi government are the strongest and staunchest flag bearers of the Nehruvian framework. As young Cambridge historian Tripurdaman Singh brilliantly brings out in his book, Sixteen Stormy Days: The Story of the First Amendment of the Constitution of India, much of what Modi is doing today or Indira Gandhi did during the Emergency or various state governments do every now and then, was first done by Nehru. Worse, it was Nehru who undid our original Constitution by bringing the first amendment, which introduced such measures, and laid a fertile ground for future rulers to misuse such provisions. And mind you, Nehru did this within just 16 months of the Constitution being enforced in independent India by a provisional Parliament with a limited franchise. And all this was done to suit the agenda of the ruling party, Congress, which had received a series of setbacks by the courts and was slated to face the electorate in the country’s first general elections, and did not want to risk its chances of being elected to power.

Preventive detention, which has become the greatest scourge for us today, was certainly a colonial law, which was disbanded in our original Constitution enforced on January 26, 1950. It was brought back by Nehru 16 months later. So far historians sympathetic to Nehru, such as Ramachandra Guha, have supported the version that the first PM did so under severely trying circumstances, like the assassination of Gandhi in January 1948 by a right-wing fanatic and armed aggression against the state by the Communist Party of India. But that is a jaundiced account, as Singh proves in his book. Not only was Nehru opposed by veteran parliamentarians of the time against such measures, but also warned of the adverse repercussions they would have for posterity. But Nehru listened to no one. Just to bring out the irony, Singh brings out the debates in the Parliament and elsewhere to highlight that the conservative Shyama Prasad Mookerji, who later founded the Bharatiya Jan Sangh (predecessor of the BJP), opposed Nehru tooth and nail on these measures.

So, exactly what did the first amendment do? In a nutshell, it introduced new grounds on which freedom of speech could be curbed, like public order, security of the state and relations with foreign states. In the original Constitution, these had been limited to libel, slander, defamation, contempt of court and anything that undermined the security of the state or tended to overthrow it. As Singh says, “With the addition of the three nebulous new provisions, left to the government of the day to define, the right to freedom of speech and expression was to be drastically curtailed.”

The amendment also enabled the government to bring about caste-based reservations by restricting the right to freedom against discrimination from applying to government provisions for the advancement of backward classes. The amendments were such that it would not prevent Parliament from creating special measures for backward communities, and none of these measures would be legally challengeable even if they breached any of the provisions of fundamental rights.

It sought to circumscribe the right to property and validate zamindari abolition by adding two new articles empowering the state to acquire estates without paying equitable compensation and ensuring that any law providing for such acquisition could not be deemed void, even if it abridged this right. And finally, it introduced a special schedule—the Ninth Schedule—where laws could be placed to make them immune to judicial challenge even if they violated fundamental rights—“a veritable repository of unconstitutional laws beyond the court’s purview, a schedule described by the jurist AG Noorani as an ‘obscenity created by wilful resolve’”.

So drastic were the changes which were brought after a 16-day debate just after 16 months of the enforcement of the Constitution that legal historian Upendra Baxi has termed it “the second Constitution” or the “Nehruvian Constitution”.

Faced with opposition, warnings, as well as caution by luminaries like Mookerji, Acharya Kripalani, Hari Vishnu Kamath, Naziruddin Ahmed and Hriday Nath Kunzru, Nehru’s gems were as follows: “Somehow, we have found that this magnificent Constitution that we had framed was later kidnapped and purloined by lawyers…Fundamental rights, individual liberty and freedom had been the dominating ideas of the 19th century, relics of a static age trying to preserve existing social relationships and social inequalities. These ideas were now passe, overtaken by the bigger and better ideas of the 20th century, dynamic ideas of social reform and social engineering, enshrined in the Directive Principles of State Policy as guidelines for the newly independent state, and embodied in the grand programmes of the Congress party”.

Eloquent indeed, but as Singh’s book highlights, the amendments were tailored to suit the party’s agenda. In short, if Nehru’s ideas clashed with the Constitution, then the latter needed to be amended. It would not be wrong to conclude that what Dev Kant Barooah went on to say during Indira Gandhi’s reign, “Indira is India and India is Indira”, saw its roots during Nehru’s time when he exhibited that India is what he is and what he wanted.

Singh has rightly concluded, “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 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”.

Whether Nehru was a villain or a hard-nosed politician is for the readers to decide, but he was certainly not a saint imbued with soaring idealism, as has been depicted by most post-independence writers. The positive development is that the somewhat hagiographical accounts of our post-independence period dealing with Nehru dished out by historians and scholars sympathetic to him is now being challenged by a younger generation of writers. What is sad, however, is that the latter day writers are coming from outside India, outside its educational system, and its academia, all of which still resists change and loves status quo when it comes to Nehru.

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