How Nehru And Patel Emasculated Our Constitution In Less Than 16 Months

Sixteen Stormy Days: The Story of the First Amendment to the Constitution of India. Tripurdaman Singh. Penguin. Rs 599. 268 Pages.

On 26 January 1950, India gave itself one of the most radical and revolutionary constitutions in the world. The document, prepared by an unrepresentative assembly, gave Indians freedom of speech, freedom of conscience, freedom from arbitrary arrest, a strong judiciary, and full adult franchise.

But less than 16 months later, in June 1951, even before the first Indian cast his first vote in a general election, this brave new world of freedom crashed as Jawaharlal Nehru and Sardar Vallabhbhai Patel – thwarted by the courts on everything from continuing with preventive detentions to land reform and reservations for the scheduled castes and tribes – moved the first amendment to the Constitution.

This amendment abridged the rights to freedom of speech (Article 19), property (Article 31), and non-discriminatory treatment (Article 15). It also brought in the pernicious idea of retrospective legislation and created a schedule (the ninth schedule) where laws could not be challenged in courts even if they violated the fundamental rights of citizens.

India’s bold new march away from colonial restrictions resulted in an about-turn fairly quickly.

Tripurdaman Singh’s Sixteen Stormy Days brings us the drama and action of the final days of debate and disagreement that culminated in the adoption of the first amendment by an interim parliament. The amendment faced tremendous opposition from both Congress and non-Congress parties, not to speak of the media, but it got passed with 228 ayes, 20 noes and as many as 50 abstentions.

It got passed purely because of the personalities of Nehru and Patel. Anglo-Indian educationist Frank Anthony justified his final backing for the amendment with this ridiculous statement: “The only way to stop the inevitable, ultimate dictatorship, communist dictatorship, is a dictatorship of Jawaharlal Nehru.” Another member said that if Patel hadn’t backed the amendment, the bill would have been called a “black bill”.

A contrast with the US first amendment makes for interesting reading. The US first amendment extended the area of free speech and conscience with these simple words: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

India’s first amendment did exactly the opposite with higher restrictions on free speech, leading one to wonder whether the constituent assembly drafted the original constitution in a fit of delusion about how a raucous, diverse and cacophonic population could be governed without colonial-era restrictions and laws.

The first amendment introduced far-reaching changes to the original intent of the constitution, effectively negating the lusty freedoms it sought to confer on citizens newly freed from colonial rule. The drafters of the constitution were keen to distance themselves from the heavy-handed rule of India’s colonial administration, but as the media, courts and political parties – especially the communists – started taking advantage of the new freedoms, Parliament went back to the same restrictive and draconian laws that the departing British used to keep Indians in check.

The first republic of free India, as imagined by the original constitution, died an unsung death 16 months later, as the first amendment hedged all the promised freedoms with ifs and buts. So profound were the changes made in 1951 that we never found the courage or the confidence to revert to the promises of the original constitution.

Tripurdaman Singh’s book should be read along with Abhinav Chandrachud’s Republic of Rhetoric: Free Speech and the Constitution of India, published in 2017, which deals with Article 19 and how courts have upheld (or not upheld) free speech. Singh’s Sixteen Stormy Days captures the angst, anger, emotion and high tensions of those last two-and-a-half weeks when Parliament discussed the amendments amidst high drama.

The villains in Singh’s book are Nehru and Patel, even though Patel is often seen as the man less enamoured of airy-fairy ideas of free speech. As the man responsible for national security after Independence, Patel was once quoted as saying that the chapter on fundamental rights was the result of “idealistic exuberance”. But Nehru was the one who provided the intellectual ballast to roll back the freedoms promised in Version 1 of the Constitution.

When zamindars contested land reforms and the courts upheld them, when trouble-some communists were freed from preventive detention, and when courts junked efforts to provide reservations in seats for the backward castes, Nehru roundly declared that fundamental rights and individual liberties were relics of the nineteenth century. Social progress and the directive principles of state policy were now paramount. The courts, he said, were undercutting the intent of the Constitution by giving primacy to fundamental rights.

Rued Nehru, “somehow, we have found that this magnificent constitution that we had framed was later kidnapped and purloined by lawyers.” Later, he wrote to his chief ministers, that “it is impossible to hang up urgent social changes because the constitution comes in the way… we shall have to find a remedy, even though this might involve a change in the constitution.”

The heroes of the resistance to Nehru’s first amendment were Syama Prasad Mookerji, Acharya Jivatram Kripalani, H V Kamath, and media from both the Right and Left. The first victims of the curtailment of free speech were the Left-wing Cross Roads, edited by Romesh Thapar (brother of historian Romila Thapar), and the Organiser, an RSS publication.

Indian liberalism, which is now said to be under threat, was cut to size in 1951 itself. Concludes Tripurdaman Singh: “The passing of the Constitution (First Amendment) Bill marked the end of the first battle of Indian liberalism. The provisions on fundamental rights in Part III – the heart and soul of the entire constitution, according to Ambedkar – had been vandalised. The judiciary had been publicly emasculated, civil liberties deliberately and extensively curtailed. A new precedent of retrospective constitutional amendments to nullify judicial pronouncements had been set. The true post-colonial Indian state was born.”