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Wednesday, October 21, 2020

Did the First Amendment to the Constitution lay the foundation for an authoritarian state?

’Sixteen Stormy Days’ narrates how the Nehru government steered the First Amendment through parliament and analyses its impact on the fundamental rights of citizens.

Updated: October 11, 2020 9:39:21 am
The book makes it evident that the First Amendment provided the DNA of a Hobbesian state in postcolonial India and laid the foundation of the Nehruvian state.

Written by Malini Bhattacharjee

The story of Indian politics is one of continuities more than ruptures — contrary to the popular imagination, bolstered by arguments by several mainstream political analysts that the period since 2014 has paved the way for a new regime that has jeopardised democracy and tarnished the “idea of India”. Singh’s book, which narrates the story of the passage of the First Amendment to the Indian Constitution by the Jawaharlal Nehru government in June 1951, provides an important interruption to this narrative.

The book draws attention to the enormous impact of this legislation on the fundamental rights of the citizen. Some of the major modifications introduced included increased restrictions on the freedom of speech and expression in the name of “public order”, the “interests of the security of the state” and “relations with foreign states”. The Act also enabled caste-based reservations by restricting Article 15 from applying to government provisions for the advancement of backward classes; it circumscribed the right to property and validated zamindari abolition by allowing the state to acquire property without paying equitable compensation and ensuring that any law providing for such acquisition could not be deemed void even if it violated the right to property. The final nail in the coffin was the introduction of the Ninth Schedule, where laws could be parked to make them immune to judicial challenge even if they violated the fundamental rights.

Singh foregrounds the discussion by drawing attention to the political climate of the years soon after Independence and the “build-up” to the passage of the amendment. There is a detailed analysis of how the government’s imposition of policies relating to press censorship, enabling caste-based reservations in educational institutions and re-distribution of land were challenged by the affected stakeholders in courts. In all cases relating to press censorship, most notably Brij Bhushan v State of Delhi (1950) and Romesh Thappar v The State of Madras (1950), the judiciary struck down statutes which imposed restrictions on free speech. In Champakam Dorairajan v State of Madras (1951), the Madras High Court, and, later, the Supreme Court declared the Government Order providing caste-based reservations to be unconstitutional.

With elections looming ahead and most of his new schemes being thwarted by the courts, Nehru was convinced that the legal process of testing legislation against the Constitution was delaying his party’s social reform agenda. He introduced the First Amendment Bill to the Parliament on May 12. After two weeks of stormy discussions, it was passed on June 2.
There are fascinating accounts of the parliamentary debates that raged between Nehru and stalwarts like SP Mookerji, HN Kunzru and Hussain Imam that the author eloquently describes as the “first battle of Indian liberalism”. These highlight how despite protests by public luminaries, including incumbent governors, jurists and even senior Congress members, the government remained undeterred. The final chapter dwells on the aftermath of the amendment, the most important being that it set a precedent for amending the Constitution to either overturn judicial pronouncements or to suit government agenda.

The book makes it evident that the First Amendment provided the DNA of a Hobbesian state in postcolonial India and laid the foundation of the Nehruvian state. It also lays bare the schisms within the Congress party, the pressure applied on the president’s office to bend to the will of the government, and the ways in which the judiciary was subordinated by the executive. Most importantly, the story also blurs the dichotomies that political analysts slip into: the liberal Nehruvian vision of India versus the RSS’s authoritarian one, between progressive and reactionary politics. It leaves us wondering why this story was never told before; is it a mere coincidence or a part of a deliberate political project? The book maintains a dignified restraint in answering this question.

Malini Bhattacharjee is assistant professor, Azim Premji University, Bengaluru

Sixteen Stormy Days: The Story of the First Amendment to The Constitution of India By Tripurdaman Singh
Penguin Random House

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