Not long ago, there was a fierce tussle between judges and politicians over who should make appointments to the higher judiciary. Last week, a potentially more hurtful fight began over secularism that is unlikely to end any time soon. Ironically, this happened on Constitution Day, coinciding with the 125th birth anniversary of Babasaheb Ambedkar, who headed the drafting committee of the Constituent Assembly and is the greatest icon of the Dalits today. Every political party is trying to usurp his legacy. Sadly, what should have been a day of celebration turned into a day of unseemly conflict between the BJP-led government and the Congress. Home Minister Rajnath Singh said that secular was the “most misused” word in India today; and Congress president Sonia Gandhi retorted, in chaste Hindi, that “whatever we have seen for the past few months, it is against the values enshrined in the Constitution. The principles and ideals that have inspired us for decades are being deliberately attacked”. The treasury benches made it clear that they were unhappy about the introduction in the preamble of the Constitution of two words — socialist and secular — by Indira Gandhi during the Emergency, even though Ambedkar had never found it necessary to put these in the original preamble he wrote. Whereupon the Congress’s leader in the Lok Sabha warned that any attempt to “review the Constitution” would have “grave consequences”. That is how the story that began during the Emergency has developed so far. Let it be told from the beginning.
Of Indira Gandhi’s many amendments to the Constitution, the 42nd was the most vile and comprehensive. Its purpose was to shed or amend all provisions that restricted, to whatever extent, the powers of Parliament, the government and especially the prime minister. For this purpose, the amending law also laid down that any judgment by a large bench of the Supreme Court affecting the executive’s powers would be valid only if it was pronounced by a two-thirds majority. In Gandhi’s own words, at one time the divine right to rule was that of the kings; in the democratic era, the divine right was Parliament’s, which represented the “will of the people”. The same amendment added the two disputed words to the Constitution’s preamble.
As surprisingly as she had imposed the Emergency on June 25, 1975, on January, 18, 1977, she announced fresh elections. These she lost humiliatingly. Not only was her party routed, but she and her younger son, Sanjay, who had already been groomed as her successor and enjoyed great power under mama’s umbrella, also lost their own seats. To the best of my knowledge and belief, Indira never mentioned her decision to go the polls to Sanjay. As the PM’s secretary, P.N. Dhar, first confided to friends and later recorded in his book, Indira Gandhi, the ‘Emergency’, and Indian Democracy, she was “alarmed” when she learnt that Bansi Lal, then India’s defence minister and some others, had sold to Sanjay the idea of changing over to a presidential system, despite the Supreme Court’s 1973 judgment that though Parliament could amend all parts of the Constitution, it could not change its “basic structure”. Consequently, several Congress state units started passing resolutions for forming a new constituent assembly to write a new constitution for the second republic. Indira cried a halt to it. To circumscribe democracy, she had gone as far as she wanted, but refused to go any farther.
The Janata government, headed by Morarji Desai, was committed to repealing the entire 42nd Amendment, and several of the Janata leaders suggested that there should be a one-line bill to do this. But Desai wisely decided not to do so for two reasons. One, he wanted to seek the cooperation of all opposition parties, including the Congress(I), and he did get it after holding a series of discussions with them. Indeed, after being elected to the Lok Sabha in November 1977 from Chikmagalur and before being expelled from the House, Indira and Desai voted together on several issues. Second, there were some provisions in the 42nd Amendment that the Janata government was keen to retain, usually with some variations. A pertinent example is the clause in Indira’s amendment that made the “aid and advice” of the council of ministers, headed by the PM, binding on the president. Desai changed it slightly. He gave the president the right to return the cabinet’s advice for reconsideration only once. If reaffirmed by the council of ministers, the president had no option but to sign.
As famous American scholar Granville Austin said in his magisterial work on the Indian experience of working a democratic Constitution, “the 42nd Amendment, with all the evils described here, did not abolish the Supreme Court, did not end the legislatures… and did not abolish fundamental rights”. He acknowledged that a few of its provisions merited retention. A one-line repeal of the 42nd Amendment would have expunged the words “socialist” and “secular” from the preamble also. But they survived because, at the time of voting clause by clause on the Janata’s 44th Amendment, enough Congress MPs abstained and denied the relevant clause the necessary two-thirds majority. To muster a two-thirds majority in the Rajya Sabha at present would be a pipedream for the Modi sarkar.
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