Snapshot
  • A history of how the modern Indian state deals with the idea of dissent must begin with its first prime minister.

The last few weeks have seen dramatic action in the Indian political world. The arrests of assorted activists accused of being ‘urban naxals’ and provoking violence at Koregaon early this year, and the subsequent interventions by the courts now occupy centre-stage, as all wait for the next act of the drama to unfold in the Supreme Court. In this period, twitterverse has exploded, and columnists and opinion makers of all hues have weighed in on the raging debate.

Pratap Bhanu Mehta has written about the abuse of sedition laws and ‘the creation of a permanent internal war’. Mukul Kesavan has criticised the broad character of the Unlawful Activities Prevention Act and how it enables the creation of ‘dissent as treason’. Others such as Aakar Patel (read) and Rajshree Chandra (read) denounce that perennial expression – ‘the law will take its own course’ and the sloth of the wider judicial process.

Yet many of the questions raised over freedom, dissent, rights and the law go back to the first amendment of the Constitution piloted by Jawaharlal Nehru in 1951, which, in the words of its fiercest critic Shyama Prasad Mookerji, cut “at the very root of the fundamental principles of the Constitution.” It is at the root of many of the political and legal debates that continue to rage, and there is no better time to glance through the views of India’s first prime minister on these matters – which have formed the foundation of the legal framework of the country.

In a nutshell, the first amendment made four major changes to the Constitution – articles 19, 15, 31 and the ninth schedule. In response to the Supreme Court overturning a ban on a leftist journal critical of Nehru, the amendment introduced new grounds to curb the freedom of speech and expression – the interest of the security of the state, public order and interests of relations with foreign states. In response to the Supreme Court’s striking down caste quotas, the amendment introduced curbs on the right to freedom of trade and freedom from discrimination. In response to the Supreme Court taking up zamindari abolition laws for hearing, the amendment completely circumscribed the right to property and created a schedule of laws over which the courts could not exercise the power of judicial review.

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On the need for amending the Constitution, Nehru argued that fundamental rights were coming in the way of the fulfilment of directive principles of state policy. As he reasoned, fundamental rights were a product of 19th century thought. In the 20th century, there were other, better ideas about social organisation – represented by the directive principles. The pursuit of these non-justiciable directive principles (which incidentally mandate, amongst others both the reduction of inequality and the protection of cows) was the aim of the state, and took precedence over the freedoms and rights that the same Constitution had granted.

This one single constitutional amendment more or less reduced fundamental rights to pious platitudes, and forms the legal terrain on which debates about dissent, freedom of expression and the ‘law’ are now conducted. And what arguments did Pandit Nehru advance to justify the proposed amendments – grounds for restricting freedom of speech, expression, trade and the right to property? Let us take a look.

On restricting freedom of expression, and particularly the freedom of the press, he argued:

…it has become a matter of the deepest distress to me to see from day to day some of these newssheets which are full of vulgarity and indecency and falsehood, day after day, not injuring me or this House much, but poisoning the minds of the younger generation, degrading their mental integrity and moral standards. It is not for me a political problem but a moral problem. How are we to save our younger generation from this progressive degradation and the progressive poisoning of the mind and spirit? From the way untruth is bandied about and falsehood thrown about it has become quite impossible to distinguish what is true and what is false….. what is the press? Those great organs of national opinion or some two page newssheet that comes out overnight from time to time, full of abuse….. what are we to do with these little sheets that come out from day to day and poison and vitiate the atmosphere?

On a state of internal war, he stated:

...when a country is face to face with grave problems and questions from the national point of view, of life and death and survival, then there is a certain priority and a certain preference in the way of doing things… war or no war, we live in a kind of pre-war state of deep crisis and… we cannot function loosely, inefficiently, without discipline, without responsibility…

On waiting for the judicial process to take its own course before deciding to amend the Constitution he stated:

I have no doubt that if we live through a static period, gradually these conventions would arise… But unfortunately we have no time… So we are deprived of that slow process of judicial interpretation and development of conventions which the other countries with written constitutions have gone through… because we live in these rapidly changing times, we cannot wait for this slow process.

On the supposed primacy of his government’s social agenda (concerning zamindari abolition) over the ongoing judicial process and the fundamental rights enshrined in the Constitution, he stated:

But inevitably, in big social changes, some people have to suffer. We have to think in terms of large schemes of social engineering, not petty reforms, but of big schemes like that. Now if all our schemes are stopped – maybe rightly stopped, maybe due to a correct interpretation of the law… then you, I and the country has to wait with social and economic conditions – social and economic upheavals – and we are responsible for them. How are we to meet them? How are we to answer the question: For the last ten or twenty years you have said we will do it. Why have you not done it? It is not good for us to say: We are helpless before fate and the situation we have to face at present.

The amendment bill was savaged in the provisional parliament by a whole host of luminaries, makers of India’s original Constitution, including Shyama Prasad Mookerji, Hari Visnu Kamath, Thakur Das Bhargava, Maharaja Kameshwar Singh and Hriday Nath Kunzru. Yet Nehru and his arguments ultimately triumphed. But this isn’t even about Nehru – what is to be noticed, is that these were the arguments based on which the entire conception of fundamental rights was decisively altered. These arguments under-grid the entire legal edifice that we have constructed for ourselves.

Imagine now if the prime minister were to read out an extract from Nehru’s speeches and then proceed to shake up the entire edifice of constitutional freedoms and judicial processes. Imagine if the current government’s social agenda were to be given such unequivocal primacy over fundamental rights and the Constitution? What would the reaction be? Yet the Constitution has already been ravaged, and these were the exact reasons.

It is disingenuous now to suggest, as some do, that something exceptional is taking place. The exceptional already happened in 1951 under the guidance of Jawaharlal Nehru. What is happening today is the logical conclusion of what began in 1951. What is happening may not be exactly as Nehru imagined, but it is not far from what he imagined either. He too thought there was a major internal threat from extremism, particularly left-wing extremism. These were exactly the measures that he had in mind – and he laid the constitutional groundwork to enable them to exist.

Since then 65 years have passed. None have sought to undo the first amendment. None have sought to return the fundamental rights and civil liberties that the framers of the Constitution had originally envisioned. If freedom, civil liberties, dissent and judicial process were indeed so dear to the original establishment, why have they let the first amendment and the arguments that underpin it continue as part of our Constitution?

If the amendment is still there, if those grounds for restrictions on the freedom of speech and expression are still there, surely the reasons for those restrictions still exist. And if the reasons still exist then the constitutionally-enabled legislation to deal with those reasons should be utilised by the state. Maybe, as Nehru said, when we are in a state of deep crisis we cannot function inefficiently and without discipline. Maybe, again as Nehru said, because we live in rapidly changing times, we cannot wait for the slow process of judicial determination.

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My intention here is not to indulge in whataboutery, nor is it to pass judgement on, let alone defend, the detention of the activists or the actions of the government and the Pune police. Unlike Jawaharlal Nehru, I am quite content to let the Supreme Court have its say. What I do want to say, however, is that the unfolding tragedy has roots in the past – a past that critics, commentators and political opponents have yet to come to terms with.

Citizens take up the mantle of national security, finding a subversive in every lawyer complains Mehta in the piece mentioned above. Yet look at what Nehru said about activist lawyers while introducing the amendment bill – “this magnificent constitution that we framed was later kidnapped and purloined by lawyers”. There is a legacy and a tradition within which the current arrests should be seen. And opposing the specific arrests without deconstructing the legal and constitutional frameworks that enable it is to commit intellectual hypocrisy.

Not a voice has been raised against the first amendment in the last 15 years that I have closely followed Indian politics – from any political party. They have readily allowed the constitutional building blocks to exist, they have allowed the legal framework it enables to exist, they have even allowed it to be used. What has made things exceptional now? Is it because, as S P Mookerji warned Nehru when the amendment bill was introduced – “maybe you will continue for eternity, in the next generation, for generations unborn; that is quite possible. But supposing some other party comes into authority?”

All extracts of Nehru’s speech are from his address to parliament when introducing the Constitution First Amendment Bill on 16th May 1951. Source – Parliamentary Debates Part II, Vol. XII Third Session of the Parliament of India, pp 8815-8832.

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