It’s fair to say that the average Indian’s faith in the judiciary — and the Constitution in general — is at an all-time low. A few days ago, we learned that former Chief Justice of India, Ranjan Gogoi, will be a Rajya Sabha MP soon. This is less than a year after he presided over his own sexual harassment allegation hearing — just one of the many unpopular decisions he took in the last year of his career, all of which favoured the Narendra Modi government (Ayodhya, the Rafale deal and so on). The most contentious issue in India (other than the government’s handling of COVID-19, of course) today, after all, is an act that many of us feel is unconstitutional (violates Article 14, for starters) — and yet, the fight against the CAA is led by street protests, not legal challenges.
When did the executive branch begin to bend the judiciary to their (political) will in India and how? Sixteen Stormy Days (Penguin Random House India), a new non-fiction book by Tripurdaman Singh, tries to answer this question — and address the long-term effects of the First Amendment to the Indian constitution.
As the author says, “How did ‘this magnificent Constitution’, ‘the most elaborate declaration of human rights yet framed’ go from being a charter of freedom & fulfillment of the dreams of India’s people in 1950 to being an impediment in the will of the same people by 1951?”
Why did Jawaharlal Nehru push so hard for the First Amendment in 1951, especially in the face of challenges both within the provisional parliament (general elections were still a few months away) and from various High Courts? The answer is both simple and not. The objective was three-fold: the abolition of the zamindari system (the ‘impediment’ being the right to property), the application of caste-based reservations (the ‘impediment’ being the right to equality) and the censoring of publications deemed as national security threats (the ‘impediment’ being freedom of speech).
Each of the three objectives, therefore, involved a clash between political objectives and fundamental rights. This brought Nehru back to the original question: why do we have fundamental rights in the first place? Is it not to protect the most vulnerable among us? Nehru was certainly correct in his over-arching view of things — that as long as structural inequities existed in the Indian state (the caste system, for instance, something that persists to this day and is easily India’s biggest social justice issue), fundamental rights could be misused to privilege the powerful over the weak. Zamindari did need to go, caste-based reservations were needed in India (still are).
As part of its agenda, the Congress wanted to abolish the zamindari system as soon as possible. Obviously, faced with the overnight evaporation of their power, the zamindars of Bihar in particular fought back hard, helped by allies like Rajendra Prasad, India’s first President. On 12 March 1951, the Patna High Court struck down the Bihar Land Reforms Act, saying that it violated Article 14 of the Constitution (which pertains to the equality of all citizens in the eyes of the law).
“In a searing indictment of the Congress party and the Bihar government’s manifest authoritarianism, the judges denounced the Act as an “unconstitutional law enacted in the belief that the right of the plaintiffs to challenge it and ask for relief from its operation has been taken away”. The court’s decision shook the government and the Congress party to its core. It shattered the illusion of the current regime having inherited the absolute power of the Raj. The Bihar Land Reforms Act bit the dust. An entire pillar of the Congress party’s social agenda stood virtually crippled.”
Singh’s research is thorough. He excels in the blow-by-blow accounts of those crucial weeks when Nehru tried to bring his allies — and his opponents — around to his point of view. (Realpolitik is a thorny affair at the best of times, one that Singh is clearly familiar with). Immediately after the Patna High Court ruling, Nehru had a fairly strong-worded statement for the press:
“If the Constitution is interpreted by the Courts in a way which comes in the way of the wishes of the legislature in regard to basic social matters, then it is for the legislatures to consider how to amend the Constitution so that the will of the people as represented in the legislature should prevail.”
Most students of history and/or political science will, I am sure, find the back-and-forth between Nehru and BR Ambedkar, or between Prasad and Nehru, compelling reading. This is among the reasons why Singh’s work is such a valuable resource. To his credit, the book is also accessibly written, for the most part, only slipping into legalese at a few places every now and then — small blemishes in an otherwise thoroughly professional job.
I was also impressed by the fact that Singh, despite his Bharatiya Janata Party affiliations (his father Mahendra Aridaman Singh re-joined the BJP in 2017; at various points through the 90s and 2000s, he had been a part of the Samajwadi Party and Janta Dal as well), isn’t interested in painting Nehru as an outright villain (although predictably, his book has been gleefully reported on by right-wing publications with a history of Islamophobia and publishing falsehoods — like Swarajya magazine, complete with headlines blasting Nehru). As the author himself pointed out in a recent interview, he saw Nehru as a hard-nosed politician (and not as the saboteur of fundamental rights in India, despite his stand here). Hopefully, this sense of nuance also reaches Singh’s colleagues in the BJP soon.
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Updated Date: Mar 23, 2020 09:44:36 IST