The Constitution (First Amendment) Act 1951 was a codicil that substantially negated the will viz., the Constitution of India, in its germinating days. The Amendment drastically curtailed free speech and the constitutional right to property, enabled caste-based reservation, and introduced the bizarre Ninth Schedule. The Amendment Bill, hurriedly piloted by Jawaharlal Nehru, faced fierce opposition within and outside the provisional Parliament. Constitutional law is a terrain of never-ending conflicts of ideas and interests. The debate over the First Amendment in 1951 was a great constitutional war and the first battle for Indian liberalism.
Liberalism versus socialism
Liberalism and socialism were overarching metanarratives of the time during the framing of the Indian Constitution. The clash of these two titans cast its shadow over India’s Constitution-making too. In the Constitution-making match, liberalism and socialism won a draw. Dr Ambedkar’s draft articles on fundamental rights reflect the synthesis of liberalism and socialism in the Constitution. His draft was modelled on the US Constitution, and even the name of the republic-in-making was proposed as the ‘United States of India’. Meanwhile, he proposed a socialist economy as ‘remedies against the invasion of Fundamental Rights’. He opined that without economic security of individuals, constitutional freedom would lead to ‘dictatorship of the private employer’.
An ideological equilibrium has finally been reached in Constitution-making as the Fundamental Rights were mostly influenced by classical liberalism and the Directive Principles were inspired by Fabian socialism. However, liberalism had gained the upper hand and Sir Kenneth Wheare hailed the founding of the Indian Constitution as ‘the biggest liberal experiment in democratic government’. But this delicate equilibrium was upset by the First Amendment.
Nehru, while moving the First Amendment Bill, stated that Fundamental Rights were relics of a static age trying to preserve the status quo and social inequalities; whereas Directive Principles were dynamic ideas of social reform and social engineering. The Amendment was conceived to circumvent some verdicts of the judiciary which was vigorously upholding civil liberties. Nehru asserted that "Parliament, representing the will of people, decides on certain social reforms. These are then, by process of interpretation of the Constitution, held up by the judiciary...If the Constitution itself comes in our way, then surely it is time to change the Constitution to that extent." Great Indian constitutionalists like Syama Prasad Mookerjee, J.B. Kripalani, H.V. Kammath, Naziruddin Ahmed, and H.N. Kunzru staunchly opposed the Amendment Bill.
An accidental liberal
In State of Madras v. Chempakam Dorairajan (1951), the Supreme Court categorically clarified that Fundamental Rights were sacrosanct and not liable to be abridged by any legislative or executive act and the Directive Principles had to conform to and run as subsidiary to the Fundamental Rights. This verdict was unacceptable to the Nehru establishment. M.R. Jayakar advised Nehru that ‘it would be unwise to create the impression that the government is only too anxious to interfere with such public guarantees in the Constitution as soon as those guarantees are found inconvenient.’ But Nehru was firm in his resolve to amputate the Fundamental Rights.
On 12 May 1951, Nehru introduced the Constitution (First Amendment) Bill in Parliament without any prior notice, and on 16 May, the Bill was referred to a Select Committee. There began the first battle of Indian liberalism and Mookejee emerged as a chivalrous defender of Fundamental Rights. He was undeniably a giant in the Indian political landscape. But it is a paradox that Mookerjee, a conservative Hindu nationalist, spearheaded the liberal Roundheads against Nehru’s Cavaliers in the first battle of Indian liberalism. He assailed the First Amendment Bill by calling it ‘the beginning of the encroachment of the liberty of the people of Free India’.
Mookarjee’s salvo
“What he [Nehru] is going to do is nothing short of cutting at the very root of the fundamental principles of the Constitution which he helped, more than anybody else, to pass only about a year and a half ago. This is the challenge he has deliberately thrown at the people of India...is it due to fear? Does he feel that he is incapable today of carrying on the administration of the country unless he is clothed with more and more powers to be arbitrarily utilized so that his will may be the last word on the subject? Or is it his doubt in the wisdom of the people whose champion he has been all his life? Does he feel that people of India have run amuck and cannot be trusted with the freedom that has been given to them?” Mookerjee thundered in Parliament. He criticized further restrictions on free speech and called it a ploy to penalize the government’s political opponents. He argued that democratic freedom necessarily implied that any viewpoint be allowed to circulate in the country so long as it did not advocate violence and chaos.
Mookerjee assailed the very raison d'être of the Ninth Schedule which substantially curtailed the constitutional principle of judicial review. He said, “What you say is that particular laws which are mentioned in a schedule to the Constitution, no matter whether they infringe any provision of the Constitution or not, are deemed to be valid...by this amendment, you are saying that whatever legislation is passed, it is deemed to be law. Then why have your Constitution? Why have your fundamental rights? Who asked you to have these fundamental rights at all?” He described the Ninth Schedule as a ‘constitutional monstrosity’.
Mookerjee, in a sarcastic note, told Nehru: “You can pass a law and say that the entire task of framing, interpreting and working the Constitution will be left in the hands of Pandit Jawaharlal Nehru, assisted by such people whom he may desire to consult. Pass a simple amending bill...You are treating this Constitution as a scrap of paper.” This was a lion’s roar against autocracy and constitutional chicanery. He prophetically asked Nehru: “Maybe you will continue for eternity...in the next generation, for generations unborn; that is quite possible. But supposing some other party comes to authority? What is the precedent which you are laying down?”. Here Mookerjee ascended to the level of a classical statesman whose heart throbbed for posterity.
The roots of many draconian pieces of legislation enacted in post-colonial India can be traced back to the First Amendment. A precedent was thus set of amending the Constitution to overturn judicial pronouncements and the sanctity of the Fundamental Rights was desecrated. As Mookerjee pointed out, the First Amendment was enacted to perpetuate certain lawless laws that the British masters had forged for the purpose of curbing the freedom of India.
As the Indian Game of Thrones progressed over decades, the Iron Throne that Nehru once held is occupied by the political descendants of Mookerjee today. The tides of time have swept away their liberal spirit and the seat of Mookerjee as the Commander-in-Chief of liberal knights remains alarmingly vacant.
(Faisal C.K. is Deputy Law Secretary to the Government of Kerala. Views are personal.)
