A

COUN le

ee,

om é
ae > oeme

bh
oe
y

Fee
NS
wh

SN

a>
eo
 the We. chef 4

WORKING A DEMOCRATIC CONSTITUTION

+?
 Working a Democratic
Constitution
THE INDiaAS BPE RIENCE

GRANVILLE AUSTIN

OXFORD
UNIVERSITY PRESS
 OXFORD
UNIVERSITY PRESS

YMCA Library Building, Jai Singh Road, New Delhi 110001

Oxford University Press is a department of the University of Oxford. It furthers the

University’s objective of excellence in research, scholarship, and education
by publishing worldwide in

Oxford New York

Athens Auckland Bangkok Bogota Buenos Aires Calcutta

Cape Town Chennai Dares Salaam Delhi Florence Hong Kong Istanbul
Karachi Kuala Lumpur Madrid Melbourne Mexico City Mumbai
Nairobi Paris Sao Paolo Singapore Taipei Tokyo Toronto Warsaw
with associated companies in Berlin Ibadan

Oxford is a registered trade mark of Oxford University Press

in the UK and in certain other countries

Published in India
By Oxford University Press, New Delhi

© Oxford University Press 1999

The moral rights of the author have been asserted

Database right Oxford University Press (maker)
First published 1999

All rights reserved. No part of this publication may be reproduced,

stored in a retrieval system, or transmitted, in any form or by
any means,
without the prior permission in writing of Oxford University Press,
or as expressly permitted by law, or under terms agreed with the
appropriate
reprographics rights organization. Enquiries concerning reprodu
ction
outside the scope of the above should be sent to the Rights
Department,
Oxford University Press, at the address above

You must not circulate this book in any other binding or

cover and you must
impose this same condition on any acquirer

ISBN 019 564888 9

Typeset in New Baskerville

by Eleven Arts, Keshav Puram, Delhi 110 035
Printed by Saurabh Print-O-Pack, NOIDA
Published by Manzar Khan, Oxford University
Press
YMCA Library Building, Jai Singh Road, New
Delhi 110 001
 To
NMA
Research Colleague
Relentless Editor
Forbearing Wife

urcnased:
Approva
Gratis:—
Acc fio.: 033049
DA om dees wets)
MiG
 a ee a. | ep ieee

‘' at) Yee

ete te
Cantey eeaes os
Ad Sos I eb. New

f. MM
: | fons
megantlod ls esis ad
tbe aR = ‘
seeded

— ae; 1 Vara Cab, ;

‘oe
7 Sa=- - CS or <a cd sey Sata
git, ; > (ithe Oe aares .
<7

. ‘ieee
= pee > oe
> a : 3
3 y gee peta rca “oaba
7

6 (ar ivsex ae

ae te chkeceean
— ) aac ee Ss LA ree
 ACKNOWLEDGEMENTS

These well could consume the number of pages defaced here. For nearly
everyone involved over the ten years spent researching and writing this
book has been helpful. Many have been extraordinarily generous with
time, information, and counsel. Some have assisted me in access to
private papers. All have given me moral support—not a negligible
contribution as the months passed by. With pleasure, I could dedicate
a paragraph to each of them. That would be a book in itself. But I shall
hope that each of the individuals and institutions named will appreciate
the extent and the warmth of my gratitude to them.

Institutions

The Warden and Fellows of St Antony’s College, Oxford, who awarded me

a research fellowship, and where in the sixties Iwrote the Cornerstone book.
The Ford Foundation, which provided generous financial support,
and particularly to R. Sudarshan, Gordon Conway, David Arnold, and
Gowher Rizvi.
The American Institute of Indian Studies for generous financial and
administrative support, especially to Surinder Suri there.
The Rockfeller Foundation for its award of a residency at the Villa
Serbelloni, where I tackled the conclusion to the book.
The Woodrow Wilson International Center for Scholars, for a year
to write, and especially to Charles Blitzer and Mary Brown Bullock.
The Fulbright Program for financial support for completing my
research.
The Nehru Memorial Museum and Library for unlimited kindness,
research assistance and collegial support; especially there to Ravinder
Kumar, Hari Dev Sharma (extra-especially), Ms Satinder Kaur, Mr N. C.
inde-
Mahajan, Ms Usha Gururaj, D. S. Routela, and Moti Ram, and the
fatigable photocopiers—A. K. Avasthi, U. C. Mandal, and D. C. Goswami.
The Parliament Library for unfailing willingness to help, especially
C.
to sometime Lok Sabha Secretary General Subhash Kashyap, G.
Malhotra, Mrs Prem Wadhwa, Mrs Sarojbala, and R. L. Shali.
acies
The Indian Law Institute Library for guidance through the intric
 vit Acknowledgements

of law reports, and sometimes of the law—especially the librarian,

Pramod Mahajan.
The Law Commission, especially its wise and long-time member-
ecretary, P. M. Bakshi.
J The Centre for Policy Research for collegiality and guidance (many
of whose fellows are mentioned below) and the ever-helpful librarian,
Kamal Jit Kumar.
The India International Centre, which is not only the most civilized
hostelry in India, under the management of Lalit Joshi and the overall
direction of sometime director Eric Gonsalves and its present director,
N. N. Vohra, but which also possesses a good library.
The National Institute of Panjab Studies, especially to Mohinder
Singh and Ms Kaur.
The Indian Institute Library in Oxford, and especially there to
Elizabeth Krishna.
The Institute of Current World Affairs, which years ago supported my
first venture into India and the resulting Cornerstone book—especially
Richard Nolte. And to the late Francis Carnell, who at Oxford shep-
herded me through that book.

Individuals
These are divided into several groups, beginning with those friends,
colleagues, and mentors who risked their reputations by supporting
my applications to various institutions for funding to support research
and writing. In no particular order, they are: Ainslie Embree, W. H.
Morris-Jones, Soli Sorabjee, Howard Wriggins, Kingsley DeSilva, Stanley
Kochanek, and Phillips Talbot.
Equally daring individuals read the typescript and gave me their
comments and advice. At the top of this list goes Thomas P. Thornton,
who suffered through every page and whose critique may be credited
with many of whatever virtues the book may have. Howard Wriggins
read two portions of the book and made trenchant comments. In India,
more than a dozen friends—all active or retired judges, lawyers,
civil servants, politicians, academics, and journalists—read
and advised
me about one or more segments of the draft. One senior advocate
read
the entire typescript, keeping an eye open for errors in my account
of
the law, court cases, and so on. I hope that I have made
all the corrections
necessary. To these individuals, I am exceedingly grateful.
They know
who they are and how thankful to them I am. But I do
not name them
to avoid their being thought guilty by association.
I thank the following persons for their permissions
to see collections
 Acknowledgements ix

of private papers in the Nehru Library that otherwise would not have
been open to me: V. N. Gadgil for access to his father N. V. Gadgil’s
papers; N. Balakrishnan for access to the All India Congress Committee
papers; V. S. Patil for access to his father S. K. Patil’s papers; K. S.
Ramanujan for access to his father G. D. Birla’s papers; S. D. Deshmukh
for access to his brother C. D. Deshmukh’s papers; S. R. Jahagirdar for
access to her father P. B. Gajendragadkar’s papers; and Gopal Gandhi
for access to C. Rajagopalachari’s papers. In each case, access also is
attributable to Hari Dev Sharma’s invaluable assistance.
Sumi Krishna and A. N. Kaul helped me with research.
Then there have been the friendly associates, friendly colleagues, and
just plain friends who in one way or another, or in several ways, have
sustained me—and my research colleague and stern editor, N4A—through
the years. Some of them go back to my first visit to India in 1960. P. H.
Vaishnav qualifies as a godfather of this enterprise, and he knows why.
Others include—and they all could go into a category of the extraordinarily
kind and helpful—in no order whatsoever: Monu and Chanchal Sarkar,
Rupa Janson and Sh¢gelu Uttam Singh, Reka and Inder Malhotra, Sarojini
and Pran Chopra, “Bapsy and Fali Nariman, Smita and Anil Divan, Soli
Sorabjee, Zena Sorabjee, K. K. Venugopal, Ajit Bhattacharjea, Monika,
Nageen, and Habib Tanvir, Shanta and S. Guhan, Premila and Nirmal
Mukanji, L. M. Singhvi, B. N. Tandon, P. B. Venkatasubramanian, Francine
Frankel and Douglas Verney, Bashir Ahmad, Esha and André Béteille, Ashis
Banerjee, Rajni Kothari, Elizabeth and Gopal Krishna, Chandra and
Kingsley Defilva, Swarna and Ashoke Desai, Dhirubhai Sheth, P. N. Dhar,
Usha and Rajmohan Gandhi, S. Gopal, P. N. Haksar, Karkee and Abid
Hussain, Alice Jacob, Agnese and Gowher Rizvi, Colonel and Mrs K. L.
Kapur, Indira and Prem Kathpalia, Prem Kirpal, Sumi Krishna, William
Roger Louis, John Lall, Harji Malik, Nayantara Sahgal and Nirmal Mangat
Rai, Surjeet, Jasjit, and Gurbir Mansingh, Ajit Mozoomdar, B. R. Nanda,
Ashis Nandy, Giri Deshingkar, Sharada Nayak, Pawan and Mool Chand
Sharma, A. G. Noorani, V. A. Pai Panandiker, Suzanne and Loyd Rudolph,
S. P. Sathe, V. Ramachandran, Sharda and Yashpal Sachdev, Feroza and H.
M. Seervai, Leila and Prem Nath Seth, L. P. Singh, Naresh Chandra, Salima
Tyabji, T. K. Viswanathan, Bharat Wariawala, M. Ravindran, G. R. S. Rao,
H. C. L. Merillat, Evelyn and Neville Maxwell, Thomasson Jannuzi, Nasreen
and Matin Zuberi, Ramu and Ashoke Katakam, Robert Hardgrave, Judith
Brown, and Marc Galanter.
Finally, my thanks for the energy, skill, and kindness of Anita Roy,
my first editor at Oxford University Press in New Delhi, and Ajitha G. S.
my second editor, and Jyoti Dhar.
Pe ©
ny’ 2°97.
 ‘Gandhi’s Talisman’

I will give you a talisman. Whenever you are in doubt or when the self
becomes too much with you, apply the following test:
Recall the face of the poorest and weakest man whom you have
seen and ask yourself if the step you contemplate is going to be of any
use to him. Will he gain anything by it? Will it restore him to control
over his own life and destiny? In other words, will it lead to Swaraj for
the hungry and spiritually starving millions?
Then you will find your doubts and yourself melting away.

As displayed in Gandhi Smriti,

Birla House, New Delhi
 i
z= =
ren ert
oe
t<
at ca

ys 4-
, > is

—
a
™

~4
. a ,
e

P
a
7 ‘ ™
+

*
‘

.
~
 CONTENTS

Abbreviations X1x
Introduction

Prologue

PartI: The Great Constitutional Themes

Emerge, 1950-66
1 SETTLING INTO HARNESS
The Broad Context
Power Relations and Adjustments
The Nehru Years Reviewed

2 FREE SPEECH, LIBERTY AND PUBLIC ORDER

Freedom of Expression
Freedom of Expression: The Sixteenth Amendment
Individual Liberty and Preventive Detention
Preventive Detention During An Emergency
3 THE SOCIAL REVOLUTION AND THE
FIRST AMENDMENT
The Background
The Amendment and Agricultural Property
The Amendment and Non-Agricultural Property
Removing Man-Made Inequalities
4 THE RIGHTS AND THE REVOLUTION:
MORE PROPERTY AMENDMENTS
The Fourth Amendment
The Seventeenth Amendment
Democracy and Socialism: The Nehru
Years in Retrospect
5 THE JUDICIARY: ‘QUITE UNTOUCHABLE’
Judicial Independence: Appointments
xiv Contents

Judicial Independence: Other Risks, Other Protections 135

The Quality of Justice 138
6 MAKING AND PRESERVING A NATION 143
Forces for Unity 144
Forces Against Unity 148
Constitutional and Sub-Constitutional
Mechanisms for Unity 156

Part II: The Great Constitutional Confrontation:

Judicial versus Parliamentary Supremacy,
1967-73 171
7 INDIRA GANDHI: IN CONTEXT AND IN POWER 173
Mrs Gandhi, ‘Socialism’, and Power 176
An Activist Political Generation 182
The Year of the ‘Socialists’ 186
The Migration of Power 190
8 THE GOLAK NATH INHERITANCE 196
Sowing the Wind 197
Reaping the Whirlwind 202
9 TWO CATALYTIC DEFEATS 209
Bank Nationalization 209
The Princes and their Purses 220
An Evening of Mystery 227
10 RADICAL CONSTITUTIONAL AMENDMENTS 234
Framing the Amendments Begins 236
Amendments in Parliament: The Twenty-Fourth 243
Positive and Negative Reactions 247
Amendments in Parliament: The Twenty-Fifth 250
The Web’s Seamlessness Forgotten 258
11 REDEEMING THE WEB: THE KESAVANANDA
BHARATI CASE 258
Kesavananda: The Case 260
A Confusing Decision 265
‘Unusual Happenings’ on the Bench 265
12 A‘GRIEVOUS BLOW’: THE SUPERSESSION
OF JUDGES 278
The Supersession 279
 Contents xv

The Public Rationale 283

Public Reactions 285
A Brief Assessment 289

Part III: Democracy Rescued Or the Constitution

Subverted?: The Emergency and the
Forty-second Amendment, 1975-7 293
13. 26 JUNE 1975 295
The Culmination of Trends 297
More Immediate Origins 298
Democracy is Extinguished 309
14 CLOSING THE CIRCLE 314
The Indira Gandhi Election Case 314
The Protective Amendments 319
Completing the Circle 325
15 THE JUDICIARY UNDER PRESSURE 328
Basic Structure Revisited:
The Kesavananda Review Bench 328
An Anonymous Attack 3o2
The Habeas Corpus Case 334
The Transfer of Judges 344
16 PREPARING FOR CONSTITUTIONAL CHANGE 348
Change Takes Shape ) 350
The Swaran Singh Committee 353
The Committee As a Puzzle 364
The Critics 366
17 THE FORTY-SECOND AMENDMENT:
SACRIFICING DEMOCRACY TO POWER 370
The Amendment 371
Who Were Its Authors? 374
Four Mysterious Resolutions 377
The Amendment’s Supporters and Opponents 381
Conclusion 388

Part IV: The Janata Interlude: Democracy Restored —_391

18 INDIRA GANDHI DEFEATED—
JANATA FORMS A GOVERNMENT 393
Opposition Attempts at Unity 395
 xvt Contents

Creating One from Many 400

The Congress Party:
Death and Reincarnation 405
19 RESTORING DEMOCRATIC GOVERNANCE 409
Lengthy Amending Preparations Begin 411
The Forty-third Amendment Emerges 417
Drafting the Forty-fourth Amendment Continues 420
The Forty-fourth Amendment in Parliament 424
20 GOVERNING UNDER THE CONSTITUTION 43]
Fundamental Freedoms 432
Judicial Independence 435
Federal Issues 44]
Protecting Civil and Minority Rights 450
21 THE PUNISHMENT THAT FAILED
453
22 A GOVERNMENT DIES
466
A President’s Discretion
468

Part V: Indira Gandhi Returns

483
23. GHOSTS OF GOVERNMENTS PAST
484
Authoritarianism, Dynasty, and the
Presidential System
489
Reawakened Fears for the Judiciary
492
24 THE CONSTITUTION STRENGTHENED
AND WEAKENED
498
Parliamentary Supremacy Revisited:
The Minerva Mills Case
498
Liberties Lost
507
25 JUDICIAL REFORM OR HARASSMENT?
516
Appointments and Transfers of Judges
wit
Transfers Go To Court
521
The Battle of the Affidavits
528
26 TURBULENCE IN FEDERAL RELATIONS
The Dissolution of State Assemblies
534
Background to the Constitutional Revolt 536
of 1983 537
The Constitutional Revolt
Pathway to Death
54]
546
 Contents xvit

Part VI: The Inseparable Twins: National Unity

and Integrity and the Machinery of
Federal Relations 553
27 TERMINOLOGY AND ITS PERILS 555
Definitions and Their Uses 556
The Constitution’s ‘Federal’ Provisions:
Definitions and Uses 560
Federalism’s Phases 565
The Nehru Years 565
The Indira Gandhi Years 568
The Janata Years 571
Nehru and Mrs Gandhi Compared 572
28 THE GOVERNOR’S ‘ACUTELY
CONTROVERSIAL’ ROLE 574
Gubernatorial Independence 577.
Discretionary Authority of the Governor 582
Reservation of Bills 590
29 NEW DELHI’S LONG ARM 594
National Emergencies 595
Central Forces in a State 597
Political Parties and President’s Rule 604
30 COORDINATING MECHANISMS: HOW ‘FEDERAL’? 614
The Finance and Planning Commissions 614
Other Coordinating Mechanisms 623
‘Federalism’ and the Seamless Web 628

Part VII: Conclusion 631

31 A NATION’S PROGRESS 633
The Weli-Shaped Cornerstone 634
Conditions 636
The Fourth Strand: Culture and the ‘Survival Society’ 637
The Fourth Strand, Democracy and Social Revolution 645
The Constitution Against Itself 651
Branches and Strands 658
Summing Up 665

Bibliography 670

Index
 »

ne
= _”

i< ~

[ee
a
Es
=
iv
Fy
ae
’,
 ABBREVIATIONS

The first tme these items are used in the footnotes, which is where
they are most used, they are given their full names. The abbreviation
then follows in parenthesis. This combination is repeated occasionally
throughout for the convenience of the forgetful. For the reader who
may dip into the book and be confronted by an abbreviation, having
not met it when it was introduced, the following list is offered.

. All-India Congress Committee

.. Asian Recorder (a press digest)
. The All India Reporter (law reports)
. Administrative Reforms Commission
.. Bharatiya Janata Party
.. Constituent Assembly Debates
. Congress Forum for Socialist Action
. Communist Party of India
. Communist Party of India (Marxist)
. Congress Parliamentary Party
. Institute of Constitutional and Parliamentary Studies
. Indian National Congress
. Journal of Constitutional and Parliamentary Studies
. Journal of the Indian Law Institute
. Journal of Parliamentary Information
.. Janata Parliamentary Party
. National Archives of India
. Jawaharlal Nehru Letters to Chief Ministers
. Nehru Memorial Museum and Library
. Provincial/Pradesh Congress Committee
. Parliament Museum and Archives
. Praja Socialist Party
.. Supreme Court Cases
.. Supreme Court Reports
. Samyukta Socialist Party
. Socialist Party
 INTRODUCTION

This is a history of the working of the Indian Constitution from 1950 to

1985, written for Indians and non-Indians—both the well informed and
the less well informed, who are interested in the country and in its
constitutional experience. Because the Constitution is in hourly use as
a benchmark and measuring stick for citizens and officials (some say it
is the new Dharmasastra) , touching lives in ways great and small, learning
of its working truly opens a window into India.
This is a history, and not a law, book, although there is a good deal
about the law in it, for laws make history and history makes laws. It is
about politics and economics and conditions and culture, about
politicians and civil servants and lawyers and judges and journalists and
individuals, rich and desperately poor, and it is about success and failure ~
and hope and despair and power and sacrifice and motivations, selfish
and grand.
It is about those who acted upon the Constitution, how and why
they did so, and about those the Constitution acted upon, or neglected.
It is about Indians working their Constitution, for constitutions, however
‘living’, are inert. They do not work, they are worked.
It is a history about what human beings do ill and well while govern-
ing themselves.
We begin with the Constitution’s inauguration in January 1950 and
end, in the main, with Prime Minister Indira Gandhi's passing, late in
1984. Because constitutional developments neither began in 1950 nor
ceased in 1985, the book looks back where background is needed and
forward, briefly, at several major developments during 1985 and since
that are related to matters discussed earlier in the book. It looks, for
instance, at the Supreme Court’s 1993 decision on the appointment
and transfer of judges, and judicial ‘activism’ during the nineties; the
implementation in 1990 of the Mandal Commission report on special
consideration for the Other Backward Classes; and the failure in 1992
to use central government forces to protect the Babri mosque at
Ayodhya. The desire was strong to bring the narrative closer to the
present, but research and writing must stop if books are to be published.
2 Working a Democratic Constitution

For this account of the Constitution’s working to be a window into

India, Indians must be the ones speaking. This is their book, in their
words; the author has attempted to keep his distance most of the time.
But sometimes he enters the pages, more than he might have preferred,
attempting to bring out the significance of certain developments and
their growth into trends.
An outsider chronicling a people’s history should tread warily. He
must do so especially when, as a non-lawyer, he writes about the law. To
prevent or reduce error, I have sought and received counsel from more
than a few senior advocates and retired justices about the text. The
errors that remain are, of course, my own. Other Indian friends and
colleagues have commented upon, and improved, the text.
The ‘objectivity’ the outsider brings to his subject is generously
exaggerated by his friends—whether in India or elsewhere. Yet, the
disadvantage of lacking indigenous corpuscles is severe. One advantage
for this outsider is that, having spent some years as a civil servant in the
United States, I have been exposed to government processes very similar
to India’s.
Beginning with friendliness and sympathy, and seeking understand-
ing through sympathy and friendliness, the outsider—or the insider—
writes as close to the truth as he can. In this instance, the truth, the
reality of and behind events, is sometimes elusive. Too few documen-
tary sources are available, human memories are frail, and there are
honest differences of recollection about happenings and of opinions
about their meaning. So, despite using the sources evident in the foot-
notes and the bibliography, portions of this book are conjectural. Words
like ‘it seems’, ‘it appears’, ‘apparently’, and ‘probably’ qualify more
sentences than I would like. I have reconstructed events as best I could.
I have tackled this particular subject because of my affection and
admiration for India, because of the subject’s importance for all those
interested in democratic governance, and because, altheugh fascinating
portions of this history have been treated in books and articles, the
pieces have not been stitched together hitherto.
What should be included in this book and what omitted was often
difficult to decide. Some readers will find the book too long and detailed
and others too short, with telling details omitted. The subject deserves a
multi-volume history of record to include every scrap of evidence and
the relevant documents from several government ministries. But presently,
even the files on constitutional amendments kept in the Law Ministry
are hidden by a conspiracy of silence. I have included what I consider
the maximum tolerable amount of evidence to support the narrative.
 Introduction 3

A few technical points: The spellings of individuals’ names for,

respectively, appointed and elected officials and judges, have been taken
from the Official Directory, published by the Ministry of Home Affairs,
the Council ofMinisters, 1974-1984, published by the Lok Sabha Secretariat,
and the Judges of the Supreme Court and the High Courts, published by the
Department ofJustice, Ministry of Law. In other igstances, commonly
accepted spellings have been used.
The word ‘governance’ is used frequently throughout the book. |
have been informed that this is a fancy word unpleasing to some ears.
In this book, ‘governance’ means what citizens do when governing
themselves. Governance is the process, government is an object.
Before the Constitution was inaugurated, the country’s major units
were called ‘provinces’ and the leaders of their ministries were called
‘premiers’. After 26 January 1950, the names changed to ‘states’ and to
‘chief ministers’.
The terms ‘the state’ and ‘elites’ do not appear in the book because
I find them more misleading than enlightening. And not liking
acronyms, I have used them infrequently.
The terms ‘council of ministers’ and ‘cabinet’ are used interchange-
ably, although not all members of a council of ministers typically are
included in the cabinet at any particular time. When the distinction is
significant, it is made.
All the sources cited by name—whether documentary, written, or
oral—are with permission. Names of all the individuals consulted appear
in the bibliography and the acknowledgements.
 PROLOGUE

The Constituent Assembly that drafted the world’s longest democratic

constitution began its work in New Delhi in December 1946. The people
were eager for independence, the leaders ready. For decades, they had
struggled to replace the British ‘Raj’ with self-rule, dedicating their lives
to the goal. They knew what India needed, what they wanted the country
to have: unity of peoples and purpose, representative democracy, and
social-economic reform. While working to end British rule, they had
absorbed the English language and British democracy and Common
Law, each of which the British had imported in pieces over two hundred
years. They had fought elections in 1937 under the limited self-rule
of
the 1935 Government of India Act and formed the ministries
that
governed many provinces. They had come to appreciate the principl
es
and character of British-Indian administration, even when these
put
them injail (where Jawaharlal Nehru, for example, spent
nine years).
The school for freedom was the Congress Party. Formed in
1885 by
an Englishman, its early purpose was Indian participatio
n in the very
limited popular government of the time. Under Mahatma
Gandhi's
leadership after World War I, the Congress grew to lead
the independ-
ence movement—Congress men and women were
not the only patri-
ots—and to infuse it with the purposes of democratic
government and
social reform. Gandhi’s dominance of Congress affairs
somewhat para-
doxically nurtured the development of able associates,
and their strong
personalities produced personal and ideological
disputes that were re-
solved democratically, although not without acrimony.
These men and
women led the country in 1946, and no people
gaining independence
after World War II was so blessed with
leaders of experience, talent
,
and personal character. Nor, it may be added,
with so comparatively
civilized a departing colonial power.
Events moved rapidly after the war. The transfer
of power was around
the corner; general elections, with a limi
ted franchise, during the winter
of 1945-6 produced provincial legislatures
that would elect members
of the Constituent Assembly. Disagreement
s between the Congress Party
and the Muslim League thwarted Britain’s
belated attempts to hold
 Prologue 5

India together, and in the spring of 1947, the last Viceroy, Lord Louis
Mountbatten, announced that India and Pakistan would become
independent countries on 15 August.
With independence, the Constituent Assembly could move ahead
with its work, having marked time since early in the year. By then, the
Assembly had become essentially a Congress Party body (it had a few
Communists and Independents), because most of its original Muslim
League members had opted for Pakistan; Congress Muslims remained.
The most important exceptions to this one-party complexion were a
dozen persons prominent in law and public affairs who the Congress
had arranged be elected so that their talents could contribute to
constitution-making. Significant for the shaping of the Constitution
was Assembly members’ daily encounter with the problems of governing,
for the Assembly wore two hats. As the Constituent Assembly, it drafted
the Constitution during the afternoon, and in the morning, as the
Constituent Assembly (Legislative), it was the Provisional, or Dominion,
Parliament legislating for the new nation.
The framers drew for the Constitution’s provisions from three
sources. The Government of India Act, 1935, passed by Parliament in
London was the foundation document. The Act established a
parliamentary system (while keeping ultimate power in British hands),
contained vast administrative detail for the structure of government,
established a centralized federal system, and provided for elections to
provincial legislatures. These, in 1937, brought the Congress Party to
power in many provinces. It provided the basis for government, national
and provincial, until the newly framed Constitution replaced itin 1950.
The framers also borrowed from other constitutions to include,
particularly, fundamental rights and a body of social and economic
desiderata called directive principles. The framers as a body—and
especially the leadership of Jawaharlal Nehru, Vallabhbhai Patel,
Rajendra Prasad, and Abul Kalam Azad—decided in favour of a long
document in preference to rejecting the existing foundation and
replacing it with a shorter constitution of general provisions. They
sought continuity and stability, intending to entrench parliamentary
democracy. Continuity came also from the Constitution’s keeping in
force all existing laws, unless and until the new national Parliament
would repeal them.
The Constitution’s spirit came from a third source: the Objectives
Resolution adopted during the December 1946 Assembly session, which
itself drew from Congress Party documents of two decades earlier. Nehru
had drafted this resolution, which said that the Indian Union, whose
 6 Working a Democratic Constitution

integrity was to be maintained, derived its authority and power from

the Indian people. It declared that there should be ‘secured to all the
people ... justice, social, economic and political; equality of status, of
opportunity, and before the law; freedom of thought, expression, belief,
faith, worship, vocation, association and action, subject to law and public
morality’. The resolution also called for adequate safeguards for
minorities, depressed and ‘backward’ classes, and underdeveloped and
tribal areas.!
The Constitution embodied this philosophy in the lengthy and
detailed provisions designed to fulfill it. It may be summarized as having
three strands: protecting and enhancing national unity and integrity;
establishing the institutions and spirit of democracy; and fostering a
social revolution to better the lot of the mass of Indians. The framers
believed, and Indians today agree, that the three strands are mutually
dependent and inextricably intertwined. Social revolution could not
be sought or gained at the expense of democracy. Nor could India be
truly democratic unless the social revolution had established a just
society. Without national unity, democracy would be endangered and
there could be little progress toward social and economic reform. And
without democracy and reform, the nation would not hold together.
With these three strands, the framers had spun a seamless web. Undue
strain on, or slackness in, any one strand would distort the web and risk
its destruction and, with it, the destruction of the nation. Maintaining
harmony between the strands predictably would present those who later
would work the Constitution with great difficulties. The framers had
undertaken an ambitious and noble enterprise. Their product pleased
nearly everyone. Those disappointed thought it insufficiently ‘Indian’.
‘We wanted the music of [the] veena ... but here we have the music of
an English band’, lamented assembly member K. Hanumanthaiya.
It may help the reader navigate this account of the working of the
Constitution to have a brief description of the document. Its more than
370 articles and ten schedules (eight in the original Constitution) fill
309 pages of the 1989 edition published by the Lok Sabha Secretariat.
It is two constitutions in one: a constitution for the nation and the
central government, and one uniform constitution for all the state
governments. The two constitutions are consistent, for both are

! For the Objectives Resolution, see Constituent Assembly Debates (hereafte

r CAD), vol.
1, no. 5, p. 59. For the framing of the Constitution, see Austin, Granville
, The Indian
Constitution: Cornerstone of a Nation, Clarendon Press, Oxford,
1966, and subsequent
reprints, See also Austin, Granville, ‘The Constitution, Society,
and Law’, in Oldenburg, Phillip
(ed.), India Briefing 1993, Asia Society, New York, NY, 1993.
 Prologue 7

parliamentary systems based on the Westminster Model. The President

is the Head of State, and a presidentially appointed governor fills the
analogous function in each state. The lower house of Parliament (Lok
Sabha) is directly elected by adult suffrage, and the upper house (Rajya
Sabha) is indirectly elected by state legislatures—apart from a few
nominated members—and each state’s delegation, contrary to that in
the US Senate, is of a size proportional to its population. The authority
of the central and state governments, and the relations between them,
are laid down extensively in the Constitution’s articles and schedules.
One of the latter, the Seventh Schedule, contains three legislative lists—
Union, State, and Concurrent—which define legislative jurisdictions.
Part XVIII contains the ‘Emergency Provisions’, under which the central
government may rule the country or one or more states in a unitary
fashion, superseding the state government(s). The judicial system
consists of subordinate courts, and there is a unified higher judiciary,
ascending from high courts in (most) states (but which are not state
courts) to the Supreme Court. This pleased most intellectuals, who
disliked traditional, customary law, and also the common man, for whom
it provided laws and a mechanism for adjudication of disputes outside
society’s repressive hierarchy. There are provisions relating to the
national civil service, language, elections, finance, and trade and
commerce. Citizenship is single and national; there is no state citizenship
as in the United States.
The philosophy of the seamless web infuses the Constitution, and is
especially apparent in certain provisions. Unity and integrity are
mentioned in the Constitution’s Preamble, which establishes India as a
‘Union of States’, and the Constitution’s highly centralized federalism
had unity and integrity as its purpose. The country shall be a ‘sovereign
democratic republic’ says the Preamble, and the framers adopted adult
suffrage because it would engage all in the common enterprise and,
being democratic, it would help break the mould of traditional society.
The essence of the democracy and social reform strands is to be found
throughout the Constitution: in the democratic political institutions
and processes of the parliamentary system, in adult suffrage, and in the
independent judiciary; and in Parts III and IV of the Constitution, which
lay down the ‘Fundamental Rights’ and the ‘Directive Principles of State
Policy’, the latter taken from the Irish Constitution. The Rights contain
the well-known negative rights of European and American origin and
the rights to equality under the law and equal protection of the law.
These were truly revolutionary provisions in a traditional and
hierarchical society that did not recognize the principle of individual
 8 Working a Democratic Constitution

equality. The Directive Principles of State Policy were to be ‘fundamental

in the governance of the country’. They contain a mixture of social
revolutonary—including classically socialis-—and Hindu and Gandhian
provisions (such as banning cow slaughter and instituting prohibition).
Although not justiciable, unlike the Rights, they have become yardsticks
for the measurement of governments’ successes and failures in social
policy.
Painstaking and prescient as the founding fathers and mothers were,
those working the Constitution have found it inadequate to some needs
and have amended it more than seventy-five times. Many amendments,
made through the Constitution’s flexible process, relate to administra-
tive matters, the result of having adopted a constitution full of adminis-
trative details. The more significant amendments resulted from battles
over how the country should live up to its ideals. Preserving a balance
among the strands of the seamless web was central to several of these.
The changes to the Constitution, the functioning of constitutional
and sub-constitutional institutions, the contexts of the times, and the
roles of individuals are the subjects of this book. Its chronological narra-
tive is divided into seven parts, each of which has chapters devoted
to
various topics according to their political prominence and constitutional
significance both at the time and over time.
Part I covers the period from the Constitution’s inauguration in
1950 until 1966. These were the Nehru years, for although Nehru
died in 1964, his successor as Prime Minister, Lal Bahadur
Shastri,
who died in 1966, governed in the Nehru mode. The great constit
utional
themes dealt with in this book emerged during this period—and
many
continue lively today—as the government attempted to fulfill
its
promises and administer the country under the Constitution. Conflic
ts
in power relationships had to be managed or resolved—a
mong
individuals and constitutional institutions, between government
and
the Congress Party, and between the central and state govern
ments.
The central and state governments and Parliament battled
with the
Supreme Court over fundamental rights issues: freedom of
expression
vis-a-vis national integrity; personal liberty vis-a-vis political
stability;
special treatment for some segments of society vis-a-vis
equality for
all; property rights vis-a-vis social revolutionary needs.
The most
fundamental struggle was between Parliament and the Suprem
e Court
over custody of the Constitution, the central issue being
whether
Parliament's power of amendment was complete and
unrestrained.
Because these substantive themes and their treatm
ent by rival
constitutional institutions would persist over decades,
their beginnings
 Prologue 9

are treated in considerable detail, and this part is consequently rather

longer than others.
Part II covers the period from 1966 to 1973, the beginning of Indira
Gandhi's long years as Prime Minister. The relationship of the
democracy and social revolutionary strands of the web—how much of
either ought to be sacrificed for the other—was again an intense issue,
accompanied by Mrs Gandhi’s employment of the controversy in her
personalization of power. The renewed battle—and such it was—over
the fundamental issue of the separation of powers became bitter as the
executive branch and Parliament on the one hand, and the Supreme
Court on the other, claimed to be the final authority for constitutional
interpretation.
Part III deals with twenty months during 1975-1977, the period of
the internal emergency and unitary government that has come to be
called Mrs Gandhi’s Emergency. During this time, democracy was
extinguished, personal liberty and the other fundamental rights
suspended, legitimate political opponents kept under preventive
detention, and the opportunity taken further to subvert democracy
through amending the Constitution. Again, the judiciary and the
government were in confrontation. With only a few exceptions, the
courts lost—but they survived.
Part IV recounts the events of the twenty-seven months from the
spring of 1977 to the summer of 1979. Indira Gandhi, for reasons still
obscure, called elections in 1977 only to be defeated, and the country’s
first coalition government—theJanata Party, which was an amalgam of
half a dozen parties—came to office riding a wave of revulsion against
the Emergency. A victim of rampant factionalism and personality
conflicts, the government fell, but not before it had restored democracy
by amending the Constitution to repair the worst damage done to it
during the Emergency. The coalition’s lingering death raised the
question, for the first time since 1950, of the President's power, as a
constitutional head of state in a parliamentary system, to appoint a prime
minister from among contenders.
PartV covers the years from 1980 tu 1985, from Mrs Gandhi's return
to office, upon winning the parliamentary elections of 1980, to Rajiv
Gandhi becoming Prime Minister upon his mother’s assassination. The
principal motif of the period was how best to preserve national unity
and integrity: groups within the states of Punjab and Jammu and
Kashmir declared independence from India as their goal, and many
state governments and non-Congress parties—resen tful of Mrs Gandhi's
over-centralization of authority—challenged the distribution of powers
 10 Working a Democratic Constitution
between the central government and the state governments, both as
laid down in the Constitution and as practised. The belief grew among
political practitioners and observers during this time that decentralization
of authority would strengthen rather than weaken national unity.
Part VI is devoted to national unity and integrity and to the
constitutional machinery for centre-state relations. Although the subject
has been discussed in each part (centralization versus decentralization
of authority will be seen to be a thread running from 1950 to 1985) it
seems useful to gather together the major issues and themes from earlier
chapters and augment them with fresh material in a section of the book
dedicated to the subject, rather than discussing it in each part. This
would become unduly repetitive.
Part VII contains the Conclusion.
This narrative account of the working of the Constitution ends in
1985, although mention is made of a few important constitutional
developments thereafter. Indira Gandhi’s departure from politics
ushered in a new era. The Congress Party’s dominance lasted only
four
more years, until Rajiv Gandhi was defeated as Prime Minister. Since
then, a series of insecure governments have held office in New
Delhi—
and also in many states. But the institutions of the Constitution
are
stable and have continued to undergird national governance.
The Indian Constitution is a live document in a society rapidl
y
changing and almost frenetically political. The touchstone
for public,
and many private, affairs, the Constitution is employed daily,
if not
hourly, by citizens in pursuit of their personal interests or
in their desire
to serve the public good. The working of the Constitution
so fully
expresses the essentialness of the seamless web and so comple
tely reveals
the society that adopted it that its study truly is a windo
w into India.
 Part I

THE GREAT CONSTITUTIONAL

THEMES EMERGE, 1950-66

[India must have a] socio-economic revolution ... [to achieve] the real
satisfaction of the fundamental needs of the common man... (and) a
fundamental change in the structure of Indian society.
Sarvepalli Radhakrishnan!
The Constitution ... [could be] both unitary as well as federal according
to the requirements of time and circumstances.
B. R. Ambedkar?

(W)e have all derived from the British Parliament, and we still continue
to derive inspiration from its proceedings, from its history ... (and) from
its traditions.
Rajendra Prasad*

[Article 368 empowers Parliament to amend the Constitution] without

any exception whatever.
Patanjali Sastri*

1 CAD, vol. 2, no. 1, pp. 269-73.

2 Ibid., vol. 7, no. 1, pp. 33-4.
3 President Prasad to the Commonwealth Parliamentary Conference, New Delhi,
December 1957. Speeches of Dr Rajendra Prasad, 1957-1958, Ministry of Information and
Broadcasting, Government of India (hereafter GOI), New Delhi, p. 110.
4 The Chief Justice of India giving the Supreme Court's decision in Shankan Prasad
Deo v Union of India 1952 (3) SCR 106.
5 >
= TSire
= ~org
 Chapter |

SETTLING INTO HARNESS

‘Hail Our Sovereign Republic... A Day of Fulfilment ... Good wishes

from Far and Near ... Rejoicings All Over’ said banner headlines in the
Hindustan Times on 26 January 1950. Three years of debate and drafting
had come to fulfilment with the Constitution’s inauguration. ‘Today
India recovers her soul after centuries of serfdom and resumes her
ancient name’, enthused the newspaper’s editorial. But there was a
shadow. Two days later would be the second anniversary of the
assassination of Mahatma Gandhi, the ‘father of the nation’.
The festivities began mid-morning when Governor General C.
Rajagopalachari (who had succeeded the last British Viceroy, Lord
Mountbatten) actually announced the establishment of the republic.
As ‘5,000 railway locomotives sent out shrieks of joy’, Federal Court
Chief Justice Harilal Kania administered the oath ofoffice to Rajendra
Prasad, who two days eariier the Dominion Parliament cum Constituent
Assembly had elected President—nominated by Nehru and seconded
by Sardar Vallabhbhai Patel. Then, Prasad, ‘neatly dressed in a grey
achkan, grey pyjama and a white Gandhi cap’ received Jawaharlal
Nehru’s ‘ “loyalty and fealty to this Republic of which you are the head”’
as the first Prime Minister under the Constitution. Rajendra Prasad
then administered the oath of office to the cabinet, to the Speaker of
the Lok Sabha, to Harilal Kania, as Chief Justice of the new Supreme
Court, and to his fellow justices. The country’s new government was in
place.!
Thus began the great enterprise of nationhood to which the Congress
Party had so long been dedicated. The date had been chosen because
on 26 January 1930 the party had adopted the ‘Pledge Taken on
Independence Day’, dedicating itself to Indians’ ‘inalienable nght ...

! Article 381 of the Constitution, which was repealed in 1956, provided that ministers
in the Dominion (pre-constitutional) government should continue in office until any new
ministers were appointed. With the Constitution in place, Nehru believed a new government
should be constituted under Article 75, and he resigned on his own and his government's
behalf and formed a new government, with some of the same ministers, in early May 1950
The members of the Supreme Court were the judges of the just-defunct Federal Court.
 14 Working a Democratic Constitution

to have freedom ... [and] complete independence’.* Although the

country had been independent since August 1947 and coping with
myriad difficulties, new constitutional institutions and tools now both
augmented and restricted government authority. Preserving the
seamless web necessarily involved the government in public affairs more
than previously, and citizens, by habit looked to government for
leadership. The Directive Principles of State Policy exhorted the
government, and other provisions of the Constitution imposed upon
it, the responsibility to pursue the social revolution and to protect
minorities. The Fundamental Rights enjoined government both to
protect rights and not to infringe them. State and central government
power to legislate and Parliament’s power to amend the Constitution
now were subject to judicial review. The Supreme Court had become
the ‘apex court’. No longer could appeals go to the Privy Council in
London as they might have from the Federal Court. The central
government had vast powers to intervene in state government affairs.
There was an entirely new institution, a constitutional head of state,
the President. Shortly, there would come into existence two vitally
important commissions, Finance and Planning. Government, including
the national civil service, now was responsible for economic development,
not merely for collecting taxes and maintaining order.
Self-governing and democratic, government and citizenry both were
confronted with the great issues arising from the Constitution’s goals,
and that would persist over the years: How could authority be central-
ized enough to enhance national unity and to promote economic de-
velopment without alienating subordinate levels of government and
stultifying local initiative? How, while applying the rule of law, would
social-economic reform be fostered and democratic institutions strength-
ened in a huge society in which religion and tradition sanctioned in-
equality and exploitation? How would government achieve these and
other national goals—indeed, how would it govern—when the law,
the
courts, and administration failed to reach so many citizens effectively?
Under these general issues, Nehru and his ministers would be asked to
resolve concrete questions: How would the government further land
reform and the uplift of disadvantaged citizens when the Constitution’s
fundamental rights to property and to equality before the law impeded
both? How would it protect national integrity and political stability
from
seditious speech and subversive action while also protecting
freedom
2 For the full text of the pledge, see Nehru, Jawaharlal,
An Autobiography, The Bodley
Head, London, 1958 (reprint), p. 612.
 Settling Into Harness 15

of speech and personal liberty? How would it pursue national develop-

ment using the constitutional machinery of centre-state relations? How
could the parliamentary system be made to work for the good of the
poor as well as the rich? Playing their respective roles, the institutions
of the Constitution cooperated and found themselves in conflict over
these matters: the state governments versus the central government,
executives versus legislatures, and, most especially, legislatures and ex-
ecutives in conflict with the judiciary. These momentous battles would
shape the Constitution’s working and the country’s democracy.
This chapter briefly will provide the broad context for the early years
as government and citizenry settled into harness. Then it will discuss
the adjustments leaders and institutional centres of authority made in
their respective powers as they tackled the problems confronting them.
Subsequent chapters will describe major constitutional amendments,
institutional conflicts, and the other issues and themes that would
emerge during the Nehru years and bloom perennially on the national
agenda.

The Broad Context

Prime Minister Nehru’s new government was born into urgency. Twenty
bills awaited attention in Parliament, and on 28 January 1950 the railway
budget, second in importance only to the national budget, was to be
considered. Problems of unity and integrity loomed large: Jana Sangh
leader S. P. Mookerjee risked relations with Pakistan, if not war, by calling
for the annulment of partition, and national integrity was threatened
in the Northeast, the Punjab, and Kashmir. Issues of ‘secularism’, so
important to the new democracy, attracted attention nationally. There
were complaints that the Constitution was insufficiently ‘Hindu’ to suit
the country’s needs, and the Hindu Code Bill generated bitter controversy
within and outside Parliament. National economic policy had to be set.
The 1948 Industrial Policy Statement, foretelling increased government
involvement, would be followed in 1950 by the formation of the Planning
Commission and its drafting of the First Plan. The first linguistic state,
Andhra Pradesh, would be established in 1953, and within a few years
many state boundaries would be drawn along linguistic lines. Refugees
streaming into West Bengal from East Pakistan, and those who had fled
West Pakistan and still were encamped around New Delhi, strained food
and shelter resources and were a constant reminder of partition’s
bloodbath. Famine existed in eight districts in Madras due to the failure
of the northeast monsoon. Cloth prices had to be controlled, and sixty
 16 Working a Democratic Constitution

thousand sugar mill workers went on strike in Uttar Pradesh. Governments

were unstable in several states, upsetting Home Minister Patel especially.
Maintaining law and order figured regularly in internal government
discussions.° Preparing for and holding the first general elections under
the Constitution was an enormous task. House-to-house surveys
registered 173 million adult voters on election rolls. Forty-six per cent
of those registered voted in the election—held from October 1951 till
March 1952—to give the Congress Party a massive victory in Parliament
and the state legislatures. The Congress Party had passed its first test
under the Constitution: winning an election by preparing electoral slates
of attractive candidates.* The elections were conducted fairly, although
Jayaprakash Narayan, the Gandhian socialist and erratic conscience-
keeper of Indian politics, doubted they could or would be.°
The government’s and the public’s mocd was a compound of
elements: optimism and idealism about national renaissance; awe at
the responsibilities assumed; hope that economic and social reforms
would succeed quickly enough to preempt popular revolt; awareness
that internal Congress fractiousness could hamper effective government,
as it had when the party had governed in the provinces from 1937 to
1939; fears that democracy and (even centralized) federalism would

3 For example, during the Conference of Governors on 18 March 1950 and annually
in subsequent conferences. Proceedings, in the H. K. Mody and K. M. Munshi Papers,
Nehru Memorial Museum and Library (hereafter NMML).
A bright spot was India’s victory over a Commonwealth cricket team by seven wickets.
4 Congress contested nearly all of the 489 seats in the Lok Sabha and gained 364 of
them. The Communist Party of India won sixteen seats, the Socialist Party twelve, Acharya
Kripalani’s Kisan [Peasant] Mazdoor Praja Party nine, and nineteen smaller parties and
a few independents the remainder. In the state legislatures, Congress won more than
2,200 of the more than 3,200 seats, allowing it to form governments in twenty-one states.
Election data from Butler, David, Lahiri, Ashoke, and Roy, Prannoy, Jndia Decides:
Elections 1952-1991, 2nd edn., Living Media Books, New Delhi, 1991, p. 74. See also The
Pilgrimage and After, All India Congress Committee (hereafter AICC), New Delhi, 1952,
and Kogekar, S. V., and Park, Richard L., Reports on the Indian General Elections, 195 1-52,
Popular Book Depot, Bombay, 1956, tables 1 and 3. There are small variations in the
figures reported.
5 He wrote to Nehru on 30 May 1950 that unless ‘very special efforts’ were made and
“strict measures adopted’, the elections ‘would never be fair’. There would be
‘intimidation, violence and dishonesty of every kind’—all this ‘considering
the moral
tone of the Congress organization and the Congress ministries ...’. It seems
that the
Election Commission will function ‘merely as the secretary of a new
department of
government’, he wrote, (The commission was part of the Law Ministry.)
Narayan added
that he was convening the representatives of the important opposition
parties to make
suggestions about election monitoring so the people might not lose
faith in the honesty
of the elections. Jayaprakash Narayan Papers, Jawaharlal Nehru File,
NMML.
 Setthng Into Harness 17

not prove viable in India’s endless diversity. Congress Party general

secretary Shankarrao Deo, for example, thought democracy a ‘theoretical
concept’, for we are a “politically immature people’. But he vowed to
try to make it work.® Both leaders and the politically aware public
understood that India was conducting its ‘experiment with democracy’
under the glare, the pressure, of international attention in the modern
world of rapid communications and conflicting ideologies. On no
account dared they fail.’
Circumstances also were propitious for the new Constitution. The
trinity of acharismatic national leadership, a mass party, and effective
civil services, plus the already functioning legislatures, executives, and
courts, gave representative democracy a head start. The leaders in the
states and New Delhi, forged by the independence movement, were
believers in the seamless web: confirmed democrats, advocates of social
and economic reform, and nationalists with broad perspective. Nehru,
the English-educated, Brahmin patrician from Allahabad was the
impatient democrat and national nanny. As Nehru was wont to quote
Robert Frost, he had miles to go before he slept. Once he wrote, ‘““a
little twist and Jawaharlal might turn into a dictator sweeping aside the
paraphernalia of aslow moving democracy”’,® but he did not, and the
socialist Nath Pai described him as ‘a great idealist whose faith in and
loyalty to democracy are unimpeachable’.? Nehru had the Congress
1951 election manifesto say, ‘The achievement of economic and social
justice must proceed side-by-side with economic progress. Thus alone
can social peace and democracy be preserved.’!° Deputy Prime Minister
and Home Minister Sardar Vallabhbhai Patel, from the Patidar caste of
small peasants in Gujarat, like Nehru trained in the law in England,
and, like Nehru and Rajendra Prasad, Gandhi’s close associate, was a
no-nonsense man, a political boss in the most constructive sense, whose
staff was devoted to him because he encouraged their frank memoranda.

© From the draft of an article submitted for publication to the Hindustan Times,
undated, but early fifties. Shankarrao Deo Papers, File S26, NMML.
7 For an insightful account of these by a most felicitous writer about India, see Morris-
Jones, W. H., The Government and Politics of India, Hutchinson University Library, London,
1964. For a different sort of excellent study, see Frankel, Francine R., India’s Political
Economy 1947-1977, Princeton University Press, Princeton, NJ, 1978.
8 Nehru writing about himself in 1937 under the pseudonym Chanakaya. Cited in
Mukherjee, Hiren. The Gentle Colossus, Oxford University Press, New Delhi, 1986 (1964),
p. 222.
9 Pai to an enquiring member of the British Parliament when visiting London. Nath
Pai letter to Nehru dated 24 April 1956. Nath Pai Papers, Jawaharlal Nehru File, NMML.
10 Election Manifesto, AICC, New Delhi, 1951, p. 6.
 18 Working a Democratic Constitution

He believed in ‘giving two chappatis to a peasant when he only had

one’.!! President Rajendra Prasad, a Kayastha from Bihar and
sometime advocate of the Calcutta High Court, spoke of the ‘silken
bond’ between British and Indian parliamentary democracy and the
need to empower villagers by giving greater scope to panchayats.!2
Vice-President and later President, Sarvepalli Radhakrishnan, a Telugu
Brahmin from Madras, wrote that adult suffrage ‘is the most powerful
instrument devised by man for breaking down social and economic
injustice and destroying the walls that imprison men’s minds’.!3 With
rare exceptions, opposition political leaders and parties spoke for
democracy. For them, it was both a philosophical belief and a tactical
necessity if they were to have influence and to gain power. By 1956,
even the Communist Party of India (CPI) had given up its ‘open
hostility to government ... bordering on open revolt’ and declared
that to ‘play its rightful role as the builder and spearhead of the
democratic movement... it must act as a Party of Opposition in relation
to the present government’.!4
Inevitably, there were conflicts, over issues of great magnitude,
among strong leaders, and among the Constitution’s institutions. These
were resolved through adjustments in power relationships, personal
and institutional, and through establishing constitutional practices and
adopting conventions from the Constitution’s sources, especially from
Britain and the United States.

Power Relations and Adjustments

Of the many sortings-out of power, themselves part of the
context of
the time, this chapter briefly will examine six, for they took
place over
ll H.V.R. lenger, sometime Secretary of the Consti
tuent Assembly and Home
Secretary under Patel. Oral History Transcript, p. 167,
NMML.
12 Inaugural speech to the Commonwealth Parliamentar
y Conference, 2 December
1957. Speeches of Dr Rajendra Prasad, 1957-] 958, pp. 110,
114.
13 Radhakrishnan, ‘Forward’ in{Shiva Rao, B.,
The Framing of India’s Constitution: A
Study, The Indian Institute of Public Administrati
on/N. M. Tripathi Pvt. Ltd., Bombay,
1968. This volume is accompanied by four volumes of
documents.
14 “Open hostility’ from Communist Violence in India,
Ministry of Home Affairs, GOI,
New Delhi, 1949, p. 56. CPI ‘rightful role’ from ‘Politi
cal Resolution’, CPI 1956, cited in
Overst reet, Gene D., and Windmiller, Marshall, Communism in India, University of
California Press, Berkeley, CA, 1959, p. 322.
Nehru said that the government had no inten
tion of Opposing the preaching
of any political or economic theory. He defen
ded several young communist scientists
in Calcutta from those opposing their freed
om of expression. But the CPI sees libert
y
 Settling Into Harness 19
the issues occupying these early years. Because neither the great issues
nor the power relationships embroiled with them would be permanently
resolved, we shall see more of them later in this book.

THE PRESIDENT AND THE COUNCIL OF MINISTERS

Here, the conflicts between the leader of the government, Prime
Minister Jawaharlal Nehru, and the head of state, President Rajendra
Prasad, went to the heart of India’s Westminster Model Constitution.
And they were at once substantive, institutional, and personal. Nehru
would have preferred C. Rajagopalachari as the first President, but he
nominated Prasad for the post in deference to party discipline. He would
have preferred Radhakrishnan to a second term by Prasad in 1957.!5
Nehru thought Prasad intellectually inferior and an obscurantist on
religious matters. They clashed over Prasad’s objection, on astrological
grounds, to 26 January as the date to inaugurate the Constitution, over
the Hindu Code Bill (more below), and over Prasad’s decision to
inaugurate the rebuilt Somnath Temple in Gujarat.!© Their official
relations, however, were correct. Nehru briefed Prasad weekly, if not
more often; they corresponded frequently and substantively. Nehru

as including the ‘freedom to murder, maim, pillage and sabotage’, he said, citing
Communist Violence, p. 57.
15 patil, S. K., My Years with Congress, Parchure Prakashan Mandir, Bombay, 1991,
pp. 76-7; and Gopal, Sarvepalli, Jawaharlal Nehru, 3 vols, Oxford University Press, New
Delhi, 1979ff, vol. 2, p. 77. The Bombay tabloid Blitz reported in June 1949 the
competition between Prasad and Rajagopalachari for the presidency, and during that
autumn Nehru, Sardar Patel (who some believed also favoured Rajagopalachari), and
Prasad exchanged letters full of irritation about the matter. Durga Das, Sardar Patel’s
Correspondence, 1945-1950, 10 vols, Navjivan Publishing House, Ahmedabad, 1973ff,
vol. 8, pp. 195-227.
Nehru believed that Prasad would not desire a second term in office in 1957, for
Prasad had expressed the wish, in 1955, to retire. Nehru had then dissuaded him. In
1957, Prasad was reluctant to leave office, and several Congress leaders, Maulana Azad
especially, wanted him to be a candidate against Nehru’s desire to have Radhakrishnan
move from Vice-President to President. On 31 March 1957, the Congress Parliamentary
Board settled on Prasad as the party’s candidate for President, and Radhakrishnan,
although miffed by the party’s decision, agreed to a second term as Vice-President. One
of his reasons, speculated his biographer, was that retirement might have meant ‘joining
the long line of extinct volcanoes in Madras’. Gopal, Sarvepalli, Radhakrishnan, Oxford
University Press, New Delhi, 1989, p. 292. For his account of the 1957 presidential
nomination, see pp. 287-92.
y 16 Gopal, Nehru, pp. 77, 155. Nehru wrote to the chief ministers that the inauguration
of the temple ‘with pomp and ceremony’ went against ‘our protestations about the secular
state’. Letter of 1 August 1951. Nehru, Jawaharlal, Letters to Chief Ministers (hereafter
NLTCM), vol. 2, Oxford University Press, New Delhi, 1989 (reprint), p. 462.
 20 Working a Democratic Constitution
leaned on Prasad for advice, according to Prasad’s secretary, Vishwanath
Verina.!’ But Prasad came ‘to think that even his advice was not sought
on many matters’, recalled a cabinet minister of the time.!8
Their sharp confrontations over the powers of their respective offices
occurred because Prasad read the Constitution literally, attributing to
the presidency greater authority than that of the nearly-powerless head
of state under the Westminster Model.!9 He had shown this inclination
even while the Constitution was being drafted by writing to the
Constituent Assembly’s ‘Constitutional Advisor’, B. N. Rau, that he did
not find in the draft constitution a provision ‘laying it down in so many
terms’ that the President would be bound to act upon the advice of his
ministers.*° Within two months of his becoming President, Prasad wrote
a three-page paper entitled ‘Questions relating to the powers of the
President under the Constitution of India’. Among the questions were:

17 Vishwanath Verma Oral History Transcript, p. 17, NMML.

18K. Santhanam, Oral Ilistory Transcript, p. 33, NMML.
19 For the framing of the Consiitution’s provisions for the President and for the
executive branch, see Austin, Cornerstone, ch. 5, especially pp. 132ff.
The President's powers are given in many articles in the Constitution of which several
have been more controversial than others. Article 53 provides that the executive power
of the Union and supreme command of the defence forces shall be vested in the President.
Article 74 provides for a council of ministers headed by the Prime Minister ‘to aid and
advise the President in the exercise ofhis functions’; Article 75 says that the Prime
Minister
shall be appointed by the President and the other ministers by the President
on the
advice of the Prime Minister; Articles 76, 148, and 324 say that the President
shall appoint
the Attorney General, the Comptroller and Auditor General of India, and
the Chief
Eiection Commissioner and other commissioners. Articles 338 through 342
impose on
him responsibilities for the welfare of the Scheduled Castes and Tribes and
backward
classes. Article 77 provides that all executive action by the government be
taken in the
name of the President. Article 79 establishes that Parliament includes
the President and
Article 80 that the President nominates twelve members of the
upper house, the Council
of States. The President summons Parliament and assents to bills
it enacts. Articles 124
and 217 empower the President to appoint the justices of the Supreme
Court and the
high courts. Under Article 143, the President may request an advisory
opinion from the
Supreme Court. He appoints governors of the states under Article
155, the members of
the Finance Commission under Article 286, and the Union Public
Service Commission
under Article 316. This is not all. Part XVIII of the Constitutio
n bestows a variety of
emergency powers on the President.
For early commentary on presidential powers, see Gledhill, Alan,
The Republic of India,
Stevens and Sons Ltd., London, 1951, and Alexandrowicz, Charles Henry, Constit
utiona!
Developments in India, Oxford University Press, London, 1957.
29 Austin , Cornerstone, p. 135. Prasad was then Presid
ent of the Constituent Assembly
when it wore its constitution-making hat. The Speaker
chaired the Constituent Assembly
(Legislative) when functioning as the Provisional Parlia
ment.
 Settling Into Harness 21

Does the Constitution contemplate any situation where the President

‘has to act independently’ of his ministers? What are the implications
of the President being head of the armed forces in regard to
appointments, discipline, and their use? Has the President any voice,
apart from that of his ministers, in the appointment or the activities of
many of the officers he appoints??! It is uncertain to whom Prasad sent
his questions.?* But his paper reached Attorney General Setalvad.
Setalvad’s ‘Observations by M. C. Setalvad’ responds point-by-point to
Prasad’s questions and clearly is directed to them. The essence of his
six pages of observations was in his points two and three. ‘The President
has by virtue of Article 74, in the exercise of his functions—all functions
whatsoever—to be aided and advised by a Council of Ministers,’ read
point two. Said point three, ‘By the Constitution the President is
required to act in all matters with the aid and advice of this Council
... The moment the President refuses to accept its aid or advice there
will be a breakdown in the constitutional machinery.’*? No doubt this
paper reached the President and the Prime Minister and, most likely,
other cabinet members.

21 Paper dated 21 March 1950. Choudhary, Valmiki (ed.), Dr Rajendra Prasad:

Correspondence and Select Documents, vol. 12, Allied Publishers Ltd., Bombay, 1984ff, pp.
278-80. Prasad also asked if the President, ‘on his own account’, could return a reserved
bill to a state legislature or make suggestions about it. He asked if the President could be
in direct contact with ministry secretaries. For reasons still obscure, the cabinet had asked
Attorney General M. C. Setalvad on 14 February 1950 aboui the President’s powers when
assenting to state legislation, specifically a zamindari abolition act. (See ch. 3, footnote
63.) Coincidentally, Governor Asaf Ali in Orissa wrote to Nehru on 4 March 1950 asking
if governors must acton the advice of their ministers even if the advice ‘militates’ against
the Constitution. Ibid., p. 129.
22 HN. Pandit in his The PM’s President, A. Chand and Co., New Delhi, 1974, appendix
[, says it was a ‘note’ from Prasad to Nehru, but he provides no ground for asserting this.
23 Paper dated 6 October 1950. Choudhary, Prasad: Correspondence, vol. 12, p. 281.
Setalvad concluded his response by saying that the positions of the King in England
and India’s President were ‘analogous’ and that both the King and the President had ‘a
discretion in selecting the PM and in dissolving Parliament either at the instance of the
PM or when he feels that there is a potent disharmony between the policy of the ministry
and public opinion’. This would be ‘an exceptional case and very unlikely to arise’, wrote
Setalvad. Ibid., pp. 285-6. The time lapse between Prasad’s questions and Setalvad’s
response is strange and unexplained.
Setalvad strongly made the points again in the Hamlyn Lectures delivered at Lincoln's
Inn in 1960, and he had held these views consistently. See Setalvad, M. C., The Common
Law in India, N. M. Tripathi Pvt. Ltd., Bombay, 1970 (reprint).
Subhash C. Kashyap in his History of the Parliament in India, vol. 2, Shipra Publications,
New Delhi, says that Prasad also sought Setalvad’s views on 27 March 1950, but he does not
indicate the source of this information or the substance of the President's enquiry (p. 46).
 22 Working a Democratic Constitution

Prasad persisted. In August 1950, he wrote to Deputy Prime Minis-

ter and Home Minister Sardar Patel asserting that the President could
advise ministers ‘not on matters of detail but generally on matters of
policy’. He wished, therefore, to have a senior staff person to inform
him ‘if there is any matter in which I should have a discussion with
ministers’. Prasad also told Patel, as he had said in his ‘Questions’, that
he read the Constitution as providing that the Comptroller and Audi-
tor-General of Accounts and the Chief Election Commissioner reported
directly to the President, who then submitted their reports to Parlia-
ment.*4 Twelve days after writing this letter, Prasad wrote to Nehru ap-
parently questioning elements of the Bihar Zamindari Abolition Bill
and expressing his reluctance to assent to it. The following year, Prasad,
having received an information copy of a note for the cabinet about
the First Amendment abolishing zamindaris, sent his own note of criti-
cisms to the cabinet. When the enacted amendment went to him for
assent in June 1951, Prasad expressed doubt regarding its constitution-
ality, and he asked the great constitutional authority Alladi Krishnaswami
» — Ayyar if, so thinking, it was his duty to sign the bill. Ayyar informed him
"that he must sign. (This is discussed in detail in chapters 3 and 4.)
Confrontation over presidential powers flared again, in Septem-
ber 1951, over the Hindu Code Bill. In this omnibus measure, aspects
of Hindu personal law—marriage, divorce, succession, inheritance,
property and women’s rights—were to be ‘secularized’, i.e. made part
of the uniform civil code called for in the Directive Principles of State
Policy. Three days after discussing the bill with Nehru, Prasad wrote
him a letter in which he argued that a Parliament, elected to frame a
constitution and to govern the country only until general elections
were held, should not enact such a bill even though it was legally
competent to do so; that the bill was ‘highly discriminatory’ in that it
was confined to Hindu law and did not include Muslim law; and that
Hindu law was evolving in ways making legislative changes unneces-
sary, whereas the Bill would force ‘revolutionary changes’ in Hindu
life, thus creating conflict. Turning to his role as President, Prasad
said that he would watch the Bill and send Parliament a message about

241 etter of 27 August 1950. Rajendra Prasad Collection, File 42, National Archives
of India (hereafter NAI). The letter and note appear also in Prasad:
Correspondence, vol.
14, pp. 104, 292-7. Sardar Patel’s reply is not available.
Prasad’s staff, one assumes on his instructions, drew up a list of ‘Functio
ns assigned
to the President under the Constitution’. It was seven-and-a-half pages
long. Ibid., vol.
12, pp. 415fF.
 Settling Into Harness 23

it if he thought this appropriate. Moreover, ‘(M)y right to examine it

on its merits when it is passed by Parliament before giving assent to it
is there.’ He added that he might take action ‘consistently with the
dictates of my own conscience’ so as to avoid embarrassment to the
government.>°
Nehru responded the same day to these ‘serious matters of great
constitutional importance’. He described the Bill as very moderate and
said that the Speaker had ruled Parliament competent to pass it.
Continuing, Nehru said, ‘(T)he President has no power or authority ...
(in our view) to go against the will of Parliament in regard to a bill that
has been well considered by it and passed ... . Otherwise the question
would arise as to whether Parliament is the supreme legislative authority
in this country or not.’ Concluding, Nehru advised the President that
in this session only those portions of the Bill dealing with marriage and
divorce would be passed. Nevertheless, he would place the letter and
note before the cabinet.*° Although he was correct on the constitutional
issue, Nehru’s anti-religious ‘secularism’ prevented him from appreciating
the Hindu values ‘which were the essence of Prasad’s character’ .2/ |
Meanwhile, Nehru had consulted Setalvad and Alladi Krishnaswamy
Ayyar in Madras for their views. Setalvad responded that ‘by Article
74(1), the President is required to act in all matters with the aid and
advice of his Council of Ministers.’*8 Ayyar replied that it was ‘perfectly
clear’ that the President’s position is analogous to that of a ‘constitutional
monarch in England... and there is no sphere of his functions in respect
of which he can act without reference to the advice of his ministers.’29

25 The letter, dated 15 September 1951, was classified “Top Secret’. Nehru sent a
copy of it and his reply to certain members of the cabinet with the request to keep the
papers ‘absolutely secret’. Hare Krushna Mahtab Papers, First Installment, Subject File
20, NMML. The letter appears in Choudhary, Prasad: Correspondence, vol. 14, pp. 104-6.
Kashyap in his History of Parliament, vol. 2, p. 46, says that Prasad wrote to Nehru on
18 September 1951 ‘armed with the Attorney General’s opinion’. The President, it seems
to the author, misread several of Setalvad’s individual points (in his ‘Observations’) and
found Setalvad’s tone, overall, inaudible.
26 Nehru’s letter to Prasad of 15 September 1951. Choudhary, Prasad: Correspondence,
vol. 14, pp. 104-6.
27 Vishwanath Verma Oral History Transcript, p. 18, NMML.
28 Letter dated 24 September 1951. A. K. Ayyar Papers—in the possession of K. M.
Munshi when the author inspected them. This letter is cited in Austin, Cornerstone, p. 141.
29 Letter dated 20 September 1951. A. K. Ayyar Papers, ibid. Ayyar followed this
74
letter with another on 8 October 1951, expanding on the first letter. He said Article
on
was ‘all-pervasive’, and that the President ‘seems to read every Article of the Constituti
 24 Working a Democratic Constitution
Nehru conveyed these opinions to the cabinet, adding his own view
that the President’s [indirect] election ‘makes no difference’ in his
powers compared to those of the hereditary monarch in Britain. Were
the President to act contrary to the advice of his ministers, said Nehru,
‘such action must inevitably lead to the resignation of the Council of
Ministers who have the confidence of Parliament’. Nehru told the
cabinet that he was sending the note for information, because the Hindu
Code Bill was not likely to come up for decison ‘in the near future’ 29
The issue did indeed become moot, for conservative resistance to the
omnibus Bill delayed enactment until 1956, and by then it had been
divided into several bills.3! As for legal opinion rejecting his authority
to deny assent to the Hindu Code Bill, the President ‘lumped it’.32
Prasad set the presidential fox among the constitutional geese again,
in 1960. Speaking at the laying of the foundation stone for the Indian
Law Institute, New Delhi, on 28 November, he said he would like to
have a study prepared examining ‘the extent to which and the matters
in respect of which, if any, the powers and functions of the President
differ from those of the Sovereign of Great Britain’. Echoing his letter
to B. N. Rau of twelve years earlier, he noted that the Constitution
contained no provision ‘which in so many words’ laid down that the
President was bound to act on his ministers’ advice. Because Indian
and British conditions varied, he said, ‘it may not be desirable
to treat

in which the word ‘President’ appears as conferring powers

upon the President in his
personal capacity without reference to the Cabinet’. Ibid., p.
142.
Ayyar also expressed the apprehension that if the Preside
nt could act other than on
the advice of his ministers, governors, also, might break
loose from the conventions
containing their powers. Both these opinions were
later published by Alladi
Krishnaswami’s son in Ayyar, Alladi Kuppaswami, A Statesm
an Among Jurists, Bhartiya Vidya
Bhavan, Bombay, 1993, pp. 307-17.
39 The note is headed ‘Prime Minister's Secretariat’,
signed ‘J. Nehru’, and dated 25
September 1951. Hare Krushna Mahtab Papers, NMML.
31 BR, Ambedkar, the Law Minister, resigned from the cabinet over what he
considered Nehru’s half-hearted efforts on behalf
of the Bill. One of Nehru’s chief
supporters in the cabinet, N. Gopalaswami Ayyangar,
Minister of Transport and Railways
and formerly a distinguished member of the Consti
tuent Assembly, favoured holding
the Bill over until after the general elections.
Nehru acceded to the wisdom of
postponement. When pressed to act by Mrs
Renuka Ray, long-time Congresswoman,
member of the Constituent Assembly, and minist
er of the West Bengal government in
the mid-fifties, Nehru asked if she trusted him
to pick the time, for he wanted the Bill’s
passage as much as she. Mrs Ray agreed, Renuk
a Ray Oral History Transcript, pp. 35ff,
NMML.,
32 HV. R. lengar Oral History Transcript, p.
157, NMML.
 Settling Into Harness 25

ourselves as strictly bound by the interpretations which have been given

from time to time to expressions in Engiand.*?
Editorial reaction to the speech tended to favour Prasad’s position.
‘Itwould be unwise to accept mechanically any convention ... [established
in Britain] without first exposing it to the test of reason and relevancy,’
said the Times of India.** The ‘general effect’ of the Constitution was to
vest in the President authority to ‘enforce more mature deliberation of
important questions of policy’, said the Hindustan Times.>° Organiser,
the organ of the militantly Hindu Rashtriya Swayamsevak Sangh (RSS),
called the speech a ‘welcome bombshell’ and expressed appreciation
for Prasad’s stand on the Hindu Code Bill.°° The CPI weekly, New Age,
however, thought the President’s raising the issues ‘very questionable’
and said that the Prime Minister should tell the nation that the
President’s view of his powers was ‘not consistent’ with the Constitution.>”
Asked ata press conference two weeks later for his reaction to the speech
and if it had been made with the advice of the cabinet, Nehru answered
that ‘we did not know anything about it until it was delivered.’ He added
that he doubted that ‘the President himself attached much value to
this point’, for ‘the President has always acted as a constitutional head.’*®
Contention over presidential powers declined after May 1962, when
Radhakrishnan was elected to succeed Prasad. A piquant exception came
with the widespread clamour for the resignation of Krishna Menon,
Minister of Defence and Nehru’s close friend, who was blamed for
India’s defeat in the war with China in 1962. Nehru, personally
devastated and politically weakened by the defeat, manoeuvred in a
manner suggesting that he either wished to delay Menon’s resignation
or to transfer responsibility for it to Radhakrishnan. Radhakrishnan
wrote to Nehru that ‘“as you said”’ we have to accept Menon’s resignation,

33 Speeches of Dr Rajendra Prasad, 1960-61, GOI, New Delhi, 1962, pp. 164-6. One
doubts that personal ambition lay behind Prasad’s remarks. His presidency would end
after two more years. Nehru was said to believe that Prasad had been advised by K. M.
Munshi that the President was not bound by the advice of his ministers.
Munshi had been active in establishing the Indian Law Institute and, according to an
authority, intended to have it serve as a ‘think tank’ for the newly formed Swatantra
Party.
34 Issue of 1December 1960.
35 Issue of 2December 1960.
36 Issue of 5December 1960.
37 Issue of 4December 1960.
38 Jawaharlal Nehru’s Speeches, 5 vols, Ministry of Information and Broadcasting, GOI,
New Delhi, 1949-68, vol. 4, pp. 100-1.
26 Working a Democratic Constitution

but the decisive pressure really had come from the President. ‘Certainly
the recognised procedure of the President acting on the advice of the
Prime Minister was reversed,’ wrote Radhakrishnan’s biographer.*?
Tongue in cheek, Rajagopalachari, by this time leader of the opposition
Swatantra Party, recommended that the Constitution be amended so
that the Prime Minister should act on the advice of the President.*°

WITHIN THE COUNCIL OF MINISTERS

Power relations within the executive branch, excluding the presidency,
divide neatly into two periods: from the inauguration of the
Constitution (indeed from independence) until Sardar Patel’s death
in December 1950, and from then until Nehru’s passing. Close
associates of Mahatma Gandhi (along with Rajendra Prasad) for some
thirty years during the independence movement, Nehru’s and Patel’s
personal relations ranged from near-rupture to cordiality and mutual
admiration. Second in rank to Nehru as Deputy Prime Minister, but
in reality co-equal, and one pledged (to Gandhi) to support Nehru,*!
Patel led the Home Ministry—which controlled central police forces

39 Gopal, Radhakrishnan, p. 315.

40 Tbid., p. 317. Bhupesh Gupta of the CPI, although friendly with Radhakrishnan,
wrote to Nehru protesting the President’s interference in policy-making. Nehru did not
reply. Ibid.
Radhakrishnan stirred Delhi’s rumour pot in 1963 with some remarks to the American
Ambassador, Chester Bowles, which his biographer describes as joking, that upon Nehru’s
departure from office, the President might take temporary charge of government, set
policy and administration right, and then step aside for a democratically chosen Prime
Minister. Ibid., p. 328. The New York Times printed the rumour, and an aide-de-camp of
the President during his first year in office gave credence to it in a book (Datta, C. L.,
With Two Presidents, Vikas Publishing House, New Delhi, 1971), which Radhakrishnan, in
retirement, called a tissue of lies.
Presidential powers reappeared controversially several times during Indira Gandhi's
terms as Prime Minister and once during the Janata interregnum. As will be seen in later
chapters, the conventions of parliamentary government weakened, but did not disappear.
Two amendments would write into the Constitution previously tacit conventions about
presidential powers: one would require the President to assent to any constitutional
amendment enacted by Parliament; the other that he ‘shall’ act on the advice of his
ministers.
41 Gopal, Nehru, vol. 2, p. 89. What predictably would have been a critical conflict
within the cabinet, between the Prime Minister and Deputy Prime Minister, was avoided
because Sardar Patel died in December 1950. In 1948, each had set out his view of the
position of the Prime Minister. Briefly, Nehru held that ‘ “the PM should have full freedom
to act when and how he chooses, though of course such action must not be an undue
interference with local authorities who are immediately responsible ...”.’ Durga Das,
Paiel’s
Correspondence, vol. 6, pp. 18-19, as cited in L, P. Singh, Office of Prime Minister;
Retrospect
 Settling Into Harness 27

and was the channel for the states’ official communications with New
Delhi. If Nehru was charismatic and determined and, it proved,
politically skilled, Patel was iron-willed, a great administrator, and
widely revered by the public and within the party. Their clashes took
place largely over social revolutionary and administrative issues, as
will be seen in greater detail in later chapters. On property rights,
both favoured zamindari abolition, but Patel argued for relatively
better compensation for expropriated property. He sympathized with
the country’s industrialists while Nehru, as a socialist, disparaged and
distrusted them. Patel preferred to deal with the country’s social
structures as they were;*2 Nehru wished to overturn them. Patel feared
that the rapid changes in society that Nehru desired would endanger
political stability and perhaps national integrity.49 After having enticed
and pressured the princely states into a unified India, Patel was anxious
that Nehru’s tinkering with the princes’ privy purses and privileges
not queer the arrangements. On the issue, he and Nehru arrived at
an agreement satisfactory to both.*4
With Patel’s death in December 1950, Nehru was freed from the
restraint of the ‘duumvirate’. But he still had to negotiate policies with
talented and strong-minded colleagues. He had to persuade his prickly
Finance Minister, C. D. Deshmukh, from resigning. Discipline was so
imperfect that ‘even where cabinet decisions have been reached, our
cabinet colleagues or even Ministers of State (sometimes) do not feel
bound by them.’*? The strongest curb on the Prime Minister’s arbitrary
use of power came from Nehru himself. He both fought and yielded to
‘the slow elephantine movements ... of democratic methods’, recalled
long-time peasant leader and Congressman N. G. Ranga.*° He had to
fight against ‘the eagerness of his colleagues to leave all making of policy
to him’ and as the years passed against the increasing reality that the
central government ‘was basically a one-man show’.47

the
and Prospect, Centre for Policy Research, New Delhi, 1995, p. 4. Patel acknowledged
Prime Minister’s ‘pre-eminence’ but thought ‘“he has no overriding powers over his
colleagues”.’ Ibid., p. 5.
42 Shankardass, Rani Dhavan, Vallabhbhai Patel, Orient Longman Ltd., New Delhi,
1988, p. 12.
43 K M. Munshi Oral History Transcript, p. 22, NMML.
vol. 8, pp. 597ff.
44 For their exchange ofletters, see Durga Das, Patel’s Correspondence,
Works, Mines and Power, N. V. Gadgil, on 22 August
45 Sardar Patel to the Minister of
1949. Ibid., p. 606.
Lok Sabha
4% &§ reminiscence in Journal of Parliamentary Information (hereafter JP/),
Secretariat, New Delhi, 1986, vol. 32, no. 2, p. 283.
47 Gopal, Nehru, vol. 2, pp. 303-4.
 28 Working a Democratic Constitution

Ambivalence toward power was part of Nehru’s humanity. He en-

joyed power, used it to pursue his vision of the national good, and could
play rough to vanquish political opponents. Yet, lonely and anxious
about affairs in the Congress and the constitutional issues of liberty
and property (See chapter 2), he wrote in April 1951 to several ‘old
friends’ seeking ‘frank discussion’ because ‘whatever ... our present
differences, [we] have functioned for many years in the Congress ...
and ... [we] know each other well’. The talks were to be ‘private and
informai’.48 Thrice, Nehru either contemplated resigning from the
prime ministership or spoke of it openly. The first occasion came only
four weeks after he took his oath under the Constitution. Worried about
relations between government and the Congress Party and about In-
dia—Pakistan relations, especially ‘in the Bengals’, he wrote to Sardar
Patel in February 1950, ‘I am quite convinced that I could serve the
cause of cur country much better today in a private capacity than in
the public office I hold.’49 Patel responded the following day, saying
that he could appreciate Nehru’s sense of oppression, ‘but we should
do nothing which would make confusion worse compounded.’>°
Nehru spoke again of resigning in the autumn of 1954, when
he was both Prime Minister and Congress president (which he had
been since 1951). This time, the context included constitutional
amendment, Congress party in-fighting, and Minister of Education
Maulana Azad’s blocking of Krishna Menon’s appointment
to the
cabinet, which greatly upset him.5! He mentioned his physica
l and
mental weariness to the Congress Parliamentary Party
(CPP), to the
chief ministers, and to the presidents of the Provinc
ial Congress
Committees (PCCs).°? He turned for counsel to Lal
Bahadur Shastri,
the able diplomat ofinternal party affairs who would
succeed him as
Prime Minister, and to Morarji Desai, then Chief Minister
of Bombay.
48 Quotation from the 13 April 1951 letter
to Sampurnanand. Sampurnanand
Collection, File A-75, NAI. Other recipients of
the letter were Pandit G. B. Pant, B. C.
Roy, B. G. Kher, Morarji Desai, Nabakrushna
Chaudhuri, A. N. Sinha, S. K. Sinha, D. P.
Mishra, H. K. Mahtab, G. L. Nanda, and Rafi Ahme
d Kidwai. No record of the discussion,
if one was kept, is available.
¢
cbsLetter dated 20 February 1950. Durga Das,
Patel’s Correspondence, vol. 10, p. 5.
59 Thid., p. 6.
51 Gopal, Nehru, vol. 1, p. 224,
ne To the chief ministers in a letter of 1
October 1954. NLTCM, vol. 4, p. 55. To
PCC presidents in ‘Dear Comrade’ letter the
that he enclosed with his letter to chief
of | October 1954, minis ters
Ibid., pp. 65-8.
53 U.N. Dhebar : Ora! History
. :
Transcript, p. 67, NMML. Dhebar replaced Nehru
president of the Congress, as
 Settling Into Harness 29

Close cabinet colleague and Minister of Commerce and Industry, T. T.

Krishnamachari, wrote to Nehru that he recognized that Nehru no
longer could share burdens with Patel and that Nehru’s ‘efforts to
create an inner cabinet bore littie fruit’. Lighten your burdens,
Krishnamachari enjoined, but ‘pray do not give in to your present
mood,’ for there was risk of government falling into ‘unsuitable hands
... if you remove yourself from your present sphere of activities’.*4
Nehru’s final gesture toward leaving office came in his peculiar
suggestion that he take a prime ministerial sabbatical. In April 1958, he
informed the Parliamentary Party that he wished to leave the prime
ministership temporarily to free himself to think ‘“as an individua!
citizen of India and not as Prime Minister ... 1am anxious to fit myself
for the great tasks ahead, and I feel that it might help me to do so if lam
away from the centre of activity and responsibility.” °° The CPP resolved
on | May that it could not accept the ‘“severance”’, even temporary,
‘“of the ties binding Nehru to the party and the government” ’.°® Again,
cabinet colleagues wrote to Nehru, protesting that tne country voted
Congress into power ‘because they wanted you to be Prime Minister’ .°”

54 Letter dated 11 October 1954. T. T. Krishnamachari Papers, Jawaharlal Nehru

File, 1954, NMML.
Ravi Shankar Shukla, then chief minister of Madhya Pradesh, wrote to Nehru from
Nagpur on 5 November 1954 that, in view of the burdens on him, Nehru might ‘appoint
some senior statesman as Deputy Prime Minister who could assist you’. And Nehru might
include ‘younger persons with a fresh outlook and energy’ to assist in administration.
But ‘the country can ill-afford to lose the benefit of your leadership and guidance even
temporarily ...’. Jawaharlal Nehru Papers as received from M. O. Mathai, Ravi Shankar
Shukla File, NNVML.
55 Nehru’s writien statement dated 29 April. NLTCM, vol. 5, p. 40, editor’s
footnote 3.
56 Jb id. In the ‘Points for Discussion’ paper for the AICC meeting of 10-12 May
1958, Nehru said two things were troubling him: the ‘fall in standards of public behaviour
and job-hunting mentality ... At the base of these lie lust for power. We are not new to
power. There is a natural love of power to do good ... [which] is different from the
unnatural power clothed with a superfluous [sic] desire ta be useful to society.’ AICC
Papers, Working Cominittee Proceedings, Item 3791, NMML. This document gives 3
May as the date Nehru decided against resigning.
57 Personal and confidential letter from Minister of Scientific Research and Cultural
Affairs Humayun Kabir, dated 2 May 1958. Humayun Kabir Papers, Indira Gandhi File,
NMML.
B. Shiva Rao wrote to Nehru on 2 May opposing the temporary withdrawal. ‘May |
with all frankness suggest you withdraw completely and unconditionally to give your
successor fullest freedom. If you want later to come back to active politics, this can be
only as Prime Minister, and that place is yours the moment you feei the time is appropriate
...’. B. Shiva Rao Papers, Jawaharlal Nehru File, NMML.
30 Working a Democratic Constitution
is difficult to interpret.
Indira Gandhi’s response to her father’s whim
him, she said, ‘Having once
In a letter written after a conversation with
to go back to the
suggested giving up the prime ministership is it wise
yone sees things
status quo? ... So much is rotten in our politics that ever
unable to
through his own avaricious myopic eyes and is quite
that
understand nobility or greatness. There will therefore be a feeling
you ... were only bluffing.’>8
It seems that Nehru threatened to resign three other times, but
that these were tactical. Two were over controversies within the Congress
Party: the Tandon affair in 1950 (see below) and when he threatened
to resign from the Congress’s Central Parliamentary Board over a state
party matter in 1951. In 1950, he used the threat of his own resignation
and that of his government to force President Prasad’s assent to the
Bihar Land Reforms Act (See chapter 3).°%

THE COUNCIL OF MINISTERS AND PARLIAMENT

Parliament was Nehru’s natural habitat, one whose health and strength
he strove to secure. His personal popularity, his position as Prime
Minister and leader of the Lok Sabha, and Congress’s seventy-five per
cent majority there made his dominance complete. Nevertheless, ‘as
soon as he entered the House, he brought grace and eloquence along
with him’, Although ‘impatient in his first reactions to any criticism ...
not to his liking, ... he was always ... receptive to useful representation’
remembered Hukum Singh, Deputy Speaker of the Lok Sabha oan
1956 to 1962 and Speaker from 1962 to 1967.© In addition to his own
instincts, Parliament’s sense of its own significance and the spectru
m
of opinion within the CPP, which could deny him
the votes to enact a
measure, (witness his failure to push through the Hindu
Code Bill)
constrained him from riding roughshod over it.
Moreover, in the bask
Sabha’s first Speaker, G. V. Mavalankar, Nehru Ww
individual of strong
: ch aracter and |great populari ty,as dealing with an
whose dedicati on
to a strong Parliament matched his own. For instance, in Novemb or
1950 Mavalankar protested to Nehru abou
t the égovernment’s ‘inherentl
undemocratic’ practice
practi at
of promulgating ; y
ordinances instead of bringing
o%Letter dated 1 May 1958. Gandhi, Sonia (ed.), Two Alone, Two Toge
Indira Gandhi and Jawaharlal Nehru, ther: Pa
1940- 1964, 2 vols, Hodder
& Stoughtoner
, Lopa
ndon
1992, vol. 2, p. 623.
59 Gopal, in his Nehru, vol. 2, p. 15 8,¢
alled res
resiign
gniing Nehru’s‘ ‘favourit
political difficulties. e remedy’ fo r
60 Hukum Singh Oral History Tran
script pp. 121 -5, NMML.,
 Settling Into Harness 31

bills before Parliament.®! Twenty-one ordinances had been promulgated

that year, he wrote to Nehru, and, justifiable or not, a large number of
ordinances gave the undesirable psychological impression that
‘governmentis carried on by ordinances’. Parliament sensed it was being
ignored, and the impression was created ‘that it desired to commit the
House to a particular legislation’, Mavalankar said.* Nehru responded
that all his colleagues would agree and that ordinances should be
reserved for ‘special and urgent occasions’. But Parliament’s procedures
were slow and ‘important legislation is held up’.®? Ordinances for
executive convenience seem to have made their appearance, and a bad
example set.
The imbalance in the power equation in Parliament between the
Prime Minister and his ministers on the one hand, and opposition
parties on the other, greatly concerned both sides, for all appreciated
the importance of a healthy opposition to the proper functioning of a
democracy. ‘When one party remains always in power and dissent is
dissipated among unorganized individuals and relatively insignificant
groups, which do not and cannot coalesce, government will inevitably
become totalitarian,’ thought C. Rajagopalachari.®4 As the Praja Socialist

6! Under Article 123 of the Constitution, the President may promulgate ordinances,
which have the force of law, when either house of Parliament is not in session. An
ordinance expires six weeks after Parliament resumes sitting, and often is replaced by an
identical Act.
62 Cited in Presidential Ordinances 1950-1984, Lok Sabha Secretariat, New Delhi, 1985,
p. iv. Mavalankar had said to the presiding Officers’ Conference in 1947 that it was wrong
of the executive branch to promulgate ordinances merely ‘for want of time, as
inconvenient legislation might also be promulgated in that manner’. Ibid.
63 |
etter dated 13 December 1950. Ibid., p. v. Nehru and Mavalankar exchanged letters
in 1954 in much the same terms. Ibid. Mavalankar’s anxieties were well-founded, although
the Nehru government’s ordinances declined to ten in 1951 and never again rose above
nine for the year, for future prime ministers would use the ordinance power heavily.
On 28 July 1954, Rajendra Prasad wrote to the Prime Minister saying that he had
been told a cabinet-approved ordinance was coming to him for signature. However, if
the matter could linger in ministries since May 1953, ‘I think it could well have waited for
another four weeks’ until Parliament would be in session. ‘(R)ightly, objection is taken
to recourse to ... [ordinances] where they can well be avoided’. Choudhary, Prasad:
Correspondence, vol. 17, pp. 331-2.
64 Rajagopalachari, C., Our Democracy, B. G. Paul & Co., Madras, 1957, p. 1.
K. M. Munshi, as Governor of Bombay, wrote to Seth Tulsidas Kilachand on 12 October
1952 that if you and Shyama Prasad Mookerjee will work together, ‘it will lay the foundation
of a responsible opposition which we badly need. At present, the distinction between
those who want to destroy parliamentary government and those who constitute
parliamentary opposition is being blurred. It is not a wholesome thing for the country.’
Munshi Papers, File 130, p. 230, NMML.
 32 Working a Democratic Constitution
Party (PSP) opened its election campaign in Patna in February 1957,
Acharya Kripalani and Jayaprakash Narayan called for building a
single opposition party. You can’t ask the people to vote for the opposition
if there isn’t one, said Kripalani. Desiring a functioning opposition to
strengthen parliamentary government, Nehru repeatedly ‘cajoled’
Narayan to enter Parliamentand lead one.® Narayan repeatedly declined
to do so. Later, as will be seen, he and Nehru corresponded about Narayan
joining the government, but this would come to naught.
Yet, the opposition parties were not powerless, even as the Congress’s
legislative engine steamed ahead. They fulfilled an opposition’s role as
critic and, in combination with opposition to Nehru within the Con-
gress, could act as a brake on legislation and government programmes.
But, frustrated by the impotence brought on largely by their own per-
sonal and doctrinal fractiousness, they resorted to ritualistic
charges of
~ Congress ‘corruption’ and ‘authoritarianism’ and to employing
‘extra-
parliamentary’ methods, turning the methods used to oppos
e imperial
power against Indians’ freely elected governments,|
‘In the interests of
orderly progress, the people’s right to civil disobedien
ce must be recog-
nised as much as the government’s right to arrest
and imprison under
due process of law,’ the Socialist Party
asserted. Instead of the alterna-
tives of parliamentary government
or an exclusively insurrectionary
path, the party ought to choose a
balanced mix of constitutional ac-
tions and civil
resistance where necessary, said its
president.©© The gov-
ernment reacted with righteous
dismay that Indians would use
legitimate in the context of foreign rule agains tactics
t their own leaders,®7
By the mid-seventies, this behaviour
would endanger the democracy
was intended to protect. it

THE EXECUTIVE AND THE JUDICIARY

The relationship p betwee
een these branches of gover‘ nment
mutually respectful and was at once
highly conflicted. The res
pect was between
®5 Nehru, B. K., Nice Guys Finish Second,
P enguin Books, Ne
B. K. Nehru was the Prime Minister’s cousin. w Delhi, 1997,
Pp. 516
66 The quotation and the
sentence following are fro
Manifesto’, Socialist Party, Hydera m respectively,
bad, 1957, p. 6; and the spee ‘Election
Lohia gave at the party’s founding ch president Ram
conference, 28 December 19 Manohar
3] December 1955-6 January 1956, p. 609, 55, Hindu, q
voted in AR,=
67K. M. Munshi, then Governor
of Uttar Pradesh, wrote to the Chie
Pant, on 12 November 1953 that the f Mini
central soevernment needed ‘ ¢
‘making hunger-strike a cognizable offence’, K. M. Munshi Pape eae G. B.
r % ype legislation
File 143, NMML. 4pers, Microfilm Box 56,
 Settling Into Harness 33

the individuals involved and the institutions. The conflict was over
the constitutionality of legislation and the Supreme Court’s power of
judicial review. (See forthcoming chapters, especially 2 and 4.)
Nehru would rail at lawyers and stamp his foot at the courts; yet he
did not denigrate thejudiciary as a vital institution in a democracy,
nor did he attempt to tamper with its independence. He supported
it. Instead, he would lead Parliament to amend the Constitution to
nullify the effect of Supreme Court interpretations. With Nehru’s
departure from the scene, the respect would disappear and the conflict
intensify.

THE CENTRAL GOVERNMENT AND THE STATE GOVERNMENTS

From the outset, this was a power relationship between unequals. (We
shall return to it often in later chapters and particularly in Part VI.)
The central government held the purse strings and had powers bestowed
by the Constitution’s centralized federalism. Anxious, equally, to
preserve the country’s unity and integrity and to develop it economically
and socially, central government leaders augmented the constitutional
structure with sub-structures for national economic planning and
development. Although there was considerable grumbling among the
state governments at New Delhi’s distribution of centrally collected
revenues and its sometimes unwise uses of power, in general
centralization of economic and political authority was accepted as
necessary to national goals. The Congress Party’s parallel federal
structure provided channels fo. both enforcement of, and negotiations
over, central government authority. Because state chief ministers and,
somewhat less so, presidents of the Provincial Congress Committees
had their own power bases, centre-state relations could be described
by W. H. Morris-Jones as ‘bargaining federalism’.

WHICH WILL GOVERN—THE CONGRESS PARTY OR THE GOVERNMENT?

One of the most important power struggles took place, constitutionally

speaking, off-stage, between ‘wings’ of the Congress Party, i.e. between
the government, or legislative, wing and its organizational wing. At is-
sue was whether government in the country should be directed by con-
stitutionally elected officials—the council of ministers and Parliament
at the centre and, analagously, state ministries and legislatures—or from

For a thorough and insightful study of Parliament and the political culture in which
it functioned, see Morris-Jones, W. H., Parliament in India, Longmans Green and Co.,
London, 1957.
34 Working a Democratic Constitution

behind the scenes by political functionaries and the party apparatus.

Nehru, supported by the CPP and elements in the organizational wing,
made sure that the legislative wing dominated the organizational wing.
This was to serve the legislative wing, not the other way around. Nehru S
election as president of the Congress Party in September 1951 while
continuing as Prime Minister doubly assured legislative dominance. The
chief minister’s ascendancy over the PCC would become the pattern in
the states, too, although in the Punjab, the Central Provinces, Madras,
and Travancore—Cochin the struggle was prolonged.
The victory of the legislative wing in the 1950s strengthened the
democracy and the social revolutionary strands of the seamless web.
The socialists and secularists gained from it to the disadvantage of the
cultural, social, and economic conservatives, although the fight between
socialists and communists and the economic conservatives would
continue for decades. Another result was that the party—to a limited
degree—was nudged in the Gandhian direction of a social service
organization, for the Working Committee and Nehru and U. N. Dhebar
when party presidents, put their weight behind the party’s ‘Constructive
Programme’. For many Congress members, however, politics and office-
seeking proved to be more appealing than ‘constructive work’, to the
dismay of the central leadership.®
The first power struggle between the party’s ‘wings’ took place in
1947. Acharya J. B. Kripalani resigned from the party presidency
complaining that the cabinet and the Congress Parliamentary Party
does ‘not feel that the government at the centre is a Congress
government. After August 15 [1947] ... [it] seemed to make a distinctio
n
between Congress and the national government’.®? Nehru had then
explained, in a note to Kripalani and others, that the need for
quick
action and sometimes secrecy precluded consultation with the
Working
Committee as a customary procedure. It was a matter
of the ‘freedom
of the government to shape policies and act up to them within
the
larger ambit of the general policy laid down
in the Congress
Resolutions’, Nehru said,”9

68 Party documents often deplore the ‘gree

d for office’ among party members. The
PCCs and the Constructive P rogramme Commi
ttee were ‘to stimulate the initiative of
the people themselves ... [and] to help the
people in securing the advantages which a
popular and represent ative government are
bound to provide.’ AICC Circular 27, dated
9 july 1947 to all PCC s and Constructive Organization
s, Hare Krushna Mahtab Papers,
File 7, NMML.
69 In a letter to Rajendra Prasad
dated 2] Dece mber 1947, Austin, Corne
7 Note dated 15 July rstone, p. 16.
1947. Ibid.
 Settling Into Harness 35

The issue reappeared in 1950. In September that year, Purushot-

tamdas Tandon, a conservative who differed from Nehru on econom-
ic issues, the use of Hindi, and policy toward Muslims (whereas Kri-
palani had shared Nehru’s secular and socialist outlook) was elected
Congress president. Nehru consented to join the Working Commit-
tee, but he was affronted when Tandon appointed his own supporters
as the other members, and he was infuriated by Sardar Patel’s sup-
port for Tandon. The party faced both an ideological and procedural
schism, and the dispute simmered into the summer of 1951. Tandon
wrote to Nehru that ‘the Prime Minister and his cabinet are responsi-
ble to the Congress and have to carry out policies laid down by the
Congress from time to time.’?! Nehru replied with his decision to
resign from the Working Committee and the party’s Central Election
Committee. He wrote to the chief ministers that he had taken the
step despite the obvious risks, hoping ‘that ultimately it would bring
some clarity in our thought and actions ... . The major problem has
seemed to me ... how to bring about some kind of communion be-
tween those in government or outside, who give the lead, and the
masses of our people. That lead has to be realistic.’’2 Mediation of
the dispute failed, and Tandon finally capitulated, resigning from the
party presidency.’* The AICC elected Nehru party president; he now
had to play a dual role which he disliked on institutional grounds.
Later in the autumn, the Congress Plenary Session passed resolutions
embodying Nehru’s economic and social policies, confirming ‘the pre-
eminent role of the Prime Minister and reinforced’ the boundaries of

71 Letter of 6 August 1951. Kochanek, Stanley A. The Congress Party in India, Princeton
University Press, Princeton, NJ, 1968, p. 45. Fora detailed account of this affair, see ibid.,
ch. 2.
When Pattabhi Sitaramayya retired from the Congress Presidency in 1948, he wrote
that the conception of the Congress as a parallel government had ceased to be relevant.
Both the legislative and executive functions of the nation were now being performed by
a popular government. Ibid., p. 24.
72 Letter dated 19 August 1951. NLTCM, vol. 2, pp. 475-6.
73 AP. Jain, then Minister of State for Rehabilitation (of refugees from Pakistan),
wrote to Nehru on 7July 1951 that ‘The suggestion that the parliamentary activities of
the Congress should be divorced from the normal organizational activities and placed in
your hands as the leader of the Parliamentary Party is well-worth considering.’ A. P.Jain
Papers, Subject File 1, NMML.
Biswanath Das, then president of the Utkal (Orissa) Provincial Congress Committee,
urged that the Congress constitution be amended to allow the leader of the CPP to be
the ex-officio president of the Congress, with parallel arrangements in the states, because
power had passed from the Congress to the CPP. Hindustan Standard, 9 September
1951.
36 Working a Democratic Constitution

the office of Congress president, which had been revealed once more
as limited strictly to organizational affairs with no special responsibil-
ity for policy-making’.”4

The Nehru Years Reviewed

These were the years of creation, and much that occurred during them
presaged developments to come. These tendencies, incipient trends,
may be mentioned as we proceed into other chapters about the Nehru
period, for they would gain significance under future prime ministers.
Nehru, himself, set the tone. Nation- builder, reformer, ardent democrat,
and flawed administrator, he and his colleagues tried to do everything
at once. The very newness of national independence and the oldness
of the country’s needs created an atmosphere of impatience in which
error and pettiness sometimes sullied the reigning humane and
democratic spirit. The generation of men and women who had helped
India attain independence had to make it work. Civic and social
responsibility were the ideais, and making the legal-constitutional
system function properly for its own health and for the common good
was the rule rather than the exception. But in their earnestness for
achievement, central government leaders would take on too much
responsibility, overcentralizing and blunting local initiative.
The confrontations between the executive and Parliament on the
one hand, and the courts on the other, over social reform legislation
and other laws impinging on the Fundamental Rights, which were a
distinguishing characteristic of the period, would result in restrictions
on the courts’ reach. Property began its career as the most divisive social

74 Kochanek, Congress Party, v. 53. The Tandon affair is also described in Gopal,
Nehru, vol. 2, ch. 8.
In the states, the tensions produced by PCC attempts to influence the ministrie
s
found no remedy but time. Congress president Pattabhi Sitaramayya suggested
that the
governments brief PCC leaders on their legislative programmes and that PCC president
s
become ex-officio, non-voting members of legislative parties, but the chief ministers
rejected
the idea, and with it the PCC presidents’ suggestion that ministers hold office
on the
PCCs’ sufferance. Conference of PCC presidents and secretaries [with
central party
leaders], 17 May 1949. Report of the General Secretaries, January 1949-September
1950, Indian
National Congress, New Delhi, 1950, pp. 60-6. When the same suggestio
n was made
later, Nehru personally scotched it, By 1953, Nehru was hoping
that conventions could
be established for consultations between chief ministers and
PCC presidents. Tensions
were reduced, but relations between the PCCs and governme
nts continued to range
from uneasy to combative. See Kochanek, ( vongress Party,
especially ch. 10 for his descrivtion
of state-level affairs.
 7« apace’ Prete, So ce »
De fuse 4 hela sista

y saelORe ls.

Settling Into Harness 37

issue. Although conflict with the judiciary would be eonfined narrowly

to areas of reform !egislation, the example would be insidious. This
tendency to amend the Constitution to limit judicial jurisdiction would
develop into a predilection for undermining judicial powers broadly
and even into attacks on thejudiciary as an institution.
Good intentions thwarted by reality may become pretentions. These
appeared in the Nehru years as the Congress realized it was not fulfilling
its social revolutionary promises, and promissory rhetoric substituted
for action. The faith that the central government could propose and
dispose on economic affairs blinded the ‘planners’ to diversities of many
kinds and to the necessity for monitoring implementation against
intention. The faith in the efficacy of a centralized economy later would
erode elements of the Constitution.
Trying to do what the nation needed, Nehru and his generation
initially created tensions in the seamless web, many of which had
subsided by the close of the period. It is difficult to imagine how it could
have been otherwise. Citizens’ expectations were high; their leaders’
were higher. But the successes of the period were fundamental: power
relationships were sorted out constitutionally; the parliamentary system
became entrenched; democracy not enly survived Nehru’s charisma,
popular participation strenghtened it; power was democratically
transferred from one prime minister to another twice in sixteen years;
one-party government combined internal party democracy and political
variety with preserving national unity and integrity; the foundation was
laid for an industrial economy and the social revolution set in motion.
This was no golden age, but the Nehru years set standards against which
others would be measured—and many fall short.
 Chapter 2

FREE SPEECH, LIBERTY, AND PUBLIC ORDER

Soon after the Constitution’s inauguration, India added its name to

the long list of democracies whose constitutional ideals were tested
against the government of the day’s perception of national needs. The
seamless web’s three strands came under strain, and the cause seemed
to be incompatibilities among them. To resolve these, was there genuine
need to sacrifice one strand for the benefit of another? Nehru, his
ministry, and the Parliament had their views; the judiciary had its
interpretation of the Constitution, and the two branches disagreed
sharply during the years of getting started. Protecting national integrity
through preserving political stability was thought to be in conflict with
the democratic rights to freedom of expression and personal liberty.
The social revolutionary goals of the Directive Principles of State Policy
were found to conflict with the right to property. Several provisions of
the Fundamental Rights conflicted among themselves and with the
Constitution’s provisions for remedial treatment of disadvantaged
citizens.
During the Nehru years, remedies for these conflicts were sought,
in part, through the First, Fourth, Sixteenth, and Seventeenth Amend-
ments to the Constitution. Each of these amendments was a multi-
purpose affair, and it will be less confusing to take them up not all at
once in a group, which is how participants at the time reacted to them,
but according to the subjects in their provisions. Hence, this chapter
first will discuss freedom of speech and expression as treated in the
First and Sixteenth Amendments. It will conclude with a burning issue
of personal liberty covered by the Fundamental Rights, preventive de-
tention, although instituting preventive detention did not involve
constitutional amendment. Chapter 3 will open by giving the ¢
background of property issues followed by Beir Becenane notion
Amendment. It will conclude with the amendment’s provisions that
deal with remedial treatment for disadvantaged citizens, variously called
positive discrimination and compensatory discrimination. Two more
property amendments, the Fourth and the Seventeenth, are the sub-
jects of chapter 4. Chapter 5 is devoted to the judiciary, whose rulings
 Ant

Free Speech, Liberty, and Public Order 39

so often led to the amendments, and chapter 6 to the uses of the Con-
stitution’s provisions that deal with centre-state relations in the service
of national unity and integrity. !
Although it will take us far ahead of the story, it may add clarity to
sketch the course of the great confrontation that was now beginning
between Parliament and the Supreme Court over guardianship of the
Constitution. The issues were: which institution was supreme in
interpreting the Constitution, in deciding what changes could be made
to it, and what could lawfully be done under it. The government would
learn the aptness of Chief Justice of India Harilal Kania’s remark that
‘different parts of the Constitution will act and react on each other and
the Court will have to decide questions arising from such a situation’.*
And it would be told, by his successor Patanjali Sastri, that when the
courts exercised the power of judicial review of legislation they would
not be tilting ‘at legislative authority in a crusader’s spirit, but in
discharge of a duty plainly laid upon them by the Constitution’?
Parliament under Nehru would revise laws in response to judicial
decisions, and it would amend the Constitution to preclude judicial
Vreview of legislation, particularly legislation affecting property takings
and compensation for them. This was constitutional, for Article 368
had given Parliament amending authority without specifying any

! The Constitution may be amended (Article 368) by passing a bill by a majority of y

the total members of each house and not less than two-thirds of those members present
and voting. If the bill changes either Article 368 or other, in general, ‘federal’ provisions
of the Constitution, it requires ratification by one-half the number of state legislatures.
Assent by the President then completes the process. Strictly speaking, the two-thirds
majority is necessary only at third reading, but ‘by way of caution’ this majority applies to
all stages of the arnending bill. Amending bills may be introduced in either house of
Parliament, but government amendments are by convention introduced in the Lok Sabha.
Kashyap, Subhash (ed.), M. N. Kaul and S. L. Shakdher Practice and Procedure of Parliament,
Lok Sabha Secretariat/ Metropolitan, New Delhi, 1991, p. 542.
Parliament may change the delineation of the country’s states, which in fact alters
part of the Constitution, but this is done by law and is not to be ‘deemed’ a constitutional
amendment even though it is called such (Articles 3 and 4). For example, States Reor-
ganization took effect through the Seventh Amendment (see ch. 6).
Only the amendments significantly affecting the Constitution or important institutions
operating under it are discussed in this book. The many that are of a drafting character
or whose content is largely administrative—some two-thirds of all amendmen ts—will not
be considered.
2 Kania, inaugurating the Supreme Court on 26 January 1950. 1950 (1) Supreme Court
Reports (hereafter SCR) 7.
Row.
3 Sastri, giving the majority opinion on 31 March 1952 in State of Madras v V. G.
AIR 1952 SC 199.
 40 Working a Democratic Constitution

/ \imitation, and the Supreme Court in 1951 had upheld this position.4
Yet placing certain laws beyond judicial scrutiny (see chapters 3 and 4),
although understandable when keeping jin view the web’s social!
revolutionary strand, diminished democracy*by lessening the co-equal
status of the courts and started the country toward far more extensive
and dangerous efforts to quarantine thejudiciary. By 1964, particularly
with regard to the Seventeenth Amendment (chapter 4), anxiety had
mounted that the CPP was playing fast and loose with judicial review.
Three years later fear prevailed, and the Supreme Court ruled that
Parliament’s amending power was limited: the Fundamental Rights (Part
Ul of the Constitution) could not be touched (see chapter 8). This
decision also said that, from the beginning, Parliament had zot had
unfettered power of amendment. Six years later, after Parliament had
attempted to restore, as its members saw it, its unlimited amending
power (the Twenty-fourth Amendment, chapter 10), the Supreme Court
again ruled the amending power limited: the Constitution’s ‘basic
structure’ was not to be changed. Three years after this, during the
Emergency, Indira Gandhi’s autocratic government amended the
Constitution to bar judicial review of amendments and much legislation
(chapter 17).

Freedom of Expression
Article 19(1) (a) in the original Constitution guaranteed the fundamen-
tal right to ‘freedom of speech and expression’ subject to the qualifiers
in clause 2: the government’s authority to legislate concerning libel,
slander, defamation, contempt of court, any matter offending decency
and morality, “or which undermines the security of or tends to over-
throw, the State’.°

4 In Shankari Prasad Deo v Union of India. 1952 (3) SCR 106. The court would uphold
this ruling in Sajjan Singh’s case in 1964 (see ch. 4).
These positions were in accord with sentiment in the Constituent Assembly, where,
for example, Aliadi Krishnaswami Ayyar had warned against a judiciary that would
» |‘function as a kind of super-legislature or super-executive’. CAD, vol. 11, no. 9, col. 837.
He said that the judiciary’s job was to ‘interpret the Constitution’ and its ‘proper
functioning (depended] upon the cooperation of the other two [branches}]’. Ibid,
” Other ‘freedoms’ protected by Article 19, with certain restrictions, were the freedom
to assemble peaceably and without arms, to form associations, to move freely within the
country, to reside anywhere in the country, to acquire and dispose of property, and to
practice any profession and carry on any business. More will be heard of these freedoms
and the restrictions on them contained in other clauses of Article 19.
 Free Speech, Liberty, and Public Order 41

Early in 1950 three state governments invoked these qualifiers to

curb freedom of expression. In Bihar, the government challenged a
political pamphlet as inciting violence. In East Punjab, the government
imposed pre-censorship on an English-language weekly in the name of
maintaining public safety and order. In Madras, the government banned
the entry into the state of the journal Crossroads. Each state took action
under some version of a ‘Public Safety Act’, and each defendant turned
for protection to the first clause of Article 19.
The Patna High Court rejected the Bihar government’s contention
that the pamphlet incited violence.® But, despite this, Patna’s decision
had a catalytic effect when it was found that Justice Sarjoo Prasad’s ruling
included his view that ‘if a person were to go on inciting murder or
other cognizable offences either through the press or by word of mouth,
he would be free to do so with impunity’ because he couid claim freedom
of speech and expression.’ Nehru would use this assertion when
defending the First Amendment in Parliament.
The East Punjab Public Safety Act, 1950, was struck down in the
Supreme Court—by the same bench that decided the Crossroads case—
on the ground that pre-censorship restricted liberty of the press.8 The
Madras incident in its effect proved the most significant of the three.
Crossroads was, for all practical purposes, a communist publication, and
Romesh Thapar, its publisher, and his wife, Raj, “were known as
communist party members, though we never held party cards’.! It first
had been published in April 1949, the year the Madras government
declared the Tamilnadu, Andhra, Kerala, and Karnataka communist
parties unlawful organizations.!? Thapar took the Madras government's
action to the high court contending that his freedom of expression
had been infringed. He then appealed to the Supreme Court under
Article 32, which gives the Court original jurisdiction in fundamental

© The Supreme Court unanimously upheld the Patna High Court’s judgement in
State of Bihar v Shailabala Devi 1952 (3) SCR 654ff. The five-member bench comprised
Mehr Chand Mahajan, Patanjali Sastri, Bijan Kumar Mukherjea, S. R. Das and Vivian
Bose. The narrow issue was the constitutionality of the Indian Press Act (XXIII of 1931),
which was upheld.
7 ‘In re Bharati Press’ AIR 1951 Patna 21.
8 In Brij Bhushan v State of Delhi AIR 1950 SC 129ff.
9 Thapar, Raj, All These Years, Seminar Publications, New Delhi, 1991, p. 87.
10 Charge Sheet Against the Communists, Director of Information and Publicity,
Government of Madras, Madras, 1949, p. 1. This publication noted that the Second
Congress of the CPI in 1948 adopted a revolutionary programme ‘on the ground that
the conditions in the country were ripe for staging a revolution’. Ibid.
42 Working a Democratic Constitution
rights disputes. On 26 May 1950, the court decided the Crossroads
case by ruling the Madras Maintenance of Public Safety Act, 1949,
unconstitutional. The majority ruling said that ‘unless a law restricting
freedom of speech and expression is directed solely against undermining
the security of the State or the overthrow of it, such law cannot fall
within the reservation of Clause 2 of Article 19’.!! Although the Thapars
were ‘delirious with joy’ that they had been vindicated by the Supreme
Court and that the case ‘went on the statute book ... establishing the
freedom of expression in India’,!* it was far more significant that
Home Minister Sardar Patel thought the Crossroads decision ‘knocks
the bottom out of most of our penal laws for the control and regulation
of the press’.!3
Himself upset by the court’s decision on Crossroads and prodded
into action by Patel, Nehru on 19 October wrote to the Law Minister, B.
R. Ambedkar, who had chaired the Constituent Assembly’s Drafting
Committee, expressing the view that the Constitution’s provisions
pertaining to law and order and subversive activities needed to be
amended. Reflecting the difficulties the government was having with
the courts over other fundamental rights, Nehru added that the
provisions affecting zamindari abolition and nationalization of road
transport also needed amending. Two days later, a cabinet meeting
directed the Law Ministry to examine the issues and to prepare draft
amendments.!4

11 1950 (1) SCR 602. In both courts, the case was listed as Romesh Thapar v State of
Madras. Justice Patanjali Sastri delivered the opinion in the Crossroads case for
himself
and for Chief Justice Harilal Kania, Mehr Chand Mahajan, Bijan Kumar Mukherjea
, and
Sudhi Ranjan Das. Justice Saiyid Fazl Ali delivered a separate judgement.
For a commentary on the cases, see Seervai, H. M., Constitutional Law of India,
3rd
edn., 3 vols, N. M. Tripathi Pvt. Ltd., Bombay, 1983, vol. 1, pp. 495ff, and Gajendra
gadkar,
P. B., The Indian Parliament and Fundamental Rights, Eastern Law House, Calcutta,
1972,
pp. 73ff.
For Justice M. C. Mahajan’s thoughts on these cases, see his Looking
Back, Asia
Publishing House, New York, NY, 1963, pp. 198-201.
12 Thapar, Ail These Years, p. 87. The Thapars had expected
an adverse decision,
especially from Mahajan.
!3 Patel-Nehru letter dated 3 July 1950. Durga Das, Patel’s Correspondence,
vol. 10, p.
358. Patel was explicit that the decision made it doubtful
that the government could
move against Shyama Prasad Mookerjee for his pronouncements
about Kashmir and
calling for the annulment of partition.
14 Ministry of Law, File no, F34/51-C. Members present at the
cabinet meeting
included Nehru, Maulana Azad, C. Rajagopalachari, Baldev Singh, Jagjivan
Ram, Rafi
Ahmed Kidwai, Rajkumari Amrit Kaur, N. V. Gadgil, N. Gopalaswami Ayyanga
r, Hare
Krushna Mahtab, K. M. Munshi, Sri Prakasa, C. D, Deshmukh, and Ambedka
r.
 Free Speech, Liberty, and Public Order 43

Setting to work on the first part of the assignment, the ministry’s

Joint Secretary, S. N. Mukherjee, prepared a note summarizing Indian
and United States cases bearing on freedom of expression and then
presented his device for protecting legislation curbing freedom of
expression from judicial review. Article 19 of the Constitution provided
that the freedoms of assembly, association, and so on, could be subject
to certain restrictions if these were ‘reasonable’. No such qualification
applied to the ‘freedom of speech and expression’. Mukherjee
recommended that ‘reasonable’ be removed as a qualification for
restrictions on the other freedoms, apparently believing that if none of
the ‘freedoms’ were so protected, consistency in the article would
preclude judicial review of restrictions on speech.!° Reacting to the
note, Law Secretary K. V. K. Sundaram suggested rewording Article
19(2) so government could impose restrictions on speech and expression
in the interest of the security of the state, public order, and decency
and morality. The existing omission in the Constitution of ‘reasonable’
as qualifying freedom of expression was justifiable, he said. He agreed
with the Joint Secretary’s view that legislatures, not the courts, ought to
be the final authority deciding the ‘nature’ of any restrictions on
Fundamental Rights.!®
Events moved on in February 1951. Nehru formed the Cabinet
Committee on the Constitution (sometimes called the Cabinet Com-
mittee on Amendment) and requested his senior colleagues’ opin-
ions. Pandit G. B. Pant, then chief minister of Uttar Pradesh, re-
sponded at length. Freedom of expression, he said, had been ‘wan-
tonly abused .... Venomous and filthy attacks are being made ... against
the central and state governments ... maliciously and in an extremely
vulgar and indecent manner’. A remedy had to be devised, but he
preferred appropriate legislation over constitutional amendment.!7
Hare Krushna Mahtab, Minister of Commerce and Industry, re-
sponded to Nehru in March with a note which said that placing ‘rea-

15 Note dated 6 January 1951. Ibid.

16 Note dated 29 January 1951. Ibid.
17 Letter of 5 March 1951. Ibid. Also to be found in G. B. Pant Collection, File 3,
Pant-Nehru Correspondence, NAI.
Pant nevertheless appended a note prepared by an aide that suggested amending
Article 19(2) to prohibit bringing ‘the government of the state or the Union into contempt,
scorn, contumely or disrepute’. He also enclosed a note analysing the problem. It referred
to ‘petty newspapers’ being used by individuals and political parties for ‘some personal
gain’ and said the basic question was ‘whether the criticism of government not attended
by violence can ... be [deemed] an offence’.
44 Working a Democratic Constitution

sonable restrictions’ on any of the freedoms of Article 19 left both

the people and the legislatures uncertain of ‘the framework within
which they have to operate’.!®
Law Minister B. R. Arnbedkar sent Nehru a memorandum in reply.
The rulings of the courts had not recognized any limitation on the
Fundamental Rights where none was placed by the Constitution, and
they had not recognized any further limitations where the Constitution
had specified them, he said. He opposed deleting the existing limitations
on the Rights to prevent the Supreme Court from interpreting them
into Article 19 through the ‘evil’ of due process, which, he reminded
Nebru, the Constituent Assembly had rejected. Reasonable restrictions
could be placed on speech relating to libel, slander, and undermining
the security of the state; laws placing such restrictions, he added, ought
to be exempted from court intrusion.!9 Nehru, also agitated by Supreme
Court decisions in property cases, as will be seen, replied the same day
instructing Ambedkar to proceed ‘with the utmost expedition’ so as to
get the necessary amendments through Parliament, then in session.2?
The Home Ministry recommended to the Cabinet Committee that public
order and incitement to a crime should be included among the
exceptions to the right to freedom ofspeech. It preferred dropping ‘to
overthrow’ the state in favour of a wider formulation, ‘in the interests
of the security of the State’. And the note did not favour inserting
‘reasonable’ before restrictions on the freedom of expression in Article
19(2).?1
The Cabinet Committee reported at the end of March that the Law
Ministry was urging strongly that ‘reasonable’ be retained in all clauses
in Article 19 where it existed and that it ought to be added before the

18 Hare Krushna Mahtab Papers, File 21, NMML. Two years earlier, Mahtab had
written to Nehru that ‘I would strongly press for some legislation to prevent personal
criticism of ministers ... [W]ild vulgar abuses are heaped upon you in public meetings ...
Persistent vilification of this nature affects discipline in the services’. The central
government had queried a number of state ministers about the subject. Letter of 1]
September 1949, ibid., File 11.
19 Memorandum dated 14 March 1951. Ministry of Law, File no. F34/51-C.
20 Ibid.
21 Ibid. The note concluded that Article 19(5) should be ‘enlarged’ so that the
freedom of movement, residence, and to own property—originally subject to ‘reasonable’
restrictions in the interests of the general public or any Scheduled Tribe—be subject to
martial law. The alternative to inserting ‘martial law’, the Ministry said, would be to
proclaim an emergency, suspending the Fundamental Rights, which is a Grastic remedy
to deal with disturbance in a small area. A Law Ministry Note to the cabinet on 17 March
seemed to concur with this, although it was contrary to Ambedkar’s views.
 TF
TL
ws « 8BQ y) RR het tre prcede-f eS
; “

Free Speech, Liberty, and Public Order 45

restrictions on freedom of expression. Otherwise, the state would have
the power ‘altogether’ to deny freedom of speech and expression. But
the members of the committee disagreed with Ambedkar, the report
said. They believed ‘reasonabie’ ought not to qualify freedom of
expression, although it was ‘expedient’ to leave the word in Article 19
where it was already.** Apparently they feared the political repercussions
of taking away the protection that ‘reasonable’ accorded the other
‘freedoms’ 1n the article. But, they were so alarmed by the dangers to!
national security, friendly relations with foreign states, public order,
etc., that they felt that possible curbs on free speech did not have to be “
‘reasonable’. Early in April, accounts of the amending process appeared
in the press, and a continuing stream of newspaper editorials analysed
and criticized the amendment’s property and freedom of expression
provisions which were thought to endanger freedom of the press. The \
Hindustan Times thought the changes ‘animated ... by a desire to conserve
and consolidate the power and patronage of the executive ... Particularly
dangerous is the attempt to qualify freedom of speech’.?9
President Prasad commented upon the draft amendment to the
cabinet, in one of the occasions when some thought he was exceeding
his powers. Raising substantive objections that would later be heard in
Parliament and in the press, he said that, based on his reading of Supreme
Court decisions, ‘no case’ for amending the Fundamental Rights had
arisen. Amendment should come only if it was found impossible to bring
the impugned provisions of law ‘in conformity with the Constitution’,
He doubted the wisdom of oriitting the words—relating to speech—
‘“tends to overthrow the State” ’ and thought they might be added to the
end of the language in the amendment ‘by way of abundant caution’.
Overall, Prasad opposed amending the Constitution at the ‘fag-end of a
long session’. Time should be given to all concerned to comment on the ~
amendment, particularly because Parliament was a ‘Provisional Parliament’ “
acting under the ‘transitory [sic] provisions of the Constitution until a
Parliament having two houses comes into being’.*4

22 Ibid.
23 Issue of 12 April 1951. At this time, the CPP established its own ‘Constitutional
Changes Committee’ to consider the draft amendment. Members of this committee were
reported to be Thakurdas Bhargava, Mohanlal Gautam, K. Hanumanthaiya, Mrs Renuka
Ray, and Dr Punjabrao Deshmukh. Hindustan Times, 13 April 1951.
24 Note dated 30 April 1951. Rajendra Prasad Collection, File 1, NAI. The President
was commenting on the draft prepared by S. N. Mukherjee, Joint Secretary in the
Legislative Department of the Law Ministry. This draft had gone earlier in April to the
chief ministers for comment.
46 Working a Democratic Constitution
Prime Minister Nehru introduced the draft of the First Amendment
in the Lok Sabha on 12 May and spoke extensively on it then and later.
He found the argument that the Provisional Parliament was not
competent to amend the Constitution ‘curious’ because the same
restricted franchise had elected the Constituent Assembly, many of whose
members sat before him. Was it sensible that the individuals who had
framed the Constitution were not competent to amend it??? Besides, wide
consultations with state governments and others had preceded the bill’s
introduction. He said that he had frequently expressed his appreciation
for the press as ‘one of the vital organs of modern life’. But was the ‘press’
responsible journals or ‘some two-page news-sheet ... full of vulgarity,
indecency and falsehood’? The amendment’s language about friendly
relations with foreign states was not ‘meant to stifle criticism, but the
international situation is delicate’, and ‘we cannot take any risks’. As to
public order and ‘incitement to an offence’, Nehru continued, ‘these
words would have to be strictly examined in a piece of legislation’. A
constitution should ‘not limit the power of Parliament to face a situation’.
It was an ‘extraordinary state of affairs’ that a high court had held ‘that
even murder or like offences can be preached’.*° The ‘concept of individual
freedom has to be balanced with social freedom and the relations of the
individual with the social group,’ Nehru maintained.2’ Like democratic
leaders before and since, Nehru deplored press scrutiny of his government
even as he publicly praised freedom of the press. Yet, his dismay at the
most inaccurate and scurrilous publications is understandable.?8

25 Parliamentary Debates, vol. 12, part 2, cols 8815-16, 16 May 1951. Further quotations
are taken from columns 8817 to 8832. Parliamentary Debates was the designation for Lok
Sabha debates during the ‘Provisional Parliament’. The designation Lok Sabha Debates
and a new series of volumes came into being during 1954 after election of the Parliament
by the first general elections of 1952. During part of 1952, 1953, and a few months of
1954, the designation was ‘Parliamentary Debates, House of the People’. Nehru’s three
speeches on the amending bill are given in full in Nehru’s Speeches, vol. 2, pp. 486-538.
These debates were extensively reported in the English language press.
26 ‘Even Murder’, Nehru’s Speeches, vol. 2, p. 500.
27 Tbid., p. 506. He also raised the matter of monopoly within the press community,
an issue that his daughter would make much of as Prime Minister: ‘When gigantic
newspaper chains spring up and undermine the freedom of the independent newspaper
s,
when the press in India is controlled by three or four groups ofindividuals, what
kind of
a press is that?’
28 Nehru told members of the All India Newspaper Editors Conference ata
meeting
on 20 May 1951 that the amendment was not aimed at the press. Gopal, S. (ed.),
Selected
Works ofJawaharlal Nehru, 20 vols, Oxford University Press, New Delhi,
1995, vol. 1, part 1,
p- 187. They were thinking of certain law and order situations in the country
and of the
international situation, he said,
 Free Speech, Liberty, and Public Order 47
Now it was the critics’ turn. H. V. Kamath opposed rushing the bill
through Parliament, favoured ‘reasonable’ as qualifying any restrictions
on speech, and commented that in defending the bill Nehru seemed
uneasy with his conscience.?9 Pandit Hriday Nath Kunzru, one of the
distinguished non-Congressmen who the Congress had brought into
the Constituent Assembly, declared that Article 19 was not being
amended, but repealed. °° Why are the current laws against offending
decency and morality and undermining the security of the state not
sufficient, asked Shyama Prasad Mookerjee of the Hindu Mahasabha,
in what the Times of India called one of the ‘two great orations’ of the
day—Nehru’s having been the other. Who is to decide whether a
criticism of foreign policy harms relations with other countries, asked
Mookerjee. The Prime Minister believes that agitation to end partition
is harmful to the country, but I think partition should be annulled. So
why can we not each give our views and let the public decide, he said.?!
Developments now took a surprising turn. Nehru, deeply concerned
with the issue of freedom of speech, had overseen the deliberations of
the Cabinet Committee on Amendment, and he surely had scrutinized
the amending bill before approving its introduction in Parliament. Then,
as chairman of the Select Committee reviewing the bill, he recommended
to his cabinet that the draft bill be altered to insert the protecting word
‘reasonable’ to qualify the restrictions on the freedom of speech. He
did not like the word ‘reasonable’, he wrote to T. T. Krishnamachari

29 Parliamentary Debates, vol. 12, part 2, cols. 8913-24

30 Times of India, 18 May 1951.
31 Parliamentary Debates, vol. 12, part 2, col. 8846, for ‘annul partition’.
Mookerjee shortly would become an officer of the All-India Civil Liberties Council,
which had been formed in 1949. The Council was descended from the Indian Civil
Liberties Union established in 1937, whose first president was the famed Bengali poet,
Rabindranath Tagore. A genera! principle in the union’s constitution had been that all
thought on matters of public concern should be freely expressed. The Civil Liberties
Council operated under the umbrella of the Servants of India Society based in Poona.
After the passage of the First Amendment, the secretary of the Council, S. G. Vase, wrote
to members that Roger Baldwin, then chairman of the International League for the
Rights of Man, had been consulted about the amendment and he had replied that the
introduction of the word ‘reasonable’ ‘would provide a court review of the restrictions
[on speech] ... [and] would probably mitigate the evil to a large extent’.
P. R. Das, then a lawyer prominent in civil liberties and zamindari abolition cases,
became president ofthe Civil Liberties Council in 1950. Jayaprakash Narayan joined it in
1951 to become a leading figure in its activities. Narayan had been a member of the
Indian Civil Liberties Union in the thirties. Jayaprakash Narayan Papers, First and Second
Installments, File 365, NMML.
48 Working a Democratic Constitution

that evening after the meeting because it would be an invitation for

each such case to go to the courts.?* The cabinet accepted the recom-
mendation at its meeting on 23 May 1951-—in order to avoid a spiit in
the cabinet and to ensure a two-thirds majority for the bill, according
to the Hindustan Times*?—and the Select Committee tabled its report
two days later.°+ Delayed wisdom seems the best explanation for the
Prime Minister’s reversal of position.
The Select Committee’s recommendations took two pages. Minutes
of dissent filled sixteen, all by non-Congressmen. The dissenters
frequently argued that, being ‘provisional’, Parliament should not pass
the amendment, an opinion shared by the Federation of Indian Chambers
of Commerce, and others. The All-India Newspaper Editors Conference
called for the bill’s withdrawal. Miss G. Durgabai and S. P. Mookerjee
recommended that only Parliament, not state legislatures, should be
empowered to pass legislation affecting the freedom of expression.*°
Naziruddin Ahmad thought the language about incitement to offence
too broad and preferred the provision in the Indian Penal Code, where
incitement was not an offence unless part of a conspiracy or followed
by a criminal act.*©
On 29 May, the Congress Parliamentary Party approved the amend-
ing bill, having rejected ‘in no uncertain terms’ a move to drop the
Select Committee’s recommendation to include the word ‘reasonable’

32 Gopal, Selected Works ofJawaharlal Nehru, vol. 1, part 1, p. 189.

33 Issue of 25 May 1951.
34 The Constitution (First Amendment) Bill, 195 1—Report of the Select Committee, Parliament
Library, New Delhi. The committee’s other brief recommendations will be taken up
subsequently. The freedom of speech issue had been the most vigorously debated, the
committee reported, and it said that the only substantial change required in Article
19(2) was the one we have just seen.
Members of the committee were: Nehru, chairman, C. Rajagopalachari, B. R.
Ambedkar, Miss G. Durgabai. H. N. Kunzru, M. Gautam, S. P. Mookerjee, Khandubhai
Desai, Hukum Singh, K. T. Shah, L. K. Bharati, R. K. Sidhwa, Dev Kant Borooah, A. P.
Sinha, M. C. Shah, T. R. Deogirikar, Raj Bahadur, Naziruddin Ahmad, K. Hanumanthaiya,
and Satyanarayan Sinha. Minutes of dissent came from Durgabai, Kunzru, Mookerjee,
Singh, Shah, and Ahmad.
Parliament had extended its session on 18 May to allow more time for debate on the bill.
35 The cabinet took this idea seriously enough to consider it at its meeting on 30
May, but decided that it was not feasible because the subjects to which freedom of speech
pertained were distributed among the legislative lists. Reserving bills affecting freedom
of expression for the President's assent was also considered and rejected. Ministry of
Law, File no. F35/51-C.
36 Report of the Select Committee, p. 16. Anmad may have been referring to ch. V of the
Code, on ‘Abetment’.
 Free Speech, Liberty, and Public Order 49

as a protection of free expression.>’ Three days later, after a ‘tumul-

tuous and acrimonious’ third reading, during which Nehru and
Mookerjee traded accusations of bad faith, Parliament passed the bill
by a vote of 228 to 20.95 The First Amendment retroactively and prospec-
tively empowered government to impose ‘reasonable restrictions’ on
the freedom of expression ‘in the interests of the security of the State
[replacing the words “tends to overthrow the State”], friendly relations
with foreign States, public order, decency or morality, or in relation to
contempt of court, defamation, or incitement to an offence’. ‘Defama-
tion’ replaced the words ‘libel’ and ‘slander’ of the original Constitu-
tion. ‘[I]ncitement to an offence’ was directed at the Bihar and Punjab
High Court decisions mentioned earlier.°9
With the amendment enacted, Parliament passed The Press
(Objectionable Matter) Act on 23 October 1951. ‘Objectionable Matter’
was defined as that inciting violence for the purpose of overthrowing
the government; inciting the committing of murder, sabotage or
offences involving violence; inciting interference with the supply of
food or other essential commodities and essential services; seducing
any member of the armed services from performance of his duties;
V promoting feelings of enmity among the ‘sections’ of society; and
publishing matter which ‘are grossly indecent, or are scurrilous or
obscene or intended for blackmail’.*° The Act also provided for securing
and forfeiture of security deposits by newspapers and the seizure and
destruction of unauthorized newssheets and newspapers. The Act was

37 Times of India, 30 May 1951.

38 Times of India, 3 June 1951. Among those who voted against the bill were Hukum
Singh, Hussain Imam, Jaipa! Singh, H. V. Kamath, Acharya Kripalani, Mrs Sucheta
Kripalani, Kunzru, Mookerjee, Ahmad, S. L. Saksena, Damodar Swarup Seth, and K. T.
Shah. To avoid ratification of the amendment by state legislatures, there were no
amendments to the Legislative Lists, which had been contemplated several times.
Nehru justified the amendment in his 2 June and 15 June letters to chief ministers.
He wrote that it was not government's intention to curb press freedom, and he did not
want state governments to take advantage of the amendment to apply ‘some obsolete
law’. NLTCM, vol. 2, pp. 403-7, 417-9.
For a brief but useful analysis of legal issues involved at this time, see Blackshield,
A. R., ‘“Fundamental Rights” and the Institutional Viability of the Indian Supreme
Court’, Journal of the Indian Law Institute (hereafter J/LJ), vol. 8, no. 2, 1966,
pp. 203-5.
39 For the text of the amendment, see Constitution Amendment in India, Lok Sabha
Secretariat, New Delhi, 1986, pp. 179-84.
1952, pp.
40 Act No LVI of 1951. Acts of Parliament, Ministry of Law, GOI, New Delhi,
389-402.
 50 Working a Democratic Constitution

amended several times and repealed in 1957.4!

l This was a curious affair. The initial inclination of Nehru and the
others had been to outlaw certain kinds of speech, and the amendments
language conceivably made prosecution easier. Yet providing that any
limitations on free speech must be ‘reasonable’ strengthened the right
‘© through judicial review. Furthermore, much of the restrictive language
|. in the amendment and the Objectionable Matter Act added little to
government power under existing statutes.4* And other means to intimidate
publishers and editors could be employed.*? Attempts to intimidate the
press occurred from time to time, especially after the Nehru years, but,
except during Indira Gandhi’s Emergency, laws and practices to curb
freedom of expression had more capacity to make mischief than was
made. Remarkably, considering their strong wording, the various laws did
not have a ‘chilling effect’ on the press during the Nehru years, according
to members of the profession and lawyers. Scurrilous and fantastical
reporting continued along with sober and responsible journalism.

Freedom of Expression—The Sixteenth Amendment

This 1963 amendment of Article 19 added that government might place
restrictions on expression in the interests of ‘the sovereignty and
integrity of India’, the qualifier ‘reasonable’ remaining in place. It also

41 On 3 October 1952, the government established its first Press Commission which
would report in 1954. Among other things, the commission was to examine freedom of
the press and the repeal and amendment of laws not in consonance with it.
Individual examples of the desire to curb or protect the press occurred from time to
time. Feroze Gandhi, a socialist member of Parliament and Indira Gandhi's husband,
moved a private member’s bill on 24 February 1956 to assure protection for the publication
of defamatory language if the language had been first uttered in parliamentary debate.
Nehru wrote to K. N. Katju, then Home Minister, on 7 November 1954 that Bulls Eye,
‘a new periodical of the worst type’ had written a ‘highly inflammatory’ article about
General Thimayya, the Chief of Staff. Nehru asked how one was to deal with ‘these
wretched rags’ and noted that Thimayya wanted to horsewhip the editor, ‘but I did not
encourage him to do this’. Nehru Papers as received from M. O. Mathai, K. N. Katju File,
NMML.
42 For example, the Indian Penal Code, the Code of Criminal Procedure, the
Industries (Development and Regulation) Act, and other laws. Passed in 1951, the latter
authorized government investigation of industrial undertakings if managed in a manner
highly detrimental to the public interest. A 1979 amendment to the Act exempted from
it presses utilized mainly for printing newspapers.
43 Withholding government advertisements was one. Restricting newsprint imports,
controlling the prices of and the number of pages in newspapers were others. The latter
two actions were struck down by the Supreme Court in Sokal Papers (P) Ltd. v Union of
 ¢ am
Lh Af

033042
peed. fle
P
5SCp‘erelt Sm ;
lin ex (

Free Speech, Liberty, and Public Order 51

included this formula in the oaths to be taken by candidates for, and

members of, Parliament and the state legislatures, which oaths it placed
in the Constitution’s Third Schedule. The amendment also applied
this new restriction to the rights in Article 19 to assemble and to form
associations and unions.
A combination of panic, which from this distance seems to have
been unwarranted, and rational concern produced the amendment.
The Chinese incursions in the Northeast beginning in 1960 caused the
former, although the threat reinforced, rather than weakened, the
nation’s sense of unity. Causing greater concern were Master ‘Tara
Singh’s long fast for a Sikh state, Punjabi Suba, during mid-1961 and
the Dravida Munnetra Kazhagam’s (DMK) call for an entity separate
from India called Dravidanad, comprising Madras, Mysore, Kerala, and
Andhra. Law Minister Asoke K. Sen, Home Minister Lal Bhadur Shastri,
and his Home Secretary, L. P. Singh, especially, took Tamil separation
seriously. Confronted by the Sikh agitation and aware of the DMK’s
inclinations, the Chief Ministers’ Conference in August 1961 unanimously
recommended that advocacy of secession be made a penal offence.*°
A National Integration Council was established. After its first meeting in

India, AIR 1962 SC 305, and Bennett Coleman and Co. Lid. AIR 1973 SC 106 as cited in
Vsinghvi, L. M., Freedom on Trial, Vikas Publishing House Pvt. Ltd., New Delhi, 1991, p. 73.
44 This was stated in the DMK’s election manifesto for the 1962 general elections,
adopted in Coimbatore in December 1961. AR, 8-14 January 1962, p. 4363. The DMK
had earlier called for Tamil secession from India. (See ch. 6.)
According to Robert L. Hardgra’e, Jr., in late 1961 and early 1962, ‘Dravidisthan, as
an election issue, was shelved in favour of a concentration on the problem of rising
prices in Madras ...’. See his The Dravidian Movement, Popular Prakashan, Bombay, 1965,
p. 74. In 1960, the DMK leader, Annadurai, in response to a challenge from C.
did not
Subramaniam, then Finance Minister in the Madras government, that the DMkK
the
accept the Constitution, said the DMK ‘seeks nothing more than “amendment of
Constitution through perfectly Constituti onal methods”’ to lessen central governmen t
domination of the states. Reported in Link, 27 December 1959 and July
3 1960 and cited
in ibid., p. 65.
DMK ‘is not
Another American authority on India reported being informed that the
the secession of Madras, Andhra Pradesh, Mysore, and Kerala.
seriously demanding’
Staff Report,
Talbot, Phillips, ‘Raising a Cry for Secession’, American Universities Field
New York, August 1957, p. 1.
by various
The terms Dravidisthan and Dravidanad, and Dravida Nadu were used
states.
individuals for the same concept of a body of Southern Indian
Rajiv A., Sikh Separati sm, Vikas Publishing
For Tara Singh and the Akali Dal, see Kapur,
House Pvt. Ltd., New Delhi, 1987, pp. 212-6.
giving their approval
45 AR, 10-16 September 1961, p. 4153. The chief ministers were
uced on 10 August in
for a bill to amend the Indian Penal Code, which had been introd
| IBRARY
IRI
NARAYAN RAO MELG
National Law School
52 Working a Democratic Constitution

June 1962, one of the members of the council’s Committee on National

Integration and Regionalism, Lal Bahadur Shastri, began drafting the
oath that would appear in the Sixteenth Amendment.*° The committee’s
report went to Nehru on 5 November 1962, recommending that any
‘demand for secession from the Centre be made unconstitutional’.4/
Law Minister Sen introduced the amending bill in the Lok Sabha
on 21 January 1963, saying that its purpose was to give ‘appropriate powers
... to impose restrictions against those individuals or organizations who
want to make secession from India or disintegration ofIndia as political
purposes for fighting elections’.4° K. Manoharan, from Madras South
constituency, called the amendment ‘ill-advised’, particularly in view of
the DMK’s ‘unqualified’ support of the war against China. The DMK’s
‘propaganda’, he said, had always been made peacefully and legally,
and its freedom of expression should not be denied.*9 Ravi Narayan
Reddy from Andhra supported him, as did Gilbert Swell from the Assam
Autonomous Districts. Putting forth an argument heard loudly in future
years, Swell said that the root problem was over-centralization and unfair
distribution of development among the states. Government policy
fostered regionalism, he said.°?
The amendment passed unanimously. lt was counted a great
achievement by many, especially when, later in the year, the DMK’s
senior figure, Dr Annadurai, ‘unequivocally declared that the DMK once
and for all gave up the demand for Dravida Nadu and henceforth solidly
and sincerely stood for the sovereignty and unity of India’.*! In the
circumstances of the DMK threats of secession and Tara Singh’s ‘fast

the Lok Sabha. Passed on 3] August, the act was intended ‘to deal effectively with communa!
and separatist tendencies’. Statesman, as quoted in ibid., 1-7 October 1961.
46 Assisting Shastri were two ministry officials, the senior being L. P. Singh, and B. S.
Raghavan. B. S. Raghavan, in an interview with the author.
The southern states’ fears of imposition of Hindi by the north were re-emerging at
this time, and Nehru’s assurances that Hindi would not be imposed were incorporated
in the Official Languages Act of 1963. See Srivastava, C. P., Lal Bahadur Shastri: A Life of
Truth in Politics, Oxford University Press, Delhi, 1995, pp. 63-5.
47 AR, 29 January—4 February 1963, p. 5017. The Southern Zonal Council unanimously
supported this view at its meeting of 30 December 1962. |
48 Lok Sabha Debates, Third Series, vol. 12, no. 28, col. 5760.
49 Thid., cols 5797-802.
50 Tbid., col. 5813. The bill went to the Joint Committee on 22 January 1963.
°! This is either a quotation from, or a paraphrase of, a press statement by K.
Karunanidhi, DMK spokesman. It was cited in a letter to the Chairman of the Rajya
Sabha from T. K. Srinivasan, leader of the DMK Parliamentary Party. Jayaprakash Narayan
Papers, Third installment, File 12, ‘Important Correspondence of JP’, NMML.
 Free Speech, Liberty, and Public Order 53
unto death’, the amendment with its oath may have injected sobriety
into political discourse, although separatist talk by a few legislators can
hardly have been a significant danger to national unity and integrity.
The amendment is perhaps best understood as symptomatic of a mood
in government of excessive fear for national integrity which also
encouraged the enactment of undemocratic, intellectually wrong-headed
legislation such as the Unlawful Activities (Prevention) Act, 1967. This
made punishable any individual’s or association’s act or words intending
or supporting ‘the cession of any part of the territory of India or the
secession’ of the same. Good faith discussion was outlawed, and A. G.
Noorani hoped the Supreme Court would strike down this ‘repressive
law’, which ‘spares the heretic only if he remains silent’.>? Assuring
national integrity by curbing freedom of expression may best have
been characterized by the Bengali Communist MP, Hiren Mukerjee.
Government ought to deal with the forces of disintegration differently,
he said, and then quoted Alexander Pope: ““How small a part of that
human hearts endure/The part that laws or kings can cause or cure.””??

Individual Liberty and Preventive Detention

As with other practices at the edge of democratic governance, the
government of independent India was ambivalent about preventive
detention, which, because it could be occasioned by or directed at
actions or speech, affected the fundamental rights both to freedom of
expression and personal liberty. Independent India had inherited the
practice from the British, who had found it convenient to employ against
those agitating for freedom.™* Between 1937 and 1939, Congress Par
governments in the provinces had repealed several preventive detention

52 Noorani, A. G., India’s Constitution and Politics, Jaico Publishing House, Bombay,
1970, p. 249.
53 Lok Sabha Debates, Third Series, vol. 18, no. 57, col. 13418.
54 As early as 1784, the East India Company Act allowed the detention of a person
suspected of activities or carrying on correspondence prejudicial to the peace of British
Settiements in India. The oldest preventive detention statute was the Bengal State Prisoners
Regulation of 1818. The Defence of India Acts of 1915 and 1939, and the Restriction and
Detention Ordinance of 1944, also authorized preventive detention. See Swaroop, V.,
Law of Preventive Detention, DLT Publications, Delhi, 1990, p. 15. For a helpful history of
detention, see also Iqbal, Mohammed, The Law of Preventive Detention in England, India
and Pakistan, Punjab Religious Book Society, Lahore, 1955.
Also Gledhill, India, p. 173; and Coupland, Reginald, Indian Politics, 1936-1942: Report
on the Constitutional Problem in India, 3 vols, Oxford University Press, London, 1943, vol. 2,
pp. 133+4, and ch. 12.
54 Working a Democratic Constitution

statutes, but from independence until the Constitution’s inauguration,

Congress ministries in some dozen provinces enacted ‘Public Order’
and ‘Public Safety’ laws. Most of these empowered government to
regulate a person’s actions or movements to prevent any act ‘prejudicial
to the public safety or maintenance of public order’; to impose
restrictions on a person’s freedom of expression; to extern him from
or require him to reside in an area and to report his movements to
government. Additionally, government had the broad power to ‘regulate
the conduct of the person in any manner otherwise than is covered by
the above specific provisions’.°°
There is little evidence that preventive detention either was used
against a free press or was cruelly used during this period, but it certainly
had the potential for use to curb speech as well as actions, incendiary
or not.°© And it was subject to overzealousness by possessive politicians’
and to bureaucrats’ ineptitude. For example, communists were detained
in Calcutta in February 1949 to prevent a rail strike, but the lists of
individuals proved defective. As a result several ‘socialists’ were arrested.
Nehru saw the telegraphic messages on the matter and sent a note to
the Home Ministry that ‘in maiters of this kind the fullest care should
be taken,’ and if the wrong persons had been arrested they should be
released.°’ Preventive detention affected the Communist Party, the
Hindu Mahasabha, and the RSS more than other parties, in part due to
the latter two’s alleged connections with Gandhi’s assassination.
The CPI attacked the government’s ‘grim’ record on civil liberties,
omitting acknowledgement of its own armed insurrection in South
India in the late forties and its proclaimed goal of overthrowing the
government. It charged that the Congress government had jailed fifty

5° The act cited here is the Madhya Bharat Maintenance of Public Order Act, 1949.
Nehru saw the text of the Rajasthan Public Security Ordinance, 1949, and wrote to
his secretary that it went far beyond any security order he had seen. A ‘ “prejudicial act” ’
in the ordinance included bringing ‘ “into hatred or contempt or [exciting] disaffection” ’
toward any government in the country and ‘“any minister of such government”’. With
ministers included, Nehru said, no criticism of governmental activity is permissible, which
‘seems to me to go against the basic provisions of our [draft] Constitution ...’. He directed
that the state ministry’s attention be drawn to the ordinance. Gopal, Selected, Works of
Nehru, vol. 15, part 1, 1993, p. 179.
56 A. G. Noorani was to be detained several months in 1965 for his publication ‘The
Kashmir Question’.
57 Note dated 25 February 1949. Below this, Home Secretary H. V. R. lengar the next
day wrote an explanation and returned the note to Nehru: the ministry's instructions ‘made
it quite clear that only ringleaders fomenting strike ... should be arrested and detained
under Public Safety Acts’. Nehru Papers as received from M. O. Mathai, File 29, NMML.
 Free Speech, Liberty, and Public Order 55
thousand of its political opponents between 1947 and 1950.58 Pandit
Pant told Parliament that there were ten thousand detenus in India in
1950.59
Meanwhile, the Constituent Assembly was engaged in drafting an
article authorizing preventive detention as a means to protect all the
three strands of the seamless web. The Home Ministry under Sardar
Patel wanted strong powers of detention; his view ultimately won the
day; and, in a nice irony, the article was included among the Fundamental
Rights. Article 22 first provided that no person might be detained in J
custody without being informed of the grounds for his or her arrest or
be denied counsel. Any such detained person had to be produced before
a magistrate within twenty-four hours, and could not be detained longer
without a magistrate’s authority. Assembly members then provided that
these general protections did not apply to individuals ‘detained under
any law providing for preventive detention’. Even the limited protection
granted—that no law could authorize preventive detention longer than
three months unless an Advisory Board (composed of persons qualified
to be high court judges) held there was cause for further detention
(Article 22(4) (a) )—was not absolute. It did not apply to laws made by
Parliament prescribing the circumstances and classes of cases under
which a person might be detained for longer than three months ‘without
obtaining the opinion of an Advisory Board’ (Article 22(7) (a)). Persons
held under preventive detention laws were to be told the grounds for
their detention and allowed to make representation against them unless
the arresting authority decided that disclosing the facts would be ‘against
the public interest’ (clause 6).
Governments and legislatures had been given a vast power virtually
free from judicial restraint and the protection ofthe other fundamental
rights. Although not always misused and, in certain circumstances, even
a ‘necessary evil’, according to some, preventive detention would
increasingly stain the country’s democracy.
The central government put Article 22 to use immediately. With »/
the coming into force of the Constitution on 26 January 1950, a number
of existing laws providing for preventive detention lapsed or were
vulnerable to overturning as violations of the Fundamental Rights. To
keep such laws in effect, President Prasad that day issued the Preventive

58 Ghosh, Ajoy, Two Systems: A Balance Sheet, CPI, New Delhi, 1956, p. 65.
59 In a speech supporting the extension of the Preventive Detention Act. AR, 1-7 January
1961, p. 3717.
69 For the history of the framing of the article, see Austin, Cornerstone, pp. 101-13.
56 Working a Democratic Constitution

Detention (Extension of Duration) Order.®! Nevertheless, over the next

month four high courts declared the order unconstitutional, and state
detention laws were challenged in high courts.°* And five hundred
Communist detenus in Calcutta were due for release on 26 February
because they then would have been held longer than three months
without a review of their detentions by an Advisory Board. On 22
February, Home Secretary H. V. R. lengar drafted a note for the cabinet
in his own hand and senta copy to Law Secretary K. V. K. Sundaram for
review. Central legislation on preventive detention is urgently needed,
Iengar wrote, because none of the states’ laws that provided for
detention, excepting Bengal’s, had an advisory board. Moreover, state
laws were under attack in the high courts and detenus were being
released. He proposed that a preventive detention bill be enacted under
items 9 and 3 of the Union and Concurrent lists.®? On 24 February, the
full cabinet, plus Attorney General M. C. Setaivad, approved the
introduction of the bill. The next day—the day before the communists
would have been released—Parliament, in a special Saturday session,
passed it unanimously.®4
Advocating the bill in Parliament, Patel and Nehru showed ‘contri-

6! The order was made under Article 373 of the Constitution, which provided that
untl Parliament passed a preventive detention bill under Article 22, or a year had expired,
the President could make an order as though it were an act of Parliament.
62 For much of what follows in these paragraphs, the author is indebted to Bayley,
David H., Preventive Detention in India, Firma K. L. Mukhopadhyay, Calcutta, 1962, and to
Swaroop, Preventive Detention.
The order was overturned in: the Bihar High Court (Brameshwar Prasad v The State of
Bihar, AIR 1950 Patna 265); the Bengal High Court (Sunil Kumar Bose v The West Bengal
Government
AIR 1950 Calcutta 274); the Orissa High Court (Prahalad Jena v State of Orissa
AIR 1950 Orissa 157); and the Hyderabad High Court (Showkat-un-missa Begum v State of
Hyderabad AIR 1950 Hyderabad 20). Swaroop, Preventive Detention, p. 17.
63 Ministry of Law, GOI, File F11-VI/50 L, NAI.
Item 9 of the Union List: ‘Preventive detention for reasons connected with Defence,
Foreign Affairs, or the security of India; persons subjected to such detention’. Item 3 of
the Concurrent List reads: ‘Preventive detention for reasons connected with the security
ofaState, the maintenance of public order, or the maintenance of supplies and services
essential to the community; persons subjected to such detention’. These entries on
the
legislative lists are analogous to entries on the legislative lists in the 1935 Government
of
India Act.
64 Ibid. Ata meeting of Congress leaders at the time, T. T. Krishnamachari
recalled
that he had warned that certain clauses ofthe bill ‘would be shot down
by the Supreme
Court’. Patel demurred, citing Setalvad’s opinion. Krishnamachari responde
d, ‘I am
here as a Member of Parliament, and if you ask me, I think it will be
shot down. It was
very funny. Jawaharlal kept quiet.’ T. T. Krishnamachari Oral
History Transcript, p. 46
NMML.
 Free Speech, Liberty, and Public Order 57
tion’ because it was ‘repugnant to the ideal of a free and
democratic
government’.® Nehru just did not like the bill, recal
led T. T.
Krishnamachari.©° Patel spoke of his sleepless nights before
introduc-
ing the bill and defended it as necessary ‘where the very basis
of law is
sought to be undermined and attempts are made to create a
state of
affairs in which ... “men would not be men and law would not be
law” *:
The bill was directed against no ideology or party, he said, but agains
t
those who ‘make it impossible for normal government based on law to
function’. Members should think of the ‘liberties of the millions of
persons threatened by the activities of the individuals whose liberties
we have curtailed ...’.°7 Patel added, ‘“We want to protect and defend
civil liberties, but I hate criminal liberties.” ®8 One of the bill’s critics
,
H. V. Kamath, advised that one of the bill’s parts (section 14) probably
would be ruled unconstitutional, for how could the courts deter
mine
whether a detention was unconstitutional if it could not examine the
grounds for the detention. Parliament heard the Attorney General
Setalvad’s rebuttal, and Kamath’s amendments to the section were voted
down.®9
The Act authorized detention of persons acting prejudicially toward
the defence and security of India, relations with foreign powers, and
the maintenance of public order and essential supplies and services.
Detenus were to be given the grounds for the order, unless it was against
the public interest to disclose them; they were allowed to make repre-
sentation against them; and the grounds and any representations by

65 Bayley, Preventive Detention, p.F2.

66 T. T. Krishnamachari Oral History Transcript, p. 12.
Nehru several times in his letters enjoined the chief ministers to be careful in
implementing preventive detention laws, making clear his view that they were directed at
individuals causing disruption and not against ideology as such, including communist
ideology. He also thought it ‘very necessary that we should not mix up the labour questions
with other questions of public order’. Illegal strikes and disrespect of law by labour unions
might result from curtailment ofliberties. He thought the 1947 Industrial Disputes Act
contained sufficient safeguards ‘to ensure that essential services function uninterruptedly’.
Letter of 1 March 1950, NLTCM, vol. 2, p. 50.
Yet Nehru also agreed with the opinion of the chief ministers, in their August 1950
conference, that preventive detention could be used against persons interfering with the
maintenance ofessential services and supplies, including black marketeers and hoarders.
Nehru thought using detention in such instances would act as ‘a powerful deterrent’.
Letters of 26 August and 14 September 1950, ibid., pp. 177-8, 193-4.
67 Parliamentary Debates as cited in Bayley, Preventive Detention, p. 12.
68 Hindustan Times, 26 February 1950.
69 Bayley, Preventive Detention, pp. 16-17.
58 Working a Democratic Constitution

the detenu were to be placed before an advisory board (two high court
judges or persons qualified to be such), which was to give its opinion
whether there had been sufficient cause for the detention. Except, that
for detentions relating to the defence and security of India, relations
with foreign powers, the security of ‘a state’, and the maintenance of
public order, persons could be detained for up to a year without ob-
taining an advisory board’s view. Disclosure to a court of the grounds
for the detention and any representation by a detenu was prohibited
by section 14 of the bill.” The Act contained no language directing
government to abide by an advisory board’s decision. Whether an in-
tentional or accidental omission, this was changed in the 1951 exten-
sion of the Act, something the government then hailed as a great im-
provement.
The Act was challenged in the celebrated Gopalan case of 1950, in
which freedom of expression and personal liberty were joined in the
first Fundamental Rights case to reach the Supreme Court. A Kerala
native, member of the Congress Socialist Party in the thirties, and by
1951 president of the Communist Party’s All-India Kisan Sabha, A. K.
Gopalan had been in and out of jail since 1947, allegedly for threatening
the police in a speech and otherwise speaking his mind. Each time the
conviction had been set aside.’! After having been detained again,
Gopalan was detained further under the Preventive Detention Act of
1950. He appealed directly to the Supreme Court under Article 32 for
a writ of habeas corpus, claiming that his fundamental nights to freedom
of speech and expression and to travel freely in India (Article 19(1) (a),
and (d)) had been violated; that he had been deprived ofliberty other
than by ‘procedure established by law’ (Article 21); and that his
detention under Article 22 was in bad faith.”2

70 Preventive Detention Act, 1950, Bill No. 12 of 1950.

It was a punishable offence to disclose such information without state or central
government assent.
71 On one occasion, the future Chief Justice of India, K. Subba Rao, then with the
Madras High Court, dismissed the case on the ground that the magistrate had paid
insufficient attention to the niajor question involved. A. K. Gopalan v District Magistrate,
Malabar AIR 1949 Madras 596ff. Gopalan then had been detained under the Madras
Maintenance of Public Order Act, 1947.
72 A. K. Gopalan v The State ofMadras. 1950 (1) SCR 88ff. Decision on 19 May 1950.
Each judge wrote a separate opinion. The majority of four consisted of Chief Justice
Harilal Kania, Patanjali Sastri, B. K. Mukherjea, and S. R. Das. The two other judges were
Saiyid Fazl Ali and M. C, Mahajan. M. K. Nambiyar defended Gopalan. The government's
advocates were K. Rajah Aiyar, Advocate General of Madras, and M. C. Setalvad, Attorney
General of India.
 (ropale' = dR PeecenS pA

Free Speech, Liberty, and Public Order 59

The Supreme Court declined to rule on the latter contention
because it did not know the grounds for the detention because Gopalan
had been denied them. Four judges of the six-judge bench upheld the
detention, but, as H. V. Kamath had predicted, all six struck down section
14 of the Act. This, they said, contravened Article 22(5), which provided
that the grounds for detention should be given to detenus. Justice
Mahajan commented that Section 14 ‘is in the nature of an iron curtain
around the acts of authority making the order of preventive detention’.
The majority held that freedom of expression did not arise directly as
an issue because no legislation restricting it was involved in the case,
nor was it germane that punitive detention might result in the
abridgement of the freedoms in Article 19.73 Judges Fazl Ali and
Mahajan held the detention illegal on the ground that Section 12 of
the Act (under which a detenu could be held up to a year without an
advisory board’s review) and Section 14 were unconstitutional because
they violated Article 22 itself. Article 22 had become, so to speak, a law
unto itself, they said.’4
The Act and the Supreme Court’s ruling on it aroused apprehensions.
The Times of India was concerned by the ‘notes of hesitancy’ in the
opinions upholding the act.’> The Statesman said that the public
probably supported the legislation, but it ought not to be used ‘merely
to promote the convenience of officials’. ‘The conduct of some detaining
officials had been such that ‘investigation by higher authority’ was

For a brief analysis of the case, see Bayley, Preventive Detention, pp. 40-3, and Seervai,
Constitutional Law, vol. 1, ch. 10.
73 1950 (1) SCR 89.
The majority also held that the freedom to move freely throughout India (Article _
19(1) (d)) applied only to a free person and not to a person under detention. Justice ~

neve {
Mukherjea, commenting on an issue that would appear in many future habeus corpus '

V cases, said that the word ‘law’ in Article 2i meant state-made law and did not mean the
principles of justice. Gopalan had argued that ‘law’ in this article included substantive
due process and, at least, procedural due process, another contention the judges refused
to accept. /
74 Within a few days of this ruling, the Court heard and reserved orders on seventeen
other petitions from detenus who had challenged their detention on the basis of section
14 being struck down. But the Court upheld the detention of N. B. Khare, president of
the Hindu Mahasabha, who had been externed from Punjab under the East Punjab Public
Safety Act, on the ground that the Act gave a District Magistrate authority to pass such an
order on his subjective satisfaction. Times of India, 27 May 1950.
75 Issue of 28 May 1950. In this and in an editorial on 31 May, the paper regretted the
absence of unanimity in the Court’s decisions, which detracted from the court’s authority
and ‘causes bewilderment and consternation in the public mind’.
 60 Working a Democratic Constitution
napa
urgent, and ‘itis conceivable that a remedy for the grossest aes
lie in a civil action for damages against the detaining authority : =
Mody, then governor of Uttar Pradesh, MEE, ite President a :
quoting Justice Sen of the Calcutta High Court: ‘“the judiciary is eing
converted into a legislature with limited powers and the eseatche is
converted into a judiciary whose decisions were to be final.
On 19 February 1951, Parliament extended the act for another
year.’® Speaking on the bill, C. Rajagopalachari, who had become Home
Minister upon Patel’s death in December 1950, advocated the extension
of the Act more vigorously than had his predecessor. ‘“Stern and
ruthless” ’ action was needed, Rajagopalachani said, against * “mischievous
and violent elements, fanatical”’ communists, blackmarketeers, and
communalists.’? He admitted that the bill was ‘ “certainly an infringement
of what may be called a normal principle of criminal justice” ’, but in the
preventive field ‘“we cannot have the same amount of concreteness in
evidence as we can demand when a prosecutor alleges overt acts in
proving an attempt or an abetment of a specific crime.” 89

76 The Statesman. The Hindustan Times supported the legislation. Issue of 31 May
1950.
7 Mody in his ‘Fortnightly Letter’ to the President, dated 8 April 1950.
H. K. Mody
Papers, File 20, NMML. Mody also wrote that in states where there
was prohibition,
ministers are talking of ‘punitive police and collective fines’
for offences, and one minister
even talked of ‘concentration camps’. He deplored this ‘frame
of mind’ and wrote that it
accorded ill with the principles of the Constitution.
The governors sent these letters quite regularly to the
President, who often replied to
——— Prasad seems regularly to have passed on the letters
to Nehru. (See ch. 6.)
On the day the President gave his assent, 22
February, the Madras High Court
released A. K. Gopalan, ruling his detention
illegal on the grounds that the order was
vague, indefinite, and did not specify
the period of detention. The judges
were

- [and creates] a good deal

Gopal, Selected Works of Nehr of prejud; i :
u, vol. 15, part 2, p. 156. :
A year later, Gopalan was elec aiass gai
ted to the Lok Sabha from
he was re-elected in the second a Mad ras constituency, and
general election of 1957 from
He was detained again in ac onstituency in Kerala.
1964 and 1965.
Soon thereafter, a little-known
man, also wa nted in Mad
activities, was arre ras for communist-relat
sted in Bombay. But th e Sup ed
Kumaramangalam on 5 Apnil. Twenty yea reme Court released
rs later he was one of the mos Mohan
a
,
figures in public life. t important political
79 Hindustan Times, 16 Febr
uary 1951. For the entire
see Parliamentary Debates, vol. 8, part 2, two |lundred pages of debate,
cols 2677ff.
80 Ibid.
 Neohnw clots wv! ial a

Free Speech, Liberty, and Public Order 61

Again, the critics were heard but not heeded. Under this amended
law, the grounds for a detention order and any representation made
against it were to be given within six weeks to an Advisory Board, which
might hear the detenu in person. If the Board found insufficient cause
for the detention, it was explicitly provided that the person was to be
released. If the detention were upheld, it could be continued ‘for such
period as it [the government] thinks fit’. The membership of advisory
boards was raised from two to three, and decisions were to be by majority
vote.S! The Supreme Court upheld this Act, saying that it substantially
satisfied the requirements of Article 22(4).8?
Successive Preventive Detention Acts were passed in 1952, 1954, 1957,
and 1960. The government repeated its by-now standard justifications
but gave greater emphasis to protecting the web’s social revolutionary
strand. Public order comes first, said a Congress Parliamentary Party
pamphlet, ‘then all endeavours to promote social welfare ... are possible
and practicable’.°? Said Nehru during the 1952 debate, the detention
power is necessary to combat ‘anti-social activities ... [with] communal
purposes’ and ‘jagirdari activities’ in Rajasthan and Saurashtra. What
would be the fate of “that unhappy wretch’ who testified against a jagirdar
in open court, he asked. ‘I doubt if... Rule of Law ... concepts can apply
in vacuo to any given situation in India.’®4 But he still was concerned
about the law’s abuses. He wrote to the chief ministers that some
individuals had been in jail longer than they would have been had they
been sentenced for a crime.®° The bill is ‘absolutely essential ... for the

81 The Preventive Detention (Amendment) Act, 1951, no. IV of 1951.

82 In S. Krishnan v State of Madras 1951 SCR 621. Swaroop, Preventive Detention, p. 69.
Parliament had amended the February 1950 Act in August 1950, removing section 14.
83 The pamphlet was intended ‘to clarify the issues involved’. Preventive Detention Act,
CPP, New Delhi, November 1952. The pamphlet had been prepared by the CPP’s Bureau
of Parliamentary Research and was pamphlet no. 6, the last, in a “Talking Points Series’.
*... [A]ll endeavours to promote ...’ is from Home Minister K. N. Katju’s Foreword to the
pamphlet.
84 Parliamentary Debates, House of the People, vol. 4, no. 4, especially cols 5198-9, 2 August
1952.
Jagirdars were landholders who, when divested of their lands under zamindari
abolition laws, often terrorized peasants to regain possession. They also threatened to
kill persons voting for Congress in the general elections, and, in some instances, made
common cause with ‘dacoits’ (rural gangs of bandits) to enforce their will. Nehru devoted
a large portion of his letter to chief ministers dated 25 July 1952 to this subject and
referred to it again in his letter of 2 August 1952. NLTCM, vol. 3, pp. 54-64, 65.
85 Nehru’s concern was not unfounded. H. K. Mahtab soon thereafter wrote to Katyu
that he had definite information that tribunals had released detenus ‘with the remarks
that there has been gross abuse of power or the grounds shown are flimsy ... [The
 62 Working a Democratic Constitution
hate
suppression of communism’, said Honie Minister K. N. pei
gon
succeeded Rajagopalachari, adding sessions not talking we
... they are my great and dear friends. Home Minister a s: an :
1960, called the act necessary to “preserve sie ackso when t “
country was faced with satyagraha, which led to violence an
;
disruption” ’ whether so intended or not.
86 ,

The critics of all these laws attacked them as brutal, barbarous, an

repugnant to democracy. They opposed the power to detain preventively
being given to district magistrates, who were deemed to be untrustwor-
thy.8’ The Act ‘is a confession that the government in power cannot
govern with rules of law ... but must have arbitary powers to imprison
people on suspicion’, said a statement issued by the All-India Civil
Liberties Council.4° Their suggestions that detention be limited to the
defence of India or to parts of the country were rejected. Alterations in
succeeding Acts made them slightly mcre favourable to detenus.

Preventive Detention Act] works as an engine of oppression in many cases. To suppress a

few anti-social elements, a large number of anti-social persons are being created.’ Letter
of 27 May 1952. Hare Krushna Mahtab Papers, K. N. Katju File. NMML.
SOvAR 1-7 January 1961, p. 3717. The renewal of the Act in 1957 had permitted
Jammu and Kashmir to enact its own preventive detention law. Previous acts had explicitly
exempted Jammu and Kashmir from their reach. State governments had all along been
empowered to pass their own preventive detention Jaws under item 3 of the Concurre
nt
List. But such laws were to contain at least the safeguards in the central
act, thus giving
some uniformity to state legislation and uniform protection—to
the extent that the
‘protections’ were genuinely applied—to detenus throughout
the country. Bayley,
Preventive Detention, p. 22.
Parliament enacted legislation in 1955 that, although not
strictly speaking authorizing
preventive detention, nonetheless was drastic.
The Armed Forces (Special Powers) Act,
1955, authorized governors to declare an area ‘disturbed’
and order the use of the armed
forces ‘in aid of civil power’. Once an area had
been declared ‘disturbed’, commissioned
and non-commissioned officers were authorized
to warn and then shoot to kill, to arrest

could be instituted without central gove

rnment sanction. The 1955 Act applied
to Assam
d to other states as they were formed in
nis art was replicated in the Punj the Northeast.
ab and elsewhere in later years.
. It should be understood that arres
t under a pre ventive detention law
action, not one taken is an executive
met within the cr ‘iminal justice syst
oo em. The dete nu does not come into
with the judicial system until his
case goes to the Advisory Board.
The Indian Civil Liberties Bulle
tin,
Papers, NMML. Both this Bulle
tin
legal analyses, reports of individu
:
 Free Speech, Liberty, and Public Order 63

Preventive Detention During An Emergency

The central and state government’s existing powers of preventive
detention paled compared with the massive authority to detain and
otherwise to curtail liberty and the Fundamental Rights that came with
the proclamation of India’s first national emergency by President
Radhakrishnan on 26 October 1962. Six days previously, newspapers
had reported a ‘massive attack’ by Chinese troops across the MacMahon
Line, India’s northeast frontier with Tibet. Reports from the front grew
steadily worse in ensuing days, creating near panic in New Delhi. The
nation felt itself in crisis. Prime Minister Nehru, ina radio broadcast
on 22 October, summoned the nation to ‘“gird up its loins”’ to oppose
oe

‘“a powerful and unscrupulous opponent”’. The President followed

his emergency proclamation (under Article 352) by promulgating The
Defence of India Ordinance and a subsequent ordinance. Invoking
Article 359 he suspended the right to move the courts for the
enforcement of Fundamental Rights Articles 21 and 22, with the
former’s protections for life and liberty and the latter’s limited
protection for detenus. On 7 November, the government issued 156
‘rules’, named the Defence of India Rules (DIR), under the Defence of
India Act (DIA) proclaimed by the first ordinance. On 11 November,
the President suspended a third fundamental right, equality before,
and equal protection of, the law (Article 14) 8?
These measures enormously strengthened the government’s power
to curtail civil liberties and to regulate citizens’ affairs. The first of the
two 1962 ordinances empowered the government to make rules for
securing the defence of India, public safety, public order, the efficient
conduct of military operations, and supplies and services essential to
the life of the community. Under the Defence of India Rules, the
government could arrest and try persons contravening them in order
to prevent tampering with the loyalty of persons entering the service of

89 The Constitution’s ‘Emergency Provisions’ are in Part XVIII of the Constitution

and empower the President to declare a state of emergency if satisfied that a ‘grave
emergency’ exists that threatens ‘the security of India’ or any part of it from ‘war or
external aggression or internal disturbances’ (Article 352). Such proclamations have to
be endorsed by Parliament. Under an emergency, the central government and Parliament
may govern the states directly, the freedoms of Article 19 shall not restrict government
to move the
action, and the President may suspend, collectively or individually, the right
courts for enforcement of the Fundamental Rights. Two articles of the emergency
provisions authorize the President to take over administration ofa state. Called ‘President's
of
Rule’, this will be discussed in later chapters along with the cen tralizing characteristics
the emergency provisions.
 64 Working a Democratic Constitution
the government and spreading false reports ‘likely to cause disaffection
or alarm ... or hatred between different classes of the people of gee
and to ensure the protection of ports, railways, and so on (48 items).
The ordinance also continued in force the Official Secrets Act of
1923 and provided for the constituting of three-person tribunals to hear
cases, which could ‘take cognizance of offences without the accused
being committed to it for trial’. An individual sentenced by a Special
Tribunal to death or life imprisonment might appeal to the appropriate
high court, but there could be no appeals on other grounds. Finally, no
order made or power conferred by the ordinance could be questioned
in any court and there could be no legal proceeding against any person
for actions under the ordinance if done ‘in good faith’.2! The second,
amending, ordinance empowered government to detain persons on
any grounds it deemed reasonable to prevent them from the ‘prejudicial’
acts enumerated earlier and to make persons reside in, or refrain from
residing in, geographical areas.9* The 1955 Essential Commodities Act
and the 1950 Preventive Detention Act (still in force, as renewed) further
contributed to the assemblage of massive government authority. The
two houses of Parliament unrestrainedly approved the proclamation
of
emergency on 13 and 14 November, and the Defence of India
Act (DIA)
replaced the two ordinances on 12 December.
Nationalistic response to the war was great. Women contr
ibuted their
gold jewellery. The CPI said that Chinese withdrawal
must precede
negotiations on the border dispute.93 Nehru formed
the National Defence

°° The first ordinance and the rules issued

under it closely resembled the 1939 Defe
of India Act, which the Governor General nce
proclaimed on 19 September 1939, the
Empire [having] declared war again ‘British
st Germany’ on 3 September, and
Rules which he issued under his power Defence of India
to promulgate ordinances with the
legislative acts (see secti force of
on 72 of the Government of India
Act, 1935). Section 102 of this
Act also empowered the Governor Gener
al to proclaim a state of emergency
emergency exists whereby the security if ‘a grave
of India is threatened by war’.
For the text and analysis of the 1939
Act,
see Kamat, A. N.,
1939, and the Rules Made Thereunder, Hindmata Print ing Hous
C ;
mene
S. and B. N. Mehrotrotra,
a, Def.
e. al t ov at e
Defence of Indiai Laws and Rules, 4 vols, ;
Law Publishers , Allahabad,
91 Sections 32 and 34 of the ordi
nance.
92 The Defence of India (Am
endment) Ordinance, 1962
clause 13A after clause 13 of the first , section 2 adding a new
ordinance,
93 Several communist lead
ers were detained for alle
and some of them became members of ged pro-Chinese syn
the China-leaning Communist ais at hi
(Marxist) when it split from a —
the Communist Party of Indi
(M), as it is typically referred to, a in 1964 ep re A ae
will be designated the CPM.
. aay
 Free Speech, Liberty, and Public Order 65
Council to advise on the war effort and to reinforce the national will.
President Radhakrishnan was patron and Indira Gandhi chairperson of
the Citizens’ Central Council, established to encourage and coordinate
citizens’ efforts.
With the unilateral withdrawal of Chinese forces on 21 December,
patriotic spirit did not wane, but criticism of the suspension of civil
liberties flared. Rajagopalachari, now a Swatantra Party leader, on 24
December 1962 said that the continuance of the emergency and the
powers of the DIA in light of the withdrawal created a ‘crisis of
democracy’.*+ The Jana Sangh said the Congress slogan of ‘“one nation,
one party and one leader” smacked offascist tendencies’.9° ByJuly 1963,
the CPI was calling the emergency ‘“an instrument of intimidation of
the masses ... directed against the people’s movement”’.9° The Bar
Association of India published a booklet, Parliament: Emergency and
Personal Freedom—Opinions ofJurists, in which former Attorney General
M. C. Setalvad, N. C. Chatterjee, and others argued that preventive
detention infringed civil liberties.9”
The government disagreed and in October 1963 extended the
emergency for another three years.98 Responding to loud criticism, the
Home Minister asserted that government was not using preventive
detention for political purposes and that since the emergency only 1,323
persons had been detained and only 282 of these remained in custody.99
But the government continued to use the Defence of India Act and Rules
in preference to the still-in-force Preventive Detention Act of 1950. Some
seven hundred ‘left communists’ were detained at the end of 1964,
supposedly because the government believed an uprising was imminent.
During elections in Kerala in 1965, twenty-eight of these individuals

94 Times of India, quoted in AR, 15-21 January 1963, p. 4991.

95 AR, 29 January—4 February 1963, p. 5018.
96 From a resolution passed at the meeting of the National Council in New Delhi,
June 27-July 2. AR, 23-29 July 1963, p. 5320.
97 Setalvad, M. C. et al., Parliament: Emergency and Personal Freedom—Opinions ofJurists,
Bar Association of India, New Delhi, 1963.
The contributors were: M. C. Setalvad, A. V. Visvanatha Sastri, N. C. Chatterjee, M. K.
Nambiyar, Sarjoo Prasad, A. S. R. Chari and C. B. Agarwala. See also Koppell, G. O., ‘The
Emergency, The Courts and Indian Democracy’, in JILI, vol. 8, no. 3, 1966, pp. 287-337.
98 Statesman, as reported in AR, 8-14 January 1964, p. 5608.
99 Ibid. Dissatisfactions among members of Parliament caused the government to
allow to lapse on 28 April 1964 the Constitution (Eighteenth Amendment) Bill, which
Law Minister A. K. Sen had introduced on 24 April. This would have exempted the
government from suits arising from the emergency. [bid. For the legislative history of the
bill and its text, see Constitution Amendment in India, pp. 170, 379.
 66 Working a Democratic Constitution

(including A. K. Gopalan) won seats in the legislative assembly while

ge
detained. There were detentions under the DIA during the 1965 langua
riots in Madras. The war scare with Pakistan in the spring of 1965 and
actual war that autumn caused government to employ the DIA yet again.
With the Tashkent Agreement of January 1966 having ended the
war with Pakistan, Setalvad, Chatterjee, and members of Parliament
renewed their campaign to revoke the DIA and the 1962 emergency
proclamation. They were joined by the CPI, the Jana Sangh, and the
PSP. That March, thirty-four eminent individuals led by former Chief
Justices of India M. C. Mahajan, S. R. Das, and B. P. Sinha sent an open
letter to the President and Prime Minister saying that the moment was
‘opportune’ to ‘restore to our democracy its true stature by making it
possible for the citizen to exercise his basic rights’.!0° Making accusations
that often would be heard in later years, the letter said that the DIR
‘had been used ... not for the purpose of the defence of the country
but for collateral purposes ... used ... in substitution of ordinary law ...
used ... [against] ordinary criminals against whom conviction was
difficult to obtain in ordinary criminal courts’.!2!
The government was undecided, first giving an assurance that
preventive detention under the emergency powers would be used only
in border areas,!°? then announcing that the emergency might end in
July 1967, only to announce in June 1967 that it would be continued
‘indefinitely ‘ “in the interests of national security and defence” 103 The
emergency lapsed on 31 December 1967 when the government did not

100 President and Prime Minister Must Revoke Emergency, Restore Fundamental Rights:
Appeal
By All Former Chief Justices of India and Leading Citizens, Communist Party Parliame
ntary
Group, Communist Party of Incia, New Delhi, 1966, p. 5. Among those
who signed the
appeal, in addition to the former chief justices, were five former
high court judges, eight
editors of major newspapers, the vice-chancellors of five major
universities, and Public
figures such as K. M. Munshi, H. N. Kunzru, Mulk Raj
Anand, N. C. Chatterjee, and M.C
Setalvad. os
101 Thid., pp. 2-3. The authors quoted a judge who said
that detention orders would
not have been ‘“more arbitrary and oppressive ...
[if] ours was a police state, and we had
never heard of democracy and the rule of law”’.
;
102 Home Minister G. L. Nanda’s statement in Parliame
nt. Nanda added ‘“As so
of these powers will not be available once the
proclamation of Emergency is ices
and since it is not possible under the Constitu
tion to limit the operation of ‘
proclamation to certain parts of the country,
the proclamation should not be revok a
for the present”’. Hindusian Times, 28 April 1966.
—
The Assam language riots of 1960 had
also evoked talk of the need to chan
Constitution to permit declaration of an emergen
cy only in a part of the cine ee
was or through the Forty-second Amendment in
1976 (see ch. 17). nha
AR, 23-29 July 1967, p. 7823. Y. B.
Chavan was then Home Minister,
He Cited
 Free Speech, Liberty, and Public Order 67
seek its renewal, reportedly because of dissension within the Congress
and doubts about having sufficient votes to assure its re-enactment.!04
The 1950 Preventive Detention Act would lapse in 1969, apparently for
the same reasons, but, as will be seen in parts {f and III, the country
would not long be spared preventive detention or imposition of an
emergency.
Preventive detention had had seductive charms for the executive
branch, as the former chief justices’ letter had pointed out. Although
perhaps a ‘necessary evil’, as some believed, in certain political situa-
tions and when witness intimidation made impossible convictions of
well-known criminals, it easily became a crutch whose over-use produced
not only injustice to individuals but also atrophy in police investigatory
and prosecutorial skills—hazards that would intensify over time. An-
other motivation for detention’s over-use may be named ‘executive con-
venience’. It is easier than the arduous. and chancy, process of trying to
convict economic or political offenders. These former chief justices
of India found themselves, as would many jurists and citizens after
them, ‘rudely disturbed’ that the ‘continuous exercise of the very wide
powers ... is likely to make ... the ... authorities insensitive ... to the.
freedom of indian citizens ... and pose a serious threat’ to the country’s
democracy.!%

disquieting conditions in the Northeast and said the emergency powers would not be
exercised in the rest of the country.
104 Meanwhile, however, the central government had enacted legislation giving it
and several state governments extraordinary powers— although all of these did not provide
for preventive detention—such as the Assam Disturbed Areas Act, the Armed Forces
(Special Powers) Act, the Unlawful Activities (Prevention) Ordinance, and ordinances
strengthening the Essential Commodities and Essential Services Acts.
105 In G. Sadanand v State of Kerala 1996 (3) SCR 599. See also p. 595.
The danger to democracy and to individual liberty was all the greater because judges,
jurists and lawyers were in a tangle over the citizen’s right to habeas corpus during an
emergericy, as the Bar Association acknowledged in Parliament. Emergency and Personal
Freedom. Under Article 359, the President may, during an emergency, suspend the right 4
granted by Articles 32 and 226 to move the courts for a writ of habeas corpus. The issue
would re-emerge a decade hence in the famous Habeas Corpus case (ch. 15).
Former Attorney General Setalvad, for example, argued that although the ‘freedoms’
under Article 19 were not suspended during an emergency, the righit to move the courts
for their enforcernent was. Yet the suspension of the right to a writ did not suspend the
writ itself, which. would be ‘issued as a matter of course’, whereupon the court would
decide ‘whether the party applying is denied the right of proceeding any further with it’.
|
Parliament: Emergency, p. 5.
As though this argument were not sufficiently opaque, Setalvad seemed to dilute his
 68 Working a Democratic Constitution

position further when he added that all governments during times of emergency have
given ‘even a strained construction to legislation’ to uphold executive powers. Ibid., p. 9.
Editorials in the Indian Express and in the Times of India, commenting on the opinions in
the booklet, said that the Fundamental Rights of the Constitution should be treated as
truly fundamental and their suspension was not warranted unless there were a genuine
emergency, which, in the spring of 1963, there was not. Ibid., appendices II and III.
Judicial rulings clarified the maiter only partially. Detenus had been released by the
Allahabad High Court when granting pleas made on the same grounds as those found
wanting by the Punjab and Bombay High Courts. The Supreme Cecurt, when hearing the
combined appeals of twenty-six detenus whose pleas had been rejected in the Punjab
and Bombay High Courts, on 2 September 1963 upheld the government's authority to
suspend enforcement of the Fundamental Rights. The case took its name, Makkan Singh’s
case, from one of Punjab’s detenus. Makkan Singh Tarsikka v State of Punjab 1964 (4) SCR
797ff, also AIR 1964 SC 381ff. The bench consisted ofJustices P. B. Gajendragadkar, A. K.
Sarkar, K. Subba Rao, K. N. Wanchoo, M. Hidayatullah, K. C. Das Gupta and J. C. Shah.
Gajendragadkar gave the majority opinion for himself and Judges Sarkar,
Wanchoo,
Hidayatullah, Das Gupta , and Shah. Subba Rao dissented.
The opinion said ‘we will have to give effect to the plain words of Article
359 (1) and
the Presidential Order issued under it,’ because ‘the democratic
faith in the inviolable
character ofindividual liberty and freedom and the majesty
of the law which sustains it
must ultimately be governed by the Constitution itself.”
AIR 1964 SC 404. But this majority
also ruled that there were avenues for challenging preventi
ve detention. The Criminal
Procedure Code both provided for preventive detentio
n and that a high court could
release a person illegally or improperly detained.
(Section 491 (1) (b) in the 1923 version
then in force.) Thus a writ of habeas corpus was
no longer ‘a matter of common law’ bast
‘a statutory right’ existing outside the Constitution.
AIR 1964 SC 896. An individual could
challenge his detention on the ground that
it was in bad faith, but he would have to
prove this. A detenu could also claim that his
detention ‘suffers from the vice of exce
delegation’. Gajendragadkar’s opinion, ibid., ssive
p. 400.
For the plaintiffs, M. C. Setalvad led
a batte ry of some seventy lawy
Chatterjee, Sarjoo Prasad, A. S. R. Chari, ers including N. C,
R. K. Garg, and Ashoke Desai.
interview with the author.) (R. K. Garg

ated principles supporting

the right to
not form a bar to all applic
ations for

thar, 1966 (1) SCR

own support,
; t. and if
: the court is
. ; nu can urge statutory Safeguards
safeguards iin h; 5
satisfied that the impugned : order suffe §
infirmities, then detention rs from serce ious
can be set aside, said Justice
G yendragadkar in
State of Kerala, ». 590, Sadanand v
 Chapter 3

THE SOCIAL REVOLUTION AND

THE FIRST AMENDMENT

Rajendra Prasad and Sarvepalli Radhakrishnan agreed. Said President

Prasad, the government’s aim is ‘to end poverty ... to abolish distinction
and exploitation’. Vice-President Radhakrishnan called ‘for the removal
of all social disabilities ... of man-made inequalities and injustices and
[to] provide for all equality of opportunity’.) K. Santhanam brought
together the strands of the seamless web in an article in the Hindustan
Times. The meaning of the social revolution, he wrote, was to get India
‘out of medievalism based on birth, religion, custom and community
and reconstruct her social structure on modern foundations of law,
individual merit, and secular education’.*
But conundrums lay in wait, as they did when provisions in the
Fundamental Rights allowed personal conduct that seemed to endanger
political stability and national unity and integrity. Demands of the
social revolutionary strand of the seamless web would run head-on into
other provisions in the Rights chapter with, additionally, critical
implications for the democracy strand. The Supreme Court ruled
unconstitutional government legislation and rules changing property
relations and removing the ‘man-made inequalities’ of which Vice-President
Radhakrishnan had spoken. Remedy again was sought in amending
the Constitution.
At the heart of the confrontation were issues crucial in any democracy,
and especially in India’s, with its hierarchical social system, its
predominantly agricultural economy, and its vital interest in the
seamlessness of the web: individual interest against the national interest;
one individual's rights against another’s; government's role in reforming
society; and conflicts between ‘law’ and ‘justice’. What was to be the
judiciary’s share in ““ordering the life of a progressive people”’? (See

! For Prasad, see CAD, vol. 5, no. 1, p. 2. For Radhakrishnan, who then was Vice-
President, see Radhakrishnan, Occasional Speeches and Writings, Ministry of Information
and Broadcasting, GOI, New Delhi, 1956, p. 362.
2 Issue dated 8 September 1946.
 70 Working a Democratic Constitution
ne»
chapter 5.) Other than freedom of speech, the specific Aar
Be
in the First Amendment were the individual S rigaY iefiae! Pesi
i
versus government's authority to take it under its police powe te
social revolutionary purposes, and the subordinate issue of y
compensation due for the taking; and one individual’s mantra
right to protection against discrimination and : equality un er the
law versus another’s right—because of his or her backward’ status in
society—to special opportunity in access to sduesaon and employment.
This chapter will discuss the First Amendment’s provisions relating
property, focusing on agricultural property and the nationalization oO
commercial and industrial property. The chapter concludes with the
amendment’s provisions relating to special treatment for disadvantaged
citizens.

The Background
The Congress having been both the party of independence and of
the social revolution, it was inevitable that constitutional government
in India would be social revolutionary and socialist. Gandhi had
made insistent efforts to end untouchability and other forms of
discrimination. Sardar Patel and Rajendra Prasad had helped him
lead satyagrahas for peasant rights. Nehru, whom Gandhi anointed
his heir, was, as he said of himself in 1929, a ‘“socialist and a
republican”’.3 Such views were widely held. The party
in its 1928
‘Nehru Report’ declared its dedication to the
fundamental rights
well known in England and the United States
and added others such
as protection of minority, language, and
educational rights, and
freedom of conscience and religion.*
The content of the party’s
socialism became clear in its 1931 Karachi
Resolution. Among other
things, it said that ‘key industries and services,
mineral resources,
railways, waterways [and] shipping’
were to be government controlled,
and the government was to safeguard
the interests of ‘industrial
workers’ and women and children.>
The resolution called un specifically
3 Cited in Nanda, B. R., Jawaharl
al Nehru, Oxford University Pres
185. s, Delhi, 1995 p
seri
4 Re
port ofa Committee to Determin
" C. :
*
e Principl
. :
es of
the Constitution for India, All
. . > .
erence, nen pp- 89-90. Parties
This was the so-called Nehru
Jawaharlal’s father. Report, named after Motilal,
> ‘Resolution on Fundamental Rig
hts and Economic and Soci
the 45th Indian National Congress, AICC, al Change’
Bombay, 1931, pp. 139-41, Se’, Report of
 The Social Revolution and the First Amendmen
t 7]
for land tenure reform, treating the issue gingerly in line
with Gandhi's
policy of a unified effort against British rule unhindered
by intra-
party conflicts. Others jn the party, like the Congress Social
ists, were
not so restrained. The’ Congress Socialist Party— formed
in 1934, of
which Nehru was a supportive non-member—had no such inhibi
tions.
Among its objectives were the ‘elimination of princes and landl
ords
and all other classes of exploiters without compensation
’ and
‘redistribution of land to peasants’.®
The social revolution was put at the top of the national agenda by
the Constituent Assembly when it adopted the Objectives Resolution,
which called for social, economic, and political justice, and equality
ofstatus, opportunity, and before the law for all people. The Directive
Principles of State Policy would make explicit the ‘socialist’, as well as
the social revolutionary, content of the Constitution.
The Planning Commission was established, with Nehru at its head,
within a month of the Constitution’s inauguration, to determine ‘the
machinery’ for implementing the Directive Principles, and to assess
national resources and plan for their effective and balanced use.’ The
government's Industrial Policy Resolution of 1948 said that ‘the
equitable distribution of wealth, not the distribution of poverty’ should
be the criterion for government participation in industry and for
‘the conditions in which private enterprise should be allowed to
operate’. Government would be ‘exclusively responsible ... [for] new
undertakings’ in areas like coal and steel, it would plan for and regulate

6 The Karachi Resolution limited itself to calling for rent reduction for tenants. The
party's position in 1934 was that it did not contemplate confiscation of private property
without cause or compensation. There was to be no ‘“class war”’. Bandyopadhyaya, J.,
The Congress and Democratic Socialism, Indian National Congress, New Delhi, 1968, p. 4.
Congress provincia! ministries formed in 1937 did not attempt zamindari abolition,
although there was much talk ofit, according to K. N. Katju, then Agriculture Minister in
the United Provinces. K. N. Katju Oral History Transcript, NMML.
For the Congress Socialist agenda, see the All India Congress Socialist Party Programme,
published by M. R. Masani for the party, Bombay, 1937. The quotes are from ibid., p. 7.
Among the party’s members who continued to be prominent after the Constitution was
inaugurated were Jayaprakash Narayan, Masan® E. M. S. Namboodiripad, Sampuranand,
Narenda Deva, Achyut Patwardhan, Ram Manohar Lohia, Ashoka Mehta, and Naba
Krushna Choudhary.
7 ‘Resolution (Planning)’, published by the Cabinet Secretariat in the Gazette of India
Extraordinary, 15'March 1950. Text given in Report: Commission on Centre-State Relations
(hereafter Sarkaria Report), 2 vols, Government of India Press, New Delhi, 1988, vol. 1, p.
391. For an invaluable source on the Planning Commission, see Frankel, Political Economy,
throughout.
 Ssuecel ? Comey Weses

72 Working a Democratic Constitution

eighteen other items; and government had the right to acquire exisung
industrial undertakings.® . .
came to many
The predilection for socialism In the nationa
leadership from their personal backgrounds and from their belief in
Vv", the indissoluble linkage between social revolution and democracy.
Socialism was thought the antithesis ofimperialism, at once its enemy
ier
and remedy, Nehru, among others, believed capitalism to be in decline,
a victim of itself, exhausted by two world wars and therefore unfit to
be a means to restructure India. Many Indian leaders had studied in
England and been influenced by Harold Laski’s view that ‘political
equality ... is never real unlessjt is accompanied by virtual economic
Ay ae Most of the upper class leaders of the independence movement
locked down on industrialists and persons ‘in trade’, much as did their
English class-conscious counterparts. Many leaders of the independence
movement disdained the indusirialists for their typically weak support
for the independence movement and the merchants and shopkeepers
for their reputations as exploiters—as moneylenders, manipulators of
commodity prices, and food adulterers. None of them, and few members
of government during the Nehru years, had personal experience in
commerce or industry. The belief was common in society that wealth
most likely was ill-gotten.2 Zamindars and other large landholders
had few friends even among those who espoused their right to greater
compensation. Many of these owed their titles to property
to the
8 Resolution on Industrial Policy, Ministry of Information
and Broadcasting, GOI, New
Delhi, 6 April 1948. The Industries (Development
and Control) Bill, 1949, gave the
resolution legislative force. And the Indian Compa
nies (Amendment) Bill, 1951, ensured
government control over the composition of
boards of directors of private companies,
the selection of ‘managing agents’, and
other company affairs.
The 1956 Industrial Policy Resolution
went further. After reaffirming the 1948
resolution and the 1954 ‘socialist pattern
of society’ resolution, it divided industries
three categories, one of which comprise into
d industries that were to be ‘progressi
owned’—in other words, nationaliz vely State-
ed.
Pp.N. Haksar is instructive on this
and related cultural aspects. See
Premonitions, Interpress, Bomb Haksar, P. N.
ay,
1979, p. 139.
bee 5 alee the large commercial .
houses, and the banks were
pA hah ed—with more than thought by the
a little justification—to be
outstanding characteristic of our monopolistic. ‘The
economy, as it has developed,
in a few hands,’ wrote Ashoka Meht is the control of industry
Ltd., Hyderabad, 1950, i, a My Mehta, , As] ke
shoka Who Owns
)
India: , Chedana Prak
“ab
asha
~
n
Mehta then provides the
dat a and describes the rele
managed companies for owne of ‘managing agents’ who
rs, ofte n with little regard for the
factories, mines, etc. und economic health of the
er t heir control, During the late
‘managing agency sy stem’ would si xties and seventies, the
be severely attacked
and weakened.
 The Social Revolution and the First Amendment 73
misguided British ‘Permanent Settlement’ and other arrangements.
They commonly were seen as exploiters of tenants and agricultural
labour, and many had supported British rule actively and been
rewarded for this.!° Finally, socialism in the form of a government-
directed economy was thought necessary to mobilize national
resources for development, to assure some balance in development
among the country’s regions, and because the private sector could
muster neither the necessary capital nor the manpower to undertake
huge enterprises like dams and steel plants.!!
The Constituent Assembly laboured arduously for the social revo-
lution when drafting the Fundamental Rights, Directive Principles of

10 The taluqdars of Oudh—an area today included in Bihar and eastern Uttar Pradesh—
had been consistently rewarded by the British for their loyalty since the late 1850s.
The zamindari system dated from the Mughal period and possibly earlier. Zamindars
were ‘tax farmers’ or tax gatherers, who collected land revenue from the tillers of the
land and sent it on to the seat of empire after having kept a percentage of the revenue
for themselves as commission. They did not hold title to the lands for which they collected a

revenue. Having this power over tillers, they could also extract rents and other cesses for
personal use. After the British had been in power for some time in Bengal, they assumed
the power to collect land revenue for the Mughal emperor. In the 1793 ‘Permanent
Settlement’—mistakenly equating zamindars with landowners in England—the British
awarded zamindars rights and titles to land and made them, in effect, landlords.
Thereupon, they paid a fixed land revenue to the government and extracted rents as
they chose from their tenants. This land system prevailed in Bengal, Bihar and parts of
Uttar Pradesh, Orissa, and Madhya Pradesh. There were variants of the system under
other names. Zamindari was a North Indian phenomenon. Landlordism in other land
tenure systems was prevalent throughout the country.
The zamindars and other such were also called ‘intermediaries’ between the
government and the tillers, and the abolition of intermediaries was synonymous with the
abolition of zamindari. Peasants who dealt directly with government regarding land
revenue were called ‘ryots’ (or ‘raiyats’), and variants of the ryotwari system prevailed in
much of the rest of India. Some ryots had rent-paying tenants. Sharecropping was common
in both systerns, as was simple landless agricultural labour. For a brief description of land
systems, see Anstey, Vera, The Economic hci hoesof India, Longmans, Green and Co.,
London, 1957, pp. 97ff; also the excellent study, Merillat, H. C. L., Land and the Constitution
in India, Columbia University Press, New York, 1970, p. 13.
11 For very informative insights about this thinking, see R. C. Dutt’s readable
Imperialism to Socialism: Memoirs of an Indian Civil Servant, Milend Publications Pvt. Ltd.,
New Delhi, 1985. A member of the Socialist Society when at Cambridge University in the
thirties, where Mohan Kumaramangalam and Rajni Patel also were undergraduates, Dutt
records that the Spanish civil war had a major effect on Indian students’ thinking. ‘I
became convinced that the economic development of India ... would have to be on the
socialist pattern.’ Free enterprise could assure neither the ‘desired pace of development
nor, indeed, the equitable distribution of the fruits thereof’. Ibid., p. 41. Dutt joined the
Indian Civil Service and would be an influential member of it until his retirement in 1972.
 74 Working a Democratic Constitution
State Policy, and the provisions for the uplift of disadvantaged copaes
The Rights expressed not only prohibitions—what i ye ong
not do—but also conditions, such as equality before the law, that gov:
ernment should strive to bring about. Property relations presented the
most difficult problem, involving as they did principles, the law, ant
money. Assembly members had been elected by members of Aneniees
legislatures who, themselves, had campaigned under a manifesto that
called for abolition of zamindaris in return for equitable compensa-
tion.!* Even as the members were at work, the 1948 report of the par-
ty’s Economic Programme Committee recommended ss peo) all
intermediaries between the tiller and the government,*” and several
provinc ial govern ments y
had begun to move on propert issues. Legis-
lators of the United Provinces, for example, passed a resolution in 1946
that endorsed zamindari abolition, appointed a zamindari abolition
committee chaired by Premier G. B. Pant, and began drafting aboli-
tion legislation. The Bombay government established a land reform
committee under Premier Morarji Desai.
These draft bills passed through Sardar Patel’s Home Ministry—the
official channel for centre-state communications—for vetting by the
concerned central ministries. This process had the openness and vigour
characteristic of Patel’s own style and of the Nehru years. It was cabinet
government at its best. Ministers expressed their views frankly, often
exchanging notes several times daily. Staff analyses did not shy away
from contentious issues, and communications between
the central and
state bureaucracies about the draft bills were forthright.
The intricacies
seemed infinite, the knottiest revolving around compensation.
What
did the word mean or imply: ‘full’ or Just’ or ‘equitable’
compensation,
or simply what a legislature prescribed it to be?*How
was compensation

12 Congress Election Manifesto, AICC, New Delhi,

1945.
'3 Tt went further and introduced the subje
ct ofland ‘ceilings’ by saying ‘the maxi
size of holdings should be fixed’. Repor mum
t of the Economic Programme Commi
Delhi, January 1948, pp. 12, 14. ttee, AICC, New

rs for civil disobedience. It res

work after the war, again with umed
Nehru as ch air. See also Crops:
Report of the Sub-committee, Planning and Production,
National Plan ning Committee
Publishers Ltd., Bombay, Series, Vora and Company
1949,
The Socialist Party called for
the ab olition of ‘landlord
ownership of land. Programme (wit ism’ and for government
h a foreword by Jayaprakash
Bombay, 1947, p. 20. Narayan), Socialist Party,
 The Social Revolution and the First Amendment 75

to be calculated—for example, as a percentage of the rents the zamindar

received? How was compensation to be paid—cash, bonds, all at once
or over time?!* Could zamindaris be ‘taken over’ at once, but ‘acquired’
later, thus avoiding an immediate obligation to pay compensation? What
of forests on and resources under a zamindar’s land?—coal mines in
Bihar were a major issue.!° Finally, what zamindari abolition laws were
likely to survive judicial review and how much could the central and
state governments afford to pay?!®
While central and state ministries were thus occupied, the zamindars
were busy lobbying in Patna, Lucknow, and New Delhi. The Maharaja
of Chota Nagpur wrote to Bihar Premier Shri Krishna Sinha that he
hoped *“the wailing of the zamindars in their distress will touch your
heart.” ’!7 While pleading their case with Patel and other ministers, the
Biharis concentrated on President Rajendra Prasad, a fellow Bihari,
telling him that the provincial government was ‘bent’ upon taking their
rights, ‘without compensation’, contrary to promises. !8 Their leader,
and perhaps the biggest zamindar of all, the Maharaja of Darbhanga,
told Prasad that they did not oppose abolition but only wanted it done
in a ‘fair way’. Prasad seems to have acted in a constitutionally proper
fashion on these occasions. He told the lobbyists that, ‘as a constitutional

14 When it once was asserted that ‘compensation’ meant cash paid at the time of
takeover, Nehru wrote to Patel that this would mean no compensation because ‘no
government in the wide world can make payment in cash in such circumstances’. Letter
from Paris, 27 October 1948. Durga Das, Patel’s Correspondence, vol. 7, p. 672.
15 Among the sources used for New Delhi’s consideration of provincial bills are:
Home Ministry Files 5/101/48 Judicial; File 5/74/48 Judicial; File 5/10/49 Judicial, vol.
1; File 43/3/50 Judicial; Law Ministry, Legislative Branch, File F41/VI/1I/48L vol. 1 and
2; Home Ministry File 17/92/50, vol. 1, Judicial (all at the NAI); the AICC and Mahtab
Papers, NMML,; Jannuzi, F. Thomasson, Agrarian Crisis in India, Sangam Books, New Delhi,
1974; Whitcombe, Elizabeth, ‘Whatever Happened to the Zamindars?’ in Sachs, I.
Hobsbawm, E. J. et al., Peasants in History: Essays in Honour of Daniel Thorner, Oxford
University Press, Calcutta 1980; and interviews—including with L. P. Singh, who was Chief
Secretary of Bihar during this period.
16 Nehru wrote to the chief ministers on 15 July 1948 that large loans to finance
compensation were unlikely because the central government’s capacity to help was
‘limited’. NLTCM, vol. 1, p. 158.
The Central Finance Ministry later warned the government of Orissa, and presumably
other state governments, that it ‘could not expect any financial assistance from the Centre
by way of loans or otherwise’ to pay compensation to zamindars. Cited in a letter from
Orissa Chief Minister Naba Krushna Chaudhuri to Prime Minister Nehru, 26 June 1950.
Hare Krushna Mahtab Papers, File 18, NMML.
17 Jannuzi, Agrarian Crisis, p. 14.
18 Ibid.
 76 Working a Democratic Constitution
. . vnc 19

President’, he was ordinarily guided by the advice of his ministers,

and he kept the cabinet informed of the deputations and their
‘suments.
» The difficulties encountered in vetting provincial land bills directly
affected the Constituent Assembly’s drafting of the Fundamental Rights
because of the dual functions performed by many of the individuals
involved. Prasad was Assembly president. B. R. Ambedkar was both Law
Minister in the government and chairman of the Assembly’s drafting
committee. Nehru and Patel, of course, were dominant in Assembly
and government. Pandit Pant and other provincial premiers also sat in
the Assembly. 3
Prasad, Nehru, and Patel were the dominant figures in the debate
and agreed that zamindari must be abolished. Patel was no less adamant
than Nehru. There was ‘hardly any room for controversy on the merits’
of abolition, Patel wrote to the Chief Minister of Orissa.2° He wrote to
Bihar Chief Minister S. K. Sinha that the Parliamentary Board had
instructed him about ‘taking immediate possession of zamindari’ and
that he should prepare a scheme and submit it to the Board.2! The
tensions among the three central leaders—shared by many others—
arose over how much should be paid in compensation. Nehru preferred
a minimal level, Prasad tilted toward the zamindars, and Patel, supported

'9 Home Ministry File 17/92/50 Judicial, NAI.

20 To Naba Krushna Chaudhuri on 1 August 1950. Home Ministry File 17/5/50
Judicial, NAI.
21 Letter of 8 May 1947. Durga Das, Patel’s Correspondence, vol.
4, p. 103.
In mid-August, Sardar Patel wrote Nehru a most interesti
ng letter about the compromise
over the property article and zamindari abolition, which
deserves quotation at length.
I have, therefore, told Munshi tht the altern
ative draft which he brought would
be adequate. There is still a certain amount
of discrimination against the
zamindari property, but that we could justif
y on the ground that this abolition
of zamindari is either a fact already or is
going to be a fact in the near future.
It is necessary to ensure that whatever has
been done is not undone on technical
grounds. Apar t from this, we can also contend
that the zamindars are only
intermediaries and all their rights in
land flow from the recognition of their
status as such by the State. The
land belongs to the State, and ther
zamindars are not entitled to full right efore the
s of and compensation for ownershi
think, if put in this way, there p I
will not be any difficulty in the
te “ehdelesitia other than zamindar party, particularly
i are outside the scope of this disc
riminatory
Letter dated 16 August 1949, Ibid.
, vol. 8, p. 603. Emphasis added.
Additionally, court scrutiny was
constitutionally prohibited on
bills enacted less than
ation of the Constitution if
the President had assented
on—contravening the
compensation
overnment of India
Act.
 The Social Revolution and the First Amendment 77

strongly by Finance Minister John Mathai, wanted compensation to be

just and fair. Patel, however, intended to keep the qualification ‘just’ out
of the Constitution to prevent abolition from being blocked, or slowed
down, by court interpretation of the word.*?
During August 1949, Assembly members reached the compromise
that became Article 31 of the Constitution’s Fundamental Rights. In
essence, this said that no person could be deprived of his property ex-
cept by authority of law, and no property (including anyone's interest
in company, commercial, or industrial undertakings) could be acquired
for public purposes unless the law provided for compensation and
either fixed the amount of, or specified the principles upon which, the
compensation would be determined. Such state bills were to have the
President’s assent; and any bill passed and assented to could not be
questioned in court as contravening the compensation clause. The
compromise satisfied Patel, and two of its architects commended its
efficacy to the Assembly. K. M. Munshi said that if the principles of
compensation laid down were genuine, the courts would ‘“not substi-
tute their own sense of fairness” ’ and ‘ “they will not judge the adequacy
6“

of compensation ... unless the inadequacy is so gross as to be tanta-

mount to a fraud on the fundamental right to own property” ’.23 Nehru
told Assembly members that, eminent lawyers have told us that ‘“on a
proper construction of this clause (clause 2, the compensation clause)
normally speaking, the judiciary should not and does not come in.”’
Nehru also said that equity applied to the community as well as to the
individual and that no individual could override the rights of the com-
munity at large.2* How very wrong they were would be evident within a
few months, and their chagrin niay have had nota little to do with their
subsequent antagonism toward the Supreme Court.
The Assembly already had adopted the property clauses of what would
become the ‘freedoms’ article, Article 19, namely that citizens had the
right to acquire, hold, and dispose of property, subject to ‘reasonable

22 See Austin, Cornerstone, pp. 87ff for the framing of the property provisions.
23 Cited in ibid., p. 99.
24 CAD vol. 9, no. 31, pp. 1192-5. The speech was given on 10 September 1949. It
was reprinted in Jawaharlal Nehru’s Speeches, 1949-1953, pp. 479-85.
es
This condensed version of Nehru’s speech does not fully reveal its strong similariti
existing rights of property represent , after
to the ideas of Harold Laski, who said: ‘... the
all, but a moment in historic time. They are not today what they were yesterday and
the changes
tomorrow they will again be different. It cannot be affirmed that, whatever
inviolate. Property
in social institutions, the rights of property are to remain permanently
of social facts to alter ...’. Laski,
is a social fact, like any other, and it is the character
London, 1960, p. 126.
Harold, A Grammar of Politics, George Allen and Unwin,
 78 Working a Democratic Constitution
ic or to protect the
restrictions’ in the interests of the general publ
the right to cae
interests of a Scheduled Tribe. Citizens also had
or business. ‘
any profession and to carry on any occupation, trade
at the centre o
the Constitution’s property provisions later would be
disputes between the government and the judiciary.

The Amendment and Agricultural Property

For months before 26 January 1950 there had been rumblings against
zamindari abolition and other land reform legislation in Bihar by the
Maharaja of Darbhanga and others. The Maharaja had challenged a
Bihar act in a district court and in the Patna High Court. Hearings on
the validity of several acts had begun in other high courts. Then, with
the Constitution inaugurated, the courts dealt the social revolution a
series of setbacks involving both property and special consideration for
disadvantaged citizens. (And, it will be recalled from the previous
chapter, government was sustaining reverses in the courts on freedom
of expression.) On 1] May 1950, the Allahabad High Court ordered
the state government to desist from nationalizing certain private
motorbus operations in a case concerning the individual’s right to own
and operate a business. On 5 June, the Bihar High Court in Patna struck
down as unconstitutional the Bihar Management of Estates and Tenures
Act, 1949. The Act provided for ‘taking over’ zamindars’ estates,
including coal mines, managing them and sending profits to the
zamindar, and eventually ‘acquiring’ them. The Act’s purpose was to
avoid paying compensation at the time of taking over. The Act originally
had been assented to in 1949 by Governor General Rajagopalachari,

rola oicin oi ® Catfate ar ae

but me ape reconsidered it, and President Prasad
certified it again,

did have shyedons He raled madee eerie = in’ Patna

Constitution (whith included rey t to acquire,Article
‘ See
€ righ 19(1) of the
hold, and dispose
25 Setalvad’s ‘Opinion’ was dated
|
Judicial, NAI. In this ‘Opinion
’

questioned in court, was

subject to ‘abuse
:
dated 24 February 1949,
Home Ministry Fil
 The Social Revolution and the First Amendment 79

of property) read with Article 31(2) and (6). Because it offended Article
19, it was invalid despite the President’s assent. Moreover, the Act
imposed far-reaching restrictions on the powers of landholders and
peasants to deal with property, and the restrictions could not be said to
be reasonable or in the public interest.*° .
‘Two days later, on 7 June, the judiciary reinforced the government’s
sense that its entire social revolutionary programme was endangered.
As will be described presently, the Madras High Court, acting on a
petition of a Miss Champaknam Dorairajan, a Brahmin, struck down as
unconstitutional under Article 29 (2) a local regulation giving preference
to lower caste persons in entrance to medical schools.
Some weeks later, in August 1950, the substance of the challenge to
the government’s takeover of textile mills in Bombay produced further
anxieties in New Delhi about the nationalization of industrial property—
although the government won this particular case in the high court there.
Under the Essential Supplies Emergency Power Act, 1946, the Bombay
government had appointed a controller for the mills of the Sholapur
Spinning and Weaving Company, which the owners had closed down
that August. On 9 January 1950, by special ordinance under Section 42
of the 1935 Act (Governor General’s Legislative Powers), the central
government took over management of the mills, and the next day the
Bombay government constituted a Board of Management for them.
The owners challenged this ‘taking’ on the grounds that it violated
their fundamental right to property because they received no
compensation. New Delhi noted the argument even though the Bombay
High Court rejected the petition, ruling in August 1950 that only when
the government acquires or takes possession of a property is it obliged
to pay compensation and that the right of management of a company
is not property.?/ Adding to governmental anxieties, hearings had begun
in the Calcutta High Court on two more property cases. One of these,

26 Sir Kameshwar Singh (Darbhanga) v The Province of Bihar AIR 1950 Patna 392ff. In
addition to Chief Justice Shearer, the judges were B. P. Sinha and S. K. Das. P. R. Das
appeared for Darbhanga.
In a concurring opinion, Justice S. K. Das held the Act confiscatory, depriving the
proprietor or tenure holder ‘of his important rights of land’ without providing for
compensation.
27 Dwarkadas Srinivas v The Sholapur Spinning and Weaving Company Ltd. AIR 1951
Bombay 86. Decision on 27 August 1950. The bench consisted of Chief Justice M. C.
Chagla and P. B. Gajendragadkar, later Chief Justice of India. C. K. Daphtary was then
The
Advocate General of Bombay. He was supported by Attorney General Setalvad.
to the passage
Supreme Court would overrule this decision three years later, contributing
of the Fourth Amendment.
 80 Working a Democratic Constitution

which came to be known as the Bela Banerjee case, was a test of

government ‘police power’ to take over property for another kind of
public purpose—in this instance for housing refugees from East
Pakistan—and the compensation due. Thus was the social revolution
set back or in difficulty on three property issues: ‘taking’ under police
power; nationalization ofa trade or business, with obvious implications
for government control of the economy; and abolition of zamindari—
and on its policy of ‘positive discrimination’ for the disadvantaged.
Seeing that social-economic programmes were being slowed down
and fearing they might be crippled, the Prime Minister, as seen in
chapter 2, wrote to Law Minister Ambedkar on 19 October 1950 that
the Constitution’s provisions relating to zamindari abolition and
nationalization of road transport needed amending—in addition to those
relating to law and order and subversive activities. (Attention to positive
discrimination would come later.) Joint Secretary S. N. Mukherjee’s
first internal paper expressed the view that ‘compensation’ had always
been judicially understood to mean just or fair compensation, containing
the idea of equivalent value. Also, it was a right inherent in every country
to take or expropriate private property for public use, said Mukherjee,
citing cases in the United States.*® Three weeks later, on 25 January
1951, the Lucknow and Allahabad benches of the Uttar Pradesh High
Court, acting on petitions filed by zamindars, issued restraining orders
prohibiting the state government from issuing ‘notifications’ and from
acquiring their property under its Zamindari and Land Reforms Act,
which the UP legislature had passed on 16 January.29 A week after the

28 Note dated 6 January 1951. Law Ministry File F34/51-C.

29 That day a deputation of‘taluqdars and zamindars’ of UP met with
Prasad to press
their view that the Act was unconstitutional and to ask for time
to obtain a stay. The
government, the deputation said, ‘should not embark upon a
controversial measure likely
to imperil National Solidarity ... . Extermination of the
zamindars would not raise agri-
cultural production.’ Prasad’s note recounting the meeting
dated 16 January 1951, ibid
On 20 January, a large number ofzamindars had asked
the State’s chief and resend
secretaries not to take over their estates for three
months because they intended to institute
a suit against the Act. If the secretaries refused,
the communication said, the zamindars
would seek a mandamus writ under Article
226 of the Constitution directing the
government not to take possession of their
estates. Indian News Chronicle, 21 January
The cabinet decided on 23 January 1951 that Tesi
the Act should be sent immediately to the
there be a ‘gap’ of
 The Social Revolution and the First Amendment 8&1

court’s action, Nehru wrote to the chief ministers that the judiciary’s
role was unchallengable, ‘but if the Constitution itself comes in our
way, then surely it is ime to change that Constitution’ .°?
Two days before Nehru wrote that letter, Law Secretary K. V. K.
Sundaram reacted to Mukherjee’s note, making suggestions that were
the genesis of the agricultural property provisions in the First Amend-
ment. A new clause should be added to Article 31, he said, to exclude
from its strictures legislation for the acquisition of, and compensation
for, ‘estates’, which he defined as the rights of intermediaries between
the cultivator and the state governments.*! Additionally, Sundaram
suggested wording that would protect three central and nine state laws
from the fundamental right to property in Article 31, but without nam-
ing them. He may have got this idea of flatly excluding judicial review
of zamindari legislation from Bihar Premier S. K. Sinha, who had writ-
ten to Nehru the previous November that the contemplated constitu-
tional amendment should provide that any tenure law that had re-
ceived presidential assent under Article 31(4) ‘shall not be called in
question ... on any ground whatever’. This would stop legislation from
being made ‘ineffective by endless legal quibblings’, Sinha wrote.>?
Nehru discussed the prospective amendment with Chief Minister
Pant while visiting Lucknow in mid-February 1951, and later in the
month he reminded Pant of his desire for ‘precise proposals’. Pant’s
response—the same letter in which he had suggested legislation instead
of constitutional amendment to curb speech abuses—criticized the
courts for not taking a ‘broad view’ of zamindari abolition, which ‘can
stifle all progressive legislation. Our experience of the past thirteen
months has not been very happy,’ Pant wrote. He joined the Sinha—
Sundaram school of thought by recommending that any state bill
‘relating to abolition of zamindari or land reforms’, once assented to
by the President, could not be questioned in court.°3
The spring of 1951 was the ‘Year of the Locust’, said the Times of
India, reporting the winged creatures swarming over Bengal. Nehru
may have felt that he was fighting pests of another kind. First, on 12

30 Letter dated 1 February 1951. NLTCM, vol. 2, p. 325.

31 Note of 29 January 1951. Law Ministry File F34/51-C.
32 Letter dated 24 November 1950. Ibid. Clauses 4 and 6 ofArticle 31 were designe d
these
brief period only, and
to protect zamindari abolition laws from judicial review for a
‘whateve r’ was broader than
clauses referred only to Clause 2 (compensation). Sinha’s

1, Files 3, 8, 9, NAI;
|
ke 33 etter dated 5 March 1951. G. B. Pant Papers, Microfilm Reel
Pant was dated 26 February 1951.
also, Law Ministry File F34/51-C. Nehru’s reminder to
 82 Working a Democratic Constitution
March, the Patna High Court struck down the Bihar Land Reforms Act
(no. XXX of 1950), ruling it unconstitutional on the ground that the
differing rates of compensation for different categories of zamindars
violated Article 14, which guaranteed citizens equality before and equal
protection of the law. Because of this, the court could examine the
bill’s compensation provisions despite the bar in Article 31 (2). Moreover,
according to the court, the word ‘compensation’ meant money value,
and because the Act made no provision for raising the cash to pay
compensation, the state intended ‘no or inadequate compensation’ .*4
Two days after this decision, Nehru instructed Ambedkar to proceed
on the amendments ‘with the utmost expedition’. A week later, he told
the chief ministers that if the Congress’s zamindari abolition policy
were to fail, ‘our entire social and economic policy fails’ and millions
of peasants can charge us ‘with a grave breach of promise’ .*°
More damaging news was to come. Ten days later, on 22 March
1951, the Calcutta High Court ruled against the state government in
the Bela Banerjee case. The state had acquired land under a 1948
law, took title to it, and gave it to a cooperative society for the build-
ing of shelter for refugees from East Pakistan. The court held that the
owner’s fundamental right under Article 31 had been violated
be-
cause the compensation did not amount to a Just equivalent’ of
the
market value of the land. For the governments in Calcutta and
New
Delhi, this was another devastating blow both to policy
and to the
expectation that careful constitutional drafting would keep
the judi-
ciary away from compensation issues.2©

34 Kameshwar Singh (Darbhanga) and Others v The State

of Bihar
AIR1951 Patna 91fF
On the bench were Chief Justice Shearer and
Judges David Ezra Ruben, and Sudhanshu
Kumar Das. ‘No or inadequate compensation’
was said by Judge Shearer. P. R. Das again
represented the Maharaja. (For detailed
reports of arguments, see The Indian Natio
from 30 January 1951.) Sir S. M. Bose, n
formerly Advocate General of Bengal,
compensation who believed
should equal what had been taken away,
also appeared for Darbhanga.
35 Letter of 21 March 1951. NLTC
M, vol. 2, p. 363.
36 The West Bengal gat S Seitlement Kanu
‘ ngoe Cooperative Society v Mrs Bela
AIR 1951 Calcutta 111. Banerjee and Others
;

- On the sam
' e dayy, the court also
s handed down n its
j decisi
Bihari Lal Dolui and Others AIR isi on in
i Subodh al Bose v
195} Calcutta 85ff. The case
to evict tenants from land he inv olved a BEN e? right
had bought from the govern
ment. The case's importanc
e
 The Social Revolution and the First Amendment 8&3

The striking down by the Patna High Court of the Bihar Land Reforms
Act, 1950, must have been a particularly bitter pill in New Delhi because
of the constitutional difficulties attending its enactment. These may be
described briefly. First, drafts of the bill had shuttled between Patna and
Delhi for months. After its passage by the state legislature, the zamindars
during the summer of 1950 continued to press President Prasad not to
give his assent to it. Prasad raised the question whether ‘the President
should not be satisfied that the provisions [of the bill] are fair and
equitable before [he shuts] out the jurisdiction of the courts’.27 The
cabinet pondered this over several weeks and on 25 August 1950 decided
that the compensation scheme in the bill was fair. Implicitly, at least, the
ministers decided that the President should sign the bill.9° But four days
earlier, Prasad had solicited information personally from Patna and, using
this, he wrote to Nehru on 8 September questioning certain wording in
the bill. Having seen Prasad’s note, Patel wrote to Nehru three days later
asking him to delay the request for presidential assent until the Law and
Home Ministries could consider Prasad’s ‘rather strong convictions on
this problem’ .*9 Prasad had said that he had asked the Attorney General’s
opinion, ‘with special reference to Article 31 ’. He also was annoyed that
he had learned of the bill only on 30 August, although it had been
circulating in New Delhi since June. ‘When Iam asked to sign a document,
I must satisfy myself and not sign blindly.’4? Nehru responded to Patel,
informing him that the cabinet—with all present save Patel, who was

an unreasonable
in our context is the court’s ruling that the law in question posed
Article 19. See Merillat, Land, pp. 144—
restriction on Bose’s right to hold property under
Justices Arthur Trevor Harries
5. Both decisions were given by the same two-judge bench:
and Sambhunath Banerjee.
meeting of 1
37 ¥. V. R. Iengar’s summary note dated 24 July 1950 for the cabinet
August. Home Ministry File 17/92/50 Judicial, vol. 1, NAI.
at a meeting
38 The cabinet subcommittee had heard Bihar ministers and officials
y, was repeate dly asked, ‘“You
on 17 August. L. P. Singh, present as Bihar Chief Secretar
Singh later recalled , ‘but I
are the civil servant, will it work?”" ‘The room had a cooler,’
the Indian Civil Service as
was sweating.’ In an interview with the author Singh described
‘pro-tenant in those days’.
should avoid giving
|
39 etter dated 11 September 1950. Patel also said that the cabinet
note summa ry treatment. Durga
the impression that it had given Prasad’s well-considered
s in Prasad’ s corres pondence—
Das, Patel’s Correspondence, vol. 9, p. 274. This letter also appear
among leaders during this period.
demonstrating again the very open communication
does not appear in Law Ministry
The existence of Prasad’s note is clear, but its text
ents of this time, apparently because
File 17/92/50 Judicial, vol. 2 along with other docum
it was too sensitive. (See footnote 41.)
dra Prasad Collection, File 42, 1950,
40 prasad to Nehru, 11 September 1950. Rajen
vol. 13, p. 77.
NAL. See also Choudhary, Prasad: Correspondence,
 84 Working a Democratic Constitution

unwell in Bombay—had considered Prasad’s note and decided that he

should give his assent from both the constitutional and practical points
of view.*! Facing Prasad’s delay, Nehru forced his hand by threatening
his own and his ministry’s resignation if presidential assent were not
forthcoming.** The President returned the bill to Nehru with his assent
on 11 September with a comment that he was doing so because of the
urgency Nehru attached to the matter.
Reacting to the Patna High Court’s invalidation of the Bihar bill,
Law Minister Ambedkar on 14 March 1951 sent the Cabinet Committee
on the Constitution, the one Nehru had established in February, a
lengthy note. He said that Article 31(2) should be amended so that
nothing should prevent government from prescribing different principles
for compensation for different classes of property, or should affect the
validity of any existing law, or any law by which government would
resume title to land, or laws regarding food supply. He suggested that
the doctrine of government’s ‘police power’ be made explicit by adding
an article to the Constitution expressing the general doctrine, and that
_ Articles 14 and 31 should not be subject to it. He added his opinion that
the Supreme Court ought not to be invested with absolute power to
determine which limitations on the Fundamental Rights were proper,
for Parliament ought not to be placed ina position of having to undertake
over time the inevitable task of constantly amending the Constitution.
Finally, Ambedkar suggested redrafting Article 31 so that it would read
that no person would be deprived of his property save by authority of
law and for a public purpose. No property would be taken without
compensation, but, he said, any law assented to by the President
should
not be questioned in court because it did not provide for compensation.

41 Nehru told Patel that the cabinet had agreed that Prasad’
s note should not be
circulated ‘to preserve secrecy’. Letter dated 12 Septem
ber 1950. Durga Das, Patel’s
Correspondence, vol. 9, p. 275.
42 Gopal, Nehru, vol. 2, p. 94. Patel had protested this. Ibid.
It may be recalled that this contretemps was taking
place at the same time as that
over Purushottam Das Tandon’s presidency of
the Congress, where Patel and Nehru
were on opposite sides.
i;Rajendra Prasad Collection, File 42,
1950, NAI.
Note dated 14 March195]. Law Ministry File F84/51-C, NAI.
Hare Krushna Mahtab also attacked Artic About this time
le 14 as ‘a legal impediment ... in the
economic democrac y’. Also, he wrote to Nehru, Article
way of
13 had been a ‘serious blunder’
Preventing land reform and petrifying
‘the present deplorable condition of the
man’. Note undated but sent to Nehr commen
u under cover of a letter dated 23
Hare
| Krushna Mahtab Papers,s, File 21, : Marc h 1951].
NMMI .. (Artuicle 13 says that
with the Fundamental Rights is void i
.) no aie aaa
 The Social Revolution and the First Amendment 8&5

A personal letter dated that same day had a profound effect on the
country’s constitutional governance. Madras Advocate General V. K. T.
Chari wrote to Law Secretary K. V. K. Sundaram suggesting that
Sundaram’s idea to name in Article 31 the tenure laws to be exempted
from its reach be expanded to creating a separate schedule to the
Constitution that would contain acts certified by the President and
deemed valid retrospectively and prospectively notwithstanding
anything in the Constitution.*° Thus the genie of the Ninth Schedule
emerged from the bottle, for the schedule, a risky device in any event,
would come to be used for other than land reform legislation. It
prompted Chief Justice P. B. Gajendragadkar, according to judicial lore,
to say that the Indian is the only constitution containing a provision
providing for protection against itself. A Sundaram note to the cabinet
a few days later said that the ministry assumed that, so far as
compensation for acquiring or requisitioning property other than
zamindari and jagirdari was concerned, there was no objection to Article
31 continuing to operate in such a manner as the Supreme Court may
eventually construe it.4© He seems to have been saying that compensation
for property taken under the ‘police power’—such as that for resettling
refugees—might have to be ‘fair’ if the Supreme Court so ruled. In
mid-April, the Cabinet Committee on the Constitution reported that,
the main aim being to protect existing and future acts abolishing
zamindari, a new Article 31A was to be added saying that nothing in
the Fundamental Rights could be used to invalidate laws for the taking
of estates or rights in them. Article 31 should be left as it stood.47
President Prasad received a copy of the Cabinet Committee’s report
and sent his comments about the projected amendment to the Prime
Minister. His paper opened with several general points that may be
recalled from chapter 2: it was deplorable that the Fundamental Rights,
which stood ‘above’ other parts of the Constitution with their semi-
entrenched character, should be ‘the first [part] of the Constitution to

45 Letter dated 14 March 1951. Law Ministry File F34/51-C, NAI.

46 Note for cabinet dated 17 March 1951. Ibid.
in the
47 ‘Cabinet Committee appointed by the Cabinet’. This is the name now given
Law Ministry file to Nehru’s earlier committee or to a new group.
to be protected;
The committee implicitly adopted the idea of naming the state acts
Estates and Tenures Act,
it did not think that the, already voided, Bihar Management of
1950, should be brought
1949, and unsound portions of the Bihar Land Reform Act,
ended that the President
within the purview of the new article. The committee also recomm
was accorded full protection
reserve the power to modify state acts before the legislation
from the judiciary.
 86 Working a Democratic Constitution
be assailed’; the current Parliament was ‘provisional’ until a two-house
Parliament could be elected; and, because this Parliament was about to
conclude its session, members and the public would not have ‘full ime’
to consider the amendment’s implications. Turning to Article 31A, the
President advised caution. The Bihar bill may have been invalidated in
Patna, he said, but the Nagpur High Court had upheld another state’s
very similar bill, indicating ‘not... [that] there is anything wrong with
the Constitution but ... the particular Act contains wrong provisions’,
which might be changed to make it conform to the Constitution.*®
Therefore, ‘the first step should be to await the Supreme Court’s verdict
on the Bihar bill.’ ‘On the whole’, Prasad concluded, ‘... the
amendment will create more problems than it will solve.’49 Likely, Nehru
and many in the cabinet thought Prasad’s intervention nagging. Yet,
on this and some other occasions, he seems—in the British constitutional
tradition as explained by Walter Bagehot—to have been exercising the
head-of-state’s right to be consulted, to encourage, and to warn.
By this time, critics outside government were objecting to the
property dimensions of the amendment as well as to those affecting
freedom of expression. A Times ofIndia editorial entitled ‘Fundamental
Rights’ said the changes seemed animated more by a desire to conserve
the power of the executive than the rights of individuals.°? Former
member of the Constituent Assembly, and one of the few Indians to be
made a member of the Judicial Committee of the Privy Council during
the Raj, M. R. Jayakar, told a lawyers’ conference in Bombay that it
would be unwise to give the impression that the government was ‘ “only
too anxious to interfere with such ... guarantees ... [in the Constitution]
as soon as these guarantees are found inconvenient” ’.>! The executive

48 Paper dated 30 April 1951. Rajendra Prasad Collection, File 1, 1951, NAI. Publish
ed
in Choudhary, Prasad: Correspondence, vol. 14, p. 274; the entire
text, pp. 273-7.
49 Choudhary, Prasad: Correspondence, p. 277. The Presid
ent also disliked several of
the Cabine t Commiitee’s recommendations, which the cabine
t subsequently rejected.
He opposed the recommendation that the Presid
ent might modify defective state
legislation, and that the modifications were not
to be justiciable. He doubted thata state’s
power could be so delegated and that either Parlia
ment or the executive could transfer
to themselves a state act upon which the state
had exclusive jurisdiction. Moreover, were
the amendment to have the effect of altering the
Legislative Lists, it would need ratification
by the states.
This incident points up how bad drafting
ofa law can embroil the legislature with
the courts, causing the former to critic
ize the courts for its own carelessness
the courts of abusing their function and accusing
by ‘making law’,
50 ‘Times ofIndia, Bombay, 13 April 1951.
5! Tbid., issue of 22 April 1951.
 The Social Revolution and the First Amendment 87

committee of the Federation of Indian Chambers of Commerce and

Industry (FICCI) forwarded a long representation to Ambedkar saying
that revision of such fundamental provisions as Articles 19 and 31 *“is in
effect a breach of faith not calculated to inculcate much respect either
for the Constitution or for the authors of such amendments” ’.>?
The amending bill, introduced in Parliament on 12 May 1951 by Prime
Minister Nehru, now contained the provisions regarding freedom of
expression and agricultural and commercial/industnial property and most
of its final content on special treatment for the disadvantaged. Two days
earlier, the government had received the good news that the UP High
Court had lifted the restraining orders of the previous January and had
upheld the constitutionality of the state’s zamindari abolition Act. It seems
unlikely that the court’s decision would have caused the government to
change the amending bill even if it had come earlier.°? Speaking on the
bill, Nehru described it disarmingly as neither big nor complicated; yet
without it the ‘main purposes of the Constitution may be defeated or
delayed’. Rebutting one of Prasad’s points, he said that Parliament, having |
drafted the Constitution, was competent to amend it. Proceeding to the }
philosophy behind the amendment, he said that although the courts’
decisions should be obeyed, ‘it becomes our duty to see whether the
Constitution so interpreted was rightly framed and whether it is desirable
to change it ... to give effect to what really ... was intended or should be
intended (emphasis added). India, he explained, unlike the United States,
had not had the time to develop judicial interpretations of its Constitution
to overcome ‘the extreme rigidity of the written word’. Perhaps the courts Ud
c
t*
were right and in a generation things might stabilize, he continued. But Ls Ar

we cannot wait, and if we do so, we may wait ‘amidst upheavals’. As to any

d
ty

injustice of zamindari abolition, you have ‘not just the justice of today
a but the justice of yesterday also ... [I]nevitably in big social changes some
> 52 Ibid, issue of 30 April 1951.
¢a ( 53 The UP High Court upheld the constitutionality of the UP Zamindar Abolitio
n

X and Land Reform Bill, 1949, on 10 May 1951. Deliveri ng the court’s opinion, Chief Justice
in the Constitution
Bidhubbhusau Malik held that a law made for securing an aim declared
ation in the Act, although
(in the Directive Principles) ‘is fora public purpose’. Compens
inequalit y in taking
low, was not illusory. Article 14 did not apply because there was no
grants, which Malik
over estates at different times nor in variations in the rehabilitation
Suryapal Singh and Others
said, in his own opinion, were not part of ‘compensation’. Raja
v The Government of Uttar Pradesh AIR 1951 Allahabad 674ff.
Orbey Howell Mootham, Das
The judges on the bench were Chief Justice Malik,
Piare Lal Bhargava. Attorney
Bulchand Chandiramani, Chandra Bhan Agarwala, and
appeared for the government. P. R.
General Setalvad and the state’s Advocate General
Das and G. S. Pathak represented the plaintiff.

ak Sec pe Wn Ayo) 4h
V
 88 Working a Democratic Constitution

people have to suffer.’ It was a brilliant rephrasing of the well-known

proposition that one person’s exercise of his fundamental rights may
not be at the expense of another’s. Then Nehru made his oft-quoted
statement, ‘[W]e have found this magnificent Constitution ... was later
kidnapped and purloined by the lawyers.’°4 During a subsequent wing.
of the bill, Nehru would say that Parliament faced a ‘peculiar tangle’ if
‘we cannot have equality because in trying to attain equality we come up
against principles of equality’. “We live in a haunted age,’ Nehru said,
perhaps reflecting personal turmoil.°°
Criticizing the bill, S. P. Mookerjee spoke for many of its opponents.
Why ‘this indecent haste’, he asked, when the Supreme Court had not
VY considered the matter?—perhaps taking the words from the Times of
India editorial of the previous day. The issue was not zamindari abolition,
but that the Constitution was being treated as ‘a scrap of paper’. Because
the Prime Minister says we cannot wait, is the remedy to arm the
executive with arbitrary powers?°® Nehru reacted sharply. The whole
object of the articles in the Constitution, which the amendment
was
intended to reinforce, he said, was ‘to take away, and I say so
deliberately,
to take away the question of zamindari and land reform from the
purview
of the courts’.>7

°4 Parliamentary Debates, vol. 12, part 2, col. 8832, 16 May 1951.

Nehru, in a letter dated that day, told Speaker
G. V. Mavalankar that the country was
on the eve ‘of what might be called a revolution
ary situation in rural areas’. Selected Works
ofJawaharlal Nehru, vol. 16, part 1, p. 171. Maval
ankar had written to Nehru objecting to
the amendment because it deprived the indivi
dual of all his fundamental rights in regar
to property. Ibid., editor’s note. d
°° Parliamentary Debates, vol. 12, part 2, col. 9626,
29 May 1951.
It willbe recalled from chapter | that six week
s earlier Nehru had written to Pand
Pant that he, himself, felt ‘haunted’ it
by conditions around him.
Several days earlier, on 17 May, Acharya
Kripalani had left the Congress and
the Praja Party. Nehru previously formed
had tried to bring representatives
Democratic Front, a reformist faction within the Cong of Kripalani’s Congress
ress, onto the party's Central Executiv
Committee, but he ‘was powerle e
Committee’ (then headed by i
56 Parliamentary Debates, v
Mookerjee also charged that
 The Social Revolution and the First Amendment 89

The Select Committee to which the bill had gone and where Nehru
presided over twenty other members, reported on 25 May. It made two
insubstantial amendments to the new Article 31A.°8 In the several
lengthy minutes of dissent, S. P. Mookerjee reiterated the arguments
he had made on the floor of the House, adding that the President should
carefully scrutinize bills for their constitutionality before placing them
in the Ninth Schedule.°? K. T. Shah, Naziruddin Ahmad, and Hukum
Singh, in their joint dissent, found it ‘invidious’ that bills relating to
property were to be reserved for presidential assent, but not laws relating
to freedom of speech.°? Shah, in an individual dissent echoing
Mookerjee’s, objected to laws going into the Ninth Schedule as ‘a
dangerous precedent which should not be allowed’. Making a point
that would be even more apposite with the Seventeenth Amendment
thirteen years hence, he said that the Select Committee had not
examined the twelve laws to be inserted by the amendment, although
the Law Ministry said it had done so.®!Ahmad, in his individual dissent,
said that reserving bills no matter how ‘they satisfy the crucial test of
compensation ... [was] utterly expropriatory ... and would serve as a
warning to owners of other properties and businesses of their
approaching fate’.©2 When the bill passed on 2 June after four days of
debate, 228 votes to 20, Nehru characterized it as a ‘great gain’ that
presaged future actions. We must go beyond zamindari abolition, he
wrote to the chief ministers, and pointed out that several states already
had set a ceiling for holdings. Cooperative farming should be the next / Ow
aim, he said.©? But the great gain was in for difficulties, first from
President Prasad and then from the zamindars.
Again raising the issue of the President’s powers, Prasad objected to
the bill after its enactment, but before it reached him formally for the

583 The Constitution (First Amendment) Bill, 1951: Report of the Select Committee, p. 1. The
English-language press reported the Select Committee report and the debates extensively.
59 Ibid., p. 8. While the Select Committee was deliberating, several states requested
Dethi to include their bills in the Schedule. Chief Minister B. C. Roy of Bengal wanted
May
included the bill voided in the Bela Banerjee case. Nehru refused. Letter dated 25
1951. Law Ministry File F34/51-C, NAI.
were
When the bill was being debated on 1 June, two Hyderabad jagir abolition acts
added to the Ninth Schedule.
60 Report of the Select Committee, p. 12.
61 [bid., pp. 14-15.
followed by
62 Ibid., p. 17. Shah added that unless zamindari abolition were
tive development of
‘simultaneous socialization of land’ allowing collective or co-opera
31.
the land, no benefit would come from Article
63 Letter dated 2 June 1951. NLTCM, vol. 2, pp. 407-8.
 90 Working a Democratic Constitution

required assent. He wrote to Alladi Krishnaswamy Ayyar reiterating ssid

points made in his 30 April note for the cabinet and seeking Ayyar’s
reaction to several contentions: that Parliament could not then amend
the Constitution because it did not have two Houses as provided for in
Article 368; that he could not assent to the bill under his power ‘of
removing difficulties’ in Article 392; and that amending the Fundamental
Rights would be unconstitutional because Article 13(2) said that
Parliament could not make a ‘law’ abridging them. Prasad then asked
Ayyar whether, assuming his points were correct and the amendment
was unconstitutional, it was ‘the duty of the President to assent to the
bills even when he knows them to be ultra vires, particularly in view of
Article 60’°°4—which contains the President’s oath to ‘preserve, protect
and defend the Constitution’. Ayyar’s response is not on record, but
earlier, when Prasad had addressed him with such concerns, Ayyar had
told him he must give his assent. Prasad assented to the amendment on
18 June.
Not silenced, the zamindars renewed their challenges. From Bihar,
Uttar Pradesh, and Madhya Pradesh (where the zamindari abolition
Lerue | law had been upheld by the high court), they came to the Supreme
Court to attack the amendment’s constitutionality in what came to be
known as the Shankari Prasad case. P. R. Das, N. C. Chatterjee (lawyer
for Bela Banerjee), and others argued that the amendment was oy
V because it had been passed by a unicameral parliament, and thus did
not comply with the amending process described in Article 368; thata
constitutional amendment could not abridge the Fundamental
Rights
because it was a law within the meaning of Article 13, an argument
that
would be at the heart of the famous Golak Nath case sixteen
years later
(Part II); and that the amendment having affected
the jurisdiction of
the high courts (Article 368 (b)) should be declared
void because itshould
have been ratified by one-half the States.
Justice Patanjali Sastri, speaking
for the majority, upheld the amendment
on the ground that it had
been enacted validly and that Parliament
had unlimited power of
amendment. Later that month Nehru spoke
at the 57th Congress
eae dated 14 June 1951. Choudhar
y, Prasad: Correspondence, vol. 14, pp.
shankari Prasa 69-70.
d Singh
Deo v The Union of India and the State
89ff. The decision came on 5 Octo of Bihar 1952 (3) SCR
ber 1951. On the bench were Chie
Kania, Patanjali Sastri, B. K. Mukerjea, S. R.
f Justice Harilal
Das,
and Chandrasekhara Aiyar.
General Setalvad and others represen Attorney
ted the government. For a discussi
see Merillat, Land, pp. 132, 237¢ on of the case
F
N. C, Chatterjee personall
;
holdings and mechanical farm y decried limitation on land holdings, 88, believi
beheving that large
ing were needed if food producti
on were to be adequate—
 The Social Revolution and the First Amendment 91

Session of the need to ‘put an end as rapidly as possible to all such

rights in land which bear down upon people and come in the way of
their growth’. He lamented the conflicts between ‘reacuionary and static
elements and dynamic and progressive forces in the party’ .©©
The Maharaja of Darbhanga’s suit against the Bihar Land Reform
Act reached the Supreme Court in the spring of 1952 on the
government's appeal against the Patna High Court’s decision of 12
March 1951. Three judges of a five-judge bench upheld the high court
verdict, ruling the Act invalid even though the First Amendment had
placed the Actin the Ninth Schedule, supposedly beyond court scrutiny.
and the other
To do this, the majority reached outside Article 31(2)
Fundamental Rights and based their ruling on the entry in the Concurrent
to be
List which provided(that real principles for compensation had
d,
fixed,jand Bihar had done this wrongly.®” Justice S. R. Das dissente
judicial
holding that the First Amendment did protect the Act from
ent,
scrutiny. Coming so soon after enactment of the First Amendm
of the
the decision ‘was bound to seem an act of judicial defiance
day, the same
legislature sitting as a constituent body’.®8 On the same
eliea
itn lat Diaries, p. 40, generously
even if something like collective farming should result. (Meril
made available to the author.)
tely challenged in Shankari
The constitutionality of the Ninth Schedule was not separa
Prasad. s,
66 Cited in Congress Revitalizationand Reorganization: Nehru’s Guidelines for the Congres
pp. 23, 21.
Congress Forum for Socialist Action, New Delhi, 1968,
ng in Banga lore on 6 July 1951 his Report to
Nehru had submitted to the AICC meeti
1951). He wrote about conditions in
the All India Congress Committee (AICG, New Delhi,
party’s and the government’s economic
the country, in general, and particularly about the
ity’ about this, despite public apathy,
programme. There was a ‘large measure of unanim
of laissez-fazre. Zamindari abolition was
he claimed. He rejected as ‘not feasible’ a policy
to follow, such as ‘cooperative cultivation
but a first step; other agricultural reforms had
ques’.
with and the application of modern techni
first general elections of 1952 at the
The Congress adopted its manifesto for the
to some accounts, changes that Nehru
Bangalore AICC meeting, although, according
As noted earlier in this chapter, this called
wanted in it were made finally in October. co-operative
legitimate means ... [of] a
for ‘establishment ... by peaceful and
tunity and of political, economic and social
commonwealth based on equality of oppor and
rapid completion of zamindari abolition,
rights ...’. The manifesto called for the ts and tillers of the
should be assured to tenan
that ‘security of tenure and fair rents
soil’.
shwar Singh of Darbhanga and Others 1952
67 State of Bihar v Maharajadhiraja Sir Kame B. K.
The three judges were M. GC. Mahajan,
(3) SCR 889ff. Decision on 9 May 1952. the benc h were Das
Aiyar. The other two judges on
Mukherjea, and N. Chandrasekhara
and Chief Justice Patanjali Sastri.
JS 8 Merillat, Land, pp. 133-5.
 92 Working a Democratic Constitution
bench unanimously upheld the UP and Madhya Pradesh zamindari
abolition acts.©9

The Amendment and Non-Agricultural Property

When Nehru wrote to his Law Minister on 19 October 1950, citing the
nationalization of road transport as one reason the Constitution needed
amending, he seemed not fully aware of the implications of the so-called
Moti Lal case for the government’s socialist intentions. Law Secretary
Sundaram and Joint Secretary Mukherjee, although aware of Moti Lal,
barely mentioned non-agricultural property in their January 1951 papers,
and Ambedkar was equally cursory in his 14 March memorandum. All
eyes were focused on zamindari abolition. But Moti Lal would contribute
to the passage of the First and Fourth Amendments.
During 1947 and after, the United Provinces government— where
a future prime minister, Lal Bahadur Shastri, was Minister of Transp
ort—
began to operate public buses in competition with private
transport
companies and to accord its own bus operations special privile
ges. Large
numbers of private owners, claiming unequal treatment
under the law
(Article 14) and that they were being deprived unreas
onably of their
right to carry on a trade or business (Article
19(6)), filed petitions in
the Allahabad High Court and won. In the
Moti Lal case, the high
court on 1] May 1950 issued mandamus writs
ordering the state to desist
from certain practices. But it was the court’s
rationale whose import
would finally motivate New Delhi.
A state government may Own property
and manage a business, said
the court, ‘so long as such activity does
not encroach upon the rights of
others or is not contrary to law.
’”? The court went on to say
that
. 69 As noted earlier, the UP Act
was upheld in The State of Uttar
Raja Suryapel Singh. The MP Act Pradesh and Another v
was upheld in Viseshwar Rao v The
State of Madhya Pradesh

Po 0
phe Laland Others v the
State of UP and Others AIR
n the opinion by ¢ ‘thief Justice 1951 Allahabad 25 7¢f. Quotation
B. Malik, p. 266, for the
full bench of Justices
Mootham
 The Social Revolution and the First Amendment 93

nationalization of any industry was impossible without legislation, which

would have to be justified under Article 19(6). And for the state to
carry on a business to the exclusion of others ‘must be deemed to be an
infringement on the rights of the citizen’.’! The Law Ministry’s note
for the cabinet of 20 March did mention the Moti Lal case, but only in
the context of Article 14, not mentioning Article 19(6), and said that
Article 14 would not bar ‘properly formed legislation’.’* This
complacency was due in part, also, to Chief Minister Pant’s belief that
the UP Road Transport Act, passed after the Moti Lal decision, had
solved the problem the court had raised. He suggested to Nehru thata
court pronouncement on the Act be awaited before drafting an
amendment dealing with this particular issue.’3 Nevertheless, Pant in
this letter told Nehru that there were differing opinions about the
‘significance’ of Article 19(6). Some persons thought the article ‘does
not authorise the state to enact laws for nationalizing industries or
electricity or transport services’. We may hope, Pant added, that such
legislation would be permitted ‘“in the interest of the general public” "4
An impetus now lost to memory finally awakened New Delhi to the
broader implications of Article 19(6). The Cabinet Committee on

Sapru, K. N. Wanchoo, and Agarwala. Lawyers for the government included Alladi
Krishnaswamy Ayyar; for the petitioners, one advocate was G. S. Pathak, a future Vice-
President of India. The relevant law was the Motor Vehicle Act, 1939.
71 tbid., p. 267. Again, Chief Justice Malik.
72 Law Ministry File F34/51-C. The ministry said that the state government had not
appealed against the judgement and that the UP government was having no difficulty
taking out permits and running transport services. Moreover, it said that full
nationalization of transport services under a special law allowing for state monopoly
would not be regarded as unconstitutional.
73 Pant to Nehru letter dated 5 March 1951, responding to Nehru’s request for his
‘precise proposals’. Law Ministry File F34/51-C, and G. B. Pant Collection, NAI.
74 Nationalization of financial institutions did not encounter constitutional difficulties
during this early period. The (Congress’s) 1948 Report of the Economic Programme Committee
recommended unanimously that all resources available for investment ‘should be subject
to control and direction of the State’, particularly so that credit might be available for
by
agriculture. Ibid., p. 21. The Reserve Bank of India was nationalized in January 1949
an act of Parliament, and the Imperial Bank in 1953, making it the State Bank of India.
the
This gave the government control over some one-third of commercial banking in
said to have been ‘tamed’ by the Banking
country. Although banking practices were
increasing the
Companies Act of 1949, this had had comparatively little to do with
oflater bank nationaliza tions. )
availability of credit. (See Part II for a detailed description
The government nationalized the life insurance businesses, with their large financial
the preparatory
assets, in January 1956. Finance Minister C. D. Deshmukh had done
actual nationalization was
work in secrecy—to his own great satisfaction—and the
accomplished by ordinance to preserve surprise.
 94 Working a Democratic Constitution

the Constitution, in its mid-April report, said that the impediment to

nationalizations lay not in Article 14, but in Article 19.After rejecting
the idea of deleting ‘reasonable’ as qualifying the various restrictions
government might place on the several ‘freedoms’ in the article, the
committee recommended amending clause 6 to the effect that ie
right to own property, carry on a business, and so on should not ‘affect
the operation ofany existing law for the carrying on by the iebiagads
of any trade, business, industry, or service to the exclusion of citizens.
The draft amending bill contained wording very like this, and its
Statement of Objects and Reasons explained the language as necessary
to protect nationalization. The Parliament’s Select Committee
reported the bill with only a drafting change on this point, and it
became law.’® The scant attention given in the parliamentary debates
to this portion of the amendment contrasts remarkably with its
importance in subsequent litigation.”7

Removing Man-Made Inequalities

During the weeks the government had been considering the shape of
the First Amendment, the Supreme Court had been deliberating the
Madras government's appeal of the Madras High Court’s decision in
\/ Miss Dorairajan’s case. On 7 June 1950, in the Madras High Court she
al had challenged a local regulation as discrimiagainst natiher,
ngas a
Brahmin, in regard to entrance to a medical school, citing Articles
15
and 29(2). On 27 July the court held invalid the local regulation as
offending Article 29(2), thus undercutting another social revolutionary
policy.
Apparently sensing which way the wind was blowing in
the Supreme
Court, the Law Ministry, in a note to the cabinet on
17 March, advocated
changes in Article 15 of the Fundamental Rights. The
Supreme Court’s
ruling on 9 April 1951 upholding the Madras
High Court confirmed
the wisdom of this course, because the
decision struck at an essential

1 ‘Report of the Cabinet Committee

on Amendments on 28 March 1951’,
of Law, File F34/51-C, Ministry
6 The
amendment also empowered government
technical qualifications for engaging to legislate professional and
in a profession or business, and it
procedur al changes in othe also made several
r articles. The amendment left
of religious denominations in untouched the property rights
Article 26,
77 See Part II when
wh natii onalizat
izatiions were extensive. Also
, see Singh, Mahendra P_
(ed.), VN. Shukla’'s Constitution 0 India, 9th edn., E
1994, pp. 137-50, i ny Eastern Book Company, Lucknow,
 The Social Revolution and the First Amendment 95

dimension of the social revolution. The government immediately sought

to repair the damage through the First Amendment.
The Madras document at issue was the Communal General Order,
commonly called the ‘Communal G. O.’. This established a selection
committee to fill places in Madras medical and engineering colleges
according to the formula of six non-Brahmin Hindus, two backward
class Hindus (read Harijans), two Brahmins, and so on, for each fourteen
places available. This policy may be said to have had its roots in the
formation of the South Indian Liberal Federation soon after World
War I. With intellectual links to England and France, the group was
anti-Brahmin from the beginning. Operating under its unofficial,
popular name of theJustice Party, it negotiated the reservation of some
twenty-five per cent of the seats in the Madras Legislative Council for
non-Brahmins as part of the 1919 Montagu-Chelmsford Reforms.’® After
Congress eclipsed the Justice Party in the 1937 elections and later, it
made ‘compensatory discrimination’ very much its own policy even while
led by Tamil Brahmins like Rajagopalachari.
The Constitution has some two dozen articles providing for compen-
satory treatment for disadvantaged citizens or for protecting them against
discrimination.’? Although all these articles are relevant as expressing
the spirit of the Constitution, three provisions are especially germane
here, Articles 15 and 29 of the Fundamental Rights and Article 46 of the
non-justiciable Directive Principles. The latter reads that the state ‘shall
promote with special care the educational and economic interests of the
weaker sections of the people’. Article 15 prohibits discrimination broadly.
It says the government may not discriminate against citizens on the
grounds ‘only’ of religion, race, caste, sex, and so on. And on these same
grounds no citizen can be subject to any restriction in regard to access to
public places and to the use of other facilities if dedicated to public use
or if supported by government funds. Article 29(2) says that no citizen
shall be denied admission into any government-supported education
institution on the grounds ‘only of religion, race, caste, or language’.

78 Hardgrave, Dravidian Movement, ch. 3.

contains thirteen articles
79 Part XVI, ‘Special Provisions Relating to Certain Classes’,
Castes and Scheduled
providing for reservation of seats in legislatures for Scheduled
demand s equality of opportunity
Tribes, and so on. Article 16 of the Fundamental Rights
for citizens, prohibits discrimination on the bases of caste, sex, etc. in government
ent from reserving posts
employment, and stipulates that nothing shall prevent governm
s ‘“Untouchability”’. Other
‘in favour of any backward class of citizens’. Article 17 abolishe
special provisions for women and
articles ban forced labour and child labour and permit
children.
 96 Working a Democratic Constitution

(This and Articles 15 and 16 may, in theory, be read as segmsa ipa

crimination directed either upward or downward in the caste hierarchy.)
Champaknam Dorairajan had challenged the Communal G. O.
because she had come ‘to know that despite her academic qualifications
she would not be admitted [to medical school—to which she nad not
actually applied] ... as she belonged to the Brahmin community : The
Madras High Court found that the Communal G. O. violated Article
29(2), and the government appealed to the Supreme Court. There,
Madras Advocate General V. K.T. Chari argued that the government was
seeking to protect the weaker sections of society under the Communal
G. O. by reading Articles 29 and 46 together. Besides, he argued, Article
46 ought to override Article 29(2) even though the Directive Principles
were not justiciable.®! Justice Das, for the majority, said, ‘We reject ...
[these] contentions completely’. The Principles cannot override the
Rights, he said, which are ‘sacrosanct and not liable to be abridged by
any legislative or executive act or order’. Therefore, Das concluded, the
Communal G. O. is inconsistent with Article 29(2) and is void under
Article 13, which says government may not make any law taking away
the
Rights.®? The Supreme Court, in decisions related closely in
substance
and time to this ruling, also struck down other communal
quotas—for
instance in Venkataramana v State of Madras regarding
quotas for
government posts, which again were determined
by a ratio such as that
in Dorairajan.83
The potential danger presented by these deci
sions to many of the
Constitution’s ‘special care’ provisions convince
d the Cabinet Committee
on the Constitution that it needed to amen
d Article 15 along the lines of
the Law Ministry’s note of 17 March. The
chief minister of Madras, P. S.
Kumaraswami Raja, preferred amen
ding the Constitution to retai
General Order “in the interests n the
of South India”’.8* At its mid-Apri
meeting the Cabinet Committee rec l
ommended that the Article read that
80 3:
Asserted in
.
her affidavit. to the Madras Cou
rt. Cited in State of Madras
Champaknam Dorairajan AIR v Shrimati
195] SC 227.
81 Thid., pp. 227-8.
82 Thid., P. 228. On the ben
ch
were Chief Justice H. L. Kani
Sastri, M. C. Mahajan, a, Justices Fazl Ali, Patanjali
B. K. Mukherjea, S. R.
Das, and Vivian Bose.
See Marc Galanter’s ‘ excellent omp
Compet
etiing Equ
, alitie
ta s, Univi
Berkeley, CA, 1984, Pp. i i i
164-7, 364-8, for ies
rnd co mescaa a
>
rnon-Brahmin Hindus é the
Meee
and Muslims combine same for Harijijans
d, one-eighth for Brahmins, and the
Venkataramana v State of remainder for others.
Madras, see AIR 1951 SC For
22 OFF.
Opal, Selected Works ofJaw
Nehru responded on 1] Apri aharlal Neh
l 1951, rejecting the sugges ru, vol. 16, part I, p. 153.
tion and Saying that ae
ia
 f,rnp e
a4 Sy ae Cf a y
ey ;
Bre
oa few wn} wv 73 7 I eae win
*A CT twee

The Social Revolution and the First Amendment 97

nothing in it should prevent the government from making special

provision for promoting the educational and social interests of the
backward classes. On 11 May, the day before the amending bill was
introduced in Parliament, Alladi Krishnaswamy Ayyar advised K. V. K.
Sundaram that Article 29(2) might be altered in the manner of Article
15.85 At its meeting on 15 May the cabinet had before it a telegram from
the chief minister of Madras saying that the amending bill’s alteration of
Article 15(3) was insufficient to protect the ‘backwards’, and hence a
new clause (4) should be added to the article to the effect that nothing in
the article or in Article 29(2) should prevent special provisions for the
educational, economic, and social advancement of the backward classes. °©
The cabinet agreed to discuss this change with Parliament’s Select
Committee to which the bill was about to go. The committee first accepted
this recommendation, and then, when it reported on 23 May,
recommended that ‘economically’ be dropped. The cabinet agreed to qj
this, leaving the language limited to ‘socially and educationally backward’
classes.87 In Parliament, Nehru and Ambedkar forcefully supported the
revised Article 15 against limited opposition, linking it to the Supreme
Court’s invalidation of the Communal G. O.
The First Amendment was consequential far beyond its immediately
visible content. It established the precedent of amending the Constitu-
tion to overcome judicial judgements impeding fulfilment of the gov-
ernment’s perceived responsibilities to the seamless web and to par-
ticular policies and programmes. A similar amendment devoted to prop-
erty issues would follow in three years. Although this precedent would
be long lived, the accompanying example of respecting the judiciary
and protecting its independence even while disagreeing with it would
not. The amendment’s language giving it retrospective as well as pro-
spective effect would be used by Nehru’s daughter to render constitu-
tional, actions that at the time of their commission had been both ille-
gal and unconstitutional.*®

would seek to make special treatment for the ‘backward classes’ consistent with the
Constitution. Ibid., p. 154.
aw Ministry File F34/51-C.
85 |
86 Ibid.
87 The Times of India reported on 26 May that ‘economically’ had been deleted due
to ‘fears’ that it did not name.
s
The term in the First Amendment thus follows that in Article 340, which authorize
te ‘the condition s of socially and
the President to form a commission to investiga
educationally backward classes’.
ished the Ninth Schedule
V 88 The amendment also added new Article 31-B, which establ
 98 Working a Democratic Constitution

The Ninth Schedule was the amendment’s most radical component.

This constitutional vault into which legislation could be put, safeguarded
from judicial review, the judges being denied the key, was distasteful to
several of the cabinet members who voted to introduce the amendment
in Parliament. Supreme Court Justice M. C. Mahajan thought it a
‘lamentable departure’ from Nehru’s trust of the judiciary, although
he also sought to absolve the Prime Minister of responsibility for it,
attributing the schedule largely to pressure on Nehru from other
ministers.89 Neither Nehru nor others recognized the genie they had
loosed: that the Schedule would be used for the protection of land laws
regardless of their quality or legality (see chapter 4 for the Seventeenth
Amendment); for laws other than land reform laws; for laws regulating
business; and for laws to serve the personal interests of the powerful.9°
Although the Supreme Court had found a way around the Ninth
Schedule when upholding Darbhanga’s challenge to the Bihar Land
Reforms Act, it took some thirty years, as will be seen, for the Supreme
Court to master the keys to the Ninth Schedule and so protect the
Constitution from those who might abuse it.

ee ey
and said that no law placed in it
‘shall be dee med to be void, or ever to
»'. Constitution Amendment in India, have become void
89 p. 181.
ee Mehr Chand Mahajan, are A Pillar of Justice’ in Zakaria, Rafiq
nd revised edn., Times of India Publications,
(ed.), A Study of Nehru,
Bombay, 1960, p. 386. It may
that Ambedkar had suggested that be recalled
aws restr
laws restric
ictiting speech dan
be exempted from Judicial review i i
(see chapter 9). : aa
: Interviews with, among othe
rs, Dharma Vira, K. V. K.
at the time a draftsman in the Law Su ndaram, and P.G. Gokhale,
Ministry.
 Chapter 4

THE RIGHTS AND THE REVOLUTION:

MORE PROPERTY AMENDMENTS

Contrary to Prime Minister Nehru’s hopes and expectations, the First

Amendment resolved neither the fundamental rights issues surrounding
property nor the contention between the government and thejudiciary
over them. The hoped-for one act play had become a many act drama.
The next acts would be the Fourth Amendment—which is treated in
the next section of this chapter—and, a decade later, the Seventeenth
Amendment, which is discussed in a further section. Both exclusively
concerned property. This chapter’s final section will assess the results
of the period’s social revolutionary efforts.
Governmental and public frustration with unsuccessful efforts at
keeping the social revolutionary and democracy strands of the seamless
web in harmony marked this period. Tensions among the branches of
government, in turn, raised doubts about the viability of elements of
the Constitution. The Congress Party briefly contemplated a direct
attack on thejudiciary, and judges began to suspect executive branch
designs on their independence. The Prime Minister and chief ministers
were buffetted by factions in the Congress that said they were too socialist
or not socialist enough. The electorate and the party rank and file think
‘we are not moving fast enough and are too cautious and conservative,’
Nehru wrote to the chief ministers.! Pressures came also from outside
the party. Nehru’s old colleague and dear friend, Jayaprakash Narayan,
urged him to adopt a radical programme of fourteen points, which
Nehru rejected for fear of alienating conservatives in the Congress. He
told Narayan, ‘we have to grow into things’.? The Praja Socialist Party

1 Letter dated 15 March 1954. NLTCM, vol. 3, pp. 501-2.

2 The fourteen points were appended to Narayan’s letter to Nehru of 4 March 1953
in India,
and were published in Narayan, Jayaprakash, Toward Total Revolution: Politics
197ff. For the instructiv e Narayan— Nehru
Popular Prakashan, Bombay, 1978, pp.
A Political Biography, Vikas
exchanges, see also Bhattacharjea, Ajit, Jayaprakash Narayan:
Kishore, A History of the
Publishing House Pvt. Ltd., New Delhi, 1975, and Singh, Hari
Praja Socialist Party, Narendra Prakashan, Lucknow, 1959.
 100 Working a Democratic Constitution

wy
t
Oy (PSP) declared that non-violent class struggles such as satyagraha and
strikes were a necessary method of democratic action. Nehru agreed
with the PSP that land reform was ‘bogged down’. There was a strange
idea circulating ‘of thinking private property sacrosanct’, he wrote to
K. N. Katju.9
Critical, above all, to social revolutionary progress—and giving
impetus toward the remedial Fourth Amendment—were three Supreme
Court decisions in December 1953. On 11 December, the Court upheld
the Calcutta High Court judgement in the Bela Banerjee case (regarding
the taking of land to be used for rehabilitation of refugees), ruling that
‘compensation’ meant ‘a just equivalent of what the owner has been
deprived of’.* Six days later, on 17 December 1953, the same judges in
the Subodh Gopal Bose case (concerning the right to hold property
under Article 19) asserted the court’s authority to consider the rightness
of compensation (although at the same time they upheld the Bengal
government's stand against the judgement of the Calcutta court).2 And
the very next day, the court overturned the Bombay High Court’s
decision in the Sholapur Mills case, agreeing with an aggrieved
shareholder that placing the company under government-appointed
agents was a deprivation of property for which compensation under
Article 31 was due, but for which he had not been paid. Taking over
superintendence of the company was in substance taking over the
company itself, said the court.® The previous month bus line operators,
having lost in the Allahabad High Court their renewed challenge to
the state government's nationalization of bus routes, had appealed the
decision to the Supreme Court.’ New Delhi was uneasy about the

3 Letter dated 28 August 1953. Cited in Gopal, Nehru, vol.

2, p. 80.
4 State of West Bengal v Mrs Bela Banerjee and Others AIR 1954 SC 170-2.
The bench consisted of Chief Justice Patanjali Sastri and Justices
M. C. Mahajan, S.
R. Das, Ghulam Hasan, and B. Jagannadha Das.
> See 1954 SCR 587ff for the Subodh Gopal Bose case.
® Dwarkadas Srinivas v Sholapur Spinning and Weaving Co.
AIR 1954 SC 199. See also
Merillat, Land, p. 144.
On the bench were Chief Justice Patanjali Sastri and Justice
s M. C. Mahajan, Sudhi
Ranjan Das, (a close relative of the famed figure of the
independence movement, C. R.
Das), Vivian Bose, and Ghulam Hasan. The majority consist
ed of Sastri, Mahajan, Bose,
and Hasan.
” Saghir Ahmad v Government of the State of Uttar Pradesh and Others AIR 1954
257ff. High Court decision on 17 November 1953.
Allahabad
On the bench were Justices Basudeva Mukerji and Misri
Lal Chaturvedi. Among the
lawyers for the bus operators were a future Vice-Preside
nt of India, G.S. Pathak, and a
future Chief Justice of India, R. S. Pathak, who were,
respectively, father and son.
 The Rights and the Revolution: More Property Amendments 101

outcome, justifiably, it proved, because the bus operators would win

the case a year later (see below). And memories still were fresh of the
court’s 1952 decision that upheld the Maharaja of Darbhanga’s
challange to the Bihar Land Reform Act.
Tet ow? fawn OY tveu p hy

The Fourth Amendment ay) gud

The implications for the government’s economic reform programme

were clear. For Pandit Pant, the Sholapur Mills and Bela Banerjee
decisions were grounds for amending Article 31.8 For Law Secretary
Sundaram, also, the Sholapur decision was the defining moment.”
Beginning what would become a year-long process, the Congress
Working Committee (CWC) on 4 April 1954 set up a subcommittee
under Nehru’s chairmanship to examine the working of the
Constitution. !? Additionally, the committee instructed Home Minister
K. N. Katju to form a three-member commission on the judiciary—an
interesting choice, the Home over the Law Ministry, perhaps reflecting
the Home Minister’s activism during the drafting of the First
Amendment. A circular went out from the AICC on 9 April to Congress
leaders in the states inviting them to set up expert committees to submit
suggestions for constitutional change.
When the Working Committee met, on 22 May, it had before it the
subcommittee’s report. Among its suggestions were that further curbs
on ‘scurrilous propaganda and the Yellow Press’ be added to Article 19,
and that Article 31 be ‘enlarged’. The intention was to permit ‘temporarily
taking over possession or control of any property’ for its preservation or
better management, while assuring that “the amount of compensation
or the principles on which and the manner in which the compensation
is determined”’ shall not be challenged before any court of law.
In a slashing attack on the authority of the judiciary to protect
Fundamental Rights, it recommended that the courts’ powers to issue
‘directions’ and the prerogative writs for the enforcement of
the
Fundamental Rights be confined to failures of justice and serving
public interest. It also would have removed the high courts’ authority
. Report of the General
8 At the 22 May 1954 Congress Working Committee meeting
Delhi, 1955, p. 32.
Secretaries: January 1954-January 1955, INC, New
ng on the Supreme
9 Sundaram in an interview with Inder Malhotra, then reporti
Court. Malhotra interview with the author.
were Naba Krushna Chaudhury, Khandubhai Desai, G. B. Pant,
10 tts members
Nair, U. S. Malliah, Balwantray
Takhtmal Jain, Deokinandan Narayan, K. P. Madhavan
Mehta, and S. N. Agarwal.
 102 Working a Democratic Constitution
to issue the prerogative writs ‘for any other purpose’ (Article 226), and
their powers of superintendence over tribunals was to be curtailed
(Article 227).!! These strictures revealed not only frustration with the
judiciary’s perceived interference with social-economic reform but also
the tenuous hold separation-of-powers principles had on the minds of
men who otherwise should not be thought radical.
Taking up the report at the Working Committee meeting, Nehru
said the various changes should be made not singly, but in a ‘bunch’.
Naba Krushna Chaudhury said that the Fundamental Rights hindered
the implemenation of the Directive Principles. Chief Minister B. C. Roy
of Bengal commented that the Principles were vague and needed to be
made clear. It was decided that proposals for amending Articles 31 and
226, among others, were to go to the Law and Home Ministries for
examination and drafting.!* Ata meeting the following day, the Working
Committee ‘reiterated its earlier decision’ that there should be ceilings
on landholdings to be set according to the conditions in each state,
and effective steps should be taken to stop eviction of tenants.!3 A second
circular was sent asking central government ministers for their suggestions.
This was, however, notably equivocal in tone. It said that it ‘will not be
desirable ... to take too much liberty with the Indian Constitution and
to try to introduce too many amendments ... [Yet] it will not be proper
to slow down the pace of social and economic progress ... simply because

1 ‘Proceedings of the Working Committee Meeting, 22 May [1954], at the residence

of the Congress President’, AICC Papers, Second Installment, File Circulars General,
1954, NMML.
In a possible precursor to the subcommittee’s thoughts about changes in the
Constitution, V. V. Giri—formerly a labour leader, then Minister of Labour, and later
President of India—proposed that the Constitution be amended to abolish the power of
the Supreme Court to issue writs in matters relating to industrial disputes, leaving all
power in the hands of industrial tribunals. Letter to T. T. Krishnamachari, Minister
of
Commerce and Industry. Krishnamachari rejected the notion. Letters of 12 January and
17 and 18 February 1954. Krishnamachari Papers, Subject File 9, NMML.
The Congress was not the only party to think about its programme. Speeches
and resolutions at the Thirty-first Session of the Hindu Mahasabha on 7
May
1954 made no mention of amending the Constitution, but President
N. C. Chatterjee
spoke of the party’s ‘full and complete economic programme’, which included
land
to the tiller, nationalization of key industries, government ownership and
management
of ‘certain credit institutions’, insurance companies, iron and steel industries
, mines and
plantations, and heavy chemicals. Government corporations were to
be managed by
autonomous bodies due to lack of faith in the old bureaucracy.
Chatterjee, N. C., Presidential
Address, Hindu Mahasabha, New Delhi, no date, p. 17.
. Report of the General Secretaries, January 1954—January 1955, INC, p.
31-6.
” Ibid.
 The Rights and the Revolution: More Property Amendments 103

certain provisions in the Constitution tend to hamper such progress’.!*

Had Nehru—Prime Minister, Congress president, and chairman of the
constitution subcommittee—come to think his colleagues had gone
too far?
The Working Committee’s subcommittee, having made its
contribution, responsibility moved to the cabinet and a committee
therein. The flow of notes and memoranda during the amendment’s
actual drafting revealed sharp philosophical divisions within the cabinet
about property issues. The Ministry of Rehabilitation was concerned
about validating laws taking land for the resettlement of refugees. In its
note for the cabinet, it pointed out that West Bengal, Punjab, and UP
laws for acquiring land for refugee resettlement had been struck down
because, under the ‘police power’ fair compensation was due.
Rehabilitation Minister A. P. Jain suggested that the compensation issue
might be avoided by classifying the laws as emergency measures. The
Law Ministry unsympathetically commented that the Calcutta High
Court’s decision in Bela Banerjee had been correct: legitimate increases
in the market value of a property could not be ignored when
determining the true equivalent value.!> Minister of Commerce and
Industry T. T. Krishnamachari took a long view of national economic
development. Article 31 should be amended to protect land legislation
and also to give government powers ‘for the purpose of preventing
abuse by those in possession or in management of... [non-agricultural]
properties’, he wrote Nehru, but it would be wrong-headed ‘to drop ...
or radically vary ... [the clause calling for compensation] at this stage of
our development’.!© The cabinet committee met on 29 August and,
apart from tactical decisions, took the view that neither deprivation of

14 Circular letter dated 25 May 1954, signed by S. N. Agarwal, Congress General

Secretary. T. T. Krishnamachari Papers, Jawaharlal Nehru File, 1954, NMML.
T. T. Krishnamachari asked Nehru if replies to the circular should go to the AICC or
to the cabinet, whose collective views should go to the AICC. Nehru replied that letters
should go to the cabinet and that the Working Committee had not finally considered
the matter. Letters of 28 and 29 May, respectively. Ibid.
15 Ministry of Rehabilitation, note for the cabinet, 12 August 1954. Law Ministry
no. II. Also see
comments, date not given. Law Ministry File F53 (7) /54C (c), collection
ch. 3, footnote 36.
The Court had identified a government practice that would result in the striking
when it was
down oflater acquisitions: compensation had been paid on the value of land
and the value of the
‘notified’ for taking, although actual acquisition came much later,
property had increased in the interim.
Nehru File,
16 Letter dated 3 August 1954. T. T. Krishnamachari Papers, Jawaharlal
1954, NMML.
 104 Working a Democratic Constitution

property nor reasonable restrictions on its use should by itself entitle

persons to compensation and that Article 31(2) should not apply to
land taken for relief of displaced persons. Cabinet meetings on 31
August and 1 and 2 September failed to move matters further. Yet,
something said at the 2 September meeting upset T. T. Krishnamachari,
for he wrote to Nehru that the discussion on Article 31 ‘has upset my
programme for development of industries’ and ‘blasted’ my hopes. I
would not favour the capitalist class, Krishnamachari said, but investment
is increasing and this could lead to ‘reasonable size industrial
expansion’. We have to move ‘somewhat to the left’ on agricultural
land, he continued, but moving left in industry will prevent expansion.
‘I agree generally,’ penned Finance Minister C. D. Deshmukh, in reply
to the copy of the letter Krishnamachari had sent him, but ‘on the
whole would let well alone ... We may yet hope for courts to show
sense.’!7 After discussing the draft changes to Article 31 the cabinet
sought the Working Committee’s views.!®
Shortly thereafter, the cabinet seems to have accepted K. N. Katju’s
view that a declaration of public purpose when taking land ought to
put the matter outside the purview of courts. K. V. K. Sundaram
disagreed, but thought the courts might be excluded from ruling on
whether or not land was needed for a specified, declared purpose.!9
Making a declaration of public purpose non-justiciable was, however,
the third of three optional draft amendments the Law Ministry submitted

17 Letter from Krishnamachari dated 1 September 1954, with Deshmukh’s

handwritten note at the bottom, dated 2 September 1954. T. T. Krishnamachari Papers,
Subject File 8A, NMML.
Krishnamachari was said by some to be opposed to his government's socialist policies.
His own testimony and that of R. C. Dutt, among others, corrects this. Dutt says that in
Prime Minister Shastri’s time, Krishnamachari was the only one clinging to Nehru’s socialist
ideas. Dutt, R. C., Retreat fron. Socialism in India, Abhinav Publications, New
Delhi, 1987,
p. 45. Krishnamachari himself said ““I am not at all enamoured of private enterprise. We
want progress if possible by state endeavour ... But with government resources ... extremely
limited, greater emphasis on state enterprises merely leads to a dead end.” Tirumalai,
R., TTK, The Dynamic Innovator, TT Maps and Publications Pvt. Ltd., Madras, 1988,
p. 52.
Krishnamachari wrote to Nehru that India had an extreme Left
(communist or near-
communist) and an extreme Right, similar to, but to the right of, the Swatantra
Party.
‘So, itis in our times we have to strengthen the progress toward a socialist
democracy in
an orderly way.’ Letter dated 21 June 1963. T.T. Krishnamachari Papers, Jawaharlal
Nehru
File, 1963, NMML.
18 AICC Papers, General Circulars, 1954, NMML.
'9 In a note for the cabinet dated 11 September 1954. Law Ministry
File F53 (7)/
54-C(c).
 Fu ppos hee ~~ pan 4 c Cf Aw ae 7 ys , Ce neges'
ft ii
BaeT : lLmeft Tud lne ad da. 4 OS Ty
qe. Prey po ie dete
— hols .
© (0
The Rights and the Revolution: More Property Amendments 105 ry ,
jwet

to the cabinet on 13 September. On 29 September, Katju again strongly

expressed his views that the Supreme Court had not given effect to the
Constituent Assembly’s intentions and that all property ought to be in
the same category and vulnerable to takeover. Pandit Pant that same
‘day suggested rewording Article 31, clauses 1, 2, and 3 and adding a
clause 3A. This would have made non-justiciable a law certified by the
President that declared the acquisition was for promoting public welfare
and securing social-economic justice.2° K. V. K. Sundaram redrafted
his earlier optional amendments, which the cabinet accepted on |
October 1954. This version expanded Article 31A to include taking
over industrial companies.*! Despite the attention given to protecting
legislation from judicial review through declarations of public purpose,
the idea would not appear in the Fourth Amendment.
The concluding stages of preparing the Fourth Amendment brought
a mixture of radicalism and restraint, in both of which Nehru was
instrumental. The socialist views he expressed were in direct response
to his difficulties with the courts, and he placed them in a paper that he
circulated in the Working Committee, in the government, and sent to
the chief ministers under a covering letter. To them he wrote that, to
complete land reform government needed the power ‘to modify, in
some cases extinguish, the rights of owners of large agricultural holdings
... [to fix] maximum limits ... [on holdings and] to provide for the
proper redistribution’ of excess lands. Legislation requisitioning and
acquiring property for refugee relief should be validated, grossly
mismanaged companies should be taken over, and these should be above
needless
court challenge. But, Nehru said, ‘it would not be wise to raise
scares by taking more power than we actually require.’*?
The paper Nehru circulated laid out a dozen changes to Article 31A
an
(which had been added by the First Amendment) that would put
sed
array of government actions beyond the courts’ reach. He propo
rcial and
specific protections for the temporary transference of comme
often
industrial undertakings to government management (which
cation
proved not to be ‘temporary’) and the extinguishing or modifi
nies in order
of any rights of managing agents and directors of compa
g’.?? As though
‘to secure the proper management of the undertakin
cf cAu ee (

20 Ibid.
21 Sundaram draft of 30 September 1954. Ibid.
56ff. Quotation from p. 59. The
22 Letter dated 9 October 1954. NLTCM, vol. 4, pp.
Papers, Microfilm Box 119, File 359C, NMML.
letter is also included in the K. M. Munshi when
tions of ‘estate’ and ‘rights’
23 Nehru also recommended changes to the defini
 106 Working a Democratic Constitution

tuumed to confirm Nehru’s fears for the expansion of the public sector in
commerce and industry and, by extension, for regulating the economy,
the Supreme Court four days later ruled in the Saghir Ahmad case that
the government of Uttar Pradesh could not, by nationalizing bus routes,
deny citizens the right to carry on a business on public roads in the state.
‘The property of a business may be both tangible and intangible,’ said
Justice Mukherjea in giving the bench’s ruling—four of whose five
members had ruled against the government in the Sholapur Mills case.
The state government did deprive the operators ‘of the business of
running buses on hire on public roads’, and the state was not to enforce
the 1950 UP Road Transport Act.** It was between this letter to the chief
ministers and the Supreme Court's decision in Saghir Ahmad that Nehru
sent the letter to chief ministers and presidents of Provincial Congress
Committees, mentioned in chapter 1, about his mental and physical
tiredness and about unburdening himself ‘of the high offices I hold’.
This incident cannot have been unrelated to his anxieties for the social
revolution and to the immediate situation in the Working Committee.
There, he had to overcome radical ant-judiciary sentiment, which
he believed dangerous to the Constitution. This was a reversal
of the
situation in 1950-1, when the Working Committee under Purushott
am
Das Tandon had been conservative and Nehru the radical
reformer.
Now, Nehru scotched the suggestions of the spring to restrict
freedom
of expression further; to take away the courts’ authority
to issue
prerogative writs expressly to protect the Fundamental
Rights; and to
remove from the Constitution entirely the high courts’
authority to
issue writs ‘for any other purpose’. Also, in Opposition
to the majority
in the cabinet and the Working Committee, he had
had to ‘tilt the
scales’ against K. N. Katju’s desire to make compensation
notjusticiable,
thus earning T. T. Krishnamachari’s gratitude.*> Nehru
rejected striking

used in law; and he wished to place beyond judici

al challenge the extinguishing or
modification of the rights of lessors regarding
minerals and oil and supplying power,
light or water. This paper was not published with
its covering letter to chief ministers in
NLTCM, but is to be found in the Munshi Papers, as
above.
24 Saghir Ahmad v The State of UP and Others 1955 (1)
SCR 707 Quotation from
Justice Mukherjea, p. 730. Decision on 13 October 1954. The court
also held that the UP
Road Transport Act had been enacted before
the First Amendment and therefore gained
no protection from the amendment’s chang
es to Article 19(6). The members of the
bench were Chief Justice M. C. Mahajan and
Justices B. K. Mukherjea, S. R. Das, Vivian
Bose, and Ghulam Hasan.
25 Krishnamachari-Nehru letter dated
24 November 1954. T. T. Krishnamachari
Papers, Jawaharlal Nehru File, 1954, NMML.
 The Rights and the Revolution: More Property Amendments 107
at the judiciary’s roots while curbing its reach on socialist issues, as he
later explained to the Lok Sabha.
Accompanying the Fourth Amendment’s drafting was the drafting
ofa resolution introduced and adopted in the Lok Sabha the day after
the introduction of the amending bill. This named a ‘socialistic pattern
of society’ as the nation’s goal. Explaining it, Nehru said the resolution
did not ‘mean adherence to any rigid or doctrinaire pattern, but ... we
are aiming ata particular type of society where there will be an approach
to equality and where the state owns or controls the means of production V
... hot everything but ... all the strategic points.’*®
Nehru introduced the amending bill on 20 December 1954. It
represented the essence of the changes that he had circulated on 9
October without their extensive detail. The amendments to Article 31A
protected from judicial challenge, as contravening the Fundamental
Rights, the taking over of the management of any property or company
and the extinguishing or modification of the rights of managing agents
and directors. Those to Article 31 laid down that if ownership of property
were not transferred to the government, it was not ‘compulsory
acquisition’ even though it deprived a person of his property. A change ;
in Article 305 made it clear that the government could have a monopoly V
in a trade despite the Constitution’s provision that trade and commerce
in the country should be free (Article 301). The bill also placed seven
more laws in the Ninth Schedule, four of which dealt with non-
agricultural property and three with business regulation. The four
property laws were for acquiring land for refugee resettlement and
rehabilitation—including the law in question in Bela Banerjee’s case,
the West Bengal Land Development and Planning Act, 1948.27
After debating the bill briefly, the Lok Sabha shelved it until 1955,
apparently to allow public debate upon it—an intention for which several
newspaper editorials gave the government credit. Predictably, reaction

26 Letter dated 24 December 1954. NLTCM, vol. 4, p. 112.

Nehru moved a closely similar resolution on 21 January 1955 at the Avadi Session of
the Congress. Speaking on this he said that in the socialist pattern the ‘principal means
of production are under social ownership or control, production is progressively speeded
up and there is equitable distribution of the national wealth.’ Resolutions, Indian National
Congress, Sixtieth Session, AICC, New Delhi, 1955, p. 3. See also Congress Bulletin, INC,
New Delhi, 1955, no. 2, p. 246.
27 The bill’s Statement of Objects and Reasons gave the Saghir Ahmad decision as
one cause for the amendment, adding that the courts had ruled compensation due ‘even
where deprivation of property was caused by purely regulatory provisions of law and was
not accompanied by an acquisition or taking possession’. Constitution Amendment in India,
p. 18.
 108 Working a Democratic Constitution

was mixed. More newspaper editorials were critical than favourable.?° N.

C. Chatterjee deplored the attitude of politicians who ‘resent judicial
review as an encroachment on parliamentary omnipotence’.*? Former
Chief Justice ofIndia Patanjali Sastri thought it an error to consider social
welfare incompatible with the protection of private property. He hoped
that property rights in the country would not go out one by one ‘like
Diwali lights’.°? The Federation of Indian Chambers of Commerce and
Industry asked the government to drop the proposed Article 31A as
striking at the fundamental right of property. Progress toward a welfare
state, said the Federation, was possible only with an expanding industrial
base.>! H. M. Seervai attempted to ‘rekindle’ the ‘inspiration’ of the
Rights. Saints may do without property, he reasoned, but constitutions
are for 40 at ahi? AG have the haunting fear of being
deprived of their property are not the free Indians of our dreams’.?2
Taking up the bill again on 14 March 1955, the Lok Sabha heard
Nehru give an extensive rationale for the responsibilities of the branches
of government in regard to the social revolution. A constitution must
take cognizance of the dynamic nature of modern conditions, he said
when moving that the bill go to a Joint Committee of members from
both Houses of Parliament. Even an independent and powerful judici-
ary should ‘not decide about high political, social or economic or other
questions. It is for Parliament to decide ... [the] law we should have.’ We
are not by-passing the courts, whose interpretation we accept, said Nehru,
but changing the Constitution. In normal land acquisition, said he, com-
pensation would be paid, but in schemes of social engineering, we can-
not give full compensation, for if this is done ‘the “haves” remain the
“haves” and the “have-nots” the “have-nots”’. If the courts see a contra-
diction between the Fundamental Rights and the Directive Principles,
he concluded, ‘it is up to Parliament to remove the contradiction and
make the Fundamental Rights subserve the Directive Principles of State
Policy’.39

28 Statesman and Hindustan Times, 22 December 1954.

29 Speech on 29 December 1954 to the Ninth Madras State Lawyers Conventi
on,
which Chatterjee inaugurated along with Patanjali Sastri. Chatterjee, N. C.,
Fundamental
Rights in Peril, Civil Liberties Union, New Delhi, undated, pp. 4-5.
30 Speech given to the Convention. Hindu, 30 December 1954.
31 AR, 5-11 March 1955, p. 114.
32 Seervai, H. M., ‘Fundamental Rights—A Basic Issue’,
part II, ‘No Compensation
for Shareholders’, in Times of India, Bombay, 15 February 1955.
33 Lok Sabha Debates, 1955, vol. 3, no. 16, cols. 1948, 1953,
1956, 14 March 1955. On
17 March 1955, the Planning Commission published its draft of
recommendations for
 The Rights and the Revolution: More Property Amendments 109
The Joint Committee of forty-five members—which Nehru chaired,
as he had the committee on the FirstAmendment—presented its report
on 31 March. Along with technical changes, it recommended that Article
31(2) be altered so that the obligatory compensation could not be
questioned in court, whether ‘adequate or not’, and such language was
incorporated in the amendment. In his minute of dissent, N. C.
Chatterjee recognized the need for social control for the rehabilitation
of displaced persons and ‘for temporarily managing big undertakings
which are mismanaged by incompetent persons’, but, he said, ‘that is |,
no reason for taking power to effect expropriation of any property’
ae
and leaving the citizen without redress.*# Jaipal Singh, a representative
of the Adivasis of Bihar and a member of the Constituent Assembly,
wrote in his dissent that for the poor man’s sake compensation must be
justiciable, for the right to approach the courts ‘is the most effective
guarantee against executive tyranny’. Renu Chakravarty, a communist
MP, K. K. Basu, and S. N. Mazumdar wanted all of Article 31 deleted
excepting the clause allowing for the deprivation of property ‘according
to law’. The right to property ‘should be restricted ... [to] men of small
means’, they said.*°
During the concluding debates on the amending bill, perhaps the
most revealing remark was Nehru’s about personal property: ‘In life’s
journey, one should be lightly laden,’ he said.>° A. K. Gopalan (of the

the Second Plan. This opened by describing the disquieting features of the economy and
with the observation that ‘the level of living is extremely low’. The Plan’s objectives were:
rapid growth of the economy; development of basic heavy industries for the manufacture
of producer goods; development of factory production of consumer goods in a way not
competitive with cottage industries; increasing purchasing power through investments
in heavy industries in the public sector and through increasing expenditure on health,
education and social services. As for agriculture, “The fixation ofceilings and procedural
arrangements for the redistribution of land to peasant cultivators must be decided at an
early date in each state in accordance with general principles and standards settled on an
all-India basis, and redistribution must be completed by 1958.’ Mahalanobis, P. C., Draft
Recommendations for Formulation of the Second Five Year Plan, 1956-1961, Planning
Commission, GOI, New Delhi, 1955, pp. 3, 4 and 6.
34 The Constitution (Fourth Amendment) Bill, 1954: Report of the Joint Committee, Lok
Sabha Secretariat, New Delhi, 1955, pp. v-x. Although Chatterjee had represented the
property interests of the Maharaja of Darbhanga, he disliked the Supreme Court's opinion
in the Bela Banerjee case and said ‘something should be done’ about it.
35 Ibid, x-xii.
36 Tok Sabha Debates, 1955, vol. 3, no. 37, col. 4840, 11 April 1955. Nehru had written
to the chief ministers on 4 April that the amendment bill, ‘though criticised by certain
sections outside, has had a remarkably easy career thus far in Parliament... . It is not our
policy to expropriate or to give what might be called nominal compensation. That does
 110 Working a Democratic Constitution

Gopalan case) supported the bill on behalfof the Communist Party.

Frank Anthony attacked the bill’s placing the right to property in the
hands ‘of every crooked-backed and mountebank politician that you
flash across the political scene’. Acharya Kripalani said the Fundamental
Rights had become only directives. ‘{[L]et us recognise that these
amendments abrogate and rightly abrogate the rights of property.’
(Emphasis added.)?? After its passage in the Lok Sabha, Pandit Pant,
who had become central Home Minister the previous January, defended
itin the Rajya Sabha. The courts could rule on compensation only if it
were illusory, he said. We are rehabilitating the Constitution, not
tampering with it.*8 Despite the bill’s broad support within the Congress
Party, no chances were to be taken during the vote. The Parliamentary
Party issued a three-line whip on 18 April demanding the presence of
all party members throughout the sittings of the nineteenth and
twentieth ‘to participate on the voting’.°? The bill passed 139 to 0 in
the Rajya Sabha on 20 April 1955 and received the President’s assent
a week later.

The Seventeenth Amendment

The spark for this 1964 amendment came, as had the fourth’s, from a
Supreme Court decision, and it had several distinguishing characteristics.
It was the last to be aimed directly at the abolition of zamindars and
other ‘intermediaries’, although later amendments would add state
land laws to the Ninth Schedule. It arose from a definitional dispute
that got out of hand and raised storms of protest over its projected
effect on the peasantry of South India. And it luridly revealed how
central and state governments could abuse the Ninth Schedule.
Accompanying the controversy were renewed emphasis on socialist goals
and increasing recognition that the implementation of land reforms

not pay in the end even from the practical point of view. But we cannot allow all our
social work to be hung up because a matter is taken repeatedly to the law courts, and we
have to await their decision. This Constitution Amendment Bill is a good example of the
conflict between the large mass of public opinion ... and some vested interests on the
other side.’ NLTCM, vol. 4, pp. 143-4.
37 Tok Sabha Debates, 1955, voi. 3, no. 37, col. 4988.
38 Parliamentary Debates, Rajya Sabha, vol. 9, no. 38, cols 5097-100, 5299.
39 Whip 11/IX-55. Diwan Chaman Lall Papers, File 158, NMML.
Signed by S. N. Sinha, Chief Whip, the whip explained that the bill would have to be
passed by a simple majority of the whole house and with a two-thirds majority of those
present and voting.
 The Rights and the Revolution: More Property Amendments 111
had slowed badly, a subject that will be addressed at the end of this
chapter.
On 5 December 1961, the Supreme Court had held that the taking
of lands under the Kerala Agrarian Relations Act of 1961 was not
protected from judicial scrutiny by Article 31A, despite the Fourth
Amendment, because the lands did not come within that article’s
definition of ‘estate’. The Court therefore could apply Article 14
(equality before and equal protection of the law). It did so and ruled
the Act unconstitutional on the ground that the ‘slab system’—smaller
compensation for larger holdings, the same issue that had upset the
Bihar Zamindari Abolition and Agrarian Reforms Act—was unfair.?°
With the variety of land tenure systems in the country, it was not
surprising that nomenclature was a problem, but it may be asked
if the court was splitting hairs. The Seventeenth Amendment was
framed to overcome the definitional problem by broadening the
definition of ‘estate’ to include tenure systems such as inam, jagir, land
held under ryotwari settlement—the equivalents of ‘estate’ in ‘local’
law. The amending bill, as introduced in the Lok Sabha on 6 May
1963, also would have added 124 state land reform acts to the Ninth
Schedule.
The bill was necessary, said Law Minister A. K. Sen, when in
September moving that the bill go to a Joint Committee, to ensure that
Article 31A’s terms covered local land laws previously not covered. N.
G. Ranga, the Andhra peasant leader, viewed the bill differently. It was
the beginning of a ‘long, dreary, black day for Indian peasants’,
particularly the ryots of Andhra, he said, for they were simply working
farmers.*! Not so, said Bibudhendra Misra, Deputy Minister in the Law
Ministry, rebutting Ranga’s assei tion. In Andhra, Misra said, there were
thousands of acres under ryotwari tenure ‘where the owner does not
cultivate. It has been settled with sharecroppers and tenants, and their

40 Karimbil Kunhikoman v The State of Kerala 1962 Supp. (1) SCR 829ff. On the bench
were P. B. Gajendragadkar, A. K. Sarkar, K. N. Wanchoo, K. C. Das Gupta, and N. Rajagopala
Ayyangar. Attorney General Setalvad and K. K. Mathew, Advocate General of Kerala and
later a Supreme Court judge, represented the government. M. K. Nambiar was among
the petitioners’ lawyers. See also Merillat, Land, pp. 139-40, 185-8, and 262-5. The
Supreme Court invalidation of the Madras Land Reforms Act (no. 58 of 196i) in
Krishnaswami v State ofMadras also contributed to the amendment. AJR 1964 SC 1515ff.
4! 1 ok Sabha Debates, Third Series, vol. 21, no. 27, cols. 6831-48, 18 September 1963.
That Ranga’s point about small peasants was not wholly ill-conceived was later borne out
by the Praja Socialist Party. When it endorsed the amendment at its Seventh National
Conference at Ramgarh, 17-20 May 1963, it suggested that small holdings should be
excluded from the effects of this bill.
 112 Working a Democratic Constitution

[the ryots’] position is that of an intermediary.’4* The bill went on 21

September to a Joint Committee which reported to Parliament six
months later, on 25 March 1964.
The Joint Committee said that the bill had aroused consternation. It
reported receiving over one hundred thousand memoranda on the bill
from individuals and groups in addition to the more than half that
number Parliament had received before sending the bill to the committee.
Opposition also had been heard during the extensive oral testimony it
had taken, the committee said.4? The committee then proceeded to
rebuke the government sharply. It had ‘carefully scrutinized’ the 124
state land laws the government intended for placement in the Ninth
Schedule and decided to delete eighty-eight of them from the bill.44 The
government had ‘indiscriminately included all and sundry enactments
.. [for the Ninth Schedule] showing shockingly insufficient regard for
the Constitution,’ said L. M. Singhvi, a rising young lawyer from Jodhpur,
of the amendment’s ‘casual, ill-considered, half-baked and unscientific
approach’. Indeed, the Schedule’s very existence was ‘improper’ for it
brought ‘into existence a category of protected legislation the propriety
or soundness of which we can scarcely vouchsafe’, Singhvi said.*°
The Joint Committee made a further change in the draft bill. Without
giving its reasons or who among its number suggested it, the committee

42 Parliamentary Debates, Rajya Sabha, vol. 44, no. 29, cols. 5246-7.
43 N.G. Ranga personally and via the Swatantra Party organized opposition to the
amending bill. He wrote to Nehru on 19 August 1963 asking him to suspend action on
the bill, especially in regard to the national emergency in force from the war with China.
He wrote to Swatantra colleagues on 3 October 1963 asking peasant organizers and
local
bar associations to flood the Joint Committee with memoranda opposing this ‘obnoxiou
s
bill’. On 3 November 1963, he presided over the ‘Andhra Pradesh
State Convention on
the Constitution 17th Amendment Bill’, which urged the Congress
to withdraw the bill.
A month later he wrote to Nehru again enclosing a ‘representation’ from ninety
members
of the Congress Parliamentary Party asking that a ceiling be placed on agricultur
al incomes
and, simultaneously, ceilings on urban, industrial, commercial, and profession
al incomes.
N. G. Ranga Papers, Subject File 1, Constitutional Matters File,
AICC File,J.Nehru File,
Parliamentary Museum and Archives (hereafter PMA).
44 The Constitution (Seventeenth Amendment) Bill, 1963: Report
of the Joint Committee, Lok
Sabha Secretariat, New Delhi, March 1964, p. vii. The laws
deleted from the draft bill
were listed on pp. 14-17.
Among the committee's diverse members were the communist A.
K. Gopalan, former
Food and Agriculture Minister Ajit Prasad Jain, Hare Krushna Mahtab,
and Deputy Law
Minister Bibudhendra Misra.
4 Singhvi Minute of Dissent. Ibid, xviii-xxiii. A Law Ministry official
, himself a
legislative draftsman, later confirmed that badly drafted state
laws were sometimes placed
in the Ninth Schedule. S. K. Maitra, interview with the author.
 The Rights and the Revolution: More Property Amendments 113

recommended that the amendment add to Article 31A the proviso that
compensation at market value should be paid for estate land taken by
the government if the land were within the ceiling as allowed for an
individual’s ‘personal cultivation’.*© Because ‘personal cultivation’ was
a term whose definition permitted zamindars and large landholders to
retain large amounts of land, this language, on first inspection, could
be interpreted as a device for enriching large landholders with full
compensation for which they would otherwise not be entitled. Former
officers of the Law Ministry do not support this interpretation. The
provision was aimed at smallholders, for whom full compensation was
thought to be justified, even by such stalwart communists on the Joint
Committee as A. K. Gopalan and P. Ramamurthi. Nor, in the memory
of law officers, has the provision been much used.47
The committee’s report was to be taken into consideration on 28
April but then came a hitch in the proceedings. When the vote was due
and the lobbies cleared, House Speaker Hukum Singh noted that a
large number of members were upstairs voting on committee elections,
but Minoo Masani—Swatantra now, but a member of the Congress
Socialist Party in the thirties—insisted on an immediate vote. The vote
was 206 ayes to 19 nays, barely short of allowing consideration of the bill
as reported. Masani told the treasury benches to take the defeat sportingly.
N. G. Ranga said government members could ‘now accept the decision
of God’.48 Law Minister Sen and others challenged the vote. The Speaker
upheld it, but he suggested that a special session could be convened to
pass the bill quickly because Nehru was most anxious that this be done.*?
Parliament having agreed to a special session, the government
reintroduced the bill on 27 May 1964. P. K. Deo immediately challenged
its introduction as contravening ‘the very fundamentals of democracy’:
had
it was a ‘carbon copy’ of the Seventeenth Amendment Bill, which
r
been voted down by the ‘collective wisdom’ of the house.” Law Ministe
Sen rejoined, ‘We are pledged in this House to bring about land reform
If se.
__ and we shall overcome all obstacles, procedural or otherwise,
f
46Joint Committee Report, p. Vii.
47 Interviews with the author. —. V+ Sie ™
48 1ok Sabha Debates, Third Series, vol. 30, no. 60, col. 13217.
to support the bill, subjecting
Frankel treats this as Congress MPs purposely failing
p. yaa
Nehru to ‘public humiliation’. Political Economy,
NMML.
49 Hukum Singh Oral History Transcript, p. 126,
50 Lok Sabha Debates, Third Series, vol. 32, no. 1, col. 95.
bling a defeated bill may be
Under the Lok Sabha’s rules, a bill closely resem
permitting this.
reintroduced after adoption ofa resolution
 114 Working a Democratic Constitution
necessary, to achieve this objective.’ The house divided; when the
votes were counted, 318 favoured consideration of the bill and 31
opposed it. Ranga, some other Swatantra members, and L. M. Singhvi
walked out. (Abstentions from voting are not recorded in the parlimentary
debates. )
The Lok Sabha adjourned a few minutes later: C. Subramaniam
announced that an era had ended. Nehru was dead. Deeply shaken by
the Chinese attack in 1962, his health had declined. He had suffered a
mild stroke at the Bhubaneshwar Congress session at the beginning of
the year. Since then, his gait had been unsteady, his face puffy, and its
alive expression missing. ‘In its place was a tiredness and sadness and
one sensed that he knew his‘end was near.’?!
Debate on the amending bill resumed on 1 June 1964. Critics opposed
iton procedural and substantive grounds. Government supporters offered
rationales for the amendment startling for the bad light they cast over
elements of it. Prime Minister G. L. Nanda rejected the objection, put
forward by Masani, Kripalani and others, that the bill should not go
forward because he led only a caretaker government, and there was a
convention that caretaker governments ought not to take major policy
decisions. On property issues directly, Masani said the bill was a ‘cold-
blooded breach of faith’ because Ambedkar, during the debate on the
First Amendment, had said there was no intention to use Article 31A
‘for the purpose of dispossessing ryotwari tenants’.>3 N. C. Chatterjee
argued that the term ‘ceiling’ in the bill should not be defined as ‘“any
law for the time being in force”’ because state legislatures could then
too easily alter established ceilings. He did, however, believe that
property ‘must be subjected to social control’.>4 A. K. Gopalan
supported the bill while endorsing property ownership. ‘A man who
holds enough land, whether itis five acres or ten acres, which is considered
enough for his livelihood—is not ... a class enemy,’ he said.>° The Praja
Socialist Party also thought that small holdings should be excluded from

51 Usha Bhagat Oral History Transcript, NMML. Mrs Bhagat became

Indira Gandhi's
secretary in 1953 and was an intimate member of the Nehru househo
ld on Teen Murti
Marg.
52 The CPP elected Lal Bahadur Shastri its leader on 2 June
in an arrangement
brokered by Congress pvesident K. Kamaraj, and Shastri took
the oath as Prime Minister
on 9 June. Some observers thought Shastri not enamoured
of the amending bill and that
he supported it out ofloyalty to Nehru. Even if true, it is unlikel
y that Shastri would have
taken the drastic action of upsetting the applecart immediately
upon assuming leadership.
53 Lok Sabha Debates, Third Series, vol. 32, no. 3, col. 366, 1 June 1964.
°4 Tbid., col. 380.
5 Tbid., col. 371,
 The Rights and the Revolution: More Property Amendments 114

the bill.°® Thus, for both the communists and socialists, the heart of the
property issue was not ownership or none, but, how much is enough?
Paradoxically, the most serious indictment of the amending bill came
from two of its supporters. G. S. Pathak reaffirmed fears about the Ninth
Schedule when he said it was needed ‘because there may be some
provisions [state laws] which are of doubtful validity or which may be
open to attack. We want to immunize all these acts’.°’ Asoke Sen revealed
the porousness of the new proviso to Article 31A (market-value
compensation for lands taken if held within the ceiling and under
personal cultivation), and of much land reform legislation, by giving
n’,
his definition of the term ‘personal cultivation’: ‘Personal cultivatio
family
he said, ‘not only includes cultivation by members of one’s own
as
but also by servants and labourers hired or paid by a person so long
the cultivation is under his supervision.’>5 (‘Supervision’ was never
1964
precisely defined—the author.) The bill passed 177 to 9 on 5 June
and received the President’s assent two weeks later.
d vy
Soon challenged, the constitutionality of the amendment was uphel
principal Y
by the Supreme Court in the Sajjan Singh case.°? The court’s
was a clear
points were that Article 13(2) did not apply for there
ment (see
distinction between ordinary law and a constitutional amend
years later);
chapter 8 for a contrary ruling in the Golak Nath case three
power to take
that ‘the power conferred by Article 368 includes the
and that ‘the
away the Fundamental Rights guaranteed by Part HI’;
unambiguously
expression “amendment of the Constitution” plainly and
.’©
means amendment of all provisions of the Constitution
May 1964 at Ramgarh. General Secretary's
56 At its Seventh National Conference, 17-20
given.
Report, PSP, p. 3; no place or date of publication
57 Parliamentary Debates, Rajya Sabha, vol. 48, no. 6, col. 808.
58 [bid., col. 1026.
933ff. Decision on 30 October 1964.
59 Sayan Singh v State of Rajasthan 1965 (1) SCR
K. N. Wanchoo, M. Hidayatullah,
On the bench were Chief Justice P. B. Gajendragadkar,
ey General C.K. Daphtary and others
Raghubar Dayal and J. R. Mudholkar. Attorn
represented the government.
pp. 946-7. The court also held
60 Gajendragadkar’s ruling for the majority, ibid.,
ation invalidated by the courts.
that Parliament had no power to validate legisl
view often cited when the Constitution
Chief Justice Gajendragadkar, expressing a
itution-makers must have
was being amended in the early seventies, wrote, ‘The Const
problems which legislatures may have to
anticipated that in dealing with socio-economic tant considerations
c interest and other impor
face from time to time, the concepts of publi on-
it is legitimate to assume that the Constituti
... may change and even expand; and so, these rights
be competent to make amendments in
makers knew that Parliament should -economic
ems which may arise in the cause of socio
so as to meet the challenge of the probl
try.’ Ibid.
progress and development of the coun
 116 Working a Democratic Constitution

Democracy and Socialism: The Nehru Years in Retrospect

The Congress Party, and the Congress-controlled government, often
had reiterated broadly reformist and socialist policies during the Nehru
years. The Congress’s socialist pattern of society resolution of 1955 will
be recalled; the party adopted the democracy and socialism resolution,
which envisaged ‘fundamental changes in the social structure’ in 1964;
the Planning Commission in 1962 defined socialism’s ‘basic criterion
.-- [as] not ... private but social gain’;®! and the 1956 Industrial Policy
Resolution intended ‘to prevent private monopolies and the concen-
tration of economic power’. On a grander scale was the ‘Agrarian Or-
ganization Pattern’ resolution of 1959. Famous as the Nagpur Resolu-
tion, this described agriculture’s future as ‘cooperative joint farming’
in which those who worked the land ‘would get a share of produce in
proportion to the work put in’. Nehru, who had edited and approved
the Resolution®? and who had been advocating cooperative farming
for several years, was stunned when the move blew up in his face as
critics condemned it as Soviet- and Chinese-style collective farming.
The idea slipped into oblivion, but the shock waves were slow
to

©! Second Five-Year Plan, Planning Commission, New Delhi, 1956, pp. 22-3.
See also
Frankel, Political Economy, p. 130.
62 Report of the General Secretaries, January 1959-Decembe
r 1959, AICC, New Delhi, 1960,
p. 13.
The Resolution endorsed the report of the Agricultural
Production Subcommittee
appointed earlier by the CWC. This apparently was the
same committee as the Land
Reform Committee set up at the Hyderabad Congress
session of October 1958—with
fifteen members, including U. N. Dhebar, G. B. Pant,
and Morarji Desai—to examine
the ‘gap’ that existed between existing land legislation
and the Planning Commission's
recommendations for the implementation of land
reform. The committee had
recommended the ‘expansion of co-operative sector
in agriculture by encouraging joint
co-operative farming’. NLTCM, vol. 5, p. 181,
editor’s footnote. The idea of ‘service co-
Operatives’ to provide agricultural inputs and market
ing assistance was older and more
popular.
The AICC meeting held three weeks after the Nagpu
r session elected Indira Gandhi
President of the Congress, her first official position
in the party.
63 F rankel, Political Economy, p. 162.
According to H. V. R. Iengar, Nehru ‘Just annou
nced it [co-operative farming] in
the Nagpur session of the Congress and becau
se he was in favour of co-operative
farming, there was no one who would oppos
e him and therefore the resolution
was passed ... . Indeed, he never consulted
anybody about it. To him, as a Fabian
socialist, it was just a concept which sound
ed good ... [H]e had ... not found out
what were the pros and cons of the scheme
...’. lengar Oral History Transcript, p. 237,
NMML.
 The Rights and the Revolution: More Property Amendments 117
subside.°* Among other things, they provided the impetus for the
formation of the country’s first anti-socialist, pro-property political party,
V the Swatantra (or Freedom) Party led by N. G. Ranga, C. Rajagopalachari,
and Minoo Masani.®
Yet there were those in the party who, impatient with the slow pace of
reform, agitated for more extensive measures. Krishna Menon and H. D.
Malaviya called in 1964 for nationalization of banks and insurance and
state trading in foodgrains. A ‘group of Congress workers’ formed the
Congress Socialist Forum to ‘rectify’ the ‘inert and obviously indifferent’
attitude in the party toward building ‘a socialist order democratically’.

64 Commenting on the ‘ferocity’ of the attack, Congress President U. N. Dhebar

wondered how anyone in modern times could oppose co-operatives, especially as they
were to be voluntary and to be preceded by ‘service co-operatives’. But Dhebar committed
the gaffe of saying that ‘we would like the next step to be that of collective farming, with
the ownership of the farmer remaining intact’. This elicited a ‘Correction’ slip from
Nehru’s private secretary, C. R. Srinivasan, to the recipients of Nehru’s bi-weekly letters
to chief ministers. This said that the words ‘collective farming’ should be changed to ‘co-
operative farming’. Dhebar letter to chief ministers dated 2 July 1959. U. N. Dhebar
Papers, microfilm box 1, NMML.
Nehru defended his policy to the chief ministers, saying that co-operative farming
had not suddenly been thrust upon the public, and he enclosed with the letter extracts
from Congress election manifestos in 1945, 1951, and 1957 that supported co-operative
farming. Letter dated 26 July 1959. NLTCM, vol. 5, pp. 271-81.
65 The party’s founding statement said: “We hold that the guarantees specified in the
original Constitution in respect of freedom of property, trade, employment and just
compensation for any property acquired for public purposes should be restored.’ Birth of
Swatantra (Freedom) Party, Swatantra, Bangalore, 1959, p. 2.
Ranga wrote to Nehru that the Nagpur Resolution might come to be seen as ‘the
commencement of demotion of peasantry into a new depressed class of the socialist age’.
It was too much like China, he said, «nd thejustification for co-operative farming ended
n as
with its failure in the USSR. The letter of 16 September 1959 contained his resignatio
Parliamen t so as to avoid embarrass ing Nehru with
the secretary of the Congress Party in
any speech he might make against co-operative farming. N. G. Ranga Papers, Jawaharlal
Nehru File, PMA.
be
The prominent Parsi industrialistJ.R. D. Tata wrote to Nehru that his firm would
could give
contributing to both Swatantra and the Congress. Nehru replied that Tata
‘rather mistaken’ if he thought Swatantra
contributions to anyone he liked, but he was
achari, 28 August 1961.
would become a viable opposition. Nehru to Krishnam
NMML.
Krishnamachari Papers, Jawaharlal Nehru File, 1961,
that India was
oe Gunnar Myrdal told a group of members of Parliament in April 1958
alist countries. Social-
ys* + further from a socialist pattern of society than Western non-soci
fast. Myrdal, Gunnar,
economic reform, Myrdal said, was moving too slowly in India, not too
ry of the Congress
~
the Secreta
Y Indian Economié Planning in its Broader Setting, published by
Party in Parliament, New Delhi, 1958.
, 1957, no publication
66 Keep the Flame Alive, A Thesis by a Group of Congress Workers
 118 Working a Democratic Constitution
G. L. Nanda led the formation of the Congress Forum for Socialist
Action to quicken ‘the pace of planned development’.®” Even Morarji
Desai thought that if citizens ‘“did not feel that their lot was improving
every day, their faith in democracy would be shaken” ’.©8
But intentions are one thing, promises another, and performance
yet another. The nobler the intention, the bigger the promise, the
harder to honour either. The gap between promise and performance
was widest in the land reform component of the social revolution. For
in building public sector industry and constructing great dams, espe-
cially, and in nationalizing commerce and industry, the government
had either an open playing field or weak opposition from industrial-
ists.°?7 When attempting land reform, however, the government con-
fronted decades-old entrenched interests: landholders and landown-
ers who had friends and supporters in the Congress, particularly in the
states. For them, socialism was an urban-industrial-commercial doctrine,
not a land-rural one. Yet the Constitution had been amended, its fun-
damental right to property diminished, other rights placed under a
shadow, and the courts’ powers of judicial review severely restricted
especially to support land reform legislation. Into the bargain, judges
and the judiciary as an institution of the Constitution had been cast as
enemies of social-economic reform. All of which had produced limited
results, according to government and Congress Party analyses. As the
grandfather figure of the five-year plans, Tarlokh Singh, put it, Nehru’s
emphasis on land reform had been accepted, ‘but, on account of weak-

At this time, Shriman Narayan, one of the more Gandhian socialists and
then a general
secretary of the Congress, wrote a pamphlet whose import is clear
from its title, A Plea for
Ideological Clarity, INC, New Delhi, 1957. In it, he said that Congres
s stood for the welfare
of all, but ‘it cannot continue to run with the hare and hunt
with the hounds’, p. 3.
67 Nanda to Nehru, letter dated 15 May 1962, printed with other material
s under the
heading ‘Congress Forum for Socialist Action’ and dated 15 August
1962. AICC Papers,
Second Installment, File OD 54, 1963, NMML. Nehru replied on
18 May that it was a
good suggestion, but he hoped the group would not deteriorate
into ‘seeking personal
preferment’. Ibid.
68 Speech to Associated Chambers of Commerce, 5 December 1958. AR, 13-19
December 1958, p. 2405.
69 Even so, a governmentreport in 1964 said that despit
e ten years of planning and
constant effort there still existed ‘a considerable degree
ofinequality in the distribution
of economic assets and consequent concentration of econom
ic power in the hands of
a numerically small section of the population’, Mahalanobis,
P. C. et al., Report of the
Committee on Distribution of Income and Levels of Living, Planni
ng Commission, GOI, New
Delhi, 1964.
 The Rights and the Revolution: More Property Amendments 11 9

ness in political organization and in administration, action lagged far

behind’.”? A Congress internal report putit less circumspectly: ‘Nowhere
has the gulf between promise and fulfilment been of more serious con-
sequence to the material well- being of the common people than in the
rural sector .... And nowhere has this failure been so clearly a result of
organizational weakness and inadequacies.’”!
Where did the difficulties lie? The policy was sound. Intermediaries,
tax farmers, zamindars, had to be eliminated for the governments’ writ
to run in the countryside. Social equity demanded an end to the
zamindars’ extortionate relationship with tenants, and tenants needed
security of tenure to be productive. No leader disputed these principles.
Equally, reduction in the size of large landholdings through land ceilings
and the redistribution of these ‘excess’ lands to tenants and the landless
was a sound policy if the goal was to produce a degree of levelling in
society, to ‘break up the old class structure of a society that is stagnant’,
as Nehru said.’2 For to be landless, particularly in rural areas, meant to
be below the bottom rung of the social-economic ladder, without social
status and political influence. Land redistribution was meant to serve
democracy as well as the agricultural economy. At one level the policy,
with the help of circumstances, succeeded. Land owning broadened
among individuals and groups, began the creation of a powerful peasant
an
stratum, a rural middle class that would change rural India. But
even broader band across the bottom of rural society—the sharecropper
and the agricultural labourer—remained as deprived as ever.
Yojana, 7 June 1965,
70 Singh, Tarlokh, ‘Jawaharlal Nehru and the Five-Year Plans’,
. 8.
New Delhi, 1964, p. 2.
¥ 71 Report of the Subcommittee on Democracy and Socialism, AICC,
aniam, Sadiq Ali, S. N. Mishra,
This subcommittee—members U. N. Dhebar, C. Subram
on implementation of the
and Bali Ram Bhagat—had been set up to study and report
1964 Democracy and Socialism Resolution.
would emerge as a
The agriculture minister in Uttar Pradesh, Charan Singh—who
and who was such a strong advocate
national figure during the Janata government (Part IV)
asoned and
——et
’—wrot e a well-re
of peasant proprietorship that his critics called him a ‘kulak
/ excellently written book in 1964 entitled India’s Poverty
and Its Solution
and opposing
, Asia
the
Publishing
fragme ntation
House, New York, 1964. Calling for peasant proprietorship
on of landlordism does not affect the
of landholdings, Charan Singh said that the ‘aboliti
p. vi.
farm, it powerfully affects the farmer’. Ibid.,
published in the AICC Economic
72 See his thoughtful paper, ‘The Basic Approach’, first
s, vol. 4, p. 122.
Review on 15 August 1958. Jawaharlal Nehru’s Speeche
which we can build,’ Nehru wrote
‘Agricultural production is the only foundation on
vol. 5, p. 106. A few months later, he wrote
to the chief ministers on 30 July 1958. NLTCM,
whole scheme of planning and progress’.
that ‘delay in land reform is really a delay in the
181.
Letter of 20 December 1958. Ibid., p.
 120 Working a Democratic Constitution

The failure of agricultural reform to improve the conditions of this

huge layer of the rural population had all along rested more with the
Congress Party and its state governments than with the courts. The
legislation that survived judicial scrutiny contained loopholes ample
enough to accomodate a tractor. Landholders could evict tenants, who
then, not actually on the land, could not prove use and tenure—the
land records being poor and often manipulated by landlords. Devices
like ‘personal culuvation’, str (pronounced seer), and khudkasht allowed
great landholders to retain much land. Law Minister Asoke Sen, asjust-
noted, had shown how ‘personal’ cultivation could be used to evade
ceilings. The other terms could be used similarly. Sir was land that had
been recorded as a landlord’s, ‘or which but for error or omission would
have been so continuously recorded’, and which had been cultivated
for twelve years by the landlord with his own stock or by his servants or
by hired labour.’ Khudkasht was land other than sir (that is, not with
the twelve year qualifier) that had been cultivated by a landlord or by
his servants and hired labour.’4 Another commonly employed device
was the benami transaction in which a landholder would register parcels
of his landholdings in the names of family members and friends and,
in the most outrageous cases, his farm animals, thereby keeping large
areas under his control, although in law ownership had passed from
him.
Nehru, in 1954, pointed out the malign uses of these terms—in
the
process revealing the extent to which he was out of touch on some matters.
It comes as a shock to me that numbers of tenants are still being evicted
.
This is often done ... by land being declared khudkasht or reserve
d for
personal cultivation. Many states place no limit to the quantity of
land
which could be retained as khudkasht... . It isa fact that even now
people
hold many hundreds of acres of land, sometimes even
a thousand acres
or more. This result has not been what we had looked forwar
d to.79
3 George, P. T., Terminology in Indian Land Reforms, Gokhale
Institute of Politics and
Economics, Poona, Orient Longman Ltd., New Delhi,
1972, p. 97. This definition of sir
applies particularly to Uttar Pradesh.
74 Tbid., p. 49. With only slight variations in definition,
this term was used in a half-
dozen states.
75 Letter to chief ministers dated 5 August 1954. NLTCM, vol. 4, p. 10.
Ten years later, this was continuing. Wolf Ladejinsky wrote
that in the districts he had
visited, tenants were still being ejected and denied
tenure by other devices. Landlords
were powerful and should be checked soon by giving
tenants secure tenure, Ladejinsky
said in a report for the central government, written
while he was a consultant for the
Ford Foundation. Ladejinsky, Wolf, A Study of
Tenurial Conditions in Package Districts,
Planning Commission, GOI, New Delhi, 1965.
 The Rights and the Revolution: More Property Amendments 121
Criticism of land reform implementation derived in part from the
imprecision of terms and slogans. “Zamindari abolition’, the first stage,
had a clear meaning, but it was accompanied by the slogan, used by all
politcal parties, ‘land to the uller’. The image was the tenant, and possibly
even the sharecropper, getting land to own, plots the government had
divested from zamindars and redistributed. The actual results of zamindari
abolition—with considerable variations by locality—were that zamindars
as ‘intermediaries’ or tax farmers were abolished and portions of their
lands taken by government for distribution. But not only was possession
retained by the devices just described, in many cases the laws divested
the ex-zamindar only of his uneconomic fragments. ‘He retained the
workable core of the estate while the fragments—hundreds of thousands
of plots, many less than a digha (about one-third of an acre)— were
parted up [sic] amongst as many tenants as could prove legal claim.’”6
The result was that even the more fortunate tenants got only tiny pieces
of land and that little land went to the ‘landless’, the sharecropper and
the agricultural labourer.
Why state legislatures led by powerful chief ministers dedicated to
zamindari abolition had enacted legislation so full of loopholes is a
puzzle. Were they guilty of the original sin of drafting purposely porous
laws? The simple explanations of ineptness or hypocrisy seem
inadequate, although the Congress Working Committee’s subcommittee
for drafting the manifesto for the 1957 elections sounded hypocritical
when it recommended that if the manifesto could ‘say to all peasants
[that] the land reforms would be completed within two years, the peasants’
confidence in the government will become unshakable’.’” Other
explanations are that chief ministers like G. B. Pant, Morarji Desai, S.
K. Sinha and Ravi Shankar Shukla were concentrating on breaking up
the zamindari system and expected extensive land redistribution to
follow via ceilings. Such intentions could have been accompanied by a
willingness to let ex-zamindars retain considerable lands in order to
gain passage of the laws, while harbouring the intention later to take
away much of it. This would mean that the intention ‘was not to extirpate
zamindari but rather to cut it down to size’.’® ‘Zamindari, as a legal
institution, was gone, but its abolition had produced no miraculous
transformation of the agrarian scene two decades after passing of the

76 Whitcombe, ‘Whatever happened to the Zamindars’, p. 179.

Report
77 At the meeting of the Election Manifesto subcommittee in November 1956.
1956, p. 26.
of the General Secretaries, March—December 1956, AICC, New Delhi,
78 Whitcombe, ‘Whatever Happened to the Zamindars’, p. 176.
122 Working a Democratic Constitution

Act’ (the UP Zamindari Abolition and Land Reforms Act, 1951).79 It

appears, in the way of the world, that the poor had been forgotten.
Amending the Constitution to restrict the judiciary’s reach over leg-
islation affecting property rights produced an unintended consequence:
the government could less use judges as whipping boys for its own fail-
ures in implementation—although civil servants still could be so used to
a lesser degree. The Congress and its state governments thus were ex-
posed as the principal impediments to the full implementation of land
reform during the Nehru years, as they would be under his successors,
Lal Bahadur Shastri and Indira Gandhi.
None of this resolved the conundrums, which had baffled party and
government during the Nehru years, and which would confront gov-
ernments to come. What degree of impatience is required to drive
reform efforts, and how much patience with the realities of change is
essential if constitutional norms are to be preserved? How are the Con-
stitution’s property rights to be understood, or measured from the stand-
point of those holding property or those denied it because they lack
social status and political influence? Is the retention of landholdings
due to unimplemented land ceiling laws a crime in which landholder,
politician, and civil official collaborate? If the resistance of landholders
and recalcitrant politicians cannot be overcome in the country’s
democracy, what of those left without land and status? Both genuine
reform and its absence will produce class tensions challenging the Con-
stitution’s seamless web. Where, then, will the politicians and the judges
stand?

79 Tbid., p. 157.
 Chapter 5

THE JUDICIARY:
‘QUITE UNTOUCHABLE’

The justices of the Supreme Court who took the oath on 26 January
1950 could not have imagined the controversies that awaited them,
which have been described in previous chapters. But they knew
that high-calibre judges and an independent judiciary were essential
to the Constitution’s preservation. The Court should interpret the
Constitution ‘ “with an enlightened liberality” ’ and administer the law
with ‘ “goodwill and sympathy for all”’, said Chief Justice of India Harilal
Kania after taking his oath from President Rajendra Prasad. To do this,
Kania continued, it will ‘“be quite untouchable by the legislature or
the executive authority in the performance ofits duties” | Felicitating
Kania, Attorney General M. C. Setalvad quoted Oliver Wendell Holmes
on the ‘“organic living”’ character of constitutions and advised that
the Court’s foremost task would be interpreting the Constitution as a
‘“means of ordering the life of a progressive people”’.* The Chief
Justice also, if only by implication, had defined the position and the
responsibilities of the entire judicial institution under the Constitution.
During the years to come, philosophies of the law, as expressed by
benches in decisions and by judges and jurists outside the courts, would
vary over how best to preserve the seamless web. But an independent
judiciary, and its related issue, judges’ quality, would be a constant
theme.
The original Supreme Court justices had long experience with
two
judiciai independence. These seven judges (four Brahmins,
non-Brahmin, and a Muslim) had been practising before the bar or
members of
on the bench for at least thirty years before becoming
ple
the Court. Their judicial careers had imbued them with the princi
had been
of judicial independence, for courts under the British
d imperial
independent and impartial, except where legal matters touche
Times of 29
1 For Justice Kania, see 1950 (1) SCR Journal 9, 13, 7. The Hindustan
January 1950 reported the occasion.
2 SCR, ibid., p. 3.
 124 Working a Democratic Constitution

interests. Those in the highest levels of government shared the ideal.

Rajendra Prasad, who once practised in the Calcutta High Court, saw
only one way for the courts: ‘The course ofjustice, impartiality and
honesty’.* Prime Minister Nehru believed that ‘the independence of
the judiciary has been emphasized in our Constitution and we must
guard it as something precious’.° He rejected the idea of a packed court
of individuals of the government’s ‘own liking for getting decisions in
its own favour’. He wanted first-rate judges, not subservient courts.®
Nevertheless, controversies over how to protect judicial independence
soon arose. Comparatively mild during the Nehru period, they would
become bitter and even threaten constitutional government during later
years. This chapter will discuss the beginnings of these controversies in
two sections and conclude briefly with a third section about issues of
delivery of justice that emerged at this time.

_ Judicial Independence: Appointments

An independent judiciary begins with who appoints what calibre of
judges. The Constitution established the bare process for appointments

3 The other justices sworn in by Kania on 26 January were five puisne judges: Sudhi
Ranjan Das, Mehr Chand Mahajan, Seyid Fazl Ali, M. Patanjali Sastri, and Brij Kumar
Mukherjea. N. Chandrasekhara Aiyar joined the Court on 13 September 1950, bringing
it to its full strength of seven.
All the men had their higher education in India. All but two had earned their law
degrees in India. Fazl Ali had been called to the bar from the Middle Temple and
S. R.
Das from Lincoln’s Inn. Cumulatively, they had served on six high courts, and two of
them had been chief justices. All except S. R. Das had been judges on the Federal
Court.
Kania had been made a permanent judge of the Bombay High Court in
1933, a
member of the Federal Court in 1946, and he had been knighted
in 1943. He never had
become Chief Justice of the Bombay High Court, although he was in line
to do so. He
was superseded for the position because of his unhappy relations with the outgoing
Chief
Justice, Sir John Beaumont. Munshi, K. M., The Bombay High Court: Half a Century of
Reminiscences, Bharatiya Vidya Bhavan, Bombay, 1963, p. 40.
4 For biographical information on Supreme Court judges, see the Law
Ministry’s series,
Judges of the Supreme Court and the High Courts; Gadbois, George H.
Jr., ‘Indian Supreme
Court Judges: A Portrait’, Law and Society Review, vol. 3,
Amherst, MA, 1968, pp. 317ff,
and Gadbois, ‘Selection, Background Characteristics, and Voting
Behavior of Indian
Supreme Court Judges, 1950-59’, in Schubert, Glendon
and Danelski, David J. (eds),
Comparative Judicial Behavior, Oxford University Press, New York,
1969, pp. 221ff.
Fe For an historical review of the evolution of the British-Indian
legal system, see the
YY classic, Ilbert, Courtney, The Government of India, Claren
don Press, Oxford, 1916.
4 Speech at the Orissa High Couit, 18 November 1951.
Speeches of Rajendra Prasad,
vol. 1, pp. 74ff.
5 Letter to chief ministers dated 18 December
1950. NLTCM, vol. 2, p. 291.
6 Sorabjee, Soli
J.,‘In Nehru’s Judgement’, Times of India, 30 April 1989.
 The Judiciary: ‘Quite Untouchable’ 125
to the Supreme Court and the high courts. The President appoints the
judges of the Supreme Court after consultation with the Chief Justice
of India (CJI) and other Supreme Court and high court judges as he
may wish. He appoints high court judges after consultation with the
CJI, the chief justice of the high court to which the individual is to be
appointed, and the governor of the state. Whether the governor, when
making his recommendations, may act in his discretion or only on the
advice of the chief minister soon would become controversial. It became
a convention that the President would consult the outgoing CJI about
his successor, although this was largely a formality so long as the
senior-most judge routinely became Chief Justice. All judges, therefore,
are appointees of the government, which means of the Prime Minister
and the cabinet, placing upon them primary responsibility for the quality
and the independence of the judiciary.’ This constitutional process
left undecided the influence of the institutions and individuals
participating in it; it could not do otherwise. The CJI during the Nehru
period had virtually a veto over appointment decisions, a result of the
conventions and practices of the time and the Chief Justices’ strength
of character.
As in all democracies, the issues of judicial independence and the
calibre of judges were thought inseparable, and, at the risk of
belabouring the obvious, an explanation about the Indian context seems
worthwhile. At its most obvious, intellectually inferior judges were
thought likely to produce bad law and poor justice. But judges of any
ability could be affected by the ‘extraneous influences’ that Indians
believed so prevalent in their society. These could come from a language >

or regional group, from family, caste, or clan. The public and the legal
community during the Nehru years were more suspicious of such f.445
:

influences than of pressure on judges from government acting from its

’

own ideological motivations, whether ‘conservative’ or ‘socialist’.

Executive influence would assume prominence after Indira Gandhi
became Prime Minister (Part II).
Disputes about judicial appointments had begun before the
Constitution was inaugurated. Kania, when Chief Justice of the Federal
Court, wrote to Nehru about making permanent several acting judges of
the Madras High Court. The things he said (the record is not available)
about one of them, Bashir Ahmed, a Muslim, convinced Nehru that Kania
was being ‘unjudicial and indeed improper’, and he wrote Patel that
he doubted that Kania should (in three days) become Chief Justice of

7 See the Constitution, Articles 124-7 and 214-7.

 126 Working a Democratic Constitution

India.* Patel replied that he had told Home Secretary Jengar to go ahead
with Ahmed’s appointment, and he had told Kania that at this point any
adverse action on Ahmed might be regarded as communal.?
Later that year, other appointments to the Madras High Court and
to the Rajasthan High Court became controversial. In the former
instance, the Chief Minister, P. S. Kumaraswami Raja, and the Chief
Justice of the High Court, P. V. Rajamannar (of whom we shall hear more
in Parts I! and V) recommended to the government of India that one
Koman of the Indian Civil Service (ICS) be appointed judge. Consulted,
Kania expressed the view that Koman was not ‘of requisite calibre’ and
offered another name. This so irritated the chief minister that he
protested in an intemperate letter, which Patel declined to place in the
file. Instead, Patel drafted a letter for Kumaraswami, to send back to
him, reiterating his and the Madras chief justice’s support for Koman.!9
Also in 1950, the suggestion that K. N. Wanchoo go from ajudge at
the Allahabad High Court to become the chief justice in Rajasthan
encountered a thicket of difficulties. The Acting Chief Justice in Rajasthan,
Nawalkishore, wanted the position for himself, and was supported in
this by Chief Justice Kania. Nawalkishore had also called upon Rajendra
Prasad to importune his support. The chief justice in Allahabad did
not wish to lose Wanchoo, so Patel asked his secretary, V. Shankar, to
meet and discuss the matter with the Allahabad chief justice, whom he
knew personally. Nehru, apparently ignorant of the affair and irritated
by it, wrote to Patel, who replied that it was ‘distressing’ to have to
defend finding such a good chief justice for Rajasthan.!!

8 Letter to Patel dated 23 January 1950, Durga Das, Patel’s Correspondence, vol. 10, p.
378.
9 Letter dated 23 January 1950. Ibid. Patel also wrote that some indiscretions bya
chief justice have to be tolerated, ‘but, on the whole, I think I have been able to
manage
him’. Kania’s petty-mindedness ‘is a trait not uncommon with some heads of the judiciary
who feel that they have the sole monopoly of upholding its independence’, Patel said.
Ibid., p. 379.
10 Kumaraswami Raja letter to Patel dated 12 November 1950. Patel to ‘My Dear
Raja’ dated 20 November 1950. Patel, Manibehn and Nandurkar, G. M.
(eds), Sardar’s
Letters, Mostly Unknown, vol. 3, Sardar Vallabhbhai Patel Smarak
Bhavan, Ahmedabad,
1983 (1950), pp. 57-64.
The Governor of Madras State, the Maharaja of Bhavnagar, also supported
Koman’s
appointment. Patel consulted C. Rajagopalachari about the matter and
explained it fully
to Nehru in a letter dated 3 December 1950. Durga Das, Patel’s Correspondence,
vol. 9, p. 305,
'l Letters exchanged between Nehru and Patel, 21 November 1950,
and 1 December
1950. Durga Das, Patel’s Correspondence, vol. 9, pp. 502-8. The description
of Nawalkishore’s
ambitions and his call on President Prasad appear in an unsigned,
undated memorandum
 The Judiciary: ‘Quite Untouchable’ 127

The governor's involvement in the appointment of high court judges

might or might not interfere with judicial independence. K. M. Munshi
provides an example. During the months March—November 1953, when
governor of Uttar Pradesh, Munshi exchanged letters with Chief
Minister Pant about candidates and those that he, Pant, and the High
Court's chief justice favoured or found unacceptable for the bench.
They discussed the suitability of judges who were members of the British-
formed Indian Civil Service (ICS) and Munshi’s view that district judges
often acquitted violent offenders too easily so as not to risk high court
reversal of their decisions.!* His activism introduced the constitutional
issue of the governor’s ‘discretion’, which President Prasad exacerbated
by actions apparently taken without reference to the cabinet or the
Prime Minister. In consultation with Home Minister Katju, Prasad
decided ‘that the governor ... has to express his own individual opinion
when he is consulted about the appointment of a judge of the state
high court as required by Article 217’ (and not merely follow his chief
minister’s advice), although he need not write to the President directly.
The correspondence ‘between the chief minister and the governor or
rajpramukh should be in writing and ... copies of the correspondence
should be forwarded along with the chief minister’s recommendation
.. [T]he authorities ... at this end will give due weight to both the views.’!4
Munshi—not one to underestimate his importance—interpreted

(but after 1956) entitled ‘Procedure to be adopted in connection with the appointment
of High Court Judges’, Ibid., vol. 12, p. 296. Sardar Patel at the time of this exchange
with Nehru was three weeks from his death.
12 Munshi-Pant letters of 16 Avril, another undated, and 4 August 1953; Pant to
Munshi of 20 November 1953, in which Pant also reports that he had been urging Home
Minister Katja to make appointments speedily, but to no avail. K. M. Munshi Papers,
Microfilm Box 56, File 143, NMML.
Munshi continued to involve himself closely with Pant’s successor as chief minister,
Sampurnanand, and with Pant after he become Home Minister in New Delhi. He wrote
Sampurnanand favouring K. N. Wanchoo, who was by then chief justice of the Rajasthan
Court, to return to the UP High Court as chief justice.
13 Letter of 11 September 1954 from Shavax A. Lal, Secretary to the President, to
Munshi. K. M. Munshi Papers, Microfilm Box 59, File 152, NMML.
14 Prasad to the Rajpramukh of Mysore, 6 September 1954. This letter was attached to
the Shavax Lal—-Munshi letter. Ibid.
Prasad understood the appointments process thus: The proposal is first made by the
high court chief justice to the government of the state, then to the governor, ‘who makes
is
his own recommendation on the basis of the high court’s recommendation’. This
considered by the
referred to the Chief Justice [of India] and his recommendation is
if approved by the Prime
home minister, who makes his own recommendation, which,
particular
Minister, comes ‘to me’. Therefore, Prasad added, neither the cabinet nor any
 128 Working a Democratic Constitution

this to mean that his opinions on appointments could go directly to

the central government. Miffed when this proved not to be the case, he
wrote to Pant, now Home Minister, that his letter about a new chief
justice for the high court had gone to the chief minister and the chief
justice and their comments on his letter had gone directly to Delhi.
“My views, only intended for the appointing authority,’ wrote Munshi,
‘were subjected to criticism ... without my knowing anything about it. ...
This means that the opinion of the governor is subject to the chief
justice’s and defeats the principle of the governor being consulted as
an independent person, in whom the general administration of the state
is vested (emphasis added).’!°
Another governor, Asaf Ali of Orissa, expressed concern that if a
governor were compelled to accept the advice of his ministers, the judge
will ‘owe his appointment to the ministry and, therefore, I cannot conceive
how we cannot expect certain members of the Bar not to seek to ingratiate
themselves with the ministry in anticipation’.!® Chief Justice B. P. Sinha
recalled instances where governors who ‘had been known to toe the line
of the chief ministers’, had tried to block judicial appointments for
~ personal reasons by making false allegations about the candidate’s
communal bias, something chief ministers also had done. A state
government, Sinha remembered in apparent amazement, even had the
temerity to claim that it knew more aboutan individual's legal pie rd
than the high court chief justice and the Chief Justice of India.!

minister has any initiative in high judicial appointments. Letter from Prasad to Ginija
Prasanna Sanyal of 17 April 1952, Rajendra Prasad Papers, File 6G/52, Miscellaneous
Important Correspondence, NAI.
15 Letter of 18 June 1956. Ibid. Munshi hoped to be excused for the ‘frank manner’ of
his letter and referred to the ‘humiliating position of my confidential opinion sent to the
government being subject to the comments of the chief justice behind my back’. The chief
justice in question was Orby Howell Mootham. When Mootham was to be sworn in as chief
justice, a dispute arose as to whether the governor should swear him in at the high court,
with other judges and lawyers present, or at Raj Bhavan, the governor's office and official
residence. Munshi wrote to Prasad, saying that ‘constitutional propriety’ demanded a
swearing-in at Raj Bhavan, which, with precedents in hand from other states,
the President
concurred it should be. K. M. Munshi Papers, Microfilm Box 67, File 188, NMML.
16 Asaf Ali to Nehru, letter dated 4 March 1950. Chaudhary, Prasad:
Correspondence,
vol. 12, pp. 129ff.
17 Sinha, B. P., Reminiscences and Reflections of a Chief Justice,
B. R. Publishing
Corporation, Delhi, 1985, pp. 93-8.
Individuals sometimes ‘canvassed’ for judgeships for themselves or their
friends, Sinha
said. For example, when he was a puisne judge on the Supreme
Court, he had fought
successfully to bring S. K. Das onto the court. Ibid., p. 75. V. V. Giri,
when Indian high
Commissioner in Colombo, wrote to Orissa Premier H. K. Mahtab
recommending that ‘my
 The Judiciary: ‘Quite Untouchable’ 129
The selection and appointment of judges attracted the close attention
of the Law Commission. Established in August 1955 in response to
widespread demands for reform of the legal system, its efforts were to
encompass reform, both of laws and of the judicial system. Led by the
Attorney General M. C. Setalvad, ‘Mr Law’ to his many admirers, it began
work in May 1956.!8 The division working on law reform produced
thirteen reports by autumn 1958. Setalvad chaired the division that sent
the commission’s famous Fourteenth Report on the reform of judicial
administration to the Law Minister in September 1958. The division’s
terms of reference included examining speeding up the disposal of cases
‘and making justice less expensive’; the organization of civil and criminal
courts; the level of the bar and legal education; and the recruitment of
the judiciary.
When researching the views of judges, lawyers, and political leaders,
the commission discovered harsh criticism of the selection process, par-
ticularly for high court judges. Munshi, in his reply to the commission’s
questionnaire, said he believed that ‘the High Court judiciary has dete-
riorated in recent years’. Among the causes were the chief ministers be-
coming ‘a source of patronage’ under the selection system of Article
217. Further, selection of high court judges from among senior district

friend MrJagannathdas’ be recognized for his seniority on the court. Letter dated 16 July
1948, Hare Krushna Mahtab Papers, V. V. Giri File, NMML. This is the same as Bachu
Jagannadha Das who joined the Orissa High Court in 1948 and became its Chief Justice on
30 October 1951, and was appointed to the Supreme Court in 1953. Mahtab tried
unsuccessfully to gain appointment to the Supreme Court for retired Orissa High Court
Chief Justice B. K. Ray, at Ray’s urging. Mahtab, H. K., While Serving My Nation, Vidyapuri,
Cuttack, 1986, p. 58.
18 The other members of the commission were: M. C. Chagla, K. N. Wanchoo,
respectively chief justices of the Bombay and Rajasthan High Courts; G. N. Das and P.
Satyanarayana Rao, retired justices of, respectively, the Calcutta and Madras High Courts;
V. K. T. Chari, Narasa Raju, and S. M. Sikri, Advocates General, of Madras, Andhra, and
Punjab respectively; N. C. Sen Gupta, G. S. Pathak, and G. N. Joshi, advocates, respectively,
in Calcutta, Allahabad, and Bombay. N. A. Palkhivala was appointed to the commission in
October 1956 to work in the Statute Revision Section, particularly on income tax.
Nehru supported establishing the commission on a temporary basis, and thought
the time not ripe for a permanent body. See Baxi, Upendra, The Crisis in the Indian Legal
System, Vikas Publishing House Pvt. Ltd., New Delhi, 1983, p. 248. There had been
discussion in Parliament in 1952 about forming a law commission, and Ambedkar, then
Law Minister, had said that the government was considering whether such a body should
be statutory and permanent. He did not favour an autonomous body and argued that it
should become an arm of the Law Ministry, which it eventually became. The AICC resolved
on 26 July 1954 that there should be a law commission, as in England, to revise laws that
had been promulgated nearly a century previously, and to advise on current legislation
from time to time. Ibid., p. 247. The work of the original two law commissions dated
130 Working a Democratic Constitution

judges was bringing in individuals ‘who have litle physical and judicial
vigour left’.!9 Former Chief Justice Sastri also thought that there had
‘been a marked deterioration ... in the standards [in high courts] ... due
... mainly to unsatisfactory methods of selection which are often influ-
enced by political and other extraneous considerations’. Many of our
politicians would apparently prefer to have a complaisant judiciary, Sastri
said.2° During visits to high court cities, the commission reported that it
had heard ‘bitter and revealing criticisms’ of recent appointments from
Supreme Court, high court, and retired judges, public prosecutors, bar
associations, lawyers, and law school faculty. The ‘almost universal cho-
rus of comment alleged that unsatisfactory selection had ‘been induced
by executive influence’ reflecting ‘political expediency or regional or
communal sentiments’. This was the situation despite, in most cases, of
concurrence in appointments by the chief justices of the high courts and
the Chief Justice of India.*! Critics expressed these sentiments other than
to the commission. M. C. Mahajan wrote of his time as chief justice in
1954 that he ‘was greatly pained ... [that] ... narrow parochial considera-
tions were sought to be introduced in making these high legal appoint-
ments’. His suggested remedy was selection of judges from an all-India
panel—an idea whose popularity would wax and wane for four decades.??
One wonders if the picture were as broadly black as painted. Disa-

from the Act of 1833. Thomas Babbington Macaulay was the first chairman. These
commissions initiated the drafting of the Anglo-Indian Codes that would be placed in
force throughout the remainder of the 19th century.
19 Munshi, ‘Replies’ to the Law Commission questionnaire. K. M. Munshi Papers,
Microfilm Box 67, File 188, NMML. Munshi also said that it was ‘assumed too easily that
the selection made by the chief justice [of the high court] is necessarily guided by
considerations of merit’, given the justices’ close contacts with ministers. Also, several
ministers have been known ‘to have their favourite group of judges who exert considerable
influence in favour of their proteges and where casteism is a consideration’. Ibid., p. 5.
20 Patanjali Sastri, ‘Answers to the Questionnaire’ of the Law Commission, p. 2. Copy
in the author’s possession, kindness ofJustice Sastri’s daughter.
21 Fourteenth Report: Reform of the Judicial Administration, 2 vols, Law Commission of
India, vol. 1, 1958, pp. 69, 105. The chief justices of the country later expressed their
apprehension that state governments might exert a baneful influence on the selection of
judges. Ata meeting during the mid-sixties, with the Chief Justice presiding, the justices
‘resolved’ that if the government did not agree to a name recommended by a high court
chief justice, it might request he submit another name, ‘but the State Government should
not initiate and sponsor a new name ofits own’. P. B. Gajendragadkar in a letter to Home
Minister G. L. Nanda, dated 7 June 1966. P. B. Gajendragadkar Papers, G. L. Nanda File,
NMML.
22 Mahajan, Looking Back, p. 213. S. R. Das, CJI from 1956 to 1959, had complained
about the ‘political pollution’ in thejudiciary and aspirants ‘canvassing’ for judgeships,
according to Frank Anthony in Motherland, 15 May 1973.
 The Judiciary: ‘Quite Untouchable’ 131
greements about the intellectual and legal qualifications of candidates
for the bench may be rational. No one involved in the appointments
process is immune from his own prejudice, error, and personality pref-
erences. Finding hidden motives is a parlour game within the priest-
hood of the Indian legal community. Caution, therefore, seems advis-
able when considering the vigour of this criticism. Indeed, Mahajan
himself also praised the appointment process. Nehru ‘has always acted
in accordance with the advice of the CJI’, he recalled, except in rare
circumstances, despite efforts by state politicians with ‘considerable pull’
to influence him.**
The Law Commission’s assessment, given in an interim note for the
cabinet, that the “weight of testimony”’ it had collected compelled it to
conclude that some high court appointments had been made on consid-
erations ““of political expediency or regional or communal sentiment”’
caused consternation in the Home Ministry.2* Home Minister Pant re-
acted to the note ‘with bewilderment and concern’ in a letter to Com-
mission chairman M. C. Setalvad. He had been primarily responsible for
appointments since 1955, Pant wrote, and every case ‘has been proc-
essed in the Home Ministry and the recommendations made by me have
as a rule been endorsed by the Pime Minister and accepted by the Presi-
dent’.2° Pant enclosed a list of the forty-one judges appointed to high
courts since he had become Home Minister in 1955. ‘[T]here was nota
single case’ among them where the final result did not ‘follow the advice
of the Chief Justice of India’, he claimed. He enclosed a second list of
five appointees to four high courts about whom there had been some

23 Mehr Chand Mahajan, ‘A Pillar of Justice’, pp. 384-6.

A judge in the high courts of Punjab before and after Partition, Mahajan was
recommended for appointment to the Federal Court in 1948, in preference to his former
chief justice, Dewan Ram Lal. Ram Lal, being friendly with the Prime Minister, wanted
Nehru to veto my appointment, Mahajan remembered. But Nehru (who had had strong
differences with Mahajan over Kashmir, when he had been ‘Prime Minister’ there)
‘advised the President to appoint me.’
In his autobiography, Mahajan recalled events somewhat differently. He wrote that
Nehru preferred Ram Lal, but that Kania and Patel preferred him, so he was appointed,
Nehru having acceded to advice. Looking Back, pp. 191-2.
24 The original of the interim note is not available. These quotations from it appeared
in the Statesman, 17 October 1957.
This note was also reported to have said the ‘“bitter and revealing” criticism of
appointments seem to express ‘ “acute and well-founded”’ public dissatisfaction.
25 Pant to ‘My dear Setalvad’ dated 22 August 1957. Prasad papers, File 47, NAI.
but the letter is not
Pant had written to Setalvad on 16 August about the same subject,
available.
132 Working a Democratic Constitution
disagreement, saying that the final decision in each instance followed
the CJI’s advice. Also, because four of the individuals came from the judi-
cial services, there could have been no question of political bias.2° Con-
cluding his letter, Pant said that the idea of choosing judges from an all-
India panel had been suggested in February 1955, but that the then Chief
Justice B. K Mukherjea did not favour it and the matter had been dropped.
Setalvad replied five days later. The analysis of the appointment process
covered in the note began in 1950, he explained, and was not confined
to 1955 and after. The information came from answers to the Law
Commission’s questionnaire and from oral testimony, some of which had
been given in confidence. Setalvad quoted an answer from a former Chief
Justice of India (who would seem to have been either B. K. Mukherjea or
S. R. Das): ““In olden days”’, this answer said, the chief justice (of the
high court) had a “preponderant voice”’ and the governor could act in
his individual discretion. Now, the governor had to be guided by his
ministers and ““the chief minister thinks it is his privilege to distribute
patronage and that his recommendation should be the determining
factor.”’ This had brought about some demoralization among high court
chief justices who, before making their recommendations, had tried to
ascertain the chief minister’s views so they would be spared the “loss of
prestige in having [their] nomination unceremoniously turned down”’.
Setalvad told Pant that it was the commission’s duty ‘to find out why, in
spite of constitutional procedures having been followed in most of the
cases, satisfactory results have not been achieved’ .27
The disagreement exploded publicly when a leaked account of the
interim note appeared under the headline, ‘Unsatisfactory Selection
of Judges, Main Cause of Arrears’.?8 Pant wrote to a member of the com-
mission, Satyanarayana Rao, Setalvad being abroad, that the leak would
prove harmful to ‘public confidence in the independence and efficiency
of the judiciary’. Pant enclosed a list of high court appointments from

26 Of the five, two were appointees to the Allahabad High Court: V. G. Oak andJ. K.
Tandon (who had apparently drafted several of the items Pant had sent to Nehru in 1951
about amending the Constitution (see chapter 2). The others were Panchkari Sarkar to
the Calcutta High Court, Raj Kishore Prasad to the Patna High Court, and M. Sadasivyya
to the Madras High Court. Pant to Setalvad, letter of 22 August 1957, footnote 25. The
latter was not appointed to Madras, but was appointed to Mysore in 1957, where he
retired as the chief justice in 1969.
27 Setalvad to ‘My dear Pantji,’ 27 August 1957. Prasad Collection, File 47, NAI.
Setalvad also told Pant that the ‘inside information’ about who agreed to the selection of
particular candidates would not have been available if Pant had not provided it.
28 The Statesman, 17 October 1957. See footnote 24.
 The Judiciary: ‘Quite Untouchable’ 133
6 March 1950 through 1954. He pointed out that, with two exceptions,
all the seventy-five judges appointed during the period had been agreed
to by the high court chief justice, the chief minister, the governor, and
the Chief Justice of India.*9 Setalvad’s evidence ‘can hardly outweigh
the manifest testimony of the indisputable facts given by me’, Pant said.
He found it difficult to conceive that a high court chief justice could be
‘so lacking in the elementary sense ofjustice’ that he would fear rec-
ommending an individual not in the chief minister’s favour. Pant con-
cluded by asking the commission, in light of his evidence, to delete the
‘relevant portions’ of the report and make other changes to remove
‘any misunderstanding ... in the public mind on this score’.
Replying to this letter, upon his return to New Delhi, Setalvad
regretted that the interim note had leaked, and acknowledged that, in
view of Pant’s evidence, the commission’s statement about the selection
process ‘undoubtedly needs modification’. The fact remained, Setalvad
said, that ‘extremely responsible persons’ held the view that unsatisfactory
individuals had been selected due to extraneous considerations. Because
there had been unsatisfactory appointments, ‘the Commission will have
to apply its mind to the devising of measures which may prevent such
selections in future.’29 As to Pant’s request for.deletions from the
commission’s report, no report had been sent to the cabinet, only an
interim note by four commission members ‘pursuant to your request’.
The entire commission would go into all the evidence before making
its recommendations. Setalvad added that he was including with his
letter more evidence the commission had collected about appointments
and that he would, ‘if necessary’, discuss the matter with Pant.?!
Appointments to be chief justice of a high court or to be the Chief
Justice of India were seldom controversial so long as the central
government observed the convention of promotion by seniority.°2 The
violation of the convention in 1973 would cause a national uproar

etter dated 17 October 1957. Prasad Collection File 47, NAI. The two exceptions
29 |
were a judge appointed to the Andhra High Court despite the CJI’s ‘No’ and a judge
appointed to the Patna High Court where the chief justice of that court had agreed
‘under protest’.
30 Setalvad to Pant, 10 November 1957. Ibid. This letter and the previous
correspondence had been sent to President Rajendra Prasad by Pant’s private secretary.
Letter of H. K. Tandon to C. S. Venkatachar, 13 November 1957. Ibid.
31 Fourteenth Report: Reform of the Judicial Administration, vol. 1, pp. 34, 69-70, describes
broad criticism about the appointment ofjudges heard by the commission.
32 Only a dozen justices moved from a high court to the Supreme Court between
1950 and January 1958, selected, in general according to seniority in their own court.
134 Working a Democratic Constitution

(chapter 12); in this early period, there were rumoured instances of

the ‘supersession’ (passing over) or intended supersession of a senior
judge by a junior to be Chief Justice of India. The danger perceived in
this, of course, was that judges might seek preferment by tilting their
decisions to gain the government’s favour. For example, B. P. Sinha
‘was told’ that when Chief Justice Kania died suddenly and prematurely,
the government had been ‘inclined to pass over’ Justices Sastri, Mahajan,
and Mukerjea—in order of their seniority—in favour of S. R. Das as
Chief Justice of India. But an ‘unwritten law’ prevented this, Sinha
recalled.*? A persistent version of this rumour was that Nehru intended
to supersede Patanjali Sastri in order to appoint a Muslim, Faz] Ali, to
be Chief Justice. This canard may be set to rest. In the first place, Fazl
Ali was the senior of the two, having been appointed to the Federal
Court six months prior to Sastri.24 Secondly, Ali had retired, at age
sixty-five, some seven weeks before Kania died. It was Sastri who
succeeded Kania—Fazl Ali became governor of Orissa with the backing
of H. K. Mahtab.
Sull heard in New Delhi is the tale that on Sastri’s retirement, Nehru
wished to supersede M. C. Mahajan in favour of B. K. Mukherjea.
According to one version, this was because Nehru and Mahajan had
had their differences over Kashmir, where Mahajan had been prime
minister in 1947. Equally credible is the view that Nehru wished to bring
in M. C. Chagla from the Bombay High Court. Supreme Court justices
as a body resisted this, and ‘I heard it from Justice Mukherjea’s lips that
someone on the Court told Nehru that if you want a Chief Justice other
than Mahajan you might as well think of having a whole new Court.’*°
Nehru backed down and even, according to some reports, apologized
to these judges orally and in a letter.>®
Members of the Law Commission cannot have been unaware of these

The first of these was Vivian Bose from the Nagpur High Court and the last was K. Subha
Rao from Andhra in 1958.
33 Sinha, Reminiscences, p. 71.
34 4 Supreme Court Jjudge’s seniority was then, and is now, dated from his appointment
to the Supreme Court, not from his first appointment to a high court or appointment as
chief justice of ahigh court. For the date of Fazl Ali’s appointment to the Federal Court,
see Dhavan, Rajeev and Jacob, Alice, Selection and Appointment of Supreme Court Judges, N.
M. Tripathi Pvt. Ltd., Bombay, 1978, p. 69.
35 pK Chatterjee, since 1949 an advocate in the Supreme Court, in an interview
with the author. The Chatterjee and Mukherjea families, both from Calcutta, were on
friendly terms.
36 See the chapters by Kuldip Nayar and Justice K. S. Hegde in Nayar, Kuldip (ed.),
Supersession ofJudges, Indian Book Company, New Delhi, 1973, pp. 12, 47. The letter of
 The Judiciary: ‘Quite Untouchable’ 135

whisperings while drafting their final recommendations about judicial

appointments. Those to the Supreme Court should be on merit alone,
without reference to ‘communal and regional considerations’, the
commission said, and ‘distinguished members’ of the bar might be
recruited directly to the Court. It then made a recommendation, sound
in the context of the time, that would be invoked wrong-headedly in
1973. The Chief Justice of India, it said, should be chosen not merely
on the basis of seniority, but should be the most suitable person, whether
taken from the court, the bar, or the high courts.2”? The commission
said also that Supreme Court judges, ‘as lawyers and men of vision’,
should be superior to the body of high court judges so as to command
respect. Appointments to high courts should be made solely on the basis
of merit, and ‘only’ on the recommendation of the high court’s chief
justice and with the concurrence of the CJI. This latter recommendation
should be embodied in the Constitution, the commission said.28

Judicial Independence: Other Risks, Other Protections

Other dangers to judicial independence were thought to exist and vari-
ous protections against them were suggested. Transferring a judge from
one high court to another, which the President could order, was suspect

apology is not to be found. Mahajan had been appointed to the Federal Court two weeks
before Mukherjea, in 1948.
In 1942, the Viceroy, Lord Linlithgow, had not consulted the outgoing Chief Justice
of the Federal Court, Sir Maurice Gywer, about succeeding him with Sir Patrick Spens.
Gywer protested this, and Linlithgow sent him a letter of apology, saying that there had
been ‘a serious error of procedure’ for which he took responsibility. Ibid., p. 18.
Spens later said that he disliked the 1950 Constitution’s provision that judges would
be appointed in consultation with the Chief Justice of India. He would have preferred
‘with the consent’ of the Chief Justice, and he hoped that the provision in the Constitution
‘would remain sufficient to ensure that the independence of the Indian judiciary would
survive’. Text of speech given to the Overseas League in London, 9 May 1950. K. M.
Munshi Papers, Microfilm, File 118, p. 33, NMML.
There was a genuine ‘supersession’ in 1964. P. B. Gajendragadkar became CJI on 1
February 1964 superseding Justice S. Jaffer Imam. The action aroused no controversy
because Imam had an illness that affected his mind. Retiring Chief Justice Sinha had
alerted Nehru to this. Nehru visited Imam several times to make his own assessment, and
then advised President Radhakrishnan to appoint Gajendragadkar to be Chief Justice.
Gajendragadkar, P. B., 70 the Best of My Memory, Bharatiya Vidya Bhavan, Bombay, 1983,
pp. 158-9. Imam retired from the Supreme Court on 1 April 1964.
37 Fourteenth Report: Reform of the Judicial Administration: Classified Recommendations, p.
9. These classified recommendations were published separately from the two-volume
report in a pamphlet of thirty-one pages.
38 [bid., pp. 2, 20.
 136 Working a Democratic Constitution

as a means of executive retribution for ruling against the government,

and the potential for transfer also was thought intimidating.*9 The clarity
of the issue was muddied somewhat by the judiciary’s initiation of trans-
fers against its own on disciplinary grounds. During the Nehru years,
the three branches of government addressed the propriety of transfers
made by the executive or the judiciary and developed policies in regard
to each. This did not dispel wariness, but it contained the issue until
transfers became highly politicized during the seventies.
The Law Commission paid little attention to transfers, which were
rare at the ime, and confined itself to recommending that a high court
chief justice might come ‘even’ from another high court in order to obtain
the ‘fittest person’ for the post. But the transfer should be ‘only’ with the
concurrence of the Chief Justice of India, a requirement that should be
added to the Constitution, the commission said.#° Transfers among high
courts were subject to the convention that no judge should be transferred
without his consent.4! A recommendation from the States Reorganization
Commission in 1955 would have altered this arrangement. One-third of
all high court judges should come from out of state because this would
enhance national unity, the commission said.*? State chief ministers, at
one of their periodic meetings, were ‘not altogether favourable’ to the
recommendation.*? But others, K. M. Munshi for example, believed that
transfers could serve both justice and unity in parts of the country with
great ‘caste and provincial cleavages’.44
P. B. Gajendragadkar, when Chief Justice of India from February 1964

39 Under Article 222, the President may transfer a judge after consultation with the
CJI.
40 Classified Recommendations, p. 2.
41 Law Minister A. K. Sen in testimony to the parliamentary
Joint Committee on the
Constitution (Fifteenth Amendment) Bill, 1962. Evidence, Lok Sabha Secretariat, New
Delhi, 1963, p. 6.
During the periods when Sardar Patel, Katju, Pant, Shastri, and Nanda were home
ministers, they ‘followed consistently’ the advice of the CJI when transferr
ing and
appointing judges, recalled former Chief Justice B. P. Sinha. Sinha, Reminiscen
ces, p. 98.
42 Summary of States Reorganization Commission Report, Ministry of Home Affairs,
4
December 1955.
43 The meeting was held on 22 and 23 October 1955. AICC Papers, Second
Installment, File 11, 1955, NMML.
44 Munshi, ‘Replies’ to the Law Commission questionnaire, paragra
ph 18. Munshi
had made the same point vigorously in a letter to Pandit Pant of 11
October 1954. In his
experience with high courts, Munshi said, he never had heard
a complaint about
transferred judges, who ‘have been known to give every satisfact
ion’. K. M. Munshi Papers,
Microfilm Box 67, File 188, NMML.
 The Judiciary: ‘Quite Untouchable’ 137
to March 1966, was willing to cooperate with transfers if the judge
consented and if the transfer helped national integration without causing
‘prejudice or damage’ to an independent judiciary, he told Home Minister
G. L. Nanda. But he thought several transfers the government was
considering were ‘ethically improper and ... would materially affect
the independence of the judiciary’. Such transfers as Nanda was
contemplating ‘would create great bitterness’ among high court judges
and feelings of ‘uneasiness’ about the independence of the judiciary,
wrote the CJI.4°
Transfers of high court judges, other than to be a chief justice, did
not always originate in the executive branch. Initiative might come from
a high court chief justice or the Chief Justice of India. The justifications
typically were that the judge was unduly susceptible to local ‘extraneous
influences’ from which he would be free in another high court; that he
had become corrupt, might be less so in another setting, and transferring
him was simpler than attempted impeachment; or that his relations with
the high court bar had become so strained that he could not function
effectively on the bench. The latter could result from his being a poor
judge or a good one, some bar associations being no better than they _
should be.*® Although never undisputed and always serious affairs, the
transfers of the Nehru years had little constitutional significance. The
highly politicized and notorious transfers during the 1975-7 internal
emergency and in the early eighties did have great constitutional
significance, because they were perceived to be calculated attacks on
judicial independence. Chief Justice Gajendragadkar in his memoirs
describes several occasions when he had high court judges transferred,
after himself investigating the accusations against them, without revealing
either the accusations or the justices involved.47
A judge’s independence might be swayed, the aware public and the
legal profession believed, by inducements as well as by executive branch
intimidation and local extraneous influences. Offers of government
employment after retirement were thought to be one such inducement.
Gajendragadkar, for example, saw this as a danger, for he told Prime
Minister Shastri that ‘it would strictly not be right’ for him, when Chief
London
Justice, to consider Shastri’s idea that, after retirement, he go to

|
45 etter to G. L. Nanda dated 12 February 1964. P. B. Gajendragadkar Papers, NMML.
ullah Beg, who
Gajendragadkar was referring to Justices Harbans Singh and Hameed
meeting the government's
apparently had been appointed high court judges after
condition that they were willing to be transferred.
s.
46 Based on interviews with several dozen lawyers and justice
47 Gajendragadkar, Best of My Memory, pp. 165-72 .
 138 Working a Democratic Constitution

as High Commissioner.*® The Socialist Party’s 1957 election manifesto

said there should not be such ‘scope for patronage’. K. M. Munshi told
the Law Commission, in his reply to its questionnaire, that ‘the judge,
anxious after retirement to get provided on some tribunal or committee,
begins to develop close contacts with the ministers ... [and becomes]
no better than other persons approaching the ministers for favours.’49
The Law Commission recommended amending the Constitution to
bar retired Supreme Court judges from government employment,
except as ad hoc judges, and to bar retired high court judges from
practising in any court except the Supreme Court and from government
employment.*?
K. Santhanam went to the heart of judicial independence issues
when he wrote that true independence would be achieved ‘only

d through the growth of traditions ... in which they [judicial officers] will
refuse to be influenced by external factors ... [and the executive] will
consider it altogether wrong to interfere with the independence of the
judiciary’ .>!

The Quality of Justice

High calibre, untainted judges, it was recognized, were by no means
the only requirement for providing the quality of justice necessary for
society to be democratic and equitable. High quality justice demanded
aA
i-
that bar as well as bench be intelligent, well educated, and able; that
ge the judicial process be speedy and access to it both fair and affordable
to the common man; and that judicial and executive functions in district
government be separated. These issues confronted the institutions of
the new Constitution from the first day. Seldom could remedies to
weaknesses be found in constitutional change. Yet, the future of
constitutional government would depend on strengthening the judicia
l
system in all its aspects.°2 A thorough examination of these issues would

48 Tbid., p. 184.
49 Munshi, ‘Replies’, p. 5. K.M. Munshi Papers, Microfilm Box
67, File 188, NMML.
50 Classified Recommendations, p. 20.
51 Santhanam, K., Union-State Relations in India, Indian
Institute of Public Adminis-
tration/Asia Publishing House, London, 1960, pp. 27-8.
52 The issues were considered widely. A high court arrears
committee reported in
1951. A cabinet subcommittee reviewed various reform
proposals. A reform bill was
introduced and debated in Parliament, but was shelved pendin
g a comprehensive study to
be provided by the Law Commission. Nehru, cabinet ministe
rs, and governors like Munshi
corresponded actively about judicial reform, and an AICC
resolution called for reform.
-
 The Judiciary: ‘Quite Untouchable’ 139
fill several volumes.°? Here, we may review only the most prominent
and persistent of them.
Improving the quality of individuals available to become judges
concerned nearly everyone. President Prasad spoke often of the need
for a strong bar, for ‘if the bar is weak, the judiciary will be weak’.°4 The
Law Commission in its Fourteenth Report recommended establishing an
All-India Judicial Service along the lines of the Indian Administrative
Service (IAS) to improve the quality of district and high court judges.
K. M. Munshi, among others, favoured this, as did the Conference of
Chief Justices at its annual meetings in 1961 and 1963.>° The idea has
reappeared several times, but has not been implemented. The Bar Council
of India’s Legal Education Committee in the mid-sixties established a
basic curriculum for the country’s law schools, and, in cooperation with
universities, set the examinations, for the Bachelor of Law degree. But
there are no bar examinations, and young graduates are unleashed on
the courts, often ill-prepared to meet their responsibilities. The legal
profession again began considering remedial measures in the mid-
nineties.
Separating the executive from the judiciary had been a demand of
the Congress Party and others from before independence The same
individual acting as prosecutor, judge, and jury—as did the ‘Collector’
(of revenue and as civil executive) and the Magistrate in district
governments under the British+—was unacceptable, a remnant of
arbitrary, colonial rule. But the separation, called for in Article 50 in
the Directive Principles, was implemented slowly. The government
reported in 1960 that it had been completed in only six states.”® Still
incomplete in 1971, separation was made statutory in the 1973 revision
of the Criminal Procedure Code (CrPC).
Speedy resolution of cases seemed to be beyond the capability of
bench, bar, and court administrators. There were 164,000 cases in arrears,
Nehru told the first Conference of Law Ministers in 1957. Home Minister

53 For books wholly or in part dealing with the judicial system, see the writings by
Upendra Baxi, Rajeev Dhavan, S. Sahay, and A. G. Noorani cited in the bibliography at
the end of this book. See also publications by the Indian Law Institute, the Bar Council of
India, and the journal sections of the law reports.
54 Speech inaugurating the formation of the Bar Council of India, 2 April 1960.
Speeches of Rajendra Prasad, 1960-61, pp. 43ff.
55 For the Conference of Chief Justices, see AR, 7-13 May 1961, p. 3938, and 9-15
|
July 1963, p. 5297.
56 Official statement of 23 July 1960. The laggards were Bihar, UP, Punjab, and Madhya
Pradesh. AR, 6-12 August 1960, p. 3476.
140 Working a Democratic Constitution

Pant asked the ministers’ assistance in resolving the problem which has
‘“baffled all of us and which has proved intractable so far” 57 Not only
was justice delayed justice denied, it was costly to litigant and taxpayer.
The Congress called for speedier decisions because clogged courts
excluded the teeming millions from justice, a demand supported by
other parties.°® Court delays were attributed to the greatly increased
case load that arose from challenges to new legislation enacted under
the Constitution—in areas such as fundamental rights, economic and
industrial development, and appeals to the high courts from election
tribunals—and to taking judges away from court duties by deputing
them to special assignments. But the primary culprit, according to the
Law Commission, were court indiscipline: judges’ leisurely behaviour,
the excessive length of lawyers’ oral arguments, judges’ ready granting
of adjournments and ‘stays’, and the granting of special leave petitions
(SLPs) by the Supreme Court, which could result in stays lasting years.
Among other examples, the Law Commission cited one in Bihar, where
a subordinate judicial officer was not required to explain a delay until a
case was three years old.°9 For years, these failings would be ritually
bemoaned by judicial personalities on appropriate occasions. The Law
Commission’s lasting contribution in 1958 was establishing a base-line
analysis of judicial conditions and the requirements for their improvement.

57 Hindustan Times, 19 September 1957.

58 Hare Krushna Mahtab on 13 June 1952 wrote to the convenor of the CPP’s Standing
Committee on Law about the urgent necessity of simplifying legal procedures ‘to help
the common man who has not got the necessary means to take advantage of the machinery
... to secure remedies quickly and at minimum cost’. Hare Krushna Mahtab Papers, File
26, NMML.
59 Fourteenth Report, vol. 1, p. 136.
Setalvad wrote a paper devoted to ‘Backlog of Court Cases’ in which he addressed
the reasons and remedies for arrears. See Choudhary, Prasad: Correspondence, vol. 18, pp.
484-92.
The Law Commission recommended various devices to speed court process, the very
simplicity of which constituted an indictment of existing practices. The recommendations
included reviewing the adequacy of the strength of high courts every few years and
appointing additional judges to clear up arrears. High court judges should sit in court at
least five hours a day, work at least two hundred days a year, and ‘observe strict punctuality
on the bench’. Classified Recommendations, p. 29. A time limit ought to be fixed for the
completion of arguments and delivery of the judgement, the commission said, and SLPs
‘should not be given too freely’. Ibid., p. 21.
Justice Mahajan recalled that during his time as Chief Justice the court was ‘flooded’
with SLPs, some of which were ‘so frivolous’ that he could dispose of adozen ata sitting.
Mahajan, Looking Back, p. 196. What Mahajan did not say was that filing SLPs was, and is,
a very lucrative practice for lawyers.
 The Judiciary: ‘Quite Untouchable’ 141
Seeking justice in court was expensive for the common man, often
prohibitively so. Two reasons were the cost of a lawyer, and the
existence of the fee system under which a litigant had to pay a fee to
register his case. This had to be changed, the Law Commission said,
pointing out that India was the only country under a modern system
of government that ‘deters a person who has been deprived of his
property or whose legal rights have been infringed from seeking
redress by imposing a tax on the remedy he seeks’. Fees for petitioners
acting under Articles 32 and 226 of the Constitution (moving the
Supreme Court ora high court for relief) should be low if not nominal,
the commission recommended, but it did not recommend stopping
the practice altogether.®! Fees computed according to the damages
sought are still charged, with the exception of the fee of two hundred
and fifty rupees charged for approaching the Supreme Court under
Article 32—its original jurisdiction over the Fundamental Rights.
The Law Commission advocated legal aid so that the poor man could
afford a lawyer. Citing the Preamble’s pledges and Article 14’s assurance
of equality before and equal protection of the law, the commission said
that, ‘Insofar as a person is unable to obtain access to a court of law for
having his wrongs redressed or for defending himself against a criminal
charge, justice becomes unequal and laws meant for ... [the poor man’s]
protection have no meaning ...’.° Legal aid should be available for all
and not be confined to those ‘normally classed’ as poor. Those unable to
pay should get aid free; others would pay on a graduated scale. With
this recommendation, as with many others, the Fourteenth Report would
be far ahead of its ttme—and consequently ignored. Legal aid became a
statutory right in the 1990s, but the government-established legal aid
agency is financially undernounshed.
As the Constitution began its career, the judiciary—despite failings
well known and confirmed so studiously by the Law Commission—was
the most respected of the three branches of government. Its conduct,

60 Fourteenth Report, vol. 1, p. 487. The British had brought the practice to Bengal in
1782.
61 Ibid., pp. 509-10. Fees should be reduced and, if collected, money from them
should be used to defray only the costs of the ‘civil judicial establishment’, with judicial
officers’ salaries being charged to the general taxpayer, the Law Commission said.
62 Thid., p. 587.
63 Tbid., p. 591. In the commission’s view, the government ought to pay the costs of
legal aid, but not manage it. This should be left to the legal profession.
The commission also studied and made recommendations concerning legal education
and the bar. The Advocates Act of 1961 embodied a number of its recommendations.
142 Working a Democratic Constitution
increase and subtract
from the lowest court to the highest, would both
Nehru years, the
from that respect as the years passed. During the
cracy and the
principles for the judicial system in the service of demo
social revolution had been firmly established.
 Chapter 6

MAKING AND PRESERVING A NATION

India was not, and its peoples were not, one at the republic’s beginning,
which made the leaders anxious and focused their minds on achieving
unity. The subcontinent’s partition was only three years in the past,
and its effects still reverberated. Some five hundred princely states
had just been integrated into the union—one of them, Hyderabad,
forcibly—after having been outside the ‘British India’ administrative
system and not part of the ‘federation’ established by the 1935 Act.!
Jammu and Kashmir continued tense in the aftermath of the Maharaja’s
accession under the pressure of an invasion by Pakistan-inspired
guerrillas. The government's writ had to be made good in the distant
Northeast, even more isolated by the way boundaries had been drawn
at partition. Demands for redrawing state boundaries along language
lines were thought by Nehru and some others to threaten unity. Then
there was the country’s famously diverse society: fourteen major
languages (listed in the Eighth Schedule) and innumerable minor
ones, regional and cultural loyalties, vast differences in economic
conditions and potential for development, and the thousands of
vertical and horizontal compartments of family, caste, clan, and class—
each with strong, sometimes religiously prescribed, loyalties—
all interacting in a multitude of ways. Underlying the anxieties
generated by these factors was the fear that administration might
break down under their burden, leaving government in the country
helpless.
No wonder the Prime Minister, his colleagues, and the politically -

aware public were worried for national unity and integrity. Weakness in
or failure of this third strand in the seamless web could doom the other
two. Break-up or ‘Balkanization’ of the country would end the national
democracy and create impossible conditions for social revolution.
Conversely, without social revolution, what would become of unity? The
web was indeed seamless. ‘Fissiparous tendencies arise out of social

1 See Menon, V. P., The Integration of the Indian States, Longmans Green and Co.,
London, 1956.
144 Working a Democratic Constitution

backwardness,’ Nehru believed.” President Radhakrishnan warned the

country that petty considerations, factions, and caste disputes raised
“‘doubts about the stability of a united, democratic India’”.?
The leaders’ anxieties hardly were groundless, but for two reasons it
can be argued that they were overdrawn: the compartmentalization of
society impeded national integration (in the ‘melting-pot’ sense), but
did not endanger the country’s unity and integrity, and the forces for
unity operating in the country were stronger and more numerous than
the forces against unity. In this chapter the unifying forces will be described
first and, afterwards, the disruptive forces. The Constitution’s part in
fostering unity will be discussed as we go along. The machinery for unity,
the Constitution’s centre-state relations provisions, will be the subject of
a third section.

Forces for Unity

History had dealt independent India unifying cards, a tendency towards
unity and centralization.* Empires, ancient through the Mughal, had
stretched broadly across the land through the force of arms and culture
and were administered centrally to the extent they could be. Elements
of a national culture existed in the form of a pantheon, later called
Hinduism, whose individual deities descended from a trinity recognized
countrywide. Sanctified locations were the object of region- and
country-wide pilgrimages. The arrival of Islam brought a faith as uniting
as divisive. To an extent, it became Hinduized; it and the ‘Hindu’ sub-
sects came to share saints. The languages of the pre-Mughal Islamic
and Mughal empires—Persian and, especially, Urdu—were used for
diplomatic and commercial dealings throughout the land. With the
British ‘Raj’ came an even more powerful unifying language, English,
together with increasingly standardized administration, the nineteenth
century’s great ‘Anglo-Indian Codes’ and courts of law, the growth of
representative bodies, and, above all, the centralizing force of the
Viceroy representing the British Crown. Under the British also came

2 Nehru to the AICC meeting at Madurai, October 1961. Report of theGeneral Secretaries,
January 1961—December 1961, Indian National Congress (INC), New Delhi, 1961 pp. 24-5.
3 In his farewell speech as President, 25 January 1967. AR, 12-18 February 1967, pp.
7540ff.
4 Of the many books on the subject, one of the most significant is Nehru, Jawaharlal,
The Unity of India, 3rd impression, Lindsay Drummond, London, 1948 (1941). See also
Nehru, Jawaharlal, The Discovery of India, 4th edn., Meridian Books Ltd., London, 1956
(1946).
 Making and Preserving a Nation 145
unifying factors such as the telegraph and the railways, coastal shipping,
an army drawn countrywide (although the units were organized by
community), the growth of widespread commerical clans, English
education, and the British democratic tradition—which captivated
educated Indians even, or especially, when it was absent from India.
Among the ordinary people, there was a proclivity to look to the sarkar,
the government, for things both good and evil.
Building on these factors, the independence movement, under the
leadership of the Congress Party, unified Indians further by testing their
resolve. Although the Congress had championed Indians’ rights since
its founding in 1885 by an Englishman, it was under the influence of
Mohandas Gandhi after 1915 that Congress became the party of
independence. Although Gandhi advocated decentralized government
based on village panchayats, the reality of his charisma, his tactical sense,
and his rarely challenged leadership produced a highly centralized
political campaign, as did his insistence that regional and other
constituency interests be muted for the sake of unified resistance to
British rule.° India’s leaders at independence were the product of this
atmosphere of common effort, of overcoming fractiousness from
personality and strategy. Nehru, Patel, Prasad, Maulana Azad, and others
on the national stage were joined by powerful chief ministers who
combined local power bases with a national outlook—Pandit G. B. Pant
in UP, B. C. Roy in Bengal, B. G. Kher and Morarji Desai in Bombay,
Ravi Shankar Shukla in Madhya Pradesh, C. Rajagopalachari in Madras,
and Pratap Singh Kairon in Punjab. All, putting national unity first,
believed in a strong central government as well as strong states. The
Congress even had practised centralized governance from 1937 to 1939
when it ruled eight provinces after winning elections under the 1935
Act—evolving mechanisms such as the Central Parliamentary Board
(CPB) to direct the functioning of the provincial ministries—a mandate
renewed by the Working Committee in 1948.6

5 For an excellent account of Gandhi’s leadership from among the many books about
the Mahatma, see Brown, Judith M., Gandhi: Prisoner of Hope, Oxford University Press,
Oxfo-d, 1989.
® At the Congress session at Jaipur. Kochanek, Congress Party, p. 234.
Also in 1948 it established the Central Election Committee (CEC) to set the criteria
for candidates for Parliament and state legislatures and to make the final distribution of
tickets to those allowed to contest. During late 1961, for example, the committee met for
four weeks to select candidates for 500 seats in the Lok Sabha and 2,800 aspirants for
state legislatures. Report of the General Secretaries, January 1 961—December 1961, AICC, p. 16.
State election committees, often with CEC intervention, prepared the state list to
submit to the CEC.
 146 Working a Democratic Constitution
Given this experience and the circumstances at independence, it
was predictable that the leaders in the Constituent Assembly would draft
a highly centralized Constitution, many of whose provisions were
designed to contribute to unity: centralized administration, the federal
government’s extensive financial and legislative powers, a unified court
system, single citizenship, and adult suffrage. This top-down federalism
has been thus described: ‘[I]n India, the Union is not a federation of
sovereign states .... This is an important distinction between the Indian
Union and some other democratic federations where the federating
units existed before the federal unions ... and could therefore insist on
coming into those federations on their own terms.’/
Under the Constitution, the Congress had no greater goal than
national unity, although individuals’ ‘greed for office’ drew criticism in
party publications. In unity lay its self-preservation, its power, its
patronage, and its patriotic justification. In the central and most state
governments, the party and government were Siamese twins, joined at
head, hip, and toe. The Working Committee’s authority was sometimes
questioned but rarely disobeyed. Each of the Parliamentary Board’s six
members, drawn from the cabinet, from among the chief ministers,
and chaired by the party president, was responsible for party affairs in
several states. They arbitrated, mediated, and sometimes investigated
internal party and party-state government disputes. Instructions to
Provincial Congress Committee presidents and chief ministers could
go down either the governmental or the party chain of command.®
Several times after the 1962 elections, the CPB umpired who would be
the chief minister and be included in his cabinet. Yet, the combination

7 Report of the States Reorganization Commission, Manager of Publications, GOI New

Delhi, 1955, p. 165.
This commission was appointed to plan the reorganization of the states along linguistic
lines, fulfilling Gandhi’s promise of the twenties. The central government was empowered
VM to do this under Article 3, which authorized Parliament to alter state boundaries and to
v create new states after the President ascertained the views of the state legislatures involved.
For an excellent, brief description of the federal system, Re a eT Robert L.Jr.
Somer and Kochanek, Stanley, /ndia: Government and Politics in a Developing Nation, 5th edn.,
Harcourt Brace Jovanovich College Publishers, New York, NY, 1993, ch. 4.
8 Running parallel to Nehru’s letters and government communications to chief
ministers was a constant stream of letters and circulars from Congress headquarters to
chief ministers, to state cabinet ministers and deputy ministers, to parliamentary
secretaries, and to PCC presidents and District Congress Committee leaders. See Zaidi,
A.M., The Directives of the Congress High Command to Ministers and Chief Ministers, Indian
Institute of Applied Political Research, New Delhi, 1986.
9 Hardgrave and Kochanek, Government and Politics, p. 261.
 Making and Preserving a Nation 147

of the CPB, the Working Committee, and the Prime Minister did not
make and unmake chief ministers with the frequency of later years.
The average tenure of a chief minister (of a possible five years) was 3.9
years under Nehru and 2.6 years after him.!°
This intimate party—-government relationship constituted the pattern
once the government wing of the party had vanquished the organizational
wing in the Kripalani and Tandon affairs. Nehru’s holding the offices of
party president and prime minister reinforced it, and he arranged that
party presidents from 1954 to 1964 had experience in government—in
the main as chief ministers.!! The Working Committee acted as an
important forum for developing nationai policies on the broadest
issues—e.g. on language and zamindari abolition. In several states, into
the mid-fifties, Provincial Congress Committees attempted to control
the chief minister and his government. The fullest expression cf the
Congress-government parallel-and-linked ‘federalism’ came late in 1963
with the so-cailed ‘Kamaraj Plan’. K. Kamaraj, then Chief Minister of
Tamil Nadu, had proposed that all chief and central government ministers
resign from office ‘and offer themselves for full-time organizational
work.’!* Nehru offered to resign, but the party invited him to stay as

Members of the Parliamentary Board during the Nehru years included Nehru,
Maulana Azad, G.B. Pant, Jagjivan Ram, Morarji Desai, K Kamaraj, Indira Gandhi, U.N.
Dhebar, S.K. Patil, Y. B. Chavan, and Lal Bahadur Shastri.
The CPB couid have wide responsibilities. For example, the committee chaired by
UN Dhebar on the implementation of the 1964 Bhubaneshwar ‘Democracy and Socialism’
resolution recommended that state ministers be responsible to the CPB for failures in
agricultural production. AR, 27 May-2 June 1964, p 5845.
10 Guhan, S., ‘Federalism and the New Political Economy in India,’ in Arora, Balveer
and Verney, Douglas V. (eds), Multiple Identities in a Single State, Konark Publishers Pvt.
Ltd., New Delhi, 1995, p 264.
K. Santhanam doubted the ‘rightness’ of the party high command calling the tune
for ministries. He thought there should be a convention that state ministers be sacked
only by the chief minister and not by the Working Committee. Santhanam, K., Planning
and Plain Thinking, Higginbothoms Pvt. Ltd., Madras, 1958, pp. 123-4.
The Working Committee, for example, forced Sampurnanand to resign as UP Chief
Minister in 1960. Report of the General Secretaries, January 1960—December 1960, AICC.
11 Hardgrave and Kochanek, Government and Politics, p. 60.
Even so, party presidents sometimes were thought to be little more than glorified
office boys for the Congress government. Ibid., p 73.
12 Congress Bulletin, INC, New Delhi, 1963, nos. 7-8, p 37. Cited in Kochanek, Congress
Party, pp. 78-9. For an account of the origins and implementation of the Kamaraj Plan,
also see Gopal, Nehru, vol. 3, pp. 244-6.
The plan's origins lay in the grave damage to national and party prestige from the
in
defeat ir: war by the Chinese a year earlier and the party's defeat in three by-elections
 148 Working a Democratic Constitution

Prime Minister and to choose who would depart and who remain. Kamaraj
became president of the Congress. Whatever Nehru’s motives in backing
the plan, it strengthened and invigorated the party and the top of its
hierarchy.!* When, in May 1964 and in January 1966, it became necessary
to choose successors to Nehru and Lal Bahadur Shastri as prime ministers,
the Working Committee and the party president played critical parts in
the selection, which the Congress Party in Parliament ratified by elecung
first Shastri and then Indira Gandhi as its leader. Both successions took
place decorously, although with a great deal more jockeying for position
| during the second than during the first. Constitutional government had
passed two great tests.
Meanwhile, the already existing forces for unity outside the Consti-
tution had strengthened. The army became a symbol of nationalism. It
won a war with Pakistan in 1965, as it would in 1971. The economy
became more national, including the market for consumer goods.
Non-Congress parties were competing for national control. And the
longer citizens proved themselves to themselves, the greater became
their sense of common purpose.
The Congress Party’s role as a force for cohesion had a less fortunate
aspect. The more thoroughly its ‘federalism’ and command structure
functioned, the more the Constitution’s centre-state provisions fell into
disuse. So long as Congress continued dominant in New Delhi and a
large number of state capitals, party leaders and the public (but not
ae parties) paid this little attention. But as Congress Party
d ominance faded, the Congress government at the centre excessively
used the centralizing features of the Constitution to compensate for its
waning authority. This evoked the ‘constitutional revolt’ of the eighties
(Part VI) in which state governments demanded decentralization of
power either through changing the Constitution or changes in the way
it was worked.

Forces Against Unity

These were both more apparent than real and very real. The former
took two shapes. One, of which more will be seen throughout the book
and especially in Part VI, was demands for ‘autonomy’ by state

May 1962—especially galling because they came at the hands of two former Congressmen,
Acharya Kripalani and Minoo Masani (by then a leader in the Swatantra), and of the
Nehru-hating socialist, Ram Manohar Lohia.
'3 Kochanek, Congress Party, p. 261.
 Making and Preserving a Nation 149
governments or groups in areas within states. Although attacked as
secessionist, typically these were cries to the national or relevant state
capitals for sympathetic attention to genuine grievances. Unheeded,
however, these could and sometimes did fester into violent crises that
disrupted local stability and gravely strained relations between state
governments and the centre. The second, more-apparent-than-real, threat
to national integrity was more complex. Leaders, and many others,
focused their fears on the four ‘isms’—casteism, communalism (Hindu-
Muslim friction, especially), linguism, and provincialism/ regionalism,
which often were lumped together as ‘communalism’—for which the
remedy was ‘secularism’. A Congress Party resolution said every ‘separatist
tendency must be removed, caste was separatist as well as anti-democratic,
and ‘provincialism’ was a ‘narrowing and disruptive factor’.!4 Nehru wrote
of the necessity to build unity against ‘disintegrating forces and destructive
activities ... cCommunalism, provincialism, and casteism’.!° ‘[P]rovincial
feeling, caste feeling, linguistic feeling should all be made subservient to
the feeling of the country,’ Rajendra Prasad told a Madras audience.!®
He was correct. ‘Indian’ consciousness needed to be raised, although
much existed. But the unrealistic image of the country’s future as a
homogenized society, of citizens without subordinate loyalties, as the
sine qua non for national integrity generated unwarranted fears. The
difficulties with which the leadership presented itself by confusing
preserving national integrity with the concept of national integration
will be revisited in Part VI, thus allowing the perspective of hindsight.
For now, it may be said that, with few exceptions, regional, cultural, and
linguistic loyalties would vie for recognition and status within the nation,
not for existence outside it. The compartments of family, caste, clan,
and language were incompatible with integration among themselves,
but time would show that they cohabited successfully within the country.
The genuineness and persistence of leadership fears is evident in the
recurring appeals against schism in prime ministers’ and presidents’
speeches on Independence Day and Republic Day since 1950.
In their fears for national integrity and opposition to particularisms,
Nehru and the Congress ‘secularizers’ had allies they disliked intensely.

14 Resolutions, Sixtieth Session, INC, New Delhi, 1955, pp. 9-10.

15 Letters to chief ministers dated 16 July and 1 August 1953. NLTCM, vol. 3, pp.
339-40, 350.
16 Speech on Independence Day, 1960. Speeches of Rajindra Prasad, 1960-61, p. 136.
The Praja Socialist Party and other parties also inveighed against ‘particularistic
loyalties’, for example at the PSP National Executive meeting in July 1961. AR, 16-22 July
1961, p. 4060.
150 Working a Democratic Constitution
The militant Hindu parties and bodies—the Hindu Mahasabha, the Jana
Sangh, and the Rashtriya Swayamsevak Sangh (RSS)—would have ended
particularisms through a sort of religion-based totalitarianism by scrapping
the Constitution’s distribution of powers to establish a unitary state. The
Jana Sangh’s election manifesto of 1957 said that the federal structure
had created rivalries between the central and state governments that were
an obstacle to national solidarity. The party would declare ‘Bharat to be
a Unitary State’.!7 Some years later, the party offered a plan to abolish
the states and legislatures and to replace them with large administrative
districts having no legislative functions, which would be reserved for
Parliament.!®
There were, however, sevious threats to unity and integrity from groups
with rampant larguage, cultural, or religious identities, which often
overlapped. Te explosive mixture of religion-based identity and language
in Punjab oscillated between demands for autonomy, and secessionism.
The Sikhs, having rejected an offer from the Muslim League to form a
state confederated with Pakistan, expected India might similarly reward
them.!9 When this did not happen, agitation began for ‘Punjabi Suba’, a

17 Election Manifesto, 1957, Bharatiya Jana Sangh, New Delhi, 1956, p. 7

18 Upadhyaya, Deen Dayal, Principles and Policies, presented at the Jana Sangh General
Council meeting, Gwalior, 17 August 1964. AR, 9-15 September 1964, p. 6030.
In January 1961, the All-India Muslim Convention, with representatives from most
political parties, recommended the abolition of the federal system because it interfered
with economic planning AR, 9-15 July 1961, p. 4045. Convention held under the
presidency of Congressman Dr Syed Mahmud.
Even former Chief Justice Mahajan espoused a unitary form of government to overcome
the ‘political disunity’ in the country, despite its cultural unity. In a iong letter to Pnme
Minister Nehru, with a copy to the President, Mahajan suggested doing away with ‘the
Federal Constitution and ... [making] it a unitary system of government... [with] abolition
of all State Legistatures and State Ministries, the States to be merely administrative units to
be governed by Governors with the help of advisory bodies’. Mahajan, Looking Back, pp.
226-7.
Prasad responded that it was necessary to safeguard the Consiitution as it exists.
Some of us, he said, were anxious to have ‘some unifying power but we could not do
more to get the Provinces under the influence of the Centre’. Prasad wished that someone
could think ofa way ‘the powers of the States could gradually be curtailed ... [to help] in
creating a feeling of unity’. This letter, minus some personal items, was printed in Looking
Back, pp. 229-30.
Rajagopalachari and V. V. Giri, the latter then a minister at the centre, wrote to
Mahajan approvingly when he published his ideas in a newspaper in 1956,
19 Many Sikhs to this day remember Nehru's saying that ““I see nothing wrong in an
area and a set-up in the North wherein the Sikhs can also experience the glow of freedom.”
At a press conference in Calcutta as reported in the Statesman, 7 July 1946. Cited in
Dhillon, G. S., India Commits Suicide, Singh and Singh Publishers, Chandigarh, 1992, p. 7.
 Making and Preserving a Nation 151

Punjabi-speaking state controlled by Sikhs. When this failed and the 1956
states reorganization also did not meet their demands, the Sikhs felt
‘cheated’, as some put it, and agitation recommenced, leading to
fast-unto-death declarations by religious leaders. The Nehru government
did not combat the danger to unity with emergency procedures such as
President’s Rule, but preventively detained one of the religious leaders,
Master Tara Singh, and authorized the armed forces to use harsh measures
against violence. Nehru’s protestations that he was willing to do
‘everything we can for the Punjabi language’? and the creation of a
separate Punjab in 1966 by dividing Punjab into the states of Punjab and
Haryana only dampened Sikh satisfactions for a ume. Secessionism on
the part of some Sikhs, sometimes fuelled by New Delhi’s misguided
policies in the Punjab, would plague India off and on for years (see also
Parts V and Vi). Particularly in the Punjab, as later in the Northeast,
rivalry or warfare among local factions complicated any peace efforts the
central government might attempt in co-operation with state government
authorities.
Secession threatened briefly in Jammu and Kashmir. Islam, the
religion of the majority of the individuals in the Vale of Kashmir was a
vital issue to the governments of India and Pakistan, although far less
so to the Muslim inhabitants of the Vale. The latter simply wanted to
preserve their culture, while reaping New Delhi's largesse. This former
princely state was given specia! status under the Constitution’s Article
370 and allowed to frame its own constitution.2! Sheikh Mohammad
Abdullah, the state’s ‘Prime Minister’ and leader of the Muslims in the
Vale, found the inclusion of Article 370 in the “Temporary and
Transitional Provisions’ of the Constitution’s Part XXI unsettling. He
wanted ‘iron-clad guarantees of autonomy’.** Suspecting the state’s

20 Nehru’s version of his correspondence with Tara Singh in 1961. NLTCM, vol. 5, p.
450. The Punjabi language, one of the many forms of Hindi or Hindustani spoken in
North India, is spoken alike by Hindus, Muslims, and Sikhs in the Punjab, and before
in
Partition typically was written in the Urdu script. It has come to be written most often
the Gurmukhi script.
For the Sikhs, Punjabi Suba was a code word for a state in which they would dominate
based and anti-
politically. But the demand for Punjabi Suba, in essence, was not religion-
Hindu.
and
21 Parliament’s jurisdiction in Kashmir was limited to matters on the Union
of the state, are
Concurrent legislative lists ‘which, in consultation with the government
in the Instrume nt of
declared by the President to correspond to matters specified
ion. The Supreme Court's
Accession’. Otherwise, the Kashmir legislature had jurisdict
jurisdiction initially did not extend to Kashmir.
and Distributors
22 See Bhattacharjea, Ajit, Kashmir: The Wounded Valley, UBS Publishers
see p. 184.
Ltd., New Delhi, 1994. For ‘ironclad guarantees’,
152 Working a Democratic Constitution

special status might be lost, Abdullah advocated independence from

India, causing New Delhi to dismiss his government in 1953 and place
him under preventive detention. Enacted in November 1956, the state
constitution said the state ‘is and shall be an integral part of the Union
of India’. Abdullah would claim this declaration invalid because,
detained, he had not been a member of the assembly. New Delhi would
become deeply and controversially involved in Kashmir affairs (sometimes
to popular satisfaction as in extending the Supreme Court’s jurisdiction
to the state), but without altering the original text of Article 370. Kashmir
was a Vitally important issue for Nehru. Beyond his affection for the place
as a Kashmiri, the inclusion of the valley’s Muslims in India constituted
for him evidence both of the country’s secularism and of Pakistan’s
malevolent challenge to it.??
In the Northeast, the largely Christian Nagas in Assam, lightly governed
by the British, began talking independence in the early 1950s under their
leader, Angami Phizo, and the Naga National Council. Nehru could not
tolerate independence, but he promised the Nagas considerable
autonomy and enjoined the Assamese government to restrain the growth
of Assamese influence in Naga areas. Not satisfied, Phizo renewed violent
resistance to Assamese authority. When the Indian army was unable to
suppress rebellion, the central government and the Naga People’s
Convention—a group more broadly representative of the Nagas than
the National Council—found a constitutional solution. They agreed to
the creation of a separate state within India, Nagaland, which was
established in 1962 by the Thirteenth Amendment to the Constitution.?*
In the South, the Dravida Munnetra Kazhagam (DMK—Dravidian
Progressive Federation), threatened secession explicitly in 1957. ‘“[E]
ach state should have full freedom to secede from the Indian Union if it
so desires and should be given full and equal representation in parliament
so that the large states do not dominate the others,”’ said the DMK’s
election manifesto.2° This coming together of Dravidian cultural and

23 For an account of the Kashmir ‘issue’ in 1947, see Gopal, Nehru, vol. 2, pp. 15-42.
Indian society’s pretensions to secularism were being shaken (in 1947) by communal
killings from Bengal to the Punjab.
24 With the President's assent in a new Article, 371A.
The amendment protected Naga religious and social practices, customary law, and
ownership and transfer of land and resources by saying that no act of parliament would
apply to the state of Nagaland unless the Naga legislative assembly agreed.
For a recounting of these events, see Gopal, Nehru, vol. 2, pp. 207-12. Also, Hazarika,
Sanjoy, Strangers in the Mist, Penguin Books India, New Delhi, 1994.
25 Hardgrave, The Dravidian Movement, p. 54,
Despite this language, Hardgrave was ofthe opinion that ‘Dravidisthan, the symbol
 Making and Preserving a Nation 153
Tamil language identities included strong anti-Hindi, anti-North India,
anti-Brahmin, and pro-socialist sentiments. (Readers will recall the
anti-Brahmin sentiment in the Champaknam case about positive
discrimination in chapter 3.) The Tamil-speaking Congress Chief Minister
of Madras, K. Kamaraj Nadar, denounced the manifesto as ‘an affront
to the unity and solidarity of the country.’*° Nehru thought the Dravidian
movement ‘built up on communal hatred, narrow-minded bigotry and
violence ... the worst type of communal organization’.?’
Although the DMK split in 1959, with its largest faction calling not
for secession but for decentralized government, New Delhi’s anxieties
persisted—perhaps not least from the DMK’s legitimate electoral
challenge to Congress power in Madras state. And in the panic
accompanying the Chinese attack in 1962, as described in chapter 2, the
Constitution was amended to make the freedoms of speech, assembly,
and to form associations subject to laws made in the interests of ‘the
sovereignty and integrity of India’. Additionally, to qualify as a candidate
for Parliament and state legislatures, to campaign if nominated, and to
become a member ofa legislature if elected, an individual had to take an
oath to ‘uphold the sovereignty and integrity of India’.?8

of Tamil nationalist aspiration, was at the most a side issue, for the Manifesto implicitly
accepted the existing Constitutional order.’ Ibid.
In the 1957 election to the Madras legislative assembly, the DMK went from having
no seats to fifteen. It did vastly better in local elections, at the Congress’s expense.
The Dravidian peoples, probably originating in the eastern Mediterranean countries
and the Iranian plateau, entered India prior to the Aryans, whose ibe seems to
have pushed them southwards from north-western and western India. See Mansingh, Y/,,vn,
Surjit, Historical Dictionary of India, The Scarecrow Press Inc., Lanham, Maryland, 1996,
pp. 126 ff.
26 The Dravidian Movement, pp. 54-6.
27 Letters to chief ministers of 17 October 1953 and 31 December 1957 NLTCM, vol.
3, p. 398 and vol. 4, p. 625.
28 The Sixteenth Amendment added a proviso to the freedom of expression clause
of Article 19, and the oaths were provided for in other articles and joined other oaths in
the Third Schedule.
The oath emerged from the work of the National Integration Council, which first
met in June 1962. C. P. Ramaswamy Aiyar, Home Minister Lal Bahadur Shastri, and his
Home Secretary L.P. Singh are said to have been instrumental in its drafting. Sir C P
Ramaswamy, when diwan of the princely state of Travancore, had opposed the integration
of princely states into the Indian union.
The chief ministers’ meeting of August 1961, with Nehru presiding, had recommended
making advocacy of secession a penal offence. ‘Summary of Previous Recommendations
on National Integration’, prepared by G. R. S. Rao for the National Committee for Gandhi
Centenary at Patna, 1966, cyclostyled.
In the Indian Penal Code (Amendment) Act of 1961, Parliament already had made
154 Working a Democratic Constitution

Introducing the amending bill, Law Minister Asoke Sen, as will be

recalled, told the Lok Sabha that its purpose was to give the government
in-
of India ‘appropriate powers ... to impose restrictions against those
dividuals or organizations who want to make secession from India or
disintegration of India as political purposes for fighting elections’ .?9
Past Supreme Court opinions, Sen said, had made it clear that the term
‘security of State’ in Article 19 was a limited expression and did not of
itself include the power to ban organizations or activities. He assumed
that the amendment ‘echoes the universal desire of this house’ and the
country to combat the ‘evils’ of disintegrating forces.°” Following con-
sideration by a Joint Committee, the bitl was passed with little further
debate on 2 May 1963. Sen had asked for, and the bill received, unani-
mous approval, showing, as Sen put it, ‘the united wil] of the country’.*!
During debate, however, MPs from Assam, Andhra, and Madras criti-
cized New Delhi for, in the words of Ravi Narayan Reddi of Andhra, the
‘centralization of the entire administration that is going on at the cost
of the states’ and produces the talk of secession. The amendment seems
to have contributed to ending the DMK’s talk of secession, which simply
disappeared—out of fashion, anyway, with the Chinese attack and con-
trary to the DMK’s espousal of the national cause.>*
Although rarely a scurce of secessionist sentiment, language was a
disruptive issue broadly during the Nehru years. It had aroused such
passions in the Constituent Assembly that there is no ‘national’ language
specified in the Constituton, only an ‘Official Language’: Hindi, for of-
ficial business conducted by the central government and among govern-
ments. And the ‘imposition’ of Hindi, as the other major language groups
thought it, especially in the South, was so fiercely resisted that English
has been the legislated substitute for or alternative to Hindi since 1950.99

punishable expressions that promoted feelings of enmity of the grounds of caste, language,
religion, community, or that disturbed public tranquility. This could apply to the DMK’s
anti-Brahminism, although it was aimed much more broadly.
29 1 ok Sabha Debates, Third Series, vol. 12, no. 28, col. 5769.
30 Tbid., col. 5764.
3) Lok Sabha Debates, Third Series, vol. 18, no. 57, cols. 18410-11,
32 Hardgrave and Kochanek, Government and Politics, p. 152.
33 The nine articles of Part XVII of the Constitution contain the compromise language
formula arrived at by the Constituent Assembly. The Eighth Schedule listed fourteen
‘Languages’, and others have been added since. For the framing of the language
provisions, see Austin, Cornerstone, ch. 12.
When, the Congress ‘prime minister’ of Madras state, C. Rajagopalachari, in 1937 in-
stituted compulsory Hindi in the first three grades of the state’s schools, the violent reac-
tion set the example for the anti-Hindi rots that occurred nearly thirty years later, in 1965.
 Making and Preserving a Nation 155

National leaders tried to calm fears of Hindi ‘dominance’ in educa-

tion and civil service examinations with repeated assurances like Presi-
dent Rajendra Prasad’s Independence Day speech in Madras in 1960,
entitled ‘No Imposition of Hindi: Plea for Unity and Understanding’.
The central government propounded the three-language formula—edu-
cation in one’s mother tongue for linguistic minorities in primary schools,
and teaching the regional language and English in secondary schools.*4
With the Official Languages Act of April 1963, Parliament made the first
of a series of extensions of English, in addition to Hindi, for all official
central government purposes and for business in Parliament, necessary
under Article 343 to prevent the lapse of English.
Parliament amended this Act in December 1967, permitting the
increased use of Hindi while calling for the development of all Indian
languages. Language riots resulted in both the North and the South. A
member of the pro-Hindi Jana Sangh burnt a copy of the bill on the
floor of Parliament because it did not take Hindi far enough.°° Language,
as a nationally disruptive issue, has progressively disappeared, although
sensitivities persist. Today, English is used widely and Hindi is spreading
in states where once it was little known.
Accompanying this bitter debate for a time was a second one over the
formation of ‘linguistic provinces’ along the internal organizational
pattern that the Congress Party had adopted in 1920 at Gandhi's urging. ,
Nehru, Patel, and others, thinking this might destroy unity, had prevented
this during the Constituent Assembly. But proponents renewed the
demand under the Constitution, and a death-by-fasting in late 1952
for a Telugu-speaking Andhra state broke Nehru’s resistance.2° The
‘Statement
34 The National Integration Conference, chaired by Nehru, endorsed this.
ber 1961’, pp. 7-8.
Issued by the Natignai {nitegration Conference, September-Octo
Jayaprakash Narayan Papers, National Integration File, NMML.
the replacement
The National Integration Council, meeting in June 1962, said that
le, but the transition
of English as the medium of instruction in universities was inevitab
of the First Meeting of the
should notjeopardize the quality of education. ‘Proceedings
1962’, pp. 4-5. Ibid.
National Integration Council, 2 and 3 June,
from East Pakistan in
35 Local disputes could be even more bloody. Bengali refugees
nity, primary education in
Assam desired, in addition to land and economic opportu
dozens and made thousands
Bengali for their children. Riots over this issue in 1960 killed
ial is the coverin g of that we call
of Bengalis refugees again. Asked Nehru, ‘How superfic 3
on?’ Speech to the Lok Sabha,
“nationalism” which bursts open at the slightest irritati
pp. 7-9.
September 1960. Jawaharlal Nehru’s Speeches, vol. 4,
ss General Secretary Shankarrao
36 See Gopal, Nehru, vol. 2, ch. 12. Sometime Congre
states ‘do not even dream of opting out
Deo told Nehru that those aspiring to linguistic
1953. Chaudhary, Prasad: Correspondence,
of the Indian Union’. Letter of 11 November
vol. 16, pp. 215-16.
156 Working a Democratic Constitution
followed.
establishment of the States Reorganization Commission
Linguistic states came into being in 1956 with the Seventh Amendment
under the Constitution’s Article 3—which made no changes in the centre—
state relations provisions. The commission predicted that ir anegmane
would serve the country’s ‘unity and security’, which it has.

Constitutional and Sub-Constitutional Mechanisms for Unity

Faced with feared and real dangers to the country’s unity and integrity,
governments in New Delhi and the states had a variety of constitutional
devices to hand, and they created others. The least spectacular, but
most basic, of these were those already in Part XI of the Constitution,
‘Relations Between the Union and the States’, and elsewhere, under
which daily affairs were conducted. These served the sensible
assumption that constitutional governance, sound administration, and
economic development—making the country run well—strengthened
unity, indeed permitted the nation to survive. The mechanisms that
were established under these provisions will be taken up shortly.
There were other provisions in the Constitution that were more
immediately related to preserving unity and integrity. We considered
in chapter 2 the prohibition of speech that was thought to undermine
the security of the state. There also are the so-called ‘Emergency
Provisions’ in Part XVIII. Of these, we shall consider those government
and the public found most controversial.

THE ‘UNITY’ PROVISIONS

Article 352, as has been explained, changes the count
ry from federal
to unitary government and is to be invoked to prote
ct ‘the security of
India’ from threats from ‘war or external aggre
ssion or internal
disturbance’. An external emergency was procl
aimed only once during
the Nehru years, in 1962 at the time of the
India—China war. Because
this national emergency was still in force
at the time of the India—
Pakistan war of 1965, another emergency
was not proclaimed. Already
considered in its fundamental rights conte
xt in chapter 2, the emergency
clearly could have affected the working
of centre-state relations, but it
seldom was criticized on these groun
ds. Rather, broader fears for
federalism took the form of charges
by opposition parties that the
Cb kaHabe pale ts
authority and using the emergency
cir expense, Only in theory doe
s
Report of the States Reorganizati
on Commission, especially ch.
2
 Making and Preserving a Nation 157

federalism seem to have been a victim of the country’s first emergency,

although the government clearly found its continuance handy after its
initial justification had passed.*8
A unitary system may be put in place, also, for one state. According to
Article 356 of the ‘Emergency Provisions’, this may be done by the Presi-
dent if, upon a report from the governor ‘or otherwise’, he is satisfied
that the government of the state cannot be ‘carried on in accordance
with the provisions of this Constitution’. Therefore, ‘President’s Rule’,
as it is usually called, is only remotely concerned with national unity, nor
would a national emergency be if proclaimed to meet an ‘internal distur-
bance’ (unless, perhaps, the disturbance threatened unity through, say,
secession). Over the years, President’s Rule became extremely contro-
versial because it was thought often used to serve central government
convenience or political party interests, not to protect constitutional
governance and sound administration. Deplored as coercion, the device
came to erode the sense of unity rather than confirming it. The central
government imposed President’s Rule nine times from 1950 through
1965, and two instances—Punjab in 1951 and Kerala in 1959— became
symbols of its questionable use.*?
In 1951, Nehru wrote to Punjab Chief Minister Gopichand Bhargava
that the Congress was ‘in a sense cracking up’ due to the conflict between
the state party and the state government. Also, the public was alienated
from the government, there was Hindu-Sikh tension in rural areas,
and the behaviour of a Sikh minister, Giani Kartar Singh, was considered

38 To avoid declaring a national emergency, but to have emergency powers available

for grave local crises, a parliamentary delegation to Assam (sent in 1960 after the language
riots already mentioned) recommended authorizing the President ‘to notify a state of
emergency for any specified area ... [if] the security of India or any part thereof is
threatened by internal disturbances’. AR, 17-23 September 1960, p. 3540. This
recommendation was not acted upon, but such a provision would be added to the
Constitution in 1976.
Article 355 says that it is the Union’s duty to protect states against external aggression
and internal disturbance and to ensure that government is according to the Constitution.
Article 355 was not invoked during the Nehru years. See Part VI for a discussion of the
implications of this article.
39 In Punjab, June 1951-April 1952; the Patiala and East Punjab States Union
(PEPSU), March 1953—March 1954; Andhra Pradesh, November 1954—March 1955;
Travancore-Cochin, March 1956-November 1956; Kerala, November 1956—April 1957
and again from July 1959 till February 1960; Orissa, February 1961-June 1961; Kerala,
September 1964- March 1965 and again from March 1965 till March 1967. Sarkaria Report,
vol. 1, p. 184. See also President's Rule in the States and Union Territories, Lok Sabha Secretariat,
New Delhi, 1987, throughout.
158 Working a Democratic Constitution

a grave liability to the govern ment.” The Congress Parliamen se Board,

in a ‘stormy’ meeting that Bhargava attended, issued him anu tirmatum
to conform to its wishes regarding the selection of his ministry. Nehru
threatened to resign from the CPB if Bhargava persisted in defying its
13
directives.4! Bhargava fought this and the Board directed him on
a letter
June to resign, which he did, four days later, bringing to Delhi
dent's
from Governor C. M. Trivedi recommending the imposition of Presi
Rule. nies
President Prasad was unhappy with the situatio n. ‘I intense ly dislike
suspending the normal working of the Constitution in the Punjab and
assuming to myself the functions of the State government,’ he wrote to
Nehru. No emergency had arisen in the state and the chief minister
said he had resigned ‘in obedience to a directive of the Congress Par-
liamentary Board’, not because he had lost the confidence of the legis-
lature. ‘I consider it wholly wrong,’ Prasad continued, to permit a non-
constitutional body [the CPB] to interfere with the normal working of
the Constitution by producing an artificial emergency. ‘My feeling is
that we have created a very bad and a very wrong precedent ... [and]
acted against the spirit of the Constitution, although the action may be
justified as being in strict accordance with its letter.’**
Nehru replied that he understood Prasad’s distaste, but no other
avenue had been available. ‘[I]t is inevitable for ... [a] party to issue
directives to its members’. As for the situation in the state, the ministry
‘was losing all contacts with the public ... [and] was being controlled
more and more by non-Congress elements’. Also, the worsening law and
order and communal situation had to be controlled. Moreover, Bhargava
was ‘not acting in a straight manner’.*? The central government revoked
the proclamation on i7 April 1952 after elections had produced a
Congress majority led by Bhim Sen Sachar.

40 Nehru’s letters to Gopichand Bhargava, 2 and 18 March 1951. Gopich

and Bhargava
Papers, Jawaharlai Nehru File, NMML.,
41 Kochanek, Congress Party, p. 257, citing a Congress Bulletin
of May-June 1951 and
the Statesman 13 June 1951. According to some
observers of the scene, Bhargava was
understood to have been a protégé of Sardar Patel,
and his especial opponent within the
Congress, Bhim Sen Sachar, a protégé of
Nehru.
. 42 Prasad toe‘ My dearJawaharlalji’at dated 18
June 1951, File 21, 1951, ‘Correspondence
bi oa Minister’, Rajendra Prasad
Collection, NAI.
Nehru i “My dear Mr President’ dated 21 June
1951. Ibid. Nehru rejected Prasad’s
comparing the ‘outside authority’ in the Punja
b case, the CPB, with Kripalani’s resigning
ane the Congress presidency—when
the central government had denied
vongress Party had any authority over that the
its policies or actions.
 Making and Preserving a Nation 159

The imposition of President’s Rule in Kerala on 31July 1959 caused

a greaier stir. In the spring 1957 general elections, the Communist Party
of India won 60 of the 126 seats in the Kerala legislature and formed a
government with the backing of independents.** Chief Minister E. M.
S. Namboodiripad (popularly referred to as EMS) vowed to allow all
citizens to exercise ‘the rights of freedom of speech, press, assembly or
organization’ in the Constitution and to ‘adhere strictly to the limitations
imposed on the state government by the Constitution’.?” He initiated a
major social reform programme that included land reform, banning
eviction of tenants, providing legal aid to the poor, granting amnesty to
political prisoners, and reserving 35 per cent of places in educational
institutions and civil services for the backward classes. On 2 September
1957, the legislature passed the Kerala Education Bill, which gave the Y
government a great deal of control over most schools in the state, many
of them Christian. The governor reserved the bill for the assent of the
President, who, on the Attorney General’s recommendation, sent the
bill in May 1958 to the Supreme Court for an advisory opinion. Prasad
enquired specifically if the bill offended Article 14 (equality under and
equal protection of the law); Article 30(1) (minorities right to establish
and administer their own educational institutions); and Article 226 (the
High Courts’ power to issue writs for the enforcement of the Fundamental
Rights). On 22 May 1958, the Court advised that portions of the bill
violated the rights of minorities to establish and run their own schools,
but it did not violate Article 14. The provision of the act barring judicial
did not
scrutiny of compensation pai( for schools acquired by the state
offend Article 226.4° Responding to the opinion, the Kerala legislature
s of Travancore
44 Kerala had been under President’s Rule in March 1956 when portion
Rule was extended
became part of Kerala as a result of states reorganization. President's
until the general elections that
in Kerala in November 1956 and remained in force
produced the Nambocdiripad government in April 1957.
CP1/ New Age Printing Press,
45 Quotations, respectively, from Problems and Possibilities,
in Prosperous Kerala: Government Policy
New Delhi, 1957, p. 49 and ‘Statement of Policy’
frivan drum, 1957, p. 5.
Outlined, Central Government (of Kerala) Press,
election, nearly doubling its
The CPI in West Bengal had also done well in the 1957
percentage of the popular vote from 1952.
of Kerala being the beginning
Namboodiripad may have harboured dreams or ambitions
Frankel, Political Economy, p. 158. S.
of the peaceful implantation of communism in India.
Namboodiripad considered gaining
Gopal expressed a similar opinion when he wrote that
n’. Gopal, Nehru, vol. 3, p. 54.
office in Kerala as a step in a ‘war of positio
Frankel, Political Economy, pp. 157-
The following paragraphs about Kerala draw on
3, ch. 3.
9, and heavily on Gopal, Nehru, vol.
May 1958, pp. 2066-8.
46 Statesman, account as cited in AR, 24—30
 160 Working a Democratic Constitution
lic bishops,
enacted a revised bill in April 1959, which the Roman Catho
d
among others, refused to accept.*” A land ceilings law also contribute
to the tenseness of the atmosphere, for under it lands in EXCESS of the
ceiling were to vest in the state and exisung tenants could either lease
land or buy portions at 55 per cent of market value. Proprietors of
coconut and other ‘plantations’ and other landlords, who were to be
compensated, attacked the bill on the ground that their holdings were
not ‘estates’ and so were protected by Articles 14, 19, and 31.%
Nehru’s attitude toward the Kerala government during this period
went through several stages. Although he disliked communism, he was
willing initially to give the government a chance and even was ‘sub-
consciously almost proud’ that Indian democracy had allowed the election
of a communist government.*9 His view that the Kerala government
should fall only from normal processes survived his visit to the state
between 22 and 25 June 1959. Meanwhile, the Congress Party was speaking
with three voices: ‘the members in Kerala active in violent agitation, the
central leadership permitting such activity without approving it, and
Nehru disapproving of it but taking no action to curb it’.>° The Congress

47 Nehru’s letter to chief ministers, dated 2 July 1959. NLTCM, vol. 5, pp. 270ff. See
also Gopal, Nehru, vol. 3, pp. 57, 69.
48 Merillat, Land, p. 184.
When the Agrarian Relations Bill passed, Governor B. Ramkrishna Rao reserved it,
too, for the President’s assent. In New Delhi, it was overtaken by the proclamation
of
President's Rule, and the bill lingered there until July 1960, when the President returned
it to the freshly elected legislature with suggestions for changes. The
now Congress-
controlled legislature re-passed the bill on 15 October 1960, and the
President gave his
assent on 21 January 1961. “
The Act was challenged in the Supreme Court in Purushothama
n Nambudri v The State
of Kerala at the time Bhuvaneshwar Prasad Sinha was Chief
Justice. On the bench were P.
B. Gajendragadkar, A. K. Sarkar, K. N. Wanchoo.
K. C. Das Gupta, and N. Rajagopala
Ayyangar. Lawyers for the state included M. C. Setalva
d, still Attorney General, and K. K.
Mathew, then Advocate General of Kerala and later
a Supreme Court judge. In the leading
Opinion, given on 5 December 1961, Gajendragadk
ar rejected Nambudri’s contention
that the Act lapsed because the assembly was
dissolved while the Act awaited presidential
assent. Gajendragadkar then ruled that the Act
was protected under Article 31A, that the
VY petitioner's lands were an ‘estate’ within
the meaning of the law, and that land ceili
legislation—with government acquisitio ng
n of land above the stipulated ceiling—
ae second step in land reform, after was the
zamindari abolition. 1962 Supp (1) SCR
NagyBi 753ff.
etcen a ie soviet policy toward Tito and the
execution of Imre
iis ale Hee, icant chru’s view that the communists used violent meth
atl cbinereasti Gen. ck cae on ae eahe
ods in
: governor, B.R. Rao, took a more sceptical
50 thid. v SA eas : see a government than did Nehru. Ibid,
p. 54.
~~ Pathe Seven uitise . ala Congress s behaviour included Rajagopala
: chari
s ormer, they ‘are laying the axe at the root
of parliamentary
 Making and Preserving a Nation 161

Parliamentary Board at a meeting on 29 June 1959, chaired by Indira

Gandhi, as party president, adopted a resolution saying that elections
would be the best way to resolve the situation and revealed what would
be the government’s rationale when it imposed President’s Rule: ‘It may
be ... that the government has a majority in the state assembly, but
nevertheless is unable to function satisfactorily because of widespread
opposition from the public.’>! The next day the CPB sent a ‘Note of
Instruction’ marked ‘Secret’ to the Kerala Pradesh Congress Committee
(KPCC) indicating the ‘positive approach’ it should take in the situation.
The KPCC should demand elections as soon as feasible and join any
discussions offered by the Kerala government, meanwhile preparing a
‘chargesheet (to be finalised with the CPB) ... in the nature ofa petition
to the President’ calling for early elections. The KPCC also should
engage in token picketing, but not picketing of schools and transport
vehicles.>?
Near the end ofJuly, the General Secretary of the CPI, Ajoy Ghosh,
and CPI member of Parliament, A. K. Gopalan, visited Nehru to request
central intervention to cancel the planned mammoth demonstration
against the state government. When Nehru expressed his inability to do

democracy by what they are doing’. Said Sastri, agitating against a government to displace
it means they are ‘not really educated even in the fundamental concepts of democracy’.
Sastri comments to the Times of India and other newspapers.
The Congress Party central organization’s stance toward EMS from the beginning
had been more critical and admonitory than Nehru’s. See U.N. Dhebar’s letter to
Namboodiripad on AICC stationery, dated 6 August 1957. In this letter there also seems
to be an implied threat. Said Dhebar, if your government takes the law into its own hands
over property, all will find that the Communists ‘are not the only persons who will be
found adept in this art of taking law into their own hands’. T. T. Krishnamachari Papers,
Jawaharlal Nehru File, 1957, NMML.
51 ‘Resolution and Note of Instruction, Kerala’, AICC Papers, Second Installment,
File 4313-20/1959 NMML.
The resolution also said that picketing as a method of political action is undesirable,
but ‘in order to give expression to public feeling, some form of peaceful token picketing
may be admissible’. For Nehru, however, the kind of picketing Congress members and
others in the opposition to the Kerala government were doing ‘is not at all to my liking
... lam strongly opposed to picketing by boys and girls to prevent others from attending
[schools] ... [and to] stopping transport vehicles by lying down in front of them. Indeed
this is hardly picketing.’ Letter to chief ministers of 2 July 1959. NLTCM, vol. 5, pp.
270-4. h
52 AICC Papers, File 4313-20/1959.
Indira Gandhi's part in this affair still is the subject of much speculation. She ‘was
not a negligible element’ in the crisis, wrote Nehru’s biographer. A leader of the Kerala
Congress said in 1970 that ‘but for Mrs Gandhi's influence they would not have been
able to convert the central government to their way of thinking’. Two of Mrs Gandhi's
 J
Nel a Laie GIv vhs Keak

stitution
162 Working a Democratic Con
t]
act [to dismiss the state governmen
so, they told him “the sooner you tion of
the better.””°? The governor was asked to request the imposi
boodiripad on 30 July that we
President’s Rule, and Nehru wrote to Nam
, but matters could not be left
have been ‘most reluctant’ to take the step
ment's viewpoint, Nehru
to deteriorate further. Even from your govern
rvention to take place now.”’ >4
continued, ““it is better for Central inte
of President’s Rule
The governor’s report calling for the imposition
been crushed’ and
said of the situation, the spirit of give and take ‘has
barely mentioned
the government cannot function in a ‘normal way’. It
Justify-
the Education Bill and the Agrarian Relations Bili not at all.>°
his New
ing presidential intervention, the governor—or, more likely,
hy of
Delhi ghostwriters—propounded an utterly self-serving philosop
government. It is not necessary that a no-confidence motion be passed
‘in order to justify the change of government’, the governor said. “‘I am
convinced that the government has lost the support of the majority of
the people ... [S] ecuring ... a majority of seats in the Legisiature ...
cannot be pleaded as conferring a continuing right to claim the confi-
dence of the majority.’ The ‘only solution’ is to exercise the power un-
der Article 356, he said.°©
biographers believe that she pushed Nehru to his decision. Backed by ‘a powerful
combination of Congress conservatives, she now grew impatient and demanded that the
Communists be sent packing without further delay’. Malhotra, Inder, /ndira Gandhi: A
Personal and Political Biography, Hodder and Stoughton, London, 1989, p. 64. ‘Indira’s
views had prevailed with the Prime Minister and President’s Rule had been imposed in
Kerala,’ wrote Pupul Jayakar. Jayakar, Pupul, /ndira Gandhi, Penguin Books, New Delhi,
1992, p. 160.
53 Gopal, Nehru, vol. 3, p. 71.
54 Tbid., pp. 71-2. Nehru confirmed this when speaking to the Lok Sabha on 19
August 1959 about the imposition of President's Rule. Ghosh and Gopalan had visited
hin, he said; they ‘did not in so many words ask us to intervene. But I say definitely that
they left the impression upon me that nothing would be more welcome to them than
ea gelayJawaharlal Nehru’s Speeches, vol. 4, p. 83.
” The Summary by the Governor of Kerala of His Report to the President, Home Ministry
document, cyclostyled, date illegible, but presented in Parliament 17 August 1959.
Papers
Laid on the Table 1959, Lok Sabha Secretariat/LT 1541/59,
The report’s litany of dissatisfactions with the government's policies include
d: death
sentences of communists being commuted after the Preside
nt had fejectedianeré
petitions; the government accusing the police of being ‘anti-pe
ople’; sechalasesn
against non-communist labour unions due to the expanded
influence ofthe Communist
All-India Trades Union Congress (AITUC); and the
government using its machine ‘for
Betch a ca one party at the expense of others’,
mh ‘
‘iat aan, oesick
er elle mete connection, which had masterminded
' ‘ordi oked Attorney General Setalvad’s point—in
Observations’, see ch. 1—that the President, and, his 1950
analogously, the governor, could dismiss
 Making and Preserving a Nation 163

Perhaps it was true, as Nehru said in the Lok Sabha when defending
the proclamation of President’s Rule, that central government interven-
tion averted a disaster.°’ But the Congress Party brought down the Kerala
government with the very ‘extra- parliamentary’ tactics and violence it
had castigated other parties for using. Moreover, many of the governor’s
accusations against the Kerala government could be levelled against Con-
gress state governments, which the governor admitted—with apparent
injured innocence—by acknowledging that ‘isolated instances of irregu-
larities and partialities can also be found in other states’. But he excused
these as ‘only the results of individual caprice, prejudice or even miscon-
duct. They have no relation to the aggrandisement of the [Congress]
party as such.’”°8
The Constitution’s Emergency Provisions, if not greatly protecting
national unity and integrity, might be said to have served national
cohesicn, but even here their use seems little to have served the nation.
The insiitution of the governor, having become prominent in so
unfortunate a fashion, had dual functions: to be a unifying force, link-
ing state governments with New Delhi, and to be the titular head of
the state government, consonant with the parliamentary system. The
governor was to be the central government’s representative to, and
eyes and ears in, the state government. The Constitution provided that
the governor be appointed by the President and serve at his ‘pleas-
(Arti-
ure’ meaning, of course, at the pleasure of the central ministry
not rule, but
cles 155 and 156). Like the President, he was to reign,
criti-
local circumstances and New Delhi’s uses of the position aroused
contro-
cism several times during the Nehru years and made it very
the central
versial thereafter. Accusations would be heard that he was
of President's
government's ‘agent’. Beyond his role in impositions
author-
Rule, there was the question of the extent of his ‘discretionary’
the chief minis-
ity under the Constitution, particularly in appointing
were unclear.
ter when respective party strengths in the legislature
paradox was that
These matters will be explored in Part VI, and the
detrimental to the
over the years the uses of the institution became

rmony between the policy of the Ministry

the jegislature if he felt ‘there is a potent disha a in 1959,
and public opinion’. One may doubt that this truly was the situation in Keral
and the truth never will be known.
u Speeches, vol. 4, pp. 82-92.
57 Speech of 19 August 1959. Nehr
14-15. President’s Rule was revoked on 22
58 Summary by the Governor of Kerala, pp. CPI
produced a new legislature in which the
February 1960 after special elections had nt with
ess and the PSP formed a governme
held only 29 of the 130 seats. The Congr
f minister.
Pattom A. Thanu Pillai as chie
 164 Working a Democratic Constitution
Delhi ma-
sense of national unity: state political leaders believed that
nipulated it.

SUB-CONSTITUTIONAL INSTITUTIONS AND MECHANISMS

The myriad tasks of government, explicitand implicit in the Constitution,

needed for their fulfilment oversight and co-ordination. The Constitution
specifically provided for several institutions and mechanisms; others were
created according to perceived need. All would benefit initially from
central government leadership and foster unity through a broader
understanding of national problems. Central and state leaders, in the
main, understood their respective needs as sides of the same coin. But
many of these mechanisms, in the view of state participants especially,
would come to suffer even in Nehru’s time from uncooperativeness on
the part of state governments and three central government vices: the
assumption that it knew best, heavy-handedness, and its opposite, neglect.
The two pre-eminent coordinating institutions were the Finance
Commission, provided for in Article 280, and the Planning Commission,
not envisaged in the Constitution at all. Established in February 1950,
this became the country’s principal institution for economic development.
It was closely linked to the cabinet: Nehru was its chairman, the Cabinet
Secretary functioned as the commission’s secretary, and the Finance
Minister and the Statistical Advisor to the cabinet (for many years P. C.
Mahalanobis) were directly involved with its work. Under the commission
the National Development Council (NDC) was set up to allow the chief
ministers to ‘review and recommend social and economic policies’.°9
Nehru typically chaired NDC meetings and strongly influenced its
decisions. Toward the end of this early period, the planning process
V drew criticism for being overly centralized and for applying
a single
development model to the country despite the great variety of
conditions
within the states. Chief ministers charged that
the meetings
rubber-stamped central government decisions more
than contributing
to them. For example, the NDC approved the draft Third Plan in
September 1960 after it had been approved in Parliament.®°
Opposition
59 Frankel, Politticical
al Econ
E omy, p. 118. Presiden
t Prasad announced in Parliament in
August 1951 that the NDG woul d be formed, and this was done in 1952.
The reader again is directed to
60
Part VI.
= bs 1-7 October 1960. , p. 3560
. Andhra Chief Minister Brahmananda Reddy in
= ca led for more state autonomy in
development planning, to which
astri responded that centre-state rela Prime Minister
tions over development should not
as conflict because this crea be portrayed
ted ‘aa good deal of * confusio
November] i n in
i th i ind’
December 1964, p. 6165.
mabe ee rae
 Making and Preserving a Nation 165

parties, such as the Jana Sangh, said the planning apparatus risked
‘over-centralization and totalitarianism’. The All-India Manufacturers
Association found planning good, but thought dangerous to democracy
the concentration of power in government hands.®°! Although the
charge of ‘totalitarianism’ was ridiculous, the centralization of the
planning process revealed disbelief in the state governments’ and
citizens’ intellectual capacity for participation, and, therefore, was
more than a little tinged with undemocratic attitudes. The potential
for this concerned Nehru. He wrote to the Commission Deputy Chairman
G. L. Nanda, troubled that the commission’s ‘manner of working ...
becomes more and more officialized’. Talk with the chief ministers as
colleagues, never order them about, Nehru advised. They are not
subordinate in any way.°* Nevertheless, the Planning Commission system
made great contributions to national development.
The Finance Commission’s responsibility for recommending the
distribution between the central and state governments of centrally
collected revenues, and the principles governing grants- in-aid from
central funds to the states, makes its importance self-evident. The first
Finance Commission report, December 1952, attempted to remedy early
complaints that New Delhi was levying taxes that interfered with the states’
own tax strategies.°? For example, it recommended that a significant
increase in the percentage of centrally collected income tax go to the
states, partly on the basis of collection and partly on the basis of need,
and a larger percentage of the excise duties on tobacco, matches, and
vegetable products. The report als» raised the amount of state subventions
from the Centre. The Second, Third, and Fourth Finance Commissions

61 For the Jana Sangh view, see AR, 21-27 July 1956, p. 994. For the All-India
Manufacturers Association, see AR, 14-20 April 1956, p. 786.
The Federation of Indian Chambers of Commerce and Industry shared many of the
Manufacturers’ Association’s view.
Prime Minister Lal Bahadur Shastri opened up the planning process. He formed a
National Planning Council of science and technology experts, with limited members from
the Planning Commission, to advise on planning. He saw to it that the NDC could advise
on Fourth Plan policy issues. In 1968, under Indira Gandhi as Prime Minister, money for
development assistance projects in the states was ‘untied’ from centrally approved schemes,
to
and central assistance came in the form of block loans and grants for state governments
Political Economy, pp. 255ff, 31 1ff.
use for their own development plans. Frankel,
7 November 1952.
62 Selected Works of‘Jawaharlal Nehru, vol. 20, p. 215. Letter dated
and Sampurnanand
63 See letters among Pant, Munshi, Rajagopalachari, B. C. Roy,
and Sampurnanand
during 1952. K. M. Munshi Papers, Microfilm Box 56, File 143, NMML,
Papers, File 89, NAI.
has been:
64 Generally speaking, the collection and distribution of revenues
 166 Working a Democratic Constitution
ibuted to the states, a
increased the amount of income tax revenue distr
were made. For
trend that would continue. Many other adjustments
and sugar
example, the states gave up sales taxes on textiles, tobacco,
Finance
in return for larger central government subventions. The
ution
Commission steadily gained importance as a forum for the resol
ss,
of money disputes between the centre and the states. Neverthele
the distribution of revenues, and of capital development grants by
the Planning Commission, would become contentious as the state
governments would accuse New Delhi of inequitable distribution, while
themselves incurring enormous overdrafts on the central treasury.
The zonal councils were a sub-constitutional mechanism with a
different function. The States Reorganisation Act of 1956 set up five
councils—the four points of the compass and a central zone—for
centre-state and inter-state coordination. Each council comprised the
chief ministers, the development ministers, and the chief secretaries of
the relevant states, a member of the Planning Commission, and was
chaired by the central Home Minister. Pandit Pant described the
councils’ function at the inaugural meeting of the Northern Zona!
Council in April 1957: to attain the emotional integration of the country
and to arrest acute regional consciousness; to help the central
government and the states evolve uniform social and economic policies;
to assist effective implementation of development projects; and to secure
a degree of political equilibrium among the regions of the country.®©
Nehru hoped the councils would help settle day-to-day problems and
help in economic planning, while not becoming ‘a fifth wheel of the
coach or ... coming in the way of close relations between the centre and

—Taxes levied, collected and retained by the central government: corpora

Toe? tion tax,
import/export duties, taxes on capital (other than on agricult
ural land).
—Taxes levied and collected by the Centre and shared
with the states: income tax
(other than agricultural income, which few staves
collect, althou gh empowered to) and
central excise duties.
—Taxes levied and collected by the Centre but turned
over to the states: succession and
estate duties, taxes on railway fares and freight, and
terminal duties on goods and passengers.
—Taxes levied by the Centre but collected
and retained by the states: stamp duties
mentioned on the Union List. See M. M. Singha
Indi PO an l, ‘Devolution and Development of
ian Federal Finance in the Special'
ym wv
Number on Centre-State Relations in
Journal of Constitutional and Parliament India
1986, pp. 146-7, ary Studies (hereafter JCPS), vol. 20, nos. 1-4,
65 K. A
Pid Ramasubraman
. :
iam, “LI: :
Historical Development and Essential Feat
, Federal Svstem’ in Mukarji, N irmat and ures of the
Arora, Balveer (eds), Federalism i : -_
La andDevelopment, Centre for Policy St bin “F eas), Sederali
in India:
sm Origins
soe 1992, p. 114 olicy Research, Vikas Publishing House Pvt. Ltd.,
New Delhi,
 Making and Preserving a Nation 167

the states’.°° K. M. Munshi was sceptical. He wrote in his fortnightly

letter to President Prasad that the Uttar Pradesh government thought
the councils would serve ‘no useful purpose’ and that a central government
minister should not chair them.®? Conversely, Sanjiva Reddy, when
Congress president, later advocated giving the councils statutory
administrative powers to combat provincialism.°8 The councils were by
no means useless bodies, said a well-qualified observer, but ‘they
achieved at best a limited success’.©9
Going beyond such mechanisms, Nehru launched endeavours bold
in their paradox: the community development and panchayati raj
programmes, whose purposes may be said to have been integration
through decentralization and unity through participation, in addition
to their obvious aims of economic development and social improvement
in villages. These programmes were to be the ideal combination of the
grand themes of unity, democracy, and social revolution. The idea was
not original to Nehru, although he had a ‘crusader’s zeal’ for community
development.’? Jayaprakash Narayan and the socialist parties shared
the concept, and, as is well known, Mahatma Gandhi had been the great
proponent of village development and empowerment. For Nehru, the
community development projects were the beginning of a far-reaching
social revolution that would ‘“transform our country ... and promote a
better order” ’.”! Congress President U. N. Dhebar advocated panchayat
developinent as more than ‘a decentralized form of administration’,
seeing it also as leading to ‘emotional integration’ and developing ‘a
conscious bond ... towards ... democracy ... the medium for the
achievement of the Socialist Pattern of Society’. Nevertheless, Dhebar

etter of 16 January 1956. NLTCM, vol. 4, p. 336.

66 |
57 Letter dated 16 April 1956. K. M. Munshi Papers, Microfilm Box 118, File 358,
NMML.
68 AR, 29 January—4 February 1961, p. 3756.
59 Sarkar, R. C. S., Union-Siate Relations in India, National Publishing House, New
Delhi, 1986, p. 76.
70 Nehru’s ‘crusader’s zeal’ for the community development programme (Gopal,
Nehru, vol. 1, p. 307) did not blind him to the factionalism in villages.
The democracy of the panchayati raj programme may release ‘forces which do not
exactly make for unity and cohesion’, acknowledged Congress President Sanjiva Reddy.
Report of the General Secretaries, January 1961-—December 1961, ACC, pp. 2-9.
71 In aspeech in 1952 inaugurating the first fifty-five community development projects.
Asia
Frankel, Political Economy, p. 109. See also a basic book, Dey, S. K., Panchayati Raj,
London, 1961. Nehru often promoted the two programmes in his
Publishing House,
letters to chief ministers.
to develop
Article 40 in the Directive Principles of State Policy enjoins the state
panchayats ‘to enable them to function as units of self-gov ernment’ .
 168 Working a Democratic Constitution
not be allowed to
was one of many who believed that ‘the vote should
on a party basis
divide the people’ and, therefore, ‘{panchayat] elections
the villages’.
would be the worst service that we can render to the people in
village
Implicit in Dhebar’s view was the fear that the dominant castes in a
r
would control the outcome of elections.’2 In 1957, Nehru was unde
the impression that community development had a fine organization
and had spread ‘to nearly half of rural India’.’* But decentralization
should not lead to weak government, Nehru said. ‘“One of the big
problems of modern life is to find a balance between the tendency
toward concentration and the need for decentralization,” ’ he believed. ”4
Nehru was right, of course, but his predilections and those of many
others in his government toward ‘concentration’ won out. A 1956 report
issued by the Community Projects Administration found the programme
strong in its theoretical approach and the practical experience of its
officers. But it also found that villagers had changed ‘more rapidly than
have the concepts of some national leaders about villagers’ and said ‘it
is impossible successfully to develop democracy at the bottom [of
society] if feudalism exists at the top’.”> Two reports of 1959 and 1960
| said that the ‘hierarchical growth of official machinery’ had set back
the Community Development Programme greatly and the programme
had ‘become more governmental than popular in character’, with
people hardly regarding it as their own programme.’° But the difficulties
did not lie entirely with the bureaucrats. State politicians resisted village
power for fear of losing influence. And the ‘segmented structures and
aX
no primitive institutions’ of rural society ‘could not generate a responsive

2 From the type-written text of the article. AICC Papers, Second Installme
nt, File G-
1 (17) Congress President, 1955, NMML.

7: to those conside
Dhebar’
s assessment of village conditions, by no means inaccurate, also
gave pause
ring empowe judicial
rin panchaya
gts. K. M. Munshi, for one, feared that
giving them authority could ‘mean that justice might fall into the
hands ofvillage bullies’.
Proceedings of the Conference of Governors, 4-5 February 1953,
p. 15, K. M. Munshi Papers
eas Box 63, File 176, NMML.
3 Letter
dated 23-24 January 1958. NLTCM, vol. 5, pp.
74 S ‘
18-19.
peech to the All-India Manufacturers Associati ;
1959, p. 2590. sociation, 14 March 1959. AR, 4-10 April
Taylor, Carl C., A Critical Analy
sis of India’s Community Development Progra
mme, The
Community Projects Administratio1
1, GOI, New Delhi, 1956, p. 57. Taylor was a Ford
Foundation consultant on community
development.
eee76 ipnesit :
eg Professor Rene Dumont of Paris, ‘India’s
Agricultural Defeat’ in the
: ‘ alesman, 19 December 1959. Cited
in NLTCM, vol. 5, pp. 345-6. Also the
a: pace Report of the Planning Commission, Seventh
11June 1960. Cited in ibid., pp. 379-80
ress accounts of the latter are quoted in AR,
25 June-1 July 1960, pp. acne
 Making and Preserving a Nation 169

and creative leadership’.’’? The failures probably did not set back the
cause of unity, but they did little to help it. These same factors would
continue to inhibit the development of panchayats and community
programmes for years to come. But Nehru’s dream had taken root and
would grow in the 1990s with a constitutional amendment mandating
the establishment of panchayats and reserving a third of the positions
in them for women.’®
In addition to these more formal sub-constitutional institutions, there
were many mechanisms for coordination and communication: the
annual meetings of governors, presided over by the President; meetings
of chief ministers, presided over by the Prime Minister; annual meetings
of the Supreme Court and high court chief justices; and annual, or
more frequent, meetings of state and central ministers of law, food and
agriculture, housing, education, labour, community development, and
irrigation and power. For legislators, there were annual meetings of
presiding officers chaired by the Speaker of the Lok Sabha, and annual
meetings of the chairs of estimates committees and chief whips (begun
in the sixties), again presided over by the Speaker. ’9 There also were
meetings of ad hoc groups like those on food policy and interstate river
waters disputes.
Frequent communications served coordination and national
‘education’. As seen, Nehru regularly wrote to the chief ministers and,
less often, to PCC presidents. Governors wrote to the President
fortnightly—a practice begun in 1948—with copies to the chief minister

77 Haksar, Premonitions, p. 230.

78 Others would have decentralized by revising the Constitution. The PSP believed
that people in their local communities should ‘make or mar their own fate as they wish
... [This] is surely the only way to rouse a lethargic people to action’. Statement of Policy,
Praja Socialist Party, Bombay, 1954, p. 13. The Socialist Party said it would democratize
the Constitution by replacing the two-pillar system ofstates and central government with
a four pillar structure ‘of the village, district, province and the Centre’. Police power
would be transferred to district and village control; district and village councils would get
‘a quarter share in all revenues and expenditures of the Republic’, and village councils
would serve as sovereign agencies of legislation. Election Manifesto, Socialist Party 1957,
Hyderabad, p. 5.
The Communist Party limited its prescriptions to abolishing the Constitution’s
And it
emergency provisions, so the country could not be governed in a unitary fashion.
Party of India,
called for the direct election of governors. Election Manifesto, Communist
4281.
New Delhi, 1961, cited in AR, 12-16 November 1961, p.
79 The first Speaker, G. V. Mavalank ar, used these forcefull y to inculcate a democratic
legislative spirit and to build up legislature secretariats the better to administer legislative
and Wnitings, Lok
business. For many examples of this, see Mavalankar, G. V., Speeches
Sabha Secretariat, New Delhi, 1957.
170 Working a Democratic Constitution
to relevant central ministers.
and the Prime Minister, who sent extracts
was a constant stream
In addition to the heavy bureaucratic traffic, there
tbiprovincial and
of communications from Congress Party headquarters
as on internal
district Congress committees about national policy as well
esce to
party issues—although local Congress units did not always acqui
central leadership direction.
If democracy is the worst form of government except for all the
others, federalism is equally troublesome. The distribution of powers
and resources is perpetually contentious. The efficacy of methods is
always in dispute. And whether centralization ordecentralization better
serves national unity and the individual citizen, societies decide by the
pendulum method—first one way, then the other. Indians would not
be different, especially during the early years. Despite their difficulties,
they made the Constitution’s federal and related provisions work. Adult
suffrage supported the parliamentary system nationally. The single
judicial system functioned in both its original and appellate jurisdictions,
even when rulings were unpopular. States reorganization had
successfully rearranged boundaries to create linguistic states while
strengthening unity, although the changes were marred locally by
‘violence. Jammu and Kashmir had special status under Article 370. The
Nagas were given a state. On this example, autonomous areas for tribal
peoples were created in Assam in 1969 by the Twenty-second
Amendment. Three actually or potentially secessionist crises were
resolved, although the lessons of Kashmir and the Punjab were
ill-learned. A sense for the national economy grew, and the states and
the centre carried on the innumerable routine arrangements without
which the nation would have failed. Above all, the country was more
united and confident ofitselfin1966 than in 1950. The third strand of
the seamless web had been strengthened.
 Part I

THE GREAT CONSTITUTIONAL

CONFRONTATION: JUDICIAL VERSUS
PARLIAMENTARY SUPREMACY, 1967-73

Our path is socialism. If we do not use the word, it does not mean we
have forgotten it. We cannot wait for them [doubters], although we will
try to take everyone with us.
Indira Gandhi!

Notwithstanding anything in this Constitution,) Parliament may in

exercise of its constituent powerfamend by way of addition, variation or
repeal any provision of this Constitution ....
From the Twenty-fourth Amendment, 19712

Article 368 does not enable Parliament to alter the basic structure or by Que /
framework of the Constitution.
The Supreme Court in the Kesavananda Bharati case®

. Speaking to the AICC meeting, 3-4 April 1971. Congress Marches Ahead IV, AICC,
New Delhi, 1971, p. 70.
2 Clause 3 (b) (1).
3 1973 (4) Supreme Court Cases (hereafter SCC) 1007.
 j i‘ es? (eTOCs.
i+? +e" Ff -—>
-

*? us ”
cg” on

> - 7
of

| Sg LONEOLIT EMO?
ee PAIGE HOTA
- :
; e
a OA ae as
nea sd=, oe
-

; ee pte sy : re

z Sa esse! Siaby Drercshanee

sa
= ; 2 sp caeaesneed ssi aii ba
wt >=
= = 5 =
ae

iki ay
os eeees ie it eee
seats sae ssHorice ‘yh peters

ores -
es
a Z2ousi

heated (Se See

ee Ate a eda
eda ig;PE “. on

OS ate >
 Chapter 7

INDIRA GANDHI: IN CONTEXT

AND IN POWER

The early hours of 11 January 1966 brought India two ends and a
beginning. The life of Jawaharlal Nehru’s successor, Prime Minister Lal
Bahadur Shastri, ended that morning in Tashkent, where he had gone
to sign an agreement with Pakistan ending the previous year’s war
between the two countries. Shastri’s death also ended the Nehru years,
for he had led the country in the Nehru tradition even while being his
own man as Prime Minister. A new era, one that would be marked by
confrontation over institutional and personal power, began with the arrival
in the Prime Minister’s office of Nehru’s daughter, Mrs Indira Gandhi.
The era may be divided into three periods: from 1967-73, the subject
of this Part; from 1975-7, the period of Mrs Gandhi’s Emergency, covered
in Part III; and from 1980-5, the years from her resumption of power
after the Janata interlude until her assassination, discussed in PartV.The
confrontations of Mrs Gandhi’s first period as Prime Minister occurred
in a sequence of events described in this and the following five chapters:
her consolidation of power in the Congress Party and as Prime Minister,
leading to her centralization ot centre-state relations and within the
executive branch in New Delhi; the Supreme Court’s rulings in three
cases involving the right to property—Golak Nath, bank nationalization,
and privy purses; Parliament’s assertion of its power further to restrict
the Fundamental Rights and to amend any part of the Constitution; the
Supreme Court’s reassertion of its power of judicial review; and Mrs
Gandhi’s long-brewing direct attack on the Court.
Self-evidently, essential issues of constitutional governance underlay
her actions in these confrontations. Individual rights were pitted against
the society’s need for a social revolution, as they had been in Nehru’s
time. The increased central authority over the states ended the ‘bargaining
federalism’ of the Nehru years, and the ‘federal’ structure of the Congress
Party disappeared as many ministers became New Delhi’s instruments
and the Prime Minister gained control of the Congress Party machinery.
In New Delhi, the distribution of powers among the three branches of
government was gravely unsettled. Mrs Gandhi's grip on the Congress
 ion
174 Working a Democratic Constitut
ally ni es i!siiiile
Parliamentary Party exceeded the power typic ters heed as we
where prime minis
ministers in parliamentary systems,
branch came to dominate
as lead their followers. The executive
nt lost any effective identity of
Parliament to such a degree that Parliame
became concentrated in the
its own. And, authority within the executive
cised from Mrs Gandhi S
Prime Minister’s office and then was exer they
two branches, ifsull
residence, to the exclusion of all buta few. The
ch, the judiciary, intending
could be called that, attacked the third bran
rnment.
to end its function as a co-equal branch of gove
seamless web
These and related events strained two strands of the
k on judicial
and somewhat strengthened the third. Mrs Gandhi's attac
ired a
independence struck at democracy’s heart as Parliament acqu
of her
rash presumption of omnipotence. Her necessary consolidation
position in the party and as Prime Minister progressively damaged,
rather than strengthened, national unity and integrity. The seamless
web’s social revolutionary strand fared a bit better. For example, the
Green Revolution increased grain production and spread the benefits
associated with this, while making some agriculturalists particularly rich.
Bank nationalization, despite its dubious origins, did broaden the
availability of credit in the country for agriculture and small industry.
/ And the attention given to the social-economic desiderata of the
Directive Principles, even if largely rhetorical, did give prominence to
an easily neglected portion of the Constitution.
This chapter provides the context for the constitutional developments
that marked this period. Its principal topics are Mrs Gandhi's invocation
of socialist themes to consolidate her authority; the rise to prominence
of a new political generation; and the increasing migration of authority
from a variety of institutions and individuals to the office and person of
the Prime Minister.
A harbinger of new power relationships came in the inability of the
‘Syndicate’ of a few state party leaders (K. Kamaraj of Madras, Atulya
Ghosh of Bengal, S. K. Patil of Bombay, S. Nialingappa of Mysore and
Sanjiva Reddy of Andhra) to arrange the succession from Lal Bahadur
Shastri to a new prime minister, as they had arranged the succession
from Nehru to Shastri in 1964. The organizational wing of the Congress
ae awe ae iesugued 4 In January 1966, the Syndicate could
; ndidate, nor could the Working Committee.
Although eight chief ministers and Kamaraj finally decla
red themselves
for Mrs Gandhi, the CPP made the ultim ate
decision, electing her leader
in a secret ballot ; on 19 January 1966
. She had defeated Morarji Desai
ccording to the> common assessment, he
because , accor
was personally
 Indira Gandhi: In Context and In Power 175

unpopular, possessed of prodigious pride, and stubborn in office. Also,

because Kamaraj and others believed they could control Mrs Gandhi.!
Many in the party considered her a transitional prime minister until
after the 1967 general elections. Thus, to survive politically, Mrs Gandhi
faced the tasks that would confront any prime minister in similar
circumstances. She had to assert her leadership within the government
and lead the party to election victory.
She failed to do the latter, and it may be doubted that any leader
could have overcome the Congress’s self-destructive factionalism and
other electoral handicaps of the moment. The 1967 general elections
cut the Congress’s majority in the Lok Sabha to twenty-five, lost it 264
seats in state assemblies and its majorities in eight states. This produced
what reporter and editor Inder Malhotra described as a ‘flourishing
trade in political loyalties’ as parties scrambled for enough adherents
to allow formation of a government. Instead of ousting Mrs Gandhi,
largely because the only viable alternative would have been Morarji Desai,
the Congress compromised by renewing her leadership and by making
Desai Deputy Prime Minister as well as Minister of Finance. It then
turned to its staple fare, socialism.
In a ‘post-mortem’ on the elections, the Working Committee and,
later, the AICC bemoaned its neglect of socialist programmes and the
loss of its mass base by leaders consumed by competition for office.2
Having attributed its election losses to unfulfilled promises, it then, in
a pattern that had become familiar, made fresh, enlarged promises.
The Working Committee on 12 May adopted a resolution containing a
‘Ten-point Programme’ that called for, among other things, ‘social
control’ of banks, nationalization of general insurance, limits on urban
incomes and property, and the removal of the princes’ privileges.?
Another resolution said that ‘only by working the Constitution in letter
and spirit is it possible to provide an orderly government ... and also
preserve and promote the Fundamental Rights and the cherished
principles and objectives enshrined in the Constitution siete

| The commonly accepted picture of Desai seems overdrawn. Stiff-necked he was,

but to two of his close subordinates, B. K. Nehru and Nirmal Mukarji, he was a responsive
boss and had a sense of humour.
2 For a detailed report on the post-mortem, see Congress Bulletin, June-July 1967, pp.
83-133. .
5 Report of the General Secretaries, February 1966—January 1968, AICC, New Delhi, 1968,
p. 29. Subsequent chapters will return to the subjects of banks and princes.
g
4 The Congress Forum for Socialist Action added its voice to the ‘agonisin
would look like a real socialist party, the
reappraisal’. It called for a ‘new Congress which
176 Working a Democratic Constitution

Mrs Gandhi, ‘Socialism’, and Power

enging
These sentiments gave the Prime Minister the justification for chall
were
the senior figures in the organizational wing of the party, who
es
critical of her leadership and still intent on controlling her. xoung
social-activist Congressmen would be her vanguard against the ‘bosses’,
as they called them. As the Statesman put it, she intensified the battle
over ‘democratic socialism’, between ‘the Right and the Left’.° On the
so-called ‘Right’ were party president S. Nijalingappa, other members
of the Syndicate (some of whom were at least as socialist-minded as the
Prime Minister), and Morarji Desai. C. Subramaniam, temporarily out
of the ministry in New Delhi due to his defeat in recent elections and
now president of the Tamil Nadu Provincial Congress Committee, led
the ‘Left’, accompanied by the party’s ‘Young Turks’ and others of whom
more will be heard presently. The ‘politics of commitment’ appeared
as the ‘left’s rallying cry’. Mrs Gandhi told the Faridabad session of the
All India Congress Committee that ‘the party would neither abandon
the goal of socialism nor allow itself to be pushed to the extreme left or
right’.’
After these skirmishes at Faridabad, during which Nijalingappa had
to defend himself by declaring, ‘I am a socialist to the core,’ the Prime
Minister again attacked at the Working Committee meeting in Bangalore
beginning 9July.8 The meeting opened that evening with Mrs Gandhi
absent—apparently due to a tactical indisposition in Delhi. But one of
her cabinet ministers, Fakhruddin Ali Ahmed, delivered her ‘note’ to

driving force of which would be provided by peasants, labourers and the working
intelligentsia’. S. N. Mishra, The Crisis, the Country, the Congress, Congress
Forum for Socialist
Action, New Delhi, 1967. Later, the Forum took the lead in sending the
Congress president
and the Prime Minister a memorandum from 118 members
of the Parliamentary Party
urging implementation of the Ten-Point Programme.
Atulya Ghosh, hardly a ‘socialist’, in a pamphlet entitle
d The Real Task (AICC, New
Delhi, 1967), harshly criticized the party’s failure to fulfill
its social revolutionary promises
such as those on land reform and the abolition
of untouchability. ‘[I] n practically no
state have the relevant [land reform] laws been
implemented in their totality’ (p. 3).
Policies must produce legislation and legis
lation must be implemented, he wrote.
” New Delhi edition, 26 April 1969,
© Statesman, 24 April 1969.
7 Hindustan Times, 25 April 1969
. Other y igorously contended issues at
included reorganization of the p Faridabad
arty structure in the wake of the 1967
and whether or not the Congres electi on defeats
Ss should form coalitions with other partie
general elections due s to fight the
in 1979.
8 ‘To the core’, AR, 28 May-—
3 June 1969, p, 8952.
 Indira Gandhi: In Context and In Power 177
the meeting. This she described as ‘just some stray thoughts rather
hurriedly dictated’, aimed at setting to rest ‘doubts ... with regard to
our intentions and our willingness to take hard and difficult steps’.?
The note’s ten points included advocating ‘nationalized financial
institutions’, more autonomy for public sector projects, appointment
of a Monopolies Commission composed of ‘persons of integrity’, and
banning big business from consumer industries. Yet, Mrs Gandhi did
not commit herself entirely. In the note’s narrative portion she confined
herself to saying that ‘perhaps we may review’ the policy toward banks.
The ‘Stray Thoughts Memorandum’, as it has come to be called,
was Mrs Gandhi's only in name. Her Principal Secretary, P. N. Haksar,
had drafted it.!° And it derived its shape and, frequently, its actual
wording from a Congress Forum for Socialist Action document, ‘A Note
on National Economic Policies’, which five CFSA members had
submitted to the Working Committee before the Bangalore meeting.
This note, itself, drew upon a speech CFSA leader Chandra Shekhar
had given several months earlier in the hope that he could influence
developments at the Faridabad Congress session.!!
The Working Committee meeting gave the Prime Minister an empty
victory. By adopting a resolution—drafted by Home MinisterY.B. Chavan

9 For events at the Working Committee meeting, see ‘Proceedings of the Working
Committee Meetings Held in Bangalore,’ AICC papers, Installment II, File OD 12, 1969,
NMML. For the text of the Prime Minister’s note, see Revitalising Congress: Recent Speeches
and Writings of Indira Gandhi, Kalamkar Prakashan, New Delhi (undated, but 1969), pp.
7ff.
10 According to I. K. Gujral and others, in interviews with the author. Gujral was a
minister of state at the time and a member of Mrs Gandhi’s ‘kitchen cabinet’, which he
has described as ‘comprised of her diverse personal friends ... [with] diverse groupings ...
[among whom] she encouraged a low-voltage rivalry’. Gujral, I. K., ‘Emergence of a
Power Centre’ in Hindustan Times, 14 August 1987.
The nomenclature for the Prime Minister’s secretary had been changed by L. B.
Shastri from Principal Private Secretary to Secretary to the Prime Minister.
11 The speech was made in April 1969 in New Delhi to the ‘Congressman’s National
Convention for the Implementation of Ten-Point Programme’. The burden of the speech
was that the Ten-Point Programme was too ‘modest’ and that the struggle between
‘reaction and progress has become more pronounced’,
For the texts of both the note on economic policies and the Chandra Shekhar speech,
see Young Indian, Special Independence Number, 1972, pp. D153-55, and D145-51,
respectively.
C. Subramaniam and Sadiq Ali, then a Congress General Secretary, joined Chandra
Shekhar in submitting notes for the Bangalore meeting. Sadiq Ali interview with the
author.
For the origins of the Congress Forum, see ch. 4.
 178 Working a Democratic Constitution
i—giving its ‘general
and moved by Finance Minister Morarji Desa
d the transformation of her
approval’ to the Stray Thoughts, it prevente
attempted to
struggle with party leaders from power to principle. She
meeting, held
regain some ground in her address to the AICC
Congress may
concurrently in Bangalore, where she proclaimed, “The
us who have
believe in socialism, but do we not have people amongst
g s might
decried socialism publicly and privately?’!? Nationalizin bank
an of
or might not be a good idea, she said, but it had become a slog
‘radicalism’, and ‘it is not right to cling to slogans’. This was classic Indira
Gandhi strategy: keeping her enemies on the run and her own options
open.
After failing to vanquish the old guard, Mrs. Gandhi faced their
counter-attack. The Presidency of India had become vacant upon the
death in May 1969 of Zakir Hussain, and Vice-President V. V. Giri had
become Acting President. Following the pattern since 1950, Giri would
have been the Congress Party’s nominee for President. 13 But Syndicate
a
member Sanjiva Reddy, whose steadfastness to socialist values Mrs
a~Y
Gandhi had questioned at Faridabad, had also become a candidate.
Mrs Gandhi favoured V. V. Giri, a former Jabour union leader she
considered friendly. The Congress Parliamentary Board at Bangalore
on 12 July nominated Reddy as the Congress’s candidate by a vote of
four to two. Syndicate members Kamaraj and Patil plus Morarji Desai
voted for Reddy. Syndicate member and party president Nijalingappa
abstained. For Mrs Gandhi, the bitterest pill was that her Home Minister,
Chavan, voted for Reddy and her Agriculture Minister, Jagjivan Ram,
abstained. Only Mrs Gandhi and F. A. Ahmed, who succeeded Giri as
President of India, voted for Giri.
Furious, with Chavan in particular, Mrs Gandhi returned to Delhi
bent on revenge. But, counselled during the following week by party
eee like D. P.Mishra and Uma Shankar Dikshit and by Haksar and
ae rs a Mohan Kumaramangalam to give the confrontation
cies nena Pe!and principle, she chose Morarji Desai instead of
m—as a symbol of the old guard who could be branded

Revitalising Congress, pp. 13-32.

” The President is elected under
Article 54 by an electoral college consisting of the
elected members of both houses of
Parliament and ulre elected members of state legislativ
assemblies using proportional repr e
: esent ation with the single transferable vote, with the
value of each assembly me mber’s vote
varying according to the populati on of the state.
: ee ante ipa back on Zakir
Hussain’s election asa victory, for
- i Ninh he had defeated
Golg suDba Kao,
casewho, asa,Chief Justi
(clit Justicece of of Indiaia,, had
hi ruled againi st thefs government inj the
 Indira Gandhi: In Context and In Power 179

as pro-business and anti-poor. Chavan, although divested of the Home

Ministry, otherwise was spared because he had a ‘leftist image’ plus a
strong base in Maharashtra. She also picked bank nationalization as her
weapon.'* Yet it had to be used carefully. If she declared this her policy,
Morarji Desai would acquiesce to nationalization. On the other hand,
likely he would resign if divested of his finance portfolio. Desai received
the letter relieving him ofhis portfolio as Finance Minister—a post Mrs
Gandhi immediately assumed—soon after noon on 16July 1969. The
official announcement followed at 1:30 p.m. Desai resigned as Deputy
Prime Minister on 19 July after calling upon Mrs Gandhi the day before.
That evening of 19 July, Acting President V. V. Giri promulgated
an ordinance nationalizing fourteen of the country’s largest banks,
accelerating progress toward constitutional crisis—-a story told in chapter
9. In his resignation speech, Desai told members of the Lok Sabha that
he had resigned so as not to be ‘a silent spectator to methods that may
endanger the basic principles of democracy on which our parliamentary
system is established’.1° A month later, V. V. Giri became President of
India.!©
As Mrs Gandhi continued her quest for job security, there ensued
several months of virtually open warfare among individual Congressmen
and factions, with marches and demarches and failed unity resolutions.
Party leader Nijalingappa accused Mrs Gandhi of anti-party activities.
Mrs Gandhi accused Nijalingappa of splitting the party. He told her, in
your view ‘all those who glorify you are progressives ... . Those
... loyal to the organization ... are reactionary and disloyal.’!7 Four
C. Pant,
14 This account is drawn from interviews with I. K. Gujral, Girish Mathur, K.
B. N. Tandon, R. C. Dutt, Sheila Dikshit, and others.
upon
Haksar at one point suggested that Mrs Gandhi take the finance portfolio
Wiley Eastern Ltd., New Delhi,
Desai’s departure. Seshan, N. K., With Three Prime Ministers,
1993, pp. 98fF.
15 The sequence of events from 16 July onwards is drawn from Desai’s account of the
30, no. 1, cols. 280ff.
affair to the Lok Sabha. Lok Sabha Debates, Fourth Series, vol.
16 On 20-21 April 1970, Giri became the first sitting President to appear before the
The court,
Supreme Court, where he testified against a petition challenging his election.
changes in the manner in
after hearing evidence, rejected the petition. See Part III for
which election petitions were to be settled.
17 In a letter reported in AR, 3-9 December 1969, pp. 9264, 9267.
Minister Shastri
Mrs Gandhi’s attacks on the old guard included charges that Prime
Shastri wanted to review the
intended deviating from Nehru’s socialism (in truth,
that he had acted in a cowardly
government's economic policies for effectiveness) and
vehemently denied to the author
fashion during the 1965 India-Pakistan war, a calumny
For a recent biography of Shastri,
by Shastri’s close subordinate of the time, L. P. Singh.
ic views, see especially pp. 108ff.
see Srivastava, Lal Bahadur Shastn. For Shastri’s econom
 180 Working a Democratic Constitution

hundred and seven (of 703) AICC members, led by UP Congressman

and party General Secretary H. N. Bahuguna, submitted a requisition
calling for an early AICC meeting to elect a new party president: the
Prime Minister’s ‘enemy’ had to go. On 12 November, the Working
Committee under Nijalingappa removed Mrs Gandhi from primary
membership in the Congress and from leadership of the Congress
Parliamentary Party. The Prime Minister’s faction responded with a
statement saying that her removal from primary party membership was
illegal, that the democratically elected parliamentary party elected its
own leader, and that Indira Gandhi ‘today represents the aspirations of
millions of our countrymen’.!8 Eighty-four years after its birth, the
Congress had split. Several days later, Mrs Gandhi’s faction in
Parliarnent—210 in the Lok Sabha and 104 in the Rajya Sabha—
confirmed her leadership. But, short of a majority in both houses, she
was to lead the country’s first minority government, dependent upon
the support of, and therefore constrained by, the CPI, DMK, and a few
independents.!9
The battle of protestations began anew. Each faction proclaimed
itself to be the true Congress, supreme among the voters in its loyalty to
socialism and in its ability to keep its promises. Mrs Gandhi opened her
campaign by asserting that the party split was not a clash of personali-
ties and ‘certainly not a fight for power’, but ‘a conflict between those
who are for socialism ... and those who are for the status quo, for
conformism, and for less than full discussion inside the Congress’ .? Newly
elected faction president Jagjivan Ram’s elegantly written speech at
its
plenary meeting in Bombay in December 1969 had a ring of sincerity—
perhaps reflecting his Harijan background—as he characterized
con-
ditions in the country. ‘Social tensions and the spirit
of violence are on
the increase,’ he said. ‘[T]he poor half of the
villages have little to

: 18 AR, 17-23 December 1969, pp- 9285-8.

For a detailed account of the Congress
split, see Frankel, Political Economy, ch. 10.
.
19 :
Ibid., P: 9291. The Nija
eo
lingappa faction, led in Parliament by Mora
sixty-five seats in the Lok Sabha and rji Desai, held
forty-six in the Rajya Sabha.
CPI leader S. A. Dange remarked
that his party was not satisfied with
characte
pace r’ of rsMrs Gandhi's min}
the ‘mixed
Gandhi's ministry , but would Support it: as long as there .
was a ‘rightist ’
20 Dharia, Mohan and i.Ds
PM’s Lett P Malaviya (eds), ‘Crisis in the Congress and Nation:
Bete . " a : aad Members, Souvenir—Requisitioned Meeting of AICC Members
pa Ss atest: 1969, ‘Democracy’ insid ’, AICG
e the party was a major issue of the
Spieth2 ed:s: ts Gandhi, after orandi
branding ng her her ‘iat
opponents as agains ; ‘
t ‘full discus sion’, herself
 Indira Gandhi: In Context and In Power 181
thank anybody for ... [Z]amindars turned substantial farmers ... rule
the villages ... [Congress] must pursue radical policies or disintegrate,’
he said.*!
But he offered few remedies, and none not heard before. He did
sound a theme that would become familiar when he said that ‘We need
--. an apparatus with a purpose in mind. We need a service committed
to the ideal of democracy, socialism, secularism.’ A committed bureauc-
racy andjudiciary would become the catch-phrases of the next decade.
Curiously, Jagjivan Ram did not make the more common allegation
against civil servants, that they were incompetent to administer economic
development programmes or were actually hostile to them.
Utopian socialist rhetoric filled the Bombay session’s economic policy
resolution. Moved by Chavan, it said the party was ‘pledged to the
establishment of a casteless and classless society’. Land reform laws
already enacted should be fully implemented during 1970-1 (this, in
December 1969). All remaining intermediaries should be abolished by
the end of 1970. Tenants should have security of tenure. Public sector
enterprises were to be toned up. Licensing procedures should ‘prevent
the ... concentration of economic power and growth of monopolies’.
Finally, three promises in the resolution that were kept: those to abolish
the princes’ privy purses, nationalize general insurance, and take over
the wholesale trade in grains.**

21 ‘Presidential Address, by Shri Jagjivan Ram’, Indian National Congress, 73rd Plenary
Session, Bombay, December 1969, AICC, New Delhi, 1969.
During 1969, the Research and Policy Division, Ministry of Home Affairs, had
prepared a paper, “fhe, Causes and Nature of Current Agrarian Tensions,’ which
Jagjivan Ram probably had seen. In twenty-nine pages it catalogued and analysed
topics such as the ‘serious social and economic unequalities in the rural areas ... [that
have} given rise to tensions between different classes ... satyagrahas and forcible
occupation of land’ and other ‘agitations’ and ‘widespread circumvention of the
laws’ by landholders. Copy in author’s possession kindness of Professor Thomasson
Januzzi.
22 Policy resolution from Indian National Congress 73rd Pleanary Session, Bombay, December
1969, AICC, New Delhi.
The party split deprived Mrs Gandhi's faction—the Congress (R)—of the Congress’s
traditional offices at 7, Jantar Mantar Road, New Delhi, which the Desai faction,
the Congress (O) (for ‘Organization’) kept for itself. The Prime Minister’s party
headquartered at ‘Camp Office’at 15 Windsor Place. Proprietorship of the publications
Congress Bulletin and Reports of General Secretaries series remained with the Congress (O).
The Congress (R) (for ‘Requisitionists’) began a new series of publications, one of
which, the Congress Marches Ahead series, contained extensive documentation. The first
booklet in this series was entitled From Bombay to Delhi, AICC, New Delhi (Windsor
Place), June 1970. The second was entitled From Delhi to Patna, AICC, New Delhi
182 Working a Democratic Constitution
mises to shore up her minority
As the Prime Minister used these pro alist
s in the Congress Forum for Soci
government's position, the activist
political futures and the social
Action used her to promote their own
would not last, but while it did,
revolution as they defined it. The alliance
porters combined to produce
the intentions of Mrs Gandhi and her sup
cting the integrity of the
profound changes in the Constitution affe
ly merit our attention.
seamless web. These Congress activists especial

An Activist Political Generation

Jagjivan
They were of several persuasions. Long-time Congressmen like
Ram, Y. B. Chavan, C. Subramaniam, Dinesh Singh, Bhagwat Jha Azad,
Nehruvian
Uma Shankar Dikshit, F A. Ahmed, andJaisukhlal Hathi were
socialists. Then there were those who called themselves socialists, former
members of the Praja Socialist Party, who had joined the Congress
in the 1960s after their party’s decline—Ashoka Mehta, Ram Dhan,
Chandra Shekar (later the Prime Minister), Mohan Dharia, and Krishan
Kant (later Vice President). A third group consisted of those who Morarji
Desai referred to as ‘fellow travellers’, who the socialists called ‘the left’
(thereby identifying themselves as in the mainstream), and who others,
more precisely, named the ‘ex-communists’. These included former
CPI members and close sympathizers who had joined the Congress
during the mid-sixties, like I. K. Gujral. Others joined the Congress
much later, like Mohan Kumaramangalam in 1971, although he was
close to Mrs Gandhi earlier. In between, there joined persons like
Raghunatha Reddy, K. R. Ganesh, Chandrajit Yadav, Nandini Satpathy,
Amrit Nahata, Nurul Hasan, and D. P. Dhar. The latter two groups and
other individuals worked under the umbrella of the Congress Forum
for Socialist Action.
In terms of ideology or philosophy, as much separated the three
groups as united them, although all breathed the oxygen of India’s
political air, ‘socialism’. The Nehruvians, whose life was the Congress
nourished some hopes that the social revolution could be atvaxited
under Mrs Gandhi's leadership. In general, they did not share the

(Windsor Place), October 1970. Congress Marches

Ahead III followed in April 1971, and
this series ended with Congress Marches Ahead 13
in October 1976 i es
The Congress (O) session, held at Gand
hin agar near Ahmedabad. earlier in December,
was lacklustre by comparison with the GC
ongress (R) session, Although Congress (O)
leaders continued active in public life
(for example, Desai became Prime Minister in
1977), the party's influence declined
ra pidly.
 Indira Gandhi: In Context and In Power 183

‘socialists’ socialism, and they thought the CFSA both pushy and too
communist. The socialists had long looked to their roots in European
socialism, and this made them democrats as well as believers in
government control of, or very strong authority over, the means of
production. A few were convinced Marxists.
The ex-communists were themselves not ideologically uniform. Al-
though all were economic Marxists, some were also Marxist-Leninist in
their admiration of the Soviet economic model, and one or two were
Stalinists. For all, friendliness toward the USSR was central to their psy-
chological and political identity, and with this went anti-Americanism.
Their attitudes toward parliamentary democracy in India varied con-
siderably. With few exceptions, they supported it, as did both Commu-
nist parties. The differences lay in the degree to which they were willing
to erode constitutional practice and Indian political institutions in pur-
suit of their social-economic goals. The former communists, in Krishan
Kant’s view, would have given the Prime Minister unhindered power to
implement social-economic reform. They had no love for the institution
of democracy, thought Madhu Limaye. Democracy was not a way of life
for them, said a journalist close to the communists. They accepted the
democracy established in India, thought Sheila Dikshit, but wanted the
Congress programme to be Marxism, not Gandhianism. They wanted
to hold office, and they were more radical politically than the socialists,
remembered I. K. Gujral.??
‘fW]e left the CPI because Left elements in the Congress needed
help .... The Congress had become dominated by the rich, by feudalists,
and by the landed,’ said Chandrajit Yaday.** He and others were following
the advice of their most prominent colleague and intellectual leader,
Mohan Kumaramangalam, who would become one of the country’s most
influential politicians.?° In Kumaramangalam’s view, the CPI had made

23 Kant, Limaye, Dikshit, and Gujral in interviews with the author.

24 Interview with the author.
sman
25S. Mohan Kumararmangalam was the son of P. Subbarayan, a Tamil Congres
at the London
prominent in the independence movement. Son Mohan was educated
Indira Nehru, then
School of Economics, where he became friendly with and charmed
to a friend, he was a
briefly a student at Oxford. A ‘dashing sort of person’, according
once underground and on
brilliant lawyer, and was noted for his integrity. Having been
he became Advocate General
the run as a communist, he resigned from the party when
him.)
of Madras state in 1966. (Some say the CPI expelled
to the Madras High Court
Kumaramangalam had been mentioned for appointment
have a Communist on the court. Mrs
in 1960, but the then Chief Minister would not
mentin Delhi, but Morarji Desai successfully
Gandhi reportedly wanted him in her govern
 184 Working a Democratic Constitution
a vast mistake in attempting to defeat the Congress, with itsmass support,
at the polls. That way the CPI would never be able to implement its
social-economic programme. Instead, said he, the party should go to the
polls as an ally of the Congress and offer to form ‘National Governments
with it so that the CPI could benefit from the Congress’s mass support
and push the Congress toward genuine social and economic reform.?°
This was the so-called ‘Kumaramangalam Thesis’, and it was depicted by
some as advocating the Congress’s subversion. It certainly reflected Soviet
tactics of the period, but given Kumaramangalam’s reputation as ‘an
avowed Communist’ (and the reputations of his associates) , it was hardly
a secret operation—even though the paper was circulated only gleraie id
within the CPI in 1964 and did not become publié until 1973.2” Rather
than the plan of a would-be ‘mole’, the thesis ‘reads like the strategy a
liberal, non-doctrinaire communist thinker might advise his none-
too-bright leaders to follow’, wrote the well-known journalist, Ajit
Bhattacharjea.28 Nevertheless, the thesis was significant for the advice it
offered and the fears it aroused.
Another individual of critical importance to constitutional develop-
ments was the Prime Minister’s Principal Secretary, P. N. Haksar, whom
we have met as the drafter of ‘Stray Thoughts’ and as one of those
behind the defenestration of Morarji Desai. A Kashmiri from Nehru’s
home town, Allahabad, one-time student at the London School of

opposed this. Instead, the industrial magnateJ.R. D. Tata

made him chairman of Indian
Airlines in 1969, an unpaid position. As chairman,
he opposed buying Soviet passenger
aircraft and supported buying American Boeing
s. Kumaramangalam acted as V. V. Giri’s
Senior Advocate when his election as President
of India was challenged.
ae Kumaramangalam, S. Mohan, A Review
of the Communist Party Policy from 1947,
Madras, 23 May 1964, pp. 18-19. (Original
cyclostyled copy in the author’s possession
kindness of his widow, Kalyani Kumarama ,
ngalam.) The full text of the paper purp
was published in Singh, Satinder, orte dly
Co
Publishing House, New Delh
i,

bourgeoisie, and peasantry.

hence it must also have a plac
Party Policy, p. 31.
27 ‘Avowed Communist’:
R. C. Dutt interv iew with
Nor was Kumaramangal the author.
am’s idea new. Member
Soci: alist Party in the 1930s s of the CPI joined the Congress
on Soviet instructi Ons to
point of view and becaus convert its members to the communis
e they believed all socialists t
the larger Congress. P. Sun needed to stick together to infl
d arayya Oral History, uenc e
28 Tim
es of India, 15 pp. 83 ff, NMML
A O
vgs 1973,¢
Bhattacharjea was reviewing
. . . :
book. Bhattachrjea w: sat the Satinder Singh
the time a close associate
of Jayapraka sh Narayan.
 Indira Gandhi: In Context and In Power
185
Economics, a junior colleague of Krishna Menon at the
India League
in London, and a lawyer, Haksar joined the Indian Forei
gn Service in
the 1940s at Nehru’s instance and in 1967 replaced L. K. Jha
as Mrs
Gandhi's Principal Secretary. Here he gained a much overdrawn
repu-
tation as the Prime Minister’s evil genius, but powerful he was, as
will
be seen shortly. He contributed his views on administrative and
eco-
nomic issues, which were affected by ‘his grounding in Marxian dialec
-
tics’.*9 Haksar became controversial particularly in regard to the slo-
gan of ‘commitment’. Likely to Mrs. Gandhi, and certainly to her de-
tractors, ‘commitment’ meant loyalty to her, and only secondarily to
the social goals she espoused. To the gentlemanly Haksar, the word
meant commitment to the social revolutionary ideals of the Constitu-
tion, especially by his fellow civil servants, who should act with ‘integ-
rity and honesty, giving advice, not taking personal advantage and not
caving in to politicians’. Bureaucrats who did not follow these precepts
should be punished.* Haksar followed his own precepts in giving ad-
vice to the Prime Minister. ‘I sometimes disagreed violently with Indira
Gandhi’, he remembered, and others recalled their ‘shouting matches’.
Indeed, she rusticated him to the Planning Commission in 1973
after he criticized Sanjay Gandhi’s conduct in his Maruti automobile
venture.
These individuals brought their ideas to power. Socialists by name
or by viewpoint and former communists had been part of the Prime
Minister's “kitchen cabinet’ (and also of what wags called her ‘verandah
cabinet’) since 1966. Several hac been ministers or risen to office in
the Congress. But they vaulted to prominence and influence in 1971.
The enabling event was the massive victory by Mrs Gandhi’s Congress
in the April parliamentary elections that year. General elections both

29 For ‘Marxian dialectics’, see Sharada Prasad, H. Y., ‘Vision and Warm Heart’, in
Sarkar, Bidyut (ed.), RPN. Haksar, Our Times and the Man, Allied Publishers Pvt. Ltd., New
Delhi, 1989, p. 185. Sharada Prasad was the Prime Minister’s information advisor. A cabinet
minister of the time, C. Subramaniam, also recalls Haksar being ‘a powerful factor’ in
economic affairs. Interview with the author. See also Awana, Ram Singh, Pressure Politics
in Congress Party, Northern Book Centre, New Delhi, 1988, p. 78, and, especially, two
books by P. N. Haksar, himself: Premonitions and Reflections on Our Times, Lancer
Publications, New Delhi 1982.
30 PN. Haksar interview with the author. Haksar, in his fine book of thoughts and
sentiments, Premonitions, said it was the nature ofcivil servants’ commitment that required
examination. It could not be the commitment of society to family, sub-caste, caste,
community, or region. It had to be commitment to a ‘new value system’ marked by
secularism, ‘honesty, integrity and hard work as ethical compulsions’, and national pride
‘sustained by intellectual and spiritual self-reliance’. Ibid., pp. 201, 207.
186 Working a Democratic Constitution
es had been held in 1952
to the Lok Sabha and state legislative assembli
83 and 172. The next
and every five years thereafter under Articles
the parliamentary system
general election was due in 1972, but under
sooner. Mrs Gandhi
the legislatures or the Parliament could be dissolved
e to the state
had ‘delinked’ elections to the Lok Sabha from thos
red by state
legislatures in order to run by herself, in 1971, unencumbe
seats in
issues and personalities. Her Congress(R) won 350 of the 520
y other
the Lok Sabha, gaining a two-thirds majority and leaving ever
it
party far behind.2! To become the acknowledged leader of the post-spl
Congress Party, she had campaigned on an election manifesto that
promised to abolish poverty, garibi hatao; to amend the Constitution ‘to
overcome the impediments in the path of social justice’; to impose
limitations on urban property; and to make the public sector dominant
in industry.°2 Party officials greeted Mrs Gandhi's victory as ‘a clear
mandate ... to carry out the necessary constitutional amendments to
narrow the gap between the haves and have nots’.?8

The Year of the ‘Socialists’

Mrs Gandhi rewarded her supporters for her solid majority in Parliament.
Mohan Kumaramangalam became Minister of Steel and Heavy

31 The Congress (O) won 16 seats, the CPM 25, the CPI and the DMK 23 each, and
the Jana Sangh 22 seats. Elections were not delinked in Tamil Nadu, where Chief Minister
Karunanidhi had the assembly dissolved and formed an electoral alliance with Mrs Gandhi
to defeat Kamaraj.
Little noticed at the time, but later a burning political and legal issue, was the election
petition charging that Mrs Gandhi had won her seat by using corrupt practices. This was
filed by Raj Narain, the Samyukta Socialist Party candidate who Mrs Gandhi had defeated.
(See ch. 15.)
°? Mehta, Hemangini (ed.), Election Manifestos, 1971, Awake India Publications, New
Delhi, 1971, ch. 7. The Congress manifesto also said that the ‘lawless activities of the
extreme Left and Right’ were a threat to the country. The text of the manifesto is attributed
to the efforts, among others, of H. D. and K. D. Malaviya, Mohan Dharia, and
Chandrajit
Yadav. Awana, Pressure Politics, p. 201. The slogan garibi hatao has been credited to Dev
Kant Borooah (sometimes transliterated Barua), later Congress president and
a fulsome
praiser of Mrs Gandhi.
Socialism was the rhetoric ofall (but tw 0) of the
other parties contesting the election:
the Akali Dal, the two C ommunist parties, the Congress (O), the
DMK, the PSP, and the
Jana Sangh.
33 HN. Bahuguna, a Congress General Secretary,
in the ‘Foreword’ of People’s Victory—
An Analysis of 1971 Elections, AICC, New Delhi,
197 1. Inaugurating the new session of
Parliament, President V. V. Giri also characterize
d the election results as ‘a massive mandate
for change’.
 Indira Gandhi: In Context and In Power 187

Engineering. S. S. Ray, not a socialist but eager to go along, became

Minister of Education, with under him a ‘left’ Minister of State, Nurul
Hasan. Chavan took Finance; Ahmed, Agriculture; Subramaniam (who
was elected to the Lok Sabha in a subsequent by-election), Planning; and
Bahuguna, Communications. A former Praja Socialist Party member and
labour lawyer lately come to Congress, H. R. Gokhale, was given the Law
Ministry. Eight of the twenty-two ministers of state were from the CFSA
or associated with it.>4 D. P. Dhar served in the Ministry of External Affairs
and as deputy chairman of the Planning Commission. More than a half-
dozen fellow-thinkers held positions as secretaries of ministries or heads
of semi-autonomous institutions.*° In Parliament, there were some seventy
staunch CFSA supporters (including Sashi Bhushan, Amnit Nahata, and
K. P. Unnikrishnan); and Krishan Kant was secretary of the Congress
Parliamentary Party.
A parallel pattern existed in the Congress Party. A Dozen of the
twenty-one members of the Working Committee were CFSA members
or close to them.26 Shankar Dayal Sharma (later President of India),
Yadav, and Chandra Shekhar were at some time party general secretaries.
S. S. Ray, K. D. Malaviya, and Chandra Shekhar served on the Central
or were
Election Committee. In the states, CFSA members controlled,
,
strong in, the Pradesh Congress committees in Mysore, Gujarat
Maharashtra, UP, Rajasthan, Bihar, Orissa, and Delhi.”
set
Secure in their power, the Prime Minister and her supporters
period
out to use it—they with at least her acquiescence. There began a
In
of radicalization of the Congress Party and of government policy.
into a
the party, a constitution comm.ittee was formed to transform it
gical
cadre-based party.?> Party workers were to receive intensive ideolo
sting; K.R. Ganesh,
34 These included Nandini Satpathy, Information and Broadca
Reddy, Compan y Affairs; Bhagwat
Finance; I. K. Gujral, Works and Housing; Raghunatha
Home Affairs.
Jha Azad, Labour; Mohan Dharia, Planning; and R. N. Mishra,
ty of India. Others
35 For example, Wadud Khan became chief of the Steel Authori
and T. S. Sankaran.
included R. C. Dutt, Ashok Mitra, P. S. Appu, Mantosh Sondhi,
Chandra Shekhar, Chandrajit
36 A sampling of names: S. D. Sharma, Chavan, Ahmed,
Henry Austin, and Dinesh Singh.
Yadav, Bahuguna, K. D. Malaviya, Satpathy, G. L. Nanda,
K. R. Ganesh had been on the committee earlier. e
Economy, pp. 462-75, Awana, Pressur
37 For further information, see Frankel, Political
roles of the individuals named in these
Politics, and R. C.. Dutt, Retreat from Socialism. The
interviews.
paragraphs have been corroborated during
Dutt inter views with the author.
38 Yadav and R. C.
the Prime Minister spoke in general terms of the
At Working Committee meetings,
es that had ‘received the seal of the entire
need for ‘cadres’ and ‘commitment’ to polici
New Delhi, October 1970, p. 106.
nation’. From Delhi to Patna, AICC,
 188 Working a Democratic Constitution

training, and a ‘camp’ was held at Narora with a syllabus prepared by

K. D. Malaviya, which a Youth Congress leader of the time described to
the author as ‘pretty much Soviet stuff’. Rhetoric at odds with the party’s
long-standing creed of ‘not by class war’ appeared ina draft Working
Committee resolution, which called for organizing agricultural workers
and poor peasants for ‘enforcement’ of agrarian reforms. The party
/ should mobilize the people and direct their ‘justified discontent’ into
‘a powerful and creative weapon of social transformation’.»? An AICC
resolution appealed to Provincial Congress Committees ‘to mobilize ...
mass compulsions’ to speed reform.*”
Radicalization in government policy took several forms. Amendments
to the Constitution (to be discussed in forthcoming chapters) placed the
future of the Constitution and its Fundamental Rights in Parliament’s
hands to the exclusion of the judiciary. Mohan Kumaramangalam pro-
vided the ideology and the energy for these amendments and for
large-scale nationalizations of commerce and industry.*! Moscow-leaning
D. P. Dhar persuaded the government—against the advice of Kumara-

39 Working Committee meeting of 7October 1970. Congress Marches Ahead III, ACC,
New Delhi, 1971, pp. 13-14. Chandrajit Yadav was by this time a member of the Working
Committee. As a general secretary during 1972 and after, Yadav supervised the party’s
‘publications cell’, which was staffed largely by CFSA members.
Socialist India, an organ of the CFSA edited by the radical (according to
K. P.
Unnikrishnan) Iqbal Singh, appeared in May 1970.
40 Congress Marches Ahead IX, AICC, New Delhi, 1973, p. 25.
4] The government nationalized general insurance in May 1971.
Between that August
, and the end of 1974, some four hundred enterprises were
nationalized—including shipping
and ‘sick’ textile concerns, steel plants, and coal and copper
mines. However inefficienta
manager government would prove itself to be, many
unreasonable in terms of the national interest
of the nationalizations were not aie
in protecting the rational use of strategic
resources and the protection of industries
7. > ;
and workers from the rapacity of managers
interested only in a4.
gains, and willin § to ruin industries to get them, not in maintaining
healt
e hy enterprises. The earlier nati onalization of life
insurance had been to protect citizens’
tie ont business that had become corrupt,
according to P. B. Venkatasubramanian,
whereas the nationalization of general insurance
was purely ideological. S$. K. Mait:
the Law Ministry, drafted much of this nationalization
le itil aera ave ‘ aor Es
who,
hiehe thoug
atin ht, was ‘wedded’ to Marxist theory
ry and and without
th busi
business experi
Rivenence.
tetta h a ew
Intervi
Kumaramangalam had made
his views about property clear in a
articles. In one, he asked if the Directi number of published
ve Princi ples
could be achieved ‘so long as prope
remains a Fundamental Right rty
as ...’. This meant that property
judges, not Parliament. As to compen matt ers were in the hands of
sation for property taken by governmen
t, this ‘is a
political and not a legal question;
\ but only to social it cannot be assessed with referenc
vl afl needs’. Kumaramangalam, e to legal dogmas
S. Mohan, ‘Wrong to Treat
|
fv 4 Fun dam ent al Righ t’, Patriot, 4 December 1969 Property as a
Sal
 Indira Gandhi: In Context and In Power 189
mangalam and civil servants in the Prime Minister’s Secretariat—
to take
over the wholesale trade in wheat, only to drop the scheme a
year later
after it had resulted in disastrous shortages. Newspapers were to
be
made ‘more responsive to the aspirations of the people’ through a Press
Bill, significantly initiated by Nandini Satpathy, Raghunatha Reddy, and
R. C. Dutt. But premature publicity evoked an uproar before which
Mrs. Gandhi retreated.4* The Law Commission was ‘reconstituted’: one
of its assignments was suggesting amendments to the Constitution that
would enable government ‘more effectively to implement the Direc- a

tive Principles’.4° Commission chairman, former Chief Justice of India

P. B. Gajendragadkar, had been persuaded to take the job by Gokhale,
Ray, and Kumaramangalam on the inducement that the government
would ‘informally consult me on all matters concerning constitutional
amendments and the higher judiciary’.44 Gajendragadkar was both a
distinguished jurist and a believer in Parliament’s authority to amend
any part of the Constitution. Other members were V.R. Krishna Iyer,
who had been Law Minister in the Communist government of Kerala
between 1957 and 1959—and who was appointed at Kumaramangalam’s
instigation; and law professor P. K. Tripathi, who believed Gajendragad-
kar would make the commission ‘an effective instrument for sccial
change’.*° But, as will be seen, these men would oppose one of the gov-
ernment’s radical measures as unconstitutional.

42 ‘More responsive’ was Information Minister Nandini Satpathy as quoted in the

Statesman, 4 August 1971. At this time, Satpathy still was Minister of Information and
Broadcasting and R. C. Dutt, Secretary ir the ministry; Reddy was Minister of State for
Company Affairs. According to I. K. Gujral, P. N. Haksar favoured the bill and was angry
with Gujral when he, having replaced Satpathy as minister, opposed it because it would
destroy the credibility of the Indian press. Interviews with R. C. Dutt and I. K. Gujral.
43 Terms of Reference in P. B. Gajendragadkar Papers, NMML.
44 Gajendragadkar letter to Indira Gandhi dated 24 August 1977. Ibid. He would
leave the commission disappointed.
45 PK. Tripathi letter to Gajendragadkar dated 23 September 1971. Ibid.
As chairman, Gajendragadkar involved the commission in analysis of a wide variety
of legal issues and championed the status, conditions of service, and independence of
the judiciary with the Prime Minister. See his letter to Indira Gandhi of 4 February 1974,

ye ae wrote to the Prime Minister that he had met with his friends
Kumaramangalam, Nurul Hasan, and H. R. Gokhale, and we ‘are anxious to help you ... in
the historic task which you have undertaken ... to create a new secular, social order in the
light of the Directive Principles of our Constitution’. Letter dated 13 April 1972, ibid. At
times, Gajendragadkar’s tone with Mrs Gandhi seems fulsome. He wrote on 19 December
1971 of ‘the inspired and superb lead you gave the nation ... . Your letter to President
Nixon is a masterpiece,’ etc. Ibid.
 190 Working a Democratic Constitution

The Congress’s victories in the state assembly elections in the spring

1971, to Mrs
of 1972—due to India’s victory over Pakistan in December
and
Gandhi's brilliantly executed policy, and, again, to her rhetoric
charisma—added to her large majority in Parliament from the 197]
ess
elections. Now, the Prime Minister no longer needed the Congr
Forum to assure her dominance ofboth party and government.*° And,
e
sensing in it a competitor for power, she set out in May 1972 to crippl
it. Loyalists like S. D. Sharma and Uma Shankar Dikshit let it be known
nor v"

that she favoured setting up a counter organization, which produced

the Nehru Forum. It and the Congress Forum exchanged rhetorical
arrows, giving the Working Committee justification for disbanding
both.” Death dealt the activists their devastating setback: Mohan
Kumaramangalam was killed in an air crash on 31 May 1973.

The Migration of Power

Indira Gandhi grew powerful, after her inauspicious first two years, from
the authority inherent in the Prime Minister’s office; from her political
skills and her personality—both charismatic and steely; from propitious
circumstances; and from these in combination. As Prime Minister, she
chaired the Political Affairs and Economic Affairs Committees of the
Cabinet and the Planning Commission. She reorganized the functions
of the Cabinet Secretariat and the Prime Minister’s Secretariat (PMS,
later called the Prime Minister’s Office, PMO) and the relationship
between them. To the Cabinet Secretariat she moved external intelli-
gence operations (the so-called Research and Analysis Wing, RAW)
split off from the domestic intelligence organization, which was the
Intelligence Bureau or IB. This remained in the Home Ministry. On the
recommendation of the Administrative Reforms Commission, she trans-
ferred control of the civil service from its traditional location in the Home
Ministry into a new Department of Personnel in the PMS, to which she
also transferred responsibility for the Central Bureau of Investigation
(CBI). A minister of state was placed in charge of the new department

46 In the assembly elections the Congress won from 52 to 83 per cent of the seats in all
but three small states and Tamil Nadu, where assembly elections had been held in 1971.
47 The Congress Parliamentary Board, meeting on 8 April, and noting the ‘controversy’
between the two groups, decided that no forums were needed because the party was pursuing
its policy of democratic socialism. Report of the General Secretaries, June 1972-August 1973,
AICC, New Delhi, 1973, pp. 11-2.
Mrs Gandhi also let it be known that she regarded the CFSA ‘as dominated by former
Communists’. Dutt, Retreat from Socialism, p. 90.
 Indira Gandhi: In Context and In Power 191]

under a cabinet minister, who happened to be Indira Gandhi. This gave

her direct control over criminal investigations. The Central Bureau of
Investigation remains under the Prime Minister’s Office, after having
been returned briefly to the Home Ministry under Janata. Revenue intel-
ligence and the Directorate of Enforcement, both established under the
Foreign Exchange Regulation Act, were transferred from the Finance
Ministry to the PMS, according to one source, and to the Cabinet Secre-
tariat, according to another.*® Co-ordination of judicial appointments
was moved in 1971 from the Home Ministry to a new Department of
Justice in the Law Ministry—whose chief staff member nevertheless was
the Home Secretary. The legal community seems to have approved at
least the cosmetic degree of dissociation of judicial appointments from
the Home Ministry, and, within it, from the Intelligence Bureau.’49
Allin all, Mrs Gandhi’s ‘structural changes’, in the view of L. P. Singh,
‘ignored the salutory value of checks and balances within the system;
the changes were designed to remove any internal constraints, however
wisely conceived, on the exercise of the Prime Minister’s will.’°°
As Mrs Gandhi’s Principal Secretary from 1967 to 1973, P. N. Haksar’s
oversight of governmental affairs was as extensive as it was demanding.
Seen along with Mrs Gandhi as the embodiment of centralization, he
was correspondingly reviled. To inject energy and efficiency into
government and, as already mentioned, to bring ‘commitment’ to the
social-economic goals of the Constitution, he ‘took full charge of the
Secretariat and made it the main focus of power ... . He was soon
emerging as her main political adviser as well.’>!
Gujral,
48 To the Cabinet Secretariat: the Hindustan Times, 13 April 1977; to the PMS:
in Hindustan Times, 14 August 1987. Nirmal Mukarji,
I. K., ‘Emergence ofaPower Centre’
were never moved
Cabinet Secretary in the Janata government says the two revenue offices
were not moved
at all. (Mukarji in a letter to the author.) It may be that the organizations
but that the Prime Minister controlled their functioning.
process
49 Perhaps making for increased centralization of the judicial appointments
to the PMS about
under the rearrangement, a minister of state was said to report directly
Ajoy K., The Indian Cabinet: A Study in Governance,
them. Panandiker, V. A. Pai and Mehra,
New Delhi, 1996, p. 226. Given
Centre for Policy Research, Konark Publishers Pvt. Ltd.,
these may be subtleties with
Mrs Gandhi's final decision on the appointment of judges,
limited significance.
ct, Centre for Policy Research,
50 Singh, L. P., Office ofPrime Minister, Retrospect and Prospe |
New Delhi, 1995, p. 9.
‘even when presiding over his
51 Gujral, ‘Emerging Power Centre’. Gujral notes that
nce from the coterie around Sanjay Gandhi.
all-powerful secretariat’, Haksar kept his dista
tal contribution’ to the Congress
He ‘alone held the key’ and made a ‘monumen
sh, and the Simla Agreement. K. Natwar
split, the Indo-Soviet Treaty, the birth of Banglade
ar, p. 19.
Singh, ‘Foreword’ in Sarkar, Haks
 192 Working a Democratic Constitution

Haksar’s and the PMS’s authority relegated the Cabinet Secretariat

and its Secretary to near obscurity, the former having taken over the
latter's function as coordinator of cabinet business on its way to the Prime
Minister. This also greatly reduced the Cabinet Secretary’s responsibility—
if not his authority as the senior-most civil servant and head of the civil
service—for processing senior civil service appointments on their way to
the cabinet. Because both the Cabinet Secretary and the Principal
Secretary work directly for the Prime Minister, shifts of power between
the two offices are not necessarily consequential. But the Cabinet Secretary
has institutional, government-wide responsibilities not shared by the
Principal Secretary. Downgrading the Cabinet Secretary’s position was
part of Mrs Gandhi's personalization of power.
The Prime Minister’s Secretariat had become a ‘power centre’ that
‘the politicians, bureaucrats and ... industrial barons courted ... for fa-
vours and patronage,’ according to I.K. Gujral. It even decided about
‘the composition ofthe party high command’, he recalled.°? ‘The turn-
ing point’ toward this concentration of communication and power in
Mrs Gandhi's hands was 1967, according to all the individuals queried
by Panandiker and Mehra in their study of the cabinet.>? The ‘water-
shed’ was 1971, when the ‘Cabinet Secretariat was completely relegated
into insignificance and even ministers were subordinated to the PM’s
Secretariat’.°4
With her aggrandizement of authority so thorough, the Prime Minister
was hardly in a position to claim, although she often did so, that she was
a mere bystander to governmental and Congress Party developments. In
defence of Mrs Gandhi’s centralization of power, Professor P. N. Dhar,
who succeeded Haksar as her Principal Secretary in 1973, points out that
‘the concept of the collegiate system of the cabinet’ has been ‘obsolete’
even in England for more than a century. And he correctly points out,
ae that some characteristics of Indian culture foster centralization of
authority. (See chapter 31.) He adds that the Prime Minister and his or
her establishment in the future will have to make ‘a self-conscious effort’
against the tendency toward centralization.>

52 Gujral, ‘Emergence of aPower Centre’.

53 Panandiker and Mehra, The Indian Cabinet, p. 207,
54 Tbid. This was the view of one respondent, according to
the authors, but it has
been confirmed directly to the author by many others in interviews. The
study goes on to
say that after 1971 ‘all established political institutions were undermi
ned as she chose to
function through small cliques’. Ibid., pi 2238.
55 Dhar, P.N., ‘The Prime Minister’s Office’ in Sarkar, Haksar,
Our Times, pp. 48-61. As
Principal Secretary, Dhar was more the secretary and less the mover and
shaker than Haksar.
 Indira Gandhi: In Context and In Power 193
During her first several years as Prime Minister Mrs Gandh
i used
her ‘kitchen cabinet’ as advisors in competition with her counci
l of
ministers. I. K. Gujral, a sometime member of the kitchen cabinet
and
of the council of ministers, says that official papers were routed through
two kitchen cabinet members, himself and Dinesh Singh—a young
acolyte of Mrs Gandhi assigned to the Foreign Ministry—to bypass her
own secretariat.°° By the end of 1970, the ‘kitchen cabinet’ had fallen
from grace. Government was entering the period during which, according
to a recent study, Sanjay Gandhi and his caucus ‘had virtually hijacked
the goverment’ and real power shifted from the PMS to the ‘PMH’, the
Prime Minister’s house.°
Of Mrs Gandhi's circumstances, she was responsible for the three
most propitious. She had led the Congress to the two great election
victories of 1971 and 1972 and during the victory over Pakistan in
December 1971. The success of her policy in the war (which included
not invading West Pakistan after its December attacks on western India),
had elevated Mrs Gandhi to the level of ‘an omnipotent Mother
Goddess—who had protected her people and liberated another from
the forces of evil’.°8 But with India-Pakistan hostilities also had come
the ultimate in constitutional centralization, the second national
emergency, which her government continued in force for six years—
long after the conditions for which it was imposed had disappeared.
She already had reintroduced preventive detention in May 1971 with
the Maintenance of Internal Security Act (MISA). Justifying this law,
Minister of State for Home Affairs K. C. Pant said that security and
integrity had to be protected against foreigners and other ‘black sheep’
in the country.°? Opponents of the act thought it ‘the beginning of a
police raj’ and ‘the first step toward dictatorship’.©

56 Gujral, ‘Emergence of a Power Centre’.

57 Panandiker and Mehra, Indian Cabinet, p. 227.
58 Masani, Zareer, Indira Gandhi, a Biography, cited in Frankel, Political Economy, p. 461.
59 The CPI (Marxist-Leninist), or CPI (ML), had been formed in April 1969 and was
more Maoist than Leninist. Called ‘Naxalites’, from the region in Bengal where they
originated, their tactics included killing villagers and government officials. The party was
‘based on the theory of armed insurrection’, according to the Parliament's Consultative
Committee for the Ministry of Home Affairs. Brahmanand Papers, Subject File No. 40,
1969, NMML.
60 A. B. Vajpayee of the Jana Sangh in Motherland, a paper backed by the party, 17
June 1971. The Swatantra Party and the CPM also damned the law. .
The previous Preventive Detention Act had lapsed on 31 December 1969. Lacking
the votes of opposition parties upon which her government depended, Mrs Gandhi then
did not attempt to re-enact it. By 1973, the Home Ministry was urging chief ministers to
194 Working a Democratic Constitution
as she never had been,
Although politically secure from 1971 onwards
toward absolutism. Aware
Mrs Gandhi moved away from constitutionalism
believe that she had the ‘divine
of her people’s adoration, she came to
party and government
right of support’.°! Suspicious of the courtiers in
you are an
who surrounded her, her attitude was ‘if you oppose me,
party officials did
enemy’.©* As a result, ministers, chief ministers, and
ers were not political
not assert themselves. Opposition parties and lead
, power was her comfort,
opponents, but anti-national forces. Feeling alone
m one can go to
that and her two sons. ‘[T]here is hardly anybody to who
for a chance
talk or to ask advice—ulterior motives are attributed even
ng style was to
remark,’ she wrote to T. T. Krishnamachari.®’ Her ruli
indirection.
listen, keep her counsel, and act through others by hint and
She preferred to lead from behind.
rule of
In combination, these factors led to the virtually one-person
then
1971-7, during which her government first challenged and
chief
subverted constitutional democracy. Owing their elections to her,
to be
ministers depended on her continuing favour. And she appeared
hy
‘deliberately manipulating Congress factionalism to prevent a healt
in
consolidation of power in the states’.©4 Congress Party officials were
a similar situation, and she had fulsome supporters Shankar Dayal
Sharma and Dev Kanta Borooah elected party president at different times.

other economic
use the Maintenance of Internal Security Act against hoarders and
offenders.
61 Ashoka Mehta Oral History Transcript, NMML, p. 205.
62 Jagmohan in an interview with the author. Jagmohan’s assessment, although not
unusual, is particularly interesting because he continues to admire Indira and Sanjay
Gandhi with whom he worked closely on Delhi development from1975-7. According to
Jagmohan, Nehru forgave opposition, Indira Gandhi never did. ‘She was noi as
temperamental as Nehru,’ he said; ‘she kept it inside.’
63 Handwritten note dated 25 October 1965 in which she also thanks Krishnamachari
for sending her an attache case. T. T. Krishnamachari Papers, File Indira Gandhi, NMML.
Mrs Gandhi expressed a similar sentiment in a letter to Justice P. B. Gajendragadkar on 2
January 1977: ‘The sort of life I have led since childhood has not allowed me to have what
you call “a select circle of personal friends.”’ P. B. Gajendragadkar Papers, Subject File 1,
NMML.
64 Kochanek, Stanley A., ‘Mrs Gandhi’s Pyramid: the New Congress’, in Hart, Henry
C. (ed.), Indira Gandhi's India, Westview Press, Colorado, 1976, p. 111. The first quotation
is Kochanek citing Romesh Thapar; the second is Kochanek, himself.
See also Seshan, Three Prime Ministers, ch. 31.
The critiques of the over centralization of the federal system that had appeared
from time to time since 1950 were joined in 1971 by a serious study published by the
Tamil Nadu government usually referred to as the Rajamannar Report. (See ch. 28 and
other chapters in Part VI.)
 Indira Gandhi: In Context and In Power 195

Her domination of Congress members in Parliament, most of whom

also owed their seats to her political skills, evolved to the point described
by Sir Ivor Jennings:‘“The flexibility of the cabinet system allows the
Prime Minister to take upon himself a power not inferior to that of a
dictator, provided always that the House of Commons will stand by
him.”’©° The Lok Sabha barely objected to her aggrandizement of power,
and with her ministers subdued, constitutional power migrated from
the voter to his legislator to the council of ministers and then to the
Prime Minister. Mrs Gandhi had gone from vulnerability to the political
system to mastery of it. The consequences progressively would become
apparent.

dge University Press,

65 Jennings, Sir Ivor, Cabinet Government, 2nd edn., Cambri
g Lord Morley.
Cambridge, 1951, p. 166. Jennings was quotin
 Chapter 8

THE GOLAK NATH INHERITANCE

Held in disgrace by his Kuleen Brahmin family for having converted to

Christianity, Golak Nath Chaiterji left Bengal in the mid-nineteenth
century and walked across North India to the Punjab, where he joined
the Scottish American Presbyterian Mission in Jalandhar. There, he
became the first Indian in the country to be ordained as a Presbyterian
minister, and he married a Kashmiri girl at the mission. Among their
many children was Henry Golak Nath, who, after receiving his divinity
degree in 1879 from Princeton Theological Seminary in the United
States, returned to take his father’s place as a minister. Expanding
beyond the house and small plot of land given him by the mission,
Henry, with his brother William, bought up some five hundred acres of
farmland over the years. The dispute between the family and the Punjab
government over the disposition of this property went to the Supreme
Court to become the watershed Golak Nath case.!
Henry and William held the land jointly and, wanting to keep it in
the family in the face of the 1953 Punjab Security of Land Tenures Act,
deeded it to Henry’s son and daughter, Inder C. and Indira Golak Nath
and to Inder’s four daughters. But this went awry. The Collector for
Jalandhar held that Henry and his brother each could keep only thirty
acres, a few acres would go to tenants, and the rest was ‘surplus’. Years
later, after Henry’s death in 1962, aged 101, the Collector reversed his
earlier decision, allotting thirty acres to each of the six heirs and declaring
a smaller area to be surplus. His decision, in turn, was reversed by another
Collector in 1963. In May 1965, the Punjab Financial Commissioner in
Chandigarh, B. S. Grewal, restored an earlier decision, and declared 418
acres surplus. Inder Golak Nath and the other heirs, inheriting only thirty
acres, to be shared among them, challenged Grewal’s ruling in the Punjab
High Court in October 1965. Failing there, they took their cause to the

! The author is grateful to sometime Punjab civil servant Prem Kathpali

a, to Mrs Jaya
Thadani, a descendant of the family, and to E. N. Mangat
Rai, a family relative, for this
and other background—a piece of which is that Henry Golak Nath
wrote a book about
his father entitled Golak The Hero.
 The Golak Nath Inheritance 197
Supreme Court.” They filed a petition under Article 32 challenging the
1953 Punjab Act on the ground that it denied them their constitutional
rights to acquire and hold property and practice any profession (Articles
19(f) and (g)) and to equality before and equa! protection of the law
(Artucle 14). They also sought to have the Seventeenth Amendment—
which had placed the Punjab Act in the Ninth Schedule—-declared ultra
vires and the First and Fourth Amendments as well. Inheriting a history
of land reform legislation and judicial review of it going back to the
Consiitution’s inauguration and to the property amendments of 1951
and 1954, the Golak Naths gave their name to a law case that raised a
storm whose dust hung over the Constitution for six years.

Sowing the Wind

The Supreme Court, in its decision in the Golak Nath case on 27 F ebruary
1967, held that Parliament’s power to amend the Constitution could
not be used to abridge the Fundamental Rights, in part because an
amendment was deemed to be a ‘law’ under Article 13 which prohibited
Parliament from making any law abridging the Rights. Chief Justice Koka
Subba Rao, in his opinion for the majority, also invoked the concept of
implied limitations on the amending power. This precluded amendments
that would destroy a constitution—about which more below. Justices
Wanchoo, Bhargava, and Mitter dissented. They held that all parts of the
Constitution are subject to amendment, and that an amendmentis nota
‘law’ under Article 13. Delivering the opinion for himself and the other
two, Wanchoo also rejected the contention that certain portions of a
constitution could be too basic to be amended. Were this admitted, ‘it
would be only the courts which would have the power to decide what are
the basic features of the Constitution,’ and this would result in a ‘harvest
of legal wrangles’.°

2 To this point, the account is drawn from interviews and from a document signed by
B. S. Grewal (‘R. O. R. No. 1181 of 1963—-4—Sahan Singh, etc. v the Punjab State and
L. C. Golak Nath, etc.’). A copy of this document was obtained for the author from Punjab
state records by Prem Kathpalia. From here onward, the account is drawn from Merillat,
Land, pp. 235-6. | rs z
3 1.C. Golak Nath and Others, Petitioners v State ofPunjab and Another 1967 (2) SCR 763ff. Ae
On the bench were K. Subba Rao, K. N. Wanchoo, M. Hidayatullah,J.C. Shah, S. M. Sikri,
R. 5S. Bachawat, V. Ramaswami. J. M. Shelat, V. Bhargava, G. K. Mitter, and C. A. Vaidialingam.
Concurring with Subba Rao were Justices Shah, Sikri, Shelat, and Vaidialingam. Justice
Chief
Hidayatullah concurred on the operation of Article 13 to make up the majority.
Justice Subba Rao had been a Justice of Madras High Court and chief justice of the Andhra
High Court
198 Working a Democratic Constitution
The Court’s decision, which reversed precedents, was a masterpiece
of unintentional timing, for it gave Mrs Gandhi a cause and an enemy in
her quest for renewed power. Within several days of the decision, Congress
would learn of its serious losses in the general election, and she would
have to face election to continue as leader of the Congress Parliamentary
Party. Socialism in danger was her central political refrain, and it would
be her key to victory. Not only had the Supreme Court again, from her
viewpoint, shown its true colours but also Congress’s own devotion to
socialism had been shown flawed by the Dhebar Committee’s report on
the implementation of the democracy and socialism resolution (chapter
4), by Prime Minister Shastri’s allegedly anti-socialist reappraisal of the
government’s economic policy, and by the party’s own post-mortem
following the election defeats. The “Ten Point Programme’, announced
after the post-mortem, set the government on a collision course with the
judiciary, because its socialism could not be realized without modification
in the right to property. All of this she could turn to her personal advantage
as she out-manouvered the old guard by branding them anti-socialist.
Thus the Golak Nath case began the great war, as distinct from earlier
skirmishes, over parliamentary versus judicial supremacy. It gave fresh
life to the issue of property and the Constitution, which had min, and
would continue to run, insistently through decades of Indian politics.
Yet in a remarkable twist, the most significant element of the case
constitutionally would prove to be not the majority decision, but the

The opinion given by Subba Rao also contained the strange assertion that Parliament's
authority to amend the Constitution lay not in Article 368, which provided only the mechanism
for amendment, but in those articles giving the power to make laws. Hidayatullah disagreed
with Subba Rao on this remarkable interpretation of the Constitution and agreed with
Wanchoo that the amending power lay in Article 368. Ibid., p. 836.
That an amendment should be considered a ‘law’ within the meaning of Article 13
seems strange to the author: an amendment and an ordinary law, constitutionally speaking,
would seem to have superior and inferior status. N. A. Palkhivala argued strongly in
Golak Nath that an amendment was a ‘law’. When asked if this was merely a lawyerly
argument, he responded that he never put forward an argument in which he did not
believe. (Interview with the author.) That this issue—whether or not a constitutional
amendment was a ‘law’ under Article 13—apparently remained undecided, a legacy of
the Shankari Prasad and Sajjan Singh cases. In Shankari Prasad, though, the Court had
rejected the contention that an amendment was a law. See Merillat, Land, p. 242.
Representing the governmentin the case was Additional Solicitor General Niren
De, with assists from intervenors who included Mohan Kumaramangalam, then Advocate
General of Madras. Other Advocates General participated from states where landholders
had joined the Golak Naths in their suit. Lawyers for the Golak Naths were R. V. S. Mani
and others assisted by prominent intervenors, including N. A. Palkhivala, M. K. Nambiar,
A. K. Sen, and F. S, Nariman.
 The Golak Nath Inheritance 199

introduction in the hearings by the Golak Naths’ advocates, principally

M. K. Nambiar, of the ‘basic structure’ concept. Hoping to defend their
property interests by attacking the Seventeenth Amendment, they
asserted that the word ‘amendment’ implied an addition to the
Constitution that improves or better carries out its purpose and ‘cannot
be so construed as to enable the Parliament to destroy the permanent
character of the Constitution’.* Moreover, ‘the fundamental rights are a
part of the basic structure of the Constitution’, and the amending power
could be ‘exercised only to preserve rather than destroy the essence of
those rights’.°
The government of India argued from positions taken earlier,
establishing even more firmly the foundations for its arguments in later
great property cases. Constitutional amendments were made from
‘political necessity’, the government asserted, involving the exercise of
power to improve the lot of the citizen. Not being judicial questions,
they lay outside the court's jurisdiction. It was up to the petitioners,
government contended, to show that the Constitution could not be
amended in order to enferce the Directive Principles, something that |
had been done previously—a reference to the First, Fourth, and other
amendments. No implied limitations to the amending power could be
found in Article 368, ‘and if the amending power is restricted by implied
limitations, the Constitution itself might be destroyed by revolution.
Indeed it [the amending power] is a safety valve and an alternative for
a violent change by revolution,’ the government centended. Moreover,
all the Constitution’s provisions are basic.®
The Chief Justice from the beginning had been very much at the
centre of the Golak Nath case. Several senior advocates involved recalled
that when a five-judge bench held a hearing on admitting the heirs’
petition, he seized on it and said it should be heard by an eleven-judge
bench. Five-judge benches in Shankari Prasad and Sajjan Singh had
upheld Parliament’s power to amend the Fundamental Rights. Subba
Rao expressed his primary motivation in what came to be called ‘the
argument of fear’. For him, many of the freedoms in the Fundamental
Rights had been taken away or abridged since 1950. He characterized
the continuance in force of the national emergency of 1962—with its

4 A. K. Sen, now helping to represent the Golak Naths, had piloted the Seventeenth
Amendment in the Lok Sabha when he was the Law Minister.
5 From Chief Justice Subba Rao’s summary of the petitioners’ positions. 1967 (2) SCR
781.
6 Again, Chief Justice Subba Rao’s summation, ibid., p. 783.
 200 Working a Democratic Constitution
suspension of Fundamental Rights Articles 14, 19, 21, and 22—as
‘constitutional despotism’. Commenting on an earlier Supreme Court
decision that corporations were not legal ‘citizens’ and therefore were
not protected by the Rights, he said that citizens have ‘practically no
right to property against legislative action ...’.’ Subba Rao feared future
damage to the Rights: without Nehru, the ‘brute majority’, a term he
had been heard to use outside the Court, might change the quality of
one-party rule. Believing that a constitution is to be worked ‘and not
to be destroyed’, Subba Rao wanted to bring government under greater
judicial scrutiny, according to senior advocates familiar with his thinking.
It was in this vein that he reversed the precedents in Shankari Prasad
and Sajjan Singh—which, it will be recalled, upheld Parliament’s authority
to amend the constitution, including the Fundamental Rights.9 Justice
Hidayatullah shared some of Subba Rao’s fears. ‘I am apprehensive
that the erosion of the right to property may be practised against other
Fundamental Rights,’ he said. ‘Small inroads lead to larger inroads.’!®
Justice Wanchoo, on the other hand, found the ‘argument of fear’ a
political argument, not a legal argument. There could be no limitation

7 For this and other quotations here, see ‘Freedoms in Free India’, speech at Nagpur
University College of Law, 23 September 1967. AJR (1968), Journal Section, p. 21.
8 The Golak Nath decision was delivered just before the Congress lost
its ‘brute
majority’ in the 1967 general elections. Some have speculated that, had Congress
losses
been known, the Court might have ruled differently.
9 Shankar Prasad Deo v Union of India (1952) SCR 3, pp. 89ff; Sajjan Singh
v State of
Rajasthan 1965 (1) SCR 933ff, as cited earlier. The fivejudge
bench in the former case
unanimously had held that ‘law’ in Article 13 meant ordinary law.
Subba Rao’s anxieties over the future of parliamentary democracy
and the rule of
law were also probably fuelled by two developments: by the
government nationalizing
the Metal Box Corporation by ordinance in September 1966,
eight days after the Court
had struck down an act nationalizing the corporation, and
by the government's
proposing to include, via the Seventeenth Amendment, over
a hundred state land laws
in the Ninth Schedule without members of Parliament having
had the opportunity to
read them.
Subba Rao further clarified his views several years later.
The judiciary, he said, has to
decide ‘the permissible limits of the laws ofsocial control
’. And as to the government's
relations with thejudiciary, ‘Autocratic power finds the
judicial check irksome and seeks
to explain away its incompetency or neglect of duty
by posing an inflexible and
irreconcilable conflict between the fundamental rights
and directive principles.’ Address
to the Fundamental Rights Front on 30 August 1970.
Presidential Address and Other Papers
for the Convention, A. P. Jain, New Delhi, 1970, p.
13.
10 This is according to Setalvad in My Life, Law and
Other Things, N. M. Tripathi Pvt.
Ltd., Bombay, p. 587. But Hidayatullah also though
t the Court should recognize the
social and economic needs of the hour. And he
wondered if it had been a mistake to
include property in the Fundamental Rights. Ibid.
 The Golak Nath Inheritance 20]
on the power of amendment under Article 368 on the ground that the
power might be abused.
Subba Rao explained at length in his opinion that there were
limitations on the power of amendment in the Indian Constitution.
Specifically, the Fundamental Rights were entrenched, having been
‘given a transcendental position under our Constitution and are kept
beyond the reach of Parliament’.!! In support of this position, he cited
the views of Motilal and Jawaharlal Nehru and a variety of American
jurists.!* He also was influenced, according to senior advocates in the
case, by a German scholar, Dieter Conrad, who believed that written
constitutions have in them implied limitations on amendment and
judges should use these to protect the constitution. Conrad had given
a lecture in India in 1965 on the ‘Implied Limitations of the Amending
Power’, which M. K. Nambiar cited before the court.!°
The Chief Justice’s efforts to gain the majority he ultimately received
were helped by circumstance as well as by his forceful argument. At the
time, Justices Hidayatullah and Wanchoo were the only justices still on
the Court who had been on the bench two years earlier when the Court
had upheld the Seventeenth Amendment and Parliament’s power to
amend the Fundamental Rights in the Sajjan Singh case. Also, Justice
Vaidialingam was newly come to the court, and he and Subba Rao had
served in the same chambers as advocates before the Madras High
Court. To these advantages may be added his ‘enormous intellectual
influence with his fellow judges’.!4 Indeed, Subba Rao’s stature, plus
the quality of the Golak Naths’ advocates, aroused fears of defeat on the
government side. Law Minister P. Govinda Menon dispatched Law
Secretary R. S. Gae to ask M. C Setalvad’s counsel on the conduct of
the case and to sound him out about taking over the government’s
brief. Setalvad refused, explaining that he never entered a case while it
was in progress.!*

11 AIR 1967 SC 1656.

12 He also cited the assessment of Austin, Cornerstone.
13 Noorani, A. G., ‘The Supreme Court and Constitutional Amendments’ in Noorani,
A. G. (ed.), Public Law in India, Vikas Publishing House Pvt. Ltd., New Delhi 1982, pp.
278-9.
Conrad had said that it is the ‘duty of the jurist ... to anticipate extreme cases of
conflict’ between a legislature and ajudiciary in which thejudiciary would need to reject
an amendment as destroying a constitution. What, Conrad asked, if a two-thirds majority
of Parliament divided India into two states, Tamil Nadu and Hindustan? Ibid.
14 The view of several judges on the bench as recalled by senior advocates.
15 Setalvad, My Life, p. 583. Later, he would turn down a similar request from Mrs
Gandhi, relayed to him by M. C, Chagla.
 202 Working a Democratic Constitution

Subba Rao was aware that the position toward which the majority of
justices was moving would shake the foundations of seventeen years of
constitutional practice and call into question the validity of at least three
constitutional amendments and the constitutionality of the sixty-odd state
laws listed in the Ninth Schedule. So, rather than tossing out all this,
which would produce a ‘chaotic situation’, Subba Rao decided to exercise
‘judicial restraint’
.!®He found a saving device in ‘prospective over-ruling’:
the relevant, existing laws and amendments were deemed valid on the
basis of previous court decisions, but Parliament would have no power
‘from the date of this decision to amend any of the provisions of Part III
of the Constitution so as fo take away or abridge the fundamental rights
enshrined therein’.!7

Reaping the Whirlwind

Subba Rao, it was said more often than not, had gone too far. In his
determination to save the Constitution he had provoked what he intended
to prevent: increased parliamentary authority to amend the Constitution
and a Parliament strengthened at the expense of the Supreme Court.
Five weeks after he had handed down the decision, Samyukta Socialist
Party (SSP) member of Parliament Nath Pai introduced a private
member's bill for easy amendment of the Constitution. Because of
government caution, it ultimately failed to pass, but it was the foundation
for the Twenty-fourth Amendment, which, depending on one’s point of
view, would give or restore
to Parliament unfettered authority to amend
the Constitution, including its repeal. Subba Rao further fuelled the
reaction against the Golak Nath decision by resigning as Chief Justice on
11 April 1967 to run for president of India, evoking allegations that this
proved his alliance with property interests, which Swatantra Party support
for his candidacy did nothing to refute.!8

16 In his opinion in Golak Nath. AIR 1967 SC 1669,

\7 Tbid. Subba Rao attributed this ‘doctrine’ to American jurists. He cited Benjamin
Cardozo and George F. Canfield among others. Canfield: ‘““A Court should recognize
a
duty to announce a new and better rule for future transactions whenever the
court has
reached the conviction that an old rule ... is unsound even though feeling compelle
d by
stare decisis to apply the old and condemned rule to the instance case and
to transactions
which had already taken place.”’ Ibid., p. 1666.
18 M. C. Setalvad spoke for many when he issued a statement to the
press calling
Subba Rao’s joining politics a ‘grave impropriety’, particularly because
he apparently
had agreed, to be the Opposition’s candidate while still Chief Justice.
Subba Rao lost to
Zakir Hussain, who became President on 13 May. Setalvad, My
Life, pp. 593-4, Justice
Wanchoo became Chief Justice upon Subba Rao’s resignation,
 The Golak Nath Inheritance 203

Nath Pai’s bill said simply that Parliament could amend ‘any provision’
of the Constitution. He made his purpose clear in the formal ‘Statement
of Objects and Reasons’ accompanying the bill and repeated this in his
introductory speech. The amendment of the Fundamental Rights was
an issue ‘of cardinal importance to the supremacy of Parliament’,
especially due to the confusion created by the Golak Nath decision.
Just as Parliament can extend these rights, ‘it can in special circumstances
also modify them. The bill seeks to assert this 19 The bill raised
constitutional issues as elemental as the Supreme Court judgement.
Parliament and the public debated them intensely and soberly during
the following two years. Those favouring the bill thought it timely and
necessary to permit forward movement on social-economic issues. Those
opposing it thought it a ‘disastrous’ amendment because it ‘tends to
snuff out democracy’. The Swatantra Party did not wish even to be
represented on the Joint Committee of both Houses that was formed to
consider the bill, although Nath Pai wanted to have ‘the benefit of their
disagreements’. ‘We do not want to have anything to do with it,’ said
Minoo Masani. The Jana Sangh also refused to join the committee, and
its parliamentary leader, Atal Bihari Vajpayee (later Prime Minister of
India), said the republic would be strengthened by the verdict of the
Supreme Court.
The most vehement objections came from Nath Pai’s parliamentary
socialist colleagues, Rammanohar Lohia and Madhu Limaye. Lohia’s were
prescient, as time would tell. ‘All the Nath Pai bill needs is “We hereby
resolve that this Constitution be suspended and in its place ...”’ he said,
going on to cite Article 48 in the Weimar Constitution, which allowed for
that constitution’s suspension. Under this article, Hitler had the Reichstag

Editorial reaction in the press to Golak Nath was extensive and mixed. The common
sentiment was that the Fundamental Rights were sacred, and thus the ‘ruling party with
the aid of a brute majority’ could not ram through constitutional amendments (Hindustan
n’
Times, 1 March 1967) and that the decision introduced a ‘rigidity in the Constitutio
that might be unwise. Statesman, New Delhi, 1 March 1967.
col. 4223.
19 Speech of 9 June 1967. Lok Sabha Debates Fourth Series, vol. 4, no. 14,
Parliament since
The Nath Pai Bill was No. 10 of 1967, dated 7 April 1967. A member of
Pai had a lifetime’s
1957 and a sometime advocate in the Bombay High Court, Nath
England, he had organized the Indian
involvement in socialist issues. While studying in
supporte d adding ‘the right to
Socialist Group in 1950. Later, an active trade unionist, he
wrote of his ‘bewitchi ng
work’ to the Fundamental Rights. Fellow socialist Prem Bhasin
socialism’. Bhasin, Prem,
smile’, ‘transparent sincerity’, and ‘undying faith in democratic
‘The Deathly Drama’, Janata, Annual Number, 1971, pp. 5ff.
member’s bill calling
Several weeks earlier, MP Yashpal Singh introduced a private
the Fundam ental Rights.
for ratification by the states of any amendment to
 204 Working a Democratic Constitution

pass the so-called ‘Enabling Law’, or the ‘Law for Removing: the Distress
of People and Reich’, the constitutional foundation upon which he based
his dictatorship.2? The socialists and communists in India could suffer
the ‘catastrophe’ of those in Germany, said Lohia, who had received his
doctorate from Berlin University in 1933, and he asked Nath Pai to
withdraw his bill. With equal fervour, Limaye asserted that ‘no parliament
or assembly in any country has the right to change the basic pri nciples of
the country and the Constitution because we all work within the ambit of
the Constitution.’ Parliament ‘cannot snatch away the rights of the
common people’. Both Lohia and Limaye favoured removing property
from the Fundamental Rights in order to protect the other rights, and
Limaye thought the Supreme Court had opened the door for this.?!
The governmentliked Nath Pai’s bill but treated it cautiously. Although
it was not an Official bill sponsored by the government, Law Minister
Govinda Menon called itimportant and moved that it go to a Joint Select
Committee to be considered in ‘a very cool atmosphere’. The Supreme
Court had ruled that Parliament could not amend the Fundamental
Rights, Menon said, but it did not say that Parliament could not amend
the amending article. The government would quietly support the bill
over many months without finding a propitious moment to push it
through. Deputy Prime Minister Morarji Desai told Madhu Limaye that
‘““We would have liked to move such a bill ourselves, but Nath Pai got
there first, and we decided to support it.” ’22
Public debate over first principles resulting from the linkage of the
Golak Nath decision and the Nath Pai Bill was exemplified by the ‘First

20 Lok Sabha Debates, Fourth Series, vol. 7, no. 45, cols. 13795ff, 21 July 1967. After
five
widely spaced days of debate, the bill went to a Joint Commit
tee of Parliament on 4
August 1967.
Lohia spoke on this occasion in Hindi, as he typically did.
The translation was made
for the author by Girdhar Rathi of thCentre for the Study
Amy Delhi. This applies also to the speeches of Limaye and
of Developing Societies, New
Vajpayee cited here. An English
version of Lohia’s speech appeared in Mankind, August
-September 1971, pp. 49ff.
A year prior to the Nath Pai bill, the SSP resolved to seek
an amendment ‘to facilitate
rapid social change [and] democratization of the
political and economic structure ...’,
Second Annual Conference in Kotah, 5 April 1966.
AR, 14-20 May 1966, p. 7076.
Allan Bullock in his Hitler: A Study in Tyranny descri
bes the enactment, and Hitler's
subsequent use of, this law. Bantam Books,
New York, 1958, pp. 114-17.
21 Lohia would die in October 1967 while the
Joint Committee was considering the
bill. Limaye would continue to fight it. At this
time, frustration with Congress rule again
had created strange bedfellows. Nath Pai, Limay
e, Minoo Masani of the Swatantra Party
and CPI members A. K. Gopalan, Bhupesh Gupta
, and H.N, Mukherjee signed an appeal
for the election of Subba Rao as President.
22 Limaye interview with the author.
 The Golak Nath Inheritance 205

Convention on the Constitution’ held in August 1967. The topic was

‘Fundamental Rights and Constitutional Amendment’. Nath Pai,
himself, was among the panelists.*? Opening the session, Justice
Hidayatullah reviewed the findings in Golak Nath and repeated his
earlier assertion that ‘it was a mistake’ to have property as a Fundamental
Right. He also pointed out that Parliament’s power to amend the
Constitution was not utterly sovereign, for half the state legislatures must
ratify certain classes of amendments.*4 M. C. Setalvad characterized
‘prospective over-ruling’ as the Court speaking ‘with two voices’. And he
empioyed arithmetic that others would adopt. He added the opinions of
judges in a variety of earlier cases as to whether Article 368 contained a
comprehensive power of amendment. He arrived at thirteen for
comprehensive powers as against six who had held to the contrary. Later,
others would use such a figuring to support bad law. Former Supreme
Court Justice S. K. Das told the convention that he thought the Court
should reconsider Golak Nath and measure future decisions against the
intentions of the Preamble: would a ruling foster or impede the growth
of the nation and secure social, economic, and political justice? Surely
all rights are not fundamental in the same sense, Das said, nor is property
‘an absolute right’.2° Acharya Kripalani, member of the Constituent
Assembly and sometime Congress president, concentrated on the ‘moral
aspect’ of the situation. It was a fallacy, he said, to equate the people with
Parliament and parliamentary government with majority government—
Hitler had come to power on a majority vote. Property should not be in oe °
the Rights, but ‘certain rights cannot be left at the mercy of the majority’.2°
Mohan Kumaramangalam pvt the matter in the context of the
Fundamental Rights versus the Directive Principles, presaging his support
for the Twenty-fifth Amendment four years later. The Directive Principles

23 The author regrets that space limitations necessitate the omission of the details of
these sober deliberations.
The Convention’s proceedings were published as Fundamental Rights and Constitutional “A
Amendment, Singhvi, L. M., general editor, Institute of Constitutional and Parliamentary
Studies (ICPS), New Delhi, 1971. Citations here are from this volume. This work is not to
be confused with a separate volume, referred to below, also published by ICPS and entitled,
Parliament and Constitutional Amendment, Singhvi, L. M. (ed.), ICPS, 1970. It was published
a year earlier, although recording an event that took place after the August 1967
convention. See footnote 34.
24 Late in 1968, the press reported Hidayatullah as saying that property might be
taken from the Fundamental Rights, but let us do it ‘in a constitutional way’. AR, 22-8
January 1969, p. 8730.
25 Singhvi, Fundamental Rights, pp. 190ff.
26 Tbid., p. 196
 206 Working a Democratic Constitution

cannot be implemented without taking away at least some of the

Fundamental Rights, he said. Justice Subba Rao evades the issue when
he says they can.27
N. C. Chatterjee, the eminent lawyer of property cases in the 1950s,
civil rights leader, and in many ways conservative, supported the Nath
Pai Bill. Referring to his defence of the West Bengal government’s
acquisition of land for the resettlement of refugees, which the Supreme
Court had ruled unconstitutional in the Bela Banerjee case, Chatterjee
quoted Thomas Paine and Nehru that no constitution can bind posterity
for all time. Justice Subba Rao’s ‘basic error’ was that he had ignored
the distinction between constituent and legislative power. Chatterjee
said that he recently had recommended to President Radhakrishnan
that he seek an advisory opinion from the Supreme Court to obtain a
‘final and authoritative clarification’ of the issues raised in Golak Nath.28
The President, however, never requested such an advisory opinion, one
assumes because the government did not want the Court to reaffirm
the position taken in Golak Nath.
Parliament’s
Joint Committee on the Constitution (Amendment) Bill,
1967 presented its report on Nath Pai’s bill a year later, on 22 July 1968,
after taking much testimony, fifteen meetings, and many deadlines
postponed.”? Its recommendations surprised many, and opposition views

27 Ina chapter, ‘The Amending Power and Parts III and IV of the Constitution’ in
ibid., pp. 85-91.
28 Chatterjee had earlier written to the President asking for a Supreme Court clarificat
ion
on machinery for future amendment of the Rights. Hindustan Times, 4 March 1967.

|
The press also reported that K. M. Munshi praised the Golak Nath ruling,
said that
he would ‘never have dreamt’ when the Constituent Assembly adopted the
Fundamental
Rights that they could be ‘at the mercy of Parliament’. Hindustan Times, 5
March 1967. C.
Rajagopalachari wrote that the people of India should congratulate themselv
es on having
a Supreme Court that protected their constitutional rights and for not giving
the Congress
a majority in the February elections, which ‘would enable it to touch
the Constitution in
its vital part ...’. Hindustan Times, 3 August 1967.
29 Testimony came from ten individuals, thirty-five memoranda were
received from
institutions and organizations such as high courts, state governm
ents, chambers of
commerce, and bar councils. Among the persons were K.
Santhanam, K. M. Munshi, N.
A. Palkhivala, who opposed. the bill; H. M. Seervai, M.
C. Setalvad, and S. Mohan
Kumaramangalam, by then the ex-Advocate General of Madras,
who supported it. Piloo
Mody of the Swatantra Party and Acharya Kripalani later
claimed that they were never
called to appear before the Joint Committee, although they
had requested the opportunity
to do so.
The Committee published a volume of evidence in
December 1967 and, in May
1968, a ‘Statement Containing a Gist of Main Points
Made by Witnesses in their Evidence
before the committee’. Lok Sabha Secretariat, New Delhi,
1968.
 The Golak Nath Inheritance 207

made an impact in a Parliament shorn of Congress dominance. Com-

mittee members not only opposed Nath Pai’s position but wished to
give the Fundamental Rights fresh protections without being as rigid
as the entrenchment envisaged in Golak Nath. They would have made
amendments to the Rights subject to ratification by half the states, ‘due
to the importance of Fundamental Rights’. Additionally, the members
overcame several of che oddities in Subba Rao’s ruling by recommend-
ing the exclusion of amendments from the reach of Article 13 and by
making it clear that Article 368 dealt with both the substantive and
procedural aspects of amendment.*?
The debate on the bill, which resumed on 15 November 1968,
demonstrated that the Joint Committee’s restrained position held sway
in Parliament. Although the Prime Minister and the cabinet did not
accept the Joint Select Committee report and held to Nath Pai’s original
position,*! within the Congress Parliamentary Party opposition to the
bill was growing in part because of a failure of communication between
the cabinet and the CPP. There were threats to disobey a Whip, were
one issued. The Statesman reported that S. N. Mishra, deputy leader of
the Parliamentary Party, urged the government to refrain from pressing —
the bill. The combination of Congress dissenters, SSP, Swatantra, and
Jana Sangh votes appeared unbeatable, and in December action on
the bill was postponed.°” ‘(I]t really beats me’ why after a year we can't
make up our mind, complained H. N. Mukherjee when the bill came
up again in February 1969. Law Minister Govinda Menon responded
that the government’s position remained that ‘Parliament should have
the power to amend the Constitution including Part III thereof,’ but
the government wanted a second look at the bill due to the Joint
Committee’s report being ‘materially different’ from Nath Pai’s original
bill.23 On 14 May 1969, the Speaker announced that it had been
Bill
30 Report of the Joint Committee of the Lok Sabha on The Constitution (Amendment)
1967, Lok Sabha Secretariat, New Delhi, p. vii.
31 |. K. Gujral, then Minister of State for Parliamentary Affairs, in an interview with
the author.
32 Merillat, Land, pp. 282-6.
On 13
33 Menon’s caution was based also on a recent Supreme Court judgement.
ation for property |
January 1969, the Court had held, in the Mangaldas case, that compens
that it was not just
acquired by the state could not be challenged ‘on the indefinite plea’
t of the Fourth Amendme nt, compens ation was not
or fair and that, since the enactmen
of the law and the
justiciable if the process determining the amount met the conditions
that the Supreme Court in.
compensation was not ‘jllusory’. Many persons believed
Nath, but, according to H. M.
Mangaldas had moved a considerable distance from Golak
Court's decisions in the Bank
Seervai, this assessment shortly was nullified by the
Nationalization and Privy Purses cases (ch. 9).
 208 Working a Democratic Constitution
proposed to hold the bill over until the next session. Perhaps they would
then ‘have a better atmosphere’ in which to discuss it. The Minister for
Parliamentary Affairs agreed and suggested that thought should be given
to referring the bill to a ‘fresh joint committee’. Nath Pai and others
pressed for debate to begin at once. One member called recommittal
of the bill an ‘indecent’ way to deal with the House; another said this
flaunted ‘all parliamentary proprieties’. Although the Lok Sabha was
deeply divided, the government carried a vote to adjourn discussion
184 to 39.54
Many of those opposing recommittal of the bill apparently did so
because—opposing its substance—they believed they could defeat it.
Many among the parliamentary supremacists favoured recommittal,
apparently hoping to keep the bill alive. Mrs Gandhi chose postponing
further consideration of the bill because she wished neither to risk its
defeat on the floor nor a reaffirmation of the Joint Committee’s
recommendations by another committee.*° ‘It was not from lack of
desire that Mrs Gandhi did not back Nath Pai’s bill. She wanted to curb
the judiciary.’°© Her opportunity to do so through unfettered
parliamentary power of amendment would come after the Congress
regained its majority in the 197] elections.

On the bench were four justices who had been on the Golak Nath bench:
Hidayatullah,
by this time Chief Justice, Ramaswami, Mitter, and Shah. The
fifth justice, A. N. Grover,
appointed from the Punjab High Court, had been on the court
fora year. State of Gujarat
v Shantilal Mangaldas AIR 1969 SC 634.
34 Golak Nath had been unpopular and parliamentary
sovereignty popular in a
‘Round Table’ discussion on constitutional amendment and
fundamental rights in March.
However, none of those supporting Nath Pai quarrelled
with the idea of amendments to
the Fundamental Rights requiring ratification by half the
states. Property as a fundamental
Aright had few friends. There was some unrealistic talk
of resorting to a referendum ora
new constituent assembly if the mutual incompatibility
of Golak Nath and ‘Nath Pai’
persisted.
The proceedings of the ‘Round Table’ were published
in Singhvi, L. M. (ed.),
Parliament and Constitutional Amendment, ICPS, New
Delhi, 1970.
35 The PSP attributed the bill’s ‘tortuous’ history in
Parliament to the ‘divided mind’
of the Congress. General Secretary's Report to the 10th
National Conference of the Praja
Socialist Party, PSP, Bombay, 1970.
36 S. L. Shakdher, former Secretary General of
the Lok Sabha, in an interview with
the author.
 Chapter 9

TWO CATALYTIC DEFEATS

Exercised though the Prime Minister and her government were over
the Golak Nath decision and their inability to overcome it through the
Nath Pai Bill, two subsequent Supreme Court decisions challenged the
government even more sharply: the Bank Nationalization case (also
called Cooper’s case) and the Privy Purses case (also called the Princes
case or Madhav Rao Scindia’s case). Rights to property were at the heart
of both. The government was also stung, in the privy purses matter, by
the failure of its constitution-amending bill. These defeats, cumulative
with Golak Nath, were the direct progenitors of three amendments.
The government’s framing of these amendments reveals much about
its internal processes, including their constitutionality.
Social revolutionary aims and personal ambitions again were in
collision with the distribution of powers in the Constitution. Nationalizing
banks and ending the privy purses of rulers of the former princely states
were populist tools in Indira Gandhi’s battle for dominance and in young
Congress activists’ scramble for influence. Expanded rural credit also
was a genuine issue for national economic development. For farmers,
especially small farmers, to get loans, either the banks would have to
change their policies or the government would have to take them over
and carry out those changes. Whether policy was driven by personality
or substance, relations among the branches of government and between
the government and the Congress Party would be strained. This chapter
will recount the history of the banks and privy purses issues. The
following chapter will discuss the constitutional amendments they
produced.

Bank Nationalization
Nationalizing banks was a desire with a long history. Legislation affecting
banking dated from the Indian Companies Act of 1913. In 1934, the
newly formed Congress Socialist Party called for the nationalization of
certain industries and mentioned banking specifically. The Socialist
Party did so in 1947. The most definitive early statement came in 1948
 210 Working a Democratic Constitution
when the AICC’s Economic Programme Committee, chaired by Nehru,
said in its unanimous report that ‘All resources available for investment
should be subject to the control and direction of the State. The states
should set up a Finance Corporation for financing industries. Banking
and Insurance should be nationalised.’! Finance Minister Shanmukham
Chetty wanted to nationalize the Imperial Bank that year, but dropped
the idea when Sardar Patel persuaded him to do so upon the suggestion
of C. D. Deshmukh, then the governor of the Reserve Bank.? The
Reserve Bank itself was nationalized in January 1949—Deshmukh had
begun drafting the papers in secret in August 1947. The Banking
Companies Act of 1949 ‘tamed’ the banks, in the word of one observer,
but this had to do with certain bank practices and not with the wider
extension of credit. A Socialist Party pamphlet of 1951 called for
nationalization—as did Jayaprakash Narayan in his correspondence with
Nehru in 1953, as part of the ‘Fourteen Points’.
Parliament nationalized the Imperial Bank during its monsoon
session of 1953, making it the State Bank of India, and thereby giving the
government control of about one-third of commercial banking in the
country. C. D. Deshmukh, prime mover in the nationalization, had
thought the time ‘ripe’ for it because some ‘socialist pattern measures’
had already been enacted. He would later call the State Bank ‘a lead
bank in the world of India’s nationalized banking’.* Nehru advocated
insurance and bank nationalization again three years later, but cautiously.
‘You may have to take them over,’ he said, although ‘when you nationalise,
you have to pay compensation.”* P. B. Gajendragadkar, later to become

! Report of the Economic Programme Committee, AICC, 1948, p. 21. The same year, peasant
leader N. G. Ranga recommended nationalization specifically to provide rural credit.
2 Deshmukh, C. D., The Course of My Life, Orient Longman, New Delhi, 1974, p. 155.
3 In 1972. Ibid., p- 215. T. T. Krishnamachari, Minister of Commerce and Industry
and later Minister of Finance, had written to Deshmukh that he wished to see a
‘shift’ in
the bank’s management both to avoid ‘straightforward nationalization’ and to
end the
situation in which the bank ‘has been deliberately used not merely to discrimin
ate in
favour of European companies but also to strangle Indian business all
these years’. Letter
from Krishnamachari to Deshmukh, 19 October 1952. T. T. Krishnam
achari Papers,
Subject File 7, pp. 2-7, NMML.
Prime Minister Nehru wrote to Krishnamachari in July 1953 that he had
‘long been
of the opinion’ that insurance as well as banking should be made
state concerns. He
thought that progress toward nationalizing the Imperial Bank
‘was rather slow’. Letter
dated 24 July 1953. T. T. Krishnamachari Papers, Jawaharlal Nehru
File, 1953.
The banks of former princely states such as Hyderabad,
Mysore, and Travancore
were nationalized during the next few years.
4 Speech of 7 January 1956 to the Planning Commission,
Raj Bahadur Papers, PMA.
 Two Catalytic Defeats 211

Chief Justice of India, in his Foreword to the Bank Commission Award of

the fifties, wrote that in the context of a socialistic pattern of society banks
should recognize the necessity of affording credit to rural areas.”
More vigorous advocacy of bank nationalization came in Parliament
in 1963 and at the Congress annual session in January 1964 at
Bhubaneshwar, which adopted the famous ‘Democracy and Socialism’
resolution. Ms Subhadra Joshi and Raghunatha Reddy of the Congress
Forum for Socialist Action spoke out. Joshi moved a motion in the Lok
Sabha calling for bank nationalization ‘in order to mobilize the national
resources’ in the aftermath of the India—China war. Reddy, moved a non-
official resolution in the Rajya Sabha to nationalize fourteen banks. He
based his case on Article 39 of the Directive Principles (the ownership
and control of the material resources of the community should be
distributed so as to serve the common good, and that the operation of
the economic system should not detrimentally concentrate wealth and
the means of production).° T. T. Krishnamachari, by then Finance
Minister, opposed Joshi’s resolution and it was voted down. Reddy’s
resolution evoked lengthier debate. The government spokeswoman,
Deputy Minister of Finance Tarkeshwari Sinha, opposed it principally on
the ground that the compensation necessary would be better used to
stimulate the economy. Although Nehru agreed with the spirit of the
resolution, he sought its withdrawal, fearing that he might not have
enough votes in the Parliamentary Party to defeat it. He approached
Arjun Arora, another CFSA member, who went to Reddy with the plea
for withdrawal. Reddy agreed not to push his resolution, saying that
voices had been raised stronger than the hands raised.’ To the
disappointment of Krishna Menon and K. D. Malaviya, the ‘Democracy
and Socialism’ resolution did not mention bank nationalization. Menon
protested, and Malaviya submitted his own five-page ‘Democracy and

5 Gajendragadkar, The Best of My Memory, p. 312.

6 Parliamentary Debates, Rajya Sabha, vol. 45, no. 5, cols. 888-9.
private
Reddy quoted Franklin Roosevelt, ‘ “liberty ... is not safe if ... the growth of
and Harold Ickes,
power ... becomes stronger than the democratic state itself ...,"’
over-con centrati on
Roosevelt’s Secretary of the Interior, that Jefferson had fought ‘“the
of wealth and power in a few hands ...”’.
45, nos. BD, 1D,
7 For debates in Parliament, see Parliamentary Debates, Rajya Sabha, vol.
7081; vol. 17, no. 41, cols.
and 16. Lok Sabha Debates, Third Series, vol. 16, no. 31, col.
on to nationalize the banks was
9567-92: and vol. 20, no. 19, cols. 4905~21. The resoluti
defeated on 6 September 1963.
s is drawn from the author's
The account of the Nehru-Reddy-Arora conversation
interview with Reddy.
l of banks, short of outright
At this time, Krishnamachari favoured government contro
to the author.
nationalization. P. B. Venkatasubramanian in a letter
 212 Working a Democratic Constitution
Socialism’ resolution, which claimed that the people demanded bank
nationalization, greater government control of the ‘commanding
heights’ of the economy, and state wholesale trading in foodgrains.®
The bank nationalization debate intensified from 1967. Some
proponents put forth economic justifications; among these, a few
focused on agricultural credit. Others seemed primarily moved by
doctrine: government simply must control the economy. Among the
nationalizers at the June 1967 AICC meeting in Delhi were Chavan,
Syndicate members Atulya Ghosh and K. Kamaraj and K. D. Malaviya
and several other CFSA members.?
Social control of banks was the Congress’s official position, espoused
at Delhi and at the Jabalpur AICC meeting in October by Morarji Desai
and Mrs Gandhi, who assured the meeting that the banks would have
only two years to improve their performance.!° Desai’s rationale
consistently was that more credit could be made available through social
control of all banks than by nationalizing six, as Kamaraj and others
recommended. Government could control bank policies without having
to pay some rupees eighty-five crore to acquire them, said Desai.!! Late

8 Malaviya, K. D., ‘Democracy and Socialism: Draft Resolution for the 68th Session
of
the Indian National Congress at Bhubaneshwar’. No publication information.
The Maharashtra, Assam, and Punjab Pradesh Congress Committees, a District
Congress
Committee in Bombay, and minor members of the AICC also submitte
d memoranda
supporting these views to the Bhubaneshwar session. Malaviya
, K. D., Socialist Ideology of
Congress, a Study in Its Evolution, A Socialist Congressman Publication,
New Delhi, 1966.
° Malaviya later wrote, ‘I think the basic expositions of Karl Marx are
still relevant in
India and would help us a lot in our search for a path to
Socialism.’ Socialist India,
Independence Day Number, 1971, p. 20.
10 The party's official policy had been expressed in the ‘post-m
ortem’s’ Ten—Point
Programme, as seen in ch. 7. In a circular letter dated 4 November
1967 to chief ministers,
General Secretary Sadiq Ali said that bankers would have to
accept ‘the new social control’
or face takeover by the government. Zaidi, Directives of the
Congress High Command, p. 155.
I. K. Gujral drafted Mrs Gandhi's Jabalpur speech favour
ing social control over
nationalization. (Gujral in an interview with the author.) For
a description of the meetings,
see Report of the General Secretaries, February 1 966—Ja
nuary 1968, AICC, New Delhi.
Constituent Assembly member Renuka Ray, present at
Jabalpur, said that eloquent
speeches about bank nationalization reminded her
of the early days, when it often was
thought that enactment of legislation would bring about
changes ‘without further effort’.
She wondered if ‘mantra-like repetition ... [would
] be sufficient to deliver the goods’.
Her article for the Indian News and Features Allianc
e, 20 November 1967. Renuka Ray
Papers, PMA.
1 Desai, Morarji, ‘Growing Faces of Disruption and
Dictatorship’ in Souvenir AICC
Session, Lucknow, 5~6 December 1970, AICC (Congress—
O), New Delhi, 1970. A young official
in the Finance Ministry produced a memorandum that
year saying that a policy should
not be devised after the fact to justify nationalizat
ion, which, if it took place, should
 Two Catalytic Defeats 213

in 1968, Desai took the concrete step of putting social control into law
through the Banking Laws (Amendment) Act, 1968. This provided ‘for
the extension of social control over banks’, in part by laying down that
fifty-one per cent of a bank’s directors should come from agriculture,
the rural economy, and small-scale industry. The government might
acquire a bank, after consultation with the Reserve Bank of India, if it
did not follow certain policies, including the better provision of credit.!?
Commending the bill on the floor of the Lok Sabha, Morarji Desai—
who had nationalized bus transportation in Bombay when Chief Minister
there—spoke of the need to give ‘small-scale industries, agriculture and
other sectors of our economic life’ more influence in credit decisions
and of the need to snap ‘the link between a few industrial houses and
banks’.!3 As government policy, social control had a very short life. The
Congress plenary session in Faridabad in the spring, followed by the AICC
and Working Committee meetings in Bangalore—along with Mrs
Gandhi’s Stray Thoughts memorandum thereto—presaged its demise.
It is uncertain exactly when after Bangalore Mrs Gandhi took the twin
decisions to attack the old guard through Morarji Desai and to cloak his
departure.with a matter of economic policy. But as the decision to oust
Desai was developing, schemes for bank nationalization orbited around
the Prime Minister. Raghunatha Reddy submitted a paper reviving his
plan to nationalize fourteen banks. Chandra Shekhar did likewise—the
memorandum likely prepared by a young economist-follower, S. K. Goyal.
P. N. Haksar had ‘the whole thing prepared’.!4 The advice of various
individuals was solicited: L. K. Jha, Reserve Bank governor and Mrs
Gandhi's former Principal Secretary, summoned from Bombay; I. G. Patel,

follow an established policy and proper planning. At Desai’s suggestion, he mentioned

this to Mrs Gandhi, who seemed disinterested. The young official, V. A. Pai Panandiker,
in an interview with the author.
12 Section 21 of part IIC, the Banking Laws (Amendment) Act, 1968—No. 58 of 1968.
13 ‘Statement by the Deputy Prime Minister and Minister of Finance on Social Control
Over Commercial Banks’, 14 December 1968. Statements Laid on the Table of Lok Sabha,
Parliament Library, New Delhi, 1968.
Haksar thought ‘Morarji Desai’s social control was meaningless’, and he snorted at
the ‘vaporous ideologies’, the lack of practical experience, and the ‘bookish socialism’ of
author.)
Young Turks like Dharia and Kant. (Haksar’s view in an interview with the
14 Pupul Jayakar interview with the author, based on her own interview with L. K.
Jha. Chandra Shekar’s paper from an interview with S. K. Goyal. Raghunatha Reddy’s
R. C. Dutt
paper, sometimes described as a draft ordinace, from Reddy himself, and from
in interviews with the author.
ists
Haksar distinguished between ‘rapacious and bucaneering’ bankers and industrial
and Kirloskar. Interview
and brilliant, constructive industrialists like Tata, Godrej, Birla,
with the author.
 214 Working a Democratic Constitution

formerly with the Reserve Bank and now Secretary of Economic Affairs;
Pitambar Pant from the Planning Commission; T. A. Pai from the
Syndicate Bank; and P. N. Dhar, from Delhi’s Institute of Economic
Growth, who, an eyewitness said, spent five hours with the Prime Minister.
One of the questions directed at Dhar and Pai was whether nationalizing
six banks was enough.!°
On 17July, bank nationalization was still up in the air, although Morarji
Desai had been relieved of office the previous day. The Law Ministry
issued a statement saying that ‘“No proposal regarding nationalization
of banks has been made to the ministry for consideration ... [H]ence ...
promulgation of an ordinance ... does not arise for the present.” ’!© But
time was pressing. If there were to be an ordinance, it had to be promul-
gated within four days—before Parliament resumed sitting on 21 July.
Early in the evening of 18 July, the senior drafting officer in the Law
Ministry’s Legislative Department, S. K. Maitra, was summoned to the
Prime Minister’s Secretariat. When told he had an extremely secret
assignment, to draft an ordinance nationalizing banks, he protested that
he could not depart from normal procedures and act on oral instructions
without the approval of his ministry. Thereafter, Law Minister P. Govinda
Menon called Maitra to his home and told him to go to the Finance
Ministry for instructions.!7 There, Maitra was shown into the presence
of L. K.Jha, Deputy Reserve Bank Governor A. Bakshi, I. G. Patel, and
D. N. Ghosh, Deputy Secretary in the Finance Ministry. Jha told Maitra
to ask them for the information necessary for drafting the ordinance.
What is the ‘public purpose’ of the takeover? Maitra asked, and I. G.
Patel drafted a paragraph, which Maitra used. There followed questions
and answers about which banks were to be taken over, how compensation
would be calculated, and the like.
Maitra set to work. Ghosh rejected the first draft because no infra-
structure existed for running the nationalized banks and the draft did
not provide it. Maitra began another draft incorporating his own sugges-
tion that the banks’ existing management could act as custodians until
new managements could be in place. This draft needed revision to com-
ply with existing banking laws. At 6:30 a.m., Maitra took the draft to Law
Minister Menon, who approved it. Maitra went home to breakfast only to

15 T. A. Pai’s involvement from S. L. Shakdher in an intervie

w with the author.; that
of L. K. Jha, I. G. Patel, and others from the Hindustan Times, 18
July, 1969, and the
Statesman, 18 July 1969.
1© Hindustan Times, 18 July 1969.
17 This account is drawn from the author's interview
with S. K. Maitra. Maitra
disappeared and even his anxious wife did not know
his whereabouts for a few hours.
 Two Catalytic Defeats 215

be summoned to the Prime Minister’s Secretariat, where the Prime Min-

ister was reading the draft with the Law Minister. After a few minor modi-
fications, the ordinance went to an afternoon cabinet meeting, where it
was approved unopposed. No minister had seen the text before the meet-
ing, and after it copies were retrieved to prevent leaks. Maitra and Ghosh
took the ordinance to PresidentV. V. Giri, who signed it 19 July as Acting
President—the day before he resigned office to run for President. Desai
had resigned as Deputy Prime Minister earlier that day.*8
Mrs Gandhi announced the ordinance in a radio broadcast that
evening. She said the banking system ‘has necessarily to be inspired by
a larger social purpose’, traced the nationalization to Congress’s 1954
‘socialistic pattern of society’ resolution, and proclaimed it would be a
success.!? Popular it certainly was. Even members of the Syndicate
supported the principle, and the Jana Sangh said it was willing to give
nationalization a chance. But Swatantra Party leaders such as Masani
and Rajagopalachari opposed nationalization and criticized doing it by
ordinance one day before Parliament was to reconvene.
The following day a shareholder in one of the nationalized banks,
Rustom Cowasji Cooper, plus Minoo Masani, Balraj Madhok of the Jana
Sangh, and others, filed petitions in the Supreme Court challenging
the President’s competence to promulgate the ordinance and claiming
violation of their rights under Articles 14, 19, and 31. Despite Attorney
General Niren De’s argument that nationalization was a policy decision
and therefore not subject to court scrutiny, an eightjudge bench on 22
July issued interim orders restraining the government from removing
the chairmen of the banks and giving the banks directions under the
Banking Companies Act of 1963. The Court scheduled its final decision
for six months later.2? On 4 August, in the face of objections that no
bill could be enacted while the ordinance was sub judice and that
nationalization would produce various economic and bureaucratic evils,
Parliament passed a nationalization law replacing the ordinance.
Standard, 20
18 The unanimous approval of the cabinet is according to the Sunday
d to prevent speculation.
July 1969. Keeping nationalization ordinances secret was designe
Ordinance, 1969’
The ‘Banking Companies (Acquisition and Transfer of Undertakings)
fifty crore in deposits. These
nationalized fourteen ‘scheduled’ banks with over rupees
according to Mrs Gandhi.
banks contained 85 per cent of bank deposits in the country,
pages long, a mammoth drafting job.
The ordinance was a complicated document many
Politica l Econom y, pp. 417-21 and
For more on the nationalization, see Frankel,
Malhotra, [ndira Gandhi, pp. 117-19.
upon Giri’s resignation.
Chief Justice Hidayatullah became Acting President
19 Hindustan Times, 20 July 1969.
20 Indian Express, 23 July 1969.
 216 Working a Democratic Constitution
An eleven-judge bench of the Supreme Court on 10 February 1970
decided the constitutionality of the Bank Nationalization Act.2! The
chief petitioner, Cooper, claimed violation of his fundamental rights:
his right to equality before the law under Article 14 had been infringed
because the nationalization of only certain banks was a denial of equal-
ity; his right to acquire, hold, and dispose of property under Article 19
(1) (f) was violated by the taking over of the banks; the taking-over of
the banks by the state prevented them from engaging in non-banking
business; and his right to property under Article 31 and to compensa-
tion for property taken had been violated because the compensation
was inadequate. |
Speaking for ten of the eleven judges, Justice J. C. Shah struck down
the Act. He held that the ‘principles’ of compensation that a legislature
could lay down for the taking of property were not beyond judicial scru-
tiny (for this could result in arbitrary parliamentary action); that where
the restrictions imposed on carrying on a business were so strict that the
business could not in reality be carried on, the restriction was unreason-
able; that the principles upon which compensation for the banks was to
be based omitted some of their assets, namely goodwill and the value of
long-term leases; and that the declaration that banks had the
right to
continue to carry on non-banking businesses was an empty formality
if
the compensation was to be paid over time, as it denied the banks
the
funds to carry on other business activities.22 One sentence ofJustice
Shah’s
opinion likely burned brighter in the government’s eyes than
all his
others. In what appeared to be a reversion to the Bela Banerjee
ruling of
1953, Shah said, ‘The broad object underlying the principles
of valua-
21 Rustom Cavajee (sic) Cooper v Union of India 1970
(3) SCR 5306f.
Members of the bench were: Justices J. C. Shah, S. M. Sikri,
J.M. Shelat, V. Bhargava,
G. K. Mitter, C. A. Vaidialingam, K. S, Hegde,
A.N. Grover, A. N. Ray, Jaganmohan Reddy,
and I. D. Dua.
The senior-most judge on the Court,J.C. Shah, presid
ed over the bench, Chief Justice
Hidayatullah having recused himself from the case
because he had assented to the Bank
Nationalization Act when Acting President.
Acting for the parties had been a number of India’
s best known legal talents. On the
government side were the Attorney General,
Niren De, and the former attorn eys general,
M. C. Setalvad and C, K. Daphtary. Intervenors for
the government included Frishna Menon,
Mohan Kumaramangalam, and R. K. Garg. Appea
ring for Cooper and other petitioners
were N. A. Palkhivala, the leading counsel, M.
C. Chagla,J.B. Dadachanji, and others.
221970 (3) SCR 585-600, 610. An individual
closely involved recalls that, in an attempt
to reduce the amount of compensation payable, the provisions in the Act were chan
from those in the ordinance. This change ged
contributed to the court's striking down the
Act and, before the matter was resolved, cost
the government much more in compensation
than it had originally expected.
 Two Catalytic Defeats 217

tion is to award the owner the equivalent of his property with its existing
advantages and potentialities.’*>
The lone dissenter among the eleven judges was Justice A. N. Ray.
Age 58, he had come to his August 1969 appointment to the Court via
Presidency College, Calcutta, Oriel College, Oxford, Gray’s Inn, and the
Calcutta High Court. In his opinion he held that the principles for
compensation fixed by a legislature cannot be questioned in court on
the ground that the compensation paid on the basis of these principles is
not just or fair compensation. Ray held that there was no infraction of
Article 31 unless compensation was ‘obviously and shockingly illusory’ .?4
He held also that the non-banking businesses were part of the recognized
business of a banking company and, as such, were part of the undertaking
of the bank. He dismissed the ‘goodwill’ argument, and said the taking
of the banks did not offend Article 14. Both Ray in his dissent and Shah
in his majority judgement drew upon the Court’s opinion in the
Mangaldas case of thirteen months earlier. At the root of the differences
between the dissenter and the majority were their philosophies about
judicial review. For Shah and the majority, the power was extensive. For
Ray, quoting Justice Mahajan, ““The legislature is the best judge of what
is good for the community, by whose suffrage it comes into existence.”’2°
In other words, it is a matter of ‘legislative judgement’, he said.
Of the little that is known about the internal workings of this bench,
several things stand out. The bench as a group discussed the case more
fully than was typical of benches on others cases. Several of the judges
reacted adversely to the government's presentation because they thought
the information about the assets of the banks and other data that the
government submitted was inadequate to their need in determining the
adequacy of compensation. This seems to have aroused the scepticism
particularly of Justices Shah, Sikri, and Shelat, who had been on the bench
in previous cases when judges had thought the government had submitted
inadequate information—the Metal Box case for Shelat and the Madras
Lignite case for Justices Shah and Sikri.*° In these cases, according to a

23 Tbid., p. 599.
24 Ibid., p. 649.
25 Tbid., p. 623. The analysis of the case is drawn from court reports and from: Gae,
R. S., The Bank Nationalization Case and the Constitution, N. M. Tripathi Pvt. Ltd., Bombay,
1971; Merillat, Land; Singhvi, L. M., ‘Preface’ in Singhvi, Parliament and Constitutional
Amendment, and newspaper reports and interviews.
26 The account of dynamics within the bench is based upon the author’s interviews.
1964. In the
The decision in the Madras Lignite case was handed down on 3 March
ya Mudaliar and
Supreme Court it was officially named The State of Madras v D. Namasiva
Others 1964 (6) SCR 936.
218 Working a Democratic Constitution

well-informed civil servant, the government had played ‘fast and loose’
with the matter of compensation. In the Madras case, the government
appraised the value of land acquired as of a date long before the land
actually was taken, and in the Metal Box case it valued machinery in
good condition—used and unused—at one hundred rupees.
Justices Shah, Sikri, Shelat, and Vaidialingam brought to Cooper’s
case memories of Golak Nath, where they had joined Subba Rao in his
majority opinion. Other Golak Nath judges, V. Bhargava and G. K. Mitter,
voted with the majority in the bank case, although they had dissented in
Golak Nath. These two believers in the amendability of the Fundamental
Rights, including the right of property, held that Cooper’s fundamental
right to property had been violated because his compensation was based
on principles ‘not relevant’ to the determination of that compensation.
Finally, all these men certainly were aware that, while their deliberations
were proceeding, the government’s Minister of State for Finance, R. K.
Khadilkar, had said publicly that banks smaller than the fourteen also
were to be nationalized; that Minister of Law Govinda Menon had said
that general insurance would be nationalized by ordinance by 15 April;
and that bills establishing an urban land ceiling and abolishing the
princes’ purses would be introduced in Parliament within months. Did
the ten judges of the majority think that the time had come to show the
government an orange light of caution regarding future takeovers?
The Court’s decision in Cooper’s case did nothing to dispel the
confusion about what was law in cases of government acquisition of
property. Constitution benches without uniform composition had
produced inconsistent rulings on the First Amendment’s provision
regarding agricultural estates and on the Fourth Amendment’s provision
that the amount of compensation for property acquired by the
government could not be challenged as inadequate if the amount or the
principles underlying the amount were given. (See chapters 3 and 4.)
Indeed, Shah in Mangaldas, the previous year, had held that if
compensation were not illusory, it would not be justiciable.?’ For its part,
the government had contributed to the Supreme Court's adverse rulings.
Either from zealousness or carelessness, it had calculated compensation
questionably low on several occasions, thus awakening suspicions of fraud
among some judges. Also, the constitutional amendments had not

The Metal Box case was Union of India v the Metal Corporation of India and Another
1967
(1) SCR 255. It was decided on 5 September 1966.
27 State of Gujarat v Shri Shantilal Mangaldas 1969 (3) SCR $41 341ff.
See also Merillat, Land, especially chs. 7, 9, and 11; and M. CG.
Setalvad’s ‘Foreword’
in Gae, Bank Nationalization Case.
 Two Catalytic Defeats 219

removed the word ‘compensation’ from Article 31, inviting the judicial
supposition that the government intended payment of the equivalent
value for property taken. Above all, nationalizing the banks—leaving
aside rational arguments for or against nationalization—had been a
nakedly political gesture, botched from the start, inviting a punitive ruling
by the court.28
The Prime Minister reacted to the Court’s decision immediately. Four
days after it, the President promulgated a new ordinance nationalizing
the same fourteen banks, this time six days before Parliament was to
reconvene. Two weeks later, her government introduced a bill to replace
the ordinance. Revealing the government’s continuing intention to
reduce the Supreme Court’s power, Mrs Gandhi told the Executive
Committee of the Parliamentary Party that it should seriously consider
passage of the Nath Pai Bill ‘to get through progressive economic
measures’ .29
Others’ reactions to the Supreme Court decision were mixed. The
Swatantra welcomed it. The SSP and the PSP cried foul. The Congress(O)
criticized the Prime Minister for a job badly done, while calling for a new
ordinance. There were renewed demands for the removal of property
from the Fundamental Rights. Former Supreme Court Justice S. K. Das
expressed a widely held sentiment when he wrote that the country faced
‘a real national problem’, for social legislation would be impossible if “we
have always to pay one for one rupee’; just compensation, he said, should
be understood as neither illusory nor full compensation. He hoped a
confrontation between Parliament and the Supreme Court could be
avoided through a ‘harmonious construction’ of Article 31.29 Several
miserably with
28 The absence of staff work preceding the nationalization contrasts
decision. See Denoon,
the intensive analyses and planning leading to the 1966 devaluation
MIT Press, Cambridge,
David B. H., Devaluation under Pressure: India, Indonesia, and Ghana,
1986, entire and p. 46, especially.
29 Indian Express, 28 February 1970.
on Nationalisation of
30 Das_S. K., ‘Fundamental Rights and Supreme Court Decision
the Supreme Court |Judgement, Institute
Banks’ in Singhvi, L. M. (ed.), Bank Nationalization and
Publishing House, New Delhi, 1971.
of Constitutional and Parliamentary Studies/National
answer to the cogent question,
It is regrettable that there is not a more definitive
shape of the Constitution, did it
‘Given the significance of bank nationalization to the
there are partial answers. Banks
produce the results its adherents intended?’ However,
introduced concessional lending at
took a greater interestin agricultural finance and on
’. Report of the National Commission
four per cent interest for the ‘weaker sections
y of Agriculture and Irrigation, New Delhi,
Agriculture, Part I: Review and Progress, Ministr
phenomenally ... . Some 21,760 new
1976, p. 165.’ ‘(T] he banking system has spread
1969 and April 1979, of which 11, 200 are in
bank offices have been opened between July
ed six-fold in the same period’. Hindustan
unbanked areas. Total bank deposits have increas
 220 Working a Democratic Constitution
newspaper editorials blamed the government, attributing the Court’s
decision to poor drafting of the ordinance and the law replacing it.
The second nationalization ordinance and Act escaped successful
challenge in the Supreme Court in part because of changes incorporated
in it. The government dropped the provision forbidding the banks to
continue in the banking business; it specified the actual amount of
compensation each bank was to receive; and the banks could accept the
compensation in cash or take it in whole or in part in interest-bearing
securities.

The Princes and Their Purses

By the late 1960s, the former princes’ ‘privy purses’ from the govern-
ment of India and certain of their ‘privileges’ would have become a foot-
note to history had abolishing them not been adopted as a cause by Mrs
Gandhi and the social-economic activists. For each it was a symbolic issue
_ in theircommon and separate pursuits of power. Unexpectedly for both,
the matter joined with bank nationalization to fuel the demands for
unlimited parliamentary power of amendment and the clash with
the
judiciary that followed. Although the cause was ideologically clothed,
it
had party undertones, for a number of the e€x-princes were anti-C
ongress
or pro-Swatantra.
Under British Rule, as seen in Part I, India consisted of
the provinces
of ‘British India’, directly administered by the British, and the
princely
States (or Indian States), administered by Indian rulers
under treaty
arrangements that gave the British ‘paramountcy’ over
their affairs—
when the British needed it. The ‘integration’ of these
states—several
4 - joined Pakistan—had been vital to the
creation of India as a nation.
This was largely accomplished by August 1947, and
relevant provisions
placed by the Constituent Assembly in the Const
itution.3! As part of
Times editorial, 24 July 1979. The fourteen natio
nalized banks increased the number of
their offices, overall, between 1969 and
June 1993 by 21, 898 and, in centres with
10,000 popul under
ation, by 12,226. The number of ‘direct
finance’ agricultural accounts
between June 1969 and March 1992 rose from
160 to 20,550. The amounts outstanding,
in the same period, rose from 40.31 crore to
16, 944 crore. Economic Survey, Ministry of
Finance, GOI, New Delhi, 1994, tables 4.5
and 4.6, respectively.
Since nationalization, ‘the banking sector has
been heavily politicized. Only such persons
often are appointed who will help “polit
ical lending” at the bidding of ministers
politicians,’ Panandiker, V. A. Pai, ‘A Job Not and
Well Done’, Hindustan Times, 1 January 1994.
31 For descriptions ofthe integration ofthe
princely states, see Menon, V.P,, Integratio
of the Indian States. For the purses and privi n
leges see pp. 159ff, and 476-83, especially
constitutional provisions, Austin, Cornerston , For
e, pp. 243-54.
 Two Catalytic Defeats 221

the arrangements for ‘accession’ to India, the princes were granted

certain privileges and privy purses—in effect, government allowances.
They were ‘a sort of quid pro quo for the surrender by them of their
ruling powers and for the dissolution of their states’. Additionally, the
princes could keep certain private properties and were guaranteed ‘the
personal rights, privileges and dignities which they had hitherto been
enjoying’.°* The arrangements made with the princes evoked little
criticism at the time, for the unity of India was thought worth the price.
Nehru, egalitarian, anti-feudal, and a socialist, was ambivalent from
the beginning. He wrote to Sardar Patel in 1949 that he was “a little
surprised and taken aback’ that the purse payments were to be free of
income tax and in perpetuity—this surprise despite the White Paper,
draft covenants, and financial papers having been laid before the
Constituent Assembly.°* He shied away from placing the details of
the settlement with the princes in the Constitution. Patel agreed that
it would be sufficient to include in the Constitution a general article
that the government would honour its obligations to the princes. But
the government must place the details before the party, said Patel.34 |
Nehru’s distaste did not abate. ‘Many of us feel these privy purses
are too bloated,’ he wrote to a cabinet minister who had spoken out
against the purses. ‘Nevertheless, we have committed ourselves to
them and we cannot easily walk through our commitments.’%° Some

32 The States Ministry evolved a formula basing purses upon the annual average
revenue of the ruler’s state. In general, this was a purse of 130,000 rupees annually for
each one-and-a-half million rupees of revenue, or approximately eight per cent. Of the
554 states dealt with, ‘over 450 had an annual revenue of less than fifteen lakhs.’ Generally
speaking, a ceiling of rupees two lakh was placed on purses. There were eleven exceptions
where the purses were much higher. Excluding these, there were ninety-one rulers with
purses of this amount and above. These exceptions were to last only for the then ruling
individual and not for his successors, where the ceiling would apply. Menon, Integration of
the Indian States, pp. 477ff.
33 Nehru to Patel, 11 August 1949. Durga Das, Patel’s Correspondence, p. 601.
34 Nehru—Patel letter, 11 August 1949 and Patel to Nehru, 16 August 1949. Ibid., pp.
601-3.
Nehru ‘had strong reservations’ about the arrangements with the princes, recalled Home
time being with
Secretary H.V.R. lengar, and his style often was to ‘accept a decision, for the
with the princes. A
strong mental reservations’. Nehru was not alone in his dislike of the deal
to have them annulled.
number of Congress members of the Constituent Assembly tried
on”’ (go back on) the Cabinet’s guarantees, and
Patel met with them, said he would not “rat
Transcript, NMML.
threatened to resign if this happened. H.V. R. lengar Oral History
December 1951.
35 Letter from Nehru to H. K. Mahtab, Secret and Personal, 20
Hare Krishna Mahtab Papers, File 20, NMML.
for the 1951-2 general
The Communist Party attacked the covenants in its manifesto
elections.
 222 Working a Democratic Constitution
months later, Nehru wrote to the chief ministers that ‘the present
arrangements are completely illogical and difficult to justify. The idea
of having Rajpramukhs for life and ... giving them a handsome privy
purse and heavy allowances ... is something that does not fit at all with
modern ideas ... . I have little doubt that this question will be raised
more and more by the public and we shall have to face it.’>®
Nehru expressed his dissatisfaction directly to the princes on 10
September 1953. ‘Dear Friend’, he began a lengthy letter to the 102
princes receiving a purse of more than a lakh of rupees. After praising
their accession to India, he turned to implementing the Directive
Principles and the ‘glaring’ disparities between rich and poor in the
country. Shouldn’t we reconsider purses and Rajpramukhs for life?, he
asked. ‘Political wisdom consists in anticipating events and guiding
them’. He asked the princes to-give consideration to what he had said,
‘because events move ... . am not making any positive suggestion in
this matter ... I should like the princes themselves ... [to] suggest how
best we can deal with this situation.’37
Ten months later, Nehru wrote the princes another Dear Friend let-
ter, pointing out that only a few of them had acknowledged his first let-
ter. Now it was time, he said, to come to ‘close grips’ with it. He hada
‘moderate’ suggestion: princes with purses of two to five lakhs should
make a voluntary contribution of fifteen per cent of their purse to devel-
opmental schemes in their states and invest ten per cent in a national
loan plan—and so on, according to the size of the purse.38 The response
again was uncooperative. There the matter rested for nearly nine years,
excepting that in October 1961 the government began reducing the privy
purses of the major recipients by as much as fifty per cent when a son
succeeded to his father’s ‘titles’.

36 Letter of 2 August 1952. NLTCM, vol. 3, p. 67. Late in the month Nehru
wrote
from Kashmir indicating that the issue kept churning in his mind.
Jayaprakash Narayan included abolition of the constitutional guarantees to the
princes
among his fourteen points sent to Nehru in 1953 as they were negotiat
ing Narayan’s
possible return to the Congress Party.
37 Nehrusenta copy of this Secret and Personal letter to K. Santhanam, the
Lieutenant
Governor of Vindhya Pradesh, on 11 September 1953, and, one assumes, to other
governors. File 2, ‘General Correspondence as Lt. Governor
of Vindhya Pradesh’,
Santhanam Collection, NAI.
Although the ex-princes’ privy purses were exempt from
income tax, the princes
were liable to tax on other income and on property excepting
for one palace.
38 Letter of 15 June 1954. Nehru sent a copy to C. D. Deshmu
kh. C. D. Deshmukh
Papers, File 23, NMML. Nehru had sent a draft of this letter
to President Prasad on
25 May, who responded on 4 June doubting the efficacy of
the idea. Choudhary, Prasad:
 Two Catalytic Defeats 223

The issue reemerged in 1963 when Kamaraj and Atulya Ghosh raised
abolition of privileges and purses in the AICC. Nehru opposed them
on the grounds that the government should keep its word, and that the
cost of the purses was automatically going down.°? Four non-official
resolutions to abolish the purses were submitted at the Bhubaneshwar
Congress a few months later, but the party’s committee on non-official
resolutions rejected them because they contravened the Constitution.
Nevertheless, the committee recommended that the rate of purses be
further decreased with each succession from father to son and the matter
of privileges be re-examined.?9
Pressures increased during 1967. In May, during the Congress’s
intensive election post-mortem, Atulya Ghosh introduced a note calling
the purses ‘incongruous to the concept and practice of democracy’.
Morarji Desai thought this morally wrong and called it ‘a breach of
faith with the princes’.*! The Ten-Point Programme included Ghosh’s
formulation, and the Young Turks engineered a surprise for the Prime
Minister by passing a resolution at a late night AICC meeting after most
members had gone to bed. This urged the government ‘to examine -
the question of privy purses and privileges of the rulers ... and take
steps to remove them.’42 Mrs Gandhi objected to Dharia the following
morning, saying his amendment to the resolution “further added to
the complications”’.4% S. K. Patil called the move madness. Kamaraj
and Atulya Ghosh supported the resolution, Ghosh openly and Kamaraj
by remaining silent. A few days later, the princes, in the person of the
Gaekwad of Baroda, one of the most distinguished princely families,
attacked the Congress resolution. By late in the year the government

Correspondence, vol. 17, pp. 40-2. These letters and Nehru’s being torn between his sense
vol. 2, p. 79.
of economic justice ‘and a government's honour’ are discussed in Gopal, Nehru,
& Co., London,
39 Sahgal, Nayantara, /ndira Gandhi: Her Road to Power, MacDonald
1982, p. 59.
7 April 1964.
40 Report of the Sub-Committee on Non-Official Resolutions, AICC, New Delhi,
Awana, Pressure
41 For this event, see Frankel, Political Economy, p. 397. For Desai, see
Politics, p. 248.
Indian States”
42 Cited in ‘Note on “Privy Purses and Privileges of Rulers of Former
by Shri Y. B. Chavan, Union Home Minister’. AICC Papers, Installment II, File OD 11,
1969, NMML.
Mohan Dharia moved it, and
K. P. Unnikrishnan may have drafted the resolution.
were strong supporters. Y. B. Chavan
Krishan Kant, Chandrashekhar, and Chandrajit Yadav
to four. From interviews. Also, Frankel,
was in the chair at the time, and it passed seventeen
Politics, p. 149.
Political Economy, p. 398 and Awana, Pressure
43 Dharia, Mohan, Fumes and the Fire, S. Chand & Co. Pvt. Ltd., New Delhi, 1975, p. 4.
one of her staff that this was ‘Chavan
The next day, the Prime Minister reportedly told
sahib’s mischief’.
 224 Working a Democratic Constitution
had opened negotiations with the princes. Morarji Desai won agreement
for a gradualist approach in the October AICC session at Jabalpur and
promised unwisely to have the purses and privileges abolished in six
months.** Charged with the actual conduct of the negotiations, Home
MinisterY.B. Chavan met with the princes twice at the end of 1967, on
the latter occasion telling the princes of the government’s decision in
principle to abolish purses and privileges.* Further inconclusive talks
took place 29 May 1968, and the princes expressed the desire to send a
formal note io the government. On 24July 1968, Chavan told Parliament
of the government's decision to abolish purses and privileges—but set
no date for doing so—and that he had informed the princes of the
‘basic decision’. During the month the heretofore separate groups of
princes amalgamated into the purportedly one-voice ‘Concord of States’,
and V. Shankar, formerly of the States Ministry under Sardar Patel,
became one of its advisers. Little of note occurred during the remainder
of 1968 and in 1969 in part due to Desai’s departure from the cabinet.
Matters came to a head in 1970. The year opened with Chavan’s
conference with the princes on 8 January 1970. Here he reportedly
reiterated the government’s intention to implement the will of
the
people by abolishing purses and privileges. Reacting, the princes
senta
‘memorial’ to the President requesting that he seek an advisory opinio
n
from the Supreme Court about the ‘treaty regard question’.*©
The
44 For Morarji Desai on negotiations, see Frankel, Politica
l Economy, p. 399. For abolition
in six months, see Link, August 1971, p. 12. See also
Report of the General Secretaries, February
1966—January 1968, AICC, p. 34.
Opposition members of Parliament, who thought Desai
was stalling, were provoked
to move private members’ bills calling for amendment
to Article 291 of the Constitution
and ending purses. During 1967, six such private
members’ bills were moved in the Lok
Sabha and four in the Rajya Sabha.
45 Chavan’s Note. Also, Lok Sabha Debates,
Fourth Series, vol. 18, no. 3, col. 1097.
46 The memorial is referred to in a telegram sent
by one of the princes’ leaders and
Swatantra Party member, Sriraj Dhrangadhra
(from Saurashtra in Gujarat) to C,
Rajagopalachari, the Swatantra leader. Rajag
opalachari replied on 23 February that the
President was entitled ‘in his own right’ to
ask for an advisory opinion, but that he was
‘afraid the president [V. V. Giri] holds a differ
ent view and believes he can do nothing
unless advised to do so by the Government
of the Union’. C. Rajagopalachari Papers,
File 86, Microfilm, NMML. See also Indian Express, 18 February
1970.
Rajagopalachari had been the Governor
General at the time of the princely states
integration and had participated in the ’
negotiations with them. He then had thou
the same Maharaja of Dhrangadhra remar ght
kably poised and dignified for his age.
Integration of the Indian States, p. 179.) (Menon,
One of the causes of the continuing
stalemate, according to an individual then serving
the Prime Minister, was that Desai had been
willing to give the princes more compensa
than the ‘miserly amounts’ offered by Chavan. tion
 Two Catalytic Defeats 225
princes renewed this request in the spring. The President apparently
never sought an advisory opinion. On 12 February, the ‘Consultation
of Rulers for India’ (sic) issued a ‘Convention Statement’ recalling their
contribution to ‘the creation of a new national unity’ by having parted
‘with their powers and jurisdictions’. The princes saw ‘no great difficulty
in the gradual utilization of private wealth and income for public benefit’
and therefore favoured ‘the idea of setting up funds or trusts for social
service and public benefit’, which meant turning their purses to public
purposes. But if the government ‘persists in proceeding arbitrarily,
thereby jeopardizing the honour and credit of our country’, they would
have to resist. The convention authorized the former rulers of Baroda,
Bhopal, and Dhrangadhra to take ‘whatever action that was necessary’ .*”
The government did move, very arbitrarily from the princes’
viewpoint. On 18 May 1970, Chavan moved for leave to introduce the
Twenty-fourth Amendment Bill in the Lok Sabha to delete from the
Constitution two articles and a portion of a third providing for the
Princes’ purses and privileges.*8 P. K. Deo, of the Swatantra party and
a member ofa princely family, immediately challenged the bill on the
ground that these covenants and agreements ‘form the very basis of
the Constitution, the foundations of the Constitution ... [and] it is not
open to the legal, legislative competence of the House to challenge the
foundations of the Constitution.’49 Moreover, Deo averred, the purses
were a property issue, which brought the Fundamental Rights into the
picture. Balraj Madhok, a former activist with the militant Hindu RSS
and a leader of the Jana Sangh party, supported Deo, although he wished
the princes would voluntarily forego their privileges. Law Minister
Menon responded by citing the President’s speech opening Parliament
in February in which he had said that rulership was ‘““incompatible with
an egalitarian social order”’. After a voice vote allowed the bill to be

47 Indian Express, 13 February 1970. Chavan’s assessment of the princes’ attitude,

according to his biographer, was that ‘For the princes, this was a matter of bread and
butter ... . Even modern capitalists can perhaps give up their rights and privileges, but
these people, entrenched so strongly in their own positions for centuries, would not like
to lose them.’ Kunhi Krishnan, T. V., Chavan and The Troubled Decade, Somaiya Publications
Me,
Pvt. Ltd., Bombay 1971, p. 267.
48 For the legislative history and text of the amending bill, see Constitution Amendment
,
in India, pp. 171, 383.
Kunhi Krishnan, in his biography of Chavan, adds in a footnote that Mrs Gandhi
suggested delaying introduction of the bill because she was negotiating secretly with the
princes and a settlement was imminent in which the princes would forego fifty per cent
of their purses. Kunhi Krishnan, Chavan p. 267.
49 1okSabha Debates, Fourth Series, vol. 41, no. 6, col. 253.
 226 Working a Democratic Constitution
introduced, the members shelved the bili until September. Negotiations
between the government and the princes continued during the summer,
but they came to naught, as the press occasionally reported.
At the end of August, just before Parliament would take up the bill
again, its major opponents took a stand on the purses as a property and
fundamental rights issue. They met as a Convention of the Fundamental
Rights Front in Constitution Hall of Vithalbhai Patel House in New Delhi.
\/ N. A. Paikhivala and M. C. Chagla, advocates for the petitioners in the
Bank Nationalization case and soon to represent the princes in their
case, R. C. Cooper, the chief petitioner in the bank case, and former
Chief Justice Subba Rao damned the bill. Delivering the presidential
address, Subba Rao said that property is not an entrenched right but the
weakest of the Fundamental Rights. It was up to the judiciary to decide
‘the permissible limits of the laws of social control’.°° Cooper and Chagla
expressed their fear that there was an ‘irresponsible majority’ in
Parliament.
On 1 September, Mrs Gandhi, having become Home Minister after
shifting Chavan to Finance, moved that the Lok Sabha consider the
bill. It was a bill historic ‘in the further democratization of our society
... [representing] the momentum of social change in our country,’ she
said.>! Morarji Desai responded that all Congressmen are committed
to the abolition of the privy purses, but the bill ‘is fraudulent and
deceitful and is not consistent with the spirit of the Constitution’. He
reiterated his claim that it would be a breach of faith not to honour
commitments to the princes. Sriraj Dhrangadhra then spoke for the
princes, saying that there was no greater hardship than dishonour, which
the government was inflicting on the rulers. The glorious chapter written
by the founding fathers is now ‘brought to an inglorious end’, he

50 Presidential Address and Other Papers for the National Convention, Fundamental Rights
Front/A. P.Jain, New Delhi, 1970, pp. 10-13.
51 Tok Sabha Debates, Fourth Series, vol. 44, no. 26, col. 261. Moving consideration of
the bill seems to have been a reversal of policy on the Prime Minister's part, for in a
cabinet meeting in Parliament House on 27 August Mrs Gandhi said ‘“there is no time
for us to bring the bill relating to payments in this session.”’ K. Hanumanthaiya Diary
entry for 20 August 1970, p. 19, NMML.
A week prior to this, Hanumanthaiya—then Minister of Law and Social Welfare—
had recorded his impressions of a meeting over tea with Chief Justice Hidayatullah and
other Supreme Court justices at Justice Hegde’s invitation. Expecting an ‘elevating’
discussion about judicial reforms, Hanumanthaiya was disappointed by thejustices’ talk
of their being ‘insidiously treated’. He wrote that ‘the judges are in their own world of
~ supremacy, the clients in their own world of misery, and the executive in its own world
of
indifference’. Diary entry for 20 August 1970, ibid., pp. 15-17.
 Two Catalytic Defeats 227

said.°* Chavan seemed to be trying to sugar-coat the pill when he said

there could be transitional allowances. But these were not ‘compensation’
for ‘certainly they [the purses] are not the property of the princes’.>*
Winding up the debate, Mrs Gandhi explained that the government’s
highest law officers believed the amending bill constitutional; hence it
had not been sent to the Supreme Court for an advisory opinion. The
agreements with the princes were not contracts, she said, but political
agreements followed by the political act of presidential recognition of
the princes. Thus the government could have discontinued the purses
without an amendment, but it had moved an amending bill preferring
‘to bring about a change by the democratic inethod of discussion’.°4
The Lok Sabha passed the bill with only eight votes more than the
two-thirds majority required to pass a constitutional amendment. Among
the ‘noes’ were many who would not qualify as conservatives, including
Kamaraj, Acharya and Sucheta Kripalani, Ashoka Mehta, and N. G.
Ranga.°°

An Evening of Mystery
The bill met a decidedly different fate in the Rajya Sabha after a debate
had re-emphasized the property/fundamental rights issues involved.
Mohan Dharia, claiming paternity of the amendment, said that property
being a fundamental right was ‘the greatest possible impediment’ to
progress. Change must be brought about if the faith of the people in
democracy was not to be lost.°© Communist Party leader Bhupesh Gupta
thought that the purses and privileges were not property and therefore
the property provisions of the Constitution did not apply. Concluding
the debate, the Prime Minister said that the purses were not property

52 Ibid., col. 296

53 Lok Sabha Debates, Fourth Series, vol. 44, no. 27, col. 225. Piloo Mody interrupted
the
Chavan’s speech. saying, ‘My father ... advised the princes to compromise, to keep
purses and let Mr Chavan have the privy.’
54 There had been discussion within the government about whether an amending
princes. Law
bill was necessary, or whether the President could simply derecognize the
that a bill was
Minister Menon, who otherwise played a minor part in the affair, advised
needed. S. S. Ray interview with the author.
a, and the Jana
55 After the vote, members of the opposition Congress, the Swatantr
voting. They claimed that the
Sangh charged that there had been irregularities in the
was defeated. Indian Express, 3
government had received only 331 votes and therefore |
September 1970.
private members
56 Parliamentary Debates, Rajya Sabha, vol. 73, no. 28. col. 84. Three
time.
bills abolishing the purses were pending at this
 228 Working a Democratic Constitution

and no compensation would be paid. She invoked socialism as the

justification for ending them. ‘One section ... [of the party] wanted
socialism ... major changes and ... [there was] another section which
thought that independent India could grow and prosper within the
old structure,’ she said. ‘It is not Iwho am showing a new light to the
people; it is the people who are showing a new light to us.’>7
Whatever the source of the light, it failed. The government’s motion
to consider the bill was defeated, 149 to 75. The Chairman of the Rajya
Sabha, Vice President G. S. Pathak, had warned the government the
previous afternoon that it might be difficult to calculate the fractions
of votes. He was proved right when the vote did not ‘satisfy’ the
Constitution’s two-thirds requirement by one-third of a vote.°8 Many
favouring abolition, but not liking the government’s tactics, voted against
the bill. Consternation and confusion. Mrs Gandhi departed furious—
at Pathak and others—and a changed woman, according to some
accounts.°9

57 Parliamentary Debate, Rajya Sabha, vol. 73, no. 29, col. 90.
Although there would be no compensation, Mrs Gandhi said, the ‘human aspect’
did call for transitional allowances.
M. N. Kaul, who had been Secretary of the Constituent Assembly (Legislative) while
the princely states were being integrated and later was Secretary General of
the Lok
Sabha, recalled that Sardar Patel had never budged on the non-justiciability
of the
agreements with the princes. But ‘nobody at the time thought that the payments
were in
perpetuity’.
58 Immediately after the vote a call was made to the Law Ministry, where ‘a few
minutes of frenetic arithmetic’ confirmed that the majority
was insufficient. P. B.
Venkatasubramanian in a letter to the author. The vote margin
is more easily understood
if the fractions two-thirds and one-third are reduced to decimals
. A two-thirds majority
would be .6666 per cent of the votes cast. But the aye votes
totalled only .6651 per cent.
This discrepancy has since been referred to as one-third of
a vote.
59 Mrs Gandhi was angry at Pathak for permitting the loss
by such a narrow margin.
I. K. Gujral interview with the author,
‘After the vote, the Maharaja of Bikaner said to
Mrs Gandhi, “You have saved us.”
Very upset, she responded, “We will execute you.”’ A senior
member of the Prime Minister's
staffin an interview,
The evening of September 8, sensing that the vote would
be close, members of the
cabinet met informally to discuss what to do should
the bill fail. Views were expressed
that the government need not resign over the issue
and thata fresh bill would be needed.
Indian Express, 4 September 1970.
The defeat was attributed variously: two members
of Parliament missed the vote because
they could not fly from Calcutta due to bad weathe
r. (/ndian Express, 6 September 1970.) A
member of Parliament recalled that a DMK memb
er absented himself at the moment of
the vote. Another said a Congressman left for the
toilet when the vote bell rang. Interviews
with the author.
 Two Catalytic Defeats 229
:

There is still no satisfactory published account of how events of the

next ten hours resulted in what came to be referred to as the ‘Midnight
Order’. The government, in the person of Chavan, declined to give one
to Parliament. No other official has offered a complete account. Mrs
Gandhi may have taken the next step according to the government’s
Transaction of Business Rules, or she may have bent them. In either case,
the Supreme Court would rule the step, itself, unconstitutional.©9 A
meeting in Mrs Gandhi’s Parliament House office of senior CPP members
and a few others immediately following the bill’s defeat discussed again
the President’s power to act in his discretion. Those present tipped toward
the view that the President, having recognized the princes, could
derecognize them. Meeting late that afternoon the cabinet’s Political
Affairs Committee—the Prime Minister, Fakhruddin Ali Ahmed, Jagjivan
Ram, Y. B. Chavan, Swaran Singh, and Govinda Menon—decided on this
course, having been informed by Attorney General Niren De that the
process for the contemplated action could be taken within the Transaction
of Business Rules. The Home Ministry prepared a note for the cabinet,
which the Law Ministry cleared—but apparently without a formal process,
including review by the Law Secretary—and the Home Secretary signed
it. Several hours later the cabinet met and, without dissent, approved
derecognition. An officer aboard an Air Force plane conveyed the note
and the cabinet’s decision to President Giri, who was in Hyderabad. The
officer was instructed to inform Delhi by telephone or telegram when
the President had assented to the decision.®! It seems likely that Giri
signed a broader derecognition order, for orders to individual princes
concluded with ‘By order and in the name of the President, L.P. Singh,
Secretary to the Government of India’.©* The deed was done. That

60 These rules are classified by the Cabinet Secretariat. It seems to the author a flaw
in Indian democracy that the public is denied knowledge of its government’s routine
rules of procedure. Description of the rules here was given to the author by a recently
retired senior Home Ministry official.
This account of the events of 5 September is based on unusually sparse news dispatches
and interviews with, among others, K. C. Pant, L. P. Singh, and B. N. Tandon.
61]. P. Singh ina letter to the author. B. N. Tandon recalled that Singh was cautious
about mass derecognition, thinkifg it unethical and that the courts might strike it down.
Interview with the author.
62 One document read: ‘No. 21/14/70-III Government of India Ministry of Home
Affairs New Delhi the 6th September 1970, ORDER “In exercise of the power vested in
with effect
him under Article 366(22) of the Constitution, the President hereby directs
Rao Scindia
from the date of this Order His Highness Maharajadhiraja Madhav Rao Jivaji
‘By order’ etc.,
Gwalior do cease to be recognised as the Ruler of Gwalior“’ followed by
signed L. P. Singh. Singh remembers staying up all night signing the orders.
 230 Working a Democratic Constitution
morning Mrs Gandhi departed for Lusaka and a meeting of the Non-
Aligned Movement.®
In astatement to Parliament on 7 September, Chavan said that under
the Constitution the President had ‘the unquestioned power to de-
recognize the Rulers’. Regrettably unable to get a constitutional
amendment and fortified by its belief in the widespread support for
‘putting an end to an antiquated system’, said Chavan, the government
acted to end ‘uncertainties’.®4
Madhav Rao Scindia and other princes immediately petitioned the
Supreme Court under Article 32 to strike down the President’s order
as unconstitutional. Fhey argued that the President had no power to
withdraw the recognition of a ruler once he had been recognized; the
order violated the constitutional mandates in Articles 291 and 362; and
that derecognizing the rulers en massewas an arbitrary exercise of power
for a collateral purpose—meaning that the government had attempted
to do indirectly what it could not do directly. Claiming that his privy
purse constituted property, Scindia said that deprivation of it violated
his fundamental rights under Articles 19, 21, and 31.
The government argued that the petitions were not maintainable
because the source of the right to receive a purse was ‘a political
agreement’ and thus the purse was ‘in the nature ofa political pension’.
In recognizing or derecognizing princes the President was exercising a
political power that was sovereign, and the government could vary the
rights and obligations ‘in accordance with “State policy”’. The Indian
government had inherited the concept of Paramountcy from the Crown;

63 The Hindustan Times reported that President Giri’s signature ‘is understood to have
been secured in Hyderabad last night before the Union cabinet took up the crucial decision
in New Delhi.’ Issue of 7September 1970. The paper also reported that the aircraft bearing
the document signed by the President returned to the capital at 1:34 a.m.
64 ‘Statement Laid by the Finance Minister on the Table of the Rajya Sabha, 7
September 1970.’ Papers laid on the Table, LT 4167/70.
Chavan also thought that without the derecognition order ‘the right reactionaries ...
would have had the satisfaction of having thrown overboard a progressive measure’.
Kunhi
Krishnan, Chavan, p. 271.
Events may have occurred in somewhat different order. According to Chavan'saccount
to Parliament, the cabinet met at 10:30 p.m., decided on derecognition in ten or
fifteen
minutes, and submitted its decision to President Giri between 11:00 and 11:30 p.m.
Were
this the case, the papers concerning derecognition-—without the cabinet's decision
—had
been taken to Giri earlier by aircraft, and Giri received the Cabinet’s
decision by telephone.
He then assented to derecognition on the basis of the preparatory materials
he had in
hand. This procedure is now acceptable, although unwritten, under
the Transaction of
Business Rules, according to the explanation given to the author bya senior
official. Whether
or not it was acceptable in September 1970, the author has been unable
to discover.
 Two Catalytic Defeats 231

therefore, recognition of “Rulership’ was a ‘“gift of the Presidency”’,

an act of state. Consequently, the government argued, the courts were
excluded from enforcing agreements with the princes.
The Supreme Court struck down the derecognition order thirteen
weeks later. Chief Justice Hidayatullah delivered a separate concurring
judgement. Justice Shah and six judges of the eleven-judge bench
delivered a judgement, with Justice Hegde concurring. Justices Ray and
Mitter dissented.© Hidayatullah held: that the authority to recognize a
ruler from among claimants to the ‘throne’, which the government had 15 e)
been exercising, was not an act of paramountcy. Therefore, Article ,, » «", “wy
366(22) did not give the President the power to say there was no ruler of (4¥"
any state; that an ‘act of state’ was not available against a citizen; that the
guarantees to the princes were part of the Constitution and therefore
enforceable; and that the charging of the purses to the Consolidated
Fund of India was ‘to provide that this ... shall not be altered even by a
vote of Parliament’. Finally, the majority held that the petitions were
maintainable under Article 32 because the obligation to pay the |
purses was absolute.
Justices G. K. Mitter and A. N. Ray dissented. Although Mitter agreed
in general with the majority, and found the order of the President
‘unjustified’, he did not think it subject to challenge under Article 363.
Ray disagreed with the majority almost point by point. Accepting most
of the government’s submissions, he held that the agreements to pay
privy purses ‘were all political agreements born out of political bargains
to achieve integration of the Indian states with the Dominion of India’.
This political bargain was placed in Articles 291, 362, and 366, ‘and the
political character was preserved by inserting Article 363, which bar
(sic) the jurisdiction of the court ...’.®
The decision capped a bad year for the Prime Minister. She just had

Pr( v7
65 Decision on 15 December 1970. The case was viene H. Maharajadhiraja Madhav
(3) SCR 9ff. Members of Purnie
Rao Jiwaji Rao Scindia Bahadur and Others v Union of India 1971
A. Vaidialin gam,
the bench were: Chief Justice M. Hidayatullah andJusticesJ.C. Shah, C.
V. Bhargava, G. K. Mitter,
K. S. Hegde, A. N. Grover, I. D. Dua, S. M. Sikri,J.M. Shelat,
and A. N. Ray.
ended with India’s
Some legal authorities hold that, strictly speaking, paramountcy
independence.
66 1971 (3) SCR 229-30.
court ‘shall have jurisdiction
Article 363 says that neither the Supreme Court nor any
ent, covenant ... [etc.] which
in any dispute arising out of any provision of a treaty, agreem
Constitution by any Ruler of an
was entered into ... before the commencement of this
the Supreme Court for an advisory
Indian State ...’. The sole exception was reference to
opinion.
 232 Working a Democratic Constitution
been denied a populist plum she had thought ripe for the plucking—
first because she lacked the votes in Parliament, and then by the
Supreme Court. Her own party members’ contribution to the defeat in
the Rajya Sabha must have been especially upsetting. She would have
expected no better from the Supreme Court, where the bench in the
Privy Purses case was nearly the same as the one that had ruled against
the government on bank nationalization.®” And although she had
successfully nationalized the banks on the second try, the court had
caused the government to improve the compensation. Her government’s
weakness in Parliament had prevented overcoming the Golak Nath
decision through enactment of the Nath Pai Bill. The old guard of the
Congress had formed the ‘Grand Alliance’ with Swatantra and the Jana
Sangh to fight the 1971 parliamentary elections and had stung her with
charges of being anti-democratic, while the Young Turks, the CFSA,
and the communists pressed her to fulfill her socialist promises.
Mrs Gandhi needed to gain control. Parliament was the place to
start. Nine days after the Supreme Court struck down derecognition,
she called upon the President and proposed that he dissolve the Lok
Sabha and call elections. He did so three days later, 27 December 1970,
on the cabinet’s advice. That evening Mrs Gandhi told the nation in a
radio broadcast that the government could have remained in power
without an election. But, she said, we are concerned with using power to
satisfy our people’s aspirations ‘for a just social order’. The nationalization
of the banks, setting up the Monopolies Commission, and abolishing
the privy purses ‘were welcomed by large masses of people throughout
the country ... [but] reactionary forces have not hesitated to obstruct
...
these urgent and vitally necessary measures’. The impatience
of the
people was ‘being exploited by political elements’. Time will
not wait
for us, she said, so we have decided to go to our people.®8
Two days
later she told a news conference that when returned to power
her party
would put through constitutional amendments to promote
the interests
of the many against the few.®9 The twelve-point election
manifesto
67 The only differences were that Jaganmohan Reddy
had retired after the bank
decision and Chief Justice Hidayatullah did not sit
on that case,
68 AR, 15-21 January 1971, p. 9958,
Ata meeting of the Executive Committee of the Congr
ess Parliamentary Party on 16
December, Mrs Gandhi reportedly rejected a suggestion
by CFSA members that Parliament
a) be converted into a constituent assembly to amend
the Constitution ‘suitably’, Indian
Express, 17 and 19 December 1970,
69 AR, 15-21 January 1971, p. 9960.
“We are notin favour of curtailing all Fundamenta
l Rights,”’ the press quoted her as
 Two Catalytic Defeats 233
published in January 1971 reiterated these themes, calling particularly
for an ‘end to anachronistic privileges such as privy purses etc’. To fulfill
the manifesto’s purposes one item in it said, ‘such amendments of the
Constitution [will be enacted] as may be necessary’.

saying. ‘“We do not even want to take away the right to hold and enjoy property,”’ but she
went on ‘to suggest’, according to press reports, ‘that her party would not in future treat
property as a fundamental right’. Ibid.
70 People’s Victory—An Analysis of 1971 Elections, AICC, New Delhi, Apri! 1971.
 Chapter 10

RADICAL CONSTITUTIONAL AMENDMENTS

Amending the Constitution in pursuit of the social revolution was the

domestic political motif of 1971.! Furious debate surrounded essential
constitutional issues of personal liberty and the public good and con-
stituent powers. Beliefs in the institutions and processes of representa-
tive government were tested. Not everyone, events would show, firmly
believed in constitutional democracy. Four constitutional amendments,
two of them radical, gave specific form to disputes simmeri ng since the
Constitution was inaugurated and bubbling since 1967. It was a vibrant
time, for someone full of hope and expectation, for others full of anxi-
ety for democracy and the integrity of the seamless web.
uel
It was not only the Prime Minister’s faction of the Congress Party
that
supported her programme of amendments—indeed, many
of its
members were more radical than she. The Congress (O) Working
Committee and Morarji Desai strongly supported restoring
to Parliament
the power to amend the Constitution, including the Fundam
ental Rights,
and they also supported abolition of privy purses.* The
other political
! The principal international developments were
the signing of the Indo-Soviet
friendship treaty and the crisis next door in East
Pakistan. Both affected domestic affairs,
of which more will be heard. In East Pakistan, Sheikh
Mujibur Rahman’s popular movement
for autonomy within Pakistan had culminated
in an election victory in December 1970
which gave his Awami League a majority in the
National Assembly, that entitled him to be
prime minister of the whole country. Unable
to accept this, West Pakistani political and
military leaders in March 1971 arrested Rahma
n and began a period of atrocities against
Pakistani Bengalis. Awami League leaders in
India proclaimed an independent nation,
Bangladesh. A combination of the continuing
carnage in East Pakistan; the Indian
government's awareness that the nation of
Pakistan might be breaking up (with Indian
help for Bengali guerrilla forces); the politic
al and economic disruptions in West Bengal
brought on by the arrival of nearly two
million East Pakistani refugees; and, finally
attack by Pakistani aircraft on western India , an
on 3 December 1971 brought India and Pakist
into open war. Within several weeks, the Indian an
army defeated the Pakistani army in the
a ceasefire would be annou East,
nced for the West, and Mrs Gandhi declared
‘Dacca is now the free capital of a free country in Parliament,
.’ Malhotra, Jndira Gandhi, p. 140.
2 Congress Bulletin, no. 3-5, Apri l-June 1971, AICG, New Delhi, p. 114. Read
recall that the Congress Bulletin Stayed ers will
in the hands of the Congress (O) after
1969. the's plit of
 Radical Constitutional Amendments 235

parties sensed the political winds. Of ten election manifestos for the 1971
parliamentary elections, all but two called for some changes in the
Constitution. The CPI wanted to ‘restore’ the supremacy of Parliament.
So did the PSP and the SSP, and when they merged later in 1971 the new
Socialist Party supported the amendments bestowing this supremacy. The ,
Jana Sangh was cautious, calling for flexibility of amendment while
ensuring that the Constitution’s ‘essential fabric ... is not tampered
with levity (sic)’. The Communist Party Marxist went the furthest,
proclaiming that the Constitution ‘must go lock, stock and barrel and
should be replaced by a new one enshrining the real sovereignty of the
people’.? The Swatantra Party called for an ‘unqualified guarantee’ of
the Fundamental Rights, while accusing others of ‘systematic attempts ...
to wreck the Constitution ... [and] destroy the liberty of the masses’.*
The mantra of ‘socialism’, like a tide, carried all but a few before it.
‘Anything socialist was great,’ recalled the Congress’s Vasant Sathe. oe
thought property and capitalism absolutely bad.’ There was a strong
current in socialist directions, said ex-communist and Congress Forum
member Chandrajit Yadav. The judiciary was seen as obstructive because
of its decisions and for changing its mind, so there was wide support
outside Parliament for amendment, remembered Madhu Limaye. The
elections gave Mrs Gandhi a massive mandate to keep the courts away
from amendments to the Constitution, thought a senior Law Ministry
official, P. B. Venkatasubramanian.° The activists from the CFSA and a
few others were influential as never again. When it came to asserting
Parliament’s authority, curbing the judiciary, and centralizing authority
in the name of social revolution, Mrs Gandhi found herself pushing on
an open door.
But her promises to amend the Constitution also awakened anxieties
as 1971 began. Madhu Limaye continued to point out the danger to
democracy of unbridled legislative power, despite his warnings being
shrugged off as anti-Congressism. Chief Justice Sikri spoke to a bar
association about the ‘insidious efforts’ to undermine the judiciary. The
Constitution, not election returns, provided the only touchstone for

3 CPM member of Parliament A. K. Gopalan repeated this during the debate on the
7, no. 53, col. 159.
Twenty-Fourth Amendment. Lok Sabha Debates, Fifth Series, vol.
4 Quotations are taken from the election manifest os in Mehta, Election Manifestos,
1971.
of the Tamil,
The two manifestos not calling for constitutional changes were those
bstantial peasants led by
socialist, Dravida Munnetra Kazhagam and the party of more-su
Charan Singh, the Bhartiya Kranti Dal or BKD.
5 All in interviews with the author.
 236 Working a Democratic Constitution
, Judges, he said, and asked, ‘What kind of oath would a “committed
' judge” like to take?’® Former Chief Justice B. P. Sinha both defended
the Supreme Court’s power of judicial review and Parliament’s authority
to amend the Fundamental Rights.’ K. Santhanam called the ‘supremacy
of Parliament’ a ‘specious slogan’. A written constitution and a powerful
and impartial Supreme Court ‘are indispensable for the protection of
Indian federal democracy’, he said.® Criticism would intensify as the
amendments took shape.
But, her critics out-numbered, Mrs Gandhi was justified in interpreting
the Congress’s electoral showing and 350 seats in Parliament as a mandate
for change. Likewise, it was a national vote of confidence in her, for in
the ‘delinked’ election only seats in Parliament and her leadership of it
were at issue. But what change? The citizenry had voted for Mrs Gandhi
and garibi hataoin the hope that their lot might improve. But the Prime
Minister’s interest and that of many of her supporters was in political—
economic theory, in constitutional change, and in the wielding of power—
although they sincerely intended the constitutional changes to have
immediate or trickle-down effects.

Framing the Amendments Begins

The returns from the 1-10 March 1971 elections were barely in
when
on 18 March Mrs Gandhi appointed H. R. Gokhale her Law Minist
er
and the framing of the promised amendments began. Six ideas
for
carrying out the Congress’s well-advertised intentions were
afloat in
the political and intellectual currents at the time. One, parlia
mentary
supremacy should be restored, along the lines of the Nath
Pai Bill, to
overcome the intrenchment of the Fundamental Rights
by the Golak
Nath decision. Two, the property articles (especially Article
31) should
be amended to keep the courts away from property acquis
itions and
compensation issues. Three, ‘property’ should be taken
entirely out of
the Fundamental Rights. Four, the socialist promises of
the Directive
Principles of State Policy should be fulfilled by giving
the Principles
® Speech to a conference of the bar of the Punjab
and Haryana High Court. Swarajya,
(a semi-official publication of the Swatantra Party),
27 March 1971. Sikri had become
Chief Justice of India on 22 January, 1971.
” Free Press Journal, 23 January 1971.
8 Swarayya, 30 January 1971, Acharya Kripalani admon
ished members of Parliament
not to expect judges to represent public opinion.
Indian Express, 30 January 1971.
9 The following account is based upon interviews
with more than a dozen individuals
who then were participants or observers,
 Radical Constitutional Amendments 23 7

had
precedence over the Rights, even though the Constituent Assembly
privy
made the Principles non-justiciable. Five, the princes’ privileges and
legislation
purses were to be abolished. Thought was given briefly to using
purses, but
instead of constitutional amendment to abolish the princes’
the ‘Secretary
amendment won. And six, the perquisites of retirees from
prominent of which
of States Services’ of the colonial period, the most
was the Indian Civil Service, were to be abolished.
hy drafung
Centrally engaged in sorting out ideas during the lengt
S. Ray.!° Gokhale,
process were Gokhale, Mohan Kumaramangalam, and §.
lawyer and a judge on the
a convinced socialist, had been a trade union
aining of the low
Bombay High Court—from which he resigned, compl
and after the 1971
pay. He had joined the Congress after the 1969 split,
Ray, it is said, urged Mrs
elections, Kumaramangalam, Rajni Patel, and
to account for his
Gandhi to appoint him Law Minister, which helps
was a long-time family
reputation of being under their influence.!! Ray
’ and he contributed
friend of the Nehrus. He called Mrs Gandhi ‘Indu
ted by democratic
loyalty, legal knowledge, and political ‘sawvy’ unadultera
of the ideas for the
or ideological sensibilities. He provided many
va Reddy and others.
Twenty-fourth Amendment, according to Sanji
Mrs Gandhi, was the driving
Kumaramangalam, who was friendly with
rred to by some as ‘three
intellectual and ideological force of the trio (refe
substantive contributions.
musketeers’), and he made the most significant
nists’ and a Congress
Rajni Patel, once one of Bombay’s ‘whisky commu
Congress president, made
Party fund-raiser, and Dev Kanta Borooah, later
Congress Forum for Socialist
contributions from their association with the
instructions—if she gave
Action.!2 All functioned under Mrs Gandhi’s
eyes.
them—and always under her w..tchful
e property from the
The decision not to attempt to eliminat
pursue broader parliamentary
Fundamental Rights and, instead, to
Nath Pai Bill, seems to have
authority, following the example of the
after the election. Mrs Gandhi
been taken at the first cabinet meeting
ster
on 2 May, were Kumaramangalam as Mini
10 fn Mrs Gandhi's cabinet, announced in Marc h 1972
of Education (until he was sent off
of Steel and Mines and Ray as Minister rs included
and crack down on the Naxalites). Othe
to be the Chief Minister of West Bengal amaniam,
C. Subr
van Ram, Minister of Defence, and
Chavan as Minister of Finance, Jagji and sever al other portfolios.
ter held the Home
Minister of Planning. The Prime Minis High Cour t, see Bombay
when resigning from the
11 For the text of Gokhale’s remarks Cong ress at Rajni
68, 1966, p. 81. Gokhale joined the
Law Reporter, Journal Section, vol. for the Lok Sabha
ber of the Gokhale family. He ran
Patel’s urging, according to a mem K. P. Unni kris hnan .
ng, according to R. K. Garg and
in 1971 at Kumaramangalam’s urgi Krishan Kant , N.
others, R. Venkataraman, S. S. Ray,
12 From interviews with, among B. Venkatasubraman ian.
C. Pant, S. K. Maitra, and P.
K. Seshan, B. N. Tandon, K.
238 Working a Democratic Constitution
made this decision, reasoning, according to a person present, that the
former course would arouse powerful resistance. As a result, Gokhale
instructed the ministry through Law Secretary R. S. Gae late in March to
‘get rid of the Golak Nath decision along the lines of Nath Pai’, and the
Twenty-fourth Amendment was born.!? At the beginning of April, the
AICC adopted a resolution calling for the necessary amendments, but,
curiously, only after Mohan Dharia had moved such an addition to fill a
lack in the original resolution.!4 In May and June came indications that
there might be two amendments. One might address property, without
removing it from the Rights, and another establish parliamentary
sovereignty. The former was the germ of the first portion of the
Twenty-fifth Amendment. Minister of State for Home Affairs R. N. Mishra
told the press that the government was considering ways to deal with
property rights because the Nath Pai model was inadequate. !°
The by now highly influential Congress Forum, meeting in Bombay,
adopted a resolution strongly favouring parliamentary sovereignty and
attacking property. It advocated removing from the Constitution the
article barring Parliament from making laws inconsistent with the
Fundamental Rights—after which ‘it would not be difficult to amend
the Fundamental Rights’ through ordinary legislation. The resolution
also recommended amending Article 368 ‘to confer [sic] specifically
the power of Parliament to amend Fundamental Rights’.!© And the
Forum suggested ending judicial review of laws ‘in consonance’ with
the Directive Principles thus introducing an idea that would appear
as the second portion of the Twenty-fifth Amendment. Raghunatha
Reddy commented at the meeting that the Directive Principles ‘should
prevail’ over the Rights were there a conflict between them.!” The

13 Gae instructions to P. B. Venkatasubramanian. R. V. S. Peri Sastri did the actual

drafting. Venkatasubramanian interview with the author.
Some accounts of this cabinet meeting have Mrs Gandhi instructing Gokhale also to
draft legislation—not a constitutional amendment—abolishing the princes’ privileges
and purses.
'4 Congress Marches Ahead IV, AICC, New Delhi, 1971, pp. 32-7. Y. B. Chavan had
moved this ‘Pledge to the People’ resolution and accepted Dharia’s addition. The common
man, said Chavan, expected ‘a new deal’; the Congress would ‘serve ... [the people] and
work for a better future’.
Concluding the session, Mrs Gandhi made her ‘Our path is socialism’ speech, used
as a superscript for this part. Ibid., p. 70.
15 Statesman, 1 May 1971.
16 Socialist India (the CFSA journal), 8 May 1971, p. 19. Also, Statesman, New Delhi, 3
May 1971.
17 Socialist India, p. 20.
 Radical Constitutional Amendments 239

Statesman reported early in June that in the property article Article

31(1) the word ‘compensation’ would be changed to ‘amount’ with
the intent of ending judicial review of property legislation by denying
the courts opportunity to apply qualifying adjectives—such as ‘fair’,
‘just’, ‘adequate’—to ‘compensation’.!8 The cabinet considered these
drafts late in the month and early in July gave provisional approval to
the Twenty-fourth Amendment’s changes to Article 368.!9
During June, unexpected language was added to the drafts of each
amendment. To the Twenty-fourth was added a provision saying that the
President ‘shall give his assent’ to a bill to amend the Constitution were
one presented to him. This made explicit the convention of the
Westminster Model—although, as mentioned earlier, Rajendra Prasad
had questioned the convention. Accounts vary as to why the tacit now
had been made formal. According to S. S. Ray, it was to establish the
‘absolute supremacy of Parliament’ by preventing a future President from
refusing his assent.2° It is doubtful that the provision was aimed at
President Giri, known to be friendly with the Prime Minister. The
ostensible, technical reason, according to a Law Ministry official, was to
emphasize the distinction between presidential assent to ordinary
legislation and to amendments, which were not ‘law’.2! Some others
believed it was the CPI and the ex-communists in the CFSA who did not
want ‘their influence to be scuttled’. This supposition is supported by
Rajni Patel’s claim that he instigated inclusion of the provision.22 The
addition to the draft Twenty-fifth Amendment took to radical lengths
the idea that the Directive Principles should have precedence over the
Fundamental Rights. It inserted a new, two-part article into the
Constitution (Article 31.C), the first part of which said that no law giving "4
effect to certain of the Directive Principles should be void on the ground

More radically, the resolution recommended amending the articles providing for
equality before and equal protection of the law so that the government could prescribe any
land ceiling and take over lands in excess of the ceiling without compensation. Moving the
resolution, Rajni Patel said the Constitution did not envisage the supremacy of the judiciary, | 1“,
rather that of Parliament, which ‘represented the entire people of India’. Ibid., p. 19.
It was at this time, May, that the government nationalized general insurance by
ousting
ordinance, and the Prime Minister ‘restructured’ the Planning Commission,
Sukhamoy
the highly respected economist, D. R. Gadgil, and appointing to it B. S. Minhas,
Chakravorty, and C. Subramaniam.
18 Statesman, New Delhi. Editorial of 4 June 1971.
19 Hindustan Times, 26 June 1971.
20 Interview with the author.
21 p B. Venkatasubramanian in a letter to the author.
w with the author.
22 Patel to Ram Panjwani, according to Panjwani in an intervie
 240 Working a Democratic Constitution
. More
of inconsistency with several articles in the Fundamental Rights
be
radically, the second part provided that no law declaring its intent to
d
fulfilment of the Principles could be questioned in court ‘on the groun
P.
that it does not give effect to such policy’. Raghunatha Reddy, D.
Singh, Chandra Shekhar, and Mohan Dharia drafted this article in
Reddy’s office when he was Minister of State for Company Affairs.29
After a meeting of its Political Affairs Committee on 15 July, the
cabinet endorsed a Law Ministry note that laid out a strategy for three
amendments: the first to establish parliamentary supremacy, another
to modify the property article, and a third to end the princes’ purses
and privileges. The cabinet instructed Gokhale, Kumaramangalam, and
Ray to make final revisions in the draft amendments. Finding the Twenty-
fifth Amendment’s new Article 31C controversial, the cabinet took it to
a meeting of the Congress Parliamentary Party, where it was approved.
The Law Ministry recommended that the amendment to Article 368 be
enacted first to clear the way for the others. The amending bill on purses
and privileges wouid be introduced in the session about to begin, but
passage would be delayed until later.*4
Two days before the 15 July cabinet meeting the Congress Forum
had flexed its muscles publicly to complement its influence in the inner
circles of government. On 13 July, 210 Members of Parliament sent the
Prime Minister a memorandum embodying the forum’s positions and
invoking the Congress election manifesto on constitutional amendments.
The document contained the essence of the three amendments just
described, and that of a fourth, one ending certain perquisites of the
few surviving members of the ICS which would become the Twenty-eighth
Amendment. A deputation of forty persons—including Krishan Kant,

23 Raghunatha Reddy, in an interview with the author and confirmed by R. C. Dutt.

-~K. P. Unnikrishnan recalled ‘brainstorming’ sessions in Reddy’s home. Interview with
the author.
The relevant Directive Principles were Article 39 (b) and (c): respectively, the State
shall direct its policy towards securing that the ownership and control of the ‘material
resources of the community are so distributed as best to subserve the common good’,
and, the operation of the economic system ‘does not result in the concentration of wealth
and means of production to the common detriment’.
The Fundamental Rights that could not be invoked were Article 14 (equality before
and equal protection of the law), Article 19 (the ‘freedoms’ article), and Article 31
(property). Article 31C clearly seems descended from the resolutions passed at the May
CFSA meeting in Bombay.
. 24 From reports in Statesman and Hindustan Times, 16 July 1971 and in Socialist India,
17 July 1971.
The Political Affairs Committee at this time consisted of Mrs Gandhi, F. A. Ahmed,
Jagjivan Ram, Y. B. Chavan, and Sardar Swaran Singh.
 Radical Constitutional Amendments 241

Amrit Nahata, and D. P. Singh—delivered the memorandum to Mrs

Gandhi, who responded that the government would consider it.2° The
initiative for the memorandum is disputed. According to some, the
Forum conceived the idea in order to stiffen the Prime Minister’s wavering |
resolve by demonstrating to her the strength of her support. Others
think Mrs Gandhi instigated the affair—directly or by hint—to show
the support she could muster for such radical measures. It was mutual,
Krishan Kant recalled. ‘Indira Gandhi understood the people’s mind,
but we were not sure she understood socialism.’*°
Just ten days before the amendments would go to Parliament, the
Forum again showed its strength by collaborating with the Congress
Parliamentary Party—Krishan Kant, Secretary—to hold a seminar on ‘Our
Constitution and Social Transformation’ whose declared purpose was to
help jurists find a way out of the impasse created by Golak Nath.?’ Kant
opened the seminar by saying that further social progress would be
difficult if the Supreme Court’s decisions were let stand, but there should
be no antagonism between the Rights and the Principles. The Principles
had been reduced to ‘pious declarations’, and to implement them ‘it
may become necessary to examine the basic needs of the Constitution,’ |
Kant said.28 The Attorney General, Niren De, told the meeting that the
Constitution should be amended to ensure Indians’ economic liberties, ”
which were ‘more fundamental than the Fundamental Rights’. He \
contended that ‘an unamendable constitution is a contradiction in
terms’.22 Besides, asked De, what did the right to property amount to
when ninety per cent of the population had none?
The report of the seminar, which was prepared by an ‘Expert
Committee’ and sent to Mrs Candhi by Krishan Kant, contained the
full flavour of Congress Forum radicalism.”° In its unanimously- agreed-to
to the
25 The Times of India, Bombay, 14 July 1971, described the MPs as belonging
July 1971,
Congress Forum. The text of the memorandum appeared in Socialist India, 17
pp. 5-6.
P. Unnikrishnan,
26 Krishan Kant in an interview with the author. Interviews also with K.
were rumours that D. P. Dhar had put the word about
R.C. Dutt, and S. L. Shakdher. There
that the Prime Minister would welcome evidence of support.
to the Constitution’s ,
The memorandum recommended that ‘socialist’ should be added
come in 1976 with the Forty-V
Preamble to define ‘Republic’—a move whose time would
second Ainendment.
and Akbar Ali Khan, then
27 Statesman, 13 July 1971. Former Chief Justice S. K. Das
.
Vice-Chairman of the Rajya Sabha, chaired the seminar
28 Socialist India, 24 July 1971.
29 Statesman, 19 July 1971; Socialist India, 24 July 1971.
Rau, editor of the pro-Nehru
30 Members of the committee were: M. Chalapathi
Muham mad, Advocate General of Kerala,
Lucknow newspaper, National Herald; V. A. Seyid
242 Working a Democratic Constitution
narrative section, the report said that ‘no provision of the Constitution
is immutable ... the power of amendment... is in the nature of a safety
valve ... an unamendable Constitution is the worst possible tyranny ...
[T]he word “compensation” should find no place’ in the Fundamental
Rights. The rights in Articles 14, 19, and 31 ‘must be withdrawn ... to
reduce the concentration of wealth in the urban sector ... and monopolies
in the industrial sector ... Without these changes our commitment to
establish a socialist society shall remain a dead letter ... Parliament and
legislatures must be free to exercise complete control over the ownership
of the means of production and the property used for controlling others.’
The report concluded with recommendations like those by the 210
members of Parliament.*!
The public personalities who had so often criticized government policy
reacted to these views negatively and sharply. Ashoka Mehta, N. A.
Palkhivala, Subba Rao, and K. Santhanam challenged the seminar’s
‘propaganda’ and its assumption that the Fundamental Rights obstructed
social change.** For Subba Rao, the right to property and to do business
‘is sought to be substituted ... by a totalitarian philosophy ... [enabling]
the State ... to confiscate property directly or indirectly or nationalise any
business ...’.29 For Palkhivala, an attempt to abrogate the Fundamental
Right to property ‘would ... run counter to the eternal laws of human
nature .... “Property” has become a dirty word today, “Liberty” may ...
tomorrow.’*4 Mehta wrote in the Sunday Statesman that excluding property
from the Fundamental Rights could be ‘looked into specifically’.

intervenor against the plaintiffs in the Golak Nath case, and later Minister of State for
Law; Lotika Sarkar, professor of law at Delhi University; S. C. Aggarwal, advocate in the
Supreme Court; and S. K. Goyal, the young economist close to the Young Turks.
31 The report of the seminar was made under its second name, ‘Parliamentarians’
Seminar on Constitutional Amendments’. See Socialist India, 31 July and 7 August 1971.
Opinion at the seminar was unanimous that privy purses and privileges should be
abolished. ICS privileges ‘should be withdrawn forthwith’. The Expert Committee report
also said, ‘[N] either the Union nor the States had treated them [the Directive Principles]
with the respect they deserved ... . It was found necessary to amend the Constitution ... to
compel the state to implement these directives under a duty to report to the President
each year.’ No law enacted to implement the Principles could be questioned ‘on the
ground ofviolation of any’of the Fundamental Rights (author's emphasis). Krishan Kant
predicted “bloody revolution” if the government failed to bring about social changes,
one newspaper reported.
32 Swarajya, 31 July 1971.
33 Subba Rao, K., ‘Can Parliament Change’ in Motherland, 26 July 1971.
34 Palkhivala, N. A., ‘Defend the Constitution and Protect the Common Man’,
Swarajya, Annual Number, 1971.
 Radical Constitutional Amendments 243

Otherwise, ‘the Fundamental Rights determine the character of our polity

... [and] the Directive Principles ... will be robbed of their substance the
moment fundamental rights are made vulnerable.’?°

Amendments in Parliament: The Twenty-Fourth

The stage had been set and the previews had revealed the play by the
time Law Minister H. R. Gokhale introduced the Twenty-fourth and
Twenty-fifth Amendments in the Lok Sabha 28 July 1971. They were
debated that day and for two days in August. The Rajya Sabha de-
bated the former on 10 August and passed it on the eleventh, and the
President gave his assent to the bill on 5 November after ratification
by the states. The Twenty-fifth Amendment was not debated again
until 30 November, in part because the enactment of the Twenty-fourth
Amendment was to clear the way for it. The Twenty-sixth Amendment,
terminating the princes’ purses and privileges, would be introduced
on 9 August. Debate on it was scheduled for early December, coinci-
The
dental with debate on the Twenty-fifth Amendment.°®
would
Twenty-eighth Amendment, affecting ICS conditions of service,
be introduced in May 1972.
of a
In the midst of this activity, on 9 August came the signing
the Soviet
twenty-year Treaty of Peace, Friendship and Cooperation with
nment wanted
Union. Arrived at, from the Indian side, because the gover
India have to
a deterrent to Chinese (or American) intervention should
g greatly
intervene to stop the blood-letting in East Pakistan, the signin
seemed to be an
enhanced the Prime Minister’s domestic standing and
rs
imprimatur for her radical constitutional policy. Congress Forum membe
s.?/
were ‘electrified ... with joy’, according to press report
Rights: Implications of Abridgement’, Sunday
35 Mehta, Ashoka, ‘Fundamental
Statesman, 25 July 1971.
private members’ bills favouring
36 At this time there had been introduced several
privileges, and there were eleven such
ending the princes’ privileges and purses and ICS
Constitution. Atal Bihari Vajpayee added
bills enabling Parliament to amend any part of the
calling for a national referendum on any
yet another private members’ bill on 9 August
a study of private members’ bills conducted
amendment of the Fundamental Rights. (From
er responded negatively in the Lok Sabha to
for the author by A. N. Kaul.) The Law Minist
nment refer the issue of Parliament’s power
a suggestion from Morarji Desai that the gover
Supreme Court for an advisory opinion.
to amend the Fundamental Rights to the
since 1969 until P. N. Haksar and D. P.
37 Negotiations for a treaty had languished of Haksar
to conclude an agreement. For the roles
Dhar urged the Prime Minister quickly Awana,
pp. 469-70. For the CFSA’s delight, see
and Dhar, see Frankel, Political Economy,
Pressure Politics, p. 223.
 244 Working a Democratic Constitution

V The Twenty-fourth Amendment went beyond Nath Pai’s simple bill—

that Parliament could amend any part of the Constitution. It excluded
amendments from the reach of Article 13—Parliament could make no
law infringing the Fundamental Rights. It empowered Parliament to
amend any part of the Constitution ‘by way of addition, variation or
repeal’, and it amended another clause in Article 368 to require that
the President ‘shall’ give his assent to any constitutional amendment
bill presented to him for assent.
v The Twenty-fifth Amendment was devoted to the property article of
the Fundamental Rights (Article 31) and the status of the Rights overall.
The word ‘amount’ replaced ‘compensation’ for compulsorily acquired
property, and the courts were barred from questioning the ‘amount’
on grounds that it was not adequate or paid other than in cash. It also
inserted the new Article 31C, as already described, including the ‘escape
clause’ (the author’s term) that no law declaring its purpose to be
fulfilling the Directive Principles in Article 39(b) and (c) could be
challenged in court on the ground that it did not do so. The fundamental
rights of equality before the law (Article 14), the ‘freedoms’ of Article
19, and the property terms of Article 31 were to be made subordinate
to the two most classically socialist of the Directive Principles, and an
entire category of legislation placed beyond judicial review. These
amendments now will be taken up individually.
With the Treasury Benches full following a three-line Whip, Gokhale
moved consideration of the Twenty-fourth Amendment. The ‘people are
sovereign and Parliament, which is fully representative of the people, is
supreme ... [elected] to remove impediments to the fulfilment of our
socio-economic programmes,’ he said. He derided the ‘argument of
fear and nervousness’ that the bill endangered fundamental rights like
those of speech and assembly. Proclaiming the bill’s innocence, he said
it was merely an enabling amendment. Supporting him, S. S. Ray said
that the Fundamental Rights are sacrosanct so long as the Right is
fundamental and to be fundamental it has to be a Right. Life and liberty
are natural rights, Ray said, inherent and innate. But civil rights, like
property and freedom of contract are an outgrowth of civilization and,
for Indians, did not pre-exist the Constitution. One assumes that he meant
that the night to property could be taken away. Ray apparently was oblivious
to this being criticism of the Twenty- fifth Amendment's Article 31C, which
jeopardized the rights to life and liberty, the very rights he had categorized

38 For the relevant Rights and Principles, footnote 23 also above.

39 Tok Sabha Debates, Fifth Series, vol. 7, no. 53, col. 146.
 Radical Constitutional Amendments 245

as inherent and innate. He cited Franklin Roosevelt’s desire for “Justices

who will not undertake to override the judgement of the Congress on
legislative policy”’. He played down the Golak Nath decision: “Excessive
import should not be given to the single judgement of a narrowly divided
court.’ And he pointed out that in Shankari Prasad the court had ruled
the Fundamental Rights amendable.””
Speaking later on the provision in the amendment compelling the
President to assent to amending bills, Gokhale offered a seemingly
contrived explanation. This really was ‘the government depriving itself
of its power to advise the President to withhold assent’, he said. ‘{T]he
power of the Council of Ministers is taken away by saying that the
President shall give his assent, the reason being that in a matter where
the Parliament has sat as a constituent body and exercised its sovereign
power ... not even the government should have the power to advise the
President to use the power of veto.’*! An editorial in Socialist India came
closer to the mark when it said that the provision ‘would also eliminate
the delaying power which the President could exercise by withholding
assent temporarily under Article 111 and remitting any particular bill
to Parliament for reconsideration’.
Mrs Gandhi commended the bill as serving the common man. ‘I see
no reason in a denial of radical change .... Commitment is a good word
and our commitrnents are [directed at] change in the lives of millions of
people.’ Returning to her father’s arguments about ‘compensation’
during the First Amendment debate, she asked, ‘Compensation for what
... compensation for land ... for a palace or big house? ... [W]hat about
compensation for injustice?’ We do not intend to abolish property, she
added, but ‘where property rights are in conflict with public purpose,
the public purpose must hold sway’.4? Congress Forum members
predictably supported the bill. Kumaramangalam charged that every
opponent of the bill was a man of property, and he attacked Supreme
Court judges as coming from ‘the class of men of money and property

40 Ibid., cols 255, 258.

connected it directly
The Statement of Objects and Reasons accompanying the bill
d its earlier decisions ‘upholding
to the Golak Nath decision, saying that the court reverse
ution’ by a narrow majority.
the power of Parliament to amend all parts of the Constit
that Parliament can amend any part of
Therefore, it is necessary ‘to provide expressly’
the Constitution:
41 [ok Sabha Debates, Fifth Series, vol. 7, no. 54, cols 360-1.
on 7 August, K. Santhanam called
42 Socialist India, 31 July 1971. Writing in Swarayya
the President’.
the provisions ‘a wholly unwarranted insult to
368.
ally col.
43 [ok Sabha Debates, Fifth Series, vol. 7, no. 54, cols 267ff, especi
246 Working a Democratic Constitution

_.. that undemocratic collection of very respected gentlemen’.*4 The

Congress(O) decided on 2 August to give its support.
Opponents of the bill were impressive in argument, although not
in the number of votes they could muster. Their pleas to protect civil
liberty and the Constitution from outrage went unheeded. The Socialist
Party, a recent merger of the PSP and SSP, said it supported the bill, but
in essence it did not, for with ‘support’ came its reservation that
Parliament had no right to amend any of the Fundamental Rights
beyond property.*? The several species communists of presented the
curious spectacle of being more solicitous of the Fundamental Rights
than the ex-communists and others of the Congress Forum. This perhaps
is not curious: those out of power were more concerned about civil
liberties than those in power. Hiren Mukerjee, the prestigious elder
statesman of the CPI, spoke of ‘our reservations ... misgivings ... suspicions’
about how the government might use its massive majority.4° The CPI
offered an amendment to the amending bill exempting the freedoms of
speech, assembly, association, and movement from abridgement by it—
only to withdraw its amendment at Kumaramangalam’s urging.47 CPM
members A. K. Gopalan, Somnath Chatterjee, and others, while
supporting the amending bill, also favoured protecting rights like
speech.*® Swatantra member P. K. Deo, while being heckled loudly from
the Treasury Benches, recalled Asoke Sen’s characterization of the Nath
Pai Bill as dangerous because a supreme and irresponsible Parliament
with an irresponsible majority ‘may sweep away the very basis of the
Constitution’.49 Vajpayee and his Jana Sangh party colleagues walked
out when the Speaker refused to allow a full discussion of Deo’s points.
DMK member Era Sezhiyan pointed out that the Joint Committee on
the Nath Pai Bill had recommended state ratification of amendments
affecting the Fundamental Rights.

44 Tid, cols 219, 222ff.

45 Karpoori Thakur to a press conference in Patna on August 20. Hindustan Times, 23
August 1971. Thakur, former Chief Minister of Bihar, had chaired the merger meeting of
9 August. The merger lasted nine months until it foundered due to a conflict between
Madhu Dandavate and Raj Narain.
Opponent of the Nath Pai Bill and of Parliamentary authority to amend all the
Fundamental Rights, Socialist Party leader Madhu Limaye was sticking to his guns. See
Janata, Independence Day Number, 1971, p. 26.
4 Lok Sabha Debates, Fifth Series, vol. 7, no. 54, col. 405,
47 Noorani, A. G. ‘The Constitutional Crisis’, Indian Express, New Delhi, 15 December
1974.
48 For Gopalan, see Lok Sabha Debates, Fifth Series, vol. 7, no. 53, col. 161.
49 Tok Sabha Debates, Fifth Series, vol. 6, no. 48, col. 286.
 Radical Constitutional Amendments 247

All changes to the amending bill seeking to give extra protection to

fundamental rights other than property were defeated. The bill passed
384 to 23 in the Lok Sabha with Congress members thumping their™
tables and shouting “victory to the people”’.°° Little of the debate in the
Rajya Sabha, where the bill passed 177 to 3, distinguished it from that in
the Lok Sabha.
The bill then went to the state legislatures for ratification—a course
that would not have been taken but for the support for ratification
given to the Law Minister by senior civil servants. The Secretary of the
Law Ministry, R. S. Gae, had sent a memorandum in mid-July to Gokhale
predicting that ‘laws enacted in pursuance of the Article [368] as
amended’ would be ruled unconstitutional if the amending bill were not
ratified.>! Gae also suggested to Gokhale that M. C. Setalvad, as a former
Attorney General, might be consulted. S. S. Ray and Kumaramangalam
concurred, although they were thought by some to consider ratification
needless. So, late in July, Gae travelled to the southern hill station of
Ootacamund to meet ‘Mr Law’. Within a few days, Setalvad sent a written
opinion that the bill needed ratification.°* His advice was rejected during
further consultations in New Delhi. Gokhale told the Lok Sabha at the
end of the second reading of the bill that ratification would not be sought
because it was required only if an amendment affected federal issues.>9
Proponents of ratification persisted, and, at the last moment, the matter
went to the Prime Minister, who decided in favour of ratification.°4 Only
a few hours after saying the bill need not be ratified, an embarrassed
Gokhale had to tell the Lok Sabha that it would be.°?

Positive and Negative Reactions

A spate of reportage and commentary in the press greeted the three
the title
amendments when they were introduced. ‘24 Yes, 25 No’ was
of
of the lead editorial in the Hindustan Times, reflecting the mood
d,
many. The flexibility of the pre-Golak Nath situation must be restore

59 Hindu, 5 August 1971.

officers,
51 RS. Gae ina letter to the author. Gae was supported by two of his senior
S. K. Maitra and P. B. Venkatasubramanian. (Their interviews with the author.)
52 Gae letter to the author.
53 Lok Sabha Debates, Fifth Series, vol. 7, no. 54, col. 359.
.
54 s |. Shakdher interview with the author
54, col. 416. Many of those involved
55 Lok Sabha Debates, Fifth Series, vol. 7, no.
had recommended its ratification
recalled that the Joint Committee on the Nath Pai Bill
. Report of the Joint Committee, p. vii.
‘in view of the importance of the Fundamental Rights’
248 Working a Democratic Constitution

the paper said, but Article 31C opened the door to ‘arbitrary and vindictive
political action against which the citizen has no redress’. The Statesman
editorialized that the communists wanted the bills to enable them to
impose any law on the ground that it was compatible with the Directive
Principles. The Indian Express warned that the ruling party ‘might not
always be one that believes in orderly progress on democratic lines’. Loyal
to Mrs Gandhi, the National Herald favoured both amendments and said
‘nobody but monopolists and fascists can oppose’ Article 31C. Socialist
India said that the amendments should be welcomed by those who
believed in ‘major social change and redressing entrenched injustice
through peaceful and democratic means’. M. C. Setalvad, who in the
Rajya Sabha had favoured the Twenty-fourth Amendment for restoring
the pre-Golak Nath situation, characterized the Twenty-fifth as an ““unwise
step and a complete negation of the rule of law”’.°© C, Rajagopalachari
and V. M. Tarkunde also thought the amendment dangerous for
democracy.
Unexpectedly, a startling critique came from a body within the Law
Ministry, the Law Commission. The commission, as noted earlier, had
been ‘reconstituted’ to make it more sympathetic to the government’s
views—in the same month that these amendments had been presented
to Parliament. Initially, its members had not jarred expectations. For
example, commission member Krishna lyer, after the amendments had
been presented to Parliament, wrote that he thought Article 31C had
established a ‘new harmony’ between the Rights and the Principles.
Talk of social justice is ‘gibberish ... where inhuman poverty’ is
widespread and ‘accumulated inequity wearing the armour of property
rebuffs drastic restraints’, he said.?” Yet, the commission published an
unsolicited report opposing portions of the Twenty-fifth Amendmenta
month before Parliament would take it up. Not ali of the freedoms in
Article 19 should be made secondary to implementation of the Directive
Principles, the commission recommended, only clauses (1) (f) and (g)

56 At a symposium at the Punjab University Law Department. Motherland, 8 November

1971.
57 Hindu, 15 September 1971. Krishna Iver quoted Lord Hailsham, then Lord
Chancellor, that the law of one age may be the injustice of another, and that the courts
were to say what the law is and Parliament was to make laws in the spirit of the day.
Commission chairman, former Chief Justice Gajendragadkar, had found it ‘difficult
to assume’ that the framers thought the Fundamental Rights ‘were immutable’. He
thought that Parliament should be capable of amending the Rights to conform with the
principles ‘essential for the governance of the country’. Gajendragadkar, P. B., The
Constitution of India: Its Philosophy and Basic Postulates, Oxford University Press, Nairobi,
1970, pp. 83-4. The Gandhi Memorial Lectures at University College, Nairobi, 1968.
 Radical Constitutional Amendments 249

of that article (the rights to property and to practice a profession or

carry On an occupation or business) which the Supreme Court had used
in striking down bank naticnalization.°® And the report ‘strongly’
advocated that the ‘escape clause’ of new Article 31C be omitted. It saw
‘no justification for excluding judicial enquiry ... as to whether there is
any rational nexus ... between the law passed ... and the objective intended
to be achieved’.°?
Gajendragadkar was sufficiently concerned about these elements of
Article 31C to speak to the Prime Minister about them. At least ten days
before the Law Commission would issue its report, he met her and
expressed his ‘serious misgivings’ about the article. He then wrote to her
on 18 October reminding her of his ‘misgivings’ and informing her that
he had spoken about the amendment ‘with my friends Ministers Gokhale,
Mohan Kumaramangalam and Siddhartha Shankar Ray’. Because the
Law Commission would soon make its report on the bill to the Law
Ministry, Gajendragadkar continued, ‘I am keen to meet you and give
my views for your consideration before you take a final decision.’©° If the
requested meeting took place, Mrs-Gandhi was not swayed.
Gokhale, also, had doubts about Article 31C, and, especially, about
the ‘escape clause’. He asked R. S. Gae to analyse it. Gae did so in a
ten-page paper in which he advised that ‘this provision in Article 31C be
deleted’.®! Gokhale’s doubts, reinforced by Gae’s and the Law Commis-
sion’s views, seem to have caused him to attempt to soften the Twenty-fifth
Amendment. Four days before the bill was to be considered he suggested
three amendments to it. These allowed courts, with some restrictions, to
review laws passed under Articie 31C by Parliament and state legislatures;

|
58 aw Commission of India, Forty-sixth Report on the Constitution (Twenty-fifth Amendment)
Bill, 1971, Ministry of Law, GOI, New Delhi, undated (but report signed 28 October,
1971), p. 10. The report quoted at some length Austin, Cornerstone, to the effect that the
Indian Constitution is first and foremost a social document.
59 Ibid., p. 11. As foundation for their views on the Twenty-fifth amendment,
Commission members first discussed the Twenty-fourth, saying that it gave Parliament
no power not originally held under Article 368. They believed it would not be challenged
in court. Turning to the latter amendment, with whose object they were in ‘fullagreement’,
the members said that Parliament was taking the ‘first major and significant step towards
implementing two of the Directive Principles ... . So far as we are concerned, the days of aie
laissez faire and.the rule of the market are over ... [T]he Directive Principles
... must w\ WS.
become a reality ... of national life.’ Ibid., pp. 5, 10.
60 Letter dated 18 October 1971. Gajendragadkar Papers, Subject File I, NMML.
Gandhi received
Two weeks after the Commissin chairman had written this letter, Mrs
an honourary doctorate in civil law from Oxford University.
61 Note by R. S. Gae dated 12 November 1971. Ibid.
250 Working a Democratic Constitution

said that such laws must be passed by a two-thirds majority; and provide
for market value compensation for takeover of property belonging to
educational institutions run by religious and linguistic minorities.
Raghunatha Reddy, Dharia, and others, opposed the changes. The gov-
ernment withdrew them and they were not moved in Parliament.°? The
Prime Minister had allowed her Law Minister to venture forth and then
let others overrule him.

Amendments in Parliament: The Twenty-Fifth

When Parliament resumed consideration of the Twenty-fifth Amendment
on 30 November, Gokhale acted the good soldier. He said that the gov-
ernment found it difficult to accept the Law Commission’s recommen-
dations in regard to Article 31C. All the freedoms in Article 19 must be
excluded as a basis for judicial review of legislation declared to be for
implementing the Directive Principles. The commission’s recommen-
dation that the ‘escape clause’ be deleted was not acceptable because if
the courts could decide whether or not a law truly implements the Di-
rective Principles, we would be ‘dropping the judges ... into an arena
which rightly belongs to the field of public life with which ajudge ... is
not concerned ... [T]he worst danger is that we enable them to infuse
their own political philosophy in their judgements, which unfortunately
has been the experience ... for the past ten years.’©5
Mohan Kumaramangalam supported ‘his’ bill, arguing that there is
nothing arbitrary or undemocratic about taking property for a public
purpose and that judges should not decide political matters. “We should
not permit the courts ... to sit injudgement on issues which are really
political.’ It ‘is for us to decide ... whether the laws would in reality
implement the Directive Principles’. He quoted Morris Cohen that
limiting the property rights of large landholders ‘“may promote real
freedom” ’.%* Soon we shall be taking over coal mines, Kuamaramangalam

62 Nakade, Shivraj, ‘The Constitution (Twenty-Fifth) Amendment—A New Social

Order’, /CPS, vol. 6, no. 3, 1972, pp. 69-70.
©3 Lok Sabha Debates, Fifth Series, vol. 9, no. 12, col. 230.
Gokhale also defended the bill as part of a programme to restructure the ‘entire
socio-economic fabric’ of the country, which would involve greater government
‘intervention including nationalization’. Judges were to be protected from themselves
and saved from the ‘catastrophe’ of public controversy. Ibid., cols 222, 225.
There was a more mundane reason for not removing Article 31C from the amending
bill: it would have taken a cabinet decision to do so, reopening an issue more conveniently
left closed.
64 Thid., cols 311, 317, 318.
 Radical Constitutional Amendments 251

said; should compensation include coal still underground? We say no,

but it is a matter for Parliament to decide. Here in India some have
property and ‘vast millions ... have none or little’.© But V. K. Krishna
Menon—socialist in outlook but at this time the Prime Minister’s
opponent—although supporting the bill as ‘necessary’, criticized the
amendment’s being ‘rushed through’. He pointed out that legislation
does not cure everything and called the amendment ‘purely political
claptrap and vote-catching’.°° Piloo Mody agreed with two communist
speakers that reactionaries were less obstacles to socialism than was the
socialists’ inability to live up to their preaching.®7
Mrs Gandhi took the floor, to speak righteously of economic justice
and the exercise of power. It was ‘ridiculous to talk about arbitrary use of
powers’, she said, because the whole issue had been put before the people,
who had spoken. What is market value?, she then asked. ‘It is unacceptable
to us that a few should skim the cream of social investments, defrauding
society as a whole ... . The whole idea of private profit at the cost of the
common man is repugnant to me, to my party, and, I think, to the nation.’
As to the judiciary, we do not wish to weaken it, but ‘there is no decision
in the world which is not political’. Concluding this portion of the
debate, the Law Minister wholly reversed the positions of the Principles
and the Rights. ‘{T]he fundamental basis of all the structure that we
provide for the governance of the country should be the Directive
Principles and not the Fundamental Rights,’ he said.®? After the third
reading, the Lok Sabha passed the bill 353 to 20.
In the Rajya Sabha, where debate began 7 December, attempts to
delay the bill failed. The aiguments made were familiar. For M. C.
Setalvad, Article 31C destroyed the basis of the Constitution, ‘judicial
review in the rule oflaw’.’° For M. C. Chagla, the Fundamental Rights
were ‘the essence of our Constitution’, and the Directive Principles
could be implemented without violating them. Parliament can change
the Fundamental Rights only with a two-thirds majority, but a chief
minister can ‘wipe out’ Articles 14, 19, and 31 by making a declaration

65 [bid., col. 316. Kumaramangalam mentioned favourably Salvador Allende’s

nationalization of Chile’s copper mines. He cited T. H. Green and echoed an argument
he attributed to Friedrich Engels: ‘Since the enjoyment of property by the small narrow
groups is dependent on the non-enjoyment by millions, it is “theft”.’
66 thid., no.13, cols 307, 313.
67 Ibid., no. 12, col. 282.
68 [bid., no. 13, cols 337-46.
69 Ibid., no. 13, col. 353.
col. 46.
70 Parliamentary Debates, Rajya Sabha, 1971, vol. 78, no. 18,
 252 Working a Democratic Constitution

regarding a bill, Chagla pointed out correctly.’! L. K. Advani said the

Jana Sangh would support any bill earnestly seeking to implement the
Directive Principles. But for twenty-five years the executive had failed
to implement them. ‘I regard this bill only as an attempt to make the
judiciary and the Constitution a scapegoat for its own failures,’ Advani
said.’ Again, the bill passed overwhelmingly.
The end for the princes’ privileges and privy purses came in the Lok
Sabha on 2 December when it debated and passed the Twenty-sixth
Amendment in a single day—the day before the President declared a
national emergency after Pakistan attacked India in the Punjab. The Rajya
Sabha acted equally swiftly a week later. Introducing the amending bill
in the Lok Sabha, the Prime Minister said that its principle had already
been accepted ‘with an overwhelming majority’ in the Parliament. Its
earlier failure to pass was ‘a technical failure ... the will of the people was
not in doubt’.”* Chandra Shekhar expressed the views of the large number
favouring the bill when he called the princes ‘kings, remnants of
_ feudalism, creating hurdles [to progress] in undivided India’.’4* The
‘princes’ spokesman, Fatesinghrao Gaekwad of Baroda, said the princes
had been wronged by the government's ‘unilateral and arbitrary decision’
to abrogate ‘sacred agreements’. All in all, it was not a pretty spectacle.
Even supporters of the bill like Shyamnandan Mishra criticized the
‘slovenly and improper manner’ in which the issue had been handled.
In May 1972, after the Congress Party had won handsomely the March
‘mini-General Elections’ to state legislatures, Parliament passed the
Twenty-eighth Amendment empowering itself to alter the pension and
privileges of surviving members of the British-formed Indian Civil Service.
The Amendment fell short of being a noble endeavour, and its economic
significance was miniscule, for only eighty-one serving and retired officials
were involved. Yet for the government, ‘the concept of a class of officers
with immutable conditions of service is incompatible with the changed
social order,’ said Minister of State for Home Affairs Ram Niwas Mirdha,
introducing the bill for the two hours of debate allowed.”> Attacking

71 Ybid., no. 19, cols 3-11.

72 Tbid., col. 185.
73 Lok Sabha Debates, Fifth Series, vol. 9, no. 14, col. 139.
74 The speech, in Hindi, was translated for the author by Giridar Rathi.
75 Lok Sabha Debates, Fifth Series, vol. 16, no. 54, col. 275. Technically, the bill did not
alter the pension and other privileges of retired and still-serving members of the civil service
established by the British, which, once manned exclusively by them, by independence had
admitted a large number of talented Indians. The bill only empowered Parliament to ‘vary
or revoke, whether prospectively or retrospectively’, the terms of service. But it contained
 Radical Constitutional Amendments 253

these ‘privileges’ was not new. Private members’ bills in this vein had
been introduced in 1965, 1967, and 1970, and one was pending at this
time. The brief debate permitted a number of members to criticize
Indian Administrative Service officers (who replaced the ICS) as neither
‘committed’ to socialism and social revolutionary goals nor fitted by
background or training to effectuate social and economic programmes
in their districts. Although the bill passed 286 to 4 because it was seen
as ‘removing an anachronism’, communist members deprecated it as
‘another vote-catching slogan ... to divert the people’s attention from
the realities of the situation’.”©

The Web’s Seamlessness Forgotten

Among the varied beliefs and intentions of the Twenty-fourth and |
Twenty-fifth Amendments’ proponents, several were commonly held: ;
socialism, both as end and means, was unquestionably good; the Con-
stitution’s goal of social revolution had been ignored; Parliament had
to be made supreme over a property-oriented and capricious judiciary.|
The amendments successfully cleared the way for large-scale
nationalizations in industry and commerce that survived judicial scru-
tiny. Kumaramangalam had mentioned coal in this context while speak-
ing in Parliament. In the months after the amendment passed, coal,
coking coal, and copper mines were nationalized, along with steel plants,
textile mills, and shipping lines—totalling hundreds of nationalizations.
Kumaramangalam and his followers believed nationalization to be a
‘good’, even if efficiencies did not result, although Kumaramangalam
strongly had advocated public sector efficiency.’” Nationalization was

a provision that denied the Supreme Court or any other court jurisdiction over disputes
arising from the amendment, a device that Mrs Gandhi would frequently employ in future
amendments.
76 Somnath Chatterjee. Ibid., col. 282. This was 29 May. The Rajya Sabha considered
the bill on 30-31 May and the President assented to it 27 August 1972.
an-
Most of the so-called privileges had become inoperative. The one thousand pounds
recruited
nual pension had been reduced in the 1950s to a fixed sum of rupees. ICS officers
allowance paid in
in London before 1924 were entitled to home leave every few years, an
t’s passage,
sterling. But in 1972, few such individuals were still alive. After the amendmen
that for IAS members, age fifty-eight .
the retirement age for ICS members was set at
This did affect the few ICS members serving in the IAS.
Industry Ministry,
775 Guhan, who at the time served under C. Subramaniam in the
in an interview with the author.
views clear in speeches
Kumaramangalam was not man for subterfuge. He made his
posthumously, is Coal Industry
and articles. One of his lesser known publications, published
254 Working a Democratic Constitution
attractive to less Marxist individuals because mine and mill owners and
managers often exploited their properties shamelessly, placing profit
above maintaining healthy enterprises. Land reform efforts were to be
revived and strengthened, but the government and the Congress Party
again would demonstrate that their socialism did not extend to the
countryside. ’®
Kumaramangalam and the ex-communists in the Congress Forum
held an extreme position in their willingness to sacrifice constitutional
democracy and civil liberty to the social revolution. Some had never
believed in the seamlessness of the web, others were willing to endanger
it. And the Congress Party allowed Kumaramangalam’s extreme position
to stand as its own.’9 Explaining Article 31C, he said, “The clear object
of this amendment is to subordinate the rights of individuals to the
urgent needs of society.’ Defending the Article’s ‘escape clause’, he
claimed that the parliamentary ‘declaration’ it required ‘would not
protect a fraudulent exercise of this power ... [for] our courts will be
more than vigilant enough to ensure that the power granted for a specific
purpose ... will not be permitted to be used for any other purpose’.®°
Given the plain language of Article 31C, this argument is not believable

in India: Nationalization and Tasks Ahead, Oxford and IBH Publishing Co., New Delhi,
1973. Copy to the author kindness of Ram Panjwani.
78 The Congress high command established a new land reforms committee in May
1972—which included Kumaramangalam, Gokhale, C. Subramaniam and F. A. Anmed—
which discussed redefining the terms ‘personal cultivation’ and ‘family’, the large diameter
locpholes for avoiding agricultural land ceilings. Jagjivan Ram told an AICC meeting on
1-2 June what everyone knew, that there had been no proper implementation of land
ceilings and village land records were unreliable. A circular letter was to be sent to PCC
presidents to implementa ‘crash programme’ to collect information ‘regarding records
of real tillers of land’ using trained cadres. The next sentence demonstrated that this was
not sincerely intended, for it said that the collecting of ‘real data’ on land-holding should
avoid ‘any sort of tension or clash in villages’. Villagers, however, should sign the information
to give it authenticity. Congress Marches Ahead VI, AICC, 1972, p. 163.
Although the unreliable quality of village land records was a genuine impediment to
data gathering, the government and the Congress Party had long used it as a specious
justification for inaction on land reform. As Jagjivan Ram put it, ‘If Congressmen ... go
into a village ... everybody knows what are the holdings of a particular farmer’, within or
beyond the ceiling, ‘and if he possesses more than the ceiling limit, how he has managed
to bifurcate it by ... not quite desirable transactions’. Zaidi, A. M. (ed.), Not by Class War:
A Study of Congress Policy on Land Reform During the Last 100 Years, Indian Institute of
Applied Political Research, New Delhi, 1985, p.79.
79 Kumaramangalam, S. Mohan, Constitutional Amendments: The Reasons Why, AICC,
New Delhi, November 1971. The pamphlet was allowed to stand publicly as the Congress's
official position.
80 Thid., pp. 22-3.
 Radical Constitutional Amendments 255

and, were Parliament (or a state legislature) to misuse the provision,

rectification of a citizen’s denied civil liberties might never come from
the clogged court system. It was romanticism, or craft, to claim, as these
men did, that ‘in the last analysis, there cannot be any limitation laid
upon the sovereignty of the people’, in part because the ‘people’s
mandate’ was renewed every five years and thus was a self-correcting
mechanism—one apparently never to be sullied by manipulative leaders.
The communist parties were unwilling thus to relinquish liberty for
the goal of social revolution. A theoretical approach might allow this,
but there were the practicalities of their position. Although they, like the
ex-communists, thought bourgeois democracy incapable of bringing
about social revolution, and were willing to bend the Constitution to this
need, they, being out of office, needed to preserve the liberties in the
Constitution if they were to survive as a political opposition and to increase
their influence. The ex-communists of the CFSA, in office and influential,
apparently thought they needed liberty less. The Communist Party of
India, but not the Communist Party Marxist, would lose interest in
constitutional liberties when it thought it would share power with Mrs
Gandhi under the Emergency she declared in June 1975—‘the leftist
coup turned rightist’, as some named it.
The socialists, Young Turks included, had lost their way, misled by
their ardour. Although democrats by tradition, they had become so
dismayed by the slow progress toward social revolution under Con-
gress governments, coupled with their own political impotence, that
they embraced a position that sacrificed the democracy strand of the ‘
seamless web for the strengthening—so they hoped—of the social revo- AN,
|lutionary strand. They ignored the obvious risks, not pausing to think Ras
“that where bad law exists, someone will use it. Parliament at this time, Yer
remembered Mohan Dharia, did not understand the argument of fear
‘because the members had no intentions against freedom, liberty, and
the democratic structure’.2* The dangers from Article 31C to the
freedoms in Article 19 went ‘unheeded because of this atmosphere of
enthusiasm’, recalled R. C. Dutt.33 The seamless web forgotten, Par-

81 The CPI recanted in shame after the Emergency. The CPM sharply criticized the
Emergency during it. See Parts III and IV.
82 Mohan Dharia in an interview with the author.
the
83 Dutt in an interview with the author. That no thought was given to the danger
Pant, and Krishan
amendment posed to democracy was confirmed by Vasant Sathe, K. C.
Kant, in interviews.
case in
Article 31C was subjected to judicial scrutiny in the Kesavananda Bharati
ted again in other
1973, as will be seen. The article later was amended, and interpre
Supreme
256 Working a Democratic Constitution

liament had given the country ‘socialism minus democracy’, said S.

N. Mishra.®4
Without the Prime Minister’s favour, these amendments would not
have been enacted, but one may only speculate about her thinking.
She was ‘tepid’ on the privy purses issue, disinterested in banking, and
otherwise ‘ideologically neutral’, according to K. P. Unnikrishnan. Many
political participants and observers believe she welcomed the
confrontation with the judiciary as a perceived obstacle to social
progress, but more believe that she had it in her sights as a piece of
governmental machinery beyond her control. Were mastery of the
Supreme Court to be added to her mastery of Parliament, she would
have virtually unchallengable control of the government and, nearly,
of the country. Her motives are difficult to discern because it was her
style to leave the initiative to others. Kumaramangalam, Ray, Gokhale,
and their fellow-thinkers led the drive to amend the Constitution, but
behind it was Mrs Gandhi, shadowy but omnipresent. Yet this was not the
policy of ‘drift’ with which she has been charged. Although she seemed
ambivalent at times, she could sense the direction of events and let them
take her where she wished to go. She surely was aware that some of these
activists believed they were using her, thinking that through her social-
economic reform might be better pursued, their own personal power
assured, or their undemocratic ends achieved. But she was confident
that she could control them, and she pursued her own course, the
strongest element of which continued to be her personal power and
prestige.
Fifteen August 1972 was the twenty-fifth anniversary of independence.
Suitable ceremonies had been planned for the ‘stroke of midnight’, when
Nehru had told the Constituent Assembly that India had ‘a tryst with
destiny’. That day the Prime Minister presided over a mass pledge-taking
by her ministers and members of Parliament. Atter homage to Mahatma
Gandhi, members pledged

Determined to uphold our gains, we resolve steadfastly to stand by our

ideals of democracy, secularism and socialism in our domestic policies
and peace, friendship and equality among nations in our international
policies.

Court cases. Today, the extent to which the Fundamental Rights in Articles 14 and 19
may be over-ridden in pursuit of the Directive Principles remains unclear. For lengthy
analysis of the law, see Seervai, Constitutional Law, and V. N. Shukla’s Constitution of India.
84 Lok Sabha Debates, Fifth Series, vol. 9, no. 13, col. 252.
 Radical Constitutional Amendments 257
We re-dedicate ourselves to the vision which Jawaharlal Nehru
bequeathed to us of a nation liberated from poverty, injustice, disease
and ignorance ... Poverty must go. Disparity must diminish. Injustice
must end.
On this historic day, we pledge ourselves anew to work for an India
which is united and strong, an India which lives up to her ancient and
enduring ideals, yet is modern in thought and achievement ... .8

85 AR, 26 August-1 September 1972, p. 10947.

 Chapter 11

REDEEMING THE WEB:

THE KESAVANANDA BHARATI CASE

Eleven days before the pledge-taking, His Holiness Swami Kesavananda

Bharati Sripadagalvaru lodged a case in the Supreme Court whose
outcome would profoundly affect the country’s democratic processes.
The majority judgement—by seven judges of the thirteen-judge bench—
overturned the anti-Parliament, antiiamendment rigidity of the Golak
Nath decision; upheld the constitutionality of the Twenty-fourth and
the Twenty-fifth Amendments (except for the ‘escape clause’ in the
latter); but it also ruled that an amendment could not alter the basic
structure of the Constitution. This ‘basic structure doctrine’ is fairly said
to have become the bedrock of constitutional interpretation in India.
Because the doctrine reduced the government’s freedom to employ the
two amendments, it treated the ruling as a defeat, despite the amendments
having been upheld. The case’s outcome confirmed for the government
its distrust of the Court, whose decision in the case it had endeavoured
energetically to influence.
The Kesavananda case embodied two issues critical in parliamentary,
democratic governance, one substantive, one institutional. Substantively,
the view that the Constitution had given Parliament unlimited constitu-
ent power—that is, unlimited power to amend the Constitution—con-
fronted the view that the judiciary, with the Supreme Court at its head,
was the Constitution’s ultimate interpreter—and therefore protector.
Institutionally, perforce, the confrontation took place, as in the past,
between the Court and Parliament—and, because Mrs Gandhi led the
Parliament at this time, the confrontation boiled down to one between
Mrs Gandhi and the Court. In Kesavananda, the Court emerged victori-
ous, in both confrontations, asserting its institutional role vis-a-vis Parlia-
ment in constitutional matters and strengthening its power of judicial
review through the basic structure doctrine. Thereby the Court rescued
the democracy’ strand of the seamless web from those who would have
sacrificed it to genuine or pretended social revolutionary intentions.
The bench’s glory was in its decision, not in the manner of arriving
at it, which reflected ill on itself and on the judiciary as an institution.
 Redeeming the Web: The Kesavananda Bharati Case 259

The hearings consumed five months. The judges’ deliberation process

was bizarre. Their individual opinions were chaotically articulated. The
relations of one or more judges with the executive branch during the
case were thought to have been improper. As one judge understatedly
put it, the case was ‘full of excitement and unusual happenings’.! All the
more remarkable, therefore, was the reasonable resolution of the tension
between the democracy and social revolution strands of the seamless
web provided by the outcome.
The case had originated in March 1970 when Swami Kesavananda,
head of a monastery-like establishment in Kerala called a muth, challenged
the Kerala government’s attempts, under two state land reform acts, to
impose restrictions on the management of church property. A local
lawyer wrote to J. B. Dadachanji, advocate at the Supreme Court, about
taking the case. Dadachanji shared the letter with N. A. Palkhivala, who
said they should take the case, for it could be the basis for a major Supreme
Court judgement.” Although the state government invoked its authority
under Article 31, Dadachanji and Palkhivala convinced the Swami, who
they never met, into fighting his petition under Article 29, concerning
the right to manage religiously owned property without government
interference. The grander issues of Parliament’s power to amend the
Constitution would arise as court proceedings evolved. For example, while
the writ was pending, Parliament enacted the Twenty-fourth, Twenty-
fifth, and Twenty-ninth Amendments—the latter placing the 1969 Kerala
Land Reforms Act in the Ninth Schedule. The Swami believed that for
his original petition to succeed he must challenge the constitutionality
of the three amendments. A five-judge bench in August 1972 allowed
this; and decided that thirteen judges should hear the case, making the
bench superior to the bench of eleven that had heard Golak Nath.? The

< Y. V. Chandrachud, The Basics of Indian Constitution: Its Search for Social Justice
and the Role of Judges, Publications Division, GOI, New Delhi, 1989, p. 17.
2 J. B. Dadachanji in an interview. He and Palkhivala were both Parsis. The laws
concerned were the Kerala Land Reforms Act, 1963, and the Kerala Land Reforms Act,
1969, amending it.
3 The members of this bench were Chief Justice Sikri and Justices A. N. Ray,
Jaganmohan Reddy, K. K. Mathew, and M. H. Beg. About the decision on a thirteen-
judge bench, and the idea of bringing on several additional justices to handle the daily
workload during the Kesavananda hearings, see Indian Express, 11 August 1972.
At this timeJ.B. Dadachanji contended that the Twenty-fourth Amendment enabled
Parliament to amend “the most precious fundamental right”’—giving the case its second
name, the Fundamental Rights case. Hindustan Times, 5 August 1972. Attorney General
constitutional
Niren De did not oppose registering the case because ‘many aspects’ of the
issue remained to be decided.
 260 Working a Democratic Constitution
following sections will describe the Kesavananda hearings, the Court’s
decision, confusing commentaries on it, and the ‘unusual happenings’
to which Justice Chandrachud referred.

Kesavananda: The Case

The hearings, which would be extensively reported in the English-
language press, began 31 October 1972 and lasted until mid-March—
some seventy working days at four and one-half hours daily.* The court
gave its decision on 24 April 1973. Palkhivala began his thirty-three
days of argument by saying that no one contended that the Constitution
could not be amended, only that a creature of the Constitution cannot
increase its own constituent power nor can it arrogate to itself the power
to alter or destroy the Constitution’s essential features—such as an
institution like the Supreme Court.° Returning to arguments made in

guid 4 The case was His Holiness Kesavananda Bharati Sripadagalvaru v State of Kerala and
Another 1973 (4) SCC 225ff. On the bench were Chief Justice S. M. Sikri and JusticesJ.M.
Shelat, K. S. Hegde, A. N. Grover, A. N. Ray, P.Jaganmohan Reddy, D. G. Palekar, H. R.
Khanna, K. K. Mathew, M. H. Beg, S. N. Dwivedi, A. K Mukherjea, andY. V. Chandrachuda.
Dwivedi and Mukherjea had been appointed to the Court on 14 August 1972 so that a
constitution bench of adequate numbers might be constituted. They came from the
Allahabad and Calcutta high courts, respectively. A. N. Alagiriswamy was appointed to the
Court on 17 October 1972, but was not selected for this constitution bench. His task at the
time—with the assistance of two ad hoc judges, retired from the Supreme Court, I. D. Dua
and C. A. Vaidialingam—was to help handle court business while his colleagues wrestled
with Kesavananda. Justices Sikri and Shelat were the only members of the bench who also
sat on Golak Nath’s case, when they were with the majority.
Distinguished advocates represented each side. On the government side were the
Attorney and Solicitor Generals, Niren De and L. N. Sinha, respectively, and the Advocates
Generai of fourteen states, among them L. M. Singhvi of Rajasthan and H. M. Seervai of
Maharashtra—stars already well above the horizon and rising rapidly. Senior advocates
appearing for those who had filed the six writ petitions (two former princes and two coal
mining companies had joined Kesavananda in challenging the amendments) included
N. A. Palkhivala, C. K. Daphtary, M. C. Chagla, Soli Sorabjee, and Anil Divan, along with
J. B. Dadachanji.
A symptom of the judiciary-legislature friction of the time was an incident at the All
India Whips Conference of 4November 1972. ‘Leftists’ moved to have ‘mutual respect’
deleted from a resolution characterizing the relations between the legislature and the
judiciary. AR, 25 November-1 December 1972, p. 11103.
5 The accounts here of the oral arguments and written submissions of lawyers for the
etitioners and the government are taken from the daily reports in The Times of India;
Jeon Surendra Malik (ed.), The Fundamental Rights Case: The Critics Speak, Eastern Book
Company, Lucknow, 1975; from the summary of the case by the Chief Justice in 1973 (4)
SSC 305ff, and from interviews with the participants.
Earlier in October, S. S. Ray and Kumaramangalam were reported to have attacked
 Redeeming the Web: The Kesavananda Bharati Case 261

Golak Nath, he said that Parliament in India operated under inherent

and implied limitations, for it was the ‘well-settled’ meaning of ‘amend’
that it did not encompass altering or destroying constitutional
fundamentals. In particular, Palkhivala continued, Parliament could
not abridge or destroy basic human rights and fundamental freedoms
‘which were reserved by the people for themselves when they gave to
themselves the Constitution’.® Property was an essential feature of
the Constitution because property was necessary for the meaningful /
exercise of other fundamental rights. Palkhivala pointed out that if
Parliament could amend the Constitution at its own will, liberty could
be lost, and an authoritarian government established. These were not
the arguments of fear, but ‘an argument of realism’, he said. As to the
Twenty-fifth Amendment, Palkhivala’s principal target was Article 31C,
which he described as giving a blank charter to Parliament and the
state legislatures to defy the Constitution, thereby destroying its
supremacy, which was one of its essential features. The article also
abrogated the Fundamental Rights by making them subordinate to
the Directive Principles.
Responding to questions from the bench, Palkhivala told Justice
Hegde that Parliament could add to the Fundamental Rights, and it was
inconceivable that the majority of the people would give them up. He
told Justices Grover and Dwivedi that, yes, trying to identify the basic
features of the Constitution would create doubt and uncertainty, but as \/

the Court ata gathering of lawyers in Ahmedabad. They described the Courtas a “coterie”
of persons “accidentally elevated”’ to ihe bench. They said Parliament should have the
authority to set aside judicial rulings on constitutional matters. Hindustan Times, 11 October
1971; Tribune (of Chandigarh), 9 October 1972.
5 Malik, Fundamental Rights Case, p. 17.
Since the Golak Nath decision’s citation of Dieter Conrad’s reasoning on implied
limitations and constitutional basic features, Conrad also had published an article on
the subject in 1970. Among other points, Conrad said that no amendment can make
changes in a constitution amounting to ‘a practical abrogation or a total review’. Nor
can partial abrogationsbe so deep that ‘the fundamental identity of the constitution is
no longer apparent’. Conrad, Dieter, ‘Limitation of Amendment Procedures and the
Constituent Power’, The Indian Yearbook of International Affairs: 1966-67, New Delhi,
1970, p. 420. Conrad addressed the subject again in the Delhi Law Review, vol. 6-7,
1977-8, pp. 1ff.
M. C. Setalvad’s Hamlyn Lectures, delivered at Lincoln's Inn in 1960, were published
on itself
in India in 1970. In the lectures, he said ‘the basic fact [is] that the Constituti
views as to the
empowers ... judicial review, so that when the courts express their
fundament al rights ... they do so pursuant to
reasonableness of restrictions imposed on the
not the supremacy of the courts but
powers vested in them by the Constitution ... [which is]
197.
the supremacy of the Constitution.’ Setalvad, Common Law in India, p.
262 Working a Democratic Constitution
long as the human agency operated there would be uncertainty. Several
judges asked if amonarchy could be established through amendment,
to which Palkhivala responded affirmatively. Justice Mathew said there
was no doubt the people are sovereign and not Parliament.
C. K. Daphtary, educated both at school and university in England
and a former Attorney General, began his arguments for the petitioners
when the Court resumed sitting on 9 January 1973, after the winter recess.
He reiterated many of Palkhivala’s points, adding that the Twenty-fifth
Amendment endangered the rights of minorities and both it and the
Twenty-fourth Amendment enabled the party in power to break the
Constitution from within. Advocates Chagla and Sorabjee deplored as
excessive Parliament’s power under the amendments. For Chagla, Article
31C amounted to a parliamentary usurpation of the judicial function.
Sorabjee argued that trusting Parliament or the executive not to act
arbitrarily was misconceived, was inconsistent with the concept of limited
government, and had been rejected in India.
H. M. Seervai opened the government’s rebuttal on 18 January and
took an important part in it thereafter.’ ‘{H]ammering home his points’,
asJustice Chandrachud recalled, Seervai maintained that it would be
gross irreverence to assume that Parliament would abuse its unlimited
legislative power, and its unlimited amending power should not be
understood as an abuse of power.’ Article 368 carried with it prima facie
the meaning of the power to amend any part of the Constitution. Seer vai
also resurrected the argument that the Fundamental Rights of the Con-
stitution were not ‘human rights’, only social rights and thus did not
belong to Indians before the inauguration of the Constitution. Although
he acknowledged that the Constitution contained basic features (such
as parliamentary democracy, federal structure, rule of law, judicial re-
view) , Seervai contended that the founding fathers had not meant them
to be permanent because a self-governing government has unlimited
constituent power. As to Article 31C, he said that it did not confer power
to amend the Constitution, it only removed restrictions on legislative
power placed by Articles 14, 19, and 31. Responding to a question from

7 Seervai had been asked to do this by Law Minister Gokhale, in part because Attorney
General Niren De, absent at a Commonwealth Lawyer’s Conference, had been unkindly
treated by judges during the bank nationalization and princes cases, which some in the
government thought he had ‘lost’. Interview with Seervai, who heard this from
Kumaramangalam.
8 Malik, Fundamental Rights Case, p. 35. This is from a summary of Seervai’s arguments
by V. G. Ramachandran, It was an intellectual formulation of the plea made by Congress
leaders since the late 1960s especially in regard to Parliament, i.e. ‘Trust us’.
 lows lef ey cel

Redeeming the Web: The Kesavananda Bharati Case 263

Justice Shelat, Seervai told the court that a limb of the Constitution
might have to be amputated so that the Constitution could survive.?
Attorney General De’s turn came on 22 February. ‘Augmenting his
massive affidavits submitted to the Court earlier in [four] installments’,
reported the Times of India, De reiterated the position the government
had taken in Golak Nath: in written constitutions there could be no
inherent limitations on the amending power. ‘[N]o one would seek to
improve or save a constitution by destroying it,’ he said, but the purpose
of the amending power would be defeated if it did not extend to
the Constitution’s fundamental features. He rejected as ‘dialectical
arguments’ Justices Khanna’s and Hegde’s questions about whether the
amendments would permit democracy to be taken away or rule to be
vested in one person.!° The power of amendment, De argued, extends
to repeal, addition, variation, and substitution. The Fundamental Rights
are subservient to the Directive Principles so long as the Principles
advance the social and economic progress of the people.
Palkhivala then replied orally and also submitted written arguments.
Principal among his arguments were that citizens need protection against
their own representatives and that only those Directive Principles com-
patible with the Fundamental Rights had been included in the Constitu-
tion. Just before concluding, Palkhivala managed to add spice to the
proceedings. He told the court that he wished to read views supporting
his arguments expressed some years earlier by an eminent jurist. Was it
not time ‘we rekindled’ the inspiration behind the Fundamental Rights, Y

including ‘just compensation’ and the freedom to carry on a business

and acquire property, this eminent individual had asked. There were
‘grave consequences’ to treating the Constitution ‘as ordinary law to be
changed at the will of the party in power’. If governments always could
be trusted, Palkhivala’s anonymous authority continued, there would have
been no need for the Fundamental Rights. When Palkhivala revealed
that his eminent authority was none other than H. M. Seervai, Seervai
was furious, and the two, who had once served in the same chambers,
did not speak for years.!!

9 Times of India, 23 February 1973. The first part of the Twenty-fifth Amendment’s
Article 31C, it will be recalled, changed the word ‘compensation’ to the word ‘amount’
in at attempt to end anyjudicial interpretation of ‘compensation’.
10 Times of India, 23 February 1973. According to Justice Reddy, De often made
‘abrasive and even threatening’ arguments. Reddy, P. Jaganmohan, We Have a Republic:
Can We Keep It?, Department of Law, Sri Venkateswara University, Tirupati, 1984, p. 99.
The rendition of Reddy's name varies from the title page of the book to the law reports;
the latter is that used by the author.
11 ‘Furious,’ Justice Chandrachud interview with the author.
264 Working a Democratic Constitution

A month after the hearings ended on 23 March the bench handed

down its famous ruling in a remarkable fashion. That morning of 24
April 1973 in Chief Justice Sikri’s courtroom the thirteen judges delivered
eleven opinions and what came to be called a ‘statement’ by nine of
them, which was published in the law reports after the last of the eleven
opinions.!? The ‘statement’ began, “The view by the majority in these writ
petitions is as follows.’ It then specifically overruled Golak Nath, upheld
the Twenty-fourth and Twenty-ninth Amendments, and struck down the
‘escape clause’ in the Twenty-fifth Amendment's Article 31C while
upholding the remainder of the amendment. The essence of the
statement of the nine judges was that ‘Article 368 did not enable
Parliament to alter the basic structure or framework of the Constitution.’!%
Mrs Gandhi was silent about the decision. Unofficial reaction in the
government was that it was ‘““an attack on Parliament and the Prime Min-
ister” by her ‘“enemies”’.!4 She must have been dissatisfied by the
performances of the five judges appointed since 1971 (excluding
Alagiriswami, who was not on the Kesavananda bench) plus the two ap-
pointed especially for this bench. Only one of these (Dwivedi) found for
the government, and three of the five signed the majority ‘statement’.

Palkhivala was reading from Seervai, H. M., ‘Fundamental Rights: A Basic Issue,’
published in three installments in the Times of india, 14, 15, 16 February 1955. Texts
kindly provided to the author by Anil Divan. Seervai was commenting on the Fourth
Amendment, then being considered by a parliamentary committee.
He returned to these views to a considerable extent in subsequent years as a result of
new legal interpretations and his own rethinking, inspired by the excesses of Mrs Gandhi's
Emergency. Seervai became a defender of the basic structure doctrine, having concluded
that ‘the consequences of rejecting the doctrine ... would be so grave and so opposed to
the objectives of the Constitution, that the consequence of uncertainty [in defining it]
would be insignificant by comparison.’ Seervai, Constitutional Law, vol. 2, p. 2692. And
e implicitly rejected Article 31C, saying, ‘[O]nce it is realized that Directive Principles
lack the character ofa “law”, and, therefore, of being a part of the supreme law, it is clear
that primacy cannot be given to Directives over Fundamental Rights ...’. Ibid., Preface, p.
vi. Without the Fundamental Rights, ‘our country would have been in danger of being
converted into a police State, as the experience of the Emergency ... clearly showed.’
Seervai’s change of view carried great weight in India’s legal community because of his
intellectual strength, forceful character, and reputation for honourableness.
12 The judges’ opinions consumed seventeen hundred cyclostyled pages and eight
hundred when published.
There were eleven opinions because Justices Hegde and Mukherjea and Justices Shelat
and Grover delivered joint opinions. The nine signatories to the ‘statement’ were Justices
Sikri, Shelat, Hegde, Grover, Reddy, Palekar, Khanna, Mukherjea, and Chandrachud.
Those not signing were Justices Ray, Dwivedi, Mathew, and Beg.
13 Thid., p. 1007.
14 Malhotra, Indira Gandhi, p. 152.
 Redeeming the Web: The Kesavananda Bharati Case 265

This was not a pleasing score for a government increasingly bent on hay-
ing its own way. ‘Packing’, had it been intended, had not worked. Press
reaction was cautious. The Hindustan Times thought the decision removed
‘obstacles to genuine as distinguished from pseudo-radicalism’, but said
Parliament’s responsibility to exercise its powers with ‘great circumspec-
tion’ had increased enormously.!°

A Confusing Decision
The ‘view by the majority’ is the law of India, clearly and emphatically
expressed. Therefore, one need not go behind it. This is fortunate,
because relying instead upon the eleven opinions by the thirteen judges
accompanying it would have made it difficult to be precise about points
of agreement and disagreement: what actually had been decided. This
problem is mitigated slightly by the ‘conclusions’ with which the judges
summarized their opinions. Adding to the confusion are discrepancies
between what several justices said in their opinions and the points in
the statement they signed. We may enter this curious terrain—thankful
for the definitive ‘statement’—by comparing the ‘conclusions’ of the
nine judges who were also signatories of the statement.!®

On the Twenty-fourth Amendment

All nine men declared that Golak Nath had been wrongly decided, that
Article 368 contained both the power and the procedure for amending
the Constitution, that the word ‘law’ in Article 13 (2) did not include
constitutional amendments, ard that the amendment was ‘valid’. Eight
said, variously, in their conclusions that Article 368 did not include the
power to ‘damage’, ‘abrogate’, ‘emasculate’, ‘destroy’, or ‘change or al-
ter’ the ‘basic features/elements’, ‘fundamental features’, or ‘framework’
of the Constitution. Justice Palekar was the exception. He held in his
conclusion that there were no limitations on the amending power. (See
below.) ©

On the Twenty-fifth Amendment

valid
The nine justices held the second clause of the amendment
the
(changing ‘compensation’ to ‘amount’, and so on). Agreeing with
eens
15 Issue of 25 April 1973.
16 For the ‘conclusions’ of thejustices, see 1973 (4) SCC
593—4, Ray) p. 959, Dwivedi; lw
pp. 897-8, Mathewj p. 919, Beg;{p. 405, Sikri pp.
462-3, Shelat and Grover;|pp. 51 1-2,
Sem
Hegde and Mukherjea}pp. 666-7, sees i823-5, sisal bd1005-6, Chandrachud; {
p. 726, Palekar.
266 Working a Democratic Constitution
view expressed in the Law Commission’s report on the amendment, all
the nine held that the third (or ‘escape’) clause in Article 31C was
invalid. Justice Khanna also expressed doubt that property was a
fundamental right. Chief Justice Sikri, in his conclusion, held Article
31C invalid in its entirety because it delegated the power of amendment
to state legislatures. Justice Palekar, again the exception, accepted the
amendment unreservedly. The nine judges signing the statement appear
to have been able to uphold this amendment by ignoring the clear
intent of Parliament when it removed ‘compensation’ from Article 31:
The ‘amount’ of compensation, they said in their conclusions, could
be reviewed if it appeared to be ‘illusory’. Justices Shelat and Grover
said in their opinion that the ‘amount’ paid for property taken should
bear a ‘reasonable relationship’ to the value of the property.

On the Twenty-ninth Amendment

All signing the ‘statement’ held this to be valid with no qualifying language.
But six of the nine majority judges—absent Justices Chandrachud,
Khanna, and Palekar—held in the conclusions to their opinions that any
legislative act for insertion into the Ninth Schedule could be examined
by the courts to see if it abrogated any basic features of the Constitution.
The other three of the nine, and the four minority judges, were silent on
this point.
The four justices who did not sign the statement (the so-called
‘minority’ of Ray, Beg, Mathew, and Dwivedi) upheld the Twenty-
fourth, Twenty-fifth, and Twenty-ninth Amendments, and they agreed
in their conclusions that Golak Nath was wrongly decided. Ray, Beg,
and Mathew said that amendments are not ‘law’ under Article 13;
Dwivedi, however, was not specific. Only Palekar upheld the Twenty-
fourth and Twenty-fifth Amendments without explanation or
reservation. Beg, Ray, and Dwivedi held that there were no inherent
or implied limitations to the power of amendment in Article 368. But
Mathew and Ray also held that no amendment could utterly abrogate
or repeal the Constitution ‘without substituting a mechanism by which
the State is constituted and organized’, to use Mathew’s phrase.!7 Ray
said further that no distinction could be made between essential and
inessential features of the Constitution; all were essential. While
upholding the validity of the Twenty-fifth Amendment, Mathew,
Dwivedi, and Beg qualified their opinions when they came to the

17 1973 (4) SCC 897.

 Redeeming the Web: The Kesavananda Bharati Case 267

‘escape clause’. Mathew held that the declaration ‘would not oust the
jurisdiction of the Court to go into the question whether the law gives
effect to the policy’. Justice Beg said the same thing in different words:
despite the declaration, the courts could decide whether the declaration
is really good or a mere pretence.!®
These seem to be in direct contradiction to the wording of the
declaration, which was, ‘and no law containing a declaration that it is
for giving effect to such policy shall be called in question in any court
on the ground that it does not give effect to such policy’. Dwivedi’s
qualification, less clear, said that the declaration did not prevent the
court from examining ‘whether the impugned law has relevancy to the
distribution of the ownership and control of the material resources of
the community ...’.'9 Thus all three justices seem to have asserted the
power of judicial review over parts of a constitutional amendment whose
wording barred it entirely.
Justice Chandrachud’s and Justice Palekar’s conclusions put them
at odds with the other seven signers of the statement. They had signed
it, they said, to acknowledge that it was the view of the majority, namely,
the other seven signers. They did this while themselves dissenting by
upholding Parliament’s unlimited amending power.” Yet their signing
the statement, when the four ‘minority judges’ declined to recognize
the seven to six vote by also signing the statement may indicate sympathy
for the majority position. This is more probable in Justice Chandrachud’s
case because since writing this opinion, he at least twice, once publicly
and once privately, has asserted that the ‘statement’ was correct.?!

CONFUSION COMPOUNDED

Commentaries by eminent Indian legal thinkers about Kesavananda

further muddied these waters. Examining ten of these expert opinions
(four of which came from justices who had been on the Kesavananda

18 [bid., pp. 898, 919.

19 Thid., p. 959.
20 For Palekar, see 1973 (4) SC 726. For Chandrachud, see ibid., p. 1005. In item 3 of
was ‘incorrect’
his conclusion, Chandrachud said specifically that the Golak Nath decision
when it said that ‘Parliament had no power to amend the Constitution so as to abrogate
or take away Fundamental Rights’.
21 His public reaffirmation came in the Kesavananda Review hearings in 1975. Dhavan,
420. Privately,
Rajeev, The Supreme Court of India, N. M. Tripathi Pvt. Ltd., Bombay, 1977, p.
each one of us decided,
Justice Chandrachud told the author, ‘The statement is not what
We summed up the
but what we as a court decided. This is the ratio of all thirteen judges.
result of the case.’
268 Working a Democratic Constitution
bench), one finds conflicting views on aspects of the decision.?? For
example, Justice Jaganmohan Reddy later wrote that eight judges had
held that there are basic features in the Constitution.*? According to
Justice Khanna, the majority in the case numbered seven, and nine
judges signed the statement indicating that this was the view of the
majority—even though two had been in the minority in their individual
opinions.” Palkhivala also used this arithmetic.2° The statement of the
nine judges, itself, was discredited by Seervai and Dhavan. Seervai
believed that the four judges who had not signed it had refrained from
doing so because ‘there was a difference of opinion among the judges
themselves as to what the majority had decided’. He submitted that
‘the summary signed by nine judges has no legal effect at all’—this
even in the revision of his book in which he accepted Kesavananda as
law.2® According to Dhavan, ‘only a hard core of six judges ... really
accepted the summary statement’. Justice Palekar had signed the
statement by ‘accident’, and Chandrachud and Khanna really ‘belong
to the minority’.2” Dhavan hoped that the ‘summary statement’ would
be rejected as either too ambiguous or misleading. Upendra Baxi, on
the other hand, asks how an understanding of the Court’s conclusions

22 The commentaries cited here and in the following paragraphs are: Reddy, P.
Jaganmohan, Social Justice and the Constitution, Andhra University Press, Vishakhapatnam,
1976, and Reddy, We have a Republic: Can We Keep Jt?; Chandrachud, Y. V., The Basics of
Indian Constitution; Dhavan, Rajeev, The Supreme Court and Parliamentary Sovereignty,
Sterling Publishers Pvt. Ltd., New Delhi, 1976, and Dhavan, ‘The Basic Structure
Doctrine—A Footnote Comment’ in Dhavan, Rajeev and Jacob, Alice (eds), /ndian
Constitution: Trends and Issues, Indian Law Institute, N. M. Tripathi Pvt. Ltd., Bombay,
1978; Tripathi, P. K., ‘Kesavananda Bharati v The State of Kerala—Who Wins?’ in Malik,
Fundamental Rights Case; Upendra Baxi, ‘The Constitutional Quicksands of Kesavananda
Bharati and the Twenty-fifth Amendment’ in ibid.; Khanna, H. R., Neiéher Roses Nor
Thorns, Eastern Book Company, Lucknow, 1985; Seervai, Constitutional Law; Hegde, K.
S., Judiciary And The People, A ‘Friends of Democracy’ Publication, New Delhi, 1973;
Sathe S. P., ‘Limitations on Constitutional Amendment: “Basic Structure” Principle Re-
examined’ in Dhavan and Jacob, /ndian Constitution: Trends and Issues; and Noorani,
Public Law in India.
Dhavan's Supreme Court and Parliamentary Sovereignty contains a useful examination
of the legal views expressed at various times earlier by various members of the Kesavananda
bench that may have shaped their opinions in the case.
23 Reddy, Social Justice and the Constitution, p. 34.
24 Justice Khanna in a letter to the author.
25 Palkhivala, N. A., Our Constitution, Defaced and Defiled, Macmillan, New Delhi, 1975,
pp. 147--9.
26 Seervai, Constitutional Law, vol. 2, p. 2641.
27 Dhavan, Supreme Court and Parliamentary Sovereignty, pp. 110, 154, and his ‘The
Basic Structure Doctrine’, p 168.
 Redeeming the Web: The Kesavananda Bharati Case 269
is to be arrived at if the ‘statement’ of the nine judges is disregarded.*°
Justice Reddy many years later thought that the ‘statement’ was the
operative part of the judgement.”?

‘Unusual Happenings’ on the Bench

The composition of the Supreme Court at the time of Kesavananda
provides a useful starting point for an examination of the ‘unusual
happenings’ during the case to which Justice Chandrachud alluded.
For Justice Reddy, these happenings had their origins well before the
bench was formed. He thought Kumaramangalam, Ray, and Gokhale
had begun ‘packing’ the court in 1971 in expectation of an attempt to
overturn Golak Nath. As a result, Reddy believed that one judge was a
Kumaramangalam nominee (probably Mathew), two were H. R. Gokhale
nominees probably Palekar and Chandrachud), two were nominees of <

S. S. Ray (possibly Beg and Mukherjea), and one was Sikri’s (probably
Khanna).2° One of these judges (probably Dwivedi), told Justice Reddy
that he had been interviewed by Gokhale, Kumaramangalam, and S. S.
Ray before his appointment.?! Madhu Limaye charged in the Lok Sabha
that Justice Dwivedi came to the court with the declared purpose of

28 Baxi also thought that these opinions generated ‘many paradoxes’, raised ‘many
varied and profound questions’, and are ‘likely to create an illiterate Bar in the country’,
because who would read the lengthy opinions in their entirety. Chandrachud thought the
opinions an ‘excessive indulgence’ that could have been halved, the result of an ‘each for
himself’ attitude among his colleagues. Seervai hoped India would never again see the
likes of Kesavananda.
29 Reddy, interview with the author.
d
30 Reddy, We have a Republic, pp. 93-5. The names in parenthesis were not mentione
by Justice Reddy; they are the author's best guesses.
Justice Mathew, from Kerala, was known to be well thought of by Kumaramangalam
also from
and Mrs Gandhi. Beg, from the UP, was a Nehru-family friend, and Dwivedi,
to agree to the
UP is reported to have told the petitioners in the case that were they
did not touch other
removal of property from the Rights, ‘he would see that Parliament
16.) Chandra chud, accordin g to Delhi sources,
rights.’ (Nayar, Supersession ofJudges, p.
Maharash trian, as was Palekar, in
had been brought to the court by Gokhale as a fellow
was said not to like. Khanna,
preference to P. N. Bhagwati, a Gujarati, who Mrs Gandhi
like Sikri, came from the Punjab.
’s black book due
Of the pre-1971 judges, Hegde was said to be in the Prime Minister
considered pro-government
to a ruling he had made in her election case, A. N. Ray was
cases; Sikri was considered
because of his opinions in the bank nationalization and princes
Shelat nor Reddy had then projected
mildly conservative and a good judge; and neither
‘centrist’ (interview with the author), was
a strong image. Grover, who thought himselfa
thought by others to be undistinguished.
31 Reddy, We have a Republic, p. 93.
270 Working a Democratic Constitution
overturning Golak Nath—but many judges and lawyers disliked the
Gokal Nath decision; this was not singular to Dwivedi. No matter the
initial inspiration for these nominees, Mrs Gandhi was responsible for
their appointments. And there is no evidence available that Chief Justice
Sikri protested them, which he could have done.
The Kesavananda bench worked under continuous and sometimes
intense pressures. The broadest of these was anxiety for the Court’s vi-
ability and, by extension, of the judiciary as a co-equal branch of govern-
ment. Several members of the bench felt this, and Justice Reddy referred
in his opinion to ‘the threat of the dire consequences which the Court
would have to face if the judgement went against the Government’.*?
Perhaps Madhu Limaye had this in mind when he wrote that what
‘weighed’ with the judges was apprehension about the future of liberty
and protecting the jurisdiction of the Court. A sense that the Court as an
institution was threatened likely is why the nine signers of the ‘statement’
upheld with one hand the Twenty-fourth Amendment and most of the
Twenty-fifth while strengthening judicial review with the other.
More intense pressure came directly from the government to assure
a favourable ruling from the court. This took three forms, according to
justices and advocates involved with and observing the proceedings:
trying to discover the thinking of the judges; attempting to pre-deter-
mine the outcome of the case by influencing judges’ opinions; and at-
tempting to pre-determine its outcome by preventing a decision through
prolonging the case beyond Sikri’s retirement. The first two often took
place together. Leaders actively seeking information from inside the
bench were Law Minister Gokhale, Steel Minister Kumaramangalam,
Law Commission Chairman Gajendragadkar, and S. S. Ray, now the
Chief Minister of West Bengal.°? In addition to information thus gleaned,
drafts of some judges’ opinions reached the government—and, perhaps,
the Prime Minister. Justices Beg and Dwivedi were thought by many to
be responsible for this. Beg did hand over drafts, Justice Grover and a
close relation of one of the judges believed.*4 Justice Reddy, without nam-
ing a culprit, charged that drafts had reached the government, and he
wrote that Mohan Kumaramangalam congratulated ‘my colleagues a week
before the judgement was pronounced ... [revealing the government’s

32 Tbid., p. 99. In his opinion, Reddy also said that ‘We should free ourselves of any
considerations which tend to create pressures on the mind.’ 1973 (4) SCC 613.
33 This account is based upon the author's interviews with advocates and judges in
the case and well-informed journalists, plus several publications. Specific references appear
in subsequent footnotes.
34 Interviews with the author.
 Redeeming the Web: The Kesavananda Bharati Case 271

foreknowledge] that the three senior-most judges would ... be against

the Government’.”° It is not impossible that this happened, thought
Palkhivala. ‘You need not disbelieve’ these accounts, Justice Chandrachud
told the author.*© On the morning the court delivered its judgement,
the government had in its hands the texts of the favourable and unfa-
vourable opinions, reported Kuldip Nayar.?” H. M. Seervai doubted drafts
and information were so passed. Chief Justice Sikri told the author that
he had heard these rumours and had reacted (to whom is not specified):
‘I'll send the drafts if the government wants. There is nothing secret
about this.’98
The governmertalso attempted to shape individual judges’ opinions
according to participants in and observers of the case. Gokhale,
Kumaramangalam, and Ray tried to influence judges, recalled Justice
Reddy, citing a lunch that S. S. Ray and his wife had with Justice and Mrs
Mukherjea.°? A senior member of the Prime Minister’s staff recalled that
there were attempts to influence the court. Pressures were ‘unbelievable’,
Palkhivala remembered.*? According to several accounts, Justice
Chandrachud, then aged fifty-three and a junior member of the bench, ——

discussed the case with Gokhale and Gajendragadkar. And Chandrachud’s

opinion, submitted at the last moment, had been influenced by Gokhale,
who, the story went, had hinted to him that his eventually becoming
Chief Justice might be affected if he ruled against the government.*!
Justice Chandrachud labelled the ‘accusation’ that the government of
India tried to influence judges ‘a myth’. ‘No attempt was made to contact
me or to affect my decision,’ he said.**
ent [was] aware of
35 Reddy, We Have a Republic, p. 100. He added to this, ‘the governm
judgements were
what each one of us was going to decide quite some time before
pronounced’. Ibid.
have been H. N.
If Dwivedi had been involved, thought Reddy, the channel would
by marriage. Justice
Bahuguna, sometime chief minister of UP and related to Dwivedi
Reddy in an interview with the author.
a Bahuguna connection
36 In interviews with the author. Justice Chandrachud thought
possible.
37 Nayar, Supersession ofJudges, p. 14.
ents to their colleagues they
Nayar added, ‘[A]s and when some judges sent their judgem
l discussions which the judges
found their way to the government. Even details of the informa
Sikri told Beg at a dinner party that
had among themselves had reached the government.’
before they were announced. Ibid.
copies of some judgements had reached the government
38 Sikri interview with the author.
39 Reddy interview with the author.
40 palkhivala interview with the author.
in an interview with the author.
41 Pali Nariman, who had heard it from others,
r.
42 Chandrachud interview with the autho
 272 Working a Democratic Constitution

The government intended to pre-empt an adverse ruling by another

device, according to a suspicion wide-spread at the time and not
forgotten. Chief Justice Sikri’s retirement date was 26 April 1973. Were
the case not decided by then, it would have to be dropped or re-heard.
Did the government attempt to drag out the case with this in view? ‘I
knew that Seervai, De, and others demanded much time for oral
argument to prolong the case and to get a new bench,’ remembered
Anil Divan. ‘Palkhivala and I discussed this.’4? This assessment did not,
however, cause Palkhivala to shorten his own lengthy oral argument.
What most aroused scepticism and suspicion was the illness suffered by
a member of the bench. Was the government capitalizing on the illness
to prolong the case? In the poisonous atmosphere that had come to
surround the case, nothing else so set the lawyers on both sides and the
judges against one another as suspicions about Justice Beg’s illness.
Justice Mirza Hammeedullah Beg—from the Allahabad High Court,
Trinity College, Cambridge, and later Chief Justice of India (1977-8)—
went to the hospital ou 4 or 5 March with a heart ailment.* Justice
Reddy took him there, and Justice Grover and others visited him. Chief
Justice Sikri went to the hospital to check on Beg’s condition and
obtained a certificate saying that Beg should rest a week and after two
weeks could return to normal work.*? Sikri had to decide what to do.
His looming retirement and a two-week European trip that he was
committed to begin on 26 March worsened the time pressure. Sikri
recalled that he contemplated reconstituting the bench, but that
Attorney General De asked him to wait—expecting Beg to side with the
government.?° Seervai and De wished to stop the hearings. Palkhivala
wished them to continue. The judges, Justice Khanna remembered,

43 Divan interview with the author.

44 Three New Delhi newspapers reported on 6 March in very brief dispatches dated
the previous day that the court would not sit because Beg was ill. The incident thereupon
vanished from the newspapers.
45 Justices Reddy and Grover in interviews with the author. Chief Justice to the hospital:
H. M. Seervai in an interview with the author. Justice Sikri, who by this date had ‘heard in
a roundabout way that the government did not want a decision before I retired’, confirmed
the account of the certificate, something the Registrar of the Court usually would procure.
Interview with the author.
‘The illness was not fabricated,’ Seervai flatly asserted. Beg had had a heart
attack
some years earlier, according to Seervai. Doubts about the genuineness of Beg’s illness
were fed by the impression that the government was trying to stall the case, according
to
Justice Grover, in an interview with the author.
46 Sikri interview with the author. Law Minister Gokhale’s personal staff expressed
unhappiness at Beg’s illness, fearing ‘it might lead to the loss of agovernment
vote’. P. B.
Venkatasubramanian in a letter to the author.
 Redeeming the Web: The Kesavananda Bharati Case 273

were concerned that if Beg did not return before Sikri retired, all the
effort would have been wasted.” Attempting to resolve the matter, the
Chief Justice summoned his fellow-judges and both sides’ advocates to a
conference in his chambers. His announcement that he had decided to
proceed without Beg evoked consternation and several reactions: Seervai
responded that nothing in the hospital certificate said Beg could not
render his opinion;*® Palkhivala offered to submit written arguments
that Beg might read without being in court; Sikri, himself, suggested that
the hearings be tape-recorded for Beg’s benefit.49 Seervai and De rejected
these suggestions, and De threatened to boycott the Court if the hearings
continued without Beg. This evoked talk of citing De for contempt.”
Justice Beg returned to his duties, and the affair ended with a legacy of
hard feelings.?!
As though there were not enough external pressures, the justices gen-
advo-
erated tensions within the bench. It seemed, recalled one the
cates involved, that the ill-feeling among the judges almost overwhelmed
the substance of the case. Allowing judges to hand down multiple opin-
dis-
ions and the circulation of them within the bench were sources of
cord and confusion affecting both process and substance. Chief Justice
s
Sikri and Justices Hegde and Mukherjea began writing their opinion
before
while the hearings were going on, and Sikri circulated a draft

47 Khanna interview with the author.

48 Seervai interview with the author.
ue because a six-six vote
Chandrachud recalled that he thought it useless to contin
was likely. Interview with the author
49 Nayar, Supersession, p. 27.
interview with the author.
50 Palkhivala and Dadachanji to Soli Sorabjee. Sorabjee
and apparently were not present.
Several judges and lawyers do not recall this meeting
g in the Law Ministry where
Seervai recalled that he said at a subsequent meetin
for contempt, all us lawyers ought
Kumaramangalam was present, that if De were jailed
to go tojail with him.
rejected both (a) proceeding
51 These accounts contain a puzzle. That the government in
to keep him ‘in’ the case, while not actually
without Justice Beg and (b) devising ways e
a plot by, or a splendid convenienc
court, supports the theory that the illness was either
Yet Beg’s return to his duties, coupled
for, the government to end the case inconclusively.
side with the government, and that the
with the common impression that he would
the plot theory. Or was the plot on the other
government expected him to, argues against intention of
e on the bench or at the bar, with the
foot? Once Beg was ill or ‘ill’, did anyon this on
getting a ruling against the government , decide to press ahead without him? Was
communists were out to break the Constitution’.
Sikri’s mind, because he did believe ‘that the else involved,
is no evidence that Sikri, or anyone
Sikri interview with the author. There w—who did not
s—Ray, Beg, Dwived i, and Mathe
had this intention. Nor did the four judge and to the gover nment
to be close to each other
sign the ‘statement’, and who were known
remains one of them.
ever allege it. History has its puzzles; this
 274 Working a Democratic Constitution
departing for Europe on 26 March.°? Justice Shelat asked Grover to
draft an opinion incorporating their shared views and those of Sikri,
Hegde, and Mukherjea—believing that ‘one judgment by five judges
... would be weightier than five separate judgements’.** Justice
Chandrachud produced the final version of his opinion on the morn-
ing the bench ruled, according to reports, and, it is alleged by some,
after having been told by the Chief Justice to stay home and get it
done.*4 Accounts conflict about the extent to which the various drafts
were circulated. Justice Chandrachud went to the length of record-
ing in his final epinion that he had seen only four of his fellow judges’
drafts.°° Justice Reddy believed Chandrachud had seen most drafts
and Sikri thought he had seen all of them, these men told the author.
Chandrachud, himself, later said that drafts were exchanged and
changed, ‘and some of us wondered why, and this caused disbelief in
our colleagues to grow’.°©
After Sikri returned from abroad on 10 April he decided to try to
‘lessen the number ofjudgements’ and to hear the ‘tentative views’
of others on the bench—an attempt at unity he might have begun
earlier had he not been abroad. He decided to meet the judges in
two groups and actually met with one. Justice Reddy recalls that about
April 14 he received a telephone call from Sikri thanking him for a
gift of grapes and inviting him to a meeting at Sikri’s house the fol-
lowing morning. Arriving, Reddy found seven judges present and

52 This attempt to recapture the workings inside the bench is based on interviews
with Chief Justice Sikri, and Justices Grover, Reddy, Khanna, and Chandrachud, advocates
Anil Divan, Soli Sorabjeg, H. M. Seervai, Fali Nariman and N. A. Palkhivala: also from
Nayar, Supersession, and Khanna, Neither Roses Not Thorns.
53 Nayar, Supersession, p. 26.
54 Many of the persons interviewed, including Justice Khanna, believed
that one
judge had so been told. But Khanna would not provide the justice’s name, although
others named Chandrachud.
55 1973 (4) SCC 1006. Chandrachud said that since the conclusion
of the arguments
(26 March) there ‘has not been enough time’ for a complete exchange of
drafts.
It was the practice at the time for readers to return a draft to its author
with notations
such as ‘Read’ or ‘Noted’ or with comments or suggestions.
5® Chandrachud interview with the author. One such change, as seen
by Sikri, was in
the evolution in Chandrachud’s own thinking. He was ‘harder for the
Fundamental Rights’
at the beginning than at the end. (Sikri interview with the author.)
Another change was in
Justice K. K. Mathew’s views. Reddy and Sikri saw these as ‘gymnast
ics’. ‘Mathew was all for
the right to property at the beginning and somehow came to another
view,’ recalled Sikri.
‘Then in his judgement he seemed to favour property, but
said it was not consequential.’
Reddy and Sikri interviews with the author.
 Redeeming the Web: The Kesavananda Bharati Case 275

s were com-
asked where the others were. Sikri replied that the other
no use talking
mitted to parliamentary supremacy, and there was
se several mem-
with them. The other meeting never took place becau
the entire bench
bers of the bench thought that meetings ofless than
were not proper?’ |
with him, but,
Sikri ultimately requested the entire bench to meet
them ‘to reduce
after hearing the views of all, he could not persuade
was able to impose a
the number of judgements’.°% Nevertheless, Sikri
for himself’ judges,
little discipline on his twelve colleagues, these ‘each
each judge placed at
as Chandrachud called them. The ‘Conclusions’
nine were his initia-
the end of his opinion and the ‘statement’ of the
ce himself drafted the
tives. According to Justice Beg, the Chief Justi
put the finishing touches
statement.°? It likely was the Chief Justice who
drew directly from Justice
on the statement, but the points made
on, as a comparison of
Khanna’s fifteen point ‘conclusion’ to his opini
irmed this.® Without the
the two indicates. Justice Khanna has conf
‘decision’ in any com-
statement, there would not have been a court
ine would not have been
prehensible sense. The basic structure doctr
quicksand—with an effect
clearly enunciated and would have stood on
that is both incalculable and
on constitutional government in India
fearsome.
rine in the Indira Gandhi
The Court upheld the basic structure doct
Chief Justice, and in the Minerva
Election case in 1975, while A. N. Ray was
1981 (chapters 14 and 24). As
Mills and Waman Rao cases in 1980 and
gement ‘is, in some sense, the
Upendra Baxi wrote presciently, the jud
and, he added, ‘the truth is that all
Indian Constitution of the future’, Directive
the majority of the
the Fundamental Rights together with
group of
r. Chandrachud confirmed that one
57 Reddy in an interview with the autho
only one had been invited.
judges was present, and perhaps other
half-a-dozen such meetings at Sikri’s and
Justice Grover recalled that there were sharing Sikri’s views.
es’ hous es and that those atte nding were not confined to those
judg ped coming.
meetings, said Grover, and then stop
Chandrachud attended one or more
Interview with the author. but no information
late, meeting of the entire bench,
There seems to have been one, bers before each sitting,
erings in the Chief Justice’s cham
about it is available. In their gath
case in depth.
the judges did not discuss the ’ in Nayar, Superses sion,
with Former Chief Justice Sikri
58 Kuldip Nayar, ‘An Interview judgements.
Sikri’s method for avoiding multiple
pp. 132-3. Justice Hegde defended ’, Beg wrote a decade
drawn up by Chief Justice Sikri
59 The statement ‘was hastily in Journal of the Bar Council
Beg, M. H., ‘Our Lega l Syst em: Does it Need a Change?’
later .
2, p- 332.
of India, vol. 9, no. 2, 198 ina letter to the author.
3 (4) SCC 823 -4. The con firmation from Justice Khanna
© See 197
 276 Working a Democratic Constitution

Principles elucidate the constitutional conceptions of social justice for

India ... values which cannot be fulfilled concurrently in an economy of
scarcity.’°!
The nine judges seem to have performed an act of statesmanship,
even of legerdemain. Under self-inflicted handicaps and pressure that
approached psychological warfare from a government in search of a
favourable decision, the court mollified the government by over-ruling
Golak Nath and upholding the three amendments—in effect, nearly
returning to the Shankari Prasad case position—while preserving, indeed
strengthening, its own power of judicial review. As Madhu Limaye put it,
‘what weighed with them was both apprehension about the future of
liberty as well as their own natural desire to save and protect their own
power and jurisdiction. ’©?The Supreme Court had risen to the occasion,
but what a bizarre fashion to save the Constitution.
Finally, in a piquant collaboration, the government, in enacting the
Twenty-fourth and Twenty-fifth Amendments, and the Court by upholding
them removed the Court as the Congress Party’s whipping boy for its
wf own failure to pass and to implement social revolutionary legislation. As
Justice Reddy put it, after the Kesavananda majority had held ‘that the
right to property can be taken away ... the cry that the judgement ...
obstructs legislatures and Parliament to enact [sic] social legislation ...
has no validity.’®
These achievements could not obscure the confusion generated by
eleven opinions—happily compensated for in the statement of the
nine—in a demonstration of self-indulgence over self-discipline. A more
instructive example of the dangers from multiple opinions to law and
democracy in India would be difficult to find.®4
The history of Golak Nath is a cautionary tale of unintended conse-

61 Baxi, ‘The Constitutional Quicksands of Kesavananda’, in Malik, Fundame

ntal Rights
Case, pp. 130, 132.
62 Limaye, Madhu, Janata Party Experiment, 2 vols, B. R.Publishing Corpora
tion, New
Delhi, 1994, vol. 1, p. 57.
In interviews with four Kesavananda judges, the author found opinion
s mixed about
how many of their colleagues performed this jugglery consciously.
63 Reddy, Social Justice and the Constitution, pp. 66-7. The Alladi
Krishnaswamy
Endowment Lectures, 1975.
64 Chief Justice John Marshall, having decided that the judicia
l branch in the United
States needed strengthening vis-a-vis the other branches,
ended separate opinions so
that the court would be heard speaking with one voice.
Hall, Kermit L. (ed.), The Oxford
Companion to the Supreme Court of the United States,
Oxford University Press, New York,
1992, p. 708. Hall notes that since the mid-1940s the
number of concurring and dissenting
opinions has increased.
 Redeeming the Web: The Kesavananda Bharati Case 277

quences. The fears for civil liberty and for the institutions of the Con-
stitution that fed that decision’s rigid restrictions on amendment ? i ice
evoked amendments hazarding liberty and the Consttution—as their
use during Mrs Gandhi’s Emergency soon would demonstrate. The
amendments, in their turn, produced Kesavananda, which entrenched —7
the Fundamental Rights—as even the Constituent Assembly had not
done—while strengthening the courts under the Constitution. But
cause and effect had not run their course. Kesavananda also fortified
the government’s resolve to tame the Supreme Court, the subject of
the next chapter.
 Chapter 12

A ‘GRIEVOUS BLOW’:
THE SUPERSESSION OF JUDGES

On 25 April 1973, the day after the Kesavananda decision, within minutes
of arriving home from attending a retirement party for Chief Justice Sikn,
Justice Shelat received an urgent telephone call from Justice Hegde:
All-India Radio’s five o’clock news bulletin had announced that A. N.
Ray had been appointed the new Chief Justice of India. The President
had passed over Shelat, Hegde, and Grover, who, by the convention of
seniority, were next in line for the position. Justice Ray had not mentioned
this to Shelat as they rode from Sikri’s party in Ray’s car, ‘carpooling’ in
each others chauffeur-driven Ambassadors on alternate days as had
become their custom. Hegde also telephoned Justice Grover. They agreed
to meet at Shelat’s house. Just as Grover was departing, Sikn arrived, having
been given the news at the Golf Club by the Supreme Court Registrar,
and he joined the three others at their meeting. The four men decided
to resign, Sikri even though he was to retire the following day, and they
sent their handwritten resignations to the President the next day, 26 Apmil,
after Ray’s swearing in. This news was broadcast at five o’clock.
Mrs Gandhi had struck a ‘grievous blow to the independence of the
judiciary’, said Justice Khanna.! He might have added that the Prime
Minister as well had struck a blow at democratic constitutionalism, for,
by attempting to make the Court obedient to her government, she was
unbalancing the power equation among the three branches of government
and distorting the seamless web. It was an act of extreme centralization
of power. The government’s vigorously proclaimed motive for the
supersession was furtherance of the social revolution, for which an
accomodating Supreme Court was needed. No doubt, several members
of the cabinet were so moved, but the Prime Minister’s motive was
personal. She and her closest associates intended to protect her personal
political fortunes. The purposes of and the process for the event, still
called the ‘supersession of judges’ are the subject of this chapter.

' Khanna, H. R., Judiciary in India andJudicial Practice, Ajoy Law House/S. C. Sarkar
and Sons Pvt. Ltd., Calcutta, 1985, p. 22. The volume is Khanna’s Tagore Law Lectures.
 A ‘Grievous Blow’: The Supersession ofJudges 279

The Supersession
of the
Between the 24 April decision of the Political Affairs Committee
day formally
cabinet to appoint A. N-Ray, H. R. Gokhale’s visit later in the
next evening,
to offer him the position, and the news broadcast the
ions to the
Mrs Gandhi had to overcome President V. V. Giri’s object
signature on the
supersession. When she presented the papers for his
like the idea of
morning of 25 April she discovered that Giri did not
suitability for the
appointing Ray. He was not confident of Ray’s
the adverse publicity
responsibility, and he wanted particularly to avoid
sted appointing
he expected the supersession to generate. He sugge
s with his mandatory
Justice Shelat—whose term would end in two month
opinion for a possibie
retirement—while the government prepared public
in seniority after Shelat.
supersession of Justice Hegde, who was next
from an adjoining
Law Minister Gokhale, who Mrs Gandhi summoned
in appointing Chief
room, explained to the President that seniority
and that no provision
Justices was not the practice in other countries
to consult a retiring Chief
in the Constitution required the President
this, the President advised that the
Justice about his successor. Despite
Affairs Committee did so
appointment be reconsidered. The Political
taken immediately to the
that noon, and its reaffirmed decision was
ed to Ray’s appointment.
President who, silenced if not convinced, assent
the four judges’ resignation
Additionally, Giri wished to respond to
Gokhale’s and the Home
letters with personal letters of regret. Following
personal regrets to the judges.”
Secretary’s advice, he did not convey his
ice should be distinguished
The selection of A. N. Ray to be Chief Just
r judges, and that decision should
from the decision to supersede the othe
t within the government and
be distinguished from broader sentimen
ion of the Supreme Court. The
the Congress Party to alter the composit
have triggered the supersession,
Kesavananda hearings seem clearly to
w with B.
Supersession, pp. 9-15, and an intervie
2 This account is drawn from Nayar, on is a very useful
secretaries at the time. Supersessi
N. Tandon, one of the Prime Minister’s about it by Justi ces
reportage on the event and articles
book because it contains Navar’s am, Gokh ale, M.
Jayaprakash Narayan, Kumaramangal
Shelat, Hegde and Grover, and by
C. Chagla, and Nani Palkhivala. India shall be
cle 124 that the Chief Justice of
The Constitution provides in Arti the Chief Justice’.
to the court of ‘a Judge other then
consulted about the appointment ce about his successor,
t about consulting the Chief Justi
Although the Constitution is silen symbolic so long as
do so—although this was somewhat
it had become a convention to was followed.
inting the next-senior judge
the second convention of appo ster, Jagjivan Ram,
Committee were the Prime Mini
Members of the Political Affairs
Ahmed, and Swaran Singh.
Y. B. Chavan, Fakruddin Ali
 280 Working a Democratic Constitution

although the assertion that the government decided upon it in a fit of

‘peevishness’ upon hearing the Court’s decision may be rejected. Not
only had the Political Affairs Committee meeting approved the selection
of Ray hours before the Supreme Court ruled, the government had for
weeks known that the decision would be close and that it well might
receive an adverse ruling. The Political Affairs Committee probably was
giving its imprimatur to two decisions Mrs Gandhi had made several
weeks earlier: to change the composition of the court through
supersession and to appoint A. N. Ray Chief Justice.® S. S. Ray probably
sounded him out, likely in early April. ‘He knew A. N. Ray better than
any of us,’ said K. C. Pant.* For Justice Ray’s part, he seems neither to
have coveted the position nor expected it to fall to him. Bewildered by
his elevation, according to a high court justice who knew him, he saw it
as ‘“God’s Will”’.
Political and governmental sentiment in favour of a philosophical
realignment within the Supreme Court predated the Kesavananda
decision, and we heard in the preceding chapter Justice Jaganmohan
Reddy’s allegations about the government’s attempts to pack the court
after 1971. The Golak Nath ruling planted the seed, and the Court’s
decisions in the Princes and Bank Nationalization cases encouraged its
growth, as Mrs Gandhi’s pronouncements after 1970 made clear. At the
Congress Forum for Socialist Action’s 1971 meeting in Bombay, Rajni
Patel said that if the Court invalidated any of the Forum’s recommended
constitutional amendments, Parliament had the right to increase the
number of judges on the Court. Protesting too much, Patel claimed that
‘this was not a question of packing the Supreme Court with judges
committed to the Government.’° Mohan Kumaramangalam’s enthusiasm

3 In Justice Khanna’s view, the supersession ‘was by way of punishment or show of

government's displeasure at their [the judges] not having towed [sic] the government
line in the [Kesavananda] decision’. Khanna, Judiciary in India, p. 22.
4 Pant interview with the zuthor. Kumaramangalam accompanied S. S. Ray, according
to an associate of the Prime Minister. The role of Ray, Gokhale, and Kumaramangalam is
supported by Frankel, Political Economy, p. 487.
Another dimension of these events has been provided by an associate of Kumaram
an-
galam. This was that Mrs Gandhi gave her assent to sounding out Justice Mathew,
who was
philosophically in tune with Kumaramangalam, about becoming Chief Justice before
Ray
was approached. She was said to be willing to supersede all judges senior to
Mathew should
Ray decline the appointment. Ram Panjwani interview with the author.
5 Statesman, New Delhi, 3 May 1971. Also, Socialist India, 8 May
1971, p. 19.
Patel would write in 1973, soon after the supersession, that
‘a threat to the
independence of the judiciary exists in a capitalist society where preserv
ation of property
rights and vested interests are of primary concern to the courts
and the lawyers.’ Patel,
Rajni, ‘Law Must Subserve Social Justice’ in Shrivastava S., and Kotare, D. (eds),
 A ‘Grievous Blow’: The Supersession ofJudges 281

for a ‘committed’ judiciary and for supersession was well known. He

spoke to R. C. Dutt in 1972 of supersession and placing on the court
‘judges committed to basic principles’.° Kumaramangalam told Kuldip
Nayar that he, S. S. Ray, and Gokhale had discussed supersession ‘““many
a time”’.’ ‘Supersession had been brewing in the party and among
Indira’s advisers for a long time,’ recalled Chandrajit Yadav, ‘since the
winter, at least. Thejudiciary was seen as creating hurdles to economic
reforms needed expeditiously.’”®
More immediate, and perhaps more important, was the scarcely
hidden, far from philosophical, motive behind the supersession: the
protection of Indira Gandhi’s prime ministership. During the continuing
Indira Gandhi Election case, resulting from Raj Narain’s election petition
alleging that she had indulged in corrupt practices during her 1971
parliamentary election campaign (chapter 14), Mrs Gandhi’s counsel
had appealed from the Allahabad High Court to the Supreme Court
against the admission of certain evidence. The Supreme Court had ruled
the evidence admissable. The judge who led the bench was Kawdoor
Sadananda Hegde, a member of Parliament, judge on the Mysore High
Court in 1957 and chief justice of the Delhi High Court before joining
the Supreme Court in 1967. The Prime Minister and her advisers did not
want Hegde on the Supreme Court if she brought an appeal to it from
an adverse decision in the Allahabad High Court, which she intended to
do if that court went against her. And the way to do this was to supersede
did not
Hegde in favour of a Chief Justice who would set a bench that
was all her
include Hegde were her appeal to come to the Court. “It
case
work,”” Hegde said, because ““I spoke for the Court”’ in the Election
were it not
appeal.? This view might be treated as Hegde’s injured pride
Volume, Dr Shankar Dayal
Revolutionary Visionary: Dr Shankar Dayal Sharma Felicitation
Bhopal 1973, p. 272.
,
Sharma Felicitation Volume Organizing Committee,
judicial review of any
A resolution adopted at the Forum meeting called for ending
of State Policy.
law ‘in consonance with the Directive Principles
6 Putt interview with the autho r.
7 Nayar, Supersession, p. 15.
approached, certain senior advisers to
8 Yadav interview with the author. As the event
temperature of the party because
the Prime Minister like Uma Shankar Dikshit took the
Dikshit interview with the author.
the action was certain to be debated in Parliament. Sheila in Roosevelt
quotations of Frankl
|. K. Gujral recalled Kumaramangalam’s frequent
iew with the author.
and the need for a tame judiciary. Gujral interv
r motive for by-passing Hegde was
9 Hegde to Nayar. See Supersession, p. 11. A furthe
Justice, over appointments to the many
said to be the influence he would have, as Chief
.
existing vacancies in the high courts Sabha in
Hegde later again ran for Parli ament and was elected Speaker of the Lok
1977.
282 Working a Democratic Constitution

for corroboration. Law Minister Gokhale confided, some years later, that
the ‘Prime Minister, Siddhartha (Ray), and Kumaramangalam were
adamant. In fact the Prime Minister was scared of Hegde becoming Chief
Justice ... [because] Hedge’s decision was against the Prime Minister’s
interest.’!? According to her personal secretary, N. K. Seshan, also, ‘Indira
Gandhi was bent on getting rid of Hegde. She was the moving force
behind it.’!! Shelat had to be superseded to get at Hegde. Next in senionty
was Grover, but he did not have a pro-government record on the court,
and Kumaramangalam considered him ““a lesser person”’.!? Opposition
to Hegde’s becoming Chief Justice from Kumaramangalam, Gokhale,
Rajni Patel, and S. S. Ray was predictable, for their political futures
depended upon the Prime Minister’s. Kumaramangalam also made clear
his opposition to Hegde on ideological grounds, characterizing him as
‘a brilliant judge though of a different philosophy’, in touch with the
Congress(O) and the Syndicate.!*
Although Justice A. N. Ray was next in line after Grover, he was widely
believed to have been selected for other reasons. As the lone dissenter,
he had ruled for the government in the Bank Nationalization case and
been one of two dissenters (with G. K. Mitter) in the Princes case. ““The
boy who wrote the best essays got first prize,”’ remarked former Attorney
General C. K. Daphtary.!4 Asked, ‘Why Ray?’ by Inder Gujral, Mrs Gandhi
replied, ‘Jyoti Basu [a Bengali and leader of the Communist Party Marxist]
said he’s a reliable radical, and as a judge in Bengal he was a liberal.’!°
Gokhale, S. S. Ray, and Kumaramangalam recommended Ray, according
to most accounts because he was expected to be ‘pliable’ as well as liberal.
‘Mohan and Gokhale told Indira that A. N. Ray was the best,’ said Sheila
Dikshit.!°
10 Gokhale to B. N. Tandon, a friend and formerly on the Prime Minister’s staff.
Gokhale said he thought the supersession ‘very wrong’, and he was ‘very unhappy’ about
it—feelings also reported to the author by members of his family. B. N. Tandon diary
entry from 26 October 1980, kindness of Mr Tandon to the author.
'l Tn an interview with the author. According to Inder Malhotra, Mrs Gandhi was
‘egged on by her counsellors and confidants to bypass’ the three judges. Malhotra, /ndira
Gandhi, p. 153.
12 Kumaramangalam to Nayar. Nayar, Supersession, p. 15.
13 Thid.
!4 Quoted by Fali Nariman, in ‘Chief Justice Sikri: A Good Judge, a Great Person’,
Indian Express, 19 October 1992.
Kumaramangalam joked to Seervai that Ray was ‘rewarded’ for his opinion in Kesav-
ananda. Seervai interview with the author.
!5 Gujral interview with the author. Chandrajit Yadav recalled the widespread
perception that A. N, Ray was ‘liberal’. Interview with the author.
1© Sheila Dikshit interview with the author.
 A ‘Grievous Blow’: The Supersession ofJudges 283

Gajendra-
When the Law Minister told Law Commission Chairman
next day, Gajendra-
gadkar that the supersession would take place the
ly unsound and
gadkar told him the action would be ‘constitutional
his views to the Prime
politically unwise’ and that Gokhale should convey
Minister. !7

The Public Rationale

behind the supersession,
As Mohan Kumaramangalam was a driving force
ic defender. He prepared
he also was its most visible and articulate publ
press. He defined the gov-
the brief for government hand-outs to the
articles, and in a short book.
ernment’s position in various speeches, in
in Parliament—a decision
He was the supersession’s principal defender
al spokesman, Law Minister
made by Mrs Gandhi—in place of the logic
justified Ray’s appointment
Gokhale. In his writings, Kumaramangalam
quoted persons ranging from
with reference to other countries. He
Roosevelt in support of his
Lincoln to Benjamin Cardozo to Franklin the
into account, in Cardozo’s words,
contention that it is vital ‘to take
®
“philosophy”, the “outlook” of a judge’.'
am explained, ‘we will take the
To the Lok Sabha, Kumaramangal
backward-looking judge.’ He
forward-looking judge and not the
selection of the Chief Justice in a
enumerated his five criteria for the
both seniority and ‘innocence
democracy. He rejected as requirements
ured discretionary appointment
of political views.and conviction’. He favo
agadkar
letter dated 24 August 1977. (Gajendr
17 Gajendragadkar-Indira Gandli Prim e Minister
letter to the
former Chief Justice’s farewell
Papers, NMML.) This was the r occa sions
In it he reminded her of this and othe
as chairman of the Law Commission. that he could be
to chair the Law Commission so
and that he had been persuaded
tional matters.
‘informally’ consulted on constitu Publishing
ial Appointments, Oxford and IBH
18 Kumaramangalam, S. Mohan, Judic by
research for this booklet was done
Co., New Delhi, 1973 (May), p- 792. The
thoroughly in accord
, Ram Panjwani, a jolly Marxist
Kumaramangalam’s lawyer-associate in a series of articles
wani used much of this material
with Kumaramangalam’s views. Panj
for the National Herald. ‘packing’ the
book and by others to Roosevelt’s
The exculpatory references in the Judiciary Committee
y fail to mention that the Senate
American Supreme Court uniforml atti tude toward the US
nations. President Lincoln’s
refused to approve these nomi t's. See Jack son, Robert
Kumaramangalam’s than Roosevel
Supreme Court may be closer to New York
k, , NY, 1941.
emacy, Vintage Books, paperbac
H., The Struggle for Judicial Supr ‘das hed’ into C. Subramaniam’s office
While writing the booklet, Kumaramangalam ‘How
Assistant, S. Guhan, said,
you thin k of a title ?’ Subramaniam’s Special and, in
asking, ‘Can ns spoon
mangalam was not amused: Chamcha mea
about “Chamcha CJ”? Kumara
erview with the author.
slang, ‘flunkey’. Guhan int
 284 Working a Democratic Constitution

of the person the government found most suitable—an individual who

should have knowledge ‘of the larger things that move the minds and
passions of millions’ and who would give the Court its most important
attribute: ‘certainty and stability in relation to the major and vital questions
of law’.!9 Many would ask if A. N. Ray met these criteria.
When the Law Minister spoke, he explained that the supersession
was not intended to affect the independence of thejudiciary. To say
that judges ‘have to have ... a special social philosophy’ is nothing new.
Justice Hegde, said Gokhale, thinks that a judge committed to the
philosophy of bygone centuries is independent, whereas a judge
‘wedded to social change ... is not independent’. Parliament reflects
the will of the people, and the court must ‘decide under the Constitution
and not over it’. He praised Justice Ray as one ‘who upholds the right
of society in respect of property and ... who upholds personal liberties’.2°
The government also supported its case by referring to the Law
Commission’s Fourteenth Report. This, it may be recalled from chapter 5,
recommended that the appointment of the Chief Justice of India ‘should
not be made merely on the basis of seniority’ but must be the ‘most

19 The speech appears in Kumaramangalam, Mohan, ‘Chief Justice of India: Criteria

for Choice’ in Nayar, Supersession, pp. 78-92. The quotation is from page 91. Itappeare
d
almost word for word in Motherland, 11 May 1973, under the title ‘The
Great Debate-I
New Congress, Jurisprudence’.
Kumaramangalam advocated this position too ardently for the Prime Minister'
s taste.
Nayar reports that she told ‘some newspapermen'’ that Kumaramangalam had
“overstated”
the government's case’. Nayar, Supersession, p. 39. And there is a credible
report that she
sent S. S. Ray to get Kumaramangalam to moderate the tone if not
the content of the
speech.
The attitude toward the judiciary of the more Marxist individuals
within the Congress
was expressed less delicately while Parliament was debating
the supersession. At the
Southern Zone Conference of the AICC, held in Bangalo
re on 4—5 May 1973, D. P. Dhar
castigated the ““black-robed gentlemen” who spoke about
inroads into democracy and
asked where were they when thousands of ordinary tenants
and peasant cultivators were
ejected by powerful landlords ... “Does democracy get hurt
only if it affects the interests
of the privileged? ... [ifso] the sooner we get rid of such
a democracy the better.” Congress
Marches Ahead VIII, AICC, New Delhi, 1973, p. 240.
20 Lok Sabha Debates, Fifth Series, vol. 27, no.
50, cols. 295-312. The speech was
reprinted in Nayar, Supersession, pp. 93-112. The tone
of Gokhale’s speech was subdued
compared with Kumaramangalam’s, perhaps indica
ting Gokhale’s unhappiness with the
supersession.
Kumaramangalam’s prominence as a Marxist aliena
ted much public support for
supersession. Malhotra, Indira Gandhi, p- 153. Whate
ver his role, Gokhale reaped the
whirlwind: the Supreme Court Bar Association
on 4 May issued show cause notices to
Gokhale and Kumaramangalam as to why they
should not be expelled from the organi-
zation.
 A ‘Grievous Blow’: The Supersession ofJudges 285

suitable person’ from the Court, the Bar, or the high courts.”! Again,
others would ask ifJustice Ray met the Law Commission’s requirements.

Public Reactions
Adverse reaction to the supersession from the legal community was
immediate and vociferous. The day after the supersession, M. C.
Setalvad, M. C. Chagla, former judge of the Bombay High Court V. M.
Tarkunde, former Chief JusticeJ.C. Shah, former chief justice of the
Gujarat High Court K. T. Desai, and Palkhivala sent a statement to the
government saying that the supersession was ‘a manifest attempt to
undermine the Court’s independence’.?* Each of the members of the
Law Commission accused the government of misinterpreting its Fourteenth
Report. The same day, in a ‘high pitch of excitement’, the Supreme Court
Bar Association adopted a resolution strongly condemning the ‘purely
political’ action of the governmentas ‘a blatant and outrageous attempt
at undermining the independence and impartiality of the judiciary’ .?9
Moving the resolution, Chagla called it a black day and said that ‘what
is left of democracy and the rule of law is fast disappearing from the
country’.24 When meeting-chairman and vice-president of the Bar
Association, L. M. Singhvi, called for any amendments, emotions ran
even higher. There was ‘pandemonium’ as Ram Panjwani and others
attempted counter-resolutions. Protesting even the meeting, R. K. Garg
ordered ice cream bars distributed to those present. This was greeted by
shouts of ‘ice cream will gain you nothing’.2° Deafening applause was
reported to have greeted the moving and seconding of the resolution.

21 Quotation from the Fourteenth Report's ‘Classified Recommendations’, p. 2. The

Sikri,
Law Commission, whose members it will be recalled, then were M. C. Setalvad,
report that
Chagla, Palkhivala, G. S. Pathak, and K. N. Wanchoo, said in the body of the
the criteria for selecting a Chief Justice ‘are basically different from’ those for appointment
... a
to the court of a justice. A Chief Justice must be a judge of ‘ability and experience
all, a person of sturdy
competent administrator ... a shrewd judge of men ... and, above
independence
independence and towering personality who would ... be a watchdog of the
these paramount
of the judiciary’. It may be that the senior-most puisne judge meets
If not, the ‘healthy convention ’ should be established
considerations, the report went on.
of course go to the senior-mos t puisne
that the chief justiceship ‘does not as a matter
judge’. Fourteenth Report, vol. 1, pp. 39, 40.
22 Indian Express, 27 April 1973.
sion, p. 28. The major
23 Statesman, New Delhi, 27 April 1973. Also, Nayar, Superses
printed the resolution.
English language newspapers reported the meeting and
24 Indian Express, 27 April 1973.
25 National Herald, 27 April 1973.
286 Working a Democratic Constitution

Requested by Bar members to carry their protest to the Chief Justice,

Singhvi approached Ray the next day in the presence of his fellow-
judges and told him that the Association was upset by his appointment
and its members would not attend his court that day.2© The day A. N.
Ray took the oath, over seven thousand lawyers practising in the Bombay
High Court boycotted that court, while only fifty of their colleagues
issued a statment welcoming Ray’s appointment.2/ Three thousand
lawyers boycotted the Madras High Court on 30 April.
Former Chief Justice Sikri and the immediate victims of the
supersession made their objections public. Sikri told a press conference
on 28 April that the words ‘social philosophy’ do not exist in the oath of
a judge. Judges should go by the social philosophy laid down in the
Preamble and the Rights and Principles of the Constitution, he said.*8
Justice Hegde in a press conference two days later said that Justice Ray’s
appointment could not be sustained on the Law Minister’s criteria of
merit, administrative experience, or length of experience.”9 Justice Shelat,
speaking in Ahmedabad, predicted that the supersession would make
judges suspicious of one another, including in the high courts as judges
considered how their opinions might affect their advancement.*” Justice
Grover, speaking at a Rotary Club meeting in Bangalore, criticized
Kumaramangalam’s booklet, Judicial Appointments, for its misleading
presention of evidence about seniority in the appointment ofjudges in
other countries.*!
The supersession did have supporters outside New Delhi. A. R.

26 Singhvi in an interview with the author.

27 Statesman, 27 and 28 April 1973. M. C. Chagla in open court protested the
supersession.
28 Indian Express, 29 April 1973. For a fuller discussion of Sikri’s views, see
‘Consequences of Supersession’, Nayar’s interview with Sikri in Nayar, Supersession, pp.
130-6.
29 Statesman, 2 May 1973. Hegde recommended that independent machinery be set
up for the appointment and promotion ofjudges. For a full exposition of Hegde’s views,
see his ‘A Dangerous Doctrine’, in Nayar, Supersession, pp. 46-54. Hegde said that
democracy was ‘only a cover’ for Kumaramangalam, who had entered the Congress Party
‘to capture power from within’.
30 Statesman, 3 May 1973. For a fuller exposition of Shelat’s views, see his ‘The
Explanations’ in Nayar, Supersession, pp. 42-5. Shelat attacked the notion that the social
philosophy of a particular party should prevail on the ground that no party represented
the majority of the electorate in Parliament.
31 Statesman, 21 June 1973.
For a fuller exposition of Grover’s views, see his ‘Questions That Must Be Answered’
in Nayar, Supersession, pp. 55-68. Grover indicated his preference for appointment of
judges by an independent panel.
 A ‘Grievous Blow’: The Supersession ofJudges 287

Antulay, sometime law minister of Maharashtra and its Congress chief

minister in the 1980s, devoted 243 pages of a clever book entitled
Appointment ofa Chief Justice to challenging the arguments of the
supersession’s critics. Arguing that the Constitution as worked had
neglected the needs of the common man, he said, “To assert that the
courts will uphold the philosophy of the Constitution and not of the
ruling party is to defeat the process of constitutional progress and
democratic and peaceful evolution, to disappoint and disillusion the
people and ultimately to provoke them to take more violent methods.’
Antulay advised eminent lawyers and intellectuals to wake up and to
‘catch the moving time by its forelock’.
In Parliament, where it was debated for seven hours on 3 May, the
supersession and Kumaramangalam received strong criticism from so-
cialists and communists of both parties. Old socialist N. G. Goray said
Kumaramangalam had an ideology, ‘call it the communist ideology or
the Marxist ... there is nothing [in it] like independence of the judici-
ary’.°? CPM leader A. K. Gopalan said Ray’s appointment was made to
intimidate the judiciary and make it ‘toe the line of the executive’. Hiren
of
Mukerjee, CPI, thought the supersession a preliminary ‘weeding out’
with
the Court and suggested some method of associating Parliament
,
the selection of judges. His party colleague, Bhupesh Gupta, however
principl es
thought the supersession a ‘good beginning’, a return to the
dent-
upon which Parliament had tried to build the country. Indepen
‘wants
minded Congressman P. G. Mavalankar said Kumaramangalam
this country to go ... toward totalitarianism’ .** Parliament’s and Swatan-
led by ‘three
tra’s ready wit, Piloo Mody, said the Prime Minister was being
released his let-
Marx brothers’.2° In a press conference Madhu Limaye
ter to the President asking him ‘to direct’ Ray to resign.
Minister,
Jayaprakash Narayan, already disenchanted with the Prime
i. Property ‘must
chose to make ‘an earnest appeal’ directly to Mrs Gandh
will of the people
serve the social good as conceived of by the democratic
even extinguished if
... [and thus] can be limited, regulated, and
everyone should reject
necessary’, Narayan told the Prime Minister. But
freedoms ‘in order to
the ‘fallacy’ that citizens could be deprived of their
will end... in dictatorial
establish socialism. This is a slippery path ... (that]

e, Popular Prakashan, Bombay, 1973, p.

32 Antulay, A. R., Appointment ofa Chief Justic
184. The preface is dated 30 July 1973.
, vol. 84, no. 3, col. 289.
33 Parliamentary Debates, Rajya Sabha
258.
34 Lok Sabha Debates, Fifth Series, vol. 27, no. 50, col.
4 May 1973.
35 As reported in the National Herald,
288 Working a Democratic Constitution

communism’. Narayan added, ‘I am merely pointing out the logic of

unlimited power.’*° Were the appointment of chief justices to remain
entirely in the hands of prime ministers, said Narayan, ‘then the highest
judicial institution of this country cannot but become a creature of the
government of the day’. He appealed to the Prime Minister to appoint
an all-party parliamentary committee to make recommendations to
Parliament about an appointing mechanism.
Replying to Narayan, Mrs Gandhi said there had been ‘no question
here of the executive subordinating the judiciary’. She welcomed the
overturning of Golak Nath and supported supersession by pointing out
that the court’s pronouncements on property had been ‘confusing’. The
seniority principle had led to an unduly high turnover of chief justices,
and it would be ‘atrocious’ to believe that freeing ourselves from the
seniority convention had affected the judiciary’s independence, she
said.3? Narayan responded that he saw ‘little relevance’ in her reply.
If it were her considered response, he confessed ‘to a sense of utter
disappointment and deep distress’ .*8
Narayan was not the only person prompted to suggest a new appoint-
ment process. The Supreme Court Bar Association did so at an ‘All-India
Convention of Lawyers on the Independence of the Judiciary’ in mid-
August. Because the government is the most frequent litigant before the
Supreme Court and high courts, it ‘is clearly not the proper authority to
assess the merits of a judge, including whether the judge is progressive
or otherwise’, said the convention’s resolution. Therefore, a constitu-
tional convention should be established that Supreme Court judges be
appointed by a committee of the Court’s five senior judges and two mem-
bers of the bar. Government objections could be discussed, but the com-
mittee’s recommendation ‘should be accepted as a matter of course’.
Chief justices of the Supreme Court (and of the high courts) should be
the senior-most judge on that court except in cases of proven incapacity.
A committee consisting of, among others, Setalvad, Chagla, Daphtary,
Palkhivala, and Ram Jethmalani was to convey these recommendations
to the President.29 The method of appointing judges would be studied
several times more over the next twenty-five years without definitive result.

36 Narayan, Jayaprakash, ‘Appointment of Chief Justice’ in Nayar, Supersession, pp.

69-72. He sent a copy to the Prime Minister in mid-May 1973. Narayan released
his
‘appeal’ to the press.
37 Text ofletter in ibid., pp. 73-4.
38 Narayan’s ‘rejoinder’, ibid., pp. 75-7.
39 Mankind, July-September 1973, pp. 77-82. The text of the lawyer's
convention
resolution is given in Dhavan and Jacob, Selection and Appointment of Supreme
Court Judges,
Appendix VII, pp. 111-12.
 A ‘Grievous Blow’: The Supersession ofJudges 289

News coverage about the supersession was extensive and editorial

comment upon it hardly less so. Patriot, Mainstream, and Blitz were
sympathetic to it. The intellectually socialist Economic and Political Weekly
did not take sides. The Statesman saw the end of judicial independence,
while the Times of India said the Prime Minister was trying to provide
for orderly change, but might be making trouble for herself. The
National Herald editorialized that if Hegde and his superseded fellows
were correct, ‘the divine right of judges alone can sustain the world. This
is a wicked, undemocratic doctrine.’4? Motherland was equally emphatic
in the other direction: for her own personal reasons, its editorial said,
‘Shrimati Gandhi seems to have acquiesced in the communist concept
of class justice’.*!

A Brief Assessment
That Indira Gandhi's first years as Prime Minister differed from her fa-
ther’s is hardly surprising. His were the foundation years, when govern-
ment and citizenry were settling into harness under the democratic Con-
stitution. The spirit from the independence movement was strong, and
its leaders led the new republic. Despite the conflict, bitterness, uncer-
tainties, and heartache inseparable from great affairs, it was a time of
idealism, cooperativeness, and civility. Anxieties were more than
counter-balanced by the conviction that a nation could be created and
social transformation achieved democratically. The nation’s business went
as well as it did—not always not very well—in part because the estab-
lished order of society was only peginning to change as self-governing
institutions took hold. No age is golden, but this one shone.
The republic had moved ahead as it ended its second decade. Poli-
tics and society were opening, bringing new uncertainties and oppor-
tunities. The economy was expanding and its benefits spreading, if
slowly. National unity was not in doubt’ Democratic institutions were
well accepted. These were conditions in which a successor prime min-
ister and a younger political generation could have built on established
foundations: moving the social revolution forward; strengthening the
institutions of democracy—Parliament, cabinet government and col-
lective responsibility, and the judiciary—and solidifying national unity
though cooperative federalism in governance and national develop-
ment. But motion took the opposite direction. The Congress decayed

40 National Herald, 5 May 1973.

41 Motherland, 4 May 1973.
290 Working a Democratic Constitution
as a mass party, following factionalism within it—a malady also afflict-
i-
ing the opposition parties. There was a quantum jump in the central
zation of power in government and the ruling party. As Mrs Gandhi
timid
tamed Parliament, power moved to the cabinet, thence from this
body to the Prime Minister and her secretariat, and ultimately to a small
coterie around Mrs Gandhi—producing conditions barely resembling
cabinet government and collective responsibility. The attacks on the
Supreme Court essentially were designed to reduce three branches of
government to two.42 The already centralized federalism in govern-
ment and the Congress Party grew tighter because of the dependence
of state government and state party leaders on Mrs Gandhi's favour.
(Chapters 25 and 26.)
The centralization of power was intended to enable great progress
in the social revolution to which the nation had dedicated itself in the
Constitution. The ambitions were no greater than those of the Nehru
years, and many of those involved pursued them equally sincerely under
Mrs Gandhi. But now, economic and social transformation were to be
sought at the expense of liberty and democracy. Surfeited with the
emptiness of earlier socialist rhetoric, members of the Congress Forum
for Socialist Action became mesmerized by their own. Highly unrealistic,
they believed that social revolutionary spirits not only could make policy
but also assure its implementation (which they intended to achieve
through radicalizing the Congress Party’s organization, another
unrealistic notion) and that they had the Prime Minister’s support for
their programme. Mrs Gandhi, herself a populist and a master political
strategist, let this movement appear to lead her while she used it to
solidify her personal power. Thus did a small group of determined

42 The imbalance of constitutional institutions exceeded the expectations of the

architects of the supersession of judges. After becoming Chief Justice, A. N. Ray more
than shared the government’s economic viewpoint—he developed an adulatory attitude
toward the Prime Minister, which was remarked upon by many observers and associates.
He made himself amenable to her influence by telephoning her frequently, using the
‘RAX’ telephone system directly connecting the most senior officials of government. He
would also ask her personal secretary's advice on simple matters, conveying the impression
that the Prime Minister's views might be heard concerning an ongoing case. The personal
secretary, N. K. Seshan, in an interview with the author. Seshan said that this was the only
time such a thing had happened during his long service with Prime Minister Nehru and
Indira Gandhi. There was a RAX telephone also in Seshan’s office.
The author sent this information to Chief Justice Ray, in retirement in Calcutta, by
letter (Registered Mail, Return Receipt Requested—in India called ‘Registered A.D.’)
and asked for his comments. This letter was received at Ray’s residence, but no reply was
forthcoming.
 A ‘Grievous Blow’: The Supersession ofJudges 291

individuals, careless of democratic standards and employing a popular

cause, come to dominate the politics of a large nation.
Unfortunately, the Prime Minister did not translate her virtually
unchallengeable power, her popularity with the poor, and her tools, the
constitutional amendments, into social revolutionary accomplishments.
‘Power in the case of Mrs Gandhi has remained a potential except when
used to safeguard her threatened position,’ in J. D. Sethi’s analysis. For
her to consolidate her power through policy and programme, she would
have to risk losing support within the Congress and replacing it through
alliances with ‘parties of the Left’. But, thought Sethi, she was shrewd
enough not to attempt this for ‘she has not got time, personnel, apparatus,
resources ... to accomplish this task, hence this path must be ruled out’.
Only ‘appearances’ remained, Sethi concluded.*® Put another way, even
if legislation facilitated by the Twenty-fourth and Twenty-fifth
Amendments had been passed, its implementation— excepting the
nationalizations—would have been unlikely. A deeper, less tactical
consideration may also have lain at the root of the Prime Minister’s
reluctance to pursue the social revolution. ‘In a country of India’s size’,
she told an interviewer, ‘you have to keep balancing as you go along. A
violent revolution would uproot the foundation, which will take a long
time to build anew. We certainly can’t afford that.’44 Was this a
rationalization for not doing what she had never intended to do? If
not, was the Prime Minister thinking of the landless, who, given some
thinking
promise of land reform, would revolt to get more? Or, was she
of the landed violently resisting the implementation of reformist

43 Sethi, J. D., India’s Static Power Structure, Vikas Publications, New Delhi, 1969, pp-
XXxii, xlvi.
the 1972 legislature
Francine Frankel’s analysis is similar. Mrs Gandhi’s authority after
transformation through
elections seemed to offer favourable conditions for ‘social
‘appeared helpless against
democratic and constitutional methods’, writes Frankel, but she
but was unable to admit these internal
the organizational decay in her own party,
’. Frankel, Political Economy,
limitations without exposing the hollowness of her promises
pp. 478, 483-4.
e the sons-of-the-soil
Among Mrs Gandhi's achievements of these years was to mediat
competing groups of citizens who
dispute in Andhra Pradesh over employment between
and those from the former princely
had lived in Madras state before states’ reorganization
a}-the Mulki Rules affair. The
state of Hyderabad, now thrown together in Andhr
d Amendment, which received
agreement was incorporated in the Thirty-secon
Sons of the Soil, Princeton University
presidential assent in May 1974. See Weiner, Myron,
Press, Princeton, NJ, 1978, pp. 217-59.
i in the Crucible of Leadership, Beacon Press,
44 Interview in Carras, Mary, Indira Gandh
Boston, MA, 1979, p. 235.
 292 Working a Democratic Constitution

legislation? Her ‘balance’, up to this time, largely had had the result of
preserving the status quo in the countryside. In any case, it was the
hollowness of the Prime Minister’s promises that was seen. Democracy
had been weakened without strengthening the social revolution.
These years had a bright side, and the light was not artificial. The
Golak Nath and Kesavananda decisions and the reaction by bench and
bar to the supersession demonstrated deep attachment to constitution-
/ ie and, especially, devotion to the judicial system the country had
inherited and then made its own. The latter was a remarkable display
of support for judicial integrity even allowing for the instinct of self-
preservation as lawyers and judges rose to protect their identity and
livelihood. In Parliament, in the press, and among the politically aware
public, the wariness of excessive power and its potential abuse evident
in objections to the Twenty-fourth and Twenty-fifth Amendments and
to the supersession demonstrated vigorous concern for constitutional
democracy. The anti-democratic actions of a few aroused the constitu-
tional sensibilities of the many.
Indians’ steadfastness for democracy would continue to be tried over
the months from the supersession of judges until mid-June 1975. Popu-
lar discontents, fuelled by largely unmet election promises and by poor
economic and social conditions (for which the government was not
always at fault) simmered and began to boil. The opposition political
parties seized on these. Frustrated by two decades of near impotence,
the more maddening because it was considerably due to their own frac-
tiousness, and fearing that the constitutional rights upon which their
political, if not personal, lives depended, they fought legitimate causes
with counter-productive tactics. The Prime Minister refused to acknowl-
edge the reasonableness of the causes and to negotiate with the pro-
testers—even those within her own party. From the two sides’ conduct
developed a situation in which Mrs Gandhi could plausibly, if to her
own advantage, claim that civil government was at risk.
 Part Il

DEMOCRACY RESCUED OR THE

CONSTITUTION SUBVERTED?:
THE EMERGENCY AND THE FORTY-SECOND
AMENDMENT 1975-77

This action is totally within our constitutional framework and it was

undertaken in order not to destroy the Constitution but to preserve the
Constitution, to preserve and safeguard our democracy.
Prime Minister Indira Gandhi!
It is, therefore, proposed to amend the Constitution to spell out expressly
the high ideals of socialism, secularism and the integrity of the nation... .
Parliament and the State Legislatures embody the will of the people and
the essence of democracy is that the will of the people should prevail.
Statement of Objects and Reasons of the Forty-second Amendment*

Bhakti, or what may be called the path of devotion or hero worship,

plays a part in its [India’s] politics unequalled in magnitude by the part
it plays in the politics of any other country in the world ... . [I]n politics,
Bhakti is a sure road to degradation and to eventual dictatorship.
B. R. Ambedkar®

the
1 To the Lok Sabha, 22 July 1975, in the debate preceding its approval of
Division of Audio-
Emergency. Speech reprinted in Preserving Our Democratic Structure,
Visual Publicity, GOI, New Delhi, 1975, p. 4.
Forty-fourth
2 To be precise, the Statement of Objects and Reasons was of the
cond Amendm ent.
Amendment Bill, which would become the Forty-se
3 CAD, vol. 11, no. 11, p. 979.
 ms olusieallyssinned
ie
Ated ee

ALAR

neler 2ss
ah hg 7 Ade
 Chapter 13

26 JUNE 1975

That morning, the Bombay edition of the Times ofIndia printed the obitu-
ary of ‘D’Ocracy—D. E. M., beloved husband of T. Ruth, loving father of
L.I. Bertie, brother of Faith, Hope, Justice, expired on 26th June.’
A few hours later, Prime Minister Indira Gandhi told the nation ina
radio broadcast that with Parliament not in session, the President had
declared an emergency because of turmoil and incipient rebeliion in
the country. During the wee hours of the night just passed, Mrs Gandhi
had been composing democracy’s death notice. There had been mass
arrests of opposition leaders and others in New Delhi and in many states.
A government-ordered electricity cut off prevented Delhi's newpapers
from publishing the news; a Home Ministry ‘order’ imposed censorship
before noon on the 26th. The Constitution’s Fundamental Rights were
suspended, public gatherings and meetings of more than five persons
banned, and preventive detention provisions made more stringent. A
few days later, the Prime Minister announced the Twenty-Point Pro-
gramme of social-economic reforms. Soon, talk of changing the Consti-
tution began.
The government justified the Emergency as necessary not only to
preserve order but also to save democracy, protect the social revolution,
and preserve national integrity—in sum, to preserve the seamless web.
The rebellion threatening the country, Mrs Gandhi said, was the
manifestation ‘of the deep and wide conspiracy ... brewing ... ever since
I began to introduce certain progressive measures of benefit to the
common man and woman of India’.!
The government's action was not utterly without justification. Oppo-
sition parties’ frustration with Mrs Gandhi's imperturbability and their
own powerlessness had boiled over. The two sides’ behaviour had com-
bined to stretch democracy until it snapped. Riots and civil disobedience
Bihar
during past months had brought the governments of Gujarat and
in Bihar,
to their knees. Claiming to have established parallel government

of Emergency, Division of Audio-

1 Prime Minister’s Broadcast to the Nation on Proclamation
Visual Publicity, GOI, New Delhi, 1975.
296 Working a Democratic Constitution

Jayaprakash Narayan was calling for a march on Delhi. Morarji Desai

threatened to surround the Prime Minister’s house if she did not leave
office during the appeal against her conviction for election campaign
fraud (chapter 14). The Prime Minister feared that the country was laps-
ing into chaos, and some reasonable persons shared this anxiety. Be-
cause conditions had become so unsettled, many citizens welcomed the
Emergency for several months after it was declared. Calm was restored,
bureaucrats became more responsive, food prices came down for a time.
But, by winter, fear settled over the country like winter fog in New Delhi.
The twentieth century was witnessing another example of the ease with
which a ruthless government can subdue a democratic, but frightened,
people.
The Emergency’s purposes were shown to be not those claimed for
it. It was not to preserve democracy, but to stop it in its tracks. It was
proclaimed to protect the political office of one individual. It would
neither protect nor further the social revolution, despite its now arbi-
trary authority to do so. It would not enhance national unity, although
it did restore civil order and coherence in centre-state relations. But at
the same time it bred hatred of over-centralized authority. Instead of
protecting the seamless web, the Emergency distorted it beyond the
imagination of the founding fathers. Self-governance in India ended.
Would it return? And what damage might the country sustain before it
did? ‘[M]any of us use the word democracy in order to try and defeat
democracy, to weaken democracy,’ Mrs Gandhi had said of her politi-
cal opposition just five years earlier. In June 1975, the words perfectly
described her own behaviour.”
This Part of the book addresses two broad topics: how democracy
was extinguished during the Emergency’s first phase, and how the
executive branch and Parliament collaborated to overturn democracy,
through a succession of amendments to the Constitution and attempts
to subvert judicial independence. The present chapter sets the events
in context and then describes the extinguishing of democracy. Chapter
14 takes up the denouement of the Indira Gandhi Election case and
her government's enactments and constitutional amendments to preserve
her prime ministry. Chapter 15 describes the government's pressures
on judicial authority in two great cases—one an attempt to overturn
the ‘basic structure’ doctrine—and through the punitive transfer of
high court judges. The final two chapters are devoted to the origins

2 Speech to the AICC meeting in New Delhi, June 1970, From Delhi to Patna (Congres
s
Marches Ahead II), AICC, October 1970, p. 148.
 26 June 1975 297

and content of the Forty-second Amendment’s destructive changes to

the Constitution.

The Culmination of Trends

Although the Emergency, in the extensiveness of its evils, was an

aberration in the history of Indian democracy, it also ‘was the
culmination of long tendencies’. The centralization of authority grew
from the Constitution and the centralcommand structure of the Congress
Party. This was increased by the central direction inherent in socialist
practice and by Nehru’s towering presence. Centralization came into
full flower with Indira Gandhi’s arrogation of power within government
and over the ailing body of the Congress organization, abetted by her
over-zealous admirers. By 26 June 1975, power had shifted from
Parliament through the ministry and the cabinet to the Prime Minister
and it would then go to a coterie of individuals without constitutional
office—led by her son, Sanjay. During this process, central and state
governments rejected political compromise and came to rely on co < 0
preventive detention for controlling social discontent. As this was going e ir

on, the shining ideal of the social revolution had dimmed. Property \ :t ie
relations had pitted the executive and the legislature against the courts,
resulting in bitter conflicts and major constitutional changes. Successive
promises to the electorate exceeded each other in grandiosity.* For
most parties and candidates, elections had become pursuits of power
unrelated to gaining office for the genuine pursuit of programme. For
the opposition parties ‘extra-parliamentary’ methods had become a
way of political life; for the government high-handedness had become
habitual.
The culmination of trends has been commented upon by several
notable observers. B. K. Nehru, High Commissioner in London during
the Emergency, Mrs Gandhi’s cousin, and often her supporter, including
during the early days of the Emergency, wrote that Jawaharlal Nehru
balances”’.
and Shastri “knew what a constitution was ... [its] checks and
on
But Indira Gandhi ‘““in the effort to have a populist image ... went
r Prakashan Pvt. Ltd., Bombay,
3 Shourie, Arun, /nstitutions in the Janata Phase, Popula
1980, p. xi.
in April 1977, after the
4 A Congress Working Committee meeting told itself
was intended to effect long-neglected,
government's defeat in elections, that the emergency
uled Castes and Scheduled Tribes”’.
social reform, especially for ““poor farmers and Sched
AR, 21-27 May 1977, p. 13746ff.
 298 Working a Democratic Constitution

the concept of committed bureaucracy, committed judiciary”’.° Romesh

\ Thapar, a sometime member of Mrs Gandhi’s kitchen cabinet, thought
that the suspension of democracy ‘was the culmination of a process of
manipulative politics set in motion many years earlier, and very often the
handiwork of supposedly democratic men’.® P. N. Haksar, once Mrs
Gandhi's Principal Secretary and her close adviser, thought it accurate
that the Emergency was the handiwork of a small coterie surrounding
the Prime Minister. But, he said, ‘it is not the whole truth ... [MJore
fundamentally, the Emergency represented the maturing of the crisis in
our entire social, economic, political, cultural and value system which
became increasingly incapable of solving the structural problems of
building a new India.’”

More Immediate Origins

The long-developing problems to which Haksar referred had worsened
over the few preceding years.8 The country manifestly was not doing
well in the early 1970s. Inflation was growing, the prices of essential
commodities were increasing, and there was a dearth of these commodi-
ties. Oil prices, as a result of the 1973 Arab-Israeli war, rose from US
$2.06 per barrel to US $11.45.9 State trading in foodgrains—promoted

5 B. K. Nehru writing in the Sunday Mail, 5 April 1992. Cited in Noorani, A. G., ‘A
Baleful Legacy’, Frontline, 12 February 1993.
6 Thapar, Romesh, ‘The Real Meat of the Emergency’, Economic and Political Weekly, 2
April 1977.
7 Haksar, Premonitions, p. 228. Regarding the influence of Sanjay Gandhi's coterie,
Haksar asked, did not cabinet, Parliament and executive ‘endorse and carry out the
behest of the coterie’? Ibid.
i Madhu Limaye attributed the ‘destruction of liberty ... encompassed on 26 June’ to its
‘slow death in the heart of intellectuals and other educated people when they allowed their
( conscience to go to sleep upon the achievement of freedom’. Thus the ruling party could
pe") achieve ‘vast centralization and concentration of powers in their own hands’. Letter written
> {in prison in September 1976 and published in Limaye, Madhu, The New Constitutional
Amendments: Death-Knell ofPopular Liberties, Allied Publishers Private Ltd., New Delhi, 1977,
pi 3. -.
8 These pages are drawn from Frankel, Political Economy, ch. 12; Hart, Indira Gandhi's
India, especially chs. 1 and 10; Hardgrave and Kochanek, India, Government and Politics, pp.
164-72; Malhotra, Indira Gandhi, especially ch. 10; and Nayar, Kuldip, The Judgement, Vikas
Publishing House Pvt. Ltd., New Delhi, 1977. Also, from interviews and from political party
literature,
° D. K. Borooah to the Rajya Sabha, 5 November 1976. The speech was later published
as a pamphlet, Shr D. K. Borooah on Constitution (Forty-Fourth Amendment) Bill, AICC,
New
Delhi, no publication date but 1976, p. 8.
 26 June 1975 299
by Minister of Planning D. P. Dhar, but opposed as impractical by Mohan
Kumaramangalam and by P. N. Haksar and P. N. Dhar in the Prime
Minister’s Secretariat—failed miserably, increasing food scarcity and
hurting especially the poor. Heavily regulated private industry for years
had not been producing enough jobs to absorb the rural unemployed.
Awareness of government organizational inability to implement reform
was spreading. A national railway strike called in May 1974 by union
leader George Fernandes would have shut-down a country dependent
on trains. His promised derailment of food trains could have brought
starvation. Fernandes’s detention and that of thousands of railway work-
ers prevented this, while increasing class and political bitterness. Rail-
ways Minister L. N. Mishra was later assassinated.
To cope with rising disturbance and to combat economic decline,
the government introduced several harsh measures. In September 1974
it expanded by ordinance the reach of the 1971 Maintenance of Internal
Security Act (MISA), adding smuggling to the activities to which MISA
pertained (originally national security), permitting preventive detention
for up to one year before review by an Advisory Board, and permitting
detentions of up to two years. Parliament enacted “The Conservation of
Foreign Exchange and Preventing of Smuggling Activities Act’ (known
widely by the acronym COFEPOSA, pronounced coffee-posa). It allowed
detention for hoarding and smuggling, but persons could be arrested—
and were arrested—months before a detention order, itself, was issued. 19
Later that year, the President issued an order under the still-existing
emergency of 1971 suspending the night to move the courts for protection
of certain Fundamental Rights so long as the emergency was in force.
Another order suspended for persons detained under COFEPOSA the
right to appeal to the courts for protection of rights.!! The President
also promulgated ordinances to combat inflation, including imposing
forced savings on individuals.
The Prime Minister was criticized for personalizing government and
riding rough-shod over her complaisant Parliament with its inner circle
of her followers. Popular perceptions of government corruption, long
a staple in the public’s pantry of disaffections, grew. The business
dealings of Mrs Gandhi's younger son, Sanjay, were especially suspect.
As mentioned above, dissatisfactions boiled over in Gujarat and
s
Bihar. Riots by engineering students in Gujarat, who linked campu

10 Swaroop, Law of Preventive Detention, pp. 278-447.

(E) of 16 November 1974 and G.S.R..,
11 These orders were respectively, G.S.R., 659
Ministry of Law.
694 (E) of 23 December 1974, issued by the
 300 Working a Democratic Constitution
discontents to public ones over food scarcity and prices, spread over the
state. The central government imposed President’s Rule in February 1974
and suspended the legislature. Bihar—noted for its poverty, faciion-ridden
government, police excesses, and rule by ordinance as the executive
by-passed the legislature—also was in a condition of upheaval.!?
/ Jayaprakash Narayan announced he would leave his retirement in
Gandhian social work to return to politics and lead the students. He
pressed for dismissal of the Bihar government as corrupt and for recall
of the legislature and for electoral reform while vowing to establish a
‘parallel government for the state.!> He advocated spreading the Bihar
movement to other parts of India, and he began organizing for the
parliamentary elections, due in the winter of 1976.
In the spring of 1975, Narayan led a ‘People’s March on Parliament’.
He was increasingly being seen as a national alternative to Mrs Gandhi,
who charged him with attempting to provoke class struggle, which
Congress had always tried to avoid.!4 But Narayan failed to back up his
advocacy of turmoil and resistance with an organizational alternative
to Mrs Gandhi. Many regretted his acceptance of support from the
revivalist and militant Hindu RSS and the Jana Sangh Party. A divisive
contest arose within the Congress between those demanding that the
Prime Minister stand firm against Narayan (a view supported by the
CPI) and those who believed she should attempt accomodation with
him. Young Turks Chandra Shekhar, Mohan Dharia, and Ram Dhan
led this group, which the powerful Jagjivan Ram joined early in 1975.
Mrs Gandhi sacked Dharia from her cabinet in March 1975 for
advocating this view publicly.!°

12 In 1971 the number of ordinances promulgated in Bihar rose to 113 from sixteen
in 1970. The number rose again to 185 in 1974 and 215 in 1975. See the meticulously
documented study, Wadhwa, D. C., Repromulgation of Ordinances: A Fraud on the Constitution
of India, Gokhale Institute of Politics and Economics, Pune, 1983, table 1.
The Congress Working Committee’s reaction to the events of 1974 were insensitive.
Ata mid-July meeting, it called upon ‘patriotic democratic and socialist forces ... to fight
this menace ... of the anti-democratic and fascist forces ... [whose objective] is nothing
less than the establishment of a dictatorship of the propertied classes, bolstered by
communalism, regionalism and revivalism.’ Circular to Congress chief ministers and PCC
presidents dated 23 October 1974 and signed by Party President Dev Kanta Borooah.
Zaidi, The Directives of the Congress High Command, p. 247 and Congress Marches Ahead 10,
AICC, New Delhi, 1975, p. 331 ff.
13 The concept and details Narayan later developed in Narayan, Toward Total
Revolution.
14 Tn an interview in Blitz. AR, 24-31 December 1974, p. 12362.
15 A seminar, ‘Emergency in the Constitution and Democracy’, dedicated to ending
the 1971 emergency was held in New Delhi on 15-16 March 1975. Among those present
 26 June 1975 301
Narayan and Morarji Desai, native of Gujarat and still leader of the
Congress (O), by this ime were making common cause against Mrs
Gandhi’s government. The suspended Gujarat legisiature had later been
dissolved under President’s Rule and Mrs Gandhi twice had postponed
fresh elections to it. Morarji Desai on 7 April announced an indefinite
fast to force elections by May. The Prime Minister capitulated and set
elections for 10 June. From the euphoria of 1971 and 1972 to this! Nearly
in panic, Mrs Gandhi did not know how to cope.!® In essence, neither
side was acting democratically or responsibly. The opposition was using
the unparliamentary, insurrectionary methods of widespread strikes and
fast-unto-death. The Prime Minister possessed neither the desire to
compromise nor the sensitivity to understand that her opponents both
felt and had genuine grievances. Worse was to come.
Twelve June 1975 was a bad day for the Prime Minister. Her long-
time associate D. P. Dhar died that morning. In the evening came news
that the opposition had defeated the Congress in the Gujarat legislative
election, reducing its seats from 140 to seventy-five, allowing the
opposition to form the government. And the election case that had
haunted her for years—and even forced her to testify in her own defence
before the Allahabad High Court—resulted in the decision byJustice
Jagmohan Lal Sinha that she was guilty of corrupt election practices.
Were this decision to stand, her election to Parliament would be void,
and she would be barred from holding elective office for six years.
The Prime Minister was not in her South Block office of the Central
Secretariat when the decision came over the news ticker at 10:10 in the
morning. Her Principal Secretary, P. N. Dhar, and her information Advisor
Sharada Prasad took the news to her house where she would remain until
the Emergency was declared. A drove of cabinet ministers and politicians
assembled at her house where they agitatedly debated whether or not
she should step down while she appealed to the Supreme Court Justice
Sinha’s verdict during the twenty-day stay of it he had granted. N. A.
Palkhivala, who happened to be in New Delhi, was summoned. She invited
sic Rieter
L. K. Advani, S. N. Mishra,
were Narayan, Acharya Kriplani, K. S. Hegde, A. N. Grover,
Daphtary told the group
Madhu Limaye, and K. Subba Rao. Former Attorney General
is toward absolu tism and despotism.’
that ‘There is no question that the tendency today
Research Institute, New Delhi, no date
Revoke Emergency, published by the Deendayal ,
(but March or April 1975), p. 37.
al of 18 March said, ‘The
Commenting on the seminar, an Indian Express editori
cation for it proclaims lack of faith
continuance of the emergency when there is no justifi
in democracy.’
16 Nikhil Chakravarty interview with the author.
 302 Working a Democratic Constitution
him—he who had argued the Bank Nationalization and Princes cases
\ against the government—to plead her case before the Supreme Court.
He agreed, and would appear before Justice Krishna lyer, the papers for
V the court having been vetted by Additional Solicitor General Fali Nariman.
Believing the evidence against be flimsy, Palkhivala advised Mrs Gandhi
not to leave office.!7 Mrs Gandhi’s personal secretary, N. K. Seshan,
believed that for a few hours she genuinely considered stepping aside.
There was another credible report that she intended to do so. But her
indecision was brief, for son Sanjay convinced her that she should not,
arguing that the probable stand-in prime ministers, Jagjivan Ram or H.
N. Bahuguna, would be unlikely to return the baton if the Court
exonerated her.!8 S. S. Ray, Rajni Patel, and D. K. Borooah needed no
urging to importune her to hold on.
Massive organized demonstrations of support staged by Bansi Lal and
Sanjay Gandhi began on 12 June and continued through 25 June. Some
1,700 public buses were commandeered by the Delhi Administration and
police chiefs in neighbouring towns to bring demonstrators to her house
at I, Safdarjang Road (named after a man who was a successful Wazir
under the Mughals). For a rally on 20 June special trains would bring
supporters from as far away as Banares.!9
Meanwhile, the Hindustan Times said Mrs Gandhi should step down
during her appeal, the Times ofIndia said Justice Sinha’s judgement ‘will
... detract from her moral authority’, and the non-communist opposition.
parties called for her resignation. Important business organizations and
the Communist Party of India supported her. The CPM tilted away.
The Congress Parliamentary Party on 18 June resolved—450 to 44—

17 Malhotra, Indira Gandhi, pp. 165-7.

18 Inder Malhotra, N. K. Seshan, and a member of the Prime Minister’s household in
interviews with the author. The Intelligence Bureau reported to Mrs Gandhi that Jagjivan
Ram and Bahuguna were conspiring against her. Also, she had for some time been wary
of Jagjivan Ram. Mrs Gandhi would have been unlikely to choose either of these men as
temporary prime minister, and Ram must have understood this.
'9 The demonstrations were to ‘create an atmosphere’ conducive to Mrs Gandhi's
remaining in office despite the Allahabad verdict, according to testimony before
the
Shah Commission, which was extensively published in the Hindustan Times, 6-7 December
1977, and according to the commission’s report. One surmises that Mrs Gandhi
expected
the rallies would not go unnoticed at the Supreme Court. See Shah Commissio
n of Enquiry,
Interim Report I, Controller of Publications, New Delhi, March
1978, pp. 17-32. Named
after its chairman, retired Chief Justice J. C. Shah, the commission was
appointed under
J the 1952 Commissions of Enquiry Act by the Janata government
when it succeeded the
Congress governmentin March 1977. The Shah Commission publish
ed two later reports,
an Interim Report Tin April 1978 and a Third and Final Reportin August
1978. These will be
referred to subsequently as Shah Commission, I, I, and III.
 26 June 1975 303
that Mrs Gandhi was ‘indispensible to the nation.’*° Either Sanjay Gandhi
or Congress president Dev Kant Borooah is said to have coined the slogan,
‘Indira is India, India is Indira’. On 20 June, there was a massive pro-Indira
rally. On June 24, Supreme Court ‘vacation judge’ V. R. Krishna Iyer
handed down his ruling on Mrs Gandhi's appeal of her conviction. He
granted a conditional stay of Justice Sinha’s decision, pending a decision
bya larger bench, but denied her the night to speak or vote in Parliament.
(See Indira Gandhi Election case in the next chapter.)
Accompanying the public uproar were sinister clandestine develop-
ments. As of 15 June, Sanjay Gandhi had begun developing ““some plans
to set things right”’, as he later reportedly said to a friend.*! Working at
the Prime Minister’s house (the ‘PMH’), he began to prepare arrest lists,
along with Minister of State for Home Affairs Om Mehta and Haryana
Chief Minister Bansi Lal, a chum of Sanjay’s, and R. K. Dhawan, an addi-
tional private secretary to the Prime Minister.?* Delhi Lt. Governor
Krishan Chand testified to the Shah Commission that he had seen the
lists at the Prime Minister’s house and that R. K. Dhawan told him on 23
June that opposition leaders might have to be arrested the next day.?3
Significantly, on 22 June, S. L. Khurana, after being interviewed by Sanjay
Gandhi, replaced Nirmal Mukarji as Home Secretary because the latter
was thought to be ‘too legalistic’.24 Mrs Gandhi already had edged aside
Home Minister Brahmananda Reddy, preferring the more pliant Om
Mehta.
Although it seems clear that imposition of an emergency of some
kind had been decided for some time, the veil of secrecy does not permit
us to know when the stratagem of declaring a second, ‘internal emergency’
emerged, althoughR. K. Dhawan is reported to have said that it ‘had not
emerged as such even by the morning of 25 June’.*° But the idea had
been ‘mooted’ in January 1975 byS. S. Ray, and according to A. G. Noorani,
Ray had discussed with P. N. Dhar in 1973 the idea of declaring an

20 Intelligence Bureau reports about the alleged doings of Jagjivan Ram and H. N.
Bahuguna—and the Young Turks and others—were sent to Mrs Gandhi on 17 June
preparatory to this meeting, according to testimony of Intelligence Bureau Director Atma
Jayaram before the Shah Commission. Hindustan Times, 6 December 1977.
21 Nayar, The Judgement, pp. 24, 28.
22 BN. Tandon said he became aware of the lists on 22 June. N. K. Seshan asked
author.
Tandon if he knew ‘some lists’ were being prepared. Tandon interview with the
23 Hindustan Times, 6 December 1977.
24 Nayar, The Judgement, p. 31, newspaper dispatches, and the author’s interviews
with B. N. Tandon and Nirmal Mukarji.
Ltd., New
25 Vasudev, Uma, Two Faces of Indira Gandhi, Vikas Publishing House Pvt.
Delhi, 1977, p. 90.
304 Working a Democratic Constitution

economic emergency. D. P. Dhar appears to have suggested an emergency

directly to the Prime Minister once and possibly twice between January
and June. D. P. Dhar wrote to Mrs Gandhi from Moscow in January 1975
saying he had heard that the Allahabad decision might go against her,
and she should assemble a team of Haksar, S. S. Ray, and Borooah, who
was personally close to Dhar, to decide what to do before and after the
Allahabad decision.2° During a visit to Delhi in May, accompanying the
Soviet Defence Minister, Dhar visited the Prime Minister and probably
recommended imposition of an emergency or its equivalent. In a
conversation at the time with the well-known editor, Nikhil Chakravarty,
Dhar said that “Indira is facing a crisis in the Election case because her
chances are only fifty-fifty. The President can suspend the Constitution
and set it aside.”’ Chakravarty responded, ““That means martial law. Don’t
import the practices of Jammu and Kashmir”’—where Dhar had been
the state’s home minister in the mid-sixties. Dhar then said, “‘After the
Constitution is suspended, a new constitution can be imposed by turning
Parliament into a constituent assembly.”’27
With Mrs Gandhi’s continuation in office having been assured by
Justice Krishna Jyer’s ruling until the Supreme Court could hear the case,
the opposition parties led by Jayaprakash Narayan and Morarji Desai
increased their efforts to force her from it. Narayan on the evening of 25
June told a massive audience at New Delhi’s Ramlila Grounds that the
Prime Minister was moving toward dictatorship and fascism. He
announced a nation-wide satyagraha for her resignation and asked the
army, police, and government employees not to obey ‘illegal and immoral
orders’. The man who organized this rally was a member of the RSS,
Nanaji Deshmukh, which along with concurrent RSS activities among
students, caused some senior Intelligence Bureau officers to fear an RSS
coup against the government. A committee under Desai was to begin a
national struggle the next day ‘to overthrow, to force her to resign’.28
There seems to be no evidence available that Mrs Gandhi’s opponents
had the faintest plans for what to do if they brought her down. The

26 A member of the D. P. Dhar family in an interview with the author. A senior official in
the Prime Minister’s Office who should have been aware of this letter, recalls that he was not.
For Noorani, see ‘A Baleful Legacy,’ p. 78.
27 Chakravarty in an interview with the author. Dhar’s advice to Mrs Gandhi ‘well
before the emergency’ was to change the Constitution and ‘even declare an emergency
to do it’, a journalist close to the Communist Party of India told the author.
Mrs Gandhi would have rejected any suggestion to use the military to quiet the ‘bedlam’
in the country, according to Inder Malhotra. She knew that once the military were
‘in,
you'd never get them out’. Malhotra interview with the author,
28 Frankel, Political Economy, p. 544.
 26 June 1975 305

government, however, had already set in motion the machinery for what
was to come. Certain chief ministers had been summoned to Delhi on
Sanjay Gandhi's instructions, Om Mehta had issued arrest ‘guidelines’
for New Delhi and state capitals, and other measures were prepared for
implementation that night.
Although it strains credibility, testimony before the Shah Commis-
sion and scanty other evidence indicates that the constitutional-legal
justification for the drastic actions had not been decided upon by the
afternoon of 25 June. According to S. S. Ray, then Chief Minister of West
Bengal, the Prime Minister summoned him to her house that morning,
described the drift ‘toward chaos and anarchy’, and said the country
‘required a shock treatment’. Ray responded that he had handled similiar
difficulties in Bengal using laws already on the statute books, and he
agreed to look into the matter further. He returned at about five o’clock
that afternoon and said she could impose an ‘internal emergency’ un-
der Article 352.29
The Prime Minister immediately took Ray to call upon President
Fakhruddin Ali Ahmed to explain the constitutional situation. She asked
Ray if she could declare an emergency without consulting the cabinet,
how to word her letter recommending one to the President, and how to
word the proclamation itself. Ray explained (or claimed) that a category

At the Ramlila grounds during the autumn festival of Dusshera, huge effigies of the
Did the
evil Ravana, abductor of Sita in the Ramayana, are burnt to vociferous acclaim.
audience that June interpret a connection between the burning of Ravana and the ousting
of the Prime Minister?
the
Jayaprakash Narayan’s reflection on these events was that a plan to paralyse
had been a plan, it was ‘a
government wasa ‘figment of Mrs Gandhi's imagination’. If there
Court decided your
simple, innocent and short-time plan to continue until the Supreme
p. 104.
appeal’, he wrote to Mrs Gandhi in a letter dated 21 July 1975. Narayan, Prison Diary,
other channels
The citizen has an inalienable right to civil disobedience ‘when he finds that
said. Ibid., p. 105. He described the activities
of redress or reform have dried up’, Narayan
and said that they had attempte d to
he had inspired in the Bihar students as ‘constructive’
settle disputes with the state government across the table.
Gandhi had mentioned to
29 Shah Commission, |, pp. 23ff. Ray also testified that Mrs
ent and ‘some sort of
him the need for shock treatment even before the Allahabad judgem
may hint that D. P. Dhar’s
emergent (sic) power or drastic power was necessary’. Ibid. This
reports indicate, that Ray earlier in
recommendation of May had taken root or, as several
the year had discussed an emergency with Mrs Gandhi.
she might not have declared
According to‘a member of the Prime Minister’s household,
. Shiv Shankar, a member of Mrs
an emergency ‘if completely uninfluenced by others’
1980 and her strong defende r, said he believed her improbable
Gandhi's government in
the emerge ncy powers in the Constitution, and he
assertion that she did not know about
sat on her head and made her impose
said, ‘S. S. Ray, Rajni Patel, and Dev Kant Borooah
the emergency’. Interview with the author.
 306 Working a Democratic Constitution

in the ‘Government of India (Transaction of Business) Rules, 1961’—

Rule 12—allowed the Prime Minister to depart from the rules and thereby
take actions to be ratified by the cabinet subsequently. She chose this
course and wrote the President that if he were ‘satisfied’, as a result of
the explanations given him, a proclamation of emergency was necessary.
She recommended that a proclamation ‘be issued tonight’, to be made
public as early as possible thereafter. She would have liked to take the
matter to the cabinet, she wrote, but it was not possible ‘tonight’. The
President signed the attached proclamation.*? The Shah Commission
concluded in its report that ‘it is not understood’ how Rule 12 allowed
the Prime Minister to bypass other rules making it incumbent upon a
Prime Minister to take cases relating to proclamations of emergency to
the cabinet.*! At ten o’clock that evening, the Prime Minister called her
information adviser, H. Y. Sharada Prasad, and P. N. Dhar to her office,
where they found Congress President D. K. Borooah and S. S. Ray present.
“I have decided to declare an emergency. The President has agreed.”
Mrs Gandhi announced to Dhar and Sharada Prasad. “I shall inform
the cabinet in the morning.”’ She then handed the two the draft declara-
tion of emergency and asked them to prepare a draft broadcast to the
nation, which they did, working until one o’clock the next morning.**
Mrs Gandhi called a cabinet meeting at 6.00 a.m. on 26 June to
announce to her own ministers the actions that she, without consulting

30 See Shah Commission, I, p. 25 for the Prime Minister's letter and the proclamation.
There are other, partial and hazy versions of the event. According to one, when Home
Minister Brahmananda Reddy was called to the Prime Minister's house at 10:30
that
evening and told that an internal emergency would be declared, he objected
that a state
of emergency was already in force. Shortly thereafter, Reddy senta letter to
the President,
but its contents have not been disclosed. Ibid., p. 24.
A second version has it that one of the President's advisers told him that
the matter of
his ‘satisfaction’ that an emergency needed to be declared was not relevant because
he had
to act on the advice of the council of ministers, not on the advice of the
Prime Minister
alone. Yet, the Prime Minister’s letter to the President made it appear
that he was acting on
his own ‘satisfaction’. The President, ‘apparently, saw the force of
this argument’ and
telephoned the Prime Minister. At this time, the assistant left the room
for some ten minutes
and, when he returned, found that R. K. Dhawan had visited
the President with a draft
proclamation, which the President signed and returned to Dhawan with
the Prime Minister's
letter. The Shah Commission report hinted that a second version
of the letter and the
proclamation existed. It then reproduced the Prime Minister’s
letter to the President and
his proclamation, dated 25 June, declaring ‘a grave emergency
exists whereby the security
of India is threatened by internal disturbance’. Ibid., pp. 24-5.
31 Shah Commission, I, p. 29 contains the relevant texts
and the commission's reasoning.
The commission’s report noted that in 1971 the Proclamation
of Emergency previously
had been approved at a cabinet meeting.
32 Sharada Prasad to B. N. Tandon as recorded in Tandon's
diary entry of 26 June 1975.
 26 June 1975 307
them, and thus probably unconstitutionally, had had the President take.
During the meeting, Sardar Swaran Singh, Minister of Defence, is said to
have wondered aloud if it were necessary to proclaim an emergency;
others remained silent.*? Swaran Singh did not pursue this, and Mrs
Gandhi did not reply. The cabinet approved the Prime Minister’s advice
to the President.
The evidence seems conclusive that the Emergency was the doing of
the Prime Minister and her son Sanjay, circled by her, and his, closest
advisers of the moment S. S. Ray, D. K. Borooah, Om Mehta, Bansi Lal—
with Rajni Patel not central to the decision. It was implemented by them
and a second circle of obedient chief ministers and officials. Neither her
Principal Secretary, P. N. Dhar, nor Home Minister Reddy (until just before
the proclamation was signed) nor Law Minister Gokhale nor the Director
of the Intelligence Bureau knew of the plans.*4 The Cabinet Secretary,
B. D. Pande, testified to the Shah Commission that the matter of declaring
an emergency never came before the cabinet prior to the dawn meeting.
,
The commission reported that, before the Emergency was declared
s’
neither the governors’ reports to the President nor the chief minister
situation
reports to the Home Ministry indicated that the law and order
to monitor
was out of hand. The Home Ministry, whose responsibility it was
Minister.
the internal situation, had not expressed concern to the Prime
and she may
Mrs Gandhi's justifications for her action were artful,
really had been
have believed then. Attacks ‘ostensibly’ on her, she said,
ammes and to
intended to subvert the government's progressive progr
al means’.
dislodge it ‘and capture power through extra-constitution
she had lost her
Conditions in the country necess:tated the Emergency;
constitutional
case in the high court on a ‘legal technicality’.*° ‘An extra-
to a meeting of some thirty top
33 The Prime Minister the next day expounded
for thinking the Emergency necessary.
officials (Secretaries to government) her reasons
‘there was pin-drop silence’. One of
Her request for questions elicited one. Otherwise,
interview with the author.
the Secretaries present, Ajit Mozoomdar, in an
as they customarily do in any country.
The bureaucrats ‘went along’ with absolutism,
s likely believed they could help the
Some probably approved of the firm hand. Other
in check. More were frightened by the
country by keeping absolutism and its excesses
y were accustomed to going to the office and
penalties expected from dissent. Most simpl t
Few government servants in any society depar
hardly could contemplate doing otherwise.
his ministry were consulted before the
34 Gokhale testified that neither he nor the
was called in to give the decision regarding
proclamation. Nayar has it that Gokhale may be doubted, for S. S.
ment, p. 35. But this
Emergency its ‘legal form’. Nayar, TheJudge ba
Ray could have done the job. r to the com mis sion—
onale came in a lette
35 shak Commission, |, pp. 26-9. This rati iry as ‘one -sid ed and
which she attacked its enqu
before which she never testified—in
308 Working a Democratic Constitution

challenge ... was constitutionally met,’ she later said.© The social
revolutionary justification was often repeated after the Prime Minister’s
26 June broadcast. ‘[T]he hardships of the poorer sections and the
middle classes’ must be ‘alleviated’ by increased production and
employment and the better distribution of goods. The Twenty-Point
Programme, she later said, was not the reason behind the Emergency,
but it had created the right climate for its implementation.®’ Seven of
the programme’s points dealt with property issues. And, as a subsequent
chapter will describe, property issues were central in the drafting of the
Forty-second Amendment. The Bill’s ‘Statement of Objects and Reasons’
said it was to remove difficulties to achieving a ‘social-economic
revolution which would end poverty and ... inequality of opportunity’.98
And Mrs Gandhi later justified a year’s postponement of the parliamentary
elections due in February 1976 on the ground that they would ‘put the
20-point programme in jeopardy. After it is implemented and the people
have benefited we would certainly hold elections.’°?
Many in India at the time, and later, did not see the Emergency in
such public-spirited terms. Their sentiments are summed up in the
assessment given to the author by a most senior elected official: ‘the
emergency was pure self-protection’. The popularity of this view is shown

politically motivated’, particularly because it did not go into conditions in the country
preceding the emergency.
36 The Sunday Times, London, 13 July 1975. The Prime Minister told a Youth Congress
delegation that ‘in India democracy had given too much liberty to people ... and they
were trying to misuse it and weaken the nation’s confidence’. Press Trust of India dispatch
in Deccan Chronicle, 3 July 1975.
37 ‘Hardships of the poorer sections’: Prime Minister's Broadcast to the Nation.
The Twenty-Point Programme announced on 1July 1975 was the centre- piece of ‘a
massive drive for the legitimation of the regime’. Baxi, Upendra, The Indian Supreme Court
and Politics, Eastern Book Company, Lucknow, 1980, p. 32. (These were the Mehr Chand
Mahajan Memorial Law Lectures delivered at Panjab University, 1979.) The programme’s
more striking goals were a rehash of past promises: compilation of land records,
implementation of agricultural land ceilings and speedier distribution of surplus land,
socialization of urban land, bonded labour to be declared illegal (already banned in Article
23 of the Constitution), a review of minimum agricultural wages, and new schemes for
workers’ association with industrial management. AR, 30 July—5 August 1975, p. 12711.
38 ‘Government Bills as Introduced in Lok Sabha, 1976’, Parliament Library, New
Delhi, 1976.
The ‘property rights of individuals’ were not to get in the way of the well-being of
society, explained a Congress Party publication. Congress and Constitutional Amendments,
Central Campaign Committee, AICC, New Delhi, p. 17. Undated but published
in
December 1976 or January 1977.
39 Hindustan Times, 1 January 1976, cited in Hart, Indira Gandhi's India, p. 30.
 26 June 1975 309

by the capital ‘E’ bestowed upon the 1975-7 Emergency often called
‘Indira Gandhi’s Emergency’.

Democracy is Extinguished
With the sweep of her hand, Mrs Gandhi had snuffed out democracy.
Repression would be piled upon repression. The government attacked
liberty first, this being the most dangerous to itself. Detentions began
during the early hours of 26 June 1975 even before the President's
proclamation was published in the The Gazette ofIndia later that day. Before
dawn, Jayaprakash Narayan, Morarji Desai, and other opposition
politicians, totalling 676, had been arrested.4? Mrs Gandhi approved the
list of those to be arrested in the pre-dawn sweep, according to Pupul
Jayakar and several persons then near Mrs Gandhi.*! By the Emergency’s
end, nearly 111,000 persons had been detained under MISA and the
Defence of India Act/Defence of India Ruies. Amendments to MISA
made after the declaration of the Emergency ‘completely metamorphosed
the character of MISA ... [and] led directly to large scale abuse of
authority’.4* Of the some 35,000 persons detained under MISA alone
during the Emergency, 13,000 allegedly were connected to political parties
and banned (i.e. communal) organizations, and their detentions were
based on the ‘slightest suspicion’, and for criticizing the Emergency in
meetings at private homes.*® The overall purpose of the detentions was
‘to silence all opposition’ .*4
The suspension of constitutional protections enabled these violations
of personal liberty. On 27 Jusie, a presidential order suspended the
right to move the courts for enforcement of the fundamental rights
articles guaranteeing citizens equality before and equal protection of
the law (Article 14), no deprivation of life or liberty except by procedure
established by law (Article 21), and no detention without being informed
of the grounds for it (Article 22). Meetings of five or more persons
under Section 144 of the Criminal Procedure Code
were banned,

Cited in Hart,
40 The official figure as reported in Economic Times, 27 June 1975. .
Indira Gandhi’s India, p. 12.
ry to some reports, It
41 Jayakar and others in interviews with the author. Contra
list, although Sanjay Gandhi
seems that P. N. Haksar’s name was not on the arrests
remedied the omission by arresting
considered him an enemy. But Sanjay Gandhi shortly
Haksar never was detained.
Haksar’s uncle in a publicly humiliating manner.
impris oned under COFEPOSA.
42 Shah Commission, III, p. 41. Fewer persons were
MISA, 1971.
Habeas corpus had not been suspended under
43 Ibid., pp. 42, 43.
44 Tbid., p. 45.
 310 Working a Democratic Constitution
(CrPC). Three days later an ordinance amended the Defence of India
Act, adding ‘internal emergency’ to the Act’s tide and preamble,
empowering government to make temporary amendments in other
laws, and allowing the imposition of censorship under the Emergency
proclamation and the President’s order of 27 June. A Home geen
order of 26 June had already instituted censorship.
On 29 June and thereafter, the government promulgated a series of
ordinances amending MISA of 1971. The first of these barred the courts
from applying the concept of ‘natural justice’ in detention cases; it said
that detentions might be reviewed after four months (the inoperative
Article 22 said three months), and that an individual could be detained
without disclosing to him or her the grounds for detention or allowing
representation against the detention.*? The second, an ordinance of 15
July, said that no one, including a foreigner, detained under the Act ‘shail
have any right to personal liberty by virtue of natural law or common law,
if any’, and it allowed for attachment of the property of anyone who had
‘absconded’ rather than be detained. (The absconding provision had
been applied to criminals under the Criminal Procedure Code.) The
third ordinance came on 15 October, apparently as a result of the Delhi
High Court’s releasing the journalist, Kuldip Nayar, from detention on
13 September.*© It added to MISA that the grounds for detention were
confidential, and, because they were matters of state and thus against the
public interest to disclose, should not be communicated to detenus and
the courts.4” The second and third ordinances were retroactive in effect
~ to 29 June 1975.
Parliament amended the 1974 COFEPOSA on 5 August (replacing
an ordinance of July) with brazen language providing that a detention
was not void if the grounds for it were ‘vague’, ‘non-existent’ or ‘not
relevant’, or ‘invalid for any other reason whatsoever’.*8 In June 1976, an
ordinance extended MISA for one year, but gave instructions to review
detentions every three months. In that month an ordinance amending
COFEPOSA permitted detention for two years—instead of the one in
the presidential order of the previous June—without giving the grounds
and allowed one year before a case had to be reviewed by an Advisory
Board. Detentions could be made solely ‘for dealing with the Emergency’.

45 Ordinance no. 4 of 1975.

46 V. M. Tarkunde in The Statesman, 4 February 1976.
47 Ordinance no. 16 of 1975.
48 ‘The Conservation of Foreign Exchange and Prevention of Smuggling Activities
(Amendment) Ordinance, 1975’, The Gazette of India, part II, section 1, 1 July 1975.
 26 June 1975 311
Freedom of the press was extinguished, and freedom of speech to
the extent that this could be done. This all began, as had the arrests,
before the cabinet had approved the Prime Minister’s solo venture and
the Emergency was publicly proclaimed. The general manager of the
Delhi Electric Supply Undertaking, while in the Lt. Governor’s residence
at 10:00 p.m. on 25 June, received orders sent in the name of the Prime
Minister to cut off electricity to the presses at 2:00 a.m. on 26 June.*9
The Home Ministry issued an order later that day prohibiting the
publication of news about detentions without prior ‘authorised scrutiny’.
Thereafter, censorship took hold, with instructions to editors from the
Chief Censor about what might and might not be printed. This was
desirable, the Prime Minister told the Indian Federation of Working
Journalists, because ‘freedom of the press has come to mean the
freedom to attack Indira Gandhi and to dub as toadies anyone who
supports her’.©° A week later the Censor prohibited reporting the soon-
to-begin session of Parliament and the Supreme Court’s proceedings
in the Indira Gandhi Election case.
The Prime Minister, Law Minister, Minister of Information and
Broadcasting, and others held a series of high-level meetings in July and
August to discuss methods of curbing the press—thus placing Mrs Gandhi
at the centre of these efforts.>! The first of three December 1975
ordinances repealed editors’ and publishers’ immunity from civil and
criminal proceedings when publishing accounts of parliamentary
proceedings. The second ordinance abolished the press’s own watchdog
group, the Press Council. And under the third, the ‘Prevention of
Objectionable Matter Ordinance’, government could demand security
ing
from presses if they published any newspaper or book contain
matter’
objectionable matter. The ordinance defined ‘objectionable
or state
broadly: material bringing into hatred or contempt the central
of the
governments; causing fear or alarm in the public; and defamatory
of the Lok
President, the Vice-President, the Prime Minister, the Speaker

49 Shah Commission, I, p. 23.

50 Speech on 4 July 1975. Statesman, 10 July 1975.
Internal Emergency, GOI, New Delhi,
51 White Paper on Misuse of Mass Media During the
August 1977, appendix 1.
hed by the Janata
Like the Shah Commission reports, the While Paper was publis
igned powers in Colombo
government. The Prime Minister told a meeting of the non-al
See Sorabj ee, SoliJ., The
on 17 August 1976 that there was no pre-censorship in India.
New
1975-77, Central News Agency Pvt. Ltd.,
Emergency, Censorship and the Press in India, the
list of the Censor’s orders during
Delhi, 1977, p. 18. Sorabjee also provides a partial y
hers either bowed before the storm or actuall
Emergency (pp. 26ff). He notes how publis
their editors and reporters support.
supported the government, thus denying
 312 Working a Democratic Constitution

Sabha, and governors. The government said the ordinance should bring
about high standards in journalism and avoid writings injurious to the
moral and intellectual health of society.??
The government removed the most basic foundation of a free press
when, on 8 January 1976, it suspended the right ofcitizens to move the
courts for preservation of the freedom of speech and other ‘freedoms’
in the Constitution’s Article 19. Within weeks thereafter, Parliament
passed the Parliamentary Proceedings (Protection) Bill, prohibiting the
publication of parliamentary proceedings. This was aimed, the
government said, at ‘checking the tendency of playing up malicious and
politically motivated charges’.°? A move was initiated to disband India’s
four news agencies and merge them into one, and although the
government denied involvement, the Shah Commission said it supervized
the news agency’s operations. The ‘pervasive atmosphere of fear in the
media’, reported by the Shah Commission, was reinforced by the
‘disaccreditation’ of senior Indian journalists and editors and the banning
of entry into India and deportation of several foreign correspondents.
The government also intimidated newspaper and magazine publishers
in various ways.°* A reputedly inefficient government achieved great
effectiveness in managing the news of its doings.
The denial of civil liberties and the violation of human rights extended
far beyond detentions and censorship. There were instances of torture—
the most famous being that of Lawrence Fernandes, brother of railway
union leader George Fernandes—and already poor jail conditions were
greatly worsened by the overload from detentions.The demolition of
jhuggi-jopres (shanty-towns) in and around Delhi devastated the poor.
The rural and urban poor and lower middle class were subjected to the
terror ofa forcible sterilization programme organized by Sanjay Gandhi—
especially in North India. Sterilization targets were assigned to chief
ministers, who, in their efforts to gain favour, were reported to have
exceeded them—in the manner of American ‘body-counts’ during the
war in Vietnam. Persons were arrested under the DIR for opposing the
‘family planning’ programme.°?

52 The Statesman, 9 December 1975. It will be recalled from Part

I that a Press
Objectionable Matter Act was passed in 1951 and repealed in 1957.
°3 AR, 26 February-3 March 1976, p. 13040.
54 See White Paper on Misuse of Mass Media, and Nayar, Kuldip, ‘How RNG
(Ram Nath
Goenka, owner of the /ndian Express) Fought the Emergency,’ The Indian-American,
November 1991, pp. 24ff.
55 Dr Karan Singh (PhD not MD)Minister of Health,
sent a note to the Prime Minister
on 10 October 1975 saying that the population problem ‘is now
so serious that there seems
 26 June 1975 313
The lesson to be learned from these activities, concluded the Shah
Commission, was that

If the basic unity and territorial integrity of the country is to be emphasized, at

the political level it is imperative to ensure that the officials at the decision-
making levels are protected and immunized from threats or pressures so that
they can function ... governed by one single consideration—the promotion of
public well-being and the upholding of the fundamentals of the Constitution
and the rule of law.°®

Several persons around Mrs Gandhi advocated that she declare the
end of the Emergency in her Independence Day speech from the Red
Fort on 15 August 1975, recalled Nikhil Chakravarty, but with the
Emergency still popular due to the drop in food prices and the arrival of
political quiet and with so little resistance to it apparent, they decided to
continue with it. The Prime Minister’s Information Adviser believed the
Emergency would have been withdrawn near time had Bangladesh’s
Prime Minister Mujibur Rahman not been assassinated, an event that
shocked everyone, including Mrs Gandhi, and caused her to suspect
conspiracies against herself.°’ Apparently sincere fears of conspiracies,
heightened by purposely spread rumours of them, became a justification
for maintaining the Emergency. It would be premature to conclude that
‘dangers of internal and external subversion’ have been surmounted,
said a Congress Party resolution of January 1976. ‘Forces of destabilization
are still actively at work.’ The Emergency must continue until ‘these
dangers have been effectively contained’ .*8

to be no alternative but to think ... [of introducing] some element of compulsion in the
larger national interest ...’. Shah Commission, Ill, p. 153. It is doubtful that Karan Singh
privately supported the excesses of Sanjay Gandhi's sterilization programme, but there is
—
no evidence available that he opposed them.
56 Tbid., p. 229. Mrs Gandhi’s‘assumption of arbitrary authority may intriguingly be yw com
compared with the possibility that a President of India might become a ‘dictator’ by pe”
dissolving Parliament and the council of ministers, appointing lackeys to be ministers,
ruling by ordinance, and declaring an emergency, ‘which the courts would find difficult
_
to hold invalid’. Gledhill, The Republic of India, pp. 107-9.
57 Chakravarty and H. Y. Sharada Prasad in interviews with the author. The story had
gone round that Mrs Gandhi intended to announce the Emergency’s end in the Red Fort
it.
speech, but did not do so, having learned of Rahman’s assassination soon before giving
death only
This was not the case, according to an impeccable source, she learned of his
after delivering the speech.
Congress’s
58 Resolution moved by S. S. Ray in the Subjects Committee meeting,
1976. Zaidi, A. M.,
Kamagata Maru Plenary Session 31 December 1975-1 January
y Ltd., New Delhi,
Encyclopaedia of the Indian National Congress, S. Chand and Compan
1984, vol. 23, p. 317.
 Chapter 14

CLOSING THE CIRCLE

‘The Emergency suddenly was in place, power was in their hands, and
they wondered what to do with it,’ remembered a Law Ministry official
senior at the time. Months would elapse before long-term plans were
completed. But the short-run need was clear to the Prime Minister and
her associates: to protect her prime ministry and her Emergency
proclamation from judicial challenge. The two goals overlapped as did
the actions serving each. Closing a circle around Mrs Gandhi meant
destroying representative government for the benefit of one official.
Protecting her 1971 election to Parliament, the most pressing need,
takes us back to the origins of the challenge to her.

The Indira Gandhi Election Case

Justice Jagmohan Lal Sinha’s 12 June 1975 catalytic ruling in the Allahabad
High Court, and Justice V. R. Krishna lyer’s temporary stay of that decision
on 24 June came four years after the causative events. On 8 March
1971, Raj Narain organized a parade in his constituency town of Rae
Bareli in Uttar Pradesh to celebrate his victory over Indira Gandhi in the
parliamentary elections of the previous day. But he hadn’t won. Indira
Gandhi had, by a wide margin. Narain’s Samyukta Socialist Party,’s
suspicions of Mrs Gandhi, swollen by its enormous frustration from its
inability to unseat her and the Congress Party, hardened into certainty
that she had won through election rigging and corrupt practices. Narain
decided to challenge the Prime Minister's election through an election
petition, which he did on 24 April before the Allahabad High Court.!
The petition charged that in her campaign the Prime Minister had
violated the provisions of the Representation of the People Act, 1951
because the campaign had been assisted by a gazetted government official,
the armed forces, and local police; had used government vehicles; had

eg ! The following account of Mrs Gandhi's Election case draws heavily on Bhushan,
Prashant, The Case That Shook India, Vikas Publishing House Pvt. Ltd., New Delhi,
1978.
The author of this good book is the son of Raj Narain’s counsel, Shanti Bhushan.
 Closing the Circle 315

exceeded the prescribed limit for campaign expenses; and had distributed
liquor and blankets among the voters to gain their votes.
Hearings began on 15July 1971 before Justice B. N. Lokur. Later in
the month, Raj Narain requested that the Prime Minister be called to
testify in the court and, more critical to the case, that certain government
documents be produced in court. Later in the year, Narain appealed to
the Supreme Court the High Court’s ruling upholding the government's
position that certain allegations of corrupt practices could not now be
admitted because they had not been listed in the original election
petition.” In New Delhi, a bench ofJustices K. S. Hegde, Jaganmohan
Reddy, and K. K. Mathew heard the case, and on 15 March 1972 Hegde
delivered the bench’s decision upholding Narain’s appeal. Evidence
could now be introduced about whether the gazetted officer in question,
Yashpal Kapoor, had been a government official or a private citizen
when he assisted Mrs Gandhi’s election campaign.?
The case dragged on through 1973 and 1974. On 5 April 1974 the
Supreme Court granted leave for the third appeal during the hearings.
This time it was Mrs Gandhi, claiming ‘privilege’ in not having to
produce the ‘Blue Book’ in the high court. (The ‘Blue Book’: ‘Rules and
Instructions for the Protection of the Prime Minister When on Tour or
Travel’.) On 24 January 1975, a Supreme Court bench of five—Chief
Justice Ray, K. K. Mathew, N. L. Untwalia, R. S. Sarkaria, and A.
Alagiriswami—quashed the high court’s ruling commanding production
of the Blue Book in court. But it directed Justice Jagmohan Lal Sinha,
the third judge to preside over the case, to getan official affidavit about
or not
disclosure of the Blue Book, and then he could decide whether
to admit portions of it in evidence.
Meanwhile, a decision in another election case had affected Mrs
bench
Gandhi’s strategy in hers. On 3 October 1974, a Supreme Court

as it then was.
2 See Section 86(5) of the Representation of the People Act
n, The Case That Shook India,
3 For the decision, see 1972 (3) SCC 850ff. Also, Bhusha
p- 14.
from government service
The point at issue was narrow: did Kapoor’s resignation
r, or only when he submitted it in
become ‘official’ when he made it orally to a superio
writing?
ession for the chief justiceship
As seen in ch. 12, Justice Hegde attributed his supers
Mrs Gandhi was greatly piqued by my
in part to this ruling. ‘I had reason to believe that
issued by Sri K. S. Hegde, former Judge of
decision in her election appeal.’ ‘Statement
n criticism made by some of the Congress
the Supreme Court of India, in reply to certai
an Papers, Third Installment, Subject File
leaders’, dated 1 May 1973. Jayaprakash Naray
455, NMML.
 316 Working a Democratic Constitution
of Justices R. S. Sarkaria and P. N. Bhagwati ruled that an election
expense incurred by any person with the candidate’s consent or of which
a candidate took advantage should be treated as an authorized expense
and had to be included in the candidate’s report of election expenses
(author’s emphasis).4 Mrs Gandhi and the Law Ministry reacted, as they
would in 1975, by retrospectively altering the law upon which the
Bhagwati-Sarkaria decision had been based. On 19 October, the
President promulgated the Representation of the People (Amendment)
Ordinance, 1974 (replaced by an Act of Parliament on 21 December)
to add an ‘Explanation’ to Section 77 of the 1951 Act. This said that
‘Notwithstanding any judgement ... of any court ... any expenditure
incurred or authorized in connection with the election of a candidate
... [by anyone other than the candidate or his election agent] shall not
be deemed to be and shall not ever be deemed to have been expenditure ...
authorized by the candidate ...’ (author’s emphasis). By making legal
what had been illegal, Mrs Gandhi had kicked one leg from under Raj
Narain’s election petition. In other developments, Justice Sinha
admitted into evidence portions of the Blue Book; Raj Narain moved
a
writ petition challenging the 1974 Act amending the Representation
of the People Act; and Justice Sinha admitted this petition as connected
to the case. On 18 March 1975 Mrs Gandhi became the first Prime
Minister of India to appear in person before a court.
Arguments ended on 23 May. Justice Sinha went with his family
literally into hiding to write his judgement.® Delivering it in 238
pages
on 12 June, he voided the Prime Minister’s election
because she was
guilty of the ‘corrupt practice’ of using the services of state and
central
government officers in her campaign. He rejected Raj Narain’s
challenge
4 Kanwar Lal Gupta v Amarnath Chawla and Others 1975 (2)
SCR 2599ff, called Amarnath
Chawla’s case. See also, Bhushan, The Case That
Shook India, p. 17.
5 President V. V. Giri had been the first official of
the highest rank to appear before
the Supreme Court when in April 1970 he defended
himself against a petition challenging
his election as President.
® At the time, J. Vengal Rao of Andhra,
one of the chief ministers summ oned to
Delhi to help prepare for the Emergency’s impos
ition, was purported to have said that
Justice Sinha had revealed his forthcoming
decision to Jayaprakash Narayan. Rao
subsequently published the charge. In 1996,
he tendered an unconditional apology to
the Allahabad High Court for the false allega
tion. India Today, 30 November 1996, p. 19.
During a conversation with Mrs Gandhi, perha
ps on 15 May, D. P. Dhar warned her
that her case had been badly handled, but found
her smug about the outcome. A senior
official in the Prime Minister's office—who had
it from D. P. Dhar—in an interview with
the author. Probably at this meeting, also, Dhar advoc
ated the stern measures to restore
order described in chapter 13.
 Closing the Circle 317
to the constitutionality of the 1974 act amending the Representation of
the Peoples Act. During the ensuing uproar in the courtroom, Mrs
Gandhi's counsel applied for a stay order, and Justice Sinha granted an
unconditional stay for twenty days. He had been informed (it appears
wrongly) that Narain’s counsel had agreed to the stay.’
During the previous few weeks, there had been goings-on backstage
in Allahabad. Agents of the Intelligence Bureau were trying to glean
Justice Sinha’s views from his staff or from tidbits of gossip in the court
and the city. A Joint Secretary in the central Home Ministry met the
chief justice of the High Court and suggested that the Prime Minister
might be spared embarrassment if Sinha deferred his ruling until she
had returned from a trip abroad. So angered was Sinha when the chief
justice told him this that he promptly set 12 June as judgement day.?
Threats against Justice Sinha were rumoured, and a member of
Parliament from Uttar Pradesh ‘casually mentioned to Sinha whether
he could do with Rs 500,000’.!° Justice Sinha, himself, claimed that
retired Chief Justice D. S. Mathur, formerly a colleague on the Allahabad
Court, had said to him ‘“It is settled that today you decide the case in
favour of Smt Gandhi and tomorrow you go to the Supreme Court.”’!!
Justice Mathur denied the allegation, saying that he and Sinha ‘were
talking of rumours in Delhi’ conveyed to him over the telephone.!?
Responsible persons disagree about the Sinha—Mathur affair. N. K.

7 The version of Raj Narain’s counsel in Bhushan, The Case That Shook India, p. 97.
Seven years later, Justice Sinha wrote, ‘[I]f the members of the executive or the
legislatures are allowed to move unrestrained in any direction they choose, it would be the
death-knell of democracy.’ Sinha,J.M. L., The Constitution, the Judiciary and the People, Popular
Prakashan, Bombay, 1983, p. 15. This is the Jayaprakash Narayan Memorial Lecture of
1982.
8 Information to the author from a relation of then IB director, Atma Jayaram; also,
Nayar, The Judgement, p. 2.
9 Nayar, The Judgement, pp. 1-2.
The visit by a Joint Secretary to Allahabad at this time has been confirmed to the
author by an official then in the Prime Minister’s office. This individual, no fan of Mrs
Gandhi, says the visit to the city was unrelated to the case.
10 Tbid., p. 1.
11 Judge Sinha’s letter to Home Minister Charan Singh dated 9 July 1977. Sinha
wrote that the incident occurred about 23 May. From Papers Laid on the Table, 1977, Lok
Sabha Secretariat, New Delhi.
Charan Singh had written to Justice Sinha on 8 July enquiring for all the facts, after
pointing to a passage in Nayar’s The Judgement referring to such an offer having been
made. Ibid.
12 ED. S. Mathur letter to Charan Singh dated 15 July 1977. Charan Singh had written
is much more
to Mathur en 11July. Ibid. The correspondence among the three men
extensive than is indicated here.
318 Working a Democratic Constitution
Seshan and a senior communist journalist tend to believe Sinha. P. N.
Haksar doubts Sinha’s account, thinking he was ‘just showing he had
guts’.!3 The truth of the matter is uncertain, but, given Mrs Gandhi’s
stake in the case and the personalities around her, it is likely that attempts
were made to foreordain Justice Sinha’s decision.
Two days after Sinha’s ruling, H. R. Gokhale approached N. A.
Palkhivala about representing the Prime Minister. Palkhivala said he
would examine the cases and, after doing so, agreed to take it. He told
Gokhale to tel] Mrs Gandhi that the evidence on record did not justify
Justice Sinha’s ruling.!4 On 20 June, Palkhivala sought an unconditional
stay of Justice Sinha’s decision pending final disposal of her appeal by
the Supreme Court. Her petition said there would be ‘grave hardship
and irreparable loss to the appellant and the country at large’ if an
unconditional stay were not granted. The stay application had been
read and corrected by Solicitor General Fali Nariman.
The Supreme Court's vacation judge, V. R. Krishna lyer, heard the
case on 23 June and the next day he granted a conditional stay ruling
that the electoral disqualification ‘stands eclipsed’ during the stay. Prime
Minister Gandhi could address Parliament, but she could neither
participate nor vote in Lok Sabha debates nor draw remuneration as a
member. Additionally, Krishna Iyer made remarks in his judgement that
would echo long thereafter. The high court’s ruling, he said, ‘however
ultimately weak it may prove ... does not involve the petitioner in any of
the graver electoral vices set out in Section 123 of the [Representation of
the People} Act’. He added, ‘Draconian laws do not cease to be law in
courts but must alert a wakeful and quick-acting legislature.’!> Justice
Krishna lyer’s critics claim that with these words he had virtually
exonerated the Prime Minister and all but invited Parliament to amend
the ‘draconian’ passages in the election law, which, as will be seen,
Parliament did in the Election Laws Amendment Act and the Thirty-
ninth Amendment. A kinder reaction to the stay order was, ‘Perhaps,
unbeknown to Justice Krishna Iyer, whose judicial integrity is beyond
question, he offered advice to her which was not warranted in judicial
discourse and in any case proved disastrous to the Court later on.’!®
Then came the Emergency, its repressions, and its almost limitless
powers. With many opposition members of Parliament detained and

13 Seshan and P. N. Haksar interviews with the author.

14 N. A. Palkhivala interview with the author.
WW 15 Smt. Indira Nehru Gandhi v Shri Raj Narain 1975 Supp SCC 1ff.
16 Baxi, The Indian Supreme Court, p. 51. See his analysis of the conditional Stay period,
pp. 46-56.
 Closing the Circle 319

others either fearing the Prime Minister or loyal to her, it was not difficult
to enact constitutional amendments to protect her position.

The Protective Amendments

The government introduced the first of these, the Thirty-eighth
Amendment, on 22 July 1975 and it received presidential assent ten
days later. This barred judicial review of proclamations of emergency
whether made to meet external, internal, or financial threats (Article
360 for the latter). The amendment also barred judicial review of
overlapping emergency proclamations, of ordinances promulgated by
the President or by governors, and of laws enacted during emergencies
that contravened the Fundamental Rights.
The second amendment, the Thirty-ninth, protected Mrs Gandhi's
prime ministry by preempting any Supreme Court action that might
result from its hearings on her election case, which were to begin four
days after the bill’s introduction on 7 August. Testifying to the Prime
Minister’s control, the Lok Sabha passed the amendment the sare day
after two hours ‘debate’. In the Rajya Sabha it received equally expeditious
treatment the next day and two days later, the President assented to the
bill, state legislatures very efficiently having ratified it in special Saturday
sessions. It removed from the Supreme Court authority to adjudicate
election petitions. It inserted a new Article in the Constitution (Article
399A) that, in a masterpiece of dense wording, laid down that elections
of the Prime Minister and the Speaker of the Lok Sabha could be
decided only by an ‘authority’ or ‘body’ established by Parliament by
law, no longer by the Supreme Court. Furthermore, an election petition
against a member of Parliament would ‘abate’ were that individual to
become the Prime Minister or the Speaker. Also, no law about election
petitions passed prior to the amendment was valid, and any judicial
declarations voiding elections were invalid. Additionally, the
be
amendment took from the Supreme Court and placed in a body to
established by Parliament the authority to resolve disputes concerning
of
the elections of the President and the Vice-President.!” Elections
in the
the President, Vice-President, and Speaker were included
not appear
amendment, along with the Prime Minister’s, so ‘it would
that because the President
\7 Explaining the amending bill, Law Minister Gokhale said
ng done in exercise of their office,
and the Vice-President were not answerable for anythi
be beyond court jurisdiction, and this
it was ‘appropriate’ that their election should
Lok Sabha Debates, Fifth Series, vol. 54,
applied equally to the Prime Minister and Speaker.
no. 14, col. 8.
 320 Working a Democratic Constitution

too obvious’ that it was to save Mrs Gandhi’s election, wrote Kuldip
Nayar.8
To make doubly sure that the Supreme Court could neither chal-
lenge nor embarrass the Prime Minister, the amendment placed in the
Ninth Schedule, and beyond judicial review, three laws dealing with
elections: the Representation of the People Acts of 1951 and 1974 and
the Election Laws Amendment Act. This 5 August 1975 law altered the
Representation of the People Act and the Indian Penal Code to read
that anyone found guilty of a corrupt election practice could go ‘to the
President for determination ... whether such person should be disquali-
fied and, if so, for what period’.!9
Opposing the bill in Parliament, Mohan Dharia bravely called it ‘a
surrender of parliamentary democracy to the coming dictatorship’.?
Mrs Gandhi’s Orwellian electoral coup was complete. It was ‘a very
personalized amendment ... to protect one person’s interests’, wrote
constitutional authority S. P. Sathe.?!
These two amendments were mild when compared with the Forty-
first Amendment Bill. Introduced in the Rajya Sabha by Law Minister
Gokhale on 9 August 1975, this time two days before the Election case
hearings were to begin, it amended Article 361 to say that no criminal
proceedings ‘whatsoever’ could lie in court against a person who is or
who had been the President, Prime Minister, or governor for acts ‘done
by him, whether before he entered upon his office or during his term

18 Nayar, The Judgement, p. 80.

19 The law also was directed at two specific issues in the Indira Gandhi Election
case.
It provided that a government official (read Yashpal Kapoor), if assisting a candidate
while on official duty, ‘shall not be deemed’ to have assisted the candidate
, and it changed
the legally effective date for an official's resignation from government service
(again
Kapoor).
*° Lok Sabha Debates, Fifth Series, vol. 54, no. 12, col. 10. Dharia later walked out of
the Lok Sabha to protest the Thirty-ninth Amendment because it changed
the Constitution
to favour a ‘particular person’—many opposition members joined
him. ‘I will not be
coming again’, he said. Passing 336 to 0, the amendment also
placed some thirty-five
property laws in the Ninth Schedule, along with MISA, 1971, and
COFEPOSA. Law
Minister Gokhale presented it as, in the main, a socialist measure. Presagin
g developments
to come, Gokhale also told the House that the time had
come to take ‘a fresh look at the
whole fundamental structure of the Constitution itself’, Ibid.,
col. 59.
Another amendment, the Fortieth, placed in the Ninth Schedu
le—directly relevant to
the Emergency’s denial of fundamental rights—the Preven
tion of Publication of
Objectionable Matter Act, 1976, four other non-property laws,
and fifty-eight property laws.

J The bill was introduced on 21 May 1976 and received the Preside
nt's assent a week later.
21 Sathe, S. P., Constitutional Amendments, 1950-1988, N: M. Tripathi
1989, p. 28.
Pvt. Ltd., Bombay,
 Closing the Circle 321

of office’. No civil proceeding against persons holding these offices,

the bill continued, ‘shall be instituted or continued during his term of
office in any court in respect of any act done or purporting to be done
by him in his personal capacity’ before or after he entered office.??
The Rajya Sabha passed the bill (which will be revisited below) the day
it was introduced. It was placed on the table in the Lok Sabha in January
1976, where it lapsed upon the dissolution of the Lok Sabha in early
1977.
Momentum toward protective measures of some sort had begun
within hours of the 12 June Allahabad judgement. Congress Forum for
Socialist Action members like K. P. Unnikrishnan, Raghunatha Reddy,
and Chandrajit Yadav, joined by Shashi Bhushan and the Minister of
State for Industry, B. P. Maurya, met at D. K. Borooah’s house to discuss /
strategy.2° When the group met Mrs Gandhi, she said little and advised
the men to discuss the issues with Borooah and her other advisors.24
Meeting separately were S. S. Ray, Rajni Patel, Gokhale, andY. B. Chavan,
who said, ‘What happens to Indira today happens to India tomorrow.’2°
The idea of enacting one or more laws directly aimed at nullifying the
challenge to Mrs Gandhi’s election seems to have been rejected, perhaps
on S. S. Ray’s urging, in favour of one big measure such as imposing an
internal emergency and amending the Constitution. Young Turks like
Chandra Shekar, Krishan Kant, and Ram Dhan, were said to be holding
their own meetings, anxious that events might take an authoritarian and
anti-constitutional turn. After the Emergency was proclaimed, Mrs Gandhi
and many around her feared she might be attacked for imposing the
Emergency and for jailing large numbers of persons. Rumours circulated
that suits for wrongful arrest might be brought against her in high
courts.7°
22 Constitutional Amendment in India, Lok Sabha Secretariat, pp. 173-4, 392-3. Article
361 already to a degree protected the President and governors against civil and criminal
proceedings while they were in office.
23 Unnikrishnan interview with the author. The composition and activities of this
group was confirmed by a senior Law Ministry official. Maurya was remembered as having
been noisily concerned that Mrs Gandhi might ‘be dragged through the courts’. In an
interview, Maurya was unwilling ‘to discuss the activities of friends’.
24 Thid.
June.
25 Ibid. This meeting was on 14
ndran,
26 P N. Dhar and I used to discuss these rumours and discount them, V. Ramacha
Dhar’s immediate subordinate, told the author. The executive of the Congress
in an
Parliamentary Party believed that Indira needed protection, recalled V. N. Gadgil
such fears included Jagmohan,
interview with the author. Others in interviews recalling
S. L. Shakdher, N. K. Seshan, and I. K. Gujral.
322 Working a Democratic Constitution

When Law Minister Gokhale brought drafts of the Thirty-eight and

Thirty-ninth Amendments to the cabinet (Borooah, Ray, and Patel, not
being members of the central government, were not present), there was
little opposition to them. They had been designed and partially drafted
by S. S. Ray, D. K. Borooah, and Gokhale at Mrs Gandhi’s house, bypassing
her secretariat, and secretly at the Law Ministry by Gokhale and the
ministry’s two Secretaries, P. G. Gokhale and K. K. Sundaram. The Prime
Minister had already given her imprimatur to them because she ‘was
panicky about the Supreme Court’s judgement’.2” Cabinet members C.
Subramaniam, Y. B. Chavan, Jagjivan Ram, and Swaran Singh were
thought especially to have disliked the Thirty-ninth Amendmentas ‘going
too far’, not in the Congress tradition, and possibly leading to an
autocratic prime minister in the future.?8 Sardar Swaran Singh’s muted
discontent with the amending bill is thought to have contributed to his
later dismissal from the cabinet. Subramaniam, according to a cabinet
minister, upon returning to New Delhi and learning of a draft of the
Thirty-ninth Amendment, sought out Gokhale to protest it as unwise
and possibly unconstitutional. When Gokhale responded that S. S. Ray
wanted it, Subramaniam suggested they go to the Prime Minister. After
hearing out Subramaniam, Mrs Gandhi is said to have closed the matter
by repeating that S. S. Ray thought it was a good idea. Ray was ‘the moving
force’ behind the Thirty-ninth Amendment, according to a senior cabinet
minister at the time.??
The originators of the two amendments also produced the Forty-
first Amendment bill, according to most knowledgeable persons. D.
K. Borooah ‘got it done’, said Vasant Sathe.*° A ‘radical group’ including
V. C. Shukla, Om Mehta, Shashi Bhushan, Mohammed Yunus
(a Gandhi-family friend), and others produced the idea, but Ray,
Patel, and Borooah were ‘always there’, according to I. K. Gujral.*!
Others trace the bill’s origin to Sanjay Gandhi and his mother. The
offices of President, Vice-President, and Speaker were ‘tacked on’ to
an early draft to indicate Mrs Gandhi was not being singled out for

27 Pp. N. Haksar interview with the author. Although Haksar had been rusticated to
the Planning Commission, he had a standing invitation to attend cabinet meetings.
28 Sheila Dikshit interview with the author.
29 The minister to S. Guhan. Guhan in an interview with the author.
In interviews with the author, Ray and Borooah declined to discuss the history of
these measures, although the latter said that Ray ‘may have been behind’
the Thirty-
ninth Amendment. ‘He has a long view of his attainments,’ Borooah said.
30 Vasant Sathe interview with the author.
31]. K. Gujral interview with the author, Several others among those political
ly active
at the time agreed,
 leener, Rr iste

Closing the Circle 323

attention.>* The cabinet discussed the bill at meetings at which the Prime
Minister apparently did not preside. ‘Many in the cabinet did not oppose
the bill, but many did not approve of it, either,’ remembered Chandrajit
Yadav.*> Despite its nearly-automatic passage in the Rajya Sabha, the bill
engendered ‘vehement opposition’ among members of the Lok Sabha,
where, it was not formally debated.*4 The objections seem to have been
utilitarian rather than constitutional or moral: international reaction to
the bill’s enactment would be damaging to the government and party
and popular resentment would discredit the Emergency. The argument
most persuasive to the Prime Minister, and attributable to Subramaniam
and several others, seems to have been that the public might think
Mrs Gandhi had skeletons in her cupboard and the bill was needed to
shield her from them. Mrs Gandhi, and it could have been only she,
decided the bill should die in the Lok Sabha. “When Indira was convinced
that the party was strongly against something, she could be very
sensitive.’>°
The Supreme Court opened its hearings on the Election case on 11
August only to adjourn them to allow Raj Narain to prepare his chal-
lenge to the Thirty-ninth Amendment. N. A. Palkhivala had left the case ed
upon learning the Emergency had been declared, to be replaced by
one-time Law Minister in Nehru’s cabinet, Asoke Sen.°° When hearings
resumed on 25 August, Narain’s attorney, Shanti Bhushan, attacked the
retrospective character both of the amendment and Election Laws
Amendment Actas violating the basic structure doctrine. Sen argued for
Mrs Gandhi that there was no case to try, given the revised election laws.
The five to four majority decision handed down by the judges in their
separate opinions on 7 November validated Mrs Gandhi's 1971 election
to Parliament, but it struck down part of the Thirty-ninth Amendment.
The court accepted the concept that laws could be changed with retro-
spective effect to make legal actions that previously had been offences
under law. Thus, it upheld the Prime Minister’s election because she had
violated no law. At least three of the judges must have swallowed hard to

32 VN. Gadgil interview with the author.

with the
33 Chandrajit Yaday, at the time Minister of Steel and Mines, in an interview
author.
34S L. Shakdher interview with the author.
35 Margaret Alva interview with the author.
When he failed
36 Palkhivala had telephoned Mrs Gandhi from Bombay on 26 June.
not represent Mrs Gandhi
to reach her, he spoke with Gokhale and told him that he could
ala interview with the author.
because the Emergency was not justifiable. N. A. Palkhiv
following day.
Solicitor General Fali Nariman resigned his office the
 324 Working a Democratic Constitution

do this. Justice Mathew said to Shanti Bhushan during the hearings,

‘There is no doubt of the unfairness of retrospective laws about cor-
rupt practices, but can you cite some legal authority to impugn their
validity ...?’>7 Justice Khanna also said during the hearings that ‘all
retroactive legislation is repressive’.*8 ‘We disliked retrospective effect,’
recalled Justice Chandrachud. ‘It is an absurd, loathsome, and danger-
ous precedent in constitutional law.’?? Law Commission Chairman
Gajendragadkar, adhering to his long-held view, took a contrary posi-
tion. I hope the Court ‘will hear the constitutional point’, he wrote to
Mrs Gandhi, ‘and I have no doubt that it will uphold Parliament’s abso-
lute power to amend any and every article of the Constitution.’#?
Striking down the Thirty-ninth Amendment's Clause 4, which inserted
new Article 329A, with its special protection for the election of the Prime
Minister and the Speaker, the five justices gave different reasons.The
Chief Justice Ray held that validating the Prime Minister’s election
through Article 329A was not by applying law and therefore offended
7
the rule of law. Khanna said the article violated the principle of free
and fair elections, which, being essential in a democracy, were part of
the basic structure. Mathew rejected the article saying that an essential
ee feature of democracy is the resolution of election disputes by judicial
power using law and the facts. Chandrachud said the article was
destructive of equality and of the rule of law because it applied a different
election law to the Prime Minister than to others.*! Justice Beg dissented
from the others by upholding the amendment in its entirety. The basic
structure doctrine had passed its first post- Kesavananda test. Excepting
Beg, the four judges had upheld it, although A. N. Ray did this by holding
that it was not necessary to challenge the Kesavananda decision.
Raj Narain was a good fellow and a staunch Socialist to his party
comrades. To his critics, he was weak, crude, loud-mouthed, and irascible.
By bringing petty, even if legitimate, charges arising from the pent up
frustration of an incompetent opposition, after an election he had

37 Bhushan, The Case That Shook India, p. 193. The five-judge bench comprised Chief
Justice A. N. Ray, and Justices H. R. Khanna, K. K. Mathew,Y,V. Chandrachud, and M. H.
Beg.
38 Baxi, Supreme Court and Politics, p. 70.
39 Chandrachud interview with the author. He, along with many others, thought the
charges against Mrs Gandhi petty and difficult to uphold.
10 Letter dated 13 August 1975. Gajendragadkar Papers, NMML.
V 411975 Supp SCC Iff. For reporting and analysis of the judgement, see press reports;
Nayar, The Judgement, p. 93; Bhushan, The Case That Shook India, pp. 220-39; Baxi, The
Indian Supreme Court, pp. 56-70.
 Closing the Circle 325
genuinely lost, he sought to bring down a Prime Minister only to make
her position impregnable.

Completing the Circle

Protected constitutionally by the outer ring of amendments, so her
supporters expected, the Prime Minister was also to be encircled by the
inner ring of her son Sanjay and his henchmen—who were referred to
as the ‘coterie’ or ‘caucus’ and as the ‘extra-constitutional authority’—
often acting in her stead.** His advocacy of the Emergency and his role
in preparing arrest lists before it has been described.
Although Mrs Gandhi never relinquished control over the executive
branch and Parliament, ‘she allowed Sanjay to have a team of his own,
and this developed into a real caucus,’ recalled Nikhil Chakravarty.*®
‘What Sanjay tells me to do, I do’, said Minister of State for Home Affairs
Om Mehta, aptly describing dynamics within the coterie.44 Mrs Gandhi
did not have a high opinion of Sanjay’s ‘intellectual capacity’, said a
member of her staff at the time, ‘but she knew his ability to get things
done’. ‘No extra-constitutional centre of authority is possible without
the encouragement and support of the Prime Minister,’ said Jagjivan
Ram, Minister of Agriculture during the Emergency. ‘For all acts of
omission and commission by Sanjay Gandhi, the Prime Minister, Mrs
Gandhi, is to be blamed.’*° A member of the Prime Minister’s household
could tell the insiders because they entered the Prime Minister’s house
by the side door and not by the main entrance.
The coterie’s activities and Sanjay Gandhi's increasingly dictatorial
authority cannot now be demonstrated from documentary sources.
First-hand evidence, however, is available in personal experiences. Om
Mehta has made clear Sanjay Gandhi’s control over the Home Ministry.
His control over the Health Ministry is clear from the ‘family planning’
programme of forced sterilizations—which more than anything else

42 Among the henchmen were “hoodlums and gangsters”’ who had ““infiltrated”’
the Youth Congress while Sanjay Gandhi was its president and he used them as his private
brown shirts. See Ambika Soni, Youth Congress president in November 1975, in Hindustan
Times, 7 May 1977.
43 Nikhil Chakravarty interview with the author.
44 Om Mehta in an interview with the author. Several persons, including D. K.
Borooah, told the author that Mehta, although Sanjay Gandhi's toady and tool, was not
a hard-hearted person and quietly helped several persons under detention.
45 Singh, Satindra, syndicated columnist, ‘Interview with Babu Jagjivan Ram’,
mimeograph, no date (but spring 1977). Satindra Singh Papers, National Institute of Panjab
Studies, New Delhi.
326 Working a Democratic Constitution

during the Emergency blackened the government’s name.*° He dictated

nearly everything in the Prime Minister’s house, recalled one of her
personal staff. He had de facto authority and access to all government
files, without responsibility, said T. A. Pai.4” He sacked I. K. Gujral as
Minister of Information and Broadcasting after a ‘uff’, reported the
Hindustan Times and a police officer on duty with the Prime Minister
witnessed the incident.*®
Sanjay Gandhi's influence over his mother ‘never ceased to be a
subject of avid discussion in India ...’.49 It extended to advocating actions
and policies with which the Prime Minister cannot have been in sympathy.
Examples of the former include the brutalities of forced sterilization
and destroying slums—which in Old Delhi produced police firing and
killing. He also took political initiatives such as the interview he gave to
a magazine in which he castigated Mrs Gandhi’s ally, the Communist
Party of India, and denounced the public sector as inefficient while calling
for the privatization of industry.°? Sanjay Gandhi was the keynote speaker
at the Youth Congress Conference that preceded the Guwahati Congress
Party plenary in November 1976 and that nearly outshone the plenary.
By now, the Prime Minister’s sychophants were proclaiming ‘that Sanjay
was the true and legitimate successor of “Madam”, as Indira was now
called by one and all’.>!
Among the Prime Minister’s supporters there was concern that her
son’s power and behaviour could damage her, personally, and, was
turning the Emergency into the personal, idiosyncratic dictatorship of

46 The Health Minister of that time, Karan Singh, does not like to speak about this.
But Sanjay Gandhi's control over the ministry was asserted to the author by Jagmohan,
who, as an official of the Delhi government, worked closely with Sanjay Gandhi on issues
of municipal development.
47 Hindustan Times, 6 May 1977.
48 Hindustan Times, 7 December 1977, and the police officer in an interview with the
author.
Uma Vasudev devotes ch. 3, ‘Sanjay’s Action Brigade’, of her Two Faces ofIndira Gandhi,
to reports of his influence and activities.
49 Malhotra, Indira Gandhi, p. 180.
50 For an account of this incident, see ibid., p. 194, and Vasudev, Two Faces, pp. 108ff
and 193ff, where the entire text of the interview is reproduced.
B. K. Nehru learned on his visits to Delhi from London of excesses inspired by Sanjay
Gandhi and how ‘the rule of law was being replaced by the rule of Sanjay Gandhi’. Nehru
discussed this with Sanjay Gandhi's elder brother, Rajiv, who told him that his mother
‘had abdicated in favour of her son’. Nehru, B. K., Nice Guys Finish Second, Penguin Books,
1977, pp. 560, 564.
51 Malhotra, Indira Gandhi, p. 185. For reportage of the doings at Guwahati, see
Times of India, 20-5 November 1976.
 Closing the Circle 327
this young man. K. P. Unnikrishnan remembers discussing the
problem
with S. S. Ray and Rajni Patel in the latter’s suite in the Ashok
a Hotel.
“We should strengthen the PM politically,’ they agreed. But Sanjay
was
suspicious, Unnikrishnan added; ‘he probably suspected a power grab
and he pushed us out.’°? It was a hopeless project from the start.
Mrs
Gandhi's faith in her son was unswerving. And the ascendant Sanjay
thought Ray and Unnikrishnan were ‘left’, and he despised Patel as a
Communist.
Indira Gandhi had used the processes of the Constitution, and the
hunger of her courtiers, to seize power and to protect herself against the
law. Within the concentric circles, she ruled alone, and could turn her
attention to altering the Constitution further to suit her desires and to
subverting the authority of the centre of power she did not control, the
judiciary.

52 KP. Unnikrishnan interview with the author.

 Chapter 15

THE JUDICIARY UNDER PRESSURE

Prime Minister Gandhi's view of the judiciary was by now not in doubt,
having become clear in the Bank Nationalization and Princes cases, during
the Kesavananda hearings, in the supersession of judges, and, most
immediately, in the events described in the preceding chapter. From the
onset of the Emergency, according to Upendra Baxi, there was ‘a diffuse
and subtle ... feeling pressing upon the Court ... that its actions were
being watched by the regime and there were hints that judicial power
might be curbed in the days to come.’! An attempt to curb the Court
soon came. Mrs Gandhi’s government acted to curtail its power of judicial
review by overturning the basic structure doctrine laid down in
Kesavananda and upheld by four of the five judges ruling in her Election
case. Later, she would transfer a dozen and a half high court judges to
punish them for ruling against the government in preventive detention
cases. This occurred in the context of the famous Habeas Corpus case
which will be taken up later in this chapter. Meanwhile, as will be seen,
Mrs Gandhi's associates floated their personal schemes for ‘reforming’
the judiciary.

Basic Structure Revisited: The Kesavananda Review Bench

Three days after the Supreme Court reaffirmed the basic structure
doctrine in the Election case, Chief Justice A. N. Ray convened a thirteen-
judge bench to overturn the doctrine. Although the reaffirmation no
doubt added to the government’s resolve to rid itself of the concept, the
train of events had begun months earlier. The review bench would prove
to be the government’s most bootless attempt to curb judicial review and
to increase the government's authority to work its will unhindered by
democratic institutions.
The train of events had begun in August 1975 soon after passage of
the Thirty-eighth and Thirty-ninth Amendments.2 On 11 August, when

I Baxi, The Supreme Court and Politics, p. 34.

2 This reconstruction of events is based upon press reports (flimsy
due to censorship),
interviews, and the following books: Reddy, We have a Republic, pp. 102-5;
Baxi, The Indian
 The Judiciary Under Pressure 329

pleading the Election case, Attorney General Niren De said he would

like a review of the Kesavananda decision because it was unclear. H. R.
Gokhale in Parliament spoke of the need for a new constitutional
framework. Mrs Gandhi had said and would say again, ‘we do not accept
the dogma of the basic structure’.? In a magazine interview at this time
she spoke of reforming the judicial system. The first concrete move came
on | September when De and the Tamil Nadu Advocate General made
an application to the Supreme Court that it hear a number of writ petitions
on 10 November. Petitions charging that laws applying in land ceiling
cases violated the basic structure, were languishing in high courts, it was
claimed.* On 20 October, the Chief Justice issued a written order that on
10 November the Court would hear arguments on two points: whether
or not the basic structure doctrine restricted Parliament’s power to amend
the Constitution, and whether oy not the Bank Nationalization case had
been correctly decided. The Court ordered parties to submit arguments
on these points only, and it directed the Attorney General and the state
advocates general to attend the hearing.°
It has never been established, definitively, from whence initiative
for the review came. Speculation has ranged from the bar to the Chief
Justice to the government. A segment of the Supreme Court bar at this
time ardently supported the Prime Minister’s policies toward the judi-
ciary. Likely, some of them urged their views on the government and
the Chief Justice. Chief Justice Ray, claimed De, sought the review. Yet
Ray, himself, may have been under ‘sqme kind of direct pressure from
the regime’ to instigate the review, speculated Upendra Baxi. It did not
make any sense unless ‘he was responding to the government’s request
to do something about Kesavananda’.® Ray probably was a willing par-
ticipant if not an equal partner in the move. He had sided with the
government in Kesavananda, and the Bank Nationalization and Privy
Purses cases. He ‘had never reconciled himself to Kesavananda, scorn-
ing it in court. He may have elicited the initiative from the bar,’ thought

Supreme Court, pp. 42-5, 70-6; Bhushan, The Case That Shook India, pp. 256-67; Dhavan,
The Supreme Court of India, pp. 419-21, Seervai, Constitutional Law of India, vol. 2, pp.
1627-8; and Nayar, The Judgement, p. 93.
Wniings,
3 Speech in Parliament, 27 October 1976. Indira Gandhi: Selected Speeches and
vol. 3, p. 288.
4 Reddy, We Have a Republic, p. 104.
Ray and
5 The Hindu, 1 November 1975. On the bench would be Chief Justice A. N.
P. N. Bhagwati, V. R.
Justices H. R. Khanna, K. K. Mathew, M. H. Beg, Y. V. Chandrachud,
L. Untwalia , M. Fazl Ali, and
Krishna lyer, P. K. Goswami, R. S. Sarkaria, A. C. Gupta, N.
P. M. Shingal.
6 Baxi, Supreme Court and Politics, p. 42-3.
 330 Working a Democratic Constitution
bench member Justice Chandrachud.’ Ray, during the previous few
months, was said to have been looking for individuals who believed
Kesavananda should be overturned to fill the two vacancies on the
court. Whatever the case’s origin, the government thought that with
the Emergency in full swing ‘it might not be difficult for the govern-
ment to have a favourable decision’.9 If the government had needed
additional incentive to overturn Kesavananda, the Court’s striking down
part of the Thirty-ninth Amendment in addition to upholding the basic
structure doctrine in Mrs Gandhi’s Election case would have provided
it. The Court’s independence must be curbed.
Opening the hearings on 10 November Attorney General De argued
that the concept of the basic structure of the Constitution being una-
mendable had created great difficulty and confusion. Laws were being
questioned, and ‘every constitutional amendment is being challenged
in the high courts ... Everybody was giving a different interpretation to
the decision ... [I]t is essential that the court clears up the issues’.!9 His
government wanted to undertake large-scale measures of social-economic
uplift, he said, but Parliament did not know what to do. Judge Khanna
took the opportunity to expose ‘this utter fallacy’. He told De that, in the
Kesavananda ruling, he had expressly said that the right to property was
not included within the basic structure of the Constitution.!! He then
asked, ‘Has this theory of basic structure impeded or come in the way of
legislating any socio-economic measure?’ De answered in the negative
and then confusingly: ‘No, that is not the only question. You don’t re-
quire the power for amending non-essential parts of the Constitution’.!2
Y/Y The following day N. A. Palkhivala, arguing petitions by a coal mining
company that had been nationalized and an individual preventively
detained, rose in a tense and expectant hush to give what some hearers

7 Chandrachud in an interview with the author. Ray was not moved by motives of
personal gain, thought Chandrachud; he was too innocent. Nor was he driven by ideology
or socialist philosophy, thought Chandrachud.
8 From a senior advocate who claimed to have been approached by Ray.
° A remark by another member of the review bench to Justice Khanna. Khanna,
Neither Roses Nor Thorns, p. 73.
10 Bhushan, The Case That Shook India, p. 265.
1l Khanna, Neither Roses Nor Thorns, pp. 73-6; Bhushan, The Case That Shook India,
p.
265. Apparently no verbatim transcript of the hearings was kept. Bhushan’
s account
includes what appear to be verbatim passages of the arguments,
Khanna indeed had said this in Kesavananda, but the Court had not
spoken to the
point.
!2 Khanna, Neither Roses Nor Thorns, pp. 73-4. Khanna here cites as the
source for his
own words Seervai, Constitutional Law, vol. 2, p. 2657.
 The Judiciary Under Pressure 33]

believe to have been the most eloquent speech delivered in the Chief
Justice’s courtroom. He argued, in essence, that the Court could not
undertake a review of Kesavananda and that even if it could, it should
not. He began with Khanna’s point about the ‘right to property not
being a part of the basic structure’, and added that Kesavananda ‘ensures
that tyranny and despotism shall not masquerade as constitutionalism.
It is an astounding request from the government that such a judgement
should be overruled.’ The necessary criterion for reviewing Kesavananda,
Palkhivala said, was that the decision was in ““manifest error”’ and had
had a ““baneful effect on the public”’, neither of which was true. If any
of Kesavananda were to be reconsidered, the whole of the decision
should be reviewed. This could not be done fairly when even the
reporting of the hearing was subject to the censor’s approval.!3 (Several
newspapers did report the hearing, including Palkhivala’s arguments.)
Palkhivala also cited the Forty-first Amendment Bill as an example of
the danger inherent in overturning the basic structure doctrine. When
we argued the Kesavananda case, he said, we were told that the misuse
of power was hypothetical. “Today the misuse of power is no longer a
hypothetical possibility ... If this bill became law, a person can commit
the most heinous crimes’ and if he can get himself made governor of a
state he can ‘get away scot free’.!4 Palkhivala was so disturbed by the
hearing that the day before it opened he wrote to the Prime Minister
‘beseeching’ her not to review Kesavananda. Among the points he made
was that the country’s free democracy would not survive overturning the
basic structure doctrine.!°
At this time, the hearings began to come down around the Chief Justice’s
ears. When Palkhivala argued that a review of Kesavananda could not be
entertained as an ‘oral request from the government’, Ray responded that

13 Points taken from ‘Propositions submitted by Mr N. A. Palkhivala in support of

the plea that if the first preliminary point is rejected, the Supreme Court should not
exercise its discretion in favour of reconsidering Kesavananda’s Case’, dated 11 November
1975. Jayaprakash Narayan Papers, Third Installment, Subject File 320, NMML.
14 Bhushan, The Case That Shook India, p. 260.
15 Palkhivala’s letter was dated 9 November. ‘My dear Indiraji,’ he had begun, ‘I am
most distressed’ by the government's attempt to get Kesavananda overruled. He then asked
her to consider nine points, among which were: the government already had ‘optimum
latitude’ for economic legislation because the Supreme Court had upheld Article 31C;
probably ‘a free democracy and the unity and integrity of the country will vanish within
to hold
a few years if the basic structure were overturned, and who, after you, will be able
and ‘it
the country together?’; the basic structure ‘is the real safeguard of the minorities’;
would look strange’ if the court should overrule its election judgement in your favour.
Palkhivala,
Palkhivala-Indira Gandhi letter, copy in the author’s possession kindness of Mr
 332 Working a Democratic Constitution

the request for the review came ‘from these petitioners. Even the Tamil
Nadu government had asked for a review’. Here the Tamil Nadu Advocate
General, Govind Swaminathan, ‘jumped up’ to say, “We never even once
asked for a review.’ Ray answered, ‘Well, you were all asking for some
constitutional amendment to be struck down on the basic features’.!®
The Kashmir Law Minister, D. D. Thakur, on Sheikh Abdullah’s direct
instructions, also opposed reconsidering the Kesavananda decision, as
did the Gujarat Advocate General.!” These developments had a telling
effect within the bench, according to lawyers and justices involved. For
a start, the justification for the hearings appeared non-existent. “We all
asked, even Mathew, who disliked the basic structure, why are we here,
where is the review petition?’ De’s arguments for the government seemed
weak and Palkhivala’s eloguent. The judges were making disparaging
remarks about the hearings to each other. These dissatisfactions reached
Ray, probably, although perhaps not exclusively, through Justice
Mathew.!8§ And the judges may have believed that if the hearings
succeeded in overturning Kesavananda, ‘strange things might happen
to the Court and the Constitution’.!9
When the judges assembled in the Chief Justice’s chambers on the
morning of 12 November before entering the courtroom to resume
the hearings, Ray informed them that he had decided to dissolve the
bench. Amid sighs of relief and agreement, the judges filed into the
courtroom to hear Ray publicly announce his decision. The Court had
protected, or at least not relinquished, its institutional power. Stung by
her defeat, Mrs Gandhi threatened retaliation. Three days after the
dissolution, one of her long-time supporters, Uma Shankar Dikshit,
Minister of Transport, told a meeting of Congress workers in Kanpur
that if the Supreme Court debarred the government from making

'6 Bhushan, The Case That Shook India, p. 258. ‘Jumped up’: Justice Khanna interview
with the author. Swaminathan later participated in a public meeting opposing what would
become the Forty-second Amendment.
17 Khanna, Neither Roses Nor Thorns, p. 74. In his letter to Mrs Gandhi just cited,
Palkhivala had warned that these three governments were going ‘to oppose the attempt
to arm Parliament with absolute power’. All three state governments were then in hands
unfriendly to the Prime Minister.
Khanna, Jaganmohan Reddy, and several other judges believed that the review bench
Y had been established wrongly. No smaller constitution bench had requested review bya
larger bench.
18 This account is based on sources already cited and interviews with Justices Khanna,
Krishna Iyer, and Chandrachud of the review bench and senior advocates associated with
the case, Fali Nariman, Anil Divan, and N. A. Palkhivala.
19 Baxi, Supreme Court and Politics, p. 76.
 The Judiciary Under Pressure 333

changes in the Constitution, a new constituent assembly might have to

be convened to rewrite the Constitution to guarantee ‘social and
economic justice’. The government, Dikshit said, was making every effort
to run the country according to the Constitution, but if the Constitution
became an obstacle to ‘ensuring the basic needs of the people ... the
government would not hesitate to make drastic changes’ in it.7?

An Anonymous Attack
A month after the Chief Justice’s announcement and as the Court was
about to hear appeals in the Habeas Corpus case, an anonymous paper
appeared in Congress circles that proposed drastic changes for the high
courts and the Supreme Court. Rumoured at the time to have been written
by two Congressmen, and entitled ‘A Fresh Look at Our Constitution—
Some Suggestions’, it advocated that all judges in the country should be
appointed by the President in consultation with the councils of ministers
of the central or of the state governments. A ‘Superior Council of the
Judiciary’, chaired by the President with the Chief Justice of India and
the Law Minister as vice-chairmen, should decide all ‘administrative
matters in the judicial field’. The council’s members would include two
judges from the Supreme Court and two from the high courts elected by
secret ballot plus four persons elected by Parliament and four nominated
by the President. In the circumstances of the Emergency, this would have
given the executive branch control over the judiciary. This council should
be ‘the authority to interpret laws and the Constitution; as also to
determine the validity of any legislation’.?! In other words, the Supreme
Court would no longer be supreme, and the executive and legislative
branches, in conjunction under India’s parliamentary system, would sit
in judgement over themselves.22 Within several months, as will be seen
in the next chapter, this scheme and many of the other proposals in the
document would be discarded, but several of its provisions reappeared
in the Swaran Singh Committee’s report. Attacks on the judiciary would
continue.

20 Indian Express, 16 November 1975.

21 The author is indebted to Francine Frankel for a copy of ‘A Fresh Look’, which
later was published by A. G. Noorani in The Presidential System: The Indian Debate, Sage
Patel
Publications, New Delhi, 1989, pp. 105ff. Congressmen A. R. Antulay and Rajni
were associated with the document's drafting, as will be seen in a subsequen t chapter.
the
22 As N. A. Palkhivala put it, the courts would ‘become mere appendages of
’. N. A. Palkhivala ,
administration’, only ‘ “mice squeaking under the Home Minister’s chair”
9.
‘Should We Alter Our Constitution’ in Illustrated Weekly, 4 January 1976, p.
 334 Working a Democratic Constitution

The Habeas Corpus Case

The Habeas Corpus case captures the Emergency as nothing else: its
authoritarian and geographical reach; its inefficiencies; its meanness
and occasional magnanimity; its evocations ofjudicial philosophies and
degrees of courage among judges and lawyers; its testing of officials’
consciences and their willingness to submerge them in duty; its restraint
compared with authoritarian regimes and periods of authoritarian rule
in other countries. The Supreme Court opened hearing in the case on
15 December 1975 and handed down its decision in 28 Apri! 1976.
The case originated with the many preventive detentions made around
the country in the early hours of 26 June. That day, in the city of Bangalore,
the Commissioner of Police ordered the arrest of A. B. Vajpayee, L. K.
Advani, and Subramaniam Swamy of the Jana Sangh Party, S. N. Mishra
of the Congress(O), and Socialist Party member Madhu Dandavate under
the Maintenance of Internal Security Act. All were in the city on official
business as members of a parliamentary delegation. The police com-
missioner later said he had made the arrests ‘after scrutinizing the mate-
rial placed before me’. This seems not to have been true, for ‘the grounds
for detention’ were collected from Delhi after the detentions by a special
officer sent from Karnataka, and the commissioner made the arrests be-
cause the Chief Secretary of Delhi had telephoned the Chief Secretary
of Karnataka and requested them, mentioning the Prime Minister’s con-
currence.** Additionally, detention orders under MISA were served on
these members of Parliament only on the evening of 26 June, although
they had been arrested in the morning.*° In other words, a political
‘sweep’ was under way. The police in Bangalore made arrests only on
New Delhi’s orders, and with no ‘application of mind’ as required by law.

23 Vajpayee had gone to Bangalore, according to the Deccan Herald, to press the
opposition’s claim that Mrs Gandhi should resign while appealing her election case and,
should she not resign, the opposition would engage in satyagraha to remove the ‘corrupt’
Prime Minister. Issue of 25 June 1975.
This account of the case in Bangalore and elsewhere and in New Delhi is based upon
material in Nayar, The Judgement, pp. 94ff; Seervai, Constitutional Law, vol. 2, and Seervai,
H. M., The Emergency, Future Safeguards and the Habeas Corpus Case, N. M. Tripathi Pvt. Ltd.,
Bombay, 1978, ch. 2; Dhavan, The Supreme Court of India, pp. xv-xvii; Rama Jois, M., Histone
Legal Battle, M. R. Vimala, Bangalore, 1977; (copy presented to the author by Mr Rama
Jois); dispatches in the Statesman, January and February 1976; and interviews. In the
latter, Santosh Hegde has been particularly helpful.
24 Shah Commission Report, ll, p. 33, and Shourie, Arun, Sympioms of
Fascism, Vikas
Publishing House Pvt. Ltd., New Delhi, 1978, p. 216.
25 Rama fois, Historic Legal Baitle, p. 9,
 The Judiciary Under Pressure 335
The Karnataka bar and local attorneys reacted sharply. The bar
passed a resolution calling for withdrawing the Emergency, for the
release of those arrested, and for a boycott of the state’s courts on 4
July. Bangalore lawyers N. Santosh Hegde and M. Rama Jois, joined
by N. M. Ghatate from New Delhi, with the advice of K. S. Hegde,
Santosh’s father, drafted writ petitions for the detenus. These asked
the Karnataka (Bangalore) High Court to quash the detentions on
the ground that the continuance of the emergency of 1971—after
the end of the India-Pakistan war and the Simla Pact in 1972—was
unconstitutional as was the 25 June declaration of internal emergency.
Advani subsequently added another ground for ruling the Emergency
unconstitutional: the President had signed the proclamation before
the cabinet had approved it and thus without the advice of his coun-
cil of ministers.2° The government would blunt this line of attack by
having Parliament enact the Thirty-eighth Amendment, barring judi-
cial review of proclamations of emergency and presidential ordinances.
The High Court accepted the petitions on 11 July and posted the
cases for a preliminary hearing on 14 July—so that parliamentarians
might be free to attend Parliament’s opening session on 21 July.
After hearing the Karnataka government and the detenus, the High
Court expressed the view prima facie that the detentions appeared to
be invalid, admitted the petitions, and posted them for a hearing three
days later. Appreciating the significance of this challenge to the Emer-
gency, the Prime Minister sent Attorney General Niren De to defend
the government.
Now, the Emergency unsheathed its claws and perpetrated what Rama
Jois named “The Great Betrayal’. Just before the hearing was to open on
17 July, the detenus were handed release orders only to be detained a
few minutes later under an order dated the previous day. The authorities
cited for this MISA as amended on 29 June which allowed for detention
without disclosing the grounds to the detenu or the courts. The right to
move the courts for protection of Fundamental Rights Articles 14, 21,
and 22 already had been suspended on 27June. In the hearing, De argued
that the second detention order would necessitate fresh writ petitions.
The court agreed and ordered the jail superintendent to facilitate
conferences between the detenus and their lawyers for this purpose. But
when Rama Jois visited the jail late that afternoon he found that Mishra,
Advani, and Dandavate had been flown to Rohtak Jail in Haryana, not

26 Tbid., p. 10. K. S. Hegde, it will be recalled, was one of the judges superseded in
1973. Rama Jois had been the senior Hegde’s election agent when he ran for Parliament.
336 Working a Democratic Constitution

far from Delhi. Vajpayee was not moved because he was recuperating
from an operation.
New Delhi may have thought it had resolved the matter, but the court
and lawyers in Bangalore thought differently. Because the second
detentions had been made in the city, and the fresh petitions for writs of
habeas corpus submitted there, the High Court ordered the central
government to return the detenus to Bangalore by 26 September fora
hearing scheduled for 29 September. The central government acquiesced
to the High Court's order, and the detenus were transported to Bangalore.
By this time, the cases, despite censorship, had attracted great attention
and a rising young advocate from Madras, K. K. Venugopal, and C. M.
Chagla had joined Santosh Hegde and Rama Jois for the detenus. Chagla
argued that the continuing 1971 emergency was a fraud on the
Constitution; that Mrs Gandhi had misused constitutional powers and
the state’s machinery for perpetuating herself in office; and, consequently,
that the orders the detenus were challenging should be set aside.
Convinced, the High Court on 30 September rejected the Government
of India’s contention that the challenges to the Emergency and the habeas
corpus petitions were not maintainable because of the Thirty-eighth
Amendment and the President’s 27 June order. Therefore, the court
said, the proclamation of Emergency had legally been challenged.?7
Months of legal wrangling over these cases followed while writs of
habeas corpus were filling the dockets of other high courts. Many of
these upheld habeas corpus petitions by rejecting the government's
contention that the President’s 27 June order had suspended this right.
They ruled that the courts’ jurisdiction included knowing the grounds
for detention, and that the cases involved substantial questions of law
that the Supreme Court should decide. One of these cases was Shiv Kant
Shukla v ADM (Additional District Magistrate) Jabalpur in the Madhya
Pradesh High Court. This High Court on 1 September 1975 ruled that
‘Habeas Corpus as an instrument to protect against illegal imprisonment
is written into the Constitution. Its use by the courts cannot, in our
opinion, be constitutionally abridged by the executive or by Parliament
except in the manner provided by Article 368 of the Constitution.’25

27 This account is drawn from Rama Jois, Historic Legal Battle, pp. 34-9 and from
interviews with him and with Santosh Hegde. The Chief Censor in New Delhi ordered °
the Karnataka government’s Department of Information and Publicity to ensure that
news of the hearings on the four writ petitions ‘is not published in any of the newspapers’. |
Text reproduced in ibid., p. 35.
28 Jabalpur Law Journal, 1975, vol. 24, p. 794. On the bench were A. P. Sen and R. K.
Tankha.
 The Judiciary Under Pressure 337

The Government ofIndia appealed these rulings to the Suprerne Court,

where they were ‘clubbed together’ into one case thereafter referred to
as ‘Shiv Kant Shukla’ or the ‘Habeas Corpus case’.*? Hearings began on
15 December.
To remind the reader, the orders and ordinances central to these
habeas corpus cases, other than the Proclamation of Emergency, itself,
were: the presidential order of 27 June 1975 suspending the right to
move the courts for the protections of Article 14 (equality before and
equal protection of the law), Article 21 (no deprivation oflife or liberty
except according to procedure established by law), and Article 22 (which
provided for preventive detention and curbs against its abuses); the
retrospective ordinances of 29 June and 15 July denying detenus
information about the grounds for their detention and excluding the
use of the concepts of ‘natural justice’ and ‘natural or common law’ in
detention cases; and the ordinance of 15 October amending MISA to
declare that the grounds for detention were matters of state and could
be disclosed neither to detenus nor to the courts.
We may digress here briefly to consider related matters, for they
illustrate the flexible and harsh aspects of the Emergency. The Bangalore
High Court allowed L. K. Advani, even while under detention, to go to
Ahmedabad to scrutinize the nomination papers of his opponent in a
parliamentary by-election, which Advani won. The central government
did not prevent this, and it acquiesced also in a court order that permitted
student detenus to sit for their examinations, although it first appealed
the order. M. Rama Jois was detained for thirteen months beginning
December 1975, again apparently for his defence of the detenus, although
his former connections with the Rashtriya Swayam Sevak Sangh were
known. He became a judge of the Bangalore High Court in November
1977 and, later, chief justice of the Punjab and Haryana High Court.
Before Chief Justice Ray could hear the appeals from the ten high
courts, he had to select a bench. Delhi’s perennial crop of rumours had
it that, having failed to overturn Kesavananda, he would select colleagues
likely to hold for the government. Worried about the composition of the
bench, members of the Supreme Court Bar Association, several of whom

29 Swaroop, Preventive Detention, pp. 76-7.

Court survives
‘Up to 1976, it was held that an individual's right to move the Supreme
tional authorit y Durga Das Basu, ‘to enforce
even during such Emergency, wrote constitu
under Article 359 or on
Fundamental Rights other than those included in the Orders
or ultra vires’. Basu, Durga Das,
other grounds (emphasis in original), e.g. mala fides
of India Pvt. Ltd., New Delhi,
Shorter Constitution of India, tenth edn., Prentice Hall
1988,
p. 264.
 338 Working a Democratic Constitution

would represent the detenus before the Court, took steps that became
choice morsels of judicial lore. They arranged to have telegrams sent
to the Chief Justice from around the country urging bench selection
according to seniority. C. K. Daphtary, formerly Attorney General, cailed
on Ray, told him of the rumours, and suggested he follow the seniority
criterion. Annoyed by such temerity, Ray asked if there were precedent
for this. As quick-witted as he was courageous, Daphtary replied that
S. R. Das once had done so—knowing that Ray much admired the Chief
Justice of the late fifties. Although this precedent is elusive, Ray did select
the bench according to seniority: himself and Justices H. R. Khanna,
M. H. Beg, Y. V. Chandrachud, and P. N. Bhagwati. Many advocates and
others were relieved. Surely, they calculated, Justices Khanna, Bhagwati,
and Chandrachud would protect civil liberty. Chief Justice Ray and
Justice Beg were expected to side with the government.”
The hearings that began on 15 December 1975 lasted into February
1976 over thirty-seven working days. They were reported extensively,
although not always fully, in the press, including even the arguments for
the detenus. For the government, Attorney General De, Additional
Solicitor General V. P. Raman, and the advocates general of Kerala and
Maharashtra based their position on MISA, 1971, the 1975 amendments
to it, and, when it became available on 8 January 1976, the President’s
order under Article 359(1) suspending the citizen’s right to move the
courts for the enforcement of the ‘freedoms’ in Article 19. Condensed,
the government's position was that writs of habeas corpus under Article
226 were not maintainable in view of the MISA amendments; that in all
countries in time of war personal liberty was restricted; and that during
the Emergency the executive had overriding power and the rule of law
was suspended. The detenus’ arguments overlooked the Emergency and
were only “political and emotional”’, the government's advocates said.2!
Asked by Justices Khanna and Chandrachud what an individual’s redress
might be if he or she were detained on false information or ifa detention
order were issued in bad faith or without application of mind,
Raman
responded that it could not be known if this were the case because the
courts could not examine the grounds for detention. President
Fakhruddin Ali Ahmed’s 8 January order and the MISA amendments
had totally shut out any judicial scrutiny of detention orders, said Raman.°2

30 Many senior advocates tell this story. The author heard it from
Soli Sorabjee and
Fali Nariman, Justice K. K. Mathew was senior to Khanna and
Beg, but was not selected
because he was due to retire in January 1976,
31 Times ofIndia, 20 February 1976.
32 Statesman, 10 January 1976.
 The Judiciary Under Pressure 339
In his argument De contended that the rule of law existed only within
the four corners of the Constitution; natural rights did not exist outside
it. Justice Khanna intervened at one point. ‘I put it to De that Article
21 pertains not only to liberty but also to life. Supposing some policeman,
for reasons of enmity, not of state, kiils someone, would there be a
remedy? De replied “consistent with my position, My Lord, not so long
as the Emergency lasts”. And he added, “it shocks my conscience, it may
shock yours, but there is no remedy.” ’** De’s vehemence ‘really hurt the
government’s case’, recalled Justice Chandrachud many years later. De’s
arguing ‘by reductio ad absurdum’ may have been purposeful, according
to credible speculation by Justice Khanna and others: an attempt to
lose the case because he abhorred the Emergency’s harshness. If true,
the action took courage, for during this time the Attorney General
feared he and his foreign-born wife might be harassed if the government
and the coterie became aware of his doubts about the Emergency and
its constitutional amendments. His friends noticed his tension and heavy
smoking.*°
Senior advocates Shanti Bhushan, Soli Sorabjee, V. M. Tarkunde, Anil
Divan, Ram Jethmalani, C. K. Daphtary, and others represented the indi-
vidual detenus. Opening the detenus’ defence, Bhushan told the five
judges that the denials of liberty during the Emergency were “appall-
ing”’, and that with the remedy of habeas corpus denied, the protection
of life and liberty of citizens was ‘“dead”’.° Giving unlimited powers to
the executive to take away life and liberty denied the judiciary its ““senti-
nel”’ role, and thus violated one of the basic tenets of the Constitution.
Responding to questions from Justices Khanna and Bhagwati, Bhushan
asserted that with Article 21 suspended detentions were contrary not
only to law but also to the Constitution. Life and liberty were common
law rights that pre-existed British rule in India. Detentions could be ques-
tioned even if the courts were not to look into the grounds of them; the
courts could not be prevented from examining the legality of an issue.
Bhushan then asked, If a district magistrate through a telegram orders
the detention of three hundred persons, could there have been any
application of mind or satisfaction in making the detentions?

33 Statesman, 19, 20, 24 February 1976.

34 Tustice Khanna’s account of the interchange in an interview with the author.
Prime
35 Shanti Bhushan and others in interviews with the author. In Parliament, when
a
Minister of the Janata government, in 1977, Morarji Desai referred to the De-Khann
exchange arid to De’s fears for his own and his family’s life. AR, 27 August-2 September
1977, p. 13904.
36 Statesman, 17 January 1976.
 340 Working a Democratic Constitution

During his presentation, Soli Sorabjee took Bhushan’s argument a

step further, maintaining that the rule of law was a principle embedded
in Indian soil and was part of the basic structure of the Constitution.
The right to liberty also was independent of the Constitution. Sorabjee
argued that the executive could not interfere with an individual’s
liberty unless it could support the legality of its argument in a court of
law.2’ Tarkunde agreed, adding that the onus for proving the legality
of a detention order shifted to the government once a habeas corpus
petition was filed. This precedent had been established in Makhan Singh’s
case, contended Anil Divan, where the high court then involved and
the Supreme Court both had ruled that a detenu could challenge his
detention on the ground that it was illegal in terms of the Defence of
India Act.*® (The Habeas Corpus Bench would hold Makhan Singh not
applicable in this case.) The arguments had reduced Indians to a state
of ‘““almost total rightlessness”’, making them ““slaves”’, said Divan. The
ou

hearings concluded on 25 February and the bench reserved judgement.*?

When the bench gave its decision on 28 April the detenus’ lawyers
found their calculations had gone awry. Two of the judges they hoped
would find for the detenus, Justices Chandrachud and Bhagwati, did
» not. They, Beg, and Chief Justice Ray upheld the Government of India’s
position. Only Khanna dissented. Each judge wrote his own opinion.
Although there was no single majority ruling, the four-judge majority
held that no citizen had standing to move a writ of habeas corpus before
a high court under Article 226 in light of the President’s order of 27
June 1975 or to challenge a detention order as illegal, as factually or
legally mala fide, or as based on extraneous considerations. Section 16A(9)
of MISA (grounds for detention a matter of state and not to be revealed)
was ruled constitutionally valid. And the four judges held that Article
21 was the sole repository of rights to life and personal liberty against the
\_
state.4° In his opinion Justice Beg made one of the most quoted remarks,
and certainly the most fatuous one, of the case. ‘|W]e understand’, he
wrote, ‘that the care and concern bestowed by the state authorities upon

37 Statesman, 4 and 5 February 1976 and Times of India, 5 February 1976.

38 Makhan Singh v Punjab 1964 (4) SCR 797ff. See ch. 2.
y 39 A recitation of the detenus’ arguments appears in G. C. Sachdeva (ed.), The
Unreported Judgements (Supreme Court), vol. 8, published by G. C. Sachdeva, Jodhpur, 1976,
None of the detenus challenged the constitutionality of the proclamation of Emergency
ty= yy nor of placing MISA in the Ninth Schedule.
VW/ 40 The decision as summarized in SCR (1976), Supplement, pp. 172ff. See also 1976
(2) SCC 521ff. In the Supreme Court, the case was listed as A. D. M. Jabalpur v Shiv Kant
Shukla.
 The Judiciary Under Pressure 341
the welfare of detenus who are well-housed, well-fed, and well-treated,
is almost maternal. Even parents have to take appropriate preventive
action against those children who may threaten to burn down the house
they live in.’#!
Justice Khanna’s dissent, delivered in what he felt was a chilly
atmosphere, began, ‘Law of preventive detention, of detention without
trial is an anathema to all those who love personal liberty.’4? After invoking
support from authorities ranging from the Magna Carta through the legal
>
philosopher Sir Edward Coke to the United States Constitution to
precedent in his own Supreme Court, beginning with Gopalan’s Case,
Justice Khanna summarized his conclusions: Article 21 cannot be
considered to be the sole repository of the right to life and personal
liberty; rights created by statutes being not fundamental rights can be
enforced during the period of Emergency despite the presidential order;
Article 226 of the Constitution (empowering high courts to issue writs) is
an integral part of the Constitution, and this power cannot be bypassed
by the presidential order in question; and there is no antithesis between
the power to detain a person under preventive detention and the power
of the court to examine the legality of detentions. Justice Khanna then
added that unanimity in court rulings was desirable, but not for the sake
of formality at the expense of strong conflicting views.
Except among those supporting the Emergency, the court’s decision
evoked sharp criticism. Jayaprakash Narayan—who, ill, had been
released from detention on 12 November 1975—spoke for many when
he said the decision ‘has put out the last flickering candle of individual
freedom. Mrs Gandhi’s dictatorship both in its personalized and
institutionalized forms is now almost complete.’*4 Distaste, or more,
for the judgement came in reactions to Justice Khanna’s dissent. Nehru’s
Attorney General and Indira Gandhi’s lawyer before the Supreme Court
in her Election case, Asoke Sen, called on Khanna to congratulate him.

41 SCR, Supplement, p. 371.

42 Ibid., p. 246. According to Seervai, The Emergency, Future Safeguards, p. viii, the
censor banned Khanna’s dissent from publication in newspapers.
43 This account is drawn from SCR, Supplement, pp. 302-4.
44 Statement issued 15 May 1976. Narayan Papers, Third Installment, Subject File
325, NMML.
S. P. Sathe, referring to the decision, later would write, ‘Many crimes committed
during the Emergency seemed to be [a] natural consequence of total self-negation by
the judiciary’. Sathe, Constitutional Amendments, p. 61. Being somewhat more colourful,
H. M. Seervai said the high courts rose to the occasion, but the ‘Supreme Court sank’.
Seervai, Constitutional Law, vol. 2, p. 2177.
 342 Working a Democratic Constitution

Niren De took Khanna aside at a tea party and said “May I offer my
congratulations for your great judgement”’—thus revealing the effect of
his personal fears and devotion to duty on his constitutional sensibilities.
Justice Chandrachud may have hinted in his opinion that his own
‘“predisposition”’ was not in the direction he ruled. No matter this, he
later regretted his ruling in a public speech. Although we believed we
/ were following the law, he said, ““I regret that I did not have the courage
to lay down my office and tell the people, Well, this is the law.”’4° Even
Justice Beg may have had second thoughts, for in a later case he said the
Habeas Corpus ruling was “perhaps misleading as it gave the impression
that no petition at all would lie under either Article 32 or 226 to assert
the right of persona! liberty because the locus standi of the ciuzen were
suspended.”’4”
Why had the four justices found as they did? Their reasons and motives
seem to have been both collective and individual, substantive and
self-protective. No doubt there were mixtures. They ruled as they did
principally because they believed they were reading the law anght. A
narrow interpretation of the lawas available for protection of fundamental
rights—after the declaration of the Emergency and subsequent
% ordinances and enactments—supports the court’s decision. Fears of chaos
and disintegration in the country should not be discounted as impelling
the judges toward their opinions. Great disagreements arise over great
issues.
But few observers then understood the court’s behaviour—or have
since—as based on legal reasoning. The common view has been that the
four judges either were protecting the institution from an ill-intentioned
government or protecting their personal futures or both. Since 26 June,
Parliament and the Prime Minister had given the judges ample cause to
be both suspicious and anxious. More immediately, during the court’s
hearings and deliberations, the ‘A Fresh Look’ paper, with its suggestion
for a ‘Superior Council of the Judiciary’, was aimed at the court’s jugular
vein. On 30 January 1976, K. P. Unnikrishnan had moved a resolution in

45 Sen’s and De’s reactions from Khanna in an interview with the author.
46 Speech to Federation of Indian Chambers of Commerce and Industry on 22 April
1978. Hindustan Times, 23 April 1978. Chandrachud’s hint at his predisposition may be
J found in Seervai, The Emergency, Future Safeguards and the Habeas Corpus Case, p. 8. Justice
Chandrachud continued to hold to his belief that for Indians there was neither natural
law nor pre-constitutional rights. If the freedoms in the Constitution are suspended,
then they are suspended, he said. In the Habeas Corpus case, ‘I should have gone against
the law.’ Interview with the author, 1994.
47 Baxi, The Indian Supreme Court, p. 111, citing Beg in ‘In re Sham Lal’, 1978 (2) SCC
485.
 The Judiciary Under Pressure 343
the Lok Sabha recommending ‘significant changes’ in the Constitution.
Speaking on it he had said the time had come ‘to consider whether it
can be left to the judiciary to interpret ... basic questions’.*° The day
after the hearings concluded, Congress president D. K. Borooah ap-
pointed a committee ‘to have a look at the Constitution’. The commit-
tee’s tentative proposals—circulated to members of the bar while the
bench was deliberating—concerned ‘the power ofjudicial review, the
writ jurisdiction of the courts and the Parliament’s power to amend the
Constitution’.*9 Justice Chandrachud was not exaggerating when he
described the mood as ‘most unpleasant’ and that the Court was
hard-pressed to maintain its independence.*? ‘[T]he apprehensions
were real and tangible’, in Upendra Baxi’s assessment. Had the Court
acted in certain ways, it ‘might... have imperilled the Court’s existence
... [and] have accelerated the already powerful movement to have a
new Constitution.’*!
In cynics’ eyes, three of the bench saw a relationship between their
rulings and their prospects on the Court. Justices Beg, Chandrachud,
and Bhagwati, aware that in the normal process of seniority they would
become Chief Justice one day, held for the government to assure that
this took place, according to this view. It seems not uncharitable to ask
if the reactions to the perceived threat—by the judges on this bench,
and more widely in the court—were not overdrawn. Individually, the
judges might have feared harassment or arrest for handing down the
‘wrong’ opinion. But, ugly as the Emergency was, New Delhi in 1976 was
not Berlin under Hitler, It is very doubtful if the justices, metaphorically
speaking, would have been hanged separately if they had hung together.
Ruling against the government would have given them, and the Supreme
Court as an institution, stature in public eyes such as to give even Mrs
Gandhi pause. Justice Khanna’s dissent resulted in Mrs Gandhi's
also
superseding him for Chief Justice of India in January 1977. But it
made him a hero, revered still for his courage.”*
As for the detenus, they remained injail.

on 2 April, see Lok Sabha Debates,

48 For the resolution, which Unnikrishnan withdrew
Fifth Series, vol. 56, no. 17, cols 285, 286.
the Constitution of India by the
49 From the committee’s report, Proposed Amendments to
K. Borooah on February 26, 1976, AICC,
Committee Appointed by the Congress President Shri D.
tee report (see chapter 16).
New Delhi, 1976,-pp. 1, 2. This was the Swaran Singh Commit
50 Chandrachud interview with the author.
s, p. 40.
51 Baxi, Indian Supreme Court and Politic
t is his view and that of countless
52 That Khanna’s supersession was due to his dissen
others. See ch. 21.
 344 Working a Democratic Constitution

The Transfer of Judges

The Supreme Court’s decision was the conclusion of the first act of the
Habeas Corpus case. The second act consisted of the transfer of high
court judges who had ruled against the government in those and in other
preventive detention cases. Sixteen judges were transferred from their
‘home’ high courts to others without their consent and, in several in-
stances, over their objections. Within and outside the legal community
the transfers were understood to be punitive.®? Mrs Gandhi first acted
directly against the courts on 12 January and 24 February 1976 when she
refused the continuation of two judges on the Bombay and Delhi high
courts, U. R. Lalit and R. N. Aggarwal, despite favourable recommenda-
tions from, among others, the chief justices of their respective high courts
and her own Law Minister. The Shah Commission, after hearing H. R.
Gokhale’s testimony and learning of Mrs Gandhi's handwritten ‘I do not
approve ...’ on the recommendation for Lalit’s continuance, concluded
that the Prime Minister’s action regarding Lalit amounted to an ‘abuse
of authority and misuse of power’. The commission noted that Aggarwal
had sat on the ‘MISA bench’ that had released Kuldip Nayar from deten-
tion on 13 September 1975—and which had done so on the ground that
the right to personal liberty pre-dated the Constitution.>4
The sixteen judges were transferred during May and June 1976.
Among them were two involved in the Bangalore cases, D. M.
Chandrashekhar and M. Sadanandaswamy, and one of the two Madhya
Pradesh High Court judges in Shiv Kant Shukla, A. P. Sen. The Prime
Minister announced that ‘national integration’ was the purpose of these
transfers.°° She and Sanjay Gandhi had drawn up the lists, he after
talking with several chief ministers. They then were discussed in the
Home and Law ministries and sent to Chief Justice Ray—who ‘had to
sign the transfers or resign’, recalled a senior Law Ministry official
friendly with Mrs Gandhi. Senior officials in the Law Ministry did not
favour the transfers, but there was no higher-level dissent because the

53 At least one individual in the Prime Minister’s house apparently

had it ‘in for’ the
high courts from the beginning. An order was given on 25 June 1975
‘to lock up the high
courts’. Om Mehta reported hearing this to S. S. Ray, who reacted that
this was not possible,
and he would speak to Mrs Gandhi about it. He did, and the order
was rescinded, but not
before Sanjay Gandhi ‘met him ina highly excited and infuriat
ed state of mind and told
him (Ray) quite rudely that he did not know how to rule the
country’. Ray’s testimony
before the Shah Commission, Shah Commission, I, p. 24.
4 Thid., pp. 51-2, and 49-51, respectively.
55 Nariman, Fali S., ‘Removal and Transfer of Judges
’, Indian Express, 10 September
1981.
 The Judiciary Under Pressure 345
issue had already been decided, according to a member of the
Prime
Minister’s staff.°® ‘The transfers were a threat: agree with us or else,’
remembered B. J. Divan, retired chief justice of the Gujarat High Court,
who was, himself, transferred to the Hyderabad court. ‘They could be
made because A. N. Ray was a pliant judge. I know of judges asking not
to sit on a case because they feared transfer.’>” Justice Rangarajan, the
second judge sitting on Kuldip Nayar’s case, and transferred from Delhi
to the Guwahati High Court, agreed.>® The transfer orders ‘created a
sense of fear and panic in the minds of judges’, said Justice N. L. Untwalia
in a Supreme Court opinion rendered after the Emergency. They ‘had
shaken the very foundation of the independence of the judiciary
throughout the country’.°? Law Commission Chairman Gajendragadkar
told Morarji Desai after the Emergency that he believed that the transfers
had ‘led to an indescribable dissatisfaction in the minds of the judiciary,
the lawyers, and the enlightened citizens’, sentiments which ‘I fully
appreciate and share’. And at the time he had argued ‘passionately’
to Mrs Gandhi against the transfers.®!
Transferring high court judges under Article 222 of the Constitution
was not new. Some twenty-five had been transferred with the Chief Justice
of India’s concurrence since 1950. Each judge personally had consented. “
This had evolved into the convention affirmed to Parliament in 1963.°7
The Chief Justices of India at their 1974 annual conference had
recommended that the convention be preserved.
The government apparently had intended to transfer a much larger
number of judges, anywhere from fifty-six to seventy, according to
several accounts. But additional transfers did not take place, and several

5® According to B. N. Tandon, the draft note supporting the transfers, prepared by a

Joint Secretary in the Department ofJustice, did not include then Law Minister Asoke
Sen’s assurance of 1963 to Parliament that high court judges would not be transferred
without their consent (ch. 5). Tandon, who saw the draft note, in an interview with the
author.
57 B. J. Divan in an interview with the author.
58 §_ J. Rangarajan interview with the author. Symptomatic of the atmosphere ofthe
time was Rangarajan’s wife’s request to him that he not take his morning stroll because
he might be ‘accidentally run over’.
59 In Union v S. H. Sheth (1978)—‘Sankalchand’s Case’ after Sheth’s first name—
1978 (1) SCR 4236F, ascited in Seervai, Constitutional Law of India, vol. 2, p. 2265. Seervai
was Sankalchand Sheth’s lawyer. The Untwalia quotation comes from SCR, p. 508.
69 Gajendragadkar letter to Prime Minister Morarji Desai, 1 April 1977. P. B.
Gajendragadkar Papers, Subject File 1, NMML.
6! Letter to Indira Gandhi dated 13 November 1976. Ibid.
62 Lok Sabha Debates, Third Series, vol. 18, no. 55, cols 13006—8. See footnote 56.
 346 Working a Democratic Constitution

explanations for this have been offered. Law Commission Chairman

Gajendragackar believed he deserved some credit. He advised the Prime
Minister against it, and this tirme he may have been heeded.® Justice S.
H. Sheth’s courage in protesting his 27 May 1976 notification of transfer
from the Gujarat High Court—by filing a writ petition against the Union
of India and the Chief Justice of India—is thought to have had
considerable effect, because even with the Censor’s order specifically
forbidding reporting of the transfers, the case attracted attention. H.
M. Seervai informed the press that a second lot of transfers was impending,
and he believed this caused persons around the Prime Minister to advise
her to drop the plan.® Another explanation is that New Delhi was
frightened off by the heart attack ofa popular Bombay High Court judge,
P. M. Mukhi, soon after receiving the order transferring him to the
Calcutta High Court in thirty days. Informed of Mukhi’s illness by his
friends, H. R. Gokhale, himself once a judge on the Bombay Court, had
the transfer order annulled. Mukhi recovered temporarily but died soon
thereafter. Former Bombay High Court Chief Justice, M. C. Chagla,
attributed Mukhi’s death to the transfer order and said he had fallen
victim to ‘the most brutal and inglorious period of our history’.© As will

63 Gajendragadkar to Morarji Desai, letter of 1 April 1977, and Gajendragadkar to

Indira Gandhi, letter dated 13 November 1976. Gajendragadkar Papers, Subject File 1,
NMML.
64 After filing his writ petition in the Gujarat High Court, Justice Sheth complied with
the order transferring him to Hyderabad. In his petition, he argued that under Article 222
transfers may only be in the public interest and cannot be used to punish and to inflict
public and private injury on a judge. Also, transfers without consent violate judicial
independence and the basic structure of the Constitution, he said. The government’s
affidavit to the court maintained only that the President had unfettered power to transfer
J judges. The Gujarat Court heard the case in August 1976, upheld Sheth, filed a wnt ordering
New Delhi not to implement the transfer, and allowed the government to appeal to the
Supreme Court. Gwarat Law Reports as cited in Seervai, Constitutional Law, pp. 2265ff. On
the bench were Justices J. B. Mehta, A. D. Desai, and D. A. Desai.
A five-judge bench of the Supreme Court disposed of the appeal on 26 August 1977
on the ground that the new Janata Party government found nojustification for Sheth’s
transfer and proposed to transfer him back to Ahmedabad. Speaking for the majority,
Justice Y. V. Chandrachud said that Sheth’s transfer had been ordered ‘without effective
consultation with the Chief Justice of India’. The court divided on the constitutionality
of transfers. Justices Chandrachud, Krishna Iyer, and Fazl Ali held that a judge might be
transferred in the public interest without his consent. Bhagwati and Untwalia disagreed.
(Vc
The issue was unresolved and would continue to agitate the judiciary and the executive.
V H.M. Seervai represented Sheth in both courts. AIR 1977 SC 23383, 2347.
65 H. M. Seervai interview with the author.
66 M. GC. Chagla, ‘Memorial Lecture’, delivered at Bombay House 15 December 1977,
 The Judiciary Under Pressure 347

be seen in Part IV, the Janata government would allow these judges to
return to their original high courts.
Because there can be little doubt that the transfers were retribution
for the justices’s rulings, it may fairly be said that the Prime Minister
again had shown her contempt for the judiciary. The legal community
was justified in its revulsion, and it is understandable that a judge would
look over his shoulder if ruling against the government. But that the
prospect of transfer—acknowledging its inconvenience—could intmidate
a judge indicates individual and the judiciary’s collective honour were
cheaply held.©” Mrs Gandhi and her government were not finished with
the judiciary. By the time of the transfers, the Swaran Singh Committee’s
recommendations for reducing the judiciary’s authority had become
public, and the Forty-second Amendment's provisions would go much
further, as will be seen in the next two chapters.

P. M. Mukhi’s brother,
mimeograph. The author is grateful to Senior AdvocateJ.M. Mukhi,
for the text of Chagla’s remarks and other materials.
provides several
67 Judges did stand up to the government. The Bombay High Court
to publish a certain work.
examples. It ruled against the Censor to allow Minoo Masani
Justice Dinshaw P. Madon
Delivering the judgement for himself and Justice M. H. Kania,
Rule 48 of the Defence of India
said that constructive criticism was permissible within
acy and not its “grave-digger”.
Rules and the Censor ‘is appointed the nursemaid of democr
cited in Divan, Anil B. ‘Courts and the
Binod Rao v Masani (1976), Bombay Law Reports, as
Noorani, Public Law in India, p. 225. Also
Emergency under the Indian Constitution’ in
the Court's consideration of this case,
Statesman, 23 February 1976. Coincidental with
ed to the Supreme Court, a friend
when it seemed that Justice Madon might be appoint
sting V. C. Shukla was interested in
told him that Minister of Information and Broadca
author.) The Bombay court also struck
the case. (Justice Madon in an interview with the more
prohibiting the assembly of
down a 1975 order of the city’s police commissioner
the Emergency to be discussed. During the
than five persons and any assembly at all were
attorney that under the order, a Muslim
hearing, Justice V. D. Tulzapurkar told the city’s
(Justice Tulzapurkar interview with the
husband could not host his four wives at lunch.
ioner of Police (1976), Bombay Law Reports,
author.) The case was N. P. Nathwani v Commiss
as cited in Anil Divan, ‘Courts and theEmergency’ in Noorani, Public Law in India.
 Chapter 16

PREPARING FOR CONSTITUTIONAL

CHANGE

The most important constitutional development of the Emergency,

other than its very imposition, was the enactment of the Forty-second
Amendment. Coming in November 1976, the amendment demonstrates
the progression of the Prime Minister and her government from having
near-absolute power without a coherent programme—other than the
protection of her prime ministry—to power expressed through ©
fundamental constitutional change. There is no evidence that any grand
_plan to ‘reform’ the Constitution existed before the Emergency or that
it was proclaimed as a means to facilitate such change. Early utterances
were merely rhetorical flexings. Law Minister H. R. Gokhale told the
Lok Sabha in early August 1975 that it was time to consider fundamental
changes in the constitutional framework. Mrs Gandhi remarked that
‘we have adopted the Anglo-Saxon juridical system, which often equates
liberty with property ... [inadequately providing] for the needs of the
poor and the weak ...’.! With the Emergency in place, however,
half-digested schemes and ideas proliferated, and an influential set of
recommendations emerged.
As the Emergency was the culmination of long-visible trends, so the
thorough attack on democratic institutions in the Forty-second Amend-
ment was the culmination of trends and of predilections allowed to
flourish by the Emergency. The seamless web was stretched nearly to
the breaking point. Democracy had been abolished indefinitely, possi-
bly forever. Unity enforced by central government—and, eventually, by
personal—fiat undermined state government’s beliefin the future
for
national unity preserved through the Constitution’s co-operative
fed-
eralism. Justifying the Emergency with spurious social revolutionary
promises further mocked New Delhi’s pretensions toward this
strand
of the web. The government's appetite seems to have grown with
the
1 Gokhale: Statesman, 8 August 1975. Mrs Gandhi:
Interview with the Saturday Review,
1 August 1975. Prime Minister Gandhi on Emergency in India,
Ministry of External Affairs,
GOI, New Delhi, 1975, p. 22.
 Preparing for Constitutional Change 349
eating—with the easy enacument of self-serving legislation and constitu-
tional amendments in the summer of 1975, with the easy cowing of the
citizenry, and with the new-found power to act unrestricted by scrutiny
and criticism. The several reverses the judiciary dealt the government
no doubt strengthened its appetite—for example, and above all, the
Allahabad High Court decision in Mrs Gandhi’s Election case; the high
courts’ rulings on habeas corpus; the Supreme Court’s striking down
part of the Thirty-ninth Amendment and its unwillingness to overturn
Kesavananda and the basic structure doctrine. There was a cause and
effect relationship between the latter and the Forty-second Amendment.
‘Failure of the review was discussed in the Swaran Singh Committee,’
recalled Vasant Sathe, a committee member, for ‘Kesavananda limited
Parliament's constituent power’.* The atmosphere was affected further
by the pronouncements of prominent citizens. Chairman of the Law
Commission P. B. Gajendragadkar continued to express his dissatisfac-
tion with the basic structure doctrine and his belief in parliamentary Ria
supremacy. Iwo Supreme Court justices, V. R. Krishna Iyer and P. N.
Bhagwati, spoke, in Bhagwati’s words, of a judicial system ill-suited to ‘a
country where the majority lived in villages and was ignorant of its legal
rights’.* However well-intended the two judges’ sentiments were, they
would be used by others less interested in the integrity of the Constitu-
tion and thejudiciary. B. K. Nehru wrote to Mrs Gandhi in the autumn
of 1975 about changing the Constitution so as to combat instability, espe-
cially in the states.
Thus there existed, separate from the power-hungry intentions of
the Prime Minister and her clique, genuine ideological sentiment to
reform the Constitution. This, too, was a culmination: of the trend,
described in Part II, beginning with the Golak Nath decision, gaining
strength from the Bank Nationalization and Princes case rulings, and
resulting in the Twenty-fourth and Twenty-fifth Amendments. To this
was added the Allahabad judgement and dismay that a single judge,
relying on ‘footling points’, could upset a Prime Minister.
The first concrete movement toward what was called constitutional
reform came at the end of the 1975. Beginning here, this chapter will
describe these early stages of the progression toward the Forty-second
Amendment, focusing on the formation, deliberation, and report of the

2 Vasant Sathe in an interview with the author. Margaret Alva and others shared this
view in interviews, citing the vigorous debate over the basic structure within the Congress
Parliamentary Party in the autumn of 1975.
3 Bhagwati in Statesman, 1 December 1975.
350 Working a Democratic Constitution

Swaran Singh Committee. The next chapter will discuss the Forty-second
Amendment itself.

Change Takes Shape

The work of the Swaran Singh Committee was preceded by two formative
events, the Congress Party’s annual session at the end of 1975 and the
appearance of an anonymous document entitled ‘A Fresh Look at Our
Constitution—Some Suggestions’, referred to in the previous chapter
in connection with thejudiciary.
For its plenary that year, the Congress reached back sixty-one years
to name it the Kamagata Maru Session. According to a party publication,
in 1914 ‘Indian patriots settled in various countries of the world returned
to India burning with desire to sacrifice their all for the liberation of the
Motherland’. In September, British troops fired on them near Calcutta,
a large number were killed or wounded, and a few marched to the
Punjab ‘to organise a great rebellion against the foreign government’.4
It seems not to have been this way.°
The movement to amend the Constitution had its formal roots in the
Kamagata Maru session’s resolution on the political situation: ‘If the
misery of the poor and vulnerable sections of our society is to be alleviated,
vast and far-reaching changes have to be effected in our socio-economic
structure .... The Congress ... urges that our Constitution be thoroughly
re-examined in order to ascertain if the time has not come to make
adequate alterations to it so that it may continue as a living document.”®

4 Congress Marches Ahead 13, AICC, New Delhi, October 1976, p. 147.
5 A man named Curdit Singh in the spring of 1914 chartered the Japanese-owned
Kamagata Maru in Hong Kong to carry some 375 would-be immigrants, largely Sikhs,
from there and from Yokohama to Victoria and Vancouver. Canadian authorities allowed
none but a few passengers’ representatives to disembark. There were negotiations,
brickbats were exchanged, food was delivered to the ship, and the Viceroy in Delhi warned
Ottawa that the use of force could cause repercussions in the Punjab. After returning via
Japan, the ship entered the mouth of the Hooghly on 22 September, where the British
intended to disembark the passengers and to send them by train to the Punjab. Several
hundred Sikhs managed to leave the ship, and they were met by police and troops as they
walked the railway line toward Calcutta. Some dozen persons were killed in the firing,
and many passengers ultimately reached the Punjab. Johnston, Hugh, The Voyage of the
Kamagata Maru, the Sikh Challenge to Canada’s Colour Bar, Oxford University Press, Delhi,
1979. Joining the ship in Japan on its return trip, according to Johnston's account, was
Sohon Singh Bhakna, the first president of the Ghadar party, who smuggled aboard two
hundred automatic pistols and considerable ammunition.
6 Congress Marches Ahead 13, p. 10. The resolution was drafted by a committee
appointed by party president Dev Kant Borooah and consisted of himself, Mrs Gandhi, Y.
 Preparing for Constitutional Change 351

Speeches played variations upon this theme. Mrs Gandhi said that
discussion of constitutional changes should include whether or not India
should opt for a different form of democracy. Law Minister Gokhale
advised a Congress front, the National Forum of Lawyers, at a meeting in
Chandigarh, to give serious thought to the obstruction of administration
and of legislation by judicial decisions. He said that the Congress session
would consider taking property out of the Fundamental Rights and
putting the right to work in its place. Commenting on the Congress
meeting, Times of India editor and influential columnist Girilal Jain
wrote on 31 December that there were no ready-made solutions via
constitutional changes. The presidential system might provide greater
stability than the parliamentary system, but the haves wanted stability
more than the have-nots, so adopting this system would not alleviate the
miseries of the poor.
Jain’s mention ofa presidential system was a reference to the anonymous
document the ‘A Fresh Look’ paper. This radical attack on the basic
structure would have changed the country’s system of government—
which, it said, ‘has not come up to the expectation of the common man’—
from the Westminster Model to a hybrid presidential system, American
and French, to achieve ‘the unobstructed working of the executive’. All
in all, it was redolent of authoritarianism.
The Prime Minister’s cousin, B. K. Nehru, was the unwitting progeni-
tor of the writing of the paper (which he thought mostly wrong-headed
and badly written). He had written a letter to Mrs Gandhi advocating
change to a presidential system. This was passed to Congress President
Dev Kant Borooah, who gave it to Rajni Patel, who encouraged A. R.
Antulay to write the paper.’

B. Chavan, C. Subramaniam, S. S. Ray, and P. V. Narasimha Rao. H. R. Gokhale had

constituted an informal group within the Law Ministry in November 1975, headed by its
legislative secretary, K. K. Sundaram, to consider changes in the Constitution. Little is
known of its doings. Statesman, 28 November 1975.
7 B. K. Nehru’s letter and its passing to Borooah, according to P. N. Dhar in an
interview with
interview wih the author. B. K. Nehru’s opinion of Antulay’s paper, in an
A. R. Antulay’s own account, in an interview
the author and repeated in his memoirs.
it would be useful to
with the author, is similar: Mrs Gandhi mentioned to Borooah that
; Borooah
have a paper discussing the ideas for constitutional change that were circulating
mentioned this to Rajni Patel, who spoke with Antulay.
y: Parliamentary or
Antulay later acknowledged authorship in Antulay, A. R., Democrac
and Public Relations, Government of
Presidential, Directorate General of Information
Minister of the state.
Maharashtra, Bombay, 1981, p.*132, published when he was Chief
high court judges is
Antulay’s account to the author that he sent the paper to several
the Emergency. And he discussed
borne out by the public comments of two of them after
352 Working a Democratic Constitution

Completed in the summer of 1975, the paper reached Mrs Gandhi,

who gave a copy to P. N. Dhar with instructions that four persons, only,
should see it. Nevertheless, Borooah, deliberately and without the Prime
Minister’s knowledge, leaked the paper as a trial balloon. The fears
and the criticism that the paper aroused indicated public sentiment as
clearly as the paper’s substance indicated the anti-democratic mindset
of many around Mrs Gandhi.
A copy came into the hands of an advocate in Gujarat, C. T. Daru, a
senior personality in Citizens for Democracy, a group founded by
Jayaprakash Narayan. Daru circulated the paper on 9 December 1975
under a covering text that he entitled ‘Appeal for Public Debate’ and
in which he summarized his impressions of the proposal. He wrote that
it placed ‘vast concentration of power’ in the hands of the President;
would result in ‘virtual subordination’ of the judiciary; would end the
freedoms of Article 19 by deleting the word ‘reasonable’ before the quali-
fications on the freedoms enumerated; would ‘end federalism’; and
would legalize ‘administrative absolutism’ by deleting Articles 32 and
226, thus ending judicial review of administrative or legislative action.?
Addressing himself to the presidential system, as described in ‘A Fresh
Look’, but without naming it, former Constituent Assembly member
K. Santhanam said that the scheme would weaken federalism, not
strengthen it. He recommended that any constitutional changes first
be considered by a high-level non-party committee.!°
To rid herself of any association with the paper and speculation about
changing to a presidential system, Mrs Gandhi had H. R. Gokhale
announce that the Prime Minister has said the documentis not authentic
and ‘was an inspired document circulated by mischievous people to create
a scare’.!!

his paper with several colleagues in Delhi, including Vasant Sathe, who also favoured
switching to the presidential system. Vasant Sathe interview with the author.
8 P. N. Dhar interview with the author. Both drafting and circulating were so ‘hush-
hush that the relevant notes were handwritten, with the authors taking care against
premature leakage’. Legal affairs correspondent K. K. Katyal, Hindu, 29 December 1980.
9 Jayaprakash Narayan Papers, Third Installment, File 320, NMML. The New Delhi
newspaper, Patriot, reported on 24 November that a paper in circulation among legal
experts advocated a presidential system, likely the paper to which Daru reacted,
Citizens for Democracy also convened a ‘Save the Constitution’ conventi
on in
Ahmedabad on 1 January 1976 to discuss the paper. As a reward for giving the
document
currency and denouncing it, Daru ‘was promptly arrested and detained’
, Baxi, Supreme
Court and Politics, p. 35.
10 Indian Express, 30 December 1975.
I Ty mid-February 1976. Mirchandani, G. G. (ed.), India Backgrounders,
published
 Preparing for Constitutional Change 353
The debate over the parliamentary versus a presidential system was
not new. Although the Constituent Assembly had rejected a presidential
system, the idea revived as politicians and intellectuals faced governing
the county without Jawaharlal Nehru. A minister in the Tamil Nadu
government who would later be President of India, R. Venkataraman,
sent a draft resolution to the AICC in 1965 recommending constituting
a committee to examine an executive ‘directly elected by the people for
a fixed term of years’ to help combat ‘dissidentism’ and ‘groupism’ in
the executive and legislative branches.!? In 1967, the India International
Centre convened a colloquium on the subject with contributions from
Max Beloff, among others, and during the next few yearsJ.R. D. Tata, G.
D. Birla, Justice K. S. Hegde, and former Chief Justice of India B. P. Sinha
advocated a fixed executive where, as Sinha put it, the ‘head is not
dependent on the vagaries of the legislators’.!* Jayaprakash Narayan
opposed a presidential system because ‘temptation would be too great
fora President, if he were strong, to usurp people’s rights.’!4 The socialist
and communist parties consistently opposed a presidential system. The
debate over the comparative merits of the two systems, as will be seen,
continues to this day.

The Swaran Singh Committee

Embarrassed by the fiasco of leaking ‘A Fresh Look’, emboldened by the
tone at the Kamagata Maru Session, and with much talk of constitutional
change in the air, Congress President Borooah on 26 February 1976
appointed a committee ‘to study the question of amendment of the
Constitution in the light of... experience’. Commonly referred to as the
Swaran Singh Committee after its chairman, the committee had two other,
unannounced purposes: to manage the proliferating suggestions for
amendment and to control the process for considering them, and, while
doing this, to serve the Prime Minister’s interests. These were that her
position not be detrimentally affected and that her official decisions would

and printed by G. G. Mirchandani, New Delhi, 12 April 1976, p. 16. The ‘backgrounders’
frequently contain information unavailable elsewhere.
!2 Text of the resolution and Venkataraman’s letter covering it appear in Parliamentary
versus Presidential System of Government, India International Centre, New Delhi, 1966, pp.
60-2. The proposal went unpursued at Prime Minister Shastri’s request.
13 Noorani, The Presidential System, p. 14.
4 During an 8 April 1968 speech in London, AR, 27 May-2 June 1968, p. 8340. At
this time, Mrs Gandhi spoke against it, saying, ‘The presidential system cannot by itself
confer more maturity on the people.’ Ibid.
354 Working a Democratic Constitution
the
not be overturned by Parliament or the President nor opposed by
l of
judiciary, according to S. L. Shakdher, at the time Secretary Genera
ly:
the Lok Sabha.!> P. N. Dhar analysed Mrs Gandhi’s intentions similar
she did not want the Allahabad judgement to affect her; she wished the
r to be
President, the Vice-President, the Prime Minister, and the Speake
immune from prosecution; and she wanted the executive to be able to
herself,
function without judicial interference.!© The Prime Minister,
declared her aims to be strengthening democracy and achieving true
justice and equality for the common people. ‘Our basic fight’, she said,
‘is against entrenched privilege of a few ..”.!7 But much about the
committee lies in shadow, particularly why did a report prepared in these
carefully managed circumstances so ill-suit the desires of the government
that it went far beyond its recommendations when drafting the
Forty-second Amendment. We shall look at the committee’s composition,
at its recommendations, and then at the consequent puzzles.!®
Mrs Gandhi approved the committee’s membership from the
suggestions proferred by Borooah, S. S. Ray, and Rajni Patel. The
Congress Working Committee gave the list its imprimatur, and it was
presented as a party committee even though ten of its twelve members
were officials in the central ministry or Congress members of Parliament.
The exceptions were Ray, who was chief minister of West Bengal, where
he harshly put down the Naxalite Maoist rebellion, and Rajni Patel,
President of the Bombay Provincial Congress Committee.!? Seven of
the members were lawyers and D. P. Singh and S. S. Ray had been
members of London’s Middle Temple. All were Hindus with the
exception of A. R. Antulay and Seyid Muhammad who were Muslim,
C. M. Stephen, a Christian, and Swaran Singh, a Sikh. From different
parts of the country, the members provided the degree of regional

'5 §. L. Shakdher in an interview with the author.

16 PN. Dhar in an interview with the author.
17 Speaking at the AICC session during its consideration of a Swaran Singh Committee
draft report. Congress Marches Ahead 13, p. 54.
The committee report is named Proposed Amendments to the Constitution of India by the
Committee Appointed by Congress President D. K. Borooah on February 26, 1976 (hereafter called
the Swaran Singh Report, AICC. New Delhi, 14 August 1976.
18 The committee consisted of Sardar Swaran Singh, Chairman; A. R. Antulay,
Member-Secretary, Members: S. S. Ray, Rajni Patel, H. R. Gokhale, V. A. Seyid Muhammad,
V. N. Gadgil, C. M. Stephen, D. P. Singh, D. C. Goswamy, V. P. Sathe, and B. N. Banerjee.
19 The characterizations of these individuals that follow are derived from interviews
with several of them and with K. C. Pant, Usha Bhagat, Bakhul Patel, Govind Talwalkar,
D. K. Borooah, Girish Mathur, Chandrajit Yadav, Sheila Dikshit, Margaret Alva, S. L.
Shakdher, B. N. Tandon, and N. K. Seshan, among others.
 Preparing for Constitutional Change 355

balance Borcoah and the Prime Minister desired. Borooah, Patel, D. P.

Singh, Goswami—were considered ‘progressives’, that is, ex-communists
of the Congress Forum variety or still close to the Communist Party of
India. (Borooah, although not a committee member, is treated as one
here because of his close relations with it.) Gadgil, Gokhale, and Stephen
were Congress socialists. Sathe and Antulay were considered mavericks
of the centre-right. S. S. Ray, particularly, was the protector of Mrs
Gandhi's political interests. All the members qualified as ‘leftist’, in the
view of Margarat Alva, a member of Borooah’s staff who sometimes
attended Swaran Singh Committee meetings for him. Their common
features were ‘communism, leftism, pro-Soviet, pro-Marx’, said I. K.
Gujral, a Minister of State at the time and once a Communist.2° Yet, a
senior journalist who knew all the members thought them ‘an
ideologically mixed group otherwise unlikely to sit in the same room
for an hour’. What most united them was loyalty to Mrs Gandhi, which
caused P. N. Haksar to describe the committee as ‘packed’.?!
Sardar Swaran Singh varied from the mould. Tall, gentlemanly and
dignified, he had a reputation for moderation and as a good administrator,
as someone who would reason with the Prime Minister, but oppose her
only to a point. He accepted Borooah’s invitation to chair the committee
only after some thought and played little part in selecting its members,
although he was present in the Working Committee meeting when its
composition was discussed. Presiding over this congeries, Swaran Singh
was to be ‘a restraining influence’, giving it ‘the correct direction’, which
his ‘stature’ fitted him to do, said Margaret Alva and V. N. Gadgil.22 ‘We
thought him old-fashioned; he would not go in for anything unacceptably
radical,’ said D. K. Borooah.??
The committee set to work immediately upon its formation, the Prime
Minister desiring results in a few months. After limited consultations with
associations and individuals deemed friendly to the government, it
submitted ‘tentative proposals’ to Borooah on 3 April. These Borooah
circulated among members of the Working Committee and leaders of

20 |. K. Gujral in an interview with the author—including his previous membership

in the Communist party.
21 PN. Haksar in an interview with the author.
22 Margaret Alva and V. N. Gadgil in interviews with the author.
23 Borooah interview with the author. Swaran Singh told Inder Malhotra that nothing
radical would come from a committee he chaired. Malhotra interview with the author.
Singh had voiced mild criticism of the imposition of the Emergency, to the Prime Minister's
displeasure, and he was forced out of his position as Defence Minister in December 1975
after disagreements with Sanjay Gandhi over defence and Punjab affairs.
356 Working a Democratic Constitution

Congress state governments. Consultations continued with selected

members of the Parliamentary Party, several high court judges, and bar
associations while the committee digested reactions to its tentative
proposals. Slightly altered, the proposals along with a ‘Resolution on
Amendment’ went to the AICC, which considered them on 28-9 May
1976.24 The government touted this process and that leading to the
Forty-second Amendment, in general, as open. In reality, as H. M. Patel
later would say in the Lok Sabha, it was ‘a convenient monologue’.?°
This approach was not to the liking of Law Commission Chairman
Gajendragadkar. As early as August 1975, he had written to the Prime
Minister that, although amendments to the Constitution were necessary
to expedite the social-economic revolution, that ‘ad hocism is undesirable
and adoption of extremist doctrinaire positions is irrelevant and
inadvisable’. He advised her to appoint a high-powered committee ‘wholly
unofficial if you like’ to research and discuss the problem in depth, a
dedicated and comprehensive effort.2°

THE COMMITTEE’S RECOMMENDATIONS

The committee’s recommendations were changed little by the AICC
from the form in which they were submitted and later published as
the so-called Swaran Singh Report. Hence references hereafter will
be to the original report, to the political views of committee mem-
bers, and to the internal deliberations that produced its recommen-
dations. After announcing that the Constitution ‘has functioned with-
out any serious impediment’, the committee report turned to the
subject it had ‘hotly discussed’, changing to a presidential system.
The report declared the parliamentary system ‘best suited’ for the
country because it ‘ensures greater responsiveness to the voice of the

24 The text of the resolution appears in Congress Marches Ahead 13, pp. 5ff, 94f€. This
publication also contains the proposals for amendment, the earlier tentative proposals,
the relevant speeches, and much else.
At this meeting, the Congress Working Committee also expelled Chandra Shekhar
from the committee and from the Congress Party for ten years for ‘the gross indiscipline
.. with which he publicly denigrated the Congress ... and carried on a propaganda against
the decisions of the Congress ...". Zaidi, The Encyclopaedia of the Indian National Congress,
vol. 24, p. 146.
25 Lok Sabha Debates, Fifth Series, vol. 64, no. 16, col. 18.
26P B. Gajendragadkar-Indira Gandhi letter dated 13 August 1975. Gajendragadkar
Papers, NMML. Discerning that his advice was being ignored, Gajendragadkar wrote to
the Prime Minister on 6 and 27 March 1976, met with her on 9 March, and later met,
with Mrs Gandhi's blessing, Borooah and D. P. Singh to hammer at the need for the
proper ‘modality’ of approaching amending the Constitution. Ibid.
 Preparing for Constitutional Change 357

people’.*’ Antulay and Vasant Sathe, perhaps joined by Stephen, had

argued vigorously to the contrary and they had recently heard respect-
able outside support for the idea. In January 1976 N. A. Palkhivala had
written that a presidential system providing for ‘a fair balance of power
between the executive, the legislature and the judiciary’ would be pref-
erable ‘to the present system’.*° The previous summer, B. K. Nehru, High
Commissioner in London, while visiting Delhi had advocated change to
a presidential system to Mrs Gandhi personally, following up an earlier
letter to her from London.29 The Prime Minister publicly rejected the
idea during the visit of French Prime Minister Chirac in February 1976.
‘{P] ower should not be concentrated but be with the people,’ she said.*”
Within the Swaran Singh Committee, most opposed changing the sys-
tem, and Gokhale, Seyid Muhammad, and S. S. Ray did so actively. Swaran
Singh was happy to let the opposition win. He told veteran journalist
Kuldip Nayar that he had ‘stalled’ the move toward a presidential system
(it re-emerged six months later and again in the eighties), and he told
the author that older Congressmen had ‘thanked me for saving the
country’.
As support for a presidential system did not necessarily indicate
authoritarian tendencies in an individual, so proclaimed loyalty to the
parliamentary system did not necessarily denote strong democratic
sensibilities. Committee member Rajni Patel provides an excellent
example. For him, Mrs Gandhi's ‘stern measures’ had saved the country’s
‘weak democratic system’ from being ‘undermined by an organized
minority’. But the time had come for a ‘Prime Minister elected by the
popular vote ... enabling him or her to exercise authority without the

27 Swaran Singh Report, p. 3. ‘Hotly discussed’: Swaran Singh interview with the author.
28 N. A. Palkhivala, ‘Should We Alter Our Constitution?’, The Illustrated Weekly of
India, 4 January 1976.
29 B. K. Nehru interview with the author. The general impression at this time, Nehru
recalled, was that she wanted a presidential system to perpetuate her own rule. ‘But when
I discussed it with her she said, “No, absolutely not. I don’t want it.” If she had wanted it, we'd
have got it,’ Nehru said. Nevertheless, Mrs Gandhi allowed him to discuss the changeover
with others and to circulate a paper if he made sure “they knew I am against it.”’
PN. Dhar discussed this with B. K. Nehru and believes that Mrs Gandhi ‘all along’ was
against changing to a presidential system. Interview with author. Nehru has said that Dhar
was ‘totally enthusiastic about my proposal’. Nehru, B. K., Nice Guys Finish Second, p. 558.
30 To the French news agency AFP. See ‘India Debates Constitutional Changes’, /ndia
Backgrounders, 12 April 1976, p. 15. Because her admiration for France and De Gaulle was
well known, her choice ofthis moment was thought especially significant. She later rejected
in
a presidential system on federal grounds, saying that it might lead to ‘similar systems’
the Centre’. ‘Latest
all the states, resulting in ‘confrontation with other states or with
Constitutional Changes’, ibid., 6 Septembe r 1976, p. 227.
 358 Working a Democratic Constitution
vexation of pulls and pressures’ afflicting an indirecuy elected prime
minister.°! This ‘strengthened’ parliamentary system seems a first cousin
to a presidential system, which may be why many believed Patel favoured
it. Patel apparently had an ally in Borooah, deducing from Borooah’s
views that Indians did not understand parliamentary government and
that government must be made effective. At the time, Borooah was said
to admire the strong government in the Soviet Union.*? Borooah, Patel,
D. P. Singh, and Goswami were eager to explore amendments to transform
seciety radically, thought the cheery senior advocate and progressive,
R. K. Garg. ‘Destroying democratic institutions did not matter, because
India has no democratic culture.’*? Such sentiments typically were cloaked
in the euphemisms of ‘strong government’ or a ‘strong centre’—
reasonable aims at first inspection. They fit well with the Prime Minister’s
desire for ‘a stable parliamentary system’, as Vasant Sathe put it, and
“with S. L. Shakdher’s recoilection that she wanted to strengthen the
authority of her office so that its actions would be beyond the reach of
Parliament, the President, and the judiciary.*4 In the analysis of Bombay

31 From a paper Patel read to a seminar on ‘Disciplined Democracy’ organized by

the Bombay Provincial Congress Committee in February 1976 and inaugurated by Prime
Minister Gandhi. Socialisi India, 27 March 1976, and reprinted in Zins, Max Jean, Strains
on Indian Democracy, ABC Publishing House, New Delhi, 1988, p. 177ff. For the text of the
Prime Minister’s speech, see Indira Gandhi, Selected Speeches, vol. 3, p. 254.
Patel during this period was a favourite of the Prime Minister. A former communist,
‘he mulcted the rich of Bombay in the name of Indira Gandhi and the Congress Party’.
Singh, Khushwant, Women and Men in My Life, UBS Publishers and Distributors Ltd., New
Delhi, 1995, p. 164.
32 Borooah’s admiration for the Soviet Constitution from V. N. Gadgil, in an interview
with the author. Gadgil also described Patel as envisaging a constitution that would make
the Congress virtually the only party, ‘sort of along communist lines’. Borooah declared
to the author in an interview in 1994 that he opposed a presidential system. ‘If you get a
bad one, you're stuck,’ he said.
33 RK. Garg interview with the author.
34 ‘Reforms’ of parliamentary procedures had already been made in the Lok Sabha
during the first day of the session after the Emergency was declared. In the guise of speeding
up the conduct of business (admittedly most legislatures could be more efficient), the Lok
Sabha by a vote of 301 to 76 adopted a resolution that suspended its rules, prohibited the
questioning of ministers, calling attention notices, and any business except government
business. Former members of Parliament and journalists were denied entry to Parliament
House. Statesman, 20 July 1975, A Congress Parliamentary Party subcommittee, chaired by
C. M. Stephen, recommended reducing parliamentary sittings by one-third; transferring
the second reading of bills (when substantive changes might be made) to commitiees;
restricting the right to amend a bill to its mover; and limiting adjournment motions and
short-notice discussions. Hindustan Times, 27 December 1975, and Zins, Strains on Indian
Democracy, pp. 133-4. Lite came of the Stephen committee's ideas ‘because Parliament
 Preparing for Constitutional Change 359
editor Govind Talwalkar, ‘The ex-communists and the communists
thought the Emergency wouid be their coup, but it turned out to be a
right-wing coup.’*°
One of the prime minister’s ‘vexations’ was judicial review, and the
time had come ina disciplined democracy, Patel said, ‘to restrict or do
away with ... [it] as is the case in France and England’.*6 Committee
members to a considerable extent agreed with this. Parliament was ‘the
most authentic and effective instrument ... [of] the sovereign wiil of
the people’, said the report,>” which recommended that Article 368 be
amended so that constitutional amendments ‘shall not be called in
question in any court on any ground’. Gokhale and Gadgil, in an echo
of the ‘A Fresh Look’ paper, had advocated some sort of constitutional
council for judicial review. S. S. Ray disliked the basic structure because,
he felt, no one knew what it meant. Stephen thought the doctrine ‘very
dangerous.’*> The constitutional validity of legislation might be
challenged, the committee said, but central laws should be open to
challenge only in the Supreme Court. Constitutional cases should be
heard by no fewer than seven judges in the Supreme Court and five in
high courts; decisions should be by two-thirds majority. Swaran Singh,
among others, favoured this, disapprovingly pointing out in a speech
that Golak Nath had been decided by only one vote.*? He went further

was functioning efficiently’, according to MP Chandrajit Yadav, in an interview with the

author. The Lok Sabha twice would extend its life by a year (on 4 February 1976 and 5
November 1976—until March 1978), which was constitutional under Article 83. Further
Lok Sabha ‘reforms’ would come in the Forty-second Amendment.
35 Talwalkar interview with the author.
36 From the ‘Disciplined Democracy’ seminar paper, footnote 30.
37 Swaran Singh Report, p. 3.
38 In a speech to the Indian Council of World Affairs. Reprinted in Constitutional
Reforms, Division of Audio-Visual Pubiicity, GOI, New Delhi, October 1976, p. 15.
The committee’s emphasis on parliamentary supremacy continued to have support V
from Gajendragadkar. In the Motilal Nehru Memorial Lecture in May 1976, he reiterated
his view that Parliament’s powers were plenary and no doctrine of basic features could
limit its power under Article 368. Kagzi, The June Emergency, p. 29.
39 Even Motilal C. Setalvad, perhaps the country’s most distinguished Attorney
General, said of Golak Nath that ‘a decision involving such far-reaching consequences
should not have been arrived at by so slender a majority’. Setalvad, My Life, Law and Other SA
Things, p. 584.
The committee was also said to be reacting to the invalidation of Mrs Gandhi's election
by a one-man bench in Allahabad. Of course, the possibility of afour-to-three split in a
seven-judge bench did not eliminate one-vote majorities. Some argued that the two-thirds
idea, because of the fraction of a vote involved, effectively placed decisions in the hands
of the three-judge minority: a two thirds majority in a seven-judge bench would be five
votes to two (to avoid a fraction ofa vote) thus allowing three judges to defeat four.
360 Working a Democratic Constitution

and expressed an opinion with which no prudent citizen of any country

would agree: ‘It should be reasonably presumed that normally no
legislature will over-step the limits laid down for it in the Constitution.’?°
Focusing on the high courts, where Mrs Gandhi's transfer of judges
had begun, the committee recommended leaving intact their authority
to issue writs for protection ofcitizens’ fundamental rights (Article 226),
but removing their authority to issue prerogative writs for ‘any other
purpose’.#! Antulay, Borooah, Patel, and Ray were said to favour the
elimination of the entire article. Prominent lawyers outside the committee
fought against this. R. K. Garg advised Swaran Singh to tell the Prime
Minister that its elimination would deprive her of the courts’ protection,”
and Swaran Singh has been credited with the article’s retenuon. Member
of the Law Commission P. K. Tripathi told the committee that the high
courts should retain authority to issue writs for any other purpose as a
means to keep the bureaucracy ‘within the limits of law’.#3 Mrs Gandhi,
in a March 1976 address to the governors at their annual conference,
had suggested they write the President their ideas about how the high
courts’ writ powers had come in the way of progressive steps.*4
The committee’s most radical move against the courts came in its
recommendation that Article 31C be expanded so that legislation to
implement any of the Directive Principles of State Policy could not be
questioned in court as infringing the Fundamental Rights. The
committee’s ‘progressives’ had brought Moscow to New Delhi. The Dean
of the Law Faculty at Delhi University, Upendra Baxi, thought that
making the Rights subservient to the Principles was ‘as it should be in a
poor society with massive maldistribution of property, income and
wealth’.4° The committee isolated the courts further through its proposal

40 In the Hanumanthaiya Endowment Lecture, 21 August 1976. It was published in

abridged form, in Constitutional Amendment, by the Congress Party in October 1976.
41 The committee’s report recalled that the Congress Party's constitutional review
committee chaired by Nehru in 1954 had recommended this, but it conveniently neglected
to mention that the cabinet then had rejected the idea. See ch. 4.
42 Garg interview with the author. Antulay’s support for the article’s deletion may be
found in annexure 5 to his ‘A Fresh Look’ paper. Noorani, The Presidential System, p. 120.
In V. N. Gadgil’s recollection, no one intended to delete the whole article, only to
restrict use of the writs ‘because they had become cheap’. Interview with the author.
43 Tripathi’s mid-May 1976 submission to the Swaran Singh Committee was published
in 1976 (2) SCC Journal Section 29-44.
44 Kagzi, The June Emergency, pp. 56, 72.
45 A commentary on the commitiee’s report, Baxi’s paper was published in 1976 (2)
SCC Journal Section 17-28. Baxi also praised the committee’s ‘solicitude for judicial
review, fundamental rights and for the Supreme Court’, Ibid.
 Preparing for Constitutional Change 361

that all matters concerning ‘the revenue’—e.g., land reform, ceiling on

urban property, and procuring and distributing essential commodities—
should go before tribunals, not to the courts. Compared to these
provisions, placing ‘socialism’ in the Preamble was a mere gesture.*©
Setting up tribunals did have a more praiseworthy side, reduction of
the large number of cases in arrears—an ‘unexceptionable’ move, in
Palkhivala’s view. It was the extensiveness of the subject matter over
which tribunals would havejurisdiction, the exclusion of the Supreme
and high courts’ writ jurisdiction over those subjects, and removal of
the tribunals from high court supervision that aroused anxieties.
The committee directly addressed neither the right to property nor
freedom of expression in its report. Although Antulay and Borooah
pressed for removing property from the Rights, Swaran Singh, Ray,
Sathe, Gokhale, and Rajni Patel opposed this on the tactical ground
that the move would be too radical for many in the Congress Party. In
another version of this dispute, nearly all the members favoured removal,
but the Prime Minister vetoed it on the ground that public opinion was
not ready. ‘Prudence kept property in the Rights,’ recalled Borooah.*/
Antulay and Stephen led strong sentiment in the committee for
curbing freedom of expression, particularly press freedom, already
outlawed by the Emergency. Eventually, in a strategy approved by Mrs
Gandhi, it was decided that curbs on the press would be effected better
through legislation than by constitutional amendment.*8 But Antulay’s

CPI parliamentarian Bhupesh Gupta wrote that the ‘platonic love for the Directive
Principles’ must give way to something mcre meaningful, and that the Kesavananda ruling
‘must go’. Article in New Age, republished in Gupta, Bhupesh, Some Comments on
Constitutional Changes, CPI, New Delhi, August 1976, pp. 44ff. A CPI meeting in Trivandrum
suggested that judges should be impeached ‘on the ground of disregard on their part of
the Directive Principles’. Proposals of the National Council for Amendments to the Constitution
of India, Communist Party of India, New Delhi, 1976.
46 The Preamble would read that India was a ‘Sovereign Democratic Secular Socialist
Republic’. Antulay favoured inserting ‘socialist’, but gives Borooah credit for it, while 4
claiming that inserting ‘secular’ was his idea. A. K. Antulay in an interview with the author.
This is consistent with Antulay’s concern, as a Muslim, for minority rights.
47 Borooah in an interview with the author. Several members advocated replacing
the right to property with the right to work. Gokhale, while on the committee, told an
Ahmedabad audience that the right to property might by amendment be so defined that
it could not serve as an instrument of exploitation of the many by the few.
The CPI called leaving property in the Rights a ‘glaring omission’, and derided it as
‘selfcontradictory’ in light of the proposal to add ‘socialist’ to the Constitution's Preamble.
‘Note Adopted by the Central Committee of the CPI’, Madras, 21 June 1976, as cited in
Gupta, Some Comments, pp. 44-59.
48 5. §. Ray interview with the author. Mrs Gandhi, said Ray, was moved in part by the
desire to avoid international criticism.
362 Working a Democratic Constitution

zeal for curbing liberty had enough support from his fellows, for the
committee to recommend that Parliament be empowered to legislate
against ‘the misuse or abuse’ of the freedoms in Article 19 “by individuals,
groups or associations’.*9 This vine would bear bitter fruit in the Forty-
second Amendment.
The committee made several other significant recommendations to
the AiCC. One was that a state of emergency could be declared, and
lifted, in only a part of India. In another, it said that the central govern-
ment should have the power to deploy police and similar forces ‘under
its own superintendence and control’ when helping a state government
preserve order. This was something state chief ministers had protested
during the committee’s consultations with them, preferring the existing
arrangement in which federal forces came under state control once they
entered the state (see chapter 29). Otherwise, centre-state relations were
all but ignored in the committee’s report, although several comrnittee
members believed the country needed ‘a dose of federalism’. The com-
mittee ‘played the music to her ears’ of how much they needed Mrs
Gandhi and astrong centre to protect the unity and integrity of the coun-
try, V. N. Gadgil recalled.
Turning to election issues, the committee proposed that a separate,
nine-member body—with its members appointed equally from the Lok
Sabha, the Rajya Sabha, and by the President—should adjudicate
questions of disqualification of members of Parliament and the
President and Vice-President, instead of leaving disputes to be resolved
by a body established by Parliament, as the Thirty-ninth Amendment
had provided in new Articles 329A and 71. All members of the
committee, recalled Swaran Singh, were not in favour of the ‘grant of
immunity’ given to the Prime Minister by Article 329A because it would
apply to future prime ministers. ‘But the majority did, and, as chairman,
I had to express the will of the majority, although, looking back,
immunity for the Prime Minister should not be there,’ Singh said.°?

49 Swaran Singh Report, p. 14.

Antulay in “A Fresh Look’ had suggested that the word ‘reasonable’, as qualifying
restrictions that might be placed on the freedoms, should be deleted from the Constitution
and that no law restricting the freedoms could be questioned in the courts. Noorani,
Presidential System, pp. 118.
5° Swaran Singh in an interview with the author, Readers will remember that the
Thirty-ninth Amendment substituted a new Article 71 for the old and added new Article
329A. The former applied to the President and Vice-President and the latter to the Prime
Minister and Speaker, as members of Parliament.
In two other recommendations, the committee reacted directly to Mrs Gandhi's
Election case and also picked up a suggestion from the Parliamentary Party's ‘reform’
 Preparing for Constitutional Change 363
At the All India Congress Committee meeting on 29 May 1976 Swaran
Singh moved the lengthy ‘Resolution on Amendment’, laden with
social
revolutionary language, and spoke on it and the committee’s
recommendations. He devoted particular attention to two items: the
desirablility of the central government being able to move forces under
its own control into states to preserve law and order, while assuring state
governments that law and order remained their ‘sole responsibility’; and
the desirability of having larger judicial benches and two-thirds
majorities to rule on constitutional questions. Faced with the crucial
situation the country is in, he said, ‘niceties of law are very pleasing to
ali the lawyers ... [but] at times weakness would be there’.>! Speaking
that afternoon, first in Hindi and then in English as had Singh, the
Prime Minister said that ‘it was not the Constitution which was coming
in the way, it was the interpretation which some people had given ...’.
She said that no basic or fundamental changes would be made in the
Constitution; the only aim was to strengthen democracy and achieve
true justice and equality for the common people.°*
The AICC’s debate on the resolution and the committee’s proposals
was inconsequential, with two exceptions. One was an amendment to
the tentative proposals, which was adopted in the face of Swaran Singh’s
resistance, that agriculture remain on the State Legislative List.°? The
second exception was Swaran Singh’s own amendment to the resolution,
which he agreed under pressure to move: that his committee prepare a
list of ‘certain Fundamental Duties and obligations which every citizen
owes to the nation’ and incorporate it in the committee’s repert.*4

efforts of the previous autumn. In one, it said that the government's Transaction of Business
Rules might be subject to the ‘internal orders of the Prime Minister’. In the other, the
committee recommended that state legislatures and the houses of Parliament should make
their own rules about a quorum, dispensing with the Constitution’s provisions that a quorum
should be one-tenth of the membership of the House. Governments should be able to act
in legislatures without hindrance, the committee was saying.
There was some agitation within the committee to extend the term of Parliament to
seven years. Swaran Singh consulted S. L. Shakdher on the matter, who advised him that
the world trend was toward reducing, not augmenting, legislative terms. The purpose of
the seven years, in Shakdher’s opinion, was to give Prime Minister Gandhi longer tenure.
S. L. Shakdher interview with the auther.
51 Congress Marches Ahead 13, pp. 36-43.
52 Tbid., p. 54. -
53 The chief ministers had taken this position several weeks earlier. As a result, the
AICC resolved only that there should be ‘a co-ordinated and comprehensive approach
to agriculture at the National level’.
54 This had been decided at the meeting of the Working Committee held on 28 May,
which approved the resolution and the tentauve proposals before passing them on to
 364 Working a Democratic Constitution

The committee met in New Delhi regularly during July to re-examine

drafted,
its recommendations, particularly the Fundamental Duties it had
and to discuss their possible enforcement. Swaran Singh told a Delhi
not
audience that summer that he ‘would not mind’ if the Duties were
added to the Constitution, and he opposed their legal enforcement.”?
The committee published its first report on 14 August. It would not meet
again until 30 October, when it was called together to comment on the
amending bill that had been introduced in Parliament on 1 September
and that would become the Forty-second Amendment. The list of Fun-
damental Duties in the committee's report included: to respect the Con-
stitution, to uphold the sovereignty of the nation, to respect democratic
institutions, to abjure communalism and violence, to work for the imple-
mentation of the Directive Principles, and to pay taxes—a burdensome
duty later omitted from the Forty-second Amendment. The report added
that Parliament might by law provide for ‘penalty or punishment’ for
refusal to comply with or observe the Duties. No such law was to be ques-
—_—
.

tioned in court on the ground that it infringed the Fundamental Rights

or any other provision of the Constitution.°°

The Committee as a Puzzle

Indira Gandhi had supported the formation of the Swaran Singh

Committee, and she had sanctioned the committee’s composition, in
effect appointing it. Its members consisted of loyalists. She monitored

AICC. Present were members: D. K. Borooah, presiding, Mrs Indira Gandhi, Messrs
Jagjivan Ram, Y. B. Chavan, Swaran Singh, C. Subramaniam, S. S. Ray, Kamalapati Tripathi,
V. P. Naik, Syed Mir Qasim, P. C. Sethi, Vayalar Ravi, V. B. Raju, A. R. Antulay, Mrs Purabi
Mukherjee, and Mrs M. Chandrasekhar. Special Invitees: Messrs Shankar Dayal Sharma,
Chandrajit Yadav, K. D. Malaviya, B. C. Bhagwati, Rajni Patel, Kartik Oraon, Om Mehta,
Bansi Lal, Giani Zail Singh, Henry Austin, Nawal Kishore Sharma, Tarun Gogoi, Radha
Raman, Amarnath Chawla, Mrs Nandini Satpathy, Mrs Ambika Soni, and Mrs Margaret
Alva.
Invited especially to discuss the Swaran Singh Committee proposals were J. Vengal
Rao, Chief Minister of Andhra, and Banarsi Das Gupta, Chief Minister of Haryana, who
had been two of the chief ministers breught into the secret of the Emergency before it was
proclaimed, and D. Devraj Urs, Chief Minister of Karnataka. Zaidi, The Encyclopaedia, p. 143.
a Kagzi, The June Emergency, pp. 56, 72.

sum 6 Tbid., p. 4. Shriman Narayan Agarwal in his Gandhian Constitution for a Free India,
Kitabistan, Allahabad, 1946, had inciuded a chapter on fundamental rights and duties.
Rajendra Prasad, when President, spoke a number of times about citizen duties. There
should be a balance between rights and duties; rights can flow from duty well-performed;
too much stress has been placed on rights; the call of duty is forgotten, Prasad said at
various times. Citizen duties in some form appear in a dozen or more constitutions.
 Preparing for Constitutional Change 365
the committee’s deliberations through occasional meetings with Swaran
Singh, Borooah, and S. S. Ray. She participated in the Working Committee
and AICC meetings that approved the draft report, and she strongly
advocated the addition to it of the Fundamental Duties. Yet she ‘didn’t
like the report’, Dev Kant Borooah told V. N. Gadgil, and she read the
committee’s final report cursorily.°’ She knew that it had lost much of
its relevance and that she had authorized (probably in May) the secret
drafting of a constitutional amendment that would go far beyond the
committee’s recommendations.
The most likely solution to the puzzle is that Mrs Gandhi had no clear
ideas about the committee at its inception and no particular outcome in
mind and that her intentions for the committee were mixed: it would be
a helpful device for managing the suggestions and the emotional drive
for amending the Constitution; putting ‘progressives’ on it would please
part of her constituency; something good, and little harm, might come
from it; she could accept or reject what it produced; and the committee
gave her ‘breathing space’, as a Law Ministry official friendly with her
put it. This would be consistent with the Prime Minister’s tendency to let
events develop until a decisive moment arrived and her characteristic of
listening extensively to counsel before making up her mind.
But when she realized at the May AICC meeting, or before, that the
committee’s report would not go far enough in protecting her interests,
she allowed the parallel drafting of an amendment to see if it would suit
her better. This two track strategy would have had another advantage. If
Mrs Gandhi calculated that Swaran Singh’s report would be acceptable
to senior Congressmen like C. Subramaniam, Kamalapati Tripathi, Uma
Shankar Dikshit, and others, but that the Working Committee would
demur at even more radical changes to the Constitution, she had best
have these prepared out of view. This possibility is supported by the
willingness of many Congress members of Parliament under the Janata
government to vote to repeal much of the Forty-second Amendment
(Part IV).>°
Individuals closely involved with Mrs Gandhi doubt that she was
reacting to the advice of Sanjay Gandhi and his coterie—increasingly
influential as 1976 progressed—because she did not rate his intellectual
capacity highly. Whatever the answer, it seems a casual manner with which

57 VN. Gadgil in an interview with the author. Borooah said the same.
58 Sceptics had had doubts about the committee from the first. In interviews, they
variously recalled their assessments that Mrs Gandhi was undecided and hoped the
committee would show the way; that any amendment would benefit from having been
sanctified by the committee; and that she expected nothing from it.
 366 Working a Democratic Constitution
of
to treat the Constitution. Yet a well-informed observer’s description
the Swaran Singh Committee as a ‘charade’, ignores the many radical
If
contributions the report did make to the Forty-second Amendment.
Sardar Swaran Singh did indeed exert a moderating influence on the
without
committee, one shudders to speculate what it might have done
him.

The Critics
During the weeks the Swaran Singh Committee was at work, prominent
citizens analysed its proposals and opposed many of them, critiques
that the Emergency’s censors allowed the press to publish. One group
of prominent citizens, the National Committee for Review of the
Constitution, established itself in mid-March in Bombay and published
its comprehensive critique late in May. Its committee’s basic position
was that any amendments by the current Parliament would be a
‘constitutional impropriety’ because the Lok Sabha’s regular five-year
term had expired, and it had voted its own extension. Also, due to
government restrictions on assembly and expression, ‘there is no
proper atmosphere ... for the necessary and purposeful national debate.’°9
The National Committee opposed parliamentary supremacy; the
minimum number of judges on constitutional benches coupled with the
two-thirds majority provision; the proposed deletion of ‘for any other
purpose’, as applied to writs under Article 226; empowering a body
other than the judiciary to decide upon disqualification of members;
and making the Fundamental Rights subordinate to the Directive
Principles. If there were to be tribunals, the National Committee said,
|only chief justices should appoint their members. It recommended
removing the right to property from the Fundamental Rights so that it
\ could not ‘be used as an excuse for depriving the people of their civil
liberties or for practising discrimination’. It believed that a declaration
ets, * of emergency should be justiciable; that an emergency could be
5 4 confined to one area of the country; and that the deployment of

59 Interim Report, National Committee for Review of the Constitution, New Delhi, 25
May 1976, p. 2. Jayaprakash Narayan Papers, Third Installment, Subject File 323, NMML.
The committee never published a final report, pleading an insufficient number of
meetings due to government restriction, Statement by the committee, 1 August 1976, ibid.,
File 318, NMML.
Members of the committee included M. C. Chagla, K. Santhanam, Babubhai Patel,
Shanti Bhushan, H. V. Kamath, V. M. Tarkunde, Aloo Dastur, Era Sezhiyan and Krishan
Kant were its convenors. The first meeting was held ‘in the presence’ of, Jayaprakash Narayan.
 Oseacs. Mae /

Preparing for Constitutional Change 367

central police or other forces in a state should be only with the state’s
permission.©
Retired Supreme Court judge K. K. Mathew, in a public lecture, said
that judicial review by the courts was implicit under a written constitution,
for ‘it is ... incompatible with the very idea of limited powers to vest this
power in Parliament or a committee thereof’.®! In two articles in the/
cer
Times of India entitled ‘Basic Rights of the Citizen’, H. M. Seervai wrote Y
that it was an unfounded assumption, based on the battles over the right
to property, that the Directive Principles were to secure social justice and
the Fundamental Rights were ‘mere selfish individual rights’. Once it
was understood that the Rights, along with the citations of liberty and
equality of status in the Preamble, were designed to serve national
objectives, ‘the objection to judicial review loses its force’.® P. B.
Mukhazjee, retired chief justice of the Calcutta High Court, often a critic
of the Constitution, declared that ‘If Parliament represents the will of
the people, then the Courts and theJudiciary represent the conscience
of the people.’
In Madras, a civil liberties conference suggested a complex amending
process where the basic features of the Constitution were involved.
Amendments could be enacted only with a three-fourths majority of
each House in Parliament, approval of the assemblies of at least fifteen
states having two-thirds of the country’s population and area, and
approval by sixty per cent of adult voters in a referendum.®? Among
the basic features, the conference listed aduit suffrage, responsible
government, the Fundamental Rights, federation, and an independent
judiciary. Speaking at this conference, K. Santhanam said there should

60 At the beginning of May, a symposium held by the Bar Association of India with C.
K. Daphtary presiding, had produced other suggestions. Shanti Bhushan agreed with
the idea of seven-judge benches, but not a two-thirds majority vote, for deciding
constitutional cases. Fali Nariman wished to preserve the ‘any other purpose’ language
in the high courts’ powers to issue writs, but he would accept an amendment that a writ
would not lie where an efficacious remedy existed. Danial Latifi suggested amending the
Criminal Procedure Code and other laws so that ‘stays’ would be valid for only forty-eight
hours unless adequate reasons for a longer ‘stay’ had been given. Statesman, 3 May 1976.
61 Mathew in his Sir Tej Bahadur Sapru Memorial Lecture, 26 March 1976, India
Backgrounders, vol. 1, no. 2. This from the justice who at the time of the 1973 supersession
of judges was thought by some as close to Mohan Kumaramangalam in his views.
62 Times of India, 26-7 May 1976.
63 ‘Resolutions adopted at the Civil Liberties Conference Held at Rasika Rav Janu
Sabha Hall’, Madras, 18 July 1976. (Jayaprakash Narayan Papers, 3rd Installment, Subject
File 265, NMML.) |
Shanti Bhushan chaired two other meetings in Madras, this time in Septembe r in
the Town Hall.
368 Working a Democratic Constitution

be no internal emergency for the whole country and an emergency

might be declared only in a state where law and order had broken down.
A seminar in Bangalore by the State Citizens Committee opposed
amending Articles 226 and 227, called for judicial review of judgements
by tribunals, and agreed with the National Committee for Review of
the Constitution that there should be no amendments until after an
election at the end of the Emergency so the will of the people could be
known.® Speaking in Parliament earlier, the Law Minister said that the
very persons talking of democracy have ‘been creating obstacles ... in
the functioning of democracy ... [E]ven Satan quoted the Bible.’
The cleverest and most biting assault on the Swaran Singh Committee
proposals, and on the Emergency in general, came from the Communist
Party Marxist.°© The CPM pamphlet, after its ritual castigation of the
Constitution and the system of government as anti-people and pro-
capitalist, said that the parliamentary system’s enemies came from the
exploiting classes and that blaming the judiciary for the failure of social
and economic reforms was the government’s trick ‘just to establish an
alibi’. When Congress had a two-thirds majority in both houses it did not
amend the Constitution because of ‘its own solicitude’ for vested interests.
How had the freedom of speech interfered with implementing the
Directive Principles, asked the tract. Judicial review and Article 226 served
the common man, it said, and it warned of the executive subverting the
people’s freedoms and ‘abrogating’ the Constitution ‘under the cover of
supremacy of Parliament’.©”
The striking differences in the positions taken by the CPM and the

64 K. S. Hegde, present in Bangalore, also critiqued the Swaran Singh Committee

report in a document circulated about this time. If carried out, he wrote, these suggested
amendments ‘would disturb ... the existing federal set up substantially’ and might ‘establish
... a dictatorship of the central executive, the constitutional garb notwithstanding’. K. S.
Hegde, ‘Proposed Constitutional Amendments—Background Paper’, Jayaprakash Narayan
Papers, Third Installment, Subject File 320, NMML.
65 7ok Sabha Debates, Fifth Series, vol. 59, no. 19, col. 285. Gokhale was speaking on K.
P. Unnikrishnan’s resolution about changing the Constitution.
66 Communist Party of India (Marxist) on Constitutional Changes, CPI(M), New Delhi,
June 1976. The text of this pamphlet reproduced almost exactly an earlier one, Left Parties
on Constitutional Changes, signed for the CPM by Jyoti Basu and representatives of six
other parties, no date. The pamphlet was released by Basu at a press conference in Calcutta
on 11 June. Brahmanand Papers, Subject File 50, NMML.
CPM member of Parliament Somnath Chatterjee on an earlier occasion said that the
amending article of the Constitution was being used ‘to put some persons above the law’.
Lok Sabha Debates, Fifth Series, vol. 59, no. 19, cols 301-8.
67 Thid. p. 6. The pamphlet has been attributed to no single author. It was cleared by
party politburo before publication, according to Basavupanaiah, then a secretary general
 Preparing for Constitutional Change 369

CPI toward the Emergency and the government's intentions toward the
Constitution may be explained by the realism of the one and the irrealism
of the other. The CPM knew it would never come wholly or partially to
power on Mrs Gandhi's ‘saree tails’. The CPM held power in two states,
and, ifit had hopes of gaining national influence, democratic institutions
and the freedoms of the Fundamental Rights were essential. The CPI
believed that supporting Mrs Gandhi would bring the implementation
of at least some of its social-economic policies and that it could warm
itselfin the glow of the Prime Minister’s authoritarian fires without being
burnt. Some CPI members began to appreciate their error when the
Forty- second Amendment made its debut in Parliament. By the end of
the Emergency, all but the blind had seen their mistake.
Soon-to-retire Law Commission Chairman Gajendragadkar rendered
his verdict on the Swaran Singh Committee in a letter to Mrs Gandhi
after she was out of office. Saying that he hoped she appreciated that he
was not carping, and assuring her that he held her ‘personally in high
esteem’, he reminded her of his advice that amendment of the funda-_
mental law of the land should not have been left to a party committee
and that the proper ‘modality’ would have been a committee of experts
to hear all parties and persons, including interned leaders. ‘The commit-
tee Borooah appointed, he said, had worked in a hurry, discussed issues
in a casual manner, and ‘based its recommendations mainly on political
considerations’
.©8

of the party, in an interview with the author. In twenty-six recommendations, the CPM
strongly defended the Fundamental Rights by calling for the removal from the
Constitution of five threats to them: the portions of the Twenty-fourth and Twenty-fifth
Amendments allowing amendment of the Constitution at the expense of the Fundamental
Rights; Article 31C, because ‘under it, all fundamental rights can be over-ridden’;
automatic suspension of access to the courts for protection of the Rights under Article
19 during an emergency; government power of preventive detention under Article 22;
and placing laws other than those for social-economic reforms in the Ninth Schedule.
In one ofits more piquant aspects, agreeing with Justice Subba Rao, the CPM said that
constitutional amendments should be considered ‘law’ under Article 13. The pamphlet
also said that the Constitution specifically should provide for protection of its basic fea-
tures, namely India as a parliamentary republic, adult franchise, accountability of the ex-
ecutive to the legislature, protection of the Fundamental Rights, and judicial review of
legislation until any conflict between the Parliament and the executive could be resolved
by referendum. Regarding centre-state relations, the pamphlet recommended that the
President's ernergency powers should be ‘drastically amended’ so that an emergency could
be declared only if there were war or external aggression and Articles 356, 357, and 360
should be deleted to end presidential dissolution of state governments and presidential
interference in a state government on the ground of financial instability.
|
68 etter dated 24 August 1977. P. B. Gajendragadkar Papers, NMML.
 Chapter 17

THE FORTY-SECOND AMENDMENT:

SACRIFICING DEMOCRACY TO POWER

‘The process of amending the Constitution ... is becoming curiouser

and curiouser,’ wrote noted political scientist S. V. Kogekar. The
recommendations of the Swaran Singh Committee had ‘disappeared
into some lobbies somewhere, into some rooms in the Secretariat’,
charged CPI leader Bhupesh Gupta, ‘and there, the tampering with
recommendations started by some officials and ... some others ... to
smuggle in things ... absolutely unnecessary ... from the point of view of
socio-economic changes’.
The government thought differently. The Constitution was to be
amended to strengthen the strands of the seamless web: ‘to spell out
expressly the high ideals of socialism, secularism and integrity of the na-
tion ... and give ... [the Directive Principles] precedence over those Fun-
damental Rights that had frustrated the Principles’ implementation’, said
the Forty-fourth Amendment Bill’s ‘Statement of Objects and Reasons’.
The Constitution ‘to be living must be growing’, it continued. For the
Prime Minister, as she said, ‘keenly conscious of the high significance’ of
the bill, its purpose was ‘to remedy the anomalies that have been long
noticed and to overcome obstacles put up by economic and political
vested interests’. The Constitution must provide ‘order and stability ...
and law’, Mrs Gandhi added. The bill ‘is responsive to the aspirations of
the people, and reflects the realities of the present time and the future’.>

I Kogekar, S. V., ‘Constitution Amendment Bill’, Economic and Political Weekly, vol. 11,
no. 42, 16 October 1976. Gupta in Parliamentary Debates, Rajya Sabha, vol. 98, no. 5, col.
47,9 November 1976. Gupta, a friend of Mrs Gandhi for many years, added in this speech
that this ‘tampering’ had been ‘behind [the back of] the AICC ... [and] the Congress
Working Committee’ to introduce twenty-seven new items ‘not warranted’ by the Swaran
Singh Committee recommendations.
Indrajit Gupta, no relation, had expressed similar sentiments in the Lok Sabha.
2 This bill became the Forty-second Amendment and will be referred to in this way.
cen For the ‘Statement of Objects and Reasons’, see ‘The Constitution (Forty-Fourth
Amendment) Bill, 1976’, in Government Bills as Introduced in the Lok Sabha, 1976, Parliament
Secretariat, New Delhi, 1976.
3 Speech in the Lok Sabha, 27 October 1976. Lok Sabha Debates, Fifth Series, vol. 65,
 The Forty-second Amendment: Sacrificing Democracy to Power 371

Strange things had happened on the way from Kamagata Maru to

Parliament House, where on 1 September 1976 in the Lok Sabha H. R.
Gokhale introduced the amending bill to cheers. Debate on the bill
began on 25 October, it passed in the Rajya Sabha on 11 November, and
the President assented to iton 18 December upon ratification by thirteen
state legislatures. This chapter will summarize the essence of the
Forty-second Amendment, the government’s and critics’ contention over
it, and consider the puzzle of the amendment’s drafting. It also will
examine a strange event of the time: an apparent attempt to derail the
amendment entirely and substitute a presidential for the parliamentary
system.

The Amendment
Building on the Swaran Singh Committee proposals, the amendment’s
twenty pages of clauses had four main purposes: to further protect from
legal challenges Mrs Gandhi’s 1971 election to Parliament and future
elections of her and her followers; to strengthen the central government
vis-a-vis the state governments and its capability to rule the country as a
unitary, not a federal, system; to give maximum protection from judicial
challenge to social revolutionary legislation—whether intended sincerely
or to cloak authoritarian purpose; ‘to trim’ the judiciary, as one
Congressman put it, so as to ‘make it difficult for the Court to upset her
policy in regard to many matters’.t The headsman’s axe had not fallen
definitively on liberty and democracy, but its edge was being honed. A
few of the amendment’s changes were aimed at bringing generally sup-
ported reforms, and would be retained by the votes of both Congress
and Janata Party members of Parliament when other provisions in the
amendment were repealed.
In the category protecting social revolutionary legislation from
judicial challenge, the amendment—after adopting the Swaran Singh
Committee’s expansion ofArticle 31C giving all the Directive Principles
precedence over the Fundamental Rights and its assignment to tribunals

no. 3, cols. 141-2. Speech reprinted under the title ‘Parliament Has Unfettered Right’ in
Indira Gandhi, Selected Speeches and Writings, vol. 3, pp. 283-91.
H. R. Gokkiale voiced an argument that became popular at the time when he said that
easy amendment of the Constitution was a ‘safety valve’. A rigid process could result in
violence. Gokhale had retreaded the ‘argument of fear’ that Chief Justice Subba Rao had
employed to protect the Constitution from depredations from one-party rule (ch. 8).
4 For the text of the Forty-second Amendment, see Constitution Amendment in India,
Lok Sabha Secretariat, pp. 290-320.
 372 Working a Democratic Constitution

of tax, land reform etc. matters—added a replacement Article 226. The

new article prohibited high courts from issuing stay orders relating to
‘any work or project of public utility’. No court was to have any jurisdiction
over tribunals, although the Supreme Court could accept appeals from
them, and cases pending before a court could be transferred to a
tribunal. A new Article 32A prohibited the Supreme Court from
considering the constitutionality of a state law unless the validity of a
central law was also at issue—thus cutting deeply into the citizen’s
recourse to Article 32 to protect his fundamental rights. High courts
still could determine the constitutionality of state laws.
The Swaran Singh report’s suggestion that Parliament be empowered
to legislate against abuses of the ‘freedoms’ in Article 19 seems to have
"fslain behind the amendment’s Article 31D, prohibiting ‘anti-national
activities’. According to this potentially totalitarian provision, no law for
this purpose was to be unconstitutional because inconsistent with
Fundamental Rights Articles 14, 19, and 31. Among the activities defined
as anti-national, in addition to advocating secession from the nation, were
questioning the sovereignty and integrity of India, intending to create
internal disturbance, and intending to ‘disrupt harmony’ among society’s
various groups. These understandable sentiments had been fed before
and during the Emergency by the ‘phobia we had created’, in V. N.
Gadgil’s words, about external and internal conspiracies against the
government. Sanjay Gandhi’s enmity toward any political opposition likely
contributed to the article’s inclusion. “There was full support in the party
for banning anti-national activities,’ Sheila Dikshit recollected; ‘the
problem was defining them.”
The amendment entirely excluded the courts from election disputes.
It failed to include the committee’s recommendation that a nine-member
body decide on disputed elections of the President, Vice-President, Prime
Minister, and Speaker. The amendment placed the decision about dis-
qualification for membership in Parliament and in a state legislature—
had a person been found guilty of corrupt practices in an election—
unrestrictedly in the hands of the President and the governor by provid-
ing that either had only to consult the Election Commission (new Articles
103 and 192). Under the original Constitution, the President and the
governor on such occasions were bound by the advice of the Election
X Commission. In legislatures having Congress Party majorities, with gov-
(.® ernors appointed by the central government, and with the President
my ow “bound to act on the advice of the council of ministers, basically Indira
d _ ve*
<
@ 5 - ~ .
'
a ae ” In an interview with the author.
 The Forty-second Amendment: Sacrifict ng Democracy to Power 373
Gandhi would decide disputes relating to corrupt practices in elections
nationwide. In an echo of Mrs Gandhi’s Election case—going beyond
the Thirty-ninth Amendment—the amendment provided that no court
could require production before it of the government’s Transaction of
Business Rules.
The amendment strengthened New Delhi’s power vis-a-vis the states
in several ways. It incorporated the Swaran Singh Committee recommen-
dation that federal forces operate under federal control when in a state
to preserve order, making no mention, as had the committee, of consult-
ing the state government concerned before sending the forces. Its changes
to the ‘Emergency Provisions’ went far beyond the committee’s recom-
mendation by enabling Parliament to make laws for any state if the secu-
rity of India were threatened by activities in that state related to (author’s
emphasis) those in the area under emergency (Articles 353 and 358).
Similarly, a new proviso to Article 359 permitted laws to be made and
executive action to be taken contravening the Fundamental Rights in
states not under emergency.® Centre-state relations were altered also
by denying high courts the authority to rule on the constitutionality of
central laws (new Articles 226A and 228A).
Further ‘trimming’ the judiciary, the amendment incorporated the
Swaran Singh Cornmittee’s recommendation that Supreme Court and
high court benches that would rule on the constitutionality of state or
central laws must have seven and five judges, respectively, and take
decisions by two-thirds majorities (new Articles 144A and 228A). The
government’s epitaph for the Supreme Court’s most fundamental
function, the power to review constitutional amendments, came in its
adoption of the Swaran Singh Committee’s recommendations regarding
Article 368. The Forty-second Amendment said that amendments could
not be questioned ‘in any court on any ground’; that amendments to
the Fundamental Rights were beyond review; and that there shall be
no limitation on Parliament’s power to amend the Constitution ‘by way
of addition, variation or repeal’.
The shift in the balance of power within the new Constitution made
it all but unrecognizable. The Supreme Court had been divested of much
of its original jurisdiction. The high courts had been hobbled. Parliament

6 Also, the amendment provided that any law made during an emergency would
remain in force until repealed, whereas in the original Article 357, such laws would lapse
after a year. It altered Article 356 so that a proclamation of President’s Rule lapsed one
year after Parliament initially approved it (unless it were renewed) instead of the six
months originally laid down in the Constitution.
374 Working a Democratic Constitution
ment
had unfettered power to preserve or destroy the Constitution. Parlia
of
now sat in judgement over the elections of itsown members and those
to
the President and Vice-President. The President had to assent
Parliament’s enactments as presented by the council of ministers—an
g
addition to Article 74 not among the Swaran Singh proposals, makin
rigid a convention hitherto minimally flexible. Neither the central nor
state governments were restrained from acting in their respective
legislatures by quorum requirements for the amendment abolished these.
A single government supporter in an otherwise empty house could pass
a bill. Parliament’s and the legislatures’ terms had been extended to six
years from five. Finally, the council of ministers had extraordinary powers
given by the amendment’s final clause. This provided that if there were
any difficulties in giving effect to the Constitution as amended, ‘the
President may, by order’, for up to two years, adapt or modify the provision
to remove the difficulty. The original Constitution contained such a
‘removal-of-difficulties clause’ to ease the transition from the 1935 Act.
But for Hiren Mukherjee and others, the time of Prasad, Nehru, and
Patel was not 1976. ‘[P]lease don’t revive the Henry VIII memory,’ said
he. There should not be in the Constitution anything that ‘even remotely
smacks of any potentially authoritarian device’.’

Who Were Its Authors?

The Forty-second Amendment’s drafters operated out of public view, as
said in the previous chapter, and at two levels: the Prime Minister and
several individuals around her established the policy content; Law Ministry
officials did the actual drafting.® S. S. Ray was at the hub of the process,
working—sometimes at the Prime Minister’s house (the ‘PMH’, often at
odds with the staff of the Prime Minister’s Office, the Prime Minister’s
office), or at other ministers’ houses, or in Rajni Patel’s Ashoka Hotel
suite—so clandestinely that ‘some days even the Intelligence Bureau
didn’t know where he was’, recalled a senior officer in the Delhi police.
Collaborating with him were D. K. Borooah and Rajni Patel, and, less
important, A. R. Antulay. All thought the Swaran Singh Committee's
report inadequate and wanted ‘to beefit up’, recollected a senior member
of the Prime Minister’s staff, himself excluded from the creation process.

7 Lok Sabha Debates, Fifth Series, vol. 65, no. 2, cols 122-3.
8 Absolute certainty in assigning the amendment’s authorship is impossible due to the
unavailability of government documents. But written sources, although sparse, extensive
interviews with senior officials of the time and other knowledgeable individuals, and a
certain amount of deduction allow the following reconstruction of the drafting process.
 The Forty-second Amendment: Sacrificing Democracy to Power 375

Chandrajit Yadav recalled that Ray, Borooah, and Patel—sometimes

referred to as the ‘three musketeers’—felt frustrated with the Swaran
Singh Committee. For himself, Yadav said the Swaran Singh Committee
did not achieve our goal, ‘so we had to get another way.’? Borooah was
‘most intensively involved’ in the drafting, Mrs Gandhi said publicly in
praise.!? H. R. Gokhale as Law Minister, contributing less to substance,
led the team of drafters—he was considered an excellent draftsman—
and acted as the link with the drafting officers in his ministry. Minister of
State for Home Affairs Om Mehta occasionally advised as Parliamentary
Affairs Minister.
The axle around which the wheel turned was the Prime Minister. As
Gokhale later explained, ‘although the instructions for each amendment
and modification were first given to him (Gokhale) either by Siddharth
(S. S. Ray) or some aide of the Prime Minister, he always approached
her for confirmation. Her reply was always somewhat as follows, “Yes,
the members of the Party are pressing hard for it. The chief ministers
are also asking for it. You are yourself seeing the situation in the country
is serious. What is to be done, this has to be implemented.””!!
Ray would consult Mrs Gandhi about notes he had made for constitu-
tional changes, consulting from time to time with the others, who agreed
with Ray about the new election provisions and the enhanced emergency
powers, which increased the Prime Minister’s reach. Ray acquiesced, at
least for tactical purposes, in Borooah’s and Rajni Patel’s interest in in-
cluding the social revolutionary provisions in the draft amendment, in-
terest that was shared by other ‘progressives’. ‘Parliamentary supremacy’,
as the mantra of the time, was not contested within this small circle. Patel’s
influence is seen in the language that the President ‘shall’ act in accord-
ance with ministerial advice—self-evidently intended doubly to ensure
the Prime Minister’s control even with an accomodating President like

9 Yadav in an interview with author.

10 In a speech on the amendment to the Rajya Sabha. Indira Gandhi, Selected Speeches
and Wnitings, vol. 3, p. 292.
a
11 Excerpt from B. N. Tandon’s ‘Diary’ dated 26 October 1980, recording
had been friendly for some years.
conversation with Gokhale. Tandon and Gokhale
Tandon.
Excerpt from the ‘Diary’ kindly provided to the author by Mr
are otherwise
At this time Gokhale told Tandon of his fears during the Emergency, which
why ‘he did not opt
widely spoken of among India’s judicial community. Asked by Tandon
was happening, ‘Gokhale
out of the government’, given his strong dislike of much that
cy. He firmly believed that if he did
admitted that he was scared to resign during the Emergen
might consider it my weakness or
so the Prime Minister would send him tojail.’ “Bishan, you
jail.”’ Ibid. Gokhale was a ‘frightened
anything else, the fact is that I did not want to go to
e by his ‘judicial conscience’.
man’, according to another official, and was made miserabl
376 Working a Democratic Constitution

Fakhruddin Ali Ahmed. Banning anti-national activities and organiza-

tions fitted the mood in government. Apparently the ‘progressives’ among
the drafters foresaw no dangers in these provisions to themselves and to
the Communist Party of India. Antulay’s recommendation in his ‘A Fresh
Look’ paper—which lay behind Article 31D—that ‘communal and fas-
cist anti-national and anti-social organizations must be banned’ was from
its use of Congress code words, aimed at opposition political parties
and at the Hindu parties, especially.!* The drafters concentrated on
increasing the central government’s and the Prime Minister’s author-
ity, willing to sacrifice democracy for this greater cause and using the
amendment’s social revolutionary provisions toward this end. ‘Patel’,
as K. P. Unnikrishnan said, ‘sought solutions in power’.!3 Mrs Gandhi,
said V. N. Gadgil, wanted to ‘consolidate the things she thought she
had achieved by the Emergency’.!4
With the policy path cleared and with the Prime Minister’s agreement
to proceed, Ray would have Gokhale summon the Secretary of the Law
Ministry’s Legislative Department, K. K. Sundaram, to Gokhale’s or some
other residence. Sundaram led the secret drafting process at the ministry,
doing much of the work himself at night with day-time help from a
subordinate officer, Mrs Ramadevi, and others. A ministry committee,
officially chaired by Gokhale (but typically he was absent) seems to have
discussed the various drafts of the amending bill, which would be sent to
Ray, commented upon, and returned to Sundaram for drafting revisions.
Two lengthy cabinet meetings took up the draft on 21 and 23
August, perhaps following meetings of the Political Affairs Committee.
The Law Ministry’s note for the cabinet dated 20 August 1976, and the
accompanying text of the amendment had reached the ministers on 20
August.!° Several persons who attended the cabinet meetings, sometimes
chaired by Y. B. Chavan in the Prime Minister’s absence, remembered
only general discussion in them and no dissent.!© A week after the final
cabinet meeting, the Law Minister introduced the amendment in Parlia-
ment. Consideration was scheduled to begin on 25 October.

12 See text of paper, in Noorani Presidential System, p. 112.

'3 K. P. Unnikrishnan in an interview with the author.
'4V_N. Gadgil in an interview with the author.
'5 Nurul Hasan, Minister of Education, attending the meetings by invitation, because
not a member of the Cabinet, to B. N. Tandon and Tandon in a letter to the author.
'6 Om Mehta was one of these individuals interviewed by the author. For an extensive
description and analysis of the Swaran Singh Committee and the Forty-second Amendment
see Dhavan, Rajeev, The Amendment: Conspiracy or Revolution?, Wheeler Publishing,
Allahabad, 1978.
 The Forty-second Amendment: Sacrificing Democracy to
Power 377
Four Mysterious Resolutions
Five days before consideration of the bill was to begin,
resolutions of
mysterious origin in four Congress-ruled states threatened its extinction.
In Bihar on 20 October, Chief Minister Jagannath Mishra, legislators,
and Pradesh Congress Committee (PCC) members resolved that the
amendment be sent to parliamentary drafting committees for scrutiny,
as had been done in the Constituent Assembly. 17Th Punjab, the Congress
state legislature party unanimously voted for convening a constituent
assembly to rewrite and recast the entire Constitution.!8 Chief Minister
Zail Singh, Deputy Railway Minister in the central government, Buta //
Singh, and Sardar Swaran Singh were present. The latter did not speak,
was reported to be surprised by the development, and had to hurry from
Chandigarh to New Delhi to chair the last meeting of his own Swaran
Singh Committee that afternoon. In Haryana, former Chief Minister and
now Defence Minister Bansi Lal and the Chief Minister Banarasi Das
Gupta plus members of the PCC and Congress Legislature Party resolved
in favour of a new constituent assembly.!9 The vice-president of the
Haryana PCC told a reporter that there had been no central direction
involved; he had drafted the resolution in his car on the way from Delhi
that morning.
Events in Uttar Pradesh were even more bizarre. In Lucknow, Con-
gress party members of Parliament from the state, state legislators, PCC
members, and presidents of Congress-controlled zilla parishads met to
discuss two resolutions: one welcoming the Emergency and the achieve-
ments of the Twenty-Point Programme and the other to welcome amend-
ments to the Constitution ‘based on the recommendations of the Swaran
Singh Committee’.*° Instead, the meeting resolved that Parliament be
converted into a constituent assembly with additional representatives from
the states ‘to draft a fundamental law for the country’.2! Among the sen-
ior Congressmen present were Kamalapati Tripathi, Uma Shankar Dikshit,
K. C. Pant (all three Indira Gandhi loyalists), K. D. Malaviya, and
Chandrajit Yadav. Coming to by aircraft attend the meeting, Mrs Gandhi
was met at the airport by K. C. Pant—at Tripathi’s suggestion—to learn
from him that the resolution already had been adopted. Speaking to the

\7 Times of India, 21 October 1976.

18 Thid.
19 The resolution also rejected the basic structure doctrine. Tribune, Chandigarh, 22
October 1976.
20 Statesman, New Delhi, 21 October 1976.
21 bid.
378 Working a Democratic Constitution
had suggested that PCC
group shortly later, the Prime Minister said she
ons of the Swaran Singh
presidents meet to discuss the recommendati
bill (presumably to en-
Committee and the provisions of the amending
rise that a resolution had been
dorse them), and she expressed surp
to amend the Consti-
adopted so swiftly. Parliament was fully empowered
advocating change toa
tution, she said.22 Adding to the mystery, a paper
meeting, and no one
presidential system was circulating at this Lucknow
ly taken aback,” by its
seemed to know whence it came. ‘We were all total
‘word going round
appearance, recalled Chandrajit Yadav, and by the
to have joined the
that Indira wanted it’.2° A fifth state, Rajasthan, was
least four other PCCs met,
four, but declined. Around 20 October at
y channels. The
apparently at the urging of Mrs Gandhi through part
orting the Forty-
resolutions they passed were limited to praising and supp
second Amendment.*4
coincidence
Various motives have been ascribed to the not-accidental
nging and
of the four resolutions. They had the common theme of prolo
to her. But it
increasing power for the Prime Minister and those nearest
ter and those
was not immediately apparent whether the Prime Minis
Gandhi's
nearest her were acting in concert. The device for enhancing Mrs
meant
power was to be the introduction of a presidential system, which
itution,
convening a constituent assembly and drafting a new const
rajit
according to the analysis of the Communist Party of India, Chand
ed to be to
Yadav, and L. K. Advani, among others. ‘[T]he motive seem
.
concentrate power in the hands of an individual,’ Advani later wrote
have a
‘Democracy was a nuisance in the county ... it was desired to
benevolent dictatorship, and the presidential system seemed a euphemism
for benevolent dictatorship.’*° Another motive for convening a

22 ‘Times of India, 22 October 1976.

also, from
23 Interview with the author. This account of events in Lucknow is drawn,
the author’s interviews with K. C. Pant and Sheila Dikshit.
24 In addition to the sources cited, see Consembly Move and Democratic Fightback,
Communist Party of India, New Delhi, November 1976; India Backgrounder, 20 December
1976; AR, 9-15 December 1976, p. 19488; and Hindustan Times, 21-2 October 1976.
The idea of a second constituent assembly was not new. The government had found it
necessary to reject calls for one during debate on the Nath Pai Bill in 1967. Lohia socialists
of the Samyukta Socialist Party called for one at their Jabalpur conference in 1969 and
reiterated the demand in its 1971 election manifesto. Madhu Limaye had called for a new
assembly in 1973. And in the summer and autumn of 1975 President Ahmed suggested a
new assembly might be necessary and Uma Shankar Dikshit threatened one nght after the
dissolution of the Kesavananda Bharati Review bench. In general, over the years, the CPI
had opposed convening a constituent assembly, and the CPM had favoured it.
25 |. K. Advani, ‘Antidote to Divisive Forces’ in Sathe, Vasant, Two Swords in One
Scabbard, NIB Publishers, New Delhi, 1989, pp. 187-8. Sathe’s book is sub-tided A Case for
 The Forty-second Amendment: Sacrificing Democracy to Power 379

constituent assembly was simply to prolong the existing power situation.

With Parliament converted into an assembly, as foreseen in the Lucknow
resolution, there would be no elections—then due in March 1977 (the
Lok Sabha had not yet extended its term by another year, which would
be done on 4 November). Parliament’s term would be extended de facto,
and the Emergency would remain in place. There were two other, less
popular, theories: that constituent assembly passage either of the
Forty-second Amendment or of a new constitution would preempt the
Supreme Court from using the ‘basic structure’ doctrine to strike the jor
amendment down, and that the threat of a constituent assembly would
induce the Supreme Court to uphold the amendment were it challenged.
Observers in New Delhi speculated energetically about the
resolutions’ origins. They could have come only from the Prime Minister
or Sanjay Gandhi, many agreed. The questions were which one, and
could Sanjay Gandhi have moved without his mother’s knowledge?
‘Indira Gandhi sponsored the resolutions directly or indirectly,’
according to Chandrajit Yadav. ‘Sanjay wanted this, there was a lot of
presidential system talk in the CPP, and Mrs Gandhi called me in to
take the temperature,’ recalled Ambika Soni, then President of the
Youth Congress and close to Sanjay Gandhi.*° ‘Probably Sanjay was
behind it’, thought K. P. Unnikrishnan. ‘Indira must have known and
waited to see the fall-out.’ ‘It must have come from Indira,’ thought V.
N. Gadgil, because she had been advised that elections could be
postponed under this pretext, and ‘you could kill two to three years’.
‘It must have been inspired by the coterie, who wanted to appear
democratic when they were not,’ said P.N. Haksar. ‘It was Sanjay’s doing,’
recalled a cabinet minister of the time.2’ ‘Bansi Lal and others, who

Presidential Form of Parliamentary Democracy, again blurring the line between those who
advocated a ‘presidential system’ and those wanting to ‘strengthen’ the parliamentary
system by, say, having a directly elected prime minister.
The CPI charged that ‘reactionary forces’ intended to stall the elections with the
us idea’ of a
‘ominous aim’ of subverting parliamentary supremacy with the ‘obnoxio
presidential system. CPI, Consembly Move and Democratic Fightback.
from two
This description of motives and the speculation about individuals is drawn
dozen interviews.
‘was alienating
26 Soni interview with the author. Soni told the Prime Minister the idea
ng a constitu ent assembly
people’. P. B. Gajendragadkar told the Prime Minister that conveni
tial system, Soni listed
would be unconstitutional. Among the then supporters of apresiden
Rajni Patel, and, possibly
Shashi Bhushan, a junior member of the coterie, Yashpal Kapoor,
Borooah.
Gandhi, she told K. C. Pant.
Bansi Lal had commended a presidential system to Mrs
Pant interview with the author.
27 p_N. Haksar in an interview with the author.
380 Working a Democratic Constitution

did not want her to go to the polls, started campaigning for a new
constituent assembly to draw up a new constitution,’ wrote G. K. Reddy
in The Hindu.*8 ‘Maybe Bansi Lal or some state leaders put the idea in
Sanjay’s head,’ thought H. Y. Sharada Prasad, the Prime Minister’s
Information Adviser, ‘on the supposition that if the son propounds,
mother will accept’.2? Sanjay Gandhi's involvement with the Haryana
and Punjab resolutions is supported by his close relationship with Bansi
Lal and Zail Singh.
There were elements of truth and one major misapprehension in
this speculation. According to the Prime Minister’s Principal Secretary,
Professor P. N. Dhar, initiative for the resolutions came from Bansi Lal,
inspired by A. R. Antulay’s ‘Fresh Look’ paper, who ‘sold’ the idea to
Sanjay Gandhi. Together, they arranged the resolutions without the Prime
Minister’s knowledge. Their passage alarmed Mrs Gandhi.°? Sanjay
Gandhi and Bansi Lal intended damage to democratic government going
far beyond that already done by the provisions of the Forty-second
Amendment.!
Negative reaction to the resolutions was immediate and sharp. The
National Committee for Review of the Constitution rejected both a new
constituent assembly and Parliament’s competence to amend the Con-
stitution in the manner of the current bill. The CPI opposed a constitu-
ent assembly, in an official resolution calling it a ‘sinister move’. The
CPM, although calling for a constituent assembly and for withdrawing
the amending bill, was of a different mind from the progenitors of the
state resolutions. The new constituent assembly should be directly elected
according to proportional representation and take at least six months to
consider either drafting a new constitution or amending the current
one.*2 The National Herald, still loyal to the Nehrus, called the resolutions
‘futile’ because Parliament’s authority to amend any part of the Consti-
tution was ‘generally accepted’.°° Mrs Gandhi told the Parliamentary

28 Issue of 2 November 1980.

29 In an interview with the author. Bansi Lal was strongly for prolonging the
Emergency, according to Vasant Sathe (in an interview) ,accompanied by Sanjay Gandhi,
V. C. Shukla, Om Mehta, and Borooah. =
30 P. N. Dhar interview with the author. The accuracy of Dhar’s version is confirmed
by H. Y. Sharada Prasad. Both held high positions on Mrs Gandhi's staff.
31 During the Emergency, Bansi Lal said to B. K. Nehru, ‘[G] et rid ofall this election
nonsense ... [J] ust make our sister (Mrs Gandhi) President for life and there’s no need
to do anything else.’ Nehru, Nice Guys Finish Second, p. 559.
32 The CPM also called for lifting the Emergency and ending censorship.
33 Editorial of 22 October 1976. The newspaper continued that any constitue
nt
assembly would follow general elections and not precede them, and an assembly
‘would
 The Forty-second Amendment: Sacrificing Democracy to
Power 38]
Party on 23 October that Parliament had the power
to amend the Con-
sutution as it wished, and she told the Lok Sabha
four days later that
there was no need for a constituent assembly.*4

The Amendment’s Supporters and Opponents

H. R. Gokhale moved consideration of the bill at noon on 25
October.
The cabinet had decided to proceed the previous evening particularly
to
offset publicity about a constituent assembly.°° Minister of Parliamentar
y
Affairs K. Raghuramaiah said only government business could
be
transacted during the special session, which Opposition parties
had
boycotted, contending that Parliament, having outlived its five-year term,
was not competent to amend the Constitution.3© Gokhale told members
that of the bill’s fifty-nine clauses only seven or eight were substantive.
These were ‘primarily and pre-eminently’ to remove obstacles to achieving
the nation’s social and economic objectives. He reiterated arguments,
often made before: Parliament was supreme because it represented the
people; Parliament now could give effect to the Directive Principles by
law; the basic structure of the Constitution was unaltered (‘all that is
regarded as basic to a federal structure is there’); and the bill did not
lessen the reach of the courts. ‘[I]fat all the powers have been toa certain
extent widened,’ he contended, and ‘they are not taken away in all matters
in which really judicial action is justified’
.3”
When it was his turn to speak, Swaran Singh characterized the
amendments relating to the courts as ‘comparatively moderate’. When
reviewing constitutional amendments, he said, the courts ‘transgressed

be justified’ only if there were thoughts of changing to the French or American system of
government.
34 Mrs Gandhi to the CPP: Siatesman, 24 October 1976. Mrs Gandhi to the Lok Sabha:
Lok Sabha Debates, Fifth Series, vol. 65, no. 3, col. 141.
The idea ‘is by no means dead’ wrote Kuldip Nayar in the Indian Express, 17 November.
35 Consembly Move and Democratic Fightback, p. 18. The pamphlet reported that one
cabinet member, unnamed, favouring a constituent assembly, had dissented.
36 Three hundred and seventy of the Lok Sabha membership of 545 attended this
special session. The others had boycotted it or were injail. Six hundred amendments to
the amending bill had by this time been proferred, according to the news agency Samachar.
37 Lok Sabha Debates, Fifth Series, vol. 65, no. 1 cols 49-65, and, for the last quotation,
pp. 61-2.
A decision to appoint a state law commission to suggest judicial reforms, improvements
in judicial administration, and whether or not new laws would be necessary to implement
the Directive Principles was announced by Maharashtra Chief Minister S. B. Chavan, on
27 October. Statesman, 28 October 1976.
 382 Working a Democratic Constitution
atic’;
the limits prescribed for them’. Parliamentary supremacy was ‘axiom
judge
it was ‘chaotic and ... unacceptable to Parliament... [that] a single
Act] ultra
sitting in a remote part of the country ... [could] declare fan
ts
vires’. And tribunals would effectively handle highly technical subjec
s because
such as taxes, distribution of foodgrains, and civil service matter
their members would have the ‘requisite expertise’, and be independent,
thereby inspiring confidence.*®
The Prime Minister spoke to the Lok Sabha again in terms of the
seamless web. The amendment was ‘to restore the health of our
democracy ... [and was] responsive to the aspirations of the people’, she
said. Its incorporation of ‘secular’ and ‘socialist’ in the Preamble ‘will
| provide the frame of reference to all’. The new anti-national activities
‘ provision was necessary to protect national unity and integrity. Congress
would never liquidate opposition parties, she asserted, and ‘the preaching
of dismemberment of India ... inciting communal or provincial hatred
and violence is anti-national ...’. She linked the article and her Emergency
in the same breath, asking what was the agitation before the Emergency
‘except to throw aside the Constitution?’ In the light of this, the
Opposition’s criticism of the amending bill was ‘not so plausible’.99 In
the Rajya Sabha, she declared that there was ‘nothing radical or new in
... [the] amendments’. As was her wont, the best defence was a grain of
truth in a good offence. The Prime Minister attacked the opposition
parties’ absence from the House as ‘escaping responsibility’. It was the
opposition’s ‘abuse of democracy’ and obstruction of its ‘legitimate
functioning’ that had caused all the difficulties in the first place, she
alleged.*°
: mm Anti-judiciary sentiment was notably strong in both Houses during
M2 ict / the debate. Leaders set a harsh tone. Gokhale damned judicial review as
Ae «~~ undemocratic because what is democratically done by elected representa-
(iM... — tives ‘is set at naught by people who are not so elected ... We should
aie
wid 38 [ok Sabha Debates, Fifth Series, vol. 65. no. 2, cols 22-48.
afyw 39 Tbid., no. 3, cols 135-47. 3
40 During the parliamentary debate, A. R. Antulay outdid himself in praise of the Prime
Minister. She had ‘driven out of the Congress’ members who would not implement Nehru’s
socialist programmes. It had been left to Nehru’s ‘proud daughter, the daughter of the Indian
Nation, the daughter of India, ancient, present and future’ to bring into effect what Nehru
‘had visualized at Bhubaneshwar’. Parliamentary Debates, Rajya Sabha, vol. 98, no. 1, col. 61.
Antulay thought differently in an interview in 1994. Indira Gandhi wanted to be a
dictator, which is why in October 1976, she wanted a presidential system, Antulay said.
But you can’t be a dictator in a presidential system, he continued. I wanted such a system
for its checks and balances and to protect minorities and secularism through direct election
of a president.
 The Forty-second Amendment: Sacrificing Democracy to Power 383

follow it up (the amendment) by having a complete review and restruc-

turing of thejudicial system’.*! Swaran Singh Committee member C. M.
Stephen threatened more explicitly with Parliament’s powers now ‘with-
out any limit’, if the courts had the ‘temerity ... to defy ... [this] it will be
a bad day for the judiciary. The committee of the House is sitting with
regard to the enquiry into the conduct ofjudges ... We have our meth-
ods, our machinery.’4? If the law comes in the way of our doing things,
said Gokhale, Parliament must see that the law conforms to the aspira-
tions of the people. ‘It is for that purpose that even the fundamental law |
is being amended to see that no one at any time can say that anything
extra-constitutional was done, that something illegal was done.’*? Using
this definition of constitutionality, the law could again devour the law.
The Prime Minister, Borooah, and Antulay even had discovered a
judicial conspiracy. Antulay: “The conspiracy started in 1967 when the
Chief Justice (K. Subba Rao) resigned to contest’ for the presidency,
and it continued through the intervening years in attempts to thwart
Mrs Gandhi.** Borooah: ‘It is not the political belief of the judges ...
[I]t is the political ambition that entered by the portals of the Supreme
Court and judicial restraint and discretion escaped by the window’ when
a chief justice campaigned for the presidency.*? Mrs Gandhi: Justice
Subba Rao’s action ‘was a blatant indication, not only of the political
bias of some of the judiciary, but of their intention to be involved in-
and interfere in politics ... [I]t was symptomatic of the basic struggle ...
against everything that the Congress Party ... had advocated and
struggled for n+p
The amendment’s critics had opened fire immediately upon the bill's
introduction on 1 September. A Statesman editorial of 2 September said
15.
41 Parliamentary Debates, Rajya Sabha, vol. 98, no. 5, col.
been ‘judicial
Gokhale was on sounder ground when he said, also, that there had
really what the law of the
somersaults’ and ‘sometimes it was very difficult to understand
1, cols 49-65.
land is’. Lok Sabha Debates, Fifth Series, vol. 65, no.
confirmed the
A. Statesman editorial on 12 November said that Gokhale ‘has just
of the judicial system and
citizen’s worst suspicions ... [by] talking ofabasic restructuring
progress can be achieved’.
legal education rather than how socio-economic
that Gokhal e examine restructuring
Congress President Borooah already had suggested
thejudicial systefn.
42 1 ok Sabha Debates, Fifth Series, vol. 65, no. 8, col. 149.
34.
43 Parliamentary Debates, Rajya Sabha, vol. 98, no. 2, col.
no. 2, col. 63.
44 Parliamentary Debates, Rajya Sabha, vol. 98,
45 Tbid., no. 3, col. 40. |
138. The AICC later published a
46 Lok Sabha Debates Fifth Series, vol. 65, no. 3, col.
the bill in the Lok Sabha and the Rajya
pamphlet containing Mrs Gandhi's speeches on
Sabha.
 384 Working a Democratic Constitution

‘by one sure stroke the amendment tilts the constitutional balance in
favour of Parliament ... further strengthens the Centre, disciplines par-
ties, and circumscribes the judiciary’. Two days later, Krishan Kant wrote
to Congress (O) President Ashoka Mehta inviting him to nominate mem-
bers to a new group named the People’s Union for Civil Liberties and
Democratic Rights, formed several days earlier by V. M. Tarkunde and
others ‘to strive for the restoration and strengthening of civil liberties
and democratic rights’.4” Mehta obliged, and the People’s Union held
meetings and published statements. A similar organization, Citizens for
Democracy, published a major pamphlet.**A delegation including former
Attorney General and President of the Supreme Court Bar Association,
C. K. Daphtary, and R. K. Garg told the Prime Minister and the Law
Minister that the basic structure should be retained, although property
could be removed from the Fundamental Rights, and the anti-national
activities provision should be deleted because ‘an authoritarian or un-
scrupulous regime could abuse it’.49 ‘Women Oppose Changes in Basic
Law’ headlined the Statesman, reporting a meeting attended by such
prominent figures as Sardar Vallabhbhai Patel’s daughter, Maniben Patel,
Mrs A. K. Gopalan, and Mrs Madhu Limaye.*? Krishan Kant convened a
seminar sponsored by the National Committee for Review of the Consti-
tution, which adopted the ‘National Consensus Statement’ demanding
postponement of the bill and containing detailed criticisms of it.5! The

47 AICC (Congress (O)) letter to Working Committee members and others, including
text of Kant’s letter, 4 September 1976. Jayaprakash Narayan Papers, Third Installment,
Subject File 318, NMML.
48 Democracy and Constitution, Citizens for Democracy, Pune, 1976. The authors
were
S. P. Sathe, Principal of aPune law college, V. M. Tarkunde, and V. A. Naik, both former
judges of the Bombay High Court, E.M.S. Namboodiripad, and the chief
editor of the
Indian Express.
49 Statesman, 13 October 1976.
50 Statesman, 26 October 1976. Others present included Mrs K. Hingoran
i, Miss Rani
Jethmalani, Mrs Danial Latifi, Mrs Sushma Swaraj, and Miss Lily Thomas.
51 Present, among others, were Daphtary, Tarkunde, M. C. Chagla, H. V.
Kamath,
Sarvepalli Gopal (President Radhakrishnan’s son), Romesh Thapar, Mulk
Raj Anand, Nikhil
Chakravarty, A. K. Gopalan, E. M. S. Namboodiripad, Charan Singh, Soli
Sorabjee, S. L.
Saxena, and Era Sezhian. The Consensus Statement was published in pamphle
t form on 4
December: Nation-wide Demand for Postponement of Constitution Amendment
Bill, National Book
Centre, New Delhi, 1976. The pamphlet also included articles
by several of the seminar’s
participants.
Mrs Gandhi's supporters organized a meeting, parallel to
this seminar, named the
‘Convention on Constitutional Amendments’. Inaugurating
it, D. K. Borooah said that
laws made by the people should not be scrutinized by the
courts. Statesman, 17 October
1976.
 The Forty-second Amendment: Sacnficing Democracy to Power 385
Opposition presented a ‘Statement by Intellectuals’—with
five hundred
signatures—to the President, Prime Minister, Speak
er, and Chairman of
the Rajya Sabha on 25 October. It, too, called for postponeme
nt of the
bill on the ground that Parliament, having extended its own
life, was
morally barred from amending the Constitution.>2
Critics attacked the bill’s provisions individually. From jail, Madhu
Limaye wrote that Article 31D ‘will act as [the] grave-digger of freedom’ .°?
Others said it would ‘pave the way for virtual one-party rule’.°* The
expanded Article 31C ‘practically repeals’ the Fundamental Rights, said
K. Santhanam. Unfettered parliamentary supremacy, he said, ‘will make
for constitutional instability which will be exploited by revolutionary
extremists and even communal elements’.°° The provision allowing the
central government to send its forces unbidden into a state and control
them while there was ‘a gross encroachment’ on the state’s responsibility
for law and order, said Tarkunde.°® The ‘removal of difficulties’ provision
shows that ‘the central executive is also seeking to usurp Parliament’s
power to modify’ the Constitution, said the Nation-wide Demand.®” Critics
agreed that creating tribunals was desirable for speeding up the judicial
process, but feared that individuals appointed to them might be poorly
qualified and politically biased. M. C. Chagla pointed out that appeals
from tribunals to the high courts could be denied by legislation, forcing
‘a man wronged by a tribunal’ to go all the way to the Supreme Court in
Delhi to seek relief.°8
52 For the text of the statement and its signatories, see Nation-wide Demand, pp. 51ff.
Among the signatories were Daphtary, Sorabjee, Tarkunde, Raj Krishna, J. D. Sethi,
Chakravarty, Thapar, B. G. Verghese, Shanti Bhushan, Ajit Bhattacharjea, and Mrs Lotika
Sarkar.
Several days later, the Prime Minister’s supporters presented her with their own petition,
with five hundred signatures, saying the time to amend the Constitution was ‘ripe’.
53 Limaye, The New Constitutional Amendments: Death-knell of Popular Liberties, Allied
Publishers Pvt. Ltd., New Delhi, 1977, p. 15. Limaye dated the text 8 September 1976.
54 Respectively, ‘Consensus Statement’ in Nation-wide Demand, p. 3, and K. Santhanam,
‘Comments on the Constitution 44th Amendment Bill’, mimeograph, 7 September 1976,
Jayaprakash Narayan Papers, Subject File 318, NMML.
55 Santhanam, ‘Comments’, p. 6.
56 In Democracy and Constitution, p. 37.
57 Nation-wide Demand, p. 4. The Statesman called this clause ‘extraordinary indeed’.
_ 58 Chagla also objected that the arithmetic of the seven-judge bench for constitutional
cases would have an effect opposite to that intended. Said he, ‘Every court gives a decision
by majority, but under this Bill, by an odd quirk, the minority becomes the majority.’ Himmat
(a new magazine published in Bombay by Raj Mohan Gandhi, a grandson of Mahatma
Gandhi), date unknown. Chagla was speaking at a meeting organized by Citizens for
Democracy.
386 Working a Democratic Constitution
unist Party
With the judiciary under such heavy fire, even Comm
ing support.
Marxist statesman E. M. S. Namboodiripad gave it grudg
judiciary, he
My party has never subscribed to the supremacy of the
y judgements.
said, nor forgotten its class character and many reactionar
on the
‘But in a number of cases the judiciary has acted as a check
scrutinizing
arbitrary actions of executive authorities as well as in
rights of
legislative enactment with a view to checking whether the
citizens are being curtailed.’°9
,
The critics also offered positive suggestions for constitutional change
the
several of which would be incorporated in the Constitution under
d the
Janata government. The National Seminar Consensus wante
conditions for a declaration of emergency set forth in the Constitution
l
and recommended prescribing the limits within which Fundamenta
Rights could be suspended during an Emergency. Citizens for Democracy
proposed that emergency declarations and proclamations of President’s
Rule be justiciable; that suspension of the Fundamental Rights be
‘confined to the purpose of the Emergency’; and that the suspension of
the citizen’s right to seek enforcement of his rights ‘not have the effect
of suspending the rule of law’. It also recommended that preventive
detention be restricted to times when the country was ‘at war and for
purposes connected with the war ...’. Santhanam recommended
abolishing President’s Rule entirely, with elections to follow the fall of
a state ministry. Regarding the amending power, Citizens for Democracy
and the National Seminar Consensus focused on the basic structure
issue. The latter wanted a proviso added to Article 368 that no amendment
could alter the basic structure. The former said there should be no
alteration of the basic structure without a referendum.

S. P. Sathe, otherwise a critic of the bill, favoured this provision, saying it would act as
a check on the ‘excessive invalidation of laws by the courts’. Sathe, S. P. ‘The Forty-Fourth
Constitutional Amendment’ (Bill), in Sathe, et al., Democracy and Constitution, p. 23.
59 £. M. S. Namboodiripad, ‘Amendment—in What Direction’, Indian Express 26
October 1976, later published in Democracy and Constitution, p. 53. Some years earlier,
Namboodiripad had been prosecuted for contempt of court for referring to the class
character of judges.
60 For recommendations of the National Seminar Consensus and K. Santhanam,
see, respectively, Nation-wide Demand, p. 6 and Comments on the Constitution Amendment Bill.
For Citizens for Democracy recommendations, see ‘On Amending the Constitution’ of
June 1976 recirculated on 11 September 1976. Jayaprakash Narayan Papers, Subject File
318, NMML.
The documents of all three called for an independent judiciary—free from executive
patronage, said Citizens for Democracy. It and the National Seminar Consensus wanted
an improved Election Commission, with impartiality to be achieved, said the latter, by
 The Forty-second Amendment: Sacrificing Democracy to Power 387

In Parliament, the critics had few voices with which to challenge the
government. P. G. Mavalankar, gentlemanly, dignified, devotee ofShiva,
and spiritedly independent throughout the Emergency, called the
amendmenta ‘Constitution Alteration Exercise ... a dishonest move on
the part of the governmenv’.®! Mavalankar also pointed out that the
government was acting contrary to Gokhale’s praise for the Constitution
of just three years earlier. Then, Gokhale had said that the courts’ use
of the writ jurisdiction to protect fundamental rights had “produced ut mi
socially desirable consequences ... [keeping] a check on government... (4”
{and demonstrating] to the conviction of the common man that he
was under a government of law and not of men... . [T]he Constitution
has stood the test of time remarkably well,”’ Gokhale had said.®?
Krishan Kant, who until then had boycotted the session, rose to give a
stirring defence of democracy. Speaking, he said, on behalf of
Congressmen for Democracy, the Congress(O), the Jana Sangh, and the
Bharatiya Lok Dal, he attacked those who claimed there is no basic vw
structure. They are declaring ‘that they have no basic framework of values
and objectives ... [A]ll principles, values, and institutions can be moulded
or subverted to suit their interests’. Mrs Gandhi’s claim of power for the
parliamentary executive is a ‘proposition to transform the Divine Right
of Kings into the Divine Right of Parliament’, he said. And ‘those who
ridicule the concepts of checks and balances are speaking the language
of authoritarianism’. Finally, Kant attacked the government's
‘propounding that the Fundamental Rights are not fundamental’, and
the ‘sinister philosophy ... that as the interests of the society are superior
to the interests of the individval, they are justified in taking away the
fundamental rights of individuals ...’. The government was saying in clear
language, he concluded, that the ‘people’s rights have no place when a
dictator wants to take up a programme’.°?

having members appointed by a threesome of the Prime Minister, the Chief Justice of
India, and the leader of the Opposition in the Lok Sabha. Members of the commission
should be enjoined from accepting government jobs after retirement. Citizens for
Democracy recommended that governors be appointed by the same method.
61 Lok Sabha Debates, Fifth Series, vol. 65, no. 3, col. 95.
62 Gokhale’s introduction, ‘The Constitution in Operation’, in The Constitution of
India: Commemorative Edition, Lok Sabha Secretariat, New Delhi, 1 January 1973.
63 Parliamentary Debates, Rajya Sabha, vol. 98, no. 2, cols 78-96. Final quotation from
col. 88.
Congresswoman Purabi Mukherjee interrupted Kant, saying to the presiding officer
ic and
look at the patience with which we are listening. ‘This shows we are too democrat
his party is taking advantage of democratic institutions.’
388 Working a Democratic Constitution

It was no use. The Rajya Sabha passed the Forty-second Amendment

on 11 November 190 votes to nil, with no changes to the version received
from the Lok Sabha. There, all but eight of the over six hundred
amendments to the amending bill had been dropped or defeated during
the second reading. Most of the bill’s clauses were adopted by votes of
360 to three, and the bill passed by 366 to four. After ratification by
thirteen of twenty-two state legislatures, the President signed the
amendment on 18 December 1976.
The previous month, on 5 November, the Lok Sabha again had
extended its own term, until 18 March 1978. Law Minister Gokhale
told the House this move is in the larger interests of the country and
‘to protect that democracy which you want and which I want’.®4
Ten weeks later the Prime Minister called elections—for reasons to
be considered in the next chapter.

Conclusion

Contrary to many countries newly independent after World War II, which
were born authoritarian or soon became so, Indian democracy flourished
in its first twenty years, its roots from the pre-independence, nationalist
movement growing ever stronger. This was so even while Nehru and others
occasionally showed ambivalence about the effectiveness of a democratic
constitution for fostering social revolution and preserving national
integrity. By 1970, many of the ‘tall poppies’, as some longingly recalled
them, had died, and the political influence of those remaining was
withering. From 1970, impatience increased with the imperfections to
which all democracies are subject, and with frustration and shame over
slow implementation of social revolutionary programmes. The casualness
toward democratic institutions that became popular within government—
among those believing that social-economic reform should be pursued
even at the expense of democracy—initially did little harm, but a
tolerance toward authoritarianism developed, culminating in the events
of 25-6 June 1975. The Emergency and the Forty-second Amendment,
with Mrs Gandhi's justification of them in nationalist, unity—integrity,

64 7ok Sabha Debates, Fifth Series, vol. 65, no. 11, col. 70.
The Prime Minister did not bring the extension before the cabinet, according to
cabinet member Jagjivan Ram in an interview with columnist Satinder Singh. Satinder
Singh Papers, National Institute of Panjab Studies, New Delhi.
The Congress Legislature Party in Andhra Pradesh, led by Mrs Gandhi's reliable
chief minister, Vengal Rao, had called for an extension on 25 October. Statesman, New
Delhi, 26 October 1976.
 The Forty-second Amendment: Sacrificing Democracy to Power 389
and social revolutionary terms joined classic examples in Italy and
Germany of socialist-nationalist rhetoric put at the service of the
authoritarian intentions of a few.
Yet there were peculiarly Indian twists to this dictatorship and its
product. Without minimizing the dictatorial character of the Emergency,
the popular fears it engendered, the jailing of over one hundred thousand
‘enemies’, the brutality of Sanjay Gandhi's sterilization and slum clearance
programmes, and the terrorizing of Parliament into obedience, the
Emergency had its limits. Considerable individual and political freedom
existed within it, ideological purity was not demanded, opponents were
not shot. And the Forty-second Amendment, with all the evils here
described, did not abolish the Supreme Court; left the judiciary with
considerable powers; did not end the elections and legislatures of
representative government; and did not abolish the Fundamental
Rights. Even under the amendment, there would have existed genuine if, <p

“tk
Uv
Oe rf eo”)
potential for its electoral overturn. All sense of democratic restraint ot
had not deserted its drafters, although it may have deserted Sanjay «™ 4

«
Gandhi and his coterie. ae

Unfortunately, there was no social-economic reform to compensate ro)

for the absence of democracy. Despite the enormous power the Prime
Minister and her government had, ‘it was unmistakable that Mrs Gandhi
did not intend to use the new powers to usher in a social revolution.’
‘(T]he ruling party had become more than ever dependent upon the
very local elites it was presumably committed to displace in order to
carry out its “growth”-oriented volicies.’®°
The especially Indian-twist was the country’s return to democracy,
the triumph of the national democratic ethos, indeed of the Congress
Party ethos. For, as will be seen in Part IV, Congress members of
Parliament voted with the Janata government to repeal much of the
Forty-second and the other Emergency amendments. Already, in the
autumn of 1976, some Congress members, in Parliament and outside,
had doubts about the amendment and ‘were going sour’ on the
Emergency’s excesses and corruption—realizing that these could cause
them difficulty when next they faced elections.”

65 Frankel, Political Economy, respectively pp. 570 and 561.

66 Y_N. Gadgil and Margaret Alva in interviews with the author.
Congress propagandists saw it differently. ““[T]he political landscape of India is aglow
with the people’s enthusiasm and determination to build a new world rid of poverty and
backwardness,”’ said the political resolution adopted at the Congress Plenary Session at
Guwahati 21-2 November 1976. AR, 16-20 December 1976, p. 13499.
390 Working a Democratic Constitution
Thus India’s flirtation with dictatorship mercifully was brief. In
retrospect, the ugly experience may have been the saving of democracy
in ways not thought of by the Prime Minister when she told Parliament
that the Emergency was not to destroy the Constitution but ‘to preserve
and safeguard our democracy’. It taught Indians about the dangers to
democracy that lurk anywhere: of demagoguery, of leaders uncaring of
liberty, of hero-worship and placing power in the hands of a few, of the
dangers from citizen abdication of responsibility. Like the ‘McCarthy
period’ in the United States, it taught that vigilance would be the price
of its not happening again.
Finally, there was a lesson about the seamless web. Congress
governments’ failures vigorously to pursue the social revolution—which
let that strand of the web go slack—weakened the democracy strand
and underlay the rationalization for the Emergency’s negation of
democracy. Opposition parties’ long-standing inability effectively to
perform their function in representative government also had weakened
the democracy strand and had been a provocation for the Emergency.
Similarly, democracy’s sacrifice in the name of protecting the national
unity and integrity strand damaged the web’s other strands. Memories
of the amendment’s extension of New Delhi’s emergency powers would
help to fuel the ‘constitutional revolt’ of state governments in the 1980s
after Congress’s return to power (Part VI).
Mrs Gandhi’s wrenching of the seamless web brought the repudiation
of the Emergency, her government’s downfall, and the repeal of the
Forty-second Amendment. So was proved what the founding fathers knew:
that the character of the country depended upon the integrity of the
web, which depended on the health and strength of its individual strands.
 Part IV

THE JANATA INTERLUDE:

DEMOCRACY RESTORED

When a shirt is dirty, change it.

Village saying
The clouds of fear ... have lifted.
Prime Minister Morarji Desai!
[The government will enact a] comprehensive measure ... to amend
the Constitution to restore the balance between the people and
Parliament, Parliament and theJudiciary, the Judiciary and the Executive,
the States and the Centre, the citizen and the government... .
Acting President B.D. Jatti?

! In his first broadcast to the nation as Prime Minister, 4 April 1977. AR, 14-20 May
1977, pp. 1374-6.
2 In his address inaugurating the new Parliament, 26 March 1977. Ibid., 23-9 April
1977, p. 13709.
 al . =) Me ui ve “ oT
a

x ar ‘eginlans mies. Te iD
races

tice
Spire Pylegs cy See waive <7) Oiler

aE
>

i‘ tor cbie n la
+

sf ouse) 232s +s ee

: ol
E :life
i mn LA Ths (AE
» if ge, ti “FH,

- idtiatelmidMAAC
UT a tu Q ford OC tie
ty

share wT are bos thie ; rer

Tis

i weeds soviet on
: é > ri “4 ce pine “4 t 22 Caelarise

(at mao WF Th i JSUT yO aes ms ie SOCaee remy! thy cw

¥
< *- ~ - a+
wl Oa

~~ BtAWE os dale Spee ee ree oe

. Sa
33 Wee SG Wists Se @ sic? tr eer carne
-. yee eee aiirie “ni See ace eer ris bres siqngchialbcis

u ere eep aie sroar etchant :

nig Uiih-e esews |)yodetimie ef cw Telia upsweber E eee Ca
iidetiMieel He ‘ane efcnts Ce weet SoetranOns arlie :

i C22. 0c Mitr Pree ie age Ve) i“sAe:

Sty ae as ‘my oF tas cn we?) saga
Pais F erigece s. herogovcr rar ars veel, qoug te jad a
ae Stina es HUTS wn oun ea
- nevherey. * tel coun! dee
es ees ae
17 tem aif ; ve
t¢ "2k mud" sorna attics domrde

Sl >
——-_

aoe

7 a
Jétr 02-2 FTE)
? feet? osetia
'
>

>< Wehfier wen Of pei ee

2s
n mar “i
a v4
1 Ge
‘ )
 Chapter 18

INDIRA GANDHI DEFEATED—

JANATA FORMS A GOVERNMENT

In Delhi, everyone knew. The tonga-wallahs clucking to gaunt horses

knew. The autorickshaw drivers dodging through traffic knew. The push-
cart sellers with their mounds of oranges knew. The stringers of marigold
blossoms before the temples, and the men, haunches on heels, puffing
their didis knew. That is, everyone knew except the Prime Minister and
her followers.
They knew that Indira Gandhi would be defeated in the elections
called for March 1977 and that her son, his coterie, and his bullies would
go with her. Their own feelings told them so and they sensed the loathing
of the Emergency and its excesses that was rising like magma before a
volcanic eruption.
The Prime Minister’s defeat would usher in the country’s first national
coalition government, made up of five parties, four of which had formed
the Janata Party. This coalition would restore the Constitution and much
democratic practice under it, although in several instances acting unwisely
on matters touching the Constitution. It would collapse within two years
from savage internal strife that .tself would test constitutional institutions.
Janata succeeded in saving the nation while losing its soul. These matters
are the subject of the following four chapters. This chapter will describe
the elections and their background, consider why Mrs Gandhi called
them, and describe the new government’s formation in the context of
the time.
The Prime Minister announced the elections to a surprised public on
18 January 1977, although Parliament’s extension of its term the previous
November made elections legally unnecessary. She had met the President
twice that day, the second time, according to press reports, after an
emergency meeting of the cabinet had approved dissolution of the —
Sabha, which President Fakhruddin Ali Ahmed ordered the next day.!
1 According to Jagjivan Ram, Mrs Gandhi informed the cabinet about calling the
election, but members ‘were never consulted’ beforehand. Columnist Satinder Singh’s
interview with Ram, undated, but likely February 1977, Satinder Singh Papers, National
Institute of Panjab Studies, New Delhi.
394 Working a Democratic Constitution

Parliamentary government, Mrs Gandhi said, ‘“must report to the people

>

and seek sanction for its programmes and policies. She appealed to
political parties to “eschew and refrain from vilification and calumny”’.”
The Hindustan Times editorial said the announcement ‘vindicates, as
nothing else could, her unswerving commitment to democratic
principles’.?
Mrs Gandhi called the elections because she expected to win them.
Yet it is doubtful that this was her only motivation and the whole truth
continues hidden in the mystery that was the lady. She acted frorn a
compound of motives and reasons, according to individuals associated
with her and observers Indian and foreign. As to expecting to win, the
Intelligence Bureau assured Mrs Gandhi that she would, and her
courtiers, even had they had doubts, were unlikely to have been
discouraging.4 Many may have believed in victory, because they were
not fully aware of the degree of popular alienation. ‘Censorship defeated
us, we did not know what was going on,’ recalled Ambika Soni, a
sentiment shared by A. R. Antulay.° It has been suggested that the Prime
Minister acted from other motivations: a genuinely democratic attitude
inculcated by her father; a desire to be viewed by history as having deep
sensitivity to the wishes of the Indian people (which she certainly had);
and a sense that her own ‘legitimacy’ and the ‘gains’ of her Emergency
were being eroded by its excesses—which belatedly were coming to
her attention. Also, persons of democratic sensibilities like P. N. Dhar,
her Principal Secretary since 1971, and cousin B. K. Nehru were urging
her to call elections. There have been hints that Mrs Gandhi ended the
Emergency to rein in son Sanjay (to whom she remained devoted) and
his coterie because their advocacy of continued authoritarian rule

2 AR, 19-25 February 1977, p. 13597.

As late as 4 January, Mrs Gandhi had told a Bhubaneshwar meeting that it was not yet
time to lift the Emergency. The previous day the Minister of State for Home Affairs, Om
Mehta, had denied rumours that an election was in the offing. Hindustan Times, 4 January
1977. But that one was coming would seem to be evident from Sanjay Gandhi's telling a
Congress Party meeting that members should not ask for tickets on the basis ofcaste. Ibid.,
5 January 1977.
3 Issue of 19 January 1977.
4 Evidence from interviews with persons who had been on Mrs Gandhi's staff or were
otherwise well informed indicate that at least two IB assessments predicted victory. One
other assessment predicted she would lose, but this came at the last moment and may
have been an IB attempt to have it both ways. The negative assessment is also reported in
Jayakar, Indira Gandhi, p. 313. Reliable individuals in a position to know continue to
disagree about what the IB was telling the Prime Minister.
5 In interviews with the author.
 Indira Gandhi Defeated—Janata Forms a Government 395
threatened her personal political ascendency and the reputation of
devoted democrat she hoped to preserve. All these calculations seem
to have combined to produce the Prime Minister’s decision that the
time had come to renew her ‘mandate’.®
The elections held between16 and 20 March dealt the Congress Party
a massive defeat almost everywhere. It deprived the party of all its seats
from Bihar and Uttar Pradesh and damaged it badly in Gujarat, Haryana,
Himachal Pradesh, Jammu and Kashmir, Madhya Pradesh, Maharashtra,
Kerala, Orissa, Punjab, Rajasthan, Tamil Nadu, West Bengal, and the union
territory of Delhi. Congress fared well in Andhra Pradesh, Karnataka,
Manipur, and Assam. Of the 542 seats in the Lok Sabha, the Janata Party
won 270 and its closest ally, the Congress for Democracy, twenty-nine.
The Congress won 153 seats.’ The Prime Minister herself lost in Rae
Bareilly by 55,000 votes—to none other than Raj Narain. Son Sanjay lost
his bid for a Lok Sabha seat by over 75,000 votes. Thirty-four central
government ministers were defeated, including H. R. Gokhale (by Ram
Jethmalani), Swaran Singh, and Bansi Lal.® Acting President B. D.Jatti—
President Ahmed had died of a heart attack (in his bathtub) on 11
February—accepted the resignation of the Congress government on 22
March and asked it to continue in office until the new government was
formed. Mrs Gandhi accepted defeat graciously, saying the collective
judgement of the people must be respected. Her last major official act
was to have Jatti on 21 March revoke her Emergency.

Opposition Attempts at Unity

The Prime Minister’s massive defeat was caused by more than a reaction
to the authoritarian rule of the Emergency. Her political opposition had

6 A senior official in the Prime Minister’s office recalls that she had become anxious
about the direction being taken by Bansi Lal and son Sanjay. Interview with the author.
And B. K. Nehru has written that, in the context of the 20 October resolutions, Mrs
Gandhi announced elections ‘giving Sanjay no time for further manipulation’. Nehru,
Nice Guys Finish Second, p. 365.
7 Other parties’ winning were: CPI, seven; CPM and AIADMK, twenty-two each; DMK,
one; the Akali Dal, eight. The remaining seats were shared by other small parties and
independents.
8 AR, 23-29 April 1977, p. 13697. See also India Backgrounder, vol. 1, no. 52, 28 March
1977.
Defeated ministers of state ingluded K. C. Pant, Pranab Mukherjee, V. N. Gadgil, V.
C. Shukla, Chandrajit Yadav, at P. Maurya. Many deputy ministers lost their seats.
Among the members of Mrs Gandhi's government who survived were Brahmananda
Reddy, Chavan, Subramaniam, T. A. Pai, Karan Singh, and Seyid Muhammad.
396 Working a Democratic Constitution

organized itself far more rapidly and effectively than she—and opposi-
tion politicians, themselves—expected. Her opponents began small steps
toward resolving policy and organizational issues even during the late
autumn of 1976. Striving for common cause were those released from
detention early—Charan Singh, Piloo Mody, Surendra Mohan, Ashoka
Mehta, Biju Patnaik, and Jayaprakash Narayan (released due to illness
on 12 November 1975); those not imprisoned—several of whom were
members of Parliament; and even those in jail, who communicated in
open and smuggled letters and underground publications. Personality
frictions and disagreements over ideology and tactics made these begin-
nings prickly. Particularly touchy was whether or not the other parties
ought to have any truck with the militant Hindu RSS and its political
arm, the Jana Sangh.°
Opposition unity seemed within reach in November 1976 and in
December discussions had progressed to the point that H. M. Patel, of
Charan Singh’s Bharatiya Lok Dal Party (BLD), could announce that
the BLD, the Samyukta Socialist Party, the CPM, and the Congress (O),
led by Ashoka Mehta, had agreed on policies and programmes.!° Mehta
had written to Mrs Gandhi in October and November appealing to her
to restore normal conditions—a move disliked by SSP members Madhu
Limaye and George Fernandes, who opposed any dialogue with the Prime
Minister. Her reply of 23 December brushed off Mehta’s overture by
blaming the imposition of the Emergency on the Opposition and saying
that for there to be dialogue, the Opposition must give evidence of its
““genuine acceptance”’ of the changes wrought during the Emergency.!!
Five days before this, the Forty-second Amendment to the Constitution
had become law.
With the 18 January announcement of elections, events moved

9 For an exhaustive, well-documented account of opposition unity efforts during the

Emergency, see Limaye, Madhu, Janata Party Experiment, vol. 1, chs. 8-11, especially. For a
description of a meeting of opposition figures in March 1976 and those attending, see
ibid., p. 124.
See also Sharma, Dhirendra, The Janata (People’s) Struggle, A Philosophy and Social
Action Publication, New Delhi, 1977. This is a narrative account and contains documents
and letters of the period. A number of the documents protest government actions taken
during the Emergency.
On 16 January, two days before Mrs Gandhi announced elections, Charan Singh
wrote to Narayan that we must accept dialogue with Indira and asking if they should
contest any elections, which he doubted would be free and fair. Jayaprakash Narayan
Papers, Third Installment, Charan Singh File, NMML.
10 Limaye, Janata Party Experiment, vol. 1, p. 174.
Il Ibid., pp. 185-6.
 Indira Gandhi Defeated—Janata Forms a Government 397
rapidly. That day, the government released L. K. Advani and A. B. ff
Vajpayee of the Jana Sangh and Morarji Desai from the detentions begun
eighteen months earlier. Desai, with no money and no transport, told
an officer that he would not leave ‘““as long as the government did not
provide transport to go to my residence in Delhi from where they had
arrested ... me”’. The district magistrate provided a car.!* Two days later,
the government announced the ‘relaxing’ of the Emergency to allow
‘normal’ political activity. There were to be no detentions under the
Maintenance of Internal Security Act and the Chief Censor was ordered
to stop functioning.
Descended from the Janata Front, which, led by Morarji Desai and
Jayaprakash Narayan, had challenged Mrs Gandhi during the months
leading to the Emergency, the Janata Party declared itself formed on 23
January 1977. Morarji Desai was chairman, Charan Singh deputy chairman
and the three general secretaries came from among the member parties,
which were the Jana Sangh, the BLD, the Congress(QO), the tiny ‘rebel’
Congress, and the Samyukta Socialist Party. The Swatantra Party said that
it proposed to join, and the Congress for Democracy declared itself
Janata’s ally.!> Narayan, as the party’s spiritual leader, opened its election
campaign, saying that the choice for voters was between ‘democracy and
dictatorship’. Narayan promised that Janata would revive the independent
institutions of democracy and involve the people in decision making
through decentralization. The Communist Party Marxist , which had not
joined the Janata coalition but would support it, announced that it was
the only left and democratic alternative to the Congress.
Critical to the outcome of the elections, and later to the formation of
the new government, were breakaways from the Congress-veteran Jagjivan
Ram’s departure and formation of the Congress for Democracy (CFD)
on 2 February being the most significant of these.!4 The day of his resig-
nation Ram told a press conference that he could not remain with an
‘establishment’ that concentrated power ‘in a coterie or even an indi-

12 Desai’s diary account in Gandhi, Arun, The Morar Papers, Vision Books, New Delhi,
1983, p. 45. Congressmen Mohan Dharia and Chandra Shekhar (expelled from the party
in 1975) had been released six days earlier. Raj Narain would not be released until 7 February.
13 The three general secretaries of Janata were L. K. Advani of the Jana Sangh, Surendra
Mohan of the Socialist Party, and Ram Dhan of the Congress (O). Anational committee of
nearly thirty members would take decisions. Among its members were Ashoka Mehta, A. B.
Vajpayee, Biju Patnaik, C. B. Gupta, Chandra Shekhar, H. M. Patel, Sanjiva Reddy, Nanaji
Deshmukh, N. G. Goray, Karpoori Thakur, and Shanti Bhushan.
14 Three days before this event, the Intelligence Bureau had passed to Om Mehta,
still Minister of State for Home Affairs, a rumour that Ram might defect, but it was not
taken seriously. Nayar, The Judgement, p. 165.
 398 Working a Democratic Constitution
vidual’, that wanted to perpetuate itself in power by extraordinary means,
and in a party that ‘had virtually ceased to be a democratic organization’.
In terms of ideology he was still a Congressman, he said. He invited other
Congress members to join him to end the “totalitarian and authoritar-
ian trends that have oflate crept into the nation’s politics”’. Mrs Gandhi
responded that she failed to understand how Ram could make ‘whole-
sale allegations’ against the government after having been ‘actively and
directly associated with every decision’ in the government and the
party!°—including, she might have added, moving in the Lok Sabha the
resolution approving the Emergency. Two former Congress chief minis-
ters joined Ram: H. N. Bahuguna, of Uttar Pradesh, ousted by Mrs Gan-
dhi in 1975, and Nandini Satpathy, ousted from Orissa the previous De-
cember. K. R. Ganesh, an ex-minister ofstate, and others also defected to
Janata. The Prime Minister received a further jolt when her aunt and
J Nehru’s sister, Madame Pandit, came out of retirement to campaign for
ending ““the authoritarian trend which has grown to vast proportions”
and for putting the country “back on the rails of democracy”’.!®
The day after Jagjivan Ram’s departure from the Congress, President
Ahmed promulgated an ordinance establishing the body that would hear
any disputes arising from the parliamentary elections, including Mrs
Gandhi's contest for re-election. Using the Thirty-ninth Amendment’s
new Article 329A, the body was to be that recommended by the Swaran
Singh Committee: nine members, three elected by the Lok Sabha, three
by the Rajya Sabha, and three nominated by the President. As pointed
out earlier, this could put Mrs Gandhi in a position to adjudicate any
challenge to her own or her party colleagues’ elections. A Congress elec-
toral majority would assure that the first six members of the body would
be Congressmen. And, with the President having to act on the advice of
his council of ministers, the final three also would be Congressmen.
Even if one or two non-Congress members were elected, Mrs. Gandhi
would be sure that she dominated this ‘authority’.!7 Two days later,

15 Mrs Gandhi's letter was dated the same day. See AR, 19-25 March, 1977, p. 13641.
For Limaye’s account of these events, see his Janata Party Experiment vol. 1, pp. 21 7ff.
16 AR, 19-25 March 1977, p. 13645.
17 This was the Disputed Elections (Prime Minister and Speaker) Ordiance, 1977.
The President promulgated a second ordinance that day, the Presidential and Vice-
Presidential Election (Amendment) Ordinance, 1977, which established a similar
authority to decide any dispute arising in the elections of these two officials. Of the nine
members of this second body, three each were to be elected by the Lok Sabha and the
Rajya Sabha, and there were to be three nominated members: the Chief Justice of India,
ora retired chief justice, a second person, and a third person knowledgeable about election
 Indira Gandhi Defeated—Janata Forms a Government 299

the Election Commission issued a twenty-three point code of conduct,

which said that election activities should not aggravate existing differ-
ences, create mutual hatred, or cause tension between castes and com-
munities.
The various parties issued their election manifestos between 8 and 21
February with Mrs Gandhi’s Congress firing first. The five thousand word
text, after recapitulating Congress achievements over the decades,
blamed opposition parties for the Emergency and said that “with order
and discipline restored, and dynamic and mutually reinforcing socio-
economic programmes ... being carried out”’ elections could be held.
The Forty-second Amendment had been enacted “to overcome the
various obstacles put by economic and political vested interests, and not
for the purpose of increasing the power of the executive at the expense
of the judiciary or the legislature”’. The manifesto concluded with its
slogan of the 197] election: ““poverty must go, disparities must diminish
and injustice must end.”’!® As to the opposition’s campaign speeches,
Mrs Gandhi said that the ““votaries of the rule of the jungle”’ were now
9

parading themselves ““as the saviours of democracy in the country”’.!9

The Janata Party’s manifesto of 10 February, double the length of
Congress’s, contained three ‘charters’: political, economic, and social.
The former promised to release the people “from the bondage of fear”’
by lifting the Emergency proclamations of 1971 and 1975; to repeal MISA
and the law preventing the publication of parliamentary proceedings; to
rescind the ‘“anti- democratic Forty-second Amendment”’; to restore
fundamental freedoms, including that of the press; and to release
Emergency detenus. The thirteen-point economic charter promised to
delete property from the Fundamental Rights, although leaving it as a
statutory right; called for affirmation of the right to work and full
employment and putting an end to destitution within ten years; and said

t, vol. 1, p. 223.
law. See Times of India, 4 February 1977, and Limaye, Janata Party Experimen
nt, the ordinances lapsed
Due to Mrs Gandhi's defeat and the election of a new Parliame
and were not replaced by legislation.
18 Zaidi, Encyclopaedia of the Indian National Congress, vol. 24, pp. 359-72.
intended to
In actions taken during the previous two months, which may have been
ent extende d the
bolster Congress’s support, were an election to be held, the governm
particip ation in
ban on cow slaughter to much of the country, announced that worker
d to the public sector;
management—long a staple Congress promise—would be extende
in India, persons convicted
and announced that, for the first time in the history of elections
contesting an election for six
of an ‘untouchability offence’ would be disqualified from
with the British in the 1940s
years. Also, Mrs Gandhi attacked the CPI for collaborating
and for attacking Sanjay Gandhi's five point programme.
19 Hindustan Times, 1 March 1977.
400 Working a Democratic Constitution

agriculture would be given primacy. The fifteen-point social charter called

for reform of education and the eradication ofilliteracy.?°
The Congress for Democracy’s manifesto—it was contesting separately
from the Janata Party coalition— was the last to appear. Released by H.
N. Bahuguna, it promised judicial enquiries into the ‘“administrative
excess”’ of the Emergency and abolition of arbitrary and anti-democratic
laws.2! In other manifestos, the Dravida Munnetra Kazhagam (DMK)
claimed to be the first party to oppose the Emergency openly. It demanded
non-secessionist autonomy for the states. The Communist Party of India,
inching its way toward its later confession of error for its support of the
Emergency, said that after initial good deeds, the Emergency had been
used against the working class and had fostered authoritarian trends and
extra-constitutional methods. The Communist Party Marxist manifesto
bitterly attacked the Emergency and reiterated its long-standing economic
programme of further nationalization of industry, banning multinational
corporations from entering India, including private foreign investment,
and incorporating the right to work in the Fundamental Rights.2* The
party declared that it would support Janata to avoid dividing the
opposition.

Creating One From Many

On 24 March 1977, two days after Mrs Gandhi’s government had resigned
and she had assumed a caretaker role, Morarji Desai took the oath as
Prime Minister. At a later press conference with Jayaprakash Narayan
beside him, he promised to accept Narayan’s advice and said that Janata—
one party now, he asserted, no longer a group of parties—would make
the people fearless and preserve democracy. At dawn, newly elected
members of the Lok Sabha took a pledge at Rajghat, Mahatma Gandhi's
cremation ground, to uphold the rights of the people, to give the best to
the weakest, to promote national unity and harmony, and “to practice
austerity and honesty in personal and public life”’.*° The next day the
Lok Sabha elected Neelam Sanjiva Reddy the Speaker. Congress members
re-elected to the Lok Sabha, as they became the official Opposition,
elected Y. B. Chavan their leader. On the occasion, he characterized
Congress’s defeat as not against the party, but directed at the harsh

20 AR, 26 February—4 March 1977, p. 13614 and Limaye, Janata Party Experiment, vol.
1, pp. 295ff.
21 AR, 19-25 March 1977, p. 13643.
22 Ibid., pp. 13645ff.
23 AR, 23-29 Apnl 1977, pp. 13704ff.
 Indira Gandhi Defeated—Janata Forms a Government 401
implementation of its policies. Election of a President came in July,
and Sanjiva Reddy moved to Rashtrapati Bhavan, to be succeeded as
Speaker by K. S. Hegde, one of the superseded judges of 1973. Except
for the matter of the governments in the states, many of which were still
in Congress's hands, the Janata government was in place.
Creating a government had not been easy. Jayaprakash Narayan and
AcharyaJ.B. Kripalani were asked to resolve the impasse over whom should
be prime minister, selecting by consensus from among the competitors—
Morarji Desai, Charan Singh, andJagjivan Ram. They failed. The Young
Turks and others supported Jagjivan Ram. The Congress(O) and Jana
Sangh preferred Desai. The BLD and others supported the BLD leader,
Charan Singh. With no candidate’s supporters dominant, Jayaprakash
Narayan settled on Desai, reportedy having persuaded Ram not to
oppose Desai in return for a senior cabinet position. Ram was miffed.
He had national stature and thought himself a worthy candidate, and
he disliked Desai as much as Desai disliked him. But he was unrealistic
in expecting that his having moved the Lok Sabha resolution endorsing
the Emergency and having served in the Emergency. cabinet would so
readily be forgiven. Charan Singh was more than put out. Having expected
to be Prime Minister, he wished to be Deputy Prime Minister, but Desai
denied him this. Appointed Home Minister, Charan Singh—frustrated
and bitter—eventually would unseat Desai. ‘[S]ome of [the] senior
colleagues never reconciled with this decision ... from the very first day
. till the last day ... this discontent continued,’ recalled Chandra
Shekhar, later Janata Party president.4
Selecting a council of ministers was hardly easier. The coalition’s
constituent parties had to be satisfied, or at least placated, with positions. nam
Because they would not submerge their conflicting interests and
identities for the larger cause, quota system for portfolios was arranged
even though this produced a ministry of ill-fitting personalities and
political orientations. On economic issues, there was some kinship
among Finance Minister, H. M. Patel, once a Swatantra Party member,

24 Chandra Shekhar Oral History Transcript, p. 2, NMML.

One of the Janata Party's general secretaries, Ram Dhan, resigned over Desai’s
selection, asserting—in a letter to Desai, who at the time was still chairman of the Janata
Party—that the process had been in the dictatorial manner of the Congress. AR, 23-29
April 1977, p. 13706. For Desai’s refusal of Charan Singh as deputy prime minister, see
Limaye, Janata Party Experiment, vol. 2, p. 66. For the formation of the government
according to Limaye in his diary, see ibid., vol. 1., pp. 240-60, and Limaye, Madhu, Cabinet
Government in India, Radiant Publishers, New Delhi, 1989, pp. 137ff. Also see Hindustan
Times for the period and Nayar, Judgement, pp. 183ff.
 402 Working a Democratic Constitution

and Minister of Information and Broadcasting L. K. Advani and External

Affairs Minister A. B. Vajpayee—from the Jana Sangh with its constituency
of shopkeepers, traders, money-lenders, and, to a lesser degree big
businessmen. But facing them were the ardent trade unionist George
Fernandes Minister at the Industry, socialist Madhu Dandavate at
Railways, Young Turk Mohan Dharia at Commerce, and other ministers
from the Congress (O) with socialist credentials. The government's
‘Statement on Industrial Policy’ did not depart significantly from the
1956 Industrial Policy statement, as Fernandes explained when he laid it
before Parliament in December 1977, but Charan Singh gave government
policy strong emphasis on developing villages, agriculture, and small,
even ‘tiny’, industry.*> Although Advani and Vajpayee were cooperative
members of the government, the Hindu nationalism of the Jana Sangh
bea \ and, more so, its connections with the militant RSS put them at odds
ev with the other, secularist cabinet members.2° Caste origins inflamed
wy" \
\ n“P several relationships, with Charan Singh, a Jat from Meerut, referring
b~ privately to Jagjivan Ram as that ‘Chamar’.2’ From the other parties’
points of view, the government was unbalanced in favour of the old
Congress, with its six ministers, including the three senior figures of Desai,
Charan Singh, and Ram. Finally, almost the only glue holding these
individuals and their parties togethey was a negative: antipathy for Indira
["Gandhi and her Emergency. Once democracy had been restored through
amendments to the Constitution, this was not strong enough to withstand
at |aeyw the differences among individuals and the factionalism the parties
brought with them from their years in the political wilderness. They were
po*
“(~ unable to adjust from having had little power and no responsibility in
Ge __the Opposition to, in office, having the heavy weight of both.
Once established, the Desai government declared its principal pur-
yar pose to be to restore the health of the democracy and other strands of
the seamless web. Two speeches set the tone. Inaugurating the new Par-
liament, Acting President B. D.Jatti said the election had demonstrated
that democracy had struck deep roots in India, and the people had given

25 Nirmal Mukarji, the Cabinet Secretary under the Janata Government, in an

interview with the author. See chapter 4 for mention of Charan Singh's position on peasant
land ownership.
26 The issue was alive even when the Janata Party was moribund. Mohan Dharia tried
at a party meeting in September 1979 to force the separation of the Jana Sangh from
Janata, and resigned from the party when he failed. Later, the party constitution would be
oe ed to exclude dual membership in Janata and communally oriented organizations.
Gandhi, Morarji Papers, p. 213.
 Indira Gandhi Defeated—Janata Forms a Government 403 ju*

a verdict ““in favour of individual freedom, democracy and the rule of ' aatt
sues
~

law and against ... a personality cult and extra-constitutional centres of ) ne Cat
< il

»)
power”’. He promised that his government would thoroughly review the te - f :
repressive laws of the Emergency and enact a ““comprehensive measure 3 gar LA
. to amend the Constitution to restore the balance between the peo- A ra)
ee and Parliament, Parliament and theJudiciary, the Judiciary and the Wd “Sf.
Executive, the States and the Centre, the citizen and the goverment we sail
...”’.28 The following day the government revoked the state of external er
emergency proclaimed in 1971, Mrs Gandhi having revoked her Emer- he
gency a week earlier upon losing the election.
Prime Minister Morarji Desai in a broadcast to the nation on 4 April
told his countrymen that ““the clouds of fear and uneasiness have lifted
. by a revolution of the people to restore democracy”’. He then
demolished the social revolutionary rationale for the Emergency. We were
told that the Emergency was necessary for discipline and economic
progress, he said, but “freedom and bread are noi competitive even ina
developing society.”’ Turning to the web’s national unity and eee icd
strands, Desai called the centralized state a menace to democracy and
said change must come in the villages. Echoing Narayan, Desai promised
to restore democratic institutions and spoke in Gandhian terms of
government’s responsibility to serve the people. The Prime Minister
concluded that Janata had pledged itself ““to present a united front to
the problems that are the legacies of centuries”’. a
Providing evidence of its democratic intentions, the government, for
the first time since independence, invited the leader of the parliamentary
Opposition to broadcast to the nation over All-India Radio. Y. B. Chavan,
who had become leader of the Congress Parliamentary Party, appealed
for national reconciliation in a speech given several day after Desai’s.
The Congress, he said, had “fully absorbed”’ the lessons of the Emergency
and would cooperate in building a new nation. ““The people of India
have shown tremendous political maturity and wisdom . .’”, Chavan said. wa
Later, the government would go further and grant the status of cabinet
minister to the leader of the Opposition in both houses of Parliament,
along with related allowances and privileges.
The Janata government's intentions were noble, its members able
men and women, and its record a paradox. It had remarkable success in

28 Speech delivered 26 March. AR, 23-29 April 1977, p. 13709—used as a superscript

for this Part.
29 AR, 14-20 May 1977, pp. 13734-6.
30 Thid., p. 13736.
 404 Working a Democratic Constitution
repairing the Constitution from the Emergency’s depredations, in reviving
open parliamentary practice through its consultative style when repairing
the Constitution, and in restoring the judiciary’s independence.*! But
its failures were dismal. It did not meet a government’s critical test of
survival, remaining intact only for sixteen months (chapter 22). In large
part because of this brief tenure, its social revolutionary accomplishments
were minimal. The JPP claimed that seven of the thirteen pledges in the
party’s economic charter had been implemented and eight of the fifteen
pledges in the social charter, but this was an overly-generous assessment.94
National unity was strengthened by the restoration of democracy and co-
operation with non-Janata regional parties, but the government’s
if injudicious dismissal of nine Congress state governments and imposition
of President’s Rule—reminiscent of Congress’s overcentralization—
damaged the sense of cooperative unity, while providing an example
Mrs Gandhi later would use against Janata (chapters 21 and 26). The
party’s promise of popular participation through decentralization did
not materialize, in considerable part because Desai was a strong
centralizer. Yet there was abundant participation during cabinet
meetings, although, as will be seen in forthcoming chapters, there were
disastrous instances of failure to communicate. The Prime Minister’s
style seemed to vary from accomodation with his colleagues if they spoke
frankly with him to being ‘unbending and in many matters quite
inflexible ... [H]e got himself isolated ...’.°3 The government badly
mA damaged itself by its attempted prosecution, which was both
mean-spirited and inept, of Mrs Gandhi for the Emergency’s excesses.
And Morarji Desai injected a smaller, yet still significant irritant by
allowing his son, Kanti Desai, to live in the Prime Minister’s house
while pursuing his own activities. This gave Charan Singh a stick with
which to beat the Prime Minister, which he did by leaking to the
press charges ofa scandal against the son.*4 And it gave rise to Madhu

31 The Janata Parliamentary Party (JPP) also instituted the practice, on H. V. Kamath’s
resolution, of allowing party members to abstain from voting with the government with
the JPP leader’s permission. The resolution also provided that the JPP leader (the Prime
Minister) should be a member of the Lok Sabha, not of the Rajya Sabha. AR, 10-16
September 1977, p. 13921.
32 Promises: How Many Fulfilled ?,Janata Parliamentary Party, New Delhi, undated (but
late 1978 or early 1979), especially pp. 3, 40.
33 Chandra Shekhar Oral History Transcript, p. 6, NMML. As Cabinet Secretary,
from this officer’s accustomed seat at the Prime Minister’s left, Nirmal Mukarji witnessed
this process, and drafted bare bones accounts of cabinet meetings.
34 Gandhi, Morarji Papers, pp. 214ff.
 Indira Gandhi Defeated—Janata Forms a Government 405
Limaye’s great aphorism of Indian politics, ‘“Politician’s progeny is a
curse.”’95
In getting itself organized, the Janata Party fared no better than the
government. The elections won, the organization established on 23
January needed to be regularized and a new president found, for Morarji
Desai did not wish to hold both the prime ministry and the party
post.°° Chandra Shekhar was settled upon as president; three general
secretaries were drawn from constituent parties—Madhu Limaye from
the Socialist Party, Nanaji Deshmukh from Jana Sangh, and Rabi Ray,
later to become Speaker, from the BLD. Chandra Shekhar selected
forty-three members of the Working Committee—a process ‘not free
from heartburn’, wrote Limaye. The ‘organizational wing’ of the party
increasingly found itself at odds with and ignored by the ‘government
wing’, much in the manner of the contention between the two Congress
‘wings’ in the late forties and early fifties. As then, the organizational
wing attempted to ‘exert its supremacy’ over the government wing. oN
Chandra Shekhar was to lead a watchdog committee to review government
implementation of party programmes. Central ministers and state chief
ministers were asked to discuss policies and problems with the party
secretariat.?” Little came of this. Overall, the party and the government
suffered from a mutually reinforcing disfunctionalism. Additionally,
rivalries varying from strong to unruly within and among the Janata
parties in the states and between them and the party central command
made uniformity of policy and its implementation difficult. |

The Congress Party: Death and Reincarnation

As the Janata Party and government proceeded toward their destinies,
the Congress Party was undergoing death and reincarnation under the
masterful hand of Indira Gandhi, which would assist Janata’s demise
and her return to office. The process began within a week of the party’s

35 |
imaye, quoting his own diary, in Janata Party Experiment, vol. 1, p. 253. The following
sentence said, ““No politician who had a son or daughter ought to be allowed to become
Prime Minister.”
36 Desai opposed any minister holding party office. For an account of the formation of
the Janata Party during April and May 1977, see Limaye, Janata Party Experiment, vol. 1, pp.
323-59. See also Janata Bulletin, Janata Party, New Delhi, April 1978. This had a foreword by
Ramakrishna Hegde and was to be published quarterly, but seems not to have been.
37 Decided upon at a National Executive meeting, 20-22 April 1978. AR, 4-10 June
1978, p. 14346. One of the party’s complaints was that it had not been consulted about
the draft five-year plan.
406 Working a Democratic Constitution

defeat, with informal meetings of Congressmen, many of them former

members of the Congress Forum for Socialist Action. The demands at
these that heads should roll were heard at the Working Committee’s
agonizing introspection in mid-April 1977: D. K. Borooah resigned from
the party presidency to be replaced provisionally by Sardar Swaran
Singh—the first Sikh to hold the office; Bansi Lal and others were expelled
from the party; V. C. Shukla was reprimanded; Sanjay Gandhi, who had
resigned from the party on 30 March was not directly blamed, reportedly
as a way of sparing his mother, but demands were made to disband his
vehicle, the Youth Congress. Mrs Gandhi was not criticized. She ‘continues
to be our leader’, said party general secretary Mrs Purabi Mukherjee.*8
Within a month, building on her humble acceptance of responsibility
for the election defeat,°? Mrs Gandhi initiated her comeback strategy.
Ata 5-6 May AICC meeting, she tearfully thanked party men for standing
by her in good times and bad; then had her candidate, Brahmananda
Reddy, elected party president. Elections to ten seats on the Working
Committee produced a majority of her supporters, and when ten others
were nominated to the committee a few days later, she was among them.
She also became a member of the Central Election Committee and the
Central Parliamentary Board. S. S. Ray, who had failed in his bid to be
party president and had declined an invitation to join the Working
Committee, charged that in the AICC meeting he had seen ‘no remorse
... no desire to apologize to the people for the undoubted atrocities
committed ... The cult of personality still dominated the entire show.
Authoritarianism was the order of the day.’?°
Although holding offices, Mrs Gandhi played little part in party affairs
until October 1977. But her public activities, were spectacular. They
included a trip through floods by elephant to visit Belchi village, where
Harijans had been burned to death by members of upper castes, a
triumphal tour of Gujarat, a visit to Jayaprakash Narayan, and her comic
opera arrest and release by the government (chapter 21). By mid-October,
a rift with Brahmananda Reddy had developed, Mrs Gandhi was being
mooted for the party presidency, and Reddy, Chavan, still Congress

38 Mirchandani, G. G., Reporting India 1977, Abhinav Publications, New Delhi, 1978,
p. 99. See also Mirchandani, G. G., The People’s Verdici, Vikas Publishing House Pvt. Ltd.,
New Delhi, 1980, ch. 4, for an overview of the period.
39 In a letter to Dev Kant Borooah, dated 12 April 1977, when he was still Congress
president, Mirchandani, Reporting India, p. 100.
40 Thid., p. 104. Among Mrs Gandhi's supporters now on the Working Committee were
C. Subramaniam, K. C. Pant, Shankar Dayal Sharma, Chandrajit Yadav, P. V. Narasimha
Rao, C. M. Stephen, and A. P. Sharma—convenor of the Nehru Forum in 1973.
 Indira Gandhi Defeated—Janata Forms a Government 407

leader in the Lok Sabha, and others were holding unity talks with her
supporters. Mrs Gandhi quietly was fuelling schism by criticizing
Congress members of Parliament for consulting with the government
about amending the Constitution (chapter 20). On 18 December, she
pronounced the schisms irreparable and resigned from the Working
Committee, saying that she would work as an ordinary party member
with ‘no ambition or design to hold the office of party presidentship or
any other position’.*! She exchanged challenges with Brabmananda
Reddy and Chavan, and on 1 January 1978 a National Convention of
Congressmen, ‘representing the Indian National Congress’, resolved that
““in order to provide effective national leadership to meet the challenges
before the nation ... [it] unanimously elects Mrs Indira Gandhi as
Congress President,”’ thereby forming the Congress(I) (for Indira) 42
She got no pleasure out of splitting the Congress, Mrs Gandhi said in oe ies
her concluding address, but it had become necessary ““to have a clear
cut ideology”’; our slogan should be “forward with socialism”’.**
The following day, the other Congress Working Committee noted
with deep regret that Mrs Gandhi and her followers had ‘carried out
their long-standing intention of disrupting the unity of the party and
setting up a new party’. Lach faction then began what one publication
named the ‘war of expulsions’. Mrs Gandhi’s faction gained adherents
over the next few months. Swaran Singh became president of the other
faction of the Congress Party and resumed unity talks with the
Congress(1). In November 1978, Mrs Gandhi was briefly returned to
the Lok Sabha (chapter 21). Unity attempts continued only to be broken
off in March 1979—because the Congress (I) would not accept collective
leadership and intra-party democracy, according to Swaran Singh.

41 Tbid., p. 117 and AR, 5-11 January 1978, pp. 14155ff.

42 AR, 5-11 February 1978, pp. 14155. The convention claimed to represent both a
majority of the AICC as well as other Congress members. The AICC members present
numbered 347 of the total membership of 657. Mirchandani, Reporting India, p. 118 and
Zaidi, A. M., Aloud and Straight: Frank Talks at Party Meetings, Indian Institute of Applied
Political Research, New Delhi, 1984, p. 339.
Among early members of this Congress (1) Working Committee were Kamalapati
Tripathi, Mir Qasim, A. P. Sharma, Buta Singh, and P. V. Narasimha Rao.
43 Zaidi, Aloud and Straight, pp. 346ff.
At this time, Mrs Gandhi chose the ‘hand’ as the party’s election symbol, remembering
her visit to the Shankaracharya of Kamakoti Peeth in October 1977. As Mrs Gandhi was
leaving, she asked the Shankaracharya what she should do, and he replied ‘““follow your
dharma’ and lifted the plam of his hand in a gesture of blessing’. Jayakar, Indira Gandhi,
p. 348.
44 Among those present at this meeting were Chavan, Subramaniam, Stephen, Yadav,
Shankar Dayal Sharma, and K. C. Pant.
408 Working a Democratic Constitution
According to Chavan, Mrs Gandhi ““wanted only those who were
prepared to prostrate before [her] in surrender ... who were prepared
to be captives”’.*° Indira Gandhi completed her political rehabilitation
with help from a peculiar quarter, from Janata’s Charan Singh. He
ill-advisedly turned to her for support in July 1979 as he attempted to
become Prime Minister in place of Moraji Desai. Mrs Gandhi had gained
the leverage she would need to return to power the following year.*®
She never had accepted responsibility for declaring the Emergency,
only ‘sorrow for any hardship or harassment’ that the people had
endured during it.
In this recurrently stormy political weather, the Janata government
went about the task discussed in the next chapter: restoring the
Constitution.

* For Chavan, see AR, 30 April-6 May1979, p. 14862; for Swaran Singh, Mirchandani,
People’s Verdict, p. 85.
46 Meanwhile, the CPI National Council admitted the ‘serious mistake’
of not calling
for the Emergency’s lifting once its ‘negative features’ were evident. It praised
the outcome
of the election as protest ‘against the gross misuse of the emergency powers
and violation
of all democratic norms and rights ...". And it was “utterly revolted
by ... the extra-
constitutional personal power centre with Sanjay Gandhi as its focus’.
Lok Sabha Election:
Resolution of the National Council of Communist Party of India, Held
in Dethi from 3 to 6 Apnil
1977, Communist Party of India, New Delhi, April 1977, pp. 9,
4, and 5, respectively.
Had the Congress and Mrs Gandhi won, the CPI might have sung
a different tune. On
7 February 1977, CPI Chairman S. A. Dange told a public meeting
that, faced with a choice
between Mrs Gandhi and Morarji Desai, the CPI would choose the
former.
Sanjay Gandhi had followed his mother’s attack on the CPI with
one of his own in January
1977, in which he said its “one-point programme” was
to tell lies’. India Backgrounder, vol. 1,
no. 47, 21 February 1977, p. 487.
 Chapter 19

RESTORING DEMOCRATIC GOVERNANCE

q,

The principal tasks of Morarji Desai’s government

Clee a
were to repeal got Kc
legislation damaging to the Fundamental Rights and to restore a we

democratic Constitution through a comprehensive amendment, Acting

President B. D.Jatti told Parliament in his inaugural address in April
1977. These endeavours were to proceed in parallel. This chapter deals
with restoring the Constitution, leaving other issues of democratic
governance to chapter 20.
Amending the Constitution confronted the government with tactical
as well as substantive issues. Effective parliamentary tactics were critical —
to reform, for the Janata had to garner enough votes to pass the restorative
amendment—a two-thirds majority in each House, plus ratification by
half the state assemblies. The Lok Sabha, with its large Janata majority,
posed no problem. But in the Rajya Sabha, in May 1977, Congress
members of various hues held 154 of the 244 seats. The Janata Party held
only twenty-seven seats.! Clearly, Morarji Desai’s government would need
Congressmen’s and other’s votes to enact any amendment and even to
pass some legislation.
The Rajya Sabha elections of 3 April 1978 would change the picture
somewhat—and the crucial Forty-fourth Amendment would not be voted
on until December 1978. Indira Gandhi’s newly-formed faction the
Congress(I) had sixty seats, the Congress(O) fifty-three, Janata sixty-nine,
and various other parties, sixty-one. Two-thirds of the membership

! The CPI held eleven, the CPM three, and the Tamil parties, independents, and
others a total of thirty-two seats.
2 The figures for the 1977 Rajya Sabha come from Butler, Lahiri, and Roy, India
Decides, p. 68. The figures for the Rajya Sabha after the 1978 elections are from AR, 7-13
May 1978. The figures for the results of the 1978 elections in India Decides, p. 68, do not
lend themselves to‘assigning seats to the Janata government of Morarji Desai.
Figures for Parliament in the spring of 1977 also may be found in Limaye, Madhu,
Janata Party Experiment, vol. 1, p. 264. They are, for the Lok Sabha: ‘Janata Party (including
the CFD and those elected on the Congress(O) symbol in Tamil Nadu), 298; CPM, 22;
AIADMK, 19; DMK, 1; Akali Dal, 9; People’s War Party, 5; Revolutionary Socialist Party
(RSP), 4; Forward Bloc, 3; Republican Party (Kamble), 1; Nagaland United Democratic
Front, 1.’ This produced a total of 363 in the Janata column in Limaye’s table. In the
 410 Working a Democratic Constitution
162 votes
(assuming the seats vacant at the ime would be filled) meant
solidly
plus a fraction. Thus, ifJanata and Congress(O) members voted
forty
for an amendment, Desai’s government still would need at least
dared
votes from the other, smaller parties to pass it. The government
not depend on this; it would need votes from Congress members loyal
—
to Mrs Gandhi. How and why the government got the necessary votes
including an especially surprising ‘aye’—will be seen.
The first great substantive issue was whether the Forty-second
Amendment should be repealed entirely with one stroke of the pen, or
its provisions repealed selectively. If it were not to be repealed by a
‘one-line amendment’, which of its provisions were to be saved? If repeal
were to be selective, should some provisions receive priority? Which
approach would combine the substance and tactics necessary to gain
support from Congressmen and, after the January 1978 split, from
members of the Congress(I)?
The government’s first step was hasty. The Prime Minister, probably
at Law Minister Shanti Bhushan’s urging, agreed to introduce a partially
restorative amendment after just two weeks in office. Shanti Bhushan
introduced the Forty-third Amendment Bill on 7 April in the Lok Sabha.
Containing only seven clauses, it deleted the ‘anti-national activities’
provision of the Forty-second Amendment, re-established five year terms
for Parliament and state legislatures, and deleted the Thirty-ninth
Amendment’s provision protecting Mrs Gandhi’s—and successive prime
ministers’—elections. Because premature, the bill became lost in other

Congress column of his table, for a total of 178 seats were: ‘Congress (I), 154; CPI, 7;
Muslim League, 2; Kerala Congress, 2: Nationa! Conference, 2; others, 3; independents,
8. These figures were for 541 seats declared of the Lok Sabha complement of 542 seats.
In the Rajya Sabha, according to Limaye, ‘the party position ... around the time the
Janata Government was formed was roughly as follows’: Janata Party, 26; CPM, 3; DMK, 2;
AIADMK, 5’ for a total of 36 in the Janata column. ‘Congress, 170; CPI, 11; others, 6.
This produced a total of 187 in the Congress column. Limaye’s use of the word ‘roughly’
well described a confusing analysis of election results.
3 Indeed, Bhushan began planning amendments even before the elections. He set
up a committee of himself, E. M. S. Namboodiripad, V. M. Tarkunde, and George Verghese
fe work on substantive changes to the Constitution, (Bhushan interview with the author.)
Tarkunde had been a high court judge and was a noted civil liberties lawyer; he had been
a prominent opponent of the Forty-second Amendment. Verghese was a senior journalist,
who in the late 1960s had been information advisor to Prime Minister Gandhi. Bhushan
not only had been Raj Narain’s lawyer but also Advocate General of UP in the late 1960s,
treasurer of the Congress (O), and privileged as a young man to attend the ‘evening
durbars’ of the noted constitutionalist and jurist, Sir Tej Bahadur Sapru. Namboodiripad
was the long-time CPM leader and Chief Minister of Kerala.
 Restoring Democratic Governance 411
government business, and Morarji Desai would establish machinery for
extensive preparation of another bill.* Nevertheless, Bhushan’s
provisions were an indicator of things to come.

Lengthy Amending Preparations Begin

First, in May 1977, Desai appointed a parliamentary affairs committee
to be the forum for considering substantive changes.° Then, in Au-
gust, he inexplicably established a cabinet subcommittee to deal with
the same issues. Charan Singh was chairman and Bhushan and Adva-
ni were members of both committees. Ravindra Varma, Minister of
Parliamentary Affairs and Labour , was the fourth member of the first
committee and P. C. Chunder, Minister of Education, Culture and
Social Welfare, the fourth member of the subcommittee.® The cabi-

4 The bill lapsed months later, overtaken by the other amending bills. The Hindustan
Times on 8 Apri! 1977 reported that the Congress opposition had been consulted and
was willing to co-operate as evidenced by Chavan’s endorsement on the floor of the
House. President Jatti’s immediate assent was predicted. But no immediate action was to
be taken because the session would adjourn that day. Another report in the same edi-
tion indicated that Congress might later oppose the bill, ‘at the consideration stage’,
because returning the legislatures to five year terms was ‘aimed at destabilizing state
governments’. This concern was overtaken by Janata’s dismissal of nine state govern-
ments (see next chapter). Perhaps sobered by the intricacies of amending the Consti-
tution, the President omitted any mention of the subject in his Independence Day
speech of August 1977.
For the text of the lapsed bill, see Lok Sabha Secretariat, Constitution Amendment in
India, p. 174. Also see Lok Sabha Secretariat, Background Note, “The Forty-Second
Amendment and Recent Proposals for Changes in the Constitution’, for use of members
of Parliament; dated 25 February 1978, p. 23, unpublished. A copy was provided to the
author by the Secretariat.
5 The description here of the government's internal consultation processes and its
consultations with the opposition parties in Parliament is based upon newspaper
interviews with Shanti Bhushan, P. B.
reports, secondary written sources, and upon
the Law
Venkatasubramanian, Madhu Limaye, Mrs Sarojini Mahishi, Minister of State in
senior position in the ministry for
Ministry during the Emergency who remained in a
of the Rajya
some time under the Janata government, and Mrs Margaret Alva, a member
Sabha in the Janata period.
the Congress
Attempting to reach consensus within Janata and particularly with
ed strongly by
opposition, so important to Bhushan and Desai, also had been advocat
Desai, of which more shortly.
Gajendragadkar in a ‘Prefatory Note’ for
and Additional Solicitor
6 Attorney General S. V. Gupte, Solicitor General S. N. Kacker
ral role in drafting
General Soli Sorabjee had been in office for months, but had a periphe
.
the amendments. From interviews with Bhushan and Sorabjee
Committee: himself as
In May, Desai had appointed the cabinet’s Political Affairs
as members.
chairman, and with Ram, Charan Singh, and Vajpayee
 412 Working a Democratic Constitution
net subcommittee, which bore most of the burden regarding consti-
tutional issues, met first on 16 August and immediately took up
the paper submitted to it by Law Minister Shanti Bhushan and pre-
pared under his direction by the Secretary of the Ministry’s Legal
Department, R. V. S. Peri Sastri, and the Additional Secretary, P. B.
Venkatasubramanian.
Bhushan earlier had sent the Janata election manifesto to his fellow
ministers to elicit their ideas for an amendment and to remind them
of promises to be kept. He then built his paper on contributions from
them and from many individuals, including two weighty written
submissions to Morarji Desai from Law Commission Chairman P. B.
Gajendragadkar and Justice H. R. Khanna who had retired from the
Supreme Court after Mrs Gandhi had superseded him for the Chief
Justiceship of India just prior to the 1977 elections (chapter 21). The
two men’s submissions had originated from discussions Desai had had
with them before he became Prime Minister. Desai had asked
Gajendragadkar to draft a note for study. Gajendragadkar responded
with a six-page letter on 1 April 1977, to be followed by other letters
and, on 8July, by a ‘Prefatory Note’ of twenty-nine pages. In keeping
with his letters to Indira Gandhi during 1975 and 1976, Gajendragadkar
urged Desai to set up a ‘high-powered committee’ for a dispassionate
study of amendment. Khanna’s response to Desai’s request was a note on
the ‘Basic Structure of the Constitution’, which concentrated on the
Constitution’s emergency provisions.’ Khanna recommended that these
v should not to be dispensed with despite current sentiment, but retained
with safeguards to meet ‘real crisis’. To ‘prevent abuses’, he recommended
that proclamations of emergency should be valid for only six months

7 The date of the Desai-Gajendragadkar meeting is uncertain, but the latter’s April
letter makes clear that it took place between 20 and 24 March.
The Gajendragadkar correspondence with Desai and the ‘Prefatory Note’ are in
the
Gajendragadkar Papers, Subject File 1, NMML. Gajendragadkar shared these
documents
with Shanti Bhushan.
At this time, Gajendragadkar was also concerned that the Law Commission,
of which
he was still chairman, should not be disbanded. Bhushan assured him that
this would not
be done. (Bhushan in an interview with the author.) Gajendragadkar
’s term as chairman
of the commission was due to expire on 31 August 1977, after which
he wrote Desai he
intended to leave Delhi for good. Letter of 23 August 1977, P. B. Gajendr
agadkar Papers,
Subject File 1, NMML.
The Khanna talk with Desai, selections from his note dated 13 April
1977, and the
text of Desai’s thankful reply of 30 April 1977, saying ‘““We shall make
good use ofit,”’ are
to be found in Khanna, Neither Roses Nor Thorns, pp.
9OLff.
8 Letter covering the note dated 13 July 1977, ibid.
 Restoring Democratic Governance 413
after their approval by Parliament unless renewed by
both Houses. Both
the original proclamation and any renewal should be
passed by ‘a certain
percentage of members’, implying more than
a simple majority.
Consultations with Parliament before issuing a proc
lamation, in the
manner of the French Constitution, might be consi
dered. Khanna
thought that declarations of emergency should not be subje
ct to court
review if made for a purpose within Article 352 and
if the correct
procedures had been followed.
Khanna also recommended that the Supreme Court’s power
to issue
writs of habeas corpus should not to be curtailed during emerg
encies.
Referring to the Emergency’s Habeas Corpus case (wher
e, it will be
remembered, he had been the lone dissenter upholding this funda
mental
right), he wrote that suspending the right ‘strikes at the very basis
of the
rule of law’. In future, such writs could be issued ‘In case
the courts find
that the detention is notin accordance with the law relating to detent
ion’.9
Of Justice Gajendragadkar’s lengthy prefatory note to Desai, only
its principal points may be summarized here and elsewhere in
this
chapter. !° Regarding the Preamble, Gajendragadkar said that both
‘secular’ and ‘socialist’ were ambiguous and should be defined. He
objected to the ‘escape clause’ in Article 31C and ‘saw no justification’
for making all the Directive Principles superior to the Fundamenta
l
Rights. Article 31D barring anti-national activities should be deleted as
abhorrent in theory and dangerous in practice.!! He favoured restoring
the Supreme and high courts’ powers to consider the validity of state
and central laws, and he favoured deleting the Forty-second Amendment's
provisions for larger benches and two-thirds votes in constitutional cases.
The high- sounding, but ‘innocuous’, Fundamental Duties might be kept.
The oft-disputed words ‘for any other purpose’ for issuing prerogative
writs should be restored to Article 226 to enable citizens to gain relief
‘for their legitimate grievances’ through the writs.

9 Ibid.
10 In the note, Gajendragadkar pointed out that he had sent comments on the
draft version of the Forty-second Amendment to Prime Minister Gandhi, that his
comments then had been made in a hurry, and that now he had given deeper thought to
the issues. He told Desai that he had consulted Mrs Gandhi about submitting to Desai
much of the material he had submitted to her earlier and that she had no objection to
his doing this.
In his earlier letters to Desai, Gajendragadkar had recommended selective repeal of
the amendment and had advised great caution regarding removing property from the ©
Fundamental Rights.
!l *Prefatory Note’, P. B. Gajendragadkar Papers, Subject File 1, pp. 9-10, NMML.
 414 Working a Democratic Constitution
Turning to the amending article, Article 368, Gajendragadkar
i-
found ‘most objectionable’ the Forty-second Amendment’s prohib
tion of the courts questioning constitutional amendments. He could
ing
not understand, he wrote, how the actual exercise of the amend
ny. !*
power under the article’s provisions could be beyond court scruti
ment
[ On the other hand, he reiterated that, under Article 368, Parlia
y had constituent power; therefore he was ‘unable to subscribe’ to the
s
basic structure doctrine. ‘[I]f the government feels that basic feature
indi-
should not be amendable’, he wrote, ‘then it should add a clause
cating what the basic features are’ so the law would not ‘remain vague
and uncertain’.}%
Justice Gajendragadkar’s views of the administrative and other
tribunals that were provided for in the Forty-second Amendment
strengthened the Janata government's negative view of them. He opposed
retaining tribunals unless appeals to the Supreme Court were provided
for expressly and unless tribunal members were required to have the
same qualifications as Supreme Court judges. Then, tribunals might
be able to reduce arrears. A number of Law Ministry officials shared
these views.!4 Bhushan and Janata members, broadly, wanted to remove
_ tribunals entirely from the Constitution because they had the taint of
co“ A the Emergency and seemed subject to executive branch manipulation.!°
yr\ J TAs will be seen, retaining tribunals, although with added safeguards,
was part of the price exacted by Congress in the Rajya Sabha for its
[|support for the Forty-fourth Amendment.
Soon after considering the Law Minister’s note on amendment, at
its 16 August 1977 meeting, the cabinet subcommittee sent specific
proposais to the Opposition. Chavan was said to be willing to consider

12 Thid., p. 20. He also recommended that Article 3 of the Constitution should be

included in the proviso of Article 368 because ‘Parliament alone should not be able to
make a law affecting the boundaries ... of different constituent units’. Ibid. According to
Article 3, such bills were to be sent to the state legislature concerned ‘for expressing its

Gajen dragediarwe Venkatasubramanian in an interview with the author.

of Supreme Court ju hed le at length on the qualifications and method of appointment
transfer high court judge’ And he thought that the article empowering the President to
transferred without his p enn? should be deleted or a provision added that no judge could be
15 Bhushan and Venkatas iission, a position consistent with his earlier thinking.
presently is that tribun sis chal ‘ubramanian in interviews with the author. Bhushan’s view
serve a useful function and that the quality of their
functioning depends especially upe
India should have a larger role in cele" the quality of their members. The Chief Justice of
‘ycting members, he believes.
 Restoring Democratic Governance 415

them with his colleague, V. A. Seyid Muhammad, and it quickly became

clear that many Congressmen either had been intimidated into voting
for an amendment they disliked or that they had had great changes of
heart since they passed the Forty-second Amendment. Muhammad had
written a note for the Congress Parliamentary Party, the Hindustan Times
reported, saying that a majority of the Swaran Singh Committee, of
which he had been a member, had opposed adding Article 31D to the
Constitution. His note favcured the repeal of the article empowering
the government to deploy police forces under its own command in a
state without the state government’s concurrence (Article 257A). This
was an ‘unjustified encroachment’ on states’ rights. Muhammad’s note
favoured the Constitution’s providing for only two kinds of emergency:
an external emergency or an internal one only in a part of the country—
and, then, only in cases of insurgency or threatened secession. This
would do away with the ““horrible consequences and excesses”’
of the recent Emergency, he wrote. He favoured reverting to five-year
terms for Parliament and legislatures and to one-tenth membership as
constituting a quorum. Equally significantly, Muhammad recommended
restoring the Supreme Court’s jurisdiction and powers of judicial review
by repealing the relevant four provisions in the Forty-second Amendment.
Ata Parliamentary Party meeting the previous day, Chavan was reported
to have said that ““We will adopt a practical and cooperative attitude”’
toward amending the Constitution and that draft amendments should
be discussed in the AICC.!®
Janata’s cabinet subcommittee continued its work over the next seven
weeks. It favoured fulfilling the party’s election promise to remove prop-
erty from the Fundamental Rights so as to protect the other Rights from
further erosion, newspapers reported. But the delicacy of the issue caused
the cabinet to order a fresh study of the legal and political implications
of the move, and a few days later, after Bhushan and Attorney General
Gupte had discussed the matter with Desai, decision was reported to
have been postponed. News reports also said that the subcommittee fa-
voured retaining the provision that the President ‘shall’ act on the ad-
vice of his ministers, even though it smacked of the Emergency’s authori-
tarianism, but had ‘softened’ it to authorize him to send a measure back
to the cabinet for reconsideration—but only ‘once’. The government
had been loathe to change the amendment’s language, fearing that to
do so might be understood in the courts as allowing the President to act
independently of ministerial advice.

16 Findustan Times, 10 September 1977.

 416 Working a Democratic Constitution

The subcommittee was reported to have decided, also, that the

President could declare an emergency only on the written advice of
the council of ministers that a two-thirds parliamentary majority must
approve the proclamation within a month, and that a tenth of Lok
Sabha members could call for a review of the proclamation. Freedom
ofspeech was not to be suspended during an emergency (unless it were
due to armed aggression) nor could any preventively detained or any
other person be deprived of life or liberty “under any circumstances’
¢~ except according to law (Article 21).!7 Periods of President’s Rule
could last only a year. Detentions were to be reduced to two months
Gee unless an advisory board authorized further detention (Article 22).
Wry oc

n ‘ :
The Fundamental Duties, once thought acceptable, were to be removed
because they served no purpose. The “escape clause’ of Article 31C was
to go and only Articles 39(b) and (c) of the Directive Principles were
to have precedence over the Fundamental Rights. The authority to
settle election disputes was to be restored to the Supreme Court. The
- subcommnittee also decided to give constitutional recognition to the
right to publish parliamentary and legislative assembly proceedings,
which had been banned during the Emergency.
The cabinet reviewed the subcommittee’s proposals and approved
them by consensus.!® The Janata Parliamentary Party’s executive reviewed
the proposals for four days and accepted them on 24 October. They then
went to the Parliament Members’ Consultative Committee attached to
the Law Ministry, which, under Shanti Bhushan’s chairmanship, dis-
cussed the proposals on 28 October 1977, and released them to the
press.!9 In forty-seven clauses, these proposals came close to restoring
the pre-Emergency Constitution, often reflecting criticisms of the
Forty-second Amendment made during the Emergency, and embod-
ied several other changes as well. Their more significant points not
already known, and discussed above, were to amend the Preamble to
define the word ‘secular’; to delete the provision protecting the govern-
ment’s Transaction of Business Rules from court scrutiny; and to delete
the section on tribunals from the Constitution, while enabling Parlia-
ment to establish tribunals relating to state civil service employees. A
further proposal required a decision of the cabinet to precede a procla-
mation of emergency.”°

\7 Hindustan Times, 24 October 1977.

18 Limaye, Cabinet Government in India, p. 143. Limaye attributes this claim of consensus
to Morarji Desai.
19 ‘Background Note’, Lok Sabha Secretariat, p. 26.
20 ‘Background Note’, Lok Sabha Secretariat, appendix III. By way of context, the
 Restoring Democratic Governance 417
Meeting to consider the forty-seven proposals on
18 November, the
Congress Parliamentary Party executive ‘passed’
twelve of them and
‘accepted’ others with modifications. It will be reme
mbered that the _ , ( )’
Congress Party at this time had not splitand Mrs Gand
hi’s Congress (I) - “os
had not come into existence. The CPP opposed inter
nal emergencies
on any ground ““whatsoever”’. It accepted that advice to the
President to
proclaim an emergency should be in writing, that the cont
inuance of an
emergency beyond six months required a parliamentary resol
ution, and
that one-tenth of Lok Sabha members could request a sitting
to consider
ending or continuing a state of emergency.2! The meeting
discussed
reviving judicial review of amendments and accepted Janata’s reduc
tion
of preventive detention to two months unless an advisory
board
approved a longer detention. A Congress Working Committee
meeting
on 6 December 1977 accepted most of the Parliamentary Party
’s
recommendations and went beyond them. It accepted restoring five-
year
terms for Parliament and state legislatures and agreed to restoring
most
of the courts’ powers stripped by the Thirty-eighth, Thirty-ninth, and
the Forty-second Amendments. The Working Committee opposed
Janata’s attempts to define ‘secular’ and ‘socialist’ in the Preamble,
deleting the Fundamental Duties, and deleting the section on tribunals
which the CPP earlier had accepted.

The Forty-third Amendment Emerges

Beginning about 11 November 1977 an earlier idea re-emerged and the
government began informal consultations with other parties about em-
bodying several of the forty-seven proposals in an amendment to be passed
before the end of the year, leaving the bulk of them for enactment in a
second amendment. Minister of Parliamentary Affairs Varma sent the
proposed content of what would become the Forty-third amendment to
the Opposition on this date so that formal discussions might begin. On 7
December Desai met opposition leaders and reached a large measure of
agreement, the Hindustan Times reported. The brief amendment would
delete Article 31D on anti-national activities, dispense with larger benches

government, in the autumn of 1977, was attempting to redress other excesses of the
Emergency, to prosecute Mrs Gandhi and others for alleged illegal activities, and to manage
national affairs such as the budget and taxes and the ever-capricious typhoon that killed an
estimated fifteen thousand persons on the Andhra Coast—all the while dealing with
increasing tensions within the Janata Party.
2! The account of the meeting is from the Hindustan Times, 19 November 1977.
 418 Working a Democratic Constitution

and special majorities in constitutional cases, and restore the high courts’
powers to examine the constitutionality of central laws and the Supreme
Court’s authority to examine the constitutionality of state laws. The meet-
ing agreed to retain the Fundamental Duties (harmless, Desai was said to
rs
believe). In these consultations, Desai, Jagjivan Ram, and the membe
of the Parliamentary Affairs Committee represented the government.
Y. B. Chavan, Congress leader in Parliament, and Kamalapati Tripathi
represented the Congress.** Chavan, Brahmananda Reddy, elected presi-
dent of the Congress the previous May, and C. Subramaniam co-oper
ated well with Janata, while Mrs Gandhi, out of Parliament and intent on
her comeback strategy, criticized them for this.29
The government was to begin drafting the actual bill. At Desai’s
second meeting with the Opposition, 14 December, it was further agreed
that Article 257A would be deleted so that the central government would
not be able to send its armed forces into states ‘in aid of civil power’
without the state government’s concurrence. It also was agreed to
eliminate the Thirty-ninth Amendment's provisions regarding disputes
concerning election of the President, Vice-President, Prime Minister,
and Speaker, but this would await incorporation later in the Forty-fourth
Amendment.**
. Shanti Bhushan introduced the Forty-third Amendment (at that
moment the Forty-fourth Amendment Bill) in the Lok Sabha on 16
December 1977. He expressed regret that a comprehensive bill could
not have been introduced as promised. The government, however, was
alive to the necessity of undoing the mischief of the Forty-second
Amendment. The one-line bill had been rejected, Bhushan said, because
some of the Forty-second Amendment’s provisions were already in force
and other provisions were worth keeping.2° He might have added that
it would not pass in the Rajya Sabha. Commending the bill’s provisions,

22 Representing other opposition parties were: P. Ramamurthi, CPM; Bhupesh Gupta

and Mrs Parvathi Krishnan, CPI; Sulaiman Sait, Muslim League; and two others.
23 VN. Gadgil and Madhu Limaye in interviews with the author.
24 Hindustan Times, 15 December 1977.
J 25 Strong advocates of one-line repeal included Madhu Limaye, Ram Jethmalani,
George Fernandes, and Soli Sorabjee—Sorabjee on the ground that the Forty-second
Amendment ‘had been conceived in sin’, (Sorabjee in an interview with the author.)
Advani was said to favour this until Bhushan talked him out of it. Bhushan thought legal
aid to the poor among the provisions in the Forty-second Amendment worth saving.
Shanti Bhushan in an interview with the author.
26 Lok Sabha Debates, Sixth Series, vol. 9, no. 24, col. 269-71,
Bhushan made this argument forcefully in the Rajya Sabha. Parliamentary Debates,
Rajya Sabha, vol. 103, no. 27, col. 124.
 Restoring Democratic Governance 419

Bhushan said that Article 31D should be repealed because it infringed

citizens’ fundamental rights. Seven-judge benches needing two-thirds
majorities for judicial review rulings would give judges deciding in favour
of the government ‘a larger voice’, worth two votes to a minority judge’s
one.*° Speaking to other provisions of the bill, he said the high courts’
authority to scrutinize the constitutionality of central laws had been
restored because the poor could not travel to Delhi to protect their
rights.
During consideration of the bill the Congress made admissions
startling both in their content and for their public character. We want
‘to reassert and to uphold the fundamental values for which the
Congress has always stood’, said Seyid Muhammad, supporting the bill.
He cited Article 31D as not a recommendation of the Swaran Singh
Committee, but one of the “extremely restrictive’ measures some in the
party had opposed at the time.2”? Congress member Jagannath Rao
welcomed the bill and explained how he and others had spoken against
much of the Forty-second Amendment, but, obeying the Whip, had
voted for it.2® Other Congressmen spoke along similar lines. After the
third reading on 20 December, the bill passed 318 to one.
The Rajya Sabha considered the bill on 23 December and passed it
the same day without a ‘nay’ vote—the result of ‘mutual persuasion’,
said Bhushan. Ninety-one Congress members who had voted to enact
the Forty-second Amendment voted in the Rajya Sabha for the Forty-third.
In the Lok Sabha twenty-nine Congress members who voted to enact the
Forty-second Amendment did likewise. (Due to election defeats, Con-
gress representation in the Lok Sabha was much reduced.) All the mem-
bers of the Swaran Singh Committee then in either house voted for the
amending bill.?? After ratification by state assemblies, the amendment
received the President’s assent on 13 April 1978.
Coincidental events must have given impetus to the amendment’s
passage. Testimony about the origins and excesses of the Emergency
filled the newspapers during the autumn, largely from the hearings of

The logic here, it will be recalled, is that the minority judges could control a judicial
review bench by preventing a two-thirds majority. For instance, a two-thirds majority
within a seven-judge bench would be five votes to two—to avoid fractions of a vote—thus
enabling three judges to frustrate the will of four. Justice Gajendragadkar was also of this
view.
27 Lok Sabha Debates, Sixth Series, vol. 9, no. 24, col. 284-6.
28 Thid., cols 322-3.
29 Vasant Sathe, Seyid Muhammad, and C. M. Stephen in the Lok Sabha, and B. N.
Banerjee and V. N. Gadgil in the Rajya Sabha.
 420 Working a Democratic Constitution

the Shah Commission (chapter 21). In these, the Cabinet Secretary

and the Home Secretary of Mrs Gandhi’s government were quoted as
having said that imposition of the Emergency was unnecessary. The
head of the Intelligence Bureau, Atma Jayaram, testified that the
imposition had been so secret he had not known about it. Witnesses
told how the arrest lists had been prepared in the Prime Minister’s
house and that signed but otherwise blank arrest warrants had been
issued. Newspapers carried accounts of the infamous “Turkman Gate’
incident in Old Delhi, when the police had killed squatters resisting
removal from slums.

Drafting the Forty-fourth Amendment Continues

The day before the Rajya Sabha passed the Forty-third Amendment,
Morarji Desai had the third of his consultative meetings with the
Opposition to reach agreement over the undecided proposals that might
be included in the follow-on amendment. The parties agreed that the
rights to life and liberty were not to be suspended during an emergency,
that Articles 358 and 359 should be amended accordingly, and that
\)d L V there should be restrictions on the suspension of the freedoms of Article
a” i: 19. The Opposition agreed that MISA 1971, and other Emergency
“7 legislation would be repealed during the current session, including their
removal from the Ninth Schedule. President’s Rule was to be restricted
to ayear unless renewed. Congress wished to retain and Janata to delete
the Thirty-eighth Amendment’s provision that the President's ‘satisfaction’
when promulgating ordinances could not be questioned in court.
Similarly, Congress wished there to be no judicial questioning of a
President’s proclamation of emergency. Janata seems about now to
have suggested the idea of adding a referendum to the amending
article to be invoked if the basic structure of the Constitution were to be
altered.°?
Shanti Bhushan did not wish to leave defining the basic structure
entirely to the judiciary. He thought the Supreme Court ‘under the
,v guise of protecting the basic structure, could prevent a much-needed
wt“ amendment’.*! The remedy was to go to the people in a referendum if
16777, van amending bill would affect certain basic features—such as the secular

; 30 Hindustan Times, 23 December 1977.

Janata was again represented by Desai, Ram, Charan Singh, and Bhushan; Congress
by Chavan; and other parties by Bhupesh Gupta, Ramamurthy, and S. D. Somasundaram,
AIADMK.
31 Shanti Bhushan interview with the author.
 Restoring Democratic Governance
42]
and democratic character of the Constitution,
the Fundamental Rights,
free and fair elections, and compromising the inde
pendence of the
judiciary.>* Chavan was reported to have accepted the
idea and to Oppose
court review of amendments. Yet, practical and conceptual
problems with
a referendum remained, and it would be the subject of intense
bargaining
between Congress and Janata as voting on the Forty-fourth Amen
dment
approached.*»
Throughout Delhi’s rose-filled winter of 1978 and into hot weather,
crafting the Forty-fourth Amendment continued. One issue remain
ing
to be resolved was the constitutional status of property. The Janata
Par-
ty’s election manifesto had pledged to remove property from the Funda-
mental Rights while retaining it as a statutory right. Morarji Desai and
Charan Singh, considered the leader of the ‘big farmers’ lobby, supported
the idea, as had Shanti Bhushan in the committee he had formed before
the election to consider constitutional changes. The press reported that
0, $%
he still did.34 The principal rationale for the move was to protect the
other Fundamental Rights in the Constitution. Both government and _ /e5°
he”
Opposition recalled when in the wake of the Golak Nath decision, [ee
Rammanohar Lohia and Madhu Limaye (now a Janata Party general &« *
secretary) had advocated removing property from the Rights as an alter- ¢ ‘*l vi
native to the Nath Pai Bill’s bestowal on Parliament of blanket power to
amend any part ofthe Constitution. With these memories, making prop-
erty only a statutory right was a preventive measure.
Over the years, Limaye had become more cautious. He now thought
taking property from the Rights endangered the smallholder and smacked |
of populism.*°? Law Commission Chairman Gajendragadkar agreed with
him and advised the Prime Minister that if property were not a right,
it could be taken without compensation and ‘there would be probably
no remedy to the party aggrieved’. No wise legislature would do this,
he added, but ‘my faith in the wisdom of legislatures has been rudely

32 From the Statement of Objects and Reasons in “The Constitution (Forty-fifth

Amendment) Bill, 1978’, which would become the Forty-fourth Amendment, as published
by the Lok Sabha Secretariat.
33 Looking back on the bill, constitutional authority H,M. Seervai thought the / ~
referendum idea ‘ill-advised and ill-conceived’ and unconstitutional. The basic structure Le io
of the Constitution was not to be amended, the Kesavananda decision had established, (42°
and therefore it could not be amended even through a referendum. Seervai, Constitutional
Law of India, 3rd edn., vol. 2, p. 2702.
34 Shanti Bhushan interview with the author. Also ina speech in Calcutta in February
1978. Hindustan Times, 12 February 1978.
35 Limaye’s recollection in an interview with the author—in which he also said that
he did not know who put the pledge in the election manifesto.
422 Working a Democratic Constitution
shaken’.26 It has been alleged that Janata had agreed to take property
from the Rights in trade for the support of the two Communist parties in
the March 1977 elections. Ramakrishna Hegde and Shanti Bhushan have
denied this.37 Given the CPM’s hatred of the Emergency, it probably
needed no inducement to support Janata in the elections. The CPI at
the moment of the elections was still enough in Mrs Gandhi's camp so
that no inducement Janata offered was likely to cause it to change its
loyalties. By the time the Forty-fourth Amendment was in its final stages,
however, Janata members may well have used removing property from
the Rights, which they supported on its merits, as an inducement for
communist and other support.
Urged on by President Sanjiva Reddy to build bulwarks against use of
“the Constitution itself to negate and to subvert the basic principles of
democracy”’, and to remove the ‘dark spots”’ from it, Prime Minister
Desai and his colleagues again met opposition leaders on 20 April.38
The Opposition (the Congress(I), which had been recognized on 12
April as the main opposition party in the Lok Sabha) agreed with the
government that a comprehensive amending bill should be introduced
in the current session, but positions differed on sending the bill to a joint
select committee of both Houses. Congress and Congress(I) favoured
this, Janata and the CPI and CPM opposed it, and the bill did not go to
the committee. When discussion turned to adding a referendum to the
amending process, opinion again was divided sharply. C. M. Stephen, by
now the Congress(I) leader in the Lok Sabha and possessing a more
aggressive character than Chavan, said he could not agree with the idea
because his party’s working committee still was considering it. The CPM’s
Samar Mukherjee not only favoured the idea, but, fearing unitary gov-
ernment, wanted any change to the federal character of the Constitu-
tion added to the subjects that would demand a referendum. Bhushan,

36 Gajendragadkar, ‘Prefatory Note’, P. B. Gajendragadkar Papers, Subject File 1,

NMML.,, p. 9.
H. M. Seervai disagreed with the government’s and Shanti Bhushan’s position about
removing property from the Rights. Bhushan’s rationale that property should be removed
because it had evoked many amendments was ‘not sufficient reason’ to do so, Seervai
wrote. Moreover, Bhushan had not taken into account the close relationship of the right to
| property to other fundamental rights. Seervai, Constitutional Law of India, vol. 2, pp. 1073¢f.
37 Ramakrishna Hegde, who became a Janata Party general secretary in August 1977,
and Shanti Bhushan in interviews with the author claimed there was no trade-off. Soli
Sorabjee in an interview with the author recalled that Shanti Bhushan told him there
had been a trade-off.
38 Quotations from Sanjiva Reddy speech inaugurating the session of Parliament
commencing on 20 February 1978. Hindustan Times, 21 February 1978.
 Restoring Democratic Governance 423
while continuing to favour a referendum before changing the basic struc-
ture, opposed this, saying that the Constitution was not strictly federal.99
The cabinet approved Bhushan’s position on 25 April and the Janata
Parliamentary Party did likewise the next day.??
On other matters, the government and Opposition agreed that there
should be certain safeguards to property after its removal from the Fun-
damental Rights. No land within the ceiling could be taken without com- ,
pensation at ‘market value’, and if property were taken from a minority ©* * ut
tu
educational institution, the amount of compensation should not inter- is =
fere with the minority’s constitutional right to establish educational insti-
tutions of its choice. Concerning the emergency provisions, both the
Congress and the Congress(I) accepted the government’s proposals for
curtailing them. The CPI and CPM wanted to eliminate any opportunity
for declaring an internal emergency by removing ‘internal disturbance’
as a justification for imposing one and they opposed retention of Presi-
dent’s Rule. Both causes failed, but in the Forty-fourth Amendment the
more precise term ‘armed rebellion’ replaced ‘internal disturbance’—
the wording of the Constitution’s original Article 352—as a cause for
declaring an emergency. The opposition parties also proposed that con-
stitutional protection be given to the publication of parliamentary and
legislative assembly proceedings, going beyond Janata’s restoration of
the older ‘Feroze Gandhi Act’ of the fifties, which gave only legislative
protection.*! This cooperation between the government and the Oppo-
sition was in sharp contrast to the lack of it within the Janata Party: the
next day, 21 April, Chandra Shekhar threatened to resign as president,
along with the general secretaries, over criticism that he had not called
internal party elections.
Shortly after this and ten days before the amendment was introduced
in the Lok Sabha, C. M. Stephen summed up the Congress(I)’s position.
Of the numerous clauses in the draft amendment, the party opposed
only ten and might be brought around on several of these. Its objections

39 The account of this meeting is drawn from the Hindustan Times, 21 April 1978.
Bhushan had advocated a referendum on television four days earlier. Hindustan Times,
17 April 1978.
40 Hindustan Times, 26 April 1978.
41 Bhushan, Charan Singh, Ram, Advani, and Varma were reported to have
represented the government at the meeting; Desai did not attend. For the Opposition,
Stephen represented the Congress (I) ,Seyid Muhammad the Congress, Samar Mukherjee
and Somnath Chatterjee the CPM, Govindan Nair and Bhupesh Gupta the CPI, Chitta
Basu the Forward Bloc, George Mathew the Kerala Congress, and Mohan Rangam and
V. Arunachalam, the AIADMK.
424 Working a Democratic Constitution

were mainly to the referendum; to ‘diluting the primacy of the Directive

Principles’ by re-amending Article 31C; and to including ‘armed
rebellion’ as cause for declaring an emergency, although the party said
it might eliminate provisions for internal emergencies. Mrs Gandhi's
Congress (1) was prepared to overturn the Forty-second Amendment's
placing exclusively in the hands of the President the authority to
determine whether a member of Parliament had disqualified himself
for office, Stephen said. But, apparently with Mrs Gandhi’s experience
in mind, it would oppose disqualification for elective office for corrupt
election practice, ‘“however technical or nominal” ’.42 Assessing the
tactical position, Stephen noted that the Congress(T) had sixty-five
members in the Rajya Sabha, not enough to defeat the amending bill if
the other Congress voted with the government. ““We cannot block the
amendment by ourselves,”’ he said. As we shall see, the two Congress
parties joined forces to defeat only a few portions of the bill.49

The Forty-fourth Amendment in Parliament

Law Minister Shanti Bhushan introduced the Forty-fourth Amendment
in the Lok Sabha on 15 May 1978. The bill’s Statement of Objects and
Reasons opened with the lines: ‘Recent experience has shown that the
fundamental rights, including those of life and liberty, granted to citi-
zens by the Constitution are capable of being taken away by a transient
majority. It is therefore necessary to provide adequate safeguards against
the recurrence of such a contingency ...’.44 The amendment had two
principal purposes, the Statement went on: to restore the Constitution

42 Hindustan Times, 5 May 1978. Stephen was asked about a referendum and
Parliament representing the people: What if Parliament becomes captive of one person,
as recently? The reader can decide if his response was a compliment or an insult to the
‘people’ and to Indira Gandhi: ‘““People get the government leader they deserve,” Stephen
reportedly said. Ibid.
43 This co-operation had its limits. In a move that could be interpreted as an attempt
to block any repeal of the Forty-second Amendment, but seems not to have signified this,
the two Congress parties, the CPI, and the Muslim League on 10 May brought a no-
confidence motion against the government. Nothing came of a five-hour debate over
whether or not popular sentiment indicated that Janata could not govern.
44 ‘The Constitution (Forty-fifth Amendment) Bill, 1978’, Lok Sabha Secretariat, p.
16. As was typical of bills, the bill as introduced included the Statement of Objects and
Reasons, the text of the bill, and ‘Notes on Clauses’, which explained the content and
purpose of each clause.
For a contemporary analysis of the amendment, see Dhavap, Rajeev, ‘Amending the
Amendment: The Constitution (Forty-fifth Amendment) Bill, 1978’, JILJ, vol. 20, no. 2,
1978, pp. 249-71.
 Restoring Democratic Governance 425
to its condition before the Emergency amendments and to add safeguards
to restrict the executive’s emergency and analogous powers.
The amendment did as promised. To prevent abuse of the emergency
provisions in the Constitution, the bill proposed that an emergency
could be proclaimed only in case ofwar, external aggression, or armed
rebellion. The President could proclaim an emergency only upon
‘written advice ... by the cabinet’, and such a proclamation would have
to be approved by Parliament within one month by a majority of the
members and two-thirds of those present and voting. An emergency
could be continued more than six months only if Parliament voted to
renew it. ‘President’s Rule’ proclamations would be valid for six months
‘in the first instance and ... cannot exceed one year ordinarily’.4° The
Fundamental Rights were to be protected by permitting theiramendment
only by a national referendum. The right of habeas corpus could be
preserved even during emergencies. Protections were increased for those
held under preventive detention. The media’s right to report legislative
debates was guaranteed.*©
Although introduced in May, the bill was not taken up until 7 August,
in the monsoon session. Then, speaking in its favour Bhushan expressed
gratitude for the friendly spirit of the ‘detailed dialogue’ during its
preparation.*’ He emphasized the importance of the restrictions added
to the emergency provisions and explained that Article 257A (central
forces ina state) had been deleted because it ‘was not in accordance with
the scheme of things ... laid down in the Constitution’. He said that the
Janata government favoured specialized tribunals supervized by the high
courts so the ‘small man’ woulca have recourse to an independent court
‘in his own state’, and he praised restoring the Supreme Court’s role in
deciding election disputes by deleting Article 329A.4° Bhushan defended |
taking property out of the Fundamental Rights, arguing that because the
‘vast majority of Indians did not own extensive property ‘to equate the
~9)
right to property to the more important nights ... [had resulted in curbing]
... the other fundamental rights’.4? Turning to amendment of the

45 Taken from the Objects and Reasons, ‘The Constitution (Forty-fifth Amendment)
Bill, 1978’.
46 Ibid.
47 Bhushan had contributed to this atmosphere; and he continued to do so. Several
days before the bill's introduction, he had hosted a dinner at his Race Course Road residence
for Congress and Congress (I) leaders Stephen, Muhammad, and Kamalapati Tripathi (then
in the Rajya Sabha) to urge their support for the amending bill—using the argument that
this would preempt the government from using the Forty-second Amendment against them.
48 7ok Sabha Debates, Sixth Series, vol. 17, no. 15, cols 295-302.
49 Tbid., cols 307-8.
 426 Working a Democratic Constitution
Constitution, Bhushan said that ‘we must ... seek [the people’s]
ratification’ to change provisions in which they are vitally interested.
We can’t operate ‘behind their backs’.°?
He rejected all but a handful of the four hundred amendments offered
to the amending bill. To one providing that property could be taken by
government only by due process of law, he said that would be making
property a fundamental right ‘by the back door’, and he added that so
much importance should not be given to property or ‘our credibility will
not be there among the poor people’.?! He expressed understanding
for Somnath Chatterjee’s desire to eliminate internal emergencies, but
said that without emergency powers ‘neither democracy nor liberty can
be safe’.>2 But he accepted a private member’s amendment providing
that Articles 20 and 21 in the Rights could not be suspended during an
emergency. Respectively, these were the ex post facto provision and the
article laying down that no one shall be deprived of life or liberty except
according to procedure established by law.°? The bill passed 355 to nil
_ on 23 August and went to the Rajya Sabha.
There, beginning on 28 August, Congress members exacted their
price for the amendment’s passage. Without the necessary two-thirds
majority, clause 8 of the bill failed passage, thus leaving the Fundamental
Rights in Articles 14 and 19 subservient to all of the Directive Principles
and retaining the ‘escape clause’ in Article 31C. As will be recalled, this
meant that a law claiming to give effect to the Directive Principles could
not be questioned in court on the ground that it did not do so. The
clauses in the bill deleting tribunals from the Constitution failed pas-
sage, as did those clauses defining ‘socialist’ and ‘secular’ in the Pream-
ble, and those returning ‘education’ to the State Legislative Last>*

59 Tbid., col. 310.

51 Thid., vol. 18, no. 35, col. 18.
52 Ibid., col. 72. ;
53 Tbid., col. 99. The private member’s amendment came from Kanwar Lal Gupta,
and had an interesting history. Members of the public had been writing the government
about the amending bill, and Peri Sastri and Venkatasubramanian in the Law Ministry
had been reading the letters. One of them from a retired district and sessions judge,
living in Jammu, Mr Kaul, suggested not suspending Articles 20 and 21 during an
emergency. Taken with the idea, the two convinced Bhushan that this suggestion ought
to be accepted, and Gupta was asked to submit it in a bill under his own name instead of
the government moving an amendment to its own bill—which would have been a more
laborious procedure. The relevant language was placed in Article 359 of the Constitution.
P. B. Venkatasubramanian in correspondence with the author.
54 For the debates in the Rajya Sabha, see Parliamentary Debates, Rajya Sabha, vol. 106,
no. 29, cols. 42ff through no, 32.
K. V. Raghunatha Reddy, a minister in Mrs Gandhi’s Emergency cabinet and former
-
 Restoring Democratic Governance 427
Also unsuccessful was the move to add a referendum to the amend-
ing process. Relying on the device of a referendum to protect the Consti-
tution’s basic structure seems to have been a major miscalculation by the
government. With this defeat, the Constitution remained vulnerable
under Article 368 as altered by the Forty-second Amendment, namely
that no amendment made under the article, including to the Funda-
mental Rights, could be questioned in court and that ‘there shall be no
limitation whatever on the constituent power of Parliament’ even to re-
peal the Constitution (Article 368(5)). It was left to the Supreme Court
in the 1980 Minerva Mills Case (chapter 25) to declare unconstitutional
sow"
these clauses of Article 368, which returned Parliament’s power to amend
the Constitution to the language of the Twenty-fourth Amendment as |
interpreted in Kesavananda Bharati. The Rajya Sabha passed its version
of the bill on 31 August 1978 by a vote of 182 to 1. Of the aye votes, some ~
eighty were cast by Congress members who had voted in favour of the
Forty-second Amendment and three who had been members of the
Swaran Singh Committee.
The Lok Sabha greeted the Rajya Sabha’s revised bill with dismay
when it returned on 6 December, this being the first time that an
amending bill passed by the Lok Sabha had been changed and returned
by the Rajya Sabha. There ensued a lengthy discussion about the rules
for reconsideration. Managing the bill (with Bhushan absent due to
illness), P. C. Chunder deplored the idea of not accepting the Rajya
Sabha’s changes because half a loaf was ‘better than no bread’. If the bill
shuttled back and forth between the Houses, with both sides rejecting
the other’s changes, it might fail, he argued. P. G. Mavalankar, noted for
standing up to the Congress during the Emergency, seemed to be speaking
for many when he said the members were in the position of either
accepting the ‘political humiliation’ inflicted by the other House or ‘the
entire thing collapsing’. He recommended that the government accept
the Rajya Sabha’s changes and later bring new bills to ‘undo the remaining
evil still lurking’ in the Forty-second Amendment.°° That day and the
next, the members passed the amended clauses with no more than forty
negative votes on any, and the bill passed with only one ‘nay’.
Among the 357 votes cast on 7 December 1978 to enact the Forty-
fourth Amendment were those of two enemies: Morarji Desai and Indira

member of the Congress Forum for Socialist Action supported the referendum, saying
that a party with a two-thirds majority, using the Three-line Whip, could change the
Constitution in twenty-four hours.
55 Lok Sabha Debates, Sixth Series, vol. 20, no. 13, cols. 316-20.
428 Working a Democratic Constitution

Gandhi. Desai was no surprise. Mrs Gandhi, having being returned to

Parliament in a November by-election in the South (only to be expelled
shortly for breach of privilege), also voted to repeal the Forty-second
Amendment, along with some forty other Congress members. Accord-
ing to one assessment she did so because she realized the public’s dissat-
isfaction with the Emergency and wanted to show that she had not in-
tended to destroy the Constitution.*© This is possible, but it is unlikely
that her vote indicates that she had seen the error of her way or that she
had not understood the import of the Forty-second Amendment when it
originally was presented to her. Probably she calculated thata reversal of
her position was a small price to pay for her political comeback, which
already was well under way.
Political self-preservation no doubt motivated other Congress mem-
bers of Parliament.°” Still active in politics, they had to take their con-
stituents’ views into account. ‘They were telling the people we are for
the democratic process,’ thought Margaret Alva, a Congress general
secretary in 1976.°° ‘They were showing their dissatisfaction with the
Forty-second Amendment by voting for the Forty-fourth,’ thought
Om Mehta.°? ‘Prime Minister Desai’s being in his heart still a Con-
gressman and his giving them a constructive role in the process en-
couraged the Opposition’s co-operation,’ recalled an official of the Law
Ministry under both Janata and Congress governments. Bhushan’s sen-
sitivity to Congress members’ sentiments also helped, particularly
his awareness that a swift, blanket repeal of the Forty-second Amend-
ment would have branded Congressmen as wholly evil.®° Finally,
the Congress Party’s state of ‘complete demoralization’ allowed
the amendment’s passage, thought Madhu Limaye—something
that would not have been possible had Indira Gandhi led a united
party.©!
The apparent alacrity with which Congressmen changed their

56 Jagmohan in an interview with the author. As head of the Delhi Development

Authority during the Emergency, Jagmohan had worked closely with Sanjay Gandhi on
slum clearance and other projects.
57 The following analysis is based on more than a dozen interviews, most of them
with members of the Congress Party at the time the Forty-second Amendment was
passed.
58 Margaret Alva in an interview with the author.
59 Om Mehta in an interview with the author.
60 Interviews with, among others, Bhushan and Venkatasubramanian. Bhushan’'s
depiction of his own central role may appear self-serving, but other evidence bears him
out.
61 Madhu Limaye interview with the author.
 Restoring Democratic Governance 429
positions raises questions about their having voted for the Forty- second
Amendment in the first place. Obedience to party discipline is a
possible justification. Governments can usually rely on their followers,
Sir Ivor Jennings has told us. ‘They can, within wide limits, force
unpopular measures through a sullen House.’©2 Some members may
have agreed with the substance of the amendment. Did the others
vote for what they later rejected in fear ofa tyrannical Prime Minister’s
retaliation? Had they voted against her, she could have done them
little harm, especially in the autumn of 1976, the Emergency’s waning
days. The few individuals who did vote against the amendment suffered
no retaliation. A final assessment is impossible because we cannot
know the fate of either the Forty-second or Forty-fourth Amendments
had all the Congressmen who voted for the former been present to
vote on the latter. Nevertheless, it seems reasonable to conclude that
many of the Congressmen who voted for the Forty-second Amendment
did so out of fear and for the Forty-fourth Amendment out of
conviction. Thus was the Constitution put in peril by tyranny and
cravenness, and thus was it rescued by belief in democracy and its
open process.
As for Janata, it is remarkable that a party in such disarray managed
to enact the Forty-fourth Amendment. Seventeen days before the
government introduced the draft bill in the Lok Sabha (May 1978) Charan
Singh had resigned from the Janata National Executive and its
Parliamentary Board, charging that those of low social origin were having
no share in shaping the country’s destiny.® He had resigned from the
cabinet on 30 June 1978, five weeks before the bill would be considered,
along with Health Minister Raj Narain and four ministers of state from
the Bharatiya Lok Dal—only to withdraw his resignation twelve days later.
The antagonisms within both party and government continued to fester
all summer, to burst in December 1978 while the Lok Sabha was
reconsidering the Forty-fourth Amendment as returned from the Rajya
Sabha. Charan Singh was again out of the government, and the cabinet
was riven by disagreements over issues such as the extent to which Mrs
Gandhi should be punished either by prosecution in the courts or
expulsion from Parliament. Nevertheless, the amendment was passed
and, with ratification by legislative assemblies in fourteen states, the

62 Jennings, Sir Ivoc, Parliament, 2nd edn., Cambridge University Press, Cambridge, 1957,
p. 138. ‘
63 AR, 25 June-1 July 1978, p. 14374. In contrast to this picture of enmity, two very
senior civil servants under this government spoke to the author of a ‘camaraderie
remarkable in such a disparate group’.
430 Working a Democratic Constitution
President gave his assent to the amendment on 30 April 1979. Beginning
mid-June, many of its provisions were ‘notified’ by the government, thus
actually coming into force.°t Two months later Morarji Desai’s Janata
government fell.

64 For details, see Gazettee of India Extraordinary, Government of India Publications,

Part II, Section 3 (i), 19 June 1979. )
There was an important omission. Clause 3 of the amendment affecting Article 22—
which said that no one could be detained under a preventive detention law for more than
two months without the sanction of an Advisory Board and which otherwise provided detenus
more protections—was not notified, nor had it been as of July 1993. See V. N. Shukla
Constitution of India, p. 180, footnote 65. S. Balakrishnan, long-time senior adviser in the
Law and Home ministries, wrote a long note protesting the absence of notification. Shanti
Bhushan explained to the author that the government then had individuals detained under
COFEPOSA who it would have been obliged to release had this article come into effect.
‘We needed several months to enact provisions to keep these persons in jail, but the
government fell before we could streamline laws regarding them’, Bhushan said.
 Chapter 20

GOVERNING UNDER THE CONSTITUTION

The government’s programme to restore democracy, Acting Presid

ent
B. D. Jatti told Parliament, included the “urgent tasks”’ of removing
curbs on the Fundamental Rights and restoring the rule of law.! Prime
Minister Morarji Desai, in his broadcast to the nation, promised remedi
al
“restructuring and system changes”’.? Pursuing these aims, while
amending the Constitution, the Janata government would be confronted
by the responsibilities of office and the accompanying perplexities, which
caused it to perform well and less well. And because important ministers
had been Congressmen, much that the government did and did not do
had a familiar ring—displaying again the well-known continuities in
Indian governance.
This chapter will take up these topics in four sections. The first of
these, ‘Fundamental Freedoms’, describes the successful repealing of
legislation curbing the freedoms of speech, the press, and so on. The
government's encounter with that long- standing liberty issue, preventive
detention, proved embarrassing. The second section describes the
executive's protection of judicial independence, which on two occasions
had to be from assaults by several of its own supporters. As to national
unity and integrity and centre-state relations, taken up in the third section,
Janata failed to fulfill its promises of increased political participation
through decentralization toward the grassroots. The government’s
dismissal of state governments in Congress’s hands bordered on the
undemocratic, although strictly speaking they were constitutional. In the
final section of this chapter are described the appointment of several
commissions to assist socially and economically disadvantaged citizens.
The work of one of these later would become profoundly influential.
Janata’s ability to govern was severely tested by demands to punish Indira
Gandhi and her close associates for alleged wrong-doing during the
Emergency. So important were the constitutional and immediate political
ramifications of this test that they are treated separately in the next chapter.

! Speech of 26 March 1977 while inaugurating the session. Hindustan Times, 29 March
1977. The newspaper praised the speech for its ‘realism and lack of verbosity’.
2 4 April 1977. AR, 14-20 May 1977, pp. 13734-6.
432 Working a Democratic Constitution

Fundamental Freedoms
nment
Three days after assuming office on 27 March 1977, the Desai gover
the
began its efforts, through ordinances and legislation, to overturn
the
Emergency’s restrictions on the Fundamental Rights. It revoked
197] at
long-existing external emergency proclaimed on 12 December
the time of the Bangladesh war—thus also ending the applicability of
the Defence of India Act and the Defence ofIndia Rules. Mrs Gandhi's
government had revoked the June 1975 Emergency on 21 March 1977
upon its defeat at the polls. Shortly thereafter, ‘amidst cheers’, the Lok
Sabha repealed the Publication of Objectionable Matter Act and the
Parliamentary Proceedings (Protection) Act, which also restored the
Protection of Publication Act of 1956. The Statement of Objects and
Reasons of the first bill, piloted by Information and Broadcasting
Minister L. K. Advani, said that ‘Freedom of the press is necessary for
the successful functioning of democratic institutions.’ The statement
for the second bill said that it is ‘of paramount importance that
proceedings in Parliament should be communicated to the public’,
and that the mass media should be able to publish ‘substantially true
reports of proceedings ... without being exposed to any civil or criminal
action’.° Later, the government lifted the ban on imported publications.
Within a few days, the government took from the cabinet secretariat
and the Prime Minister’s secretariat various organizations and functions
Mrs Gandhi had centralized there. Law Minister Bhushan followed these
in June with a bill that repealed President Ahmed’s 3 February ordinances
setting up nine-member election ‘authorities’ and thus restored to the
Supreme Court the power to decide disputes concerning elections of
the President, Vice-President, Prime Minister, and Speaker.*
A considerably more demanding task was dealing with that tenacious
liberty issue, preventive detention. During the election campaign, Janata
had pledged itself to reduce the central government's resort to preven-
tive detention, specifically by repealing the 1971 Maintenance of Inter-
nal Security Act. Although Acting President Jatti had reiterated the
popular promise in his speech inaugurating the new Parliament, the
government acted slowly and equivocally. The essence of the matter
was that governments over the years had come to believe preventive

3 Government Bills, 1977, Lok Sabha Secretariat. For an account of these events, see
also Limaye, Janata Party Experiment, vol. 1, pp. 395ff.
4 AR, 16-22 July 1977, p. 13839. The bill passed with little debate and with Congress
support. Congressman Seyid Muhammed said at the time that in passing the Thirty-
ninth Amendment, Congress had intended no disrespect for the judiciary.
 Governing Under the Constitution 433

detention a necessary—and convenient—tool for governing. ‘The Con-

gress governments had always leaned heavily on preventive detention,’
and the Janata government ‘was dominated by former Congressmen’,
explained Madhu Limaye.° Mohan Dharia, a genuine friend ofliberty
and the Minister for Commerce and Civil Supplies, faced this dilemma.
‘I have no doubt ... that measures like MISA cannot be used against
political activities or to scuttle the hard-won freedom of the press,’ he
wrote to the Prime Minister in July 1977. Within these limitations, how-
ever, ‘itis necessary to have certain preventive actions against economic
offenders and anti-social elements ... . Preventive measures, scrupulously
avoiding the name MISA, should be immediately introduced against
economic offenders and anti-social elements.’® The government both
pledged ‘““absolute and unconditional”’ repeal of MISA and then, that
summer of 1977, explained its failure to do so as due to its need to re-
examine the need for preventive detention against economic offences
and to protect national security.
During November 1977, detention received a good deal of press
attention because of developments in two states. InJammu and Kashmir,
Sheikh Abdullah’s government had assumed wide powers for preventive
detention and banning the press. Srinagar ignored New Delhi’s suggested
modifications to the ordinance it intended to proclaim and followed
this in April 1978 by enacting a Public Safety Bill providing for detention
without trial and for curbs on the press.® Also during November, Morarji
Desai defended a preventive detention ordinance promulgated in

5 Limaye, Janata Party Experiment, vol. 1, p. 301.

© But Dharia also recommended important safeguards against the use of detention
for political purposes. For his position see his ‘Dear Morarjibhai’ letter dated 11 July
1977, Jayaprakash Narayan Papers, Third Installment, Subject File 345, NMML. His
safeguards were that no individual preventively detained should be ‘debarred from
approaching the judiciary’ and the advisory board ‘should necessarily’ have on it a
representative of the major opposition party (both at the central and state levels) to
safeguard the Constitution’s freedoms.
Dharia thought it necessary to clarify his position to Jayaprakash Narayan, and he
wrote to him on 2 August along the lines of the letter to Desai, but being more specific
about using preventive detention ‘against hoarders, smugglers, economic offenders’ and
elements ‘which function against the larger interest of the common man’. Ibid.
7 Hindustan Times, 25 August 1977. A few weeks later this newspaper proclaimed that
the government was considering repealing MISA by ordinance in a few days. It did not
happen.
8 The Jammu and Kashmir ordinance was dated 6 November. Limaye and Rabi Ray,
general secretaries of the Janata Party, strongly deplored it. New Delhi's suggestions were
in the form of a letter from Charan Singh to Abdullah. Hindustan Times, 7 November
1977, and 8, 11, and 30 November 1977.
434 Working a Democratic Constitution
Madhya Pradesh in September and admitted that his government was
feeling the need for a law to deal with persons bent on disturbing the
peace and engaging in anti-social activities.?
The government revealed its intention to have it both ways on 23
December. It introduced in the Lok Sabha ‘The Code of Criminal
Procedure (Amendment) Bill, 1977’, which both repealed MISA and
would have added to the code a new chapter providing for preventive
detention. The bill’s Statement of Objects and Reasons, signed by
Charan Singh, said that without the power of preventive detention the
government was ‘greatly handicapped’ in dealing with problems of
security, public order, and rising prices. But aware of the abuses of the
Emergency, the statement continued, the government did not propose
to take ‘away the right of persons to move the courts for enforcement
of Fundamental Rights’ and there would be other safeguards to prevent
‘the use of this law for political purposes’.!°
This ‘dirty trick, an attempt at deception’, as Madhu Limaye thought
it, created an uproar in the party for two reasons. One was the
reintroduction of preventive detention as such. More significant was
that the bill made detention without trial the law of the land, for the
Criminal Procedure Code was a permanent statute. The various acts
over the years providing for detention were understood to be temporary
measures. Several had expired or been repealed, although others had
been unduly prolonged, as has been seen. Government explanations
and assurances failed to allay fears, and on 16 March 1978 members of
the JPP opposed immediate passage of the bill and called for continued

9 Hindustan Times, 20 November 1977. At this time, the governments of Andhra Pradesh,
Uttar Pradesh, and Rajasthan retained their own preventive detention statutes dating
from 1969 and 1971.
10 See Government Bills, 1977, Lok Sabha Secretariat. The government seems not to
have fully disclosed the content of the bill at a Janata Parliamentary Party meeting on 22
December.
The bill’s safeguards included: orders authorizing officers to detain offenders would
be valid for three months only, detenus had to be given the grounds for their detention
within five days of it, and detenus were allowed to make representations to the government
against the order. Advisory Board members were to be approved by the chief justice of the
appropniate high court, and the chairman ofthe board was to be a high court judge. Within
four weeks of the detention, the government had to send the case to the advisory board,
which could request information and witnesses. Other safeguards from earlier preventive
detention acts were included, and the maximum detention period was to be twelve months.
Actions that could lead to detention included those prejudicial to the defence or
security of India and to the maintenance of essential supplies and services. Use oflethal
weapons, propagating enmity based on religion and caste, and mischief toward public
property could also result in detention,
 Governing Under the Constitution 435
debate on the matter. A week later, Charan Singh, ‘amidst thunderous
applause’, announced that the bill would be withdrawn, adding that
the true test of democracy was its responsiveness to public opinion.!! A
bill repealing MISA passed on 19July. Yet the chief ministers two months
later were reported to favour preventive detention for ‘violent and
heinous’ crimes.!* More than a year later the issue was back. On 5
October 1979, Charan Singh’s caretaker government promulgated The
Prevention of Black Marketing and Maintenance of Essential
Commodities Ordinance, which included provision for preventive
detention while restricting its use to preventing actions endangering
supplies. There were safeguards along the lines of the earlier attempt
to amend the Criminal Procedure Code.!° President Sanjiva Reddy,
many chief ministers, and several political parties, reportedly opposed
the ordinance.'* Mrs Gandhi’s government, after her victory in the
January 1980 parliamentary elections, replaced the ordinance with an ae tds
Act of Parliament on 12 February 1980.!°

Judicial Independence
The principle ofjudicial independence that from the beginning of the
country’s constitutional experience had had the status of holy writ—
whether or not profaned in practice—was again tested during the Janata
years.
Morarji Desai’s proclaimed ‘zealous regard’ for principle was tested
within a few days of the government’s formation. Several Janata Party
members of Parliament sought to rectify, as they saw it, Mrs Gandhi’s
final attack on thejudiciary before leaving office. On 28 January 1977,

11 Hindustan Times, 24 March 1978. The bill was actually withdrawn on 30 March.
12 At the chief ministers meeting of 24 September 1978. AR, 5-11 November 1978,
pp. 14587-8.
13 The safeguards included that detentions could last a maximum of six months after
approval by an advisory board, the grounds for detention had to be communicated to the
detenu within five days and to the board within three weeks, and the board had to report
within seven weeks of the detention. The detenu could make a personal representation
and appear before the board, which was to consist of the chief justice of the high court and
two others. Appeals to the Supreme Court could be made under Articles 32 and 226 of the
Constitution.
14 AR, 12-18 November 1979, p. 15170.
15 Siwach,J. R., Dynamics of Indian Government and Politics, 2nd and enlarged edn.,
Sterling Publishers Pvt. Ltd., New Delhi, 1990, p. 524, footnote 13.
Fora text and explanation of the ordinance of October 1979 and the Act that followed
in February 1980, see Swaroop, Law of Preventive Detention, p. 450.
436 Working a Democratic Constitution

ten days after he had called elections, President Ahmed superseded Justice
H. R. Khanna by appointing M. H. Beg Chief Justice of India to succeed
A.N. Ray, who would retire on 29 January. Khanna immediately resigned
from the Court. Prime Minister Gandhi had ordered the supersession
against the advice of both her Law Minister and the Chairman of the
Law Commission.!© Khanna who was next senior to Ray on the Court
believed that he was superseded because he had been with the majority
against the government in the Kesavananada Bharati case and had been
the lone dissenter against the government in the Emergency’s Habeas
Corpus case.!7 Many agreed with him, and from this distance there can
be little doubt that he was correct.
Janata supporters sought to right this wrong. Bitter over the
Emergency, angry at the Supreme Court for upholding the legality of
the Emergency’s punitive character in the Habeas Corpus case, and
infuriated by Mrs Gandhi’s treatment of the hero of liberty in that case,
Khanna, Janata Party members K. S. Hegde (of the 1973 supersession),
Ram Jethmalani, and others tried to have Beg removed so that Khanna
could replace him. Jethmalani, who had defeated Gokhale for a Lok
Sabha seat from Bombay, made ‘no secret his wish’ that Beg should be
asked to step down and that Khanna ‘should take over as Chief Justice
of India’, recalled Khanna, who told the visiting persuaders that it would
‘not be proper to do so’.!8 Soon thereafter Khanna told the Prime

16 Gokhale told Kuldip Nayar that he had advised Mrs Gandhi against this
supersession, but that she did not listen to him. Nayar, The Judgement, p. 169.
Gajendragadkar had asked Om Mehta to convey to Mrs Gandhi ‘my keen desire’ that
Khanna not be superseded. Gajendragadkar—Indira Gandhi letter dated 24 August 1977,
P. B. Gajendragadkar Papers, NMML.
17 Khanna interview with the author.
For a variety of press reports and commentary about the supersession, see Pillai, S.
Devadas (ed.), The Incredible Elections: 1977, Popular Prakashan, Bombay, 1977, chapter 4,
‘The Khanna Issue’.
Law Minister Gokhale explained that Beg’s appointment was in keeping with the
government's policy since 1973 that seniority should not be the sole criterion for elevation
to the chief justiceship, and it also was due to the ““very brief tenure”’ of six-plus months
Khanna would have had before his compulsory retirement. It was ““no reflection”’ on
him. Hindustan Times, 29 January 1977. Khanna resigned from the Court in a letter of
protest to the President and went on leave, actually retiring from the Court in mid-March.
Justice Beg’s tenure would be thirteen months.
18 Khanna, Neither Roses Nor Thorns, p. 91.
The Hindustan Times of 25 March 1977 reported that Jethmalani was saying publicly
that Beg should resign because the policy of a committed judiciary under which he had
been appointed Chief Justice was no longer in vogue, but that Janata should not try to
oust him.
 Governing Under the Constitution 437

Minister the same after Desai told him of rumoured attempts to get
Beg to step down. Desai then told Khanna that the government had
decided against such a move.!9 Khanna went on to become Chairman
of the Law Commission that December, and of the three important
reports published during his ime, one concerned the appointment of
judges.*°
The government faced greater difficulties when it came to replacing
Chief Justice Beg when he retired in February 1978, but it would stand
firm on democratic principles while these clashed with rage lingering
from the Emergency. The next two judges after Beg in order of seniority
were Y. V. Chandrachud and P. N. Bhagwati, the former appointed to the
Supreme Court in August 1972 and the latter in July 1973. Personally
competitive, they had come from competitive high courts, Bombay and
Gujarat, respectively. Jayaprakash Narayan as early as mid-July 1977 wrote
to Shanti Bhushan about this succession. Said Narayan, it seems to me
most unfortunate if either becomes Chief Justice on the ground of
seniority. I recognize a matter of principle is involved, and that we did

/
object to Mrs Gandhi’s supersession. But this is different because
nonpartisan: these men abdicated their duty when they found for the
government in the Habeas Corpus case. No doubt the country would
support you, Narayan concluded. Bhushan replied on 31 July that the
Habeas Corpus judgement was ‘unsupportable besides being
unfortunate’, but the matter was complex and needed the ‘utmost care’
in handling.?! Bhushan later flew to Bombay to talk directly with Narayan
and convinced him against another supersession by arguing that if the
government ‘handpicked’ the new Chief Justice, it would lose credibility.
Some months later, Narayan ws reported to hold the view that only an
acting chief justice should have been appointed until proper guidelines
for the selection had been established, even if this involved amending
the Constitution.?2

19 Khanna, Neither Roses Nor Thorns, p. 91.

L. K. Advani told the Lok Sabha that the rumour was baseless. Another version of these
events has Morarji Desai less solicitous of judical independence; Jethmalani claimed that
Desai orally asked Beg to step down. A senior law officer of the time believed this to be true.
20 The report dealt almost exclusively with the appointment of high court judges;
the selection of Chief Justice of India was not mentioned.
21 The author has reconstructed Narayan’s letter, in Bhushan’s possession, from
Bhushan’s description. For Bhushan’s letter to Narayan, see Jayaprakash Narayan Papers,
Third Installment, Subject File 345, NMML. This account of the controversy, where it is
not otherwise attributed, is based upon interviews with Bhushan, Soli Sorabjee, Nirmal
Mukarji, P. B. Venkatasubramanian, M. Rama Jois, and Justice Y. V. Chandrachud.
22 Hindustan Times 19 February 1978.
 438 Working a Democratic Constitution

At the end of 1977, with Justice Beg’s retirement in February approach-

ing, succession partisans became vocal. Led by former Chief Justice of
the Bombay High Court M. C. Chagla, a group within the Bombay bar
released a statement to the press characterizing Chandrachud and
Bhagwati as being committed judges and not being upholders of
individual liberty—because they had ruled for the government in the
Habeas Corpus case.?° Conversely, some 120 Supreme Court advocates
publicly supported the seniority principle. They rejected the contention
that Chandrachud’s Habeas Corpus case opinion disqualified him for
the chief justiceship, much though they deplored that decision. Learn-
ing of this, Morarji Desai declared that the new Chief Justice would be
appointed ‘according to the Constitution’.24 Desai and Bhushan held
firm against supersession with support from Additional Solicitor Gen-
eral Soli Sorabjee and K. S. Hegde, Speaker of the Lok Sabha.?°

23 For a discussion of the so-called ‘Bombay Memorandum’, see Baxi, The Jndian
Supreme Court and Politics, pp. 191-8.
Chagla was rumoured to have been in touch with Nani Palkhivala, then Indian
ambassador in Washington, to sound out his willingness to take the job. If true, perhaps
this was an attempt to avoid the seniority issue by bringing in an individual from outside
the court.
Chief Justice Beg was involved during the autumn of 1977 in what some labelled a
‘supersession’ but which was not. On Beg’s advice, he having first consulted two senior
judges on the Supreme Court, the government had appointed two judges to the Supreme
VA Court, D. A. Desai from the Gujarat High Court, and V. D. Tulzapurkar from the Bombay
High Court. Neither of the two was senior on his own court, but such seniority on a high
court had not been a prerequisite for elevation to the Supreme Court. Nevertheless,
‘political motivation’ was alleged by some. M.C. Chagla protested, and the Gujarat High
Court Advocates Association passed a resolution protesting Beg’s having described Desai
as the ‘“ablest judge”’ on the Gujarat court. Shanti Bhushan defended his government
and Justice Beg. The fray is described in Dhavan and Jacob, Selection and Appointment of
Supreme Court Judges, pp. 13ff.
24 Hindustan Times, 13 January 1978. S. N. Mishra, Deputy Leader of the Janata
vA Parliamentary Party, Raj Narain, George Fernandes, Ram Jethmalani, and others opposed
Chandrachud. Published accounts of the controversy did not mention who was next in
seniority to become Chief Justice were both Chandrachud and Bhagwati to be superseded:
V. R. Krishna Iyer, who some considered far more ‘committed’ than the two judges senior
to him.
25 Hegde to M. Rama Jois, according to Rama Jois, in an interview with the author.
Rama Jois had been Hegde’s election agent in the 1977 general election, and, as seen in
chapter 15, had been closely involved in the Habeas Corpus case.
Justice Chandrachud thought that Morarji Desai had been favourably impressed by
his ‘not having lifted a finger’ to gain the chief justiceship and that the Prime Minister
did not believe his opinion in the Habeas Corpus case had been due to ‘ulterior motives’.
Y. V. Chandrachud interview with the author.
As Chief Justice, Chandrachud may have somewhat redeemed himself in the eyes of
 Governing Under the Constitution 439

Wishing to be sure of his ground, Shanti Bhushan wrote to each of

the judges of the Supreme Court, to the chief justices of the high courts,
and to several prominent lawyers asking their views about adhering to
the seniority principle. The ‘overwhelming opinion’ of the responses
favoured selection according to seniority.2° Bhushan then prepared a
comprehensive note on the basis of the replies and submitted it to the
Cabinet Committee on Political Affairs at its meeting on 17 February
1978. After a lengthy discussion, the committee settled on Y. V.
Chandrachud, and two days later President Sanjiva Reddy appointed
him Chief Justice of India—to serve longer than any other before or
since.?/
The Desai government further supported judicial independence by
reversing the transfers of high court judges Mrs Gandhi had made
during the Emergency. Law Minister Bhushan announced this in the
Lok Sabha on 5 April 1977, saying that judges wishing to return to their
high courts could do so, but the government would not compel them
to return.?° The Supreme Court would later hold that a judge’s consent
was not a necessary condition for his transfer.??
Judicial independence was most significantly affected during this
period by the Supreme Court, itself. In what amounted to a declaration

his detractors by, soon after his appointment, cancelling Sanjay Gandhi’s anticipatory
bail and ordering him taken into custody because he had abused his liberty by “attempting
to suborn prosecution witnesses”’ in the Kissa Kursi Ka case (on 5 May 1978). Gandhi
went to Tihar Jail on 5 May. AR, 16-22 July 1978, p. 14406. Also on this bench were
Justices Fazl Ali and P. N. Singhal. The Supreme Court was hearing an appeal from the
Delhi High Court.
‘ 26 ‘Overwhelming’, according to the AR, 26 March-1 April 1978, p. 14231. ‘Almost
all’ the responses favoured seniority, Bhushan said in an interview with the author.
27 Two months later, the Hindustan Times reported that Chandrachud had recom-
mended that the appointment of chief justices of India, as matters of national importance,
should not be left to the government of the day. He was said to believe that there should be
a national debate in the press and other forums on the ‘merits and demerits of the judges
who were in the run (sic)’ for the highest judicial office.
28 Times of India, as cited in AR, 14-20 May 1977 and Hindustan Times, 24 June 1977.
See chapter 15 for an account of the original transfers. Shanti Bhushan had been touched
personally by the Emergency transfer of judges when his brother-in-law could not become
chief justice of the Allahabad High Court because a judge transferred from the Karnataka
High Court had been made chief justice. The brother-in-law later did become chief justice
in Allahabad when the transferred judge returned to Bangalore.
29 This was Sankalchand’s case, named forJustice Sankalchand H. Sheth who appealed
his transfer from the Gujarat High Court, the only instance of a judge challenging his
Emergency transfer. The bench hearing the appeal consisted of Justices Chandrachud,
Krishna lyer, and Fazl Ali. Union of India v Sankalchand Himatlal Sheth 1977 (4) SCC 193fF,
also Times of India, 20 September 1977. See chapter 15 for the origin of the case.
 440 Working a Democratic Constitution
p
of independence, the Court invented for India the concept of ‘public
interest litigation’.*° Due to the presence of several activist juadges—who
perhaps subconsciously were compensating for the Court’s record during
the Emergency—the Court became an active, not just a reactive, protector
of the Fundamental Rights and the social revolution. On 5 February 1979
the court, acting in response to a habeas corpus petition filed by private
citizen and senior advocate, Mrs K. Hingorani, ordered the release on
personal bonds of thirty-four prisoners held in Bihar jails. Imprisoned
for periods of two to ten years, the men claimed that their detention was
unlawful because they had been held without trial for longer than their
sentences would have been had they been tried and convicted. The court
also ordered the state government to provide it with information about
‘undertrials’ not mentioned in the petition. Two benches were involved.
One consisted of Justices V. R. Krishna Iyer and O. Chinnappa Reddy,
the second ofJustices P. N. Bhagwati, R. S. Pathak, and A. D. Koshal.?! Of
the five men, Krishna Iyer, Chinnappa Reddy, and Bhagwati would come
to be considered the trend-setters in public interest litigation. A month
later, in a similar action, a bench consisting of Bhagwati and Justice D. A.
Desai ordered prisoners to be released from Delhi’s Tihar Jail.2* Such
detentions, the Court said, were illegal under Article 21, and a speedy
trial was every citizen’s right. Further, the court ordered the governments
of Uttar Pradesh, Karnataka, West Bengal, Meghalaya, and Jammu and
Kashmir to provide it with information about underirials in their states.
Closer to what would become the model for future public interest

30 ‘Public interest litigation’, also called PIL and ‘social action litigation’, in essence
gives third parties ‘standing’ to bring before the courts issues in the name of the public
interest, including complaints from individuals or groups that could not, themselves,
bring their case to the courts. An element of this has been called ‘epistolary jurisdiction’,
meaning that the Supreme Court may act on receipt ofa letter (even a postcard) from a
citizen requesting protection of his fundamental rights. Upon receipt of such a
communication, the Court may decide to appoint its ‘commissioner’ to determine if the
complaint is worthy of adjudication. 'f so advised, the Court may proceed from there.
31 Hindustan Times, 6 February 1979. Mrs Hingorani had filed the petition after reading
articles published in Delhi by K. Rustomji of the National Police Commission—appointed
by Janata—about the number and conditions of undertrials.
For more about the development of PIL, see Part VII and Shourie, Jnstitutions in the
Janata Phase, pp. 123ff. See also Dhagamwar, Vasudeva, Criminal Justice or Chaos?, Har-
Anand Publications Pvt. Ltd., New Delhi, 1997, especially pp. 62ff.
32 Hindustan Times, 6 March 1979.
Justices Bhagwati and Pathak later would become Chief Justices. Pathak, Reddy, and
Koshal were appointed by the Janata government, Krishna Iyer by Mrs Gandhi in 1973.
Justice Desai also was appointed by the Janata government, and the minor controversy
over his appointment has been mentioned.
 Governing Under the Constitution 44]
litigation was a September decision the same year, again by Justices Krishna
lyer and Chinnappa Reddy. The case originated with the citizens in Ratlam
Municipality who, ‘tormented by stench and stink’ of open drains, moved
a magistrate under Section 133 of the Criminal Procedure Code to do
his duty to the public by remedying the situation. The magistrate ordered
the municipality to offer a plan within six months. The sessions (criminal)
court reversed the magistrate, and the citizens’ appeal was upheld by the
high court and again by the Supreme Court. Doing so, Krishna Iyer and
Reddy ordered the municipality to build latrines and provide good water,
and they instructed the local magistrate to prosecute municipal officers
if they failed to comply. Procedural rules should infuse life into substantive
rights, said Krishna lyer in the decision. At issue were the ‘problems of
access to justice for the people beyond the blinkered rules of “standing”
of British-Indian vintage’. The centre of gravity was shifting from the
individualism of locus standi ‘to the community orientation of public
interest litigation ... to force public bodies ... to implement ... plans in
response to public grievances’, Krishna lyer said. With the Directive
Principles of State Policy having found statutory expression, continued
Krishna lyer, ‘the court will not stand idly by and allow municipal
government to become a statutory mockery’.*? The number of public
interest litigation cases grew for a time during the eighties, then declined,
and have risen dramatically in the mid-nineties.

Federal Issues
Having come into office proclaiming the centralized state a menace to
society and promising to promote national unity and harmony, the Janata
government within days initiated a massive display of centralized power.
Euphoric with the electorate’s rejection of Mrs Gandhi, it dissolved the
Congress-led governments and legislatures in nine states—those in which
the election nearly had wiped out Congress’s representation in the Lok
Sabha—and imposed President’s Rule until state elections could be held,
which was seven weeks later. The Janata government claimed that the
defeats in Lok Sabha elections by implication showed that the majorities
the Congress retained in these states, dating from the 1972 elections, no
longer represented the sentiments of the people. Thus they had lost their
moral right to hold office. Moreover, the Janata government argued,

33 Municipal Council, Ratlam, Petitioner v Vardichan and Others, Respondents 1980 (4)
SCC 162. Quotation from page 174. Otherwise called Ratlam Municipality, the decision
was handed down on 29 September 1979.
 442 “Working a Democratic Constitution
Parliament had extended the terms of the legislatures in these states by
one year in March 1976, denying citizens the elections due when the
legislatures’ normal five-year terms would have ended in the spring of
1977.*4 In sum, the government’s position was that democratic principles
and the possibility of severe strains in centre-state relations justified the
dissolutions and President’s Rule. Itjust so happened that these principles
favoured practical political considerations. These came down to votes in
V the Rajya Sabha (most of whose members are elected by state legislatures)
when they would become necessary for repealing the Forty-second
Amendmentand when they would affect the election of a new President
in July.°°
Dissolving the assemblies had had strong proponents before the Janata
Party formed the government. During the election campaign Jayaprakash
Narayan advocated fresh state elections, calling them constitutional. He
did so again on the day Janata knew it had won ina national broadcast.*©
The Prime Minister seemed opposed to this view at first, or at least
undecided. At a press conference on 4 April, the day he took the oath of
office, he was reported to have said, variously: the government will not
topple the ministries in the states, but “if they topple themselves, what
can I do?”’; there should be fresh polls in the states where the Congress
had lost heavily, but ““we should not do it in a manner that we repeat
what the last government had done”’; and ““there is no question of
dissolving legally constituted governments or assemblies.”’?”

34 Parliament extended the legislatures’ terms by one year on 18 March 1976 when it
extended its own life by a year. The latter act was under Article 83 of the Constitution, and
the former under Article 172, which says that, during an emergency, Parliament may, for
one year at a time, extend legislature sessions by one year.
The nine states placed under President's Rule were West Bengal, Himachal Pradesh,
Madhya Pradesh, Uttar Pradesh, Bihar, Haryana, Punjab, Rajasthan, and Orissa.
35 The Constitution required this election six months after President Ahmed’s death
in office. An electoral college consisting of elected members ofstate legislative assemblies
and both houses of Parliament elects the President.
36 To reporters on 22 March 1977. Limaye, Janata Party Experiment, vol. 1, p. 311. Also
see Hindustan Times, 3 and 14 April 1977.
This hardly was surprising, for Narayan had demanded the dissolution of the Bihar
assembly during the winter of 1975. Early support for Narayan came from an unlikely
source, long-time Congressman and former President V. V. Gini, according to dispatches
in the Hindustan Times and National Herald. Issues of 23 March and 25 March 1977,
respectively, as cited in Limaye, Janata Party Experiment, vol. 1, p. 311.
Giri took this position in part because he believed that the same political party
should
govern in New Delhi and the state capitals—a dangerous view and a negation
of the
federal principle, thought Limaye. Ibid., p. $13.
37 Because the remarks seem contradictory, it may be well to quote each
account. ‘The
Prime Minister made it clear that he was not going to topple Ministries in
any State but
 Governing Under the Constitution 443

But the proponents ofdissolution within his ministry argued strongly,

led by Home Minister Charan Singh backed by Law Minister Bhushan,
.*8Janata leaders like Madhu Limaye
who ‘sold the idea to the Janata Party’
and Ram Jethmalani were quoted as saying that the state governments,
themselves, should resign where their terms had been extended ““fraudu-
lently”’ during the Emergency. The cabinet decided unanimously that
the nine state governments should be dismissed, but its strategy was to
have the state governemnts take the step.°9 The decision taken, Charan
Singh on April 18 senta letter, which Bhushan claims to have drafted, to
nine Congress chief ministers saying that the government had given ear-
nest consideration to the ““most unprecedented”’ situation created by
the national elections and was gravely concerned about ““the resultant
climate of uncertainty ... [and] diffidence at different levels of adminis-
tration ... [that] has already given rise to serious threats of law and or-
der”’. The letter continued that eminent constitutional experts had long
been of the opinion that when a legislature and the electorate are at
variance, dissolution and obtaining a fresh mandate would be ““appro-
priate”’. Charan Singh suggested to the chief ministers that they advise
their governors to dissolve the legislature and call for elections.?9 Shanti
Bhushan gave an even clearer indication of the government’s policy dur
ing an interview on All India Radio four days later. Democracy was the

asked: “If they topple themselves, what can I do?” It would not be proper to topple any
Ministry as long as it enjoyed a majority in the House. About holding fresh elections in
states where the Congress Party had lost heavily in the Lok Sabha elections, Mr Desai said
there should be a fresh poll but added: “We should not do it in a manner that we repeat
what the last Government had done.”’ Hindustan Times, 25 March 1977.
The Statesman’ account of this press conference contained substantially the same
quotation about toppling. It also said: ‘In reply to a question, Mr Desai ruled out the
holding of fresh elections to the assemblies of states where the Congress had been defeated
in the recent Lok Sabha poll. “There is no question of dissolving legally constituted
governments of assemblies,” he observed.’ Statesman, 25 March 1977.
38 Charan Singh’s role from P. B. Venkatasubramanian and Shanti Bhushan in
interviews with the author.
39 From the author’s interview with Nirmal Mukarji, then.the Cabinet Secretary.
At no time during this entire affair did members of the government think that
dissolving the assemblies might come back to haunt them, as it would in 1980. “They
the time.
thoyght they would be in power forever,’ remembered a senior official of
at the
40 Quoted in Jacob, Alice and Dhavan, Rajeev, “The Dissolution Case: Politics
Bar of the Supreme Court’, J/L/, vol. 19, no. 4, 1977, pp. 355ff.
ons to
The same day, Charan Singh announced the formation of three commissi
investigate Emergency’s excesses.
should
During the period Janata Party leaders were embroiled in a dispute over whom
be party president.
444 Working a Democratic Constitution

most important element of the Constitution’s basic structure, he said,

and if state governments continued in power ‘after having lost the confi-
dence of the people, they would be undemocratic governments’.4! Goy-
ernors had the authority to summon and dissolve assemblies, argued
Bhushan, citing Article 174. Article 355 said that it was the duty of the
union government to ensure that government in the states was conducted
according to the Constitution. Were government not so conducted, he
said, the central government had the authority under Article 356 to take
over the state government and invoke President’s Rule.
Six of the nine governments attempted to protect what they believed
to be their constitutional rights by taking their predicament to the
Supreme Court. On 25 April, it began hearing their applications praying
that the court declare Charan Singh’s letter ultra vires and not binding
on the state governments and asking the court to issue an injunction
against the Janata government's resorting to President’s Rule.42 With
hearings underway, the Desai cabinet deferred further action.*? The state
governments contended that it was erroneous to argue that the Congress’s
election defeats were sufficient cause to dissolve the assemblies; using
Article 356 under these conditions ‘would be destructive of the federal
structure’ and, because outside the purposes and objectives of the article,
would be male fides.4* H. R. Gokhale and Niren De, out of office and
representing the states, argued that the Home Minister’s letter was a
threat and that the President could not dissolve the assemblies until after
both Houses of Parliament had approved the proclamation—a
requirement not in the Constitution.
Representing the government, Additional Solicitor General Soli
Sorabjee argued that grounds for invoking Article 356 were not justiciable
and the freedom of action of the ‘highest organs of the Union should
not be impeded by judicial interference except on grounds of clearest

41 Hindustan Times, 23 April 1977. The Statesman’s account is substantially the same.
42 The state governments were those of Rajasthan, Madhya Pradesh, Punjab, Bihar,
Himachal Pradesh, and Orissa.
The case was State ofRajasthan and Others v Union of India 1978 (1) SCR Lff. The seven-
judge bench was headed by Chief Justice Beg, along with Justices Y. V. Chandrachud,
P. N. Bhagwati, P. K. Goswami, A. C. Gupta, N. L. Untwalia, and S. Murtaza Fazl Ali. Fora
useful discussion of the case, see V. N. Shukla’s Constitution of India.
Three Punjab legislators had also filed suits that the dissolution of their assembly
would violate their personal rights, depriving them of their livelihood and causing them
to suffer “irreparable injury”’. Hindustan Times, 28 April 1977. Senior Advocate R. K.
Garg represented them. The court heard the various suits together.
48 Hindustan Times, 26 April 1977.
441978 (1) SCR 2-8.
 Governing Under the Constitution 445

and gravest possible character’

.4°Congress’s defeats of themselves would
not be sufficient cause for dissolution, Sorabjee continued; it was the
conditions resulting from the defeats that necessitated dissolution. Several
judges asked the lawyers if the case were not ‘political’ and therefore a
dispute the court should stay out of. This allowed Sorabjee to argue that
it was a question whether or not the states could bring to the court ‘““a
dispute of political character”’.*©
‘As widely expected’, the Supreme Court dismissed all the suits on 29
April.*’ The seven judges gave their reasons in four opinions delivered
on 6 May. The essence ofJustice Beg’s opinion was that use of Article 356
can be either curative or preventive and its use cannot be excluded if the
central government thinks the state governments must seek a fresh
mandate to prevent a bad law and order situation; questions of political
wisdom or executive policy should not be subject to judicial control. Justice
Chandrachud believed the Home Minister’s letter to be a legal issue and
therefore not outside the Court’s jurisdiction under Article 131; whether
or not Parliament eventually approves a proclamation under Article 356,
it would be valid for two months, he held. Justice Bhagwati ruled that the
‘satisfaction’ of the President is subjective and not subject matter for
the judiciary; the Home Minister’s letter was advice, not a directive, and
therefore cannot be unconstitutional; and where there has been a total
rout of ruling party candidates ‘it is proof of complete alienation between
the government and the people’.*® Looking back on the Court’s decision
and choosing his words carefully, Sorabjee commented, ‘in the prevailing
atmosphere, the court readily accepted my arguments’.*9

45 Ibid., p. 3.
46 Hindustan Times, 27 April 1977. Near the end of the hearing, Sorabjee handed to
the judges a paper containing three propositions: that the President's ‘satisfaction’ when
declaring President’s Rule was not justiciable and the courts could not go into the adequacy
or relevancy of the information upon which his decision was based; if the President’s action
under Article 356 were absolutely absurd, perverse, mala fide, and there was no nexus between
situation and action, then the President’s action might be questioned; and even if it were
assumed that the facts in the Charan Singh letter werejusticiable, it could not be said that
they were extraneous, absurd, or perverse. Ibid.
47 Hindustan Times, 30 April 1977.
48 1978 (1) SCR 1-123. Bhagwati’s views from pp. 77-81, 85. Chandrachud’s views,
pp. 60-61. Justice Goswami wrote an opinion concurring with Bhagwati, who had written
for himself and Justice Gupta. Justice Beg also said in his opinion that healthy conventions
should grow and Article 356 should be used only in ‘critical situations’ (p. 30). Justice
Goswami hoped the government would act with great care, for the welfare of the people
at large, and to strengthen the Constitution.
49 Sorabjee interview with the author.
 in
——

446 Working a Democratic Constitution

Without waiting for the Court’s reasons for rejecting the states’ suits,
in what came to be called the Rajasthan case, and faced with the state
governments’ unwillingness to cooperate with its stratagems, the cabinet
met at Morarji Desai’s Dupleix Road residence on 29 April and made
two decisions. It decided, after much discussion, but again unanimously,
to dissolve the state governments and impose President’s Rule
‘otherwise’ than upon a report from the governor.”” And it instructed
Home Minister Charan Singh to write a letter to Acting President B. D.
Jatti recommending that he act under Article 356, Apparently, a draft
proclamation was enclosed with the letter.?!
Jatti declined to act upon the letter, telling his private secretary,
Balchandra, to inform the Home Ministry that he needed time ‘to think
over the issue’. That afternoon, Jatti consulted Indira Gandhi (whose
photograph in 1994 adorned a wall in his Bangalore office), H. R.
Gokhale, Y. B. Chavan, the Congress chief ministers directly affected,
and perhaps others.°* Impatient, Morarji Desai called upon Jatti that

Could the judges have been aware of the importance of Rajya Sabha votes to
overturning that anti-judiciary document, the Forty-second Amendment?
Jacob and Dhavan in ‘The Dissolution Case’, p. 359, argue that ‘In one sense, the Su-
preme Court did not have a justiciable issue before it. All the union government had done
was to advise the chief ministers’; it had not yet used its powers to impose President's Rule.
Baxi in The Indian Supreme Court and Politics, p. 131, asserts that the Court's reasoning in
the case gives ‘the first hint, in the post-emergency Court, of populism’. The message is
clear and categorical, Baxi says, ‘““We care for you. We shail not let you down.”” The Court’s
decision, Baxi concludes, ‘all in all ... was good politics’ (p. 135).
50 Nirmal Mukarji interview with the author.
Members were ‘hell bent’ on dissolving the governments, according to a minister
present. Ramakrishna Hegde, then a Janata general secretary, has a different version of the
actors and their views. Desai, Bhushan, Ram, and H. M. Patel were not in favour of dissolving
the assemblies, Hegde remembered, but Charan Singh was adamant, joined by H. N.
Bahuguna and Patnaik. Accordingly, this was one of several examples of Desai yielding
reluctantly to views among his cabinet colleagues, said Hegde. The government's decision
to dissolve the assemblies was not discussed at the party level. But the general issue was
discussed in the party, and hotly. Hegde interview with the author.
In the actual decision to dismiss the assemblies, Additional Solicitor General Soli
Sorabjee was not consulted, according to Sorabjee in an interview with the author and the
Attorney General, S. V. Gupte, probably was not consulted.
51 This account of the affair is based upon reports in the Hindustan Times, 30 April-l
May 1977; Nayar, The Judgement, pp. 189-91; Jatti, B. D., JAm My Own Model: An Autobiography,
Konark Publishers Pvt. Ltd., Delhi, LeoSPE 107-9; Limaye, Janata Party Experiment, vol. 1,
pp. 316ff; interviews; and, especially,"the oral history transcript that Nirmal Mukarji is
preparing for the Nehru Library—kindness of Mr Mukarji.
52 According to Nayar, The ‘Judgement, p. 190, Jatti earlier had been ‘persuaded’ to ‘stall’
dissolution, an idea attributed to Yashpal Kapoor, working through R. K. Dhawan, because
Kapoor was not at this time welcome among Mrs Gandhi's associates. Jatti had discussed
 Governing Under the Constitution 447

evening and, when Jatti told him that he had not assented to the
proclamation, Desai departed.°? But the encounter—if it took place,
and Nirmal Mukarji insists it did not—may not have been so perfunctory.
According to Limaye, Desai gave Jatti ‘a piece of his mind’.°* It is also
possible that it was at this meeting that Desai told Jatti—who claimed to
be in accord with Desai on all issues but this one—that his refusal to give
assent would lead to the resignation of the government and the calling
of parliamentary elections. Individual ministers, among them Vajpayee
and Fernandes, already were talking about resigning over the matter.
The next day, 30 April, a deeply concerned cabinet met at 11.00 a.m.
What to do? Members resolved provisionally that if Jatti persisted in his
refusal to accept their advice, they should advise dissolution of the Lok
Sabha and go to the country on the basis ofJatti’s unconstitutional
position.°° But first, an attempt should be made to bring the Acting
President around. Three members—Charan Singh, Shanti Bhushan, and
Finance Minister H. M. Patel—met Jatt, but were ineffective. During the
conversation, Jatti remarked that, being an old Congressman himself, he
would not find dissolving the state governments easy. The three ministers
reported their failure to the cabinet at 2.00 p.m.
The cabinet then decided that a second letter should go, this time
from the Prime Minister. Cabinet Secretary Mukarji, V. Shankar (Desai’s
secretary and formerly secretary to Sardar Patel), and Home Secretary
Srinivasvaradan were tasked with drafting it. The Prime Minister signed
it, although few, if any, cabinet members had seen it.
Desai, acting on Shankar’s advice had Mukarji take this letter to
Jatti early that evening. Their conversation was private because Mukarji

dissolution with Charan Singh at breakfast on 21 April when another guest, Chenna Reddy,
governor of UP, had asked Charan Singh if the advice in his letter £0 the chief ministers was
not illegal because unconstitutional. Jatti, B. D., Am My Own Model: An Autobiography, pp.
167-8.
53 Tbid., p. 108.
54 | imaye, Janata Party Experiment, vol. 1, p. 316.
Jatti had been a minister under Morarji Desai when Desai was chief minister of Bombay
two decades earlier.
55 Cabinet members’ concern from Shanti Bhushan, in an interview with the author.
Charan Singh at one point considcred taking Jatti’s refusal to the Supreme Court. Limaye,
thinking this a poor idea, went to Attorney General S. V. Gupte, with whom he was friendly,
and asked Gupte to talk Charan Singh out of it, which he did. Limaye, Janata Party :xperiment,
vol. 1, p. 316.
According to Kuldip Nayar, Jatti at one time had decided not to dissolve Parliament
if the Janata government held to its strategy of resigning and calling for elections, but
instead to call upon Chavan to form a government. Nayar, The Judgement, p. 191.
448 Working a Democratic Constitution

explained that he bore a sensitive message from the Prime Minister.

Jatti was shaken to find in the letter mention of his reluctance, as an
old Congressman, to dissolve Congress governments, and he admitted
to Mukarji that he had said this. In response to Jatti’s request for
suggestions, Mukarji told him that he had no option but to accept the
cabinet’s advice. If he attempted delay, the correspondence likely would
be laid before Parliament, demonstrating publicly that, although Acting
President, Jatti had not been able to rise above party loyalties. Taking
the point about his honour being besmirched, Jatti asked Mukarji to
retain Desai’s letter and requested that it never appear on the public
record. He assured the Cabinet Secretary that he would sign and return
the proclamations that evening, which he did.°® Congress had been hoist
on its own Forty-second Amendment.
The proclamation Jatti signed reproduced the government’s reasoning
during the affair: in a federal polity, there could be different issues and
parties represented in the state assemblies and the Lok Sabha, but in
this case national and state issues were ““indistinguishable”’. The massive
rejection of the Congress meant that it no longer enjoyed the confidence
of the electorate. ““Only by obtaining a fresh verdict of the electorate
could democracy be upheld in the states,” the proclamation read.>”
Prior to the constitutional crisis thus narrowly avoided, there occurred
two related events. A Congress deputation had called upon the acting
President on 24 April, and its members had argued—blushing
becomingly, one hopes—that he should ignore his ministers’ advice
because a President was bound to act on the advice of his ministers
only if it were constitutional, not extra-constitutional or illegal. They
asked Jatti to seek an advisory opinion from the Supreme Court and to
refrain from acting on ministerial advice pending its receipt.°8 More

5© Nirmal Mukarji draft oral history transcript.

Even as the Cabinet Secretary was closeted with the Acting President, Shanti Bhushan
told Desai that if Jatti continued to refuse to sign, Desai should go to the people on the
radio that evening. Bhushan went to his office and began drafting the speech ‘at the
Prime Minister’s request’. ‘An hour into drafting, I was told that Jatti had signed.’ Shanti
Bhushan interview with the author.
57 Hindustan Times, 1 May 1977.
58 Hindustan Times, 24 and 25 April 1977; Times of India, 25 April 1977 as cited in
Limaye, Janata Party Experiment, vol. 1, p. 315.
The deputation consisted of close supporters of Mrs Gandhi like D. K. Borooah, A. R.
Antulay, Mrs Purabi Mukherjee, and D. P. Chattopadhyaya. Limaye characterizes the reaction
of the ‘Congress Opposition’ as well as that of the affected chief ministers to the prospectiv
e
dissolution as ‘not surprisingly, violent’. (Ibid.) But several Congress members
have told
the author that Y. B. Chavan did not strongly resist the dissolution move.
According to
 Governing Under the Constitution 449
piquantly, before his contretemps with the cabinet, Jatti had made an
ill-advised or an ill-intentioned call on the Chief Justice of India. While
giving his opinion in the dissolution case on 6 May, Supreme Court
Justice P. K. Goswami revealed that Chief Justice Beg had informed
members of the bench that Jatti had visited him while the Court was
hearing the states’ petition. Saying that he reported this with a ‘cold
shudder’, Goswami added that he had done so ‘hoping that the majesty
of the High Office of the President, who should be beyond the high-water
mark of any controversy, suffers not in future’.°? The same day, Beg, in
a statement issued by the Court, acknowledged that Jatti had made a
personal and private visit to him after 25 April to invite him to a wedding.
Not a word about the case had been said, according to Beg.©?
Leaving aside the legal and constitutional aspects ofJanata’s dissolv-
ing the nine legislatures, the June election results bore out its claims of
Congress Party unpopularity. In Bihar, Janata candidates won 214 seats
to Congress’s 56; in Haryana it was 75 to 5; in Uttar Pradesh, it was 351 to
46. Only in Tamil Nadu and West Bengal did Janata do poorly.®!
In 1980, as will be seen, Mrs Gandhi proved that what is sauce for the
goose is sauce for the gander when she dismissed Janata state govern-
ments, and the Supreme Court upheld her government on the prec-
edent of the Rajasthan Case.

Nayar, Chavan initially did go along with the dissolution idea because he had not realized
its implications. He later opposed the dissolution of all state assemblies, barring Bihar,
‘where JP’s movement had the largest impact’. Nayar, The Judgement, p. 189.
The nine Congress chief ministers by now had rejected Charan Singh’s letter, and
the Congress Working Committee had opposed it as unconstitutional, ‘politically
motivated’, and aimed at the forthcoming presidential election. Unfortunately for the
Congress, Janata’s move against Congress state governments coincided with a moment
of great disarray: the party’s agonizing four-day reappraisal of the Emergency and of its
subsequent election defeat.
Not only Congressmen opposed the dissolutions. The Communist Party of India
called them an ‘undemocratic act’.
59 State of Rajasthan v Union of India 1977 (3) SCC 592ff. Quotation from p. 671.
60 Hindustan Times, 7 May 1977. According to several senior advocates, presenting
invitations was not an uncommon way forJatti to arrange timely visits.
61 In Tamil Nadu, which had not been placed under President’s Rule, the AAADMK
with 130 seats won a clear majority in the assembly, the DMK and the Congress came
next, and Janata won ten seats. In West Bengal, the CPM won 178 seats to Janata’s twenty-
nine and Congress’s twenty. AR, 2-8 July 1977, p. 13811.
In Jammu and Kashmir, Sheikh Abdullah was returned as Chief Minister, leading his
National Conference Party—with forty-seven seats to Janata’s thirteen. The central govern-
ment’s refraining from meddling in this election made a significant contribution to na-
tional unity and integrity. Some have called this election the fairest in the state's history.
450 Working a Democratic Constitution

Protecting Civil and Minority Rights

Janata’s public commitment to further the social revolution was at once
broad and specific. The ‘Economic Charter’ ofits election manifesto was
reiterated in a Lok Sabha resolution, which proclaimed that the
government would seek ‘““socio-economic revolution illumined by
democratic standards, vivified by socialist ideals and firmly founded on
moral and spiritual values”’.®2 The first of the government's specific
proposals came after two months in office. It announced that it would
establish an autonomous civil rights commission ‘competent to ensure
that the minorities, Scheduled Castes and Tribes and other backward
classes do not suffer from discrimination and inequality’.°? Commissions
to assist disadvantaged citizens would follow.
Little more was heard of the promise for six months. Then it was
reported that the government was contemplating substitutng two other
commissions for the civil rights commission—one for minorities and
another for Scheduled Castes and Tribes. Election pledges had come up
against the problems of implementing them. Most chief ministers were
reported to support the civil rights commission. The Jana Sangh contin-
gent within the Janata Party was said to prefer this to a minorities com-
mission, thinking that the latter might be too solicitous of Muslims, al-
though Atal Bihari Vajpayee later would claim the Minorities Commis-
sion to be a Janata achievement.®* Doubters feared that a civil rights
commission would become bogged down by appeals from it to the Su-
preme Court and that it would diminish the authority of the ‘special
officers’ (often called ‘commissioners’) already in place to protect the
rights of linguistic minorities and the Scheduled Castes and Tribes.® Yet
others believed a civil nghts commission desirable because these special
officers were not being effective: they could only report conditions and
could not take remedial actions on their own initiative.° Prime Minister

62 Resolution passed on 22 July 1977. AR, 13-19 August 1977, p. 13880.

©3 See Hindustan Times, 20 May 1977 for the announcement. The language closely
resembled that in the Janata election manifesto.
64 Limaye, Janata Party Experiment, vol. 2, p. 394.
65 A Special Officer for Scheduled Castes and Scheduled Tribes was provided for in
Article 338 of the Constitution as adopted in 1950. The Office of the Special Officer for
Linguistic Minorities was added to the Constitution in Article 350B by the Seventh
Amendment in 1956, This was occasioned by the reorganization of the states along
linguistic lines that year.
6° According to Galanter, the Commissioner of Scheduled Castes and Tribes was unable
to ‘serve as an independent critic of government’ and was reduced to tasks of oversight and
evaluation. The officer ‘proved no match for the problems of resistance, low priority, poor
 Governing Under the Constitution 45]

Desai and Charan Singh assured the contestants that constitutional safe-
guards would be protected whatever course the government adopted.”
On 15 January 1978, the government announced the establishment
of a minorities commission ‘to provide institutional safeguards for
minorities and ensure their effective implementation’. This would fulfill
Janata’s commitment to preserve the country’s secular character.® A
month later, Minoo Masani was appointed chairman of the commission,
only to resign in May over differences regarding the status of and the
facilities for the commission.®? At the beginning of April, Charan Singh
told the Lok Sabha that the government intended ‘to give [it]
constitutional backing’. He said the government also would establish a
commission for Scheduled Casies and Tribes and give this commission
constitutional status as well.”
The promised ‘constitutional backing’ took the form of the Forty-sixth
Amendment Bill, which would have added articles to the Constitution
establishing a Minorities Commission and a Commission for the
Scheduled Castes and Tribes. But the bill failed to get a two-thirds majority
in the Lok Sabha on 17 May 1979.’! The result was that there were
constitutionally rnandated special officers for linguistic minorities and
Scheduled Castes and Tribes as well as two executive commissions that
had been denied constitutional status—one for minorities and another
for Scheduled Castes and Tribes. Especially bizarre was that the Special
Officer for the Scheduled Castes and Tribes and the head of the new
commission for them ‘both submitted separate reports for years and
reduced the matter toa farce’./2

planning, and lack of co-ordination that beset these programmes’. And these were but a
few of his difficulties. See Galanter, Competing Equalities, p. 70.
67 Hindustan Times, 12 November 1977.
68 Hindustan Times, 16 January 1978. The commission’s terms of reference included
that it should evaluate the working of constitutional safeguards and the protective laws
in the states, review and make recommendations for their effective implementation,
investigate specific complaints, and suggest legal and welfare measures to be undertaken
by either the central or state governments.
69 | imaye, Janata Party Experiment, vol. 2, p. 394. Other members of the commission
were M. R.A. Ansari, retired chief justice of the Jammu and Kashmir High Court, and V.
V. John, former vice-chancellor of Jodhpur University.
70 Hindustan Times, 2 April 1978. The government established the commission on
Scheduled Castes and Tribes on 21 July 1978. Bhola Paswan Shastri was appointed Chairman,
and the members were Shisher Kumar, then Special Officer for Scheduled Castes and

Tribes, A. Jayaraman, and Thakur Negi.

71 For the legislative history and text of the amending bill, see Constitution Amendment
in India, Lok Sabha Secretariat, pp. 174, 395-7.
a
72 George Verghese in a letter to the author. At this time Verghese headed
452 Working a Democratic Constitution
Quite another matter was Prime Minister Desai’s appointment in
December 1978 of the Backward Classes Commission. Its report would
be the most social revolutionary document in decades and would evoke
violent reactions when its implementation was announced in 1990, for
its terms of reference not only repeated the shop-worn instruction to
the First Backward Classes Commission (1953) to recommend steps for
advancing the socially and educationally backward classes but also
the instruction to determine the criteria for defining the socially and
economically backward classes. The commission also was to examine
the desirability of reserving jobs in public services for members of these
classes inadequately represented there. The Mandal Commission (so
called after its chairman, B. P. Mandal) reported to the President on 31
December 1980 after Indira Gandhi had resumed office. Only in 1982
was the report laid on the table in Parliament, where the Prime Minister
spoke in praise of it. Thereupon, its two volumes went on the shelf. Ten
years later, Prime Minister V. P. Singh announced that he would
implement the reports. The resulting firestorm, and the social, economic,
and political implications of the report for India are subjects to be
discussed subsequently.”?

Janata committee on radio and television broadcasting to examine giving both ‘BBC
status’.
73 The Mandal Commission actually came into being in February 1979. Other
members of the commission were Dewan Mohan Lal, R. R. Bhole, K. Subramaniam, and
Dina Bandhu Saha. See Limaye, Janata Party Experiment, vol. 2, pp. 392ff and Galanter,
Competing Equalities, pp. 186-7.
Limaye thought that the commission was Desai’s device for ignoring the party
manifesto’s promise directly to reserve 25 to 33 per cent of all appointments to government
service for the backward classes as recommended by the Kaka Kalekar Commission (the
first Backward Classes Commission, 1953-5, established in accordance with Article 340).
Limaye also believed Desai disliked the rise of the other backard classes (OBCs). Limaye,
Janata Party Experiment, vol. 2, p. 393.
See Report of the Backward Classes Commission, Controller of Publications, GOI, New
Delhi, 1980.
A fifth commission, the National Police Commission, not concerned with investigation,
was appointed on 15 November 1977. Under the chairmanship of the former ICS officer
Dharma Vira, it submitted eight reports between 1979 and 1981. Along with the many
studies and recommendations having to do with internal police administration were
recommendations for increasing police accountability to the public. The first report was
submitted to H. M. Patel, who had replaced Charan Singh as Home Minister. Report of the
National Police Commission, Ministry of Home Affairs, GOI, New Delhi, 1979-81.
 Chapter 21 Whiff de 2
loseas

THE PUNISHMENT THAT FAILED

It was to be expected that a reckoning would be demanded for the

imposition of the Emergency in June 1975 and its attendant events and
excesses. The nation had been terrorized and tens of thousands of
citizens imprisoned, including many of those who became members of
the Janata government. Yet neither the Janata government nor the country
were agreed about the action to be taken. Prime Minister Desai said his
government would not be ‘vindictive’, and he ruled outa witch-hunt”’. ad6 6.

Law Minister Bhushan joined him in this restraint. Home Minister

Charan Singh said the wrongs of the Emergency should neither be
forgiven nor forgotten and justified a trial on the ‘“Nuremberg model” ’.!
Most in the cabinet favoured some degree of punishment, and in the
Lok Sabha, ‘amidst uproarious scenes’ and a Congress walk-out,
members passed H. V. Kamath’s resolution deploring the subversion of
democratic norms, ethical standards, and spiritual values ‘ “engineered
by ... Mrs Gandhi and her gang” ’.* Further afield, Acharya Kripalani
said that in any other country Mrs Gandhi would have been imprisoned
without trial, or hanged.?
Were there to be an accounting, followed by punishment, it would
have to address what could and should be done about those recently in
high office who nearly had brought about democracy’s ruin. Had they
violated the Constitution, or broken laws, or otherwise committed corrupt
or other illegal acts? To find out, there would have to be investigations,
whose results would have to be tested in the courts through prosecutions.
Constitutional institutions and their practices, now in the hands of the
Janata, would be involved—ranging from the council of ministers as
the policy-making body, to Parliament, to the judiciary, to the executive
branch’s bureaucracy. The constitutional implications of all this would

1 Desai quotation from Hindustan Times, 2 April 1977; Charan Singh from ibid., 4
October 1977. Charan Singh also said that Mrs Gandhi should be whipped for her actions
during the Emergency, according to Shanti Bhushan in an interview with the author.
2 Hindustan Times, 9 July 1977 and Lok Sabha Debates, Sixth Series, vol. 5, no. 36, cols.
2936f.
3 To a Calcutta audience, as reported in the Hindustan Times, 10 October 1977.
454 Working a Democratic Constitution
prove to be profound. The political implications for the Desai government
would be disastrous. Before examining these matters, we may review
developments as they occurred.
Investigation and prosecution of alleged perpetrators of Emergency
wrongdoings took three forms: appointment of what came to be called
the ‘Shah Commission’ (headed by former Chief Justice of India,J. C.
Shah) ‘to enquire into the facts and circumstances relating to specific
instances of ... subversion of lawful processes ... misuse of powers’ and so
on; investigation by the Central Bureau of Investigation (essentially a
police, criminal operation), leading to prosecution in ordinary courts—
and later in ‘special courts’ temporarily established for the purpose; and
the Lok Sabha’s ‘trial’ of Mrs Gandhi for breach of privilege and con-
tempt. The latter, as will be seen, concerned events prior to the Emer-
gency, but it was fuelled by angers aroused by the Emergency,
Although desire for some degree of retribution against Indira Gan-
dhi animated each member of the government, Charan Singh’s ‘vindic-
tiveness’, as it was widely perceived, drove government policy. As Home
Minister, he had the tools at hand, the Central Bureau of Investugation
(CBI), newly removed from the prime minister’s office to his ministry,
and the Intelligence Bureau, to the extent it could be employed in this
cause. Charan Singh first acted against Mrs Gandhi secretively, without
the cabinet’s knowledge or assent, in August 1977. Having obtained from
Law Minister Bhushan affirmative advice on the narrow question of
whether an individual could be arrested legally as soon as the ‘First Infor
mation Report’ (FIR) was registered against him or her, Charan Singh

4 Shah Commission, 1, pp. 1-2. Charan Singh informed the Lok Sabha within two
weeks of the government’s formation that a commission would be established under the
1952 Commissions of Enquiry Act and on 18 April 1977 he announced thatJ. C. Shah
would chair it. Its terms of reference included, in addition to those cited above,
investigating maltreatment of persons arrested, use of force in the family planning
programme, and unauthorized demolition of shops and houses. The commission also
was to recommend measures to prevent the recurrence of abuses.
The commission was not tasked with developing evidence that might be used in judicial
prosecution of Mrs Gandhi and others, although information it had gathered would later
be so used.
Several other commissions were set up to enquire into special subjects or the activities
of particular individuals.
The three volumes of the Shah Commission report are in the author’s possession but
are not officially available in India to this day. They are said to have been banned since
Mrs Gandhi's return to office in 1980, Copies that had been sent to Indian embassies
were recalled by Delhi, according to several Indian diplomats.
5 An FIR is registered/recorded at a police station. Under the Criminal Procedure
Code, a person if caught ‘red-handed’ also may be arrested before an FIR is registered.
 The Punishment That Failed 455
had the CBI register an FIR against Mrs Gandhi as an accused in a cor-
ruption case. Warned of the impending arrest while attending a commit
tee meeting, the Prime Minister told the cabinet secretary, who was ac-
companying him, to “Stop it!”’ The order was passed on to the home
secretary—also ignorant of the affair—who saved the situation ‘by
inches’.© During August also, the CBI arrested Sanjay Gandhi confidante
and former Defence Minister Bansi Lal, R. K. Dhawan, Yashpal Kapoor,
and eight others for financial conspiracy and embezzlement. All were
released on bail.
Charan Singh moved against Mrs Gandhi next on 3 October 1977.
This ume the cabinet had been informed, although poorly, about his
plans. The CBI arrested her for alleged corruption and misuse of her
political position in acquiring jeeps for Sanjay Gandhi’s 1977 election
campaign and for her involvement in a tangled affair concerning a
contract with a French oil and gas firm. The event immediately and
publicly was described as ‘the longest arrest in Indian history’ and a
spectacle that ‘not even Charlie Chaplin could have managed ... without
elaborate-rehearsal’. The police arrived at 12, Willingdon Crescent in
the afternoon to find Mrs Gandhi smiling, holding a bunch of roses,
and telling the previously alerted reporters that the arrest was to prevent
her from “going to the people”’.’ After being taken hither and thither
by the confused police, Mrs Gandhi was kept in New Delhi Police
Lines overnight, and, when presented before the additional chief
metropolitan magistrate the next morning, she was released after
prosecution counsel admitted that the FIR was faulty: ‘“We have no
evidence at present,”’ he said.* Irony ofironies, the CBI, after having

In cases of so-called ‘white collar crime’, typically an FIR is registered, an investigation

conducted, and then the individual is either arrested or invited to appear in court to
hear the charges against him.
5 This account, for which the author is indebted to Nirmal Mukarji, is drawn from
the oral history transcript Mr Mukarji is preparing for the Nehru Library. A slip of paper
giving the information was handed to Mukarji, who passed it to Desai, who returned it
with the two-word instruction.
7 ‘Longest arrest’: Hindustan Times, 4 October 1977. ‘Charlie Chaplin’: Bhattacharjea,
Ajit, ‘A Tragedy of Errors’, /ndian Express, 8 October 1977,
8 Limaye, Janata Party Experiment, vol. 1, pp. 457ff. This brief version of events is
drawn from a much more detailed one in Limaye, from the Hindustan Times, 4 October
1977, and from the memory of Delhites amused and appalled at the time by the goings-
on. See also the description of the arrest in Malhotra, [Indira Gandhi, pp. 205ff.
This time, the home miniser did not intend the home secretary or the cabinet
Secretary to scotch his plan. He invited Nirmal Mukarji to his office on the pretext of
discussing various matters and, similarly, the home secretary somewhat later. During
456 Working a Democratic Constitution
cal’
been transferred from the Prime Minister’s Office to prevent its ‘politi
use, became again an instrument in a personal political vendetta.
This time, the Prime Minister knew beforehand of the intended
arrest, yet he was ill-informed due to poor planning and coordination
within the council of ministers. The CBI’s prosecution unit had prepared
a file for Mrs Gandhi’s arrest, but it went neither to the Law Ministry
nor to the Advocate General, who likely would have been called upon
to prosecute such a high-level accused, or to the Solicitor General.9 Shanti
Bhushan, however, told Charan Singh the day before the planned arrest
that it was a bad idea.!° The two had met during a ceremony at Mahatma
Gandhi’s memorial. Desai gave his approval orally to Charan Singh
unaware that his Law Minister had not seen the file.!! When the file
reached Bhushan after Mrs Gandhi’s release, he wrote a note for Desai
saying that the evidence presented for Mrs Gandhi's prosecution was

this time, he received many telephone calls, which led Mukarji to believe he was receiving
a running account of the affair. (Mukarji draft oral history transcript.)
Arrested at the same time for alleged corrupt practices, and also released, were P. C.
Sethi, K. D. Malaviya, D. P. Chattopadhyaya, and H. R. Gokhale. All were long-time Congress
members and had been in Mrs Gandhi’s ministries before and during the Emergency.
Criticism against Gokhale was particularly strong because he was a senior advocate at
the Supreme Court bar, and, as Law Minister, had shepherded through Parliament the
Emergency’s constitutional amendments. At the time of this arrest, he had been suspended
from the Supreme Court Bar Association and subjected to investigation by a six-member
committee headed by C. K. Daphtary for, in the words of the resolution establishing the
committee, corruption, nepotism, and * “polluting of the fundamental law of the land”’.
Hindustan Times, 31 April 1977. The enquiry committee released its report to the press
on 30 December which among other things charged that Gokhale had helped Mrs Gandhi
acquire dictatorial powers for herself and had prepared and got enacted amendments
and legislation ‘“to shut out the natural course of law and justice” ’. Gokhale was invited
to appear to defend himself. But by no means did all bar association members condemn
Gokhale; he died a broken man on 2 February 1978.
The month following Mrs Gandhi's arrest, CBI Director Narasimhan was moved to a
far less important position on the new Police Commission, and John Lobo, who had
been Joint Director of the IB in charge of prime ministerial security, took his place.
9 P. B. Venkatasubramanian letter to the author.
10 Shanti Bhushan interview with the author.
1] That the Prime Minister was unaware the author heard from Shanti Bhushan in an
interview; Desai’s assent from Nayar in an interview and from Limaye, Cabinet Government,
p. 146. Limaye says both men confirmed this at the time. Later, however, in a letter to L. K.
Advani, Desai blamed the ‘muddle’ entirely on Charan Singh. Ibid., p. 147, citing Gandhi,
Moran Papers.
Ramakrishna Hegde recalled that Charan Singh told Morarji Desai that the decision
was his as Home Minister: The arrest is purely an administrative matter, and ‘I know my
business’. Hegde said he learned this from Desai during a conversation at the time of Mrs
Gandhi's arrest. Hegde in an interview with the author.
 The Punishment That Failed 457

‘hopelessly flimsy and contrived’.'* This momentous political action—it

helped Mrs Gandhi regain office in 1980—had been undertaken without
anyone having been ‘given the job of working out the details step by
step, especially the mechanics of explaining it to the people in India and
abroad’.!3
Mrs Gandhi was quick to capitalize upon the fiasco. Claiming that
her arrest had been ‘ “obviously political”’, she told admirers in Surat on
5 October that she had begun her comeback, something that really had
been apparent for weeks. For their part, Janata Party general secretaries
were dismayed. Arresting Mrs Gandhi, they wrote to Desai, had been
‘“most unsatisfactory ... [C]omments in the friendly newspapers have
been adverse ... [and] now Congressmen have adopted an aggressive
line”’.!4 They recommended setting up a small committee ‘““to plan out
the political strategy, both parliamentary as well as non-parliamentary”’
to avoid future ‘“unplanned actions” ’.
Meanwhile, the Shah Commission’s hearings had started on 29 Sep-
tember 1977. Early witnesses T. A. Pai, who had been Minister of Indus-
try during the Emergency, and H. R. Gokhale blamed Mrs Gandhi for
the Emergency. Late in October, the former Prime Minister declined the
commission’s request to appear before it, charging that its appointment
had been “politically motivated”’ and its processes led to “character
assassination”’. Following her example Pranab Mukherjee and other
members of her government would refuse to testify, and in November
the Congress Working Committee directed party members not to ap-
pear.!° Mrs Gandhi did appear before the commission on 11 January
1978, but refused to take an oath and to testify. She claimed that making
a statement would ““amount to a violation of my [ministerial] oath of
secrecy”’. But she did read for thirty minutes a statement justifying her

12 Bhushan interview with the author. P. B. Venkatasubramanian reports that some

papers, not the whole file, reached the ministry after the release. Whereupon officials
hastily drafted a revision order against the release so that it could be filed in the high court
before it closed that evening. P. B. Venkatasubramanian in correspondence with the author.
13 Ajit Bhattacharjea, ‘A Tragedy of Errors’, Indian Express, 8 October 1977.
|
14 imaye, Janata Party Experiment, vol. 1, pp. 464-5. Limaye recounts that he prepared
the draft letter, and that party president Chandra Shekhar signed it after adding a sentence
that it was written with the concurrence of Nanaji Deshmukh of the Jana Sangh, Limaye,
by the
Rabi Ray, and Ramakrishna Hegde. A copy of the letter went to Charan Singh. Hurt
criticism, Charan Singh accepted responsibility in a resignation letter, which his colleagues
dissuaded him from acting upon.
powers
15 The Shah Commission, under the Commissions of Enquiry Act, 1952, had the
and enforce attendan ce of persons, to require
of a civil court, namely, the power to summon
I, p. 7.
the discovery and production of documents, etc. Shah Commission,
458 Working a Democratic Constitution

actions regarding the Emergency, which Justice Shah characterized as

‘a political speech’.!© Commenting on Mrs Gandhi's refusal to testify,
Morarji Desai said that ‘there is no secrecy above the public interest’.!7
Justice Shah ordered a complaint filed before a magistrate against Mrs
Gandhi for failing to testify, but she delayed this process for ten months
by tying the legal system into knots, using processes and proprieties
against it. On] December that year, Justice T. P. S. Chawla of the Delhi
High Court ruled that Mrs Gandhi had not refused to take an oath
before Shah because she merely had said ‘no’ to the question ““Are you
willing to take an oath?”’!8 A year later Mrs Gandhi released a state-
ment saying that the Shah and other investigative commissions “have
found practically nothing against her (sic)”’.!9 Justice Chawla later was
made chief justice of the Delhi High Court.
Frustrated by the government’s apparent inability to prosecute Mrs
Gandhi in the ordinary courts and by her successful ‘stonewalling’ of
the Shah Commission, the cabinet found itself in crisis during the spring
of 1978 over whether to prosecute her in special courts established
particularly for this purpose. The acrimonious dispute over special
courts resembled the earlier one about prosecuting Mrs Gandhi at all.
Bhushan and Desai were opposed to special courts, preferring to use
the ordinary courts were Mrs Gandhi to be prosecuted, and Vajpayee
was coming round to Bhushan’s view.2” Ram Jethmalani, the adamant
proponent of special courts for Mrs Gandhi, was not to be deterred .
He wrote to Morarji Desai advocating their swift establishment, to which
Desai responded on that such ‘emergency courts ... may well run into
difficulty on account of legal objections likely to be raised and the time
of the court wasted in the hearing of these objections’.2! Desai proved

16 AR, 26 February—4 March 1978, p. 14185.

17 Hindustan Times, 23 January 1978.
18 Shourie, Arun, Justice Chawla’s tour de force’ in Shourie, Institutions in the Janata
Phase, Popular Prakashan, Bombay, 1980, p. 63. A detailed chronology of the Gandhi-
Shah skirmishes during late 1977 and through 1978 appears in ibid., pp. 56-61.
19 Tbid., p. 61. The Shah Commission’s reports provide a wealth of documentation
concerning Emergency events and denials of democracy. But the commission did not
publish testimony taken before it. Newspapers printed extensive portions of the testimony,
which are at least as revealing as the commission’s reports.
20 Bhushan interview with the author. Whether or not to establish special courts for
particular purposes separate from the ordinary judicial hierarchy, was a controversy pre-
dating the Janata government and Mrs Gandhi. The view that establishing them was
wrong on principle contended with the belief that they were especially suited for hearing
cases concerned with corruption, communal riots, terrorist activities, and so on.
21 Gandhi, Moraryi Papers, p. 67. Desai’s reply was dated 2 June. The establishment
of
special courts was sufficiently in the wind at this time that the Hindustan Times reported on
 The Punishment That Failed 459
himself agood prophet, for that very day, Indira Gandhi
loyalists of the
Congress (I)—including Kamalapati Tripathi, Uma Shank
ar Dikshit,
P. V. Narasimha Rao, Vasant Sathe, and A. R. Antulay—sent
him a
memorandum protesting against special courts to try Mrs
Gandhi
because they would make ‘ “serious inroads into the rule of law”’.
22
The rift in the cabinet widened during June. Charan Singh established
a special wing in the CBI to follow up Shah Commission revelations
about Mrs Gandhi—some of which the CBI itself had provided to the
commission.?? In a seeming attempt to control his home minister, the
Prime Minister appointed a cabinet sub-committee comprising himself,
Shanti Bhushan, and Charan Singh to co-ordinate the prosecution.
Singh claimed that Desai had “felt it below his dignity”’ to consult him
about this. Charan Singh’s view was that if the government could not
‘tackle’ an individual, the people would lose faith that it could tackle
the country’s problems.2* Charan Singh contended that the legal
community favoured special courts, possibly because he had the backing
of H. M. Seervai and Ram Jethmalani.2° Conversely, Desai claimed that
legal opinion was ‘overwhelmingly’ against it.26 From Surajkund, near

1 June that a special court soon would be appointed. The dispatch said that the court
would have the stature of a sessions court, that one or two officers would preside, and the
court would be directly under the supervision of the Supreme Court. To do this, an ordinance
under the Code of Criminal Procedure was likely, reported the newspaper.
Meanwhile, on 5 May, the Supreme Court had sent Sanjay Gandhi to Tihar Jail, after
cancelling his bail in the Kissa Kursi Ka case, because he had abused his liberty by trying
to suborn witnesses and to prevent him from tampering with witnesses in the future.
Hindustan Times, 6 May 1978. Also see footnote 25 in ch. 20.
22 Hindustan Times, 3 June 1978.
23 Hindustan Times, 13 June 1978. Charan Singh placed Raj Deo Singh in charge of
the new unit. The latter had been appointed Special Director of the CBI in May, and a
colleague described him as a man who would not ‘back off’ from prosecuting a prominent
personality. Raj Deo Singh went on to become Director of the CBI as of June 30, 1979,
upon the retirement of John Lobo.
24 Hindustan Times, 27 June 1978. Nirmal Mukarji doubts that such a sub-committee
was formed.
25 Seervai, according to Limaye, later approved the revised version of the bill that
established the special courts. Limaye, Cabinet Government, p. 148.
26 Ata 17 June press conference, after returning from a trip to the United States, Desai
said the government was considering prosecuting Mrs Gandhi in the light of the Shah
Commission's report. But ‘any action taken will be under the existing law and for specific
offences. [ do not believe in high-handed action’. He also said that he did not agree with
E.M.S. Namboodiripad’s demand for a Nuremberg trial; and that Mrs Gandhi had been
punished by the people and would be punished in the future because no one was going to
forget what she did during the Emergency. Excerpts given in Limaye, Janata Party Experiment,
vol. 2, p. 138.
460 Working a Democratic Constitution
n Singh
Delhi, where he was recuperating from hospitalization, Chara
as ‘““a bunch
issued a statement saying that the people saw the government
He
of impotent men”’ and wanted Mrs Gandhi arrested under MISA.
tive”’.27
was taking a strong stand, he said, without “being extremely vindic
Charan Singh’s public criticism of the government—a thing not done
m—
under ministerial collective responsibility in the parliamentary syste
Desai met
coupled with controversies over the issues, produced a crisis.
with various cabinet members, and External Affairs Minister Vajpayee
even postponed a trip abroad. At an informal emergency meeting of
the members, fifteen disagreed with Charan Singh’s conduct. Several
believed he should be asked to give an explanation rather than be
sacked, but Desai requested Charan Singh to resign from the cabinet
‘forthwith’.28 In his letter, Desai asked Singh how he could complain
that the government was not moving on the special courts when his
ministry had submitted no proposal to establish them, and how, in light
of collective responsibility, he could justify ridiculing the cabinet.29 Desai
assumed the Home portfolio, until the rift was papered over and Charan
Singh withdrew his resignation two weeks later.
The government might be at odds within itself over special courts,
but Ram Jethmalani did not dally. With Charan Singh's quiet approval,
he introduced a private member’s bill in the Lok Sabha on 3July 1978
to set up such courts. The bill’s Statement of Objects and Reasons said
that the Supreme Court in the past had upheld special courts and that
they were needed to prevent the powerful accused from using ordinary
courts to delay action against them. The true character of persons whose

27 ‘Bunch of impotent men’: in Seervai, Constitutional Law, vol. 2, p. 2708. MISA was
still in force and would not be repealed for another month.
28 Hindustan Times, 30 June 1978. Charan Singh had already resigned on 28 April
from the Janata National Executive and Parliamentary Board, charging that the
government had done little with its social-economic agenda and that persons * “with low
social origins have no opportunity to exercise their right to shape or lend a hand in
shaping the destiny of the country”’. AR, 25 June-1 July 1978, p. 14374.
At the same time, Desai asked Health Minister Raj Narain to resign because of a
speech critical of the government that Narain had delivered in Simla. Narain did so on
30 June. This was not related to the special courts controversy. Janata general secretary
Ramakrishna Hegde wrote to Jayaprakash Narayan on 23 June reminding him that the
party National Executive had decided that ‘mutual recrimination by party men in public
... had to be dealt with severely’. Jayaprakash Narayan Papers, NNML.
29 Hindustan Times, 30 June 1978. The text of Desai’s letter, drafted by Ravindra Varma,
is given in Limaye, Janata Party Experiment, vol. 2, pp. 147-50. Ch. XXX in Limaye’s volume
2 gives a detailed account of the Charan Singh and Raj Narain affairs, and the following
chapter an account of preventing a split in the Janata Party, which threatened at the same
time.
 The Punishment That Failed 461

offences had been disclosed by investigating commissions must be made

known to the electorate as soon as possible to preserve democracy,
the statement said.°°
In an apparent attempt to forestall Jethmalani’s bill, the cabinet in
mid-July decided to ask the Supreme Court to consider the constitu-
tionality of special courts and on | August, President Reddy officially
did so.*! The Court held hearings in the autumn and ruled on 1 De-
cember that Parliament had the legislative competence to establish such
courts. [t recommended that Jethmalani’s bill be altered so that a sitting
(nota retired) high court judge should preside over a court and that he
or she should be appointed with the concurrence of the Chief Justice of
India.*? Five days later the government approved a draft bill to replace
Jethmalani’s, but, as this leisurely process continued, it did not ask the
Lok Sabha to consider the bill until the beginning of March 1979.
With amendments offered in the Rajya Sabha by the Congress and
the Communist Party of India to incorporate the Supreme Court’s
observations and to widen its scope to include pre-Emergency as well
as Emergency offences, the bill passed in the Lok Sabha on 8 May 1979.
On the last day of the month, Justices M. S. Joshi and M. L.Jain of the
Delhi High Court were appointed to head Special Court 1 and Special
Court 2 and the government called for extra security for the courts due
to the Congress(I)’s declaration that it would not allow them to
function.*? The Supreme Court upheld the Special Courts Act on 4

30 This was ‘The Emergency Courts Bill, 1978’.

31 The texts of President Reddy’s reterence to the Court and that of the bill are to be
found in AR, 24-30 September 1978, p. 14523.
This was the seventh time since 1950 that the Supreme Court had been asked to
render an advisory opinion under Article 143. But it was the first time the Criminal
Procedure Code, under which the courts were to be established, had been involved. The
other occasions were: 23 May 1951, concerning Delhi, Ajmer-Merwara and Part C states;
22 May 1958, the Kerala Education Act; 14 March 1960, the exchanges of Berubari
territories with Pakistan; 10 May 1963, Article 289 and a state’s immunity from central
taxation; 30 September 1964, the jurisdiction of the UP legislature vis-a-vis the Allahabad
High Court; and 5 June 1974, regarding election to the office of President.
32 Special Reference under Article 143 (1). 1979 (2) SCR 476ff. On the bench were
Chief Justice Chandrachud and Justices Bhagwati, Krishna Iyer, R. S. Sarkaria, N. L.
Untwalia, Faz] Ali, and P. N. Shingal. Chandrachud, Bhagwati, Sarkaria, and Fazl Ali gave
the majority opinion. Krishna Iyer, in a separate concurring opinion, said that the bill
‘hovers perilously near unconstitutionality (Article 14) in certain respects but is surely
saved by application of pragmatic principles rooted in precedents’. Ibid, p. 450.
33 Hindustan Times, 31 May 1979. This threat is clear evidence of the Congress (I)’s
impression of its growing strength and Janata’s increasing weakness. Sanjay Gandhi was
reported to have led a rally of fifteen hundred Youth Congressmen on the first of the
462 Working a Democratic Constitution
a and Sanjay Gandhi
December 1979 when hearing appeals by V. C. Shukl
*4
against their conviction in the Kissa Kursi Ka case.
these courts
Cases against Mrs Gandhi and others were tried before
no convictions. The day
during the remainder of 1979, but there were
after the elections
following Mrs Gandhi's return to the prime ministership
lishment of
of 3-6 January 1980, Justice M. L. Jain ruled that the estab
cases before
Special Court Number 2 was unconstitutional and that the
trate. His
‘t should be returned to Delhi’s chief metropolitan magis
and the
ground for the ruling was bureaucratic: that the Law Ministry
s before
Home Ministry had assigned prosecutions to the Special Court
courts by
these ministries had been assigned responsibility for these
Minister since
the Transaction of Business Rules.2° P. Shiv Shankar, Law
14 January in the new Congress (I) government, told the Lok Sabha
hit upon
that the government “considers that the previous government
”*®.
the device of the special courts to harass their political opponents”

month against the bill. The police responded to the mob’s stoning with teargas, and
arrested Sanjay Gandhi and others. Hindustan Times, 2 May 1979.
In response to the amendments, Kamalapati Tripathi led Congress (1) supporters in
a walkout against the ‘ “black bill”’. Hindustan Times, 22 March 1979.
34 The case was V. C. Shukla versus the State (Delhi Administration) 1980 Supp SCC 249ff.
d the
On the bench were Fazl Ali, P. S. Kailasam and A. D. Khoshal; Fazl Ali delivere
Articles 14 and 21,
opinion that the Act in question did not violate Fundamental Rights
or any other constitutional provision.
On 27 February 1979, Sanjay Gandhi and V. C. Shukla had been sentenced to two
film,
years’ rigorous imprisonment, plus fines, for their destruction of Amrit Nahata’s
Seat of Power) which ridiculed the political functioni ng
Kissa Kursi Ka (The Story of the
of the government. The sentencing judge, O. H. Vohra, stayed the operatio n of his order
for one month and released the two men on bail.
A peculiar event took place on 5 July 1979. Justice T. K. Basu of the Calcutta High
Court, on the basis of a writ petition from Mrs Gandhi, enjoined the special courts from
functioning for a week. Her counsel argued that ‘clubbing’ pre-Emergency with Emergency
offences was both a violation of Article 14 and went against the Supreme Court's upholding
of the Special Courts for Emergency offences. Arguing for the government, Soli Sorabjee
said that the special courts could not be challenged because the Supreme Court's advisory
opinion was binding on the high courts, and, besides, the Calcutta Court had no jurisdiction
over cases in Delhi. On 20 July, a Supreme Court bench of N. L. Untwalia and A. P. Sen
stayed the Calcutta High Court order. Hindustan Times, 21 July 1979.
35 Times of India, 16 January 1980. Jain also ruled that the subsequent amendment to
the Transaction of Business Rules allocating the work to the ministries that had issued
the ‘notifications’ could not validate the notifications because the amendment did not
apply retroactively.
36 Hindustan Times, 30 January 1980. Shiv Shankar also said that the government was
not currently considering a proposal to abolish the courts and that cases before them
should run their course.
Shankar told the author in an interview that the cases against Mrs Gandhi and the
 The Punishment That Failed 463
A. G. Noorani, India’s prestigious legal journalist, attacked
Justice Jain’s
decision piece by piece. Noorani reminded his reade
rs that ‘It is a
fundamental principle ofjurisprudence that a tribunal
cannot enquire
into the legality ofits own establishment.’ He concluded
by saying that
the judge’s ‘reasoning ... is hypertechnical and in glaring confli
ct with
the constitutional text—Article 77(2) .... Itwould be most
unfortunate
if such a judgement were to remain the last judicial pron
ouncement
on the subject.’3”? The Law Ministry told the registrar of the
special
courts that they should cease to function on 31 March. The
cases
pending in them were dropped, as were more than one hundred
cases
pending in other courts as a result of the information developed by
the
Shah Commission.
In Parliament, at the end of 1978, Mrs Gandhi had not fared
so well.
Although her ever more successful political comeback had culminated
with her re-election to the Lok Sabha in November from the Chikmagalur
constituency in Karnataka, her stay was brief. The Privileges Commit-
tee—unimpressed that admirers mobbed her as she arrived for the par-
liamentary session—had reported its ‘opinion’ that Mrs Gandhi had ‘com-
mitted a breach of privilege and contempt of the House’ in 1974.28 The
affair had originated when Madhu Limaye had given notice of a parlia-
mentary question about the affairs of the Maruti car factory and Sanjay
Gandhi's involvement with it. The answers the government had provided
hardly had been straightforward, and the committee cited Mrs Gandhi
for breach of privilege for causing obstruction, intimidation, harassment,
and institution of false cases against the officers preparing answers to the
questions. The report also said Mrs Gandhi had been in contempt by
‘her refusal to take oath/affirmation and depose before the committee’,
and she had compounded her contempt by casting aspersions on it.°9
Her punishment was left to the wisdom of the House.

others were flimsy, that the Janata government had been vindictive, and that the
bureaucrats had been forced to aid the politicians.
37 Noorani, A. G., Indian Affairs: The Constitutional Dimension, Konark Publishers Pvt.
Ltd., Delhi 1990, pp. 323-7. The article originally appeared in the Economic and Political
Weekly on 23 February 1980.
See also Shourie, Arun, Mrs Gandhi’s Second Reign, Vikas Publishing House Pvt. Ltd.,
New Delhi 1984, paperback edition, pp. 381-6, chapter entitled ‘Special Courts ; An
Obituary’.
38 See Hindustan Times, 22 November 1978 and succeeding days. Limaye devotes chapter
32 to the events in Janata Party Experiment, vol. 2.
39 Text in Limaye, Janata Party Experiment, p. 277. The Privileges Committee also
found R. K. Dhawan and D. Sen, the former CBI director, in contempt of the House on
identical grounds.
464 Working a Democratic Constitution

The Lok Sabha began its debate on 7 December while Mrs Gandhi
watched—‘wearing a chrome-yellow saree and twiddling her thumbs’.
This time Morarji Desai was willing to punish Indira Gandhi, and twelve
Lok
days later, by a vote of 279 to 138, with thirty-seven abstentions, the
Sabha adopted his motion to expel her and to sentence her to iail unul
the prorogation of Parliament—a week later.*° Janata had given Mrs
Gandhi ‘the taste of jail’ it long had thought she deserved. Congress
members, even those not of her Congress(I) Party, opposed Desai’s
motion. The Election Commissioner, S. L. Shakdher, later ruled that
she had lost her seat by being expelled, and Mrs Gandhi vowed to
recontest from Chikmagalur. She had been in Parliament just long
enough to vote for the Forty-fourth Amendment.
With this exception, the attempts to punish Mrs Gandhi and her
associates had failed. The autonomous Shah Commission had done its
work, but the government had not capitalized upon this, and its own
investigations were ill-conducted and its prosecutions ill-prepared.*!
Within the cabinet, policy had not been coordinated even when its
members were not warring over how to revenge themselves on Mrs
Gandhi.* This record first raises simple and obvious questions. Did the
prosecutions fail because there was insufficient evidence of wrongdoing?
What laws were broken? Of what, precisely, was Indira Gandhi guilty?
Then come constitutional questions of the most fundamental kind. Was
the government on sound constitutional ground when it prosecuted
individuals for alleged violations of the Constitution that might fairly be
described as ‘political’ as distinct from being defined more precisely by
the Constitution or by law? Was Indira Gandhi, as Prime Minister,
responsible, constitutionally, for actions by the crew of the ship of state
in the same manner as the captain ofa ship is responsible if it is wrecked—
even when he is neither at the wheel nor on the bridge? Was Mrs Gandhi
on sound constitutional ground when she refused to cooperate with the
legally established Shah Commission? Are inept investigations and
prosecutions such a distortion of the justice system—so essential to a

40 R. K. Dhawan and D. Sen also served this week in jail. For an account of Mrs
Gandhi’s speech in the Lok Sabha defending herself, other aspects of the affair, and of
her time in
jail, see Jayakar, Indira Gandhi, pp. 368-75.
41 One of the few constructive products of the commission’s work was a secret study
to reform the working of the Intelligence Bureau and the Central Bureau of Investigation,
which the government asked L. P. Singh to undertake.
42 For H. M. Seervai’s succinct description of the government's ineptitude, see his
Constitutional Law of India, vol. 2, p. 2708.
 The Punishment That Failed 465
democracy—that they, themselves, may fairly be characterized as
non-democratic or anti-democratic?
The Janata government did not answer these questions, nor is this
study competent to do more than to ask them. Yet there seems to be a
broader answer that reaches their essence. This is that the country’s
constitutional system had not matured sufficiently to meet one of any
democracy’s severest tests: the capability to investigate and prosecute
senior public figures through its democratic, constitutional processes.
Such situations—a fractured ministry, judicial timorousness, and
bureaucratic ineptness—are not limited to India, but under the Janata
government they were pronounced. Mrs Gandhi and her associates
nearly had ruined the country’s democratic system, but the government
could not bring them to book.
The government’s wiser course, as Morarji Desai and Shanti Bhushan | jot
had preferred, would have been to let the punishment of Mrs Gandhi’s Nr at
election defeat suffice. Beyond that, relying on the cultural characteristic
of forgiveness might have denied Mrs Gandhi both the martyrdom upon
which she built her comeback and freed the government for more
constructive endeavours. As it was, the image of vengeful ineptness from
the failed prosecution and its stain on the government’s claim to
democratic functioning greatly hastened its downfall. 5,
Fh
ei

rane é ee
er.
 Chapter 22

A GOVERNMENT DIES

A problematical government from the beginning, the approaching end

to Janata’s career became painfully apparent in June 1979 as it bled from
massive defections. The government fell in July, and the tortuous course
of forming a new one began. Indira Gandhi returned as prime minister
following the 1980 elections, having brought down Charan Singh’s
government by removing the support she had earlier given him.
Meanwhile, President Sanjiva Reddy was required to use his discretion in
finding a viable leader of the Lok Sabha to appoint as prime minister—
the first time under the Constitution that this situation had to be faced.!
Fulfilling this delicate task, President Reddy found himseif in a
month-long political storm, and, by many accounts, he did not weather
it well. He did receive conflicting advice from legal men few of whom,
although prominent, were scholars of constitutional conventions. And
the British conventions for the appointment of the Prime Minister in
such situations are not perfectly tidy. Nevertheless, the conventions
applicable in the situation Reddy faced were clear enough and it seems
that he did not follow them. These are the topics for this chapter.
Briefly, before turning to a more detailed account of them, the
sequence of events in this monsoon month were as follows:
First: the Morarji Desai government dies of internal wounds on 15
July 1979. Having lost his majority in the Lok Sabha, Desai sends two
letters to the President: in one he resigns as Prime Minister, but does
not advise dissolution of the House; in the other he advises the President
to allow him to form an alternative government. President Reddy,
instead, invites Y. B. Chavan, the official leader of the Opposition, to
form a government; Chavan fails to do so; Reddy then invites Charan
Singh to form a ministry, and on 28 July Singh forms a minority
government with support from Mrs Gandhi’s Congress(I).
Second: Mrs Gandhi withdraws her support from the Charan Singh
government, and on 20 August Charan Singh resigns as Prime Minist
er
! Article 75 (1) of the Constitution reads, simply, ‘The
Prime Minister shall be
appointed by the President ...’.
 A Government Dies 467
rather than face a vote of confidence in the Lok Sabha. He advises the
President to dissolve the Lok Sabha and hold elections.
Third: Jagjivan Ram, having become leader of the Janata Parliamen-
tary Party, on Morarji Desai’s belated resignation from the office, ar-
gues to the President that he can form a government and that Charan
Singh lacks the legitimacy to advise dissolution, having never faced a
vote of confidence in the Lok Sabha. President Reddy rejects Ram’s
claim, dissolves the Lok Sabha on 22 August, and orders elections.
Charan Singh heads a caretaker government until elections the follow-
ing January.
The year 1979 had begun badly with another installment of the
Desai—Charan Singh feud. It was resolved temporarily by the reinduction
on 24 January of Singh into the cabinet as a Deputy Prime Minister and
Minister of Finance—with Jagjivan Ram also appointed a Deputy Prime
Minister. Fractures also had been widening in the Janata-controlled state
governments since February.” And Raj Narain’s resignation from the
Janata Party on 23 June triggered massive defections, reducing the
government’s supporters to about two hundred in a house of five
hundred thirty-nine occupied seats.*
When the monsoon session of Parliament opened on 9July, Mrs
Gandhi’s Congress(I) and the Congress Party led by Y.B. Chavan gave
notice of a no-confidence motion against the Desai government. Raj
Narain had bolted from Janata on 23 June 1979 and announced the
formation of the Janata(S) (for ‘secular’) Party to distinguish it from
Janata, which he dubbed ‘communal’ because it still had as a component
the Jana Sangh, with its RSS connections. The no-confidence motion
was debated on 11 July. Janata President Chandra Shekhar failed to
stem the tide of defections at party meetings on 13 and 14 July, when
many among the assembled Janata chief ministers, cabinet ministers,

2 For the period ofJanata decline and fall from the beginning of 1979, there are major
sources: the English-language press reported events in detail; the Asian Recorder
not only condensed these well and reproduced texts of letters and statements but also
printed useful chronologies of events. See AR, 20-26 August 1979, pp. 15039ff. Also
Mirchandani, The People’s Verdict, pp. 1-25; Gandhi, The Morarji Papers; Limaye, Janata Party
Experiment, especially vol. 2, chs. 34, 35, 38, and 39; Reddy, N. Sanjiva, Without Fear or Favour:
Reminiscences and Reflections of a President, Allied Publishers Ltd., New Delhi, 1989, ch. 6; and
Jain, H. M., ‘Presidential Prerogatives in a Situation of Multipartite Contest for Power—A
Case Study’, JCPS, vol. 16, nos. 1-2, 1982, pp. 91-122; Seervai, Constitutional Law, vol. 2,‘An
Epilogue’, pp. 2706-28, which includes discussion of the relevant constitutional conventions;
and, finally, the author’s interviews with participants and observers of the time.
3 The situation at the time was highly fluid, with defections and re-defections. There
are various ‘head counts’ by participants and observers of the time.
468 Working a Democratic Constitution

and general secretaries expressed the belief that Desai would be defeated
on the no-confidence motion. The group debated whether Desai ought
to resign to avoid this defeat, thereby preserving the possibility of being
asked to form another government. Could the party find another leader?
On 14July, Jagjivan Ram had senta letter to Desai purporting to support
him, but criticizing his record.* George Fernandes resigned from the
government after having strongly defended it during the no-confidence
debate two days earlier.

A President’s Discretion

July 15th, a day of ‘hectic activity’, dawned steamy and cloudy. Pressures
mounted on Desai to resign—from Mohan Dharia, among others—as
defections from the cabinet and in Parliament continued. That evening
Morarji Desai took two letters to President Sanjiva Reddy. One tendered
his government’s resignation because it ‘is no longer the case’ that Janata
had an absolute majority in the Lok Sabha, but the letter did not advise
dissolution.° The second letter reminded the President that no party
now held an absolute majority, that Janata remained the largest single
party, and that, as such, it was entitled by constitutional practice to
explore the possibility of forming an alternative ministry. ‘“I would,
therefore, advise that it may be enabled to do so. As the leader of the
party, I shall report to you the results of my endeavours as soon as I
can.” © Reddy thereupon told Desai that if he were confident of majority
support, he could defeat the no-confidence motion and need not
resign. With his resignation, the motion would lapse. ‘I thought it would

4 Arun Gandhi called this ‘a letter of diabolical cleverness’. Gandhi, Moran Papers, p.
234; and Limaye ‘exactly the reverse of what can be called a defence of the government's
performance’. Limaye, Janata Party Experiment, vol. 2, p. 466.
5 Text in Gandhi, Moravji Papers, p. 238. According to Nirmal Mukarii, H. M. Patel,
who had become Home Minister six months earlier, called upon him to draft this first
letter. Sometime later, President Reddy asked Mukarji to prepare a draft of his response
to Desai. See footnote 7.
Mukarji believes it probable that Law Minister Bhushan saw the draft of this first
letter. Mukarji in an interview with the author.
6 Quotation from Reddy, Reminiscences, p. 25. On 21]July, Desai explained his claim to
form another ministry in a letter to Ram Jethmalani. His resignation had not been due
““to any apprehension that we would be voted out of confidence, but because we had lost
absolute majority and as such an occasion arose for restructuring the majority”’. In support
of this, Desai cited the occasion in 1931 when Ramsay MacDonald had resigned as Prime
Minister of Britain but “was commissioned by the King”’ to form another government,
“which he did with the remnant of the Labour Party ... and the Liberals and the
Conservatives”’. Gandhi, Moran Papers, p. 246.
 A Government Dies 469
be inappropriate for me,’ Reddy continued to Desai, ‘to call
upon a
person who had just tendered his resignation instead of facing
the no-
confidence motion in the House to form the Government
again’.’
He asked Desai to stay on as Prime Minister while he worked out
other
arrangements.
On 16 July Parliament adjourned. Chandra Shekhar—perhaps
remembering how Desai’s government in June 1978 had relegated Janata
Party officers, including himself as president, to only an outsider’s role
in government policy-making (chapter 19)—declared that Desai should
step down as leader of the Janata Parliamentary Party. Desai would not
relinquish the post for some days, thus denying Charan Singh and
Jagjivan Ram a chance at the parliamentary party leadership and the
accompanying votes to contend for the prime ministership. Charan Singh |
defected from the cabinet and the party to be elected leader of the
Janata(S). He and Raj Narain then visited the President to stake Charan st
Singh’s claim to forming a government with the help of other parties. All
sides bombarded Reddy with political and constitutional advice, while,
Reddy said, he ‘bestowed a great deal of thought upon the matter’. He
concluded that because Desai had lost his majority he would have lost
the no-confidence motion, and, therefore, the leader of the opposition,
Chavan, ‘should be asked to try and form a government’.8
Reddy issued the invitation personally and by letter on the evening
of 18 July telling Chavan that it was his ‘moral duty’ as mover of the
motion that had brought down the government to try and form a new
one.” Chavan told reporters that the President had given him three or
four days in which to do so. Speaking for Mrs Gandhi’s Congress (I), C.
M. Stephen said the party would join no government and would oppose
any government formed by the original Janata or that depended on
the support of the Jana Sangh or the RSS. Mrs Gandhi called upon the
President and said nothing publicly.
For the next several days, while the Delhi Administration dispensed
chlorine pills to the citizenry (monsoon floods had polluted the drinking
water), legal authorities dispensed conflicting constitutional assessments
and prescriptions to the President. M. N. Kaul, former Secretary General
of the Lok Sabha, and the editors of the Hindustan Times agreed that
Reddy had acted with constitutional propriety.!° But Kaul also was

7 Reddy, Reminiscences, p. 25. One notes that Reddy quotes the Desai letter directly,
but only paraphrases, and does not quote, his response.
8 Ibid., pp. 25-6.
9 Thid., p. 27. At this time, Chavan’s Congress Parliamentary Party held some 77 seats.
10 Hindustan Times, 22 July 1979.
470 Working a Democratic Constitution

reported to believe that Reddy could call on Desai to form another

government. Former Attorney General Daphtary shared this view. Senior
advocate Fali Nariman and former Bombay High Court judges V. M.
Tarkunde and M. C. Chagla were reported to believe that the President
could form a
had the authority, himself, to call elections if no one
government.!! Tarkunde thought also that Desai, as caretaker Prime
Minister, could advise the President to call elections, although it was a
“ticklish question”’. Nariman disagreed. An article cited Sir Ivor
Jennings’s views (from his Cabinet Government) that the opposition that
brings down a government has the responsibility for forming another
one and that minority governments were possible. !?
Chavan reported to the President on 22 July that he had been unable
to form a government, but that ‘“a combination of parties” able to
provide viable government had emerged, and he hoped the President
would consider the new situation ““in your wisdom”’.!3 He meant, among
other things, that he had pledged his party’s votes to support Charan
Singh.!4
The next day, both Charan Singh and Morarji Desai wrote to the
President staking their claim to form a government. Charan Singh said
that he, as leader of a new political alliance, could form a stable govern-
ment and was willing immediately to prove his majority in Parliament.!>
Desai’s hand had been strengthened earlier in the day by Jagjivan Ram’s
withdrawing from contention for the JPP leadership, and their agree-
ment to attempt jointly to form a government. Mohan Dharia claimed
that ifJanata remained united and accepted Jagjivan Ram as its leader,
it could muster 208 votes in support of a government.!® Unclear who
could command a majority, the President invited Singh and Desai ‘in
writing to send me lists of their supporters’ within two days.!7 Desai

1! Tid.
12 Hindustan Times, 19 July 1979. At other times Jennings was cited in support of
Desai’s claim, after resignation, to be asked to form another government.
13 Reddy, Reminiscences, p. 28.
14 Chavan’s actual letter to Charan Singh was dated 23 July and said that the Congress
Working Committee, after reviewing the situation in light of Chavan’s inability to form a
government, ‘“decided to support the alliance between the Congress and the Janata(S)
Party. The Charan Singh Papers, as cited in Limaye, Janata Party Experiment, vol. 2, pp. 507-8.
'5 Mirchandani, The People’s Verdict, pp. 3-4. Also Reddy, Reminiscences, p. 28. According
to Reddy, Charan Singh told him he could form a government with the support of the
Janata (S), the Congress, H. N. Bahuguna’s group, a remnant of the Congress for
Democracy, and a group of socialists. Ibid.
16 Jain, ‘Presidential Prerogatives’, p. 97.
17 Reddy, Reminiscences, p. 29.
 A Government Dies 471

thereupon visited Reddy and asked ‘jocularly’ to be allowed four days,

claiming that Chavan had been given eight days and that some of those
he needed to contact were out of Delhi. “Very casually’, in Desai’s recol-
lection, Reddy responded that Desai could take ‘a day more if neces-
sary’.!8 According to Reddy the ‘understanding was’ that the lists should
be delivered by four o’clock on 25July ‘although I had not indicated the
time in the letter’. Reddy recalled that on 24 and 25July first Desai and
then his secretary had telephoned the presidency to request more time,
but were refused. In Reddy’s view, he had not ‘gone back on any assur-
ance given earlier’ to Desai.!9 At 4.05 on 25 July, Raj Narain presented
Charan Singh’s list to Reddy’s secretary. Desai’s list followed at 4.25 ac-
companied by his letter saying that he hoped to submit a supplementary
list the next day. Charan Singh and Morarji Desai challenged each oth-
er’s vote count.??
By now, Charan Singh’s claim had been strengthened by the support
of Mrs Gandhi’s Congress(I). He had written to Mrs Gandhi on 23July
soliciting her support, according to A. R. Antulay, an Indira Gandhi
loyalist and a Congress(I) general secretary,?! and had talked with her
on the telephone. The next day, C. M. Stephen and Kamalapati Tripathi,
Congress(I) leaders in the Lok Sabha and Rajya Sabha, respectively,
handed to Charan Singh a copy of the letter they had that day sent to

18 Gandhi, Morarji Papers, p. 241.

19 Reddy, Reminiscences, p. 30. ‘[A]bout this time’, Reddy recalled, he received a letter
from ‘the leader’ of the Congress (I) (unnamed, but a man) saying that in England according
to constitutional experts if the official opposition “succeeds in defeating the Government
and so causing its resignation, it is the duty ofits leaders to form a new Government or to
advise the Queen as to an alternative”’. The writer continued that it was incumbent upon
Reddy to adopt the alternative that the leader of the opposition had recommended because
the leader, himself, had been unable to form a government. Under no circumstances should
Desai be given a chance to form a government, the Congress (I) letter said, ‘as it would
amount to sending back to Parliament as Prime Minister a person who had just been voted
out of office’. Speaking on his own behalf, Reddy recorded his own views that although
constitutional authorities might be cited ‘to support one’s predilections’, there was nothing
to show that the Opposition leader’s alternative would produce a stable government. Hence
Reddy believed that he could not make a decision without ‘asking the two leaders to furnish
detailed information ...’. Ibid., p. 29.
20 Text of letter in Gandhi, Morarji Papers, pp. 242-3. The situation was enlivened at
‘like
Rashtrapati Bhavan that afternoon, according to Arun Gandhi, by Raj Narain acting
an Olympic
a bull in a china shop browbeating everyone and watching the clock as though
accepted] ... [and]
race was on ... and his men raised hell [if Desai’s late list were to be
with dire
virtually camping in the Rashtrapati Bhavan and threatening everyone
consequences if any leniency was shown to Morarji’. Ibid.
21 Mirchandani, People’s Verdict, p. 4.
 472 Working a Democratic Constitution

Sanjiva Reddy informing the President that, at Singh’s request, the

Congress(I) Parliamentary Party had decided to support Singh °“for
formation of agovernment under his leadership” ’.2* Commenting on
this performance, senior Statesman correspondent S. Nihal Singh wrote,
‘By a strange alchemy of politics, her sins seem to have been washed
away; Mr Charan Singh, the man who most assiduously sought to punish
her for her Emergency misdeeds, and bungled the process, is now wooing
V her to attain power’.*? Charan Singh’s position was even more craven if
the conditions for Congress(I) support were, as they were reported to
be, to end the Janata policy of ‘vindictiveness’ toward Mrs Gandhi and to
withdraw all cases in the special courts against her, Sanjay Gandhi, and
her other supporters.24 If these were not Mrs Gandhi’s terms at the
moment, they soon would be, Charan Singh himself revealed.
Confronted by conflicting numbers, the President set his staff to
counting. Although some names appeared on both lists, Reddy concluded
that Singh’s list showed a majority of twenty-four.2° Acting according to
his ‘conscience’, Reddy said, and taking an ‘impartial view of the situation’,
he sent a letter to Charan Singh on 26 July inviting him to form a
government. He suggested, ‘in accordance with the highest democratic
traditions’, that Singh should seek a vote of confidence in the Lok Sabha
by the third week of August.*° On 27 July, Morarji Desai stepped down
from the Janata Parliamentary Party leadership to be replaced byJagjivan
Ram. Desai apologized for the ‘bungling’ in the vote count submitted to
the President and declared that he was retiring from active politics.

22 Texts of letters in the Charan Singh Papers as quoted in Limaye, Janata Party
Experiment, vol. 2, pp. 508-9.
In a letter to Mrs Gandhi that evening, Singh put a positive interpretation on this
language, thanking her for Stephen’s and Tripathi’s ‘ “unconditional support in my efforts
at forming a stable Government” ’. Ibid. p. 509, emphasis in Limaye’s volume.
The Hindustan Times reported on 26 July that Ram Jethmalani was claiming that
Charan Singh had met Mrs Gandhi at the Sagar Apartments on Tilak Marg in an
apartment leased by Maneka Gandhi, Sanjay’s wife, and that Raj Narain had met with
Sanjay Gandhi. Charan Singh called the reports of his meetings with Mrs Gandhi
lies.
Hindustan Times, 28 July 1979. A senior official in a position to know confirms
that
Sanjay Gandhi conspired with Raj Narain against Morarji Desai.
23 Statesman, 25 July 1979.
24 Hindustan Times, 24 July 1979.
25 Reddy, Reminiscences, p. 32. The next day, the Hindustan Times reported
that Desai
and Singh were ‘level at 279’, with the President's job made more difficult by the two lists
totalling 558 votes when there were only 538 sitting Lok Sabha members
and twenty-nine
members were saying that they were neutral.
*° Ibid., p. 35. The Hindustan Times reported Reddy’s invitation to Singh as having
been made on 27July.
 A Government Dies 473
Reddy swore in Singh, Y. B. Chavan as Deputy Prime Minist
er and
Home Minister, and others on 28 July. Three days later more membe
rs
were added to the ministry, including H. R. Khanna as Law
Minister,
but Khanna, persuaded by friendly members of the bar, withdrew
his
participation on 2 August.2” As advised by the council of ministers;
President Reddy called on Parliament to assemble on 20 August when,
it was expected, Charan Singh would have to prove his majority through
a confidence vote. A Hindustan Times editorial congratulated Reddy on
his ‘correct and dignified manner’ and his signal contribution to the
exercise of presidential discretion.?8
Charan Singh’s foolish prime ministerial ambitions came to an end
on 20 August, when Indira Gandhi pulled the rug from under him. Ap-
parently calculating that she could bring about the elections that would
return her to office, the Congress(I) Parliamentary Party, meeting at
her house before Parliament convened, decided to vote against the con-
fidence motion.*? Upon learning this, Charan Singh’s cabinet decided
in emergency session not to face a vote, and Charan Singh drove to
Rashtrapati Bhavan to tender the government's resignation passing Par-
liament House as the session was beginning. He advised the President to
dissolve Parliament and call elections. In a public statement, Charan Singh
said that the country would not have forgiven him had he agreed to
Congress (I) conditions to withdraw the prosecutions against those guilty
of atrocities during the Emergency. Nor would he have liked to continue
in power after “yielding to blackmail of this type”’.2° The President was
confronted with a knottier problcm than before.
Jagjivan Ram’s moment had arrived. Having become Janata Parlia-
mentary Party leader, he called upon all right-thinking persons in early
August to join him in bringing down the government of ‘ “defectors
and deserters” ’. Were the government to fall, the President would have

27 Khanna interview with the author. Khanna’s letter is reproduced in AR, 20-26
August 1979, p. 15043. S. N. Kacker, who had been Solicitor General in the previous
government, replaced Khanna. Chandra Shekhar continued as party president.
28 Hindustan Times, 28 July 1979.
29 That she would do this at some point as the culmination of her comeback strategy
had been thought likely. She confided this intention to the President in mid-July, Sanjiva
Reddy later told Madhu Limaye, according to the latter. Limaye, Janata Party Experiment,
vol.2, p. 513.
30 Hindustan Times, 21 August 1979. According to Limaye, Charan Singh had
telephoned him early on the morning of the 20th and said that Biju Patnaik was urging
him to contact Mrs Gandhi to ask for her support. Limaye told him not to, it would do no
good, but to face the debate in the Lok Sabha. Limaye, Janata Party Experiment, vol. 2, p.
518.
474 Working a Democratic Constitution
government.?!
to call upon him as the opposition leader to form the next
d on the Presi-
Upon learning of Charan Singh’s resignation, Ram calle
Sabha the
dent and told him that without majority support in the Lok
to advise disso-
Charan Singh government did not have the legitimacy
lution and that he could form a stable government.
state-
From that morning, President Reddy recalled with some under
, Law Minis-
ment, ‘I had many visitors’.22 Prime Minister Charan Singh
by aides
ter S. N. Kacker, and Foreign Minister S. N. Mishra—followed
had no
bearing red-bound legal volumes—told the President that he
espe-
choice but to dissolve Parliament on the advice of his ministers,
that
cially given the Forty-second Amendment's addition to Article 74
the President ‘shall’ act according to the advice of his council of minis-
9
ters, and given the Supreme Court's ruling in the Samsher Singh case,?
Kacker told the President that 291 Lok Sabha members of the total of
539 desired dissolution and he visited the President the next day to
reiterate these arguments.*4 Kacker later disclosed that he had men-
tioned requesting an advisory opinion from the Supreme Court to his
cabinet colleagues, but they thought this superfluous given Article 74,
and the idea apparently was not even mentioned to Reddy.*°
Jagjivan Ram and Chandra Shekhar, accompanied by six Janata chief
ministers, called on Sanjiva Reddy to urge him to invite Ram to form
the government. They argued that because Charan Singh’s government
never had received the confidence of Parliament, it ‘“was not at all
competent” ’ to advise dissolution. Later in the day Ram repeated this

31 Hindustan Times, 6 August 1979. Also Limaye, Janata Party Experiment, vol. 2, p. 515.
At this time, Jagjivan Ram was reported to have said that Janata would not mind Congress
(I) support to form a government, but it is difficult to believe he said, or meant, this.
32 This account of the following three days is drawn from the Hindustan Times, issues
of 21-26 August 1979; AR, 24-30 September 1979, pp. 15089ff; Reddy, Reminiscences, pp.
36ff; Jain, ‘President Prerogatives’; Limaye, Janata Party Experiment, vol. 2, pp. 39 1ff;
Noorani, /ndian Affairs, pp. 67-78; and from interviews.
33 Samsher Singh v State of Punjab, 1974 (2) SCC 831 ff. The case concerned the powers
of governors. The judges ruled that a governor, in the country’s parliamentary system,
was bound to act according to the advice of his council of ministers. The ruling did not
address whether the President could reject the advice of his ministers, although the court
in other cases had held that he could not.
It will be recalled that the Forty-fourth Amendment, which had come into effect
three-and-a-half months earlier, retained the ‘shall’ of the Forty-second Amendment while
adding a proviso that the President could return a decision to the Cabinet for its
reconsideration before the ‘shall’ came into effect. See V. N. Shukla’s Constitution of India,
p. 342, and Seervai, Constitutional Law, vol. 2, p. 2719.
34 Reddy, Reminiscences, p. 38.
35 For Kacker’s disclosure, see Hindustan Times, 26 August 1979.
 A Government Dies 475

argument in a letter to Reddy, adding that he could form a stable

government with ‘“a clear majority of the Lok Sabha. The correct course,
therefore, would be that I, as a leader of the Opposition, am invited” ’ to
explore forming a government; only if I failed to do so would the
question of dissolution arise, said Ram.°° Before the end of the day,
Indira Gandhi called on Reddy and told him Ram could not form a
stable government and that Charan Singh should not head a caretaker
government. That evening, the President asked Charan Singh to ‘satisfy
him’ that a coalition government that had not faced a confidence vote
‘was entitled’ to recommend dissolution.?7
The following day advice flooded Rashtrapati Bhavan—in letters,
through the press, and from the senior personalities admitted from
the throngs outside its tall iron gates. The ‘intellectuals’ who at the
beginning had been ardent Janata supporters—including Rajni Kothani,
George Verghese, Bashiruddin Ahmad, and Romesh Thapar—issued a
joint statement saying that Charan Singh’s advice was no more than a
personal opinion. Krishan Kant sent a letter signed by 102 Lok Sabha
members urging Reddy to invite Jagjivan Ram, arguing that the
President had invited Chavan when he had fewer votes than Ram, that
a chance should be given to ‘“one of ... [India’s] tallest sons belonging
to the Harijan community” ’, and that Reddy should not heed * “spurious
arguments ... [which would be a] perversion of constitutional and
democratic processes” ’.°® For his own part, Ram refused to give the
President a list of his supporters, maintaining that his strength should
be tested on the floor of the Lok Sabha, and he rejected Mrs Gandhi's
conditional support in forming a government.*9 The five Left Front

36 For the text of his letter, see Hindustan Times, 23 August 1979. Reddy describes,
but does not quote, the letter in Reminiscences, p. 37.
Morarji Desai, L. K. Advani, and A. B. Vajpayee were reported to have advised the
President to invite Ram to form the government.
37 Hindustan Times, 21 August 1979.
38 Hindustan Times, 22 August 1979. See also Reddy, Reminiscences, p. 38. The previous
day's Hindustan Times editorial said that the President should invite Ram, rejecting ‘without
vote of
the slightest hesitation’ advice from Charan Singh, who had ‘ducked’ the
confidence. Hindustan Times, 21 August 1979.
Ram.
Acharya Kripalani, C. B. Gupta, and Nandini Satpathy also supported Jagjivan
39 He also declined to forma caretaker government. P. G. Mavalankar, Mohan Dharia,
Ram be given the
and others also wrote to the President recommending that Jagjivan
had a strength of over
opportunity to form a government, with Dharia arguing that Ram
seventy-five sure
two hundred in the Lok Sabha, whereas Chavan had had only about
Schedule d Castes to have one of their own
votes, and that it would be important for the
as Prime Minister. Reddy, Reminiscences, p. 37.
476 Working a Democratic Constitution

parties urged dissolution, and Limaye wrote to Reddy that he must abide
by the advice of his ministers. Mrs Gandhi, Kamalapati Tripathi, and
C. M. Stephen again urged dissolution on the President while the
Congress(I) Parliamentary Board met in almost continuous session at
Mrs Gandhi's house.
If the President opened New Delhi’s major English language news-
papers that morning of 21 August, he read articles by, and interviews
reporting the opinions of senior advocates and others—most of whom
favoured giving Ram the chance to form a government. Fali Nariman,
Y. S. Chitale, and V. M. Tarkunde argued that in the current situation
the President constitutionally could act in his discretion; only if he could
not find a person commanding a majority should he dissolve Parlia-
ment. Senior advocate Ashok Desai, M. N. Kaul, and former Chief Elec-
tion Commissioner S. P. Sen Verma said Ram should be given his op-
portunity. Kaul said that if someone could form a stable government,
the advice of a ministry that had not gained Parliament’s confidence
could be ignored.?°
August 22 was the critical day. First, the President received C. M.
Stephen, who handed him a long letter again laying out Congress(I)’s
arguments for dissolution and claiming that most members of Charan
Singh’s government supported this.*! At 11.30 Ram and Chandra
Shekhar met Reddy at his invitation to discuss the political situation
‘informally’. Ram recaptured the meeting in a letter to Reddy that he
wroie shortly after their meeting. The President, Ram recalled, had
told them he thought it ‘“unlikely”’ that Ram could muster the support
of other parties. To this, Ram had responded, ‘“I would be in a position
to satisfy you as to the majority support I enjoyed and also that there
were parties which would come forward to say that they would support
me.”’ Ram continued, ‘“You were good enough to say that while you
would like to have the matter settled quickly, you were in no hurry and
would still take some time to consider the questions involved further. I
took this to mean that you would be prepared to wait for a further
communication from me giving details of my support.” 4 The men
parted company before noon.

1 ativer helpful, Raj Narain threatened a ‘peaceful agitation’ if Reddy did not dissolve
40 Hinaial later he made the threat in the press. :
that Articles 74 andes, 21 August 1979. In the same vein, Nariman argued
separately
See Reddy, Rem}}Ply that a Prime Minister shall have the confidence of Parliament.
The text of this leteer@ P: 39, for his description of the letter.
‘On 99 August, Janata fs printed in the
Hindustan Times, 23 August 1979.
€-s obtained pledges of support from enough MPs to
 A Government Dies 477
But Reddy already had decided against Ram and in
favour of
dissolution before this meeting. Supporting this conclusion is
that an hour-
and-a-half later he announced dissolution and preparations for this
would
not have been completed in that amount of time. They had been
begun
earlier as Reddy, himself, has indicated. ‘Almost all political parties,
except
the Janata Party, were in favour of dissolution,’ wrote Reddy in
his
Reminiscences, and in the circumstances the best way to end
the impasse
was dissolution. ‘Accordingly’, the President continued, ‘on
the morning
of 22 August’, the cabinet secretary, the Prime Minister’s secretary, and
my secretary met ‘to prepare the necessary drafts for dissolution’.43 These
prepared, Rashtrapati Bhavan was in a position to issue the communique
soon after Ram and Chandra Shekar had departed. The President had
accepted the resignation of Charan Singh and his council of ministers,
the communique said, and it asked them to continue in office pending
other arrangements. The communique said that almost all the political
parties had called for dissolution and that the President had consulted
(unnamed) constitutional and legal experts.*4
Ram immediately cried foul. Reddy had executed a “planned scheme
... a well-planned conspiracy” picking his own choice as prime minister.
““We had expected better of the President,”’ Ram said. Chandra Shekhar
talked of impeaching Reddy, and the next day he appointed a party
committee of Shanti Bhushan, L. K. Advani, Ram Jethmalani, and Surendra
Mohan—not all of whom were thought to favour impeachment—to
examine the matter. In Bombay, M. C. Chagla called the move ‘““most
unfortunate and erroneous” and Nani Palkhivala thought it “unjustified
to the point of Constitutional impropriety”’.4° Nariman, Bhushan, and
S. V. Gupte, who had been Desai’s Attorney General, said Ram should

assure that Ram would have a narrow majority’ when the All-India Anna Dravida Munnetra
Kazhagam (AIADMK) lent its backing, and they informed Reddy of this during that
morning. Manor, james, “The Prime Minsiter and the President’ in Manor, Nehru ta the
Nineties, p. 131.
43 Reddy, Reminiscences, p. 41.
44 Text of the communique in ibid. The communique also said that the government
would not take decisions during the caretaker period that would involve significant new
spending or amount to major new administrative executive decisions.
4 Hindustan Times, 23 August 1979. AR, 24-30 September 1979, p. 15902, citing the
Hindustan Times and two other newspapers. Ram and Chandra Shekhar also laid out
their position in ‘An Appeal to the People’ dated 23 August 1979, which is reprinted in
Steps Toward Dynamic Growth, Janata Party, New Delhi, September 1979. (The party’s office
was then at 7,Jantar Mantar Road, for many years the Congress's office.) Yet another Janata
pamphlet published in 1979, entitled Paper on Conspiracy Against the People, opened with
an article entitled ‘Darkness at Noon’.
478 Working a Democratic Constitution
the Janata(S),
have been given his chance. Predictably, the Congress(I),
r continued
and the Left Front parties welcomed the decision. The uproa
said that
the next day. Ram called on Charan Singh to step down and
t Jana
Mrs Gandhi had offered him her support if he would not appoin
for an
Sangh members to his cabinet and would within three months call
Ram
election. Mrs Gandhi partially confirmed this when she said that
to gain
would have had to appoint suitable persons to his cabinet
on
Congress(I) support. C. M. Stephen reiterated Mrs Gandhi’s positi
an
that Charan Singh should step down in favour of a national, non-partis
government and that the special courts should suspend operations.*©
President Reddy disagreed with Ram’s version of their meeting.
‘““Your letter is not a correct record of our conversation,” he wrote, ‘“as
you yourself are aware” ’ 471 told Chandra Shekhar as you were leaving,
Reddy wrote, that there was ‘no hurry [about coming to see me again]
and that he was always welcome ... Ionly meant that he need not be in
a hurry ... |had not implied at all that I was notin a hurry to come toa
decision in regard to the prevailing political situation. Unfortunately,
an unintended construction was put on my words’ .48 Ram replied that
he did not appreciate the allegation that his letter was not accurate.
Chandra Shekhar told the press that if Ram’s version was not correct the
President should give the correct one.*? Reddy did not at the time, nor
later in his Reminiscences, quote his own letter to Ram.
Chandra Shekhar’s angry demand for President Reddy’s impeachment
died away. Like it or not, the President’s decision could not be challenged
in court, said senior advocates; he had acted within his constitutional
discretion. But this did not preempt post-mortems. One of these,
obviously, was President Reddy’s own. Rejecting the analogy with his
July invitation to Chavan to form a government, Reddy wrote in his
memoirs, ‘If Jagjivan Ram was invited to form a Government and if his
Government too was found to lack a majority, what should be the next
step? Would it again be necessary to try to form a Government with the

46 Hindustan Times, 24 August 1979. On 24 August Stephen and Kamalapati Tripathi

sent Reddy a memorandum calling on him to remove Charan Singh's government as a
caretaker government and to appoint a new government.
47 Reddy letter was dated 24 August. Only this much of the letter is quoted in the
Hindustan Times, 26 August 1979.
48 Reddy’s Reminiscences, p. 42. Reddy also recounted that Ram had promised to submit
a list of his supporters once called upon to form a government. ‘I pointed out that this was
not the method I had earlier adopted’, apparently meaning that he had demanded lists
from others before inviting them to form a government. Had Ram retreated slightly?
49 Hindustan Times, 26 August 1979. Ram’s letter was dated 25 August, the day he said
he received Reddy’s letter. Text of the letter in AR, 24-30 September 1979, p. 15093.
 A Government Dies 479
help of whosoever was the Leader of the Opposition at the time? Clearly
such a process would be unending’.°?
A. G. Noorani thought that ‘President Reddy has in one fell blow
violated ... a whole set of established conventions of parliamentary
democracy.’ H. M. Seervai found nothing good or acceptable in Reddy’s
performance. Seervai’s principal points were that the President should
have announced Desai’s resignation, but refused to accept it—on the
ground that there was no alternative government in sight and the Head
of State should not be without ministers; that when Chavan had failed
to form a government, Reddy should have turned to Desai—as leader
of the largest party in the Lok Sabha; that Reddy’s acceptance of Charan
Singh’s claim to form a stable government with Mrs Gandhi’s support
was odd—given that ‘every intelligent schoolboy’ knew what her support
was worth; that ‘no rational reason’ had been given for not inviting
Ram—especially given the desire to avoid an interim election; that
allowing Charan Singh three weeks to secure a majority was ‘hostile
discrimination’, and that in light of Charan Singh’s never having
commanded a majority in the Lok Sabha, Reddy was not bound to accept
his advice to dissolve it, nor should he have named him caretaker Prime
Minister.°! More emotionally, Rajya Sabha member Krishna Kripalani
wrote that the ‘ordinary person like me is revolted at the sordid spectacle
of blatant opportunism and shameless self-righteousness that are the
conspicuous features of our present political scene’.°*
President Reddy’s actions continue to be controversial. Neither logic
nor a thought-out scheme can be discerned. Without firm evidence one
concludes that the President acted from personal caprice in opposing
Jagjivan Ram for Prime Minister. It will be recalled that Reddy and Ram
had competed to be the Congress Party’s candidate for the presidency in
1969. And it is possible that Jagjivan Ram’s scheduled caste background
did not please Reddy. Also, Reddy may not have wished to be matched
against such a wily politician and able administrator as Ram. A former
Home Secretary offered the thought that Reddy had been mulling over

59 Reddy, Reminiscences, p. 40.

51 See Seervai ‘Epilogue’, in his Constitutional Law, vol. 2, especially pp. 2710-11,
2716, and 2718-9. Seervai cited as his sources Jennings, Halsbury, Dicey, and Hood Phillips.
The President’s action is even more puzzling in light of the mutual antipathy he and
Mrs Gandhi had shared since the late 1960s.
52 Letter dated 5 August 1979. Jayaprakash Narayan Papers, Third Installment, File
345, NMML.
As Charan Singh’s ‘defector government’ tottered on through the autumn, there was
no dearth ofanalyses explaining what had gone wrong with the Janata government. One of
the most interesting of these is Chandra Shekhar’s Oral History Transcript in the NMML.
480 Working a Democratic Constitution

his rejection of Ram for some time; only the actual decision came at
the last moment.*?
The constitutionality of the President’s actions is open to question.
To demand that Charan Singh andJagjivan Ram present him with lists
of supporters was undignified for the contestants. Such a method invited
inaccuracy because of the volatility from defections and re-defections
and from the fudging of numbers that occurred. And it was not
constitutional because, as Ram and many others pointed out, a majority
could be demonstrated only in the Lok Sabha. Moreover, Sanjiva Reddy
previously had taken a position seemingly contrary to his actions as
President. When himself Speaker of the Lok Sabha in 1968, he told the
Presiding Officers’ Conference that ‘it is not the governor who should
decide from day to day whether or nota majority or a coalition of parties
has a majority in the Assembly, particularly when defections are
unhappily the order of the day. The proper place to decide the issue is
the floor of the House’.°* Reddy’s claim that inviting Ram to form a
government would have risked a never-ending search process seems a
straw man, because had Ram been unable to form a government he
would have been as likely as Charan Singh to advise elections.
Five days before Charan Singh’s government resigned, Reddy had
delivered the President’s annual Independence Day speech. In addition
to addressing wider national issues and after pointing out that the
Constitution could not provide for every contingency, he said we will
have to evolve ‘“healthy conventions based on sound and lasting
principles of public basic values” ’. These had been treated with contempt,
Reddy continued, without providing examples, and the time had come
to ““review the provisions of the Constitution in the light of our
experience of working it over the last three decades”’.*° If the President
was referring to the immediate situation and his being the first President
forced to decide among contenders for prime minister, he seemed to
be ignoring well-known British conventions, the view predominating
in many of the country’s best legal minds, and, into the bargain, common
sense. If he wished healthy conventions established to meet the situation
in which he found himself, he could have contributed to the process
53 James Manor describes the speculation about the President’s motives in his Nehru
to the Nineties, pp. 131-2.
54 Journal of Parliamentary Information, vol. 14, no. 1, Lok Sabha Secretariat, New Delhi,
April 1968, p. 3. A. G. Noorani cited a portion of this speech in his ‘Implications of
President's Action’ in Will of Lok Sabha was Flouted, Janata Party, New Delhi, September
1979, p. 1.
55 AR, 10-16 September 1979, p. 15068.
 4 ¥ (¢ - / ys 44 Oto © FVtt & t/a ”, . o> ,

A Government Dies 48]

instead of setting a regrettable example. And if
he believed that alterations
in the Constitution would reform human char
acter and the nation’s
politics, he understood neither constitu
tions nor his fellow-men.
Coalition governments typically are uneasy affai
rs, and Janata’s was
more so than most. It achieved wondrously and
failed miserably. With
two amendments, Janata saved the Constitution
and representative
democracy for their countrymen and women. For this
itis owed eternal
gratitude. Also, it established the Mandal Commissi
on, whose report
would forever change representation in government,
and|the Verghese
Commission, to take broadcasting from under gove
rnment control; it
appointed the first Muslim as a service chief—air force; and
it increased
outlays for agricultural development. Yet, the
members of the
government and the constituent parties of the Janata Party
, many of
whom for long had been unfriendly personally or
been policy
opponents, exemplified the factionalism, mutual suspicion, and
casteism
so endemic in India’s national culture and politics (chapter 31).
Extreme
ambition and pettiness curdled this mixture further, and Mora
rji Desai—
upright in character but difficult of personality—could not silen
ce the
caterwauling his open style of leadership permitted nor keep
his
colleagues focused on national issues. The government’s end
was
particularly ignominious. Factionalism brought down Desai, and Char
an
Singh’s desperate bargain bought him defeat. The conduct of Jagjivan
Ram and several others stands out in contrast.
Withal, praise for the Constitution and, somewhat less, for Janata’s
political actors is due. The President’s requests and decisions, popular
or not, were obeyed. No one rcsorted to force to gain his ends—perhaps
excepting Raj Narain’s ill-mannered rowdyism. In the end, the issue
was taken where it belonged: to the people in elections. Voters rebuked
those who, despite having saved the Constitution, otherwise had failed
to govern responsibly.
 e a “ff “ . -_ on
Ba Sy
oa
:
’

rites: of S29 ‘oP shane Diy reeLe :

4 - a a =
: or
. <j 7
’ 3 i Ih ja ion oe. % 7
2 ,
As pi eGE wiavelun

° = Py =
hy HH De le
_

pe 5 sity ae ol since

aires ps r¢ — Th. ROSE

aot?
4 oy Dictie a

this odaseun > abretaginepe

ta ‘
: ‘
» Wdas vid ay
iach ae raat
* “
gs
;
i So + i
, : J J
a We
ane
wai <
oo
vie)
Niue
? of
? 2 ie? eo 4
> 4 “i? =4e ee 2G, ‘ al a
- “a >
A Pe rs iby ate 5 _
Fi ; s 7 ‘
= — i
Pees + a, ee
ah! i ie i ros fee =i
- a : =i

7
atc fey Yas‘ ei eer
nae 7
;

P I

oO“? = fF bth Se eat oi jaa fix?

rH , Bi : we 4%pate, —

a a
i
ii
hat:
ny <i
ee
 Part V

INDIRA GANDHI RETURNS

The Indian National Congress(1) is the only party and Mrs Indira Gandhi
is the only leader who can save the country after its recent traumatic
experience.
Congress(I) Election Manifesto!

You can’t take the curl out of a dog’s tail.

Village saying

1 Released by Mrs Gandhi on 1 December 1979. AR, 24-31 December 1979, p. 15235.
 bl 7

my inesanak Cieerrgher Mech malik ol

ee an eal a aad 7

i =

sols bh dua ce SY ale Pacha

- a of
 Chapter 23

GHOSTS OF GOVERNMENTS PAST

Indira Gandhi's Congress(I) roundly defeated the Janata Party in the

elections of 3-6 January 1980, but the approximately five years of her
‘second reign’ would not be happy ones for the country. Neither Mrs
Gandhi nor her critics could shake loose from the past, and they had
bitter memories of each other. These years would bring renewed attention
to constitutional issues such as the independence of the judiciary and
the calibre of judges and changing froma parliamentary to a presidential
system—with its obvious implications for the relationship between the
legislative and the executive branches of government. They would see a
reaffirmation of the basic structure doctrine. The shape of center-state
relations would be challenged more fundamentally than in a dozen years
as state governments demanded reforms.! The social revolution strand
of the seamless web received routinely rhetorical attention, but the
governmentslightly loosened its grip on economic activity. The democracy
and the national unity and integrity strands dominated public debate.
These years would bring the Prime Minister great personal sorrow, and
they would end with her death. That her sixteen years as Prime Minister
should end with assassination was horrible enough. That they should
end in a terrible paradox made the event worse. Her misguided policy in
the Punjab had invited retribution from Sikh extremists. Yet, her genuine
secularism had caused her to reject advice that she dismiss her Sikh
security guards, two of whom killed her.
Mrs Gandhi had won her own Lok Sabha seat by two hundred
thousand votes, campaigning on the assertion that the Congress(I) could
‘“set the country once again on the path of dynamic, meaningful and
orderly social change ... [while] ensuring stability” ’. Sanjay Gandhi won
Amethi constituency. The Congress(I) overal] won 353 seats. Janata was
reduced to thirty-one seats, the two communist parties to fifty-seven,
and the DMKto sixteen.” State legislative elections held in May affirmed

! The ‘constitutional revolt’ of the eighties will he described in chapter 27, and the
working of federalism since 1950 is reviewed in Part VI.
2 Quotation from the Congress Election Manifesto. AR, 24--31 December 1979.
The tally of each party’s seats is from Butler, Lahiri, and Roy, /ndia Decides, p. 86. Elections
486 Working a Democratic Constitution
a two-thirds
Mrs Gandhi’s parliamentary victory, for the Congress(I) won
s had been
majority in five of the nine states where Janata government
Tamil parties
dismissed (chapter 27) and a simple majority in three.
maintained their ascendancy in Tamil Nadu.
her
The Prime Minister’s personal ascendancy was unchallenged:
ers, six
cabinet was dependent upon her, for of the nine principal minist
closely
were serving as such for the first ime; three previously had been
this
associated with her as central ministers. Later additions would follow
14
pattern.? In a national broadcast after taking the oath of office on
‘only one
January, Mrs Gandhi proclaimed that her government had
adversary—social and economic injustice’. She added, ‘Our commitment
to democracy, socialism and secularism is a matter of faith.”#
Mrs Gandhi’s mood in this favourable situation has been described
variously. Her election victory ‘lifted at a stroke ... all her burdens’ wrote
a biographer. She was supremely confident, the undisputed leader of a
party, with ministers who “had come up only because of her like Zail
Singh’, said a former minister.° ‘There were no men of the calibre of

were not held in twelve constituencies in Assam and one in Meghalaya. Prominent among
other winners were Janata president Chandra Shekhar, Indrajit Gupta, Somnath

Chatterjee, V. C. Shukla, Jagjivan Ram, Y. B. Chavan, and Biju Patnaik. Among the defeated
r,
were S. N. Mishra, T. A. Pai, N. G. Goray, Mohan Dhania, Dinesh Singh, P. G. Mavalanka
Raj Narain, and Madhu Limaye.
3 Mrs Gandhi’s three long-time followers were Pranab Mukherjee, Minister of
Commerce who became Congress(I) leader in the Rajya Sabha, P. C. Sethi, Minister of
Works and Housing, and Kamalapati Tripathi, Minister of Railways. The newcomers to the
government were C.M. Stephen (Communications), R. Venkataraman (Finance), Zail Singh
(Home), Narasimha Rao (External Affairs), Vasant Sathe (Information and Broadcasting),
and P. Shiv Shankar (Law). In June 1980, V. C. Shukla, previously a minister, rejoined as
Minister of Civil Supplies, and N. D. Tiwari, a first-timer, became Minister of Planning—
and, as such, Deputy Chairman of the Planning Commission. The inner group of the cabinet,
the Political Affairs Committee, consisted of the Prime Minister, Narasimha Rao, Zail Singh,
Kamalapati Tripathi, and R. Venkataraman.
As time went on, several who had left Mrs Gandhi rejoined her, for instance Dinesh
Singh and Sardar Swaran Singh. The Congress(I) regained its majority in the Rajya Sabha
in July 1981.
4 Indira Gandhi, Selected Speeches and Writings, vol. 4, pp. 3-4.
5 Jayakar, Indira Gandhi, p. 394.
6 Except where printed sources are cited, descriptions of Mrs Gandhi are based on
some two dozen interviews with persons associated with her at the time. The assessment
just quoted was shared by Sanjiva Reddy, President when Indira Gandhi returned to
office, in an intervew with the author.
Reddy's critical view of Mrs Gandhi, is described by her Principal Secretary of the
time, P. C. Alexander, in Alexander, P. C., My Years with Indira Gandhi, Vision Books, New
Delhi, 1991, pp. 124ft.
 Ghosts of Governments Past 487
Chavan or Subramaniam to challenge her,’ recalled Madhu
Limaye. So
she acted as a ‘semi-monarchist with power shared between
the “mon-
arch” and the Crown Prince and his coterie’.” To others, Mrs
Gandhi’s
scars from her years ‘in the wilderness’ had made her—and son Sanja
y—
suspicious, hesitant, and cautious, ‘more wary and less
certain how
to move’. At times, remembered an associate, she seeme
d fearful, and
biographers have pointed out her taking solace in religion—including
from the company of a ‘godman’ of dubious reputation, Dhirendra
Brahmachari.
Whichever of these descriptions in more accurate, the tendencies
toward both hesitancy and arbitrariness in national affairs seem to have
been increased by the cataclysm that befell Mrs Gandhi on 23 June
1980. That day a mother lost a cherished son and the Prime Minister
an adviser upon whom, by all accounts, she had become increasingly
dependent. Sanjay Gandhi was killed in the crash of a light airplane,
following warnings that for several weeks he had been piloting it
recklessly.8 His death ‘broke her’, according to Pupul Jayakar and others.
In her black-bordered letter acknowledging condolences, Mrs Gandhi
wrote of the public admiration for Sanjay’s dignity in the face of ‘the
baseless propaganda and the concerted campaign of calumny [against
him] ... [He] had come to symbolise the heroic spirit, promising new
direction, reaching out to the future ....2 She wrote to her American
friend, Dorothy Norman, ‘Sanjay’s going has affected me profoundly,’!?
Despite this trauma and the apparent swings in the Prime Minister’s
moods, all might have gone well for the country. But recrimination
and the odour of discredited patierns of government and politics tainted
the air. Neither the Prime Minister nor the Opposition seem to have

7 Limaye interview with the author. See also Limaye, Contemporary Politics, p. 284.
8 Jayakar, Indira Gandhi, p. 411 and Shourie, Mrs Gandhi's Second Reign, p. 3.
9 Letter addressed to Ramavatar Shastri on the Prime Minister’s stationery, dated 8
August 1980. Ramavatar Shastri Papers, Indira Gandhi File, PMA, New Delhi.
10 In a letter dated 21 February 1981. Norman, Dorothy (ed.), Indira Gandhi: Letters
to an American Friend, 1950-1984, Harcourt Brace Jovanovich, New York, 1985, p. 154. On
3 August 1980, Mrs Gandhi had written to Norman about the sustained campaign of
calumny against Sanjay. Ibid., p. 152.
An AICC resolution praised Sanjay in extravagant terms.
Mrs Gandhi revealed somewhat more of herself during an interview with the French
publication, Madam Figaro in October 1981. I think sorrow can enrich the personality,
she is quoted as saying. ‘It is something you absorb. You see, in the West you try to fight
all the time, you fight sorrow, you fight death, that is why you get so tense.’ She added
that she gladly would have died in Sanjay’s place. Indira Gandhi, Speeches and Writings, vol.
4, pp. 592-593.
 488 Working a Democratic Constitution
again in April
learned from experience. The Janata Party, which split
n in office, gave
1980, frustrated in defeat and at its inability to remai
. Mrs Gandhi
the Prime Minister neither credit nor the benefit of doubt
the Emergency’.
accused Janata of ‘continuing to flog the dead horse of
the atmosphere
She called the special courts ‘kangaroo courts’ and said
although the
under Janata ‘reminded one of mediaeval Britain’—this,
court judges
Supreme Court had upheld the Special Courts Act and high
ly of the
presided over them.!! Her positive message consisted large
20-Point
socialist rhetoric long associated with her. In an ‘updated’ ‘New
nt made
Economic Programme: The Pathway to Progress’, the governme
its customary promises. !*
ng
Of all the ghosts from governments past that haunted the openi
this
years of the decade, that of ‘authoritarianism’ was pervasive. Into
word Mrs Gandhi's critics packed their discontents with thems elves
s’
(without acknowledging them as such) and with her government
s of
actions since she had become Prime Minister in 1966. Few matter
public policy or government action were free from the miasma of
suspicion. For her critics, she was in the grip of behaviour patterns she
was unwilling or unable to break. For her part, Mrs Gandhi called her
critics ungrateful for her achievements and unwilling to acknowledge
how well she had governed the country. Thus, the areas of contention
were familiar. Mrs Gandhi’s ‘authoritarianism’ was incorrectly and
V/ unfairly seen in the government's challenge to the basic structure
doctrine in the Minerva Mills case; in the Law Minister’s advocacy of
the transfer of high court judges; in the enactment of new laws for
preventive detention; in the government's perceived manipulation of
state government affairs; and in the Prime Minister's dismissal of the
critics’ concerns as frivolous. All was yellow to Mrs Gandhi's and her
critics’ jaundiced eyes.

11 Speech in the Lok Sabha, 30 january 1980. Indira Gandhi: Speeches and Writings, vol. 4,
pp. 5-7. ‘Kangaroo courts’: in a message to the India League in London in November
1980, ibid., p. 119. And she told Parliament in a March 1983 speech that Janata had
‘completely scuttled the family planning programme through vicious and false propaganda’,
never mentioning Sanjay Gandhi's forced sterilization programme.
12 See, for example, indian National Trade Union Congress’s National Convention
on the 20-Point Programme in October 1982. Convention programme published by
INTUG, New Delhi, 1982.
But there was to be a change in emphasis toward ‘private initiative for the greatest
good of our society’. ‘In socialist countries’, Mrs Gandhi had told the National
Development Council in February 1981, ‘there is now not only greater but visible emphases
on giving up controls and rigid regulations in favour of... individual incentives and market
forces’. Indira Gandhi: Speeches and Writings, vol. 4, pp. 236-7.
 Ghosts of Governments Past 489
The language Mrs Gandhi and her supporters used reinforced
impressions that their sentiments were anti-democratic. Mrs Gandhi’s
intolerance of the opposition parties as not understanding ‘that they
too have an obligation to preserve the system’ was matched by her claim
that the Opposition functioned responsibly only when ‘we, in the
B) Congres s, constituted the Opposition’—ignoring that this was when
es
Y. B. Chavan was leading Congressmen to cooperate with the Janata
)government to repeal the Forty-second Amendment.!3 A. R. Antulay said
that the Opposition opposed a presidential system, ‘because ... [were
there to be one] her tremendous mass popularity ... [would make] Smt
indira Gandhi ... unbeatable’.!4

Authoritarianism, Dynasty, and the Presidential System

Even more than in the areas mentioned above, fears of Mrs Gandhi’s
‘authoritarianism’ centred on her perceived intention to establish a
‘dynasty’ by arranging that the prime ministry would go to the younger
of her two sons, Sanjay.!> Closely linked to this view was fear that she,
and he, and many of their supporters intended to exchange the parlia-
mentary for a presidential system of government so as to strengthen -
their grasp on power. This fear exacerbated existing anxieties that the ae 1
government had sinister designs on judicial independence, state gov- ee ”
ernment power, and personal liberty. ie i “

Sanjay Gandhi's influence with his mother had grown—even beyond _,,«“
that he had enjoyed during the Emergency—as he stood by her during
the years out of office. For example, he became instrumental in picking
candidates for Congress(I) electoral slates, and Mrs Gandhi, as her
responses to his death showed, saw him as the driving force for social
and economic reform. His long-suspected ambitions became evident

!3 Quotation from her inaugural address to the All-India Conference of Lawyers in

October 1980. Ibid., pp. 106-7.
14 "Who Should We Have: A Prime Minister or a President?’, interview with Antulay
in Times of India, 16 November 1980. Reproduced in Antulay, Democracy: Parliamentary or
Presidential, Directorate General of Information and Public Relations, Government of
Maharashtra, Bombay 1981, pp. 27-41.
In Antulay’s presidential systern, the president ‘should not be allowed to be voted
down by a Senate or a Congress’. Ibid.
15 The belief that Mrs Gandhi intended a ‘dynastic succession’ was and is still very
widespread among the politically aware in India. That Mrs Gandhi harboured such
intentions appears in Jayakar, Indira Gandhi, pp. 400-20, is discussed throughout this
chapter, and was told to the author by many persons interviewed, including Madhu Limaye,
Margaret Alva, Ajit Bhattacharjea, and C. Subramaniam.
 490 Working a Democratic Constitution

late in May 1980. The Congress(I) Legislature Party in Uttar Pradesh

over two days made ‘a determined bid’ to have New Delhi select him as
its leader, and therefore chief minister. There can be little doubt that
he had engineered the affair, perhaps as a stepping stone to greater
things, but his mother said no. It was “out of the question”’, she told a
UP Youth Congress delegation. Sanjay Gandhi had to console himself
with a job as national party general secretary.!©
But other avenues were not closed. Sanjay Gandhi’s great ambitions
and his mother’s interest in ‘dynastic succession’ seem to have come
more clearly together a few days later. Andhra Pradesh Chief Minister
Chenna Reddy, while releasing the Telugu version of the Constitution
in Hyderabad in the presence of Law Minister Shiv Shankar, advocated
V the convening of a new constituent assembly to change to the presidential
form of government.!” He repeated the sentiment a few days later in
New Delhi. Chenna Reddy had been close enough to Sanjay Gandhi
and the Prime Minister to have been privy to the imposition of the
Emergency the evening before the proclamation was signed, and astute
observer A. G. Noorani thought it ‘inconceivable’ that Reddy would have
so spoken ‘unless he had the ground to believe that the idea was, to put
it mildly, not disfavoured by the establishment’.!® To another senior
observer, Chenna Reddy’s views were not to be lightly dismissed, for he
was not an ordinary member of Congress. Shiv Shankar found it
necessary to deny in the Rajya Sabha that the government had any such
intentions. But many were not reassured. A Statesman editorial said that
Shiv Shankar hardly had quieted misgivings because he failed to give
an ““exact and precise”’ statement and because he had said, as he would
later often repeat, that the government did not subscribe to the basic
structure doctrine.!9

16 AR, 22-28 July 1980, p. 15565. See also the account in Jayakar, Indira Gandhi, p.
410. A Times of India editorial of 5 June urged Mrs Gandhi seriously to consider the
legislators’ wishes, for Sanjay Gandhi had much power and Uttar Pradesh needed a strong
man. See also Indian Express of 3 and 6 June and Hindustan Times issue of 8 June. V. P.
Singh became UP chief minister.
\7 Statesman, and the Hindustan Times, both 11 June 1980. Also, K. K. Katyal in the
Hindu, 24 June 1980; A. G. Noorani in Indian Express, 3 July 1980; Hindu, 4 June 1980.
Coincidentally, the Statesman’; front page on 11 June carried reports of rioting in
Tripura, which left three hundred dead and many thousands homeless. President’s Rule
had been imposed and there was a massive airlift of troops to quell the violence between
tribal and non-tribal peoples.
18 Noorani, A. G., ‘The Presidential System’, Indian Express, 3 July 1980.
'9 Statesman editorial, 11 June 1980. The reference was to Shiv Shankar's opposition
to the doctrine as recently upheld by the Supreme Court in the Minerva Mills case.
 Ghosts of Governments Past 49]
Sanjay Gandhi's intentions came to an end with the
plane crash on
23 June 1980. His future course, had he lived, is
speculative. Pupul Jayakar
thought him ‘determined to free himself from her
shadow’.*9 A some-
time senior minister once close to the Prime Minis
ter thought Sanjay
Gandhi would have sidelined his mother and
ruled as a dictator, ‘and
that he did have the qualities of leadership and controlled
his goondas'’ .
The idea of a presidential system, nevertheless, did not
disappear. It
would resurface in the autumn and be linked to ‘dynasty’
after elder son
Rajiv Gandhi entered politics—reportedly against his will—to
be elected
to Parliament in June 1981. (Later in the year he would come,
like his
younger brother, to head the Youth Congress.) Mrs Gandhi on
25 October
1980 told the All-India Conference of Lawyers that she welc
omed its
debate ‘on systems of government’ to make the public ‘knowledge
able’.!
But prominent journalists believed that ‘like-thinking lawye
rs’ had
organized the conference to push through a resolution fora presidenti
al
system— with ‘the open or tacit consent of the Prime Minister’, who
was
keeping ‘her options open’.?? A call fora presidential system ‘comi
ng
from these cadres’, thought Prem Shankar Jha, ‘is nothing more thana
thinly disguised call for dictatorship.2% ’ Looking farther ahead,
respected Hindu columnist G. K. Reddy linked Mrs Gandhi and the
presidency. He envisaged the Congress (I) having a two-thirds majority
in both houses of Parliament after the Rajya Sabha elections of 1982
and thus able to change to a presidential system. Also, in July 1982,
President Sanjiva Reddy’s term would expire and ‘the question is’, asked
Reddy, whether the quality of government would be improved or Mrs
Gandhi's authority enhanced “by installing Mrs Gandhi in Rashtrapati
Bhavan’.?4 |

20 Jayakar, Indira Gandhi, p. 409.

21 Indira Gandhi: Speeches and Writings, vol. 4, p. 108.
22 S. Sahay in the Hindu, 11 December 1980; Shourie, Second Reign, pp. 217ff, 223,
227; Indian Express, 28 October 1980; editorial in the Amrita Bazar Patnika, 31 October
1980; Prem Shankar Jha, Financial Express, 2 November 1980. An Indian Express editorial
on 28 October called the conference a ‘command performance’ and ‘a search for alibis
by a party which is unable to deliver the goods in spite of enjoying absolute powers’.
Kuldip Nayar wondered why the idea of a presidential system was being ‘hawked
about’ now and said it appeared that whenever the Congress(I) was confronted with a
deepening economic crisis it talked of strong government to suggest that Parliament
stood in the way of its performance.
23 tha, Prem Shankar, ‘Authoritarianism on the Right’, Financial Times, 3 November
1980.
24 Reddy, G. K., ‘It’s Quality, Not Form of Govt., That Matters’, Hindu, 2 November
1980.
492 Working a Democratic Constitution
erence, for those
Not all went according to plan at the lawyers’ conf
a presidential system.
present failed to reach consensus on change to
Gandhi said, ‘I did not initiate
Questioned later about the conference, Mrs
suggested we should
the debate .... Recently, some people came to me and
rnment... . Any
let our people know more about different forms of gove
Shiv Shankar again
objection to ... [a debate] is a sign ofirrationality’.2°
Prime Minister”’,
,

was asked to dampen the fires. “As a spokesman for the

part of the central
he told the Rajya Sabha, there is “no thinking”’ on the
cast doubt on
government to change to a presidential system. He then
conference by
the allegedly independent composition of the lawyers’
favouring a
saying that if the government had wanted a resolution
°
presidential system, ““we could have done it unanimously”’.2
democratic
But anxieties were not easily quenched. A six-party ‘left and
mber
front’ presented a memorandum to President Reddy on 17 Nove
m and
1980 expressing shock at moves to change to a presidential syste
of the
urged the President to protect the Constitution.2’ A resolution
nt's
CPLoriented All-India Kisan Sabha castigated the governme
order to
‘preparing the ground’ to change to the presidential form ‘in
ee,
impose the [sic] authoritarian regime in the country’. For A. B. Vajpay
bf

at
talk of a presidential system indicated a ‘deep conspiracy aimed
perpetuating the hold on the state acquired by the present rulers’.29

Reawakened Fears for the Judiciary

As the public outcry linked change to a presidential system with
authoritarianism, so both were thought to lead to the infringement

25 In an interview with The Times of India, New Delhi, 29 December 1980. Jndira
Gandhi: Speeches and Writings, vol. 4, pp. 144-5.
26 Hindu, 22 November 1980.
27 AR, 23-31 December 1980, p. 15809. Signing the memorandum were Charan
Singh, Chandrajit Yadav, Devi Lal, M. P. Sethi, Y. B. Chavan, and from the Bharatiya
Janata Party (BJP), L. K. Advani, A. B. Vajpayee, Ram Jethmalani, and S. S. Bhandari.
28 New Peasant Upsurge, All India Kisan Sabha, New Delhi, 1981, p. 59—documents
and resolutions of the AIKS meeting at Trichur.
Antulay thought these ‘mushroom fellows’ opposed the presidential system because
they ‘will have no future in the set-up of the country ... [T]hey can make agitations,
launch demonstrations ... and one day there will be chaos and these chaps can ... ride the
crest of that chaos, and come in power ... [T]he Indian people will never vote for them ...
so they want a system which can breed chaos.’ Antulay, Democracy, p. 72.
29 AR, 29 January—4 February 1981, p. 15863. This was at the first national convention
of the BJP in Bombay, 28 December 1980. An official resolution referred to the * “sinister
designs”’ to push India under an ‘“authoritarian yoke”’.
 Ghosts of Governments Past 493
of individual liberty and damage to thejudiciary.
The Kisan Sabha
resolution accused the government of wanting a presi
dential system
so it could impose ‘draconian measures’ like preventive
detention.
The six-party memorandum to President Reddy included a
strong
protest against the recently promulgated National Security Ordin
ance,
especially against its preventive detention provisions. A Natio
nal
Convention of Lawyers for Democracy, which was inaugurate
d by
former Chief Justice of India J. C. Shah (of the Shah Commissi
on),
opposed a presidential system while condemning the government for
its attempt to weaken the judiciary through reversing the Kesavananda
decision and its basic structure doctrine.29 The policy advocated by
the Law Ministry regarding transfer of judges was interpreted as an
attack on thejudiciary.
Antagonism toward the judiciary is clear in many of the pronounce-
ments favouring a presidential system. With his call for a new constitu-
ent assembly, Chenna Reddy had accused the judiciary of not helping
the government implement social-economic reforms. A. R. Antulay,
chief minister of Maharashtra after June 1980, along with proposing
a presidential system, deplored the Supreme Court’s power ofjudi-
cial review.°! G. K. Reddy wrote that those around the Prime Minister
wanted to ‘return to a pliable judiciary, a supine bureaucracy, and
a conditioned public opinion’.*? A. B. Vajpayee said that the fools and
knaves advocating a presidential system also wanted an elected judici-
ary to perpetuate the present rulers in power.°° Soli Sorabjee believed
that the current debate started ‘with an intention to attack the judici-
ary, particularly the Supreme Court’.>4 Superseded and retired Su-
preme Court Justice H. R. Khanna thought it particularly dangerous
to change systems when spokesmen for a party with an absolute

3° Hindu, 29 December 1980. The meeting had been held on 27 December and
among those present were M. C. Chagla, Shanti Bhushan, A. B. Vajpayee, Mrs Vijayaraje
Scindia, Ram Jethmalani, and Soli Sorabjee. In New Delhi, the Congress (I)’s legal cell
described this convention as ‘“a side show staged by a group of frustrated persons who
were the mouthpiece of the Janata and Lok Dal governments”’. Ibid.
31 Antulay, Democracy, p. 139. He had earlier expressed the view in columns in the
Indian Express, 26 and 28 January 1981.
32 Reddy, ‘It’s Quality, Not Form of Govt., that Matters’, Hindu, 2 November 1980.
Reddy added that the protagonists of the presidential system ‘are doing immense harm
by projecting her more as an ambitious builder of a power base than as a hard-nosed
head of Government’ dedicated to improving the lot of her people.
33 AR, 29 January—4 February 1981, p. 15863.
34 Speech to the National Convention of Lawyers for Democracy, Hindu, 29 December
1980.
494 Working a Democratic Constitution
to the
majority in Parliament ‘have made no secret of their aversion
of their
concept ofjudicial review and their desire to clip the courts
powers sae
Mrs Gandhi reiterated her position in Calcutta in January 1981.
‘“There is no proposal to change the present system. What we want is
to make the system more efficient ... to bring in the system responsive
to the people.”’*® Those who were not reassured became further
alarmed late in the year. With a presidential election due in July 1982,
rumours were abroad that Mrs Gandhi might herself seek the post,
intending that Rajiv Gandhi then become Prime Minister. The
Bharatiya Janata Party foresaw a presidential system by June 1982.
“Plans are seriously afoot to foist a dynastic quasi-authoritarian rule
on the country under the garb of a presidential system of
government,”’ said a party resolution.2” The Communist Party of India
thought Mrs Gandhi was seeking the presidential system to give her
‘absolute power’.°® Senior journalist S. Nihal Singh wrote that Rajiv
Gandhi was being readied for the succession. The presidency offered
‘an ideal setting to break in the heir apparent as Prime Minister while
she would remain above the din of battle directing policy as the elder
stateswoman’.°9

35 Khanna, H. R., ‘Shall We Toss for a President?’, Times of India, 19 April 1981.
Senior Advocate Fali Nariman thought some Indians ‘impatient of constitutional
government ... because of the cult of hero worship’ and the ‘passionate attachment’ of
individuals to high office. Nariman, Fali, ‘Why Flog a Dead Horse?’, Jndian Express, 31
January 1981.
Acharya Kripalani, long the Prime Minister’s detractor, also joined the fray. Saying
that the Constituent Assembly was more representative of India than any parliament
since, he added there was no use reviving the debate over the system of government.
Today’s ‘morass’, he wrote, is due to ‘self-centred politicians at the top’. Kripalani,J. B.,
‘Presidential Form of Government’, Hindu, 5 January 1981.
36 Times of India, Bombay, 4 January 1981.
37 AR, 15-21 January 1982, p. 16411. According to the BJP analysis in this National
Executive resolution of 5 December 1981, the government was chary of declaring its
intentions because a sitting President, Sanjiva Reddy, and the Supreme Court’s basic
structure doctrine stood in the way; and the government lacked the requisite two-thirds
majority in the Rajya Sabha to amend the Constitution. By June the BJP thought the
government would have its majority and the basic structure doctrine would be no more.
Ibid.
38 ‘Review of Political Developments and Party Activities Since Eleventh Party
Congress’, New Age Printing Press, New Delhi, April 1982, p. 22.
39 Singh, S. Nihal, ‘Towards Presidency’, Indian Express, 10 June 1981. Singh also said
that the Prime Minister wanted to consolidate her immense powers and ‘has converted
the present system into a presidential one in practice’. Ibid. This was a point also made
by other observers.
 Ghosts of Governments Past 495
All this might be attributed to that suspicion and conspiracy-
mindedness so characteristic of Delhi had not Mrs Gandhi had these
very ideas in mind in May 1982. According to her Principal Secretary:
‘“Haven’t I done enough for the Party and shouldn’t I now hand over
the burden to others?,” she asked me once in great mental agony ...
She said she wanted some time for rest and writing, which the
Rashtrapati Bhavan could provide, and her advice to a new government
would still be available in her capacity as President. I knew she was
talking seriously,’ wrote P. C. Alexander.*” He recalled further that the
mood lasted for two weeks ‘as she seriously considered the pros and
cons of this proposition’, but then she turned her mind to whom might
be a suitable candidate for the Congress(I) to nominate for the
presidency.*! This turned out to be Giani Zail Singh, then the Home
Minister. (See chapter 27.)
It appears unlikely that she had abandoned the idea completely. In
a press interview in 1984, Mrs Gandhi made the points she had made
years earlier—that both parliamentary and presidential systems have
advantages and disadvantages. Whatever India had must suit its needs
and ““we all want the system to work”’, she said.4* Madhu Limaye
considered this ‘a deliberately ambivalent stand’.4#3 A. R. Antulay and
Vasant Sathe continued to advocate a presidential system. Although
Romesh Thapar called them ‘merely the puppets of 1 Safdarjang
Road’,* they may have been riding their own hobby horses and not
fronting for the Prime Minister. On 12 April and 4 May 1984, Sathe
wrote to Rajiv Gandhi, still in Parliament and nowalso a general secretary
of the AICC(I), proposing to convert the Parliament into a constituent
assembly ““to suggest suitable modifications and/or amendments to
the Constitution”’—modifications, Sathe had made clear in his lectures
and articles of the time, that would provide for the direct election of
the President by universal franchise to strengthen the unity of the
country.”

40 Alexander, P.C., My Years with Indira Gandhi, p. 62. Alexander had become the
Prime Minister’s Principal Secretary in May 1981.
41 Tbid., p. 132. Alexander also wrote that Mrs Gandhi was ‘deeply disturbed’ at the
time by affairs in her party. ;
42 Interview with Blitz, 2June 1984, cited in Limaye, Contemporary Indian Politics, p. 65.
43 Thid., p. 64.
44 Thapar, Romesh, ‘The Constitutional Fixers’, Economic and Political Weekly, 15
September 1984.
45 See lecture to the Delhi Study Group, 20 July 1984, which later appeared as an
article in Mainstream, Annual Issue, 1984, and his address at the Press Club of Calcutta,
496 Working a Democratic Constitution

Predictably, adherents of the presidential system proposed it again

after Rajiv Gandhi succeeded his mother as Prime Minister. They
acted presumably from a mixture of belief in the concept, their own
self-interest, and feelings of loyalty toward the Gandhi family. Even the
BJP would consider the idea. L. K. Advani in 1987 suggested setting up
a commission on the Constitution that would, among other things,
examine ‘the suitability of the presidential system’,*° although he later
said he was not a convert to the idea. Other fanciers continued to write
about it into the 1990s,4” but attention to the idea declined after Rajiv
Gandhi’s death— thereby again demonstrating the link between it and
‘dynasty’.
Advocates of a presidential system for India frequently look to the
American system and often possess a rosy and flawed understanding of
its efficiency and effectiveness. N. A. Palkhivala and B. K. Nehru held
similar views about the presidential system. Palkhivala thought it had
four advantages. It enabled the President to have a cabinet of
“outstanding competence and integrity”’; unelected cabinet ministers
“are not so motivated to adopt cheap populist measures ... [and it permits
them] to be absorbed in the job of government”’; and ““it would stop
defections and desertions on the part of legislators”’, who in most cases
are ‘“motivated purely by ... hunger for office”’.48 The Hindustan Times
added that the presidential system ‘tends, on balance, to work more
effectively in a vast or heterogenous country’. And it enables the chief
executive to administer ‘without having to look over his shoulder as to
which group of his followers is trying to bring him down’.*9 Such
expectations reveal, as much as anything else, the expectation, or the
hope, that a change in political—institutional arrangements would

27 October 1984. The texts are given in Noorani, Presidential System, appendices II and
IV. The text of the letter to Rajiv Gandhi appears in ibid., appendix III.
A scattering of others during this period suggested the direct election of the Prime
Minister.
46 Advani, L. K., ‘Presidential Address’ at the 9th National Council Session, Bharatiya
= Party, New Delhi, 1987, p. 6. The session took place at Vijayawada, 2—4 January
1987.
47 For example, see Sathe, 7wo Swords in One Scabbard; two articles by others in Kashyap,
Subhash (ed.), Perspectives on the Constitution, India International Centre/Shipra Publications,
New Delhi, 1993; Jain, C. K. (ed.), Constitution of India: In Precept and Practice, Lok Sabha
Secretariat, New Delhi, 1992; and Nehru, B. K., ‘Fresh Look at the Constitution’ in Kashyap,
Subhash (ed.), Reforming the Constitution, UBS Publishers and Distributors, New Delhi, 1992.
48 Palkhivala had written publicly on the subject since 1970. This quotation is taken
from a speech made in 1979 in Madras. Noorani, The Presidential System, p. 35.
19 Hindustan Times, 28 October 1980,
 Ghosts of Governments Past 497

overcome human failings. As one newspaper editor put it, the demand
for change rested on ‘the facile assumption that the
system has failed | 5 ,¢ LK
when the fault lay with those who run it’.°? The controversy about rg
changing systems and the forces for change were far too serious to be one
thought of as a tempest in a teapot. Yet, parliamentary government had
become so widely accepted that the likelihood of departure from it was!
ges
remote.

ersies and Confronta-

50 Katyal, K. K., ‘A Disconcerting Scenario—Current Controv
tionist Trends’, Hindu, 29 December 1980.
 Chapter 24

THE CONSTITUTION STRENGTHENED

AND WEAKENED

The Constitution and the ability of the judiciary to protect it gained and
lost ground in the years of Mrs Gandhi’s return. Scepticism greeted her
government's policies affecting the judiciary, national security, and civil
liberty—even when they may have been well intended. The Supreme
Court’s reaffirmation of the basic structure doctrine in the Minerva Mills
case restored the balance between the judiciary and the legislature and
definitively gave the Constitution the protection of judicial review. Yet
during these years, the government’s resort to preventive detention and
its enactment of other repressive legislation diminished constitutional
liberties and the courts’ ability to protect them. The Prime Minister had
not left all her authoritarian tendencies behind.

Parliamentary Supremacy Revisited: The Minerva Mills Case

On a main road behind the Bangalore railway station, near Sri
Nagabhusana Rao Park and Gethsemane Lutheran Church, secluded by
a steel-link fence and at the end ofa long entrance road lined with pop-
lars, stands the Minerva Mills, a unit of the National Textiles Corpora-
tion. Claiming that the privately-owned mills were ill-managed, the gov-
ernment assumed management of them in 1971 and then nationalized
them under the Sick Textiles Undertakings (Nationalization) Actin
1974,
Five years later, this gray structure became the focus of a renewed battle
over parliamentary versus judicial supremacy when, in the first Minerva
Mills case, the mills’ previous owners challenged elements of the 1971
takeover and the 1974 nationalization and the constitutionality
of por-
tions of three constitutional amendments.
The case bridged two governments. It came to the Supreme Court
in
the autumn of 1979 when Charan Singh was caretaker Prime
Minister,
unbidden by his government. The Court’s ruling in May 1980
confronted
newly-elected Indira Gandhi with a reaffirmation of the basic
structure
doctrine. The mills’ nationalization was a property matter
, but counsel
 | a th, tts

The Constitution Strengthened and Weakened 499

N. A. Palkhivala’s strategy was not to fight the nationalization on the

basis of property rights, but to achieve the same result by framing the
issue in terms of Parliament’s power to amend the Constitution. (This
strategy recalls that in the Golak Nath property case.) Although Palkhivala
argued that the nationalization under the Act infringed his clients’
fundamental right to carry on their business, he focused on clauses 4
and 55 of the Forty-second Amendment when hearings began in the
Supreme Court in mid-October 1979. He posed the question “‘whether
the provisions of the Forty-second amendment ... which deprived the |+

reasoning against the contentions of Charan Singh’s Attorney General,

L. N. Sinha, and Additional Solicitor General K. K. Venugopal, who
claimed that constitutional questions did not arise directly in the petitions.
Moreover, the Forty-second Amendment had been passed after the Sick
Textiles Undertakings (Nationalization) Act was in force, Sinha and
Venugopal contended, and, therefore the mills’ nationalization could
be challenged only under Article 31C as it was written in 1974.2
In the hearings, Palkhivala described to the Court how Janata, in
the Forty-fourth Amendment, had tried and failed to repeal elements of
Articles 368 and 31C. He said that Article 31C, by prohibiting a chal-

1 Hearing of 22 October as reported by the Hindustan Times’ legal correspondent

Krishan Mahajan. Hindustan Times, 23 October 1979; also 1981 (1) SCR 247. vig
The reader may need to be reminded that hearings in the Supreme Court were not
‘and are not) recorded verbatim by a court stenographer, nor are counsels’ written
submissions readily available from the court itself. The researcher must gain access to
these from the counsel involved, and they, too, rarely are available. Counsel typically
argue orally from notes. Lacking an official transcript of hearings, the researcher is forced
to rely on newspaper accounts of them. Although this is most unfortunate, it need not be
crippling, for the general reliability of the several lega! correspondents’ dispatches is
indicated by their similar content. This account of the Minerva hearings is drawn from /
—— >)
reports in the Hindustan Times, Statesman, and Hindu.
Clause 4 of the Forty-second Amendment Bill had expanded Article 31C to make the
Fundamentai Rights subservient to all the Directive Principles. Clause 55 had amended
Article 368 to bar review of constitutional amendments by the courts. These two clauses,
d in
the mills’ owners contended, were contrary to the basic structure doctrine establishe
Kesavananda Bharati.
Among Palkhivala’s colleagues in the case werej. B. Dadachanji and Fali Nariman.
press reports, Chief
2 For the thrust of Palkhivala’s argument, see, in addition to
SCR 247ff, which is in Minerva Mills
Justice Chandrachud’s interpretation of it. 1981 (1)
Ltd and Others v Union of India and Others 1981 (1) SCR 206ff.
and Justices
The bench hearing the case consisted of Chief Justice Y. V. Chandrachud
Kailasam.
P. N. Bhagwati, A. C. Gupta, N. L. Untwalia, and P. S.
500 Working a Democratic Constitution

lenge to laws made under the Directive Principles, was constitutionally

bad beyond issues of property, and that the Forty-second Amendment's
changes to the amending power, by making Parliament’s power bound-
less, overruled the Court’s decisions establishing the basic structure
doctrine in the Kesavananda and Indira Gandhi Election cases. These
clauses, said Palkhivala, were ‘““the impertinence of those in power”’ and
the philosophy underlying Article 31C ‘““is the very quintessence of
authoritarianism”’.* He contended that because the Directive Principles
covered the ‘whole spectrum’ of governance, few laws were not in
pursuance of them, and the article thus allowed establishment of a
‘non-democratic state’. The version of the article in the Twenty-fifth
Amendment and largely upheld by the Court in Kesavananda ‘had been
limited to specific subjects like land reforms and other issues like con-
centration of wealth’, Palkhivala explained in response to questions from
the bench. This was the Court’s ‘last chance’, he warned, ‘... to choose
between a free and an authoritarian society in India’.* Public apprecia-
tion of the case, judging from newspaper headlines, mirrored Palkhivala’s.
The Minerva Mills by name and the subject of property rights were not
mentioned. A Statesman headline read ‘42nd Amendment An Arrogant
Act’ and one in the Hindu said ‘Hearing Begins in Case Against 42nd
Amendment’.® Continuing his presentation over a week’s time, Palkhivala
also pressed the point that it was baseless to claim that Parliament neces-
sarily represented the will of the people. Article 31C violated the Pream-
ble as well as the Fundamental Rights, he said, and the Constitution con-
tained no power to frame a new constitution through a new constituent
assembly—this in agreement with an interjection from Chief Justice
Chandrachud.
Attorney General L. N. Sinha agreed that the Fundamental Rights
were sacred, but argued that Article 31C did not abrogate them. The
Court in Shankari Prasad had upheld Parliament’s power to amend
the Constitution affecting the Rights. Articles 31A, B, and C must be
presumed ‘reasonable’, he said, and the Court in Kesavananda had
upheld them. Sinha’s claim would seem to be accurate, allowing for
the fact that Articles 31A and 31B had been upheld prior to Kesavananda,
and Kesavananda had upheld Article 31C as it then was with the
exception of the ‘escape clause’ (chapter 12). Reacting to Sinha’s
specific claim that the Kesavananda decision had upheld the First

3 Hindu, 24 October 1979.

4 Hearing on 23 October. Hindustan Times, 24 October 1979.
5 Issues of 7 November 1979 and 28 October 1979, respectively.
 The Constitution Strengthened and Weakened 501

Amendmentas not violating the basic structure, the five judges displayed
the uncertainty about the clarity‘of Supreme Court decisions that on
occasion has marked the country’ jurisprudence. These men could not
agree on exactly what the Kesavananda bench had decided, and three
of them wondered whether there had been ‘any majority decision at
all’.° Over the next several days, Sinha argued the social revolutionary
position that the Directive Principles ‘prevailed’ over the Rights because
they ‘provided the goals without which the Rights would be meaningless’.
The new Article 31C improyed the Constitution, he said, and extended
the basic structure by making social and economic justice available to
all citizens instead of a few.
Palkhivala began his rebuttal on 13 November. The changes made by
the Forty-second Amendment, he said, had been made specifically to
‘overcome’ the ‘obstruction’ caused by the basic structure test introduced
in Kesavananda. The amendment’s language made clear that if the ends
are legitimate, the means employed ‘become irrelevant and non-
justiciable’. This case is a last-ditch battle for citizens to ‘stop the rot in
the Constitution’, Palkhivala warned, for Article 31C did not provide
that laws passed under it had to meet the tests of reasonableness and
public interest.’ The twenty days of hearings concluded on 16 November
with arguments by K. K. Venugopal, who was also representing the state
of Maharashtra in the Waman Rao case, which the Court would rule on
coincidentally with Minerva. Speaking from the bench during the
hearings, Justices Bhagwati, Chandrachud, and Untwalia expressed the
view that since the Indira Gandhi Election case ‘the doctrine of basic
structure had become the acceptable ratio’.®
While the bench was deliberating during January 1980, Justice
Bhagwati wrote a ‘“Dear Indiraji”’ letter to the Prime Minister. This °
congratulated her on her re-election and praised her ‘“iron will ... uncanny
insight and dynamic vision, great administrative capacity and ... heart

6 Hindustan Times, 8 November 1979.

7 Hindustan Times, 16 November 1979. The newspaper on 14 November had reported
that Chief Justice Chandrachud had told a packed courtroom that one Y. P. Sharma, a
member of the Congress (I), had advised his secretary that he should exercise * “greatest
care”’ when coming to court that day. Chandrachud said that Sharma had visited iis
residence the same evening and had repeated the ‘threat’. The Court that day was hearing
arguments regarding the cancellation of Sanjay Gandhi's bail on the ground that he had
been misusing his liberty by intimidating witnesses. The Court ruled that Gandhi must
case,
show cause why his bail should not be cancelled. This concerned the Kissa Kursi Ka
evil intentions, and Sanjay Gandhi said Sharma had
(see chapter 22). Sharma denied
nothing to do with the Congress(I).
8 Hindustan Times, 17 November 1979.
 502 Working a Democratic Constitution

which is identified with the misery of the poor and the weak” ’. The justice
continued that ‘“the judicial system in our country is in a state of utter
collapse .... [W]e should have a fresh and uninhibited look at... [it] and
consider what structural andjurisdictional changes are necessary arene
A senior columnist’s reaction to the letter was that it ‘would have done
credit to a mofussil politician’s according a civic reception to the Prime
Minister’. Its ‘net effect is disastrous ... criticizing an arrangement of which
he is very much a part and that too in a letter to the Prime Minister
hardly seems appropriate’ .!°
Se“ Nearly six monihs after the hearings ended, the court on 9 May
\Y 1980 handed down its ‘first orders’ in the Minerva Mills case. These
said that section 4 of the Forty-second Amendment was beyond the
comet’ amending power of Parliament ‘since it damages the basic or essential
Db.” features of the Constitution and destroys its basic structure by the total
er exclusion of challenge’ to laws to implement the Directive Principles at
Conon the expense of the Fundamental Rights in Articles 14 and 19. (The
wre ‘clauses’ of a bill are called ‘sections’ once the bill becomes an act.)
(“> (Section 55 of that amendment also was ruled beyond the amending
“oe pewer of Parliament ‘since it removes all limitations on the power of
the Parliament to amend the Constitution and confers powers upon it
to amend the Constitution so as to damage or destroy its basic or essential
features or its basic structure’.!! Judges Chandrachud, Gupta, Untwalia,

° Letter dated 15 January 1980. The /ndian Express published the text of the letter in
its Delhi edition of 23 March 1980.
Justice Bhagwati would expand emphatically on his theme of the judiciary in crisis in
his Law Day speech of 26 November 1985. In this he said that ‘the judicial system in the
country is almost on the verge of collapse’.
10'S. Sahay in the Statesman, New Delhi, 3 April 1980.
The executive council of the Supreme Court Bar Association scheduled a meeting
on 2 April to discuss the ‘propriety’ of the letter, following up a statement by some fifty
of
its members taking ‘strong exception’ to it. Indian Express, 23 March 1980.
'* 1981 (1) SCR 263-4. Orders read out by Chief Justice Chandrachud. See also 1980
(2) SCC 591-3.
Also on 9 May another bench handed down its decision, in the
Waman Rao case, a
case involving agricultural property. On this bench were Chief Justice Chandra
chud and
Justices Bhagwati, V. R. Krishna Iyer, A. P. Sen, and V. D. Tulzapurkar.
Waman Rao and
Others v the Union of India and Others involved the 1961 Maharashtra
Agricultural Lands
(Ceilings on Holdings) Act and amendments to it. Ruling on an appeal
from the Nagpur
Bench of the Bombay High Court, the bench upheld the First and Fourth
Amendments
and Article 31C as it stood prior to the change wrought by the Forty-se
cond Amendment
and to the extent its constitutionality had been upheld in Kesavana
nda. Chandrachud
gave the ruling for himseland f the others, excepting Bhagwati, who reiterated his opinion
in the Minerva ruling of that day. For Waman Rao, see 198] (2)
SCR 1ff.
 The Constitution Strengthened and Weakened 503
and Kailasam joined in issuing the order and said they would give their
detailed reasoning later, a delay that was not unprecedented. Justice
Bhagwati did not join the others in passing the orders, explaining that,
the issues being so momentous, he could not do so ‘without a reasoned
judgement’ (seeming to imply that his colleagues ‘orders’ were not
‘reasoned’). He would provide his judgement when the court reconvened
after the summer vacation.
The Hindu in an editorial thought the ruling ‘a blow struck in favour
of judicial review as well as the basic structure’. To have done otherwise,
the paper said, ‘would have been to leave temptation in the way of Parlia-
ment to repeat what happened under pressure during the Emergency’.
Columnist K. K. Katyal noted that the Court did what Janata had been
unable to get through the Rajya Sabha in 1978.!? The Hindustan Times
said the ruling was inevitable given the Kesavananda decision and ‘the
Prime Minister would do well to accept the new situation’.!3 Both news-
papers reported that the government might seek a review of the ruling.
Law Minister P. Shiv Shankar, just returned from a trip abroad, was quoted
as saying that he personally felt that a larger bench should go into such
vital issues, and ““I always thought that Directive Principles are what the
Constitution ordains the States (sic) to do in the interests of society. I
feel individual interests must yield to the interests of society”’.!4
Chief Justice Chandrachud gave the detailed rationale behind the
May orders for himself and the three others on 31 July. Justice Bhagwati
gave a separate opinion. The majority had held unconstitutional the
Forty-second Amendment’s prvvision (Section 55) that ‘there shall be
no limitation whatever on the constituent power of Parliament’ on the
_—
ground that the power to amend is not the power to destroy; Parliament Lae:
could not convert a limited power to an unlimited one. This section’s
other change to Article 368, which said that no amendment made before
or after the Forty-second could be questioned in court, also was held
unconstitutional for the reason that it deprived the courts of power to
question an amendment even if it destroyed the basic structure. These
changes in Article 368, therefore, permitted violation of civil liberties.
Turning to the amendment’s expansion of Article 31C, the Court said
that the Directive Principles were vitally important, but to destroy the
Fundamental Rights purportedly to achieve the Principles was to subvert

12 Hindu, 12 May 1980.

13 Hindustan Times, 12 May 1980. |
14 Findustan Times, 11 May 1980. The Hindu on the same day, but without the direct
quotations from Shiv Shankar.
 yikwr b& [pints Ve
Y2A uw peele P fy Pert
VU 4)

504 Working a Democratic Constitution

4 of the Forty-second Amendment abrogated

the Constitution. Section
Articles 14, 19, and 21 and the Court could not allow the balance between
the Rights and the Principles to be destroyed.!° The decision could
not repeal Article 31C as expanded by the Forty-second Amendment
nor delete it from the Constitution. It remains in the Constitution today,
technically unrepealed, but ‘all the cases under it are being decided as
it was before that amendment’.!®
Justice Bhagwati, writing one opinion for both the Minerva and
Waman Rao cases, agreed with the others that the changes in the Article
368 made by the Forty-second Amendment were unconstitutional because
after Kesavananda and the Indira Gandhi Election case ‘there was no
doubt at all that the amendatory power of Parliament was limited and it
was not competent to alter the basic structure of the Constitution’ .!7
But, referring to the amendment’s section 4, he believed that ‘the
amended Article 31C ... [was] constitutionally valid ... [because it] does
not damage or destroy the basic structure ... and is within the amending
power of Parliament’.!® The Constitution is first and foremost a social
(
document, Bhagwati said, and therefore ‘a law enacted ... genuinely for
giving effect to a Directive Principle ... should not be invalid because it
infringes a Fundamental Right’. The Rights are precious, he continued,
but they ‘have absolutely no meaning for the poor, downtrodden and
economically backward classes’ who constitute the bulk of the people.!9
He held that the government’s takeover of Minerva Mills was valid.
Bhagwati’s sentiments were consistent with those expressed in his 15
oe letter to Mrs Gandhi: Our judicial system “has proved inadequate
to meet the needs of ... [the] vast socio-economic developments taking
place in the country’, he had said.
Both in the text of his opinion and orally in court, Justice Bhagwati
took a jab at his Chief Justice. In court, according to a press report, he
‘deplored that the highest court in the land had violated the principle
of judicial collectivity and of not giving orders without reasons unless
there was an urgency to do so’. Momentous issues required collective
deliberation, Bhagwati said, and this would have been possible if the
Chief Justice had seen to it that draft opinions were circulated, fol-
Vy

15 1981 (1) SCR 206-13.

16 VN. Shukla’s Constitution of India, p. 277. Official editions of the Constitution
published after the Minerva Mills decision carry a footnote that in Kesavananda the
Supreme Court held the ‘escape clause’ invalid.
17 1981 (1) SCR 288.
18 Thid., p. 342.
19 Thid., p. 333.
 The Constitution Strengthened and Weakened 505

lowed by a judicial conference. Absence of this process ‘introduced a

chaotic situation’.2° In his written opinion, Justice Bhagwati expressed
the same regret at Chandrachud’s failure to arrange a ‘free and frank
exchange of theughts’, during which ‘I would either be able to share
the views of my colleagues or ... to persuade them ... with my point of
view . He likened his situation to that Justice Chandrachud had said
he faced during the Kesavananda Bharati case (chapter 12).?! But
Bhagwati would violate his own strictures within a year in the Judges
case.
The government seized upon Bhagwati’s charge in partial support of
the review petition it filed on 5 September challenging the Minerva rul-
ing. Bhagwati, asserted the government, had declared that the decision
‘““was not a judgement of the court at all”’. The Court’s decision was
‘““merely”’ the opinion of each judge, argued Miss A. Subhashini, repre-
senting the Law Ministry.** Additionally, the government contended that
Article 38 (of the Directive Principles, which said that the state should
strive to promote the welfare of the people by minimizing inequalities of
income, and other inequalities) was also part of the Constitution’s basic
structure. The government did not pursue the review, and the matter ofso ut
was still ‘hanging fire’ when Shiv Shankar left el esMinistry to be- wee 4
come Minister of Petroleum in early January 1982.2 L
wr?
20 Hindustan Times, 2 August 1980. Bhagwati also said in court, according to the
newspaper, that it was only on 8 May, the day before the orders, that Chandrachud told
him that four judges intended to strike down those provisions and give their reasons
later. That there was no urgency in the case, Bhagwati said, was demonstrated by the
many months between the end of the hearings and the 9 May orders. One of Bhagwati’s
colleagues on the bench, in an interview with the author, recalled that the judges frequently
discussed the case while arriving at their opinions, but could not recall if draft opinions
had been circulated.
\ad
21 1981 (1) SCR 270. Bench conferences and the circulation of draft opinions typically Oi
have been irregular, and would continue to be so. rp
22 Hindustan Times, 6 September 1980. Accounts in the Statesman and Times of India
confirm this.
An article in the Hindustan Times four days earlier had reported that the government
was considering filing a review petition and must do so within the ‘stipulated 30 days’
after the decision. Shiv Shankar had told Parliament that the timing of the government's
decision whether or not to file for review was a matter of ‘strategy’. Normally, the newspaper
article explained, a review petition was heard by the same bench as had heard the case in
question, but this was impossible, for Untwalia had already retired, and Kailasam was due
to retire on 12 September.
23 Shiv Shankar interview with the author.
was
In a December 1982 decision, the Supreme Court upheld Article 31C as it
a Reddy
originally in the Twenty-fifth Amendment. Giving the decision, Justice Chinnapp
 506 Working a Democratic Constitution

The Minerva Mills case was at once highly significant and peculiar. In
upholding the basic structure (as it did also in the parallel Waman Rao
case), the Supreme Court ensured that it would remain the foundation
of the country’s constitutionalism. The court had reaffirmed that the
checks and balances of the Constitution were vital to the preservation
of democracy and of the Fundamental Rights. Kesavananda had
propounded the doctrine, the Indira Gandhi Election case had upheld
it, and Minerva engraved it on stone. The peculiarities encompassed
both context and substance. The hearings, begun while Charan Singh
was the caretaker Prime Minister, produced a decision that the Charan
Singh government would have welcomed. Yet delivered when Indira
Gandhi was Prime Minister, the decision was unwelcome, and her
government's first thought was to have the engraving erased through
review.
_ Minerva was a nationalization, a property case. Yet the right to prop-
erty was no longer in the Fundamental Rights—thanks to the recently
assed Forty-fourth Amendment. And the precise issue of the mills’ na-
tionalization was not even mentioned in the court’s ‘order’ of 9 May.
Addressing the petitioners’ challenge to the constitutionality of the Sick
Textiles Act, Chief Justice Chandrachud wrote in his opinion, ‘We are
not concerned with the merits of that challenge at this stage’.*4 The case
became a vehicle for N. A. Palkhivala and his fellow senior advocates to
protect the Constitution from those provisions of the Forty-second
Amendment that Congress in the Rajya Sabha had prevented the Janata
government from repealing.
The government under Charan Singh’s caretaker prime ministry
seems to have been caught between millstones. Confronted with the
Minerva Mills case, it wished to defend a public enterprise from
de-nationalization. Yet, it had no love for the portions of the Forty-second
Amendment that Janata had failed to get repealed. Could it separate the
two issues? Could it win on keeping the mills public property while not
minding a loss on the Forty-second Amendment—perhaps even hoping

made remarks, later considered obiter dicta, that the version of Article
31C as altered by
the Forty-second Amendment was also constitutionally valid. Reddy’s
remarks have been
criticized by Baxi, Upendra, Courage, Craft and Contention: The Indian Supreme
Court in the
Fighties, N. M. Tripathi Pvt. Ltd., New Delhi, 1985, p. 110 and in V.
N. Shukla’s Constitution
of India, p. 902. Reddy is, nevertheless, a firm supporter of the oasic
structure’ doctrine.
(Reddy interview with the author.) The case in question was
Sanjeev Coke Manufacturing
Co. v Bharat Coking Coal Ltd. AIR 1983 (1) SC 239ff. The issue was
the nationalization of
mines.
24 1981 (1) SCR 236.
 The Constitution Strengthened and Weakened 507
for it? Did such calculations lie behind the government's strategy to argue
that the nationalization was defensible as a property issue, while leaving
the constitutional issues to Palkhivala by claiming that constitutional issues
did not arise? If this was the strategy, it succeeded brilliantly, for the
Supreme Court did what the government had been unable to do in the
Forty-fourth Amendment. ‘Supremacy of Constitution’ was the greeting
the Statesman gave the Minerva orders in its editorial of 10 May.
For her part, Mrs Gandhi inherited a case whose outcome she was
not in a position to affect. With the hearings concluded before she re-
turned as Prime Minister, she and her government’s law officers only
could await the Supreme Court’s decision. The government’s resulting
review petition lacked weight, and there seems to have been no energy
expended in its pursuit.?° Thus, one cannot accuse Mrs Gandhi during
her second reign of direct attempts to overturn the basic structure doc-
trine, although it is unlikely that she had come to admire it. But when
the Lawyers’ Conference in the autumn of 1980 revived agitation for
change to a presidential system, two months after the review petition
had been filed, her critics, suspecting she favoured the conference, cred-
ited her with designs on the basic structure. The Prime Minister by this
time may have lost interest in the issue.

Liberties Lost
As the Constitution was being saved in Minerva, liberties were being
lost to repression at least as harsh as that during the Emergency, although
ess widespread. The pattern of the past had returned. From 1980, central
and state governments enacted or re-enacted laws providing for preventive
detention, banning strikes, and threatening freedom of speech. The
justifications for such legislation typically were the public interest or
protection of national security and integrity. Doubtless, stern measures
were necessary against insurgents in, for example, the Punjab, as will
be described more fully in chapter 27. But harsh laws were used harshly,
and the conditions they were enacted to meet originated in no small
part from Mrs Gandhi’s misguided policies. Having sowed the wind,
she reaped the whirlwind.

25 As to its own immediate interests, Minerva Mills found it needed another try. In
the second Minerva Mills case in 1986, the mills’ owners challenged the original takeover
of management in 1971 under the Industries Development and Regulation Act, only to
have their challenge rejected by the Supreme Court. 1986 (3) SCR 718ff.
Justices Chinnappa Reddy and M. M. Dutt constituted the bench. Rohinton Nariman,
Fali Nariman’s son, represented Minerva Mills.
508 Working a Democratic Constitution

It was Charan Singh’s caretaker government, however, that had re-

instituted preventive detention after the Janata government had
refrained from doing so. It promulgated an ordinance on 5 October
1979 providing for detention to prevent black-marketing and to ensure
the maintenance of commodity supplies essential to the community.
President Sanjiva Reddy took two days to sign the ordinance, reportedly
because he did not share the Prime Minister’s eagerness for it—any more
than had a recently concluded conference of chief ministers, where all
but two had ‘bitterly’ opposed it.2© Making reference to the 1955
Essential Commodities Act, a well-known commentator on economic
affairs wrote, “This is not the first time that a government has armed
itself with excessive power to deal with a problem ... [that] could have
been tackled ... [under] existing laws’.2” Sceptics said that Charan Singh
thought the step would rescue his political position from the effects of
sharply rising food prices.
Parliament, following an Opposition walk-out, replaced the ordinance
with an act a month after Mrs Gandhi resumed power. Under this
comparatively mild law, the advisory boards to be established to review
detentions were to be constituted as prescribed by the Forty-fourth
Amendment—i.e.according to the recommendations of the chief justice
of the appropriate high court. The board chairman was to be a serving
judge of the court, and its two or more other members should be serving
or retired judges of any high court.28 Within ten days the detenu was to
be informed of the grounds for his detention and was allowed to make
representations against them. But the government was not required to
disclose facts considered ‘against the public interest to disclose’. Within
three weeks the government was to place its case before the advisory
board, which could call for further information and hear the detenu.
Within seven weeks from the date of detention the board either should
uphold the detention or invalidate it. Detentions could last six months.
The terms of the National Security Act passed on 27 December 1980
presaged years of new repressive legislation. Detentions were sanctioned
to prevent an individual from acting in a manner prejudicial ‘to the

26 Hindustan Times, 4 October 1979.

27 Panandiker, V. A. Pai, ‘The Preventive Detention Issue’, Hindustan Times, 23
October
1979.
28 The Prevention of Blackmarketing and Maintenance of Supplies of Essential
Commodities Act, 1980. Central Acts and Ordinances, 1980, Parliament
Library, New Delhi.
The provisions, themselves, of the Forty-fourth Amendment had not
then and still
have not been brought into force, but these principles were incorporated
in the ordinance
and the act replacing it. P. B. Venkatasubramanian letter to the author.
 | A, Pre oe
fan fle aes pene

The Constitution Strengthened and Weakened 509

maintenance of public order’, to the defence or security of India, to

relations with foreign powers, to protect the maintenance of essential
supplies and services. But the law’s intent was far more inclusive. It was
to combat * “anti-social and anti-national elements including secession-
ist, communal and pro-caste elements”’ and elements affecting ‘“the
services essential to the community” ’.29 There were other significant
differences from the Blackmarketing Act. Now the state government
could appoint the advisory board without the high court chief justices’s
recommendations, and its members, except for the chairman, could ei-
ther be high court judges or persons ‘qualified’ to be so, which included
any advocate who had practised for ten years in a high court. An indi-
vidual might be detained for a year and then detained again, without
prior release, if ‘“fresh facts had arisen”’.°9 A senior advocate feared
abuse of such ‘tyrannical laws’ and said the Constitution did not con-
template detention on such wide grounds. Another commentator noted
that there had been no arrests of ‘big’ smugglers and blackmarketeers,
and cited highly questionable political detentions.>! The Supreme Court Z
upheld the Act’s constitutionality at the end of December 1981.22 wy
More egregious laws were to come. The President in April and June P fer
1984, promulgated two ordinances amending the National Security
Act—both these ordinances were later replaced by Acts of Parliament.
The first ordinance allowed a detention order to be submitted to an
advisory board four months and two weeks afterthe detention and allowed
the board to take five months and three weeks to give its opinion—that
is, ten months in
jail on executive whim. Individuals might be detained

29 From the bill’s Statement of Objects and Reasons as quoted in Swaroop, Preventive
Detention, p. 105.
30 The National Security Act, 1980. Ibid. This replaced an ordinance of the same
name promulgated in September.
This act did not have to comply with the Forty-fourth amendment because this section |
of the amendment had not come into force, not having been ‘notified’ in the paca
Gazette. See ch. 19.
31 Respectively, Nariman, Fali, ‘Need for Judicial Vigilance’, Indian Express, 14
November 1980; Shourie, Arun, ‘All for the Nation’s Security’ in Shourie, Mrs Gandhi's
Second Reign, pp. 235ff. 3
The Economic and Political Weekly found ‘shoddiness’ in the implementation of
‘repressive legislation’, with labour leaders detained ‘without going through the necessary
paperwork’. EPW, vol. 17, no. 7, 13 February 1982. VW
32 Decision on 28 December 1981 in A. K. Roy v Union of India 1982 (1) SCC 271 ff.
On the bench were Chief Justice Chandrachud andJustices Bhagwati, A. C. Gupta, V. D.
Tulzapurkar, and D. A. Desai. Chandrachud gave the opinion of the court for himself,
Bhagwati, and Desai.
510 Working a Democratic Constitution

for two years. The second ordinance outdid this. It said that before or
after its promulgation a person detained on two or more grounds, each
ground qualifying as a separate detention, could not have his detention
rendered invalid if ‘one or some’ of the grounds were ‘vague, non-existent,
not relevant, not connected or not proximately connected with such
person, or invalid for any other reasons whatsoever’ .?? This ‘lawless law’
was explained as necessary to deal with the “‘extraordinary situation’” in
parts of the country and as needed “‘to deal stringently with anti-national,
extremist and terrorist elements ... in the larger interests of India’”.4
The extraordinary situations included the Punjab, where, in July, the
army invaded and occupied the Sikhs’ Golden Temple and remained
into October. Late that month, two Sikhs of Indira Gandhi’s security
guard murdered her. Locally, as it had nationally during Mrs Gandhi's
Emergency, democracy had failed.
The Terrorist and Disruptive Activities Act (TADA), which followed
on 20 May 1985 when Rajiv Gandhi had become Prime Minister, sur-
passed even the egregiousness of the amended National Security Act. It
empowered the government to make rules as necessary and ‘expedient’
for ‘prevention of and coping with terrorist acts and disruptive activi-
ties’; to prevent the spread of reports ‘likely to prejudice maintenance of
peaceful conditions’; to regulate ‘the conduct of persons in respect of
areas the control of which is considered necessary’; and to require per-
sons ‘to comply with any scheme for the prevention, or coping with, ter-
rorist acts and preventive activities’.>> The law, wrote Fali Nariman, de-
fined terrorist and disruptive activities so broadly ‘as to encompass even
peaceful expression of views about sovereignty and territorial integrity’;
permitted detention for up to six months without charge; provided for
trials before designated courts ‘in camera and adopting procedures
at variance with the Criminal Procedure Code’; and said that if the
person detained came from an area the government had declared to

33 Text of the National Security (Second Amendment) Ordinance, 1984. Black Laws,
1984-1985, People’s Union for Civil Liberties, New Delhi, June 1985, pp. 44ff. The content
of the ordinance is analysed by V. M. Tarkunde in ibid., p 29ff. The laws replacing the
ordinances had been enacted in May and August 1984, respectively.
34 From the Statement of Objects and Reasons cited in Swaroop, Preventive Detention,
p. 106.
35 ‘The Terrorist and Disruptive Activities (Prevention) Act, 1985’, Central
Acts and
Ordinances, 1985, Parliament Library, New Delhi. Text also in Black Laws, 1984-85,
pp. 11.
In July 1984, the President had promulgated an ordinance empowering the central
government to establish special courts for ‘ “speedy trial of scheduled offences” ’,which meant
wanton killing, violence intended to put the public in fear, adversely affect social
harmony,
ete.
 The Constitution Strengthened and Weakened 511
be a terrorist affected area ‘the burden of proving that he has not com-
mitted a terrorist act in on him’.3® Common law had been reversed: you
were guilty until you proved yourself innocent.
Meanwhile, various state legislatures had passed their own preventive
detenuon laws paralleling the centre’s, as they often had since 1950. Or,
they had enacted particularistic preventive detention laws: for the broad
control of crimes (Bihar 1980-1); against communal and dangerous
activities (Maharashtra 1981, Tamil Nadu 1982, Andhra Pradesh 1986);
and anti-social activities (Gujarat 1985).37 Parliament had passed, with
many states following suit, laws banning strikes and allowing arrests
without a warrant and providing for summary trials (the ‘essential
services’ acts).28 Mrs. Gandhi had said she wanted ‘to assure workers
that this ordinance is not against them ... [W]e will never do anything to
suppress them or create difficulties .... But it is necessary that the public
services are kept going.’*? Attempting to deal with the situation in
Punjab, Parliament passed laws other than those already mentioned—
such as those establishing special courts for disturbed areas, the Armed
Forces (Punjab and Chandigarh) Special Powers Act, and the Fifty-ninth
and Sixty-third Amendments to the Constitution (in 1988 and 1989,
respectively), which gave the central government special emergency

36 Analysis of the act by Nariman, Fali, ‘The President’s Page’ in The Indian Advocate,
Journal of the Bar Association of India, vol. 25, 1993, pp. If.
e Supreme Court characterized TADA as harsh and drastic but upheld it unanimously
in Kartar Singh v Punjab 1994 (3) SCC 569. Also see Supreme Court Almanac (SCALE), a
private commercial publication, 1994, Supplement. On the bench were S. Ratnavel Pandian,
M. M. Punchhi, K. Ramaswamy, S. C. Agrawal, and R. M. Sahai.
There were other acts providing for preventive detention. On 27 August 1987, the
government amended the 1974 Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act (which already provided for preventive detention). On 6
September 1988, it enacted the Prevention of Illicit Traffic in Narcotic Drugs and
Psychotropic Substances Act. In general, the provisions of this act followed the model of
detention acts just preceding it and allowed detentions for up to two years.
37 For the texts of several of these state laws, see Swaroop, Law of Preventive Detention,
appendices.
38 Summary trials are a foreshortened process to achieve speedy disposal of cases.
Witnesses need not be called, nor a charge framed. See Code of Criminal Procedure,
chapter 21.
39 Independence Day speech from the Red Fort, 15 August 1981. Indira Gandhi:
Speeches and Writings, vol. 4, p. 179.
Two months later, the Prime Minister denied collective responsibility for legislation
banning strikes. An interviewer asked ‘when you say you are going to ban strikes ... Prime
Minister: “Only in essential services. But it was not my decision. It came to the cabinet
from the concerned ministry (Industry). It did not emanate from me at all.”’ Interview
with the French newspaper Madam Figaro on 12 October 1981. Ibid., p. 583.
512 Working a Democratic Constitution

powers in Punjab. In particular, the latter said that during a Punjab

emergency, there was no protection from Article 21—no person can
be deprived oflife or liberty except according to procedure established
by law. A commentator captured the reaction of many to these
ordinances and laws when he referred to the ‘gay abandon’ ofthe central
government in ‘accumulating extraordinary powers ... [which] makes
one wonder whether in the not too distant future anything will be left
of the normal law of the land’.*°
Oppressiveness being infectious, it spread to other civil liberties such
as freedom of speech. The legislatures of Bihar and Tamil Nadu in
1982 passed laws restricting press freedom. The Bihar Act, reportediy
passed in five minutes, provided for fines and imprisonment for
possessing, selling, or publishing pictures, advertisments, or reports that
are ‘ “grossly indecent or... [are] scurrilous or intended for blackmail” ’.
” >

Publication was permissable if the material was expressed ‘“in good

faith”’. One would assume that Mrs. Gandhi’s government previously
had cleared these bills, given customary practice, namely that a state
government consults the central government before enacting legislation
dealing with an item on the Concurrent List.4! Bihar Chief Minister
Jagannath Mishra said the bill was not meant to intimidate the press.*°
To the accompaniment of an immediate and loud press and public
uproar, both bills were withdrawn.
During 1986 and 1988, the central government ventured, itself, into
curbing the press and civil liberty other than through preventive
detention. On 11 November 1986 Rajiv Gandhi’s government introduced
in the Lok Sabha what came to be known as the Postal Bill. With its
passage by the Rajya Sabha on 10 December, the central and state
governments were empowered to direct that in the interests of public
safety or tranquility, the security of India, or on the occurrence of any
public emergency, any postal article or class of postal articles ‘shall be
intercepted or detained or shall be disposed of’ as authority may direct.
Public opposition again was vehement, although some knew that a_

40 Sahay, S., ‘More and More Extraordinary Powers’, in Sahay, A Close Look, Allied
Publishers Pvt. Ltd., New Delhi, 1987, pp. 219ff. See also Desai, A. R. (ed.), Violation of
Democratic Rights in India, Popular Prakashan, Bombay, 1986, vol. 1.
41 ‘Newspapers, books and printing presses’ is Item 39 on the Concurrent List.
42 AR, 10-16 September 1982, pp. 16785-8.
The Prime Minister told the Lok Sabha on 16 August 1982 that ‘we stand committed
to a free press’, but the press has to be ‘responsible’ and no one is entitled to use his
freedom of speech to injure another's reputation, Indira Gandhi: Speeches and Writings,
vol. 5, p. 24.
 The Constitution Strengthened and Weakened 5]3
certain amount of legal and ‘informal’ mail interception (by postal
employees co-operating with the Intelligence Bureau and the CBI) had
been going on for years.
The bill went to President Giani Zail Singh on 19 December for his
assent, and the issue of presidential powers arose. Singh refused to sign
the bill on 15 January 1987 and then sat on it, apparently without
consulting anyone about his decision to do so. This was the first ‘pocket
veto’, a thing not envisaged in the Constitution. By this time, the
President’s relations with Prime Minister Rajiv Gandhi had become
bitter, and informed opinion was divided about whether the President
was acting on principle, from pique at his treatment by the government
(he and Rajiv Gandhi were oil and water), or from resentment at
government policies in the Punjab.** R. Venkataraman became President
on 25 July 1987 with the Postal Bill still lying at Rashtrapati Bhavan. The
new President never understood his predecessor’s mind on the issue,
but himself disliked much of the bill.44 He returned it to Rajiv Gandhi
on 7 January 1990 with the recommendation that it go to the Law Ministry
for reconsideration, having himself declined to suggest changes when
the Prime Minister requested him to do so. The bill actually was returned

43 In his memoirs, Zail Singh says that he received the bill on 22 November 1986.
Thinking that it ‘undermined’ the Constitution’s ‘fundamental freedoms’, he twice made
suggestions for changes in it to the government, whose responses did not satisfy him. He
records that he did not return the bill to Parliament for reconsideration, because he would
have had to assent were it returned to him after re-passage. Singh did ‘anticipate’, he says,
that his successor would be ‘reluctant to endorse such a measure’. Singh, Zail, Memoirs of
Giani Zail Singh: The Seventh President ofIndia, Har-Anand Pubiications Pvt. Ltd., New Delhi,
1997, pp 276ff.-
Constitutional and personal elements had strained relations between the Prime Minister
and the President. Zail Singh complained, apparently accurately, that Rajiv Gandhi was not
keeping him informed of government activities—a ‘duty’ prescribed for the Prime Minister
in Article 78. Personally, the two men reportedly looked upon each other with distaste.
Singh-Rajiv Gandhi relations would worsen to the point of constitutional crisis, and the
President even researched his authority to dismiss a prime minister.
Zail Singh, elected President on 15 July 1982, had risen from Chief Minister of the
Punjab to be a cabinet minister during Mrs Gandhi's second prime ministership. He was
thought to be deeply in her political debt, and his election was challenged on the grounds
that he was unfit for office. The Supreme Court dismissed the charges as false and frivolous
and said that an election could not be challenged because the official was believed unsuitable.
Some political observers feared that Zail Singh would stand up to Mrs Gandhi no more
than had President Ahmed should she return to authoritarianism. Such apprehensions
rested in part on Zail Singh’s having ‘blurted out’, ““I am prepared to pick up a broom and
sweep any place if Mrs Gandhi asks me to do so”’. Singh, Satinder, ‘Giani the Great’, The
Sunday Free Press Journal, 26 July 1987.
44 Interview with a person privy to Venkataraman’s views.
514 Working a Democratic Constitution

to the Rajya Sabha, where it was tabled on 3 March 1990, and where it
was still pending in 1994.49
The Rajiv Gandhi government again attacked the Fundamental
Rights, at least in the view of an unusually united national press, when
in August 1988 it attempted passage of the so-called ‘Defamation Bill’.
Allegations of corruption against the Prime Minister (regarding weapons
purchased for the army), his close associates, and other ministers had
been current for months. Parliamentary elections were due in a year,
and the bill was, said a newsmagazine, ‘an act of desperation’.*° The
bill’s Statement of Objects and Reasons said it proposed to make an
offence ‘the publication of imputations falsely alleging commission of
offences by any person’. Freedom of speech must not ‘degenerate into
licence’, said the Statement. The ‘draconian character’ of the bill was
exemplified, said the Times of India in its putting ‘the onus of proof that
no defamation was caused upon the accused’.47
The government rammed the bill through the Lok Sabha on 30
August after an acrimonious debate over substance. The opposition
charged that, in the process, Parliament’s rules of procedure had been
violated. The uproar caused Rajiv Gandhi to announce that the bill
would not be introduced in the Rajya Sabha. The Defamation Bill
thus achieved the dubious distinction of being the first bill since
independence to be withdrawn by a government after passage in the
Lok Sabha.*®
This attention to government policies affecting civil liberty should
be understood in context. In several areas of the country state
government were unable to cope with internecine conflicts between

45 For the legislative history of the bill’s actual return to the Rajya Sabha, the author
is indebted to M. K. Singh, Assistant Director of Research for the Rajya Sabha.
For an analysis of the Postal Bill affair, see Limaye, Madhu, President versus Prime Minister,
Janata Party, Bombay, 1987.
416 India Today, 30 September 1988, p. 12.
47 Editorial of 31 August 1988.
48 Among the bill's active opponents was Dinesh Goswami, a member of the Swaran
Singh Committee.
At this time the government also was reported to favour amending the Official Secrets
Act.
The government already had taken a major step to prevent embarrassing information
from becoming public. In May 1986, it promulgated an ordinance (replaced by an act of
Parliament on 6 August) amending the 1952 Commissions of Enquiry Act so that the
government could withhold reports of commissions from the public on grounds of the
security of the state and public interest. One of the first reports subsequently withheld
was the Thakkar Commission’s report about Mrs Gandhi's assassination.
 The Constitution Strengthened and Weakened 515
local factions or with insurrectionary violence. They came to depend
on central government forces to contain or subdue the violence and
preserve a measure of government authority. Yet, although the Terrorist
and Disruptive Activities Act extended nationally, in much of the country
it was not extensively employed. Only in several states did repression
under the act result in the virtual extinction of democracy—notably,
Jammu and Kashmir, the Punjab, Assam, and elsewhere in the Northeast.
Rajiv Gandhi’s government inherited both the ugly conditions in these
areas and his mother’s failed policies in the Punjab and Kashmir, which
he attempted to redress. That the responsibility for these conditions
rested both with local militants—secular and religious—and with New
Delhi for its divide-and-rule meddling in state affairs did not lessen
their precariousness. Nevertheless, repression became a substitute for
reform. Authoritarian methods were the easy way out, demanding less
intelligence, less political effort, and no recognition that your opponent
might have a point. Repression was power without perspective, an
imperium, not the statesmanship the country needed.
 Chapter 25

JUDICIAL REFORM OR HARASSMENT?

Given Mrs Gandhi's past policies toward the judiciary, it was small wonder
that after 1980 the ever-simmering issue of judicial independence boiled
again. Nor was the principal sub-topic new: the appointment and transfer
of high court judges. Indeed, the tenacity of both the broad and specific
issues testified to their importance and to their unresolvable character:
perfect independence of the judiciary was impossible. Were it claimed to
exist, few would believe it, and others would be inclined to tamper with
it. The most that might be achieved would be some approximation of
independence resulting from an improved process and, most of all, from
greater trust among those involved with judicial matters. But this was
absent. The executive and the judicial branches again were battling.
Senior Advocate Anil Divan’s diagnosis was that ‘powerful politicians want
to be above the law ... to sit in court by proxy through a pliant and
submissive judiciary’ .!
Contained within the issues of independence of the judiciary and
judicial appointments as they agitated the eighties were the sub-topics
endemic to the judicial enterprise in the country: whether or not
considerations of caste figured in the appointments of judges or in their
behaviour on the bench; the susceptibility of high court judges to
influences from local parties, private or governmental, including actual
bribery; the intrusion of family relationships into a court’s functioning,
especially the matter of a judge’s close kin practising as advocates in his
high court; long unfilled vacancies on high courts, often believed to be
an executive branch technique for diminishing the courts’ capabilities;
and the manipulation of appointments by executive branches in New
Delhi and the state capitals with the intention of influencing judicial
decision-making.
Mrs Gandhi, her critics believed, came to the renewal of these issues
with hands unclean from, especially, the 1973 supersession of judges,
the transfer of judges during the Emergency, and the supersession of

! Divan, Anil, ‘The Government vs. The Supreme Court’ Statesman, New Delhi, 28
June 1981.
 Judicial Reform or Harassment? 517
Justice Khanna. Few were inclined to believe that the poacher had
turned gamekeeper even when a measure her government proposed
might be construed as a genuine attempt at reform and found approval
from the Law Commission and among individuals ordinarily not her
supporters. Lawyers, judges, and the aware public reacted less to the
actual substance of a government statement or proposal than with
suspicions about the motives assumed to lie behind it. Receptivity to
the Prime Minister’s policies regarding the judiciary—or perceptions
of what they meant—could not have been enhanced by Law Minister
Shiv Shankar’s order, within weeks of the government's taking office,
closing down the special courts and, coincidentally with this, his remark
that *“the judiciary continued to be a vestige of British imperialism and
it should be reorganized” ’.* Government actions regarding the transfer
and appointments of several judges also fuelled the controversy, which
culminated in the famous Judges case, also called the Gupta
S. P. case,
in the Supreme Court. But the court’s decision produced questions as
well as answers, and it would be a dozen more years before a potentially
durable policy on these two issues would be found.?

Appointments and Transfers

The train of events began in mid-1980 with the rumour that the
government intended to appoint the chief justice of each high court
from outside itsjurisdiction. Law Minister Shiv Shankar tended to confirm
this when he told the Lok Sabha that, although the government had no
such policy, it believed ‘the proposal merits favourable consideration in
the interests of sound judicial administration and also the independence
of the judiciary’. Government officials at this time also were thinking

2 Cited in ibid.
3 Article 222 of the Constitution provides that the President, after consultation with
the Chief Justice of India, may transfer a judge from one high court to another. The Fifteenth
Amendment (1963) provided that a transferred judge should receive certain compensatory
allowances. Anxieties about transfers at that time evoked an assurance in Parliament by the
Law Minister, Asoke Sen, that judges would not be transferred without their consent.
Subsequently, this came to be regarded widely as a constitutional convention (chapters 5
and 15). It will be recalled that in Sankalchand’s case, the Supreme Court ruled that a
judge’s consent to his transfer was not a necessary precondition for it (chapter 20). The
Seventh Amendment (1956) provided that the President could appoint for terms of up to
two years additional high court judges if this were desirable because of ‘any temporary
increase in the business of aHigh Court or by reason of arrears of work therein’.
aw Minister’s Statement on Appointment of Chief Justices of High Courts’, Press
4 ‘T
Information Bureau, GOI, 24 July 1980. Also, Lok Sabha Debates, Seventh Series, vol. 7, no.
35, cols 200-4.
 518 Working a Democratic Constitution
in terms of one-third of all judges on a high court coming from outside
of the state, although this would emerge as policy only in the summer of
1981. The Parliament’s Consultative Committee for the Law Ministry
favoured both courses of action, according to a then senior Department
of Justice official. Judges could come from out of state by initial
appointmentas well as by transfer. Mrs Gandhi believed that many people
thought ‘that there should be greater movement of judges because 4
they stay in one place they get involved with something or somebody’.°
Two events now stirred the pot. First came a messy affair in which an
additional judge of the Allahabad High Court resigned, declaring himself
opposed to a transfer of judges policy “aimed at creating fear and a
sense of instability”’ in the minds of judges, and protesting that the
extension of his own tenure as an additional judge for only four months
was due to political considerations, particularly his alleged connections
with Mrs Gandhi’s enemy, Raj Narain.© The governor of Uttar Pradesh
had written to the Law Ministry that Justice Srivastava’s extension was
not desirable because he ‘“might be susceptible to political bias and
pressure””’./ Doing this, the governor had bypassed the normal procedure
of consulting the court’s chief justice.’ Shiv Shankar denied in the Rajya
Sabha that questions had been asked about Srivastava’s party connections.
A He said on this occasion that regional and caste considerations affected
recommendations for judicial appointments; that the judicial system
might break down if ‘extraneous considerations’ continued to play ‘a
vital role’ in appointments; and that if the members were serious about

There were sixty-five high court judgeships vacant at this time, only thirty-one names
had been recommended to fill them; five high courts had only acting chief justices; and
arrears in the high courts had risen to over 600,000 cases at the end of 1979. Ibid., col.
202. Also Indian Express, 24 July 1980.
> Answer given on 26 July 1980 toa question from the American scholar Francine
Frankel. /ndira Gandhi: Speeches and Writings, vol. 4, pp. 66-7.
6 Judge R. C. Srivastava’s resignation letter to President Sanjiva Reddy was published
in the Hindustan Times, 26 July 1980.
Srivastava thought the short renewal of his tenure was due to his having been Raj
Narain’s counsel during the Indira Gandhi Election case. He wrote this to President
Reddy in his resignation letter and added that he did not like the government enquiring
through the Chief Justice ‘“whether I was a member of the Socialist Party”’, whether he
had received telephone calls from Raj Narain, and whether he had worked in the January
Lok Sabha elections—where, he claimed, he had not even voted.
The Hindustan Times commented that additional judges had ‘invariably’ been
\/confined as puisne judges, excepting in two cases during the Emergency. Hindustan
Times, 27 July 1980
7 Hindustan Times, 28 July 1980. The letter had been sent the previous March.
8 Sahay, S., ‘Appointment and Terms of Judges’, Statesman, New Delhi, 51 July 1980.
 Judicial Reform or Harassment? 519
judicial independence, they should consider having one-third ofa high
court’s judges from outside the state.?
Shiv Shankar, himself, provided the second event. He wrote in Au-
gust 1980 to chief ministers and high court chief justices that more indi-
viduals from the Scheduled Castes and Tribes should be considered for
judgeships. Although this was a constructive suggestion, it nevertheless
strengthened perceptions that the government had designs on judicial
independence.!?
Public reactions, particularly to talk of transferring judges, ranged
from approval io dire predictions. The Bar Council of India opposed
one-third the number of judges coming from out of state as potentially
dangerous to judicial independence. The Indian Express agreed, saying
that ‘the public would not trust the executive with unrestricted powers
to transfer High Court judges against their wishes’.1! S. Sahay thought
‘pernicious’ the doctrine that a judge could not become chief justice
in his own high court.!* Experience with the executive’s power of
appointment ‘so far has not been happy’ thought K. K. Katyal. The
recommendations emanating from chief ministers, he wrote, give rise
‘to suspicions of extraneous considerations’ and, therefore, ‘additional
safeguards are needed’.!° A. G. Noorani thought the process suggested
by the Law Minister would ‘undermine the independence of the
judiciary and outweigh any other merit the scheme might possess’.!4

9 Hindustan Times, 31 July 1980. Also, Parliamentary Debates, Rajya Sabha, vol. 115, no.
6, col. 199.
10 Shiv Shankar informed Parliament of the letter. Lok Sabha Debates Seventh Series,
vol. 7, no. 42, col. 292. Shiv Shankar also said he regretted that there were only five scheduled
caste high court judges. Apparently, some caste considerations in judicial appointments
are more acceptable than others.
11 Editorial, issue of 25 July 1980.
12 Sahay, ‘Appointment and Terms of Judges’. Sahay referred to the Law Commission’s
recent suggestion (foot note 16) that the senior-most judge of ahigh court should become
the chief justice unless found unsuitable (Report, p. 34) and that one-third ofjudges be
from out ofstate. He pointed out the commission’s recommendation that this normally
should be achieved through initial appointment rather than through transfers—a
recommendation that the government typically sidestepped in its citations of the
commission's report.
Sahay also mentioned the renewed suggestions from the Law Minister to form an All-
India Judicial Service and said that in the current context the idea needed to be reviewed
to prevent harm to judicial independence.
13 Hindu, 4 August 1980.
14 Noorani, A. G., ‘Transfer of High Court Judges’, Economic and Political Weekly, 20
September 1980. Noorani pointed out that Shanti Bhushan, when Law Minister, had
told the Rajya Sabha that no judge would be transferred without his consent.
520 Working a Democratic Constitution

The Hindu, on the other hand, thought such anxieties ‘entirely

misplaced’. The policy of having judges from out of the state would
promote national integration, and they would not be swayed by local
considerations or ‘regional passions’, the newspaper said.!° Those
favouring transfers, generally speaking, agreed with the Hindw’s points.
Those opposed believed an outside chief justice, even more than puisne
judges, would be hampered by ignorance of the local language and of
local personalities and conditions. Several of the appointment and
transfer policies to which the critics objected had been recommended
by the respected H. R. Khanna, then Chairman of the Law Commission,
in the commission’s Eightieth Report. Khanna also had also recommended
devices for protecting judicial independence.!®
The Bar Council of India in a ‘National Seminar’ in an autumn
expressed a more favourable view of transfers than it had earlier and
suggested a mechanism for high court appointments. The initiative for
the appointment of judges should come from a collegium of ‘three
senior-most judges of the High Courts and two leading advocates
nominated by the Bar’. The chief minister could discuss with the collegium
any objections to its recommendation, but its recommendation would
be final. If the chief minister unduly delayed forwarding the nomination
to the governor for transmittal to the President, the recommendation
could go to the President through the Chief Justice of India. High court
chief justices should be selected by a collegium composed of the Chief

See also Noorani’s views about Mrs Gandhi's and Shiv Shankar’s alleged transgressions
against the judiciary in his ‘The Prime Minister and the Judiciary’ in Manor, Nehru to the
Nineties, pp. 94-114.
15 Editorial of 26 July 1980.
16 This thorough report, entitled The Eightieth Report on the Method and Appointment of
Judges, dated 10 August 1979, was prepared by Justice Khanna, and it made detailed
recommendations. Among these were that ‘there should be a convention according to
which one-third of judges in each High Court should be from another state. This would
normally be done through initial appointment and not by transfer. The process will have
to be gradual: it would take some years before the proportion is reached’. Fightieth Report,
p. 33. The report also said that no judge should be transferred without his consent unless
a panel of the Chief Justice of India and his four senior-most colleagues found sufficient
cause—which was not defined—for the transfer. Ibid., pp. 34-5. And, ‘In regard to the
appointment of the Chief Justice, normally the seniormmost judge of the high court should
be appointed’. Ibid., p. 33.
Justice Khanna recommended that the Chief Justice of India, when making his
recommendations to fill a high court vacancy, should consult with the chief minister
concerned and the chief justice of the high court. If his two seniormost colleagues on
the Supreme Court concurred with his choice, normally it should be accepted. Action to
fill a vacancy should be initiated at least six months before it was to occur. Ibid., p. 32.
 Judicial Reform or Harassment? 52]
Justice of India, two of his senior colleagues, two chief justices of high
courts, and two senior members of the bar. ‘Ordinarily the group’s
recommendation must be accepted by the Executive’, the seminar said.
And the power of transfer ‘remains only with the judiciary’.!7
Everyone had a point. As Shiv Shankar was saying, one-third of judges
and chief justices from out of state might protect judicial independence
by helping judges resist pressures from local groups, but local or
government manipulation of sitting judges (and their initial placement
on the bench) still could mock these goals. The Bar Council’s and the
Law Commission’s recommendations would have served the same
purpose while greatly reducing opportunities for executive branch
mischief. The Bar Council’s involvement of local lawyers in the selection
of judges would have provided an antidote to judicial self-centredness,
but risked increasing the effect of bar politics on selections. All in all,
the Law Commission seemed to have the better scheme. Arguably, judges
from out of state might contribute to national integration through
fostering uniformity in the judicial process.

Transfers Go To Court
Actual transfers now increased both the temperature of the controversy
and the demand for an impartial appointment and transfer process.
On 5 January 1981, Chief Justice of India Chandrachud telephoned K.
B. N. Singh, the chief justice of the Bihar High Court in Patna, to tell
him he was to become chief justice of the Madras High Court. To make
room for him, the then chief justice in Madras, M. M. Ismail, was notified
he was being transferred to the Kerala High Court. The transfers had
been initiated the previous December in correspondence between
Chandrachud and Shiv Shankar. The Chief Justice then had declared
himself ‘opposed to the wholesale transfers of Chief Justices’, but said
that transfers might be made for ‘strictly objective reasons’.!® Ismail

17 Summary of Proceedings of the National Seminar on Judicial Appointments and Transfers,

New Delhi, 1980, Bar Council of India, pp. 5-7.
Although this scheme was not unlike the Law Commission’s, a Hindustan Times
editorial called it ‘impractical’ and not surprising coming from lawyers. The editorial
preferred Justice-Khanna’s recommendations. It added, ‘Governments have tended to
exhibit political bias in making judicial appointments and the trend has become more
marked in recent years. As a result, a large number of second-raters have been elevated
to the ... different High Courts’. Hindustan Times, 27 October 1980.
18 The letter quoted from was dated 7 December 1980. Excerpts from this corre-
spondence appeared in the Supreme Court's ruling in the S. P. Gupta case and also were
522 Working a Democratic Constitution

resigned in protest in a letter to the President; the Tamil Nadu Chief

Minister, M. G. Ramachandran, protested sending a judge from Patna
who did not know Tamil; and two advocates filed petitions challenging
Ismail’s and K. B. N. Singh’s transfers. ASupreme Court bench ofJustices
Bhagwati and Baharul Islam, acting on the petition challenging Ismail’s
transfer, on 3 February ordered that the status quo be maintained: Ismail
was free to remain in Madras or go to Kerala; Singh should continue as
chief justice in Patna.!9
These transfers were opposed outside the courts as well. A two-day
All-India Lawyers Conference, under the auspices of the Supreme Court
Bar Association, adopted a so-called ‘Declaration of Delhi’ urging the
creation of independent machinery ‘ “with security of tenure and with
a constitutional status ... to ensure the independence of the judiciary” ’.
At the conference, former Attorney General C. K. Daphtary called the
transfers punitive and N. A. Palkhivala characterized the conflict as
between the Constitution and ‘ “those who refuse to accept the discipline
of the Constitution” ’.*° Senior advocate Fali Nariman, regretted that
the Janata government had been unwilling to give up the transfer
power—retaining it, Nariman said, because sometimes it was easier to
transfer a judge ‘to save him from undesirable environmental influence’

published by Baxi, Courage, Craft and Contention, appendix C. The letters were edited and
the names of most of the individuals were deleted.
In his letter, Chandrachud referred to discussions with Shiv Shankar of the previous
day, and there appear to have been earlier discussions. On 14 November, the /ndian Express
published a dispatch by Kuldip Nayar saying that Shankar, backed by Indira Gandhi, had
insisted to Chandrachud that transfers were the prerogative of the executive. Nayar reported
Chandrachud willing to consider specific transfer cases, but as believing that transfers as a
matter of policy would result in their being influenced by the government’s‘considerations’.
The Chief Justice, Nayar reported, had recently held a meeting of his fellow judges and got
their unanimous support for his position. Nayar continued that the government's ‘legal
experts’ believed that a transfer amounted to changing a judge’s service conditions and
therefore consultations with the Chief Justice were necessary.
In what would have been an explosive development, had it eventuated, the
government was considering a constitutional amendment meant to ‘obviate’ consultations
with the CJI about transfers, Nayar reported. Indian Express, 14 November 1980.
19 Hindustan Times, 24 January 1981.
The Madras High Court previously had had two chief justices from elsewhere: Chandra
Reddy from Andhra Pradesh and Govindan Nair from Kerala.
An editorial in the Hindustan Times two days later said that at stake in transfers for
purposes of national integrity was whether the government ‘has any right to misuse
this
as a stratagem to push around judges not politically acceptable to it’.
20 Hindu, 2 February 1981. Other speakers included L. M. Singhvi, president
of the
Supreme Court Bar Association, Chief Justice Chandrachud, H. R.
Khanna, and V. M.
Tarkunde.
 marr Sentes L /;

psu a bb curt a OAdwas ees C/

pst lew
sal .
Judicial Reform or Harassment? 523
than to impeach him. A judge transferred because ofacomplaint from
the bar ‘is virtually damned’, wrote Nariman.?!
Disputes regarding tenure were added to the transfer controversies.
In February and March 1981, additional judges in four high courts whose
two-year terms were to expire were given tenure extensions of several
months instead of either being given longer extensions (to help cope
with arrears in these courts) or being made permanent puisne judges.
Writ petitions resulted and an advocate of the Allahabad High Court,
S. P. Gupta, filed a writ petition concerning permanent appointments
for three additional judges of that high court.?? Several of these petitions
also challenged a circular sent by Law Minister Shankar to all the chief
ministers (excepting those in the northeastern states) and to the
governor of Punjab. This threw kerosene on existing flames when it
became public knowledge in mid-Aprii that the circular asked the
recipients to obtain from the additional judges in the state’s high court
‘their consent to be appointed permanent judges in any other high
court’ (they might indicate three courts in order of preference) and to
obtain from potential judges ‘their consent to be appointed to any other
high court in the country’.*? The written consents and preferences were
to be sent to Shiv Shankar within two weeks.
In the Lok Sabha, the Law Minister dodged criticism of his circular.
He seemed to confirm that he had sent it without consulting the Chief
Justice—and that Chandrachud had protested this. Shankar asked if
the independence of the judiciary meant ‘ “touch-me-not* ’.24 The Prime
Minister commented that there was ‘subtle and deliberate propaganda’

21 Nariman article in, /ndian Express, 10 March 1981. Nariman believed that the Chief
Justice of India should have available to him the service records of high court judges to
enable him to investigate any allegations against them, thus lessening his dependency
for information on the Department ofJustice, with its close links to the Home Ministry
(the Home Secretary is Secretary of the Department ofJustice) and the Intelligence
Bureau. A sometime Law Ministry official has told the author that service records are
available to the CJI, but contain little that is helpful for deciding about transfers.
22 A considerable amount of the correspondence between the Law Minister, the
Chief Justice of India and Chief Justice Prakash Narain of the Delhi High Court, was
published in Baxi, Courage, Craft and Contention, appendix B.
23 The text of the circular, dated 18 March became part of the record of the Judges
case and was published in ibid., appendix A. A copy of the circular went to the chief
justices of the high courts concerned.
The government desired the information, the circular explained, because ‘several
bodies and forums’ had suggested that one-third of judges be from out ofstate ‘to further
national integration and to combat narrow parochial tendencies bred by caste, kinship,
and other local links and affiliations’.
24 Tok Sabha Debates, Seventh Series, vol. 26, no. 42, col. 239.
 524 Working a Democratic Constitution

against the democratic credentials of her party: ‘any confrontation with

the judiciary was far from her thoughts’. During thirty years of Congress
rule ‘“we never injected politics in appointments” ’, she said.*° S. Sahay
thought the Law Minister had a ‘grand design ...to dilute the
independence of the judiciary and thereby make it more amenable to
the wishes or hints of the ruling party’.2° This was in part a reaction to
the government’s defeat in the Minerva Mills case, Sahay believed.
Nine of the petitions concerning judges’ transfers or the continuations
in service of additional judges were grouped together to be heard as the
\Y S. P. Gupta or the Judges, case by a seven-judge bench of the Supreme
Court between 4 August and 19 November 1981. The hearings, extensively
reported in the English-language press, covered the substantive issues,
re-emphasized the bitterness of the disagreements, and displayed the
seamier side of politics in the judicial community.
Opening the hearings, arguing the petition against Shiv Shankar’s
circular, H. M. Seervai said that transfers even in the public interest

25 Hindustan Times, 17 March 1981.

26 Sahay, S., ‘Shiv Shankar’s Grand Design’, Statesman, New Delhi, 11 April 1981.
Sahay supported his point by explaining that most high court judges do not begin as
permanent judges, but as acting or additional judges. Data for 1980 showed for example,
he wrote, that the Andhra Pradesh High Court had a strength of eighteen judges, ten of
whom ‘had to undergo an apprenticeship period’. In Allahabad, as many as thirty-three
out of a strength of forty-four had first functioned as acting or additional judges. In
Calcutta, the figures were thirty-two out of thirty-two, and in Bombay twenty-seven out of
twenty-seven, Sahay claimed.
27 The case officially was S. P. Gupta v Union of India. Chief Justice Chandrachud
constituted the bench, and excused himself because he had been involved with the transfers.
On the bench were P. N. Bhagwati, A. C. Gupta, S. Murtaza Faz] Ali, V. D. Tulzapurkar, D. A.
Desai, R. S. Pathak, and E. S. Venkataramiah. Chandrachud set the bench according to seniority,
with the first six members easily identified. To reach the seventh, he had to go to the tenth
judge in line, Venkataramiah; the three intervening judges—Chinnappa Reddy, A. D. Koshal,
and A. P. Sen—declined to sit because each had been transferred during the Emergency.
L. N. Sinha, the Attorney General, Solicitor General K. Parasaran, P. R. Mridul, and
others represented the government. The petitioners were represented by, among others,
Soli Sorabjee, P. H. Parekh, H. M. Seervai, L. M. Singhvi, R. K. Garg, and P. G. Gokhale, a
former Secretary in of the Department of Legal Affairs in the Law Ministry.
Several days before the hearings began, Kuldip Nayar wrote that since the Prime
Minister's return to power she ‘has wanted the executive to exercise the power (of transfers)
without reference to the Chief Justice of India’. (Mrs Gandhi may or may not have desired
this power, but she would have had to change Articles 217 and 222 to get it.) Nayar said that
Shiv Shankar, in issuing the circular, has ‘evidently acted only after consulting Mrs Gandhi
at every step and getting her approval’. The question is not whether judges should be
transferred, Nayar wrote, but who should decide on transfers. Nayar, Kuldip, ‘Unfortunate
Confrontation’, Tribune, (Chandigarh), 30 July 1981.
 Judicial Reform or Harassment? 525
were a punishment and the judge was ‘branded’ as incompetent in his
own court. A judge could be transferred only for ‘cogent reasons’ and
with his consent, argued Seervai, even though in the Sankalchand case
the Supreme Court had held otherwise. No provision or convention
empowered the government to ask for a judge’s advance consent to ne “h
transfer, as in the circular. This put individuals in fear, said Seervai.28 PsAa
Soli Sorabjee, representing Additional Justices Vohra and Kumar of \
the Delhi High Court, continued Seervai’s arguments, contending that
an additional judge’s services could be ‘non-continued’ only if they were
not needed at the end of his two year term, that is if the court had no
arrears of cases. A judge’s competence was to be determined only at ¢ y:
the time of his original appointment.*9 Representing Justice K. B. N. °
Singh, who had been notified of his transfer from the Patna (Bihar)
High Court by Chief Justice Chandrachud, L. M. Singhvi maintaine
Ge.
that transfer without a judge’s consent was unconstitutional because gyv* a
the Constitution required that a judge could be removed only on the |po ae
ground of misbehaviour and by impeachment.*?
28 Hindustan Times, 5, 6,7 and 12 August.
29 Hindustan Times, 19, 20, 21, 26, 27 and 28 August.
Sorabjee said that the allegation that Additional Justice Vohra’s term was not extended
because of his conviction of Sanjay Gandhi in the Kissa Kursi Ka case could not be termed
‘unfounded’. (In gaf interview with the author.) A. G. Noorani, ‘The Prime Minister and
the Judiciary’ Khe Nehru to the Nineties, p. 109, cited H. M. Seervai that ‘beyond
doubt’ Vohra was not reappointed for this reason.
During the hearing on 4 August, Soli Sorabjee called upon the government to produce
the relevant documents on the various petitions concerning the Delhi High Court judges,
and the bench ordered the government to prepare these. Sorabjee later would contend
that the government could not claim privilege for these documents unless disclosure meant
““serious injury readily apparent in the national interest”’. Hearing on 26 August, Hindustan
Times, 27 August 1981. This was in response to a government affidavit that there had been
full consultation between the Chief Justice of India and Chief Justice Prakash Narain of the |/
Delhi High Court, and the President had ‘preferred’ Narain’s view, which was not favourable
to Justice Kumar.
On 29 September, the bench ruled that it had the right to inspect documents regarding
the appointment ofJustice Vohra and would rule the next day on whether or not they
could be revealed in the public interest. On 16 October, six of the judges (Fazl Ali dissented)
ruled that the government should release to the petitioners the documents regarding Justice
Kumar for this would not harm the public interest. The court called for other documents
and these, too, were released. Quotations from many of these appear in the Supreme
Court’s decision in the case and in Baxi, Courage, Craft and Contention, appendix B.
While presiding, Justice Bhagwati said in open court that consultation by the President
with the Chief Justice of India, the governor, and the chief justice of the high court could
not be a basic feature of the Constitution and beyond amendment by Parliament.
Hindustan Times, 14 August 1981.
30 Hindustan Times, 17 September 1981.
 526 Working a Democratic Constitution
Defending the government's position, Attorney General L. N. Sinha
contended that additional judges were appointed because of a temporary
increase in court business and at the end of a judge’s term ‘a positive
assessment of his fitness’ was a condition that had to be met before
reappointment. Not to be reappointed had no stigma attached because
it was an executive, not a judicial, decision, and a second appointment
was nota continuation of the first. An additional judge had no legal nght
to move the court for reappointment after his two-year term expired
even if reappointment were denied him by fraudulent means. The issue
of judicial independence ‘arises only after the appointment of a judge’,
Sinha said. Turning to the Law Minister’s circular, Sinha argued that the
government had no legal obligation to consult the Chief Justice when
formulating a policy for appointment of high court judges—although it
would have been ‘tactful’ to do so.?!
During the hearings of the next several days, there were several
interesting colloquies between the bench and the government’s law
officers. Justice Bhagwati said that a judge could not be transferred merely
because the bar had made allegations against him. This would directly
affect the independence of the judiciary. To this L. N. Sinha replied,
Ww what is the independence ‘“if there is no more confidence in him”’?
The next day, al! seven judges of the bench were reported to have agreed
that the Chief Justice of India must consult the chief justice of a high
court whose transfer was being contemplated. Sinha disagreed. No
consent was necessary, and the Court had no right to look into the
correspondence regarding reappointment of judges. Four days later,
the bench ruled against him.*? When Solicitor General K. Parasaran
said that transfers might be needed to remove a judge from a polluted
environment, Justice Desai asked why transfer and punish a judge for
the deeds of advocates?>* The hearings concluded on 19 November
and the bench reserved judgement.*4

31 Ibid., 21 September 1981.

32 Ibid., 25 and 26 September 1981.
33 Ibid., 1 October 1981.
34 Arguing on behalf of the government, P. R. Mridul awakened memories of Mohan
Kumaramangalam by arguing that the Constitution permitted the government to “value
pack”’ courts as part of its power to appoint judges. The Constitution did ‘not permit an
“elitist non-elective body” like the judiciary to have any share in the government's power to
formulate and implement policies’, Mridul said, except for judicial review and protection
of the Fundamental Rights. Bizarrely, Mridul contended in both his written and oral
submissions that the President had discretion in appointing judges. He had previously
said that the President and the Chief Justice had ““co-equal power”’. This performance
hardly can have reassured those sceptical of the government's attitude toward the judiciary.
 Judicial Reform or Harassment? 527
The Court's decision, given on 30 December 1981, in the main upheld
the government's positions. Each of the seven judges wrote an opinion, V
somewhat clouding the resulting law. A majority of Justices Bhagwati,
Faz] Ali, Desai, and Venkataramiah held that a judge’s consent was not
necessary for his transfer. But transfers were to be in the public interest.
and not punitive. These four also ruled that the Chief Justice of India
does not have ‘primacy’ over other constitutional functionaries regarding
judges’ appointments and transfers (an executive branch function, the
judges said), and, therefore, his advice is not binding on the President.
‘Consultation’ in the Constitution was not to mean the Chief Justice’s
‘concurrence’ in appointments.*° The other three judges—Unwwalia,
Gupta, and Pathak—believed the Chief Justice had primacy, but no veto.
The bench ruled that an additional judge had no enforceable right to be
reappointed, but he was entitled to ‘weightage’ in acknowledgement of
the twenty-five year old convention that ‘normally’ an additional judge
would be appointed permanent judge at the end of his two-year term.
On significant other points, the Court decided that lawyers had standing
in such matters and could express it by way of public interest litigation.
Also, the government could not claim ‘privilege’—i.e., immunity—from
disclosure of documents bearing on the appointment and transfer of
judges (the cabinet’s advice to the President excepted).*© Finally, the
court held that Shiv Shankar’s ‘circular’ was not unconstitutional because
it had no ‘legal force’ in the first place.
The bench’s delivery of its judgement was as indicative of its individu-
alistic process as were its seven opinions. According to a member of the
bench, the judges did not circulate draft opinions among themselves
under Justice Bhagwati’s guidance, as leader of the bench, according to
a member of it, despite Bhagwati’s discontent with the absence of coor-
dination in Minerva Mills. On 30 December, during the Supreme Court’s
winter recess, Justice Bhagwati convened the bench and its ruling was
handed down.

These discrepancies were pointed out by Krishan Mahajan in the Hindustan Times, 20
October 1981.
35 Justice Bhagwati would be singled out for criticism by many for strengthening the
government's hand in appointments by saying in his opinion ‘consultation [with the
Chief Justice of India] cannot be equated with [gaining his] concurrence’. 1981 Supp
SCC 227. .
36 This summary has been drawn from the judges’ opinions and the headnotes in
v
AIR 1982 SC 149ff, and 1981 Supp SCC 87ff.
The bench upheld the transfer of K. B. N. Singh to the Madras High Court and the
non-extension of S. N. Kumar as an additional judge on the Delhi High Court.
 528 Working a Democratic Constitution

The Battle of the Affidavits

Within and outside the bench, conduct of the case was marred by
behaviour that some named ‘the battle of the affidavits’ and others,
among them several judges on the bench, an attempt to embarrass
the Chief Justice.?” Regarding affairs in the Bihar High Court, the
government there filed an affidavit with the Supreme Court claiming
that Chandrachud had initiated K. B. N. Singh’s transfer. Singh
protested his transfer in an affidavit, claiming that he had never consented
to it and that the grounds for it had never been given to him. Chief
Justice Chandrachud responded in an affidavit denying that the transfer
was made without proper consultation with Singh and with the
government. Singh then filed a counter-affidavit, and the Patna advocate
protesting the transfer filed a long affidavit.2? On the Delhi scene,
V additional judge S. N. Kumar of the high court filed an affidavit with the
Supreme Court criticizing Chandrachud’s consultations with him, and
the government filed a counter-affidavit.” The chief justice of the Delhi
High Court, Prakash Narain, wrote in a letter to Shiv Shankar that Kumar
was susceptible to bribery. He requested Shiv Shankar to keep the letter
secret from Chandrachud because the Chief Justice might reveal it to
Kumar.*! Chandrachud wrote to Shiv Shankar that his researches found
no substance in the charges against Kumar, to which Shankar responded
in a note dated 27 May that he preferred Narain’s opinion and would
not extend Kumar’s term.**

37 In interviews with the author.

38 Hindustan Times, 26 September 1981.
39 Texts published in Baxi, Courage, Craft and Contention, pp. 132ff, 140ff, and 144ff.
40 Hindustan Times, 27 August 1981.
41 Shiv Shankar asserted that Narain made this request in a telephone conversation
with him—note recorded by the Law Minister on 19 May 1981. Shankar repeated this in
a letter to Prakash Narain dated 29 May 1981. Texts in Baxi, Courage, Craft and Contention
pp. 121-2, and 129.
42 Texts in Baxi, Courage, Craft and Contention, pp. 121ff, 126ff. See also Hindustan
Times, 4 November 1981 for further information about developments between December
1980 and November 1981.
The allegations against K. B. N. Singh included that his brother-in-law had pleaded
cases, often bail petitions, before a judge friendly to Singh, and that this had been done
against Chandrachud’s recommendations. A second judge stopped hearing these cases.
The allegations against Justice Ismail (transferred from Madras to Kerala) included
frequently granting bail petitions for low sums, but he also was thought to be upright and
honest. Interviews with justices on or close to the case.
The making of allegations against high court judges has raised many questions about
prejudices against particular judges within the bars of the various courts and, also, about
 Judicial Reform or Harassment? 529

Chief Justice Chandrachud’s affidavit excited great interest. Defending

himselfin it he rebutted the Patna chief justice’s criticisms of the transfer
process, saying that the transfer was based upon a dispassionate assessment
of ‘the relevant facts’ and was in the ‘public interest’.4° The central
question, according to many observers, was whether Chandrachud should
have filed the affidavit at all. A fellow judge on the bench believed he
had to, for silence would have been interpreted as assenting to K. B. N.
Singh’s version of events. For one senior advocate close to the case it was
a ‘great mistake’ because it lowered him to the level of others. But Justice
Bhagwati had demanded from Chandrachud personally that he file an
affidavit, according to Chandrachud*4—an assertion believed also by a
bench colleague. Justice Bhagwati, in his Judges case opinion,
characterized Chandrachud’s affidavit as ‘delightfully vague’.** The final
indignity for Chandrachud—and perhaps for the bench and the Supreme
Court as an institution—was the vote within the bench on whether to
accept or to reject the Chief Justice’s affidavit. Justice Bhagwati led Justices
Fazl Ali and D. A. Desai in favour of rejection. The majority of four voted
acceptance, with Justices Tulzapurkar and Venkataramiah said particularly
to support Chandrachud. The belief persists widely that the Bhagwati—
Chandrachud confrontation derived primarily from the former’s
long-held ‘grouse’ against the latter’s having been made a Supreme Court
justice before him,*° but other personality differences were said also to
have played a part.

the role of the Intelligence Bureau as a gatherer and forwarder of unsupported and
unevaluated information to central minustry officials about judges and candidates for the
bench. .
Other letters from Chandrachud to the Law Minister showed the former changing
his mind several times about who should be transferred where.
43 Text in Baxi, Courage, Craft and Contention, pp. 140-3.
44 y VY. Chandrachud interview with the author.
45 Cited by Palkhivala in Palkhivala, N. A.,“ The Supreme Court’s Judgement in the
Judges’ Case’, Journal of the Bar Council of India, vol. 9, no. 2, 1982, p. 207. Chandrachud
had used the same words to describe Chief Justice Narain’s description ofJustice Kumar’s
alleged failings.
46 Interviews with judges on and off the Judges case bench, former law officers of the
Government of India, senior advocates, and others.
Bhagwati had been senior to Chandrachud in the sense that he had been chief justice
of the Gujarat High Court and believed that he, therefore, should have been elevated to
the Supreme Court before Chandrachud, who had been a puisne judge of the Bombay
High Court when elevated to the Supreme Court. Taking judges on to the Supreme
Court from high courts had not always been based onjudges’ seniority in their own high
court. Chandrachud and H. R. Gokhale, Law Minister at the time of Chandrachud’s
elevation, both were Maharashtrians. Bhagwati was a Gujarati.
 530 Working a Democratic Constitution

‘{N]either the image nor the stature of the Supreme Court or of the
judiciary as a whole’ has been improved by the judgement, commented
S. Sahay in the journal of the Bar Council of India. The editorial for this
issue of the journal said the case ‘ended up with ... a sadly divided court
embroiled in personal rivalries’.47 Much that came to light during the
case, said the Indian Express, was ‘disquieting ifnot ominous’. The positions
of the government counsel ‘could only be construed as ... taking on the
judiciary’.*8
The Law _Minister’s motives during this period continue to be a
subject for speculation. Acting on the Prime Minister’s behalf, he
intended to reduce judicial independence, according to one school of
thought. And there should be little doubt that Shiv Shankar carefully
avoided recommending for appointment judges unfriendly to Mrs
Gandhi. Another body cf opinion holds that his circular was not
intended to intimidate judges into ruling in favour of the government.
More likely, Shiv Shankar was not averse to ‘shaking up’ judges partly
to caution them when considering the government’s interest, but his
principal motivation seems to have iain in class and caste consciousness.
To him, judges were intellectuals or Brahmins or from the newly strong
economic castes and classes—the upper reaches of the Other Backward
Classes-——whose ‘monopoly had to be broken’ so that lower-ranking
members of the OBCs and Scheduled Castes and Tribes could ‘thrive’
a
“4 as advocates and find their way to the bench.*9 He had spoken in the
Rajya Sabha earlier about the dangers of caste (meaning higher caste)
and other ‘extraneous considerations’ to the working of the judiciary.
And he had written to chief ministers and high court chief justices
recommending that low-caste individuals be made judges. Chief justices
of high courts, Shankar believed, showed caste preferences in selecting
colleagues and in deciding cases, and transfers might ameliorate this
because outside judges would have no local roots.
A personal element also motivated him, according to some cbservers.
A self-made man from the Kapu community in his home state of Andhra

47 Sahay, S, ‘A Judiciary in Executive's Image,’ Journal of the Bar Council of India, vol. 9,
no. 2, 1982, p. 230; editorial signed by N. Madhava Menon, p. iii.
48 Issue of 31 December i981. For further commentary, see other articles in this
number of the Bar Council's Journal; also see Noorani, A. G., ‘The Twilight of the Judiciary’
in Noorani, Indian Affairs: The Constitutional Dimension, pp. 260ff; Baxi, Courage,
Craft and
Contention, entire; Deshpande, V. S., ‘High Court Judges: Appointment and
Transfer’,
JILI, vol. 27, no. 2, 1985, pp 179ff: and Seervai, Constitutional Law, vol.
2, pp. 2264ff,
2275ff, 2290ff, and elsewhere.
49 Shiv Shankar in an interview with the author.
 Judicial Reform or Harassment? 531

Pradesh (a large community of agriculturists at the lower rungs of the

OBCs), he thought the Reddy community dominated the high court
there, and he had resigned from the high court when he thought a Reddy
judge had denied him’ the chief justiceship.°” Whatever, Shiv Shankar
seems not always to have been scrupulous in his methods nor temperate
in speech. He once described the Supreme Court as a “haven”’ for
“anti-social elements, FERA (Foreign Exchange Regulation Act) violaters,
bride-burners and a whole horde of reactionaries”’.°! He considered
himself to have been an influential supporter of Indira Gandhi—and
kept a portrait of Sanjay Gandhi on his office wall even after his death. ee
The government announced the first element of its transfer policy
in January 1983. High court chief justices would be drawn from out of
state, and seniority within his or her own court and suitability were to
be the criteria.>> Within a week, Chief Justice Chandrachud calied a
meeting of high court chief justices to discuss the policy, and he was
reported to have seen Mrs Gandhi about it. Editorial reaction was
predominantly negative. For the Statesman, Shiv Shankar’s original
proposals ‘were born in original sin’; the S. P. Gupta decision ‘handed
to the government, on a platter as it were, the final powers in judicial
appointments’. Now the government was ‘relentlessly’ trying to change
the judiciary.°* The Law Minister, now Jagan Nath Kaushal, formally

50 From interviews in Hyderabad and New Delhi.

51 The Hindustan Times (Legal Correspondent), 8 January 1988. The occasion was a
speech to the Hyderabad High Court Bar Council (Andbra Pradesh) on 28 November
1987.
The Supreme Court did not cite Shankar for contempt, contrary to its citation of
E. M. S. Namboodiripad for contempt in 1971 for saying that judges were dominated by
caste and class prejudices and favoured the rich against the poor.
52 Shiv Shankar interview with the author.
53 Announcement on 28 January 1983. A chief justice with only one year until
one year
retirement would not be subject to transfer, and a senior puisne judge with only
January 1983.
until retirement might become chief justice in his own court. Statesman, 29
54 Editorial, Statesman, New Delhi, 1 February 1983. It also said that judges were partly
relatives and friends receiving favoured
to blame because of persistent reports of judges’
treatment in their courts.
of the
S. Sahay expressed his view of events in the title of his column, ‘The Taming
discussed the threesome he
Judiciary’, ibid., 10 February 1983. In another article, Sahay
They had a ‘great
perceived of Shiv Shankar and Justices Bhagwati and D. A. Desai.
system. He deduced this from their looking for
insidious design’. to socialize the judicial
the Soviet Union in three seminars in
models to the German Democratic Republic and
seminar, ‘ “Which other socialist
recent years. Sahay quoted Desai as saying at the German
devised and implemented the
country in a span of a quarter of acentury has successfully
appreciate”’ Sahay, S., ‘What
socialist legal system with results for all to observe and
“Forces of Change” Are Up To’, ibid., 29 January 1983.
 532 Working a Democratic Constitution

provided Parliament with the guidelines of the new policy in August.

He announced that the government had ‘recently’ accepted the Law
Commission’s recommendation that one-third of high court judges
should come from out of the state. This was to be achieved both through
initial appointments and transfers and ‘in accordance with the
constitutional provisions which provide for an elaborate procedure of
raeconsultation’.°° An uneasy truce over transfers lasted a decade.
Mrs Gandhi’s years as prime minister ended with glory neither for
the executive’s policies toward the judiciary, nor the judiciary’s treatment
of itself.
The basic issues reappeared in the nineties: writ petitions from
Supreme Court lawyers that worked their way up to a special bench of
nine judges. The most basic issue of all was the rampant suspicion with
which the judicial and the executive branches regarded each other.
This time, for a time, the Court prevailed. In the ‘selection and
appointment of judges to the Supreme Court and the high courts as
well as transfer of judges from one high court to another high court ...
the opinion of the Chief Justice of India ... is entitled to have the right
of primacy’, ruled the majority in the lead judgement by Justice J. S.
Verma. Judicial review of transfers was to be limited to whether or not
\
there was adequate participation by the Chief Justice of India.°® Some
weeks later, in December 1993, Prime Minister P. V. Narasimha Rao
chaired a meeting of chief justices and the Chief Justice of India, which

( 55 Tok Sabha Debates, Seventh Series, vol. 40, no. 16, cols 35-6. During the following
»s five years, the government transferred thirty high court chief justices.
Ant VW 56 See ‘Judicial Appointments to The Higher Judiciary’, SCALE (1993), Supplement.
S.C.A.O.R.A. (Supreme Court Advocates-On-Record Association) v Union of India, para 215 of
the judgement. This issue of SCALE is particularly useful because it contains the written
submissions of the lawyers in the case, both private and governmental, and other
background documents.
It is important to note that the judgement also said that the primacy of the Chief
Justice’s opinion ‘is, in effect, primacy ... formed collectively ... after taking into account
the views of his senior colleagues who are required to be consulted by him for the
formation of his opinion’. Ibid., para 456. As to transfers of high court judges, ‘the
initiation of the proposal for the transfer of a judge/chief justice should be made by the
Chief Justice of India alone’. Ibid., para 471. The Chief Justice was to follow ‘suitable
norms’ in the matter of transfers, including those specified in the ruling. Ibid., para 475.
Delivering the judgement on 6 October 1993 was a bench consisting of S. Ratnavel
Pandian, who presided, and Justices A. M. Ahmadi, Kuldip Singh,J.S. Verma, M. M. Punchhi,
Yogeshwar Dayal, G. N. Ray, A. S. Anand, and S. P. Bharucha. Siding with Pandian were
Justices Verma, Dayal, Ray, Anand, and Bharucha. Justice Punchhi held that the Chief
Justice’s role was ‘primal’ but participatory. Ahmadi held that there could be no such primacy
unless the Constitution were amended. Kuldip Singh expressed no view on this issue.
 Judicial Reform or Harassment? 533
decided that one-sixth of high court chief justices and one-third
of
judges be from out of state. As a result, Chief Justice of India
M. N.
Venkatachaliah set up a ‘peer committee’ of two Supreme Court judges,
two high court chief justices, and the chief justice of the high court
concerned with the transfer from his court ‘to finalise norms’ for
transfers.°’? On 13 April 1994, the President, Shankar Dayal Sharma
,
announced the transfer of fifty high court judges. Criticism came from
a few bar associations, but many associations and most editorial comments
welcomed the transfers under the new procedures, for, as the Hindu
headlined, hopefully, arbitrariness had been ‘ruled out’.58
Who shall judge us? is a question for which few peoples have founda
permanently satisfactory answer. The appointment of judges (and
transfers may be treated as such)—involving as it does what sort of
individual should be chosen and who should do the choosing—would
bring forth the play of personal and group interests and perceptions
existing in the most homogeneous society. More so in India’s vertically
and horizontally compartmented society, with its enormous gaps between
economic classes, which nurtures suspiciousness and where the clash of
interests, political and personal, makes judges’ selection often seem a
zero-sum affair to those concerned.°? The constitutional implications
become secondary in importance. All in all, the wonder is not that
appointments have been messy on occasion, but that the society may
have found a more satisfactory appointment process.

57 Bal Krishna, ‘Putting an End to “Kin Syndrome”’, Hindustan Times, 15 April 1994.
58 Issue of 17 April 1994. :
59 For a discussion of the economic conditions that make India’s a surviyal society,
see ch. 31.
69 Since this was written, criticism of the Chief Justice of India’s ‘primacy’ has been
heard, and suggestions have been revived for the formation of a ‘judicial commission’,
or some similar arrangement, for the appointment ofjudges.
 Chapter 26

TURBULENCE IN FEDERAL RELATIONS

Matters of national unity and integrity and the character of centre—state

relations dominated the country’s political affairs between 1980 and 1985,
giving prominence to this strand of the web greater than it had had since
partition and the years of getting startea. Rebellious groups threatened
national integrity in the border states of Jammu and Kashmir and ihe
Punjab. In Assam, and more broadly in the Northeast, too, violence
continued to be the rule rather than the exception—seerning to provide
justification for the harsh laws already described. Governments in other
states were reconsidering seriously the manner in which centre-state
relations had been worked. They questioned the fairness and efficacy
of the Constitution’s distribution of powers, and called upon New Delhi
to join them in making adjustrnents. This culminated in the states’
constitutional revolt of 1983 and after, led by governments in opposition
parties’ hands, which had unadvertized sympathy from several Congress
chief ministers.
Because the distribution of powers and New Delhi’s exercise of au-
thority had long been controversial, and because state governments and
political groups had not always acted responsibly (and some irresponsi-
bly), the difficulties should not be laid exclusively at Indira Gandhi's door.
Yet, as the Prime Minister for most of the years since 1966, and as the
architect of the over-centralization of power in the Congress Party and in
the institutions of governance to ensure her personal ascendancy, she
bore great responsibility for the developments described in this chapter.
Her response to the states’ soberly expressed concerns with federalism’s
structure and working was to deflect and temporize, not to seek reform.
Her response to the violence in the border states—truly very difficult
situations—in the main was to manipulate and to use force.
Alarmism about threats to the nation’s unity and integrity, the Prime
Minister seemed to think, served her political needs. Preserving the nation
joined social revolutionary promises as the reasons citizens should support
her and her government against enemies foreign and domestic. The
anti-national forces of regionalism, linguism, and communalism were
cited by President Sanjiva Reddy in his speech inaugurating Parliament
 Turbulence in Federai Relations 535

on 23 January 1980—a speech, in the parliamentary tradition, prepared

in the cabinet. The Prime Minister spoke to the revived National
Integration Council of ‘unjust social stratification’ as a cause of tensions. !
In a letter to voters just prior to 1981 by-elections in Uttar Pradesh, Bihar,
and Karnataka, she warned of forces opposing India’s progress and
of opposition parties’ rejection of her appeal to build a strong and self-
reliant India.? ‘“[DJ]estabilization [by outside powers] is an insidious
policy”’ by domestic ideologies resulting from “our insistence on our
independence in policy and action”’, Mrs Gandhi told the Congress (I)
Plenary in 1983.9
Opposition parties adopted this theme for partisan purposes. The
Communist Party Marxist said that secessionist and divisive forces were
gaining because of the government’s ‘class policies’. The CPI castigated
the Hindu parties for challenging constitutional secularism, and ‘impe-
rialism’ for using conditions to destabilize the country.* The Bharatiya
Janata Party praised the Constitution’s establishment of a strong centre,
but claimed the Congress had ‘increasingly reduced [the states] to glori-
fied municipalities’.°
Fears that some ‘foreign hand’ was ‘destabilizing’ the country were
genuine, originating in the national cultural traits of suspicion and
conspiracy-mindedness. But playing on fears had an exculpatory
character, especially when the government employed them to provide a
distant scapegoat for conditions whose origins were domestic. Mrs
Gandhi's calls for ‘a strong central government,citing genuine conditions

1 Speech delivered on 12 November 1980. Indira Gandhi: Speeches and Writings, vol. 4,
pp. 114ff. She was the council’s chairwoman.
ons,
The council meeting recommended, in language reminiscent of its earlier incarnati
on, regional disparitie s ana
that urgent steps be taken ““to end socio-economic exploitati
d as to promote
secessionist trends and that the educational system should be so overhaule
1980.
communal harmony and national integration”’. Hindustan Times, 13 November
d a standing committe e to monitor implemen tation
The 35-member council appointe
of the resolution, but then did not meet again until March 1984.
2 Hindustan Times, 5 June 1981.
3 AR, 29 January—4 February 1984, p. 17578.
‘external forces
Picking up the refrain, the plenary’s political resolution spoke of the
central government
... posing a serious threat to our country’ and called for ‘a strong
. If the Centre is weakened,
_. to meet the threat to the country’s unity and integrity ...
Adopted at the Calcutta Plenary, AICC,
the forces of disunity wiil become strong.’ Resolutions
New Delhi, 1984, pp. 5, 13.
985), West Bengal State
4 Reports of CPI(M) and its Various Frontal Activities (1982-1
Party of India and Fight Against
Committee, CPM, Calcutta, 1985, p. 26; Communist
Communalism, CP1, New Delhi, 1985, p. 13.
date, but 1984.
5 BJP election manifesto, Towards a New Polity, BJP, New Delhi, no
 536 Working a Democratic Constitution

and imagined threats, supported her resumption of personalization of

power.°
Taking retribution against Janata for its dismissal of Congress state
governments, Mrs Gandhi slandered Janata state governments as
enemies of a strong India. And her first action regarding centre-state
relations was to dissolve nine Janata-led state legislatures and place those
states under President’s Rule.

The Dissolution of State Assemblies

Applying the maxim that what is sauce for the goose is sauce for the
gander must have given the Prime Minister understandable satisfaction,
and even more so the ease with which on 17 February 1980 she hoist
Janata on its own dissolutions of Congress governments. The cabinet
unanimously took the decision to dissolve the legislative assemblies
at an urgent meeting, after which Home Minister Zail Singh, draft
proclamations in hand, called on President Reddy to get his signature
on them.’ Reddy signed with little hesitation, he remembered: ‘Given
the precedent, how could I say no? But I told Indira that Morarji had
been wrong in principle and to dissolve again was still wrong.’® The
Supreme Court’s 1977 decision in the Rajasthan case had provided the
clear precedent, and officials in the Law Ministry were not asked for
advice about the dissolutions’ legality, but only about its modalities.
Although the proclamations gave no reasons for the dissolutions, Law
Minister Shiv Shankar justified them by citing the opposition parties’
“obsession”’ with continuing in power after losing the confidence of the
electorate; their “negative attitude”’
”»>
to the President’s address to
Parliament; and their alleged obstruction—particularly in Uttar Pradesh
and Maharashtra—of the ratification of the Forty-fifth Amendment? The

® There can be little doubt, however, that Pakistan was fuelling the fires in the Punjab,
Jammu and Kashmir, and in the northeastern states. But the origins of the
problems in
these areas were indigenous to them, often abetted by New Delhi's policies.
Other nations’
foreign policies, when distasteful to New Delhi, were not described as disagree
ments, but
often were said to have as their purpose ‘destabilizing’ India. The popular
definition of
‘destabilizing’ contributed to the confusion.
7 ‘Unanimously’: Shiv Shankar interview with the author. According to a
senior official,
Mrs Gandhi was very keen on dissolution and no one could oppose her
at this time.
The legislative assemblies dissolved were in the states of
Uttar Pradesh, Madhya
Pradesh, Bihar, Rajasthan, Punjab, Gujarat, Maharashtra (where
President’s Rule was
imposed for the first time since independence), Orissa, and Tamil Nadu.
8 Sanjiva Reddy interview with the author.
° AR, 18-24 March 1980, p. 15367.
 Turbulence in Federal Relations 537
amendment extended for ten more years reserved seats for Scheduled
Castes and Tribes in Parliament and state legislatures and, similarly,
representation by nomination for Anglo-Indians. Obstructionism on this
amendment seems a spurious rationale for the dissolutions ‘because all
parties were agreed on’ the extension of reservations, thought Madhu
Limaye.!° ‘Politically, it suited us. But I was not happy with the dissolutions,
personally,’ Shiv Shankar later said. ‘The people had elected their
representatives for five years and dissolution with two years remaining in
their terms was not in the spirit of Article 356.’ }!
Reactions to the dissolutions varied. For the Janata leadership, they
were a threat to democracy. M. C. Chagla was ‘““shocked to hear the
news ... . She wants a monolithic set-up, with the states subservient to
the Centre.”’ Madhu Dandavate thought it wrong to compare these
dissolutions with those of 1977, when the legislatures’ terms were nearly
over.!? A Times of India editorial said the dissolutions were necessary to
enforce discipline after the ‘drift’ of the past three years. The Hindustan
Times reported that ‘industry’ generally approved.!* The voters’ reaction
ratified the action: Mrs Gandhi triumphed in the state legislature
elections held 28-31 May. Congress(I) won a two-thirds majority in five
of the nine assemblies and a majority in three. No other party came
close. Janata had been repudiated as thoroughly as had the Congress
after the Emergency. The Congress(I) Party was Indira Gandhi’s creation,
and, with its state leaders dependent upon her favour, personalization
increased as she set about selecting new chief ministers.!4

Background to the Constitutional Revolt of 1983

Many elements contributed to the debate over centre-state relations
during 1980-5. Thinking in the country about preserving national unity

10 Limaye, Janata Party Experiment, vol. 2, p. 521. Parliament enacted the amendment
on 25 January 1980; the President assented to it on 14 April 1980 after ratification.
11 Shiv Shankar interview with the author.
12 Aj] reactions from Times of India, Bombay, 18 February 1980.
13 Issues of 19 February 1980 for both newspapers. The Times of India also pointed out
that Congress majorities in legislatures would be necessary for it to regain a majority in the
Rajya Sabha. ,
14 The Janata Party, already badly damaged by the divisions of autumn 1979,
subsequently fell apart. Jagjivan Ram resigned from the party in late February 1980. The
Jana Sangh left the coalition in early April and reconstituted itselfasthe Bharatiya Janata
Party (BJP). The Janata Parliamentary Board on 12 March decided that no party functionary
or legislator should take part in day-to-day activities of the RSS. AR, 20-26 May 1980, pp.
15467ff.
 538 Working a Democratic Constitution
intellectuals
and the character of federal relations was changing. Many
advocates of
and politicians, once strong centralizers, were becoming
together
decentralization—believing that clamping the pieces of India
a Reddy
actually was forcing them apart. For example, President Sanjiv
unhealthy
said that although local authorities might be ‘swayed by
claim greater
extraneous considerations ... [a] central authority cannot
neous
competence, wisdom and objectivity or greater immmunity from extra
!° The
influence’ than states ‘governed by popularly elected ministries’.
had
| strength of non-Congress, state-based and regional political parties
of
| grown, partly an unforeseen result of Mrs Gandhi’s 1971 delinking
_parliamentary and state legislature elections. Also, Janata, when in office,
had supported the development of such parties to increase its stren
against the Congress.
By 1983 five major states were governed by oppositicn parties, and
Punjab would join them in 1985.!© Dissident Congressmen were increas-
ingly outspoken. The chief ministers of all parties were discontented
because of unfulfilled promises to establish policy and implement pro-
grammes through constitutional and sub-constitutional institutions
such like the zonal councils, the Finance Commissions, the National
Development Council, and the Planning Commission. Institutions such
as the presidentiaily appointed governor increasingly were criticized. (All
of which will be discussed in detail in Part VI.) Imposed twenty-three
times from 1980 to 1986, President’s Rule was bitterly attacked. All the
while, accompanying issues such as the transfer of judges and the central
government's rejection of the basic structure doctrine fed suspicions about
its intentions toward federal issues.
The situations in Punjab, Jammu and Kashmir, and Assam contributed
convincingly to the view that the working of centre-state relations
urgently needed fixing and that perhaps the Constitution’s distribution
of powers should be changed throughout the country.!’ The states’

15 [ecture on ‘Sardar Patel and National Integration’ on 31 October 1981 to the

Sardar Patel Jayanti Samaroh, New Delhi. Speeches of President Sanjiva Reddy, Publications
Division, GOI, New Delhi, 1983, pp. 36-7.
16 The states and parties were: Punjab, Akali Dal; Jammu and Kashmir, National
Conference; Bengal, CPM; Tamil Nadu, AIADMK; Andhra Pradesh, Telugu Desam; and
Karnataka, Janata.
17 The narrative in these paragraphs has been drawn in part from the following
sources: Dua, ‘India: Federal Leadership and S ionist Movements on the Periphery’,
in Roy, Ramashray and Sission, Richard (eds), Diversity and Dominance in Indian Politics,
vol. 2, Sage Publications, New Delhi, 1990; Arora, Balveer, “India’s Federal System and
the Demands of Pluralism: Crisis and Reform in the Eighties’, in Chaudhurie, Joyotpaul,
 Turbulence in Federal Relations 539

location on India’s frontiers put them in a category of their own, making

it vital that the Government of India, as the successor to British sovereignty,
should be seen to be in control. All three had been profoundly affected
by the Partition, including actual division of Punjab and Jammu and
Kashmir and massive transfers of population in Assam and the Punjab.
All had been affected by wars: the India—China war of 1962, and the
India—Pakistan wars of 1965 and 1971. Atl were rife with internal factions,
each drawing nourishment from religious, linguistic, tribal, economic,
and sub-national differences. These interest and identity groups conflicted
with each other, with the state governments, with neighbouring states,
and with New Delhi. They also involved other countries. Sikh extremists
in the Punjab and Muslim extremists in Kashmir locked to Pakistan for
support, and Islamabad was not loathe to capitalize on India’s internal
troubles. Tribals in the Northeast looked to China and, toa lesser degree,
toward Burma.!®
$f ——_—
(ed.), India’s Beleaguered Federalism: The Pluralist Challenge, Center For Asian Studies, Arizona
State University, 1992; Mukarji and Arora, Federalism in India; Weiner, Sons of the Soil;
Kapur, Sikh Separatism; Bhattacharjea, Kashmir; and Hazarika, Strangers in the Mist.
18 The complex, if not tortured, history of these states must here, regrettably, be
reduced to a footnote. Assam at independence had been the only state in the northeast,
its neighbour, the{Northeast Frontier Agency,)being a tribal area directly administered by
the Government of India. This in 1971 became the state o nachal Pradesh} Assam
was divided into Assam, Nagaland (1960 to 1962, Article 371A), and later the states of
Mizoram and Meghalaya. The influx into these areas of Bangladeshis, other Indians, and
the consequent disputes over agricultural land and the use of the Bengali and Assamese
languages led to riots and killing.
in Jammu and Kashmir, the Hindu Mabaraja, with his predominantly Muslim subjects
in the Kashmir Valley, had ‘acceded’ to India under threat from Muslim tribesmen sent
by Pakistan. The Maharaja was supported by the popular teader, Sheikh Mohammed
Abdullah. Article 370 allowed the state to frame its own constitution, but the central
government over the years whittled away its special status. Sheikh Abdullah was preventively
detained in 1953 for resisting this. He later returned to politics.
In Punjab, the Sikhs, accustomed to a comparatively privileged position under the
British and led by Master Tara Singh, had called in 1948 for a Sikh province—language
and religion being the justifications. After largely non-violent agitation, but threats of
fasts unto death, the state was divided in 1966 into the states of Punjab and Haryana. The
faction-bedevilled Sikh party, the Akali Dal, in October 1973 adopted the Anandpur Sahib
Resolution, whose elements included limiting centrai ‘intervention’ in the state’s affairs
Sahib Resolution’,
to defence, foreign affairs, railways, and several other items. ‘Anandpur
pamphlet by the Indian Council for Sikh Affairs, New Delhi, 1985.
due to the
The text of the resolution became the subject of debate and confusion
Longowal , issued an
factionalism, and in 1982 the Akali Dal president, Harcharan Singh
authenticated version. Kapur, Sikh Separatism, p. 219.
of Sikhs
The Anandpur Sahib Resolution also called for safeguarding the interests
 540 Working a Democratic Constitution

New Delhi’s involvement in the affairs of these states had ranged from
attempts to preserve order and foster the economic development that
might ease local discontents, to arranging compromises and reconcilia-
tions, to manipulating their internal affairs for the intended advantage
of the central government and the Congress Party. Efforts to preserve
order frequently aroused as much violence as they quelled. These ele-
ments would become increasingly evident during 1980 and the years fol-
lowing, contributing to the conviction in opposition—and other—states
that New Delhi’s overcentralization of power menaced their governments.
It was in the Punjab with Mrs Gandhi’s return that central govern-
ment actions producea their most harmful effects. The dismissal of the
nine state governments included the one in the Punjab, which had
established a degree of stability and communal harmony there, the
Akali—Janata coalition led by Chief Minister Prakash Singh Badal. Mrs
Gandhi, acting through son Sanjay and Giani Zail Singh already had
become engaged in an even more dangerous tactic, abetting the rise of
the religious extremist Jarnail Singh Bhindranwale in an attempt to
rule the Punjab by setting its factions against each other.!9 Murder of
Hindus and Sikhs became rampant as Sikh factions outbid each other
with demands on the centre to implement the Anandpur Sahib Reso-
lution or more separatist arrangements. Two and one-half years years
of off again, on again negotiations began.2°
In Kashmir, having won the 1977 elections (described by some as the
fairest in the state’s history), Sheikh Abdullah fought the rise of extremist
Islam fostered by events in Iran and accused New Delhi of provoking
confrontation with his government. He died in September 1982 to be

outside Punjab; made the promise that the Akali Dal would ‘also try that the
Indian
Constitution becomes federal in the real sense and all states are equally represen
ted at
the Centre’.
19 Malhotra, Indira Gandhi, p. 257; Jayakar, Indira Gandhi, pp. 461ff. Zail Singh
goes to
some lengths to rebut this charge without ever denying it clearly. Singh, Zail,
Memoirs, pp.
289ff. Before becoming Home Minister under Mrs Gandhi in 1980, Zail Singh, an adherent
of Mrs Gandhi since the Congress split in 1969, had been president of the
Punjab PCC and
chief minister of the state from 1972-77. He later became the President of
India.
Singh characterizes Sanjay Gandhi as shrewd and intelligent, ‘but
over-ambitious’,
helpful to those he liked, ‘but if angry, he would know no limits of harm
he could inflict
on his adversaries’. Ibid., p. 134,
‘Giani’ is an honorific title given to an individual able to teach
about Sikhism and to
expound on the Sikhs’ holy book, the Granth Sahib.
20 It would be ‘unfair’ to blame Mrs Gandhi for allowing the Punjab to burn
in order
to serve her own interests, believed Inder Malhotra,
but ‘she was slow to negotiate’ and
her handling of the crisis ‘was doubtless inept’. Malhotra, Indira
Gandhi, p. 260.
 Turbulence in Federal Relations 541
replaced as chief minister and leader of the National Conference
Party
by his son, Faroog Abdullah. When, a year after his father’s death,
Farooq
joined other chief ministers in urging review of the conduct of
centre—
state relations, the Prime Minister set about removing
him from office.
(See section of this chapter beginning below.)
In Assam, the All Assam Students Union declared and
later withdrew
‘direct action’ over the ‘foreigners’ issue in response to Mrs Gandhi
’s
negotiations and her release of detenus. The February 1983 electi
ons
there brought the Congress(I) a two-thirds majority in the legislature
but at the price of pre-election violence that killed some one thousand
persons and left ten times that number homeless. Assamese Hindu
peasants killed Muslim immigrants and tribals, the Muslims reciprocated,
and Bodo tribals killed both Hindus and Muslims. Luhang tribals hacked
to death women and children in the village of Nellie. The Intelligence
Bureau had warned the Prime Minister of likely violence, but she refused
to heed the advice in the wake of Congress election defeats in the South.2!

The Constitutional Revolt

The election defeats that had so upset the Prime Minister took place in
Andhra and Karnataka on 5 January 1983. In Andhra Pradesh, her Con-
gress lost control of the assembly to the Telugu Desam Party and its leader,
N. T. Rama Rao. In Karnataka, Congress lost control of the assembly—
for the first time since i950—to the Janata Party led by Ramakrishna
Hegde. These losses particularly hurt Mrs Gandhi because she had placed
election strategy and tactics in the hands of Rajiv Gandhi and a young
Rajya Sabha member, Arun Nehru—‘“political illiterates”’, senior jour
nalist Prem Bhatia called them.??
It did not take long for the southern election victories further to an-
noy New Delhi. Ramakrishna Hegde inspired a meeting in Bangalore of “4 eV 5 \

four southern chief ministers that initiated a process during which both
the conduct of centre-state relations under the Constitution and the
distribution of powers in the Constitution, itself, would be challenged.

21 Jayakar, Indira Gandhi, p. 449. The Election Commission, under Commissioner S. L.

Shakdher, ‘had clearly told the government on many occasions that the situation in Assam
was not ideal’ for holding elections and it was conducting them ‘only because the state
administration insisted that polling could be organized’. AR, 18-24 June 1983, p. 17229.
22 Cited in Jayakar, Indira Gandhi, p. 446. Adding insult to injury, the Congress(I)
candidate in an Uttar Pradesh by-election was defeated by one backed by Maneka Gandhi,
Sanjay Gandhi's widow, now estranged from her mother-in-law. Malhotra, /ndira Gandhi,
p. 298.
 542 Working a Democratic Constitution

Attending the meeting on 20 March 1983 were Hegde, M. G.

of Tamil Nadu, Rama Rao of Andhra, and D.
Ramachandran
K.
Ramachandran, chief minister of the union territory of Pondicherry.
re-
Karunakaran, Congress chief minister of Kerala, was absent and was
ported to have labelled the meeting seditious.2? Hegde announced that
the intention of the meeting was not confrontationa!, but was designed
to strengthen the centre and unity. “It is not a conspiracy against any-
one.”’24 Hegde hoped that all chief ministers would join a council, so
that they could settle their problems at their own level.2° The four chief
ministers unanimously decided to form a council of southern chief min-
~
\
‘
isters which was not intended to be a forum to confront the centre and
9) which would lessen the centre’s burdens.?° Mrs Gandhi almost certainly
was affronted by the chief ministers’ temerity in meeting and by their
recommendations. These included the formation of acommission, with
adequate state representation, to review fiscal relations between New Delhi
and the states and to recommend remedial legislation and constitutional
changes—possibly including an increase of the states’ share of excise
duties and monies from a surcharge to be placed on income tax rev-
enues (both of which were collected by the central government).?’ Tak-
ing defensive action, Mrs Gandhi four days later announced that a com-
mission on centre-state relations would be established.
This was the Sarkaria Commission, so called after its chairman, Justice
Ranjit Singh Sarkaria.*° Mrs Gandhi had invited Justice Sarkaria—the
first Sikh to serve on the Supreme Court—from his retirement in
Chandigath and told him in ‘a boit out of the blue’ that she wanted a
study of centre-state relations and would he assume the task. At their
meeting, she handed Justice Sarkaria a note about such a commission
prepared by her staff and told him that she had to make a statement
‘tomorrow in Parliament’.29 Finding that the note said that the study was
to be conducted ‘within the Constitution’, Sarkaria objected that this
would be seen as ‘insincere, as desiring that nothing happen’. The study
must be able to touch the ‘framework’ of the Constitution, he added.

23 Economic and Political Weekly, vol. 7, no. 13, 26 March 1983, p. 478.
24 Deccan Herald, 20 March 1983.
25 AR, 14-20 May 1983, p. 17171.
26 [bid.
27 Yhid.
28 Its official name was the Commission on Centre-State Relations. It submitted its
two-volume report, published by the Government of India Press in January 1988. See
Part VI.
29 Justice R. S. Sarkaria in an interview with the author.
 Turbulence in Federal Relations 543

Mrs Gandhi responded that the note did not constitute the commission’s
terms of reference, which he could help draft. Sarkaria also said that
he wanted five other members for the commission, some from the South,
others with specialities in finance and adminisiration. Mrs. Gandhi
agreed,*” and announced the commission and Sarkaria’s chairmanship
ofitto Parliament. Nothing more happened for two months. The official
‘Notification’ of the commissionzi was issued on 9 June, but the government
made the terms of reference public only on 7 July. The commission was
cut to three, and Sarkaria’s two colleagues were inducted that day: B.
Sivaraman, a former cabinet secretary and member of the Indian Civil
Service, and S. R. Sen, an historian and economist, earlier member of
the Planning Commission, and sometime official of the Worid Bank.
Sarkaria later failed to gain the services of the long-time member-
secretary of the Law Commission, P. M. Bakshi.
What was not said during the Prime Minister’s meeting with Sarkaria
was as important as what was said. The southern chief ministers—beyond
their complaints about centre-state relations—represented the increasing
importance of regional political parties. They challenged Mrs Gandhi
and her party’s power, which may have awakened memories of attempts
by earlier southern chief ministers, those within the Syndicate, to control
her.*! The Sarkaria Commission was set up to contain their challenge.°?
Mrs Gandhi also seems to have hoped that the commission’s formation,
and especially Sarkaria’s chairmanship of it, would bolster her position
in the Punjab. But when the Akalis did not channel their complaints
about centre-state relations to tie commission, the Prime Minister ‘maybe
thought of backing off the commission’.?? Her lack of enthusiasm for
the commission was evident from its start-up difficulties—work began in
February 1984, ten months after her announcement of the commission—
and in the reluctance of Congress state governments to cooperate
with it.
Two months after Mrs Gandhi announced the formation of the
Sarkaria Commission, on 28 May fourteen opposition parties assembled
at Vijayawada. Chief Minister N. T. Rama Rao read the meeting’s
statement, which said that a new “political brotherhood” was needed to
preserve national unity from “the failure ofthe ruling party at the Centre

39 bid.
in an interview with the author. Three of the Syndicate were
31 B Sivaraman
K. Patil was from Bombay
southerners: Kamaraj, Sanjiva Reddy, and S. Nijalingappa. S.
and Atulya Ghosh was from Bengal. None were from the North.
32 Margaret Alva in an interview with the author.
33 RS, Sarkaria in an interview with the author.
544 Working a Democratic Constitution

to find timely and acceptable solutions”’ to the urgent problems of the

” >

country and its different areas.*4 The statement also demanded the
establishment ofa fiscal commission, and said that the Congress(I) was
undermining democratic institutions. The Deccan Herald reporter
thought this a ‘tame finale’, indicating a failure to reach consensus in
what had been billed as an ‘unprecedented meeting’.*°
A week after this, the National Conference, led by Faroog Abdullah,
won forty-six seats to Congress’s twenty-six in Jammu and Kashmir’s
seventy-six seat legislative assembly.*° But Farooq challenged the Prime
Minister further. Not only had he attended the Vijayawada meeting, he
hosted the next meeting of non-Congress chief ministers in Srinagar
between 5 and 7 October to discuss centre-state relations. The group’s
statement, among other things, said that the ‘unitary features [of the
Constitution] have increasingly come to overshadow its federal features’,
and it recommended amending or deleting many of the Constitution’s
federal articles.>/
Apparently in response, the AICC at its meeting two weeks later
accused Farooq’s National Conference of ““manipulating the polls”’ and
of “befriending ... communal and secessionist forces”’.°° The AICC’s
Political Resolution went on to speak of the threat to the country from
external forces and the need for a strong central government. Beyond
deploring the situations in Kashmir, Assam, and the Punjab, the resolution
did not mention centre-state relations. Later in the year, Kashmir
Governor, B. K Nehru, the Prime Minister’s cousin, resisted her strategem
of arranging defections from the National Conference so Farooq would
lose his majority and could be replaced by someone more to her liking.
But in February 1984, Nehru was transferred to Gujarat as governor. He
was replaced by Jagmohan, and on 2 July Farooq was dismissed from
office on the ground that he had lost his majority in the legislature.39

34 Times of India, Bombay, 29 May 1983.

35 Issue of 29 May 1983. Those present were not the Prime Minister’s friends. Among
them were Jagjivan Ram, L. K. Advani, H. N. Bahuguna, Maneka Gandhi, S.
S. Barnala, S.
S. Khera, Sharad Pawar, K. P. Unnikrishnan, and Basavupunaiah.
36 AR, 9-15 July 1983, pp. 17258-9.
37 ‘Statement on Centre-State Relations released at Srinagar on 8 October
1983’. A
pamphlet with this title published by Government of West Bengal, Calcutta
, no date, pp.
3ff. The CPM Chief Minister Jyoti Basu, who long had opposed Mrs Gandhi's
centralization
of power, wrote the foreword to the pamphlet.
38 AR, 19-25 November 1983, p. 17467. Mrs Gandhi later told George
Verghese,
once her press adviser, and Inder Malhotra that Farooq had allowed
““anti-national forces”
to be encouraged to an extent that was intolerable. Malhotra,
Indira Gandhi, p. 295.
39 Malhotra, Indira Gandhi, pp. 295-6; Jayakar, Indira Gandhi,
p. 459.
 Turbulence in Federal Relations 545
Two chief ministers, Ramakrishna Hegde of Karn
ataka and Jyoti Basu
of West Bengal, were the driving intel
lectual, as well as political, force
behind the opposition leaders’ reassessments.
At the Bangalore and
Vijayawada meetings, the positions were couched
generally, directed at
New Delhi’s encroachment on the states’ powe
rs and mentioning,
particularly, the need for the National Development
Council and the
Planning Commission to work co-operatively with the
states instead of
operating largely by central direction. The meetings calle
d for establishing
a fiscal commission and a thorough review of centre-s
tate economic
and fiscal relations.
By the time of the Srinagar meeting in October 1983, the
discontents
and recommendations were phrased quite specifically. Some
ten articles
of the Constitution were targetted for revision or deletion:
President’s
Rule was to be curbed; the states’ powers vis-a-vis the State
Legislative
List were to be supreme; residual powers were to be for the states
not the
Centre; central power to take over a state government in time
of finan-
cial instability (Article 360 in the Emergency Provisions) was
to be re-
moved; and the content of the legislative lists should be reviewed.
The
meeting placed great emphasis on forming an Interstate Council
(Arti-
cle 263). Economic and fiscal issues were treated in detail. And,
the meet-
ing’s ‘Statement’ said that there should be no central armed force
de-
ployed in a state nor should a state be declared a ‘disturbed area’ with-
out the state government's prior concurrence.*? The recommendati
ons
generated during the ‘revolt’ wrought no immediate changes in the con-
duct of centre-state relations, but they strongly influenced the conclu-
sions of the Sarkaria Commissio.1.4

40 “Statement on Centre-State Relations Released at Srinagar on 8 October 1983’.

See footnote 37 above. The statement appeared in other publications.
41 The Srinagar statement drew heavily on the work of a seminar composed of profes-
sionals—retired senior civil servants, academics, and legal and political commentators—
that Hegde had convened on his own initiative at Bangalore the previous August. Its rec-
ommendations included establishing the Interstate Council; making more precise the con-
ditions under which President’s Rule might be proclaimed, and restricting the centre’s
powers under Articles 256 and 257 (which made the authority of state executive branches
subordinate to central authority); curbing the powers of governors; freeing the electronic
media from central government control; and building grassroots participation, in part by
inserting in the Constitution a provision ‘to ensure ... elections to local bodies’. Seminar on
Centre—State Relations, Bangalore, August 5-7, 1983: Papers, Group Reports and Conclusions, Gov-
ernment of Karnataka, Bangalore, 1984; quotation from p. 314.
In addition to Hegde, the seminar was attended, among others, by V. K. R. V. Rao, Raja
Chelliah, S. Guhan, Nirmal Mukarji, A. G. Noorani, N. A. Palkhivala, and H. K. Paranjpe.
Hegde later delivered before the Karnataka Assembly his ‘White Paper on the Office
546 Working a Democratic Constitution

Pathway to Death
nation, marked
Nineteen eighty-four was a year for George Orwell’s imagi
, and murder.
by more manipulative politics, catastrophic military action
separated. In
Mrs Gandhi and the Constitution became progressively
administrator
Kashmir on 2 July, Governor Jagmohan, who was a tough
during the
closely associated with Sanjay Gandhi's ‘clean-up’ of Delhi
nment.
Emergency, invited Ghulam Mohammad Shah to form a gover
to test his
Jagmohan rejected both Farooq’s demand to be allowed
latter on
strength in the legislature and his advice to call elections—the
e the
the ground that Farooq, having lost his majority, could not advis
atic and
calling of elections. Farooq characterized this as undemocr
dismissed.*2
reminiscent of events in 1953, when his father had been
Tnpura
The chief ministers of Andhra, Karnataka, West Bengal, and
walked out of a 12 July chief ministers’ meeting to protest Farooq’s
dismissal. Several publications strongly criticized Jagmohan’s actions. He
had ‘flouted gubernatorial convention and the state's Constitution in his
anxiety to further the centre’s political objectives’, said the Statesman.
The ‘defections’ from the National Conference could not serve as a ‘fig-
leaf’ for the ‘scenario worked out during Jagmohan’s visit to Dethi last
week’, wrote the Economic and Political Weekly. The Indian Express saw
‘dubious propriety’ undermining ‘federal relationships’; Jagmohan’s
actions had elevated ‘the governor to the position of a viceroy’, said the
paper.*9

of Governor’, which was published under that title by the government of Karnataka in
September or Ociober 1983. A. G. Noorani was said to have had a hand in drafting the
White Paper.
42 For details, see Bhattacharjea, Kashmir, pp. 246-9 and AR 26 August-1 September
1984, pp. 17906ff.
On 28 July the Jammu and Kashmir government released a White Paper on the
events. Three days earlier Home Minister P. V. Narasimha Rao told the Rajya Sabha that
in Kashmir ‘ “certain elements had been indulging in anti-national secessionist activities
since the latter half of 1983”’. Ibid., p. 17910. Mrs Gandhi had wanted Fareogq ‘to be sent
packing for a long time’. Malhotra, /ndira Gendhi, p. 295.
For a chilling account of intrigue in Srinagar and of Mrs Gandhi's campaign against
Farooq (including a rebuttal of the charges that Farooq was secessionist), see Nehru,
Nice Guys Finish Second, pp. 611ff. Nehru was the governor of Jammu and Kashmir at the
time.
43 Cited in Bhattacharjea, Kashmir, p. 299. See also Sorabjee et al., The Governor: Sage
or Saboleur, Roli Books International, New Delhi, 1985, pp. 131ff for an account of the
Faroog—Shah-Jagmohan affair.
Jagmohan viewed the situation differently: Jagmohan, My Frozen Turbulence in Kashmir,
Allied Publishers, New Delhi, 1991, ch. VII, especiaily.
 Turbulence in Federal Reiations 547

The government of India intervened in the affairs of Andhra Pradesh

that August in an even clumsier fashion. While one of the leaders at
opposition meetings, the popular Chief Minister N. T. Rama Rao, was
in the United States for medical treatment, efforts to remove him began.
Governor Ram Lal dismissed him two days after his return to Hyderabad
and swore in as chief minister N. Bhaskara Rao, who had defected from
the Congress to Rama Rao’s Telugu Desam Party and then re-defected
to the Congress(i). Negative reaction was immediate and widespread.
Mrs Gandhi said she had not heard of the dismissal beforehand (and
there is some evidence that Arun Nehru arranged the affair without
her knowledge), but she was not believed. Rama Rao offered to prove
his majority in the legislature, was ordered arrested by the governor,
along with his supporters, only to be freed a few days later. He then
flew to New Delhi with 161 assembly members—of the 294-member
assembly—and called on President Zail Singh with them to demonstrate
his majority. Shortly thereafter, he was reinstated as chief minister and
somewhat later Ram Lal was relieved as governor.*4
Meanwhile, Punjab became exceedingly tense as the killings of
civilians—both Sikhs and Hindus—continued. The Akali Dal began a
new agitation, including against Article 25 of the Constitution, which
included Sikhs as Hindus in matters of freedom of religion.*” Negotiations
between the government and the Akalis resumed, with the government
unwilling to meet Sikh demands, which, as presented by various factions,
greatly varied. The President promulgated on 5 April the ordinance
strengthening the National Security Act, as mentioned earlier, with its
provisions that the maximum period of preventive detention could be
two years and that detention without the decision of an advisory board

44 For accounts of this affair, see Malhotra, Indira Gandhi, pp. 299ff; Jayakar, Indira
Gandhi, p. 460; and Sorabjee ei al., Sage orSaboteur, pp. 106ff. For a detailed chronicle of
events, with supporting information, see ‘White Paper on the Toppling of State
Governments’, Janata Party, New Delhi, September 1984, pp. 29--40.
The affair attracted comment ouiside India. The Economist wrote that Mrs Gandhi
‘“has always viewed India’s opposition as an unnecessary evil ... but ... even a fragmented
opposition evidently posed an unacceptable risk ... SO ... She set out to smite all centres of
opposition power” ’, starting with Sikkim and moving on to Punjab, Kashmir, and Andhra
Pradesh. Cited in Jayakar, Indira Gandhi, p. 460.
45 Article 25 says that subject to public order, morality, etc., the practice of religion is
free. But government may regulate the economic and other secular activities associated
with religious practice and may provide for social welfare and reform and for opening
Hindu religious institutions to ali classes and sections of Hindus. Sikhs (and Jains and
Buddhists) are, for the purposes of this article, classed as Hindus. The articie also provides
that the wearing of kirpans is to be included ‘in the profession of the Sikh religion’.
548 Working a Democratic Constitution

could extend for six months.*° Amid plentiful signs that drastic action
was imminent, the Government of India on 2 June used the army to seal
off the Punjab from the rest of the country and to deploy tanks around
the Golden Temple in Amritsar, which Jarnail Singh Bhindranwale had
been fortifying and using as a safe-haven for Sikh extremists. Speaking
that evening on radio and television, Mrs Gandhi said her heart had
‘been heavy with sorrow’ at developments, at the fruitless attempts to
negotiate, and at the escalating demands and violence on the part of the
Akalis.*7
On 5June, in Operation Bluestar, the army, led by Sikh and Hindu
officers, entered the temple. Bhindranwale was killed, and ‘substantial
quantities’ of arms, ammunition, and a grenade factory were discovered
there.*® Sikhs throughout the country were outraged at the sacrilege.
Their honour had been demeaned and their identity attacked. The
Golden Temple was their holiest place—their Kaba, Western Wall, Church
of the Holy Sepulcre. They felt the attack and damage to the temple ‘a
deliberate attempt to humiliate their community’, rather than as necessary
to curb violence, which few Sikhs publicly condemned. Moreover, Sikhs,
and many others, believed that “‘Bhindranwale had initially risen to
prominence through the support of the ruling Congress Party’.49 In
August, the Lok Sabha, in the Fifty-ninth Amendment to the
Constitution, extended President’s Rule in the state for one year beyond
the forthcoming expiration date of 5 October. In late September, the
army handed back control of the Golden Temple to the Shiromani
Gurdwara Prabhandak Committee.
Speaking in Parliament on the government’s ‘White Paper on the
Punjab’ at the end ofJuly 1984, Mrs Gandhi asked why ‘powerful forces
in the world’ are attacking me? Concluding a lengthy description of
her government’s policies, she said that ‘we have ... to remove the cause
for grievances ... The battle for secularism, the battle for unity ... must
be [won] in the hearts and minds of our people’.°?

46 This was promulgated while the Lok Sabha was in session, with the justification
that because the Rajya Sabha was not in session, Parliament as a whole was not in session—
the condition necessary for the promulgation of ordinances. Law Minister Jagannath
Kaushal justified this as necessary given the urgent situation in the Punjab.
47 Speech over All-India Radio and the government-controlled television network
Doordarshan on 2 June 1984. Indira Gandhi: Speeches and Writings, vol. 5, pp. 74.
48 Kapur, Sikh Separatism, p. 230. Extremists aiso had used other gurdwaras as secure
bases.
19 Ibid. p. 235. By this time, the head priest had excommunicated President Zail
Singh and several other prominent Sikhs.
50 Nineteen page speech to the Rajya Sabha on 24 July during discussion of the
 Turbulence in Federal Relations 549
Proceeding on the path leading from her home to her office
on 31
October for an interview with a foreign journalist, the Prime Minist
er
was shot to death by two of her security guards, sub-inspector Beant Singh,
a member of her bodyguard for nine years, and constable Satwant Singh,
both Sikhs. Beant Singh was killed a few minutes after the assassination,
reportedly during a scuffle as he tried to escape. Satwant Singh, although
wounded, survived, to be tried and then hanged in January 1989.
Practising the secularism she preached, Indira Gandhi had refused to
exchange her Sikh police security guards for non-Sikhs or for security
provided by the army despite the advice of Defence Minister R.
Venkataraman. The army in a democracy, she told him, ‘should be kept
“well out of such matters”’.>!
That evening, President Giani Zail Singh swore in son Rajiv Gandhi
as Prime Minister without waiting for the Congress Parliamentary Party
to elect him its leader, an unprecedented action.°2 For three days
thereafter, anti-Sikh riots in New Delhi, particularly, allegedly abetted
by members of the Congress(I) Party, killed at least two thousand Sikhs
and made some ten thousand homeless.
With Rajiv Gandhi presiding, the All-India Congress Committee
adopted a resolution of homage to Mrs Gandhi, ‘this great maker of
History’. The resolution recalled her defences of India’s ‘honour and
integrity’, of ‘democracy and secularism’. It praised her strengthening
the nation’s “economic fibre’ and her grand strategy ‘for the alleviation
of rurai and urban poverty’. For her, the resolution said, ‘victory and
defeat were unimportant’; what had mattered was functioning ‘according
to the great principles and values of our organization’. From each crisis,
she led the party ‘as a better instrument for social transformation’.
Concluding, the resolution said, ‘she filled our lives with joy and beauty
and dignity’.°°

government's ‘White Paper on Punjab’. /ndira Gandhi: Speeches and Writings, vol. 5, pp.
78, 97.
51 Among the many descriptions of the scene, see Jayakar, Indira Gandhi, pp. 485-6,
For Venkataraman’s advice, see Malhotra, Indira Gandhi, p. 303.
52 In the parliamentary elections held between 24-28 December 1984, the Congress
(1), led by Rajiv Gandhi, won 401 of the 495 seats contested. The party coming nearest to
this was the CPM with twenty-two seats. Maneka Gandhi, Sanjay Gandhi's widow, lost her
deposit, and Shiv Shankar and other Congressmen lost.
53 Zaidi, The Encyclopaedia of the Indian National Congress, vol. 26, pp. 103ff. Resolution
adopted 7 May 1985 in New Delhi.
Prime Minister Rajiv Gandhi resumed negotiations with the Akalis during 1985 and,
even as Sikh terrorism resumed, reached an agreement in secret meetings with Sant
Harcharan Singh Longowal, who had become head of the Akali Dal in May. On 24July,
 550 Working a Democratic Constitution
murder.
No explanation can erase the dastardliness of Indira Gandhi’s
reasons
It was a catastrophe for family and nation. Yet she died for deeper
er
than two Sikhs’ vengeance and bullets. In the Punjab, the Prime Minist
of
and her party had been dealing with Sikh desires that were a mixture
utterly
the reasonable, difficult to satisfy under the best of circumstances,
- unrealistic, and absurdly conflicting—the products of factions’ and
leaders’ competing for dominance within their community. The most
sensitive and accommodating government in New Delhi would have been
bemused by these. The central government and the Congress were not
bemused. They took the opportunity to manipulate Punjab politics,
intending to rule by using and encouraging factions. Mrs Gandhi had
the President in 1980 dismiss the Akali Dal—Janata coalition government,
under which a degree of calm had returned to the state. She, her Home
Minister, and son Sanjay then supported Bhindranwale unt, like the
sorcerer in the tale, they lost control of their apprentice. In Jammu and
Kashmir, Congress had meddled in affairs long before dismissing Farooq
on spurious charges. There and in Andhra Pradesh, party and central
government had smeared the chief minister as anti-national, when it was
they whose actions were both anti-democratic and damaging to national
integrity.
These were but the most recent actions in a series, which originated
soon after she took office in 1966, indicating that Mrs Gandhi believed
the prime ministry and the leadership of the Congress Party to be her
personal right. As has been seen, she split the Congress Party in_1969
and 1979 to preserve her control over it. She superseded three Supreme
Court judges in 1973—so that Hegde, who had ruled against her in her
election case, would not rise to the chief justiceship—and another judge
in 1977. She amended the Constitution twice—the Thirty-ninth and Forty-
second Amendments—to protect herself against prosecution for elec-
tion campaign offences. The same purpose caused her to intimidate Presi-
dent Fakhruddin Ali Ahmad into declaring her Emergency in June 1975.
To prevent challenges to her authority, between 1971 and 1977 and 1980
and 1984 she reduced to serfdom all but a few democratic stalwarts in
Parliament and party. Her style in government, according to ministers

Rajiv Gandhi announced to Parliament that they had signed a memorandum of settlement,
bringing, in his words, an end to “confrontation” and ushering in ““an era of amity, goodwill
and co-operation ... [to} promote and strengthen the unity and integrity of India”’. AR,
13-19 August 1985, p. 18458. The text of the “Gandhi-Longowal Memorandum’ is given
on this and succeeding pages of AR.
Three weeks later, on 20 August, two Sikh youths assassinated Longowal. Much of
the Punjab remained a battleground for eight more years.
 Turbulence in Federal Relations 55]
and officials working with her, typically was arbitrary and secretive.
A degree of ruthlessness is necessary for a political leader to be great,
an ability to insull fear as well as respect and admiration in ministers,
officials, and members of the legislature. Otherwise, the leader is apt to
be led. But in a great leader, these characteristics will be accompanied by
sensitivity to the national ethos, to the aspirations and rules laid down in
the country’s foundation document. Had Mrs Gandhi understood this,
she neither would have imposed her Emergency in the first place nor
called the elections of 1977 in the expectation that her transgressions
against democracy would be rewarded by victory. She allowed Parliament
to give the non-justiciable Directive Principles primacy over the justiciable
Fundamental Rights, and she several times told associates—including S.
S. Ray in June 1975—that she knew nothing of the Constitution. She was |
insensitive to the leaders and peoples of the constituent units of the’
country who wished to share in governance, to row their own boat in
collaboration with the centre. In sum, she lacked awareness of the federal
and democratic principles given life through accommcdation. Her, and
the Congress Party’s, use of President’s Rule for party purposes is the
most unconstitutional example of this.
By the mid-eighties, the politician fabled for astute political manoeu-
vring among allies and opponents and skilled at associating herself with
the people’s longings for a better life seemed to have lost touch with
reality. If for a decade and a half you are surrounded by courtiers who
tell you that India is you and you are India; if you are brilliantly victorious
in politics and in war (as in 1971); if you then succeed in making Parlia-
ment your creature; if you manipulate your own council of ministers and
the nation by imposing a state of emergency, ostensibly to protect national
unity and advance social reform, but actually to retain your office; and if,
after ruling autocraticaily, you can return to office, acclaimed by the very
voters who had rejected you, then your hubris can be understood. If you
then plan for your sons, one of them devotedly contemptuous of civil
liberty, to follow you as prime minister, then your hubris is confirmed.
Mrs Gandhi had asked in the Lok Sabha why ‘powerful forces’ in
the world were attacking her. She did not understand, apparently, that
her hand was turned against herself. Although she told close associates
during the eighties that she had thought about her death, she behaved
with exalted indifference—or like one who believed herself fated to
die martyred in the nation’s service.
These were at once the causes and the symptoms of government
and politics for oneself. Mrs Gandhi was killed horribly, but she died
from the personalization of power.
 1 “a a,

ee ee sett ete

. Ms
3 * 08 ae Bs pale
.. -
~4
{ cw (iis

- "7 j +
*? rom PITTS

: e
- ° aot w= »S 4 =

t alee SS Sree
. — :
ata s. .
7 Tia &
=
pi
up tne ©
5 ; ? : a “> a i

+e 7 Pas
f . e "omP 4 =
a ’ uy es | el 74
71 ats i
a . ee ol
7
7h t ” ee ea

tr Pug

.:
> <a
: *

~~ ~*

> ™~.
,

ae
sis

aan
ae
<i
ll
 Part VI

THE INSEPARABLE TWINS: NATIONAL

UNITY
AND INTEGRITY AND THE MACHINER
Y OF
FEDERAL RELATIONS

National integration cannot be built by brick and

mortar, by chisel and
hammer. It has to grow silently in the minds and
hearts of men.
National Integration Conference!
)
We have a full and detailed Constitution ... [but]
it depends ultimately
on the people ... and more especially on those
in positions of
responsibility .... Thus, the element of co-operation,
of seeking friendly
counsel with each other and of ever keeping the large
r end in view, are
of paramount importance.
Jawaharlal Nehru2

! “Statement Issued by the National Integration Conference’, held between 28

September and 1 October 1961. Ministry of Information and Broadcasting, GOI, New
Delhi, 1961, p. 4.
2 Prime Minister Nehru’s letter to the chief ministers on 15 April 1952. NLTCM, vol. 2,
p. 578.
 mt IR AOTULI OAT See SHE 5
aC} VEWATEt Aa if] WE YT OMA.

A139 JARSGS

Cees 2
-
7

> : ‘ & fvviet od led SMS

ae bee einici ads ti geste ngewe 8 aa a

3: t ; 7 Cree ee Lohiaeals tetas las ah

ly 20 vieweqes OR bow lad vigeaq ae.

E te “ 4 ae Hi210 POs Pee saarectt gts es wT. .- as

*¥ : ei pee 1 ba Tee oesgeal ten aes

ah ; ett Oequmnh
at .:
-—
: ‘
pr : “rte, 'ehik bapetas]

a
;
i
val 7 2a
—= =

E>
=

a &

=
=
F
+2
ay . “
: a
7

< 2 S :
>
. 7
i
| ,;
ef peat sie ae.
‘ we 18D ee pee ie ‘ . Pring 5
 Chapter 27

TERMINOLOGY AND ITS PERILS

‘Federalism’ is an idea and a set of practices, the variety of which depends

upon the goals of the citizenry and its leaders, the consequent definition
of the term, and the conditions present in the would-be federation.
This portion of the book gathers together the themes and issues on
these topics from previous chapters to explore how ideas, intentions,
and practices under the Constitution have combined in the working of
the country’s particular variety of federalism.
The three strands of the seamless web each were vital to the success
over time of the Indian nationa! enterprise. Grave inattention to, or
excess in the pursuit of, any strand would risk the web’s integrity. Having
said this, it should be understood that the political leadership and aware
citizens placed special emphasis on the national unity and integrity
strand. Slow progress toward social revolution and more effective
democracy could be tolerated for a time, but if national unity and
integrity were lost all else would be lost. Aggravated relations between
the central and state governments could lead to disunity. There would,
or could, be no ‘India’. On the other hand, greater unity and cohesion
among the constituent political units and within society were likely to
facilitate progress toward social revolution and greater democracy.
As one of India’s great figures, and at the time Home Minister, Pandit
G. B. Pant, put it, ‘the task before us is national unity and economic
reconstruction’.!
Yet, favoured status for unity over the social revolution and democracy
strands of the web, even if temporary, had a risky side. It could be
diversionary, distracting attention from domestic woes, an excuse for
exaggerated and unnecessary centralization of governmental and
personal power. For all these reasons, no other issue has so greatly and
persistently commanded public attention since 1950.

lina speech to the Western Zonal Council meeting in 1957. AR, 21-27 September
1957, p. 1651.
Pant also believed that ‘a catholicity of outlook has been the hallmark of Indian
civilization’—in a speech to Allahabad University students in December 1955, published
as Be Good So That You May Be Great, Indian National Congress, New Delhi, 1956, p. 7.
556 Working a Democratic Constitution

But how were the words ‘unity and integrity’ to be defined? Upon
their interpretation depended one’s assessment of the condition of the
country at any particular moment. Appropriate policies should follow
from the assessment, devised within the framework of the Constitution.
But this would necessitate a second lot of definitions, this ime of the
‘federal’ provisions of the Constitution, for the provisions of any great,
basic document raise questions of interpretation—which rarely are
permanently settled. Policies and their implementation at all levels of
government, and the conduct of political parties and other political
actors correspondingly would be affected, thus producing the ‘federal-
ism’ as practised under the Constitution. This chapter will consider the
definitions given to the words ‘unity and integrity’ and to ‘federalism’
and then proceed with an overview of the phases through which centre-
state relations have gone during the period of this book. Succeeding
chapters will deal in detail with the provisions of the Constitution that
most agitated relations between New Delhi and state capitals and the
problems of definition from which they arose. Readers kindly will tol-
erate what seems to be the desirable degree of repetition in this at-
tempt to bring togethe;x earlier portions of this book.

Definitions and Their Uses

The words unity and integrity were susceptible to multiple interpreta-
tions. Did they mean preserving the frontiers as they were at indepen-
dence, unbreached by external invasion or internally from secession
by constituent states? Did the words mean preservation of the constitu-
ent states as they were in 1950? Or might they be constitutionally di-
vided and reassembled—as they would be by the States Reorganization
Act of 1956? ‘Balkanization’ into a number of ¢ountmes or nations within
the 1947 frontiers would be the opposite of this. Did the words allow
for competition among the constituent states and between them and
the central government over the management of and benefits from
natural resources and over the collection and distribution of revenues?
What if such economic and social revolutionary competition were
clothed in regional and local identities such as language, culture, or
_religion? Did the words mean that citizens must feel a sense of
‘Indianness’, to the exclusion of any loyalties to region, language group,
caste, or clan? In other words, did the various elements within society
have to become homogenized—really melted in the melting pot—for
unity and integrity to be thought, first, genuine, and then secure?
 Terminology and its Perils 557
Indians have asked themselves each of these questions
at one time
or another and have given many answers. For some, true and viable
unity and integrity equated with what may be called civic respon
sibility.
President S. Radhakrishnan, for example, thought that unruly
behaviour
in legislatures, factions, caste disputes, political rivalries, and
“petty
considerations”’ raised ‘““doubts about the stability of aunited
, demo-
cratic India”’.* Others focused on ‘sub-nationalisms’, The variety of
the
country’s groupings, reported the Sarkaria Commission, ‘promote
[s]
sub-nationalism in a manner that tends to strengthen divisive forces
and weaken the unity and integrity of the country’? L. K. Advani said
that the founding fathers and he believed that India was one nation
and that if the country’s many ‘ethnic’ and ‘linguistic’ groupings were
thought of as nations, the country’s unity would not survive.4
For most persons, within and outside government, the gravest danger
to unity and integrity came from four ‘isms’: casteism, communalism,
linguism, and provincialism/regionalism. Frequently, these were treated
as a compound named ‘communalism’. The antidote to, and the cure
for, communalism was yet a sixth ‘ism’, ‘secularism’. This desirable
condition of society was understood to mean a low level of consciousness
of or partisanship in one’s own ‘community’, and consequent tolerance
of other ‘communities’. Thus it was much broader than Hindu—Muslim
amity, of which ‘communalism’, by another definition, was the antithesis.
For example, Prime Minister Nehru admonished the chief ministers in
1952 that ‘the Congress by tradition and historic necessity stood for
the unity of the country, anti-communalism and fought against
disintegrating tendencies’.> He devoted six pages of a‘Dear Comrade’
letter addressed to’ fellow Congress Party leaders to the forces ‘which
tend to disintegrate and weaken’ our otherwise ‘well-knit country’. The
word ‘secular’, he wrote, meant more than the ‘free play of all religions ...

2 His farewell speech as President, in which he also was critical of the government’s
administrative performance, delivered on 25 January 1967. AR, 12-18 February 1967,
pp. 7540ff.
3 Sarkaria Report, vol. 1, p. 15. The commission added that these groups, initially
based on linguistic and religious sentiments, gained strength from ‘a blend of economic
issues such as those relating to land, water and regional backwardness’.
4 Text of a speech ‘Antidote to Divisive Forces’ delivered at a seminar on the
presidential systemof government in the eighties and published in Sathe, Two Swords in
One Scabbard, pp. 139-40.
Language—in education, in civil service examinations, and for official use nationally—
had been a most divisive issue, but was largely defused by the 1970s. By the nineties, if not
before, it had ceased to pose a threat to national unity and integrity.
5 Letter to chief ministers, 31 January 1952. NLTCM, vol. 2, p. 550.
 bi hit csen prlotavend TA bal gs? Aci

YS Cecllute 7

558 Working a Democratic Constitution Hol 1 Couse

[and] conveys the idea of social and political equality. Thus a caste-ridden
society is not properly secular.’ “Communalism means the dominance of
one religious community’ and is thus ‘a negation of nationalism’. This
idea of linguistic states, Nehru continued, has some virtue and logic, but
it ‘may well become a curse if we do not restrain ourselves and do not
keep in mind the unity of India’. He concluded: ‘We must always keep
the ideal of the unity of India and of the political and social equality of
her people, to whatever group religion or province they might belong’.®
A resolution adopted by the Congress at its 1955 Avadi Session said
that ‘every separatist tendency’ had to be removed. Caste was separatist
as well as anti-democratic. ‘Provincialism’ was a ‘narrowing and disruptive
factor’.’ Later leaders echoed these sentiments. Congress President
U.N. Dhebar believed that ‘ “socialism and sectarianism cannot walk hand
in hand” ’.8 Congress Party President Sanjiva Reddy said in 1961 that in
his travels in the country he had found a ‘subtle but strong thread of
unity’ among the people, but ‘our mutual intolerances of each other ...
reflected in such complexes as provincialism, linguism, communalism,
etc., should be deemed anti-national forces’.9
Nehru’s inclusive definitions of ‘communalism’, and of ‘secularism’
as its remedy, were widely shared, which made their semantic trap all
the more insidious. They created more difficulties than they resolved.
Going beyond government refraining from the sponsorship of religion
_ (the church-state issue) and a sense of amity among religious faiths,
rere ‘secularism’ posited a society without the four ‘isms’, one that, if not
u 0:wv homogenous, was close to being freed from the subordinate loyalties
:

* log V that the ‘isms’ represented. A more accurate’term for Nehru to have
used would have been ‘national integration’, as in this part’s first
superscript, a term he used at the National Integration Council in 1961.
Its connotations are those of a process toward the dying away of strong
group identities in a society.!9 The reality of the compartmentalization

6 Letter of 8 August 1954. AICC Papers, Second Installment, File Circulars General,
1954, NMML.
7 Resolutions, Sixtieth Session, Indian National Congress, New Delhi, 1955, pp. 9-10.
8 At the sixty-fourth party session at Nagpur, 9-11 January 1959. AR, 17-23 January
1959, p. 2452.
U.N. Dhebar wrote to Indira Gandhi in a 1951 letter that casteism was at the root of
the problem of communalism. Dhebar Papers, Microfilm File 9, Box 1, NMML.
9 Address to the Sixty-sixth Congress Session, Bhavnagar, 6 January 1961. Indian
National Congress, New Delhi, 1961, p. 2.
yw 10 See Gopal Krishna's thoughtful ‘National Integration—A Lost Cause?’ in Ramakant
st yw (ed.), Nation-Building in South Asia, 2 vol., South Asian Publishers, New Delhi, 1991, vol.
1, pp. 1O9ff.
 Terminology and its Perils 559
in Indian society, when set against the ideal of national unity (defined
mistakenly as national integration), made anxieties for unity inevitable. fr.
An unrealistic definition evoked unwarranted fears. National unity and Fe<” (%
integrity existed, although national integration did not. The reality of Bul Rd
the years since 1950 has been that the ‘isms’, with few exceptions, have vy, » “hy
co-habited successfully. They have not endangered the integrity of the (wr
nation,!! although factionalism and riots, frequently based on the ‘isms’, (U!
have impaired the democratic process and progress in the social
revolution. Carried to extreme lengths, factionalism and violence could
bring the nation’s functioning to a halt. A major product of fears for
unity has been the over-centralization of authority to protect against forces
thought to be disintegrating. A counter-intuitive remedy for the perceived
threat to unity from the ‘isms’ came from former Chief Justice of India
Mehr Chand Mahajan. As mentioned earlier, he believed that, because
the Constitution had not contributed to the country’s development ‘into
a single homogenous entity’, a unitary form of government should replace
the federal system.!?
The origins of these anxieties about the assumed fragility of the
country’s unity are not far to seek. A heritage of doubt afflicted citizens
and the leadership. Before 1950, India had never been united politically
and administratively. The Mughal empire, India’s most extensive, was
not tightly united in the North and it did not cover the South. Other
empires in the North and the South had been regional. Under the
‘Raj’, the country had been divided into ‘British India’ and the princely
states. After independence, the latter had to be brought into the union.
Psychologically, Indians had to overcome doubts that their diversities
fitted them to become a nation. Was there a ‘fundamental unity of )
India’, as Radha Kumud Mookenji had claimed?! If so, what were its ;
ingredients? Was it to be found in geography—one land from the
Himalayas to the southern seas; in the Vedic past and the Sanskrit ,

1! The author is flattered that P. N. Haksar agreed with this analysis.

12 Mahajan, Looking Back, pp. 226-7. See also Mahajan, Mehr Chand, Preserving Unity
of India, The Sulakhani Devi Mahajan Trust, New Delhi, 1970—publishing an article pele * é
Mahajan had written in 1956. In this Mahajan wrote that he had only a ‘negative answer’ =, A”
to his own question: Had the Constitution contributed to developing India ‘into a single yer!
homogenous entity and of consolidating the people inhabiting the country into a single
nation, swearing loyalty to Bharat and Bharat alone’? His answer was, “The present
Constitution may take us back to the age of separate kingdoms, persons therein owing
their loyalty only to the states in which they live’. Ibid., pp. 2-3.
13 Mookerji, Dr Radha Kumud, The Fundamental Unity of India, Bharatiya Vidya Bhavan,
Bombay, 1960 (first published in 1914).
 560 Working a Democratic Constitution

language; or ‘in the common heritage ... of a composite culture’, as

suggested by the Sarkaria Commission?!4 Had the independence
movement under Congress Party leadership brought lasting unity? Even
the movement’s great achievements could not erase memories of its
factionalism and the evidence from Partition that many Indians had
thought themselves a separate nation.!° Jayaprakash Narayan put it
succinctly and pessimistically when he wrote in 1961 that ‘in the modern
sense of the term, India was never a nation, nor is she a nation today,
nor can she suddenly become one tomorrow’.!© With these doubts and
realities the founding fathers and their successors had to deal.

The Constitution’s ‘Federal’ Provisions:

Definitions and Uses

The founding fathers and mothers clearly had this history constantly in
mind. They produced a constitution with a unitary tone and strong
centralizing features—taking much from the British imperial model, the
1935 Government of India Act. There would be single citizenship, not
dual, state and national, citizenships as in the United States. There would
be a single system for the higher judiciary and single national civil and
police services, although the states also would have their own services.
The great ‘Anglo-Indian Codes’ of the nineteenth century, nation-wide
in their reach, would be continued in force. The Fundamental Rights
and the Directive Principles of State Policy would be national in reach,
and the Rights were part of the original jurisdiction of the Supreme Court.
The states would have a uniform constitution embodied in the nation’s
Constitution. The heads of government in the states, the governors, would
be appointed by the President, i.e. by the Prime Minister and the council
of ministers. Under the Constitution’s ‘Emergency Provisions’ the central
government could legislate for and administer governments in the states.
Other provisions for centre-state relations clearly gave the central
government strong influence or dominance.
With the Constitution inaugurated, the second set of definition issues
arose. Interpretations of constitutional provisions had to be arrived at

14 Sarkaria Commission Report, vol. 1, p. 5.

15 Partition’s effects linger today. Mukarji and Arora put it thus: ‘{[T]he traumatic
\/transfer of power engendered an obsessive concern for warding off further fragmentation
and disintegration, which extended to viewing the political expressions of ethno-linguistic
regional identities with suspicion and unease’. Mukarji and Arora, Federalism, p. 5.
16 Jayaprakash Narayan, ‘An Essential Requisite of National Integration’, India
Quarterly, vol. 17, no. 4, 1961, p. 323.
 Terminology and its Perils 56]

through political bargaining and in the courts of law, revealing the

mindset of the definers. First, what degree of ‘federal spirit’ should
mark the Constitution’s functioning? Terms like ‘quasi-federation’, ‘co-
operative federalism’, ‘federal in form but unitary in substance’, and
‘centralized federalism’ were used. Each term revealed an understanding
of centre-state relations as, respectively, not quite ‘federal’ enough,
just about right (with a hint of sceptical optimism), or too centralized.
The president of the Constituent Assembly, Rajendra Prasad, had neatly
avoided the definitional quicksand by telling its members that labels
were unimportant. *[W]hether you call it a federal Constitution or a
unitary Constitution or by any other name ... it makes no difference so
long as the Constitution serves our purpose.’!” More explanatory was
K. Santhanam’s analysis that India’s was ‘a Federation in which the
paramountcy powers which the British Government had over the Indian
[Princely] States have been taken over by the Union Government and
applied to all its units ... . So, it will be appropriate to call our Federation
a “Paramountcy Federation” ’.!8 ;
Strong centralizers and decentralizers were at the ends of a philo-
sophical continuum regarding the country’s need. The decentralizers
included former Congressman, Gandhi associate, Governor General,
and Tamilian, C. Rajagopalachari, who thought that the solution to
‘centrifugal interests’ was to concede greater autonomy to the states.
To centralize was ‘both ridiculous and alarming’.!9 The Swaraj Party
fifteen years later took the position that the federal principle was inex-
tricably linked to democracy ard ‘the tendency to consider a strong
Centre and a strong State [government] as antithetical to each other
was mistaken’ .*?Swaraj members likely did not remember that Krishna
Menon had supported this view in 1953. He favoured ‘wider and wider
degrees of decentralization simultaneously with increasing effective-
ness and potency of central authority’. Without progressive decentrali-
zation, Menon believed, government becomes ‘increasingly alien to the
people’.*! The Praja Socialist Party had gone further only four years
after the Constitution’s inauguration. It then advocated replacing the

17 CAD, vol. 11, no. 12, p. 987.

18 Santhanam, Union—State Relations, p. 13.
19 Rajagopalachari, Our Democracy, p. 4-5.
20 ‘The Federal Principle: How Best It Can Be Worked’, Swarajya, 15 April 1972, p.
12. The party also believed that the Constitution need not be changed to achieve proper
federalism. Ibid.
21 Menon, V. K. Krishna, ‘Desires without Deeds Breed Pestilence’, The Challenge to
Democracy, Publications Division, Delhi, 1953, p. 50.
 562 Working a Democratic Constitution

current ‘two pillar’ system with one of ‘four pillars’, with power shared
among village, district, province, and the centre to ‘rouse a lethargic
people to action’. The Communist Party Marxist thought the Constitu-
tion federal only in name, and truly federal government was the most
suitable for a vast country like India.** Although such sentimenis arose
considerably from the Opposition’s frustration with its inability to shake
Congress’s power, they should not be dismissed as frivolous. The cen-
tral government’s own Sarkaria Commission would deem many of them
sensible.
Calls for generalized decentralization, or, occasionally, by individual
states for ‘autonomy’, and in a few instances for secession, have alarmed
prime ministers and central governments since 1950. The gravest threats
to secede came in Tami! Nadu, Punjab, and from the Nagas. Although
they did not materialize for lack of popular support and, in the
Northeast, because New Delhi compromised, the threats shook the
country. States’ calls for decentralization and ‘autonomy’ have been a
- ie matter. Based on genuine and perceived grievances against
central government unfairness or neglect, they have been pleas for
redress. A strong element of this underlay even the threats of secession.
Similar demands have been directed at state capitals by discontented
regional groups within states. Rarely have the latter discontents and
demands threatened national unity and integrity—unless the violence
and destruction that have sometimes accompanied them are defined
as threats to more than stability. The central and state governments’
unwillingness to heed pleas and to redress genuine grievances, and
also to increase participation in governance through decentralization,
have worsened many situations.
The centralizers were of two kinds. Parties like the Hindu Mahasabha
/ and the Rashtriya Swayamsevak Sangh were strong centralizers, arguing
that national unity and social and economic development had io be
built upon the historical—cultural unity of Hinduism, which demanded
scrapping the federal system in favour of unitary government. Joining
them, as seen earlier, was former Chief Justice Mahajan. Also centralizers,
but secular, were those exemplified by eminent political scientist Rajni
Kothari, who said in 1966 (before the Congress Party’s electoral defeats
of several months later) that ‘there is need to retain the authority of
the dominant party ... [and] also need to restrain the powers of the states
considerably ... [U]nless we devise an institutional system which ...

22 For example, see CPM, Election Manifesto, 1971. Also former Chief Justice of
India Subba Rao in Swarajya Annua! Number, 1971, pp. 179€f.
 Terminology and its Perils 563

establishes central authority without any doubt ... whatever else we have
is not going to work’.?9
The centralizers were supported by strong forces and tendencies.
Two of these were connected directly to the seamless web. |The
Fundamental Rights and the protection of minorities and the weaker
sections of society, both essential to democracy, ultimately were the
responsibility of the central government and the Supreme Court.|
Similarly, the central government had the leading responsibility for the
pursuit of the social revolution as embodied constitutionally in the
Preamble and the Directive Principles of State Policy. The central
government also had ultimate responsibility for the functioning of
democratic government in the states (Articles 356 and 365). In the
words of the States Reorganization Commission, this was ‘“the
supervision by the larger democracy [of the Indian Union] over the
smaller democracies [of the states] in respect of matters of national
concern” ’.** Socialism, the national economy planned and managed
through the sub-constitutional Planning Commission, was inherently a
centralizing force, the more so because the states lacked the wherewithal
to fund their own economic development. Had some states possessed
such resources, the central government still would have had to become
involved to assure some measure of equitable development across the
country.
Less tangible factors abetted centralization. Delhi, imperial capital
under the Mughals and lesser early empires, and the British after 1911,
was accustomed to dominance: Within it after independence, the imperial
mannerisms of the Mughal Court lingered, limiting responsiveness
to states’ concerns.” The difficult struggle to build unity within the

23 Kothari, who has since altered his views about centralization, was speaking in the
context of India having a parliamentary as distinct from a presidential system, but his
remarks apply equally to centre-state relations in politics and economics. Parliamentary
versus Presidential System of Government, Proceedings of a Seminar, India International
Centre, New Delhi, 1966, pp. 36-7.
24 Quoted in this fashion in a letter from Madhya Pradesh Chief Minister Ravi Shankar
Shukla to Congress President U. N. Dhebar, 9 February 1956. AICC Papers, Second

Installment, File G-1(17), NMML.

The Reorganization Commission, when realigning state boundaries on a linguistic
basis, did not address issues of relations between the states and the central government.
on of
25 The other side of this was southern resentment at the attempted impositi
ministers from the south—
Hindi as the national language and at the absence of prime
Gandhi's
none until P. V. Narasimha Rao became Prime Minister in June 1991 after Rajiv
a Punjabi city—
assassination. What northerners-—-Punjabis especially, for Delhi is also
Secretari at, did not allay southern
saw as too many Tamil Brahmins in the Central
564 Working a Democratic Constitution
independence movement, and its centrally commanded engine, the
Congress Party, created an instinct among party members for self-
preservation: unity was necessary for the party to retain power, and, of
course, it was good for the country! Although self-serving, this was also
sensible, for the party could help hold the country together and resolve
political and administrative problems. The AICC(I) recalled that under
Prime Ministers Nehru and Shastri ‘any dispute between the Centre and
State[s] invariably used to be settled across the table at the party level
and ... never came in the form of Centre-State problems’.?°
The leaders of the early years were centralizers by personality. Nehru
deeply felt his responsibility to lead and build the nation. Sardar Patel
was a political boss and a stern administrator who tolerated no nonsense
from state leaders and his ministerial colleagues to get things done.
Mrs Gandhi and many of her ministers shared the belief that central
dominance was essential to national progress and survival—this apart
from any resulting personal benefits.
Finally, a characteristic of sub-continental culture has made political
and administrative decentralization difficult. A respect, a reverence,
for power and rank in a hierarchical society has supported the tendency
among party and government officials to ‘pass the buck’ to higher levels
of authority when confronted with difficult decisions and to defer unduly
to the ideas of superiors. ‘Let Panditji decide’, and ‘What is Madam’s
mood today?’ were often heard during their years as Prime Minister.
The pattern has persisted within parties and governments even as
political rebelliousness has increased. The country’s political parties
are all central-command parties.
Which returns us to the history to which K. Santhanam referred. At
independence power had been devolved from central authority, not,
as in the United States, ceded to a new central government by colonies
made independent by revolution. Centralized national government was
foreordained in 1947. The future would produce the phases through
which this centralization would go. These will be reviewed before
discussing the details in the following three chapters.

dissatisfaction. As noted in Chapter 7, the central cabinet in 1954

decided that the
President should spend some time in the South each year ‘in the cause
of the integration
of the country’. Gopal, Radhakrishnan, p. 310.
26 AICC (I) ‘Memorandum’ to the Sarkaria Commission. Sarkaria Report, vol. 2, pp.
662-3.
The AICC(I), unsurprisingly, believed that from the eighties onward
central power
should increase to deal with ‘disruptionist forces’ in the country.
 Terminology and its Perils 565

Federalism’s Phases
THE NEHRU YEARS
The Nehru years institutionalized centralization—as well as dedication
to democracy and to the social revolution. His dominance as visionary,
hero, and national nanny reinforced the factors already at work. The
‘gentle colossus’, the Communist Party statesman Hiren Mukerjee called
him.?” Under Nehru, government-to-government relations under the
Constitution were developed and to a considerable degree became for-
malized. A political party operating as a two-way communications and
command channel in parallel with constitutional federalism became an
established pattern. This derived from the relationship between the Con-
gress Working Committee and the Congress-led provincial governments
after the 1937 elections.*8 A major government study a few years after
Nehru’s death described the Congress-government nexus, ‘Where a
single party has control over affairs at the Centre as well as in the states
an alternative and extra-constitutional channel becomes available for the
operation of centre-state relationships ... [T]his channel has been very
active ... . In the process, the Constitution was not violated ... but was
often bypassed’.*9 This arrangement allowed a degree of atrophy in the
constitutional processes for centre-state relations by denying them
strengthening exercise.
Yet all did not go New Delhi’s way during this period. Powerful chief
ministers both shared Nehru’s national outlook and constituted coun-
terweights to central power, acting as partial brakes on central authority

27 Mukerjee, The Gentle Colossus, 1985, a reissue in paperback of the book published
in 1964.
28 For very useful treatments of this phase, see Sarkar, Union—State Relations in India;
Bombwall, K. R., “Federalism and National Unity in India’, JCPS, vol. 1, no. 1, 1967, pp.
68ff; and Jacob, Alice, ‘Centre—State Relations in the Indian Federal System’, /ILI, vol. 10,
1968, pp. 583ff. For a survey of the literature on centre-state relations, see Bhambni, C. P.,
‘Federal Politics: A Trend Report’, A Survey of Research in Political Science, Allied Publishers
Pvt. Ltd., New Delhi, 1981, vol. 2: Political Process, pp. 45ff.
29 Administrative Reforms Commission (hereafter ARC), Report of the Study Team:
Centre-State Relationships, Manager of Publications, GOI, New Delhi, 1968, pp. 1-2.
Continuing, the report said that, as a result of the above, ‘constitutional provisions
went into disuse and disputes were settled in the party rather than aired through open
constitutional machinery. Party prestige and party discipline worked out party rather
than governmental or constitutional solutions. A strong central leadership made such
discipline possible. Ibid., p. 2.
As might be expected, this commission focused on administrative issues. Its major
recommendations concerning individual constitutional provisions will be taken up in
the following chapters.
566 Working a Democratic Constitution

in many administrative matters. They brokered the first and second prime
ministerial successions. Indeed, chief ministers so often successfully de-
fied the Congress high command that one party general secretary in the
sixties expressed the fear that a situation might arise “when state party
chiefs would rule Parliament”’.2? Also, Nehru showed himself sensitive
to state sensibilities. He apologized for a central minister visiting a state
on official business without first informing that government, and said
this should not be done.*! When T. T. Krishnamachari spoke critically in
Madras of the state government, Nehru admonished him: ‘We have been
trying to avoid public arguments and criticisms between rninisters of the
central government and the state governments because ... [thev] only
create conflict and ill-will’.22 Nehru also initiated the Community Devel-
opment and Panchayati Raj programmes, which could have led to a de-
gree of political decentralization and empowerment in the villages.39
Neither programme succeeded, but they were the progenitors of the
movement toward a ‘third tier’ of government that gained momentum
.*4
during the 1990s. (Part VII)
During these years constitutional and sub-constitutional institutions
began to play their part in centre-state relations. The Finance Com-
missions began allocating centrally collected revenues to the states and,
in response to state pressures, increased these allocations. The Plan-
ning Commission commenced making capital development grants to
the states, reinforcing New Delhi’s political reach. Zonal councils were
established. Three constitutional anmendments—the Third, Sixth, and
Seventh—increased central authority by extending Parliament’s tax-
ing power and New Delhi’s authority over the production of and trade
in foodstuffs and certain commodities. As an early chief minister of

30 K. K. Shah in the Hindustan Times, 8 February 1963. Cited in Bombwall, ‘Federalism

and National Unity’, p. 88. ;
31 Letter to Madhya Pradesh Chief Minister Ravi Shankar Shukla dated 13 May 1951.
The every minutes was H. K. Mahtab. Mahtab Papers, First Installment, Subject File 20,
NMML.
32 Letter dated 10 May 1953. Nehru sent a copy of the letter to C. D. Deshmukh the
same day. C. D. Deshmukh Papers, File 23, NMML.
33 Even if panchayats and village co-operatives made ‘a mess of things ... they must
learn how to rely upon themselves’, the Prime Minister wrote the chief ministers on 12
November 1958. NLTCM, vol. 5, p. 157.
34 Nehru also came to conclude that slackness and corruption at the lower grades of
the civil service might be reduced by decentralization. Although it was easy to criticize
‘such decentralization and devolution of powers’, it appeared, that there was ‘no other
democratic way to deal with the miltitude of problems that arise’. Letter to chief ministers
dated 9 September 1958. Ibid., pp. 127-8.
 Terminology and its Perils 567
Uttar Pradesh, Sampurnanand, saw it, ‘there is a steady attempt on the
part of central ministries to encroach on thejurisdiction ofthe compo-
nent states’.>9
The direct challenges to the nation’s integrity and to central author-
ity that the Nehru government faced help to account for the government’s
policies regarding unity. After the great shock of Partition came the prob-
lems of integrating the princely states, the communist insurrection in
Telengana, and Master Tara Singh’s separatist politics in the Punjab. Then
came challenges from Phizo and the Nagas, from Tamil separatists, and,
somewhat less so, from Sheikh Abdullah in Kashmir. Tamil separatism,
coupled with hostilities with the Chinese, brought on the National Inte-
gration Conference and the Sixteenth Amendment’s oaths to be taken
by legislature candidates and elected representatives to uphold the sov-
ereignty and integrity of India.>° The creation of linguistic majority states
by the States Reorganization Commission brought anxieties that their
new senses of identity would, by strengthening the states’ self-confidence,
make New Delhi’s dealings with them more difficult?’—anxieties largely
unfulfilled. Accusations by Nehru’s critics that the country was being
governed in a unitary fashion were unjustified, but centralization was a
major motif of governance under him.?®
Equal in importance to such developments was one that might have
occurred but did not. No one challenged the compatibility of federalism
and the parliamentary system, although some theoreticians outside India
had done so. The ardent decentralizers of the eighties did not seek a
change from, or change in, the country’s parliamentary system because
they thought it incompatible with the greater federalism they desired.
Nor have those advocating change to a presidential system supported
their cause by claiming it better suited to decentralization. Indeed, the
principal proponents of a presidential system—A. R. Antulay, Vasant
Sathe, and others—at the same time have favoured centralization of power
in New Delhi. Indeed, Mrs Gandhi at one time rejected a presidential
system as dangerously decentralizing. She explained that adopting one

35 Sampurnanand, Memories and Reflections, Asia Publishing House, Bombay, 1962, p.

155.
36 See ch. 2.
37 The authoris indebted to Ashis Banerjee for his insightful discussion of the subject
in “The Reconstruction of Federalism’, unpublished. Manuscript from Mr Banerjee in
the author’s possession.
38 For a fine study of Nehru’s style and of decision-making in government, see Brecher,
Michael, Nehru: A Political Biography, Oxford University Press, London, 1959, ch. 17,
‘Democracy at Work’.
 568 Working a Democratic Constitution

at the centre might lead to similar systems in the states, allowing the
latter to pursue a ‘policy of confrontation’ both with the Centre and
other states.?9

THE INDIRA GANDHI YEARS

Federalism under Nehru’s daughter may be said to have seen three

phases: 1966-73; the Emergency years, 1975-7; and the years of her
return to office, 1980-4. Mrs Gandhi’s ascension to the prime ministry
is commonly—one might say almost universally—seen as a watershed
in centre-state relations, as in other aspects of governance. During the
first phase, the Prime Minister progressed from vulnerability to pressures
from chief ministers and state Congress leaders to ascendancy over them.
The established patterns of ‘federal’ relationships within the Congress
Party and between New Delhi and state capitals were increasingly
centralized. The government’s and the party’s public utterances about
the dangers to national unity and integrity and the need for strong
central government, and the actual conduct of centre-state relations,
seem to have been designed to serve the Prime Minister’s personal, as
much as the national, interest—although social ard political fractiousness
were genuine causes for concern.
Mrs Gandhi’s election victories of 1971 and 1972 and her skills at
manoeuvre concentrated in her hands authority in the Congress, in
the central government, and in centre-state relations. Internal democracy
in the party, always at risk from ‘bossism’, as it sometimes was called,
7 ended. ‘Even the chief ministers were appointed by the Centre. No one
with a mass base was allowed to come up.’ ‘[T]he states have become
virtually the Zamindaris of the Centre ... and the Centre, too, has become
the hand-maid of the Prime Minister.’4°
Weakness in many state governments after the Congress’s defeats in
the 1967 elections contributed greatly to this condition. Defections and
floor-crossings in state legislatures had become a ‘chronic disease’,

39 See ch. 23..

Douglas Verney has expressed doubt that ‘federations like the Canadian or Indian
can become federal systems through incremental change’. As a ‘federal system’ he has in
mind the American, and he asks whether or not change to such a system is necessarily
desirable. Verney notes that the British tradition of parliamentary cabinet government,
came to India and Canada before their ‘federations’. Verney, Douglas V., ‘Are All
Federations Federal? The United States, Canada and India’ in Arora and Verney (eds),

v/ Multiple Identities in a Single State, pp. 19fF.

40 Respectively, Justice R. S. Sarkaria in an interview with the author, and Mahtab,
While Serving My Nation, p. 65.
 Terminology and its Perils 569

according to party president S. Nijalingappa. He attacked Mrs Gandhi

for her alleged contribution to these, for attempting to undermine ‘ “the
foundations of democratic life in this country” ’.4! President's Rule was
proclaimed twenty-two times during the years 1967-73.4 Four instances
involved non-Congress state governments. Several other instances
involved states in which Congress was part of coalition governments.
But relations between New Delhi and the state capitals where the Congress
had lost its majority in the 1967 elections for the most part were carried
on constitutionally. Mrs Gandhi's victory in the 1972 legislature elections
left only three small states and Tamil Nadu with non-Congress majorities.
After 1980, apart from her dismissal of the nine Janata ministries, Mrs
Gandhi succeeded in bringing down one government, in Jammu and
Kashmir, and attempted subversion of another, in Andhra Pradesh.
Otherwise, constitutional federalism worked much the same whether
Congress or opposition parties held state governments.
Increased centralization under Mrs Gandhi took bureaucratic forms.
The nationalization of industries and mines extended central government
control of the economy to the point where Mrs Gandhi’s own secretary,
L. K.Jha, would say that ‘“the worst victim of the centralization psychosis
which afflicts many government departments is the public sector” ’.43
Oversight of several ministerial functions was moved to the cabinet
secretariat and the Prime Minister’s secretariat. The Prime Minister’s
principal secretary and L. K. Jha’s successor, P. N. Haksar, coordinated
many government activities previously coordinated by the cabinet
secretary. The high degree of centralization within the government, in
the estimation of former home secretary and later governor, Govind
Narain, resulted in direct government under the Prime Minister and
the destruction of ministries’ initiative.44 The state governments’
freedom of action became correspondingly narrowed.
Mrs Gandhi took centralization in more radical directions. Under
her leadership, Parliament, in the Twenty-fourth Amendment,
empowered itselftoamend or repeal any provision of the Constitution.
And it sacrificed in the Twenty-fifth the fundamental freedoms ofArticle
19 to major provisions of the Directive Principles. Civil liberties and

41 At the Congress(O) Plenary on 21 December 1969 at Gandhinagar. AR, 22-28

January 1970, p. 9439. |
42 Dhavan, Rajeev, President’s Rule in the States, Indian Law Institute/N. M. Tripathi Pvt.
Ltd., Bombay, 1979, p. 70. At one time in 1972, President's Rule was in effect in seven states.
43 Quoted by C. Rajagopalachari in his ‘Dear Reader’ column in Swarayya, 18 March
1967, p. 29.
44 Govind Narain interview with the author.
570 Working a Democratic Constitution

the character of centre-state relations had been placed in the care of

an obedient Parliament and persons dependent upon Mrs Gandhi's
favour. Equally audacious was the 1973 attempt, in the supersession of
judges (chapter 12), to reduce the Constitution’s three branches of
government to two by neutering the Supreme Court—again with great
potential for affecting centre-state relations.*°
The centralization of authority and Mrs Gandhi’s contributions to
it evoked critical reactions early in her prime ministry. In 1968, E. M. S.
Namboodiripad told a Madras audience that a new constituent assembly
should establish a truly federal system,*° and the chief ministers of Andhra
and Orissa called for “real federalism”’.4’ The Praja Socialist Party
rejected what it thought a trend toward unitary government and called
for re-examination of the distribution of financial powers between the
centre and the states. The most weighty critique appeared as the Report
ofthe Centre—State Relations Inquiry Committee published by the government
of Tamil Nadu in 1971. This addressed itself to ‘the entire question
regarding the relationship that should subsist between the Centre and
the States in a federal set-up, with reference to the Constitution of India’,
and it would have shifted the balance in federal relations strongly toward
the states.48 (See subsequent chapters.)
Placing the country under unitary administration during the Emer-
gency self-evidently was the apogee of centralization. Mrs Gandhi and a
small circle around her largely succeeded in becoming government in
India during this phase. As a Congress general secretary of the time put

45 The Administrative Reforms Commission had reported that one of the attributes
of ‘federalism classicly’ is the courts’ authority to interpret the Constitution ‘and to resolve
conflicts ... between one unit and another and between a unit and the Union’. ARC,
Report of the Study Team, p. 4.
A few years later, former Chief Justice Subba Rao said that the Supreme Court was
‘the balance wheel of the Constitution’. Swarajya Annual Number, 1971, p. 184d.
46 AR, 1-7 July 1968, p. 8400.
47 AR, 12-18 February 1969, p. 8771.
48 From the government order establishing the committee. Report of the Centre-State
Relations Inquiry Committee (hereafter Rajamannar Report), Government of Tamil Nadu,
Madras, 1971, p. 1.
Called the Rajamannar Committee after its chairman, P. V. Rajamannar, former Chief
Justice of the Madras High Court and later chairman of the Fourth Finance Commission,
the committee was established on the suggestion of Tamil Nadu Chief Minister A. N.
Annadurai in 1968 to recommend a redistribution of powers because the ‘strength of
the Centre lay in the strength of the states’. AR, 5-11 August 1968, p. 8459.
The Rajamannar Committee recommended making the Rajya Sabha into a truly
‘federal’ Upper House with equal representation for each state, while continuing to
support the parliamentary system. Rajamannar Report, p. 225.
 Terminology and its Perils 571

it, ‘The chief ministers became subedars of the Centre’*?—whether they

were members of the Congress or opposition parties. While she ruled
largely outside the Constitution, altering the text of the Constitution’s
centre-state relations provisions proved to be another matter. The Swaran
Singh Committee confined itself to recommending that the centre have
authority to control its own police forces when operating in a state and
that ‘education’ be moved from the State to the Concurrent Legislative
List. Both recommendations were embodied in the Forty-second Amend-
ment (chapters 16 and 17). The Prime Minister’s refraining from press-
ing for changes in the Constitution’s federal provisions may have been
due to her wish not to reinforce the widespread perception that she in-
tended her authoritarian grasp on the country to be permanent. Or, it
may have been because the Emergency demonstrated that the centre’s
reach was extensive enough without altering the Constitution.
Federalism’s final phase, in the period of this book, coincided with
Mrs Gandhi’s return to office in 1980. It saw relations between the central
and state governments at their most tormented since independence—a
condition that would endure into the 1990s. In general, her policies
worsened instead of calming the difficult situations in the Punjab, Kashmir,
and the Northeast. Her reaction to the ‘constitutional revolt’ of opposition
party chief ministers was to ‘sidetrack’ it by appointing the Sarkaria
Commission. The chairman of that commission thought Congress's, |
dominance of centre-state relations over the years had been detrimental. © a
n Ag ‘This personalized style of functioning, which has been at its peak since)»
\yer 4 1969, inhibited the growth of a federal culture which is the sine qua non 2 eo
ae” of the health and proper working of a two-tier democratic polity,’ thought =» 4
Justice R. S. Sarkaria.°° wr

THE JANATA YEARS

The Janata phase of federalism was marked by the central government's
unwise dismissal of Congress goverments in the states, by strengthened
regional political parties, and most importantly by its primary mission,
to redress the Emergency’s excesses. In the Forty-third and Forty-fourth
s.
Amendments, Janata began curbing excesses in centre-state relation
the
With the help of Congress votes, it repealed the article permitting
without
central government to deploy its paramilitary forces in a state
restrictions
the state government’s permission, and it placed stringent

49 4 R. Antulay interview with the author.

d book, sent to the author
50 From Justice R. S. Sarkaria’s Preface for an unpublishe
by Justice Sarkaria in 1995.
 572 Working a Democratic Constitution
on the President’s power to declare emergencies. President’s Rule was
limited to six months unless extended by Parliament. Relations between
New Delhi and the states were comparatively untroubled during Janata’s
two years in office.

NEHRU AND MRS GANDHI COMPARED

Indira Gandhi’s and Jawaharlal Nehru’s different approaches to issues

of national unity and integrity and to the machinery of centre-state
relations arose from personality and situation. For each, situation initially
was the more important. Nehru had national stature and authority and
power when he became Prime Minister. Mrs Gandhi had to acquire
them; an inherited mantle provided scanty covering. Nehru had
opponents after 1951, but no competitors. When troubled and in doubt
about national affairs, he had old colleagues to whom he could and did
turn. Mrs Gandhi—with no close colleagues and surrounded by either
competitors or persons intending to use her for their own purposes—
had no such sources of support. She felt isolated and alone. Nehru’s
mistakes would be tolerated, if bemoaned. Mrs Gandhi’s mistakes would
be turned against her, threatening her hold on power. Therefore, Nehru
could govern more openly and democratically, tolerant of dissent as a
politician and as an administrator. For Mrs Gandhi, a closed style of
operation, less democracy and more centralization—a tighter rein on
_ power—were, she believed, necessary for her continuation in office.
ws’ aaan had inherited the centralized processes of the Congress Party,
a “a which he increased little, while increasing centralization in government,
particularly through socialist developmental policies. Mrs Gandhi would
build from this foundation.
Their personality differences, in essence, related to self-confidence
and views of power. Nehru had abundant self-confidence, along
with
leavening self-doubt, and a lively sense of humour. Mrs Gandhi
apparently had little selfconfidence—and wit but little humour.>! Persons
or nations who cannot laugh at themselves will not bring perspective
to
their power. Nehru, then, could see his power as a means. For Mrs
Gandhi,
power might be a means; certainly it was an end—apparently an end
in
51 Sheila Dhar, wife of P. N. Dhar and a noted classical singer
saw a different side of
the Prime Minister. She ‘had a puckish sense of humour which
her own life wasn’t very
hospitable to ... . There was definitely a sporting and fun-lov
ing person in her that did
not often get a chance to emerge’. Dhar, Sheila, Here’s
Someone I'd Like You to Meet, Oxford
University Press, New Delhi, 1995, p. 240. This memoi
r describes a number of persons of
whom Mrs Gandhi is only one.
 Terminology and its Perils 573
itself, for she seems seldom to have used power to pursue national
achievement. Power was something she dared not lose. Nehru several
times contemplated relinquishing it, to the consternation of his
associates.
Combined, situation and personality translated into performance.
While a centralizer for the purposes of policy and programme imple-
mentation, Nehru worked to strengthen the effectiveness of the
country’s centralized federalism and to establish the institutions and
spirit of democracy. Although he could and did take undemocratic ac-
2 jsions, he was a democrat by conviction and understood that at some
point over-centralization crosses into authoritarianism. Conversely,
Indira Gandhi removed collegiality from the central government’s func-
tioning, tamed Parliament and the Congress state governments, and
drastically weakened whatever federal structure the Congress Party
had—all in the name of the social revolution. She over-centralized for
personal political survival, seemingly unconcerned with the effect this
had on the institutions of democracy and federalism. She was unrepen-
tant after the Emergency that her over-centralization had become
authonitarianism. In contrast, the stature she had gained with her people,
her firm grip on power, and her strength of character served the nation
well in many domestic situations. This was true, above all, during the
war with Pakistan in 1971. Her situation made her a brilliant political
tactician, but by personality she was not a nation-builder, although her
longevity in office and her wide popular appeal contributed to national
consolidation.
 Chapter 28

THE GOVERNOR'S ‘ACUTELY

CONTROVERSIAL’ ROLE

The governor is the ‘linchpin of the constitutional apparatus of the

state’, reported the Sarkaria Commission in 1988. His role ‘has emerged
as one of the key issues in Union-State relations’, the commission
continued, and he has been criticized for want of ‘impartiality and sagacity’
and for being used by the central government ‘for its own political
ends’.! Twenty years previously the Administrative Reforms Commission
had expressed the view that the President’s authority to appoint and
remove governors departed from the federal principle.?
A number of former governors have criticized the institution. The
highly respected L. P. Singh, formerly home secretary as well as a
governor, wrote that the governor’s office had ‘undergone devaluation
and even debasement’. Governors had been accused of political
partisanship and for acting as ‘agents of the Central government, and
not as holders of an independent constitutional office’, Singh said.>
Former governor and cabinet minister C. Subramaniam believed that
the governor had ‘become a party appointment’, serving the party rather
than ‘the interest of the nation’.* B. K. Nehru, as we have seen once

1 Sarkaria Report, vol. 1, pp. 115, 120.

Vv Article 155 provides for the governor’s appointment by the President. Article 163
provides for his ‘discretion’ within the Constitution and for the state government's council
of ministers to advise him, but the governor decides ‘in his discretion’ whether or not
the Constitution requires him to act in his discretion.
2 ARC, Report of the Study Team, p. 273. The report continued that governors chosen
in such situations were ‘as likely as not’ to be chosen not for their ability but for other
considerations, including ‘his willingness to endure an abnegation of his role ... .’
Therefore, the institution ‘has languished from the incognizance it has suffered’. Ibid.
3 Singh, L. P., “Guide, Philosopher and Friend’ in Sorabjee, et al., Sage or Saboteur,
p. 37. Other contributors to this important book were SoliJ.Sorabjee, Govind Narain,
E. M. S. Namboodiripad, Sunanda K. Datta-Ray, Dharma Vira, P. Upendra, and Tavleen
Singh.
4G, Subramaniam Oral History Transcript (1990 interview ‘SL. No. 1, ‘A’, draft’, p.
14) made by the Rajaji Institute for International and Public Affairs, Hyderabad. Copy to
the author kindness of G. R. S. Rao.
 The Governor’s ‘Acutely Controversial’ Role 575
governor of Kashmir and Gujarat, described governors as ‘burnt out’,
as ‘superannuated members of the ruling party for whom a governorship
was a kind of luxurious retirement’.° The Bangalore Seminar of Experts
reported in 1983 that, on more than one occasion, governors had been
‘made to function as an agent of the Union Government’.®
The governors acting as a body have themselves expressed conflicting
views. Meeting during the Nehru years, they agreed that in certain
circumstances ‘the governor can function as an agent of the government
of India’.’ Meeting during Mrs Gandhi’s prime ministry, governors
declared themselves innocent of acting as ‘agents’ of New Delhi. ‘[T]he
Governor, as Head of State, has his functions laid down in the Constitution
itself, and is in no sense an agent of the President... . In the framework of
the Constitution as it is conceived, there is no power vested in any authority
to issue any directions to the Governor or lay down any code of rules for
his guidance,’ said the report of the Committee of Governors.®
India’s experience with ‘governors’ was millenia-old. Classical
emperors from the Maurya period onward to the Mughals appointed .
‘governors’, viceroys, and princes etc. to administer outlying districts and
to collect revenues, manifesting a degree of imperial cohesion, if not
more centrally controlled administration. With the consolidation of the
British empire in India in the 1850s, governors became directly subordinate

Subramaniam went on to say that a convention was required to remedy this condition
and that governors should have been out of ‘active party politics’ for three to five years,
thus eliminating from contention any active politician who had been a central cabinet
minister or a state chief minister or a person defeated in a parliamentary election—
appointed governor because ‘you want to [do] him some favour ...’. Ibid.
In the Constituent Assembly on 31 May 1949, piloting the debate on the Draft
Constitution Article 131, T. T. Krishnamachari said we do not wish this or any other article
in the constitution, ‘to make the Governor of a Province an agent of the Centre at all’. J
CAD, vol. 8, no. 12, p. 460, Reprinted by the Lok Sabha Secretariat, New Delhi, no date.
Its pagination will vary from the original edition of the CAD.
5 B. K. Nehru; ‘The Role of Governor Under the Indian Constitution’ in Silver Jubilee,
Gauhati High Court, Souvenir Committee, Guwahati, 1974, p. 56.
6 Bangalore Seminar Report, JCPS, Special Number, 1984, p. 400.
7 Proceedings of the Conference of Governors, 1956, p. 11. K. M. Munshi Papers,
NMML.
8 ‘The Role of Governors’, report of the Committee of Governors (hereafter Governors’
Report), President's Secretariat, New Delhi, 1971, pp. 8-9.
President V. V. Giri suggested the formation of the committee to the November 1970
Conference of Governors, and six days later he ordered the committee established and
appointed its members, all governors: Chairman Bhagwan Sahay, Jammu and Kashmir;
Bengal; and
B. Gopala Reddi, Uttar Pradesh; V. Vishwanathan, Kerala; S S. Dhavan, West
Ali Yavar Jung, Maharashtra.
 576 Working a Democratic Constitution
to the Governor-General, or Viceroy, but with arbitrary powers of their
own that leaders of the independence movement often would find
[vexing: As a result, members of the Constituent Assembly hotly
debated the authority the new constitution should give governors as
they weighed their goal of curbing executive power against the aim of
protecting national unity by having a central government appointee
|_at the head of the state government.!° The result of their efforts was
a governor appointed by the President and serving at his ‘pleasure’.
He was to act, like the President, as a constitutional sovereign, reigning
but not ruling with the advice of the chief minister and the council of
ministers. The governor also was given authority to act in his ‘discretion’,
but these occasions largely were unspecified in the Constitution. In
theory discretionary authority was subject to constitutional conventions;
yet continuing controversies showed these still to be in formation. Here
has lain the rub, and the topics of this chapter.
The Supreme Court twice has delivered rulings on the governor’s
constitutional status. The Constitution embodied the British parliamen-
tary system, and the status of governors—and the President—corresponds
to that of the monarch in the United Kingdom, the Court has said.!!
More definitively, it ruled unanimously in 1979 that because a governor
is appointed by the President and holds office at the President’s pleasure
‘does not make the Government of India an employer of the Governor.
/ The Governor is the head of the State and holds a high constitutional
_ office which carries with it important constitutional functions and duties
and he cannot, therefore, be regarded as an employee or servant of the
Government of India.’!*
Criticisms of governors’ performances in office neglected to men-
_ tion something the writers knew, that the Constitution had given the
;governor a clear responsibility as the central government's representa-
tive in and its link with the state government. One of his functions has

9 ‘There had been so much prejudice against the special powers of Governors who
had all been appointed by the British crown and were representatives of the Viceroy ...’. H.
V. R. Iengar, ‘Vallabbhai Patel’, a memorial lecture given at Surat, October 1973, p. 13,
unpublished. Copy of the text given to the author kindness of Mr Iengar’s son, H. V. R.
lengar.
10 See Austin, Cornerstone, ch. 5.
11 Shamsher Singh v Punjab 1975 (1) SCR 814.
12 Hargovind v Raghukul Tilak AIR 1979 SC 1118. The Court elaborated saying that
the governor ‘is not amenable to the directions of the Government of India, nor is he
accountable to them for the manner in which he carried out his functions and duties.
His is an independent constitutional office which is not subject to the control of the
Government of India.’
 The Governor’s ‘Acutely Controversial’
Role 577
been to keep the President informed of local conditions and develop-
ments. From 1948 onwards, governors sent ‘Fortnightly Letters’ to the
President—typically full, often frank, and sometimes critical assessments
of the chief minister, the state government, and local conditions. Some
governors shared their letters with the chief minister—Pandit Pant
thanked Governor K.M. Munshi for doing so—and President Prasad and
Radhakrishnan typically sent the letters on to Nehru, who sometimes
sent them on to his cabinet ministers.!4 So the governor’s relationship to
the central government should be measured in degrees. To keep the
governor functioning constitutionally, as defined by the Supreme Court,
three approaches were recommended.

Gubernatorial Independence
The first of these approaches had to do with the appointment of the
governor, the second with his security of tenure, and the third with
prohibiting government-offered inducements that might prejudice
the governor’s behaviour in favour of the central government. The
appointments approach had two aspects: the definition of the
appropriate qualifications and the process that might produce more
independent governors. For Prime Minister Nehru, ‘merit’ was the
principal criterion, to which he added two others: ‘appointment of a
person from the same province should be avoided, the other is that a
Governor should not have more than one full term of office’.!4 No one

13 4 number of these letters are in the private papers in the Nehru Memorial Library;
H. K. Mahtab discussed them in his Oral History Transcript, NMML, p. 228.
B. K. Nehru thought that governors sharing the letters with chief ministers destroyed
their utility; hence governors had resorted to reporting orally to the President and the
Prime Minister during their visits to Delhi. Nehru, ‘The Role of the Governor’, p. 57.
When it came to reporting to New Delhi on the politics of and internal developments
in the states, the Intelligence Bureau’s wide network outreached the governor’s. Leaving
aside the ethical aspects of domestic political spying, the IB’s ‘intelligence’ often was
irrelevant to—and occasionally harmful to—sound governance.
14 Letter to chief ministers dated 18 May 1952. NLTCM, vol. 2, p. 611. Nehru added
that these ‘should be made into firm conventions’. As ‘constitutional head’, the governor
cannot ‘override or interfere with the decisions of his Cabinet’. He should, however, be
kept in full touch with the administration, see all important ministerial papers, and ‘give
his advice’ whenever he thinks necessary, Nehru wrote. The governor should stay in
touch with the people and pay special attention ‘to the backward classes, tribal people
etc ... . He is a symbol of the State ... [and] to dishonour him is to dishonour onself as
part of the State’"—which Nehru said with particular reference to the Opposition in Madras
walking out of the assembly during the governor’s address in 1952. Ibid., p. 612.
578 Working a Democratic Constitution

disagreed about merit, and the literature and utterances of the earlier
years listed qualifications like ‘eminence in some field’, ‘learned’,
‘impartial’, ‘of sound judgement’, and ‘above politics’.
There were many recommendations concerning process, especially
during 1967 and after when governors had to deal with coalition and
otherwise unstable governments resulting from the Congress defeats
in the elections of that year. The Administrative Reforms Commission
and K. Santhanam recommended strengthening the convention that
the central and the state government should consult about appoint-
ments.!° Consultation ‘almost [as] a convention had been the early
practice’, according to Nehru’s Law Minister, Asoke K. Sen.!© The
Rajamannar Committee, Soli Sorabjee, the BJP, Janata Party, and the
Karnataka government would have made consultation mandatory.!7 Ap-
pointments from panels of nominees also was suggested. The Commu-
nist Party of India, the Srinagar meeting of opposition parties, the West
Bengal government, and the Bharatiya Janata Party favoured appoint-
ment from a panel prepared by the state legislature, with the latter two
advocating that actual selection be made by the Inter-State Council
(for this council, see chapter 30).18 Former Solicitor General Soli

15 ARC, Report of the Study Team, p. 292. Santhanam cited in Narain and Sharma, ‘The
Emerging Issues’, p. 181.
16 Asoke K. Sen, ‘Role of Governor in the Emerging Pattern of Centre-State Relations’,
JCPS, vol. 5, no. 3, 1971, p. 257.
The desirability of consultation with state chief ministers had been expressed in the
Constituent Assembly—for example by T. T. Krishnamachari, who said on 31 May 1949
that the Prime Minister’s nominee would be subject to the chief minister’s preference.
CAD, vol. 8, no. 12, p. 462.
17 Rajamannar Report, p. 221; Sorabjee in Sorabjee, et al., Sage or Saboteur, p. 20; BJP
Election Manifesto (s), 1980, 1984. For Karnataka government see Sarkaria Report, vol. 2, p.
230. Karnataka called for amending Article 155 to require consultation.
18 For the CPI, see ‘The Programme of the Communist Party of India (1968)’ in
CPI’s Stand on Major Issues, CPI, New Delhi, 1985, p. 137; Srinagar Statement on Centre-State
Relations, cited in JCPS, Special Number, p. 410; Sorabjee, Sage orSaboteur, Tamil Nadu to
Sarkaria Commission, in Sarkana Report, vol. 2, p. 486; West Bengal to Sarkaria Commission,
ibid, p. 600; the BJP’s view in ibid., p. 620.
Both the Tamil Nadu and West Bengal memoranda to the Sarkaria Commission
recommended abolition of the office of governor, and their other recommendations
were fall-back positions in case abolition was not forthcoming. Others had recommended
abolition of governors: the Praja Socialist Party in 1954, the CPI in 1962 and 1971, and
the government of Andhra Pradesh in its memorandum to the Sarkaria Commission.
The Communist Party Marxist, in its critique of the Forty-second Amendment, had
called for governors to be elected by state legislatures.
The Governors’ Report (footnote 8), did not mention appointment of the governor
 The Governor’s ‘Acutely Controversial’ Role 579
Sorabjee recommended panels of candidates chosen by a high-level
body such as one composed of the Speaker of the Lok Sabha, the leader
of the Opposition, and the Chairman of the Rajya Sabha. The Tamil
Nadu government suggested a panel of four names be submitted to the
President by the chief minister.
The Sarkaria Commission declared consultation with chief ministers
about gubernatorial appointments unexceptionable and that ‘effective
consultation’ between the Centre and chief ministers should be prescribed
by amending Article 155.!9 But it believed that appointing governors
from panels was not a ‘workable’ proposition.?? It recommended that a
governor be eminent, come from outside the state of his appointment,
be ‘not too intimately connected’ with its politics, and not recently have
‘taken too great a part in politics generally’. A politician of the party
governing in New Delhi should not be appointed to a state governed by
another party.
During the Nehru years, the governor’s selection and functioning
had been less controversial for several reasons: the generally higher
calibre of the individuals selected, the comparatively harmonious
condition of centre-state relations, and the stature of many of the chief
ministers. Many of these, as ‘national leaders of great prominence’
rendered their governor a ‘nullity’.2! Also, during these years, governors

and the Bangalore Seminar on Centre—State Relations said only that the Inter-State Council
should play a ‘crucial role’ in centre-state relations involving governors.
Although the Congress, as long the dominant party at the centre, attracted the bulk
of the approbrium, the Janata government when in power in New Delhi ‘further reinforced
... the impression that Governors were political appointees ... when ...in 1977 ...[it] started
filling fn gubernatorial vacancies with former Congress(O) partymen’. Mody, Nawaz,
‘Role of Governor Since 1967’, JCPS, Special Number on Centre-State Relations, 1986,
p. 97.
19 Sarkaria Report, vol. 1, p. 124.
20 Tbid., vol. 1, p.122.
If different parties governed in a state and at the centre, the commission explained,
‘deadlock’ over the nominee might result. Moreover, the basic principle of responsible
government would be violated were ‘the union cabinet ... made to share...[appointment]
with a state functionary not answerable to Parliament for its action’. Ibid., p. 123.
21 Nehru, B. K., ‘The Role of the Governor’, p. 54. The ARC study team concurred
with this view. ARC, Report of the Study Team, p. 273.
As examples, B. K. Nehru cited the chief minister of Bihar in 1947 (then called
premier) refusing to show the governor certain documents despite Sardar Patel’s
intervention, causing the governor to resign; and Pandit Pant as premier of Uttar Pradesh
amending the Rules of Business to deprive the governor of all official sources of
information. Ibid.
In the 1973 lecture cited in footnote 9, H. V. R. lengar, who worked closely under
580 Working a Democratic Constitution

sometimes simply were by-passed as the central government or the

Congress Working Committee communicated directly with the chief
minister or to him through the president of the Provincial Congress
Committee.
The governor’s tenure came to assume importance as a ‘federal’
issue because it was believed widely that the central government used
uncertainty of tenure, which included transfer to another state, to in-
fluence his decisions. (Throughout this discussion the reader will rec-
ognize the parallels with issues of judicial independence.) “The exer-
cise of the power to remove or transfer a governor must cause grave
disquiet in the public mind,’ thought H. M. Seervai.2? L. P. Singh agreed,
saying that ‘functicning with the apprehension of dismissal or transfer
... without his willing consent’ may make it difficult for the governor ‘to
function with complete impartiality and as an independent constitu-
tional authority’.2? Dharma Vira believed that governors should be re-
moved from office only by a process of impeachment resembling that
for Supreme Court judges to prevent their being ‘completely at the
mercy of the Centre’.*4
The Sarkaria Commission recommended that the governor’s five-
year term ‘should not be disturbed except very rarely and that too, for
some extremely compelling reason’. Should a governor be transferred
or his tenure terminated, the central government ‘may’ lay an explana-
tory statement before Parliament. The commission’s analysis of the ten-
ure issue was more telling than its recommendations: ‘[T]he
ever-present possibility of the tenure being terminated before the full
term of five years can create considerable insecurity in the mind of the
governor and impair his capacity to withstand pressures, resist extrane-
ous influences and act impartially in the discharge of his discretionary
functions.’2°

Patel and greatly admired him, refers to the Rules of Business incident. Patel wished to
codify which papers should routinely be submitted to the governor, but because the
governors could not enact the draft rules without the chief ministers’ concurrence and
because most, if not all the chief ministers refused, ‘the Governors continued to be figure
heads’. lengar, “Vallabbhai Patel’, p.13. When K. M. Munshi was UP governor, his relations
with Pant were, in general, both cordial and effective. See Pant’s friendly letter to Munshi
dated 13 December 1954, when Pant left UP to become central home minister. K. M.
Munshi Papers, Microfilm Box 56, file 143, NMML.
22 Seervai, Constitutional Law, vol. 1, p. 1070.
23 Singh in Sorabjee, et al., Sage or Saboteur, p. 42.
The BJP would have barred transfers entirely.
24 Dharma Vira, ‘The Exercise of Discretion’, ibid., p. 88.
25 Sarkaria Report, vol. 1, p. 125.
 The Governor’s ‘Acutely Controversial’ Role 581
The All-India Congress Committe(I), e defending the record of
Congress governments, thought that the governor’s five-year term carried
‘no legal or constitutional guarantee’ and ii was unnecessary to secure
tenure. Since independence, exercise of the President’s ‘pleasure’ in
abridging terms had ‘been used very ... rarely ... [and] where such power
was exercised there were justifiable, valid and compelling reasons for the
President so to act’.?®
Contrary to the AICC(I)’s claim, analysis of the length of tenures
tells a different story, although allowances must be made for illnesses
and other factors not contemplated by the Constitution. According to
the Sarkaria Commission, of the sixty- six gubernatorial tenures between
1947 and 31 March 1967 thirty-two lasted the full five-year term. Of the
eighty-eight tenures, for the period from 1 April 1967 to 31 October
1986, only eighteen lasted for five years. The commission concluded
that ‘during the latter period, premature exits from office occurred at
a much faster rate and relatively fewer governors completed their normal
term of office compared to ... the former period’.2’
As the central government was thought capable of influencing gover-
nors through pressures, it was thought, also, to use various inducements
to affect their independence. These might be offers of post-governorship
jobs in government, such as heading a commission, or support while
seeking political office. To prevent this, the Administrative Reforms and
Sarkaria Commissions recommended that an ex-governor should not
‘take part in politics’,2° although the latter thought that a former gover-
nor might run for Vice-President or President.?? The Tamil Nadu gov-
ernment and the Bharatiya Janata Party told the Sarkaria Commission
that former governors should not again hold government office. The
commission, itself, went to the heart of the matter—money—when it

26 Ibid., vol. 2, p. 667.

27 Ibid., vol.1, p. 125.
The author’s own (crude) analysis of governorships from 1953 to 1985 indicates that
some 167 individuals served as governors—not counting Manipur, Mizoram, and
Meghalya, which often shared a governor with Assam. Of these governors (again, the
figures are approximate), two served ten years, seventeen served six to eight years, twenty-
one served full five-year terms, and fifteen served for four years. Thus, about thirty-five
per cent of governors remained in office three years or less, although a handful were
transferred to governorships in other states. Twenty-five persons served for only a year.
The states having had the most governors from 1953-4 to 1985 are: Andhra Pradesh,
thirteen; Bombay/ Maharashtra, fourteen; Orissa, eleven; and Punjab, twelve. In the case
of Bombay/ Maharashtra, this means governors lasted, on average, about two years.
28 ARC, Report of the Study Team, pp. 292-3.
29 Sarkaria Report, vol. 1, p. 135.
582 Working a Democratic Constitution
re-
recommended that incumbent governors be promised ‘reasonable
tirement benefits’ to strengthen their ‘capacity to act with due objectivity
and impartiality and independence’ .*9

Discretionary Authority of the Governor

having
The ramifications of the governor, asa constitutional head of state,
undelineated power to act in his discretion have been very troublesome.
The Constitution defines the governor’s discretionary authority only in
regard to certain tribal matters in the five northeastern states and when
his authority extends to an adjoining Union Territory.*! Otherwise, if
and when he acts in his discretion, the Constitution provides that only
the governor shall be the judge of his discretionary action.2* The
Constitution thus left unanswered questions vitally important under a
parliamentary system: who should the governor invite to form a
government when no political party has a majority in the legislature?;
under what circumstances may he summon, prorogue, or dismiss the
legislature?; has he authority to dismiss a ministry and invite another
person to form a government; can he, in his discretion, reserve for the
President’s consideration a bill passed by the legisiature?
Confronted with these questions, often in a political crisis, the governor
had little in the way of guidance for answering them. He has been the
advance guard in these constitutional skirmishes. The constitutional

30 Thid., p. 127.
3) Articles 239, 371A, and the Sixth Schedule. Governors may act upon presidential
orders according to portions of Articles 371B through 371D, and 371H—each dealing
with the affairs of states in the Northeast. Additionally, under Articles 256, 257, and 258,
the governor may not act on the advice ofhis ministers if it is contrary to directions given
by the central government. See Sen ‘Role of the Governor in the Emerging Pattern of
Centre-State Relations’, p.258. Nor, of course, may a state government act contrary to
orders of the President under the Constitution's emergency provisions. There has been
little controversy about the governor’s discretion under these provisions.
Governors were also given ‘special responsibility’ for certain matters (such as dealing
with tribal peoples and establishing separate ‘development boards’ for parts of Maharashtra
and Gujarat Article 371). Yet, this is not to mean that ‘the decision is to be that of the
Governor to the exclusion of his Ministers’. It does mean ‘a sphere of action in which it will
be constitutionally proper for the Governor, after receiving ministerial advice, to signify his
dissent from it and even to act in opposition to it if, in his own unfettered judgement, he is
of opinion that the circumstances of the case so require’. Governors’ Report, p. 13.
32 According to Article 163(2), ifaquestion arises about whether or not a governor
is required to act in his discretion ‘the decision of thé governor in his discretion shall be
final’ and his action ‘shall not be called in question on the ground that he ought or
ought not to have acted in his discretion’.
 The Governor's ‘Acutely Controversial’ Role 583
conventions of the British system were known only remotely,*? and it is
not certain that ail governors were enamoured of them—nor, necessar
ily,
were leaders in New Delhi. The few early occasions in the states when
these questions arose were inadequate preparation for the unstable
governments of 1967 and later. They would not arise for the President
until 1979 and Janata’s fall.54 The governor’s ‘discretion’ provided a large
opportunity for the centre to work its will in a state, which was a recipe
for confusion and ill-will.
The first controversial use of a governor’s discretionary power came
in Madras in 1952. In the first general elections, the Congress Party
won 152 seats of the 375 in the legislature, but a United Front led by T.
Prakasam gained 166 seats and claimed the right to form the govern-
ment. The long-time Congressman and governor, Sri Prakasa, rejected
Prakasam’s claim, and invited C. Rajagopalachari to form a government.
But Rajagopalachari had not even been elected to the legislature, so
Prakasa nominated him to the Upper House, which elected him leader
of the Congress Legislature Party, making him eligible to become chief
minister. Rajagopalachari had the necessary majority after sixteen

33 An Instrument of Instructions for governors—derived from the 1935 Act—was

included in the 1948 Draft Constitution of India, but it did not address the issues described
here and was not included in the 1950 Constitution.
34 Instability in state governments was rife. During 1967-70, there were some 800
defections, of whom eighty-five per cent crossed the floor affecting government’s majorities.
‘A good number of these defections take place because of the promise of reward of office
or other official patronage,’ according to the Governor’s Report. In an elaboration of this
assessment, and seemingiy in contradiction to it (although this may be accounted for by
the inclusion of defections in the Lok Sabha), the committee said that an analysis of the
names of 768 defections out of a toial of 1,240, from March 1967 to August 1970, revealed
that 155 had been rewarded ‘with the office of Cabinet Minister or Minister of State or
Deputy Minister or Parliament Secretary ... [and] apart from the reward ofoffice, defections
were being secured by other means not too honourable’. Governor’s Report, pp. 24-5.
In an excellent study of defections and related matters (Kashyap, Subhash, and Kashyap,
Savita, The Politics of Power, National Publishing House, Delhi, 1974, p.ix), the following
figures are given. ‘During 1967~73 some 45 State Governments were toppled in quick
succession with as many as 2, 700 cases of defection by legislators. Over 60 per cent of
legislators all over the country were involved in the game—many of them changing their
affiliations more than once and some of them as many as four or five times within a year.’
Between the first and fourth general elections (1952-67), there were only 542 cases
of defections. Sarkar, ‘The Office of Governor’, p. 20.
The Constitution (Thirty-second Amendment) Bill, intended to reduce defections,
was introduced in the Lok Sabha in May 1973. Six months later it was referred to a Joint
Committee, which was unable to report it out by the end of 1976, and it lapsed several
months later at the end of the session. For the text of the bill, see Politics ofPower, pp. 680 ff.
Vv The anti-defection Fifty-second Amendment became law in February 1985.
 584 Working a Democratic Constitution

members of opposition parties crossed the floor, allegedly in response

to inducements.
Prime Minister Nehru and President Rajendra Prasad opposed Ra-
jagopalachari’s becoming chief minister. Nehru wrote to Rajagopalach-
ari that ‘the one thing we must avoid is giving the impression that we
stick to office and that we want to keep others out at all costs.’?° Prakasa
and Rajagopalachari justified their position on the ground that ‘ideolog-
ical democracy’ was insufficient justification to ‘leave patches of rebel
areas [i.e, under the Communists in Telengana] and go into disorder’ .2®
Unable to undo events, Nehru accepted them. K. M. Munshi, then gov-
ernor of Uttar Pradesh, congratulated Prakasa. ‘You have saved the coun-
try ... No one else could prevent the South from landsliding into Com-
munism except our great and noble friend [Rajagopalachan] ... 37 Look-
ing back, L. P. Singh disagreed: Prakasa’s and Rajagopalachari’s actions
‘did not augur well for political or constitutional morality in the years to
come’, he said.8
With this as background, we may proceed to ‘discretion’ in West
Bengal during 1967, with its emphatic demonstration of the need to
: establish conventions. A short chronology of the events will provide the
setting for the constitutional issues they presented.
The Congress Party not having gained a majority in the 1967 general
elections, a breakaway Congressman, Ajoy Mukherjee, formed the Bangla
Congress and assembled a United Front (UF) and the governor, Padmaja
Naidu, invited him to form a government. ByJuly, a few defections, serious
lawlessness over food supplies, and the beginning of the Naxalite-
easant-cum-tribal revolt rendered the government shaky. During the
second half of September, the Congress Working Committee sent former
Home Minister G. L. Nanda to reconnoitre. It was widely believed that

35 Nehru to Rajagopalachari, 29 January 1952. Cited in Gopal, Nehru, vol. 2, p. 220.

Nehru told local Congressmen that the electoral loss was not a failure of the
Constitution but the government’s, due to incompetence.
This was the first time a nominated member of the legislature had been elected
leader of the legislature party and subsequently become chief minister.
‘Inviting a nominated member to form a Government is open to the ... criticism of
being against the spirit of the parliamentary system... (for the member) has no electoral
support and, therefore, no mandate from the electorate,’ said the governors in their
report. Governor's Report, p. 35.
36 Thid., p. 221.
37 Letter dated 25 June 1952. K. M. Munshi Papers, Microfilm File 140, NMML.
38 In Sorabjee, et al., Sage orSaboteur, p. 45.
Asoke Sen thought Prakasa was ‘entitled to use’ his discretion on the occasion. Sen,
‘Role of the Governor’, JCPS, vol. 5, no. 3, p. 267.
 The Governor’s ‘Acutely Controversial’ Role 585
he was exploring toppling the UF government so that Congress could
return to office in combination with Ajoy Mukherjee and his breakaway
Bangla Congress.*9 Such did not happen, and Mukherjee denied
collusion with the central government.
Soon thereafter, the UF government lost its majority in the legisla-
ture when cabinet minister and old Congressman P. C. Ghosh defected,
taking seventeen others with him. On 6 November P. C Ghosh announced
he was willing to form a government with the Congress. That day Dharma
Vira, who had been governor since the summer, wrote to Chief Minister
Mukherjee, saying that he doubted his majority and advising him either
to resign or to summon the assembly as soon as possible—one report
said by 30 November—to test his strength there. The next day, Mukherjee
replied that his cabinet had ruled outa session before 18 December.?? A
week later Dharma Vira, after a consultation in Delhi, sent a letter to
Mukherjee again urging the legislature’s earliest summoning, a senti-
ment he conveyed personally two days later.
Two things happened on 17 November. The governor asked that the
assembly be convened on 23 November, alleging that the proper func-
tioning of the Constitution might be impaired by further delay. Mukherjee
refused and sent a letter to the President requesting him to seek an
advisory opinion from the Supreme Court on seven questions. The first
two were: ‘“Has the governor the authority to dismiss the Council of
Ministers without taking the verdict of the Assembly ...”’? and, can the
governor, on the basis of information available to him, * “in his individual
discretion, dismiss the Council of Ministers”’?4! Three days later the
President, on the advice of the cabinet’s Political Affairs Committee,

39 Kashyap, Politics of Power, p. 525. This description of events is drawn from Kashyap
and from the AR, 10-16 and 17—23 December 1967; from Shiviah, ‘The Governor in the
Indian Political System’, J/CPS, vol. 2, no. 4, 1968, pp. 94ff; from Bhambri, C. P, ‘Federal
Politics: A Trend Report’, in A Survey of Research in Political Science, vol. 2, Political Process,
Indian Council of Social Science Research/Allied Publishers Pvt. Ltd., New Delhi, 1981,
pp. 67ff; Nakade, Shivaj, ‘Article 356 of the Constitution: Its Use and Misuse’, /CPS, vol. 3,
no. 4, 1969, pp. 102 ff; Dhavan, Rajeev, ‘President's Rule in the States’, p. 87; Dharma
Vira Oral History Transcript, NMML; and Dharma Vira, ‘The Exercise of Discretion’,
Sorabjee, et al., Sage or Saboteur.
40 Before the cabinet took the decision, state Advocate Genera! A. K. Datta was
‘understood’ to have advised Mukherjee that the governor could not constitutionally
dismiss the govenment because of Ghosh’s resignation and the reported defections, but
the governor could legitimately dismiss the government if he thought it had lost its
majority. Kashyap, Politics of Power, pp. 533-4.
41 The text of the questions is given in AR, 10-16 December 1967, p. 8062, and in
Kashyap, Politics of Power, pp. 536-7.
586 Working a Democratic Constitution

replied that the questions did not require reference to the Supreme Court.
The next day, 21 November, Dharma Vira issued a proclamation
dismissing the UF government on the ground that it was constitutionally
improper for the ministry to continue in office when it had lost its
majority, and that night he swore in P. C. Ghosh as chief minister. On
Ghosh’s advice, the governor summoned the assembly to meet on 29
November. The United Front charged the governor with acting on the
advice of the central government and committing ‘“rape on the
Constitution” ’.42 In New Delhi, Home MinisterY. B. Chavan said that
Ghosh’s government was legitimate and that at no time did the central
government give Dharma Vira instructions. The Calcutta High Court
on 6 February upheld the Mukherjee government's dismissal.** In
Calcutta, riots followed Ghosh’s oath-taking.
Remarkable developments continued when the assembly convened
on 29 November. Dharma Vira addressed it briefly, ‘amidst scenes of
great disorder’, he recalled. The Speaker adjourned the session sine
die, declaring that Ghosh’s ascendency was illegal and therefore the
summoning of the assembly on his advice was illegal. Only the assembly,
could decide on the continuance of a ministry. Dharma Vira prorogued

42 AR, 10-16 December 1967, p. 8061.

43 Hindu, 28 November 1967.
K. Santhanam remarked that ““it is difficult to believe that he [the Governor] had to
travel twice to New Delhi to make up his own mind”’. Quoted in Shiviah, “The Governor’,
p 102. On the other hand, an individual so swong-minded as Dharma Vira, holding also
such firm views about Ajoy Mukherjee’s behaviour, may have needed little urging from
New Delhi to act as he did.
In Dharma Vira’s opinion, Mukherjee’s ‘delaying tactics ... [were] to postpone the
summoning of the House tiil he was forced to do so under the provisions ofArticle 174 (1)
of the Constitution’. In the meantime, ‘every effert was made to browbeat the dissenters’ to
make them return to the fold or to keep them out of the assembly when it was convened.
Dharma Vira, “The Exercise of Discretion’, in Sorabjee et al., Sage orSaboteur, p. 84.
In his Oral History Transcript, Dharma Vira confirmed this version and added that
Ajoy Mukherjee intended to use the constitutional provision allowing six months between
assembly sessions, which, ‘to my mind, was not in accord with the spirit of the constitutional
practice... if that period is utilized for unsavoury practices in trying to win over members
of the assembly by coercion, bribery or corruption of various types’ (pp.124 ff). In this
instance, a ministry that ‘had prima facie lost its majority’ was trying to remain in power
and I had ‘only two alternatives: to allow ... matters to go from bad to worse’ or ‘to
exercise the discretionary powers vested by the Constitution in the Governor to withdraw
the pleasure of the Governor from the ministry ... [I]t was becoming pretty obvious that
if the calling of the Assembly was delayed for six weeks, there would be no verdict of the
Assembly’, for either the opposition would be prevented from voting or if they voted
against the government ‘there would be very unseemly incidents ...’. Ibid., pp. 126-7.
44 Mahabir Prasad Sharma v Profulla Chandra Ghosh AIR 1969 Calcutta 198ff.
 The Governor’s ‘Acutely Controversial’ Role 587
the assembly the next day. By the time it met again on 14 February 1968
P. C. Ghosh’s majority was in question, and when the governor attempted
his Address ‘pandemonium and rowdyism’ drove him out the back door.
The following day, to the relief of all parties, he recommended the
imposition of President’s Rule—for the first time in the state since
independence. Ajoy Mukherjee again became chief minister after the
1969 elections in which Congress lost badly, and shortly after this Dharma
Vira was replaced.
These events, and those in several other states during 1967, raised
the questions asked above and produced conflicting responses to them.
In New Delhi, Home Minister Chavan said the governor had acted
correctly: Mukherjee had lost his majority. The Law Ministry reportedly
had advised the cabinet that ‘the relative strength of the (state)
government could be tested only on the floor of the House ... (and) the
governor had no power to summon the State Legislature against the
wishes of the Chief Minister’. Yet a Law Ministry spokesman also was
reported to have said that the governor could dismiss a ministry ‘on the
basis of “any material or information available to him”’.#°
Although the Supreme Court had held that the governor’s power to
appoint the chief minister, like the President’s to appoint the Prime
Minister, was ‘unfettered’,4° what were the criteria for selection? The
governor, like the Queen in England, thought M. C. Setalvad and M. C.
Mahajan, should invite the “most influenual Jeader of the party or group
commanding a majority in the House of Commons”’. In parallel with
this, Setalvad continued, where the former governing party had lost its
majority the governor should call upon the leader of the Opposition to
form a government.*’ Mrs Gandhi’s government concluded from the

45 AR, 26 November-2 December 1967, p. 8037.

46 When upholding Governor Dharma Vira’s dismissal of the Mukherjee government
and appointment of P. C. Ghosh as the Chief Minister in Mahabir Prasad Sharma v Profulla
Chandra Ghosh.
47 Setalvad emphasized the Queen’s ‘impartiality’ when making her selection. He
and Mahajan were responding to a request for advice that Home Minister Chavan had
made because of a situation that had arisen in Rajasthan early in 1967. The two men, and
also P. B. Gajendragadkar, A. K. Sarkar, and H. M. Seervai, had been asked for their views
about what the governor should do when ‘no party or pre-existing coalition of parties
secures a clear majority’. The text of Chavan’s letter, the replies to it, and the summary of
them laid on the table in the Rajya Sabha on 13 May 1970 are reproduced in Kashyap,
The Politics ofPower, pp. 619ff. It is curious that these documents were laid on the table of
the Lok Sabha three years after they were received. Setalvad was quoting O. Hood Phillips,
Constitutional and Administrative Law and Ivor Jennings, Cabinet Government. He opposed
the governor interviewing members of the Opposition to learn their loyalities.
588 Working a Democratic Constitution

opinions Setalvad, Mahajan, and others had submitted that the governor
should invite to form a government the person ‘found by him as a result
of his soundings’ to be the most likely to command a stable majority in
the legislature.*® Several years later, the Committee of Governors expressed
the view that the governor should act upon his ‘informed and objective
appraisal’ of who commanded a majority and that the largest party in the
legislature had no ‘absolute right’ to be invited to form a government.*9
The AICC(I) reposed even greater faith in the governor—perhaps
indicating its hope for continued Congress governments in New Delhi,
which would appoint party sympathizers. The governor could ‘verify’ the
majority ‘by virtue of his experience’. That the power to select the chief
minister ‘has been vested in such a high dignitary is by itself aguarantee
for the proper exercise thereof’, the AICC(I) modestly said.>°
As to dismissing a chief minister and his government, there was a
good deal of agreement that the governor could dissolve the assembly
only on the advice of the chief minister and that questions about a
ministry’s majority should be settled on the floor of the House ‘and not
by extra-legislative parleys’.>! The Rajamannar Committee, the Bangalore
Seminar, the Administrative Reforms and Sarkaria Commissions, and the
Committee of Governors agreed.>* The Conference of Presiding Officers
of Legislatures resolved that a chief minister’s loss of confidence ““shall,
at all times, be decided in the assembly” ’.°?
But what if the chief minister refused to advise, or delayed, summoning
the assembly to test his strength? In such a pass, the governor in his
discretion may dismiss the ministry, said the Committee of Governors.°*

48 Kashyap, The Politics ofPower, p. 619.

49 Governors’ Report, pp. 14, 28.
50 Memorandum to the Sarkaria Commission. Sarkaria Report, vol. 2, p. 667.
51 Sorabjee, ‘The Constitution and the Governor’, in Sorabjee et al., Sage or Saboteur,
p.27.
52 Rajamannar Report, p. 222; Bangalore Seminar, pp. 400-1; Sarkaria Report, vol. 1,
pp. 135-6; ARC, Report of the Study Team, p. 281; Governors Report, p. 55.
The West Bengal government, citing the United Front government's dismissal, would
deny the governor had authority to dismiss a ministry, and the Tamil Nadu government
would vest all the governor's powers in the chief minister. Sarkaria Report, vol. 2. pp. 401,
and 486, respectively.
53 Resolution adopted 7 April 1968. Kashyap (ed.), Kaul and Shakdher Practice and
Procedure of Parliament, p. 124.
But Asoke Sen held that if postponing the test of strength of a ministry that had
‘manifestly’ lost its majority would cause ‘serious trouble and disturbances’, then the
governor could dismiss the ministry. Sen, ‘Role of the Governor’, p. 278.
54 Governors’ Report, pp. 38-9.
 The Governor’s ‘Acutely Controversial’ Role 589

Dharma Vira would have amended the Constitution to empower the

governor to summon the legislature without the otherwise constitutionally
obligatory ministerial advice.°° The Rajamannar Committee believed
that the governor ‘of his own motion’ could summon the assembly, as
did the Sarkaria Commission ‘in the exigencies of certain situations’.
The Committee of Governors, which might have been expected to think
differently, said the legislature ‘cannot be summoned without or against
the advice of the chief minister ...’.°° The Conference of Presiding
Officers advocated a convention that, were there ‘undue delay’ in
summoning the legislature, a majority of members wishing to discuss a
no-confidence motion could request the chief minister to call a session,
and he would be obliged to so advise the governor.?”
Finally, there were the questions: had a governor to dissolve the
assembly on the advice of a defeated chief minister, or one who had lost
his majority? Could he dissolve the assembly, in his discretion, if the chief
minister had lost his majority and no one else could command one?
Again, there was uncertainty. Law Minister P. Govinda Menon said thata
convention should establish whether a governor must dissolve a legislature
on the advice of a defeated chief minister.°8 ‘No definite answers’ exist,
according to Kaul and Shakdher’s definitive Practice and Procedure in
Parliament, as to whether a prime minister or a chief minister who has
lost the confidence of the House or is in danger of doing so should advise
dissolution, and, if he does so, should his advice be accepted.°9 Asoke
Sen believed it would be ‘very risky’ to follow the British precedent that a
defeated chief minister could advise dissolution and the calling of an
election. |
The need to codify constitutional proprieties for governors, whether
through law or by convention, should by now be evident. It is remarkable
that governors, cast upon a sea of constitutional uncertainties when
few had been near the water before, stayed afloat and that this juncture
of the federal and parliamentary systems survived their flounderings
without crippling damage. Suggestions for codification have been made

55Sorabjee, et al., Sage orSaboteur, p. 85.

56 Rajamannar Report, p. 222; Sarkaria Report, vol. 1, pp. 135-6; Governors’ Report, p. 45.
In Asoke Sen’s opinion, the governor may ‘direct the calling of the Assembly’ if the
chief minister refuses to do so. Sen, ‘Role of the Governor’, pp. 277-8.
57 Kashyap (ed.),Kaul and Shakdher Practice and Procedure of Parliament, p. 161.
| Ministry: AR, 26 November-2 December 1967, p. 8037; Govinda Menon, ibid.,
58 aw
3-9 September 1967, p. 7898.
59 Kashyap (ed.), Kaul and Shakdher Practice and Procedure, pp. 172-3.
60 Sen, ‘Role of the Governor’, p. 266.
 CEL lows s [heredenl

590 Working a Democratic Constitution

from time to time. Asoke Sen suggested the central and state governments
collaborate to devise a Code of Conduct. The Rajamannar Committee
advocated amending the Constitution to enable the President to issue
Instruments of Instructions to governors concerning their relations with
the central government, and how they should act ‘as head of the State’,
including in their ‘exercise of discretionary powers’.°! Such suggestions
are not too late to follow, for the rules continue to be uncertain. The
absence ofa well-established understanding of the limits of the governor's
role as a constitutional sovereign is an open invitation to personal
prejudice and to central manipulation of a state’s affairs—whether in
more ‘normal’ parliamentary situations, as described in this chapter,
or in instances of President’s Rule, as described in the next. As the
country moves toward more participative, decentralized governance,
reformed practices are essential. Unless governors conduct themselves
strictly as constitutional monarchs (whether by personal self-discipline,
or as the result of constitutional requirements), the office is likely to
prejudice cooperative centre-state relations and effective administration,
and risk the viability of the democratic Constitution.

Reservation of Bills
The interlocked issues of gubernatorial discretion and central interference
in state affairs also arose from a governor’s constitutional authority to
reserve a bill enacted by the state legislature ‘for the consideration of the
President’—whose assent then would be necessary for the bill to become
law.°? ‘Reservation’ of bills became an irritant in centre-state relations
because of the principles involved and the volume of bills reserved over
the years. The common perception that governors frequently reserved

|
bills on New Delhi’s instructions was an exaggeration, because chief
ministers themselves sometimes advised reservation, and the Constitution
provided that bills pertaining to items on the Concurrent List must be

61 Rajamannar Report, p. 222.

62 Article 200 provides that a bill passed by a state legislature shall go to the governor,
who may then give or withhold his assent or ‘reserve’ the bill for the President. The governor
may return a bill to the legislature with recommendations, but must assent to it if it is re-
passed, with or without incorporating his recommendations. The governor is required to
reserve a bill if, in his opinion, it would derogate from the powers of the high court.
Article 201 provides that if the President does not assent to the reserved bill he may
return it to the governor; that the legislature shall reconsider the bill and the President's
message concerning it; and thatif the bill is re-passed, with or without change, it shall go
again to the President for consideration.
 The Governor’s ‘Acutely Controversial’ Role 59]
cleared with the centre. Nevertheless, the governor did act in his
‘discretion’ often enough to be accused of interfering in the state’s affairs.
Resentmentat the initial act of reservation was compounded by the often
tedious process of gaining presidential assent, which was attributed to
purposeful central ‘foot-dragging’, not solely to bureaucratic slowness.
One and two years for action was not uncommon. Twelve years was not
unknown.° A good deal of consultation between the central and state
governments took place without reservation to avoid conflicts concerning
items on the Concurrent List.
Discontent over reservation of bills appeared early. In 1952 Morarji
Desai, then chief minister of Bombay, complained that the governor’s
having sent the state’s Essential Supplies Act to the President and then
asking him to delay his assent ‘was inappropriate ... very extraordinary
and would set a very awkward precedent...’.© President Rajendra Prasad
commented unfavourably that during the years 1953-6, 1,114 of the 2,557
laws enacted by state legislatures had come to him for consideration.®®
From 1977 to November 1985, a similar number of bills was reserved
for the President, and all but ninety received assent.®” Presidential assent
could benefit a state bill. For example, during the early 1950s, presidential
assent was thought to strengthen the ‘validity’ of state zamindari
abolition bills. Also, a state law having presidential assent might be more
likely to survive court challenge, having received the Law Ministry’s
approval during consideration.

63 Mody, ‘Role of Governor Since 1967’, p. 109— citing a report in the Indian Express.
According to the newspaper Sunday Mail, in 1990 seventy-four bills were pending with
the President. Fifty-eight had been pending for over one year, seven for three, two for five,
three for six, and two for seven years. The newspaper reported that the Home Ministry
recently had replied to the Karnataka government’s query about the status of its Educational
Bill, 1983, that the bill was “under examination”’. Cited in Hegde, Ramakrishna, ‘Plea for
a “United States of India”’, Mainstream, 8 June 1991, p. 11.
64 Central laws prevail if there is such a conflict, according to Article 254. vA
65 In a letter to a former chief minister, B. G. Kher, then Indian High Commissioner
in London, dated 19 August 1952. B. G. Kher Papers, Part III, File 29, NMML.
66 In his speech inaugurating the Indian Law Institute, of which he was Patron-in-
Chief, in 1958. JILI, vol. 1, no. 1, p. 8.
Professor Alice Jacob estimated that in this early period some seventy-five per cent
of the bills had dealt with items on the Concurrent List and had been reserved on the
chief minister’s advice. One hundred and sixteen bills were returned without assent.
Jacob, Alice, “‘Centre-State Governmental Relations in the Indian Federal System’, //L/,
vol. 10, 1968, p. 592.
“4
67 Sarkaria Report, vol. 1, p. 152. Fifty-five bills were pending when the report was
published.
68 Santhanam, Union-State Relations in India, pp. 22-3.
592 Working a Democratic Constitution

The governor’s authority to reserve a bill in his ‘discretion’ was as

generally conceded as it was widely disliked. A Law Ministry Note
of 1969 for the cabinet argued that ‘“the Governor could by and large
act in his discretion” ’,°? and at various times H. M. Seervai, Durga Das
Basu, Soli Sorabjee, Alice Jacob, and former President R. Venkataraman
agreed.’ Ever objective about Presidents with Congress backgrounds
(and at the time it was Zail Singh), the AICC(I) said that gubernatorial
discretion was to avoid state—central conflicts and that any delay in the
President’s decision would be ‘neither wilful nor with any ulterior
motive’.’! K. Santhanam seems to have been one of the few who believed
that the governor could not reserve a bill over the opposition of his
ministers. He could only veto a bill he disliked.’2
The perception in many state capitals that New Delhi was otherwise
meddlesome reinforced the belief that reservation of bills often
amounted to central interference in state affairs.’? The Administrative
Reforms Commission said that only in ‘special circumstances’ such as
‘patent unconstitutionality’ should the governor act in his discretion.’4
Criticism of reservation increased during and after the seventies. The
Rajamannar Committee recommended omitting from the Constitution
all provisions for reserving bills for the President.’°> The West Bengal
government’s submission to the Sarkaria Commission said that if reser-
vation of bills continued to be provided for in the Constitution the

69 Kashyap, Anibiran, Governors’ Role in Indian Constitution, Lancers Books, New Delhi,
1993, p. 529—quoting the Statesman of 23 April 1969.
70 Jacob, ‘Centre-State Governmental Relations’, p. 593. Her hypothetical example
was if a communist-dominated Government of a state passed a bill ‘which would
undermine the democratic institutions therein’, the governor can exercise his discretion
in reserving it for the President. Ibid.
For Seervai, see his Constitutional Law, vol. 2, p. 1721; for Das Basu, ‘see his Shorter
Constitution of India, 10th edn. p. 462 ; for Sorabjee, see Sage or Saboteur, p. 24; and for
Venkatraman, see his Rajaji Birthday Lecture, cyclostyled text, p. 9. Das Basu also said a
governor could keep a bill pending ‘indefinitely’.
71 Tn its submission to the Sarkaria Commission, Sarkaria Report, vol. 2, p. 666.
72 Santhanam, Union-State Relations, p. 24. Santhanam added that if a bill, like the
Kerala Education Bill, creates great public controversy, and the central government tells
the governor formally or informally to reserve it, the governor's position becomes ‘diffi-
cult’. Ibid.
73 For example, an Indian Law Institute Study of 1968 concluded that for the period
1956-67, ‘“the centre does try to dictate its policies to the states” by attaching certain
conditions to the President's assent’. Cited in Sarkaria Report, vol.1, p. 152.
Professor Alice Jacob conducted the study.
74 ARG, Report of the Study Team, p. 277.
75 Rajamannar Report, p. 217. The one exception to this the committee would allow
was Article 288 (2), dealing with state imposition of taxes on water or electricity
.
 The Governor’s ‘Acutely Controversial’ Role 593

governor should have one month to ‘make up his mind’ and the Presi-
dent six months. If the President had not assented to a bill by then and
the legislature re-enacted it, it would become law.’© The 1983 Srinagar
statement by opposition parties said that there should be no guberna-
torial ‘interference’ excepting bills affecting the high court.’’ The
Bharatiya Janata Party in a nice twist, said that before Parliament passed
a bill dealing with an item on the Concurrent List, it must consult the
state government.’®
The Sarkaria Commission declared its view to be that Article 200
did ‘not invest the Governor ... with a general discretion’ in reserving
bills. Only in ‘extremely rare’ cases should the governor reserve a bill in
his discretion; and not ‘merely because, personally, he does not like the
policy embodied in the bill’.’? To reduce delays in presidential decision-
making, the commission advocated a series of ‘streamlining procedures’
such as presidential disposition of bills sent for consideration within
four months of their receipt.8°
Here, also, some guidelines for the governor’s exercise of his discretion
seem desirable.

76 Sarkaria Report, vol. 2, p. 601.

77 Statement on Centre-States Relations, p. 4.
78 Sarkaria Report, vol. 2, p. 620.
79 Tbid., vol. 1,-p. 148.
issued
80 The commission recalled that in 1952 and 1978 the Home Ministry had
for consideration ‘should
instructions to other central ministries that bills sent to them
In a splendid
be very expeditiously considered’ and returned to it ‘within a few days’.
piece of understatement, the commission commented that these instructions were not
being strictly followed. Ibid., p. 153.
 Chapter 29

NEW DELHI’S LONG ARM

Central governments in all federations have means to make their will

felt in the capitals of the country’s constituent units. As has become
apparent in earlier pages, these are unusually extensive in India. This
has been true, as we also have seen, because of at least four factors: the
country’s initial top-down federalism, anxieties about national unity
and integrity, the policies, strategies, and machinery for economic and
social development, and the desires of political parties and individuals
to exert power nationally. This chapter will review New Delhi’s most
far-reaching power, that exercised through the use of articles in the
Constitution’s Emergency Provisions (Part XVIII). These fundamentally
alter the character of federal relations—in particular, the central
government’s authority to administer in a unitary fashion the entire
country or a single state. The latter, President’s Rule, placed the governor
and the Congress Party’s ambitions at the heart of controversy. Another
article that has caused considerable anxiety in state governments,
although seldom invoked, authorizes the central government to send
its forces into a state to repel aggression, to protect it against internal
disturbance, and to ensure that governance is carried on according to
the Constitution. This authority and that to proclaim an emergency
could be accompanied by further laws denying civil liberties. An article
not among the Emergency Provisions authorizes the Centre to give the
state ‘directions’ for the conduct ofits affairs.! Abuse of this provision,
too, has been feared.

Y 1 Under Articles 352, 353, 354, 358, 359, and 360, the President may declare and
implement a nation-wide emergency that, in essence, gives the Parliament and the central
executive authority to over-ride all state governments and govern the country from New
Delhi. He also may declare what is in effect an emergency in a single state, called President's
Rule (Articles 356, 357). President’s Rule allows him to assume the powers of any authority
in the state excepting the legislature, which would exercise its powers under the authority
of Parliament. But Parliament may confer on the President the powers of the legislature,
completing central control over the state. As an emergency changes the entire country to
a unitary system of government, President's Rule is unitary government ‘one on one’,
individual treatment, so to speak. Article 355 empowers the central governinent to dispatch
central police and paramilitary forces into states to keep order. As will be seen below, a
 New Delhi’s Long Arm 595

National Emergencies
The central government’s authority to proclaim national emergencies
has been thought necessary, deprecated, and damned. The emergencies
of 1962 and 1971 were accepted as necessary, or at least uncritically,
because national integrity and security were thought to be in danger.
In 1962, the Chinese moved deeper into the Northeast after the
retreating Indian army (incursions there had begun a year or more
earlier) and patrolled more actively in Ladakh (where in 1957 China
had finished building a road across Aksai Chin from Tibet to Sinkiang).
Public nationalist response to Chinese actions demonstrated immediately
that the country’s unity was not at risk. The 1971 emergency also was
popular when declared, supported by public euphoria over Bangladesh's
independence and Pakistan’s defeat.
The criticisms of each emergency that swelled within a few years of
its proclamation, made alike by prominent citizens and opposition
parties, were directed less at the manner in which daily centre-state
relations were conducted under the Constitution’s distribution of.
powers—which changed little—than at one-party authoritarianism
nationally. Critics suspected that these extraordinary powers were being
continued for partisan purposes and might become permanent. Mrs
Gandhi’s eventual decision in 1968 to let lapse the 1962 state of
emergency may have been aimed at bolstering the Congress’s popularity
in Parliament after the party’s defeats in the 1967 elections. The Janata
government revoked the December 1971 emergency in March 1977,
three days after Morarji Desai »ecame prime minister. Mrs Gandhi
revoked her 1975 Emergency on 21 March 1977 after her election defeat
had become clear and before she left office.
Tha: the public, once convinced that neither national security nor

convention of uncertain durability required New Delhi to consult the state government
before dispatching these civil forces. There were no such constitutional or conventional
‘in aid of the
requirements for deployment of the army as such, but were army units used
civil power’ the convention supposedly applied.
a state
Under the closely related Articles 256 and 257, the central government may give
laws made by Parliame nt and so that the state’s
‘directions’ to ensure its compliance with
central governme nt’s executive power.
executive does not ‘prejudice the exercise’ of the
received from the central
Under Article 365 if a state fails to comply with any ‘directions’
be carried on ‘in
government, the President may declare that its government cannot
ground for a declaration
accordance’ with the provisions of the Constitution—the principal
s, the President may
of President’s Rule. Under Article 360 of the Emergency Provision
or any part’ is threatened and then
declare that the financial stability or credit ‘of India
’.
direct the state to observe the ‘canons of financial propriety
 596 Working a Democratic Constitution
integrity were threatened, directed its disapproval of the two emergen-
cies’ dangers to democracy and liberty showed how the seamlessness of
the web had become accepted. The people were far more advanced as
? democrats than was their government—as often is the case in (liberal
' democracies.\The Bar Association of India and the Indian Civil Liberties
Bulletin, among many other examples, strongly attacked the emergen-
cies’ enhanced powers of preventive detention and denials of other fun-
damental rights. While citizens demanded the revoking of the 1962 and
1971 emergencies, the central government continued them, apparently
finding it convenient to have available their extraordinary powers, in-
cluding those of the Defence of India Rules.”
Mrs Gandhi’s Emergency was in its own category. Although briefly
popular among the intelligentsia and the general public for stilling the
political tumult extending from Bihar to Gujarat, it rapidly lost adher-
ents once the evident was understood: no threat to national security,
unity, or integrity existed within the country—as Home Ministry reports
had informed the Prime Minister. Nor, the threat from the ‘foreign
hand’ being imaginary, was there risk of ‘destabilization’ or aggression
from abroad. Absent any constitutional justification, the Emergency’s
attacks on the institutions of democracy—Parliament, the judiciary,
freedom of speech—and the widespread oppression through denial of
personal liberty were so starkly self-serving and dictatorial that the Janata
Parliament, and its unchained Congress Party members, amended the
Constitution to prevent future abuse of the articles providing for the
/ imposition of emergencies. As seen in Part IV, the Forty-fourth Amend-
ment did away with ‘internal disturbance’ in Article 352 as justification
for declaring an emergency in favour of the more specific term, ‘armed
rebellion’, and it placed other restrictions on the President’s power to
declare an emergency and to suspend the Fundamental Rights during
one. Justice H. R. Khanna convincingly had made to Prime Minister
Morarji Desai the case for not doing away with the emergency power
altogether, but the Janata government’s revision of Article 352 and other
articles in the Emergency Provisions so calmed fears of their abuse

J. 2 Anxieties about the potential for the emergency powers’ misuse had been
expressed
before they first were used in 1962. The Praja Socialist Party in its 1955 ‘Lucknow Thesis’
said that the emergency powers should be narrowly defined. The Communist
Party of
India called for their abolition in its 1962 election manifesto—months before the
India-
China war brought the declaration of emergency. The Rajamannar Committe
e said that
Article 352 should be used only if there were ‘war or aggression by a foreign
power’. An
‘internal disturbance’ should not give cause for an emergency unless
it were comparable
to repelling external aggression. Rajamannar Report, p. 223.
 fv? Pa Rey SARE 4) lias Cr Be rperes

New Delhi’s Long Arm 597

that none of the major documents published during the constitutional
revolt of the eighties or submitted to the Sarkaria Commission even
mentioned them. ‘In all the evidence before us’, the commission re-
ported, ‘no concern has been expressed about the structure of Article
352 as it now stands ... [A] pprehensions of its possible misuse are no
longer rife.’
Perhaps the most significant aspect of Mrs Gandhi’s Emergency was) “jx.
that it was not rooted in ideology and therefore totalitarian. Had it | a 3”
been, the country would have experienced centralization far more
fundamental than existed in centre-state relations and far more
extensive in its denial of personal liberty. This spoke of a non- ideological
prime minister, which Mrs Gandhi was, by all accounts, and of an
essentially non-ideological society. Itsdemocracy and social revolution
uur
were ideals. Its ‘socialism’ was not doctrinaire. Only in the RSS, the
Jana Sangh, and a few other militant Hindu groups, was there the germ edere 7
of an ideology that might be employed to dominate the country. But
neither the leaders of other parties nor citizens equated religious fervour
with sound government. Mrs Gandhi’s secularism prevented her from
such use of religion. Citizens’ loyalty to the Constitution, along with
the very diversities of society that had been thought threatening to
integrity, denied totalitarianism a hold until the Constitution’s curative
character could reassert itself.

Centra! Forces in a State

The central government has authority to bend state governments to the
Constitution, or to its own will, beyond those to declare an emergency
and to proclaim President’s Rule (see below). Article 355 prescribes the
centre’s ‘duty’ to protect states ‘against external aggression and internal
disturbance’ and to ensure that state government is carried on ‘in
accordance with the ... Constitution’. The related Article 257 provides
that the state’s executive power shall not impede the exercise of central
executive power, and the centre may give ‘directions’ to the state to ensure
this. The bare working of the two articles leaves a grey area in which

3 Sarkaria Report, vol. 1, p. 165.

4 Items on the Seventh Schedule’s legislative lists support these articles.
In the original Constitution, items | and 2 on the Union List reserved for the central
government the power to make laws for the defence of India, the defence forces, and ‘any
other armed forces of the Union’. A third item 80 restricted to the centre the authority to
extend ‘the powers and jurisdiction’ of a state police force ‘to exercise powers and jurisdiction
outside that State’, but this is not to be done without the consent of the state to which the
 ¢ '

cs
\"
'

~ oy, ¢ »

|
Working a Democratic Constitution
. *

Ye ** 598
*
)

political ambition and definitions and judgement can and do play a critical
role. To this uncertainty we shall return shortly. But, first, the history.
The central government frequently has employed Article 355 as an
enabling provision authorizing it to send the army and its own police
and paramilitary forces and the police forces from other states into a
state in the expectation of the need to preserve order, as well as actually
to preserve order or to restore it—‘in aid of the civil power’, as itis called.
On all but three occasions from 1950 to 1985, however, this was done
with the receiving state’s consent, according to the Sarkaria Commission
Report. The first of these exceptions came in September 1968. Then, some
two-and-a-half million central government employees throughout India
threatened to strike. The government outlawed the strike with the
Essential Services Maintenance Ordinance, and sent the state
governments directives under Article 257 about dealing with the strike.
UF “Mrs Gandhi, unannounced, sent units of the Central Reserve Police Force
(CRPF) into Kerala to protect central government properties. Outraged,
ftChief Minister E. M. S. Namboodiripad demanded the CRPF’s withdrawal,
only to be informed by New Delhi that under Article 355 it was not obliged
either to consult with or get the concurrence of the state government
before sending in its forces.> In West Bengal twice the following year,

police force is to be sent. No provision in the body of the Constitution or on the legislative
lists obliges New Delhi to obtain a state government’s concurrence before sending its own
forces into a state. On the State List is public order, but not including the use of national
defence forces ‘or any other armed forces of the Union in aid of the civil power’. ‘Police’ is
a State subject.
5 The central government was fortified in this view by the opinion of the Administrative
Reforms Commission the previous year. Cited in Sarkana Report, vol. 1, pp. 196-8.
When Namboodiripad protested the central government's directive, saying he would
give directions to the state’s own police, New Delhi reminded him ofArticle 257, which
says that the central government may give directions so that the state executive complies
with laws made by Parliament. Namboodiripad retreated. Item 80 of the Union List was
not referred to.
For accounts of this Kerala affair, see Hindustan Times, 1 September to 15 October
1968; Gehlot, N. S., ‘Indian Federalism and the Problem of Law and Order’, JCPS, vol. 14,
no. 2, 1980, pp. 169-70; Gupta, D. C., Indian Government and Politics, 4th edn., Vikas
Publishing House Pvt. Ltd., New Delhi 1978, pp. 45-8; Jain, M. P., Indian Constitutional Law,
N. M. Tripathi Pvt. Ltd., Bombay, 1987, p. 356; and Narain, Iqbal, and Sharma, Arvind K.,
‘The Emergency Issues and Ideas in Indian Federalism’, in Sarkar, Union—State Relations in
India, pp. 185-8.
According to Jain, in November 1967 the central government sent a general letter to
all state governments reminding them of their obligations under Articles 256 and 257.
Should the states think they could not on their own ensure the proper functioning of
central agencies, they sliould ask New Delhi for help, the letter advised. Ibid., p. 355.
 New Delhi’s Long Arm 599

there were analogous occasions involving the protection of central

government property, using the CRPF and the Uttar Pradesh Provincial
Armed Constabulary, the latter having been stationed outside Calcutta
to protect a gun and shell factory. In this instance, New Delhi withdrew
the UP constabulary at the Bengal state government’s request.
The anxieties in state capitals so apparent in the 1980s about the
uses of Articles 355 and 257 might never have become so strong were it
not for other developments that had reinforced the states’ apprehensions
about New Delhi’s potential for coercing them. One of these was the
multiplication of central paramilitary and armed police forces. Formed
in 1949 the CRPF was to be employed ““in any part of the Indian Union
for the restoration and maintenance of law and order and for any other
purpose as directed by the central government”’.® Next came the
formation of the Indo-Tibetan Border Police in 1962; the Border
Security Force in 1965; the Central Industrial Security Force in 1969—
formed under the 1956 Companies Act; and the Railway Protection
Force (which became armed in 1985). Each of these organizations, no
matter its name, at some time was employed on domestic law and order
duties, typically at the request of the host state government. State armed
police continued to be employed outside their states on central
government orders. For example, the Punjab police was deployed in
Kashmir. BSF troops were deployed to preserve law and order in Punjab,
Jammu and Kashmir, Gujarat, and Delhi, and were used to apprehend
smugglers. Six Indo-Tibetan Border Police battalions, of a total of twenty,
did bank security duty in the Punjab during 1989-90.”
The increasing manpower of these forces also occasioned alarm.
The CRPF grew from a modest early complement to 75,000 men in
1980, and to 150,000 in 1995.8 The Industrial Security Force grew from
its initial size of 2,000 to 17,000 in 1974 and 90,000 in 1995.9 The BSF’s
C. P., ‘Role of
6 The quotation is from the 1955 CRPF ‘Rules’. Cited in Bhambri,
Weekly, vol. 13,
Paramilitary Forces in Centre-State Relations’, in Economic and Political
no. 17, p. 736.
ng to the
The precedent for creation of the CRPF and its use in the states, accordi
Sarkaria Commission, was the Crown Representative’s Police Force raised in 1939 as a
in emergencies. Sarkana
reserve to aid the princely states in maintaining law and order
Report, vol. 1, p. 200.
The Assam Rifles became a central force in 1941.
Affairs, GOI, New Delhi,
7 Home Ministry Annual Report, 1989-90, Ministry of Home
. |
p- 12.
Forces’, p. 736 and Jndia
8 According to, respectively, Bhambri, ‘Role of Paramilitary
Today, 15 April 1995, p. 97.
9 Ibid.
 600 Working a Democratic Constitution

strength was over 70,000 in 1974, and grew to 175,000 in 1995.10

According to one authority, central police forces totalled some 800,000
in 1975, about three-fourths the size of the Indian army.!! Although the
army often has been called out in aid of the civil power, creating anxieties
about the implications for civil governance and about the effect of
such duties on army morale, this has figured less in debates about
centre-state relations than police and paramilitary forces deployed by
New Delhi.
A third source of apprehension among state governments and the
public was the authority given to several of these forces to infringe civil
liberty. The act establishing the Industrial Security Force, for example,
empowered its members to arrest, without a warrant or orders from a
magistrate, persons who might commit or had committed certain offences
against public sector property.!* The 1958 Armed Forces (Special Powers)
Act—introduced initially in the Northeast and to appear subsequently in
other states—provided for the designation of geographical areas in a
state or the entire state as ‘disturbed’. In these areas the armed forces—
whether the army or other centrally controlled forces—had authority to
arrest without a warrant and to fire to kill, and they might act in this
fashion even before the area was officially declared to be ‘disturbed’.
Apprehensions on this account were greatly exacerbated by the dangerous
internal security situations—during the eighties, especially—in the
Punjab, Jammu and Kashmir, and the Northeast and the resulting
opportunities for the excessive use of force and violation of civil
liberties.

10 Thid.
'! Hart, Henry C., ‘Introduction’, in Hart (ed.), Indira Gandhi's India, p. 18. The
Economic and Political Weekly used the same figure in its issue of 1 June
1974, p. 846.
A figure of one million for the combined strength of paramilitary forces
was given by
Ganguly, Sumit, ‘From the Defence of the Nation to Aid to the
Civil: The Army in
Contemporary India’ in Kennedy, Charles H., and Louscher, Dav
J.
id
(eds), Civil Military
Interaction in Asia and Africa, E.J. Brill, Leiden, 1991, p. 22. Ganguly
reports that the army
was called out four hundred seventy-five times from 1951 to
1970 and only one hundred
fewer times from 1981 to 1984.
12 Peoples Union for Democratic Rights, Delhi, ‘Fewer Rights,
More Bullets: The
Central Industrial Security Force (Amendment) Bill’
in Desai, Violation of Democratic Rights
in India, p. 124.
V. C. Shukla, the Minister of State, Home Affairs argued in the Lok Sabha that a
properly disciplined and trained force was needed due to
the inadequacies in security at
public sector undertakings and of local police forces. Ibid.,
p. 122.
A magistrate’s authority was necessary for a state's ordina
ry police forces to open fire
on Civilians,
 New Delhi’s Long Arm 601
As though designed to impress upon the states their subservience to
central power, the 1975. Emergency produced the Swaran Singh Com-
mittee’s report followed by the Forty-second Amendment. The commit-
tee said that New Delhi should have authority to deploy its armed forces
in states under its own superintendence and control, but it softened this
with the recommendation that ‘generally ... the Centre should consult
the States if possible, before exercising this power’.!3 Much harsher was
the Forty-second Amendment’s provision. A new Article 257A made it
explicit that the central government ‘may deploy any armed force of the
Union’ or any other force ‘subject to ... [its] control’ to deal with law and
order situations and that they would not ‘be subject to the superintend-
ence or control of the State Government.’!* Placing this provision fol-
lowing Article 257 rather then after Article 355 seems to have meant
that New Delhi either foresaw state insurrections or was prepared to
bully the states into implementing its policies. This promised to be
overcentralization indeed. The Communist Party of India, the People’s
Union for Civil Liberties, and the National Committee for Review
of the Constitution, among others, in reaction to the Swaran Singh Com-
mittee recommendation and to the draft article, demanded that central
government forces either be deployed with a state’s permission or
operate under state government control after deployment. The article
in the Forty-second Amendment was in effect only twenty-eight months
because Janata repealed it in the Forty- fourth Amendment, only partly
reassuring state governments and citizens’ groups that the danger was
past.!°
The degree of apprehension about New Delhi’s misuse of these articles
was made clear during the constitutional revolt of 1983. As the Bangalore
Seminar put it, President’s Rule was enough to manage breakdowns of
law and order.!® Predictably, the AICC(I) disagreed. It told the Sarkaria

13 Swaran Singh Report, p. 13.

14 The amendment also added parallel entries to the Union and State Legislative
Lists. One of these, entry 2A on the Union List, provided for ‘deployment of any armed
force of the Union’ or any other force etc. ‘in any State in aid of the civil power ...’.
Obtaining the receiving state’s consent was not mentioned. Item 80 of this list remained
unchanged, with state consent required only for entering out-of-state police forces.
15 Although the Forty-fourth Amendment repealed Article 257A, it left untouched
the term ‘internal disturbance’ in Article 355 and did not replace it with ‘armed rebellion’,
as it had in Article 352. Apparently this was to distinguish between levels of instability in
a State.
16 Seminar on Centre-State Relations, p. 179.
The Rajamannar Committee had recommended that the CRPF could not be deployed
without a state’s request or consent. Rajamannar Report, p. 226.
 602 Working a Democratic Constitution
Commission that the Centre ‘may be armed with more powers for
protecting the unity and integrity of the nation and to prevent tendencies
to secede including powers to deal with terrorism’. 17 Within this debate
there were other apprehensions. These centred, first, around the
definition of ‘internal disturbance’ as used in Article 355 and the
judgemental decision about whether or not the disturbance jeopardized
the state government's ability to govern according to the Constitution.
Additionally, the states’ anxieties were reinforced by the commission’s
views that Article 355 ‘by necessary implication’ empowered the centre
to use force to do its ‘duty’, and that the entry on the Union List—(2A)
bestowing the power to use central armed forces ‘in aid of the civil
power’ —does ‘not necessarily imply’ that the centre can deploy its forces
only at the request of the state government.'® The commission’s view
that New Delhi could not deploy its armed forces, ‘in contravention of
the wishes of a State Government ... [in order] to deal with a relatively
less serious public order problem ... which the state government is
confident of tackling’!? cheered state leaders somewhat while still
leaving questions about the misuse of these provisions.
Understandable though anxieties in the states were, given the
as ( \-«7 awesome forces controlled by the centre and given the over-entralization
(ws of central government authority taking place over more than a decade,
gu there were other dimensions to the issue. State governments had
requested the assistance of central forces to maintain their authority in
the face of unrest far more often than New Delhi had pressured them
into accepting central armed assistance, one suspects. And central
intervention also had been arranged through negotiation. Moreover,
it was legally established practice that central forces deployed in a state
to aid the civil power—and equally police forces deployed from another
state—could go into action to maintain public order only on the
direction of officers of the state government, magistrates or senior police
officers. ‘It is the magistrate having jurisdiction who must authorize the

17 Sarkaria Report, vol. 2, pp. 663, 665.

State government and political parties were not the only ones concerned about the
swelling of federal forces. Parliament’s Public Accounts Committee professed itself ‘very
much concerned over [the] large-scale and continuous increase in unproductive expendi-
ture’ of central forces and called for an ‘urgent review’ of them. Cited in Seminaron Centre-
State Relation, Bangalore, 1983, p. 164. The expenditure rose from three crore in 1950-1 (a
crore equals ten million) to 156.42 crore rupees in 1974-5.
18 Sarkaria Report, vol. 1, p. 169.
19 Thid., p. 197.
See also Seervai, Constitutional Law, vol. 2, pp. 1565-66, 2212, 2620-29.
 New Delhi's Long Arm 603

commanding officer of the unit to act,’ said a senior Home Ministry

official.*°
No event better illustrates the complexities of applying Articles 355
and 257 and the confrontation that may arise between the central and
a state government than the crisis at Ayodhya in Uttar Pradesh in
November—December 1992. During the early months of that year, Hindu
militant parties and their ‘volunteers’ had been agitating about, and
making promises to, destroy the Babri Masjid (mosque), which allegedly
had been built upon the mythical birthplace of Lord Ram, in order to
erect in its place a temple dedicated to Ram.
The danger of violence on the spot and between Hindus and Muslims
nationally, should attempts be made to realize these promises, was
immense. The central government controlled by the Congress Party had
committed itself to protecting the mosque. Yet the UP government was
in the hands of one of the Hindu-militant parties (the Bharatiya Janata
Party), whose willingness to protect the mosque with its own police forces
was doubtful—despite its assurances that it would do so and its having
filed an affidavit to this effect with the Supreme Court on 27 November.
It seemed that New Delhi would have to use its own armed forces.
The UP government, however, refused to consent to the deployment
of central forces in Ayodhya. In New Delhi the Political Affairs Committee
of the cabinet and the cabinet contemplated placing the state under
President’s Rule and immediately thereafter moving its forces to prevent
an attack on the mosque.*! After dithering for days, Prime Minister
P V. Narasimha Rao on 24 November ordered the deployment of some
twenty-thousand paramilitary forces (CRPF, CISF, and RPF—Railway
Protection Force) at Faizabad—near, but not at, Ayodhya. As the state
government continued to resist deploying these men at the mosque and
as ‘volunteers’ filled the town, the Prime Minister continued to dither.
its
On December 6, the militants attacked the mosque. Even during
destruction state officials for a time refused to request the forces
captured the
to go into action against the mob. Ultimately, central forces
by its
mosque-temple site. President’s Rule was imposed in UP, followed
below.)
imposition in three other BJP-governed states. (See footnote 50

20 In a letter to the author.

in aid of the civil power have to
Even under President’s Rule, central forces deployed
s, under the Director General of
function under magistrates or, if the governor so direct ,
Police of the state. Ibid. on
is, the author has relied
21 For the following account of events and their analys of
le, as home secretary, was at the centre
V Codbole, Unfinished Innings, pp. 361 ff.Godbo
the events he describes.
 604 Working a Democratic Constitution
The Sarkaria Commission was clear in its recommendations about
the policy requirements of Article 355. The ‘legally permissable’ position
under the article, it said, ‘may not be politically proper’. ‘{P]ractical
considerations make it imperative that the Union Government should
invariably consult and seek the co-operation of the State Government if
it proposes ... to deploy suo motu its armed forces in that State ... the
constitutional position notwithstanding’.22 The commission said that
it would not make such consultation ‘obligatory’, but that federal forces
should be used only as a ‘last resort’. The commission also foresaw that
‘itis conceivable’ that a state government is both ‘unable or unwilling’ to
suppress an internal disturbance and may refuse to seek the aid of central
government armed forces. In such a pass, the commission continued,
the centre ‘cannot be a silent spectator when it finds the situation fast
drifting toward anarchy ...’. Then, it ‘may deploy its armed forces suo
motu to ... restore public order.’23 How apt these sentiments were:
Ayodhya took place four yeats after the commission published its report.

Political Parties and President’s Rule

The view commonly held throughout the Congress Party, and certai
nly
by its leadership, that it deserved to govern the nation by virtue of
its
V inherent capacity to do so and as its reward for having led the country
to independence, gave the party an expansive view of its respon
sibility
and the right to manage national affairs its way. Although the party
had
no monopoly on patriotism, talent and good ideas, there was consid
erable
justification for this view throughout at least the Nehru years.
The
Congress had the rationale and, through its own federal structu
re, the
means to exert its influence broadly and deeply throughout
the country.
But this dominance could lead even wise and moderate
leaders to the
pride that, sooner or later, precedes a fall.

22 Sarkaria Report, vol. 1, pp. 170, 199.

The commission further conditioned the use of centra
l armed forces by the manner
in which it defined the term ‘internal disturbance’
as used in Article 355. The framers
had intended to cover something more than ‘domes
tic violence’, the commission said.
‘[I]nternal disturbance’ should be distinguished
from ‘ordinary problems relating to
law and order ... [and] cannot be equated with mere
breaches of public peace’. Internal
disturbance is ‘an aggravated form of public disorder which endang
ers thesecurity (emphasis
in original) of the State’. Ibid., p. 170.
The commission recommended that ‘if large-
scale public disorders are frequent ... the
State Government should take on the social, econo
mic and other fronts to prevent disor-
der. (Mere strengthening of Armed Police may
not achieve the objective)’. Ibid., p. 204.
23 Ibid., p. 197.
 New Delhi’s Long Arm 605
The party’s Central Election Committee prepared
the slates of
candidates for the Lok Sabha and often for the state legisl
atures in the
states it governed. The Working Committee, beginning in
Nehru’s time,
heavily influenced who would become state ministers and
chief ministers,
especially in states where the party was weakly led. The Parli
amentary
Board, through diplomacy or pressure, worked to resolve dispu
tes within
State Congress parties and between them and state gove
rnments.
Increasingly after Nehru, according to former central cabinet memb
er
and governor, C. Subramaniam, the Congress ‘reduced the system almo
st|
to unitary government. The Congress central command selects candi
dates
for assembly elections, selects the chief minister, and approves
the
members of his cabinet,’ said Subramaniam, ‘with the result that minis
ters
owe their loyalty not to the chief minister but to the central leadership
. |
This cannot be reconciled with independent state government.’*4 The
Congress central command has changed the composition of state
ministries both by having an individual dismissed and by bringing him
or her into the government in New Delhi. An examination of the time
chief ministers have spent in office—state legislature elections in general
being held every five years—yields the following: an average Congress
chief minister before 1967 spent fifty-four months in office, after 1967,
thirty-five months in office.?° Governors, as seen earlier, had a similarly
tenuous grip on office. It is remarkable that, in such uncertainty, state
governments have performed as well as they have. As leaders of the
founding generation aged or died, and as the Congress Party looked to
Mrs Gandhi's vote-getting prowess to win elections, state governments
grew more dependent on her and the centre’s favour.
The Congress and Janata when in power also had the constitutional
device of President’s Rule through which to decide the fate of state gov-

24 C. Subramaniam in a 1994 interview with the author. He added that other parties
had acquired these characteristics.
See also Kochanek, Congress Party, throughout. Also, ‘Since 1980, many Congress
chief ministers have been unseated between elections because Indira and Rajiv Gandhi
were suspicious of strong state-level leaders and had the power to oust them when factional
fighting (which the Gandhis often fomented) became too intense.’ Manor, James, ‘India’s
Chief Ministers and the Problem of Governability’ in Oldenburg, India Briefing, Staying
the Course, 1995, p. 67.
25 Calculations for the author kindness of S. Guhan.
In some states, the turnover in chief ministers was particularly brisk. For example, in
the thirty-one years between 1954 and 1985, Bihar had fifteen chief ministers, Uttar
Pradesh seventeen, Orissa twelve; Andhra from 1954 to 1983 had ten chief ministers,
with K. Brahmananda Reddy in office for eight years. Rajasthan from 1957 to 1985 saw
eight chief ministers, with Mohan Lal Sukhadia in office for thirteen years.
606 Working a Democratic Constitution

ernments. The idea for this authority, but not its political uses, devel-
oped in August 1949, late in the life of the Constituent Assembly. The
context of the time was concern for national security: the communist
insurgency in Telengana, the demand for a Sikh state in the Punjab,
protecting Kashmir, fears thatShyama Prasad Mookerjee’s talk of annul-
ling Partition |might spark war with Pakistan, and so on. During the As-
sembly’s early months, the governor was to be given authority in his dis-
cretion to declare an emergency in his province. Pandit G. B. Pant, then
‘Premier’ of Uttar Pradesh, and independent member H. N. Kunzru led
opposition to this as dangerous to a province’s management of its affairs.
The cabinet thought it inadequate to possible need. Acting on a draft
prepared by Sardar Patel’s Home Ministry and Dr Ambedkar’s Law Min-
istry, the cabinet decided that it was the duty of the central government
to protect provinces from external aggression and internal disturbance
and ensure that they were governed according to the Constitution. Such
an ‘obligation’ should be placed on the centre, Ambedkar explained,
with opaque reasoning, so that the centre would not commit a ‘wanton
invasion’ (or, as the Sarkaria Report put it, an ‘unprincipled invasion’) of
provincial affairs. The governor’s discretionary power to proclaim an
emergency was deleted, and the President empowered to assume the
function of a provincial government with or without the governor's rec-
ommendation. Backbenchers opposed the provision, and Pandit Kunzru
said it was aimed not at peace and tranquility, but at good government,
giving the centre ‘power to intervene to protect electors from them-
selves’. Kunzru continued to oppose the concept, and K. Santhanam
and Ambedkar expressed the hope that before the President stepped in
the centre would see that the state legislature was dissolved, fresh elec-
tions held, and the province given another chance. Ambedkar added to
this that the President should warn the provincial government before
acting, thus ‘allowing the people of the province to settle matters for
themselves’.2°
The first use of President’s Rule was a far cry from the Constituent
Assembly’s intentions, growing as it did from an internal Congress
dispute. The government of the Punjab in 1951 held a majority in the
legislature, and the governor’s report to President Rajendra Prasad that
the constitutional machinery had broken down was an official fiction.
Additionally, the centre, and not the governor, had initiated the letter
to the President. Leading the Congress Parliamentary Board, Prime

26 CAD, vol. 9, p. 177, 4 August 1949, Lok Sabha Secretariat reprint. See also Austin,
Cornerstone, pp. 211-15.
 New Delhi’s Long Arm 607

Minister Nehru, against Prasad’s remonstrances, ordered Chief Minister

Gopichand Bhargava to resign despite his having a majority. Nehru
claimed that the law and order situation was worsening, but his arguments
to Prasad that Bhargava was not acting ‘straight’ and that it was inevitable
for parties to give directions to their members told a different story
(chapter 6). The national mass party had blended its interests with
questionable national needs to take over a state government. The office
of governor for the first, but hardly the last, time had been mangled
between the Congress Party and the Constitution to the detriment of
even limited federalism and of representative democracy. It was widely
acknowledged that Nehru had set the country a bad example.
The ‘main consideration’ in cases of President’s Rule, wrote a careful
observer, ‘has always been the interest of the Congress Party at the Cen-
tre’.27 ‘More often than not, this power had been exercised for political
purposes,’ said former Law Secretary R. C. S. Sarkar.*° Former Bengal
governor Dharma Vira believed that governors ‘generally’ had functioned
‘objectively’, but ‘they have been guided by the wishes of the powers-
that-be at the Centre.’ How, he asked, can governors act independently
when they ‘hold office at the pleasure of the Ministry in power at the
Centre’??? After Kerala was placed under President’s Rule in 1959 (as
the result of the Congress Party’s helping to bring the government down—
see chapter 6), B. Shiva Rao suggested to then Congress President Indira
Gandhi, that a ‘Board of Advisers’ might be constituted to ‘greatly
strengthen ... [the President’s] position ... [so that] there should not be
any impression in the public mind that in matters like this the President
is guided by the party Cabinet in power at the Centre’.° Former Chief
Justice of India K. Subba Rao wrote, ‘It is said that in issuing the said
proclamations the Governors and the President acted as the agents of
the Central Ministry ... and ... the Congress Party ... manipulated the said
proclamations in a bid to regain power in those states where it was de-
feated.’ He added something he almost certainly did not believe: “There
may or may not be any justification for this criticism.’!

Dissolving
27 Siwach,J. R., “The President’s Rule and the Politics of Suspending and
the State Assemblies’, JCPS, vol. 11, no. 4, 1977.
28 Sarkar, Union-State Relations in India, p. 68. |
29 In Sorabjee et al., Sage or Saboteur, p. 88.
Gandhi,
30 ‘Dear Indiraji’ letter dated 8 August 1959. Shiva Rao Papers, File Indira
sending the letter
NMML. Shiva Rao had spoken with Nehru along the same lines before
to Mrs Gandhi.
said, ‘[E]very time such a
31 Swarajya Annual Number, 1971, p. 184. Subba Rao also
of democracy.’ Ibid.
proclamation is issued, it is a confession of the failure
608 Working a Democratic Constitution

Evidence of central initiative came implicitly from the Sarkaria

Commission. It divided the instances of President’s Rule into six
categories, three of which are most relevant here: instances when the
ministry commanded a majority; when no chance to form a government
was given to other claimants; and when it was ‘inevitable’. Because it is
highly improbable that a governor on his own initiative would dismiss a
government enjoying a majority, and because it is unlikely that, in so
many instances on his own initiative, he would deny other claimants their
opportunity, it seems reasonable to conclude that he was acting on central
instructions. Of fifty-seven instances of President’s Rule from 1951 into
1987 (deducting from the seventy-five total the eighteen mass impositions
in 1977 and 1980), the commission thought twenty-three had been
inevitable, fifteen had been without allowing other claimants to test their
strength, and thirteen had taken place when the ministry commanded a
majority.°? Accordingly, it seems that nearly fifty per cent had resulted
from central government wishes. Of the twenty-five instances from 1967
to the spring of 1975, the Sarkaria Commission thought only nine
inevitable.
Whatever the conditions in which President’s Rule was proclaimed,
the governor typically acted not on his own initiative but on central
government instructions, sometime Home and Cabinet Secretary
Nirmal Mukarji believes. He recalls it to have been normal practice,
once the centre had decided upon imposition, for the Home Ministry
to draft a letter which the governor was to use as the basis for his
recommendation to the President.°>
During Mrs Gandhi’s Emergency, F. A. Ahmed proclaimed President’s
Rule four times. One of these the Sarkaria Commission found inevitable.
The other three well illustrate the use of Article 356 for political
purposes. In Uttar Pradesh (November 1975) and Orissa (December
1976), chief ministers H. N. Bahuguna and Nandini Satpathy resigned
under instructions from the Congress in New Delhi.*4 In UP, President's
Rule lasted only long enough for the Congress Legislature Party to elect
a new leader. In Tamil Nadu, the Dravida Munnetra Kaghagam
government under Chief Minister Karunanidhi was dismissed two

32 Sarkaria Report, vol. 1, pp. 186-9.

33 Nirmal Mukarji Draft Oral History Transcript. The imposition of President
’s Rule
in Tamil Nadu in 1991 and in Madhya Pradesh, Himachal Pradesh, and Rajasthan in
1992 also resulted from central initiative, (See closing pages of this chapter.)
34 Bahuguna reportedly did so because of Sanjay Gandhi's opposition
to him. Satpathy
had been weakened by factionalism in the state, and was unpopular
with the Gandhis.
Sanjay thought her a Communist.
 New Delhi’s Long Arm 609
months before the legislature’s term was to expire in
January 1976.
Although Karunanidhi was accused of ‘corruption, and misus
e of power
for achieving partisan ends’ ,*° closer to reality was the governor’s charge
that the ministry was guilty of ‘deliberate attempts to thwart
... national
policy ... [and] disregard of the instructions of the central gover
nment
in relation to emergency’.*© In other words, according to officials
in
Madras and New Delhiat the time, this was a ‘coup’ against
Karunanidhi
because he was not implementing Sanjay Gandhi’s and V. C. Shukla’s
telephonic instructions. Central official P. K. Dave did not administer
the state harshly under the governor, with the result that in the 1977
elections Congress did not fare so badly in Tamil Nadu as in many other
states.37
The criticism of President’s Rule that had grown to a crescendo by
the mid-1980s developed slowly before 1967, partly because there were
few instances of it, and these were primarily intra-Congress affairs. Only
twice, in Punjab and Eastern Punjab States Union in 1953, and Kerala in
1959, were opposition parties significantly affected. The Praja Socialist
Party in 1954 called for restrictions on the use of Article 356. The
Communist Party of India’s election manifesto of 1962 favoured annulli ng
President’s Rule if proclaimed when the government had a majority in
the legislature. The Administrative Reforms Commission advised that
the governor should report objectively the facts as he saw them, ‘not as
his ministers or the Centre interpret them’.?8 K. Santhanam said publicly
that unless there was a grave breakdown of law and order, ‘the imposition
of President’s Rule amounts to a grave repudiation of the democratic

% Summary of Governor K. K. Shah’s report to the President. President’s Rule in the

States and Union Territories, Lok Sabha Secretariat, p. 52.
36 Tid.
37 A few days after President’s Rule was imposed, Justice R. S. Sarkaria, then on the
Supreme Court, was appointed head of a commission to investigate Karunanidhi’s alleged
corruption. The Sarkaria Commission of Enquiry, ‘Allegations Against the Erstwhile Chief
Minister and Other Ministers of Tamil Nadu’ (published as Tamil Nadu, Sarkaria Commission
ofEnquiry, 4 vols, Tamil Nadu Directorate ofStationery and Printing, Madras, 1978), found
that many allegations of corruption—several of which dated to 1972—could not be proved
without a reasonable doubt; found evidence to substantiate the allegation that he had
abused his official position when awarding a contract; and found ‘with a preponderance
of probability’ that the Chief Minister had received large amounts of cash in the matter
of sugar supplies for-the state (vol. 4, p. 117). It presented its findings on some twenty
other allegations of misconduct.
38 ARC, Report of the Study Team, pp. 276-7.
The Home Ministry’s Annual Report for 1967-8 said that most state governments had
worked well with the Centre during that year, and the Constitution was not made just for
the party in power. AR, 15-21 April 1968, p. 8270
610 Working a Democratic Constitution

principles underlying the Constitution’.2? The most ringing indictment

of President’s Rule came from Tamil Nadu where until then it had never
been imposed, but whose citizens resented the Hindi-speaking states’
domination of the Lok Sabha and their attempts to impose their language
on the South. The Rajamannar Committee in 1971 recommended
deletion of Articles 356 and 357 from the Constitution or, failing that,
adding safeguards ‘to secure the interests of the states against the arbitrary
and unilateral action of a party commanding an overwhelming majority
which happens to be in power at the Centre’.4° The committee defined
the only condition justifying President’s Rule as ‘complete breakdown of
law and order ... when the state government is unable or unwilling to
maintain the safety and security of the people and property’.4}
The nineteen instances of President’s Rule during the 1970s (several
of which the Sarkaria Report considered ‘inevitable’), the Emergency, and
the changes made to Article 356 by the Forty-second Amendment, and
not entirely repealed by Janata, lay behind the widespread criticism of
the article heard in the 1980s.42 The Bangalore Seminar opened the
attacks, recommending that the ‘only contingency’ for the invocation of
President’s Rule should be ‘one of complete breakdown of lawand order’.
The President should consult the Interstate Council (chapter 30) before
making his decision and the Council’s advice should be laid before

39 The second Rajaji Birthday Lecture given under the auspices of the Gokhale
Institute, Bangalore. Excerpts published in Swarajya, 25 March 1967, p. 15.
40 Rajamannar Report, p. 223. In April 1974, Chief Minister M. Karunanidhi introduced
in the legislature a government resolution calling on New Delhi to effect the Report's
recommendations immediately. Hindu, 17 April 1974.
41 Hindu, 17 April 1974. K. Santhanam greeted the recommendation as an attempt ‘to
restore the Constitution in its true spirit’. Swarajya, 19 June 1971, p. 4. Chief Justice Subba
Rao reacted by saying that if no ‘reasonable man’ could conclude that a proclamation was
necessary, the Supreme Court could set it aside as a ‘fraud on power’. Swarajya Annual
Issue, 1971, p. 184.
The governors, meeting in 1971, responded that the Rajamannar criticism emanated
‘largely from a lack of appreciation of the situations which confront the Governors’, namely
the political instability ‘and the politics of defection which has so much tarnished the political
life of the country’. These developments demanded reactions not envisaged when the
Constitution was written. Nevertheless, ‘the norms of parliamentary government are best
a by’ political parties elected to office, the governors said. Governors’ Report, pp.
67-8.
42 The Forty-second Amendment extended the maximum length for a period of
President’s Rule from six to twelve months and said that any law made during the period
would remain in force until repealed. Previously, such laws would expire automatically one
year after the period of President’s Rule had ended. The Forty-fourth Amendment restored
the six-month period, but Janata left the rest of the earlier amendment intact.
 New Delhi’s Long Arm 611

Parliament.*? In October, the Communist Party Marxist at the Srinagar

meeting of opposition leaders again called for deleting Articles 356
and 357.** But the meeting’s statement confined itself to calling for
amending Article 356 so that failure to form a government would result
in elections within six months. If violence made fair elections impossible,
then the President might consult the Interstate Council and place its
opinion before Parliament for its decision about imposing President’s
Rule.*° The burden of the many submissions to the Sarkaria Commission
was that Article 356 more often than not had been misused ‘to promote
the political interests of the party in power at the Union’.*© Their
recommendations would either have deleted the article entirely from
the Constitution or severely curtailed the President’s power. The major
Congress-led states responded to Sarkaria’s questionnaires and interviews
cautiously, giving him the sense that Congress-led governments were
looking over their shoulders toward New Delhi.*”
In its memorandum to the commission, the All-India Congress
Committee(I) predictably justified the use of President’s Rule. In the
some seventy-three times it had been used up to the end of 1984, the
AICC(I) said, ‘one can justifiably assert that the power was exercised in
the larger public interest and national interest’. The memorandum
advocated restoring Article 356 to the wording of the Forty-second
Amendment. The ‘Centre cannot be a spectator to Party defections,
unstable ministries and widespread horse trading’, said the AICC(I), but
President’s Rule should be the ‘last resort’.48
The Sarkaria Commission recommended that Article 356 should be
used only in extreme cases. An ‘errant’ state should be warned ‘in specific
terms’ that it was not acting according to the Constitution, and the state’s
response considered, before the President acted. The governor’s report
to the President—precise, clear—should be given full and wide publicity,

43 Bangalore Seminar on Centre—State Relations, p. 202.

44 ‘CPI(M)’s Proposals on the Question of Centre-State Relations’, in On Centre-
State Relations, Communist Party of India (Marxist), Calcutta, 1983, p. Las
Also that August, the CPI proposed that Article 356 should be amended, deleting
the ‘wide powers of dissolution and suspension’ of state ministries. If no ministry could
1983.
be formed, elections should be held within four months. Resolution of August 9,
CPI’s Stand on Major Issues, p. 137.
45 ‘Statement on Centre-States Relations Released at Srinagar on October 8, 1983’,
the
p. 4. According to K. P. Unnikrishnan, he and Ashok Mitra (of West Bengal) drafted
Srinagar statement. Interview with the author.
46 Sarkaria Report, vol. 1, p. 166.
47 Justice Sarkaria interview with the author.
48 Sarkaria Report, vol. 2, pp. 666-9.
612 Working a Democratic Constitution
said the commission. The ‘material facts’ should be made ‘an integral
part’ of the proclamation so that judicial review on the ground of bad
faith would be ‘a little more meaningful’. And the constitution should
be amended, the commission said, so that neither the governor nor
the President could dissolve a state legislature before Parliament had
considered the matter.*9
The founding fathers’ conviction that the Constitution should pro-
vide extraordinary means for coping with national emergencies was shared
by their successors. The Congress government’s use of Article 352 in
1962 and 1971 was followed by Janata’s preserving this authority in the
Forty-fourth Amendment, while protecting against its abuse, and by the
Sarkana Report’s brief comment that (by 1988) the states evinced ‘no con-
cern’ about the article after revision. It is not difficult to understand,
however, that the commission devoted twenty-six pages to President’s
Rule. Emergencies were proclaimed nationally and placed states imper-
sonally on the same footing. President’s Rule was personal: the Prime
Minister removing a chief minister, central ministers dismissing state
colleagues—who would have remained in office during an emergency.
Although the Congress government’s prolongation of the two emergen-
cies—apparently for its own convenience—drew harsh criticism, it lacked
the partisan taint of many instances of President’s Rule.
To nearly everyone, misuse of President’s Rule seemed toying with
the Constitution, amounting to an attack on participative governance
within a state and between the state and the central government. Its
misuse undermined the credibility of an office under the Constitution
designed to serve national unity and effective federalism: the governor's.
Joined with governors’ unpopularity on other grounds, misuse of Article
356 dealt a double blow to the stature and viability of the Constitution.

49 Sarkaria Report, vol. 1, pp. 179-80. Ensuring the inclusion of ‘material facts’ in the
proclamation would be done by amending Article 74(2).
50 Two instances of President’s Rule since the Sarkaria Commission’s report was
published deserve mention: its imposition in Tamil Nadu on 30 January 1991 and the
1992 dissolution of four state assemblies after the destruction of the Babri_ Masjid at
Ayodhya. In 1991, the central government under Prime Minister Chandra Shekhar alleged
that law and order had broken down in Tamil Nadu. But the Governor, S. S. Barnala,
refused to submit a written or oral report to the President confirming this and
recommending President’s Rule. Barnala told a press conference after President’s Rule
had been imposed that he had made no “adverse comments” about the internal situation
in Tamil Nadu in his Fortnightly Letters to the President. President R. Venkataraman
nevertheless proclaimed President's Rule, and Barnala resigned his office. For an account
of this affair, see Guhan, S., ‘Constitutional Collapse: In Tamil Nadu
or in Delhi?’, Frontline,
16 February-1 March 1991, pp. 110ff.
 New Delhi’s Long Arm 613

The December 1992 dissolution by President Shankar Dayal Sharma of the legislatures
of Uttar Pradesh, Madhya Pradesh, Rajasthan, and Himachal Pradesh on the advice of
the P. V. Narasimha Rao government resulted from the destruction of the Babri mosque,
the accompanying bloodshed, and the breakdown of law and order in UP. The BJP was
in power in the four states. The official grounds for imposing President’s Rule in the
other three states was the actual or feared Lreakdown of order resulting from the mosque’s Q
destruction.
The actual situation in these states seems to have been quite different. Madhav
Godbole reports that the law and order situation ‘particularly in Rajasthan and Himachal
Pradesh was quite satisfactory’. The communal situation in the Congress-governed states
of Maharashra, Karnataka, and Gujarat conversely was ‘very bad’, said Godbole. For the
tangled tale of the imposition of President’s Rule in the three states, see Godbole,
Unfinished Innings, pp. 397-401. The chief ministers of the BJP-governed states all were
members of the RSS, and, because the central government had banned the RSS, they
were subject to the provisions of the Unlawful Activities Prevention Act, 1997. No action
was taken against them under this law. Ibid., p. 398.
The Madhya Pradesh Chief Minister, Sunderlal Patwa, challenged New Delhi's action
with a petition in the Madhya Pradesh High Court to quash the proclamation and its
dissolution of the state’s legislature. The petition claimed that the proclamation was
misconceived on the advice of the central government, and the governor's report was :
biased and in bad faith. The Indore Bench of the Madhya Pradesh High Court struck_—CA\ =
down the presidential proclamation, but the Supreme Court subsequently upheld it. See
VY Sunderlal Patwa v Union of India AIR 1993 MP 214. In Indore a full bench of Chief Justice
S. K.Jha and Justices K. M. Agarwal, and D. M. Dharmadhikarai ruled in the case.
 Chapter 30

COORDINATING MECHANISMS:
HOW ‘FEDERAL’?

While the more sensational issues discussed in the past three chapters
were attracting attention, money and the distribution of powers—the
bread and butter issues of federalism—were the steady fare of centre—
state relations. They were the grist for a large number of formal and less
formal institutions and bodies set up under the Constitution to coordinate
policy-making and implementation. These institutions performed more
«-
and less well but none was devoid of achievement. Each, at one time or
another, was accused of bias towards the centre, and several were the
victims of overcentralization.
The institutions most important in financial relations were the
Finance Commission and the Planning Commission. They will be treated
briefly here as they broadly affected centre-state relations. Their technical,
economic roles are described elsewhere in a generous and complex
literature.

The Finance and Planning Commissions!

The Finance Commission sat at the heart of federal finance, charged
under Article 280 to recommend to the President the distribution
between the central and state governments of the net proceeds of taxes
collected by the centre, the principles governing the grants-in-aid to

1 From the wealth of literature on ghis topic and the others in this chapter, the following
especially have been drawn upon:’Sarkar, Union-States Relations in India; Indian Law
Institute, Constitutional Developments Since Independence; Santhanam, Union-State Relations
in India; Chand, Phul, and Sharma,J. P. (eds), Federal Financial Relations in India, Institute
of Constitutional and Parliamentary Studies, New Delhi, 1974; Datta, Abhijit (ed.), Union-
State Relations: Selected Articles, Indian Institute of Public Administration, New Delhi, 1984;
Bhargava, R. N., The Theory and Working of Union Finance in India, George Allen Unwin,
London, 1956; ARC, Report of the Study Team; Centre-State Relationship; J]CPS, Special Number
on Centre-State Relations in India; Rajamannar Report; Sarkaria Report; Chelliah, Raja,
“Towards a Decentralized Polity: Outlines of a Proposal’, Mainstream, 25 May 1991;
Bombwall, K. R., “The Finance Commission and Union-State Relations in India’, /ndian
Journal of Public Administration, vol. 10, no. 2 (1964); Bombwall, K. R., ‘Federalism and
 Coordinating Mechanisms: How ‘Federal’? 615
the states out of the Consolidated Fund of India, and advice on any
other matter the President had referred to it.2 The Constitution’s framers
intended the commission to be ““a quasi-arbitral body whose function is
to do justice between the Centre and the states”’.3 The First Finance
Commission was established on 30 November 1951 under the Finance
Commission Act. The Planning Commission, although not called for in
the Constitution, sat at the heart of the planned economy, at the heart
of India’s socialism, and therefore at the connection between democracy (s \
and the social revoluion—the strands of the seamless web especially dear
to its chairman, Jawaharlal Nehru. Congress’s long- standing interest in
planning lay behind it. The Planning Commission was established in
March 1950 to assess the ‘material, capital and human resources of the
country’ and how to augment them, to formulate a plan for their
balanced use, and to determine ‘the machinery’ for effective planning.*
Because the Planning Commission made capital development grants, it
and the Finance Commission became the twin deities of centre-state
financial relations.
An exchange of letters during 1952 proved the framers correct in
foreseeing the need for the Finance Commission. K. M. Munshi and
G. B. Pant, governor and chief minister of Uttar Pradesh, and C. Rajag-
opalachari, the chief minister of Madras, were exercised about taxes.
Parliament, acting according to entries in the Concurrent List, was

National Unity in India’ and Bhattacharya, J. K., ‘Development Planning, Its Impact
on Union-State Financial Relations,’ /CP5, vol. 6, no. 3, 1972; Jacob, Alice, ‘Centre-
State Governmental Relations in the Indian Federal System’ in J/LI, vol. 10; and
Mozoomdar, Ajit, “The Political! Economy of Modern Federalism’ in Arora and Verney,
Multiple Identities in a Single State. Deserving special mention for its value is Frankel, Political
Economy.
2 The President appoints the chairman of the Finance Commission and four other
members every five years.
Article 280 was amended in 1992 by the Seventy-third Amendment to include raising
and allocating funds for the panchayats and other local governing institutions provided
for in the amendment. Commissions were to be appointed no less than every five years;
their recommendations were to be placed before both Houses of Parliament, along with
a memorandum explaining actions taken upon them. Their recommendations, although
not binding, usually have been followed.
3 BR. Ambedkar in the Constituent Assembly. Cited in Jacob, Constitutional
Developments Since Independence, p. 318.
4 From the resolution constituting the Planning Commission, 15 March 1950. Text
in Sarkaria Report, vol. 1, p. 391.
V.
The members of the original Planning Commission were Nehru, Gulzari Lal Nanda,
T. Krishnamachari, C. D. Deshmukh, G. L. Mehta, and R. K. Patil. Its secretary was
Singh.
N.R. Pillai, and the deputy secretary was that giant figure in Indian planning, Tarlok
616 Working a Democratic Constitution

passing laws regulating sales taxes, which the men feared would reduce
state revenues. In the exchange of letters, Pant wrote Rajagopalachani,
‘the financial position in particular has to be reviewed ... [and] over-
hauled and resources of the states may be augmented ... I hope that the
[Finance] Commission will take a just and reasonable view, but unless
the entire divisible pool (including income taxes) is reconstructed and
enlarged even the minimum requirements of the states will not be met.”
The First Finance Commission attempted to remedy such dissatisfac-
tions by recommending that fifty-five per cent of the centrally-collected
income tax go to the states as well as forty per cent of excise duties on
certain products. Succeeding commissions increased the states’ shares
until the Seventh and Eighth Finance Commissions allocated eighty-five
per cent of income tax and forty-five per cent of excise duties to the
states. In return, the states agreed in the National Development Council
in 1956 to refrain from collecting certain taxes.
The states’ bargaining with the Finance Commission over the years,
and with the central government on financial matters otherwise, has been
marked by their inability to act in concert vis-a-vis New Delhi. The state
rabbits, as it were, never combined against the central wolf. As a result,
‘the Centre has reduced the States to utter dependence upon it, leading
to accusations of political wire-pulling’, according to a prominent
newspaper columnist.® This picture was too bleak, according to another
observer: “The Finance Commissions ... have, by and large, been able to
hold the balance between the Union and the States.’” Neither of these
assessments, wrote a third observer, took into consideration the centre’s
increasing strength through both the central government’s ‘ownership

5 Letter dated 21 July 1952. K. M. Munshi Papers, Microfilm Box 56, File 143, NMML.
In this letter, Pant also complained that ‘the entire field of finance is virtually governed
by the Centre ... Whatever little has been assigned to us by the Constitution is now being
tampered with.’ He deplored the central government’s marked tendency ‘to interfere
with the affairs of the States ...’.
Rajagopalachari replied to Pant on 24 July that the attempt to ‘cut into’ states’ sales
taxes ‘is intolerable’. Pant wrote to Munshi about these issues on 30 July, saying that a
federal structure is based upon recognition of diversity and the ‘necessity of maintaining
their [the States’] autonomous character. Ifanything, there is need for greater decentrali-
zation and delegation of powers.’ Ibid.
6 Sahay, S., ‘Centre-State Relations-I], The Financial Disequilibrium’, Statesman, 13
June 1973.
Notwithstanding the impartial Finance Commission, ‘The States had to look to the
Centre for money at every step,’ wrote Ashis Banerjee, in ‘The Reconstruction of Federalism’,
unpublished, p. 35.
7 Sarkar, Union-State Relations, pp. 128, 158.
 Coordinating Mechanisms: How ‘Federal’? 617

of the almost entire gamut of financial intermediaries operating in the

money and credit market’ and the effect on the states ‘of physical
controls over economic activities, the most important of them being
exchange control, licensing of industry and import control’.®
Yet the state governments’ penury was partly their own doing. Their
financial weakness was in part due to ‘ “inadequate expenditure control
... [and] mobilization of available resources”’, Finance Commissions
have pointed out. ‘“[MJost states do not levy tax on agricultural
income.” 9 ‘[T]here is a lack of political will to tap these sources because
the State governments are afraid they might lose the votes of the rural
population.’!° Partly as a consequence of this, the states have incurred
enormous overdrafts at the centre. Several governments told the Fifth
Finance Commission (1968) that this ‘“extremely undesirable state of
affairs”’ should end.!! But the practice has continued, and in 1982 New
Delhi converted overdrafts of two million crore rupees into loans.
In the critiques of centre-state relations that began with the
Rajamannar Commiitee, the Finance Commission was treated compara-
tively lightly and often favourably. The committee advocated making the
commission a permanent body and amending the Constitution
so that the commission’s recommendations would be binding on both
central and state governments. !? The Bangalore Seminar favoured es-
tablishing a ‘National Expenditure Commission’ to review expenditures
at both levels of government and thus provide a basis for the division of
resources between them.!? The Srinagar ‘Statement’ only castigated the
Centre for the ‘over-centralization of economic powers and resources’

8 Chelliah, ‘Towards a Decentralised Polity’, pp. 17-18. Chelliah ‘granted’ that the
federal government should have powers ‘to regulate the economy in key areas and to take
adequate action to achieve macro-economic objectives’ in the cause of economic unity, but
‘any extension of its powers beyond these requirements must be held to erode the federal
principle’. Ibid., p. 16.
9 Cited in Jacob, Developments, p. 331.
10 Sarkar, Union-State Relations, p. 98. But Sarkar also pointed out that the Centre
have
‘has been given the resilient and expanding resources of revenue, while the States
been given the inelastic and even eroding sources of revenue’. Ibid., p. 96.
¥2
Justice Sarkaria thought likewise. The states have no major revenue source beyond
on to recommend the
sales tax, he said in an interview, and he had wished his commissi
Delhi would not
centre’s sharing of corporation tax proceeds with the states, but New
include this recommendation in the Sarkaria Commissi on report.
opinion was
11 Cited in Sarkaria Report, vol. 1, p. 313. The Sarkaria Commission’s own
fundame ntal causes of
that there could be no permanent solution to overdrafts unless the
vely’. Ibid.
the ‘imbalance between resources and needs are dealt with imaginati
12 Rajamannar Report, p. 219.
13 JCPS, Special Number, p. 404.
618 Working a Democratic Constitution

that had produced ‘the present economic imbalances and deprivation

and backwardness of many states’.!4 The Sarkaria Report mentioned the
high regard in which the commission was held, but it also registered the
states’ complaints that they were not allowed to participate in the selec-
tion of Finance Commission members, nor in setting its terms of refer-
ence, and that the central government had not implemented important
recommendations made by several commissions.!° Only four of Sarkaria’s
recommendations were directed at the Finance Commission and these
concerned coordination with the Planning Commission.
Had the Finance Commission as a device not been provided for in
the Constitution, it would have to have been invented. Without it, the
distribution of revenues would have degenerated into something close
to open warfare. Even the hypercritical Rajamannar Committee com-
plimented the commission’s ‘independence and impartiality and its
ability to hold the scales even as between competing claims’.}®
The Planning Commission from its beginning was the more contro-
versial institution of the two. Sardar Patel had opposed establishing it
expecting it ‘would become some sort of superbody over the cabinet’.!”
Instead, the government came to dominate the commission, but Patel
was correct in sensing that the cabinet would be relegated to the fringe
of national economic policy-making. Strong governmental coordination
of economic activity was a necessary accompaniment to enormous infu-
sions of central government money into development. But the degree of
centralization bred in the planners an undue confidence in their ability
to comprehend and manage diversity. Centralization excluded the skills
and entrepreneurial spirit that state governments and private investors
could have contributed to economic growth. Objections to centraliza-
tion appeared early. The All India Manufacturers Association and the
Federation of Indian Chambers of Commerce and Industry in 1956 ex-
pressed the view that planning, although a good thing, contained dan-
gers to democracy due to the concentration of power in government
hands.!8
Nehru did attempt to bring the state governments into the planning
process. In August 1952, at the Planning Commission’s suggestion,

14 Thid., p. 413.
15 Sarkaria Report, vol. 1, pp. 257, 282. It cited three recommendations that had not
been implemented (p. 290) and commented that ‘by and large’ recommendations
had
been implemented.
16 Rajamannar Report, p. 95.
17 Hare Krushna Mahtab Oral History Transcript, p. 218, NMML. See also ch.
3.
18 AR, 14-20 April 1956, p. 756.
 Coordinating Mechanisms: How ‘Federal’? 619

the cabinet established the National Development Council (NDC),

composed of the Prime Minister, central cabinet ministers, members of
the Planning Commission, and the chief ministers of the states. At its
twice-yearly meeting the council was to prescribe guidelines for the
formation of national plans; consider the commission’s plan and review
its functioning; and consider important questions ‘of social and economic
policy affecting national development’.!9 But this institution, too, became
overcentralized, according to chief ministers. They protested that the
NDC had become a rubber-stamp for the Planning Commission.*°
Andhra Chief Minister Brahmananda Reddy called for greater state
autonomy in planning.*! Prime Minister Shastri acknowledged that
centre-state conflicts regarding development created ‘a good deal of
confusion in the public mind’,?* and he arranged that the chief ministers
advise on the formulation of the Fourth Plan. Indira Gandhi, on becoming
Prime Minister in 1966, for a time loosened the reins a bit further.29
K. Santhanam offered a sober analysis of the issues. He had believed
in planning for thirty years and supported the First and Second Plans,
he said. But the Planning Commission, ignoring the country’s immense
diversities, had come to work on the basis that nationally ‘there should
be practical uniformity’. Seventy-five per cent of the First Plan and sixty-five
per cent of the Second Plan, Santhanam continued, related to r atters
‘which have been exclusively assigned to the States ...’. Although this had
been by agreement and consent, planning for economic development
‘practically superseded the federal Constitution’ with the result that it
was ‘functioning almost like a unitary system in many respects’.24 Asok
Chanda said that the Planning Commission’s undefined position and

19 From text of the resolution given in Sarkaria Report, vol. 1, p. 392. The President had
announced to Parliament in August 1951 the government's intention to establish the NDC.
20 AR, 1-7 July 1960, p. 3560. The chief ministers asserted that they had conferred
on the Third Plan only after Parliament had approved it.
21 AR, 25 November-1 December 1964, p. 6165.
22 Tid.
23 Frankel, Political Economy, pp. 255ff and 311 ff.
Writing in 1967, K. R. Bombwall reported that the ‘steady deterioration of the financial
of
position of most states’ was evident in the states themselves raising sixty-five per cent
depended on the
the revenues for their schemes under the First Plan, whereas they
m
centre for the same percentage in grants during the Third Plan. Bombwall, ‘Federalis
and National Unity in India’, p. 81.
nce
S. Nijalingappa, then chief minister of Mysore, thought the picture of states’ depende
77-8.
on the centre overdrawn. Bombwall, ‘Federalism’, pp.
56. Santhanam also said
24 Santhanam, Union-State Relations in India, pp. 45, 47, and
stically because ‘they
that the state governments originally had endorsed planning enthusia
find’ for it. Ibid. p. 52. He
were not asked to decide first how much money they could
620 Working a Democratic Constitution

wide terms of reference had led to it becoming ““the Economic Cabinet,

not merely for the Union but also for the States”’.?°
The ARC Study Team’s review of planning sustained these views and
caused it to recommend extensive decentralization. The centre has a
‘vital role’ in planning, it reported, but the states were not ‘subordinate
offices’ of the central government. The planning capability of the states
should be strengthened and all basic questions of planning policy should
be placed ‘squarely’ before the NDC.?° The ARC’s final report went much
further, and argued for dismantling ‘most of the mechanisms of central
control over allocation of investment outlays at the state level’. The
Planning Commission should become an expert advisory body “only for
formulating the objectives, laying down the priorities, indicating sectoral
outlays, fixing basic targets and approving main programmes”’. Decision-
making should be transferred from the centre to the states over Plan
programmes on state subjects. The commission should not become
involved in implementation.?’
Although Prime Minister Gandhi acted on the ARC’s recommenda-
tions, according to the American authority Francine Frankel, the Sarkaria
Commission reported insufficient improvement in the situation. “[T]he
emergence of planned development has concentrated all power’ in the
centre’s hands, it said, ‘with the Planning Commission acting as a limb
of the Union government’. It recommended that only ‘experts with es-
tablished reputations for professional integrity’ should be appointed
to the commission and that the states should be ‘fully involved’ with
centrally sponsored schemes, which should be ‘kept to the minimum’.28
But it opposed divorcing the commission from the central government.
As for the NDG, the principle was sound, but not its functioning, the

returned to the theme of undue planning centralization in 1971. Santhanam, K., ‘Federalism
and Uniformity’, Swarajya, 1 May 1971.
25 Quoted by A. N. Jha in ‘Planning, the Federal Principle and Parliamentary
Democracy’ (written in 1965), in Datta (ed.), Union State Relations, p. 7. Chanda had
been a member of the Third Finance Commission (1960).
26 ARC, Report of the Study Team, pp. 91, 93, 96-7, and 106-7.
27 Frankel, Political Economy, pp. 310-11.
Professor Alice Jacob noted the ‘severe criticism from many quarters including the
states’ that the original charter of the Planning Commission had been violated by the
commission becoming involved in day-to-day administration. She attributed the ARC’s
attention to the planning process to this criticism. Jacob, ‘Centre-State Governmental
Relations’, p. 616.
28 Sarkaria Report, vol. 1, p. 387. The commission also commented that central licensing
and the giving of permits gave ‘undue power to a small coterie’. Ibid., p. 18. Also, Frankel,
Political Economy.
 Coordinating Mechanisms: How ‘Federal’? 621

Sarkaria Commission thought. It had met only at the initiative of the

commission and meetings had been infrequent and inadequate—only
thirty-nine meetings in the thirty- six years since 1952.29 It should be
reconstituted, renamed the National Economic and Development
Council (NEDC), and set up by presidential order under Article 263
‘so as to give it direct moorings in the Constitution’. The states should
be involved in NEDC deliberations ‘from the beginning’.2? The NEDC
has not been created, and the NDC ‘has no influence today’ ,?! having
fallen into disuse as the states lost faith in it as a means of furthering
their owri interests.
Coordination between the Planning and Finance Commissions has
been described as complex, overlapping, and inadequate. State govern-
ments often submitted conflicting sets of figures to the two, and were
wont to play one off against the other.°? The rapid rise in the amounts of
planning grants, it was argued, placed the Finance Commission in the
shadow of the non-statutory Planning Commission. For example, the
first three Finance Commissions were appointed after the formulation
of successive five-year plans.** The Administrative Reforms Commission
recommended that the appointment of the Finance Commission be tmed
so it would possess plan ‘outlines’; that Finance Commissions be asked
for their recommendations on the principles governing distribution of
planning grants; and that a member of the Planning Commission be
appointed to each Finance Commission.** One member has been com-
mon to both commissions since 1972. The Sarkaria Commission also
favoured overlapping membership and called for synchronicity in the

29 Sarkaria Report, vol. 1, pp. 380-1.

30 Tbid., pp. 385-6.
As might be expected, debate over the role of the Planning Commission and the
NDC did not end with the Sarkaria report. In 1991, for example, Ramakrishna Hegde
advocated giving the commission constitutional status with state representatives on it.
‘Plea for a “United States of India”’, Mainstream, 15 June 1991, p. 12.
Sometime member of the Planning Commission Raja Chelliah expressed the opposing
onomous
view the same year, writing that the commission should continue to be a ‘quasi-aut
body with no constitutional status’. It should be concerned with long-term planning and
macroeconomic stability and preparing a macroeconomic framework for plans, acting
as a forum for discussion and tendering ‘technical advice’ to the states about planning.
Chelliah, ‘Towards a Decentralized Polity’, pp. 21-2.
31 C. Subramaniam in an interview with the author in 1994. Other observers think
the Planning Commission moribund.
figures, see Jacob, ‘Centre-State Governmental Relations’,
32 For conflicting
27.
pp. 627-8; for ‘playing off’, see ARC, Report of the Study Team, p.
’, pp. 278ff.
33 Bombwall, ‘The Finance Commissions and Union-State Relations
34 JCPS, ‘Special Number’, p. 373.
 622 Working a Democratic Constitution

appointments of the two commissions.”” The Third Finance Commis-

sion suggested that it disburse funds to the states for both budgetary
assistance and to meet planning expenditures, but the central govern-
ment rejected the idea.”
The excessive centralization characteristic of federal finance and
national development planning resembled that affecting many other
aspects of governance. The Finance Commission escaped its most
crippling effects, and states’ complaints in any federation about the
distribution of central monies shouid be treated with caution. But a
state contribution to the Finance Commission’s formation and input
to its functioning, in addition to testimony, would have given the
states psychological reassurance while adding perspective to the
commission’s work. The Planning Commission had been founded with
the best intentions and on the sensible conviction that the country’s
money and human and natural resources should not be expended
thoughtlessly and that economic development should be as equitable
as possible nationwide. But there were questionable premises as well.
One of these in the 1970s grew to be dangerous to the federation, to
economic progress and, potentially, to liberty: that the central
government should occupy the ‘commanding heights of the economy’.
The second premise—that wise human beings could draw a national
blueprint for the astounding diversity of the country—was intellectual
centralization (as well as pride) that became political centralization
as the NDC was marginalized—although state and central planning
officials continued to meet. With, in recent times, sixty per cent of
resource transfers to the states coming via the Planning Commission
and central ministries,?’ and not via the Finance Commission, the
opportunity for central intervention in the states’ development
programmes has increased. The point at which thinking for others
becomes counter-productive seems at once obscure and quickly arrived
at. And although its practioners in New Delhi were well intentioned,
and their actions sometimes necessary, they were revealing their
limited faith in emocracy. |
-

35 Sarkaria Report, vol. 1, p. 284. As to overlapping membership between the two, it

recommended that the member of the Planning Commission in charge of its Financial
Resources Division be the person also serving on the Finance Commission.
36 Jacob, ‘Centre-State Governmental Relations’, p. 631.
37 Rao, M. Govinda, ‘Indian Fiscal Federalism from a Comparative Perspective’ in
Arora and Verney, Multiple Identities in a Single State, pp. 284, 297. Rao adds that the NDC
has attempted to resolve some of these issues, but ‘there is no mechanism to enforce
decisions taken by it’. Ibid.
 Coordinating Mechanisms: How ‘Federal’? 623

Other Coordinating Mechanisms

The need to coordinate the affairs of the country ‘has been recognized
in many fields and various methods have been evolved to cope with it’,
reported the ARC’s Study Team on centre-state relations.°8 Several dozen
of these had been functioning from early-on. Their attempts were well
intended, and their critics have not always given them their due. There
were the so-called ‘conferences’. The Conference of Governors, dating
from British times and hosted by the President, was held annually for
two days. The Prime Minister and other central ministers attended.
‘Typical subjects were food policy, language issues, law and order, and
minority rights.°? The Chief Ministers’ Conference, presided over by
the Prime Minister, met annually with an extensive agenda. But the
ARC reported that the meetings were called ad hoc by the Prime Minister,
with no specific ministry having been ‘given the function of organizing
or coordinating their work’, including ‘follow-up action’.4? The
Conference of Chief Justices took up judicial matters in secret annual
meetings, led by the Chief Justice of India. Then there were conferences
of state ministers of food, finance, home affairs, and many more, usually
held in New Delhi and presided over by the central minister holding
that portfolio. The Conference of the Presiding Officers of Legislatures
seems to have been more ‘free-wheeling’ than other meetings and
included criticisms of executive branches in New Delhi and the states.
Party whips from Parliament and the state legislatures also met. There
were central-state ‘councils’ on food, national health policy, local
government, and so on, and four regional sales tax councils.*!
At these meetings, issues were aired, information and problems
shared, and perspectives widened. Nevertheless, the ARC and the
Sarkaria Commission found these subconstitutional arrangements
wanting. The Conference of Finance Ministers, called at the will of the
central finance minister, had not met between 1963 and 1967 and only

38 ARC, Report of the Study Team, p. 295.

39 Accounts of the meetings sometime quite detailed, were kept confidential, but
minutes of them appear in private papers in the Nehru Library.
40 Tbid., pp. 298-300. The study team added that, till lately, ‘there was no procedure
prescribed to keep even the Prime Minister informed of these conferences’, and although
Prime Minister Gandhi had ‘asked her cabinet colleagues to consult her whenever they
proposed to call such conferences, not enough systematic arrangement has been made’.
: |
Ibid., p. 299.
41 Useful information about these activities will be found in Maheswari, Shriram,
‘The Centre-State Consultative Machinery’, in Datta, Union-State Relations, pp. 39ff. This
article was written in 1970.
624 Working a Democratic Constitution

the centre suggested the topics for discussion, reported the ARC.*2
Among the Sarkaria Commission’s findings was that many coordinating
meetings, ‘being ad hocin nature ... [and having] no means of ensuring
follow-up action’, were of limited utility.4? Both the Sarkaria Commission
and the ARC recommended establishing the interstate council (see
below) for better coordination.
The zonal councils created by the 1956 States Reorganization Act
were to be coordinating mechanisms among the state governments in-
cluded in each zone and between the zones and government in New
Delhi. Originally, there were five of these: the points of the compass, and
the Central Zone. (A council somewhat like a zonal council was estab-
lished in the Northeast in 1971.) The zonal councils were chaired by the
central Home Minister with, as members, the relevant chief ministers,
two ministers appointed by the governors, the chief secretaries, and de-
velopment ministers from each state plus a representative from the Plan-
ning Commission. The Northern Council was the first to meet, and it
heard Home Minister Pandit Pant describe the councils’ purposes: to
attain the emotional integration of the country and arrest regional con-
sciousness, to help the central government evolve uniform development
policies and assist in their implementation, and to build political equilib-
rium among the country’s regions.* For Prime Minister Nehru, the coun-
cils were designed to settle day to day problems among the states in the
zone and to help in zonal economic planning. They were not to be ‘a
fifth wheel of the coach’ or to interfere with each state’s governance or
close centre-state relations, he said.*° K. M. Munshi, then governor of
Uttar Pradesh, and others were not sanguine about the councils’ pros-
pects. Munshi wrote to President Rajendra Prasad that they would serve
no useful purpose and, presaging opinions voiced in later years, he said
that a central minister should not chair them.*© Topics discussed at council
meetings, according to press reports and other documents, included

The ARC Study Team published a ligt of items considered at ‘selected meetings’ of
the chief ministers and of state ministers. ARC, Report of the Study Team, vol. 2, appendices,
p. 145.
‘Proceedings’ of anumber of the whips conferences have been published and may
be obtained from the Department of Parliamentary Affairs in New Delhi.
42 ARC, Report of the Study Team, vol. 1, p. 296.
43 Sarkaria Report, vol. 1, p. 238.
44 See also ch. 6. According to Pant, zonal councils were Nehru’s idea. Statesman, 25
December 1955. This meeting took place in April 1957.
re Letter to chief ministers dated 16 January 1956. NLTCM, vol. 4, p. 336.
46 Fortnightly Letter to the President dated 16 April 1956, K. M. Munshi Papers,
Microfilm Box 118, File 358, NMML.
 Coordinating Mechanisms: How ‘Federal ? 625

details of social and economic planning, protection oflinguistic minori-

ties, the role of the Central Reserve Police Force, power development,
and financial issues.
The councils soon came to be criticized for irregular meetings and
limited achievements. In 1961, Congress President Sanjiva Reddy advo-
cated giving them statutory status and administrative powers so that they
would become ‘live institutions with authority and power to decide mat-
ters after discussion and also implement them’.4” This did not happen,
and the councils by 1983 had become such a non-issue that they did not
figure in the constitutional revolt. First neglect and then overcentralization
had crippled them. When Congress was dominant, central and state gov-
ernments found it more convenient ‘to sort out their problems through
party channels’, reported the Sarkaria Commission. Additionally, the
individual secretariats of the zones had been centralized and the central
secretariat ‘has virtually become a part of the Ministry of Home Affairs’.
Only after scrutiny by the Home Ministry were suggestions from central
and state ministries put on agenda papers, and over the years there grew
a tendency ‘to exclude controversial and sensitive subjects from the
agenda(s) of the Zonal Councils’. The commission therefore recom-
mended that the councils be constituted afresh under Article 263 and
‘be constitutional bodies functioning in their own right’.48

THE INTERSTATE COUNCIL

d
The Constitution’s framers and successive central governments seeme
co-opera-
to agree: some, but not too much, interstate and centre-state
tion was desirable. Article 263 cf the Constitution authorized the Presi-
menda-
dent to establish a ‘council’ to enquire into and to make recom
and
tions to him about disputes between states and between the states
and ac-
the centre for the purpose of ‘better coordination of policy
and prior
tion’. Tne Nehru government did not establish the council,
s Nehru
to 1967 it was rarely mentioned in political literature. Perhap
or that it might
thought enough coordinating bodies had been formed
central policies.
give the states a constitutional platform to object to
Team, which,
The article attracted the attention of the ARC’s Study
bodies had
after concluding that the ‘existing system’ of coordinating
body that would be
‘substantial defects’, recommended establishing a
December I 961, p. 9.
47 Report of the General Secretaries January 1961—
ssion also recommended that the
48 Sarkaria Report, vol. I, pp. 940-1. The commi
capital and that the chief ministers of the
centralized secretariat be located in a state
on. The councils should ‘provide the first
states in the zone chair that council by rotati p. 241.
the regional and interstate issues.’ Ibid.,
level of discussion of most, if not all, of
626 Working a Democratic Constitution

‘wide-embracing and will provide a standing machinery for effecting

consultations between the Centre and the states ... [on] all issues of
national importance’.*9 The full Reforms Commission would not go so
far. It recommended that the Interstate Council, as it had come to be
called, be constituted for an initial two-year period and be limited to
the advisory capacity laid down in Article 263.°° Seemingly symptomatic
of the central government’s sentiments, a Law Ministry memorandum
advised, perhaps correctly, that Article 263 did not envisage a council
probing widely into centre-state relations.?!
Opposition parties, apparently encouraged by the ARC reports,
adopted the Interstate Council as their rallying point against excessive
centralization. The Jana Sangh, Praja Socialist, and Swatantra Parties
called for formation of the council several times from 1968 to 1972. The
Rajamannar Committee said the Interstate Council should have wide
powers, be constituted ‘immediately’, consist of the chief ministers, and
be chaired by the Prime Minister unaccompanied by any other minister
of the central government. It advocated referring all bills of national
importance affecting the states to the council before introduction in
Parliament, discussing ail important national issues there; and making
the council’s recommendations binding, ordinarily.°* With the reappraisal
of center-state relations in the 1980s, the article drew much attention.
The Bangalore Seminar of 1983 ‘could not understand’ why, thirty years
after the Constitution’s inauguration, the article remained unused, and
it recommended the council's formation—as did the election manifestos
of the Janata and BJP in 1985 and 1987. The three would have given the
council wide powers.
Opposition political parties and opposition-led state governments in
their submissions to the Sarkaria Commission continued to advocate
establishing the Interstate Council. It would provide ‘a very healthy way
out of all delicate problems’, said the Andhra government, and
far-reaching constitutional amendments should pass through it.>> West

49" ARC, Report of the Study Team, vol. 1, p. 302. The Study Team recommended.
additionally, that the new council replace the NDC, the National Integration Council,
the Chief Ministers’ Conference, and the Conferences of Finance and Food
Ministers.
The council was not to involve itself in certain matters, like the appointment of governors.
50 ARC, Report on Centre-State Relations, ch. 5.
The members were to be the Prime Minister and the Finance and Home Ministers
,
the leader of the Opposition, and a representative of each of the zonal councils.
The
proceedings ‘must be secret’.
51 Cited in Maheswari, ‘The Centre—State Consultative Machinery’, p.
51.
52 Rajamannar Report, p. 215.
53 Sarkaria Report, vol. 2, p. 49.
 Coordinating Mechanisms: How ‘Federal’? 627

Bengal wanted the council to ‘become the pivotal elementin the structure
of Centre-State Relations’. It should meet four times annually, with the
Prime Minister as chairman and the vice-chairmanship rotating among
the chief ministers.°* The Congress government of Uttar Pradesh, in its
memorandum to the Sarkaria Commission, broke ranks with other
Congress governments by suggesting that the Council could serve ‘a useful
purpose’ in sorting out differences, although it should not be a permanent
body, but summoned cnly when necessary.” Other Congress chief
ministers formally opposed the Interstate Council, but several told Justice
Sarkaria ‘confidentially’ that it was ‘vital’ the council be established as
soon as possible. They dared not advocate this openly because they had
no firm base in their own legisiature parties with which to fend off central
retaliation shouid they deviate from the party line.°°
Reflecting the central government's position, the AICC(I) claimed that
in the Council the states would blow up their differences with the centre
‘out of all proportion’. Were the centre cut-voted in the council, it would
be ‘embarrassed’, and the council would become ‘a body more powerful
than the Union Cabinet without responsibility to Parliament or the peo-
ple’. Issues could be settled by dialogue, and the Prime Minister ‘will
always be willing to hear the Authorities of the States’, the AICC(I) said.57
For itself, the Sarkaria Commission advocated establishing a
permanent interstate council. Called the ‘Inter-Governmental Council’
(IGC), it would have a general body consisting of the Prime Minister, all
chie’ ministers, and all central ministers dealing with subjects of common
interest to the centre and the states. There would be a standing committee
of the Prime Minister and six ceatral ministers and a chief minister from
each zone. The larger body would meet at least twice a year and the
to
standing committee at least four times yearly. The JGC’s activities were
be those mentioned in Article 263. The commission was unwilling to
interpret into the article authority for the IGC to make more than
recommendations.”®

263 and gave no explanation

54 Ibid., p. 602. Tamil Nadu would have deleted Article
extensive decentralization it
for its position—alihough it may have calculated that the
unneces sary.
otherwise recommended would make the council
55 [bid., p. 594.
Justice Sarkaria believed that
56 Justice R. S. Sarkaria in an interview with the author.
ual of great stature, like the
the head of the Interstate Council should be an individ
she would not be dependent on
Secretary—General of the United Nations, so that he or
the Prime Minister. |
57 Sarkaria Report, vol. 2, p. 670.
s should not operate in the public
58 Sarkaria Report, vol. 1, p. 242. This apparatu standing
s of both the general body and the
view, the commission said. The proceeding
 628 Working a Democratic Constitution

‘Federalism’ and the Seamless Web

The distribution of powers in the Constitution was designed to
strengthen each strand of the seamless web. The Congress Party was to
make the Constitution work: providing ministers for governments and
reinforcing governing institutions through elder-brother supervision
of state governments, using the party’s own tight, ‘federal’ structure.
During the Nehru years, this arrangement worked well, although not
cS without difficulties while making adjustments. Passing time brought
changes in context: leaders changed, the country gained experience
with governance, and the economy and political and social awareness
grew.
By the end of the second decade and thereafter, two conflicting trends
increasingly became apparent: one toward much stronger centralization
in government administration, economic management, and Congress
Party internal politics; the other increasing assertiveness by opposition
parties and some state governments for greater power-sharing with the
central government—for, indeed, greater participation in their own
and national affairs.
The greater centralization—in the name of the social revolution
and preserving political stability and national unity—did little to assist
social reform. It was dysfunctional in terms of strengthening democratic
institutions, for weak chief ministers are not institution-builders. It
damaged the spirit of unity by alienating citizens and leaders in the
states. Mrs Gandhi’s monopolization of power within the Congress
destroyed its two-way communications, thus ending the party’s value as
an intermediary in federal relations. Centralization within an organization
may provide increases in efficiency that outweigh in value decreases in
its creativity, but this did not occur, and the increasing centralization
revealed New Delhi's view that citizens and leaders beyond the capital
were incompetent, unworthy, and politically unreliable.

committee should be in camera and be conducted along the lines of central cabinet
meetings.
Additionally, the commission recommended that the National Development Council's
separate identity should be maintained, but it should be given formal status under Article
263 and be renamed the National Economic and Development Council.
On 28 May 1990, President Venkataraman, acting on the advice of Prime Minister
V. P. Singh, issued an order establishing the Interstate Council, which
has a secretariat in
New Delhi headed by an individual of Secretary rank. Until the end of
1995, the Council
had met several times only, and neither the central nor the state governm
ents have shown
much interest in it—perhaps because the bargaining power of the states
with New Delhi
has so markedly increased.
 Coordinating Mechanisms: How ‘Federal’? 629

Central government and Congress leaders seemed ignorant of, or

oblivious to, how such policies were stunting democracy and stifling
the private and state governmental initiative that could have furthered
the social revolution. The ‘bargaining federalism’— W. H. Morris-Jones’s
phrase—that had characterized the Nehru years had given way to politics
where the centre was ‘drunk with power’.°?
The counter-trend of importunings by opposition political parties
and some state governments for a redistribution of powers increasingly
put the central leadership on the defensive. Although the states’ and
the opposition parties’ motives should not be seen as entirely selfless,
nor the centre’s entirely blameworthy, the decentralizers believed they
were strengthening the seamless web. Regarding the democracy and
national unity strands, they were correct; their interest in the social
revolutionary strand—except for the communist or socialist parties—
was harder to detect. This counter-trend developed not only as a reaction
to the centralization and overcentralization of the Nehru and Indira
Gandhi years but also from more positive factors. With experience from |
time in office, state leaders had gained confidence in their ability to
manage affairs. Governments in the states had acquired their own senses
of identity with the resulting desire to act as they saw fit—even in ways
not always savoury. Opposition parties had become firmer on their feet
and more assertive in their ways, often capturing state governments.
Visible in election manifestos and public remarks by state leaders, the
view that national unity and good government each would be best served
by decentralization was nowhere more comprehensively expressed than
in submissions to the Sarkaria Commission. Although one may disagree
with the wisdom of specific recommendations, the thoughtfulness of the
analyses and the sincerity of the sentiments should not be doubted. As
Punjab’s Memorandum to the Sarkaria Commission presciently put it,
‘At present, the main threat to India’s unity and integrity comes not from
outside [the country] ... [T]he present relentless centralization drive ...
may alienate millions ... An authoritarian and coercive approach ... will
inevitably erode political democracy’.
The reality depicted in the pages above should not obscure the
existence of an accompanying reality: the actual conduct of centre-
state relations has produced governance much better than adequate—
ly
59 Justice R. S. Sarkaria in an interview with the author. He was referring specifical
to the working of the zonal councils after 1963.
Communist parties
650 Sarkaria Report, vol. 2, p. 868. It seems noteworthy that the two
made constructive suggestions for reforming federal practices.
630 Working a Democratic Constitution

both despite, and in some ways because of, this highly criticized,
overcentralized ‘federalism’. The country is solidly unified politically,
excepting a minority breakaway movement in the Punjab, deep popular
discontent in the Vale of Kashmir over New Delhi’s history of political
meddling and armed repression there, and anarchic factionalism in the
Northeast. Local and regional political parties contend on the national
scene and, in coalition, even have captured the central government.
The Sarkaria recommendations, the now constitutionally mandated
panchayats, and the widespread advocacy of decentralization do not
arouse, as once they would have, fears of “Balkanization’. A national
economy has developed, with the citizens of each state dependent on
other states for goods and services, wholesale and retail. With mass
communication, villagers gossip about events in New Delhi. The central
and state governments’ mutual need remains pervasive, undeterred by
the displacement of the Congress Party in many states and in New Delhi.
Overarching such specifics, a sense of ‘Indianness’ is strong.
Nevertheless, the good fortune in the second reality should not
distract from the urgency of the first. The time has arrived for change
in both the philosophy and administration of the distribution of powers
between New Delhi and state capitals, whether or not this means altering
the Constitution. National progress, the national future, depends upon
preserving the seamlessness of the web.
 Part VII

CONCLUSION

A Constitution is framed for ages to come, and is designed to approach

immortality as nearly as human institutions can approach it. Its course
cannot always be tranquil.
Chief Justice John Marshall.!

1 Cohens v Virginia, February term 1821. Williams, Stephen K. (ed.), Cases Argued and
ive Publishing
Decided in the Supreme Court of the United States, The Lawyers Co-operat
Company, Rochester, NY, 1926, Book 5.
 ‘ew gt eelagly eaiiet cesbeiraial
| i1 f ete | (ry aah Paypels (ep ix ee foe 2
« cf Sshkeey of volnicakt
‘ et i > sedge a rr to) ‘Soe.
‘ th j J i * a : wer = -
PS ed Lae © Selene opie -<asay
z (epic gorse ‘
i : epee: we at vee!

Dinos eteretamoet
See ae Aes é¢% 4 ah. ‘°

lop Pei tp Banko om

is one aeies cantay~~

Are) Fa 4 apes? 1iia

‘ fen, oad & Dee
~ ' : : P $ ad
~ . . : « : ime 5 Snelp ait

-—<¢ - Jc 2p mr ta 08 2

aie

4 ”ae _
Me
a LP oa

aes
>> im “> +s

*: ek 7 2
a 7

rs
: 7
ri

_
_ -
ds

; .

; 4

' . : on

‘ Dualhe . ae ibn 3 nile

tt emer ie Scarred
 Chapter 31

A NATION’S PROGRESS

During the brief fifty years that Indians have held the reins they have
governed themselves successfully against awesome odds. The seam-
less web woven by the Constituent Assembly into the Constitution for
the nation—establishing the institutions and spirit of democracy, pur-
suing a social revolution to better the lot of the mass of Indians, and
ie
preserving and enhancing the country’s unity and integrity—is in- i
tact, having recovered from the terrible distortion of the Emergency.
The interdependence ofits strands is well-understood: none can con-
* tinue to exist or prosper without the others. Particularly, neither de-
mocracy nor social revolution should be sought at the expense of the
other. These were so interdependent as to be almost synonymous.
Distortions of the web—overzealous pursuit of one strand or laxness
toward another—have been, and many continue to be, serious, produced
by the country’s conditions and culture and by human frailty. These
appear on the country’s list of things-to-do in the future. Still, it may
2 pry 9
accurately be said that representative democracy is popular and firmly
established and that the Consti.ution has become, in the words of an
authority, S. P. Sathe, ‘the authentic reference scale for political
behaviour’| The country is unified and pleased to be so—the situation
in Kashmir being the exception. The social revolution has brought
beneficial changes to many citizens, but it has gone nowhere near far
Aa U&
enough. The meagre efforts by government and society’s ‘haves’ to
be! vs
extend liberty and social-economic reform to the ‘have-nots’ should be pr
C fi
cause for national shame—as should the use of elective and appointive tle ul a
office largely for personal aedadvantage. Indians have
‘
discovered that their ch J
. '
On ene
4 «4! ¢//©
government, like others, is imperfect and that, like their fellow-humans "S

everywhere, they can be inept at managing their affairs. !

A word of explanation and recapitulation before proceeding. Indians
have expressed the idea of the seamless web in a variety of ways. One is

are strongly
| The author believes that the virtues and vices in democratic governance
a
7
United States are
similar among democratic countries and that those of India and the
particularly so.
 \
SP perpen
634 Working a Democratic Constitution US G (ww wr
Cowl aa
the ‘three Pillars’ of ‘socialism, secularism, and democracy’. Each term,
as we have seen, has been given several! definitions. But ‘socialism’ requires
special attention due to its broader and narrower meanings. Broadly, it
was used synonymously with ‘social revolution’, meaning national social-
economic reform with an equitable society as its goal, and tacidy including
yw
von 0
- such ideas as special treatment for disadvantaged citizens. In essence,
it meant social egalitarianism’ and political equality. Narrowly, it had a
ee more Classical meaning: central government planning, the dominance
yw
of the state sector in the economy, and so on. It was urban rather than
rural in connotation, and colloquially at least, it varied as to whether or
not it encompassed land reform and zamindani abolition. Both leaders
and citizens could use the terms interchangeably without making clear
the sense in which they meant them. ‘Socialism’ gleamed in the heavens
like a star, to be navigated by, or merely to be admired.

The Well-Shaped Cornerstone

z Locking backward, the value of a written constitution for a society(estab-
lishing fresh norms for itselffhas been proven. Positive and negative rights
have been there for all citizens to claim as their own and to use as bench-
marks for measuring their own and the government’s performance. Ina

“a
2)

wi} society where traditional forms of hierarchy and privilege have licensed
exploitation, the Fundamental Rights and Directive Principles and the
feo special provisions for the ‘weaker sections’ of society and for minorities
have been especially important. Making the rules of representative, con-
stitutional democracy specific has given them staying power. Question-
able actions arising from the absence of firmly established constitutional
conventions—for example, governors’ and presidential powers—seem
But -
to be relics of the past. Constitutional institutions have become firmly
established, surviving self-serving behaviour and containing within their
framework the hurly-burly of politics. The Constitution’s provisions for
administration and the distribution of powers have made procedures
and practices regular. ifa number of these provisions and actions under
them might now be altered, the Constitution has established clearly the
basis from which change might proceed.
The bending of the twig that inclined the tree of India shift toward

|
democracy, social revolution, and nationhood began in the second half
of the nineteenth century. Its culmination, the 1935 Government of India
Act, has been a durable foundation for an independent constitutional
system used daily by citizens. Whatever the subcontinent might have
developed into without the British presence, British imports started India
 A Nation’s Progress 635

from what it was to what it would become: imports such as a well-organized

bureaucracy and representative governance; the concept of social-cultural , 7
traditions subiect to laws established by non-religious and countrywide p * :
codes; the primacy of individual rights; and a national sense. The leaders
of the Constituent Assembly believed that these elements(blended with
@ others from their own traditions) would make the soundest foundation
for the new republic. Citizens of India have taken this Constityuon as the
2 text—the scripture, even a newsastra—for public life For if it
Dharma
seemed to fit their society ill, it suited them well, embodying the ideals f
oe
for, and the constitutional means to, build a rgformed society in which
they would beffree from traditional repressions.\ S es
The Constitution, above all, has been the source of the country’s ‘
political stability and its open society. Stability in India should not be
defined as decorum in legislatures, or factionless political parties, or as
the absence of turmoil in state governments and caste-class violence in
rural areas. These exist and predictably will continue to do so, for the
of ¥.
latter are democratic, social revolutionary stirrings. Stability consists
.§ ‘
continuity and a reasonable degree of predictability. [t and the status
Ww ue)
quo cannot be equated, for the status quo is incompatible with reform.
evident ‘ ¢ aS
The stability deriving directly from the Constitution has been
in the stability wl i‘.
in(the overall orderly conduct of the nation’s business)
ues ¢) ~
of the system, even when governments have not been stable. Reven
and the ~
are collected and distributed among the central government
arly held.
Page State and national legislative elections are regul
have been
Transfers of power from one prime minister to another
smooth—and, with few exceptions, between chief ministers as well.
lishment 1s
Commerce and industry go on routinely. The military estab
y support each
professional and apolitical. Stability and the open societ
ly that there
other reciprocally. Were public life not stable, it is unlike
of expression, association, movement, and the
would be freedom
s were unstable,
protection of other fundamental rights. If government
toward reform.
there would be repression and little movement
lied by explosions
Conversely, a society is likely to be stable and not imperi
and criticism of
from repressed dissatisfactions if discontent with
are opportunities for
government may be freely expressed and there
upward mobility.*
of the country’s paradoxes, is the
2 Existing along with the open society, in another
from the imperial desire to keep information
government's conspiracy of silence. Derived
n released is likely to be used against the
from the natives and a belief that informatio n
including the confidentiality of the Transactio
government, this appears in many shapes, itution.
ng amendments to the Const
of Business Rules and the files concerni
 636 Working a Democratic Constitution
A Cgnstitution, however ‘living’, is inert. It does not ‘work’, it is
worked—worked by human beings whose conduct it may shape, whose
energies it may canalize, but whose character it cannot improve, and
whose tasks it cannot perform. The expectation that, by some magic,
yma reform would spring from the Constitution, rather than from the efforts
uch ? “of those using it wisely, was but one of the notions of which many citizens
and politicians had to disabuse themselves. The belief, shared by a number
of prominent persons, that the country would govern itself better with 2
presidential system is an example of this—beliefs that a president would
be free from political pressures when selecting experts as cabinet
colleagues, that he could make policy without interference from the
legislature, and thus assuredly be a strong leader of a strong government.
As citizens and leaders worked the new Constitution, the self-evident
became increasingly apparent to them: conditions and culture are the
roots of politics. The politics of working the Constitution confronted
indians with two apparent incompatibilities: the first was between aspects
of their culture and the pursuit of a democratic and reformed society;
the second was among constitutional provisions carrying the strands of
the seamless web. The goals of unity-integrity, democracy, and social
revolution were not always in perfect harmony and on occasion seemed
in competition. These difficulties had to be surmounted, circumvented,
or accommodated in the conditions prevailing in the country. Leaders
and citizens dared not be defeated by the great issues that emerged to
challenge them immediately with independence, and, because truly great
issues are seldom finally resolved, future generations also would
have to
face many of them. Our examination begins with a very brief review of
conditions, and continues with culture in politics, after which
we shall
consider how difficulties were dealt with.

Conditions
The population that in 1950 was about 250 million has grown
to nearly
a billion persons, confined to an area of approximately the
size of the
United States east of the Mississippi river.> Compressed here
are diversi-
ties and disparities without number. There are the vast
disparities be-
tween higher castes and Scheduled Castes, between the
rich and those
living at the level of subsistence. Compressed here also are
the diversities
of the eighteen languages named in the Eighth Sched
ule (and many
3 India’s area is 1,270,000 square miles; the contin
ental United States is 3,027,000
square miles,
 A Nation’s Progress 637
more minor ones), each of whose speakers represents a distinct culture
centuries deep. And here are believers in major religions, each with its
internal faiths, especially multi-faith Hinduism.
Analogous are the disparities between states—rich and poor, well
watered and desert, natural resource full and resource empty, and
commercial—industrial successes and laggards. For the citizen, this
environment has been inescapable. With the land filled up since the
latter part of the nineteenth century, the Indian was stuck where he
was born, unless he moved to the city. There was no ‘frontier’, as in the
United States, with greener pastures—literally or figuratively—to which
he could escape. Unity, democracy, a reformed society had to be built
with these materials. Fortunately, there were talented builders, but
diversity, disparity, and compression breed conflict as well as cooperation,
and the builders had to manage the shop, so to speak, while creating
and developing the nation. The tasks were inseparable.

The Fourth Strand: Culture and the ‘Survival Society’ ser.

The seamless web had a fourth strand, omnipresent, visible and invis-
ible: culture. As used here, ‘culture’ does not include the variety of gran-
/ deurs in art, music, dance, theatre, literature ,and scripture for which 2
_ the country is justly famous, but, instead, refers to certain traits, view- 2
points, and ingrained experiences and attitudes that are integral to the
(Wr em
Y citizen. These traits, like the more tangible conditions just described, jy.
profoundly have affected politics, administration, and judicial processes—
in short, governance. To venture into the territory called culture is ex-
ceedingly risky for someone not an Indian, the more so because it in-
volves making generalities about complexities. Nevertheless, it should
be attempted, for, to change the metaphor, ‘culture’ as meant here is the
primer, the undercoat over which the top coats—glossy or flat—of the
nation’s daily affairs were painted.* A few old Congress members, like
General Secretary Shankarrao Deo, believed that ‘culture’ in this sense
made India’s soil infertile for democracy (chapter 1). Time has shown
the doubters in large part mistaken, but they may be forgiven for think-
ing so, for the fourth strand caused many difficulties for the democracy h
and social-revolution strands. Surprisingly, it has little affected national To
unity and integrity.
We may begin with the common man’s view of government, shared

4 The author’s sources for the following are his own experiences living in India over
of years, interviews and conversations with several score Indians, and the
a number
authorities cited in footnotes.
 638 Working a Democratic Constitution

to some degree by the intelligentsia. Expressed as Ma-Baap (literally

mother-father, but akin to a patron), government, ‘the Sarkar’, is paren-
tal, the source of good, of help, and of authority and oppression, of mis-
fortune. As with the rest of life, there is no use protesting. “Karma made
us listless and apathetic, accepting that we can :change things,’ thought
one-time Congress president S. Nijalingappa.° In the words of the au-
thority on Hindu law, Duncan Derrett, ‘Power in fact stemmed from a
state of affairs produced in a caste society; the state was a symptom or
function of such a state of affairs.’"° Although the Constitution’s concept
of individual freedom is spreading to rival karma’s determinism, the be-
lief is millennia-old and is waning slowly, more slowly among the poorest,
who need karma’s solace. As citizens have looked up to government for
whatever it dispensed, so government retains its inclination to look down
on the people as objects whose affairs itis to manage—in short, paternal-
ism, usually warm-hearted and well-intended even when misguided. This
helps to explain, for example, centralization in government administra-
tion, in economic planning (and the states’ limited role in it), and the
unwillingness until recently to grant village panchayats enough powers to
make them more than paper entities. As Nehru once said, decentraliza-
tion was a sound policy even if villagers made a mess of things.
Of the characteristics of Indian society affecting governance, the
most significant is hierarchy. Caste is its most visible and best known
manifestation. Next come sociai oppression and economic deprivation
?-derived from hierarchy. Hierarchy begins at home and surrounds the
son even when he ventures outside it. Within the family, his father is
autocratic, choosing his wife and his job, and he maintains a high degree
of authority over the son even when he is adult. Loyalty to and responsi-
bility for one’s family, and secondarily, one’s ‘in-group’ is central to the
culture. To his father and figures in authority, in general, he owes un-
questioning obedience, says G. Morris Carstairs, and he expects unques-
tioning subservience from all below him in rank and authority.’
‘Domination’ is the motif of society, according to Justice Jaganmohan

5 §, Nijalingappa in an interview with the author. In P. N. Haksar’s view, the belief that
one deserved his condition in society has prevented massive revolt by the country’s oppressed.
5 Derrett, J. Duncan M., ‘Social and Political Thoughts and Institutions’ in Basham,
A. L. (ed.), A Cultural History ofIndia, 6th impression, Oxford University Press, New Delhi,
1989, p. 131.
7 Carstairs, G. Morris, The Twice-Born, Indiana University Press, Bloomington, IN,
1967, pp. 159-60.
It is worth noting that Carstairs was a psychiatrist who spoke Hindustani from a
childhood in Rajasthan.
 ; ye
[Lh
Hus A Nation’s Progress 639
Reddy.’ This training produces the combination of arrogance, servility,
and adulation that appear in hierarchical relationships, including
among politicians and civil servants. Dharma Vira accused post-Shastri
state and central legislators of ‘blatant interference in administration’,
browbeating officials so that ‘any officer having the courage to advise
freely and fearlessly is now likely to get into serious trouble.’? Hierarchy
determines a person’s worth, Jagjivan Ram was pointing out when he
said that a Brahmin beggar had higher status than a successful business-
man from a lower caste. This, too, is changing as possession of money
has begun to rival caste as a measure of status. But this is an urban
more than a rural development, where possession of land continues to
be the source of status and influence and where upper and, more re-
cently, upper middle castes dominate landholding patterns. As N. A.
Palkhivala has pointed out, possession of property is necessary for the
Fundamental Rights to be meaningful (chapter 11). More money little
improves the status of members of the Scheduled Castes in the coun-
tryside and Scheduled Tribes, for they still are considered polluted.
The Constituent Assembly laboured hard fer equality, says Andre Beteille,
the eminent Bengali student of society, but ‘our practice continues io
be permeated with inequality in every sphere.’!0
The family experience has other effects. A child’s break from the
closest association with his mother to association primarily with his father ‘
amounts to deprivation, says Carstairs. ‘His confidence is shattered and
from now on he mistrusts everything that pretends to constancy.’!!
Whatever its origins, this mistrist, this suspicion, is almost universally
evident in the individual’s sense that conspiracies lurk in nearly every
corner, that national politics arid international affairs are characterized
by plots. ‘We live in a paranoid world suspicious that our neighbours are
conspiring to do us in,’ says Ashis Nandy.!2 The ‘foreign hand’ ever is

8 In an interview with the author.

See also-Kakar, Sudhir, The Inner World, 2nd edn., Oxford University Press, New
1982, and Spratt, P., Hindu Culture and Personality, Delhi Printers Prakashan, Delhi,
Delhi,
1977.
J
9 Vira, Dharma, ‘The Administrator and the Politician’, published by the Punjab,
Haryana, and Delhi Chamber of Commerce, New Delhi, 1979, p. 9.
ut
Dharma Vira’s ICS experience was showing. Things were not this bad througho
personal ized governm ent and
the country, but many legislators, including ministers,
a
expecte officials to dance to their whim.
Universi ty Press, W/,
ey, Andre, The Backward Classes in Contemporary India, Oxford Vv
its excellence.
New Delhi, 1992, p. 2. The brevity of this book is matched by
1! Carstairs, Twice-Born, p. 158.
University Press, Durham,
12 As quoted in Bonner, Arthur, Averting the Apocalypse, Duke
NG, 1990, p. 410.
 640 Working a Democratic Constitution
attempting to ‘destabilize’ India. Prime Minister Gandhi saw in Mujibur
Rahman’s assassination in Dacca an omen for herself. Rajiv Gandhi
believed that ‘almost immediately’ after the emergence of Bangladesh—
‘and Indira Gandhi’s historic role in it’-—‘began the collusion [in India]
between external and internal forces of destabilization’.!¥ ‘The culture
of India attributes much to conspiracy, despite some event or situation
probably having arisen out of conditions,’ says historian Gopal Krishna.
‘Indian politics has been brought up in an age of distrust,’and because
almost everyone thinks this way, ‘it isa mark of a deeply divided society,’
believes W. H. Morris Jones.!4 Such suspicion inhibits cooperative and
constructive politics and administration. As pointed out earlier, the
appointments and transfers of judges have been fraught with suspicions.
Mrs Gandhi thought transfers a sound policy ‘because if they stay in
one place they get involved with something or somebody’. A Law Minister
told the Rajya Sabha that the judicial system was in danger from
appointments affected by ‘extraneous considerations’.!° In appointments,
seldom was the individual’s judicial philosophy at issue.
The uncertainty-—social and economic—of the world around him
focuses the individual’s attention on survival for his own sake and for
those for whom he is primarily responsible, his family. India’s is a survival
society from those at its top to those at the bottom of its vast disparity.!®
There is hardly a better example of this than the scramble for classification
as an ‘Other Backward Class’ member within the Mandal Commission
criteria in order to receive special consideration in employment. The
poor quite literally are trying to have two chappatis where they have had
one. Anyone who can is attempting to break out of ‘the stoical patience
of a people expecting nothing beyond subsistence and regarding
prosperity as a temporary and delusory windfall’—out of a system where
‘injustice is rooted in tradition and justified by popular religion’.!7 In
these circumstances, wrote Charlotte Wiser, an empathetic participant
in village life in Uttar Pradesh for some forty years:

13 Inaugural Speech by Congress President Shri Rajiv Gandhi and the Centenary Resolve, at
Bombay on 28 December 1985, AICC, New Delhi, 1985, p. 7.
14 Morris-Jones, Government and Politics, p. 198.
15 These examples are to be found in ch. 26. See also ch. 5.
On the golf course, according to an enthusiastic player, a player mistrusting his
opponent may be preceded by his ‘agee wallah’ (man who goes ahead) to ensure that
the opponent doesn’t tamper with the lie of his ball.
16 The author is gratified that M. N. Srinivas and others interviewed agree with his
coining and definition of the term.
5 17 Derrett, ‘Social and Political Thoughts’, p. 139. ‘Injustice is rooted in tradition’:
V Dutt, Retreat from Socialism, p. 159.
 A Nation’s Progress 641

Each man feels himself directly responsible for his own family and its
security ... . He has been taught this so firmly that he disregards the
state of those outside his immediate family, be they of another caste or
of his own. He is not disturbed if they go hungry while he has plenty,
because he can never be sure that the next harvest will provide enough
for his own family’s needs.!® on
yen
This orientation produces an indifference to the well-being of others ,yo"' vd
and to the condition of society as a whole, particularly on the part of
those in the urban middle class. Yet, paradoxical as it may seem, in rural 4) 5 '
areas, especially, a strong sense of community helpfulness may appear in u ne
. . . : : . t
times of difficulty and disaster. At all levels of society, joy often brightens of att.
the gloom of working to survive.
Among the better-off, survival society behaviour is no less prevalent. — 4 ~
The wealthy try to protect what they have and ‘try to increase their pile Wire ]:
before they lose their connections’, according to a man recently a central C
minister. For the several layers of the middle class, inching up the social-
economic ladder preoccupies the man and, increasingly, his wife.
Securing and bettering their own and their family’s position is critical,
for failure means poverty in a society lacking safety nets outside the family.
‘The struggle for career advancement’, said sometime Secretary to the
/ Government of India R. C. Dutt, ‘is greatly influenced by the surrounding
moral atmosphere of the struggle for existence of different classes and
groups in society ... . [This] has provided ample opportunities for ple
corruption, and indeed for collective selfaggrandizement at the expense .,.C« 7
of the poor.’!9 P. N. Haksar thought ‘our civil services ... are committed, w
first of all to themselves and their nuclear family ... [and beyond this
to] making secure the future of our sons and daughters ... and, if possible )
... the members of our subcaste, caste, community and region’.2? For }
most above the poorest, nearly every aspect of life outside the home is

better grades from connections with a university professor; student :

organizations promoting the causes of national political parties and
politicians fostering campus factions, including using their own thugs
to do so; appointments to head institutions such as libraries and |
government archives. Nothing is left to chance if it can be helped. The |

Sequel: The
18 Wiser, William and Charlotte, Behind Mud Walls, 1930-1960; With a
p. 261. |
Village in 1970, University of California Press, Berkeley, CA, 1971,
Bureaucra cy in Transition ’ in Sarkar (ed.), PR N. Haksar, Our
19 Dutt, R. C., ‘Indian
Times and the Man, p. 40.
20 Haksar, Premonitions, p. 201. Written in 1979.
 642 Working a Democratic Constitution

University Grants Commission reported favouritism, not merit, in the

selection of teachers and selection committees especially formed to favour
the candidate. Administrators and teachers form their own groups ‘for
gaining and maintaining superior positions in the university’, and some
court politicians with the view of being appointed vice-chancellor.?!
For those in government—from peon and clerk to civil servants and
ministers, the survival society also assumes the form of the ‘personalize-
tion of government’. Personalization is the attitude ‘me first and not
the country, which takes team-work’, in the words of high court
Justice H. G. Balakrishna. K. Santhanam made clear the shape of person-
alization in his 1976 ‘Code of Conduct for persons in power, authority or
positions of trust in our country’—among whom he explicitly included
yeo ministers and members of Parliament and state legislatures. There should
4 «* ad be no use of position for personal or family advantage, read his code; no
of") action motivated by considerations of party, religion, region, caste, or
WN community; no unofficial dealings with businessmen or hospitality or
gifts accepted from them or other private persons. The fourth century
BCE master of statecraft, Kautilya, put it amusingly: the functionaries nec-
essary to uphold dharma were suspected of corruption, for who can tell
whether fish in water are drinking?*? The rampant corruption of which
elected and appointed officials are believed guilty by citizens should be
understood in terms of the survival society—of the scriptural injunction
V to help one’s own (this in a society where religious observance is com-
mon)—even while it is a clear threat to the credibility of democratic
governance. It is startling to hear administrative and police officials read-
ily admit, as the author has, that they seek posts where money is to be
made on the side. Members of the Indian Civil Service (Indians as well as
British) worked the administrative system for zts own sake, according to
senior advocate Rajeev Diiavan; whereas today’s bureaucrats work it for
their own sake.** ‘Nepotism’ as usually defined also should be under-

21 Draft report of the UGC circulated in February 1967. Santhanam Papers, File no.
5, NMML. Included on the UGC Committee were Santhanam and B. Shiva Rao. The
existence of such behaviour is less surprising—for C, P. Snow in his novel The Masters has
shown us the childish and unsavoury aspects of academic politics—than its pervasiveness
and shamelessness in the survival society.
22 Santhanam, K., ‘Code of Conduct’, 30 July 1976. Jayaprakash Narayan Papers,
Third Instaliment, Subject File 265, NMML.
Santhanaim, who in 1964 had headed a government committee on the prevention of
corruption, issued his code after attending a conference in Madras 18 July 1976 on the
Swaran Singh Committee’s report.
23 As paraphrased by Derrett in ‘Social and Political Thoughts’, p. 131.
24 Rajeev Dhavan in a conversation with the author.
 A Nation’s Progress 643

stood thus. Indeed, there is a degree of approval—or at least of under-

standing—as well as opprobrium granted to minor ‘corruption’, because
of one’s responsibility for helping relations. The other form of person-
alization is the aggrandizement of power more for power’s sake than for
other forms of gain. This applies, for instance, to legislators bullying civil
servants, as Dharma Vira described, and to Prime Minister Indira Gan-
dhi—who also was looking out for her two sons.
The requirements of survival affect the civil servant’s (and the
politician’s) job performance. To hold a job seems often to demand an
unusual degree of deference to one’s seniors in the workplace—which
may be derived in part also from the cultural characteristic of
acquiescence to the father’s authority. (Undue deference to superiors,
of course, is not exclusively Indian.) Thus, as Dharma Vira has already
been quoted as saying, giving fearless and constructive advice may harm
the adviser. As a result, according to him, bureaucrats are becoming
‘supine and sychophantic ... [intent on] their own personal gains’.*°
‘[A]n insecure leadership ... looks for conformism and is reassured by
sychophancy,’ said R. C. Dutt. “The civil service finds sycophancy the
easiest way of career advancement.’° It was to this and to civil servants’
‘commitment’ ‘first of all to themselves and their nuclear family’ and
to their other in-groups that P. N. Haksar directed his homily on
‘commitment’: job performance should mean ‘to protect, promote,
advance ... [the] country’s national interest’.2” Deference exaggerated
to adulation, as during Mrs Gandhi's tenure, resulted in that dangerous
hero-worship about which Dr Ambedkar had warned.
Yet the civil servant clearly also is the victim—made vulnerable by
his own economic position and by the survival society rapaciousness of
officials higher on the food chain. Political executives ‘consciously se-
lect pliable officers’, writes former Home and Defence Secretary N. N.
Vohra. ‘[T]he State cadres of all public services ... have been politi-
cized and communalized with resultant inefficiency, indiscipline and
unanswerability ... . Successive State Chief Ministers, even the better
among them, have been running the administrative apparatus through
patronage, rewarding pliant officers through attractive postings and

25 Vira, Dharma, ‘The Administrator and the Politician’, p. 8.

26 Dutt, R. C., ‘Indian Bureaucracy in Transition’, p. 40.
B. K. Nehru wrote of the Emergency period: ‘The cult of sycophancy, which is endemic
in societies used to being ruled by potentates exercising absolute power which Jawaharlal
had laboured consciously to destroy ... returned with such vigour that that also seems
now to be ineradicable’. Nehru, Nice Guys Finish Second, p. 561.
27 Haksar, Premonitions, p. 202.
 644 Working a Democratic Constitution

unmerited promotion for services rendered ... . The quid pro quo for
such rewards is collection of funds for the politicians in power and keep-
ing their supporters satisfied.’*8
Related to these ingredients of culture (as they are related among
a but in a category of its own, is what may be called the
rhetoric or the empty-promise syndrome. It would be superficial to
Babe this merely to cynicism or hypocrisy, for it has deep cultural
o\)4” «» )sources.
Oo The phenomenon is well exemplified by Congress Party pronounce-
\s is “ ments about land reform, which follow a pattern clear in the party’s
Of ee" publications. At a Working Committee or other high-level meeting, the
% failure to implement enunciated land reform programmes would be
freely admitied, followed by self-castigation. The causes of the failure
would be analysed—such as the party had lost touch with the masses
and officials had been distracted by greed for office. After ardent pledges
to do better in implementing socialism in general and land reform in
particular, a new programme would be announced that exceeded in
scope and ambition the goals whose non-fulfillment had just been
admitted. As seen in earlier chapters, this pattern began in 1954 and
was repeated cyclically through the years.29 This ‘rhetoric from the house-
tops but no implementation’, as a Supreme Court justice put it, seems
to come from a disjunction between word and deed, or from treating
pe as synonymous. “The word is equivalent to_action’, says econo-
mist H. K. Paranjpe. There is ‘a dichotomy between belief and prac-
0/7 tice’, says poet Prem Kirpal.*? A declaration of intent imposes no need
or responsibility to ascertain that it actually has been carried out. Rep-
etition of a promise unconsciously amounts to its fulfiliment—the
‘mantras’ to which Renuka Ray referred in an earlier chapter. Closely
( related to the word-equals-deed phenomenon is that of initiation equals
completion: a programme is started, an institution established, but fol-
low-up is ignored. A building is constructed, but not maintained. In a
forestry scheme, saplings are planted, but not watered. H. K. Mahtab
noted that irrigation works are built, but no provision is made for

28 Vohra, N. N., ‘The Rusting Steel Frame’ in Narayanan, V. N. and Sabharwal, Jyoti
(eds), India at 50: Bliss of Hope, Burden of Reality, Sterling Publishers Pvt. Ltd., New Delhi,
1997, pp. 163-5.
29 In 1958, 1959, 1964, 1967, 1969, 1971, and so on. In December 1969, as mentioned
in ch. 7, Indira Gandhi's Congress faction resolved that all ‘intermediaries’ would be
abolished in a year and all land reform laws implemented in two years.
30 Maurice Carstairs notes the disjunction between private cleanliness and public
filth.
 A Nation’s Progress 645 ‘~
repairs.>! Indians, Kirpal believes, don’
like facts;
t \‘there is the truth ine A N
and the greater any Psychiatrist Sudhir Kakar thinks that Indians < wv]
are unsettled by differénces between the real world and the ‘inner world’ Wo |
which is ‘the maternal cosmos of infancy’.3* Dhirubhai Sheth’s analysis
is more down to earth. Goals are deliberately set that are known to be
impractical, beyond the society’s will to achieve, because they genuinely
J are worth cherishing and are consonant with ideology fashionable in the
West.23 Whatever its roots, the equating of word and deed often gives a
make-believe air to public policy, is false to the social revolution, and
discredits representative government.>4
The cultural characteristics inimical to the working of constitutional
democracy and pursuit of the social revolution rarely have received a
worse tongue-lashing than from Prime Minister Rajiv Gandhi in a
1985 speech commemorating the Congress Party’s one-hundredth
anniversary. It is worth recalling at length. We see ourselves in regional,
cultural, and—worse—in caste terms, Gandhi said. Government servants
oppress the poor, and the police shield the guilty. There is no protection
when

the fence has started eating the crop.[There are] whole legions [of
officials] whose only concern is their private welfare at the cost of society “
... . [OJur private self crushes our social commitment ... . We obey no glee ur
discipline ... follow no principle of public morality ... show no concern
for the common weal ... . Flagrant contradiction between what we say
and what we do have become our way of life.*°

The Fourth Strand, Democracy, and Social Revolution

Although the relationship between culture and the working of the
Constitution is inescapable, the connections are as often indirect and

31 Mahtab in comments on Paul Appleby’s second report on the Indian administrative

system. Hare Krushna Mahtab Papers, File 16, NMML.
32 Kakar, Sudhir, The Inner World, p. 185.
33 Sheth comments to the author.
34 This coin has another side. Legislation that infringes civil liberties often has a fi
loud bark but much less bite through implementation.
The United States Congress provides an excellent example of the word-deed gap in
its two-step appropriations process. Members can vote large sums in the a
bill and trumpet their largesse to their constituents, and then keep silent about the money's
absence in the appropriation bill.
35 Inaugural Speech by Congress President Shri Rajiv Gandhi and the Centenary Resolve,
AICC, 1985, pp. 13-14.
 646 Working a Democratic Constitution
wary of
subtle as they are direct. Readers, and the author, should be
seeing direct linkages where they are not and of attributing exclusively
/ to Indian culture political conduct commonly found in other societies.
One could be excused for expecting that these cultural characteristics
would doom democratic processes and progress in the social revolution,
but they have not, although they have limited the spread of democracy
and social-economic reform, especiaily among the lowest castes and
poorest citizens. Most important, cultural irnpediments have not denied
the Constitution’s gifts. Representative government and the vote have
touched everyone and have become cherished for the empowerment
they bring.(Caste and community allegiances) while retaining their
negative effects on democracy and social revolution (of which more
below) {have favoured democracy by becoming the focus for political
wm
Ws mobilization at all levels of society and by being vehicles for the pursuit
ahs of power and group interests. Because caste politics operate horizontally
in society, they do not pose a threat to national integrity, as might
territorially-organized interest groups.°° The personalization-of
government and survival-society complexes force open the political
process as individuals scramble upwards on society’s ladder—in addition
to hampering democracy and retarding social justice. 72.
The Constitution’s provisions setting{goals for ihesocial pluses
p>
cont such as the Directive Principles, thd Fundamental ight)the articles
protecting minority rights, those assisting the weaker sections, and so
“Ae |
i“ 9
on—somewhat have diminished the repressions of hierarchy and the
effects of indifference among the upper castes to conditions among
the lower. Reservations in education, in legislatures, and in government
employment have brought into universities and the political process
many individuals who otherwise would have entered neither, and they
attest to the paradoxical erosion of the caste system as caste allegiance
facilitates upward mobility.>” The use of public interest (or social action)

36 §, Guhan has provided an excellent brief sketch of caste. It both aggregates and
divides, and thus is fertile soil for ‘mobilizational’ politics in a democracy. Caste reigns,

v”
he writes, and is not bereft of social utility, for intra-caste solidarity and(nter-caste ties of
kinship) ameliorate class-based inequalities, Shady noblesse oblige and mutual help and
provide the bases for social capital and trust’Guhan, S., ‘Three Pieces on Governance’
unpublished paper prepared for ‘Workshop on Governance Issues in South Asia’, Yale
University, November 1997. Copy to the author courtesy of Professor Guhan.
37 Shah, Ghanshyam, ‘Grassroots Mobilization in Indian Politics, in Kohli (ed.),
India’s Democracy, p. 270.
Shah also says that the ‘vast majority’ of the lower backward castes do not have the
assets to gain advantages from the Mandal Commission report as do other castes among
the OBCs.
 A Nation’s Progress 647

litigation (PIL/SAL) and the rapid growth of private organizations

devoted to consumer and environmental protection, citizens’ rights,
and grassroots development have taken place despite the strictures of
traditional society. The mandated establishment of village panchayats
(under the Seyenty-third Amendment of 1992) initially will serve the
power of dominant castes in villages, but over time it almost certainly
will empower lower castes and women—for whom seats on these
panchayats now have been reserved, as have been seats for Scheduled
Castes and Scheduled Tribes.
The Constitution’s greatest gift to the social revolution and democra- ~
cy has been an open society—if that is not a tautology. Open societies
grow more open for all! their citizens, although among them at varying —
rates. Speech and expression in India are free and communications wide-
spread—although landlords still regularly arrange the detention of low-
er caste individuals or local activists, and a low caste villager who insults
an upper caste member may find himself beaten or even be murdered.
(Today, the reverse may happen.) Governments’ constant reiteration of |
the social justice theme has fostered expectations. The idea that ‘we have
rights’ has spread rapidly and citizens at all levels will not forever tolerate
their absence. The visible failings of government officials, frequently made
public by an acid-penned press, have reduced awe of officialdom. V. S.
Naipaul’s India of ‘a million little mutinies’ is the best evidence of the
slow triumph of democracy and the social revoiution over the strait-jacket
of traditional society.”® Yet, the framework of hierarchy, for the most part,
has kept society orderly.
Polls in 1971 and 1996 reveal a good deal about the social-economic
and political evolution in the country—some of it, as with all in-depth
polls, not easy to understand. The proportion of persons responding
that they were able to vote rose from seventy-cight to eighty-seven per
cent from 1971 to 1996, while the percentage of those saying that they
were not able to vote deciined from twenty-two to thirteen. Those polled
who believed it ‘Not important to vote as your caste group does’ rose
from thirty to fifty per cent during the period. Responding to the ques-
tion, ‘Does your vote make a difference to how things run in the coun-
try?’, the yesses rose from forty-eight to fifty-nine per cent from 1971 to
1996. Scheduled Caste /Scheduled Tribe members had a lower and up-
per castes a higher affirmative response. But this should be measured
against respondents’ assessment of personalities: fifty-eight per cent in
1971 and sixty-three per cent in 1996 said that the persons we elect don't
p. 518.
38 Naipaul, V. S., India: A Million Mutinies Now, Penguin Books, London, 1992,
 648 Working a Democratic Constitution
s nationally be-
<( care about us. In 1996, sixty-two per cent of respondent
-three per cent
(WA (~ jieved caste relations had become more harmonious. Forty
decreased;
in 1996 believed tensions between religious communities had
the query,
twice as many thought this in Karnataka as in Uttar Pradesh. To
or to the
‘Do government development programmes go to the well-to-do
taka
poor and needy?,’ between fifty and fifty-five per cent in both Karna
OBCs
and UP believed they went to the former. The upper castes and the
did
thought they went to the poor and needy about twice as often as
members of the Scheduled Castes and Tribes.°9
Two other poll queries and responses may be significant. To the
leaders,’
assertion that, ‘What the country needs more than laws is strong
upper castes and OBCs responded most affirmatively, and Hindus over
RY) Muslims eighty-four to ten per cent. Hindus trusted the judiciary much
more than Muslims and distrust was greatest among illiterates.
Economic development has been a powerful force against tradition,
although it also has strengthened some caste distinctions and emphasized
economic disparities among classes.49 Modern seeds and machinery in
mAthe employ of the Indian’s entrepreneunial spirit and the survival society's
drive for self-betterment have shaken the traditional power structure and
will continue to diminish its authority. Charlotte Wiser tells of a village
untouchable having a pukka (brick) house, whereas twenty years earlier
upper caste members of that village would not have permitted such rising
above station. Others report that in cities money has come to rival caste
4\, - asan indicator of status. “No caste today has the moraf authority to enforce
ene its middle class members any of its traditional sanctions,’ writes Beteille,
pr thus freeing these individuals ‘to use [caste] instrumentally for economic
and political advantage’.4! The country now has a Scheduled Caste
President and has had a Scheduled Caste lady as the chief minister of a
still largely feudal state, Uttar Pradesh.
Accomodation, that characteristic of the society which allows appar-
ently incompatible elements to exist in parallel—in contra-distinction

39 The polls were conducted by the Centre for the Study of Developing Societies in
New Delhi, the premier organization for the study of the country’s society. The sample
size was 9,614 in twenty states, and longitudinal research will be continued with three
thousand of these individuals. The questions asked and the breakdown of responses by
caste, religion, education, occupation, etc. is most inadequately represented in the
paragraph here due to space constraints.
40 The country’s basic economy has brought the advantage of stability. Like a doll
with weighted feet, a low-level economy is harder to knock over than a more technology-
dependent one.
W 4] Beteille, The Backward Classes, p. 50.
 ( Distaxe Hhernece- + athe oleQ toe fet

r 3 of Law uenems he Sper fF]_Mevel

pee L
sa
(ee al A Nation’s Progress 649

without contradiction (as President Radhakrishnan asked, why do things

have to be this or that; why can’t they be this and that?)—has allowed
democracy and the social revolution to operate at one level while tradi-
tional norms operate at another. The ideal and the real in policy actions
have coexisted because they partook of the disjunctions between word |... # vi
and deed, between rhetoric and implementation. In this fashion, many’ vi “ae
great constitutional issues—like zamindari abolition and the Twenty-fifth rer
Amendment—were enacted in Parliament at an almost abstract level,
their passage favoured by the cultural characteristic of the disjunction , /f
between promise and performance, of the word being equivalent to - ae amfhe
the deed. Implementation of such social revolutionary legislation by ne .
Congress state governments faltered or failed because of raw economic
reasons and these cultural characteristics: the downward indifference sa
of hierarchy, caste groups being uncaring about the well-being of groups - dt (ow’
below them (doubting even their worthiness), and the complex of in- é ) oy”
gredients composing the survival society ah, ceoprnyts ie > ‘
Turning to the harmful effects of ‘culture’ on the social revolution
and on democratic institutions and practices, one immediately thinks
of government’s laxness in addressing the vast disparity between the
top and the bottom of society. The executive and legislative branches in
New Delhi and the states, in reality as distinct from on paper, have
neglected the social revolution as expressed in the Directive Principles,
the Preamble, and in the Fundamental Rights provisions establishing
equality before the law. Hierarchy, indifference or paternalism toward
the lower orders, and the perscnalization of government at all levels
have resulted in inadequate to poor administration, often-corrupt po- ;
lice, and neglect of national and local development directed at the poor-
est and low caste-citizens. Among the upper castes—classes, ‘individual
rights’ and ‘economic comfort’ have meaning; among the bottom castes—
classes, who constitute upwards of forty per cent of the population,
they mean little or nothing. It must be acknowledged that conditions
vary greatly throughout the country and from individual to individual.
Typically, outside of North India, state governments are much more
effective, and all but the lowest citizens better off. In India, unlike other
societies, as Beteille points out, ‘backwardness’ is not an attribute of
the individual, ‘but of communities that are self-perpetuating’. Histori-
cally, a man’s and a woman’ social capacities were known from caste or
lineage; no further test of capacity was needed.*? In other words,
the
they lacked the tools—and were ‘known’ to lack the tools—to fight

42 Beteille, The Backward Classes, p. 2.

650 Working a Democratic Constitution

system oppressing them. In 1972-3, Mrs Gandhi told Parliament that of

the rural poor in fourteen states, forty per cent or more were below the
poverty line.*° It would of course be ridiculous to expect that even the
most energetic reform and development efforts since independence
could remedy such conditions wholly. But ancient customs prevailed
because the lower castes—classes and non-caste ‘untouchables’ (the Sched-
uled Castes), possessing little or no social-economic status and political
influence, have been poorly equipped to fight back. They have had the
vote, they have made electoral alliances with upper caste politicians want-
ing their votes, but only the beginnings cf reform have been made.
Although the social revolution is evident in the shift of social-economic
power in rural areas over the past three decades—from the castes in the
top three varnas, the ‘twice-born’, to the so-called ‘middle castes’ or Other
Backward Classes of the Shudra varna (like the Yadavs and Kurmis tn the
North and Nadars and Izhavas in the South)—this little has helped the
lowest caste Shudras and the Scheduled Castes. Often the opposite. The
Yadavs, who had been the upper castes’ musclemen to keep lesser orders
in line, now on their own behalf oppress those below them. But the shift
has gradually introduced into state and national politics a layer of society
whose dynamism is unquestionable and whose understanding that
political prominence and office-holding are a public trust—not a private
privilege—may increase with time. Presently, says Dhirubhai Sheth, these
politicians tend to treat the vote ‘as no more than an endorsement by
the people in favour of the continuation of their rule’. Thus, officials, in
what amounts to large-scale personalization of government,
rely on manipulations of the power process rather than on building ...
loyalties of the people through ensuring their participation in the
decision-making processes ... [They] manipulate casteist and communal
sentiments ... rather than ... improving performance on the economic
front .... There is no pro-poor programme; there are only pro-poor slo-
gans."4

43 AR, 6-12 May 1980, p. 15444. The percentage jumped to fifty in ten states and
sixty in three, the Prime Minister said. Forty per cent or more of the urban poor were
below the poverty line. The criteria were 2,400 calories a day in rural and 2,100 in urban
areas. The Planning Commission’s national figure in November 1980 was forty-eight per
cent below the poverty line.
44 Sheth, D. L., ‘Social Basis of the Political Crisis’, Seminar, January 1982. Nor, writes
Beteille, have ‘the new economic forces ... fully erased’ conditions of caste, village
community, and joint family ‘but have ... added inequalities to those already in existence’.
Beteille, The Backward Classes, p. 27. These forces have ameliorated conditions, however,
at many levels in many locations, the author believes. For the already better-off, economic
conditions have greatly improved.
 A Nation’s Progress 651
A specific example of the indifference toward lower orders mentioned
earlier has been government's avoidance of both the letter and the spirit
of the Directive Principles—admirable goals admittedly difficult to reach
in any society. For example, Article 45 charged government to endeavour
to provide, within ten years, free and compulsory education for children
through age fourteen.* But data tell that nearly one-third of the 105
million children age six to ten were not in school in 1993. Drop-out rates
from the first to the fifth standard approach one-third of those who enroll.
Learning achievement is low.*© A conspiracy—except locally—to keep
the poor uneducated or ill-educated is unlikely. But the higher castes
seem to operate implicitly on the colonialist maxim that if you educate
the natives they become restless; better that we don’t equip them to
challenge us.*’

The Constitution Against Itself

As though the fourth strand did not present governing with enough
complexities and obstacles, those working the Constitution have had
to make adjustments among the web’s three strands of unity—integrity,
democracy, and social revolution. When they were in competition or
conflict, decisions had to be made about whether, and if so how much,
one should be sacrificed in favour of another. Several times, adjustments
were made between one or more of the three strands and some element
of the fourth. Having embraced the new Constitution, leaders confronted
questions of essence inherent in it: Democracy for Whom?, Justice for
Whom? What is Justice? What are the appropriate ways of employing
the Constitution’s ‘means’ among citizens and between them and their
government? The framers foresaw some of this, which is why they insisted
that neither the democracy nor the social revolution strand was to be

45 ‘Strenuous efforts should be made’ toward early fulfilment of Article 45, said a
1968 central government policy statement. National Policy on Education, 1968, Ministry of
Education, GOI, New Delhi, 1968, p. 2.
46 Primary Education in India, The World Bank, Washington, DC, 1997. When
researching this detailed report, bank staff worked closely with the National Centre for
J
Education Research and Training in New Delhi. Sumi Krishna’s research for the author
corroborated these figures.
This state of affairs is partially the result of Nehru’s policy, adhered to since, of giving
priority to higher education. But primary education, with its contribution to better family
health, lower fertility, and employment chances need not have been neglected. Ibid., p. 1.
47 That this is a half-conscious strategy in the minds of some central and state
government officials has been alleged to the author in some interviews and became
apparent to him in others.
 652 Working a Democratic Constitution
pursued at the expense of the other. Freedom and bread, said Morarji
Desai, are not incompatible. Neither could they easily be sought together.
Equally formidable, it became apparent over the years, was the task of
implementing the decisions taken. For this brought the three branches
of government into confrontations that shook the entire structure and
could have destroyed it. Parliament in the 1950s amended the
Constitution to get around judicial rulings, acting on the premise that
the Constitution had bestowed upon it constituent as well as legislative
power. The Supreme Court, first in 1951 in the Shankari Prasad case,
while exercising its own power of judicial review, upheld this view (chapter
3). But the Court later, as we have seen, most significantly in the
Kesavananda Bharati case, ruled that Parliament’s constituent power had
limits. Fear had caused the change. Fear that Indira Gandhi intended to
end the co-equality of the branches by eliminating judicial review of
amendments—which Jawaharlal Nehru would not do—on the way to
sacrificing democracy and its fundamental rights to authoritarian
socialism. With the basic structure doctrine, a balance, if an uneasy one,
had been reached between the responsibilities of Parliament and the
Supreme Court for protecting the integrity of the seamless web.
It was the unexpected difficulties in keeping harmony among the
strands that first startled Prime Minister Nehru and his government.
The relationships between social revolution and democracy were the
most problematic. On the democracy side, the Constitution’s Funda-
mental Rights caused ‘problems’. For example, the Congress Party’s
and the government’s pledge, as Vice-President Radhakrishnan put it,
to remove ‘social disabilities’ and ‘man-made inequalities’, and the
Constitution’s two dozen articles providing for compensatory treatment
for disadvantaged citizens—the_heart of the social revolution—came
into direct conflict with two Fundamental Rights articles. One of these
broadly prohibited discrimination; another said that no citizen shall be
denied admission to a government-supported educational institution
on the grounds of race, caste, and so on. A Ms Dorairajan, it will be
recalled, a Brahmin in Madras, challenged as unconstitutional a local
government order giving preference to non-Brahmins in admission to
medical schools. The Supreme Court upheld the challenge (in the
so-called Champaknam case), and Nehru’s government got round this
vy\2 a
difficulty by changing the Constitution. The First Amendment provided
that nothing in the Rights should prevent the enactment of special
laws for the educational and social advancement of backward classes.
An obstacle easily had been cleared.
Property issues brought the two strands into conflicts more difficult
 A Nation’s Progress 653

to overcome. The Constitution guaranteed the individual’s right to own

property and to be deprived of it only by a law fixing the amount of
compensation or the principles for calculating it. But the Congress’s social yg@ . fr
revolutionary promise to nationalize industry and much commerce and‘s¢ ee! 9
to implement land reform, giving ‘land to the tiller’, meant depriving par
some individuals of these rights in the cause of fairness. When the high AY Ope,
courts struck down several state zamindari abolition laws—as in the @” ye”~
Kameshwar Singh case—on the ground that they violated equal treatment 4h?
under the law or that compensation was inadequate, Nehru was
confronted by what he called a ‘peculiar tangle’: if ‘we cannot have equality
because in trying to attain equality we came up against principles of
equality’ (chapter 3). A major reform policy had brought the government
and the judiciary face-to-face over the fundamental matters of
constitutional interpretation and of ‘law’ as distinct from ‘justice’—-an
eternal issue in any society that pretends to fairness. The central
government's answer was to change the Constituujon-—again in the First, 7d,
Amendment—to barjudicial scrutiny of such land legislation. Also in ele
this amendment were provisions to overcome a high court decision, so
that government (in this case the Uttar Pradesh Government) could
nationalize private property. (namely bus lines), a step believed necessary
to a socialist programme. A second tangle joined the dispute in the forrn
of the President’s role in policy-making. As Nehru was impatient to enact
the amendment, President Prasad argued reasonably for patience. The
President later went further and suggested to constitutional authorities
that he could refuse to give his assent to the amending bill, but was told
he must act according to the council of ministers’ advice.
The collision between the means and goals of the two strands evoked
in Nehru doubts about reconciling them within the Constitution. The
1951 Cabinet Committee on the Constitution, which he chaired (the
first of some five constitutional reassessments over the years), devel-
oped the First Amendment's devices for pursuing social-economic re-
form unhindered by the courts. The first was quite evident, as we have
just seen: amend the Constitution to get around Supreme Court inter-
pretations of the Constitution obstructing the sociai revolution. As
Nehru wrote the chief ministers, the judiciary’s responsibilities were
unchallengeable, but if the Constitution ‘comes in the way ... it is time
to change the Constitution’ (chapter 3). Thus was initiated a precedent
for amendment that drew praise for the Constitution’s flexibility and
criticism that the document had been reduced to a mere scrap ofpaper.
The second device, even more obvious, was to revise laws to eliminate
the portions the Court had found objectionable.
 ’ fr tayA AER fle
hull on
a capel Fi aD hh? fhe Sn Ley? /'
654 Working a Democratic Constitution

The third device was more than a device, for with it Nehru introduced
two fundamental concepts. The first challenged historically-determined
conditions as the proper measure, or basis, for justice. Was it fair, he

a
“Ks asked, that the zamindar retain control of property, while they who
had been deprived ofit over the centuries, because of their position in
the hierarchy, continued to be denied it? You have ‘not just the justice Vw
of today, but the justice of yesterday’, he said.48 This also could be
re aS
€AG thought a new formulation of the long-standing proposition that one
man’s exercise of his fundamental rights should not deprive another
we R sk of his rights. The supplementary concept, in support of Nehru’s first,
was to create a hierarchy for laws. In retrospect, Nehru and his ministers
cr” may have acted anti-constitutionally. At the top were laws above the
Constitution, as the fundamental law of the land, because they had
been placed in the newly-created Ninth Schedule, beyond judicial reach.
\w This was irrespective of whether or not they were ‘inconsistent with’
b the Fundamental Rights. The courts should ‘not decide about high
political, social or economic ... questions’, Nehru said, proposing the

er 4 /amendment.*’? Implicit here was the radical reduction of the three

branches of government to only two, Parliament and the executive, as
ran far as land legislation was concerned. The next class of law in this new
hierarchy was the Constitution itself. At the bottom, third tier, subject
to the Constitution, came ordinary law. This example would assume a
re far more insidious character two decades later when the Twenty-fourth
Amendment bestowed unlimited constituent powers on Parliament (or,
according to another point of view, restored the constituent power
intended by the framers). In 1951, the best and the brightest did not
foresee the danger of this.
When Congress governments reviewed and amended the Constitu-
tion, in Nehru’s time and later, they had strong majorities in Parliament,
but not a majority of votes in the country. Although this was constitu-
tional, one may ask if it was sound to change the nation’s founding
document without majority support in the country. Yet it may be argued
equally that most of the amendments enacted—especially the social
revolutionary ones and excepting those enacted during the Emergency—
had the tacit support of the majority of the electorate. But the malign
as well as the benign may invoke the silent majority. Nehru, in the em-
ployment of these concepts, did not compromise his belief in the es-
sentiality of an able and independent judiciary.

V8 Parliamentary Debates, vol. 12, part 2, 16 May 1951, col. 8831.

49 Tok Sabha Debates, vol. 2, no. 1, cols 1945-6.
 fue
v
fe a A Nation’s
oA Progress 655

The collision between democratic rights and the social revolution

sharply escalated between 1951 and 1954, and in the latter year produced
a second reassessment of the Constitution. Propelled by two Supreme
Court rulings against the government involving compensation,” a Con-
gress Working Committee’s sub-committee on the Constitution attacked
the judiciary’s power to issue prerogative writs to enforce the Fundamen-
tal Rights and would have taken from it jurisdiction over compensation
disputes. The curbing of the courts’ writ powers might have been in-
cluded in the Fourth Amendment had Nehru not vetoed it. Nehru’s
propositions to ensure Parliament’s and the executive’s reach in prop-
erty matters—including barring the courts from questioning the ‘ad-
equacy’ of compensation—were placed in that amendment (chapter 4).
Coincidentally with the amendment’s passage, Parliament and the Con-
gress Party adopted resolutions naming a ‘socialistic pattern of society’
as the national goal.
A sense that something needed to be done to protect national unity
and integrity against perceived dangers to it from disruptive action and
inflammatory spoken and written expression awakened in the
government awareness of a new incompatability—this time between
the Fundamental Rights and the web’s unity-integrity strand. After two ja.
state laws curbing freedom of speech had been ruled unconstitutional
by the Supreme Court,”! Nehru instructed the Law Minister to reconsider
the Constitution’s provisions affecting law and order and subversive
activities. Disagreements within the Cabinet Committee on the
Constitution about how far to restrict free speech were resolved on the
advice of the Select Committee in Parliament to which the First
Amendment (actually, the amending bill) had been sent for scrutiny.
The remarkable result was that although the amendment added to the
Constitution areas in which speech might be restricted (national security,
public order, and friendly relations with foreign countries), it also more
fully protected free speech by adding the word ‘reasonable’ before Vv
restrictions that might be placed upon it. Speech and expression now
had the protection of due process, a qualifier not present in the original
Constitution. The explanation for this restraint seems to have been several
unpalatable choices the government faced (chapter 2) and the strength
in Parliament of constituencies for a free press. Peculiarly, Nehru
explained it as the ‘concept of individual freedom has to be balanced
with social freedom ... and the relations of the individual with the social

50 In December 1953, the Bela Banerjee and Sholapur Mills cases.

5] Punjab and Madras laws in the Brij Bhushan and Crossroads cases (ch. 2).
656 Working a Democratic Constitution

group’.°* Democracy, the Rights, and the courts had come out ahead in
this dispute, after being bested by the social revolution in others. Fifteen
years later, the Sixteenth Amendment, also as described in chapter 2,
would provide for ‘reasonable’ restrictions on the freedom of expression
in the interests of ‘the sovereignty and integrity of India’.
Personal liberty did not fare so well as freedom of expression when it
came to the government's perception of the dangers to unity and integrity.
The preventive detention provisions in the Constitution were not
strengthened by amendment, but legislation under Article 22 and during
the national emergencies of 1962 and 1971 became progressively
stringent. Judicial review of detention cases became excluded, in effect,
by legislation and rules prohibiting informing the courts of the grounds
for a detention. Executive branch consciences were soothed—sometimes
justifiably, no doubt—by defending detention as a ‘necessary evil’. But it
remained an evil and a crutch, permitting persecution of social-economic
activists and dulling government’s investigatory and prosecutoria!
skills. Detention was used far more extensively against actions than
against speech, although the line between the two could be fine, and in
Gopalan’s case—the first great detention case under the Constitution
(chapter 2)—speech and action were both at issue. Concepts of law and
justice were stretched especially thin by the use of preventive detention
against economic offences like hoarding and black-marketeering, which,
however -reprehensible, endangered neither national security nor
integrity.
The two strands of the web also collided when unrealistic definitions
of what constituted dangers to unity and integrity, the ‘isms’, resulted in
detentions. For example, language riots in Madras in 1965 against the
‘imposition’ of Hindi were met by detentions under the Defence of
India Act. Some seven hundred ‘left communists’ were detained in
Kerala to prevent a suspected uprising—twenty-eight of whom subse-
quently were elected to the legislative assembly in 1965 while detained.
On too many occasions over the decades, when there seem to have
been no incompatability between the unity and integrity and democracy
strands, liberty was sacrificed for executive convenience and to protect
the ‘integrity’ of a nation already strong.
The principles of democratic government also have been ill-served
by partisan political and other unwise uses of President’s Rule, justified
as necessary to protect unity and integrity. These uses, along with the
extreme overcentralization of emergencies and the absolutism of Mrs

52 Nehru’s Speeches, vol. 2, p. 506.

 A Nation’s Progress 657

Gandhi’s Emergency—proclaimed in the names both ofunity and the

social revolution—threatened faith in the Constitution. The Forty-fourth
Amendment seems to have quieted anxieties about the misuse of the
emergency power. Only time and New Delhi’s restraint may wash the
taint from President’s Rule.
The demands of national development led logically to an interven-
tionist central government. This did assist the social revolution, but the
excessive centralization became counter-productive. It stifled state gov-
ernment initiatives dedicated to the common purpose, denied state lead-
ers and citizens participation in policy decisions affecting them, and en-
couraged doubts about New Delhi's faith in democracy. Over-centraliza-
tion unbalanced many of the Constitution’s provisions for centre-state
relations and set back the cause of unity. The central government’s be-
lief in its own infallibility and its jaundiced view of the abilities of state
governments was partly derived from the cultural elements of hierarchy,
authority, and suspicion of alternative centres of power.
The precedents established in Nehru’s time during the collisions
between the institutions of democracy and the goals of the social
revolution were taken to their logical and extreme conclusion under his
daughter’s prime ministry. Democratic radicalism, as discussed above,
was overtaken by socialist authoritarianism. Mohan Kumaramangalam
declared that democratic methods were inadequate for bringing social
revolution when he said that the ‘clear object’ of the Twenty-fifth
Amendment ‘is to subordinate the rights of individuals to the urgent
needs of society’.>* The extreme socialists had gone to the core of the
social revolution, and, in so doing, sacrificed the Fundamental Rights
to equality before and equal protection of the law (Article 14) and
the ‘freedoms’ of Articie 19. These justiciable provisions were made
‘the
subservient to the non-justiciable Directive Principles that said that
are
ownership and contiol of the material resources of the community
princip le
so distributed as best to subserve the common good’, and the
result ‘in
saying that the operation of the economic system does not
sm minus
the concentration of wealth’.°4 The country now had ‘sociali
g under
democracy’, said S. N. Mishra, twice Deputy Minister of Plannin
put in Nehru’s
Nehrv.® With this amendment in effect, laws could be
of the judiciary,
category of laws above the Constitution, out of reach
The Twenty-fourth
without having to place them in the Ninth Schedule.
ents: The Reasons Why, pp. 99-3. This was
53 Kumaramangaiam, Constitutional Amendm
1971. See ch. 10.
54 Clauses (b) and (c) of Article 39.
col, 252.
55 Tok Sabha Debates, Fifth Series, vol. 9, no. 13,
658 Working a Democratic Constitution

Amendment’s reiteration of Parliament’s constituent powers, also

enacted under the influence of the extreme socialists and in the name
of the social revolution, placed the entire Constitution in the hands of
Mrs Gandhi and her tame Parliament. The long-running battle over
the custody of the Constitution was to have ended in victory for
Parliament and defeat and banishment for the judiciary.
In June 1975, Mrs Gandhi again invoked social revolution—still her
slogan, not her creed—to replace the country’s democracy with her
absolutist personalization of government. She denied the poor their
freedom and brought them no bread. The Congress Party and Parliament
for their fourth time reviewed the Constitution and produced the
Forty-second Amendment. As we have seen, this contained provisions
barring judicial review of amendments and placing further curbs on
Parliament’s enemy, the courts, and arranging, it was hoped, that Indira
Gandhi would rule a unitary [India as permanent Prime Minister. The
amendment’s sacrifice of democracy to social revolutionary pretensions
by making equality before the law and the ‘freedoms’ of the Fundamental
Rights subservient to all of the Directive Principles may have been its
most appalling provision. Democracy hung by a thread. It still does:
the provision has not been repealed, although it has fallen into disuse
(chapter 24). Safeguarding the web continues to rest with the Supreme
Court’s basic structure doctrine, handed down in its ruling in the
Kesavananda Bharati case, significantly known, also, as the Civil Rights
case, and with law as defended by a participating public.
With the voters’ decision in March 1977 and the Janata government's
two amendments, the Constitution by 1980 had emerged from the valley
of the shadow, strengthened by citizens’ discovery of its value to them.
But if the seamless web had been terribly distorted, rent almost beyond
repair by the Emergency, earlier efforts—well-intentioned, if misguided—
to strengthen one strand at the expense of others, already had strained
it. The framers’ prescription had been correct: great as the frustration
in so governing might be, the web’s strands were interdependent. They
must prosper together, or they would not prosper at all.

Branches and Strands

Turning to the Constitution’s branches of government, the executive,
legislature, andjudiciary, one sees that the web’s strands affected their
character and functionin just
g as they had their impact on democracy,
social revolution, and national integrity. Here, also, much that
began
as tendency hardened into practice.
 A Nation’s Progress 659

In the central executive, prime ministerial dominance and the

centralization of policy were the motifs. Appearing with Jawaharlal Nehru,
they strengthened throughout the period of this bobok—the Janata period
being the exception. To the centralization inherent in the responsibilities
of the central government, Nehru added his impatient pursuit of the
social revolution through a centralized economy. Augmenting this were
his powerful personality, his status as a Brahmin, and cultural acquiescence
to authority. But Nehru’s authority was constrained by his dedication
to democracy, by his advocacy of the scientific mind over traditional
behaviour, by his consequently open style of governing, and by the
presence of independent-minded colleagues. Powerful chief ministers
among these like C. Rajagopalachari, B. C. Roy, G. B. Pant, Morarji
Desai, and others contributed to restraint in centre-state relations. In
these conditions, the social revolution got off to a good start. So, too,
did democratic governance, although this had dark spots in the use of
preventive detention, and in Congress’s partisan use of President’s Rule,
and had grey areas as power attracted power, reinforcing New Delhi's
sense of infallibility. Chief ministers’ powers in their own executives
and legislatures did not fare so well. As prime ministerial dominance
grew, their own authority declined proportionally.
Mrs Gandhi’s dominance as prime minister produced a government
as closed as her father’s had been open. Authoritarian by predilection,
‘Madam’ worked with only a few associates, who rarely knew her mind.
The extreme centralization within the central government, coupled with
her domination of chief ministers and the Congress apparatus, damaged
the structures for centre-state xelations and evoked resentments endan-
gering national unity even as they served her dominance. Her personali-
zation of government drew its determination from her deep suspicions
of conspiracies surrounding her at home and of the ‘foreign hand’ di-
rected from abroad. Her letters—such as those to Dorothy Norman and
T. T. Krishnamachari—reveal her loneliness and sense ofisolation from
the courtiers in her entourage, who she knew to be greatly motivated by
interest in their own personal and political survival. Yet the atmosphere
/
surrounding her was not exclusively of her making. That cabinet minis-
ters ‘behave like mernbers of a feudal court towards the Prime Minister’
P. N.
was not surprising, wrote one of her Principal Secretaries, Professor
based
Dhar, given that the ‘pre-modern attitude toward society ... [being]
greater_|
on hierarchical values’.°° Dependence on her decision-making was
and ‘what is the PM’s
than upon her father’s, and ‘only you can decide’

(ed.), Haksar, Our Times and the

56 Dhar, P. N., ‘The Prime Minister's Office’ in Sarkar
 660 Working a Democratic Constitution

mood today?’ were phrases commonly heard—as earlier had been ‘Let
Panditji decide’. Dhar noted that ‘after the first generation of post-colonial
leadership hands over to the more indigenously rooted leadership’ the
governing style is ‘apt to be more dogmatic and authoritarian’.” Noth-
ing so well illustrated the timidity, if not the sycophancy, of ministers as
their silence at the 6:00 a.m. cabinet meeting when Mrs Gandhi an-
nounced imposition of her internal Emergency—and the silence at the
meetings of Secretaries to Government the following day. Despite this
concentration of authority, the social revolution progressed little not-
withstanding promises to abolish poverty, even as socialism in the doctri-
naire sense increased during Mrs Gandhi's early years as prime minister
with the many nationalizations arranged by Mohan Kumaramangalam.
Parliament has ‘immense powers’ and ‘functions within the bounds
of a written Constitution’, says Practice and Procedure of Parliament, the
Indian equivalent of Britain’s T. E. May on Parliament. True at any time
in theory, the assertion’s accuracy as regards Parliament’s service to the
seamless web depended upon the time it was made. The first Speaker,
}G. V. Mavalankar, built Parliament ‘as an independent institution noi to
be seen as an extension of government or of party>8—ideals running
counter to a number of the nation’s cultural traits. Nehru supported
him. Congress Party dominance gave the body solidity, but its broad-
spectrum composition also assured that a wide variety of views would be
heard. The vocal, if weak, opposition parties, and the independent spirit
in the Public Accounts and Estimates Committees contributed to this
democratic functioning even under a dominant prime minister like
Nehru. As important was Mavalankar’s intention to foster a spirit of
J tolerance, for, he said, if we ““go merely by majority, we shall be fostering
the seeds of fascism, violence and revolt”’.°9 Parliament under Nehru
supported a powerful and independent judiciary even while working to
prevent review of social revolutionary amendments and legislation.
Parliament's power as a branch of government increased as prime
ministerial dominance declined between 1966 and 1971. But Mrs
Gandhi's rousing election victory in the latter year ended Mavalankar’s
vision. The Prime Minister now dominated Parliament, reducing its

Man, p. 53. Dhar was nota career civil servant. Both before and after his period with Mrs
Gandhi, he was a distinguished professor of economics at Delhi University.
57 Tbid., p. 54.
58 Morris-Jones, Government and Politics, pp. 198-9. See also his Parliament in India.
59 Cited in Kaul and Shakdher, Practice and Procedure, p. iii. See also Mavalankar, G. V.,
Speeches and Writings.
 A Nation’s Progress 661

representation in policy making. Its voice became an echo of hers; it

became an instrument in her centralization of power; and whatever
legislation or amendments that were aimed at social-econemic reform
were undermined by the executive’s inability or unwillingness to
implement either. The timidity of all but a few members when voting
to pass the Forty-second Amendment and other Emergency amendments
and then—having recovered from their collective laryngitis—voting to
repeal much of them under Janata again demonstrated the power of
the traits of survival, subservience to authority, and indifference to the
weil-being of those around them.
Meanwhile, over the years alterations in Parliament’s composition
reflected social revolutionary changes in society. Although reliable data
are wanting that would allow national comparisons over forty-six years
(because neither the censuses nor Pariiament and state legislatures record
caste information), it is known that Brahmins constituted forty-five per
cent of Constituent Assembly members in 1948 and that their percentage
had dropped to fourteen in the Eighth Lok Sabha in 1984. In the Eighth
Lok Sabha, the Shudra proprietary castes constituted fourteen per cent |
of the membership whereas there had been none in the Constituent
Assembly, although there were seven Scheduled Caste members. Shudra,
or Other Backward Class, membership had increased to one-third in
the Lok Sabha in 1996. Correspondingly, representation of agriculturalists
had risen from twenty-two to fifty-two per cent over the years.©1
For several state legislative assemblies, better information indicating
social revolutionary change is available. In Gujarat, for exampie, while
Brahmin and Bania represeniation in the assembly dropped from
thirty-one per cent to twenty-three per cent between 1960 and 1980, the
representation of the agriculturalist-Kshatriya and patidar communities
rose sharply, and the number of tribal representatives nearly doubled.

60 Hart, Henry C., ‘Political Leadership in India’ in Kohli (ed.), India’s Democracy, p.
48.
61 See Rubinoff, Arthur G., ‘The Changing Nature ofIndia’s Parliament’ in Tremblay,
on the 50th Anniversary
Reeta Chowdhari, etal. (eds), /ndian/Pakistani/Canadian Reflections
ff.
of India’s Independence, B. R. Publications, Delhi, 1998, pp. 251
g sharply
Education levels changed with the number of under-matriculates declinin
Lok Sabha rose from
and the number of graduates rising. The number of women in the
the Ninth (1989). Their
twenty-two in the First Lok Sabha (1952) to twenty-eight in
in most states between
representation in state legislatures, although stiil very low, doubled
1952 and 1996. India Today, 27 July 1998, p. 14.
alization of politics’
In the North, especially in Uttar Pradesh and Bihar, the ‘crimin
from UP in 1996. Rubinoff,
brought indicted criminals into the Lok Sabha—twenty-seven
‘Changing Nature of India’s Parliament’, p. 262.
 662 Working a Democratic Constitution

Caste ‘equations’ have ‘tilted in favour of the new social alliance of the
lower and backward groups’, wrote Pravin Sheth.®? Among government
ministers in Bihar from 1962 to 1985, upper caste representation was
more or less level, but the upper backward castes tripled their presence
and the lower backwards’ representation rose from zero to twelve per
cent. Scheduled Caste and Scheduled Tribe presence, however, was
halved.®3 In Andhra Pradesh between 1957 and 1985, the percentage
of Brahmin legislators dropped from twenty-three to five while the Reddy
and Kamma agriculturalists remained roughly the same, as did the
Scheduled Castes and Tribes. But the percentage of backward caste
legislators rose from thirty-eight to fifty-nine.®
Changes in caste composition and the interests represented have
increased factionalism and floor-crossing—especially in state legislatures
after Congress’s defeats in 1967. The appearance in Parliament and leg-
islatures of many individuals unaccustomed to parliamentary manners—
compounded by the survival society complex, personalization of govern-
ment, and follow-the-leader attitude—has made politics even more un-
savoury and unpredictable. The responsibilities of representative gov-
ernment have taken second place to personal rewards. Parliament at-
h Ue tempted several times during the 1970s to pass anti-defection legislation,
but only in 1985 was it able to do so in the Fifty-second Amendment.
In a nation dedicated to the rule of law, the judiciary had great
responsibilities and aroused great expectations. The country’s resource
of well-trained men—and, at the time, a few women—had been tasked
with preserving the seamless web—‘ordering the life of a progressive
people’, as Attorney General Setalvad had said in January 1950 (chapter
5). The judiciary has much of which to be proud. It has repeiled attempted
subversion and direct attacks from its constitutionally co-equal branches
of government. It has struck down infringements of the Fundamental
Rights and unwise changes in other constitutional provisions, notably
using the 1973 basic structure doctrine and subsequent reaffirmations

62 Sheth, Pravin, Political Developments in Gujarat, Karnavati Publications, Anmedabad,

1998, pp. 60-1.
63 Frankel, Francine R. and Rao, M. S. A. (eds), Dominance and State Power, 2 vols,
Oxford University Press, Delhi, 1989, vol. 1, p. 118.
64 Thid., p. 305.
65 This amendment recognized party splits only if the splinter group numbered one-
third of the party’s parliamentary or state legislature delegation. It provided for the
disqualification of MPs and members of state legislatures if the person had given up
membership in the party of which he had been a candidate, or voted contrary to his party’s
direction. The details of the amendment were included as the Tenth Schedule of the
Constitution.
 A Nation’s Progress 663

of it. Yet the judicial system (to include both the bar and the judges)
has failed adequately to serve the democracy and social revolution strands
of the web (the courts have had little to do with the national unity—
integrity strand). First among these failures has been the system’s denial
of speedy access to justice through the dilatory and self-indulgent
processes of which both judges and lawyers are guilty. Despite the Law
Commission’s concise catalogue of these in its Fourteenth Report in 1958,
and frequent mention since in Chief Justices’ Law Day speeches, there
has been little reform.®° Especially the poor suffer from delay. Low in
the hierarchy, short of money, they often do not attract quality advocates,
or motivated ones who can move their cases up the docket—and then
pursue their cases diligently. In general, the judicial system, in addition
to being genuinely overwhelmed by demands, simply does not care.97
The Supreme Court did not until 1979 give ‘standing’ to third parties
to enable them to assist the poor through public interest litigation.
Only about this time did ‘epistolary jurisdiction’ permit the poor to
address the Court directly. Lacking the constitutional mandates of the
other two branches, the judiciary could not be in the vanguard of social
revolution, but it has asserted only intermittently the reach it does have.
Nor have the executive and Parliament assisted the judiciary in
fulfilling its responsibilities. Vacancies on the bench have contributed
to the slow disposal of cases. Legal aid was not thought about seriously
unti! into the 1970s, and Parliament did not legislate a legal aid agency
until 1987.°9 The executive has been lax in complying with court orders

' 66 For example, the commission in this report recommended that judges should sit
in court five hours a day and 200 days a year; time limits should be set for oral arguments
and delivery of judgernents. See ch. 5.
67 Although the legal process remains glacial, the enormous backlog of cases in arrears
in the Supreme Court has been dramatically reduced by better case management assisted
by the use of computers. This reform has not yet reached the high courts.
68 In 1985, Supreme Court Justice P. N. Bhagwati castigated ‘“legal institutions and
law to
legal actors [who] remain locked in stultifying patterns”’ instead of using “the
Cited in Galanter, Law and Society
provide justice for the most deprived and oppressed”’.
in India, p. 303.
Human
See also Sharma, Mool Chand, Justice P.N. Bhagwati: Court Constitution and
Rights, Universal Book Traders, Delhi, 1995.
poor, see two books
In the considerable literature about thejudicial system and the
ions, New Delhi, 1992, and
by Vasudha Dhagamwar, Law, Power and Justice, Sage Publicat
New Delhi, 1997.
Criminal Justice or Chaos?, Har-Anand Publications Pvt. Ltd.,
s small budget is still
69 This was the Legal Services Authorities Act, 1987. The agency’
unenthusiastically appropriated.
of the Experi Committee on
On legal aid, see Processual Justice to the People (Report
New Delhi, May 1973.
Legal Aid), Ministry of Law, Justice and Company Affairs,
 664 Working a Democratic Constitution

in Public Interest Litigation cases, and the courts have been loathe to
enforce them by using their contempt power. Nor has the bar played a
constructive role. Pro bono practice was scarcely heard of in the early days,
and it is uncommon today despite the recommendation by the Law
Commission in its Fourteenth Report that members of the bar ‘volunteer
to represent in courts poor persons ... gratuitously’ or for small fees
and that bar associations should form legal aid committees for the same
purpose. Important to social revolution though they are becoming,
private voluntary organizations are able to assist only a few litigants.
Government's and the judicial system’s conduct toward the poor, despite
protestations to the contrary, has its origins in the each-for-himself
survival society and in indifference to the needs of those lower in society’s
hierarchy.
The higher judiciary and the subordinate systems in the states—bench
and bar aiike—and the executive branches at the centre and in the states
share responsibility for the blackest blot on the nation’s record: the lengthy
incarceration of individuals awaiting trial. Some seventy per cent of jail
inmates in the country—who number over 150,000 persons—are awaiting
trial.”° Today, as often in the past (chapter 20), many have been prisoners
for periods longer than their sentences would have been had they been
tried and convicted for the crimes of which they had been accused. The
indian Prisons Bill now awaiting Parliament’s approval, illustrates how
this evil continues, one might even say is condoned: undertrial prisoners
jailed for more than half the maximum sentence for their offence may
have their cases referred to the court.’!

The report, whose language bears the imprint of the committee’s chairman, V. R.
Krishna Iyer, said that ‘legal aid is an indispensable social function’ whase ‘spiritual essence
... Consists in investing law with a human soul’. Processual Justice, pp. 1, 10. The governinent’s
enthusiasm for legal aid is revealed in Krishna lyer’s transmittal letter to Law Minister H.
R. Gokhale, in which he detailed the absence of government suppor, ‘including the
absence of any special staff for the committee’. This was a common government treatment
of commissions and committees of this kind: create, but do not assist to function. That
the government should operate a legal system that ‘promotes justice’ and that it should
arrange for ‘free legal aid’ was added to the Directive Principles (Article 39A) in 1976 by
the Forty-second Amendment.
A follow-on to Processual Justice was the report on National Judicare: Equal Justice, Social
Justice (Ministry of Law and Company Affairs, New Delhi, August 1977), prepared byJustices
P. N. Bhagwati and V. R. Krishna lyer with N. L. Vaidyanathan, as the secretary,
and sent to
Prime Minister Morarji Desai. If India is to be a true democracy, said
this report, ‘no
government can deny or delay the planned organization and legislative
execution of a
comprehensive national project for law at the Service of the People’ (p. 1).
° India Today, 17 August 1998, pp. 27ff.
71 Tbid.
 A Nation’s Progress 665

Speaking after taking the oath as Chief Justice of India in January

1950, Harilal Kania said the Court would ‘be quite untouchable by the
legislature or the executive authority in performance ofits duties’. The
next three-and-a-half decades would have disappointed him. He also
would have been disappointed by the susceptibility of some judges in
their personal and official lives to the cultural traits discussed earlier in
this chapter and to the ‘extraneous influences’ that judges themselves
have deplored. Judges have shown sensitivity to executive branch author-
ity; to the desires of locai groups; to considerations of caste and political
correctness when making appointments in judicial administration; and
to the survival society’s interest in post-retirement government jobs,
and in permitting close kin to practice in courts where they sit as judges.
Lawyers have been criticized for many of the same susceptibilities. Bar
associations, according to many senior advocates interviewed, have at-
tempted to influence the selection ofjustices and chief justices and the
transfer to another high court of unpopular judges—the ‘politicization
of practically everything’ mentioned earlier.

Summing Up
‘A constitution may indicate the directicn in which we are to move, but
the social structure wiil decide how far we are able to move and at what
pace,’ wrote André Beteille.’* On the basis of this criterion, two thoughts
are offered. First, the Constitution and its seamless web have met India’s
needs. The inadequacies in fulfilling its promise should be assigned to
those working it and to conditions and circumstances that have defied
greater economic and social reform during the short fifty years since
Indians began governing themselves. The country has achieved greatiy
against greater odds. Second, the society and its hierarchical structure
have shown themselves to be far more flexible and adaptable than might
have been expected-—due directly to incentives in the Constitution,
and coincidentally from forces coming from within and outside society.
The citizens initially disparaged—by many at home and abroad—as
too backward intellectually, economically, and socially to participate
successfully in representative democracy, have embraced the vote and
turned it to their own account. Their influence is strongly felt im state
legislatures and increasingly in Parliament. They have used the weapon
of their oppression, their caste(s), as the focus for mobilization, the
grain of sand around which to build the pearls of upward social and

72 Beteille, The Backward Classes, p. 1

 666 Working a Democratic Constitutzon

economic mobility and political influence. No system other than

© representative democracy would have served society so well and justified
av the framers’ faith that adult suffrage would break the mould of traditional
pus society. The many who society continues to disregard will come to be
heard through their million mutinies. Time’s pace is not only petty but
fynet’ inexorable.
Ww oer As to outside forces, citizens low as well as high have been greatly—
th _» 4 and continue to be increasingly—influenced by what M. N. Srinivas names
\ gi: ‘Westernization’. He means the concepts of positive and negative rights;
. eth eras
vi 3s" codes of law; humanitarianism and egalitarianism; land setthement and
z e4 an end to local wars; and bureaucracy and police. He also classifies as
Westernization the secularization of many daily practices, such as eating,
which traditionally distinguish castes and families from one another./?
One could add to this list the courts, public interest ligation, voluntary
organizations as means to assist the poor in pursuit of their rights, and
the spread of agricultural and industrial innovation in the country’s
society.
Srinivas’s “‘Westernization’, economic development, and the Consti-
tution’s open door have combined to catalyze fundamental changes in
the caste system. These, in their turn, are leading to opener society and
We tes The sense of belonging to a high or a low status in the
| ritual hierarchy ‘is graduaily fading away’, says Dhirubhai Sheth, along
with the overlap of hereditary status and occupation. The ideology and
organization of the traditional system has been ‘vastly eroded’, Sheth
says. Affirmative action policies fostering modern education that have
prepared individuals for non-traditional occupations have produced ‘a
new political leadership among backward castes’. New, broader caste—
class groups are emerging, which, instead of being closed, as in tradi-
@ \ tional hierarchy, are relatively open-ended, Sheth observes. They
represent ‘a kind of fusion between the old status system and the new
power system’.’4 The Constitution, for all its promise yet unfulfilled,
has opened the door to national rebirth.
Society's adaptability also may be measured in terms of the seamless
: web. Society's disparities and diversities have been accomodated to the

73 Srinivas, M. N., Social Change in India, Orient Longman, New Delhi, 1987, pp. 52-
3. Srinivas credits the adoption of Westernization by the upper castes as critical to its
spread. He says that upper castes’ Westernization fuelled the determination of the lower
castes to obtain education and Westernization’s other fruits. Ibid., p. 91.
J 74 This paragraph is based upon the thoughtfulness of Dhirubhai Sheth, ‘Caste and
* Class: Social Reality and Political Representations’ in Panandiker, V. A. Pai and Nandy,
Ashis (eds), Contemporary India, Tata McGraw Hill, New Delhi, 1998.
 Bn san4 i 9 yVA~
Nd be nl Snean up
Se salon nal guy eavOe-
t- --M. tr -
Lhewee
lated oe = ; :

0" eh 4 Nation 's wrogress 667

¢ an aa) “rel

Meh, The ha
point that the nation is united and its integrity assured. Overcentralization
did not succeed in fragmenting the nation. Nehru’s quesuon—how
shall we promote unity yet preserve the rich diversity of our inheritance?—
has been answered, although not to the satisfaction of Hindu militants.
Language issues, for example, so explosive during the Nehru years,
have almost ceased to be an issue in relations between the Centre and
the states and among and within states. Essential for national integrity,
to use P. N. Haksar’s succinct phrase, is understanding the concept of
‘pluralism and transcendence’. Although the years of overcentralization
may have passed, not least because of the advent of coalition
governments in New Deihi, the deliberated decentralization so necessary
for the country’s future, has scarcely begun. ag
The social revolution has gained ground, although it has far to go. ee
It has not taken half or more of the citizens to K. Santhanam’s goal of a St ae
socialism of distribution, which the author interprets to mean fairer FI aa
access to income and goods and services for all citizens. Paired with, and 4}
inseparable from, democracy, the revolution’s inadequacy in assuring ©
citizens their positive right of fulfilling their capacities has impaired
yA Progress ir: democracy. In an apparent paradox, socialism has impaired
r§ progress in the social revolution. But the retarding elements of socialism
are on their way out. Yet government has not given firm evidence of
understanding that in a survival society, without safety nets, redundant
to
workers cannot be forgotten, and that economic liberalization needs
be accompanied by occupational safety and health, and other protections
for workers in the private sector. Capitalism in India isin a very exploitative
stage. |
‘Hindu apathy’ nearly is a thing of the past. The oppressive effects
talents.
of hierarchy are waning as the open society unwraps national
as
Awareness of rights is becoming unquenchable.’® Nevertheless,
several
member of Parliament Jaswant Singh told an American audience
product,
years ago, India should judge itself not by its gross domestic
and
but by a domestic contentment index. Representative government
breezes
constitutional democracy are firmly established. Democratic
to some, by the
are blowing everywhere, as proved, if disconcertingly
with
resulting turmoil and the million mutinies. Public dissatisfactions

ng freely themselves ... Bhagvan

75 *“(The low] are not in my control but are standi
better than us now,” ’ complained a Brahmin
{the Lord] has given us less power ... They are y in Vv/
y. Wadley, Susan S., Struggling with Destin
landlord in Uttar Pradesh to Susan Wadle is an
ornia Press, Berkeley CA, 1994, p. 71. This
Karimpur, 1925-1984, University of Calif oy, no
extraordinarily informative book. + fle ¢ f a,
Wh i

>pe- pry be rw
ZU
 668 Working a Democratic Constitution
the current state of affairs are an affirmation of democracy’s spread,
nota deniai of it. Politics, even when rough and tumble, are played within
the bounds of the Constitution. The open society is a grand achievement
even when sullied by personal selfishness and police-and class- perpetrated
brutality. India is among that handful of modern democracies that has
not had descended into absolutism and risen again to freedom, having
learned the lesson ofvigilance.
The country lost its maternal immunity late in the sixties with the
deciine of the founding generation. For the next two decades it had a
difficult youth. Approaching maturity in the nineties, its most difficult
times lie ahead. Conflict between the web’s democracy and social
revolution strands is inevitable. Absence of government efforts to bring
about social-economic reform will engender conflict as the have-lesses,
frustrated, struggle for opportunity; so, too, will government efforts at
change result in conflict, for the have-mores will resist them as the have—
lesses capitalize upon them. Efforts toward long-term harrnony between
the strands make short-term conflict inevitable. Yet a number of smaller
explosions may be preferable to fewer, larger ones later. Changes
underway in society will breed more change, and, as tradition loses
strength, the citizen will be freer of both negative and positive restraints
on his conduct—unless he has found a new faith, one that includes
social consciousness. Democratic behaviour and social revolutionary
aspirations are destined to conflict.
Governments then will be confronted by two conundrums. The first
is how to stay in power through a reform programme tolerable to both
have-mores and have-lesses—or to gain enough votes from the latter
to do so. Nehru had the stature and the courage to attempt the former,
and he succeeded only in part because the haves and their political
allies thwarted him. Have-less votes brought Indira Gandhi to office in
1971. but she stayed there by not alienating the haves. The second
conundrum will be how to avoid, or resolve, the apparently inevitable
conflict between the executive and the judiciary. With or without
government reform programmes, class violence in the countryside,
especially, is predictable. Will government fulfill its responsibility to
maintain law and order by siding with the haves, repressing the have-lesses,
which long has been the rule more than the exception? If so, it will
have violated its other responsibilities under the Constitution. Or will
it side with the have-lesses by preventing retaliation by the haves against
protesters? Either way, petitions against government actions will go to
the Supreme Court, and the two branches will be in conflict over
jurisdiction, power, and principle. Where, then, will the judges stand
 A Nation’s Progress 669
regarding democracy and social revolution? Article 14 of the Fundamental
Rights says that “The State shall not deny to any person equality before
the law or equal protection of the laws within the territory of India.’ The
words in this article after the ‘or’ seem to place upon government the
positive responsibility to give the have-lesses access to those rights they
previously have been powerless to exercise. Government abstention from
action will be leaving the have-lesses as they are now, at the mercy
of the haves. Governments will be forced to decide between social
intervention or none. The principle and purpose of such intervention
would be quite the reverse of the dampening economic interventionism
of ‘licence, permit, quota raj’.
Rajni Kothari wrote that his society is ‘involved in a democratic
churning, which affects the social fabric, the institutions of the state ...
and both political and economic as well as cultural and ethical ferment.’”®
The country’s citizens will need patience and determination to preserve
the gains they have made and the Constitution that made their attainment
possible. But uniess Kothari’s ‘churning’ produces extensive social and
economic reform, the society and its constitutional system will have failed
the chailenge in Mahatma Gandhi’s ‘talisman’.

76 Kothari, Rajni, “The Indian Enterprise Today’, Daedalus, Fall 1989, p. 58.
 BIBLIOGRAPHY

This book is based upon primary sources to the extent that they could
be found and were accessible. Especially important among these are
archival resources: the private papers and oral history transcripts of
many of the principal actors in constitutional developments. The Nehru
Memorial Museum and Library (housed in a building nearby Jawaharlal
Nehru’s official residence) has the best collections of both in the county,
and an admirable effort to assemble them has been made. One hopes
this effort will continue. The National Archives of India has very few
post-independence private papers, indeed, only fragments of collections,
and the Parliament Museum and Archives has even fewer fragments,
although there the will seems to exist to improve its collection. In these
collections of papers, unpublished government documents are sometimes
found. Otherwise, these rarely are available—due, primarily, to the
disinterest in transferring ministry files to the National Archives of India,
supported by the persisting imperial attitude that the public is not to
know how its government is conducted.
Primary and unpublished sources, in the researching of this book,
also have included a few documents in the Parliament Library (as dis-
tinct from the Museum and Archives), and others kindly given to the
author by private persons. The author includes among primary sources
interviews with individuals who actually participated in the developments:
described. Here, the kind, accommodating and sometimes confiding
character of Indians is a blessing for the historian. Without the informa-
tion and counsel provided by them, this book would be both emptier
and fuller of error. Countless friends and acquaintances who have been
involved closely with constitutional events have also provided informa-
tion and guidance in their roles as secondary sources. Many are named
in the acknowledgements and in the bibliography. Memoirs by persons
historically prominent have been another source, and these are being
published more frequently. But treasures of recollection are being lost
because the tradition of writing memoirs is weak and the desire ‘not to
hurt someone’s feelings’ is strong.
Among published works, original sources are legion. There are
 Bibliography 671

government reports of many kinds, law reports, and the correspondence

and speeches of presidents and prime ministers. The published
correspondence of Sardar Patel, Rajendra Prasad and Jawaharlal Nehru
are invaluable, as are the five volumes of Nehru’s letters to the chief
ministers. These collections are to be found in most serious libraries.
Government reports, parliamentary debates, and much else of value, are
to be found in the Parliament Library. Along with the Nehru Library
these are the two finest in the country, and their staffs have been
wonderfully helpful. The Lok Sabha Secretariat has published basic
reference works : the ‘Documentation Series’ and several] essential guides
such as President's Rule in the States and Union Territories, Council ofMinisters,
and Presidential Ordinances. For law reports, other than those in the libraries
of senior advocates, the source is the Indian Law Institute library,
whose staff has for many years led the author to cases and through legal
thickets.
Political party pamphlets are invaluable for the student of India, for
the literature is extensive, rich, and often very frank about personalities,
policy, and programmes. Philosophy, administrative detail, national and
party goals, and propaganda mingle most informatively. The fullest
collections of these are in the Nehru Library in New Delhi and in the
iYaeadian Institute Library in Oxford. The author maintains a useful
collection. Fewer now are in the Library of Congress in Washington,
but the library has collaborated with University Publications of America
to produce a microfiche collection and a printed guide to it.
Newspapers occupy a space between primary and secondary pub-
lished sources. Their dispatches are invaluable, for the country’s sen-
ior journalists have been very well informed. Newspaper accounts of
judicial hearings are a unique source, for the courts do not keep tran-
scripts of hearings. Care here especially is advised, and the author hopes
he has not gone astray when using them.
Finally, books and articles are the well-recognized published secondary
sources. The latter, particularly as they appear in journals such as those
of the Indian Law Institute and the Institute of Constitutional and
Parliamentary Studies (both now sadly fallen on hard times), have
contributed especially to the author’s education.
Turning to the categories ofsources listed below, several things may
be said. The list of books used is self-explanatory, and this is confined
to works cited in the text except for a very few heavily consulted but not
cited. Countless more over the years have provided the foundation of
the author’s knowledge. This applies equally to articles, learned and
otherwise.
 672 Working a Democratic Constitution

Also, only the political party and other pamphlets cited in the book
are listed here. It would be tedious to list the many hundreds the author
absorbed in his effort to gain the flavour of the times. A selection of
these is given in the University Publications of America guide mentioned
above.

Archival Sources
COLLECTIONS OF PRIVATE PAPERS

Nehru Memorial Museum and Library

AICC Papers Lall, Diwan Chaman

Ambedkar, B. R. Lohia, Rammanohar

Bhargava, Gopichand Mahajan, Mehr Chand

Birla, G. D. Mahiab, Hare Krushna
Brahmanand Menon, P. Govinda
Daulatram, Jairamdas
Mody, H. K.
Deo, Shankarrao
Munshi, K. M.
Deshmukh, C. D. Narayan, Jayaprakash
Dharia, Mohan Nath Pai
Dhebar, U. N. Nehru, Jawaharlal (as received from
Gadgil, N. V. M. O. Mathai)
Gajendragadkar, P. B. Paiil, S. K.
Govind Das, Seth
Rajagopalachari, C.
Hanumanthaiya, K. (diary) Saksena, Mohanlal
Jengar, H. V. R. Santhanam, K.
Shiva Rao, B.
Jain, A. P.
Kabir, Humayun National Archives of India
Katju, K.N. Pant, G. B.
Kher, B. G. Prasad, Rajendra
Krishnamachari, T. T.
Sampurnanand
Santhanam, K.
Parliament Museum and Archives
Bahadur, Raj
Shastri, Ramavatar
Ranga, N. G.
Ray, Renuka

National Institute of Panjab Studies

Singh, Satinder
 Bibliography 673
UNPUBLISHED DOCUMENTS

Antulay, A. R., ‘A Fresh Look at Our Constitution: Some Suggestions’,

mimeograph. (Later published.)
Banerjee, Ashis, “The Reconstruction of Federalism’. In the author’s possession
kindness of Mr Banerjee.
“The Causes and Nature of Current Agrarian Tensions’, Ministry of Home
Affairs, Research and Policy Division, 1969, mimeograph.
‘Proceedings of the First Integration Council—June 2 and 3, 1962’, mimeograph.
Brass, Paul R., ‘India’s Domestic Political Developments’. Paper delivered at a
conference on India and Pakistan, ‘50 Years of Independence: Progress,
Problems, and Prospects’, Woodrow Wilson International Centre fer
Scholars, Washington. DC, June 1997.
Chagla, M. C., ‘Memorial Lecture’, Bombay House, 1977, mimeograph. In the
author’s possession thanks to AdvocateJ.M. Mukhi.
Guhan, S., ‘Three Pieces on Governance’, paper prepared for ‘Workshop on
Governance Issues in South Asia’, Yale University, November 1977. Copy to
the author courtesy of Professor Guhan.
Iengar, H. V. R., “Vallabhbhai Patel’, Birthday Memorial Lecture, Surat, October
1973. Cyclostyle copy in author’s possession kindness of his son, H. V. R. lengar.
Jha, Prem Shankar, ‘Indian Politics Since Independence: A Response to Paul]
Brass’. Paper delivered at a conference on India and Pakistan, Woodrow
Wilson Centre, June 1997.
Kumaramangalam, S. Mohan, ‘A Review of Communist Party Policy from 1947’,
Madras, 23 May 1964. Original cyclostyle copy in author’s possession kindness
of Mrs Kalyani Kumaramangalam.
Merillat, H.C. L., Diaries. Made available to the author kindness of Mr Merillat.
Rao, G. R. S., ‘Summary of Previous Recommendations on National Integration’.
National Committee for Gandhi Centenary at Patna, 1965.
Sastri, Patanjali, ‘Answer to Questionnaire’ of Law Comrnission, 1958. Copy in
author’s possession kindness of Justice Sastri’s daughter.
Singh, Satindra, ‘Interview with Babu Jagjivan Ram’, mimeograph, no date but
spring 1977. In Satinder Singh Papers, National Institute of Panjab Studies,
New Delhi.
Sreedhar, Katherine and Desai, Sonalde, ‘Growth and Inequity: Social Change
in India’, paper delivered at a seminar at the Woodrow Wilson International
Center for Scholars, July 1997.
Tandon, B. N., Diary excerpts. Kindly provided to the author by Mr Tandon.
Venkataraman, R., Rajaji Birthday Lecture, cyclostyle.

ORAL HISTORY TRANSCRIPTS

Bhagat, Usha Desai, C. C.
Chandra Shekhar Deshmukh, C. D.
Chavan, Y. B. Dhebar, U.N.
Deo, Shankarrao Diwakar, R. R.
674 Working a Democratic Constitution

Durgabai, Mrs Ray, Renuka

Giri, V. V. Sachar, Bhim Sen
lengar, H. V. R. Sahgal, Nayantara
Jain, Ajit Prasad Sapru, P. N.
Kamath, H. V. Sampurnanand
Katju, K. N. Santhanam, K.
Kripalani,J. B. Setalvad, M. C.
Krishnamachari, T. T. Shastri, Hiralal
Lall, Diwan Chaman Singh, Hukum
Mahtab, Hare Krushna Singh, Ujjal
Mehta, Ashoka Subramaniam, C. (Rajaji Institute for
Mody, H. K. International and Public Affairs,
Munshi, K. M. Hyderabad)
Nambiar, A. C. N. Sundarayya, P.
Narayan, Jayaprakash Thacker, M. S. °
Nehru, R. K. Verma, Vishwanath
Pant, Apa Vira, Dharma
Patel, H. M. Yagnek, Indulal

INTERVIEWS AND WRITTEN COMMUNICATIONS

Aiyar, Mani Shankar Dharia, Mohan
Alexander, P. C. Dhavan, Rajeev
Ali, Sadiq Dikshit, Sheila
Alva, Margaret Divan, Anil
Antulay, A. R. Divan, B. J.
Ayyar, Alladi Kuppaswami Dutt, R. C.
Bakshi, P. M. Gadgil, V.N.
Balakrishna, H. G. Gae, R. S.
Balakrishnan, S. Garg, R. K.
Basavupanniah Gokhale, P. G.
Baxi, Upendra Gokhale, Rajiv
Bhagat, Usha Gopal, S.
Bhagwati, P. N. Goray, N. G.
Bhandare, M. Grover, A. N.
Bhandare, S. Guhan, S.
Bhattacharjea, Ajit Gujral, I. K-
Bhushan, Shanti Haksar, P. N.
Borooah, D. K. Hegde, Ramakrishna
Chakravarty, Nikhil Hegde, Santosh
Chandrachud, Y. V. Jagmohan
Chaudhari, P. A. Jain, Girilal
Chhibbar,Y. B. Jatti, B. D.
Chopra, Pran Jayakar, Pupul
Desai, D. A. Jethmalani, Ram
Dhar, P. N. Kania, M. H.
Dhar, Vijay Kant, Krishan
 Bibliography
Khanna, H. R. Reddy, Raghunatha
Kothari, Rajni Sachar, Rajinder
Kothari, Smitu Sahay, S.
Krishna, Gopal Sarkar, Chanchal
Krishna lyer, V. R. Sarkaria, R. S.
Kumaramangalam, Kalyani Sathe, S. P.
Kumaramangalam, P. R. Sathe, Vasant
Latifi, Danial Saxena, K. B.
Limaye, Madhu Seervai, H. M.
Madon, Dinshaw Seshan, N. K.
Mahishi, Sarojini Shah, Manubhai
Maitra, S. K. Shakdher, S. L.
Malhotra, Inder Shankar, Shiv
Masani, Minoo Sharma, Hari Dev
Mathur, Girish Sharma, Mool Chand
Maurya, B. P. Sharma, Shankar Dayal.
Mavalankar, P. G. Sikri, S. M.
Mehta, Om Silverman, Julius
Mishra, Brajesh Singh, Karan
Mozoomdar, Ajit Singh, L. P.
Mukarji, Nirmal Singh, Sardar Swaran
Narain, Govind Singhvi, L. M.
Narain, Iqbal Sivaraman, B.
Nariman, Fali Soni, Ambika
Nayar, Kuldip Sorabjee, Soli
Nehru, B. K. Subramaniam, C.
Noorani, A. G. Subramaniam, K. S.
Nijalingappa, S. Sundaram, K. K.
Palkhivala, N. A. Sundaram, K. V. K.
Panandiker, V. A. Pai | Talwalkar, Govind
Panjwani, Ram Tandon, B. N.
Pant, K. C. Tarkunde, V. M.
Paranjpe, H. K. ‘ Tonpe, V. Y.
Patel, Bakhul Tripathi, Dwijendra
Pathak, R. S. Tulzapurkar, V. D.
Prasad, H. Y. Sharada Unnikrishnan, K. P.
Raghavan, B. S. Varadarajan, A.
Ram, N. Venkataraman, R.
Rama Jois, M. Venkataramiah, E. S.
Ramachandran, V. Venkatasubramanian, P. B.
Rangarajan, S. J. Venugopal, K. K.
Ray, S. S. Verghese, George
Reddy, Jaganmohan Vira, Dharma
Reddy, N. Sanjiva Wadhwa, D. C.
Reddy, O. Chinnappa Yadav, Chandrajit
676 Working a Democratic Constitution

POLITICAL PAMPHLETS

(All publications published in New Delhi unless otherwise noted.)

Congress
Report of a Committee to Determine Principles of the Constitution of India, All Parties
Conference, 1928.
‘Resolution on Fundamental Rights and Economic and Social Change’, Report
of the 45th National Indian Congress, AICC, 1931.
All-India Congress Socialist Party Programme, published by Minoo Masani for the
Party, 1937.
Congress Election Manifesto, AICC, 1945.
Report of the Economic Programme Committee, AICC, 1948.
Report of the Ceneral Secretaries, January 1949-September 1950, Indian National
Congress (INC).
Election Manifesto, AICC, 1951.
Report to the All-India Congress Committee, AICC, 1951 (Nehru’s ‘Report’).
The Pilgrimage and After, AICC, 1952.
Preventive Detention Act, Congress Party in Parliament, 1952.
Report of the General Secretaries, January 1954—January 1955, INC.
Resolutions, INC, Sixtieth Session, AICC, 1955.
Congress Bulletin, INC, 1955.
Pant, Pandit G. B., Be Good So That You May Be Great, INC, 1956.
Report of the General Secretaries, March—December 1956, AICC.
Keep the Flame Alive, A Thesis by a Group of Congress Workers, no publication
information, 1957.
Narayan, Shriman, A Plea for Ideological Clarity, INC, 1957.
Report of the General Secretaries, January 195 9-December 1959, AICC.
Report of the General Secretaries, January 1960—December 1960, ACC.
Report of the General Secretaries, January 1961—December 1961, AYCC.
Congress Bulletin, INC, 1963.
Report ofthe Sub-Committee on Democracy and Socialism, AICC, 1964.
Report of the Sub-Commitice on Non-Official Resolutions, AUCC, 1964.
Democracy and Socialism, Drafi Resolution for the 68th Session of ihe Indian Naticnal
Congress at Bhubaneshwar, Malaviya, K. D., no publication information, 1964.
Congress Bulletin, June-July, 1967.
Ghosh, Atulya, The Real Task, AICC, 1967.
Report of the General Secretaries, February 1966—January 1968, ATCC.
Congress Revitalization and Reorganization: Nehru’s Guidelines for the Congress,
Congress Forum for Socialist Action, 1968.
Presidential Address by Shvi Jagjivan Ram, 73rd Plenary Session, Bombay, AICC, 1969.
Dinaria, Mohan and H. D. Malaviya (eds), ‘Crisis in the Congress and Nation :
PM’s letter to Party Members’, Souvenir—Requisitioned Meeting ofAICC Members,
AICG, 1969.
‘Policy Resolution’, /ndian National Congress, 73rd Plenary Session, Bombay, December
1969, AICC, 1970.
 Bibliography 677
From Delhi to Patna, AICC (Congress Marches Ahead II), 1970.
Desai, Morarji, ‘Growing Faces of Disruption and Dictatorship’, Souvenir AICC
Session, Lucknow, 5-6 Dec, 1970, AICC, Congress(O), 1970.
Congress Marches Ahead IV, AICC, 1971.
People’s Victory: An Analysis of 1971 Elections, AICC, 1971.
Kumaramangalam, S. Mohan, Constitutional Amendments: The Reasons Why, AICC,
1971.
Congress Bulleiin, AICC, 1971.
Congress Marches Ahead VI, AICC, 1972.
Congress Marches Ahead VIII, AICC, 1973.
Report of the General Secretaries, June 1972-A ugust 1973, AICC.
New 20-foint Economic Programme: The Pathway to Progress, AICC, 1975.
Shni D. K. Borooah on Constitution (Forty-fourth Amendment) Bill, AICC, 1978.
Proposed Amendmenis to the Constitution of India by the Committee Appointed by the
Congress President Shri D. K. Borooah on February 26, i976, AICC, 1976 (the
Swaran Singh Committee Report).
Congress Marches Ahead 13, AICC, 1976.
Congress and Constitutional Amendments, Centrai Campaign Committee, AICC,
Dec. 1976 orJan. 1977.
Resolutions Adopted at the Calcutta Plenary, AICC, 1984.
Inaugural Speech by Congress President Shn Rajiv Gandhi and the Centenary Resolve,
AICC, 1985.

Socialist Party
Programme of the Socialist Party, Bombay, 1947.
Election Manifesto, Hyderabad, 1957.

Communist Parties
Ghosh, Ajoy, Two Systems: A Balance Sheet, Communist Party of India, 1956.
Problems and Possibilities, Communist Party of India/New Age Printing Press,
1957.
Election Manifesto, Communist Party of India, 1961.
President and Prime Minister Must Revoke Emergency, Restore Fundamental Rights,
Appeal by All Former Chief Justices of India and Leading Citizens,
Communist Party Parliamentary Group/CPI, 1966.
Election Manifesto, CPI, 1971.
Gupta, Bhupesh, Some Comments on Constitutional Changes, CPI, August 1976.
Communist Party of India (Marxist) on Constitutional Changes, CPM, June 1976.
Proposals of the National Council forAmendments to the Constitution of India, CPI,
1976.
Consembly Move and Democratic Fightback, CPI, November 1976. |
Lok Sabha Election: Resolution of the National Council of the Communist Party of India
Held in Delhi from 3 to 6 April 1977, CPI, April 1977.
New Peasant Upsurge, All India Kisan Sabha, 1981.
678 Working a Democratic Constitution
Review of Political Development and Party Activities Since Eleventh Party Congress, CP1/
New Age Printing Press, April 1982.
On Centre-State Relations, CPM, Calcutta, 1983.
CPI’s Stand on Major Issues, CPI, 1985.
Reports of CPI(M) and its Various Frontal Activities (1982-1985), West Bengal State
Committee, CPM, Calcutta, 1985.
Communist Party of India and Fight Against Communalism, CPI, 1985.

Hindu Mahasabha
Chatterjee, N. C., Presidential Address, Hindu Mahasabha, no date.

Bharatiya Jana Sangh

Election Manifesto, 1957, Bharatiya Jana Sangh, 1956.
Upadhyaya, Deen Dayal, Principles and Policies, paper presented at Jana Sangh
General Council meeting, Gwalior, 17 August 1964.

Bharatiya Janata Party (BJP)

Election Manifesto (s), BJP, 1980, 1984.
Towards a New Polity, 1984.
Advani, L. K. ‘Presidential Address’, 9th National Council Session, BJP, 1987.

Praja Socialist Party (PSP)

Statement of Policy, Praja Socialist Party, Bombay, 1954.
General Secretary’s Report: Seventh National Conference, 17-20 May, Ramgarh, PSP,
1964.
General Secretary’s Repori to the 10th National Conference of the Praja Socialist Party,
PSP, 1970.

Swatantra Party
Birth of Swatantra (Freedom) Party, Bangalore, 1959.

Janata Party
Election Manifesto, 1977, Janata Party, 1977.
Janata Bulletin, Janata Party, 1978.
Promises: How Many Fulfilled?, Janata Parliamentary Party, undated but 1979.
Steps Toward Dynamic Growth, September 1979.
Paper on Conspiracy Against the People, 1979.
Noorani, A. G., ‘Implications of President’s Action’, Will ofLok Sabha Was Flouted,
Janata Party, 1979.
White Paper on the Toppling of State Governments, Janata Party, September 1984.
Limaye, Madhu, President versus Prime Minister, Janata Party, Bombay, 1987.
 Bibliography 679
Miscellaneous
Setalvad, M. C., et al., Parliament, Emergency and Personnal Freedom: Opinions of
Jurists, Bar Association of India, New Delhi, 1963.
Kumaramangalam, S. Mohan, /ndia’s Language Crisis, New Century Book House
(P) Ltd., Madras, i965.
, Democracy and Cult of Individual, National Book Club, New Delhi, 1966.
» New Model for Governmental Administration of Industry, A Mainstream
Publication, New Delhi, 1973.
Parliamentary versus Presidential System of Government, Proceedings of a Seminar,
India International Centre, New Delhi, 1966.
Presidential Address and Other Papers for the Convention, A. P. Jain, New Delhi, 1970.
Palkhivala, Nani, The Mess We Ar In, Tata Press Ltd., Bombay, 1974.
, Centre—State Relations: A Broad Perspective, Forum of Free Enterprise,
Bombay, 1983.
Proceedings of the National Seminar on Judicial Appointments and Transfers, Bar
Council of India, New Delhi, 1980.
“Anandpur Sahib Resolution’, Indian Council of Sikh Affairs, New Delhi, 1985.

Government of India Publications

(All publications published in New Delhi unless otherwise noted.)
Constituent Assembly Debates
Annual Reports, Ministry of Home Affairs.
Judges of the Supreme Court and the High Courts (various editions), Department of
Justice, Ministry of Law.
Resolution on Industrial Policy, Ministry of Information and Broadcasting, 6 April
1948.
Crops—Planning and Production, National Planning Committee Series, Bombay,
1949. |
Communist Violence in India, Ministry of Home Affairs, 1949.
The Challenge to Democracy, Publications Division, 1953.
Acts of Parliament, 1952, Ministry of Law andJustice.
Report of the States Reorganization Commission, Manager of Publications, 1955.
Summary ofStates Reorganization Commission Report, Ministry of Home Affairs, 1955.
Mahalanobis, P. C., Draft Recommendations for Formulation of the Second Five-Year
Plan, 1956-1961, Planning Commission, 1955.
Mahalanobis, P. C. et al., Report of the Committee on Distribution of Income and
Levels of Living, Planning Commission, New Delhi, 1964.
Fourth Report: Proposal that High Court Should Sit in Benches at Different Places in a
State, Law Commission, Ministry of Law, 1956.
Resolution on Industrial Policy, Ministry of Information and Broadcasting, 1956.
Second Five-Year Plan, Planning Commission, 1956.
Radhakrishnan, S., Occasional Speeches and Writings: October 1952—January 1 956,
Publications Division/ Ministry of Information and Broadcasting, 1956.
680 Working a Democratic Constitution
Programme,
Taylor, Carl C., A Critical Analysis of India’s Community Development
The Community Projects Administration, 1956.
2 vols with Classified
Fourteenth Report: Reform of Judicial Administration,
1958.
Recommendations, Law Commission, Ministry of Law,
ry of Infor-
‘Statement Issued by the National Integration Conference’, Minist
mation and Broadcasting, 1961.
Division.
Jawaharial Nehru’s Speeches, 1946-64, 5 vols, Publications
ry
Twenty-Seventh Report: Code of Civil Procedure, 1908, Law Commission, Minist
of Law, 1964.
ng
Ladejinsky, Wolf, A Study of Tenurial Conditions in Package Districts, Planni
Commission, 1965.
Twenty-Ninth Report: Proposal to Include Certain Social and Economic Offences in the
Indian Penal Code, Law Commission, Ministry of Law, 1966.
National Policy on Education, 1968, Ministry of Education, 1968.
Report of the Study Team: Centre-State Relationships (Administrauve Reforms
Commission), Manager of Publications, 1968.
‘The Role of Governors’, Report of the Committee of Governors, President's
Secretariat, 1971.
Forty-Sixth Report: Constitution (Twenty-Fifth Amendment) Bill, 1971, Law
Commission, Ministry of Law, undated, but 1971.
Processual Justice to the People (Report of the Expert Committee on Legal Aid),
Ministry of Law, Justice and Company Affairs, May 1973.
Speeches of President V. V. Giri, Publications Division / Ministry of Information and
Broadcasting, 1974.
‘The Conservation of Foreign Exchange and Prevention of Smuggling Activities
(Amendment) Ordinance, 1975’, The Gazetteer of India, July 1975.
Preserving Our Democratic Structure, Division of Audio-Visual Publicity, 1975 (Indira
Gandhi speech reprinted).
Prime Minister’s Broadcast to the Naiion on Proclamation of Emergency, Division of
Audio-Visual Publicity, 1975.
Prime Minister Gandhi on Emergency in India, Ministry of External Affairs, 1975.
Report of the National Commission on Agriculture, Part I: Review and Progress, Ministry
of Agriculture and Irrigation, 1976.
Constitutional Reforms, Division of Audio-Visual Publicity, October 1976.
Speeches ofDr Rajendra Prasad—President of India, Publications Division/ Ministry
of Information and Broadcasting, 3 vols, 1952-77.
White Paper on Misuse of Mass Media During the Internal Emergency, August
1977.
Report on National Judicare: Equal Justice, Social Justice, Ministry of Law, Justice
and Company Affairs, 1977.
Shah Commission ofEnquiry, Interim Report 1, March 1978, Interim Report IT, April
1978, Third and Final Report, August 1978, Controller of Publications.
Eightieth Report: Method of Appointment ofJudges, Law Commission, Ministry of
Law, 1979.
Report of the Backward Classes Commission, Controller of Publications, 1980.
 Bibliography 681
‘Law Minister’s Statement on Appointment of Chief Justices of High Courts’,
Press Information Bureau, 24 July 1980.
Report of the National Police Commission, Ministry of Home Affairs, 1979-81.
Speeches ofPresident Sanjiva Reddy, Publications Division/ Ministry of Information
and Broadcasting, 1983.
Indira Gandhi, Selected Speeches and Writing, 1966-84, 5 vols, Publications Division.
Ninety-Fifth Report: Constitutional Division within the Supreme Court—A Proposal For,
Law Commission, Ministry of Law, 1984.
One Hundred and Twenty-Fourth Report: The High Court Arrears——A Fresh Look, Law
Commission, Ministry of Law, 1988.
One Hundred and Twenty-Fifth Report: The Supreme Court—A Fresh Look, Law
Commissien, Ministry of Law, 1988.
Report of the Commission on Centre—Siate Relations (the Sarkaria Commission), 2
vols, Government of India Press, Nasik, 1988.
Econemic Survey, Ministry of Finance, 1994.

Rajya Sabha Secretariat

Parliamentary Debates, Rajya Sabha

Lok Sabha Secretariat Publications and Unpublished

Documents
(All published in New Delhi.)
Parliamentary Debaies (of the Lok Sabha pre-1952).
Lok Sabha Debates.
Journal of Parliamentary Information.
The Constitution (First Amendment) Biil, 1951: Report of the Select Committee, 1951.
The Constitution (Fourth Amendment) Bill, 1954: Report of the Jornt Committee.
Speeches and Writings, G. V. Mavalankar, 1957.
Papers Laid on the Table, 1959.
Evidence, Joint Committee on the Constitution (Fifteenth Amendment) Bill, 1962.
The Constitution (Seventeenth Amendment) Bill, 1963: Report of the Joint Committee,
1964.
‘Statement Containing a Gist of Main Points Made by Witnesses in their Evidence
before the Committee’, Report of the Joint Committee on the Constitution
(Amendment i.e. Nath Pai) Bill, 1968.
‘Government Bills‘as Introduced in the Lok Sabha, 1972’, Parliament Library,
1972.
The Constitution of India: Commemorative Edition, | January 1973.
‘Need for Constitutional Reforms’, May 1976.
Papers Laid on the Table, 1977.
‘Government Bills, Introduced in the Lok Sahba, 1977’.
682 Working a Democratic Constitution

Background Note, ‘The Forty-Second Amendment and Recent Proposals for

Changes in the Constitution’, 25 February 1978.
‘The Constitution (Forty-fifth Amendment) Bill, 1978’.
Central Acts and Ordinances, 1980.
‘The Terrorist and Disruptive Activities (Prevention) Act, 1985’, Central Acts
and Ordinances, 1985, Parliament Library.
‘The Summary by the Governor of Kerala of His Report to the President’, Home
Ministry document cyclostyled, undated. (Copy in Parliament Library.)
Presidential Ordinances, 1950-1984, 1985.
Constitution Amendment in India, 1986.
President’s Rule in the States and Union Territories, 1987.
Council of Ministers, 1947-1984, and Supplement, 1984--1987, 1987.
The Constitution of India (as modified up to March, 1993).

State Government Publications

Government of West Bengal
‘Statement on Centre-State Relations Released at Srinagar on October 8, 1983’,
Calcutta, no date, but 1983.

Government of Karnataka
‘White Paper on the Office of Governor’, Bangalore, 1983.
‘ Seminar
on Centre—State Relations, Bangalore, August 5—7, 1983: Papers, Group Reports
and Conclusions, Bangalore, 1984.

Government of Kerala
‘Statement of Policy’, Prosperous Kerala: Government Policy Outlined, Central
Government (of Kerala) Press, Trivandrum, 1957.
Public Opinion on the ‘Direct Action’ in Kerala, Directorate of Public Relations,
Trivandrum, 1959.

Government of Tamil Nadu

Charge Sheet Against the Communists, Director of Information and Publicity,
Government of Madras, Madras, 1949.
Report of the Centre-State Relations Inquiry Committee (the Rajamannar Report),
Madras, 1971.

Law Reports
The Supreme Court Reports, Supreme Court of India/ Manager of Publications,
New Delhi.
The Supreme Court Cases, Eastern Book Company, Lucknow.
 Bibliography 683
Supreme Court Almanac (SCALE), LIPS Publications Pvt. Ltd., New Delhi.
The All India Reporter (both Supreme Court and High Court reports), All India
Reporter Ltd., Bombay.
G. C. Sachdeva (ed.), The Unreported Judgements (Supreme Court), published by G.
C. Sachdeva, Jodhpur, 1976.

Books
Agarwal, J.C. and Chaudhry, H. K., Elections in India, Shipra Publications, Delhi,
1992.
Agarwal, Shriman Narayan, Gandhian Constitution for a Free India, Kitabistan,
Allahabad, 1946.
Alexander, P. C., My Years with Indira Gandhi, Vision Books, New Delhi, 1991.
Alexandrowitz, Charles Henry. Constitutional Developments in India, Oxford
University Press, London, 1957. :
Anstey, Vera, The Economic Development of India, Longmans, Green and Co.,
London, 1957.
Antulay, A. R., Appointment of a Chief Justice, Popular Prakashan, Bombay, 19773.
, Democracy: Parliamentary or Presidential, Directorate General of Information
and Public Relations, Government of Maharashtra, Bombay, 1981.
Arora, Balveer and Verney, Dougias V. (eds), Multiple Identities in a Single State,
Konark Publishers Pvt. Ltd., New Delhi, 1995.
Austin, Granville, The Indian Constitution: Cornerstone of a Nation, Clarendon
Press, Oxford, 1966.
Awana, Ram Singh, Pressure Politics in Congress Party, Northern Book Centre,
New Delhi 1988.
Ayyar, Alladi K., A Statesman Among Ju.rists, Bharatiya Vidya Bhavan, Bombay,
1993.
Bandyopadhyaya, J., The Congress and Democratic Socialism, Indian National
Congress, New Delhi, 1968.
Basham, A. L., (ed.), ACultural History ofIndia, 6th impression, Oxford University
Press, New Delhi, 1989.
Basu, Durga Das, /ntroduction to the Constitution of India, 13th edn., Prentice Hall
of India Pvt. Ltd., New Delhi, 1987.
, Shorter Constitution of India, 10th edn., Prentice Hall of India Pvt. Ltd.,
New Delhi, 1988.
Bayley, David H., Preventive Detention in India, Firma K. L. Mukhopadhyay,
Calcutta, 1962.
Baxi, Upendra, The Indian Supreme Court and Politics, Eastern Book Company,
Lucknow, 1980.
, The Crisis in the Indian Legal System, Vikas Publishing House Pvt. Ltd.,
New Delhi, 1983.
, Courage, Craft and Contention: The Indian Supreme Court in the Eighties, N.
M. Tripathi Pvt. Ltd., Bombay, 1985.
684 Working a Democratic Constitution

, Toward a Sociology of Indian Law, Satvahan, New Delhi, 1986.

Béteille, André, The Backward Classes in Contemporary India, Oxford University
Press, New Delhi, 1992.
Bhargava, R. N., The Theory and Working of Union Finance in India, George Allen
& Unwin, London, 1956.
Bhattacharjea, Ajit, Jayaprakash Narayan: A Political Biography, Vikas Publishing
House Pvt. Ltd., New Delhi, 1975.
, Kashmir: The Wounded Valley, UBS Publishers and Distributors Ltd., New
Delhi, 1994.
Bhushan, Prashant, The Case That Shook India, Vikas Publishing House Pvt. Ltd.,
New Delhi, 1978.
Bonner, Arthur, Averting the Apocalypse, Duke University Press, Durham, NC, 1990.
Brass, Paul R., The Politics of India Since Independence, The New Cambridge History of
India, vol. 1V-1, Cambridge University Press/Orient Longman, Cambndge,
1990.
Brecher, Michael, Nehru: A Political Biography, Oxford University Press, London,
1959.
Brown, Judith M., Gandhi: Prisoner of Hope, Oxford University Press, Oxford,
1989 (paperback).
Bullock, Alan, Hitler, A Study in Tyranny, Bantam Books, New York, NY, 1958
(paperback).
Butler, David, Lahiri, Ashoke, and Roy, Prannoy, /ndia Decides: Elections, 1952-
1991, 2nd edn., Living Media Books, New Delhi, 1991.
Carras, Mary, Indira Gandhi in the Crucible of Leadership, Beacon Press, Boston,
MA, 1979.
Carstairs, G. Morris, The Twice-Born, Indiana University Press, Bloomington, IN,
1967 (paperback).
Chand, Phul and Sharma,J. P. (eds), Kederal Financial Relations in india, Institute
of Constitutional and Parliamentary Studies, New Delhi, 1974.
Chandrachud, Y. V., 7he Basics of Indian Constitution: Its Search for Social Justice
and the Role ofthe Judges (Sardar Patel Memorial Lectures, 1987), Publications
Division, Government of India, New Delhi, 1989.
Chatterjee, N. C., Fundamental Rights in Peril, Civil Liberties Union, New Delhi,
no date.
Chaudhary, Valmiki (ed.), Dr. Rajendra Prasad: Correspondence and Select Documents,
19 vols, Allied Publishers Ltd., Bombay, 1984.
Choudhurie, Joyotpaul (ed.), /ndia’s Beleagured Federalism: The Pluralist Challenge,
Center for Asian Studies, Arizona State University, Arizona, 1992.
Coupland, Reginald, /ndian Politics, 1936-1 942: Report on the Constitutional Problem
in India, Oxford University Press, London, 19483.
Datta, Abhijit (ed.), Union—State Relations: Selecied Articles, Indian Institute of
Public Administration, New Delhi, 1984.
Datta, C. L., With Two Presidents, Bell Books/Vikas Publishing House Pvt. Ltd.,
New Delhi, 1971.
 Bibliography 685
Denoon, David B. H., Devaluation under Pressure: India, Indonesia, and Ghana,
MIT Press, Cambridge, MA, 1986.
Desai, A. R. (ed.), Violation: of Democratic Rights in India, Popular Prakashan,
Bombay, 1986.
, Agranan Struggles in India After Independence, Oxford University Press,
Delhi, 1986.
Deshmukh, C. D., The Course of My Life, Orient Longman, New Delhi, 1974.
Dey, S. K., Panchayati Raj, Asia Publishing House, London, 1961.
Dharia, Mohan, Fumes and the Fire, S. Chand and Company Pvt. Ltd., New Delhi,
1975.
Dhagamwar, Vasudeva, Law, Power and Justice, Sage Publications, 2nd edn., New
Delhi, 1992.
, Criminal Justice or Chaos?, Har-Anand Publications, Pvt. Ltd., New Delhi,
1997.
Dhavan, Rajeev, The Supreme Court and Parliamentary Sovereignty, Sterling
Publishers, Pvt. Ltd., New Delhi, 1976.
, The Supreme Court of India, N. M. Tripathi Pvt. Ltd., New Delhi, 1977.
, [heAmendment: Conspiracy or Revolution ?, Wheeler Publishing, Allahabad,
1978.
, President’s Rule in the States, Indian Law Institute/N. M. Tripathi Pvt.
Ltd., Bombay, 1979.
, Justice on Trial: The Supreme Court Today, Wheeler Publishing, Allahabad,
1980.
Dhavan, Rajeev and Jacob, Alice (eds), Selection and Appointment ofSupreme Court
Judges, N. M. Tripathi Pvt. Ltd., Bombay, 1978.
(eds), Indian Constitution: Trends and Issues, Indian Law Institute/N. M.
Tripathi Pvt. Ltd., Bombay, 1978.
Dhillon, G. S., India Commits Suicide, Singh and Singh Publishers, Chandigarh,
1992.
Durga Das, (ed.), Sardar Patel’s Correspondence 1945-1950, 10 vols, Navajivan
Publishing House, Ahmedabad, 1973ff.
Dutt, R. C., Imperialism to Socialism: Memoirs of an Indian Civil Servant, Milend
Publishing Pvt. Ltd., New Delhi, 1985.
, Retreat from Socialism in India, Abhinav Publications, New Delhi, 1987.
Embree, Ainslie, T., India’s Search for National Identity, Chanakya Publications,
New Delhi, 1980 (second revised edn.).
Frankel, Francine R., /ndia’s Political Economy, 1947-1977: The Gradual Revolution,
Princeton University Press, Princeton, NJ, 1978.
Frankel, Francine R. and Rao, M. S. A., Dominance and State Power in Modern
India, 2 vols, Oxford University Press, Delhi, 1989.
Gadgil, N. V., Government from Inside, Meenakshi Prakashan, Meerut, 1968.
Gae, R. S., Bank Nationalisation Case and the Constitution, N. M. Tripathi Pvt.
Ltd., Bombay, 1971.
Basic Postulates,
Gajendragadkar, P.B., The Constitution ofIndia: Its Philosophy and
Oxford University Press, Nairobi, 1970.
686 Working a Democratic Constitution

. The Indian Parliament and Fundamental Rights, Eastern Law House,

Calcutta, 1972.
, To the Best of My Memory, Bharatiya Vidya Bhavan, Bombay, 1983.
Galanter, Marc, Competing Equalities, University of California Press, Berkeley, CA,
1984.
, Law and Society in Modern India, Oxford University Press, Delhi, 1989.
Gandhi, Arun, The Morarji Papers, Vision Books, New Delhi, 1983.
Gandhi, Indira, Revitalizing Congress: Recent Speeches and Writings ofIndira Gandhi,
Kalamkar Prakashan, New Delhi, (undated but 1969).
Gandhi, Sonia (ed.), Two Alone, Two Together: Letters Between Indira Gandhi and
Jawaharlal Nehru, 1940-1964, 2 vols, Hodder & Stoughton, London, 1992,
(vol. 1, Freedom’s Daughter, contains letters from 1922-39).
George, P. T., Terminology in Indian Land Reforms, Gokhale Institute of Politics
and Economics/Orient Longman Ltd., New Delhi, 1972.
Gledhill, Alan, The Republic of India, Stevens and Sons Ltd., London, 1951.
Godbole, Madhav, Unfinished Innings, Orient Longman, New Delhi, 1996.
Gopal, Sarvepalli, Jawaharlal Nehru, 3 vols, Oxford University Press, New Delhi,
1979ff.
, Radhakrishnan, Oxford University Press, New Delhi, 1989.
(ed.), Selected Works ofJawaharlal Nehru, 20 vols, Oxford University Press,
New Delhi.
Gould, Harold A., Grassroots Politics in India, South Asia Publications, Columbia,
MO, 1994.
Gupta, D. C., Indian Government and Politics, 4th edn., Vikas Publishing House
Pvt. Ltd., New Delhi, 1978.
Haksar, P. N., Premonitions, Interpress, Bombay, 1979.
, Reflections on Our Times, Lancer Publications, New Delhi, 1982 (Sarojini
Naidu Memorial Lecture at Jawaharlal Nehru University).
Hall, Kermit (ed.), The Oxford Companion to the Supreme Court of the United States,
Oxford University Press, New York, NY, 1992.
Hardgrave, Robert L. Jr, The Dravidian Movement, Popular Prakashan, Bombay,
1965.
and Kochanek, Stanley, India: Government and Politics in a Developing
Nation, 5th edn., Harcourt Brace Jovanovich College Publishers, New York,
NY, 1993 (and previous editions).
Hart, Henry C. (ed.), Indira Gandhi's India: A Political System Reappraised, Westview
Press, Boulder, Colorado, 1976.
“Hazarika, Sanjoy, Strangers in the Mist, Viking/Penguin Books India, New Delhi, -
1994,
Hegde, K. S., Judiciary and the People, A ‘Friends of Democracy’ Publication,
New Delhi, 1973.
Heginbotham, Stanley I., Cultures in Conflict: The Four Faces ofIndian Bureaucracy,
Columbia University Press, New York, NY, 1975.
Hood Phillips, O., Constitutional and Administrative Law, 5th edn., Sweet and
Maxwell, London, 1973.
 Bibliography 687
Ibert, Courtenay, The Government of India, Clarendon Press, Oxford, 1916.
Iqbal, Mohammed, The Law of Preventive Detention in England, India, and Pakistan,
Punjab Religious Book Society, Lahore, 1955.
Jackson, Robert H., The Struggle
ForJudicial Supremacy, Vintage Books, New York,
1941 (paperback.)
Jagmohan, My Frozen Turbulence in Kashmir, Allied Publishers, New Delhi, 1991.
Jain, C. K. (ed.), Constitution ofIndia: In Precept and Practice, Lok Sabha Secretariat,
New Delhi, 1992.
Jain, M. P., Indian Constitutional Law, N. M. Tripathi Pvt. Ltd., Bombay, 1987.
Jatti, B. D., J am My Own Model: An Autobiography, Konark Publishers Pvt. Ltd.,
Delhi, 1993.
Jannuzi, F. Thomasson, Agrarian Crisis in India, Sangam Books, New Delhi, 1974.
, India in Transition, Westview Press, Boulder, CO, 1989.
Jayakar, Pupul, Indira Gandhi, Viking/Penguin Books, New Delhi, 1992.
Jennings, Sir Ivor, Cabinet Government, 2nd edn., Cambridge University Press,
Cambridge, 1951.
, Parliament, 2nd edn., Cambridge University Press, Cambridge, 1957.
Johnston, Hugh, The Voyage of the Kamagata Maru, the Sikh Challenge to Canada’s
Colour Bar, Oxford University Press, Delhi, 1979.
Kagzi, M. C. J., The June Emergency and Constitutional Amendments, Metropolitan
Book Company Pvt. Ltd., New Delhi, 1977.
Kamat, A. N., The Defence of India Act, 1939, and the Rules Made Thereunder,
Hindmata Printing House, Dharwar, 1944.
Kapur, Rajiv A., Szkh Separatism, Vikas Publishing House Pvt. Ltd., New Delhi,
1987.
Kakar, Sudhir, The Inner World, 2nd edn., Oxford University Press, New Delhi,
1982 (paperback).
Kashyap, Anibiran, Governors’ Role in the Indian Constitution, Lancer Books, New
Delhi, 1993.
Kashyap, Subhash and Kashyap, Savita, The Politics ofPower, National Publishing
House, Delhi, 1974.
Kashyap, Subhash (ed.), N. M. Kaul, and S. L. Shakdhar: Practice and Procedure of
Parliament, Lok Sabha Secretariat/ Metropolitan, New Delhi, 1991.
, Reforming the Constitution, UBSPD Publications, New Delhi, 1992.
(ed.), Perspectives on the Constitution, India International Centre/Shipra
Publications, New Delhi, 1993.
, History of the Parliament in India, Centre for Policy Research/Shipra
Publications, New Delhi (two volumes published of six projected).
Kaul, Vimla, India Since Independence: 1947-1977, Sagar Publications, New Delhi
1978, vols 1-9.
Kennedy, Charles H. and Louscher, David J. (eds), Civil Military Interaction in
Asia and Afnca, E. J. Brill, Leiden, 1991.
Khanna, H. R., Neither Roses Nor Thorns, Eastern Book Company, Lucknow, 1985.
, Judiciary in India and Judicial Practice, Ajoy Law House/S. C. Sarkar &
Sons Pvt. Ltd., Calcutta, 1985.
688 Working a Democratic Constitution

Kochanek, Stanley A., The Congress Party in India, Princeton University Press,
Princeton, NJ, 1968.
Kogekar, S. V. and Park, Richard L., Reports on the Indian General Elections,
1951-52, Popular Book Depot, Bombay, 1956.
Kohli, Atul (ed.), India’s Democracy, Princeton University Press, Princeton, NJ,
1988.
, Democracy and Discontent, Cambridge University Press, Cambridge, 1990.
Kothari, Rajni, Politics in India, Orient Longman Ltd., New Delhi, 1970.
Kumaramangalam, S. Mohan, Judicial Appointments, Oxford and IBH Publishing
Co., New Delhi, 1973.
, Coal Industry in India: Nationalization and Tasks Ahead, Oxford and IBH
Publishing Co., New Delhi, 1973.
Kunhi Krishnan, T. V., Chavan and the Troubled Decade, Somaiya Publications
Pvt. Ltd., Bombay, 1971.
Laski, Harold, A Grammar of Politics, George Allen and Unwin, London, 1960.
Limaye, Madhu, The New Constitutional Amendments: Death-Knell of Popular Liberties,
Allied Publishers Pvt. Ltd., New Delhi, 1977.
, Contemporary Indian Politics, Radiant Publishers, New Delhi, 1987.
, Cabinet Government in India, Radiant Publishers, New Delhi, 1989.
, Janata Party Experiment, 2 vols, B. R. Publishing Corporation, New Delhi,
1994.
Mahajan, Mehr Chand, Looking Back, Asia Publishing House, New York, NY,
1963.
, Preserving Unity ofIndia, The Sulakhani Devi Mahajan Trust, New Delhi,
1970.
Mahtab, H. K., While Serving My Nation, Vidyapuri, Cuttack, 1986.
Malaviya, H. D., CJA: Its Real Face, Rajkamal Prakashan, New Delhi, 1975.
Malaviya, K. D., Socialist Ideology of Congress: A Study in its Evolution, A Socialist
Congressman Publication, New Delhi, 1966.
Malhotra, Inder, Indira Gandhi: A Personal and Political Biography, Hodder &
Stoughton, London, 1989.
Malik, Surendra (ed.), The Fundamental Rights Case: The Critics Speak, Eastern
Book Company, Lucknow, 1975.
Manor, James (ed.), Nehru to the Nineties, University of British Columbia Press,
Vancouver, 1994 (paperback).
Mansingh, Surjeet, Historical Dictionary of India, The Scarecow Press, Inc.,
Lanham, MD, 1996.
Mehta, Ashoka, Who Owns India?, Chedana Prakashan Ltd., Hyderabad, 1950.
Mehta, Hemangini (ed.), Election Manifestos, 1971, Awake India Publications,
New Delhi, 1971.
Menon, V. P, The Integration of the Indian States, Longmans Green and Co.,
London, 1956.
Merillat, H. C. L., Land and the Constitution in India, Columbia University Press,
New York, 1970. (Published in India by N. M. Tripathi Pvt. Ltd., Bombay,
1970).
 Bibliography 689
Mirchandani, G. G,. (ed.), /ndia Backgrounders, printed and published by G. G.
Mirchandani, New Delhi, 1976ff.
, Reporting India, 1977, Abhinav Publications, New Delhi.
, The People’s Verdict, Vikas Publishing House Pvt. Ltd., New Delhi, 1980.
Mishra, S. N., The Crisis, the Country, the Congress, Congress Forum for Socialist
Action, New Delhi, 1967.
Mookenji, Radha Kumud, The Fundamental Unity ofIndia, Bharatiya Vidya Bhavan,
Bombay, 1960 (1914).
Morris-Jones, W. H., Parliament in India, Longmans Green and Co., London,
1957.
, The Government and Politics of India, Hutchinson University Library,
London, 1964.
, Politics, Mainly Indian, Orient Longman, New Delhi, 1978.
Mukerjee, Hiren, The Gentle Colossus, Oxford University Press, New Delhi, 1986
(paperback).
Mukarji, Nirmal, and Arora, Baiveer (eds), Federalism in India: Origins and
Development, Centre for Policy Research/Vikas Publishing House Pvt. Ltd.,
New Delhi, 1992.
Mukarji, Nirmal and Banerjee, Ashis, Democracy, Federalism and the Future ofIndia’s
Unity, Centre for Policy Research/Uppal Publishing House, New Delhi, 1987.
Munshi, K. M., The Bombay High Court: Half a Century of Reminiscences, Bharatiya
Vidya Bhavan, Bombay, 1963.
Myrdal, Gunnar, Indian Economic Planning in its Broader Setting, Congress Party
in Parliament, New Delhi, 1958.
Naipaul, V. S., India: A Million Mutinies Now, Penguin Books, London, 1992
(paperback).
Nanda, B. R., Jawaharlal Nehru, Oxford University Press, New Delhi, 1995.
, The Nehrus: Motilal and Jawaharlal, George Allen and Unwin Ltd.,
London, 1962.
Narayan, Jayaprakash, Toward Total Revolution: Politics in India, Popular
Prakashan, Bombay, 1978.
, Prison Diary, Shah, A. B. (ed.), University of Washington Press, Seattle,
WA, 1978.
Narayanan, V. N. and Sabharwal, Jyoti (eds), India at 50: Bliss of Hope, Burden of
Reality, Sterling Publishers Pvt. Ltd., New Delhi, 1997.
Nayar, Kuldip, The judgement, Vikas Publishing House Pvt. Ltd., New Delhi, 1977.
(ed.), Supersession ofJudges, Indian Book Company, New Delhi, 1973,
Nehru, B. K., Nice Guys Finish Second, Viking/Penguin Books, New Delhi, 1997.
, Thoughts on Our Present Discontents, Allied Publishers Pvt. Ltd., New Delhi,
1986.
Nehru, Jawaharlal, The Unity ofIndia, 3rd impression, Lindsay Drumond, London,
1948 (1941).
, TheDiscovery ofIndia, 4th edn., Meridian Books Ltd., London, 1956 (1946).
, An Autobiography, The Bodley Head, London, 1958 (reprint).
690 Working a Democratic Constitution

, Letters to Chief Ministers, Parthasarthi, G. (gen. ed.), 5 vols, Jawaharlal

Nehru Memorial Fund/Oxford University Press, New Delhi, 1989 (reprint).
Noorani, A. G., /ndia’s Constitution & Politics, Jaico Publishing House, Bombay,
1970.
, (ed.), Public Law in India, Vikas Publishing House Pvt. Ltd., New Delhi,
1982.
, The Presidential System: The Indian Debate, Sage Publications, New Delhi,
1989.
, Indian Affairs: The Constitutional Dimension, Konark Publishers Pvt. Ltd.,
Delhi, 1990.
, Indian Affairs: The Political Dimension, Konark Publishers Pvt. Ltd., Delhi,
1990.
Norman, Dorothy (ed.), /ndira Gandhi: Letters to an American Fnend, 1950-1984,
Harcourt Brace Jovanovitch, New York, NY, 1985.
Oldenburg, Philip (ed.), India Briefing (annual 1987-96), Asia Society/M. E.
Sharpe, New York, NY.
Overstreet Gene D. and Windmiller, Marshall (eds), Communism In India,
University of California Press, Berkeley, CA, 1959.
Palkhivala, N. A., Our Constitution, Defaced and Defiled, Macmillan, New Delhi, 1975.
, We, the Nation, UBS Publishers and Distributors Ltd., New Delhi, 1994.
Panandiker, V. A. Pai and Nandy, Ashis (eds), Contemporary India, Tata/ McGraw
Hill, New Delhi, 1988.
Panandiker, V. A. Pai and Mehra, Ajoy K., The Indian Cabinet:AStudy in Governance,
Centre for Policy Research/Konark Publishers Pvt. Ltd., New Delhi, 1996.
Pandit, H. N., The PM’s President, S. Chand and Co. Pvt. Ltd., New Delhi, 1974.
Patel, Manibehn, and Nandurkar, G. M. (eds), Sardar’s Letters, Mostly Unknown,
Sardar Vallabhbhai Patel Smarak Bhavan, Ahmedabad, 1983.
Patil, S. K., My Years with Congress, Parchure Prakashan Mandir, Bombay, 1991.
Pillai, S. Devadas (ed.), The Incredible Elections: 1977, Popular Prakashan, Bombay,
1977.
Prasad, S. and Mehrotra, B. N., Defence of India Law and Rules, 4 vols, Law
Publishers, Allahabad, 1963.
Rajagopalachari, C., Our Democracy, B. G. Paul & Co., Madras, 1957.
Rama Jois, M., Historic Legal Battle, M. R. Vimala, Bangalore, 1977.
Ramakant (ed.), Nation-building in South Asia, 2 vols, University of Rajasthan/
South Asian Publishers, New Delhi, 1991.
Reddy, N. Sanjiva, Without Fear or Favour: Reminiscences and Reflections ofa President,
Allied Publishers Ltd., New Delhi, 1989.
Reddy, P. Jaganmohan, Social Justice and the Constitution, Andhra University Press,
Vishakhapatnam, 1976.
, We Have a Republic: Can We Keep It, Department of Law, Sri Venkateswara
University, Tirupati, 1984.
Roy, Ramashray and Sisson, Richard (eds), Diversity and Dominance in Indian
Politics, 2 vols, Sage Publications, New Delhi, 1990.
 Bibliography 691

Rudolph, Lloyd I. and Rudolph, Suzanne Hoeber, /n Pursuit ofLakshmi, University

of Chicago Press, Chicago, IL, 1987.
Sachs, I., Hobsbawm, E. J. et al., Peasants in History: Essays in Honour of Daniel
Thorner, Oxford University Press, Calcutta, 1980.
Sahay, S., A Close Look, Allied Publishers Pvt. Ltd., New Delhi, 1987.
Sahgal, Nayantara, [ndira Gandhi: Her Road to Power, MacDonald & Co., London,
1982.
Sampurnanand, Memories and Reflections, Asia Publishing House, Bombay, 1962.
Santhanam, K., Planning and Plain Thinking, Higginbothoms Pvt. Ltd., Madras,
1958.
, Union-State Relations in India, Indian Institute of Public Administration /
Asia Publishing House, London, 1960.
Sarkar, Bidyut (ed.), PN. Haksar, Our Times and the Man, Allied Publishers, Pvt.
Ltd., New Delhi, 1989.
Sarkar, R. C. S., Union-State Relations in India, Institute of Constitutional and
Parliamentary Studies/ National Publishing House, New Delhi, 1986.
Sathe, S. P., Constitutional Amendments, 1950-1988, N. M. Tripathi Pvt. Ltd.,
Bombay, 1989.
——et al., Democracy and Constitution, Citizens for Democracy, Pune, 1976.
Sathe, Vasant, Two Swords in One Scabbard: A Case for Presidential Form of
Parliamentary Democracy, NIB Publishers, New Delhi, 1989.
Schubert, Glendon, and Danelski, DavidJ. (eds), Comparative Judicial Behaviour,
Oxford University Press, New York, 1969.
Seervai, H. M., The Emergency, Future Safeguards and the Habeas Corpus Case, N. M.
Tripathi Pvt. Ltd., Bombay, 1978.
, Constitutional Law of India, 3rd edn., 3 vols, N. M. Tripathi Pvt. Ltd.,
Bombay, 1983.
Seshan, N. K., With Three Prime Ministers, Wiley Eastern Ltd., New Delhi, 1993.
Setalvad, M. C., The Common Law in India, N. M. Tripathi Pvt. Ltd., Bombay,
1970 (reprint).
, My Life, Law and Other Things, N. M. Tripathi Pvt. Ltd., Rods.
——-et al., Parliament: Emergency and Personal Freedom: Opinions ofJurists, Bar
Association of India, New Delhi, 1963.
New Delhi,
Sethi,J.D., India’s Static Power Structure, Vikas Publications Pvt. Ltd.,
1969.
Ltd., New Delhi,
Shankardass, Rani Dhavan, Vallabhbhai Patel, Orient Longman
1988.
ophy and Social Action
Sharma, Dhirendra, The Janata (People ’s) Struggle, A Philos
Publication, New Delhi, 1977.
Human Rights,
Sharma, Mool Chand, Justice P. N. Bhagwati: Court Constitution and
Universal Book Traders, Delhi 1995.
Publications, Ahmedabad,
Sheth, Pravin, Political Developments in Gujarat, Karnavati
1998.
5 vols, The Indian Institute of
Shiva Rao, B., The Framing of India’s Constitution,
y, 1968.
Public Administration/N. M. Tripathi Pvt. Ltd., Bomba
692 Working a Democratic Constitution

Shourie, Arun, Symptoms of Fascism, Vikas Publishing House Pvt. Ltd., New Delhi,
1978.
, Institutions in the Janata Phase, Popular Prakashan Pvt. Ltd., Bombay, 1980.
, Mrs Gandhi's Second Reign, Vikas Publishing House Pvt. Ltd., New Delhi,
1984.
Shrivastava, S. and Kotare, D. (eds), Revolutionary Visionary: Dr Shankar Dayal
Sharma Felicitation Volume, Dr Shankar Dayal Sharma Felicitation Volume
Organizing Committee, Bhopal, 1973.
Singh, Charan, /ndia’s Poverty and Its Solution, Asia Publishing House, New York,
1964.
Singh, Hari Kishore, A History of the Praja Socialist Party, Narendra Prakashan,
Lucknow, 1959.
Singh, Khushwant, Women and Men in My Life, UBS Publishers Distributors Ltd.,
New Delhi, 1995.
Singh, L. P., Office ofPrime Minister, Retrospect and Prospect, Centre for Policy Research,
New Delhi, 1995.
Singh, Mahendra P. (ed.), V. N. Shukla’s Constitution of India, 9th edn., Eastern
Book Company, Lucknow, 1994.
Singh, Satinder, Communists in Congress: Kumaramangalam’s Thesis, D. K.
Publishing House, New Delhi, 1973.
Singh, Zail, Memoirs of Giani Zail Singh: The Seventh President of India, Har-Anand
Publications Pvt. Ltd., New Delhi, 1997.
Singhvi, L. M., Parliament and Constitutional Amendment, Institute of Constitutional
and Parliamentary Studies, 1970.
, Freedom on Trial, Vikas Publishing House Pvt. Ltd., New Delhi, 1991.
, (ed.), Fundamental Rights and Constitutional Amendment, Institute of
Constitutional and Parliamentary Studies, New Delhi, 1971.
, (ed.), Bank Nationalization and the Supreme Court Judgement, Institute of
Constitutional and Parliamentary Studies, New Delhi, 1971.
Sinha, B. P., Reminiscences and Reflections of a vat beta B. R. Publishing
Corporation, Delhi, 1985.
Sinha, J. M. L., The Constitution, the Judiciary and the People, Popular Prakashan,
Bombay, 1983.
Siwach,J. R., Dynamics of Indian Governments and Politics, 2nd enlarged edn.,
Sterling Publishers Pvt. Ltd., New Delhi, 1990.
Sorabjee, Soli]., The Emergency, Censorship and The Press in India, 1975-77, Central
News Agency Pvt. Ltd., New Delhi, 1977.
——etal., The Governor: Sage or Saboteur, Roli Books International, New Delhi,
1985.
Spratt, P., Hindu Culture and Personality, Delhi Printers Prakashan, Delhi, 1977.
Srinivas, M. N., Social Change in India, Orient Longman, New Delhi, 1987
(paperback).
Srivastava, C. P., Lal Bahadur Shastri: A Life of Truth in Politics, Oxford University
Press, New Delhi, 1995.
 Bibliography 693

Subramaniam, C., Hand of Destiny, vol. 1, Turning Point, Bharatiya Vidya Bhavan,
Bombay, 1993.
Swaroop, V., Law of Preventive Delention, D.L.T. Publications, Delhi, 1990.
Thapar, Raj, All These Years, Seminar Publications, New Delhi, 1991.
Tirumalai, R., 77K, The Dynamic Innovator, TT Maps and Publications Pvt. Ltd.,
Madras, 1988.
Vasudev, Uma, Two Faces of Indira Candhi, Vikas Publishing House Pvt. Ltd.,
New Delhi, 1977.
Venkataramiah, V. (ed.), Essays on Constitutional Law (Alladi Krishnaswarny Aiyar
Memorial Volume), Concept Publishing Company, New Delhi, 1986.
Wadhwa, D. C., Repromulgation of Ordinances: A Fraud on the Constitution of India,
Gokhale Institute of Politics and Eccnomics, Pune, 1983.
Wadley, Susan S., Struggling with Destiny in Karimpur, 1925-1984, University of
California Press, Berkeley, CA, 1994.
Weiner, Myron, Sons of the Soil, Princeton University Press, Princeton, NJ, 1978.
Williams, Stephen K. (ed.), Cases Argued and Decided in the Supreme Court of the
United States. The Lawyers Cooperative Publishing Company, Rochester, NY,
1926.
Wiser, William and Wiser, Charlotte, Behind Mud Walls, 1930-1 960, With a Sequel:
The Village in 1970, University of California Press, Berkeley, CA, 1971.
World Bank, Primary Education in India, World Bank, Washington, DC, 1997.
Zaidi, A. M., Aloud and Straight: Frank Talks at Party Meetings, Indian Institute of
Applied Political Research, New Delhi, 1984.
, Not by Class War: A Study of Congress Policy on Land Reform During the Last
100 Years, Indian Institute of Applied Political Research, New Delhi, 1985.
, The Directives of the Congress High Command to Ministers and Chief Ministers,
Indian Institute of Applied Political Research, New Delhi, 1986.
, Encyclopaedia of the Indian National Congress, S. Chand and Company
Ltd., New Delhi, vols 1-28 until 1994.
Bombay,
Zakaria, Rafiq (ed.), A Study of Nehru, Times of India Publications,
2nd revised edn., 1960.
Delhi,
Zins, Max Jean, Strains on Indian Democracy, ABC Publishing House, New
1988.

Articles
Law’, in Oldenburg (1993).
Austin, Granville, ‘The Constitution, Society, and
tan Times, 15 April 1994.
Bal Krishna, ‘Putting an End to “Kin Sindrome”’, Hindus
ananda Bharati and
Baxi, Upendra, “The Constitutional Quicksands of Kesav
the Twenty-fifth Amendment’, in Malik (1975).
?’, Journal of the Bar Council
Beg, M. H., ‘Our Legal System: Does it need a Change
|
of India, vol. 9, no. 2, 1982.
e-State Relations’, Economic
Bhambri, C. P., ‘Role of Paramilitary Forces in Centr
and Political Weekly, vol. 13, no. 17.
 694 Working a Democratic Constitution

, Federal Politics: A Trend Report’, A Survey ofResearch in Political Science,

Allied Publishers Pvt. Ltd., New Delhi, 1981.
Bhasin, Prem, ‘The Deathly Drama’, Janata, Annual Number, 1971.
Bhattacharjea, Ajit, ‘A Tragedy of Errors’, Indian Express, 8 Gctober 1977.
Bhattacharya, J. K., ‘Development Planning and Its Impact on Union-State
Relations’, Journal of Constitutional and Parliamentary Studies, vol. 6, no. 3, 1972.
Blackshield, A. R., ‘“Fundamental Rights” and the Institutional Viability of the
Indian Supreme Court’, Journal of the Indian Law Institute, vol. 8, no. 2, 1966.
Bombwall, K. R., ‘The Finance Commission and Union-State Relations in India’,
Indian Journal of Public Administration, vol. 10, no. 2, 1964.
, Federalism and National Unity in India’, Journal of Constitutional and
Parliamentary Studies, vol. 1, no. 1, 1967.
Chelliah, Raja, ‘Towards a Decentralized Polity: Outlines of a Proposal’,
Mainstream, 25 May 1991.
Conrad, Dieter, ‘Limitation of Amendment Procedures and the Constituent
Power’, The Indian Yearbook ofInternational Affairs, 1966-1967, New Delhi, 1970.
Derrett, J. Duncan M., ‘Social and Political Thoughts and Institutions’, in
Basham (1989).
Deshpande, V. S., ‘High Court Judges: Appointment and Transfer’, Journal of
the Indian Law Institute, vol. 27, no. 2, 1985.
Dhar, P. N., ‘The Prime Minister’s Office’, in Sarkar (1989).
Dhavan, Rajeev, ‘President’s Rule in the States’, Journal of Constitutional and
Parliamentary Studies, vol. 3, no. 4, 1969.
, ‘The Basic Structure Doctrine—A Footnote Comment’ in Dhavan and
Jacob (1978).
, Ihe Government versus the Supreme Court’, Statesman (New Delhi),
26 June 1981.
» Amending the Amendment: The Constitution (Forty-fifth Amendment)
Bill, 1978’, Journal of the Indian Law Institute, vol. 20, no. 2, 1978.
Dumont, René, ‘India’s Agricultural Defeat’, New Statesman, 19 Decembe
r 1959.
Dutt, R. C, ‘Indian Bureaucracy in Transition’, in Sarkar (1989).
Gadbois, George H.Jr., ‘Indian Supreme Court Judges: A Portrait’, Law
and
Society Review, vol. 3, no. 2, 1968.
, Selection, Background Characteristics and Voting Behaviour of Supreme
Court Judges, 1950-59’, in Schubert and Danelski (1969).
Ganguly, Sumit, ‘From the Defence of the Nation to the
Aid of the Civil: The
Army in Contemporary India’, in Kennedy and Louscher (1991).
Gehlot, N. S., ‘Indian Federalism and the Problem of
Law and Order’, Journal
of Constitutional and Parliamentary Studies, vol. 14, no. 2, 1980.
Guhan, S., ‘Constitutional Collapse: In Tamil Nadu
or in Delhi?’, /rontline, 16
February-1 March, 1991,
, Federalism and the New Political Economy in India’, in
Arora and Verney
(1995).
Hart, Henry C., ‘Political Leadership in India’, in
Kohli (1988).
 Bibliography 695

Hegde, Ramakrishna, ‘Plea for a United States of India’, Mainstream, 15 June

1991.
Hewitt, Vernon, “The Prime Minister and Parliament’ in Manor (1994).
Jacob, Alice, ‘Centre—State Governmental Relations in the Indian Federal
System’, Journal of the Indian Law Institute, vol. 10, 1968.
Jacob, Alice and Dhavan, Rajeev, “The Dissolution Case: Politics at the Bar of
the Supreme Court’, Journal of the Indian Law Institute, vol. 19, no. 4, 1977.
Jain, H. M., ‘Presidential Prerogatives in a Situation of Multipartite Contest for
Power: A Case Study’, Journal of Constitutional and Parliamentary Studies, vol.
16, nos. 1-2, 1982.
Jha, Prem Shankar, ‘Authoritarianism on the Right’, Financial Times, 3 November
1980.
Kashyap, Subhash C., ‘The Ninth Lok Sabha: Socio-Economic Analysis of
Membership’, Journal of Parliamentary Information, March 1990.
Katyal, K. K., ‘A Disconcerting Scenario: Current Controversies and Confron-
tationalist Trends’, Hindu, 29 December 1980.
Khanna, H. R., ‘Shall We Toss for a President?’, Times of India, 19 April 1981.
Kochanek, Stanley, ‘Mrs Gandhi’s Pyramid: the New Congress’, in Hart (1976).
Kogekar, S. V., ‘Constitutional Amendment Bill’, Economic and Political Weekly,
vol. 9, no. 42, 16 October 1976.
Koppell, G. O., ‘The Emergency, The Courts and Indian Democracy’, Journal of
the Indian Law Institule, vol. 8, no. 3, 1966.
Kothari, Rajni, ‘The Indian Enterprise Today’, Daedalus, Fall 1989.
Kothari, Smitu, ‘Whose Independence? The Social Impact of Economic Reform
in India’, Journal of International Affairs, New York, vol. 51, no. 1, 1997.
Kripalani,J. B., ‘Presidential Form of Government’, Hindu, 5 January 1981.
Krishna, Gopal, ‘National Integration: A Lost Cause?’, in Ramakant (1981).
Kumaramangalam, S. Mohan, ‘Wrong to Treat Property as a Fundamental Right’,
Patriot, 4 December 1969.
, ‘Chief Justice of India: Criteria for Choice’, in Nayar (1973).
Mahajan, Mehr Chand, ‘A Pillar of Justice’, in Zakaria (1960).
Maheshwari, Shriram, ‘The Centre-State Consultative Machinery’, in Datta
(1984).
Menon, V. K. Krishna, ‘Desires Without Deeds Breed Pestilence’, in The Challenge
to Democracy, Publications Division, Delhi, 1953.
Mody, Nawaz, ‘Role of Governor Since 1967’, Journal of Constitutional and
Parliamentary Studies, Special Number on Centre-State Relations, 1986.
in Arora and
Mozoomdar, Ajit, “The Political Economy of Modern Federalism’,
Verney (1995).
Order’,
Nakade, Shivraj, ‘The Constitution (Twenty-fifth) Amendment: A New
6, no. 3, 1972.
Journal of Constitutional and Parliamentary Studies, vol.
in Union-State
. ‘Article 356 of the Constitution: Its Uses and Misuses’,
Studies, New
Relations in India, Institute of Constitutional and Parliamentary
Delhi, 1983 (reprint).
696 Working a Democratic Constitution
Nariman, Fali S., ‘Why Flog a Dead Horse’, /ndian Express, 31 January 1981.
, ‘Removal and Transfer of Judges’, Indian Express, 10 Septernber 1981.
, ‘Chief Justice Sikri: A Good Judge, A Great Person’, Indian Express, 19
October 1992.
, ‘The President's Page’, The Indian Advocate, Journal of the Bar
Association ofIndia, vol. 25, 1993.
Narayan, Jayaprakash, ‘An Essential Requisite of National Integration’, India
Quarterly, vol. 17, no. 4, 1961.
Nayar, Kuldip, ‘Unfortunate Confrontation’, Tribune (Chandigarh), 30 July 1981.
, How RNG Fought the Emergency’, The Indian-American, November 1991.
Nehru, B. K., ‘The Role of Governor Under the Indian Constitution’, Silver
Jubilee. Gauhati High Court, Souvenir Committee, Gauhati, 1974.
Nehru, Jawaharlal, ‘The Basic Approach’, AICC Economic Review, 15 August 1958.
Noorani, A. G., ‘The Constitutional Crisis’, Indian Express, 13 December 1974.
, ‘The Presidential System’, Indian Express, 3 July 1980.
, ‘Transfer of High Court Judges’, Economic and Political Weekly, 20
September 1980.
, ‘The Supreme Court and Constitutional Amendments’, in Noorani
(1982).
, ‘A Baleful Legacy’, Frontline, 12 February 1993.
Palkhivala, N.A., ‘Should We Alter Our Constitution’, /Ilustrated Weekly of India,
4 January 1976.
, ‘The Supreme Court’s Judgement in the Judges’ Case’, Journal of the
Bar Council of India, vol. 9, no. 2, 1982.
Panandiker, V. A. Pai, ‘The Preventive Detention Issue’, Hindustan Times, 23
October 1979.
, ‘A Job Not Well Done’, Hindustan Times, 1 January 1994.
Ramasubramaniam, K. A., ‘Historical Development and Essential Features of
the Federal System’, in Mukarji and Arora (1992).
Rao, M. Govinda, ‘Indian Fiscal Federalism From a Comparative Perspective’, in
Arora and Verney (1995).
Reddy, G. K., ‘It’s Quality, Not Form of Government that Matters’, Hindu, 2
November 1980.
Rubinoff, Arthur G., ‘The Changing Nature of India’s Parliament’, in Chowdhani,
Reeta Tremblay et al. (eds), Indian/Pakistani/American Reflections on the 50th
Annwersary of India’s Independence, B. R. Publications, Delhi 1998.
Sahay, S., ‘The Financial Disequilibrium’, Staiesman, 13 June 1973.
, ‘Shiv Shankar’s Great Design’, Statesman (New Delhi), 11 April 1981,
, A Judiciary in Executive's Image’, Journal of the Bar Council of India, vol.
9, no. 2, 1982.
, ‘What “Forces of Change” Are up To’, Statesman, 29 January 1983.
Santhanam, K., ‘Federalism and Uniformity’, Swarajya, 1 May 1971.
Sathe, S. P., ‘Limitations on Constitutional Amendment: “Basic Structu
re”
Principle Re-examined’, in Dhavan and Jacob (1978).

sa
 Bibliography 697

Seervai, H. M., ‘Fundamental Rights: A Basic Issue’, in three parts, Times of

India (Bombay), 14, 15, 16 February 1955.
Sen, Asoke K., ‘Role of the Governor in the Emerging Fattern of Centre—State
Relations’, Journal of Constitutional and Parliamentary Studies, vol. 5, no. 3, 1971.
Setalvad, M.C., ‘Backlog of Court Cases’, in Chaudhary (1984).
Shah, Ghanshyam, ‘Grassroots Mobilisation in Indian Politics’ in Kohli (1988).
Sharada Prasad, H. Y., ‘Vision and Warm Heart’, in Sarkar (1989).
Sheth, D. L., ‘Social Basis of the Political Crisis’, Seminar, January, 1982.
, ‘Caste and Class: Social Reality and Political Representations’, in
Panandiker and Nandy (1998).
Shiviah, ‘The Governor in the Indian Political System’, Journal of Constitutional
and Parliamentary Studies, vol. 2, no. 4, 1968.
Singh, S. Nihal, ‘Toward Presidency’, Indian Express, 10 June 1981.
Singh, Satinder, ‘Giani the Great’, The Sunday Free Press Journal, 26 July 1987.
Singh, Tarlokh, ‘Jawaharlal Nehru and the Five-Year Plans’, Yojana, 7 June 1965.
Singhal, M. M., ‘Devolution and Development of Indian Federal Finance’,
Special Number on Centre-State Relations in India, Journal of Constitutional
and Parliamentary Studies, 1986.
Siwach,J.R., ‘The President’s Rule and the Politics of Suspending and Dissolving
the State Assemblies’, Journal of Constitutional and Parliamentary Studies, vol.
11, no. 4, 1977.
Sorabjee, SoliJ.,‘In Nehru’s Judgement’, Sunday Review Times ofIndia, 30 April
1989.
Talbot, Phillips, ‘Raising a Cry for Secession’, American Universities Field Staff
Report, PT-8, New York, 1957.
Thapar, Romesh, ‘The Real Meat of the Emergency’, Economic and Political Weekly,
2 April 1977.
r
, ‘The Constitutional Fixers’, Economic and Political Weekly, 15 Septembe
1984. )
in
Tripathi, P. K., Kesavananda Bharati v The State of Kerala—Who Wins’,
Malik (1975).
States, Canada
— Verney, Douglas V., ‘Are All Federations Federal? The United
and India’, in Arora and Verney (1995).
Punjab, Haryana and
Vira, Dharma, ‘The Administrator and the Politician’,
Delhi Chamber of Commerce, New Delhi, 1979.
and Sabharwal (1997).
Vohra, N. N., ‘The Rusting Steel Frame’, in Narayanan
?’, in Sachs and
Whitecombe, Elizabeth, ‘Whatever Happened to the Zamindars
Hobsbawm (1980).

Newspapers and Periodicals Consulted and Cited

Daedalus
Amrita Bazaar Patrika
Deccan Chronicle
Asian Recorder
Deccan Herald
Blitz
 698 Working a Democratic Constitution

Economic and Political Weekly Motherland

Economist National Herald
Economic Times New Age
Financial Express New Statesman
Financial Times The New York Times
Free Press Journal Organiser
Frontline Patriot
Himmalt The Pioneer
The Hindu Samachar
Hindustan Standard Socialist India
The Hindustan Times The Statesman (New Delhi and Calcutta
Illustrated Weekly edns. )
India Today Sunday Mail
The Indian-American The Sunday Free Press Journal
Indian Express Sunday Standard
The Indian Nation Sunday Statesman
Indian News and Features Alliance The Sunday Times
Indian News Chronicle Swarajya
~ Janata The Times of India (New Delhi and
Link Bombay edns.)
Madam Figaro Tribune
Mainstream Young Indian
Mankind

Journals Frequently Used

Annual Survey of Indian Law, vols 1-21.
Delhi Law Review
Journal of the Bar Council of India
Journal of the Bar Association of India
Journal of the Indian Law Institute
Journal of Constitutional and Parliamentary Studies.
 INDEX

Abdullah, Faroog 449n.61, 541, 544 Madhya Bharat Maintenance of

dismissal of 544, 544n.38, 546n.42 Public Order 54, 54n.55
editorial reactions to 546 Madras Maintenance of Public
Jagmohan’s role in 546 Safety 42
Abdullah, Sheikh Mohammad 151-2, National Security. See National
433, 539n.18 Security Act
Act Official Languages 155
Armed Forces (Punjab and Chan- Official Secrets 64
digarh) Special Powers 511 Press (Objectionable Matter) 49
Armed Forces (Special Powers), 312n.52
1955 62n.86, 600 Prevention of Black—-marketing and
Banking Companies 93n.74, 210 Maintenance of Essential
Banking Laws (Amendment) 1968 Commodities 435, 435n.13, ©
at. 508
Bihar Management of Estates and Prevention of Illicit Trade in Nar-
Tenures 78, 78n.25, 79, cotic Drugs and Psychotropic
79n.26 Substances 511n.36
Bihar, on freedom of press 512 Prevention of Publication of Objec-
Commissions of Enquiry, amend- tionable Matter, in Ninth
ment to 514n.48 Schedule 320n.20
Conservation of Foreign Exchange Preventive Detention (1950)
and Prevention of Smug- challenge to. See Gopalan case
gling Activities 299, 310, provisions of 57-8
511n.36 Preventive Detention (1950). See
Defence of India (1939) 64n.90
Preventive Detention Act
Defence of India 63, 64, 65, 66 Preventive Detention (Amendment)
amendments during Emergency (1951) 61, 61n.82
310 Representation of the People (1951)
314, 320
East Punjab Public Safety 41
Sick Textiles Undertakings (Na-
Election Laws Amendment 320,
tionalization) 498, 499
320n.19, 323
Essential Commodities 64 Terrorist and Disruptive Activities
(TADA) 510, 511n.36, 515
Finance Commissions 615
Government of India (1935) 4, 5,
Unlawful Activities (Prevention) 53
560 UP Road Transport 106n.24
UP Zamindari and Land Reforms
Indian Penal Code (Amendment)
153n.28 80, 80n.29
West Bengal Land Development
Kerala Reforms, in Ninth Schedule
259 and Planning 107
 700 Index

Additional high court judges Aiyar, K. R., 58 n.72.

appointment of 517n.3 Aiyar, N. Chandrasekhara 90n.65,
dispute regarding tenure 523. See 91n.67, 124n.3
also Judges case Akali Dal 539n.18
Administrative Reforms Commission agitation against Article 25, 547,
570n.45, 592, 592n.75 547n.45
on appointment of ex-governors 58] agreement with Rajiv Gandhi
and decentralized planning 620 549n.53
on President’s Rule 609 Alagiriswami, A. N. 260n.4
recommendation establishing Inter- Alexander, P. C. 495
state Council 626 Ali, Asaf, views on governors’ powers
recommendations on appointment 21, 128
of governors 587 Ali, Murtaza Faz] 42n.11, 58n.72, 96n.82,
recommendations regarding Plan- 124n.3, 134, 346n.64, 444n.42,
ning Commission 621 461n.32, 462n.34, 524n.27,
report on Centre-state relations 527 .
565, 565n.29 decision in Gopalan case 59
report on governors 574, 574n.2 Ali, Sadiq, on social control of banks
Adult suffrage 666 212n.10
provision in Constitution 7 All India Civil Liberties Council
Radhakrishnan’s views on 18 47n.31
Advani, L. K. 397, 397n.14, 411, 432, All India Conference of Lawyers 491,
475n.36, 402 491n.22, 492
arrest under MISA 334 suggestions on appointment of
comment on Twenty-fifth Amend-
judges 288
ment 252 suggestions on independence of
on presidential system 378, 496
Judiciary 288
Advisory board (s), for reviewing pre- All India Judicial Service 139, 519
ventive detention 55, 58, 61, All India Kisan Sabha, Opposition to
508, 509 presidential system 492, 493
Agarwala, Chandra Bhan 87n.53
All India Muslim Convention, recom-
Aggarwal, R. N., denial of extension of
mendation dissolving federal
tenure to 44
system 150n.18
Agrarian Organization Pattern Resolu-
Allahabad High Court
tion. See Nagpur Resolution ruling in Moti Lal case 92-3
Agricultural Production Subcommittee
ruling in Mrs Gandhi's election
116n.62
case 316-17
Ahmed, Fakhruddin Ali 49n.38, 187,
All-India Civil liberties Council
378n.24, 393, 395 62,
62n.88
Ahmed, Naziruddin
criticism of Prevention Detention
objections to First Amendment Bill
Act 62
89 All-India Lawyers Conference, pro
on incitement as offence 48, 48n.36 pos-
als for judicial independence
Aiyar, C. P. Ramaswamy 153n.28
522
 Index 70]
All-India panel for selection of judges Parliamentarians’ Seminar on 241—
130, 132 2, 242n.31
Alva, Margaret 428 Prasad’s opposition to 45
Ambedkar 42, 606 procedure 39n.1
note to Cabinet Committee on Con- process, beginnings of 653
stitution regarding amend- Seventeenth. See Seventeenth
ment 84 Amendment
on compensation 84 Seventy-third 615n.2
on forming a law commission Sixteenth. See Sixteenth Amendment
129n.18 support for 234-5
on freedom of speech 44 Thirteenth, creation of Nagaland
on limitations on Fundamental under 152, 152n.24
Rights 44 Thirty-eighth 335
on powers of Supreme Court 84 Thirty-ninth. See Thirty-ninth
on types of Constitution 12 Amendment
proposal for redrafting Article 31 84 Thirty-second 583n.34
resignation over Hindu Code Bill Twenty-eighth. See Twenty-eighth
24n.31 Amendment
Amending bills. See individual Amend-
Twenty-fifth. See Twenty-fifth
ments
Amendment
Amendment of Constitution 8
Twenty-fourth. See Twenty-fourth
Cabinet Committee on 43
Amendment
CFSA memorandum to Mrs
Twenty-ninth 259, 266
Gandhi regarding 240-1
Twenty-sixth 243, 252
Eighteenth 65n.99
See also Constitution; Parliament,
FICCI objections to 87
amending power of,
Fifty-second 662, 662n.65
Amendment, as law under Article 13
First. Sze First Amendment
84, 90, 197, 198n.3, 500
Fortieth 320n.20
Anandpur Sahib Resolution 539n.18
Forty-fifth 536-7, 537n.10
Andhra Pradesh, dismissal and rein-
Forty-first 320-3, 331
statement of N. T. Rama Rao
Forty-sixth 452
547
Forty-third 410-11, 415, 417-18.
Annadurai, Dr 52
Fourth. See Fourth Amendment
Ansari, M. R. A. 451n.69
Gajendragadkar’s view on 115n.60
Anthony, Frank, comment on Fourth
Gajendragadkar’s ‘Prefatory Note’
to Desia on, 412, 413-14
Amendment 110
Judicial review of 652, 653. See also Anti-defection legislation 662
individual Amendment Anti-national activities (Article 31D)
Kumaramangalam’s role in 188, 384. See also Article 31D
188n.41 Anti-Sikh riots in Delhi 549°
Mrs Gandhi's attitude towards 256 Antulay A. R. 354, 360, 361, 380, 394
Niren De’s views on 241 attack on K. Subha Rao’s campaign
Parliament’s powers of. See under for presidency 383
Parliament criticism of judiciary by 493
 702 Index

and ‘Fresh Look’ paper 351. See also 22, preventive detention under 55.
‘Fresh Look’ paper See also preventive detention
on Mrs Gandhi 382n.40 25, Akali Dal agitation against 547,
and presidential system, 357, 547n.A5
382n.40, 489, 489n.14, 492n.28 29, petition under, in Kesavananda
proposal deleting ‘reasonable’ as case 259
qualifying restrictions 362n.49 29(2) 95
support for supersession 287 Communal General Order and
Appointment of a Chief Justice 287 96
Armed Forces (Punjab and Chandi- 31
garh) Special powers Act 511 addition of clause 3A, Pant’s
Armed Forces (Special Powers) Act, proposal 105
1955 62n.86, 600 Ambedkar’s proposal for redraft-
Army ing of 84
as force of unity 148 amendment to, in Fourth
in aid of civil power 600 Amendment 107
Arrears in judicial cases, reasons for escape clause, Gajendragadkar’s
140 views 413. See also 31C, escape
Arrest lists, pre-Emergency 303 clause of
Article of Fundamental Rights 77
13 Krishnamachari’s proposal for
Amendment as law under 90, amending of 104
197, 198n.3, 500
right to property under 77. See
Mahtab’s views on 84 also property, right to
15 subcommittee recommenda-
need for amendment of 96, 97 tions on 101-2
31(2), compensation under 109.
prohibition of discrimination
See also compensation
under 95
31A 85, 85n.47
19(6)
amendment to, in Fourth
amendment of 94,94n.76
impediments to nationalization Amendment 107
FICCI comment on108
94
Nehru, proposed changes to 105
19
31€ (Rights subservient to Princi-
adoption by Constituent Assembly
ples) 225, 239-40, 244, 248,
77-8
255n.83. See alsoFundamental
freedoms under 40, 40n.5
Rights vs. Directive Principles
Kunzru on amendment of 47 Bhagwati’s opinion on 504
reasonable restrictions on Chagla’s criticism of 262
freedoms in 43, 44. See also escape clause of 244, 249, 250,
reasonable restrictions 254, 266, 267, 426
restriction on suspension of420 expanding of, in Forty-second
subcommittee recommendations Amendment 371, 499
on 101 Gajendragadkar’s reservations
20 and 21, amendment to 426n.53 regarding escape clause of 249
 Index 703
Kumaramangalam’s position on repeal of 418
escape clause of 254 See also central forces in states
Law Commission’s reservations 305, amendment to, in Fourth
regarding escape clause of 249 Amendment 107
Palkhivala’s challenge to, in 329A (protection for election of
Minerva Mills case 499-500, Prime Minister)
501 and basic structure doctrine 324
Palkhivala’s criticism of 261 deletion of 425
Santhanam’s criticism of 385 insertion in Thirty-ninth Amend-
Seervai’s opinion on 262 ment 319
Supreme Court ruling on, in Swaran Singh Committee and
Minerva Mills case 502, 362
503-4 striking down by Supreme Court
Swaran Singh Committee recom- 324
mendations on expansion of 352 612
360-1 355 (central forces in states) 597,
Twenty-fifth Amendment and 598, 599
240, 244, 500 state apprehension regarding
upholding of, in Waman Rao
601-2
case 502n.11 See also central forces in states
upholding of, in Kesavananda
356
case 500
CPI on 611n.44
31D (banning anti-national activi-
misuse for political ends 611
ties)
Sarkaria Commission’s recom-
Gajendragadkar’s views 413
mendations on 611-12
Limaye’s criticism of 385
deletion of 610, 611
repeal of 417, 419
358 and 359, amendment to 420
Seyid Muhammad’s opposition
368 171, 199, 262, 265, 266
to 415, 419
and the basic structure 264, 265
38, as part of basic structure 505
amending power of Parliament
46, of Directive Principles 95
under. See Parliament amend-
123, promulgation of ordinances
ing power of
under 31n.61
amendment of 238, 239, 240
226
clause 55, Bhagwati’s opinion
Swaran Singh Committee recom-
on 504
mendations regarding 360
support for deletion of 360,
Supreme Court ruling on, in
Minerva Mills case 502-5
360n.42
Swaran Singh Committee recom-
257 (central directions to states)
598, 598n.5 mendations onjudicial review
repeal of 601, 601n.15 of 359
states apprehension regarding
370, special status of J&K under
151, 170
599
Assam 538, 539, 539n.18
257A (central forces in states),
deletion of 425 effect of Partition on 539
704 Index
elections in 541, 541n.21 Bank Nationalization Ordinance and
violence in 541 Act, second 220
Autonomy, demand for 149 Banking Companies (Acquisition and
by states 562 Transfer of Undertakings)
See also centre-state relations Ordinance 215, 215n.18
Awami League 334n.1 Banking Companies Act 93n.74, 210
Ayodhya crisis 603 Banking Laws (Amendment) Act 1968
Ayyangar, N. Gopalaswami 24n.31 213
Ayyangar, N. Rajagopala 160n.48 Banks, social control of 212, 212n.10,
Ayyar, Aalladi Krishnaswami 22, 97 213
on presidential powers 23, 23n.29 Desai and 212-13
on role ofjudiciary 40n.4 Haksar’s view on 213n.13
Azad, Abul Kalam 19n.15, 147n.9 Sadiq Ali’s view on 212n.10
opposition to Krishna Menon 28 Bar Association of India
role in Constitution making 5 criticism of preventive detention 65
Azad, Bhagwat Jha 187n.34 critique of Swaran Singh Commit-
tee proposals 367n.60
Babri Masjid. See Ayodhya crisis disapproval of Emergency 596
Bachawat, R. S. 197n.3
Bar Council of India
Backward Classes Commission. See
opposition to one-third judges from
Mandal Commission
outside state 519
Backwardness of communities 649-50
recommendations regarding ap-
Badal, Prakash Singh 540
pointment of high court
judges 520-1
Bahuguna, H. N. 302, 302n.18, 398,
Barnala, S. S., resignation as governor
446n.50
of Tamil Nadu 612n.50
as temporary Prime Minister 302,
Basic structure doctrine 258, 262, 275,
302n.18
329, 359, 386, 501, 506, 652
Banerjee, B. N. 419n.29
and Article 329A, 324
Bangalore meeting of southern chief
and Article 368 264, 265
ministers 541-2, 545
Article 38 as part of 505
Bangalore Seminar of Experts
C. K. Daphtary on 384
proposal of National Expenditure
concept of 198, 199
Commission 617
CPI(M) on 369n.67
recommendation establishing Inter-
Gajendragadkar and 349, 414
state Council 626
Kesavananda case and 658. See also
recommendations on President’s
Kesavananda case
Rule 610
M. K. Nambiar and 199
report on governors’ role 575
Niren De on 330
Bangladesh, creation of 334n.1
overturning of. See Kesavananda,
Bank nationalization. See Nationaliza-
review of
tion of banks
reaffirmation of. See Indira Gandhi
Bank Nationalization Act 215-16
Election case
Bank Nationalization case. See Cooper referendum on amending of 420-1,
case
421n.33, 422, 423, 425
 Index 705

Congress opposition to 422 Jayaprakash Narayan’s opposition

Ragunatha Reddy’s support for to chief justiceship for 437
426n.54 letter to Mrs Gandhi on jurisdictional
Seervai’s opposition to 421n.33 changes 501-2, 502n.9-10
right to property not part of 330, 331 opinion on dismissal of state assem-
Seervai on 264n.11 blies 445
Shiv Shankar’s opposition to 490 opposition to chief justiceship for
suggestions of Citizens for Democ- 437, 438
racy regarding 386 public interest litigation and 440
suggestions of National Seminar views on judicial appointments
Consensus regarding 386 525n.29
upholding of, in Minerva Mills case Bhakna, Sohon Singh 350n.5
502, 506 Bhakti, in politics, Ambedkar’s view 293
Basu, Jyou 545 Bharati, Swami Kesavananda 258
Basu, T. K. 462n.34 Bharatiya Lok Dal 397
Baxi, Upendra, on Directive Principles Bhargava, V. 197, 197n.3, 216n.21,
360 231n.65
Beg, H. M. 260n.4, 266, 269n.30, 270, Bhargava, Gopichand 157-8, 158n.41,
338, 444n.42 607 .
appointment as Chief Justice 436, Bhargava, Piare Lal 87n.53
436n.17 Bhargava, Thakurdas 45n.23
comment on own decision in Habeas Bhindrawale, Sant Jarnail Singh 540,
Corpus case 342 548, 550
controversy over Supreme Court Bhushan, Shanti 321, 322, 323, 366n.59,
appointments 438n.23 411, 412, 425n.47, 446n.50,
effect of illness on Kesavananda 447, 448n.56, 493n.30
bench 272, 272n.45-6, 273, arguments in Habeas Corpus case
273n.51 gou
efforts to force resignation of 436-7 on constitutional benches 367n.60
view on dissolution of state assem- on internal emergency 426
blies 445 introduction of Forty-fourth Amend-
Bela Banerjee case 80, 82, 82n.36 ment 424—5
Benami transactions 120 introduction of Forty-third Amend-
Bengal ment 418-19
central forces in 598-9 opposition to special courts 458
controversial use of governors’ opposition to supersession 437
discretion in 584-7 position on dissolution of Congress
Bhagwati, P. N. 338, 346n.64, 440n.32, state assemblies 443-4
444n.42, 461n.32, 501, 503, proposal of referendum on amend-
524n.27, 527, 527n.35 ing basic structure 420-1, 423
criticism of Chandrachud’s role in rejection of property take-over by
Minerva Mills case 505 due process of law 426
criticism of judiciary 663n.68 restorative amendments and 410,
411. See also Forty-
decision in Minerva Mills case 504 410n.3,
706 Index

third Amendment; Forty- Parliamentary Proceedings (Protec-

fourth Amendment tion) 312
Bihar Postal. See Postal Bill
Act, on freedom of press 512 Press. See Press Bill
agitation, Jayaprakash Narayan and Preventive Detention 57
300 Bharatiya Janata Party
curbs on freedom of speech and fears regarding presidential system
expression 4] 494, 494n.37
Land Reforms Act resolution opposing presidential
invalidation by Patna High Court system 492n.29
82, 83 Blue Book 315, 316
Maharaja of Darbhanga’s suit Border Security Force 599
against 91 Borooah, Dev Kant 237, 307, 321, 322,
Prasad and 83-4 350n.6, 354, 358, 360, 361
Supreme Court ruling regarding appointment of committee on
9] amendments 343
Management of Estates and Ten- criticism of K. Subha Rao’s cam-
ures Act 78, 78n.25, 79 paign for presidency 383
ordinances in 300n.12 resignation from party presidency
resolution on Forty-second Amend- 406
ment 377 role in drafting of Forty-second
Zamindari Abolition Bill, Prasad’s Amendment 374-5
objection 22. See also Zamind- Bose, S. M. 82n.34
ari abolition Bose, Vivian 41n.6, 96n.82, 106n.24
Bill(s) Brahmachari, Dhirendra 487
amending. See individual Amend- Brahmanand Reddy 406, 407
ments British
Bihar Zamindari Abolition, and influence on leaders of independ-
ence 4
Prasad 22. See also zamindari
Parliamentary traditions, influence
abolition
of 12
Code of Criminal Procedure
rule, preventive detention statutes
(Amendment) 434, 434n.10,
under 53, 53n.54
435
unity under 145
Defamation 514
Bureaucrats, survival society behaviour
Emergency Courts 460-1
among 643
Hindu Code 22-3, 24, 24n.31
Indian Companies (Amendment)
Cabinet Committee on Constitution 43
72n.8
Ambedkar’s note to, regarding
Indian Prisons 664
amendment 84
Industries (Development and Con-
Home ministry note to, on freedom
trol) 72n.8
of speech 44, 44n.21
Kerala Agrarian Relations 160n.48
opinion on reasonable restrictions
Kerala Education 159-60
in Article 19 45
Nath Pai. See Nath Pai Bill proposals on compensation 104
 Index 707
recommendations on Article 15 97 Casteism 149, 557, 558, 558n.8
recommendation on Article 31A 85, Central Bureau of Investigation 190,
85n.47 191, 454, 455-6
recommendations, Prasad’s oppo- investigation of emergency excesses
sition 85-6 by 454
Calcutta High Court ruling on special Central forces in state 363, 594, 594n.1,
courts 462n.34 598
Canfield, George, on prospective over- apprehensions regarding 599
) ruling 202n.17 constitutional provisions for 597,
Capitalism, Nehru’s views on 72 597n.4
Carstairs, Morris 638, 638 CPI recommendations on deploy-
: Case ment of 601
Bela Banerjee. See Bela Banerjee, functioning under magistrates
Crossroads 41-2, 42n.11 602-3, 603n.20
Dorairajan. See Dorairajan case and infringement of rights 600
Golak Nath. See Golak Nath Case provision in Forty-second Amend-
Gopalan. See Gopalan case ment 601, 601n.14
Habeas Corpus. See Habeas Corpus Sarkaria Commission recommen-
Indira Gandhi Election. See Indira dations on 602, 604 )
Seyid Muhammad's opposition to
Gandhi Election case
415
Judges 524-7
at states request 602
Kesavananda. See Kesavananda case
Swaran Singh Committee recom-
Makkan Singh. See Makkan Singh
mendations on 362, 601
case
in West Bengal 598-9
Minerva Mills. SeeMinerva Mills case
See also Ayodhya crisis
Rajasthan. See Rajasthan case
Central Industrial Security Force 599,
Ratlam Municipality 441
600, 600n.12
Saghir Ahmed 106, 106n.24
Central paramilitary forces
Shailabala Devi 41 expenditure on 602n.17
Shamsher Singh 474, 474n.33 growth of 599-600, 600n.11
Shankari Prasad 40n.4, 90, 90n.65 role in states. See central forces in
Shiv Kant Shukla. See Habeas states
Corpus case Centralization
Sholapur Mills 79, 79n.27, 100, 101 cultural characteristics supporting
Subodh Gopal 82n.36, 100 563-4
Supreme Court Advocates 532, of federal finance 622. See also
532n.56 Finance Commission
Waman Rao 501, 502n.11 government paternalism and 638
Caste 639, 646 ill-effects of 628-9
breakdown, effects of 648 under Mrs Gandhi 297, 569-71,
mobilization 665-6 573, 661. See also Emergency
political mobilization and 646, under Nehru 33, 36, 566-7, 573, 659
646n.6 Planning Commission and 618, 619,
system, changes in 666 620
708 Index

Rajni Kothari on 562-3, 563n.23 under Nehru 33, 564, 566.

social revolution and 657 Vijayawada meeting of opposition
support for 562 parties regarding 543-4
threat to unity and 629 See also ARC; federalism; Finance
See also unitary government; over- Commission; Governor; Raja-
centralization mannar Committee; Planning
Centralized federalism of Constitu- Commission; Zonal Councils
tion 7. See also federalism Centre-state, consultation on ap-
Centre, control of key economic areas pointment of governors 578,
by 616n.8, 617. SeealsoCentre— 578n.16, 579
state relation below CFSA. See Congress Forum for Socialist
Centre-state relation 7, 534, 629-30 Action
and Administrative Reforms Com- Chagla, M. C. 134, 216n.21, 260n.4,
mission 565, 565n.29 288, 336, 366n.59, 438n.23,
Bangalore meeting of southern 470, 477, 493n.30
chief ministers 541-2, 545 criticism of Article 31C 262
Commission on. See Sarkaria Com- criticism of provision regarding con-
mission stitutional benches 385n.58
Congress dominance of, Sarkaria criticism of tribunals 385
Commission’s comment on on Directive Principles and Funda-
571 mental Rights 251-2
co-ordinating mechanisms opposition to Bhagwati or Chandr-
conferences as 623-4 achud as CJI 438
Interstate Council as. See Inter- on supersession 285
state Council Chakravarty, Renu 109
Zonal Councils as. See Zonal Chakravorty, Sukhamoy 239n.17
Councils Chand, Krishna, testimony before
financial. See Planning Commission; Shah Commission 303
Finance Commission Chandiramini, Das Bulchand 87n.53
Forty-second Amendment provi- Chandrachud Y. V. 260n.4, 267, 268,
sions regarding 373 269n.30, 271, 274, 274n.56,
Hegde’s role in reassessment of 338, 339, 346n.64, 444n.42,
541, 542, 545 461n.32, 501, 502, 524n.27
issues concerning 538 appointment as C]I 438n.25, 439
need for re-examination of 570 on Article 329A 324
role of paramilitary forces. See cen- and Bhagwati, confrontation be-
tral forces in states tween 529, 529n.46
Seminar on 545n.41 as C]I, opposition to 437, 438,
single party control of 565 438n.24
Srinagar meeting regarding 544, as C]I, support for 438
545 comment on own decision in
Srinagar statement on 545 Habeas Corpus case 342
Swaran Singh Committee’s recom- decision in Minerva Mills case,
mendations regarding 362, rationale behind 504-5
571 Golak Nath decision by 267n.20
 Index 709

Narayan’s opposition to chief jus- Gajendragadkar as 135n.36

ticeship for 437 Harilal Kania’s swearing in as 13
opinion on dissolution of state as- Hegde as, Kumaramangalam’s
semblies 445 opposition to 282
and retrospective legislation 324 Jayaprakash Narayan’s view on
role in Minerva Mills case, Bhagwati’s appointment of 287-8
criticism of 505 Kania as, controversy over 125-6
on selection process of CJ] 439 M. H. Beg as 436, 436n.17
Mathew as, Mrs Gandhi’s assent to
on transfer of judges 521, 522n.18
Chandrashekhar, D. M. 344 280n.4
Chari, V. K. T. 85, 96 role in appointment and transfer of
judges 125, 532, 532n.56,
Chatterjee, N. C. 65, 66, 90, 90n.65,
102n.11 533n.60. See also Judges case
on expropriation of property 109 selection of
on judicial review 108 Chandrachud’s views on 439
opinion on Nath Pai bill 206 Kumaramangalam’s criteria for
283-4, 284n.19
Chatterjee, Somnath 246, 426, 486n.2
Law Commission criteria for
Chatterji, Golak Nath 196
135, 284-5, 285n.21
Chaturvedi, Misri Lal 100n.7
Chief justice, of high court. See high
Chaudhury, Naba Krushna 102
court chief justice
Chavan,Y.B. 147n.9, 178, 179, 187, 321,
Chief Justices, Conference of 623
322, 351n.6, 389, 407n.44,
Chief minister
418, 411n.4, 458, 486n.2
appointment of nominated mem-
and abolition of princes’ purses
ber as 584n.35
224-5
appointment of, CWC control over
address to nation as leader of op- 147, 147n.10, 605
position 403
appointment of, Governors’ Report
attitude to dissolution of Congress on 588
state assemblies 448n.58 role in selection of,
governors’
attitude towards Forty-third amend- criterion for 587-8
ment 415
power during Nehru years 565-6
differences with Mrs Gandhi 408 role in judicial appointment, criti-
failure to form government 466, 470 cism of 128, 129, 130, 131n.19,
invitation from Reddy to form gov- 132
ernment 469
tenure of, under Nehru 147
support to Charan Singh 470, turnover of 605, 605n.25
470n.15 Chief Minister’s Conference 623,
Cheliah, Raja, on role of Planning 623n.40
Commission 621n.30 Chunder, P. C. 411, 427
Chetty, Shanmukham 210 Citizens for Democracy 352, 352n.9,
Chief Justice of India 384
A. N. Ray as. See under Ray recommendations regarding consti-
appointment of, seniority as criteria tutional change 386, 386n.60
134, 438-9, 279, 279n.2 suggestions on basic structure 386
Chandrachud as 438n.25, 439 Citizens Central Council 65
710 Index

Civil Liberties Conference (1976), sug- of Governors 575n.8

gestions on amending proc- report of. See Governors Report
ess 367 Public Accounts and Estimates 660
Civil Rights Commission, Janata party Rajamannar. See Rajamannar Com-
proposal regarding 450 mittee
Code of Criminal Procedure (Amend- Swaran Singh. See Swaran Singh
ment) Bill 434, 434n.10, 435 Committee
COFEPOSA, See Conservation of For- Committees
eign Exchange and Preven- Pradesh Congress, CFSA members
tion of Smuggling Activities in 187
Act Provincial Congress 147
Commission Communal General Order 95, 96
Administrative Reforms. See Admin- and Article 29(2) 96
istrative Reforms Commission invalidation by Supreme Court 96
Backward Classes. See Mandal Com- Communal quotas 96, 96n.83
mission Communalism 557, 558
on Centre-State Relations. See Nehru on 558
Sarkaria Commission Communist Party of India (Marxist)
Kaka Kalekar 452n.73 64n.93, 193n.59
Law. See Law Commission attack on Swaran Singh Committee
Minorities 451, 451n.68—9 proposals 368
National Police 452n.73 attitude towards Emergency and
Press 50n.41 constitutional reforms 369
Sarkaria. See Sarkaria Commission defence of Fundamental Rights
on Scheduled Castes and Tribes 369n.67
451, 451n.70 demand for deletion of article 356
Shah. See Shah Commission 611
States Reorganization 146n.7, 156, election manifesto of 400
563, 563n.24 on federalism 562
Verghese 481 on new constituent assembly 380
Commissions of Enquiry Act, amend- on protection of basic features
ment to 514n.48 369n.67
Committee reaction to Twenty-fourth Amend-
Central Election, of Congress Party ment 246
145n.6 stand on President’s powers 369n.67
Congress Working. See Congress support for Constitutional amend-
Working Committee ments 235, 368, 368n.66—7
Congress, on Constitutional support for Janata party 397
Changes 45n.23 views on judiciary 386
Constructive Programme, and See also communists
Congress Party 34, 34n.68 Communist Party of India (Marxist) on
Economic Programme, report of Constitutional Changes 368,
74, 74n.13 368n.66-7
Expert, on legal aid, report of Communist Party of India 18
663n.69 on Article 356, 611n.44
 Index 711

attack on Congress record on civil in Cooper case,J. C. Shah ruling

liberties 54-5 regarding 216
attitudes towards Emergency and divisions in Cabinet Committee
constitutional reforms 369 regarding 103
condemnation of continuation of Illusory 110, 266, 503, 504
emergency (1962) 65 Indira Gandhi’s views on 245
criticism of Emergency 408n.46 as just equivalent of property 77,
on deployment of central forces in 80, 82, 100, 219
states 601 justiciability of, Jaipal Singh’s view
on Directive Principles 361n.45 109
election manifesto of 400 K. M. Munshi’s views on 77
on forces of destabilization 535 for land under personal cultivation
Nehru on 18n.14 113
opposition to new constitution for property acquired for public
assembly 380 use, under Article 31 77
on President’s Rule 609 for property acquired under police
reservations regarding Twenty- power 80, 85, 103
fourth Amendment 246 in nationalization of banks. See
Sanjay Gandhi’s attack on 408 nationalization, of banks
views on right to property 361n.47 Nehru on 109n.36
See also communists obligatory, justiciability of 109
Communists S. N. Mukherjee’s views on 80
concern for liberty 255 subcommittee on Constitution rec-
detention of 54, 64n.93, 65-6 ommendations on 101
and Emergency 359 Supreme Court ruling on, in
See also ex-communists Mangaldas case 207n.23
Community under Article 31(2) 109
development programme 167, 168, under Article 31, Munshi’s views 77
169, 566, 566n.33 See also zamindari abolition and
Projects Administration, report of compensation
168 Compensatory discrimination 95
Compensation Concord of States, formation of 224
Ambedkar’s views on 84 Conference
barring judicial review of 655 All India, of Lawyers 491, 491n.22,
in Bela Banerjee case. See Bela 492
Banerjee case of Chief Justices 623
Cabinet Committee proposals on of Chief Minister’s, role in centre—
104 state relations 623, 623n.40
calculation at market value 103 Civil Liberties (1976), suggestions
calculation at price on notification on amending process 367
103n.15 of Finance Ministers 623-4
in cash, Nehru’s opposition to of Governors 623
75n.14 of Presiding Officers, on governors’
changed to amount 239, 244, power to summon assembly
263n.9, 266 589
712 Index

of the Presiding Officers of Legis- failure in social reform, Atulya

latures 623 Ghosh’s criticism of 176n.4
Youth Congress, at Guwahati 326 and Federal relations 628
Congress Party 604 federal structure of 33, 146, 146n.8,
attitude toward Namboodiripad 147
161n.50 during Nehru years 605
attitude towards judiciary 284n.19. consequences of 148
See also Judiciary See also Kamraj Plan
Bombay Plenary Session (1969), eco- formation and purpose of 4
nomic policy resolution 181] Industrial Policy Resolution of
Central Election Committee of (1956) 116
145n.6 Jagjivan Ram’s resignation from
Central Parliamentary Board of 145, 397, 397n.14
146, 147n.9 K. R. Ganesh’s defection from 398
centralized governance in provinces Karachi Resolution of 70-1, 71n.6
145 Kripalani’s resignation from 88n.55
Chandra Shekhar’s expulsion from and land reforms 254, 254n.78
356n.24 member’s doubts regarding Forty-
Committees, Provincial 147 second Amendment 389
Constitutional Changes Committee Mrs Gandhi's challenge to organi-
of 45n.23 zational wing of 176
defeat in ’77 elections 395, 395n.8 Nandini Satpathy’s defection from
defeat in assembly elections 449, 398
449n.61 Nagpur Resolution of 116, 116n.62
defeat in Gujarat legislative assem- as opposition party 400
bly 301 opposition to Interstate Council
defections from 398 627
dissolution ofJanata state assemblies opposition to referendum on basic
by 536, 536n.7, 537, 537n.13 structure 422
domination of Constituent assembly opposition to special courts 459
5 opposition within, to Nath Pai Bill
Economic Programme Committee, 207
report of 74, 74n.13 petition against dissolution of state
effects of legislative wing dominance assemblies 444. See also disso-
by 34 lution of Congress state as-
election defeats in Andhra and semblies
Karnataka 541 post-election (1977) introspection
election manifesto (1952) 91n.66 406
election manifesto(1977) 399 power struggle between legislative
election victory under Mrs Gandhi and organizational wings
193 33-4, 35
electoral setback in 1967 175 power struggle between PCC and
encouragement offactionalism in, government 36n.74
by Mrs Gandhi 194 presidents 147, 147n.11
 Index 713

Provincial ministries, and zamindan role in selecting Prime Ministers

abolition 71n.6 148
radicalization of, under Mrs Gandhi selection of chief ministers by 605
187, 188 See also Congress(1); Congress(O)
record on civil liberties, CPI attack below
on 54-5 Congress
(I)
resolution at Guwahati 389n.66 antagonism toward judiciary 493.
resolution on Kerala 161, 161n.51 See also Judiciary
response to Janata cabinet subcom- demand for removal of Charan
mittee proposals on amend- Singh’s caretaker government
ments 417 478, 478n.46
session of, at Kamagata Maru. See selection of hand as party symbol
Kamagata Maru session 407n.43
socialism of 70-1, 116 formation of 407, 407n.42-3
split in 180, 181n.22, 407 victory in 1980 elections 485-6
support for Forty-third Amendment position on Forty-fourth Amend-
419, 419n.29 ment 423-4
support for Forty-fourth Amend- position on governors’ tenure 581
ment 428, 429 justification for President’s Rule 611 —
support for repeal of Forty- second See also Congress Party above, Gandhi,
Amendment 365 Indira
the Constructive Programme Com- Congress(O) 181n.22, 397
mittee of 34, 34n.68 (I) 407
unity efforts with Congress
the Tandon affair and 35 Congress (R)
transformation into cadre-based ex-communists in 182, 183. See also
party 187-8 CFSA
under Mahatma Gandhi 4 Jagjivan Ram’s speech at Bombay
unitary style functioning of, uncer plenary meeting of 180-1
Mrs Gandhi 605, 605n.24 Nehruvian socialists in 182, 183
unity under 145 Congress Democratic Front, Nehru
victory in first general elections 16, and 88n.55
16n.4 Congress for Democracy
victory under Mrs Gandhi 193 formation of 397
victory under Rajiv Gandhi 549n.52 manifesto of 400
Working Committee of Congress Forum for Socialist Action
CFSA members in 187, 187n.36 (CFSA) 182, 235
Mrs Gandhi's supporters in 406, concern for Mrs Gandhi after Alla-
406n.40 habad judgement 32
meeting on Swaran Singh Com- decline in influence of 190, 190n.47
mittee proposals 364n.54 formation 117-18, 118n.67
powers of 146, 147, 147n.10 influence on Mrs Gandhi 290-1
reaction to events preceding members in Congress Working Com-
Emergency events 300n.12 mittee 187, 187n.36
resolution on Ten-Point pro- members in Mrs Gandhi’s cabinet
gramme 175 187, 187n.34
714 Index

members in Pradesh Congress demand for 378n.24

Committees 187 Haryana resolution on 377
memorandum to Mrs Gandhi re- Mrs Gandhi on 381
garding amendments 240-1 National Herald comment on 380
resolution on amending equality of rejection of, by National Com-
law provisions 239n.17 mittee for Review of the
resolution on parliamentary sover- Constitution 380
eignty 238, 239n.17 resolution on, Bansi Lal’s role
supporters of Mrs Gandhi in Par- in 379-80, 380n.31
liament 187 state resolutions demanding
Ten Point Programme of 175n.4 377-81
Congress Socialist Party 71, 71n.6 and social revolution 71
Congress state assemblies, dissolution Constitution 1, 11, 631, 633
of. See dissolution Abul Kalam Azad’s role in framing
Conrad, Dieter 201, 201n.13, 261n.6 of 5
Conservation of Foreign Exchange and amendment to 8
Prevention of Smuggling cabinet subcommittee on, ap-
Activities Act 299, 511n.36 pointment by Desai 411-12
amendment during Emergency 310 CFSA memorandum to Mrs
Consolidated Fund of India 615 Gandhi regarding 240-1
Constituent Assembly 633
committee on, appointment by
adoption of ‘freedoms’ article,
Borooah 343
Article 19 77-8
Convention on 384n.51
adoption of Objectives Resolution
Gajendragadkar on 115n.60,
71
356, 356n.26, 369
and provision of President’s Rule
Gokhale on 371n.3
606
Kumaramangalam’s role in 188,
authority to governor to declare
188n.41
emergency 606
Congress party dominance of 5 M. K. Nambiar’s view regarding
199
debate over governors’ powers 576
difficulties in drafting Fundamental Nehru’s views on 80, 81
Rights 76 Niren De on 241, 263
drafting of article on preventive Parliamentarians’ Seminar on
detention 55 241-2, 242n.31
drafting of centralized Constitution as political necessity 199
146 procedure regarding 39n.1
drafting of social revolution recommendations of Citizens
provisions 73—4 for Democracy 386, 386n.60
drafting of the Constitution by 4, 5 support for 234-5
members of, election by provincial See alsoamendment
legislatures 4 based on Westminster model 7
new Basic features of 262. See also basic
CPI opposition to 380 structure doctrine
CPM on 380 Cabinet Committee on 43
 Index 715
conflict between Parliament and Girilal Jain’s views on 351
judiciary over custody of 8, 9, Gokhale’s views on 351
39 Mrs Gandhi’s views on 531
constituents of 6 See also Swaran Singh Committee
custody of, conflict between Parlia- rehabilitation of, under Janata 658.
ment and Supreme Court 8, See also Forty-third and Forty-
9, 39 fourth Amendments
emergency provisions of 7, 63n.89 and seamless web concept. See seam-
and unity 163 less web
federalism of 7, 146, 561 and social change in India 665-6
First Convention on the 205 and Social Transformation, seminar
governance under 14 on 241-2, 242n.31
governors’ discretionary powers socialist content of Directive Prin-
under 582, 582n.31-—2 ciples of 71
importance of 10 social-revolution provisions of,
inauguration of 13 effect of 646-7
institutions of, conflict between 14— sources of 5-6
15 subcommittee on
judicial review under, Setalvad on anti-judiciary sentiment in 101-2 |
261n.6. See also judicial review members of 101n.10
Nehru’s role in framing of5 recommendations on Articles 19
Objectives Resolution as source of and 31 101-2
5-6 strands of, interdependence be-
and open society 647 tween 6. See alsoseamless web
politics of working of 636 types of, Ambedkar’s view 12
Prasad’s role in framing of 5
unitary features of 560
Preamble to. See Preamble
unity provisions in 146. See also unity
presidential powers under 20n.19.
Vallabhbhai Patel’s role in framing
See also President, powers of
of 5
provisions of 7-8 |
Constitutional
for central forces in states 597,
benches
597n.4
Chagla’s criticism of 385n.58
for disadvantaged citizens 95,
Shanti Bhushan’s view regarding
95n.79
367n.60
social-revolutionary, effect of
Changes Committee of Congress
646-7
Parliamentary Party 45n.23
See also Fundamental Rights;
democracy, Indians’ steadfastness
Directive Principles
for 292
Punjab resolution on rewriting of
revolt 148. See also centre-state
377
relations
reform of
Constructive Programme Committee
Congress resolution at Kamagata
and Congress Party 34, 34n.68
Maru session 350, 350n.6
Consultation of Rulers for India,
difference in attitude of CPI and
statement of 225
CPI(M) regarding 369
716 Index

Convention CPI. See Communist Party of India

on Constitutional Amendments CPM. See Communist Party of India
384n.51 (Marxist)
Naga Peoples’ 152 Crossroads case 41-2
Cooper case 215-16 Patel on 42, 42n.13
A. N. Ray’s opinion on compensa- Supreme Court ruling in 42, 42n.11
tion in 217 Crown Representative’s Police Force
bench for 216n.21, 217-18 599n.6
J. C. Shah’s ruling on compensation CRPF 599, 599n.6
in 216 Rajamannar Committee recom-
reactions to Supreme Court deci- mendations on deployment
sion 219-20 of 601n.16
Supreme Court decision in 218-19 See also central paramilitary forces;
Cooper, Rustomji Cowasji, petition central forces in states
against bank nationalization Cultural characteristics
215, 216. See also Cooper case of acquiescence to fathers authority
above 638, 643
Co-operative farming 89 affecting governance
Dhebar’s views 117n.64 empty-promise syndrome. See
joint 116, 116n.62 empty-promise syndrome
Nehru as advocate of 116, 116n.63, indifference towards lower or-
117n.64 ders 649, 651
Ranga’s criticism of 117n.65 Rajiv Gandhi’s comment regard-
Co-ordination and communication ing 645
between centre and states. See of survival society. See survival
centre-state relations society
Corporation tax, Sarkaria Commission caste as 639, 646
recommendation on sharing and centralization 563—4
of 617n.10 and failure of social revolution
Corruption, as manifestation of survival legislation 649
society behaviour 642-3 of forgiveness 465
Council of hierarchy 638-9, 649, 657, 659-
Citizens’ Central 65 60
Inter-Governmental. See Inter- of indifference to lower order 661
Governmental Council of loyalty to family and in-group
Inter-state. See Inter-state Council 638
Naga National 152 of paternalism 638, 649
National Defence 65 of subservience to authority 661
National Development 545, 616 of suspicion and conspiracies 535,
National Economic, and Develop- 639-40, 657
ment 628n.58 of sycophancy 660
National Integration, formation of and the social revolution 646
5] See also culture below
zonal, See zonal councils Culture 637
 Index 717
and social revolution, incompatibil- on Constitution’s amending power
ity between 636 263
effect on governance 637, 638 Decentralization 169n.78, 561-2, 667
See also cultural characteristics above C. Rajagopalachari’s support for 561
and good governance 629
Dadachanji,J. B. 216n.21, 259 of planning, Administrative Re-
Dandavate, Madhu 402, 334 forms Committee recommen-
Dange, S. A. 408 dations regarding 620
Daphtary, C. K. 115n.59, 216n.21, Sanjiva Reddy on 538
260n.4, 338, 339, 470, 522 support for 538
arguments in Kesavananda case 262 under Nehru 566, 566n.33-4
on basic structure and anti-national Defamation Bill 514
activities 384 Defections and floor crossing 538,
Darbhanga, Maharaja of 78 538n.34 662
plea for fair compensation 75 Governors’ Report on 583n.34
suit against Bihar Land Reforms Defence of India (Amendment) Ordi-
Act 91 nance (1962) 64
Daru, C. T. 352n.9 Defence of India Act 63, 64, 64n.90,
impressions of ‘Fresh Look’ paper 65, 66
352 amendments during Emergency
Das Gupta, K. C. 68n.105, 160n.48 310
Das, Bachu Jagannadha 129n.17 campaign for revoking of 66,
Das, P. R. 47n.31, 62n.88, 79n.26, 66n.100
87n.53, 90 Defence of India Ordinance 63, 64,
Das, S. K. 82n.34, 91n.67
64n.90
opinion on Bihar Management of Defence of India Rules 63-4
Estates and Tenures Act
Democracy 6, 7, 633
79n.26
dangers of preventive detention to
plea to reconsider Golak Nath 205
67n.105
view on just compensation 219
in India 17, 667-8, 669
Das, S. R. 41n.6, 42n.11, 58 n.72, 90n.65,
Krishan Kant in defence of 387
96n.82, 106n.24, 124n.3, 338
opposition parties advocating of 18
decision in Dorairajan case 96
representative 4, 665-6
Dastur, Aloo 366n.59
and social revolution
Dave, P. K. 606
conflict between 9, 388-9, 652,
Dayal, Raghubar 115n.59
655, 668
De, Niren 198n.3, 215, 216n.21, 260n.4,
conflict with property 652-3
329
andjudiciary 663, 663n.68
on amending of Constitution 241
See also Fundamental Rights vs.
arguments against dissolution of
Directive Principles
state assemblies 444
and Socialism Resolution 116,
arguments in Habeas Corpus case
147n.9, 211, 212
338, 339
Dhebar Committee, report on
arguments in Kesavananda case 263
119, 198
on basic structure doctrine 330
718 Index

Deo, P. K. no-confidence motion against 467,

challenge to reconsideration of Sev- 468
enteenth Amendment Bill 113 objection to special courts 458, 459
challenge to Twenty-fourth Amend- opposition to supersession 438
ment Bill 225 opposition to witch hunt against
Deo, Shankarrao 17, 637 Mrs Gandhi 453
Desai, D. A. 440, 440n.32, 524n.27 527 as Prime Minister 400, 401
controversy Over appointment to prosecution of Mrs Gandhi by
Supreme Court 438n.23 459n.26
Desai K. T. 285 release from detention 397
Desai, Kanti 404 resignation as deputy Prime Minister
Desai, Morarji 147n.9, 175n.1, 397, 401, 179
418, 421, 448n.56, 452n.73, resignation as Prime Minister 466,
475n.36, 481 468, 472
and abolition of privy purses 224, resignation of, Chandra Shekhar’s
224n.46 demand for 469
address to nation as Prime Minister and social control of banks 212-13
403 support for amendments to Con-
appointment of cabinet subcommit- stitution 334
tee on constitutional changes support for Nath Pai Bill 204
411-12 on Twenty-fourth Amendment Bill
appointment of Parliamentary Af- 226
fairs Committee on constitu- views on dissolution of state assem-
tional changes 411 blies 442, 442n.37
cabinet of, diversity in composition Deshmukh, C. D. 27
401-2 and nationalization of banks 210
claim to form alternate ministry Deshmukh, Dr Punjabrao 45n.23
468, 468n.6, 469 Deshmukh, Nanaji 304, 405, 457n.14
Congress(I) opposition to Destabilization, forces of 534, 535,
471n.19 536n.6
consultation with opposition parties Detention, preventive. See preventive
on Forty-third Amendment detention
418, 418n.22 Dhan, Ram 300, 321, 397n.14
defeat as Prime Ministerial candi- resignation from Janata 401n.24
date 175 Dhar, D. P. 187, 189, 301, 316n.6
demand for elections in Gujarat 301 advice to Mrs Gandhi to declare
efforts to force Mrs Gandhi's resig- emergency 303n.27, 304 .
nation 304 criticism of judiciary 284n.19
encouragement of opposition co- Dhar, P. N. 192, 192n.55, 214, 301, 394
operation 428 on purpose of Swaran Singh Com-
governing style of 404 mittee 354
meeting with Jatti on dissolution of Dharia, Mohan 187n.34, 227, 240,
state assemblies 447 397n.14, 402, 486n.2
motion expelling Mrs Gandhi from opposition to Thirty-ninth Amend-
Parliament 464 ment 320
 Index 719

on preventive detentions 433, Congress advice to Jatti regard-

433n.6 ing 448, 448n.58
resignation of 402n.26 Congress petition against 444
sacking from cabinet 300 Goswami’s views on 446n.50
support for Jagjivan Ram as Prime Janata government’s reasoning
Minister 470, 475n.39 for 448
Dhawan, R. K. 303, 464n.39, 464n.40 Jatti’s assent to 448
arrest of 455 Jattu’s reluctance to assent to
Dhebar Committee report 119, 198 446, 446n.52, 447, 447n.55
Dhebar, U. N. 147n.9, 558 Nirmal Mukharji’s meeting with
on co-operative farming 117n.64 Jatti regarding 447-8
on panchayati programme 167-8 See also Rajasthan case
Dhrangadhra, Maharaja of 224n.46 of Janata state assemblies by Con-
opposition to Twenty-fourth Amend- gress 536, 536n.7, 537,537n.13
ment 226-7 of Parliament
Dikshit, Uma Shankar 178, 332-3, Charan Singh’s advice to Reddy
377, 378n.24 regarding 473, 474, 475
Directive Principles 5, 102, 560 Congress(I) in favour of 476
B. C. Roy’s view on 102 constitutionality of 478, 480
CPI on 361n.45 controversy over 474—5
vs. Fundamental Rights 96, 126, criticism of 480-1
238, 239-40, 240n.23, 251-2, Palkhivala on 477
263, 360, 500, 657. See also reactions to 477-81
Articles Disturbed areas, powers of central
importance of, Shiv Shanker’s view forces in 600
503 Divan, Anil 260n.4, 339
Kumaramangalam on 205-6 arguments in Habeas Corpus case
socialist content of 71 340
and social revolution 14. See also Divan, B. J. 345
social revolution DMK. See Dravida Munnetra Kazhagam
Twenty-fifth Amendment and 239- Dorairajan, Champaknam 96. See also
40, 240n.23 Dorairajan case
Upendra Baxi on 360 Dorairajan case 94—5, 96
(Prime Minister Supreme Court ruling in 96, 96n.82
Disputed Elections
and Speaker) Ordinance Dravida Munnetra Kazhagam (DMK)
1977 398, 398n.17 demand for Dravidanad 51, 51n.44
Dissolution election manifesto of 400
of Congress state assemblies, 441— Kamraj’s criticism of 153
2, 442n.34, 442n.37, 443-4 Nehru’s criticism of 153
Beg’s view regarding 445 support for sovereignty of India 52
Bhagwati’s opinion on 445 threat of secession by 51, 51n.44,
Bhushan’s position on 443-4 152-3
Chandrachud’s opinion on 445 Dravidian peoples 153n.25
Charan Singh on 443 Dua, I. D. 216n.21, 231n.65
Chavan attitude to 448n.58 Dutt, R. C. 73n.11, 187n.35, 189, 643
720 Index

Dwivedi, S. N. 260n.4, 266, 269n.30, Emergency

270 1962
campaign for revoking of 66,
East Punjab Public Safety Act 41 66n.100
Economic and Political Weekly, The 289 criticism of continuation of 65
Economist, The, criticism of Mrs Gan- - declaration of 63
dhi’s dismissal of Janata state extension of 65
governments 547n.44 G. L. Nanda’s opposition to
Eighteenth Amendment Bill, lapse of revoking of 66n.102
65n.99 lapse of 66-7
Election preventive detention during
of 1967, setback to Mrs Gandhi in 63-7
175 Radhakrishnan’s proclamation
of 1971 of 63
Congress victoryin 186, 193, 236 suspension of rights and liberties
party positions 186n.3]1 during 63
of 1977 of 1971, revocation of 395
announcement by Mrs Gandhi of 1975 9, 596-7
393-4, 394n.2 amendments to COFEPOSA
announcement, motives behind during 310
394, 395n.6 amendments to Defence of India
Congress defeat in 393, 395 Act during 310
of 1980, Congress victory in 485-6 amendments to MISA during
disputes 309, 310
adjudication of, Swaran Singh arrests preceding declaration of
Committee recommenda- 295
tions 362, 398 barring of judicial review during.
Forty-second Amendment provi- See Thirty-ninth Amendment
sion regarding 372-3 Bhushan’s views on 426
restoration of Supreme Court’s cabinet approval of 307
power to adjudicate 432 Citizens for Democracy recom-
See also Article 329A mendations for preventive
expenses, Supreme Court ruling detention during 386
regarding 316 Communists and 359
first 16, 16n.4
conditions leading to, opposi-
laws, in Ninth Schedule 320 tion’s role in 295-6
Laws Amendment Act 320, 320n.19,
criticism of Gokhale’s role in
323 456n.8
Mrs Gandhi's, Raj Narain’s peti- as culmination of trends 297-8.
tion challenging. See Indira 298n.7
Gandhi Election case 314-15 D. P. Dhar’s advice to declare
in Gujarat, Morarji’s demand for 303n.27, 304
301 ~ declaration of 295
as self-correcting mechanism 255 under Transaction of Busi-
Emergencies 595-7 ness Rules 306
 Index 721

demolition of jhuggi-jopries Santhanam on 368

during 312 and the seamless web 296, 348—
detentions during 309. See also 9, 390
MISA; COFEPOSA Seyid Muhammad's views on 415
detentions of political leaders in Shah Commission report on 307.
Bangalore 335 See also Shah Commission
petitions against 335, 336 social revolutionary justification
difference in attitude of CPI and of 308
CPI(M) towards 369 sterilization programme during
disapproval of, by Bar Associa- 312, 312n.55
tion of India 596 suggestions by National Seminar
effect of 296 Consensus regarding 386
events preceding declaration of suspension of Fundamental
298-301, 304-6, 306n.30 Rights during 299
CWC reaction to 300n.12 suspension of personal liberty
flexible aspects of 337 during 309
lack of social-economic reform suspension of right to move
during 389, 390 courts 309, 312
laws enacted during, Forty-sec- Swaran Singh’s criticism of
ond Amendment provisions 355n.23
for 373n.6 transfers of high court judges
Madhu Limaye on 298n.7 during 344-7. See transfer of
Mrs Gandhi's justification for judges
293, 295, 296 unconstitutionality of 335
Mrs Gandhi's letter to President views on 298
regarding proclamation of in border areas 66, 66n.103
306, 306n.30 Khanna’s submission to Desai re-
ordinances during 314-17 garding 412-13
in part of country 66n.101, 157,
Parliamentary ‘reforms’ during
358n.34 157n.38
positive aspects of 389, 390 Swaran Singh Committee recom-
press censorship during 295, mendations on 362
310, 311 See also President’s Rule
preventive detentions during provisions in Constitution regard-
ing 63n.89, 594, 594n.1
295
Rajamannar Committee on and Forty-second Amendment
596n.2 373
potential for misuse 596n.2
resolution regarding continua-
tion of 313 in Punjab, Nehru’s comments on
revocation of by Janata govern- 158, 158n.43
suspension of writs during, Setal-
ment 403
vad’s view 67n.105. See also
role of bureaucrats in 307n.33
writs
Sanjay Gandhi's role in 307. See
also Gandhi, Sanjay Emergency Courts Bill 460-1
bench for 461n.32
S. S. Ray’s role in 321
722 Index

Empty-promise syndrome 644, 645, objections to amendment of Con-

649 stitution 87
Epistolary jurisdiction 440n.30, 663 Fernandes, George 396, 402
Escape clause in Article 31C. See Article threat of railway strike 299
31C Fernandes, Lawrence 312
Essential Commodities Act 64 Fifty-second Amendment 662, 662n.65
Estates, definition of 111 Finance Commission 164, 165-6, 614—
Ex-communists 18
attitude toward parliamentary de- centralization of federal finance 622
mocracy 183 centre-state relations and 566
in Congress(R) 182, 183 distribution of income tax and
and social revolution 254 excise duties 616
in Swaran Singh Committee355 first 615, 616
See also CFSA need for 615-16
Ex-governors, appointment of 581 and Planning Commission, co-or-
Extreme socialists. See CFSA dination between 621-2
Rajamannar Committee recom-
Factionalism mendation on 617
dangers of 559 Sarkaria Commission report on 618
increase in 662 Finance Commissions Act 615
Federal First Amendment 87-9, 652, 653
relations. See Centre-state relations alteration in Article 15 96, 97
structure, of Congress Party 146-7, attack on Constitutionality of 90
146n.8. See also Kamraj Plan drafting of 42-3
system, All India Muslim Conven- introduction in Lok Sabha by Nehru
tion recommendation on dis- 46
solution of 150n.18 issues addressed in 70
See also federalism below judicial review of restrictions on
Federalism 355, 356 speech 50
CPM on 562 Kamath’s criticism of 47
in Congress party 565. See alsofederal Mavalankar’s objection to 88n.54
above Mookerjee’s criticism of 88, 88n.56
under Mrs Gandhi 568-71 Nehru and 653-4
under Nehru 565-8 Nehru’s justification of 49n.38
and Janata government 571-2 Nehru’s recommendation on rea-
and parliamentary system 567 sonable restrictions on free-
and presidential system 567 dom of speech 47-8
in Constitution 146, 561 opposition to 47, 48, 49n.38, 89
K. Santhanam on 561, 564 passage of 49, 89
states concern over, Mrs Gandhi's Prasad’s objections to 45, 89-90
response to 534 public reaction to 88n.57
See also decentralization purpose behind, Nehru’s view 88
Federation of Indian Chambers of reasonable restrictions on freedom
Commerce of speech 47-8, 49-50. See
comment on Article 31A 108 also freedom of speech
 Index 723

restrictions on freedom of speech. referendum on amending basic

See freedom of speech and structure 420-1, 421n.33, 422,
expression 425
Select Committee recommendation removal of property from Rights
on 47, 48, 48n.34, 89 425. See also under property
significance of 97 repeal of MISA 420
First Convention on the Constitution restriction on suspension of Article
205 19 420
First information report 454n.5 restrictions on President’s Rule 420
Floor crossing and defections 538, return to Lok Sabha for reconsid-
538n.34, 662 eration 427
Fortieth Amendment 320n.20 revisions in Rajya Sabha 427
Forty-fifth Amendment 537 writs of habeas corpus and 425
Forty-fifth Amendment Bill. See Forty- Forty-second Amendment 348, 658
fourth Amendment Bihar resolution on 377
Forty-first Amendment 320-1, 322-3 changes to emergency provisions
Palkhivala’s comment on 331 in 373
Forty-fourth Amendment 596, 657 Clause 55 of, barring judicial review
amendment of Articles 358 and of amendments 499
359 420 Congress members’ doubts regard-
Cengress(I) position on 423-4 ing 389
Congress support for 428, 429 Congress members’ opposition to
constitutional protection for parlia- 415
mentary publications 423, consolidation of Prime Minister’s
425 power 376
deletion of Article 257A(central criticism of 383-7
forces in states) 425 drafting of 374-6
deletion of Article 329A 425 secrecy behind 365
drafting of 420-4 events leading to 349
emergency provision under 423, expanded Article 31C of 499
425 extension of President’s Rule under
and joint select committee, divided 610n.42
opinions 422 Gokhale’s support of 381
non-notification of preventive de- inclusion of Secular and Socialist
tention clause 430n.64 in Preamble, Mrs Gandhi's

passage in Lok Sabha 427 views 382

provisions Mavalankar on 387
concerning life and liberty 426 Mrs Gandhi's justification for 370,
of President’s Rule 425 382
of replacing internal disturbance opposition to, in ‘Statement by
with armed rebellion 423 Intellectuals’ 385
for tribunals 425 and Parliamentary supremacy 374,
purpose of 494-5 375
ratification and presidential assent passage of 388
429-30 positive aspect of 389
724 Index
provisions 371-3, 373n.6, 374 Forty-sixth Amendment 452
of central forces in states 373, Forty-third Amendment 410-11, 417-
385, 601, 601n.14 20
curtailment of Supreme Court Bill, lapse of 411n.4.
jurisdiction over state laws 372 Chavan’s attitude towards 415
exclusion ofcourts from election Congress support for 419, 419n.29
disputes 372-3 passage of 419-20
expansion of Article 31C 37] repeal of Article 257A (central forces
of president ‘shall act’ 374, 474, in states) 418
474n.33 repeal of Article 31D 417, 419
regarding anti-national activities repeal of larger constitutional
(Art. 31D) 372, 376, 382 benches 417, 418, 419n.26
regarding centre-state relations restoration of high courts authority
(Arts. 269, 226A, 228A) 373 to scrutinize central laws 419
regarding judicial benches Fourth Amendment 101-10, 655
(Arts. 144A, 228A) 373
debate in Parliament 110
regarding judicial reviews (Art.
Frank Anthony’s comment on 110
368) 373
impetus for 100-1
regarding laws enacted during
introduction in Parliament 107
emergency 373n.6
Kripalani’s comment on 110
regarding stay orders (Art. 266)
Nehru on 109n.36
5
Of
Pant’s defence of, in Rajya Sabha 110
regarding tribunals 372
passage and assent 110
criticism of 385
purpose behind 371 preparation for 101-4
removal of‘difficulties clause’ 374, provisions of 107
385 public reaction to 108
repeal of report of Joint Committee on 109
Congress support for 365 Statement of Objects and Reasons
Janata cabinet subcommittee 107n.27
proposals on 415-16 Freedom of press
Mrs Gandhi's criticism of 419 Bihar Act restricting 512
Mrs Gandhi's vote for 428 curbs on. SeeEmergency, press cen-
one-line 418, 418n.25 sorship
Seyid Muhammad's views on Mrs Gandhi on 512n.42
354, 419n.29. subcommittee on Constitution
See also Forty-third and Forty- suggestions regarding 101
fourth Amendments Swaran Singh Committee recom-
S. S. Ray’s role in drafting 374, 375 mendations regarding 362-3
social-economic aims of 308 Freedom of speech and expression
Statement of Objects and Reasons 40-1
293, 370 Ambedkar’s position on 44
Stalesman’s criticism of 383-4 Bihar government curbs on 41
Swaran Singh’s comment on provi- exceptions to 44
sion regarding courts 381-2 existing laws restricting 50n.42
 Index 725

Hindustan Times comment on Hidayatullah’s concern over erosion

amending of 45 of 200
H. K. Mahtab’s position on 44n.18 legislation by Janata repealing
Home Ministry note to Cabinet restrictions on 432-5
Committee on 44, 44n.21 as part of basic structure 199, 201.
K. V. K. Sundaram on 43 See also basic structure
Pant’s position on 43, 43n.17 primacy of, Subha Rao on 210
protection of legislation from judi- Rajendra Prasad’s views on 362n.56
cial review 43 removal of property from. See under
reasonable restrictions on 45, 47— property
8, 49-50, 655, 656 S. S. Ray on 244-5
S. P. Mookerjee on legislation affect- as social rights 262
ing 48 suspension of, during Emergency
‘Fresh Look’ paper 333n,21, 350, 299
352n.8, 360n.42, 362n.49, to property, under Article 31 77. See
376, 380 also Article 31; property
A. R. Antulay and 351 to work 351
advocacy of Presidential system 351 and unity and integrity, conflict
attack on judiciary 342 between 655, 656. See also
authorship of 351, 351n.7 unity and integrity
C. T. Daru’s impressions of 352 See also Articles
leakage of 352
Mrs Gandhi's dissociation with 352 Gadgil, D. R. 239n.17
recommendations on judicial Gadgil, V. N. 419n.29
appointments 333 Gae, R. S. 249
Santhanam’s comments on 352 Gaekwad of Baroda 224
Fundamental duties 413, 418 Gaekwad, Fatehsinghrao 252
drafting of, by Swaran Singh Cum- Gajendragadkar, P. B. 68n.105, 85,
mittee 363—4 115n.59, 270, 412, 412n.7
Rajendra Prasad’s views on 362n.56 advice regarding modalities of
Fundamental Right(s) 5, 7, 14, 74, 560 amending constitution 356,
amendment to, ratification by states 356n.26, 369
208n.34 advocacy of parliamentary suprem-
case. See Kesavananda case acy 359n.38
conflict between judiciary and Par- on amendment of Constitution
liament over 8. See alsojudicial 115n.60
review appointment as CJI 135n.36
CPI(M) defence of 369n.67 on basic structure doctrine 349, 414
difficulties in drafting of 76 on as chairman of Law Commission
vs. Directive Principles 96, 126, 238, 189, 189n.45
951-2, 239-40, 240n.23, 263, on Fundamental Rights 248
360, 500, 657, 658 on need for rural credit 209-10
Front, criticism of Twenty-fourth opposition to removing property
Amendment Bill 226 from Rights 421
Gajendragadkar on 248
726 Index

‘Prefatory Note’ to Desai on amend- cabinet

ment 412, 413-14 of 1971 187, 187n.34, 237n.10
reservations regarding escape of 1980 486, 486n.4
clause of Article 31C 249 CFSA members in 187, 187n.34
on retrospective laws 324 centralization of authority under
ruling on Kerala Agrarian Relations 297, 573, 661
Act 160n.48 as centralizer 564. See also centrali-
on supersession 283 zation of authority above
on transfer of high court judges CFSA and. See CFSA
136-7, 137n.45, 345, 346 challenge to organizational wing of
Gandhi, Feroze 50n.41 Congress 176
Gandhi, Indira 8, 147n.9, 173, 350n.6, Charan Singh’s vindictiveness
397, 398, 486-7, 495, 652, 659 against 453, 453n.1, 454
on abolishing privy purses 227, 228. and Chavan, differences between
See also princes’ privy purses 408
absolutism of 194, 195. See also comeback strategy of 406-7
authoritarianism below on compensation 245
anti-national provision in Twenty- conceniration of authority in PMO
forth Amendment, opinion under 174
on 382
concentration of power through
Antulay on 382n.40
structural changes 190-1
arrest of, by Janata government
conditional support for Jagjivan
455-7
Ram 478
assassination of 485, 549
confrontation with Nijalingappa
assent to Mathew as CJI 280n.4
179-80
attack on K. Subha Rao’s campaign
on constitutional reform 531
for presidency 383
attack on opposition’s criticism of Congress split under 180, 181n.22
court appearance by 316
Twenty-forth Amendment
382 criticism of Janata Government by
attitude towards Constitutional 488, 488n.11
amendments 256 criticism of opposition parties by
attitude towards Swaran Singh 489
Committee 364—5, 365n.58 criticism of repeal of Forty-second
authoritarianism of 488, 489, 657, Amendment by 419
659 criticism of Shastri by 179n.17
perpetuation through presiden- Desai’s opposition to witch hunt
tial system 493, 494, 494n.39 against 453
See also absolutism above - prosecution of, Desai’s views on
B. K. Nehru’s comment on 297-8 459n.26
bank nationalization by. See nation- domination of Parliament by 174
alization of banks downgrading of Cabinet Secretary's
on basic structure doctrine 329, 507 powers by 192
Bhagwati’s letter to, on jurisdictional dynastic succession of, fears regard-
changes 501-2, 502n.9-10 ing 489, 489n.15

t
 Index 727

effect of Sanjay Gandhi’s death on lamation of Emergency 306,

487 306n.30
efforts to force resignation of 304 Lok Sabha trial of 453
election motives behind setting up Sarkaria
as Congress president 407 Commission 543
as Prime Minister 174-5 and Nath Pai Bill 219
of 1967, setback in 175 nationalization under 188n.41. See
of 1971, victory in 186, 193, 232, also nationalization
and Nehru, comparison between
236
of 1977, announcement of 393— 289-90, 572-3
4, 394n.2, 395, 395n.6 on Nehru’s contemplated resigna-
of 1980, victory in 485-6 tion 30
Election case. See Indira Gandhi on new constituent assembly 381
Election case objections to Young Turks’ resolu-
Emergency of. See Emergency tion on privy purses 223
encouragement of factionalism in and transfer of high court judges,
Congress by 194 reasons for 344, 518

expulsion from Parliament 464 overcentralization of authority by

federalism under 568-71 173, 659
and forces of destabilization 534-5 Palkhivala’s letter to, regarding
Kesavananda review 331,
on freedom of press 512n.42
331n.15, 332n.17
and ‘Fresh Look’ paper, dissociation
with 352 Parliament under 660-1
garibi hatao slogan of 186, 236 personal motives behind superses-
sion of Justice Hegde 281,
on high court writ powers 360
281n.9282
on incorporation of secular and
socialist in Preamble 382 personal motives behind superses-
sion of judges 281
indecision of, regarding resignation
302 personalization of power by 192,
299, 550-1. See also authori-
influence of Sanjay and the coterie
on 324-5 tarianism of
post-Allahabad demonstrations of
jailing of 464
support for 302, 302n.19, 303
on judicial appointments 524
postponement of 1976 elections by
and judiciary 174, 256, 328, 516—
308
17. See also supersession;
on presidential system 353n.14,
Kesavananda, review of; Habeas
357, 357n.29-30, 567-8
Corpus case
Prime Minister’s house as power
justification for Forty-second
centre under 193
Amendment by 370
on private enterprise 488n.12
justification of Emergency by 307,
public activities of, during Janata
307n.35, 308
phase 406
kitchen cabinet of 177n.10, 193
radicalization of Congress under
lack of ideology 597 187, 188
proc
letter to President regarding
728 Index

Narain’s, Raj election petition on sorrow 487n.10

against 186n.31, 315. See also special courts for prosecution of.
Indira Gandhi Election case See special courts
Rajiv’s homage to 549 Stray Thoughts Memorandum of
reaction to Kesavananda decision 177,178
264 supersession of Justice Khanna. See
reaction to Supreme Court decision under Khanna
in Cooper case 219 support for Charan Singh’s minority
reconstitution of Law Commission government 466, 471-2,
under 189 472n.22
re-election of 463 support for supersession of judges
refusal to testify before Shah Com- 288
mission 457-8 support for Twenty-fourth Amend-
re-introduction of MISA by 193 ment 382
rejection of presidential system by supporters of, in CWC 406, 406n.40
357, 357n.29-30, 567-8 suspicion of conspiracies 659
relations with A. N. Ray 290n.42 Swaran Singh Committee and 354
on removing property from Funda- and syndicate members, clash
mental Rights 232 between 176, 178, 179-80
reorganization of cabinet secre- Twenty-Point Programme of 295,
tariat by 190 308, 308n.37
resignation from Congress Working on Twenty-fifth Amendment 251
Committee 407 on Twenty-fourth Amendment 226,
resignation of, demand for after 227, 245
Allahabad decision 302 unitary style of functioning in
response to Jagjivan Ram’s resigna- Congress under 605, 605n.24
tion 398 victory over Pakistan 193
response to states’ concern over fed- Vijayalakshmi Pandit’s opposition
eralism 534 to 398
rift with Brahmanand Reddy 406, vote against Charan Singh’s confi-
407 dence motion 473, 473n.29
role in drafting of Forty-second vote for repeal of Forty-second
Amendment 375 Amendment 428
role in President’s Rule in Kerala See also presidential system, debate
161, 161n.52 over
role in Punjab problem 550 Gandhi, Mahatma 167
role in resolutions on new constitu- centralized leadership and unity
ent assembly 379 under 145
Sanjay’s advice to, against resigning Congress party under 4
302 Gandhi, Rajiv 9, 491, 515
social revolution under 174, 291-2, agreement with Akalis 549n.53
657, 658, 660 comment on cultural characteris-
socialism of 198. See alsosocial revo- tics affecting governance 645
lution above, Twenty-Point Congress victory under 549n.52
programme swearing in as Prime Minister 549
 Index 729
and Zail Singh, strained relations 247, 270, 271, 282, 320n.20,
between 513, 513n.43 321, 322, 329, 351n.6, 368
Gandhi, Sanjay 299, 302, 372, 394, 395, arguments against dissolution of
406, 462, 462n.34, 472n.22, state assemblies 444
485 arguments supporting Twenty-
arrest in Kissa Kursi Kacase 459n.21 forth Amendment 381
arrest by Janata government 455 attack on judicial review 382-3,
attack on CPI 408 383n.41
bid for chief ministership 490, on constitutional amendment
490n.16 371n.3
death of 487 491 on constitutional reform 351
influence of 326, 326n.50, 489 defence of Justice Ray’s appoint-
concern regarding 326-77 ment as CJI 284
influence on Mrs Gandhi 324-5 defence of provision compelling
and Kissa Kursi Ka case 439n.25, President’s assent 245, 245n.2
459n.21 defence of Twenty-fifth Amend-
preparation of pre-emergency ment 249-50, 250n.63
arrest lists 303 fears during Emergency 375n.11
role in Emergency 307. See also introduction of Twenty-fourth
Emergency, 1975 Amendment 244
role in state resolutions on new con- justification of Beg’s appointment
stituent assembly 379, 380 as CJI 436n.17
Youth Congress under 325n.42 opinion on Hegde’s supersession
Ganesh, K. R. defection from Congress 284
398 reservations regarding escape
Garg, R. K. 216n.21, 358, 384, 524n.27 clause in Article 31C 249
Garg, S. K. 444n.42 reversal of positions of Rights and
Gautam, Mohanlal 45n.23 Principles 251
Ghatate, N. M. 335 role in drafting Forty-second Amend-
Ghosh, Atulya ment 375
criticism of Congress failure in role in emergency, criticism of
social reform 176n.4 456n.8
resolution on princes’ purses 223 support of Thirty-ninth Amend-
Ghosh, D. N. 214 ment 319n.17
Ghosh, P. C. 585, 586 testimony before Shah Commis-
Giri, V. V. 178, 179, 179n.16, 316n.5 sion 307n.34
objection to appointment of A. N. and Twenty-Fifth Amendment 249-
Ray as CJI 279 50, 250n.63
Gokhale, P. G. 524n.27
objection to supersession ofjudges
279 ; Golak Nath case 196-202
bench forl97n.3, 199
proposal for abolishing writs in
editorial reaction to 203n.18
industrial disputes 102n.11
genesis of 196-7
support for dissolution of assem-
prospective over-ruling in 202,
blies 442n.36
202n.17
Gokhale, H. R. 187, 237, 237n.10 238,
730 Index

S. K. Das’ plea to reconsider 205 consultation between centre

S. S. Ray on 245 and state 578, 578n.16, 579
Subha Rao’s arguments in 199-201 criterion for 575n.4, 577-8
Supreme Court decision in 197-8 recommendations regarding
Chandrachud on 267n.20 578-9
Munshi’s views on 206n.28 Santhanam’s recommendations
overturning in Kesavananda 265, on 78
266 Sarkaria Commission recom-
Rajagopalachari’s reaction to 206 mendations on 579, 579n.20
Setalvad’s views on 359n.39 selection by Inter-State Council
Golak Nath, Henry 196 578
Gopalan, A. K. 58, 60n.78, 66, 110 selection from panel of candi-
on supersession 287 dates 578, 579, 579n.20
support for Seventeenth Amend- authority to declare emergency 606
ment Bill 114 Conference, role in centre-state
opinion on Twenty-fourth Amend- relations 623
ment 246 constitutional status of, Supreme
preventive detention of. SeeGopalan Court ruling on 576, 576n.12
case criticism of institution of 574-5,
Gopalan case 58-9, 60n.78, 656 575n.4
Supreme Court ruling in 59, 59n.73 discretion of 574n.1, 576, 583
Gopalan, Mrs A. K. 384 controversial use in Bengal 584-7
Goray, N. G. 486n.2 controversial use in Madras
criticism of Kumaramangalam 287 583-4
Goswami, P. K. 444n.42 in appointment of high court
views on dissolution ofstate assem- judges 127
blies 445 in reservation of state bills 592,
Governance 3 592n.70
cultural characteristics affecting. during Nehru years 579, 579n.21
See cultural characteristics powers of, under Constitution
effect of culture on 637, 638 582, 582n.31-2
good, and decentralization 629. See ‘Fortnightly Letters’ from 577,
also decentralization 577n.13
responsibilities of, under new and government offered induce-
Constitution 14 ments 581
under Nehru 660 Instruments of Instruction to, Raja-
Government of India Act (1935) 4, 560 mannar Committee proposal
as source of Indian Constitution 5 for 590
Government, common man’s percep- as link with state government 576-7
tion of 638 as political appointment 579n.18
Governor(s) powers of
abolition of office of 578n.18 Asif Ali’s query on 21
Administrative Reforms Commis- discretionary. See discretion above
sion report on 574, 574n.2 to dissolve state assembly 588,
appointment of 163, 574n.1 588n.53, 589
 Index 731

need for codification of 589-90 on nominated member made chief

to summon assembly 589 minister 584n.35
removal by impeachment 580 response to Rajamannar’s recom-
reservation of state bills by 590, mendations on President's
590n.62, 591, 591n.63, 592, Rule 610
592n.72, 593 on role of governor 575, 575n.8
discretion in 592, 592n.70 Goyal, S. K. 213
Rajamannar Committee on 592 Grover, A. N. 208n.34, 216n.21,
Santhanam on 592, 592n.72 231n.65, 260n.4, 266, 269n.30
Sarkaria Commission on 593 comments on supersession 286
Srinagar Statement on 593 supersession of 278, 282
retirement benefits for 582 Gujarat
role in legislative assembly, Congress defeat
appointment of high court) udges in 301
127-8 Morarji’s demand for elections in
colonial India 575-6, 576n.9 301
pre-colonial India 575 President’s Rule in 300
selection of chief minister, crite-
riots in 299-300
rion for 587-8 Gujral, I. K. 177n, 10, 187n.34,
role of opposition to Press Bill 189n.42
Bangalore Seminar of Experts Gupta, A. C. 444n.42, 502, 527, 524n.27
report on 575 Gupta, Banarasi Das 377
Constituent Assembly debate Gupta, Bhupesh, accusations of tam-
pering with Swaran Singh
over 576
Governors’ Report on 575 Committee report 370, 370n.1
Nehru’s views on 577n.14 Gupta, Indrajit 486n.2
Sarkaria Commission report on Gupta, Kanwar Lal, views on amend-
ment to Articles 20, and 21
574n.1
426n.53
tenure of 580, 581n.27
Congress(I) position on 581 Gupte, S. V. 446n.50, 447
Sarkaria Commission’s analysis
of length of 581 Habeas Corpus case 334-44
arguments in 338, 339, 340
Sarkaria Commission’s recom-
mendations on 580 Beg’s comment on own decision in
163 342
as unifyi ng force
Report below bench selection for 337-8
See also Governors’
Chandrachud’s comment on own
Governors’ Report
of chief minister decision in 342
on appointment
588 decision of bench 340
Jayaprakash Narayan’s reaction
on defections 583n.34 to 341
on discretionary powers of gover-
motives behind 342, 343
nors 582n.31
S. P. Sathe’s comment on 341n.44
on governors power to summon
government arguments in 338
assembly 589
 732 Index
Khanna’s dissenting opinion in in Indira Gandhi Election
340-1, 342, 343 case 315
MISA and 338 Hegde, Ramakrishna 457n.14
orders and ordinances central to on party discipline 460n.28
337 role in reassessment of centre-state
origin of 334-5 relations 541, 542, 545
Tarkunde’s arguments in 340 Hegde, Santosh 335, 335n.26
Habeas corpus, writs of Hidayatullah, M. 68n.105, 115n.59,
citizen’s right to, during emergency 197n.3, 201, 208n.34, 231n.65
67n.105 concem over erosion of Fundamen-
Khanna’s submission regarding 413 tal Rights 200
petitions, upholding by courts 336 on right to property 205, 205n.24
right to 336 Hierarchy, effect on governance 638—
See also Habeas Corpus case; writs 9
Haksar, P. N. 178, 184-5, 191n.51, High court chief justice
309n.41, 379 appointment from outside state
control over Prime Minister’s sec-
517, 519
retariat 19]
government policy regarding trans-
drafting of ‘Stray Thoughts Memo-
fer and appointment of 531,
randum’ by 177
531n.53, 532
slogan of commitment 185, 185n.30
Law Commission recommendations
view of Emergency 298
view on social control of banks on appointment of 519n.12
transfer of, Law Commission’s
213n.13
Hanumanthaiya K. 6, 45n.23 recommendation 136
impression of judges 226n.51 High court judges
Haryana, resolution on new constitu- additional,

ent assembly 377 appointment of 517n.3

Hasan, Gulam 106n.24 dispute regarding tenure 523
Hasan, Nurul 187 See also Judges case
Hegde, K. S. 216n.21, 231n.65, 401, 438 allegations against 528n.42
as CJI, Kumaramangalam’s Oppo- appointment of 533
sition to 282 according to seniority 133,
comments On supersession 286 133n.32, 134, 134n.34
criticism of Kumaramangalam All India Convention of lawyers
286n.29 suggestions on 288
criticism of Swaran Singh Commit- All-India panel for selection 130,
tee proposals 368n.64 132
ruling in Indira Gandhi Election Bar Council of India recommen-
case 315 dations on 520-1
supersession of 278, 315n.3 Bhagwati’s comment on 525n.29
Gokhale’s opinion 284 canvassing by individuals 128n.17,
Mrs Gandhi's motives behind 130n.22
281, 281n.9, 282 caste considerations in 519,
upholding of Raj Narain’s petition 519n.10
 Index 733

chief ministers role in 28, 129, on amending freedom of speech 45

130, 131n.19, 132 on Constitution inauguration 13-14
Constitutional provisions for on Forty-third Amendment 41 1n.4
124-5 on judicial appointments 521n.17
controversies over 125-6, 126n.10 on Kesavananda decision 265
executive influence in, concern on Minerva Mills decision 503
over 130, 130n.21 on presidential system 496
‘Fresh Look’ paper recommen- on presidents position 25
dations regarding 333 on special courts 459n.21
from outside state 517, 518, on Twenty-fourth and Twenty-fifth
519-21, 523n.23, 532 amending bills 247-8
Governors’ discretion in 127 Hingorani, Mrs K. petition regarding
governors’ role in 127-8 undertrials 440
Hindustan Times comment on Hitler and the enabling law 204
521n.17
independent panel for 286n.31 ICS. See Indian Civil Service
Law Commission recommenda- Ideology, and RSS 597
tions on 135 lengar, H. V. R. 116n.63
Mahajan’s criticism of selection proposal for preventive detention
process 130 bill 56, 56n.63
Munshi’s criticism of selection Illusory compensation. See Compen-
process129-—30, 130n.19 sation
Pant-Setalvad correspondence Imperial Bank, nationalization of
on 131-3 93n.74
Sastri’s criticism of selection Implied limitations, on Parliament's
amending power 40, 197, 199,
process 130
Shiv Shankar’s view on 518-19
201, 261, 261n.6, 263, 503,
Setalvad’s analysis of 132 504
concept of 197
transfer of. See transfer of high court
government position on 199
judges ©
Subha Rao’s position on 201
See also judiciary
amendment in Article 368
Hindi
Income tax, and excise duties, distri-
as official language 154
bution of 616
opposition to imposition of 154-5
Independence movement, unity under
Hindu Code Bill 22~3, 24, 24n.31
145
Ambedkar’s resignation over 24n.31
India
Hindu Mahasabha 150
—China war 63, 64-5
economic programme of 102n.11 democracy in 17. See alsodemocracy
support for unitary government 562 disparities between states 637
Hindu, The : diversity 637
comment on Minerva Mills decision
partition of 5
503 population of 636
on transfer of judges 520 Indian Civil Service, withdrawal of
Hinduism, as unifying force 144 privileges. See also Twenty-
Hindustan Times, The 302, 394 eighth Amendment
734 Index
Indian Companies (Amendment) Bill Instruments of Instruction to Gover-
72n.8 nors, Rajamannar Committee
Indian Express, The, reaction to twenty- on 590
fourth and Twenty-fifth Integration of princely states 143
amending bills 248 Intelligence Bureau, role in reporting
Indian Penal Code (Amendment) Act state developments 577
153n.28 Intention and performance, gap be-
Indian Prisons Bill 664 tween 118, 119
Indianness, sense of 630 Inter-Governmental Council 627,
India—Pakistan war (1971) 334n.1, 627n.58
314-19 Internal disturbance, Sarkaria Com-
Indira Gandhi Election case mission’s definition of 604
adverse opinion in 301 Interstate Council 610, 625—7, 628n.58
attempts to foreordain Justice Congress opposition to 627
Sinha’s judgement 317-18 recommendations establishing 545,
and the Blue Book 315, 316 545n.41, 626
conditional stay by Justice Krishna selection of governors by 578
lyer 303, 318 Ismail, M. M.
grant of unconditional stay in 317 allegations against 528n.42
Justice Sinha’s judgement 316-17 opposition to transfer 521-2
Mrs Gandhi's appearance in court Iyer, V. R. Krishna 189, 302, 346n.64,
316 438n.24, 461n.32
Narain’s, Raj petition in, upholding comments on Article 31C 248
of by Justice Hegde 315 conditional stay in Indira Gandhi
Palkhivala and 302, 318, 323 Election case 303, 318
Narain’s, Raj allegations against decision in Indira Gandhi Election
Mrs Gandhi 315 case 318
Sinha-Mathur affair 317-18 on legal aid 664
Supreme Court decision in 323-4 public interest litigation and 440
Thirty-ninth Amendment and
323-4 Jagirdars 61, 61n.84
Yashpal Kapoor and 315 Jagmohan 428n.56
Indo-Soviet Friendship Treaty 243, role in dismissal of Farooq Abdullah
243n.37 546
Indo-Tibetan Border Police 599 Jain, A. P. 35n.73
Industrial Policy Resolution Jain, Girilal, views on constitutional
1948 of 71-2 reform 351
1954 of 2n.8 Jain, M. L. ruling on special courts 462,
1956 of 116 463
Industrial tribunals 102n.11 Jammu and Kashmir
Industrialists, contempt for 72, 72n.9 accession to India 539n.18
Industries (Development and Control) elections in 449n.61
Bill 72n.8 special status under Article 370 151,
170
 Index 735

See also Kashmir judicial independence under 435-41

Jana Sangh 150, 397, 402 Narayan as spiritual leader of 397
espousal of unitary state 150 National Committee of 397n.13
reaction to Twenty-fourth Amend- organizational wing of 405
ment 246 proposal for civil rights commission
support for amendments 235 450
Janata(S) 467 469 proposal for Minorities Commission
Janata Party 9 450
achievements of 481 rehabilitation of Constitution under
break-up of 537n.14 658. See Forty-third and Forty-
cabinet subcommittee, proposals fourth Amendments
on repeal of Forty-second repeal of restrictions on Fundamen-
Amendment 415-6 tal Rights 432-5
Congress response to 417 and social revolution 450
CPM support for 397 Jatti, B. D.
defeat in 1980 elections 485 assent to dissolution of Congress
defections from 467 state assemblies 448
election manifesto of 399 meeting with Justice Beg, contro-
versy over 449 .
failure of 405, 481
formation of 397, 397n.13 reluctance to dissolve Congress state
government 400-1 assemblies 446, 446n.52, 447,
achievements of 404 447n.55, 448
centralization of power. See dis- speech to new Parliament 402
solution of Congress assem- Jayakar, M. R. 86
blies below Jayaraman 451n.70
council of ministers 401-2 Jennings, Sir Ivor 470
criticism by Mrs Gandhi 488, Jethmalani, Ram 288, 339, 472n.22,
488n.11 493n.30
of special courts 458,
dissolution of Congress state as- advocation
semblies 404, 441-2, 442n.34, 459
442n.37, 443, 444, 547n.44 demand for Beg’s resignation 436,
436n.18
downfall of 465, 466
failure to punish Mrs Gandhi 464 and Emergency Courts Bill 460-1
failures of 404 Jha, Prem Shankar 213, 491
John, V. V. 451n.69
federalism under 571-2
Jois, Rama 335, 336, 337
no-confidence motion against
424.43 Joshi, Subhadra, resolution calling for
bank nationalization 211
restoration of Supreme Court's
powerto adjudicate election Judges
additional, tenure of 526. See also
disputes 432
Judges case
reversal of transfers of judges 439
appointment of
revocation of 1971 emergency by
CJI’s role in 532, 532n.56, 533n.60
403
executive control over 526n.4
selection of Prime Minister 401
 736 Index
See alsounder high court judges Gajendragadkar’s views on 414
extraneous influences on 125 Gokhale’s attack on 382-3,
Hanumanthaiya’s impressions of 383n.41
226n.51 of land reform legislation,
improving quality of 138, 139 Nehru’s opposition to 105
post-retirement employment of 138 of legislative and amending
supersession of. See supersession powers 14
of Supreme Court, swearing in of Mathew’s view on 367
13. See also Supreme Court N. C. Chatterjee on 108
survival society behaviour among of restrictions on speech 50
665 Patanjali Sastri on 39
transfer of. See transfer of judges Seervai’s views on 367
See also High Court Judges; judici- Seyid Muhammad's views on 415
ary; judicial; Law Commission strengthening in Kesavananda
Judges case 524-7 267, 270
bench for 524n.27 Swaran Singh Committee recom-
judges consent to transfer, L. M. mendations on 359
Singhvi’s arguments regard- upholding of, in Minerva Mills
ing 525 case 502
reappointment of additional judges, Judicial system, and common man 7
Court’s right in 525n.29, 526, Judiciary
527 achievements of 662
Supreme Court decision in 527, 530 attack on authority of 101-2, 382-3
tenure of additional judges, Soli by C. M. Stephen 383
Sorabjee’s arguments regard- in ‘Fresh Look’ paper 342
ing 525, 525n.29 by Mrs Gandhi 174
tenure of additional Judges, L. N. See also supersession
Sinha’s arguments regarding Bhagwati’s criticism of 663n.68
526 committed, Kumaramangalam on
transfer of judges, Seervai’s argu- 281
ments against 524-5 confrontation with Nehru
Judicial Appointments 283n.18, 286 over Fundamental Rights 36
Judicial over social reform legislation
appointments. Seejudges, appoint- 36-7
ment of Congress attitude towards 284n.19
benches (144A, 228A), F orty-second Congress (I) antagonism toward 493
Amendment provision re- CPM’s views on 386
garding 373 D. P. Dhar’s criticism of 284n.19
review 43, 652, 653 and executive, conflict between 8,
barring of 40, 499, 658 235-6, 652, 653, 668
of compensation, barring of 655 failure to serve democracy and so-
of detention cases 338, 656 cial revolution 663, 663n. 68
ending of 239 independence of 123
Forty-second Amendment provi- All-India Lawyers Conference
sion regarding 373, 499n. 1 proposal for 522
 Index 737
and calibre of judges 125 Kamath, H. V. 49n.38, 366n.59
extraneous influences on 137-8 criticism of First Amendment 47
Kania on 665 criticism ofsection 14 of preventive
Mrs Gandhi's attempts to curb detention bill 57
328. See also Kesavananda, resolution condemning Mrs Gandhi
review of; Habeas Corpus case for Emergency 454
Nehru on 124 resolution on voting 404n.31
Santhanam’s views on 138 Kamraj, K. 147n.9, 223
and transfer of judges. See trans- criticism of DMK manifesto 153
fer of judges Kamraj Plan 147, 147n.12, 148
under Janata 435-41 Kania, Harilal 58n.72, 90n.65, 96n.82,
Mrs Gandhi’s confrontation with 123, 124n.3
256 appointment as CJI, controversy
and Nehru 106, 108, 654 over 125-6
vs. Parliament. See executive above on judicial independence 665
power to issue prerogative writs, on powers of Supreme Court 39
attack on 655. See also writs Sardar Patel’s support for 126,
Prasad on 124 126n.9
Rajni Pate! on threat to 280n.5 swearing in as Chief Justice of India
role in transfer of high court judges 13
137 Kant, Krishan 187, 240, 241, 321,
role of, Ayyar on 40n.4 366n.59, 384
role of, P. B. Mukharjee on 367 in defence of democracy 387
shortcomings of 663-4, 665 Kapoor, Yashpal 446n.52
socialization of 531n.54 and Indira Gandhi Election case 315
Superior Council of 333, 342 Karachi resolution, of Congress Party
supremacy of 70-1, 71n.6
Santhanam’s views 236 Karma, determinism of 638, 638n.5
Sikri’s views 235-6 Karunanidhi, Sarkaria Commission of
Survival society behaviour in 664 Enquiry against 609n.37
trimming of powers. See Forty-sec- Kashmir 633
ond Amendment, provisions importance for Nehru 152
See also judges preventive detentions in 433, 433n.8
Just compensation for property 77, 80, See also Jammu and Kashmir
82, 100, 219 Kasim, Mir 407n.42
Justice Party 95 Katju, K. N. 101, 104, 105, 127
Kacker, S. N. 473n.27 on Preventive Detention Act 62
Kaul, M. N. 228n.57, 470
on dissolution of Parliament 474
Kailasam, P. S. 462n.34, 503 Kerala
Agrarian Relations Act
Kaka Kalekar Commission 452n.73
Gajendragadkar’s ruling on
Kamagata Maru incident 350, 350n.5
160n.48
Kamagata Maru session of Congress
350 Supreme Court ruling against
11]
resolution on need for constitu-
tional reform 350, 350n.6
Agrarian Relations Bill 160n.48
738 Index

central forces in 598, 598n.5 opinion of minority judges 266-7

Communist party governmentin 159 origin of 259
Congress Parliamentary Board overturning of Golak Nath decision
Resolution on 161, 161n.51 in 265, 266
detentions in 656 pack ing of court in, to overturn
Education Bill 159-60 Golak Nath 269, 269n.30, 270
Government, Nehru’s attitude Palkhivala and 259
toward 160 Palkhivala’s arguments in 260-2
land ceiling law in 160, 160n.48 petition under Article 29 259
President’s Rule in 159-64, 607 review of 328-33
governors’ report justifying 162, opposition to 332
162n.55 Palkhivala’s letter to Mrs Gandhi
Indira Gandhi role in 161, 161n.52 regarding 331, 331n.15, 332n.17
revolution of 163n.58 Palkhivala’s arguments against
Reforms Act in Ninth Schedule 259 331
Kesavananda, Swami 259 role of A. N. Ray in 329-30, 330n.7
Kesavananda case dissolution of bench for 332
achievements of 276-7 Seervai’s arguments in, supporting
and basic structure doctrine 658 Parliament's amending pow-
bench for 258, 259, 259n.3, 260n.4, ers 262
269n.30 Sikri’s attempts to reduce judge-
effect of Beg’s illness on 272, ments 275, 275n.57
972n.45-6, 273, 273n.51 Soli Sorabjee’s arguments 262
Madhu Limaye on 270 statement of majority judges 264,
pressures on 970" 271, 272 264n.i2, 267n.21, 268, 275
tensions within, over circulation drafting of, by Sikri 275
of drafts 273-4 Seervai’s opinion on 268
conclusion of judges strengthening of judicial review in
on Twenty-fifth Amendment 267, 270
265-6 Supreme Court ruling in 258, 259
on Twenty-fourth Amendment upholding of Article 31C in 500
265 Khanna, H.R. 260n.4, 266, 268,
on Twenty-ninth Amendment 269n.30, 338, 339, 373, 412-
266 3, 437
Daphtary’s arguments in 262 on Article 329A 324—
decision dissenting opinion in Habeas Corpus
drafting of statement by Sikri 275 case 340-1, 342, 343
Hindustan Times reaction to 265 on presidential system 493—4
Mrs Gandhi's reaction to 264 recommendations regarding emer
importance of 275-7 gency 412-13
issues involved 258 recommendations regarding writs
leakage of drafts of judges’ opinions of habeas corpus 413
270-1, 271n.35, 271n.37 on retrospective legislation 324
Niren De’s arguments in 263 on supersession 280n.3
 Index 739

supersession of 436, 436n.16 178, 183, 183n.25, 184n.26,

See also Law Commission, Eighteenth 187, 198n.3; 216n,21, 237,
Report of 270, 271, 283n.18, 657
Khare, N. B. detention of 59n.74 on committed judiciary 281
Khoshal, A. D. 440, 440n.32, 462n.34, criteria for selecting CJI 283-4,
524n.27 284n.19
Khudkasht lands 120 criticism of Justice Hegde 286n.29
Khurana, S. L. 303 defence of supersession of judges
Kilachand, Seth Tulsidas 31n.64 283
Kirpal, Prem 644, 645 on Directive Principles and Funda-
Kissa Kursi Ka case 462, 462n.34, 501 mental Rights 205-6
Kogekar, S. V. 370 Goray’s criticism of 287
Koman, controversy over appointment and Judicial Appointments 283n.18,
of 126, 126n.10 286
Kothari, Rajni, on centralization 562- justification for Justice Ray’s ap-
3, 563n.23 pointment as CJI 283
Kripalani, AcharyaJ. B. 401 Mavalankar’s criticism of 287
comment on Fourth Amendment opposition to Hegde as CJI 282
110 position on Article 31C and the
on presidential system 494n.35
escape clause 254
resignation from Congress 88n.55 role in amendments and nationali-
zation 188, 188n.41
resignation from Congress presi-
dentship 34 support for Twenty-fourth Amend-
ment 245-6
Kripalani, Krishna, reaction to disso-
lution of Parliament 479 support for Twenty-fifth Amend-
ment 250-1
Kripalani, Sucheta 49n.38
Thesis 184
Krishna Menon, views on Twenty-fifth
Amendment 251 views on property and compensa-
tion 188n.4]1
Krishnamachari, T. T.
Kumaraswami Raja, P. S. 126
on bank nationalization 210n.3,
211n.7 Kunzru, H. N. 49n.38, 605
on amendment of article 19 47
on preventive detention bill 56n, 64
opposition to President’s Rule 606
on private enterprise 104n.17
proposal for amending Article 31
104 Lal, Bansi 302, 303, 377, 379, 380,
380n.29-30
response to Nehru’s contemplated
arrest of 455
resignation 29
expulsion of 406
views on development ofindustries
role in resolution on new constitu-
104
ent assembly 379-80, 380n.31
Kumar, S. N.
Lal, Ram 547
affidavit against Chandrachud 528
Lalit, U. R., denial of extension to 44
allegations of bribery against 528
Land
See also Judges case ceiling
Kumar, Shisher 451n.70 CWC recommendations on 102
Kumaramangalam, Mohan 60n.78,
740 Index
improper implementation of on property rights 77n.24
254n.78 Latifi, Danial, suggestion on ‘stays’
law, in Kerala 160, 160n.48 367n.60
purpose of 119 Law(s)
for refugee settlement 103. See also Amendment as 13, 84, 90, 197,
Bela Bannerjee case 198n.3, 500
records, manipulation by landlords common, life and liberty as 340, 341
120 curtailing liberty 507-15. See also
redistribution preventive detention
effect of 119 hierarchy of 654
effect on tenants 121 in Ninth Schedule. See Ninth Schéd-
reform legislation, loopholes in 120, ule
121 Law Commission
reform policy on barring post-retirement employ-
aim of 119 ment for judges 138
disjunction between word and chairman of, Gajendragadkar as
deed 118, 119, 644 189, 189n.45
failure of 120, 120n.75, 121 on court delays 140
failure of, role of Congress in criteria for appointment of CJI
120,121,122 284-5, 285n.21
Nehru on 119, 119n.72 critique of Twenty-fifth Amendment
need for, Nehru’s views 91, 91n.66 248-9
slow pace of, Tarlok Singh’s view Eighteenth Report of, recommen-
118 dations on transfers and ap-
See also Zamindari abolition and pointments 520n.16, 521
compensation establishment of 129, 129n.18
tenure systems 111 Fourteenth Report of 129
as source of status 639 interim note on high court appoint-
Landholding ments 131, 132
CWC recommendation on ceiling Pant’s response to 131-2
102 members of 129n.18
fragmentation, of 119 recommendation
Charan Singh’s opposition to on appointment of high court
119n.71 chief justice 519n.12
Language onjudicial appointments 135
as disruptive force 154, 155, 155n.35, on legal aid 141, 141n.63
557n.4 on petitioner’s fees 141, 141n.61
riots, detentions over 656 on speedy resolution of court
as unifying force 144 cases 140n.59
Larger constitutional benches 363 on transfer of high court chief
Gajendragadkar’s views 413 justice 136
repeal of 417, 418, 419n.26 reconstitution of 189
Laski, Harold under Mrs Gandhi 189
influence on Indian nauonal lead- reservations regarding escape
ers 72 clause of Article 31C 249
 Index 741

on Twenty-fourth Amendment states, formation of 156

249n.59 Nehru’s views on 558
Law Institute, Prasad’s speech at 24— Lohia, Ram Manohar 421
5, 25n.33 objection to Nath Pai Bill 203-4
Lawyers Conference and presidential on people’s right to civil disobedi-
system 507 ence 32
Leaders of independence 4 Lok Sabha 7
British influence on 4 post-election (1977) party positions
Legal 409n.2
aid 141 Lokur, B. N. 315
Krishna Iyer on 664 Longwal, Sant Harcharan 549n.53
Law Commission recommenda-
tions on 141, 141n.63 Macaulay, Thomas Babbington 130n.18
Report of the Expert Commit- Madhok, Balraj 215
tee on 663n.69 Madhya Bharat Maintenance of Public
and social revolution 663, 664, Order Act 54, 54n.55
664n.69 Madon, Dinshaw P. 347n.67
curriculum, improvement of 139 Madras
reforms 138-140, 140n.58-9, 141 controversial use of governors’ dis- -
Legislative cretion in 583-4
lists 7 Lignite case 217, 218
terms, Swaran Singh Committee Maintenance of Public Safety Act 42
recommendations 363n.50 Mahajan, M. C. 41n.6, 42n.11, 58 n.72,
Life and liberty as common law 91n.67, 96n.82, 106n.24,
Life insurance, nationalization of 124n.3, 134
93n.74 appointment of 131n.23
Limaye, Madhu 287, 378n.24, 405, comment on Ninth Schedule 89
433n.8, 447n.55 criticism of selection process of
comment on Backward Classes high court judges 130
Commission 452n.73 decision in Gopalan case 59
comment on politicians progeny support for unitary government
405, 405n.35 150n.18, 559, 559n.12
criticism of Article 31D 385 Mahalanobis, P. C. 164
on Emergency 298n.7 Maharaja of Darbhanga. See Dhar-
on Kesavananda bench 270 bhanga
and Nath Pai Bill 203 Mahtab, Hare Krushna
opposition to removal of property position on Freedom of speech
from rights 421 44n.18
opposition to Code of Criminal view on Article 13 84
Procedure Bill 434 view on reasonable restrictions on
freedoms 43-4
Linguism 149, 557
Linguistic Mahmud, Dr Syed 150n.18
Mainstream, The 289
Minorities, Office of the Special
Officer 450n.65 Maintenance of Internal Security Act
299, 420
provinces, demand for 155
742 Index

amendments to, during Emergency . on Forty-second Amendment 387

309, 310 Mehta, Ashoka 384, 396
arrests under 334 on abridgement of Fundamental
and Habeas Corpus case 338 Rights 243
Janata Party failure to repeal 432-3 Mehta, Om 303, 307, 322, 325n.44
reintroduction by Mrs Gandhi 193 Menon, Govinda 201, 204, 207, 207n.33,
Maitra, S. K. 214 227n.54
Makkan Singh case 68n.105 Menon, Krishna 26, 28, 117, 216n.21
Malaviya, K. D. 117, 187, 188, 377 demand for resignation of 25
on need for bank nationalization in favour of decentralization 561
211-12 Maulana Azad’s opposition to 28
Malik, Bidhubbhusau 87n.53 resignation of 25-6
Managing agents of companies 72n.9 Metal Box case 218
Mandal Commission 452, 452n.73, 481 Minerva Mill case 498-507
Mandal, B. P.452 bench for 499n.2
Mangal Das case importance of 506, 507
bench for 208n.33 K. K. Venugopal’s arguments in 499
Supreme Court ruling on compen- L. Sinha’s arguments defending
sation for property in 207n.23 Article 31C 499
Manoharan, K. criticism of Sixteenth Pakhivala’s arguments challenging
Amendment 52 Article 31C 499
Masani, Minoo 113, 117, 215 review petition by government 505,
criticism of Seventeenth Amend- 505n.22
ment Bill 114 second 507n.25
resignation from Minorities Com- Supreme Court decision in 502-4
mission 451 editorial comments on 503
Mass pledge-taking on 25th anniversary upholding judicial review 502
of independence 256-7 upholding of basic structure
Mathai, John 77 doctrine 502, 506
Mathew, K. K. 160n.48, 260n.4, 266, Minhas, B. S. 239n.17
269n.30, 274n.56, 315 Minorities Commission 450, 451,
on Article 329A 324 451n.68-9
as CJI, Mrs Gandhi's assent 280n.4 MISA. See Maintenance of Internal
on judicial review 367 Security Act
on retrospective laws 324 Mishra, D. P. 178
Maurya, B. P. 321 Mishra, Jagannath 377
Mavalankar, G. V. Mishra, L. N. 299
objection to First Amendment Bill Mishra, R. N. 187n.34
88n.54 Mishra, S. N. 207, 486n.2
Parliament under 660 arrest under MISA 334
protest against ordinances 30, Mitter, G. K. 197, 197n.3, 208n.34,
30n.62, 31 216n.21, 231n.65
Mavalankar, P. G. 427, 486n.2 Mody, Homi 60, 60n.77
criticism of Kumaramangalam 287 Mody, Piloo 287, 396
 Index 743
views on Twenty-fifth Amendment Mukherjee, Pranab 486n.4
251 Mukherjee, S. N., views on compensa-
Mohan, Surendra 397n.14 tion 80
Mookerjee, Shyama Prasad 15, 49n.38, Mukhi, P. N. 346
606 Mulki Rules Affair 291
call for annulment of partition 47 Munshi, K. M. 25n.33, 92n.69, 577
criticism of First Amendment Bill on compensation under Article 31
88, 88n.56 77
objection to placing Bills in Ninth criticism of selection process of high
Schedule 89 court judges 129-30, 130n.19
on legislation affecting freedom of on Golak Nath decision 206n.28
speech 48 on post-retirement employment of
Mootham, Orbey Howell 87n.53, judges 138
128n.15 role in appointment ofjudges 127,
Motherland 289 127n.12, 128
Moti Lal case 92, 92n.70, 93 on role of opposition 31
Allahabad High Court ruling in on transfer of high court judges
92-3 136, 136n.44
Mountbatten, Lord Louis 5 on zonal councils 167, 624
Mridul, P. R. 524n.27
on executive power in appointment Naga (s)
of judges 526n.34 National Council 152
Mudholkar,J. R. 115n.59 Peoples’ Convention 152
Muhammad, V. A. Seyid 419n.29, 354 secessionism among 152
views favouring repeal of Forty- Nagaland, creation under Thirteenth
second Amendment 415, 419 Amendment of 152, 152n.24
Mukarji, Nirmal 303 Nagpur Resolution 116, 116n.62
meeting with Jatti regarding disso- Naidu, Padmaji 584
lution of state assemblies Nambiar, M. K. 58n.72
447-8 and basic structure doctrine 199
Mukerjee, Hiren 53 view on constitutional amendments
comment on supersession 287 199
comments on Twenty-fourth Amend- Namboodiripad, E. M.S. 159, 159n.45,
ment 246 386
Mukerjee, S. N, on legislation affecting Congress attitude toward 161n.50
freedom of speech 43 protest against central forces in
Kerala 598, 598n.5
Mukerji, Basudeva 100n.7
Mukharjee, P. B. on role of judiciary 367 Nanda, G. L. 114, 118

Mukherjea, B. K.41n.6, 42n.11, 58n.72, opposition to revoking emergency

90n.65, 91n.67, 96n.82, 66n.102
Narain, Raj 324, 397n.14, 471n.20,
106n.24, 124n.3, 134
472n.22
Mukherjea, A. R. 260n.4, 269, 271
defection from Janata Party 467
Mukherjee, Ajoy 584, 585
petition challenging Mrs Gandhi's
Mukherjee, H. N. 207, 374
744 Index

election 186n.31, 314-15. See joint committee report on 206,

also Indira Gandhi Election 206n.29, 207
case Mrs Gandhi and 219
resignation from Janata National N. C. Chatterjee’s opinion on 206
Executive 429 objection to 203-4
resignation from Janata govern- opposition within Congress to 207
ment 460n.28 postponement of 207-8
Narain, Prakash, remarks on Justice Ram Manohar Lohia’s opposition
Kumar 528 to 203-4
Narayan, Jayaprakash 16, 210, 305n.28, Swatantra party’s opposition to 203
366n.59, 396 National
and the Bihar agitation 300 coalition government 394
on appointment of CJI 287-8 Committee for Review of the Con-
call for March to Delhi 296 stitution
demand for fresh state elections on central forces in states 601
442 critique of Swaran Singh Com-
disagreements within Congress re- mittee proposals 366, 366n.59
garding 300 and National Consensus State-
ment 384, 384n.51
efforts to force Mrs Gandhi's resig-
nation 304 rejection of new constituent
on elections 16n.5 assembly 380
fourteen-point formula of 99, 210,
Convention of Congressmen 407,
222n.36
407n.42
Convention of Lawyers for Democ-
on Indian nationhood 560
racy, opposition to presiden-
opposition to chief justiceship for
tial system 493, 493n.30
Bhagwati 437
Defence Council 65
opposition to chief justiceship for
Development Council 164, 165n.61,
Chandrachud 437
545, 616, 619, 620, 622n.37
opposition to presidential system
Sarkaria Commission, recom-
553
mendations 628n.58
role in selection of Janata Prime
Economic and Development Coun-
Minister 401
cil 621, 628n.58
as spiritual leader of Janata party
Expenditure Commission 617
397
integration 553, 558, 559
Nariman, Fali 302, 470
and national integrity 149
on high court power to issue writs
Integration Council 51
367n.60
recommendations of 535
on TADA 510
integrity and national integration
on transfer of judges 522-3 149
Nath Pai Bill 202-8
Judicare: Equal Justice, Social Jus-
Desai’s support for 204
tice, report on 664n.69
government position on 204, 207-8
Police Commission 452n.73
incompatibility with Golak Nath
Security Act
case. See Golak Nath case
detentions under 508-9, 509n.30
 Index 745
ordinance amending 510-11, ‘Tarkeshwari Sinha’s opposition
547-8 to 21]
Security Ordinance 493 of bus routes 106
Seminar Consensus appeal to Supreme Court 100-1
concern for unity and integrity of coal 253
143-4. See also unity and of financial institutions 93n.74
integrity of general insurance 239n.17
suggestions on basic structure of Imperial Bank 93n.74, 210
386 of industrial property. See Sholapur
suggestions regarding emer- Mills case
gency 386 of life insurance business 93n.74
National Herald, The 289 of Minerva Mills 498. See also
comment on new constituent as- Minerva Mills case
sembly 380 of property 653. See also Coopers
reaction to Twenty-fourth and case; Minerva Mills case;
Twenty-fifth amending bills Sholapur Mills case
248 of Reserve Bank 93n.74, 210
Nationalization 253-4 of road transport 92. See also Moti
impediments created by Article Lal case
19(6) 94 under Mrs Gandhi 188n.41. See also
in industry and commerce 253 banks above
Kumaramangalam’s role in 188, Nawalkishore, Justice 126
188n.41 NDC. See National Defence Council
of banks 117, 200-20 Negi, Thakur 451n.70
C. D. Deshmukh and 210 attitude toward states 566
compensation in 216, 216n.22, Nehru, B. K. 394, 544
217. See also Coopers case comment on Mrs Gandhi 297-8
debate on 211-12 advocacy of presidential system 351,
demands for 209-11 357
drafting of ordinance 214, criticism of role of governor 575
215n.18 Nehru, Jawahar Lal 147n.9, 607, 653,
Malaviya on 211-12 655, 668
Nehru on 210, 210n.3 and co-operative farming 116,
and politicization of banking 116n.63, 117n.64
220n.30 ambivalence towards power 28
Ragunatha Reddy’s resolution on amending power of provisional
calling for 211, 211n.6, 215 Parliament 46
Renuka Ray’s views on 212 assurances to Sikhs 151
resolutions in Parliament calling attempts to include states in plan-
for 211 — ning process 618-19. See also
and spread of banking 219n.30 Nation Defence Council
support for 215 attitude toward Kerala Government
T. T. Krishnamachari on 210n.3, 160
211n.7 on bank nationalization 210, 210n.3
746 Index

on capitalism.72 on First Amendment Bill 88, 89

centralization under 33, 36, 573, 659 formation of Cabinet Committee
as centralizer 564. See also centrali- on Constitution by 43
zation above on Fourth Amendment 109n.36
centre-state relations under 33 governance under 8, 660
on CFSA 118n.67 on governors’ role 577n.14
chief ministers’ tenure under 147 government
comment on Punjab emergency and Indira Gandhi's government,
158, 158n.43 comparison between 289-90
on communalism 558 ordinances during 31n.63
and community development pro- problems confronting 15-16
gramme. See community de- governors under 579, 579n.21
velopment and Hindu Code Bill. See Hindu
on compensation 109n.36 Code Bill
concern over abuse of preventive importance of Kashmir for 152
detention 57n.66, 61, 61n.85 on independence ofjudiciary 124
concern over lust for power 29n.56 and Indira Gandhi, comparison
concern regarding over-centraliza- between 572-3
tion of planning process 165 on individual freedom 46
confrontation with judiciary over andjudiciary 108 654
Fundamental Rights 36 comment on independence of
confrontation with judiciary over 124
social reform legislation 36-7 confrontation over Fundamental
and Congress Democratic Front Rights 36
88n.55 confrontation over social reform
contemplated resignation of 28-30 legislation 36-7
Indira Gandhi on 30 opposition to curbs on 106
Patel’s response to 28 justification of preventive deten-
on CPI 18n.14 tion 61
criticism of DMK 153 on Khudkasht lands 120
death of 114 and Krishna Menon 25-6
and decentralization programmes on land reform 91, 119, 119n.72
566, 566n.33-4 letter to Ambedkar regarding need
democratic governance under 8, 660 for amendment 42
differences with Purushotamdas letter to chief ministers contemplat-
Tandon 35 ing resignation 106
dominance of Parliament by 30 letter to princes regarding purses
drafting of Objectives Resolution 222
5-6 on Linguistic states 558
election as party president 35 on need for amending Constitution
federalism in Congress Party under
80, 81
605 Opposition to curbs on judiciary 106
Federalism under 565-8
opposition to judicial review of
and First Amendment 46, 49n.38, land reform legislation 105
87-8, 653-4
on ordinances 3]
 Index 747

and Patel, relations between 26, on Somnath temple19n.16

26n.41, 27 speech on First Amendment in
position on Prime Minister's powers Parliament 87-8
26n.41 swearing in as Prime Minister 13
and Prasad threat of resignation 84
conflict between 19-26 as true democrat 17
conflict over presidential powers on zamindari abolition and com-
20, 24 pensation 75n.14, 75n.16, 76,
conflict over Hindu Code Bill 23, 91n.66, 654
24 on zonal councils on 624
official relations between 19-20 Nehru
on press 46, 46n.27-8 Forum 190
pressures on, regarding social revo- Report 70, 70n.3
lutionary progress 99-100 Nehruvian socialists, in Congress(R)
and preventive detention 57,57n.66 182, 183
on privy purses 221, 221n.34, 222 Nehruvian years, achievements and
on property rights and compensa- failures of 36—7. See also Nehru
tion 77 Nellie massacre 541
on proposed changes to article 31A New Age, reaction to Prasad’s speech
regarding industrial under- at Law Institute 25
takings 105 New constituent assembly
on Rajasthan Public Security ordi- CPI opposition to 380
nance 54n.55 CPM on 380
rationale for social revolutionary demand for 378n.24
aims of government 108 Mrs Gandhi on 381
reaction to passage of First Amend- National Herald comment on 380
ment Bill 89 rejection of, by National Committee
for Review of the Constitution
reaction to Prasad’s speech at Law
Institute 25 380
recommendation on reasonable state resolutions demanding 377-
restrictions 47-8 80
Bansi Lal’s role in 379-80, 380n.31
relations between executive and
judiciary under 32-3 individuals behind 379-80
motives behind 378-9, 379n.25,
relations with cabinet members 27
380
remark on personal property 109
Mrs Gandhi’s role in 379
resolution on socialist pattern as
reaction to 380-1
nation’s goal 107, 107n.27
Sanjay Gandhi’s role in 379, 380
restraints on authority of 659
role in framing Constitution 5 Nijalingappa, S. 176, 638
confrontation with Mrs Gandhi
secularism of 557-8
179-80
social revolution and 99-100 659
Ninth Schedule 85, 89n.59, 91n.65,
socialism of 17, 105, 107, 107n.27. See
97n.88, 98, 266, 320n.20, 654
also nationalization; zamindari
creation of 85
abolition; land reforms
748 Index

election laws in 320 role in Parliament 31, 31n.64, 32

G. S. Pathak on 115 meeting at Vijayawada 543-4
Kerala Reforms Act in 259 opposition to Forty-first Amend-
laws in 88n.56, 107, 111, 112, 320n.20 ment 321]
K. T. Shah’s objection to laws in Ordinance(s)
89 Banking Companies (Acquisition
non-property 320n.20 and Transfer of Undertak-
L.M. Singhvi’s criticism of 112 ings) 215, 215n.18
M.C. Mahajan’s comment on 89 in Bihar 300n.12
S. P. Mookerjee’s objection to plac- Defence of India (Amendment)
ing bills in 89 (1962) 64
Non-Congress chief ministers meeting Defence of India 63, 64, 64n.90
at Srinagar 544 Disputed Elections (Prime minister
Non-property laws in Ninth Schedule and Speaker) 1977 398,
320n.20 398n.17
Noorani, A. G. 53 during Emergency. See Emergency
attack on Justice Jain’s ruling on during Nehru’s government 31n.63
special courts 463 Mavalankar’s protest against 30,
on dissolution of Parliament 479 30n.62, 31
preventive detention of 54n.56 National Security 493
on transfer of judges 519 Nehru’s views on 31
Prasad’s views on 31n.63
Oak, V. G. 132n.26 Prevention of Objectionable Matter
Oath, to uphold sovereignty and integ- 311
rity 153, 153n.28 promulgation under Article 123
OBC. See Other Backward Classes 31n. 61
Objectionable matter, definition of 49, Rajasthan Public Security, Nehru’s
311 views on 54n.55
Objectives Resolution Organiser, reaction to Prasad’s speech
adoption by Constituent Assembly at Law Institute 25
71 Other Backward Class 640
as source of Constitution 5-6 influence of 650
drafting 5-6 membership in Parliament 661
Office of the Special Officer for Lin- Overcentralization 629, 667
guistic Minorities 450n.65 by Centre, Srinagar Statement on
Official languages Act 155 617-18
Official Secrets Act 64 effect on unity 657
Old guard. See syndicate members under Mrs Gandhi 659
Open society 668 See also Emergency
Operation Bluestar 548
Opposition parties Pai, Nath 202, 203n.19
advocating of democracy 18 Pai, T. A. 214, 486n.2
attempts at unity 396 Palekar, D. G. 260n.4, 265, 266, 267,
role in conditions leading to Emer- 269n.30
gency 295-6 Palkhivala, N. A. 198n.3, 216n.21,
 Index 749

260n.4, 285, 288, 438n.23, proposal for addition of clause 3A

477, 639 to Article 31 105
on abrogation of Fundamental response to interim report of Law
Right to property 242 Commission 131-2
on amending powers of Parliament and Setalvad, correspondence on
261 appointment process of high
comment on Forty-first Amend- court judges 131-3
ment 331 Pant, Pitamber 214
criticism of Article 31C 261 Paramilitary forces. See central forces
dig at Seervai 263 in state; central paramilitary
on dissolution of Farliament 477 forces
Indira Gandhi Election case and Paranjpe, H. K. 644
302, 318, 323 Parasaran, K. 524n.27, 526
and Kesavananda case 259, 260-2 Parekh, P. H. 524n.27
and Kesavananda review, argu- Parliament
ments against 331 amending power of (Article 368)
letter to Mrs Gandhi regarding 39, 39n.1, 40, 171, 244, 266,
331, 331n.15, 332n.17 652, 654, 658, 660
on presidential system 496 government position on 199
support for presidential system 357 implied limitations on 40, 197,
on transfer of high court judges 522 199, 201, 261, 261n.6, 263,
on tribunals 361 503, 504
Panandiker, V. A. Pai 212n.11 Nehru on 46
Panchayati Raj programme 167, Palkhivala’s view on 261
167n.70, 566n.33 Patanjali Sastri’s view on 12
Panchayats 638 Seervai’s arguments supporting
empowerment of lower classes and 262
women 647 Subha Rao on 198n.3, 201
Pande, B. D., testimony before Shah upholding of, in Shankari Prasad
Commission 307 case. See Shankari Prasad case
Pandit, Vijayalakshmi, opposition to Wanchoo on 201
Mrs Gandhi 398 See also Nath Pai Bill; Twenty-
Panjwani, Ram 285 fourth amendment
Pant, K. C. 193, 377, 407n.44 B. D.Jatti’s speech to 402
Pant, Pandit G. B. 147n.9, 355, 577, 696 CFSA members in 187
justification for Preventive deten- changes in caste composition of,
and social revolution 661
tion Act 62
andjudiciary 235-6
defence of Fourth Amendment Bill
in Rajya Sabha 110 conflict over custody of Consti-
tution 8, 9, 39
on excluding judicial review of
conflict over Fundamental Rights
zamindari abolition 81
and 8
on financial requirements of states
See also supremacy below, Golak
616, 616n.5
Nath case
position on freedom of speech 43,
Nehru’s dominance of 30
43n.17
750 Index

provisional, amending power of, on threat to judiciary 280n.5

Nehru on 46 Patel, Sardar Vallabhbhai 17, 26, 606
supremacy of as a centralizer 564
CFSA resolution on 238, 239n.17 on Crossroads case 42, 42n.13
and Forty-second Amendment defence of preventive detention
374, 375 bill 57
Gajendragadkar’s advocacy of differences with Nehru over social
359n.38 and administrative issues 27
restoration of 236 and Nehru, relations between 26,
Santhanam’s views on 385 26n.41, 27
Swaran Singh Committee em- opposition to Planning Commission
phasis on 359 618
Swaran Singh’s views on 382 position on Prime Minister’s powers
under Mavalakar 660 27n.41
under Mrs Gandhi 660-1 on privy purses 21n.34
Parliamentarians’ Seminar on Consti- response to Nehru’s contemplated
tutional Amendments 241-2, resignation 28
242n.31 role in Constitution making 5
Parliamentary support for Kania’s appointment as
democracy, ex—communists’ atti- CJI 126,126n.9
tude toward 183 on zamindari abolition and com-
vs. presidential system 351. See also pensation 76, 76n.21, 77
presidential system Pathak, G. S. 87n.53, 100n.7, 228,
Proceedings (Protection) Bill 312 228.n59
proceedings publications, constitu- on Ninth Schedule 115
tional protection for 423, 425 Pathak, R. S. 100n.7, 440, 440n.32,
‘reforms’, Emergency and 358n.34 527, 524n.27
system, and federalism 567 Patil, S. K. 147n.9
system, role of President in 7 Patna High Court, invalidation of Bihar
traditions, British, influence of 12 Reforms Act 82, 83
Partition 5 Patnaik, Biju 396, 446n.50, 486n.2
call for annulment by S. P. Mookerjee Patriot, The 289
47 Pattabhi, Sitaramayya 35n.71
effect on Assam 539 Patwa, Sunderlal 613n.50
Patel, Babubai 366n.59 Peri Sastri, R. V. S. 412
Patel, H. M. 396, 402, 446n.50, 447 Permanent Settlement 73, 73n.10
Patel, I. G. 213 Personal cultivation 120
Patel, Maniben 384 Ashoka Sen’s definition of 115
Patel, Rajni 237, 239, 307, 321, 322, compensation for land under 113
354, 358n.31, 358n.32, 360, Petitioner’s fees, Law Commission rec-
361, 376 ommendation 141, 141n.61
role in drafting of Forty-second Phizo, Angami 152
Amendment 375 Planning Commission 545, 615, 618
support for presidential system ARC recommendations regarding
357-8 621
 Index 751

central interference in states Prasad, Justice Sarjoo, ruling in Shaila-

through 622 bala Devi case 41
centralization of 618, 619, 620 Prasad, Rajendra 17, 69, 577
centralization of planning process assent to First Amendment Bill 90
under 165 and Bihar Land reforms Act 83-4
and centre-state relations 566
and Bihar Zamindari Abolition Bill
constitutional status for 621n.30 22
election as President 13
draft recommendations for Second
Plan 108n.33
on governors’ discretion in appoint-
establishment of 71, 164
ment ofjudges 127
and Finance Commission on influence of British Parliamen-
tary traditions 12
co-ordination between 621-2
onjudiciary 124
overlapping membership 621-
and Nehru, conflict between 19-26
2, 622n.35
over presidential powers 20, 24
original members of 615n.4 over Hindu Code Bill 23, 24
Raja Cheliah’s view on role of 621
and Nehru, official relations be-
restructuring of 239
tween 19-20
Santhanam’s views on 619, 619n.24 Nehru’s opinion of 19
Sardar Patel’s opposition to 618 objections to First Amendment Bill
Sarkaria Commission recommenda- 89-90
tion on 620
objections to Hindu Code Bill 22-3
and socialism 615
opposition to amendment of Con-
Planning process stitution 45
centralization of 164-5 opposition to Cabinet Committee’s
opening of, under Shastri 165n.61 recommendations regarding
Pledge to the People Resolution 238 amendment 85-6
Pocket veto 513 on ordinances 31n.63
Political Affairs Committee 279n.2 perception of judicial appointment
decision to appoint Ray as CJI 279, process 127n.14
280 — queries regarding Presidential pow-
endorsement of amendments 240 ers 20, 20n.21, 21, 22
Postal Bill 512-13 reaction to President’s Rule in
Zail Singh’s refusal to sign 513, Punjab 158
913n.43 re-election as President 19n.15
Post-independence government, on rights and duties 362n.56
swearing in of 13, 13n.1 role in Constitution making 5
Poverty line, people living below 650, speech at Law Institute regarding
6§50n.43 presidential powers 24-5,
Praja Socialist Party 88n.55 25n.33
and decentralization 169n.78, 562 editorial reactions to 25
and non-violent class struggle 100 Nehru’s reaction to 25
on President’s Rule 609 on unity 149, 150n.18
Prakasa, Sri 583, 584 on zamindari abolition and com-
pensation 75-6
Prakasam. T. 583
752 Index

on First Amendment 45 in Orissa 608, 608n.34

Prasad, Raj Kishore 132n.26 political considerations behind
Prasad, Sharada 301 607
Preamble to the Constitution 7 Praja Socialist Party on 609
socialist and secular in 361, 361n.46, provision regarding, in Forty-
382, 413 fourth Amendment 425
Pre-emergency arrest lists 303 in Punjab 157-8, 606-7
President Rajamannar Committee recom-
Board of Advisors for 607 mendations regarding 610,
election of 442n.35 610n.41
in parliamentary system 7 in Rajasthan 613n.50
powers of restrictions on 420
Ayyar on 23, 23n.29 Santhanam on 386, 609-10
controversy regarding 26n.40 Srinagar Statement on 611
CPI(M) stand on 369n.67 Subha Rao on 607, 607n.31
Nehru-—Prasad differences over in Tamil Nadu 608-9
20 in Tamil Nadu in 1991 612n.50
Prasad’s queries regarding 20, in Tripura 490n.17
POmet 21,22 in UP 608, 608n.34, 613n.50
Setalvad’s ‘Observations’ on 21, Presidential and Vice-Presidential
21n.23 Election (Amendment) Or-
under Constitution 20n.19 dinance 398n.17
role in appointment ofjudges 125 Presidential assent to amending bills.
role, dispute regarding 653 See Twenty-fourth Amend-
Rule 157, 157n.39, 594, 594n.1, ment
605-13, 656-7 Presidential system
Administrative Reforms Com- advantages of 496
mission on 609 advocacy of, in ‘Fresh Look’ paper
Bangalore Seminar recommen- 351
dations on 610 All India Kisan Sabha opposition
central initiative in 608 to 492, 493
Communist Party of India on 609 Antulay and 382n.40, 489, 489n.14
Congress
(I) justification for 611 B. K. Nehru’s advocacy of 351
controversy surrounding 157 BJP fears regarding 494, 494n.37
criticism of 609-10 BJP resolution opposing 492n.29
extension under Forty-second Chenna Reddy’s advocacy of 490
Amendment 610n.42 debate over 491-2
Forty-second Amendment pro- debate within Swaran Singh Com-
visions for 373 mittee 357-8
in Gujarat 300 and federalism 567
in Himachal Pradesh 613n.50 G. K. Reddy’s comments on 493,
in Kerala. See under Kerala 493n.32
Kunzru’s opposition to 606 H. R. Khanna’s comments on 4934
in Madhya Pradesh 613n.50 Hindustan Times comment on 496
 Index 753

Kripalani on 494 Drugs and Psychotropic Sub-

L. K. Advani on 378, 496 stances Act 511n.36
and Lawyers Conference 507 Prevention of Objectionable Matter
Lawyers for Democracy opposition Ordinance 311
to 493, 493n.30 Prevention of Publication of Objec-
Mrs Gandhi on 353n.14 tionable Matter Act, in Ninth
Mrs Gandhi’s reassurance regarding Schedule 320n.20
494 Preventive detention 53-4, 297, 507,
Mrs Gandhi’s rejection of 357, 656
357n.29-30, 567-8 of A. K. Gopalan. See Gopalan case
Narayan’s opposition to 353 advisory boards for review of 55, 58,
Nihal Singh on 494, 494n.39 61, 508, 509
opposition parties memorandum avenues for challenging 68n.105
to President Reddy regarding Bar Association of India criticism
492, 492n.27, 493 of 65
opposition to, Antulay’s criticism of bill 56, 56n.64, 57
492n.28 H. V. Kamat’s criticism of section
Palkhivala on 496 1457
vs. parliamentary system 351, 353. H. V. R. Iengar’s proposal for 56,
See also ‘Fresh Look’ paper 56n.63
and perpetuation of Mrs Gandhi's Krishnamachari on 56n.64
authoritarianism 493, 494, Patel’s defence of 57
494n.39 challenge in high courts 56, 56n.62
Sathe on 495 Citizens for Democracy recommen-
Sorabjee on 493 dations regarding 386
support for 357 of communists of 54, 64n.93, 65-6
Vajpayee on 492 and danger to democracy 67, 67n.105
Venkataraman’s proposal for 353 during Charan Singh’s tenure 508
Press during Indira Gandhi's Emergency
(Objectionable Matter) Act 49, 200
312n.52 during emergency 63-7
Bill 189, 189n.42 effect on communal parties 54
Gujral’s opposition to 189n.42 Janata government and 433-4
in Kashmir 433, 433n.8
censorship, during Emergency 295,
in Kerala in 656
310, 311
lapse of existing laws regarding 55
Shah Commission report on 312
laws
Commission 50n.41
in Ninth Schedule 320n.20
Council, abolishing of 311
in states 62n.86, 511-12
intimidation of 50, 50n.43
Mohan Dharia on 433, 433n.6
Nehru’s views on 46, 46n.27-8
and Nehru 57, 57n.66
Prevention of Black Marketing and justification of 61
Maintenance of Essential
concern over abuse of 57n.66,
Commodities Act 435, 435n. 13
61, 61n.85
Narcotic
Prevention of Illicit Trade in
 754 Index

non-notification of 430n.64 Princes’ privy purses 220, 221

Noorani on 54n.56 abolition of 220, 237
repeal by provincial governments 53 Chavan’s role in 224-5
statutes under British rule 53, 53n.54 Desai’s views on 224, 224n.46
suspension of judicial review of government decision regarding
under MISA 338 224
under Article 22 55 princes’ attitude towards 225n.47
under COFEPOSA 299 princes’ memorial to President
under MISA 299 regarding 224, 224n.46
under National Security Act 508- private members bills on 224n.44
9, 509n.30 See also Twenty-fourth Amend-
under TADA. See TADA ment; Twenty-sixth Amend-
See also Habeas Corpus case ment
Preventive Detention Act (1950) amount 221, 221n.32
All-India Civil Liberties Council’s ceiling on amount 221
criticism of 62 Mrs Gandhi's secret negotiation with
challenge to. See Gopalan case princes regarding 225n.48
criticism of 62 need for amending bill 227, 227n.54
editorial comments on 59 and Nehru 22], 221n.34, 229
extension of 60 letter to princes regarding purses
Katju on 62 222
lapse of 67 reaction to abolition of 223
Pant’s justification for 62 as not property as 227-8
provisions of 57-8 Patel on 221n.34
and Rajagopalachari 60 as political agreements, A. N. Ray’s
Times of India on 59 opinion 231, 231n.66
unconstitutionality of section 14 as political pension not property
59, 59n.74 230
See also preventive detention above as property and Fundamental
Preventive Detention (Amendment)
Rights issue 226
Act (1951) 61, 61n.82 as property 230
Preventive Detention (Extension of P. K. Deo’s opinion 225
Duration) Order 56, 56n.61 reduction of, with succession 222,
Primary education, neglect of 651,
223
651n.46 resolution of Young Turks regard-
Prime Minister
ing 223
powers of Mrs Gandhi's objections to 223
Nehru’s position on 26n.41 resolutions regarding abolition of
Patel’s position on 27n.41 228
secretariat 190, 191 transitional allowances in lieu of
concentration of power in 192
227, 228n.57
Haksar’s control over 191 See also Privy Purse case
Princely states, integration of 143, Princes, de-recognition of 229, 229n.62,
220-1
230, 230n.64
 Index 755

Scindia’s petition against 230 not part of basic structure 330,

Supreme Court ruling on 231 331
Private members’ bills, regarding reasonable restrictions on 77-8
amendments 243n.36 removal from Fundamental
Private profit, Mrs Gandhi views on 251 Rights. Seeremoval from Fun-
Private property, expropriation for damental Rights above 236
public use 80 Sastri on 108
Privileges Committee, report on Mrs Seervai on 108
Gandhi 463 Subha Rao’s views on 226
Privy Purse case 230 See also Golak Nath case; Cooper
bench for 231n.65 case; Kesavananda case;
Supreme Court ruling in 231 Twenty-fifth Amendment
See also princes’ privy purses Prospective over-ruling
Pro bono practice 664 George Canfield on 202n.17
Property in Golak Nath case 202, 202n.17
acquisition for public purpose, non- Setalvad on 205
justiciability of 104, 105 Protection of Publication Act, repeal
acquisition under government po- of 432
lice powers 80, 84, 103. See Provincial Congress Committees, con-
also Bela Banerjee case trol over state governments
compensation for 85. See also 147
Bela Banerjee case Provincial legislatures, election of
conflict between social revolution Constituent Assembly mem-
and democracy over 652-3 bers by 4
laws, in Ninth Schedule 320n.20 Provincialism 149, 557, 558
removal from Fundamental Rights Provisional Parliament, amending
204, 205, 205n.24, 236, 351, powers of 46, 48
421, 422, 425 Public Accounts and Estimates Com-
compensatory safeguards for 423 mittee 660
Gajendragadkar’s opposition to Public interest litigation 440, 440n.30,
421 441, 647, 663
Madhu Limaye’s opposition to Public Order and Public Safety laws in
421 provinces 54, 54n.55
Mrs Gandhi's view regarding 232 Punjab 539n.18
Seervai’s opposition to 422n.36 centre’s involvement in 540
Swaran Singh Committee opin- crisis in 547-8
ion regarding 361 inept handling of crisis 540n.20
right to President’s Rule in 157-8, 606-7
Nehru’s comment on 158,
abrogation of, Palkhivala’s view
242 158n.43
Prasad’s reaction to 158
abrogation of, Subha, Rao’s view
242 preventive detention laws in 511-12
CPI views on 361n.47 resolution on rewriting Constitu-
tion 377
Harold Laski on 77n.24
756 Index
Punjabi on Inter-state council 626
language 151, 151n.20 on President’s Rule 610, 610n.41
Suba, agitation for 150-1, 151n.20, on reservation of bills 592
539n.18 Rajamannar, P. V. 126, 570n.48
Tara Singh’s fast for 50 Rajasthan case 444
arguments against dissolution of
Quorum rules, Swaran Singh Commit- state assemblies 444
tee recommendations on bench for 444n.42
363n.50 dismissal of suits by Supreme Court
445, 445n.48, 446n.49
Radhakrishnan, S. 18, 26n.40, 69, 577 Sorabjee’s arguments in defence of
on adult suffrage 18 dissolution 444-5, 445n.46
and Krishna Menon’s resignation See also dissolution of Congress state
25-6 assemblies
proclamation of national emer- Rajasthan Public Security Ordinance,
gency 63 Nehru’s views on 54n.55
on social-economic revolution 12 Rajya Sabha 7
second term as vice-president 19n.15 post-election (1977) party positions
Raghuramaiah, K. 381 410n.2
Rahman, Sheikh Mujibur, assassination Ram, Jagjivan 147n.9, 178, 302, 302n.18,
of 313 418, 446n.50, 486n.2
Railway Protection Force 599 bid to form government 474,
Railway strike, Fernandes’ threat of 299 474n.31, 475
Rajagopalachari, C. 13, 117, 224n.46, correspondence with Sanjiva
248 Reddy regarding 476, 478
appointment as chief minister of support for 475, 475n.36,
Madras 583-4, 584n.35 475n.38-9
on continuation offirst emergency claim to prime ministership 476,
65 478n.48
and Preventive Detention Act 60 Dharia’s support for 470, 475n.39
reaction to Golak Nath decision 206 Mrs Gandhi's conditional support
on role of opposition 31 for 478
support of decentralization 561 as Prime Ministerial candidate 401
Rajamannar Committee on centre- resignation from Congress Party
state relations 570, 570n.48, 397, 397n.14
588 Mrs Gandhi response to 398
proposal for Instruments of Instruc- speech at Bombay plenary meeting
tion to governors 590 of Congress(R) 180-1
recommendations as stand-in Prime Minister 302,
on deployment of CRPF 601n.16 302n.18
on emergency 596n.2 Ramachandran, D. 542
on Finance Commission 617 Ramachandran, M. G. 542
on governors’ power to summon Raman, V. P. 338
assembly 589 Ramaswami, V. 197n.3, 208n.34
 Index 757

Ranga, N. G. 117, 210 Rau, B. N. 20

criticism of co-operative farming Ray, A. N. 216n.21, 231n.65, 260n.4,
117n.65 269n.30, 338
opposition to Seventeenth Amend- appointment as CJ] 278, 280
ment Bill 111, 1llin.41, Giri’s objection to 279
112n.43 Gokhale’s defence of 284
Rangarajan, S. I. 345, 345n.58 Kumaramangalam’s justification
Rao, B. Shiva for 283
on Nehru’s contemplated resigna- Political Affairs Committee deci-
tion 29n.57 sion regarding 279, 280
proposal for Board of Advisors for reasons for 282, 282n.14
President 607 and Kesavananda review bench. See
Rao,J.Vengal 316 Kesavananda, review of
Rao, Jagannath 419 opinion on compensation in Cooper
Rao, K. Subha 68n.105, 197n.3 case 217
on abrogation of Fundamental relations with Mrs Gandhi 290n.42
Right to property. 242 and transfer of judges 344-5
arguments in Golak Nath case 199- view on privy purses 231, 231n.66
201 Ray, B. K. 129n.17
campaign for presidency, criticism Ray, Rabi 405, 433n.8, 457n.14
of 383 Ray, Renuka 24n.31, 45n.23
fear for democracy argument of views on bank nationalization 212
199-200, 200n.9 Ray, S. S. 187, 237, 270, 271, 282, 304,
on implied limitation on amending 205 e504 .a22),9010,6, 554,
powers 197 360, 361, 406
on Parliaments authority to amend on basic structure doctrine 359
Constitution 198n.3 on Fundamental Rights 244-5
on President’s Rule 607, 607n.3. on Golak Nath decision 245
on primacy of Fundamental Rights role in drafting Forty-second Amend-
210 ment 374, 375
on property rights 226 role in Emergency 321
prospective over-ruling in Golak testimony before Shah Cormmis-
Nath case 202, 202n.17 sion 305, 305n.29, 344n.53
resignation as Chief Justice 202, and Thirty-ninth Amendment 322
202n.18, 204n.21 Reasonable restrictions
on freedoms in Article 19 43, 44
Rao, N. Bhaskar 547
Rao, N. T. Rama 541, 542, 543, 547 on freedom of speech 45, 655, 656
Rao, P. V. Narasimha 351n.6 407n.42,
Ambedkar’s views 44
486n.4 See also First Amendment
policy regarding judicial appoint- on property rights 77-8
ments and transfers 532-3 Antulay’s proposal on 362n.49
Nehru’s recommendations regard-
Rashtriya Swayamsevak Sangh 150
ing 47-8
support for unitary government 562
Reddy, Brahmanand 303, 418
Ratlam Municipality case 441
 758 Index

election as Congress Party president Report of the Centre—State Relations

406 Enquiry Committee. See Raja-
and Indira Gandhi, rift between mannar Committee
406, 407 Report of the Expert Committee on
Reddy, Chenna 447n.52 Legal Aid 663n.69
advocacy of presidential system 490 Representation of People Act, in Ninth
criticism ofjudiciary 493, 524n.27 Schedule 320
Reddy, Jaganmohan 216n.21, 260n.4, Representation of the People (Amend-
268, 271, 280, 315 ment) Ordinance (1974) 316,
Reddy, Neelam Sanjiva 400, 401, 422, 317
558 Representation of the People Act
advice to, regarding dissolution of (1951) 314, 320
Parliament 473, 474, 475 Representative democracy 4, 665-6.
conflicting constitutional prescrip- See also democracy
tions regarding government Research and Analysis Wing (RAW)
formation 470 190
criticism of zonal councils 625 Reservation
on decentralization 538 policy of 646
discretion in appointment of Prime of state bills. See under governor
Minister 466 Reserve Bank, nationalization of 93n.74
dissolution of Parliament by 477 Resolution
justification for 478-9 Anandpur Sahib 539n.18
See also dissolution of Parliament of CFSA, on parliamentary sover-
invitation to Charan Singh to form eignty of 238, 239n.17
government 472 Congress, on industrial policy 116
motives behind opposition to Ram Democracy and Socialism, of Con-
479-8 gress 116, 119, 147n.9, 198,
nomination for presidency ofIndia pa Lebed
178 Industrial Policy (1948) 71-2
Opposition parties memorandum Industrial policy (1954) 72n.8
to, regarding presidential Karachi, of Congress Party 70-1,
system 492, 492n.27, 493 71n.6
request to Desai and Charan Singh Nagpur 116, 116n.62
for detail of support 470-1 on Amendment, and Swaran Singh
on supremacy of Directive Principles 363
over Fundamental Rights 238 Pledge to the People 238
Reddy, O. Chinnappa 440 Resolutions, by states, demanding new
Reddy, Ragunatha 187n.34, 189, 240, constituent assembly. See New
321 Constituent Assembly
resolution calling for nationaliza- Restorative amendments, under Janata.
tion of banks 211, 211n.6, 213 See Forty-third and Forty-
support for referendum on basic fourth amendments
structure 426n.54 Revenue, centre and state distribution
Regional parties 630 165n.64. See also Finance
growth of 538, 538n.16 Commission
 Index 759

Right to work, as fundamental right on provision compelling President’s

351 assent to bills 245n.2
Roy, B. C., view on Directive Principles recommendations on governors’
102 appointment 578
RSS ideology 597 and socialism of distribution 667
Ruben, David Ezra 82n.34 suggestions regarding President’s
Ryotwari Rule 386
holders, dispossession under Seven-
on supremacy ofjudiciary 236
teenth Amendment 111-12 Sarkar, A. K. 68n.105, 160n.48
Sarkar, Panchkari 132n.26
tenure 111
Sarkaria Commission 542-3, 562, 588
analysis of length of governors’ ten-
S. P. Gupta case. See Judges case
ure 581
Sachar, Bhim Sen 158, 158n.41
on appointment of ex-governors
Sadanandaswamy, M. 344
581
Sadasivyya, M. 132n.26
comment on Congress dominance
Saghir Ahmed case 106, 106n.24
of centre-state relations 571
Sahay, S. on transfer and appointment
conclusion of central initiative in
of judges 519, 519n.12, 524, President’s Rule 608
524n.26
definition of internal disturbance
Saksena, S. L. 49n.38 604
Sales taxes, states concern over central findings on co-ordinating meetings
interference in 616, 616n.5 and conferences 624
Samyukta Socialist Party 202, 204n.20, and Inter-Governmental Council
397 627, 627n.58
Sankalchand case 439n.29, 517n.3 Mrs Gandhi’s motives behind set-
Santhanam, K. 366n.59 ting up of 543
Code of Conduct for persons in on National Development Council
power 642, 642n.22 620-1
comments on ‘Fresh Look’ paper recommendation on
352 Article 356, 611-12
concept of social revolution 69 central forces in states 602, 604
criticism of expanded Article 31C governors’ appointment 579,
385 579n.20
on CWC control over appointments governors’ tenure 580
in states 147n.10 membership of Finance Com-
on emergency 368 mission 622
on governors’ power to reserve bills membership of Planning Com-
592, 592n.72 mission 622
on Indian federation 561, 564 Planning Commission 620
on judicial iridependence 138 NDC 628n.58
on parliamentary supremacy 385 sharing of corporation tax 617n.10
on Planning Commission 61
9, report on Finance Commission 618
619n.24 on reservation ofbills by governors
on President’s Rule 609-10 593
 760 Index

on role of governor 574, 574n.1 as penal offence 51, 153n.28

on zonal councils 625, 625n.48 restrictions on advocating of, in
Sarkaria Commission of Enquiry Sixteenth Amendment 52
against Karunanidhi 609n.37 See also Sixteenth Amendment
Sarkaria, R. S. 461n.32, 542 Secessionism
Sastri, Patanjali 41n.6, 42n.11, 58n.72, among Nagas 152
91n.67, 96n.82, 124n.3, 134 among Sikhs 15]
criticism of selection process of high Second Plan, draft recommendations
court judges 130 of Planning Commission
onjudicial review of legislation 39 108n.33
on Parliament’s amending powers Secularism 149, 557, 558
12 of Nehru 557-8
on property rights 108 Seervai, H. M. 260n.4, 271, 459, 524n.27
upholding of First Amendment 90 arguments supporting Parliament’s
Sathe, S. P. 386n.58 amending powers 262
Sathe, Vasant 235, 419n.29, 486n.4 on Article 31C 262
on presidential system 495 on basic structure doctrine 264n.11
Satpathy, Nandani 187n.34, 189 criticism of dissolution of Parlia-
defection from Congress 398 ment 479
Schedule dig at, by Palkhivala 263
Seventh 7 on governors’ tenure 580
Ninth. See Ninth Schedule on judges statement in Kesavananda
Scheduled castes 639, 650 268
Scheduled Castes and Scheduled on judicial review 367
Tribes, Special Officer for opposition to referendum on basic
450, 450n.65-6, 451 structure 421n.33
Scheduled Castes and Tribes, Commis- Opposition to removing property
sion on 451, 451n.70 from rights 422n.36
Scindia, Madhav Rao, petition against on property rights 108
de-recognition of princes 230 Sen, A. P. 344, 524n.27
Scindia, Vijayaraje 493n.30 Sen, Asoka 51, 111, 154, 323
Seamless web 382, 485, 555 definition of personal cultivation 115
concept of 6 Sen, D. 464n.39, 464n.40
conflict between strands of 38, 636, Sen, S. R. 543
651-2 Servants of India Society 47n.31
culture strand of. See culture Service
effects of centralization on 628,629 co-operatives 116n.62
emergency and 296, 348-9,390 records ofjudges 523n.21
interdependence of strands 633 Setalvad, M. C. 58 n.72, 65, 87n.53,
leaders belief in 17 90n.65, 129, 160n.48, 201,
See also unity and integrity; democ-
216n.21, 285, 288
racy; social revolution advice for ratification of Twenty-
Secession fourth Amendment 247
in DMK manifesto 152-3 on Golak Nath decision 359n.39
in J&K 151-2 on judicial review 261n.6
 Index 761

‘Observations’ on presidential pow- report on Emergency 307

ers 21, 21n.23 report on press censorship 312
opinion on Bihar Management S. S. Ray’s testimony before 305,
of Estates and Tenures Act 305n.29, 344n.53
78n.25 Shah,J. C. 68n.105, 197n.3, 208n.34,
Pant correspondence on appoint- 216, 216n.21, 231n.65, 285,
ment of judges 131-3 454, 493.
on prospective overruling 205 See also Shah Commission
reaction to Twenty-fourth and Shah, K. T. 49n.38
Twenty-fifth amending bills objection to laws going to Ninth
248 Schedule 89
on writs during emergency 67n.105 on socialization of land 89n.62
Seth, Damodar Swaroop 49n.38 Shailabala Devi case 41
Sethi, P. C. 486n.4 Shakdhar, S. L., on purpose of Swaran
Seventeenth Amendment Singh Committee 354
criticism of 114 Shamsher Singh case 474, 474n.33
debate on 114-15 Shankar, P. Shiv
dispossession of ryotwari holders circular regarding appointment of
under 111-12 additional judges 523, 523n.23,
527, 530 .
effect on sharecroppers 111-12
Gopalan’s support for 114 criticism of 524, 524n.27
impetus for 110, 111, 111n.40 on dissolution ofJanata legislatures
laws in Ninth Schedule under 111- 536, 537
12 on high court appointments 518-19
passage of 115 on importance of Directive Princi-
reconsideration of 113, 113n.50, ples 503
114 motives behind transfer of judges
report of Joint Committee on 112- 530-1
13 on opposition to basic structure
upholding by Supreme Court 115 doctrine 490
on special courts 462, 462n.36,
voting on 113, 113n.48
486n.4, 492, 528
Seventh Schedule, legislative lists in 7
Shankar, V. 447
Seventy-third Amendment 615n.2
Shankari Prasad case 40n.4, 90, 90n.65
Sezhiyan, Era 366n.59
comment on Twenty-fourth Amend- upholding of Parliament's amend-
ment 246 ing power 500
Commission 302n.19, 313, Sharada Prasad, H. Y. 380
Shah
457n.15, 458n.19, 464n.40 Sharecroppers, effect of Seventeenth
Amendment Bill on 111-12
appointment of 454, 454n.4
A. P. 407n.42
B. D. Pande’s testimony before 307 Sharma,
Shankar Dayal 187, 407n.44
Gokhale’s testimony before 307n.34 Sharma,
Shastri, Bhola Paswan 451n.70
Krishna Chand’s testimony before,
Lal Bahadur 28, 52, 53n.28,
regarding arrest lists 303 Shastri,
147n.9
Mrs Gandhi's refusal to testify be-
fore 57-8 death of 173
 762 Index

Mrs Gandhi's criticism of 179n.17 comments on supersession 286

opening of planning process under drafting of statement in Kesavanan-
165n.61 da decision 275
and seventeenth Amendment Bill on supremacy ofjudiciary 235-6
114n.52 Singh, Beant 549
Shearer, James Grieg 82n.34 Singh, Buta 377, 407n.42
ruling on Bihar Management of Singh, Charan 396, 397, 402, 405, 411,
Estates and Tenures Act 78-9 421, 434, 435, 446n.50, 447,
Shekhar, Chandra 187, 213, 300, 321, 447n.55, 451, 481
397n.14, 401, 405, 457n.14, advise to Reddy to dissolve Parlia-
486n.2 ment 473, 474
demand for Desai’s resignation 469 controversy over 474-5
expulsion from Congress 356n.24 Chavan’s support for 470, 470n.15
reaction to dissolution of Parlia-
claim to form government 470,
ment 477
470n.15, 471
threat of resignation 423
criucism of government over fail-
Shelat,J.M. 197n.3, 216n.21, 231n.65,
ure to arrest Mrs Gandhi 460
260n.4, 266
defeat in confidence motion 473
comments On supersession 286
defection from Janata Party 469
supersession of 278, 282
and dissolution of Congress state
Sheth, Dhirubhai 666
assemblies 443
Sheth, Sankalchand H. 439n29
writ petition against transfer 346,
minority government with Mrs
346n.64 Gandhi’s support 466
Opposition to fragmentation of
Shingal, P. N. 461n.32
Shiv Kant Shukla case. See Habeas Cor- landholdings 119n.71
pus case
order to arrest Mrs Gandhi 454-5,
Sholapur mills case 79, 79n.27 455n.8, 456n.11, 457n.14
Supreme Court ruling in 100, 101 as Prime Ministerial candidate 401
Shukla, Ravi Shankar, views on Nehru’s request to Mrs Gandhi for support
contemplated resignation 408
29n.54 resignation and subsequent with-
Shukla, V. C. 322, 406, 462, 462n.34, drawal 460
486n.2, 486n.4 resignation as Prime Minister 473
Sick Textiles Undertakings (Nationali- resignation from Janata National
zation) Act 498, 499 Executive and Parliamentary
Sikhs Board 429, 460n.28
Nehru’s assurances to 15] resignation from Janata Party 467
secessionism among 151 vindictiveness against Mrs Gandhi
Sikri, S. M. 197n.3, 216n.21, 231n.65, 453, 453n.1, 454
260n.4, 266, 269n.30, 271, Singh, D. P. 187n.36, 193, 240, 354,
272, 273, 274 486n.2, 486n.4
attempts to reduce judgements in Singh, Dr Karan 312n.55
Kesavananda case 275, Singh, Gurdit 350n.5
275n.57 Singh, Hukum 30, 49n.38
 Index 763

objection to First Amendment Bill Single party control and centre-state

89 relationship 565
Singh, Jaipal 49n.38 Sinha, B. P. 160n.48, 79n.26
on justiciability of compensation on governors’ role in appointment
109 of judges 128
Singh, K. B.N. Sinha, Jagmohan Lal 301,314
affidavit protesting transfer 528 judgement in Indira Gandhi Elec-
Chandrachud’s counter affidavit tion case 316-18
528, 529 Sinha, L. N. 260n.4, 524n.27
allegations against 528n.42 arguments in Minerva Mills case
opposition to transfer 521-2 499
See also Judges case Sinha, S. K., suggestions to prevent ju-
Singh, L. P. 51, 53n.28 dicial review of zamindari
on governors’ tenure 580 legislation 81, 81n.32
criticism of governors 574 Sinha, Tarkeshwari, opposition to bank
Singh, Master Tara 151, 539n.18 nationalization 211
fast for Punjabi Suba 50 Sir land 120
Singh, Raj Deo 459n.23 Sivaraman, B. 543
Singh, S. Nihal, on presidential system Sixteenth Amendment 50-3, 656
494, 494n.39 inclusion of oath upholding sover-
Singh, Satwant 549 eignty and integrity 51, 53
Singh, Swaran 307, 354, 355, 377, 406, purpose of 154, 522
486n.4 reasons for 50
comment on provisions regard- restrictions on advocating secession
ing courts in Twenty-forth in 52
Amendment 381-2 concern over
as Congress(O) president 407 Social revolution 6, 7, 57 69, 633,
criticism of Emergency 355n.23 635n.26, 658, 667,
opposition to Thirty-ninth Amend- and breakdown of traditional power
ment 322 structure 648
and Resolution on Amendment 363 and caste composition of Parlia-
views on supremacy of Parliament ment 661
382 caste composition of state legisla-
Singh, Tarlok, on slow pace of land
tures as a reflection of 661-2
reform 118 and centralization 657
Singh, V. P. 452 Constituent Assembly and 71
Singh, Zail 377, 380, 486, 486n.4, constitutional amendments and 253
513n.43, 540, 540n.19 and democracy, conflict between 9,
652-3, 655
and Rajiv Gandhi, strained relations
between 513, 513n.43 and Directive Principles of State
refusal to sign Postal Bill 513, Policy 14. See also Directive
513n.43 Principles
as evidenced in voting patterns 647,
Singhvi, L. M. 260n.4, 285, 286, 524n.27
647n.39
criticism of Ninth Schedule 112
ex-communists and 254
Single citizenship 560
764 Index

failure oflegislation regarding 649 Twenty-fifth amending bills

Indian democracy and 388-9 248
Janata party and 450-1 Socialist and Secular in Preamble. See
Legal aid and 663, 664, 664-69 Preamble
Mrs Gandhi and 174, 291-2, 657, Socialist party
660, 658 support for Constitutional amend-
and open society 647 ments 235
provisions, support for Twenty-fourth Amend-
drafting by Constituent assembly ment 246
734 Socialist pattern of society
effects of 646-7 as nation’s goal, Nehru’s resolution
Santhanam’s concept of 69 107, 107n.27
setbacks on property issue 78. See resolution on 655
Bela Bannerjee case; Sholapur Socialists
Mills case; Bihar Estates and extreme. See CFSA
Tenures Act Nehruvian, in Congress(R) 182, 183
and shift in rural socio-economic social revolution and 255
power 650 Somnath temple rebuilding, Nehru’s
socialism and 634, 667 views on 19n.16
socialists and 255 Soni, Ambika 379, 394
and tradition, accommodation Sorabjee, Soli 260n.4, 262, 339, 446n.50,
between 649 493n.30, 524n.27
and Nehru 99-100, 659 arguments in Habeas Corpus case
voluntary organizations and 664 340
Social-economic arguments in Kesavananda case 262
reform 4 arguments regarding additional
concern over slow pace of 117- judge’s tenure, in Judges case
18, 118n.69, 119
525, 525n.29
revolution, Radhakrishnan’s views
on presidential system 493
12
Southern chief ministers, meeting at
See also social revolution above
Bangalore 541
Socialism
Special courts 454, 458, 458n.20, 459,
of Congress party 70-1, 116
459n.21, 462, 488
of distribution, Santhanam and 667
Act 461
Indian national leaders and 72
and mobilization of national re-
Bhushan’s opposition to 458
sources 73 Calcutta High Court ruling on
and Mrs Gandhi 198. See also social 462n.34
revolution above Congress opposition to 459
Nehru on 107, 107n.27 Desai’s objection to 458, 459
and Planning Commission 615 dropping of cases before 463
support for 235 establishment of 461
See also social revolution above Jethmalani’s advocacy of 458, 459
Socialist India 245 Jethmalani’s private members bill
reaction to Twenty-fourth and on. SeeEmergency Courts Bill
 Index 765

Justice M. L. Jain’s ruling on 462, legislatures, extension of terms 442,

463 442n.34
P. Shiv Shankar on 462, 462n.36 overdrafts by 617, 617n.11
Youth Congress protest against recommendation regarding trans-
461n.33 fer of judges 136
Special leave petitions 140 reluctance to levy agricultural tax
Special Officer for Scheduled Castes 617
and Scheduled Tribes 450, Reorganization Commission 146n.7,
450n.65-6, 451 156, 563, 563n.24
Spens, Sir Patrick, views on appoint- resolutions, demanding new con-
ment of judges 135n.36 stituent assembly. See New
Srinagar Statement Constituent Assembly
criticism of over-centralization by trading in foodgrains 117, 229
Centre 617-18 Statesman, The 239
on President’s Rule 611 criticism of Forty-second Amend-
on reservation of bills by governors ment 383-4
593 on Preventive Detention Act 59-60
Srinivas, M. N. 666 reaction to Twenty-fourth and
Srivastava, Justice R. C., resignation of Twenty-fifth amending bills
518, 518n.6 248
State Bank of India 210 Stay orders, provision in Forty-second
State Citizens Committee, reaction to Amendment 372
Swaran Singh Committee Danial Latifi’s suggestion on 367n.60
proposals 368 See also writs
State (s) Stephen Committee 358n.34
central interference in, through Stephen, C. M. 354, 407n.44, 419n.29,
Planning Commission 622 423, 424, 424n.42, 486n.4
and Centre, relations between. “ze attack onjudiciary 383
centre-state relations on basic structure doctrine 359
concern over central interference Sub-nationalism, dangers of 557, 557n.3
in sales tax 616, 616n.5° Subodh Gopal case 82n.36
constitutional revolt of 534, 537-41 Supreme Court ruling in 100
demand for power-sharing with Subramaniam, C. 187, 239n.17, 351n.6,
Centre 628, 629 365, 407n.44, 418
financial dependence on Centre criticism of governor 575, 575n.4
616, 616n.6, 619n.23 opposition to Thirty-ninth Amend-
fiscal weakness of, reasons for 616— ment 322
17, 617n.10 Summary trials 511
inclusion in planning process, Sundaram, K. V. K. 97, 351n.6
Nehru’s attempts 618-19. See on compensation of property taken
also NDC under police power 85
legislative assemblies, caste compo- and drafting of Forty-second Amend-
sition and social revolution ment 376
661-2 on freedom of speech 43
 766 Index

suggestions on zamindani legislation invalidation of Communal General

81 Order 96
Superior Council of the Judiciary 333, judges of 123-4, 124n.3
342 jurisdiction over state laws (32A)
Supersession Dig
of A. N. Grover 278, 282 Gajendragadkar’s views on 413
of H. R. Khanna 436, 436n.16 packing of, to overturn Golak Nath
of K. S. Hegde 278, 315n.3 269, 269n.30, 270
Gokhale’s opinion on 284 packing of, through supercession
of J. M. Shelat 278, 282 280
See also Supersession ofJudes below and Parliament, conflict over cus-
Supersession of judges 134, 135n.36, tody of Constitution 39
278, 291 powers of
A. N. Grover’s comments 286 Ambedkar’s views 84
Antulay’s support for 287 Justice Kania’s views 39
Chagla on 285 relation to Constitution 123
comments on 286, 287 removal of power to adjudicate
condemnation of, by Supreme election disputes. See Thirty-
Court Bar Association 285 ninth Amendment
debate in Parliament 287 restoration of power to adjudicate
Desai’s opposition to 438 election disputes 432
editorial comments on 289 ruling
Gajendragadkar’s view on 283 on Bihar land Reforms Act 91
Justice Khanna’s views 280n.3 on compensation for property
Kumaramangalam’s defence of 283 207n.23
motive for 278 on compensation in bank na-
Mrs Gandhi's personal motives be- tionalization case 216
hind 281 on compensation in Bela
Mrs Gandhi’s support for 288 Banerjee case 82, 100
packing of Supreme court through in Cooper case 218-19
280 on de-recognition of princes 231
in Dorairajan case 96, 96n.82
President Giri’s objection to 279
reaction of legal community to on election expenses 316
on Emergency Courts Bill 461
285-6
in Golak Nath case 197-8
Supreme Court 14
advisory opinion of 461, 461n.31
in Gopalan case 59, 59n.73
on governors’ constitutional
appointments to, controversy over
438n.23
status 576, 576n.12
in Indira Gandhi Election case
dismissal ofsuits in Rajasthan case
323-4
445, 445n.48, 446n.49
in Judges case 527, 530
inconsistencies in property ruling
in Kesavananda case 258, 259
218-19
in Mangaldas case 207n.23
interim order on banking ordi-
in Minerva Mills case 502-4
nance 215
in Sholapur Mills case 100
 Index 767

in Saghir Ahmed case 106, proposal placing ‘socialist’ in Pre-

106n.24 amble 361, 361n.46
striking down of Article 329A by proposal replacing right to property
324 with right to work 361n.47
upholding of Seventeenth Amend- recommendations on
ment 115 adjudication of election disputes
Supreme Court Advocates Case 532, 362, 398
532n.56 Article 226 360
Supreme Court Bar Association, con- central forces in states 362, 601
demnation of supersession centre-state relations 571
285 emergency in part of country
Survival society 640 362
and personalization of government expansion of Article 31C 360-1
642-3, 646, 649 freedom of press 362-3
behaviour 661 judicial review of Article 368 359
among bureaucrats 641-2, 643-— larger judicial benches 359,
4 359n.39
corruption as manifestation of legislation against abuse of
642-3 freedoms 372
effect on job performance 643 legislative terms 363n.50
among judges 665 presidential system 356
in judiciary 664 quorum rules 363n.50
among poor 640-1 Rights and Principles 360
among rich 641-2 setting up tribunals 361
Swaraj Party, and decentralization 561 Transaction of Business Rules
Swaran Singh Committee 333, 347, 363n.50
353-6, 374, 375 writs ‘for any other purpose’ 360,
Bar Association of India critique on 360n.41
367n.60 report
comments on purpose of 354 CPM attack on 368
composition of 354, 354n.18, 355 CWC meeting on 364n.54
critique of 366, 366n.59 K. S. Hegde’s criticism of 368n.64
debate on presidential system 357-— accusations of tampering with
8 370, 370n.1
drafting of fundamental duties 363— tentative proposals 355-6
4 unannounced purpose of 353-4
emphasis on parliamentary su- Swatantra Party 117, 202, 397, 235
premacy 359 founding statement 117n.65
ex-communists in 355 opposition to Nath Pai bill 203
and federal relations 362 Sycophancy
and Mrs Gandhi 354 cult of, among bureaucrats 643
Mrs Gandhi's attitude towards 364— during Emergency 643n.26 -
5, 365n.58 Syndicate members 174, 543n.31
Mrs Gandhi, clash between
opinion regarding removal of prop- and
erty from rights 361 176, 178, 179-80
 768 Index

selection of Mrs Gandhi as Prime Transaction of Business Rules 373

Minister by 174 declaration of Emergency under
306
Tandon,J. K. 132n.26 de-recognition of princes under
Tandon, Purushotamdas 35, 88n.55 229, 229n.60, 230n.64
Tarkunde,.V. M. 248, 285, 339, 366n.59, Swaran Singh Committee recom-
384, 385, 470 mendations 363n.50
arguments in Habeas Corpus case Transfer of high court judges 35-8,
340 DZ1, Dao
Tata,J.R. D. 117n.65 A. N. Ray and 344-5
Telegu Desam Party 541 Chandrachud’s comment on 521,
Terrorist and Disruptive Activities Act 522n.18
(TADA) 510, 511n.36, 515 CJI’s role in 125, 532, 532n.56,
Thakur, D. D. 332 533n.60
Thapar, Romesh 41 L. M. Singhvi’s arguments regard-
view of Emergency 298 ing 525
See also Crossroads case during Emergency 344-7
Thimayya, General 50n.4] Gajendragadkar’s views on 136-7,
Thirteenth Amendment, creation of 137n.45, 414n.14
Nagaland under 152, 152n.24 government policy regarding 531,
Thirty-eighth Amendment 319, 322, 531n.53, 532-3
Re 8, Indira Gandhi's views on 344, 518
Thirty-ninth Amendment 319-20, and judge’s consent, convention of
322, 362n.50 136, 345, 439, 517n.3
C. Subramaniam’s opposition to by Janata Party 439
322 judiciary’s role in 137
criticism of retrospective legislation motives behind 530-1
323-4 Munshi’s view on 136, 136n.44
Gokhale’s support of 319n.17 Nariman’s views on 522-3
Indira Gandhi Election case and Noorani’s views on 519
323-4 opposition to 522
insertion of Article 329A in 319 Palkhivala’s views on 522
Mohan Dharia’s opposition to 320 as retribution ofjudicial rulings
S. S.Ray and 322 against government 347
Swaran Singh’s opposition to 322 S. Sahay’s views on 519, 519n.12,
Thirty-second Amendment 583n.34 524, 524n.26
Three-language formula 155, 155n.34 Seervai’s arguments against, in
Times of India, The 289, 302 Judges case 524-5
comment on Constitution amend- States Reorganization Commission
ment 86 recommendation on 136
comments on President’s position The Hindu comments on 520
25 See also Judges case; Law Commis-
comments on Preventive Detention sion, Eighteenth Report
Act 59 Tribunals 414, 425
Tiwari, N. D. 486n.4 anxiety regarding 361
 Index 769

Chagla’s criticism of 385 changing compensation to

Gajendragadkar’s opposition to amount 244
414 establishing supremacy of Direc-
industrial 102n.11 tive Principles 239-40, 240n.23
Palkhivala’s views on 361 and social revolution a 253
provision in Forty-second Amend- Twenty-forth Amendment 226, 227,
ment regarding 372 243, 244, 654, 658
Swaran Singh Committee propos- conclusion ofjudges on, in Kesav-
als regarding 361 ananda case 265
Swaran Singh’s views on 382 CPI reservations regarding 246
Tripathi, Kamalapati 365, 377, 407n.42, criticism of 226
418, 486n.4 debate in Rajya Sabha 227, 228n.58—
Tripathi, P. K. 189, 360 9
Tulzapurkar, V. D. 347n.67, 524n.27 defeat in Rajya Sabha 228, 228n.58—
controversy over appointment to 9
Supreme Court 438n.23 Dhrangadhra’s opposition to 226—
Twenty-Point Programme 295, 308, 7
308n.37 drafting of 237
Twenty-eight Amendment 240,243 editorial comments on 247-8
ending of ICS privileges 237, genesis for 237-8
942n.31 252, 252n.75, 253, Indira Gandhi on 245
253n.76 Kumaramangalam’s support for
Twenty-fifth Amendment 238, 239, 245-6
243, 657 Law Commission’s views on 249n.59
and Article 31C 240, 244, 500 P. K. Deo’s challenge to 225
comments on 252 passage in Lok Sabha 227
compensation changed to amount passage of 247
263n.9 provision 244
conclusion of judges on, in Kesav- compelling President to assent
ananda case '265—6 to amending bills 239, 244,
debate in Rajya Sabha 252-3 245
editorial comments on 247-8 deletion of princes’ purses 225
Gokhale’s defence of 250, 250n.63 regarding anti-national activities
Gokhale’s suggested change to 245, 245n.2, 382,
249-50 ratification by states 247
Krishna Menon’s views on 251 reaction of opposition parties to
Kumaramangalam’s support for 246
250-1 social revolution and 253
Law Commission’s critique of 248- Socialist Party support for 246
Statement of Objects and Reasons
9
245n.40
Mrs Gandhi's views on 251
Twenty-ninth Amendment 259
passage of 251, 252
conclusion of judges on, in Kesav-
Piloo Mody’s views 251
ananda case 266
provisions of 244
770 Index

Twenty-sixth Amendment 243 role of sub-constitutional institu-

ending of privy purses 252 tions in. SeeFinance Commis-
sion; zonal councils; Plan-
United Front government in Bengal, ning Commission
dismissal of 586—7 strengthening of 170
Undertrial prisoners 664 under British 145
petition regarding 440 under Congress party 145
Unitary features of Constitution 560 under independence movement
Unitary government 145
during President’s Rule. See Presi- under Mahatma Gandhi 145
dent’s Rule Unlawful Activities (Prevention) Act 53
Hindu Mahasabha support for 562 Unnikrishnan, K. P. 321,379
Jana Sangh espousal of 150 concern over Sanjay’s influence 327
M. C. Mahajan’s support for 150n.18, resolution recommending constitu-
559, 559n.12 tional changes 343
RSS support for 562 Untwalia, N. L. 345, 346n.64, 444n.42,
Unity 4 461n.32, 501, 502, 527
army as a force of 148 UP resolution on converting Parlia-
centralization as threat to 629 ment into constituent assem-
Constitution’s emergency provi- bly 377-8
sions and 163 UP Road Transport Act 106n.24
Constitutional devices promoting UP Zamindari Abolition and Land
156-7 Reform Bill, upholding of 87,
effect of overcentralization on 657 87n.53, 92, 92n.69
forces threatening. See autonomy; UP Zamindari and Land Reforms Act
secession; communalism 80,80n.29
governor as force of. See governor
historical forces contributing to 144 Vaidialingam, C. A. 197n.3, 201,
and integrity 6, 7, 559-60, 633 216n.21, 231n.65
concerns for 143-4 Vajpayee, A.B. 397, 402, 450, 475n.36,
dangers to 557 493n.30
and Fundamental Rights, arrest under MISA 334
conflict between 655, 656 and presidential system 493
importance of 355 Varma, Ravindra 411
interpretations of 556-7 Venkatachaliah, M. N. 533
and national integration 559 Venkataramaiah, E. S., 524n.27, 527
non-Constitutional forces of 148 Venkataraman, R. 513, 486n.4
origins of anxieties regarding proposal for presidential system
559 353
and President’s Rule 657 Venkatasubramanian, P. B. 412
by opposition parties, attempts at Venugopal, K. K. 36
396 arguments in Minerva Mills case 499
Prasad’s views on 149, 150n.18 Verghese Commission 481
provisions in Constitution 146 Verghese, George 451n.72
 Index 771

Village land records, unreliability of Yadav, Chandrajit 183, 235, 321, 377,
254n.78 379
Vira, Dharma 452n.73, 585, 586, 643 Young Turks 176, 255
on functioning of governor 607 resolution regarding abolition of
dismissal of UF government in privy purses 223
Bengal 586, 586n.43, 587 Youth Congress
Vohra, Justice 462n.34 conference at Guwahati 326
See also judge’s case under Sanjay Gandhi 325n.42
Voluntary organizations and social Yunus, Mohammed 322
revolution 664
Zamindar (s) 72-3, 73n.10
Waman Rao case 501, 502n.11 as intermediaries 73n.10
Wanchoo, K. N. 68n.105, 160n.48, lobbying for fair compensation 75
197, 197n.3, 210, 202n.18 petition against UP Zamindari and
controversy over appointment 126 Land reforms Act 80, 80n.29
on Parliament’s amending powers Zamindari abolition 71n.6
201 and compensation 74-5, 76
West Bengal Land Development and Nehru’s views on 75n.14, 75n.16,
Planning Act 107 76, 91n.66, 105, 654
Westernization, influence of 666, Patel’s views on 76, 76n.21, 77
666n.73 Prasad’s views on 75-6
Word and deed, disjunction between. exclusion of judicial review of
See empty promise syndrome 81, 81n.32, 105
Writs K. V. K., Sundaram’s suggestions
high courts’ power of regarding 81
attack on 655 See also zamindars above
Fali Nariman’s view on 367n.60 laws, striking down of 653
sub-committee on constitution policy, failure of 121
recommendations on 101, See also land reform policy
102 Zamindari
for any other purpose 102, 106 estates 81
restoration of 413 system 73n.10
Swaran Singh Committee, recom- Zonal Councils 166—7, 566, 624-5
mendations on 360, 360n.41 purpose of 624
Sarkaria Commission on 625,
in industrial disputes, proposal for
abolishing 102n.11 625n.48
See also Habeas Corpus; Habeas
Corpus case
POLS
Cand Ped

G 17% Sz
 SR
fol Ag
EP
~, ~,

eee oes
enol are
Tee

= ae
aatieerd

NG
Wiad ee >
the
“S oer

tie
et

as

tej
ee Pree

tide