On Republic Day, Remembering Assaults on Freedom & Subversion of the Constitution..

Today is the 63^rd anniversary of the Republic. On this day 63 years ago, the Constitution of India became the supreme law of the land. On this day, 83 years ago, our political leader resolved that India will fight to attain “Purna Swaraj”. For several years thereafter, 26^th January was  observed as Independence Day of India.  But this post is not really about the history of the Republic or its Constitution. This is about the systematic subversion of the Constitution and assaults on our freedoms.

Can you guess the date of the first such assault? It was during the reign of Jawaharlal Nehru, India’s first Prime Minister. Moving an amendment that would be the first step in curbing free speech in India, he passed laws that would make “contempt of court, defamation and incitement to an offense” punishable offences. That was in 1951 – barely a year after the Constitution came into force. Several decades later, the tradition continues. The latest in these attempts was the amendment to IT Act 2000. It was passed along with several other bills on the last day of the winter session of Parliament in 2008 in seven minutes flat! Part of this act is Section 66A.

I need not remind any of you about the muzzling of Press during the Emergency in 1977. Did I hear someone say, “What Emergency?” I understand. More than 2 years back, I wrote, “If its not on Google…Was the Emergency for real”?  It was not meant to be a joke.  Did you know that most official records pertaining to this dark period in Indian History are missing or “untraceable”? I guess not.

Did you know that “the home ministry claims it does not have the emergency proclamation issued by then President Fakhruddin Ali Ahmed..Nor does it have any record of the decisions taken on the arrests of thousands on the basis of false allegations or the …manner in which the statutory provisions governing detentions were breached.”?

Did you know that the records of the Shah Commission, “which dug into the misdeeds committed during the emergency” and held 100 meetings, examining more than 48,000 papers, are missing? Did you know that “no one found guilty by the Shah Commission has been punished”? Did you know that a government officer whom the Shah Commission had declared “unfit to hold any public office which demands an attitude of fair play and consideration for others..” actually became India’s Chief Election Commissioner?

Did you know that a shameless government admitted in March last year “A thorough search was made to retrieve, trace records of correspondence between the then prime minister and the president of India relating to proclamation of emergency..no such records were found in the PMO”?

But I digress. Let’s come back to Constitution and its systematic subversion. The story of how Emergency was imposed in India could have come straight out of a twisted political thriller.

On 12^th Jun ‘1975 Justice Sinha in a historic judgement found the “Prime Minister guilty on the charge of misuse of government machinery for her election campaign” and “declared her election “null and void”” 

This set in motion a series of events.  PM Indira Gandhi appealed for a stay on this order in Supreme Court. On June 24^th, “Justice Iyer granted Indira Gandhi “conditional stay”.  This decision gave rise to outcries.. from the opposition that she should resign…  

On the evening of June 25th, JP Narayan called for a civil disobedience campaign to force the resignation of the Prime Minister.  In response, the authority of the Maintenance of Internal Security Act was used in the early hours of June 26th to arrest …JP Narayan, Raj Narain, Jyortimoy Basu, Samar Guha..” and many others.

 “The President passed the order after a late night meeting with the Prime Minister. The Cabinet was not consulted but only “informed” the next morning at 6 am in gross violation of the rules governing conduct of business in Government.

On June 27, the President issued an order suspending citizens’ right to move the courts for enforcement of fundamental rights guaranteed under Article 14 (equality before law and equal protection of the law), Article 21 (no deprivation of life and liberty except by procedure established by law) and Article 22 (no detention without being informed of the grounds for it). With the passage of this order, citizens lost their fundamental right to life and liberty.”

Then came a series of amendments, starting from the 38^th (that barred judicial review of the presidential proclamation & laws made by Government), followed by the 39^th (which barred the Supreme Court from hearing the election petition against PM). The 39th Amendment “enjoys the dubious distinction of being the fastest constitutional amendment in India’s history”.

Then came the 41st Amendment, passed the very next day (after the 39^th Amendment cleared Rajya Sabha). What was the 41^st amendment? “It said no civil or criminal proceedings ‘whatsoever’ could lie in court against a person who is or who had been Prime Minister for acts done by that person before entering office or during the term of office”   

Then came the 42^nd Amendment which said “no amendment could be questioned ‘in any court on any ground’”.  This was the amendment that inserted the words “socialism” and “secularism” in the Preamble to the Constitution. Although the Janata Party repealed several of these provisions of the 42^nd Amendment in 1977, it retained the words “socialism” and “secularism”. Since then, every political party in India – and every elected representative – has to swear to uphold “socialism” in India. Interestingly, neither of these terms have been defined anywhere in the Constitution. Even more interestingly, Dr Ambedkar was clearly opposed to both of these. Socialism because it would be akin to “destroying democracy altogether” by denying people the right to change the way any society must be organized depending on “time and circumstances”.  And “secular“ since the Constitution did allow “different treatment to various communities”.

The story of how the Constitution & ideals of the republic have been systematically subverted – or quietly given the go by (as in the case of Uniform Civil Code or Prohibition on Cow Slaughter) does not end with the Emergency.

This story has other elements too – such as dismissal of democratically elected state governments. The first such act was the dismissal in July 1959 of the government of EMS Namboodiripad in Kerala – in spite of its enjoying majority support in Assembly. This was done by Nehru. This was the first in a series of such decisions that led to many such dismissals right until 1991 when the AGP government was similarly denied its right to form government in Assam.  I could go on and on but I think you get the picture.

Unfortunately modern Indian history either glosses over these uncomfortable facts or pretends they do not exist. And our media – which has a duty to inform citizens and make them aware of such things – is more obsessed with pictures of the Republic Day floats in New Delhi and celebrity tweets & “sound-bites”.

And thus it falls on all of us to take this responsibility. Responsibility to spread awareness; responsibility to remember history; responsibility to remind the present generation of the past and the need to be eternally vigilant. This is the price we pay for our freedom. Jai Hind, Jai Bharat!

Cross posted over at Times of India 

Related Posts: “Time to dump these anachronisms“ and  “On Constitution and Secularism”

Additional References: The shame of misrule by Kuldip Nayar, 13th August, 2010 and Congress’s subversion of the Constitution by A Surya Prakash, June 22, 2011. An open thread detailing instances of misuse of Article 356

Image courtesy and full text of the Constitution here

Update: Hindu elements in the Indian Constitution by Upendra Brahmachari