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Working a Democratic ConstitutionA History of the Indian Experience$

Granville Austin

Print publication date: 2003

Print ISBN-13: 9780195656107

Published to Oxford Scholarship Online: October 2012

DOI: 10.1093/acprof:oso/9780195656107.001.0001

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The Social Revolution and the First Amendment

The Social Revolution and the First Amendment

Chapter:
(p.69) Chapter 3 The Social Revolution and the First Amendment
Source:
Working a Democratic Constitution
Author(s):

Granville Austin

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780195656107.003.0005

Abstract and Keywords

This chapter opens by giving the general background of property issues followed by their treatment in the First Amendment. It discusses the First Amendment's provisions relating to property, focusing on agricultural property and the nationalization of commercial and industrial property. The Supreme Court ruled unconstitutional the 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; government's role in reforming society; and conflicts between ‘law’ and ‘justice’. The chapter concludes with the amendment's provisions that deal with remedial treatment for disadvantaged citizens, variously called positive discrimination and compensatory discrimination.

Keywords:   agricultural property, industrial property, positive discrimination, compensatory discrimination, India, Vice-President Radhakrishnan

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’.1 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’.2

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 (p.70) chapter 5.) Other than freedom of speech, the specific issues addressed in the First Amendment were the individual's right to enjoy his property versus government's authority to take it under its ‘police power’ or for social revolutionary purposes, and the subordinate issue of any compensation due for the taking; and one individual's constitutional right to protection against discrimination and to equality under the law versus another's right—because of his or her ‘backward’ status in society—to special opportunity in access to education and employment. This chapter will discuss the First Amendment's provisions relating to property, focusing on agricultural property and the nationalization of 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.4 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.5 The resolution called unspecifically (p.71) 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 in the party, like the Congress Socialists, were not so restrained. The Congress Socialist Party— formed in 1934, of which Nehru was a supportive non-member—had no such inhibitions. Among its objectives were the ‘elimination of princes and landlords and all other classes of exploiters without compensation’ and ‘redistribution of land to peasants’.6

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 of status, 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.7 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 (p.72) eighteen other items; and government had the right to acquire existing industrial undertakings.8

The predilection for socialism came to many in the national leadership from their personal backgrounds and from their belief in the indissoluble linkage between social revolution and democracy. Socialism was thought the antithesis of imperialism, at once its enemy 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 unless it is accompanied by virtual economic equality’. Most of the upper class leaders of the independence movement looked down on industrialists and persons ‘in trade’, much as did their English class-conscious counterparts. Many leaders of the independence movement disdained the industrialists 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.9 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 (p.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.10 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.11

The Constituent Assembly laboured arduously for the social revolution when drafting the Fundamental Rights, Directive Principles of (p.74) State Policy, and the provisions for the uplift of disadvantaged citizens. The Rights expressed not only prohibitions—what government must not do—but also conditions, such as equality before the law, that government should strive to bring about. Property relations presented the most difficult problem, involving as they did principles, the law, and money. Assembly members had been elected by members of provincial legislatures who, themselves, had campaigned under a manifesto that called for abolition of zamindaris in return for equitable compensation.12 Even as the members were at work, the 1948 report of the party's Economic Programme Committee recommended eliminating all intermediaries between the tiller and the government,13 and several provincial governments had begun to move on property issues. Legislators 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 abolition 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 (p.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?14 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.15 Finally, what zamindari abolition laws were likely to survive judicial review and how much could the central and state governments afford to pay?16

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.”’17 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.18 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 (p.76) President’, he was ordinarily guided by the advice of his ministers,19 and he kept the cabinet informed of the deputations and their arguments.

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.

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.20 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.21 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 (p.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.22

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 except 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 substitute their own sense of fairness”’ and ‘“they will not judge the adequacy of compensation … unless the inadequacy is so gross as to be tantamount 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 community at large.24 How very wrong they were would be evident within a few months, and their chagrin may have had not a 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 (p.78) restrictions’ in the interests of the general public or to protect the interests of a Scheduled Tribe. Citizens also had the right to practise any profession and to carry on any occupation, trade or business. All the Constitution's property provisions later would be at the centre of 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 11 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, but the cabinet reconsidered it, and President Prasad certified it again, partly as the result of Attorney General Setalvad's advice that he saw ‘no legal objection to it’.25 Chief Justice James Grieg Shearer in Patna did have objections. He ruled that it contravened Article 19(1) of the Constitution (which included the right to acquire, hold, and dispose (p.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.26

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 Champakam 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.27 Adding to governmental anxieties, hearings had begun in the Calcutta High Court on two more property cases. One of these, (p.80) 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 of a 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.28 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 (p.81) 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 time to change that Constitution’.30

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 Amendment. 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.31 Additionally, Sundaram suggested wording that would protect three central and nine state laws from the fundamental right to property in Article 31, but without naming them. He may have got this idea of flatly excluding judicial review of zamindari legislation from Bihar Premier S. K. Sinha, who had written to Nehru the previous November that the contemplated constitutional amendment should provide that any tenure law that had received 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.32

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.33

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 (p.82) 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’.34 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’.35

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 co-operative society for the building of shelter for refugees from East Pakistan. The court held that the owner's fundamental right under Article 31 had been violated because 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 judiciary away from compensation issues.36

(p.83) 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’.37 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.38 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’.39 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 I am asked to sign a document, I must satisfy myself and not sign blindly.’40 Nehru responded to Patel, informing him that the cabinet—with all present save Patel, who was (p.84) 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.41 Facing Prasad's delay, Nehru forced his hand by threatening his own and his ministry's resignation if presidential assent were not forthcoming.42 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.43

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 in a 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.44

(p.85) 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 create 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.45 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.46 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 (p.86) 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 time’ 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.48 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 of India 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.50 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”’.51 The executive (p.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”’.52

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/industrial 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.53 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 were right and in a generation things might stabilize, he continued. But we cannot wait, and if we do so, we may wait ‘amidst upheavals’. As to any injustice of zamindari abolition, you have ‘not just the justice of today but the justice of yesterday also … [I] nevitably in big social changes some (p.88) 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.’54 During a subsequent reading 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.55

Criticizing the bill, S. P. Mookerjee spoke for many of its opponents. Why ‘this indecent haste’, he asked, when the Supreme Court had not 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?56 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’.57

(p.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.58 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.59 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.60 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.61Ahmad, 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’.62 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. Co-operative farming should be the next aim, he said.63 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 (p.90) required assent. He wrote to Alladi Krishnaswamy Ayyar reiterating the 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 60’64—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 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 void because it had been passed by a unicameral parliament, and thus did not comply with the amending process described in Article 368; that a 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 it should 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.65 Later that month Nehru spoke at the 57th Congress (p.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 ‘reactionary and static elements and dynamic and progressive forces in the party’.66

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 Act in the Ninth Schedule, supposedly beyond court scrutiny. To do this, the majority reached outside Article 31(2) and the other Fundamental Rights and based their ruling on the entry in the Concurrent List which provided that real principles for compensation had to be fixed, and Bihar had done this wrongly.67 Justice S. R. Das dissented, holding that the First Amendment did protect the Act from judicial scrutiny. Coming so soon after enactment of the First Amendment, the decision ‘was bound to seem an act of judicial defiance of the legislature sitting as a constituent body’.68 On the same day, the same (p.92) bench unanimously upheld the UP and Madhya Pradesh zamindari abolition acts.69

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 Transport— began to operate public buses in competition with private transport companies and to accord its own bus operations special privileges. Large numbers of private owners, claiming unequal treatment under the law (Article 14) and that they were being deprived unreasonably 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 11 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.’70 The court went on to say that (p.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’.71 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’.72 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 that a court pronouncement on the Act be awaited before drafting an amendment dealing with this particular issue.73 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”’.74 An impetus now lost to memory finally awakened New Delhi to the broader implications of Article 19(6). The Cabinet Committee on (p.94) 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 the right to own property, carry on a business, and so on should not ‘affect’ the operation of any existing law for the carrying on by the government of any trade, business, industry, or service to the exclusion of citizens.75 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.76 The scant attention given in the parliamentary debates to this portion of the amendment contrasts remarkably with its importance in subsequent litigation.77

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 had challenged a local regulation as discriminating against her, as 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 (p.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 the Justice 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.78 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 compensatory treatment for disadvantaged citizens or for protecting them against discrimination.79 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’. (p.96) (This and Articles 15 and 16 may, in theory, be read as prohibiting discrimination 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 had not actually applied] … as she belonged to the Brahmin community’.80 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.81 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.82 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 decisions to many of the Constitution's ‘special care’ provisions convinced the Cabinet Committee on the Constitution that it needed to amend Article 15 along the lines of the Law Ministry's note of 17 March. The chief minister of Madras, P. S. Kumaraswami Raja, preferred amending the Constitution to retain the General Order ‘“in the interests of South India”’.84 At its mid-April meeting the Cabinet Committee recommended that the Article read that (p.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.86 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 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 Constitution to overcome judicial judgements impeding fulfilment of the government's perceived responsibilities to the seamless web and to particular policies and programmes. A similar amendment devoted to property 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 prospective effect would be used by Nehru's daughter to render constitutional, actions that at the time of their commission had been both illegal and unconstitutional.88

(p.98) 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.90 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.

Notes:

(1) CADRadhakrishnan, Occasional Speeches and Writings, Ministry of Information and Broadcasting, GOI, New Delhi, 1956, p. 362

(2) Issue dated 8 September 1946.

(3) Nanda, B. R., Jawaharlal Nehru, Oxford University Press, Delhi, 1995, p. 185

(4) Report of a Committee to Determine Principles of the Constitution for India, All Parties Conference, 1928, pp. 89–90

(5) Report of the 45th Indian National Congress, AICC, Bombay, 1931, pp. 139–41

(6) Bandyopadhyaya, J., The Congress and Democratic Socialism, Indian National Congress, New Delhi, 1968, p. 4

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, Masani, 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.

(8) Resolution on Industrial Policy, Ministry of Information and Broadcasting, GOI, New Delhi, 6 April 1948

The 1956 Industrial Policy Resolution went further. After reaffirming the 1948 resolution and the 1954 ‘socialist pattern of society’ resolution, it divided industries into three categories, one of which comprised industries that were to be ‘progressively State-owned’—in other words, nationalized.

(9) P. N. Haksar is instructive on this and related cultural aspects. See Haksar, P. N., Premonitions, Interpress, Bombay, 1979, p. 139

Mehta, Ashoka Who Owns India, Chedana Prakashan Ltd., Hyderabad, 1950, p. 2

Mehta then provides the data and describes the role of ‘managing agents’ who managed companies for owners, often with little regard for the economic health of the factories, mines, etc. under their control. During the late sixties and seventies, the ‘managing agency system’ would be severely attacked and weakened.

(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 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 systems, as was simple landless agricultural labour. For a brief description of land systems, see Anstey, Vera, The Economic Development of 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.

(12) Congress Election Manifesto, AICC, New Delhi, 1945

(13) Report of the Economic Programme Committee, AICC, New Delhi, January 1948, pp. 12, 14

Crops: Planning and Production, Report of the Sub-committee, National Planning Committee Series, Vora and Company Publishers Ltd., Bombay, 1949

Programme (with a foreword by Jayaprakash Narayan), Socialist Party, Bombay, 1947, p. 20

(14) 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/I/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

(19) 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) Durga Das, Patel's Correspondence, vol. 4, p. 103

In mid-August, Sardar Patel wrote Nehru a most interesting letter about the compromise over the property article and zamindari abolition, which deserves quotation at length.

I have, therefore, told Munshi that the alternative draft which he brought would be adequate. There is still a certain amount of discrimination against the zamindari property, but that we could justify 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. Apart 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 therefore, the zamindars are not entitled to full rights of and compensation for ownership. I think, if put in this way, there will not be any difficulty in the party, particularly now, when lands other than zamindari are outside the scope of this discriminatory treatment.

Ibid., vol. 8, p. 603. Emphasis added

Additionally, court scrutiny was constitutionally prohibited on bills enacted less than nineteen months before the inauguration of the Constitution if the President had assented to them within three months after its inauguration—contravening the compensation clause of the article or Section 299 of the 1935 Government of India Act.

(22) Austin, Cornerstone, pp. 87ff for the framing of the property provisions

(23) ibid., p. 99

(24) CADJawaharlal Nehru's Speeches, 1949–1953, pp. 479–85

Laski, Harold, A Grammar of Politics, George Allen and Unwin, London, 1960, p. 126

(25) Setalvad's ‘Opinion’ was dated 14 February 1950

The Secretary of the Ministry of Works, Mines and Power, B. G. Gokhale, earlier had given his view that the bill taking the estates, with its declaration that it could not be questioned in court, was subject to ‘abuse … too obvious to need any comment’. Letter dated 24 February 1949. Home Ministry File 5/10/49 Judicial, vol. 1, NAI.

(26) Sir Kameshwar Singh (Darbhanga) v The Province of Bihar AIR 1950 Patna 392ff

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

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

(29) ibid

On 20 January, a large number of zamindars had asked the state's chief and revenue 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 1951. The cabinet decided on 23 January 1951 that the Act should be sent immediately to the President. Prasad assented to the Act the next day and asked that there be a ‘gap’ of several days between publication of the Act and its subsequent ‘notification’ so the zamindars could have time to seek a stay of the Act's implementation. Prasad's paper was dated 24 January 1951, Law Ministry File F34/51-C. Carefully scrutinized in New Delhi, the bill had been thought a model compared with Bihar's fumbling.

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

(31) Note of 29 January 1951. Law Ministry File F34/51-C.

(32) Ibid

(33) Letter dated 5 March 1951. G. B. Pant Papers, Microfilm Reel 1, Files 3, 8, 9, NAI; also, Law Ministry File F34/51-C. Nehru's reminder to Pant was dated 26 February 1951.

(34) Kameshwar Singh (Darbhanga) and Others v The State of Bihar AIR 1951 Patna 91ffThe Indian Nation

(35) Letter of 21 March 1951. NLTCM, vol. 2, p. 363.

(36) The West Bengal Settlement Kanungoe Co-operative Society v Mrs Bela Banerjee and Others AIR 1951 Calcutta 111

The state government had indulged in a practice that seems unfair and which courts would deem so on subsequent occasions and which would cause it to strike down other acquisitions. It ‘notified’ the owner of the impending takeover in December 1946, but took over the land in March 1950; yet, it calculated the compensation as of the date of notification.

On the same day, the court also handed down its decision in Subodh Gopal Bose v Bihari Lal Dolui and Others AIR 1951 Calcutta 85ff. The case involved a landowner's right to evict tenants from land he had bought from the government. The case's importance in our context is the court's ruling that the law in question posed an unreasonable restriction on Bose's right to hold property under Article 19. See Merillat, Land, pp. 144–5. Both decisions were given by the same two-judge bench: Justices Arthur Trevor Harries and Sambhunath Banerjee.

(37) H. V. R. Iengar's summary note dated 24 July 1950 for the cabinet meeting of 1 August. Home Ministry File 17/92/50 Judicial, vol. 1, NAI.

(38) The cabinet subcommittee had heard Bihar ministers and officials at a meeting on 17 August. L. P. Singh, present as Bihar Chief Secretary, was repeatedly asked, ‘“You are the civil servant, will it work?”’ ‘The room had a cooler,’ Singh later recalled, ‘but I was sweating.’ In an interview with the author Singh described the Indian Civil Service as ‘pro-tenant in those days’.

(39) Durga Das, Patel's Correspondence, vol. 9, p. 274

The existence of Prasad's note is clear, but its text does not appear in Law Ministry File 17/92/50 Judicial, vol. 2 along with other documents of this time, apparently because it was too sensitive. (See footnote 41.)

(40) Choudhary, Prasad: Correspondence, vol. 13, p. 77

(41) 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.

(43) Rajendra Prasad Collection, File 42, 1950, NAI.

(44) Note dated 14 March 1951. Law Ministry File F34/51-C, NAI. About this time, Hare Krushna Mahtab also attacked Article 14 as ‘a legal impediment … in the way of economic democracy’. Also, he wrote to Nehru, Article 13 had been a ‘serious blunder’, preventing land reform and petrifying ‘the present deplorable condition of the common man’. Note undated but sent to Nehru under cover of a letter dated 23 March 1951. Hare Krushna Mahtab Papers, File 21, NMML. (Article 13 says that any law inconsistent with the Fundamental Rights is void.)

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

(46) Ibid.

(47) ‘Cabinet Committee appointed by the Cabinet’. This is the name now given in the Law Ministry file to Nehru's earlier committee or to a new group.

The committee implicitly adopted the idea of naming the state acts to be protected; it did not think that the, already voided, Bihar Management of Estates and Tenures Act, 1949, and unsound portions of the Bihar Land Reform Act, 1950, should be brought within the purview of the new article. The committee also recommended that the President reserve the power to modify state acts before the legislation was accorded full protection from the judiciary.

(48) Choudhary, Prasad: Correspondence, vol. 14, p. 274; the entire text, pp. 273–7

(49) Choudhary, Prasad: Correspondence, p. 277

This incident points up how bad drafting of a law can embroil the legislature with the courts, causing the former to criticize the courts for its own carelessness and accusing the courts of abusing their function by ‘making law’.

(50) Times of India, Bombay, 13 April 1951.

(51) Ibid., issue of 22 April 1951

(52) Ibid, issue of 30 April 1951

(53) Raja Suryapal Singh and Others v The Government of Uttar Pradesh AIR 1951 Allahabad 674ff

The judges on the bench were Chief Justice Malik, Orbey Howell Mootham, Das Bulchand Chandiramani, Chandra Bhan Agarwala, and Piare Lal Bhargava. Attorney General Setalvad and the state's Advocate General appeared for the government. P. R. Das and G. S. Pathak represented the plaintiff.

(54) 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 revolutionary situation in rural areas’. Selected Works of Jawaharlal Nehru, vol. 16, part 1, p. 171. Mavalankar had written to Nehru objecting to the amendment because it deprived the individual of all his fundamental rights in regard to property. Ibid., editor's note.

(55) Parliamentary Debates, vol. 12, part 2, col. 9626, 29 May 1951

It will be recalled from chapter 1 that six weeks earlier Nehru had written to Pandit Pant that he, himself, felt ‘haunted’ by conditions around him.

Frankel, Political Economy, p. 89

(56) Parliamentary Debates, vol. 12, part 2, cols 8834–56, especially cols. 8837 and 8851

(57) Parliamentary Debates, vol. 12, no. 4, cols 19071, 19082

Public reaction, in the main, continued to be critical. The Supreme Court Bar Association and various groups of advocates issued statements opposing the amendment. General elections were due within months. ‘An air of indecent haste pervades’ the amending process, said a second Times of India editorial. Bombay edition, 15 May 1951.

(58) The Constitution (First Amendment) Bill, 1951: Report of the Select Committee, p. 1.

(59) Ibid., p. 8

When the bill was being debated on 1 June, two Hyderabad jagir abolition acts were added to the Ninth Schedule.

(60) Report of the Select Committee, p. 12

(61) Ibid., pp. 14–15

(62) Ibid., p. 17

(63) Letter dated 2 June 1951. NLTCM, vol. 2, pp. 407–8.

(64) Choudhary, Prasad: Correspondence, vol. 14, pp. 69–70

(65) Shankari Prasad Singh Deo v The Union of India and the State of Bihar 1952 (3) SCR 89ff. The decision came on 5 October 1951. On the bench were Chief Justice Harilal Kania, Patanjali Sastri, B. K. Mukerjea, S. R. Das, and Chandrasekhara Aiyar. Attorney General Setalvad and others represented the government. For a discussion of the case, see Merillat, Land, pp. 132, 237ff.

N. C. Chatterjee personally decried limitation on land holdings, believing that large holdings and mechanical farming were needed if food production were to be adequate— even if something like collective farming should result. (Merillat Diaries, p. 40, generously made available to the author.)

The constitutionality of the Ninth Schedule was not separately challenged in Shankari Prasad.

(66) Congress Revitalization and Reorganization: Nehru's Guidelines for the Congress, Congress Forum for Socialist Action, New Delhi, 1968, pp. 23, 21

Report to the All India Congress Committee (AICC, New Delhi, 1951)laissez-faire

The Congress adopted its manifesto for the first general elections of 1952 at the Bangalore AICC meeting, although, according to some accounts, changes that Nehru wanted in it were made finally in October. As noted earlier in this chapter, this called for ‘establishment … by peaceful and legitimate means … [of] a co-operative commonwealth based on equality of opportunity and of political, economic and social rights …’. The manifesto called for the rapid completion of zamindari abolition, and that ‘security of tenure and fair rents should be assured to tenants and tillers of the soil’.

(67) State of Bihar v Maharajadhiraja Sir Kameshwar Singh of Darbhanga and Others 1952 (3) SCR 889ff

(68) Merillat, Land, pp. 133–5

(69) As noted earlier, the UP Act was upheld in The State of Uttar Pradesh and Another v Raja Suryapal Singh. The MP Act was upheld in Viseshwar Rao v The State of Madhya Pradesh 1952 (3) SCR 1020ff. P. R. Das again represented the plaintiff, joined by B. R. Ambedkar, who by then had resigned as Law Minister.

Zamindari rights were formally vested in the UP government on 1 July. The Governor, K. M. Munshi, reported to President Prasad that all had gone smoothly, and he gave credit to Chief Minister Pant and to the ability and energy of the Revenue Minister, Charan Singh—who briefly would be Prime Minister in the late seventies. Munshi–Prasad ‘Fortnightly Letter’ dated 16 July 1952. K. M. Munshi Papers, Microfilm, File 354, NMML.

Ibid.

(70) Moti Lal and Others v the State of UP and Others AIR 1951 Allahabad 257ff

(71) Ibid., p. 267

(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 agriculture. Ibid., p. 21. The Reserve Bank of India was nationalized in January 1949 by an act of Parliament, and the Imperial Bank in 1953, making it the State Bank of India. This gave the government control over some one-third of commercial banking in the country. Although banking practices were said to have been ‘tamed’ by the Banking Companies Act of 1949, this had had comparatively little to do with increasing the availability of credit. (See Part II for a detailed description of later bank nationalizations.) The government nationalized the life insurance businesses, with their large financial assets, in January 1956. Finance Minister C. D. Deshmukh had done the preparatory work in secrecy—to his own great satisfaction—and the actual nationalization was accomplished by ordinance to preserve surprise.

(75) ‘Report of the Cabinet Committee on Amendments on 28 March 1951’, Ministry of Law, File F34/51-C.

(76) The amendment also empowered government to legislate professional and technical qualifications for engaging in a profession or business, and it also made several procedural changes in other articles. The amendment left untouched the property rights of religious denominations in Article 26.

(77) Singh, Mahendra P. (ed.), V. N. Shukla's Constitution of India, 9th edn., Eastern Book Company, Lucknow, 1994, pp. 137–50

(78) Hardgrave, Dravidian Movement, ch. 3

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

(80) State of Madras v Shrimati Champaknam Dorairajan AIR 1951 SC 227

(81) Ibid., pp. 227–8

(82) Ibid., p. 228

Galanter's excellent Competing Equalities, University of California Press, Berkeley, CA, 1984, pp. 164–7, 364–8

(83) Venkataramana v State of Madras, see AIR 1951 SC 229ff

(84) In a letter to Nehru. Gopal, Selected Works of Jawaharlal Nehru, vol. 16, part I, p. 153. Nehru responded on 11 April 1951, rejecting the suggestion and saying that the amendment would seek to make special treatment for the ‘backward classes’ consistent with the Constitution. Ibid., p. 154.

(85) Law Ministry File F34/51-C.

(86) Ibid

(87) The Times of India reported on 26 May that ‘economically’ had been deleted due to ‘fears’ that it did not name.

The term in the First Amendment thus follows that in Article 340, which authorizes the President to form a commission to investigate ‘the conditions of socially and educationally backward classes’.

(88) Constitution Amendment in India, p. 181

(89) Mehr Chand Mahajan, ‘A Pillar of Justice’ in Zakaria, Rafiq (ed.), A Study of Nehru, 2nd revised edn., Times of India Publications, Bombay, 1960, p. 386. It may be recalled that Ambedkar had suggested that laws restricting speech dangerous to national security should be exempted from judicial review (see chapter 2).

(90) Interviews with, among others, Dharma Vira, K. V. K. Sundaram, and P. G. Gokhale, at the time a draftsman in the Law Ministry.