Nehru: A reluctant constitutionalist
Jawaharlal Nehru thought of constitutional rules as guiding principles rather than binding constraints
Jawaharlal Nehru’s 50th death anniversary also marks 50 years since the introduction of the 17th constitutional amendment in Parliament. In the first 14 years of the republic, Nehru’s government amended the Constitution 17 times. This is among the lesser known, and more complicated of Nehru’s legacies. Though Nehru is often romanticized as upholding the Constitution, especially in comparison to Indira Gandhi, he was at best, a reluctant constitutionalist.
While Nehru outlined the broad principles of the Constitution in the objectives resolution on 13 December 1946, he was not as involved as other leaders who played more crucial roles in the Constitution-making process. Rajendra Prasad kept the troops in line and maintained meticulous records; B.R. Ambedkar took on the difficult task of drafting; and Vallabhbhai Patel, the man behind the scenes, built consensus with minorities, and served on many committees to see through the details.
Nehru thought of constitutional rules as guiding principles rather than binding constraints. On the draft Constitution in 1948, he commented: “While we make a Constitution which is sound and as basic as we can, it should also be flexible and for a period we should be in a position to change it with relative facility.” Already the man in charge of running the nation, Nehru was not above changing the law to implement socialist planning.
The opportunity arose sooner than expected. The provisional Parliament amended the Constitution within 18 months, even before the first general election. And this was no minor amendment. The first amendment added restrictions on freedom of expression, guaranteed under Article 19(1)(a), to suppress extremist publications for public order. It provided exceptions to Article 15, which guaranteed the prohibition of discrimination, to allow for special provisions for backward classes and scheduled castes and tribes. It curtailed Article 19(1)(g), which guaranteed the right to practice any profession or carry on any business, to enable state ownership and control of key sectors of the economy. And to enable large-scale land reform, it removed some restrictions on the state’s power to take property, by adding exceptions to Article 31.
During parliamentary debates in 1951, Nehru argued: “A Constitution must not be made a plaything of some fickle thought or some fickle fortune. At the same time we have in India a strange habit of making gods of various things… If you wish to kill this Constitution make it sacred and sacrosanct.” To Nehru, socialist planning would create real progress and economic development, which was more important than inconvenient rights guaranteed on paper.
The addition of Article 31B in the first amendment was the very worst of these legal manoeuvres used to undermine the Constitution. It created a special list called the ninth schedule, to which laws once added, were fully protected against any challenge in a court of law, and which could not become void on grounds of violation of any of the fundamental rights!
In the first amendment, 13 laws were added to this list. Nehru clarified to Parliament: “We do not wish to add to it...the schedule consists of a particular type of legislation (land reform laws), generally speaking, and another type should not come in.” In 1955, the fourth amendment added seven laws, including laws regulating insurance, railways, and industries. The seventeenth amendment, Nehru’s last important legislation, did not pass in the Lok Sabha in April 1964. Reintroduced on 27 May 1964, it was hastily passed after his death, adding 44 laws to the ninth schedule.
While critiquing Nehru’s methods, it must be said that land reform was the single-most important agenda at the time. If enforcing the Constitution had prevented land reforms, the people may not have accepted the Constitution, and perhaps changed the Constitution completely. Nehru’s compromise created widespread acceptance of the Constitution, which has endured.
In Nehru’s defence, he naively believed that those in public office served to further public interest. In 1949, while discussing drafts on fundamental rights, Nehru argued: “One presumes that any Parliament representing the entire community of the nation will certainly not permit a fraud on its own Constitution and will be very much concerned in doing justice to the individual as well as to the community.”
This turned out to be wishful thinking. The legal manoeuvres legitimized by Nehru were subsequently used by Indira Gandhi to protect her power and to override the judiciary and the Constitution. In 1975, the Allahabad high court found Indira Gandhi guilty of electoral malpractice, and invalidated her election to Parliament. Soon after, she declared Emergency, and passed the thirty-ninth amendment to protect the election of the prime minister from judicial review, and added newly amended election laws to the ninth schedule. Nehru’s irreverence for the Constitution had opened the gates for political actors to change inconvenient rules, a legacy Indira Gandhi carried to its extreme conclusion.
If Nehru were alive today, he would probably lament the state of constitutional rules and the resulting political opportunism, and reconsider his constitutional irreverence. He would perhaps warn his tribute writers to avoid the Indian habit of “making gods of various things,” including him, and instead urge them to learn from his mistakes.
Shruti Rajagopalan is an assistant professor of economics at State University of New York, Purchase College.
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