The uneasy birth of India’s Constitution

Two weeks past the birth of the new republic, the government was already running afoul of constitutional provisions that it had drafted only a short while ago. On 8 February 1950, exactly fourteen days after the new Constitution came into force, the Bombay High Court struck the first judicial blow by releasing suspected communists who had been detained indefinitely under the Bombay Public Safety Measures Act, finding that such open-ended preventive detention ran counter to constitutional provisions.

What had happened was this: In May 1949, twenty-eight alleged communists had been detained in Bombay under orders issued by the commissioner of police using powers conferred by the draconian Bombay Public Safety Measures Act. Detained without charge, the unfortunate detainees languished in prison without a trial for eight long months, even as the country’s representatives debated high constitutional principles and drafted independent India’s new Constitution. As later events in Salem showed, the threat of a grisly death at the hands of the police was ever present. With nothing but the government’s whim as a cause, no access to mechanisms of justice, no possibility of parole and little chance of reprieve or release, the twenty-eight detainees faced the bleak prospect of unending detention as 1950 dawned. Almost two years after independence, with democracy on the anvil, little seemed to have changed for those on the receiving end of government power and police batons.

On 26 January 1950, the situation was turned on its head in ways that no one—government or dissident, police or detainee—had ever anticipated, let alone prepared for. The new Constitution expressly forbade indefinite detention under Article 22, which required an advisory board to approve detentions beyond a period of three months. That heavy-handed state repression could not go hand in hand with the new republican Constitution now became glaringly obvious. Indefinite and open-ended preventive detention was conspicuously and unarguably unconstitutional. The chapter on fundamental rights handed these detainees a powerful new tool to check the dominance of the government, and make a bid for freedom.

Sixteen Stormy Days—The Story Of The First Amendment To The Constitution Of India: By Tripurdaman Singh, Penguin Random House India, 288 pages, ₹599.

As the Yale historian Rohit De has argued, the Constitution, a document of high principles and supposed elite consensus, came alive in the popular imagination as an avenue to renegotiate the relationship between the rulers and the ruled, between ordinary citizens and officers of the state. The detainees were no longer subjects seeking the government’s leniency and clemency; they were free, rights-bearing citizens, newly empowered by the Constitution written in their name, with the ability to knock on the doors of the highest court of the land to demand the liberties guaranteed to them. Suddenly, there was a power beyond the government, beyond the state itself: the power of the sovereign promises that the people of India had made to themselves, which the government, watched over by the courts, was duty-bound to uphold. Taking these promises to heart, the twenty-eight detainees took their battle to court.

On 6 February 1950, in one of the first major invocations of fundamental rights, the detainees filed a petition before the Bombay High Court challenging the validity of the Bombay Public Safety Measures Act ‘in so far as it relates to the detention of a person for more than three months without the opinion of an Advisory Board as required by the Indian Constitution (under Article 22)’. No such advisory boards existed. Caught unprepared, the state found it impossible to fight back. There was a short hearing on 7 February, at which the Bombay government argued that the Constitution could not be applied retrospectively, despite this principle of its applicability to all existing laws being firmly enshrined in the Constitution itself. Predictably, the court refused to buy the government’s flimsy arguments and on 8 February 1950, a full bench set aside the orders passed by the commissioner of police. The court took the opportunity to warn the police against using such ‘public security measures’ as a cloak and guise to override ordinary criminal law, making no bones about where judicial inclinations lay.

If this wasn’t embarrassing enough for the new democratic government, other setbacks soon followed. The Opposition, led by the Socialist Party and the Peasants and Workers Party demanded the immediate repeal of public security measures in view of their manifest incompatibility with constitutional ideals and civil liberties. Two days later, the same Bombay High Court held that the government had no power to extern a person from the province under the Bombay Public Safety Measures Act. The Allahabad High Court declared that the wide-ranging detention provisions in the UP Public Safety Act were inconsistent with the Constitution. The Patna High Court, which, on 19 January—exactly a week before the Constitution came into force—had upheld the Bihar Public Safety Ordinance, had a change of heart on 15 February and declared the entire act ‘ultra vires’ of the Constitution and hence void. Indefinite preventive detention with no recourse to appeals was effectively consigned to history.

Sardar Patel, the man who had piloted the chapter on fundamental rights and established the principles of their foundation, was caught in a bind. For the tough, no-nonsense home minister responsible for the new republic’s security, the choice was stark. Support civil liberties and allow preventive detention to end, as Opposition figures demanded? Or prevent the erosion of the coercive power at the government’s disposal, as he and his ministry desired? He plumped for the latter. Facing armed communist rebellion in Telangana (and the prospect of it elsewhere), habituated to heavy-handed and repressive methods, still in the process of coming to terms with the new constitutional order, the Government of India scrambled to undo the damage to its legal arsenal.

A new Preventive Detention Bill was hurriedly drawn up to bring the various security acts in the provinces into one central act conforming to the preventive detention provisions in the Constitution. Advisory boards were swiftly created. Moving the bill in Parliament, Patel described it as an emergency legislation against communists, who ‘constituted a danger to the existence and security of the state,’ which, as he observed, ‘cannot deal with them under the provisions of ordinary law.’ The safety and security of the newly created republic apparently could not be defended without such drastic legislation—not even against its own citizens in peacetime.

The new legislation was unanimously passed on 25 February 1950 after Patel threw his weight behind it. But it also became clear that Parliament was not entirely comfortable with such repressive legislation. During the debate, Rohini Kumar Chaudhary gave vent to the frustrations of many when he dramatically rose to say that ‘had not the Sardar been the author of the Bill, I would have called it a black bill’, demonstrating the lingering apprehension in certain sections about the government’s inability to work within the bounds of ordinary legislation. Curiously, however, or perhaps predictably, instead of supporting the courts in doing their job—striking down legislation inconsistent with the Constitution that he himself had drawn up, and upholding the principles he himself had laid before the Constituent Assembly—the home minister took the opportunity to complain that judicial pronouncements were creating major difficulties in the states. For those watching the government’s attitude towards constitutional morality, it was not a good omen.

How deeply the Sardar held these views is impossible to determine with precision. But the fact that he chose to forego the chance to support the courts indicates a broader sense of annoyance with being held back by constitutional provisions and judicial procedures, and a prioritization of the needs of the state over the freedoms of the individual. Prime Minister Nehru and Deputy Prime Minister Patel differed over many great questions of policy. The use of sweeping powers under the public safety measures, employed in the fashion of their colonial predecessors, was not one of them (a hesitant Nehru’s protestations that they should not function like the British government notwithstanding). Their commitment to civil liberties and individual freedom, or the lack thereof, represented a rare consensus between the two giants of Indian politics.

This exclusive excerpt is published with permission from Penguin Random House India. The book will be available from 1 February.