If you had your school education in India, you must have been fed every single detail (real and imaginary) about the role of the Congress party in attaining freedom for India. However, chances are that you have been told little or nothing about the Congress party’s war on freedom that they fought in earnest starting from 1950. Since this is the week that leads up to June 25, the anniversary of Madam India / Indira Gandhi declaring Emergency, it seems like a good time to tell this story.
Since the Congress’ War on Freedom was a long and protracted conflict, I have tried to break it down into a series of steps. Please keep in mind though that I am neither a historian nor a legal scholar, so there might be several others steps that I don’t know about. I apologize in advance for any such omissions.
(1) The war begins : Preventive Detention Act (1950)
The Constitution came into force on Jan 26, 1950, officially making Indian a sovereign republic.
“Preventive Detention” meant that people could now be picked up by the state and thrown into jail if the government was satisfied that they might commit certain crimes.
My favorite thing here is how prompt Nehru was in passing this Act on Feb 25, 1950, giving a middle finger to individual freedom within a month of the Constitution coming into force. What a rocking start for Indian democracy under the guidance of the Dear Leader…
Also to be noted is that the Act was initially to remain in force for just one year. At the end of the year, the ruling party wanted more and more and the act just kept getting extended over and over all the way till December 31, 1969 (and it was made permanent in a new form after that : we’ll get to it later) . From one year to twenty years. Power once taken from the people is not easily returned.
(2) Free Speech dies quickly : First Amendment Act, 1951.
During the period 1949-50, the Indian judiciary delivered two significant whacks to the Congress Party’s censorship initiative. The first involved a Delhi government bid to gag the RSS mouthpiece Organiser. The other was related to a Madras government bid to gag the Communist inclined magazine called ‘Crossroads’.
Within a week of losing in court, Home Minister Sardar Patel complained bitterly to Nehru, saying that the ruling:
“knocks the bottom out of most of our penal laws for the control and regulation of the press.”
Yeah! No kidding! [Insert ironic laugh here]
Again, the Congress party wasted no time. They decided that enough was enough and it was time for India’s young constitution to see its first ever amendment.
The First Amendment did the following two things, both essential steps in the War on Freedom.
(a) First, it imposed “reasonable restrictions” on free speech. The government now gave itself sweeping powers to curtail speech on the grounds of preserving “public order, decency or morality”. The moral police became the official police, with the full backing of the government.
The super highway of freedom was now reserved for the state and its preferred notion of “decency and morality”. The people were relegated to the sidewalk with its “reasonable restrictions”.
If it is any consolation, I assure you that Free Speech died a quick and painless death after only one year of the Republic. It didn’t have to suffer too much.
(b) The second part thing that the Amendment did was more mischievous. The Amendment added a new Schedule to the Constitution : the Ninth Schedule.
The Ninth Schedule was like a charmed coat of armor protecting a mythological hero. Any law that the government decided to put inside this newly created Ninth Schedule would no longer be subject to judicial review (Article 31-B).
Feel like doing something unconstitutional? Just gift wrap it and put it inside the Ninth Schedule. It will magically get immunity from all legal challenges. Clever, no?
We will see later how this gem of legislation was passed down the family from father to daughter and came in really handy in 1976.
Fun Fact: In a landmark judgement, a nine judge bench of the Supreme Court decided in 2007 to remove such blanket immunity for stuff placed in the Ninth Schedule.
(3) The First Emergency (1962 — 1968)
Well, we can’t hold this one against them, right? After all, you would need some emergency powers during the five year period of the Indo-China war from Oct 1962 to Jan 1968.
Wait, what? A five year war between India and China? When did that happen?
The Indo-China conflict lasted about a month. But the Congress used it to impose a five year emergency. Maybe they just conveniently forgot to give us back our Fundamental Rights.
It is perhaps important to explain here what exactly happens to our rights during an Emergency. The Emergency powers of the government are mostly described in Articles 358 and 359 of the Constitution.
(a) Article 358 suspends all Fundamental Rights contained in Article 19 (Free Speech, Freedom of the press, Freedom of peaceful Assembly, Freedom to move freely throughout India, etc.) This comes into force automatically when the Emergency is imposed. The mute button on free speech is pressed automatically with no need for a separate declaration.
(b) Article 359 gives the President the power to issue declarations suspending the right to move the courts for enforcement of Fundamental Rights. This means that these rights are not automatically suspended when Emergency is proclaimed. The President must give explicit orders to suspend these rights.
It should be noted that the Emergency Articles 358 and 359 were substantially weakened after the 44th Amendment Act, 1978. What I have described above is the law as it used to be when Nehru imposed the Emergency in the 1960s and when Indira / India Gandhi imposed it in the early 1970s.
Five years of emergency for a one month war. So much for liberty!
(4) Maintenance of Internal Security Act (1971)
Remember how the Preventive Detention Act (PDA) of 1950 was allowed to expire in December 1969? Now why would Indira / India Gandhi let go of such delicious power?
The answer lies in the fact that the PDA (1950) had one very annoying provision : it was temporary. Every few years, the legislature would have to go through the exertion of having to renew it. Although the original act which was intended for just one year had no trouble getting renewed for twenty years, such exercises that are even of cosmetic value to democracy have no place in India / Indira Gandhi’s scheme of things.
Now we are talking! Ye hui na baat!
The Preventive Detention Act was now enacted as a permanent statute in the form of the Maintenance of Internal Security Act (MISA).
Atal Behari Vajpayee, Lal Krishna Advani, Devi Lal, George Fernandes and Lalu Yadav are some of the big names that were arrested under MISA.
It should be noted that the MISA had nothing to do with the Indo Pak war of 1971. The MISA was passed in July of 1971 as a permanent statute, whereas the Indo Pak war happened in December of 1971.
The ground had been fully prepared. Two decades after 1950, it was time for Indian democracy to die. Only the final blow was left. In the title of this post, I mentioned TEN years of Emergency. We have only yet accounted for FIVE. We’ll talk about the other FIVE years tomorrow. And that of course is the juiciest part. Thanks for reading 🙂