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1951 - When India Lost Its Freedom, Yet Again! PDF Print E-mail
Written by Hanumant's Law Journal   
Monday, 10 December 2012 20:37

India has been ruled by some or the the outsider every now and then throughout past 1000 years. It is a wonder how such a huge landmass and a huge population was ruled over for such a long time. Anyway, this on and off cycle of subjugation seemed to have ended in 1947.

But just because the land was free of colonial masters didn't mean that there was no need for it to be governed. It was still the same huge land with same huge population. On top of that, the now free people wanted to realize their potential, their ambitions. People were ecstatic. They wanted to enjoy their hard earned freedom. India was finally a free society with no controls. The adoption of the Constitution on 26th Jan 1950, which gave several fundamental rights to the population was like adding fuel to the fire. The people seemed to have gone berserk exercising those rights.

So how do you govern and control such people? It shouldn't be a surpise if the tools and techniques developed by the British to rule over Indian subcontinent, could still be used by the new ruler, i.e. the Govt. of India! And that's exactly what it did. It used the same weapon that the Britishers used to rule the people. And that's when we lost our freedom yet again. What the govt did at that juncure was so subtle that we never even noticed it but its implications were so profound that we are pretty much going back to square one of subjugation and that too by our own. Here is what happened.

The Beginning

Article 19 of original consitution that was adopted on 26th Jan 1950 gave the most important of all fundamental rights to the people of India. That is the Right to Freedom of Speech. This is not some itsy bity thing. Freedom of speech is the ultimate fruit, the Holy Grail, the Amrit of the Manthan for the freedom struggle. No society that limits this right has progressed, ever. Never ever.

Dr. Ambedkar and his team got that right...well, not entirely. The original Article 19 (1) (a) said, "All citizens shall have the right to freedom of speech and expression." and the "not entirely" part is contained in another sub clause 19(2), which said, "Nothing in sub-clause (a) of clause 1 shall affect the operation of any existing law insofar as it relates to or prevents the state from making any law relating to libel, slander, defamation, contempt of court or any matter which offend against decency, or morality or which undermines the security of the state or tends to overthrow the state."

So during 1950, there was a newspaper named "Cross Roads" published in Madras by a guy named Romesh Thaper. This newspaper had communist leanings and it used to publish articles that were critical of the Goverment. Some of the articles even caused minor riots, not just in Chennai but as far as Mumbai. The Government of Madras banned it and Romesh Thaper took the matter to the Supreme Court (FYI, Article 32 gives you the right to directly approach the Supreme Court if any of your fundamental rights is being violated.).

The Govt. claimed that the ban is constitutional because the right to Freedom of Speech under Article 19 (1)(a) is not unlimited. It is restricted by 19(2). Thapar's newspaper was a threat to public safety and public order and was thus not protected. Notice that the original article 19(2) did not contain the phrases "public safety" or "public order".

The question before the court was whether the restrictions imposed by 19(2), specifically the words, "undermines the security of the state or tends to overthrow the state", can be construed to mean "public safety" or "public order".

Kudos to the wise men hearing the case. They stated that "public safety" had a much wider connotation than "security of the state", as the former included a number of trivial matters not necessarily as serious as the issue of the security of the state. They concluded that unless a law restricting freedom of speech and expression is directed solely against the undermining of the security of the State or the overthrow of it, such law cannot fall within the reservation under clause (2) of Article 19. The court, with majority in favor of Romesh Thapar, held that the ban was unconstitutional. Indeed, anything can cause people to get riled up but that does not necessarily threaten the existence of the state. A riot does not necessarily mean that rioting public wants to overthrow the state. It is the state's responsibility to control the rioting public and maintain law and order but not at the cost of freedom of speech. God bless the Supreme Court.

So what was the problem? The problem was that this didn't go well with the masters of the country. They couldn't fathom the idea that anybody should be able to say anything against anybody and yet not be thrown in jail. They couldn't digest the fact that a common man was now so powerful as to question the policies of the prime minister of the country.

This brings us back to the original premise with which I started this article. How do you control the large masses of people who have the right to question you? How do you control such masses without hanging the "trouble makers" from a tree? The right way to do that is to educate the masses and make people realize how important it is to respect everyones right to freedom of speech no matter what they say, to invest in law and order machinery, to increase the efficiency of the court system. Of course, that would take a lot of time and lot of efforts. Even a human being takes 18 years to mature. India was only 3 yrs old. All it needed was time to learn to walk and not the crutches. It was the right age to let the concept sink in and let masses learn. The cost would have been worth it.

Alas, that was not meant to be. The masters of the country chose the cheap and the wrong way. It was obvious to them that this fundamental right to freedom of speech and expression was thorn in their way to unbridled exercise of power. Just like the problem the British had faced, which they solved most effectively and ruthlessly- you speak, you'r hanged on the charge of sedition. But how do you do that without being labeled a dictator or without being seen as a despot? How do you go against the Supreme Court?

You do it by amending the constitution under the pretext of, well, maintaining law and order. You take away that right from the people for "their own protection".

The Wrong Turn

On 10th May 1951, the constitution was amended for the first time. The preamble of the amendment says it all -

During the last fifteen months of the working of the Constitution, certain difficulties have been brought to light by judicial decisions and pronouncements specially in regard to the chapter on fundamental rights. The citizen's right to freedom of speech and expression guaranteed by article 19(1)(a) has been held by some courts to be so comprehensive as not to render a person culpable even if he advocates murder and other crimes of violence. In other countries with written constitutions, freedom of speech and of the press is not regarded as debarring the State from punishing or preventing abuse of this freedom. The citizen's right to practise any profession or to carry on any occupation, trade or business conferred by article 19(1)(g) is subject to reasonable restrictions which the laws of the State may impose "in the interests of general public".

Clause 19(2) was amended to read:-

Nothing in sub-clause (a) of clause 1 shall affect the operation of any existing law insofar as such law imposes reasonable restrictions on the exercise of the right conferred by the sub clause in the interests of the security of the state, friendly relations with foreign states, public order, decency, or morality or in relation to contempt of court, defamation, or incitement to an offence.

The Aftermath

There was no aftermath. There was no opposition. There was no protest. Nobody noticed that the whole country was just robbed blind. The amendement was swift and subtle.

This small change, in my opinion, was the most important turning point in the history of India. A hundred yrs of freedom struggle was negated on this day. This small change essentially made India grow into a crippled democracy. People are killed, riots are incited, private property is destroyed exactly because India hasn't at all learned how to respect the right to freedom of speech and express. It should not come as a surpise that people are arrested for comments made on Facebook, for publishing cartoons, for speaking out against oppression. It is just a natural progression of "public order, decency, and morality".

The price that we were made to pay for "our own protection" was our freedom. We were made to sacrifice our freedom just so that nobody would criticize our religions, our beliefs, our morals, our idols, and above all, our political masters.

References

  1. http://www.iclrs.org/docs/Romesh%20Thappar%20v.%20State%20of%20Madras.pdf
  2. http://kafila.org/2010/12/06/how-sedition-crept-into-the-constitution/
  3. http://indiacode.nic.in/coiweb/amend/amend1.htm
  4. http://www.sarai.net/publications/readers/04-crisis-media/56lawrence.pdf

Comments (10)
  • Salman
    Being a law student myself and having studied history in graduation, I think it would be wrong to say that India was ruled by "outsiders" every now and then throughout past 1000 years. It is a very subjective term. I still wonder, by what yardstick, especially Indians, judge people as outsider or insider. Even Aryans came from outside, but how many Indians are really ready to admit it. The term outsiders has been invented to denote the Other, as opposed to the insider, the same. It is the part of process by which societies and groups exclude 'Others' whom they want to subordinate or who do not fit into their society. Lawyer/law students should not have such such jingoistic. Otherwise, the rest of the article is absolutely flawless.
  • admin
    Thank you for your comment. IMHO, there is a very simple test for outsider/insider. If you attack a people, loot their wealth, and take it to your place, you are an outsider. Plain and simple.
  • Salman
    Seen that way, rulers from Delhi Sultanate or Mughal Dynasty didn't actually indulge in looting or plundering of India's wealth. However, the same could not be said for the Britishers, Nadir Shah et al. Anyway, I don't see any point in being bitter about injustices of the past.
  • admin
    The article makes no claim about who is and who is not an outsider. It merely obliquely refers to the fact that India has been ruled by outsiders, which is true. It is you who raised this irrelevant issue of who is and who is not an outsider. And I am not sure why you brought it up.

    Whether delhi sultanate or mughal dynasty is outsider or not can be discussed separately. It has nothing to do with this article.
  • Parag  - Parag
    Judiciary at that time, a Kafir cannot submit his testimony in case muslim accused. Two kafir's testimony is equal to one muslim. Case punishable with death sentence no kafir can testify guilt of accused. If any criminal want to save his life from sentence he can, he have to convert himself

    And these are few examples.
  • Indra
    sir,in country where a small comment on other religions rages outrage,isn't it not better thing to restrict the mouths of oppurtunists.
  • Naman
    The fact is that there is no real freedom in India. Your boudaries of your freedom are determined by how much money you have or how powerful you are. The mentality of common indian public is no different from pakistanis. The policial class routinely taps phones and police the websites for "objectionable" content and ordinary people ranksack homes, burn public property, assault other person just because that person said something objectionable.

    There is no real police, there is no real govt.. It is Andher nagari chaupat raja, and idiot praja.
  • manjunath  - Andher nagari chaupat raja, but certainly not idio
    A child gets enrolled in the government’s armed forces much against the international rules of child soldiering. The government itself lies to an international forum that the government does not enroll children in the government armed forces. So, this child goes on to serve for eight years in the most volatile places of the country and was discharged as ‘services no longer required’. Now the child who is by the time of his discharge 24 years old does not know what hit him. He goes on representing his case (let’s call this case A) to all the government departments and political leaders but to no avail. After exhausting all representations, he files a writ in the high court and the single judge dismisses the case as ‘no merit’ citing a similar case (lets call this case B) decided by the apex court. Now read very carefully.

    Case B was dismissed by single judge citing there were no procedural lapses. The petitioner went on appeal and the division bench overturned the single bench judgment and ruled that the discharge is illegal (I support this judgment) but the government went on to appeal to the apex court and the apex court ruled in favor of government of india.in apex court the petitioner was government of india and respondents were the individuals who were discharged from service. Now the fact remains that the government is the keeper of all policy letters and the government misled the apex court by not producing relevant documents/policy letters. The respondents did not even know that there are relevant documents/policy letters which existed to prove that their discharge from service was illegal. When the case A was dismissed that too citing a similar case as decided by the apex court, the petitioner gave up and went about his life but did not believe his discharge was legal and so when the RTI act came into existence, the case A petitioner got all relevant documents and approached the legal fraternity. By this time the appeal period of 90 days was long gone and was advised to file slp in apex court. An apex court lawyer was hired and a slp filed. But on the very day the slp was listed, it was dismissed and the reason given was delay and merits. The lawyer has filed a review petition and presently the review petition status is pending. This whole exercise took 17 years after the discharge.

    As per the Government policy, this discharge from service is dishonorable discharge and as such principle of natural justice should have been followed strictly and the armed forces do not follow the principle of natural justice at all. The funny part is the armed forces claim the discharge to be discharge simpliciter in few cases and in others they claim the discharge to be dismissals though the rule that they follow is same.

    Now you may think this is just one case but there are thousands of cases and the armed forces are indulging in mass human rights violation and fundamental rights violation and they always take the case as decided by the apex court as an example that the apex court has not found any fault with the law and this was done by misleading the supreme court. These violations are ongoing even today. So what is the solution for this mass human rights and fundamental rights violation? the boys who wanted to serve the country are persona non grata in their own country due to the armed forces defective laws.where and who to approach for solution when the apex court itself was misled in deciding one case and this case is taken as a example to decide all other cases and till date there are thousands of men who are living a life of stigma much against the human rights and fundamental rights and the most horrifying fact is that these men do not know that their rights and life are jeopardized.



































  • Manoj  - Nice article
    I think the indian people do not value their individual rights, and are actually happy to surrender them in return of being part of 'in-group' Maybe it's a lot to do with being subjugated for ages - first by indian kings, then by muslim invaders then by British, and later by a neo-colonial government.

    That is at the root of protests, even violent protests, based on emotions rather than facts. And everyone believes they are underprivileged - the lower castes, the upper castes, the christians, the rural, the urbans, the tax-payers, those on doles....the list goes on and on. Muslims rise up at someone's rally cry of 'Islam is in danger', women take up arms at a NCWO chairman using the word 'sexy', politicians and police do a lot of moral policing - the msot arrested are prostitutes, FB posters and the poor, no actual protection of the country and it's people either from foreign terrorists, enemy countries or from criminals within.

    in 1951, we saw precisely this - a popular poltiician above the law and later his daughter who amended the constitution 98 times, including elimination of property rights and freedom from persecution - she did this all and was repeatedly voted back into power. JL Nehru curbed right to free speech, but also disbanded jury trials which resulted in the glacial judicial system in India today.

    So we dont have the rule of law in India, but the rule of traditions, religions and personalities widely accepted to have divine right. If 20% indians (illegals, poor, rural) abrogate their voting rights in return for some money and another 20% (educated urban voters) dont bother - they dont think it's their duty to develop a 'people's government'. So we should wonder whose will actually governs the country - the people, or the 'ruling class'.

    Democracy anywhere is a precarious balance, but the naivete of constitution makers and feudal behavior of the indian by name, foreign by education and ethics politiians have well and truly ended India's chances of becoming a developed, civil and modern society.

    Unless there's a Black Swan event, I think India can descend into a warring tribe society, similar to those in the most impoverished aprts of Africa, within next 10-15 years. The elephant and the tiger are no longer in the same race.

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Last Updated on Monday, 10 December 2012 20:48
 

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Hanumant Deshmukh
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