Indira, and the ‘samvidhan change karo' moment
June 25 marks 50 years of the Emergency. In this excerpt from his new book '
and the Years That Transformed India', historian
Srinath Raghavan
writes about the PM who wanted to be president
Not content with excising rights guaranteed by the
Constitution
, the Emergency regime also contemplated far-reaching constitutional changes.
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Dictatorships, it has been argued, can be 'commissarial' or 'sovereign'. A commissarial dictatorship seeks to defend the existing constitutional order by suspending normal laws. A sovereign dictatorship, by contrast, seeks — in the name of the people — to establish a new constitutional order. Indira Gandhi imposed the Emergency claiming the former, but she gradually began moving towards the latter. The underlying impulse was to cement the dominance of the executive and to institutionalize her Caesarism.
The vehicle for both was the idea of a directly elected executive presidency. As it happened, she did not go all the way there; but she did succeed in molesting the Constitution.
Three distinct impulses prodded the prime minister to consider deeper changes to the Constitution. The first came from sycophantic partymen who believed, after the Allahabad high court judgment, that the judiciary must be cut to size. The second came from individuals in the govt and the party who had wanted all along to roll back judicial restraints on the Parliament's powers to amend the Constitution.
And the third came from bureaucratic advisors with considerable governmental experience. As early as mid-August 1975, there was vague talk of taking a second look at the constitution. Asked what changes she was contemplating, Indira Gandhi said, 'I am not thinking in terms of a Constituent Assembly or a new Constitution. A second look does not mean an alternative Constitution.' Yet she also felt that 'we can and should have a look at the provisions and procedures we have.'
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Proposals for more extensive and far-reaching changes came from B K Nehru...Nehru felt that democratic institutions on the British model had 'not been able to provide the answer to our needs.' …The model he had in mind was the French Fifth Republic. This had been the outcome of Charles de Gaulle's ascension to power — by coup d'état — in May 1958 against the backdrop of a crisis-ridden Fourth Republic and his decision to create a new constitutional order that was ratified by a referendum.
Drawing on the Gaullist model,
Nehru
suggested a directly elected president of the republic. However, unlike in France, the president should have only a single, seven-year term. Parliament should be elected on a system of proportional representation (not the English first-past the-post system) — as should state legislatures...As for the judiciary, he advocated 'American practice' — presumably appointing Supreme Court justices for life.
And yet he wanted to limit the scope of prerogative writs. He also asked the PM to examine the 'possibility of making fundamental rights non-justiciable.' To strengthen rule of law, he suggested increasing the number of lower courts and specialized tribunals. Turning to the press, he observed that there was 'no reason why, like many other countries, we should not have a Press Law to make the press responsible.' Further, he advised Indira Gandhi to 'strengthen greatly' the existing libel laws: 'define more closely what is meant by bringing Government into contempt and hatred, and make it an offence to publish unproved statements without taking sufficient steps to be satisfied about their truth.'
Nehru suggested appointing three commissions — on the Constitution, the judiciary, and the press — to report in four months. Parliament could discuss their recommendations in the summer. She could then dissolve Parliament and hold elections in the autumn of 1976. Nehru did not envisage a French-style referendum on the new constitution: after all, there had been none on the original Constitution of 1950.
So beholden was the party to the PM that when Nehru met senior Congressmen — Jagjivan Ram, Swaran Singh, and Y B Chavan — they readily agreed to support these changes if she wanted them…Nehru then met and sounded out the only two non-Congress chief ministers.
M Karunanidhi of
was unimpressed. It was evident to him that Indira Gandhi would be the first president. By contrast, Babubhai Patel of Gujarat bubbled with enthusiasm: 'there could be nothing more suited to Indian conditions' than such a constitution. The Congress CM of Punjab (later president),
Zail Singh
, said that whatever Indira Gandhi wanted was fine by him. The CM of Haryana, who was close to
Sanjay Gandhi
, was blunter still: 'Get rid of all this election nonsense.
If you ask me, just make our sister President for life and there's no need to do anything else.' When Nehru reported back to Indira Gandhi, she remained noncommittal.
In the event, the prime minister passed on Nehru's letter to the troika of advisors to whom she had turned in the past: party president D.K. Barooah, Bengal chief minister S.S. Ray, and party treasurer Rajni Patel. The last approached another Congressman from Bombay, AR Antulay…The outcome of their confabulations was a shoddy paper titled 'A Fresh Look at our Constitution: Some Suggestions'..
. Drawing on American, French, and other European practices, it proposed a presidential system.
The president would be the chief executive of the nation, directly elected for a six-year term. Unlike Nehru's proposal, it gave no specified limit on the number of terms in office. 'Since our President is thus elected by popular mandate,' the paper maintained, 'he should . . .enjoy more authority and powers than even USA President.'
This was precisely what the paper proceeded to suggest. Half of the council of ministers appointed by the president would be members of parliament, hence 'unlike the USA the legislature will not be too independent of the executive.' The president would exercise more sweeping powers over the judiciary. The president would appoint all judges in consultation with the council of ministers or the state governments. A 'Superior Council of Judiciary' would be chaired by the president with the chief justice of India and the law minister as vice chairpersons..
.Apart from deciding 'administrative matters pertaining to the judiciary,' this council would be 'the authority to interpret laws and the Constitution; as also to determine the validity of legislation.' In rendering the constitutional courts toothless, the document cited such shining examples of constitutional democracy as Greece and Guatemala.
The prime minister passed on a copy of this confidential document to Dhar, who recognized that it 'twisted the Constitution in an unambiguously authoritarian direction.'
Barooah overreached himself when, in a bid to test the waters, he leaked the document. The reaction was almost uniformly critical, leading Indira Gandhi to distance herself from its contents.
Edited excerpts courtesy of Penguin Random House India
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