Human Rights

Punjab and Autonomy

Ram Narayan Kumar. Annual Seminar of the Institute of Sikh Studies Keynote Address, November 5, 2000

I feel honoured for this opportunity to participate in today’s discussion, and look forward to learning from the percipient presentations and discursive churning of thoughts in the debate, which will follow on this important subject.

Punjab and autonomy: The juxtaposition of the theme for the discussion today suggests to me a restorative intent. It implies an urge to remedy those distortions of the twentieth century history and the resultant malevolence in the matrix of political relations, which not only stultify and dissipate the civilisation potential of the people in this region, but also seem to underlie the legacy of stunted growth, deprivation of democracy and justice, senseless strife, trampling of human rights, and environmental degradation pervasive in the whole of the subcontinent. On the threshold of a new millennium, even as we anxiously ponder about what the future has in store, we cannot but look back in bafflement at the calamitous century now bygone and wonder why with all its promises and potential it has left us with this legacy. We must aim to uncover the elements of the past, which are responsible, so that we may have some chance of guiding our future to be different.

That seems to be the urge behind the juxtaposition of the theme for the discussion today - Punjab and autonomy - two definitive propositions that are, thanks to what I call distortions of history, mere propositions. Punjab ceased to be Punjab in 1947. Thanks to its truncation, only two and a half of those five rivers that give the name Punjab now flow here. Etymologically, it might be more appropriate to call it Do-ab. As to autonomy, the fundamental principle behind the evolution of India’s constitutional history under the British and of our freedom struggle, is now at best the red rag that excites the Taurus of the State to kill any matador who dares to hoist it in the political arena.

Unfortunately, the Indian national interests have from the beginning meant loss and injury to its regions, especially in its peripheries. Unfortunately, and contrary to the original vision, the Indian independence has come to mean subservience [or should I say servitude?] of the States to the Center. These conflicts have their own historical dialectics and inevitable consequences.

The conflict between the national and regional interests, as sanguinely illustrated by the 1947 disintegration of Punjab as a regional entity, and the extinction of autonomy as an operative principle of federalism epitomize the execrations of the twentieth century Indian history, which imprecate all our exertions towards democracy, development and social justice, as if bringing them under a curse. That is history as nemesis.

It is a subject on which I have expanded elsewhere, in my writings, so will not repeat them at length here. But for the sake of contextualizing my stray thoughts on the subject, I would draw your attention to the enormous deception and violence that have served as the foundations of the Indian nation as we know it today. As you all know, the terms of the transfer of power from the British to the Indian hands had been finalized under the Cabinet Mission Plan of May 1946. Under the scheme, the Union’s jurisdiction was limited to Foreign Affairs, Defense and Communications, and to raise the necessary resources to manage them through taxation. The provinces were to be autonomous, with residuary powers of legislation in all other areas, and with their independent Constitutions. This Mission Plan, which promised the independence of India as a united federation and was also acceptable to the proponents of Pakistan, was a logical culmination to a long process of India’s constitutional reforms, which had begun in 1858. The process had succeeded in evolving a representative system of democracy for India in very adverse conditions, a substantial achievement for the reason that it rested on the principles of participatory democracy and political accountability through decentralization, and communal harmony through substantial, as compared to today’s rhetorical, constitutional safeguards, such as separate electorates. And, let me add, these constitutional principles that had guided India’s freedom struggle were not exactly the bequests made by India’s imperial masters. They had been wrested through a fervent struggle for the annulment of 1905 partition of Bengal, and involved a process of political settlement among responsible leaders of various communities, beginning from the Lucknow Pact of December 1916. Under the pressure of the revolutionary stirrings for ‘swaraj’ triggered by the partition of Bengal, the British had to reaffirm, through its annulment, their respect for the principle of provincial self-rule, organized on the basis of regional, linguistic and cultural homogeneity. India’s capital was transferred from Calcutta to Delhi to suggest the policy that the Central government would administer limited subjects of common interests to all the provincial constituents of the federation, in a spirit of neutrality and fairness, without interfering in their internal administration. Gradually over the next three decades, these ideals acquired clearer institutional forms through developments that drew strength from both the official and citizens’ initiatives. The two government of India Acts of 1919 and 1935 developed from the recommendations of private constitutional bodies like various All Parties Conferences, the Motilal Nehru Committee report of 1929, the Muslim League’s Charter of fourteen points, also of 1929, the two Round Table Conferences of 1930 and 1931, with Gandhi attending the second conference. The Cabinet Mission Plan of May 1946 itself evolved from difficult negotiations involving diverse political groups throughout the war years and thereafter.

The history of India’s constitutional evolution before 1947, alternating between adaptations in the periods of social stasis and episodic deviations from the established norms, is well documented, and I shall not go into them now. The main point is when India was ready for independence, the leaders of the Indian National Congress abandoned this whole framework. They did so not honestly, but by taking recourse to deception and violence. Pandit Nehru had been dreaming for his chance to reorganize India on the socialist lines under a strong central government. Nehru and his colleagues of the Congress, as it is now fairly well exposed, sabotaged the Cabinet Mission Plan and instigated the ‘surgical operation’ of partition in 1947 because, as Morris-Jones pointed out, I quote: “It followed that if the Muslims remained as a political force in the State, it could only be at the cost of radical concessions to their distrust, and a weak central government would have been the first of the concessions.” [1]

A popular myth in the Indian political and academic circles suggests that Nehru sabotaged the Cabinet Mission Plan after the Bombay convention of the Indian National Congress on the 6th and the 7th of July, 1946, without Gandhi’s knowledge. I have carefully read the transcript of an interview, marked secret, which Gandhi gave to Norman Cliff, Foreign Editor of the News Chronicle, on his way to Bombay on June 29, 1946, in a train. Gandhi talked to Norman Cliff on the condition that he would not publish the interview in any form, but would use it to interpret his stand to the British officials or in his own articles. Cliff accordingly never published the interview, but circulated its transcript in the official circles. Major Short, the Sikh expert attached to the Cabinet Mission, also received a copy, which is preserved in his Collection at the India Office Records and Library in London. A perusal of the transcript makes three points clear: [1] Nehru sabotaged the Cabinet Mission Plan at his counsel. [2] Gandhi considered a rapprochement between the Congress and the Muslim League impossible. [3] He wanted the British government to transfer the political power, without preconditions, to the Constituent Assembly. [2] Mahatmaji had not read Machiavelli. He was a natural genius.

In Bombay, taking the leadership of the Congress over from Maulana Azad, Pundit Nehru proclaimed that the Constituent Assembly would write the Constitution without any commitment to the Cabinet Mission Plan. The Congress will not agree to put the provinces under the regional federations. It will also not accept the limitations on the powers of the Union government. And, it will not accept the British dictations on the issue of safeguards for minorities. [3] Nehru’s proclamation made its desired impact. Jinnah announced that as the Congress did not appreciate the concessions it had made to keep the unity of India, “the Muslim League had no alternative but to adhere once more to the national goal of Pakistan.” [4]

Pakistan, in the normal course, meant that entire Punjab and Bengal, as Muslim majority provinces, had to be separated from India. This Nehru did not want to happen and, contrary to the popular belief, had been contemplating ways to partition the two provinces for a long time. I have seen Pundit Nehru’s letter to Stafford Cripps, dated January 27, 1946, two months before the Cabinet Mission arrived in India, in which he wrote: “The crux of the Pakistan issue is this: A Pakistan consisting of only part of Punjab and part of Bengal or no separation at all.” [5] Punditji’s letter shows the partition as his own brainchild, not Mountbatten’s.

As the partition seemed inevitable, the Sikh leaders of Punjab asked for an independent Sikh State. The British advised them to keep the unity of Punjab by coming to a settlement with the Muslim leaders over their rights and privileges in the State. But the Congress leaders persuaded them to insist on a partition. They wanted the districts in which the Sikhs and the Hindus together formed majority to separate and to federate with India. The Congress leaders promised that they would not write a Constitution disagreeable to them. Unfortunately, the Sikh leaders acquiesced. Without the agreement of the Sikh leaders on the partition proposal, Nehru could never have sabotaged the Cabinet Mission Plan. Without the partition of Punjab, Pakistan’s borders would have met the outskirts of Delhi. [6] Without the partition, Punjab, now a land of communal truncation and the wounded consciousness of the civil war in its wake that took the toll of 200,000 to half a million deaths by various estimates, would probably have been the most advanced and powerful region in the subcontinent. [7]

We know what the Sikhs lost through the partition. What exactly did they gain for their part in bringing half of Punjab into India? For what I know, they had gained some promises, which the contemporary historians have done their best to obscure and confuse. The promise that they will not write a Constitution disagreeable to the Sikhs is on the record. On July 7, 1946, the Statesman reported Nehru’s statement, which he made at the Congress convention in Bombay, saying: “I see nothing wrong in an area and a set-up in the North wherein the Sikhs can also experience the glow of freedom.” What exactly did these words mean? Did this statement constitute a promise? We know how vehemently Nehru subsequently opposed the Sikh demand for a linguistic State, calling it separatist, anti-national and communal. Nehru’s version of his correspondence with Tara Singh and other Sikh leaders on the subject is preserved in Jawaharlal Nehru Letters to Chief Ministers, Vol. 5, and I will not waste your time by going over familiar terrain. But the accusations rife in the political and academic circles concerned with Punjab today that the Sikhs in India have been agitating with unreasonable demands baffle me. They baffle me because any determination on the subject requires a clear understanding on what had been promised to them. It is a difficult question because the Congress leaders did not commit themselves clearly in writing, except for the commitment on the Constitution which we shall soon examine. But there is this Nehru’s statement from the 7th July 1946 about “an area and a set-up in the North.” I think it is only logical that we should try to understand the meaning of these words with reference to the proposals then being offered to the Sikh leaders by the Muslim League, which they rejected in favour of what the Congress leaders promised them. This would be an interesting but difficult exercise, and we will need a long seminar to undertake it. But let me tax you with some generally known points.

The Cabinet Mission Plan, as you all know, had promised to preserve not only the unity and integrity of Punjab, but also of the Indian federation. It also left the Sikhs in a strong position to turn the scales of political power to their advantage, to bargain for good terms from both the Muslims and the Hindus. Their association with the army alone would have put them in a formidable position in the small regional federation of northwestern provinces. The Muslim League was also not averse to the creation of a Sikh homeland, comprising the eastern districts of Punjab, as a part of the Muslim regional federation. The Mission Plan was also giving them the right to secede and to become an independent nation after ten years, if they wished to. [8] But the Sikhs rejected the Plan.

Following the circulation of the Partition Plan, Mountbatten met the Sikh leaders on April 18, 1947 to ask if they would at all agree to a solution short of dismembering the province. He told them that if they agreed to keep its unity, they should get the right to veto on communal legislation on the Sikh matters and would retain the freedom to secede, after five or ten years, if they felt dissatisfied with their situation in Punjab. The Sikh leaders, including Tara Singh, Baldev Singh and Kartar Singh, refused these proposals. [9]

The “friends of Punjab”, with Pendral Moon and Major Short in the lead, kept up their efforts to persuade the Sikh leaders to give up their insistence to split Punjab. They argued that the partition would not only divide their population, their shrines and properties between the two hostile States, but also destroy their religious identity and their autonomous political aspirations. On April 26, 1947, Jinnah informed Mountbatten that he had received an emissary from Kartar Singh, who wanted to discuss whether the Muslim League would create a Sikh homeland before its federation with Pakistan. Jinnah, as also Liaqat Ali Khan, appeared gratified. They told the Private Secretary to the Viceroy that there would be no difficulties in demarcating the Sikh areas, should they agree to stay in Pakistan. However, when they got down to discuss the proposal in concrete terms, Ismay, a member of the Viceroy’s staff, reported that the Sikh leaders were – I quote -- “in a high state of excitement and remained as unreasonable as ever on all points.” [10] On 7 May, 1947, Baldev Singh informed Mountbatten that the Sikhs would under no circumstances agree to any discussion with Jinnah on the basis of being included in Pakistan. [11] Pendral Moon did not give up. On June 29, 1947, he dispatched a set of concrete proposals, which he had drafted along with Mustaq Ahmed Gurmani, Prime Minister of Bahawalpur State and an ally of Jinnah, to the Sikh leaders. They promised: [1] A separate Sikh unit of eastern Punjab, with rights in the central government of Pakistan equal to any other unit such as Sind and western Punjab, [2] special privileges for the Sikh minority in the western Punjab, and [3] special privileges for the Sikhs in Pakistan as a whole. Baldev Singh responded by demanding that the Sikh leaders will discuss the proposals if Pakistan’s central government agreed to administer only Defense, Foreign Affairs, Communications and Currency. Gurmani said that Pakistan was already a weak and a small State and would never accept these conditions. The last attempt to persuade the Sikh leaders to remain in Pakistan and to keep the unity of Punjab was made by Feroz Khan Noon on June 28, 1947. But as Pendral Moon reported the outcome to Ismay, Feroz Khan met a heavy rebuff. [12]

Do not these proposals, which the Sikh leaders of the time rejected, shed some light on the meaning implicit in Nehru’s 7th July 1946 statement on “an area and a set-up in the North wherein the Sikhs can also experience the glow of freedom?” My intention in referring to the Muslim League’s proposals is not to analyze the wisdom or the motives of the Sikh leaders in rejecting them. I am only trying to point out the perfidy of the Indian leaders and their defenders who disparage the subsequent Sikh agitations for a Punjabi Suba, for constitutional safeguards and autonomy as unreasonable and anti-national. As you all know, the formation of ‘linguistic provinces’ has been a part of the Congress agenda since 1920 and is enshrined in the Motilal Nehru Committee Report. Yet, Tara Singh’s demand for a Punjabi Suba became anti-national. So much for the promises which lured the Sikh leaders to acquiesce in the ‘surgical operation’ that was probably the most violent episode of modern history, not only in terms of loss of life and property, ethnic cleansing, and so on, but also in terms of wounds it inflicted on the natural resources, the developmental potential and the environment in the long term. In the course of becoming India’s breadbasket Punjab has paid a heavy price in its environmental degradation. Its magnitude and consequences have unfortunately not received sufficient attention. But their impact on the future is likely to be fatal. Its forests have disappeared. Its famous rivers, so lyrically described in the ancient Indian literature, do not even flow on their natural course. Developmental utopias of the Indian socialist leaders became responsible for diverting its canal waters to the deserts of the neighbouring States. Its underground water resources are fast getting depleted from their excessive use to sustain its agriculture. Its waters, flora and fauna have probably become irreversibly noxious from the heavy use of pesticides, herbicides, fertilizers and other chemicals. The celebrated success of its Green Revolution which made India a viable country has not led to its industrial growth. Meanwhile, agriculture has progressed elsewhere, and the advancements in agricultural genetics are likely to create new situations of surfeit. Soon India might not need its food produce. Its farmers are already being driven to commit suicides. What might become of the younger generation, adrift, lacking in a sound educational foundation but spoilt by the consumer culture, sentimentally volatile but lacking in direction or leadership? Since 1988, I have spent most of my time in Punjab in body counting, finding out the names and personal details of thousands of mostly young people who disappeared, got killed and illegally cremated after police abductions. Go to the office of the Committee for Coordination on Disappearances in Punjab, and you will find their names filled in our dusty registers in black ink. The State institutions have not even acknowledged what they have done to these young Sikhs of Punjab, let alone redress the wrongs. Mostly, they were young people who were sacrificed at the alter of the Indian State, for its security and integrity, the young men, many misguided, who had a vision of Punjab and its autonomy. I shudder thinking of what future might bring. No, I do not want to speak like a prophet of doom. If possible, we must not allow this vision from ever becoming real. But how?

Well, you are going to discuss Punjab and autonomy. I was referring to the promises, which inspired the Sikh leaders to make a common cause with India at the expense of Punjab’s unity. From the very beginning, the political association between the Sikhs in Punjab and the national mainstream represented by the Congress under Gandhi’s leadership was founded on the Congress commitment, as formalized by its December 1929 Lahore session, that it will never foist a constitutional solution to the vexed communal questions unacceptable to the former. You all know about the repetition of this commitment by Gandhi to Madhusudan Singh, in very persuasive and sentimental terms, before he went to attend the Round Table Conference, and about the Congress Resolution of August 10, 1946, which promised that the Constituent Assembly will not adopt a Constitution unacceptable to them.

The draft of the Indian Constitution was ready for adoption on November 26, 1949. The Sikh members of the Constituent Assembly were angry that it had abolished special privileges for the minorities, which had been available to them under the British. There were to be no more separate electorates or reservations of seats in the legislatures for minorities. They were also unhappy that the new Constitution transferred the powers that previously belonged to the provincial jurisdiction to the Central government. Hukum Singh and Bhupinder Singh proclaimed: “The Sikhs do not accept this Constitution. The Sikhs reject this Constitution Act.” However, their proclamation of rejection had little meaning in a situation that offered them no alternative. Indeed, the Sikh leaders turned out to be very naïve in assuming that the old promises will have any force.

The story of betrayal of the old ideals that had united heterogeneous sections of our society in the common struggle for freedom is a long sad story. We can discuss for days the working of the State institutions under the new Constitution, and the powerlessness of the people of this country, and of Punjab, in preventing their decline into abomination under the tendencies of centralization of power even beyond the framework of what this phony Constitution affords.

Take, for example, the power of the Union to take over the provincial governments under Article 356 which, having been abused more than 120 times, has been much under discussion. As you all know, Punjab became the first victim in June 1951 when Gopichand Bhargava was the first Chief Minister of the Congress Legislative Party. I am surprised to notice that many students of the Centre-States relationship who cite this example of abuse of central authority remain ignorant that Nehru’s unmitigated antipathies for those Sikh leaders who had actually helped him to gain half the Punjab was at the root of the problem. Perhaps, I should not expand on what you all know, but for the sake of the record let me briefly narrate what happened: Gopichand Bhargava’s ministry included Gyani Kartar Singh who, as you recall, had exerted himself more than any other Sikh leader to bring about a rapprochement between the Sikh and the Muslim leaders to preserve the unity of Punjab. Ultimately, he had to give in to Master Tara Singh and his own protegee Baldev Singh who had become Nehru’s lackey. Anyway, Nehru did not like Kartar Singh and asked Bhargava to dismiss him from the ministry on the ground that it was necessary to alleviate the Hindu-Sikh tension then supposedly rife in the rural areas. [13] When Bhargava did not immediately act on this instruction, the Congress Parliamentary Board issued him an ultimatum, with Nehru threatening to resign if Bhargava, who had been Sardar Patel’s confident, did not immediately comply. Bhargava resigned on 16 June and, in fact, personally carried Governor C. M. Trivedi’s letter to Delhi recommending the President’s rule. [14] President Rajendra Prasad protested that a non-constitutional body like the Congress Parliamentary Party, which had no business to meddle in Punjab, was allowed to create an artificial emergency and dismiss the State government when the Chief Minister clearly enjoyed the confidence of the Legislature. The action was against the spirit of the Constitution, he told Nehru who, however, was not embarrassed and went on to defend his action by pointing out that the Punjab government was losing contacts with the public and was under the influence of non-Congress elements. [15] It took Nehru nine months to groom Bhim Sen Sachar as the next Chief Minister. For this period, Punjab remained under the President’s rule. Should we wonder that the precedent created by Nehru to use the power of Article 356 and the office of Governor for political intervention in the States has been faithfully followed by the successive Prime Ministers?

In the course of the discussion today, you will be talking about the substantial issues of the Centre-State relationship, to evaluate their working and the harm they have inflicted on the potential of economic development, democracy, social justice and the rule of law in the States, probably irrevocably. You will talk about the colossal disaster of the Planning Commission. You will analyze how the Union that steals all elastic and remunerative taxes rightfully belonging to the States squanders them in non-productive liabilities, of no use to anyone, and leaving nothing for such purposes as primary education, elementary health, and basic municipal services. You will spell out how the evils of the central monopoly of industry and of the ‘quota-permit-licence raj’ have destroyed all enterprise that could have put Indian national industry up on its legs before getting pushed into the race of open market. You will expose the stunting of meaningful legislation in the States, for the purposes of social justice and welfare, as a direct corollary of the usurpation of the residuary powers of legislation by the Union and its abuse of Articles 200 and 210, and other provisions. In the executive sphere, you will demonstrate how Union’s control of all strategic positions through the officers of the IAS and the IPS has probably irrevocably destroyed the capacity of the so-called ‘steel frame’ to administer with a minimal attention to the local requirements and the rudimentary principles of justice and fairness.

I look forward to these discussions and hope to educate myself with your concrete regional perspectives on the desiderata of autonomy. I will, within the next fifteen minutes that remain to me, share with you some of my impressions, rather trepidations, on the state of the Union, its fundamental institutions and their mantle of ideals on the strength of which it claims to be largest functional democracy in the world. It is the urgency of an alternative framework of governance, even from a larger sub continental perspective, which prompt these reflections.

Let me first say something about the role of the legislature as an instrument of social revolution and the linchpin of Indian democracy, as it is claimed to be. I will not expand on the Thirty-eight to Forty-second amendments during the period of the Emergency, or about the Fifty-ninth amendment directed specially against Punjab, or about the Sixteenth amendment, or even about such draconian legislations like TADA. Let me not even refer to its insidious assaults on the fundamental rights in the name of national integrity and political stability, as we do not have the time for the discussion. Many agree that they represent execrations of the Indian legislative history. I wish to draw your attention to the evils that lurked in its supposedly benign periods, behind those exertions that presumably aim at social transformations, to suggest that its failures and deficiencies have nothing to do with its periodic aberrations. I wish to suggest, on the contrary, that the so-called aberrations more genuinely represent the structural maladies of the legislative system that wears the disguise of representative democracy in the normal times and succeeds in fooling the gullible about its character. As you all know, the right to property enshrined under Articles 19 and 31 has been the bone of contention in Parliament’s myriad battles against the judiciary in the name of social revolutionary needs, with the argument that the judiciary curtailed its amendatory powers and took custody of the Constitution on behalf of the forces of reaction and status-quo. The Constituent Assembly, elected on a severely restricted franchise of barely eleven per cent of the population which became a totally Congress body after the Muslim League walked out, recognized property as a fundamental right in two separate Articles even as Nehru waxed eloquent on the impending socialist reforms.

Article 31, as you know, guaranteed that no person could be deprived of property without compensation. The contradiction paved the way to a long history of conflict between the parliament and the judiciary, which struck down as unconstitutional various legislations aimed at the abolition of zamindari, land-reforms and the nationalization of industry. Many constitutional amendments followed. However, the fundamental right to property was not upset even by an Indira Gandhi whose drastic constitutional amendments destroyed the fundamental rights to life and liberty. Why? Every student of medieval Indian history knows that Zamindars of India were intermediaries between the State and the tillers who collected land revenue for a commission. They never held title to the land for which they collected revenue. The system changed only in 1793 under the ‘Permanent Settlement’ when the British probably mistakenly confused zamindars with landowners in England and, probably on political considerations, later awarded them with titles to land. Overnight, Zamindars became landlords and began to extract rents as they chose from the tillers while paying a fixed land revenue to the British government. Almost all landlords who received these favours were loyal to the British rule, and actively collaborated in suppressing mutinies and political agitations. [16] Now, what kind of independence was this, and what kind of leaders of the masses of India were these members of the Constituent Assembly that they grafted this imperialist cancer, this absolute fiction of zamindars’ ownership of lands, which belonged either to tillers or to the State in all periods of Indian history, in the body of the Constitution as a fundamental right? What kind of a Republican innovation was this? While Nehru stamped his feet against the judiciary and the whole lot of others down to Indira Gandhi and her stooges reviled the Supreme Court as the bastion of reaction, why did they not use the power of Article 368, which gave to the Parliament unlimited power to amend the Constitution, to remove this anomaly especially in the early years when the Supreme Court’s decision in Shankari Prasad Deo Vs. Union of India upheld parliamentary supremacy of legislation? [17] The fact of the matter is that President Rajinder Prasad was not the only person at the helm who bitterly opposed the program to abolish zamindari. The President was, of course, not even willing to sign the Zamindari Abolition Bill until Alladi Krishnaswami Ayyar told him that he had no choice in the matter. [18] To understand what happened at the level of implementation of the laws that existed, I recommend a recent book on the subject called “Words like Freedom” by Sidhartha Dubey, a Harvard scholar. For his case studies, Dubey selected some villages in the parliamentary constituencies in Uttar Pradesh held by the members of the Nehru family, and came to the conclusion that fifty years after independence the poor had not benefited from the land reform programs.

Now, can we suggest an alternative approach to legislation, which would not suffer from these anomalies, from a perspective of provincial autonomy in the legislative sphere? My answer, which is not theoretical but real, is emphatically affirmative. For example, I would draw your attention to the Agrarian Relations Bill passed by the Legislative Assembly in Kerala under its first Communist government. Under this piece of legislation, all land in excess of the ceiling reverted to the State but the existing tenants had the right to lease or purchase portions of land within the ceiling limit at 55 per cent of market value. But the Governor on behalf of the Union reserved the Bill and refused President’s assent. At the end of July 1959, the Union government under Nehru dismissed the Kerala government under Article 356. The Governor’s report admitted that the Legislature had not passed a no-confidence motion, but he was convinced that it had lost popular support. [19] The same Agrarian Relations Bill was later adopted by the Kerala Assembly in October 1960. The legislation was challenged on various grounds before the Supreme Court, but the court not only overruled all the legal objections but also pronounced that the system of land ceiling stipulated by the legislation was worthy of emulation. [20] If Kerala is more egalitarian in land-relations than Bihar and UP, it is because of such legislation which originated the provincial sphere, disliked and initially blocked by the Union. We do not have the time. Otherwise, I would have given you many examples of how the Union has used its powers under Articles 200 and 210 to block progressive legislation emanating from the States, and to what effect.

But let me conclude this point. As you also know, the fundamental right to property under Article 31 was removed from the Chapter III of the Constitution by the Janata government. However, this became superfluous as India was already poised to embrace the philosophy of laissez-faire.

Let me make it clear that I am not attributing these perversions of legislation and governance to any particular party, or any set of individuals who may have held political power at the Centre. On the contrary, my argument is that it does not matter who, of what political persuasion and ideological pretence holds power. There is no redemption for the vast majority of people, who do not belong to the class of self-serving elite, within the existing framework of centralization of power. Otherwise, we would not have before us this surrealistic spectacle of inequality fifty years after India declared itself a Republic.

The scholars involved with the Nehru era have concluded that his Planning Commission and his industrial policy only empowered the upper crust of the society, bureaucrats and their mentors. [21] Indira Gandhi enthralled the Indian society with her political shenanigans disguised as socialist crusades. What happened? The most successful of her programs in the nationalization of banks largely benefited urban entrepreneurs and traders, big and small. The banking infrastructure expanded and the total deposits went up exponentially. But the garibi was not eradicated. [22] Instead, we witnessed during the Emergency how Sanjay Gandhi pioneered his vasectomy programme to stop all the poor, illiterate people in India from producing children. I am sure that if he had his way all of them would simply have been gassed. We saw what happened in the name of slum clearance which, predictably, received the support of our glorious middle class. They wanted all the destitute removed from the vista. It is a variant of collective extermination. Then we witnessed the rise of the Janata party from the storm of J.P’s Total Revolution. For a while, I was associated with some of his socialist followers for whose personal integrity and honesty of purpose I have great respect. I am talking of people like H. V. Kamath, Jamuna Prasad Shastri and to some extent people like Surendra Mohan, S. M. Joshi, Dandavate and others. But what did the Janata government offer beyond the masochistic spectacle by which it dissolved the democratic restoration? Then came the dawn of a new era under Rajiv Gandhi, the youthful scion of the Nehru dynasty, free from the ideological baggage of the past, modern, pragmatic and with his honest looks. Within three years, the regime withered in muck raking and scandals of corruption. V. P. Singh claims to have become a martyr to the cause of the backwards, by resurrecting in August 1990 the Mandal Commission Report, which had been gathering dust in the labyrinths of the South Block in Delhi since 1980. I am not going to discuss the report, nor the questions of political motives and the controversies which razed and brought down his government. I would only like to draw your attention to the fact that the principle of ‘positive discrimination’ and the policy of reservations for the scheduled castes and tribes have, like the legislation directed at land-reforms, floundered in the realm of practice and constitutional anomalies. Starting from the Supreme Court’s decision in the State of Madras Vs. Shrimati Champakanm Dorairajan in 1951 [23] , the initiatives under the Part XVI of the Constitution providing for compensatory treatment for disadvantaged citizens have run into irreconcilable conflicts with other important constitutional guarantees, especially under Article 14 and 15 which prohibit discrimination, and Article 29(2), which mandates that no citizen be denied admission into educational institutions on the grounds of religion, race, caste or language. Of course, Parliament adopted constitutional amendments to alter Articles 15, 29 and so on. But even as the dust settles from the Mandal storm, what can we see in terms of substantial alleviation of dalits, and in terms of their rise as community with a future? In my view, and as some observers have pointed out, sections of ‘backwards’ or so-called ‘intermediate castes’ have graduated to the ranks of oppressors earlier reserved only for Thakurs and Brahmins. I have been hearing of Ranvir Sena, Bhumi Sena and Lork Sena, private armies in Bihar maintained by Bhumihars, Kurmis and Yadavs to chastise Dalits. Once again, it is a complex subject and can be discussed at length. But we have no time. From an alternative perspective, let me suggest this question: Does not our experience in the sphere of ‘positive discrimination’ within India’s constitutional framework justify the view that had impelled Ambedkar to obtain ‘separate electorate’ for the Dalits in India, through the Communal Award of August 1932? Gandhi recognized that the political ‘separation’ of Dalits would end the control of his constituency over the instruments of ‘swaraj’, for he knew that the sections of Muslims can go, but Dalits would stay to reduce the upper crust of the Hindu society to political marginality. Gandhi declared that he would oppose Ambedkar’s project by staking his life if necessary. At the announcement of the Communal Award of Ramsay MacDonald, on 16 August 1932, which granted separate electorate to Dalits, Gandhi immediately went on a hunger strike and compelled Ambedkar to sign a pact, the Poona Pact of 25 September 1932, to abdicate the concessions for the Dalits which he had won from the British government. The policy of reservation within common electorate is a product of that pact. Its failure, to be understood not only in terms of persisting inequalities and structural discrimination but also by its conspicuous inability to generate a leadership that can challenge the Establishment, requires us to re-examine for adoption the position which Ambedkar had so eloquently argued before the First Round Table Conference in London. [24]

It will be improper if I shut up now without making my obeisance to the institution of the judiciary, universally described as the custodian of the Constitution, the bastion of democracy and the bulwark against the infringement of fundamental rights of citizens by the executive and the legislative. Once again, it is a subject that should be discussed separately at some length. I am tempted to draw from my own experiences with the judiciary, especially in connection with the human rights issues in Punjab. But we can discuss that some other time. Earlier in September, I presented a paper at a conference held in Oxford to argue that the formal independence of the judiciary in India does not guarantee the protection of fundamental rights, if the groups targeted for abuses happen to be out of favour with the Political Establishment. In a political environment ridden with social and communal divisions and their antipathies, members of the judiciary too are susceptible to political emotions and prejudices common to their fellow citizens, and get away by inflicting social harm on demonized communities because of their negative group identity in the society. The problem cannot be remedied by refining the rhetoric of rights in the constitutional realm since members of the judiciary are quite adept in cynically manipulating legal language to reach partisan and self-interested ends. To dwell endlessly on constitutional principles without an empirical appraisal on the role of politics that frustrates them can only promote hypocrisy and the reduction to parochial ethics. To understand why theoretical guarantees and the realities on the ground of practice are so diametrically different, we have to discuss the contradictions between the constitutional law, as the conceptual framework, and the rule of law as the emanation of power, a pragmatic enterprise run by the Political Establishment. But this we must do some other time. I only wish to make one point about one inherent limitation of the Public Interest Litigation and the political worldview of those judges of the Supreme Court who have pioneered it. As you all know, some judges of the Supreme Court like Krishna Ayer and P. N. Bhagwati promoted Public Interest Litigation, immediately after the period of Emergency, as an instrument of social justice by removing the obstacle created by the individualistic notion of locus standi. But the issues they addressed never threatened the interests of the State in any basic sense. In any case, the reforms suggested by the Courts, as those offered by the Legislature, never got implemented on the ground. More basically, some of these judges were simultaneously pandering to the authoritarian tendencies of the State in destroying the fundamental rights of citizens, basic to a constitutional society. Justice Bhagvati had of course upheld the total destruction of right to life and liberty in the period of the Emergency. But let us concede that the judges of the Supreme Court too were in the grip of fear and panic although they would not have suffered anything more serious than supersession. The High Court judges had been tamed by the threat of transfers as Justice Untwalia explained in a case that came up before the Supreme Court after the Emergency. [25] The judges of the Supreme Court did not even have that much to fear. But we are not talking about moral courage or the quality of honour which the members of the judiciary so pompously wear. Let me refer to Justice Bhagavati’s famous letter to Indira Gandhi in January 1980 in which he praised her ‘iron will’, ‘uncanny insight’, etc. In that letter, Justice Bhagavati had exhorted her to take a fresh and uninhibited look at the judicial system. [26] At this time, Justice Bhagawati was on the bench that was hearing the famous Minerva Mills case, which reopened the issues of the ‘basic structure of the Constitution’, powers of Parliament to amend the Constitution and the principles of judicial review. [27] Some of you will remember that Indira Gandhi had acted decisively against the independence of judiciary after the Supreme Court under Chief Justice S. M. Sikri had handed down the ‘basic structure doctrine’ in the Kesavanda Bharti case on 24 April 1980. [28] Immediately, she had elevated A. N. Ray as the Chief Justice of India superseding Justice Shelat, Justice Hegde and Justice Grover. Ray had come into the Supreme Court in 1969 and had made himself Indira Gandhi’s favourite by his opinion in the Cooper, or the famous Bank Nationalization Case. [29] Of course, all the three and the outgoing Chief Justice Sikri, who had held that the amendatory power of Parliament could not alter the basic structure of the Constitution, resigned. But the government unabashedly announced that “we will take the forward-looking judge not the backward-looking judge.” [30] Of course, the ‘packing’ of courts had started much earlier and the work done by the ‘three musketeers’ of Mrs. Gandhi in Mohan Kumarmangalam, H. R. Gokhale and S. S. Ray to create a committed judiciary for Indira Gandhi has been described in Granville Austin’s recent book ‘Working a Democratic Constitution’. Krishna Iyer himself was chosen by Gokhale to become a member of the Law Commission soon after Indira Gandhi triumphed in the midterm elections of 1971. And Justice Iyer, who did not sit on the habeas corpus bench during the Emergency, did become extremely useful to Indira Gandhi. You will recall that after the Allahabad High Court’s decision to set aside her election to Parliament on the grounds of electoral malpractice, Indira Gandhi obtained a conditional stay from the Supreme Court on 23 June 1975, two days before proclaiming the Emergency. V. R. Krishna Iyer was the judge. The remarks he made in his ruling were very significant to Indira Gandhi. Although he was only granting a conditional stay, Justice Iyer remarked that the High Court’s decision does not show her guilty of any serious electoral vice and “a wakeful and quick-acting” Legislature can undo the harm. As Austin explains, Justice Iiyer was not only exonerating Indira Gandhi but was also inviting Parliament to amend the provisions of the Representation of the People’s Act, which it did. [31]

By the time Justice Bhagwati was writing his famous letter to Indira Gandhi in January 1980, she had lost interests in the niceties of constitutional theories and had changed her strategy for the judiciary from confrontation to appeasement. Even then Justice Bhagwati’s judgment in the Minerva Mills case explained that “a law enacted… genuinely for giving effect to a Directive Principle… should not be invalid because it infringes a fundamental right.” [32] And, as you all must have taken note of, Justice Bhagawati has recently pronounced himself in favour of a Presidential form of government with adequate safeguards. [33]

As to the issue of autonomy, each time the Center and the States disagreed on the demarcation of powers even within the existing constitutional framework, the verdict of the judiciary, beginning from the Supreme Court’s 1964 decision in West Bengal Vs Union of India has uniformly made it clear that the Union is all-powerful and can act as it pleases in the States. [34] So, what hopes can we nurture about such a self-serving judicial system, which is not accountable to anyone and is interested only in maintaining its prerogatives on the basis of a quid-pro-quo with the Political Establishment as the recent example of its conflict with the Law Minister, who got kicked out of the Cabinet, shows?

I am aware that at the turn of the millennium India has entered the era of new political and economic thinking, in which many points that I have discussed might be dismissed as outdated and irrelevant. We are under the regime of a political party whose philosophy and programs, as well as its record of parliamentary ascendancy compare closely with the Nazi graph of growth between the 1st and the 2nd World Wars in Germany. There are also ominous similarities between the provisions of the Weimar Constitution that allowed Hitler to dissolve the Republic and the kind of changes the initiators of the ongoing Constitutional Review have proposed. Lal Krishna Advani has openly argued that better governance in India requires that we switch over to a Presidential system of government, have a fixed term of parliament, take away the special status to Jammu and Kashmir as well as the concessions available to the minority communities to run their educational and cultural institutions under Articles 370 and 30 of the Indian Constitution. Time does not allow me to go into the details. The significant point is that these proposals have evoked sympathy and support from some very distinguished Indians, lawyers, retired Supreme Court judges, former bureaucrats, politicians and captains of industry.

I am not surprised. We are in a new era, and the pseudo-secular and quasi-federal scheme of the State which was forced on India has run out its course. In my opinion, its historical life had already ended in June 1975 when Indira Gandhi imposed the Emergency. It has been kept alive on artificial ventilation since then. Indira Gandhi’s electoral rout in 1977 presented the proponents of decentralization and autonomy in the peripheral regions of India with an opportunity to coordinate their efforts to reorient the Indian democracy according to their vision. They failed to do that. It is not a failure of the people. It is a failure of the leadership as Punjab’s travails over the last two decades, etched in blood, so poignantly demonstrates.

Today, India’s economy seems to have moved irreversibly in the direction of globalization and open market even as the vast masses of people remain trapped in abysmal levels of poverty, illiteracy, disparities of regional development, the regime of controls, and the absence of accountability. It is widely acknowledged that globalization is a double-edged process. It has the potential to provide opportunities for the local democracy of citizenship, through decentralization of information and technology, and by creating local units of human association to link up with the planetary processes. But for this to happen, the arrangements of governance have to harmonize with the heterogeneous and autonomous character of initiatives. The structures of authority have to give way, vertically and horizontally, to the sovereignty of regional political engagement that alone can make the community of experts conscious of the local needs. Decentralization of political power downwards, consolidation of international networks for cooperation in the fields of knowledge and diffusion of responsibility into the civil society are the preconditions for the process of globalization to be beneficial to all.

This vision of autonomy, a genuine alternative to the looming specter of totalitarianism, underlies the political unrest in this part of Punjab, which the Indian State has so ruthlessly attempted to stamp out in the last decades. I do not know whether the vision is resolute enough to survive the repression, orchestration of slander and the weaknesses of leadership responsible for its current setbacks. But I do feel that without reverting to and realizing that vision, the Indian subcontinent will never recover its place in the march of history. I also feel that the celebration of a theoretical vision of society becomes meaningless if its adherents cannot find an optimal point of leverage to transcend the objective realities that hamper its realization. I also think that abdication of human will before the obstacles that stand in the way of human dignity is not exactly a Punjabi trait.

[1] W. H. Morris-Jones, Parliament in India, Longmans, Green and Co. London 1957, p. 7.

[2] Mr. Gandhi’s discussions with Norman Cliff on June 29, 1946, Not for publication in any form. Short Collection, Mss. Eur. F. 189/9-B-10.

[3] Pundit Nehru’s Press Conference, Short Collection, F. 189/13, IOR:L.

[4] Muslim League Resolution withdrawing acceptance of the Cabinet Mission Plan, July 27-29, 1946, Framing of India’s Constitution, Vol. I. Pp. 284-6.

[5] Letter from J. Nehru to Stafford Cripps. Short Collection, MSS. Eur. F. 189/9.

[6] Note from Governor Punjab to Viceroy, April 10, 1947, on interview with kartar Singh, MC. Mss. Eur. F. 200/39 & Lord Ismay’s note to Mountbatten, April 30, 1947, Mss. F. 200/121, IORL; the Congress Resolution urging the Sikhs to participate in the Constituent Assembly, August 10, 1946, Framing of India’s Constitution, Vol. I, IIPA, New Delhi, 1966, pp. 311-315.

[7] Harold Wilberforce Bell, a man with 35 years of diplomatic service in India from 1918 to 1939, claimed that upwards of 200,000 people were massacred in Punjab alone. West Hull Man’s Fellowship address in London on February 17, 1950, Daily Mail, February 18, 1950, - “200,000 died in Punjab alone when we left India.”

[8] Letter from Baldev Singh to Pethick Lawrence, June 4, 1946, Short Collection, Record of interview of the Cabinet Delegation and & Viceroy with Tara Singh & Baldev Singh on Tuesday, June 6, 1946, Short Collection, B-10, IOR:L; Letter from Attlee to Baldev Singh, August 7, 1946, Mountbatten Collection, Mss. Eur. F. 200/139, IOR:L; extracts from notes of interview between the Viceroy, Jinnah & Liaquat Ali Khan on 13 & 16 October 1946; Intelligence Bureau, Source Report – Sikhs and the Muslim League, P. E. S. Finney, Deputy Director, September 18, 1946, Mss. Eur. F. 200/139; Governor’s Reports, No. 614 from July 15, 1946, D. O. No. G. S. 483 from August 31, 1946, IOR:L/P&J/5/249; The Hindustan Times, July 1, 1946, A letter from Sant Singh to Short, dated 4 July, 1946, Short Collection, F. 189/13.

[9] The Sikh position – A note from Evan Jenkins dated April 6, 1947. Object of the Paper: To suggest the line His Excellencey might take with the Sikhs on April 18, 1947; Note for the interview with Tara Singh, Kartar Singh, Baldev Singh, G. E. B. George Abell, April 17, 1947; Extracts from notes of interview between the Viceroy, Tara Singh, Kartar Singh and Baldev Singh on April 16 & 18, 1947, Mountbatten Collection, Mss. Eur. F. 200/120, IOR:L, London.

[10] Extract from the note of an interview with Mr. Jinnah on 26 April 1947; Telegram [OPT] From P.S.V to D.P.S.V [Viceroy's camp - Rawalpindi] No. 935-S dated 29 April 1947; Lord Ismay's note to Mountbatten, dated 30 April 1947; Memorandum from Punjab Constituent Assembly members to Mountbatten, Dated 1 May 1947; Baldev Singh's letter to Mountbatten, dated 7 May 1947; Note on the meeting of Evan Jenkins with Swaran Singh, Harnam Singh, Lala Bhim Sen Sachar, dated 2 May 1947; Letter No. 668 from Jenkins to Mountbatten, dated 3 May 1947, Mountbatten Collection. Mss. Eur. F. 200/121-140, IOR:L.

[11] Baldev Singh’s letter to Mounbatten, dated May 7, 1947, Mss. Eur. F. 200/121, IOR:L.

[12] Letter from Short to Lord Ismay, dated 29 June 1947; Moon's letter to master Sujan Singh from Bahawalpur, dated 8 June 1947; Letter from Pendral Moon to Short, Dated 9 June 1947; Sajjan Singh's letter to Pendral Moon from Nabha, dated 13 June 1947; A note on the basis for negotiations with the Muslim league, prepared by Baldev Singh on the note pad of Defence Ministry, Government of India, dated 28 June 1947; Letter from Short to Ismay, dated 18 June 1947; Letter from Moon to Lord Ismay, dated 28 June 1947; Letter from Pendral Moon to Short, dated 28 June 1947, Short Collection, Mss. Eur. F. 189/18, IOR:L.

[13] Nehru’s letters to Gopichand Bhargava, 2 and 18 March 1951, Gopichand Bhargava Papers, Jawaharlal Nehru File, NMML, cited in Granville Austin, Working a Democratic Constitution: The Indian Experience, OUP, New Delhi, 1999 pp. 157-8).

[14] Kochanek, Stanley A., Congress Party in India, Princeton University Press, Princeton, NJ, 1968, p. 257,citing a Congress Bulletin of May-June 1951 and the Statesman, 13 June 1951; Austin, ibid, p. 158.

[15] Prasad to “My dear Jawaharlalji” dated 18 June 1951, and Nehru to ‘My dear Mr. President’ dated 21 June 1951, File 21, 1951, “Correspondence with Prime Minister”, Rajendra prasad Collection, National Archives of India; cited in Austin, ibid, p. 158Austin, p. 158.

[16] Anstey, Vera, The Economic Development of India, Longmans, Green and Co., London, 1957, pp. 97; Merillat, H. C. L., Land and the Constitution in India, Columbia University Press, New York, 1970, p. 13; Austin, Granville, ibid, p. 77.

[17] Shankari Prasad Deo Vs. Union of India, 1952 (3) SCR 106.

[18] Austin, Granville, ibid, p. 22.

[19] The Summary by the Governor of Kerala of His Report to the President, Home Ministry document, presented in Parliament 17 August 1959. Lok Sabha Secretariat/ LT 1541/59.

[20] Purushothaman Nambudri vs. The State of Kerala, 1962 Supp (1) SCR 753.

[21] Paul R. Brass, The Politics of India Since Independence, Cambridge, 1994, pp. 292; Pranab Bardhan, The Political Economy of Development inIndia, N. Delhi, 1994, p. 58.

[22] Achin Vanaik, The Painful Transition, London, 1990, p. 29.

[23] State of Madras v. Shrimati Champakanm Dorairajan [AIR 1951 SC 227]; Venkataramana vs. State of Madras, AIR 1951 SC 229.

[24] Dr. Ambedkar on safeguards for the Depressed Classes, 20 November 1930, the Indian Round Table Conference, First Session, in Readings in the Constitutional History of India, S. V. Desika Char, (ed) Oxford University Press, Delhi, 1983, pp. 553-4.

[25] Union Vs. S. H. Sheth 1978 (1) SCR 423.

[26] Letter dated 15 january 1980, published in the Indian Express on 23 March 1980.

[27] Minerva Mills, 1981 (1) SCR 263-4.

[28] His Holiness Kesavanda Bharati Sripadagalvaru v. State of Kerala and Another 1973 (4) SCC 225.

[29] Rustom Cavajee Cooper Vs. Union of India 1970 (e) SCR 530.

[30] Lok Sabha Debates, Fifth Series, vol. 27, no. 50, cols. 295-312; Nayar, Kuldip, Supersession, pp. 93-112; Austin, pp. 283-4.

[31] MST. Indira Nehru Gandhi v. Shri Raj Narain 1975 Supp. 1MST. Indira Nehru Gandhi v. Shri Raj Narain 1975 Supp. 1.

[32] Minerva Mills, 1981 (1) SCR 288, p. 333.

[33] The Hindu, February 20, 2000, P. N. Bhagwati supports the Commission.

[34] West Bengal V. Union, [1964] 1 S. C. R. 371, [63] A. S. C. 1241, AIR 1963 S. C. 703; Subrata Sarkar, ibid, pp. 34-37; Virendra Singh V. State of Uttar Pradesh, 1955, ISCR 415; H. C. Sengupta V. Speaker West Bengal, AIR., 1956 Calcutta 378; Srikishan V. State, A.I.R., 1957 Andhra 734; K. Subba Rao, Conflicts in Indian Polity, S. Chand & Co., Delhi 1971, pp. 70-72; Rajasthan V. Union [1978] 1 S.C.R. 1, A.S.C 1361; Karnataka V. Union [1978] 2 S.C.R 1, [78] A.S.C. 68; H. M. Seervai, Constitutional Law of India, ibid, Vol. I, p. 283.

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