The House is in cession
Posted on August 12th, 2019

ABHINAV CHANDRACHUD Courtesy The Hindu BusinessLine

The last and final amendment of Article 19(2) of the Indian Constitution, brought in to prevent the use of ballots to break away from the Union, had a specific target

In 1963, Article 19(2) of the Constitution was amended for the last and final time, and the words ‘the sovereignty and integrity of India’ were inserted in it, creating one more enumerated exception to the right to free speech. The Constitution (Sixteenth Amendment) Bill, 1963 (hereinafter, the ‘Bill’) was informally referred to as the ‘Anti-Secession Bill’. It was designed to prevent local political leaders in different regions within India from using the electoral process to peacefully propagate secession from the Union. In the past, the Muslim League in British India had used the electoral process to demand Partition. It was now feared that local political parties with regional, not religious, affiliations were getting elected to office on the promise that they would advocate secession for their region from India. The chief target of this constitutional amendment was the southern political party Dravida Munnetra Kazhagam (the ‘DMK’) in the state of Madras, which had advocated secession of parts of the south, and the creation of a separate nation state called ‘Dravida Nadu’ or ‘Tamilnad’. Calls for secession in Punjab and Nagaland also inspired the Bill. Ironically, it was enacted at a time when demands for secession had died down in the country in the wake of the Chinese aggression.

Mask slips: Though the DMK in Madras State was the primary target of the Bill, the amendment was also designed to quell calls for secession in other parts of the country, particularly Nagaland and Punjab. Seen here are DMK cadres in Karunanidhi masks. Photo: M Moorthy

The DMK was a political party which was founded in 1949 by followers of ‘Periyar’ (meaning ‘great man’) E.V. Ramaswami Naicker. The DMK used the parliamentary process itself for articulating demands for secession. It won a few seats in the 1957 election for the Madras Legislative Assembly, and their slow success began to trouble the government.

It was not the outbreak of war with China in 1962 which precipitated the Sixteenth Amendment to the Constitution. In fact, during the war, the DMK had scaled back its demands for secession. Much prior to the war, in January 1961, the Congress party at its Bhavnagar session had set up a ‘National Integration Committee’, under the chairmanship of C.P. Ramaswami Aiyar, to look into steps that could be taken for promoting national integration. Prime Minister Nehru had called a meeting of the chief ministers in August 1961, where it was recommended that advocacy of secession be made a criminal offence. In September 1961, a National Integration Conference was convened. The committee submitted its report to the prime minister on 5 November, 1962. It made only one recommendation, viz., that Article 19 be amended to prevent Indian citizens from demanding secession. The DMK was kept out of these proceedings, and was not consulted by the committee.

The debates in Parliament make it very clear that the Bill was primarily being enacted as a reaction to the DMK’s demands for secession. Law Minister A.K. Sen, who moved the Bill, said that it was the Bill’s purpose to outlaw ‘all activities of a secessionist nature, so that we may not have a repetition of what happened from 1940 in this country when the Muslim League made the partition of India . . . its main political platform and fought elections on that resulting in a disaster . . . ’. Sen informed the House that he had initially intended to speak in Hindi, but since ‘most of the challenge came from areas whose representatives might not have understood Hindi,’ he had decided to speak in English instead. ‘The immediate provocation or the immediate cause’ for the Bill, said M.S. Gurupada Swamy, ‘is obviously the activities of the DMK.’ Speaking in favour of the Bill, R.N. Reddi referred to the movement for a separate ‘Dravidnadu in the South’. Opposing the Bill in the Lok Sabha, DMK party member Nanjil Manoharan admitted that the DMK was carrying out ‘propaganda’ for ‘the formation of Dravidastan’.

Another opponent of the Bill, Narasimha Reddy, said that the Bill was being referred to in the press as the ‘anti-cession Bill’, but it was known in Madras as the ‘anti-DMK Bill’. He said that the Bill was ‘primarily intended for the suppression of the DMK organization, so some people think’. For Reddy, the Congress party was exacting its revenge against the DMK for giving it trouble in the previous elections. The debate on the Bill in the Rajya Sabha reads as though the DMK member, C.N. Annadurai, was himself on trial. Annadurai said that the Bill might have been ‘aimed at others also’, but that the newspapers and political speeches suggested that its target was only ‘the despicable DMK, not others’.

However, though the DMK in Madras State was the primary target of the Bill, the amendment was also designed to quell calls for secession in other parts of the country, particularly Nagaland and Punjab. Several members of the House referred to the situation in Nagaland as a possible justification for the Bill. Law Minister Sen expressly rejected the allegation that the DMK was the only reason that the Bill was being enacted. He said that there were others who ‘openly want secession from India and who openly preach (the) disintegration of India’. ‘One familiar example’, he said, was the ‘rebel or hostile Nagas on the eastern border’, who had not yet given up their demand for a separate nation state of Nagaland. Sen said that ‘forces of disintegration’ had taken hold in India ‘[s]tarting from the Punjab, right up to the South’. Thus, Sen referred to Madras, Nagaland and Punjab in support of the Bill.

The Bill was thought to be necessary because the words ‘security of the State’ in Article 19(2) were considered insufficient to prevent a person from using the electoral process to advocate secession peacefully. The amendment bill did not only seek to add an exception to the right to free speech. Among other changes, it also made ‘the sovereignty and integrity of India’ an enumerated exception to the rights to assembly and association contained in Articles 19(1)(b) and (c). Law Minister Sen said that ‘some of the decisions of the Supreme Court (had) made it quite clear that ‘security of the State’ is a limited expression and it does not comprehend any power to ban organizations or political activities so as to bring them within the exceptions under the article unless something more is there. The government thus appeared to be keen to ban associations which advocated secession, and the words ‘security of the State’ in Article 19(2) were thought to be insufficient for this purpose.

The amendment Bill was also symbolic. It introduced, for the first time, an oath which was now required to be taken by any person who was even merely nominated as a candidate to fill a seat for the Lok Sabha, Rajya Sabha or a state legislature. In other words, a person who wanted merely to contest an election for a state legislature or Parliament now had to take an oath. The Bill also amended the oaths that were required to be taken by elected members of Parliament and state legislatures. The Bill now required all these persons to swear that they would, among other things, ‘uphold the sovereignty and integrity of India’. Law Minister Sen believed that this would have ‘a salutary effect’ on elected representatives. Interestingly, even Supreme Court judges and high court judges are, following the Sixteenth Amendment, required to take an oath to uphold the sovereignty and integrity of India. This presumably means that Supreme Court and high court judges are bound by their oaths to deny any person the right to peacefully propagate secession from India.

While the war with China might not have been the cause for the Bill, it certainly provided the necessary rhetoric for its enactment and created a general feeling of insecurity and paranoia which reduced opposition to it. The Bill was enacted at a time when India was under its first national emergency, when civil rights and civil liberties had been suspended. Even though the war with China had lasted between October-December 1962, the national emergency was continued from October 1962 to December 1967. As Communist Party member Bhupesh Gupta noted in the Rajya Sabha, ‘[t]oday, as we are discussing this subject [i.e., the Bill], the irony of it is that article 19 is frozen, it does not exist.’ In his speech in the Lok Sabha, Law Minister Sen referred to the ‘hard-won freedom’ which India had earned ‘at the cost of millions of patriots’ lives’ and to ‘the flag of independence which we have earned for ourselves with the blood of many a martyr’, in support of the Bill. On another occasion, Sen said that it was ‘unfortunate that at a time when we are facing the most major threat in our history since independence, we should have to contend with such activities and have to ask for powers to deal with such activities’. Surendranath Dwivedy said that there were parties in India which had ‘extra-territorial’ loyalties, an obvious reference to the Communist Party, which another member said had two factions, one loyal to Peking, the other to Moscow.

Abhinav Chandrachud practises as an advocate at the Bombay High Court

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