a day ago
L K Advani's prison diaries: Constitutional morality, Indira Gandhi, and Thomas Jefferson
Detained without trial for months in Bangalore Central jail, L K Advani maintained a prison notebook. On December 28, 1975, when Emergency was in full swing, the then Jana Sangh leader wrote that Prime Minister Indira Gandhi wanted the Constitution to be changed after a public debate but questioned her intentions, and countered her claim that the Opposition was in favour of an 'inflexible Constitution'.
The observations are important given that 50 years after Emergency, both the government and the Opposition continue to swear by the Constitution and accuse each other of trying to damage it.
Advani wrote that in an interview given just before the All India Congress Committee (AICC) session in Chandigarh earlier that month, Gandhi cited Thomas Jefferson, one of the founding fathers of the United States and its third President, who believed that the life of a Constitution should be just two decades.
'Indira Gandhi's statement is a part of an interview she gave to the souvenir published on the eve of the Congress session at Chandigarh. In the interview, she quotes Thomas Jefferson's well-known dictum about the desirability of reviewing a country's Constitution every twenty years. She has cited him against the opposition whom she described as being opposed to any change in the Constitution,' Advani wrote in A Prisoners' Scrap-Book, his writings in jail from 1975 to 1977 that later acquired the form of a book.
While Gandhi had accused the Opposition of being against any change in the Constitution, Advani said the latter was in favour of desirable change but not change that would damage democracy.
The argument Jefferson made is found in a letter he wrote to James Madison, his successor as US President and the person considered the 'father of the American Constitution', on September 6, 1789. '… No society can make a perpetual Constitution, or even a perpetual law. The earth belongs always to the living generation. They may manage it then, and what proceeds from it, as they please, during their usufruct. The constitution and the laws of their predecessors extinguished, in their natural course, with those who gave them being… Every constitution then, and every law, naturally expires at the end of 19 years. If it is enforced longer, it is an act of force, and not of right.'
Taking a dig at the Congress, Advani wrote, 'There has lately been a welter of statements by Congressmen that the Constitution needs to be changed early and that delay would be disastrous. Indira Gandhi threw cold water on such talk with a statement that changes in the Constitution should be preceded by a thorough-going public debate.'
He added, 'As if an electric button has been pressed, the tenor of speeches regarding constitutional amendment changes. Every Congress chhut-bhaiya (small fry) now talks of the need for a public discussion on the issue.'
Advani wrote in his diary that 'none of the opposition parties in the JP movement is opposed to desirable changes in the Constitution'.
'Indeed, if one were to go through the election manifestos of the various political parties for the 1971 and 1972 elections, one would find that they are more committed to constitutional reform than the ruling party. The Jana Sangh has favoured the setting up of a Commission on the Constitution to review its working. The Socialist Party has advocated a fresh constituent assembly. So, there is no substance in Indira Gandhi's charge that the opposition parties are for an inflexible Constitution,' he wrote.
The Jana Sangh leader, who was later among those who founded the BJP, accused the Indira Gandhi government of trying to change the Constitution in an ill-intentioned manner. 'We, however, hold that the present Government's annoyance with the Constitution stems not from social or economic factors, as it keeps propagating, but from political considerations. It is the democratic content of the Constitution which the present Establishment regards as a roadblock to its ambitions.'
Advani added, 'The Emergency empowers the Government to suspend any of the Fundamental Rights. It is significant that Article 31, namely that relating to the right to property, has not been suspended. The Articles suspended are Article 14 (right to equality), Article 19 (the seven freedoms of expression, assembly, association, movement, trade etc.) and Article 21 (right to life and personal liberty etc). These are the provisions which embody a citizen's democratic rights. The Executive can ride roughshod over these rights during an Emergency. It is doing so shamelessly these days.'
The Jana Sangh leader accused the Emergency regime of trying to 'make its present authority perpetual under the Constitution'. 'The ruling party has the requisite majority also to make the necessary change in the Constitution. But the Keshavananda Bharati judgment which lays down that the basic democratic structure of the Constitution cannot be altered has become an insurmountable hurdle. That is why the Government is so bitter about this judgment.'
Advani was referring to the judgment of the 13-member constitution bench of 1973 that while the Constitution gave Parliament the right to amend it under Article 368, it could not be used to destroy the Constitution. It was in this context that the Supreme Court put in place the basic structure doctrine: certain fundamental features such as democracy, secularism, the rule of law, and judicial review cannot be taken away by Parliament through constitutional amendments.
Irony of quoting Jefferson
Taking a dig at the irony of the PM for quoting the third US president, Advani said it was a 'pleasant surprise to hear Indira Gandhi quote Jefferson'.
'For the past few months, quoting Western Liberal thinkers has become passe, if not altogether retrograde and reactionary,' he wrote. 'However, one wonders how familiar Indira Gandhi is with the political philosophy of Jefferson. His views reek with sedition. God forbid, he wrote to a friend, that we should ever be twenty years without a revolution.'
Advani added that 'one of Jefferson's biggest contributions to liberal political thought is his insistence that a citizen has the right to defy an unconstitutional statute'. 'What country can preserve its liberties if its rulers are not warned from time to time that the people preserve the spirit of resistance?' he added, quoting Jefferson.
He quoted the former US president as saying that 'censorship of any kind would negate the very spirit of democracy by substituting tyranny over the mind for despotism over the body'.
Advani added, 'Jefferson was the author of the American Declaration of Independence proclaimed in 1776. There is no doubt that if Jefferson had been living in India in the year of grace 1976, his speeches and writings would have made him one of the greatest threats to the security of the State and landed him behind the bars as a MISA detenu.'
