Getty Images Prime Minister Narendra Modi (left) and former Prime Minister Jawaharlal Nehru (Right).

NEW DELHI—Prime Minister Narendra Modi’s support for retaining the infamous sedition law is wrong and resembles the mistake made in 1951 by India’s first Prime Minister Jawaharlal Nehru, said historian and author Tripurdaman Singh in an interview with HuffPost India.

While the Constituent Assembly had not included the British-era legislation in the original version of the Constitution in 1950, sedition was revalidated through the much-criticised first amendment passed the following year. Singh’s most recent book, Sixteen Stormy Days, tells the story of the dramatic 16-day period in 1951 when Nehru personally got the amendment passed.

“The original constitutional provisions on fundamental rights were effectively ripped apart. The relationship between the citizen and the state was altered for all time,” writes Singh in the book.

Sixty-nine years later, the controversial law has been misused multiple times by governments against activists and students, sometimes over Facebook posts, and now, even schoolchildren. Ahead of the Lok Sabha election last year, when the Congress promised to repeal the law if elected to power, Modi had criticised the move, coming out in support of the archaic law.

“I think the sedition law, as the pivotal figures argued, from all sides of the political spectrum, does not belong in the statute books of well-functioning democracies,” said Singh, who is a British Academy postdoctoral fellow at the Institute of Commonwealth Studies, University of London.

The historian, whose ancestors used to rule the erstwhile royal kingdom of Bah in Agra, is politically involved with the Bharatiya Janata Party (BJP) in Uttar Pradesh and the Labour Party in the United Kingdom. His father was formerly a minister in the Samajwadi Party government, and his mother is currently the BJP MLA from the Bah constituency.

Singh added that if the BJP pushes for a more stringent sedition law, as articulated by then home minister Rajnath Singh ahead of the election, it would be a “mistake”.

In the book, which has been published by Penguin Random House India, Singh writes that once sedition was validated again, “free speech was curtailed—no longer would it be necessary for the security of the state to be seriously undermined for it to proscribe free expression, it merely had to be in its interests to now do so… the constitutional groundwork had been laid for a host of repressive legislation to follow”.

But why are these events from 1951 being written about and discussed in 2020? “The Constitution as it stands can’t really be understood without looking at the first amendment. Because the first amendment is so pivotal,” Singh told HuffPost India.

This, he said, was because the amendment radically changed the chapter on fundamental rights in India.

Edited excerpts from the interview:

Why is the first constitutional amendment, done in 1951, relevant in the India of 2020 for citizens?

There are three things which I would say outright. One, of course, is that the constitution as it stands can’t really be understood without looking at the first amendment. Because the first amendment is so pivotal. Of course, Prof. Upendra Baxi famously called it the second constitution. And it made such a radical change in the chapter on fundamental rights, that you can’t really talk about at least the right to freedom of speech and the right to freedom from discrimination, without talking about this. And especially now, when freedom of speech is such a talking point and sedition is such a talking point, both of these go back to this moment in 1951. And if you have any sort of interest in that, then you have to look at 1951. There is no way around it.

So, if I understand you correctly, the present day concerns surrounding what are broadly called liberal values: freedom of speech and expression, civil liberties, right to dissent, etc, if they are in a precarious state, the genealogy goes back to 1951. Or the history we can trace back to 1951.

We can, and also the concerns in 1951 are also more or less the same. So if you see the language that is deployed; if you see the concerns that are voiced both by the government and the opposition, they are more or less the same. So it’s a similar sort of debate that’s happening.

But the only difference is that, while we are debating it now with these things already have happened, in 1951, this was still an open question, where the balance would lie. Because the original constitution had been expansively liberal. And so the debate that happened in 1951 was actually hugely consequential for how we address these questions today.

“The Constitution, as people think about it, or as it exists in the popular imagination, especially the part dealing with fundamental rights, is… people always go back to the original and they always see it right...no one really thinks about what happens after. And this is what happens immediately after.”

It’s interesting that you say that because I am also looking at what you write in the book as well as your answers presently in context with, as is inevitable, what those protesting against the Citizenship Amendment Act and National Register of Citizens are saying about the Constitution. They are saying it is under threat, and they want to retain the Constitution as it is in the present form. So is there a Constitution in the popular imagination and another Constitution in text as legally amended till date? Or is there something else happening here?

I think you are right when you say that. Because the Constitution, as people think about it, or as it exists in the popular imagination, especially the part dealing with fundamental rights, is… people always go back to the original and they always see it right. It was a moment of great hope. The Constitution was passed and it was described in very contemporary newspapers etc as this big experiment in liberal government, which it was. And no one really thinks about what happens after. And this is what happens immediately after.

We often look at 1950 as this moment and then there’s a tendency to romanticise the early years of the republic and then you come back now…

Or look at the Emergency...

Yeah. Look at Emergency. But the Emergency is seen to be, you know, this sort of anomaly. As something that just happened. Whereas that’s actually not the case. And what you would notice now, people will often say, “Ok, the Constitution is under threat.” But there is no need to threaten the Constitution. Because the legal and constitutional tools that one would need for any form of authoritarian government are already there. So they have already been created in 1951. So no one actually needs to… unless you know, you want to declare it a Hindu Rashtra and, you know, go down that stream. But for people who think that these methods are threatening the Constitution, then he doesn’t need to; he is already been provided with the constitutional tools.

And, to be sure, when you say he, you mean the Prime Minister.

Anybody.

Or the current government.

I am talking about the current government. Because that’s where the charges are directed.

Are you then advocating for us to go back to the original Constitution drafted in 1950? Is it a desirable situation to be in?

In my own personal opinion, yes. But then, of course, that’s not entirely down to my personal opinion. But I do think that, when the Constitution was written up, of course certain changes have been made keeping in mind the questions of social justice which I touch upon in the book.

On reading your book, my mind went back to the 2019 Lok Sabha election. Especially on the issue of sedition. It’s interesting that the same party, the Congress, which brought back the sedition law in the 1951 amendment was arguing for its repeal in its 2019 election manifesto. And while the political ancestors of the present regime in power were arguing against bringing back the sedition law in 1951, the then home minister Rajnath Singh was promising an even more stringent sedition law in 2019 and prime minister Narendra Modi was saying that the Congress was working at the behest of Pakistan because it promised to repeal the law and made it clear that he himself backs the sedition law. So what do you make of this?

It’s very funny. It’s actually very funny because towards the end of the debate on the amendment, this is a warning that both Shyama Prasad Mukherjee and Acharya Kriplani deliver in Parliament that, you know, your rule is not going to be eternal and at some point these powers that you are granting are going to be used by those who come after you or those opposed to you and it’s just funny that both those warnings have been very prophetic.

But it’s also I think, in a way, reflective of deeper attitudes within the Indian State, or the Indian political class, between the state and the citizen, and the nation building project. And so you will actually notice that what you might say, as you mentioned about sedition, what the present regime is saying now, is actually more or less the same as what Nehru would have said in 1950-51. I quote him extensively both from his letters and from newspaper reports. It’s the same thing. The issues are still the same. There is fake news and there’s incendiary reporting, propaganda and all the same questions about what will be the effect of this propaganda on our youth and our soldiers.

So, is Prime Minister Narendra Modi making the same mistake that Prime Minister Jawaharlal Nehru made? On the question of sedition specifically.

Permit me, I will quote K.R. Malkani, RSS stalwart, the first editor of The Organiser and the first person to be arrested during the Emergency. Here’s what he says, “To threaten the liberty of the press for the sole offence of non-conformity to official view in each and every matter, may be a handy tool for tyrants but (is) only a crippling curtailment of civil liberties in a free democracy...A government can always learn more from bona fide criticism of independent thinking citizens than the fulsome flattery of charlatans.” So I think it was applicable in 1950, it’s applicable in 2020.

Yes. But you’re tiptoeing around my question. This was about the freedom of the press and the point is well taken. No doubt. My question was very straight and direct. Do you think the mistakes that Prime Minister Jawaharlal Nehru made in 1951 while amending the Constitution the first time around, and making the arguments for retaining the sedition law specifically, the same mistake is being made by the Prime Minister Narendra Modi and the ruling BJP regime?

Right now what they are doing is, right now they are making the case for this. So if they were to make a more stringent law for sedition, whether it would meet the standards set out in constitutional jurisprudence is something that obviously the Supreme Court will have to look at. But they will not have to address the underlying sort of constitutional groundwork for it. They will simply have to amend the Indian Penal Code, which is, you know, a much easier process than to go back and build the constitutional groundwork… (interrupted)

But qualitatively…(interrupted)

But qualitatively I would say, if they were to push for a more stringent sedition law, I think it would be a mistake.

“I think the sedition law, as the pivotal figures argued, from all sides of the political spectrum, does not belong in the statue books of well-functioning democracies.”

Or even continuing with the sedition law. Because the point was about continuing with it as well, right? Making it more stringent was the point that the then Home Minister and now Defence Minister Rajnath Singh made, but Prime Minister Modi is on record during the election campaign as having said that we need the existing sedition law and the Congress was wrong in promising to repeal it.

I think that’s, in my own personal opinion, that is a mistake. I think the sedition law, as the pivotal figures argued, from all sides of the political spectrum, does not belong in the statue books of well-functioning democracies.

I was intrigued by some of the phrases and framing used in your book. To quote one instance, you say that the political battle over the first amendment was the first battle of Indian liberalism, and its “intrepid warriors” the first great defenders of our individual rights and freedoms. Do you genuinely believe that there was a consciously articulated Indian liberalism in the post-colonial period? Why should we not read this as, you know, the opposition, from both left and right spectrums, being smartly political? For the right reasons, obviously, but not really believing in what it was pushing for.

Yes, I think there was; it was a lot smaller than people assume. But there were figures like Hriday Nath Kunzru, for example, or even H.V. Kamath who articulated their opposition purely on principled terms and so, in their case, I think there is no doubt that there was a liberal case to be made and they were making it. And I think that can be extended to the judiciary as well, which actually took a very liberal view of the Constitution’s provisions and made the same sort of case. So I think, yes, there was a well-thought-out position of Indian liberalism. It didn’t really have the political space or the political heft to grow. Perhaps if things turned out differently, it might have.

Someone might say that in the case of figures like K.R. Malkani or Shyama Prasad Mukherjee, it was purely tactical. That there is no firm way of saying or not saying. We will have to get into conjecture.

I am asking this because the political tradition that Shyama Prasad Mukherjee and Acharya Kripalani or even leaders from the communist Left represented, they were very clear about their vision for the Indian state. So nobody really articulated an Indian liberal tradition in a consequential way is what I will submit to you.

You are right. But then there also was no political space to really articulate it, either. And so what happens is that, yes, there was this stream of Indian nationalism; they made the cultural case within the framework of the Constitution, keeping in mind, you know, the sort of democratic norms that people thought they were trying to cede. And so, while it could be seen as some sort of a tactical position but I don’t really think it was because they concede the principles.

So a lot of people concede the principle that, you know, maybe you might need to change the Constitution for land reform or maybe you might need to change it for freedom from discrimination, some even concede may be there is a case to be made for reigning in the right to speech also. But a lot of these criticisms are made from the point of view that even if you concede the principle, you should either give the question back to the people or you should wait to have a general election and have an elected body doing it. This is again a liberal idea of a democratic mandate. So I think there is something there.

Historian Tripurdaman Singh

One of the things you also extensively focus on in the book is the Public Safety Acts. We are talking in a week when the Public Safety Act, in the context of Kashmir, is in the news. Critics say that it is an abuse of the provisions of the public safety act. Will it be fair to say that the use, or abuse, of bad laws for clamping down on political freedoms against the opposition—it’s being used by the current regime just as it was used by the previous ones.

Yes, I mean I would also disagree with the idea that they are being abused. They are being used precisely what they are meant to be used for. These legislations exist for these purposes. And these legislations exist because there is the constitutional groundwork for them laid by the first amendment. So I would actually disagree. If anything, then you would go back and say that the first amendment is an abuse on the Constitution.

“The procedure used to read down, to amend Article 370 is actually fairly similar to the procedure used to amend the Constitution in 1951.”

What I also meant to ask about is, using black laws for suppressing political freedoms.

Yes, there is no stepping around that. From day one till now, there has been a tendency to use such shortcuts through democratic procedures. And that’s again another interesting thing in light of the removal of Article 370 is that the procedure used to read down, to amend Article 370 is actually fairly similar to the procedure used to amend the Constitution in 1951. Use a presidential order to read down an article and then use that article to amend a different article. And that’s exactly the procedure used in 1951.

So again we come back to that original question about whether what happened in Prime Minister Nehru’s time is happening again today in Prime Minister Modi’s time, as far as legislation is concerned.

Yes, as far as legislation is concerned. Actually, so far there has been no… it could be because there is no need for constitutional groundwork to be laid… but so far actually I would say, it has been a lot better because there hasn’t been any attempt to make any constitutional amendments to force through a particular political position.

Which is also the case that Nehru makes for his amendment is that we have been promising this to the people and we can’t now go back to them (interrupted)

Yes, that it has been part of the party’s agenda for the previous 30 years...

Yeah, exactly.

On the question of freedom of speech and expression, when people compare the American and Indian first amendments to the respective Constitutions, it is often cited that their amendment strengthened the freedom of speech and ours went the other way. But isn’t it also true that in its several subsequent judgments, the Supreme Court strengthened freedom of the press and freedom of speech by circumscribing restrictions? The law of sedition, often used wrongly to curb political dissent and expression, was, for instance, circumscribed in subsequent judgments.

So the Supreme Court has, in a way, clawed back some of what it lost in 1951 but it can’t undo what the Parliament has done. For example, section 124(A), which is sedition, which is such a hot potato, it hasn’t been able to read it out of the statute books. Which is what the original position had been in 1950.

You write how both Prime Minister Jawaharlal Nehru and Home Minister Sardar Patel did things they initially spoke against. In the case of Nehru, sedition law, among other things, and in the case of Patel, the prevention detention law. What compelled them both to go ahead with these changes?

What happened with preventive detention is that they didn’t have any advisory boards so they hadn’t really prepared for it very well and so when it’s challenged, it’s struck down on those grounds that there are no advisory boards. So they had to pass a new preventive detention act and Patel is dealing with communist insurgency in Telangana and protestors in Mumbai and Madras, and he is a tough no-nonsense figure…

So for Patel, security was paramount. While Patel does talk about it in terms of security, he also doesn’t want to play around with it...so, he recognises at least the need to be, if not stick to constitutional principles, seen as sticking to constitutional principles.

With Nehru, it’s a bit different because he gets very, very worked up about criticism. He sees as him being bullied into taking a position on the war with Pakistan over Bengal, he sees it as a conspiracy to wreck his proposed discussions with Liaquat Ali Khan. And he repeatedly goes on to berate the press for “malicious propaganda”...

So you are saying, he was basically cornered from all sides of political opposition and he, probably in a moment of weakness, decided to use the iron hand, in a sense.

I don’t think it was a moment of weakness. Nehru thought his project was greater than everyone else and the Constitution itself. He doesn’t hide that fact…

So you’re saying that this great democrat had, in the best case, an arrogant and, in the worst case, a dictatorial side to him.

He was very honest about it himself. In the 1930s when he was writing about himself, he is very honest, he calls himself impatient, he suspects that if he has executive power, he might sweep away the slow moving processes of democracy…

That sounds very close to what critics say about Prime Minister Modi. The impatience with processes of democracy… again history repeating itself.

Some would say, it is history repeating itself. I would say, India has always been this way. It has never been any different. This is the Indian state. This is the Indian politics.

But except, qualitatively, people in charge of the Indian state now seem to have a specific project they are working towards.

So did Nehru.

Of course.

The difference is only ideological.

And in the methods, you are saying there is not much difference.

Yes, I don’t think so.

book cover.