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Curbing of freedom arbitrarily, a sign of dictatorship

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In this topic we are going to discuss two Instances were grave violation of Freedom, be it Article 19, Freedom of speech & Article 21, Protection of life and personal liberty and other Fundamental right’s, was done. Focusing India.

Point No.1: Machiavelli Jawaharlal Nehru, acts to curb freedom

In this point we are going to discuss how Article 19 was amended for sake of something which resulted in and which was good for nothing.

Before diving into the topic let’s first comprehend what freedom of speech ‘Is’, (hereinafter I will be using only freedom of speech in which the word ‘expression’ and ‘press’ should be construed) according to Constitution of India, if we see Article 19(1)(a) it’s says; Protection of certain rights regarding freedom of speech etc (1) All citizens shall have the right (a) to freedom of speech and expression, and as every right has ‘Reasonable Restriction’ to it this article also come under the ambit of Reasonable Restriction .

just for point to take into consideration that even in freedom of speech, freedom of press is included(As it was said by various supreme court judgement) .

source: Original Constitution.

This is the screenshot from the original constitution and as you can see In 19(2) some Reasonable Restriction are provides pertaining to subclause (a) of clause (1) and those are, libel slander, defamation, contempt of court, decency or morality, security of the state, or tends to overthrow, the state.

But after 1950, some changes were brought in this article through First constitutional amendment,1951 and through sixteenth Constitutional Amendment,1963(hereinafter Constitutional Amendment’s will be abbreviated as ‘CAA’)

1st CAA
16th CAA

Mookerjee was one of the primary targets of the first amendment , by which the words “friendly relations with foreign States” were introduced as an exception to the right to free speech.

so when India and Pakistan were Partitioned( As Jinnah any how, even though he know that what the outcome could and would be, wanted a country for Muslim but on the other side India who, I don’t know why, wanted to be secular country, even though no opinion of its citizen was taken regarding this through referendum or plebiscite or from any method, Indian though being Hindu country can be a secular country as it’s dharma ‘accept anyone Peacefully’), particularly this was time of 1949–50, were large-scale communal riots in East Pakistan (now Bangladesh), which led to a huge exodus of Hindus into West Bengal. In the wake of these riots, the Prime Ministers of India and Pakistan, Nehru and Liaquat Ali Khan, signed an agreement known as the Nehru-Liaquat Pact or Delhi Pact, 8th April 1950, aimed at securing peace and ensuring that both countries would protect their respective minorities

source: Sardar Patel’s Correspondence Volume10

Nehru wrote, refer above image, to Sardar Vallabhbhai Patel, 26 March 1950, alarmed by the fact that Hindu Mahasabha was speaking about “Akhand Bharat” (or unified India), which is a direct incentive to conflict. so according to him this can harm protection to Minorites.

sounding hilarious to me as we all have know Pakistan and his treatment toward to their Minorities, doesn’t matter what year it is doesn’t matter what pact you are signing he is infamous for being fanatic, Which I’m to going to prove in my later point’s.

even Nehru said “whatever Pakistan may do”, India has certain responsibility. this raise few question i) Nehru was not relying on Pakistan that whether they are surely going to protect it’s minority or not, if this was the case than why he has still sign the pact and put Minority (which is Hindu obviously) in danger. ii) he, from starting has knowledge about Pakistan that they not a ‘ friendly foreign county’ but a Fanatic but, still relied on them and signed a pact, and it doesn’t matter to Nehru how Hindus will be treated in Pakistan as he want to maintain his shinning image of ‘secular’ and show the word how ‘secular’ he was?

Patel responded, refer below image,by writing a letter to Nehru on 28 March 1950. “We are now faced with a Constitution which guarantees fundamental rights — right of association, right of free movement, free expression and personal liberty — which further circumscribe the action that we can take”

source: Sardar Patel’s Correspondence Volume10

two day’s before the pact signed Mookerjee has resigned, refer below image,by saying , “The agreement which, I suppose, will be finalized today does not touch the basic problem and is not likely to offer any solution”. “In my humble opinion the policy you are following will fail. Time alone can prove this”

On 29th June, 1950 Nehru wrote to Patel, refer below image, and said “chief culprit” against the smooth working of the pact was “Hindu Mahasabha propaganda”, “the Calcutta Press as well as “Syama Prasad Mookerjee”.

I will in later Point’s of this topic are going show how ‘smoothly does this pact is actually going on’.

source: Sardar Patel’s Correspondence Volume10

on 3 July, 1950 Patel wrote to Nehru, refer below image and said “ I find no legal powers to deal with either Press or men like Syama prasad Mookerjee”.

“I drew your attention to the Supreme Court decision in Cross Roads and Organiser cases (Romesh Thapar v. State of Madras AIR 1950 SC 124 and Brij Bhushan v. State of Delhi AIR 1950 SC 129).That knocks the bottom out of most of our penal laws for the control and regulation of the Press.”

even Patel is admitting freedom of speech can’t be control and regulated

even Nehru was not sure, refer above image, about his policy it say’s the future will show, whether his policy is correct or not.

we will discuss in later face that, do future has shown the result of his policy or not.

Before signing of this pact Patel wrote to Nehru,25th February 1950, and said, refer below image,“ We have had sufficient experience of the implementation of agreements with Pakistan. We have also had a bitter taste of the protection which it affords to minorities. If anybody had any little faith in the good intentions of Pakistan, East Bengal should shatter it completely. To me, the whole matter seems to be so unrealistic in the present circumstances that I wonder if we cannot put an end to this talk, at least for the time being.”

as you can see Sardar Patel have even tried to warn Nehru but, can you tell someone who is submerged in power and busy in creating his shinning image to the world. After reading the letter you can also say and predict with surety the future of the pact, a fatal or a success one, regarding this we will be seeing in my upcoming point with proof

source: Sardar Patel’s Correspondence Volume10

Now let’s discuss what was was future of the pact and how successfully it was implemented

source: Eminent_Parliamentarians_Series_Syama_Prasad_Mookerjee.

both Patel and Mookerjee have said that Pakistan is not Friend whom should be trusted but, Nehru being on post of PM can’t see what they can see?

AS what Mookerjee said “I was amazed to hear his statement, which has been repeated many times, telling the public that the problem is practically solved, that people are not coming in large numbers, that there are no passport difficulties — they are virtually nil-and that except the matter of rehabilitation which, of course, is undoubtedly important, for the time being there is no other trouble. I join issue with him, Sir. That is not the correct position. Undoubtedly the number of people has been reduced. An hon’ble, member said the other day that it was an inconsistent attitude. ‘You say on the one hand that these people are being squeezed out and on the other hand, they are being prevented from coning. So if Pakistan wants to drive them out, why are not people coming in larger numbers?”

“The point is that Pakistan policy is that the Minorities either should go or those who remain will remain as converts or serfs.”

The passport system has been introduced. as it was said that on account of the passport system, people are coming away

So Now even our P.M has started to lying openly. I’m not shocked at all as the biggest lie ever made was ‘pact being peaceful’, rofl.

Now let’s see “ NOTE ON THE CONFIDENTIAL CONVERSATION AT DACCA ON 25 MAY 1950 BETWEEN MR. J. N. MANDAL AND MR. T. V. VENKATRAMAN, THE HINDU, CALCUTTA CORRESPONDENT” & JOGENDRA NATH MANDAL’S RESIGNATION LETTER TO LIAQUAT ALI KHAN” which will disclose bitter reality of, before and after, the pact.

source: NOTE ON THE CONFIDENTIAL CONVERSATION AT DACCA ON 25 MAY 1950 BETWEEN MR. J. N. MANDAL AND MR. T. V. VENKATRAMAN, THE HINDU, CALCUTTA CORRESPONDENT
wsaw
source: JOGENDRA NATH MANDAL’S RESIGNATION LETTER TO LIAQUAT ALI KHAN

even S.P. Mookerjee, in parliamentary speech regarding first Constitutional amendment has said that, refer below image, “If he says as the head of the Government that he is prepared to allow any viewpoint to be circulated within the country — and that is what we understand by democratic freedom — so long as it does not advocate chaos, I would be at one with him. If he says that because he does not like that anybody should speak about the annulment of the partition he means to prevent us and therefore wants to put these words in the Constitution and later pass some law consistent with them, then I say it is most arbitrary and if done, will lead to very serious consequences.”

“Partition has been a mistake and has to be annulled some day or other should i(Mookerjee) not have right to say that”

so basically what my protestation is ,Article 19 was amended by 1st amendment on 18th June,1951, and through which exception( friendly relations with foreign States) or let’s say a restriction was inserted, which was not even there in the original constitution, into Freedom of speech, just to curb Right’s for what? to protect what? a pact? a so called peaceful agreement to protect Minorities? which was good for nothing. even we have discussed that how Pakistan on its part has just a tear apart the whole concept, purpose for which the so called agreement was made.

By this, we all can now unequivocally say as it is discernible too that, what was the outcome of the pact was it a success or failure, of course this pact doomed to be a fiasco, as here you are taking about none other Pakistan, which was sprouted out as a subterfuge by a fanatic mindset person called as Jinnah, who himself does not care about the outcome of the partition.

Point No.2 : Snollygoster Indira Gandhi, act’s to curb Freedom:

In this point we are going to discuss the how Smt. Indira Gandhi who is even called as the ‘Iron lady of India’ with that iron only she has beaten and thrashed freedom out of the hand’s of Indian citizen during Emergencies, imposing of which was not even constitutionally correct but, before that let’s understand what was the reason behind so called 1975 Emergency.

June 12, 1975 Allahabad High Court passed a judgment holding that then Prime Minister Indira Gandhi was guilty of electoral malpractices, and disqualified her from holding public office for 6 years. It led to the imposition of Emergency in the country for two years.

so it all started from the year 1967,In 1967, Shri Morarji Desai joined Smt. Indira Gandhi’s cabinet as Deputy Prime Minister and Minister in charge of Finance. In July, 1969, Smt. Gandhi took away the Finance portfolio from him. While Shri Desai conceded that the Prime Minister has the prerogative to change the portfolios of colleagues, he felt that his self-respect had been hurt as even the common courtesy of consulting him had not shown by Smt. Gandhi. He, therefore, felt he had no alternative but to resign as Deputy Prime Minister of India.

In 1969 congress was split into two, on faction was led by Smt. Indira Gandhi, called as Congress (R), and other faction was led by shri Morarji Desai , called as Congress(O). Indira Gandhi has insisted President V.V Giri to dissolve the Lok Sabha & it was dissolved on 26th dec 1970, country was put into or let’s say force into election.

Indira Gandhi was contesting election from the Rae Bareli constituency in Uttar Pradesh, her toughest competition was Raj Narain, but fortunately or unfortunately, i keep on you to decide, Smt. Indira Gandhi won the election by 1,10,000 votes. No one as doubted her election but shri Raj Narain was skeptic about it, sir Narain challenged Gandhi’s election before the Allahabad High Court by filing an election petition, he was Represented by Shanti Bhushan Ji (father of Prashant Bhushan Ji).

(A brief about election petition- An Election petition is a procedure for inquiring into the validity of the election results of Parliamentary or local government elections. Election petitions are filed in the High Court of the particular state in which the election was conducted. Therefore, only the High Courts have the original jurisdiction on deciding on election petition. such a petition has to be filed within 45 days from the date of declaration of the election results. grounds for filing an election petition or declaring an election void is under section 100 of the Representation of People Act, 1951. Section 123 of the RP Act lists certain corrupt practices which, if proved successful, can be grounds to declare the election of a candidate void. While hearing an election petition, the High Court being the court of first instance, exercises powers similar to a trial court. Thus, there is cross-examination of witnesses and detailed examination of evidence which is normally employed in trial courts and not High Courts.)

let’s discuss what are the Findings which are against Gandhi as even are proved in Hight court and even H.C has nodded and concluded about it :

i)Used government machinery to set up stage, loudspeakers; This, the High Court held, amounts to a corrupt practice under Section 123(7) of the Representation of the People Act.

ii)Use of Gazetted officer as an election agent; The second finding against Gandhi was regarding the employment of Yashpal Kapur as her election agent. This was in violation of Section 123(7) of the RP Act, the High Court concluded.

On June 24, a vacation bench of the Supreme Court allowed a partial stay of the judgment after Gandhi had appealed against the High Court verdict.

The Supreme Court’s interim order passed by vacation judge, Justice VR Krishna Iyer, said that she could continue as Member of Parliament (MP) in the Lok Sabha and could attend the House, but could not participate in its proceedings or vote as MP. She also could not draw any remuneration as an MP.

Importantly, the apex court allowed her to continue as Prime Minister and allowed her to speak and participate in the proceedings of the House and to draw salary in her capacity as Prime Minister.

The order by the apex court, while not completely against Gandhi, did not satisfy her. She wanted a blanket stay on the Allahabad High Court judgment. Since the Supreme Court did not grant her that, National Emergency was proclaimed the very next day, June 25.

After the judgement of the Allahabad High Court declaring Smt. Gandhi’s election to the Lok Sabha null and void, Shri Desai felt that in keeping with democratic principles, Smt. Gandhi should have submitted her resignation. Shri Desai was arrested and detained on June 26, 1975, when Emergency was declared. He was kept in solitary confinement and was released on January 18, 1977.

original Gazetted declaration of the Emergency

above image is the original Gazetted declaration of the Emergency.

from here on we are going to discuss, what Article 352 say regarding imposition of National emergencies, how 38 and 39th amendment was brought to curb judicial power, How provision of MISA provision was pretzel and abused, how people were arrested and murdered blatantly, was imposition of additional emergency is allowed by constitution, if not then does 1975 emergencies was constitutionally correct? all these and more are going to be unveil from here on point’s.

Source: Original Constitution

In original constitution there was the term called ‘Internal disturbance’, as you can see from above image,(but this was changed to Armed Rebellion after 44th CAA) which has a very vogue interpretation and this was misused and abused by Indira Gandhi the ground by which emergency has been imposed and even it was done through the oral order of the PM to the then President, Fakhruddin Ali Ahmed, because of these only through 44th CAA it was inserted that, “The President shall not issue a Proclamation under clause (1) or a Proclamation varying such Proclamation unless the decision of the
Union Cabinet (that is to say, the Council consisting of the Prime
Minister and other Ministers of Cabinet rank appointed under article
75) that such a Proclamation may be issued has been communicated to
him in writing.” this ‘In writing’ was not there in Original Constitution. because President of India on the advice of Indira Gandhi and without the approval of her Cabinet, signed a proclamation to “declare that a grave emergency exists whereby the security of India is threatened by internal disturbances” and also without any written order

Source: shah commission of Inquiry 3rd and final report

“Intelligence bureau had not submitted any report suggesting that the internal situation in the country warranted Imposition of internal emergency.”

even cabinet was not aware of the proposal except shri Brahmanada Reddy, Home Minister, even though he was also not consulted.

3rd December 1971, during the Indo-Pakistan War, an emergency was declared in the country, this was India second emergency though the hostilities ended in two weeks, in 17 December, the state of emergency was not revoked, while second emergency still in place Mrs. Indira Gandhi was declared India third emergency, even though the ground on which internal emergency was declared was not there, as you can refer to the above image,

“even the commission say, in the opinion of them, constitution does not contemplate proclamation of emergency upon the emergency already existing, nor prevent the court from entertaining any challenge to the declaration of this additional emergency. but the provision of Constitution was Amended by 39th CAA, which prevented the challenge being raised.”

39th CAA
39th CAA

10th August, 1975 By the 39th Constitution Amendment, the elections of the Prime Minister, President, Vice President and Speaker could not be called into question before any court. It also added that any order made by any court setting aside an election of these four functionaries would be deemed void.

  • these was brought as she does not want any one to Raise question regarding her election thereby curtailing the freedom of citizen to ask, even though they can’t approach the court.
  • supreme court in Indira Nehru Gandhi vs Shri Raj Narain & Anr on 7 November, 1975 has declared clause (4)&(5) of 39th CAA as unconstitutional though it was repealed from the constitution only in 1978 by 44th CAA, though wantonly deprecating the Supreme Court.

1st August, 1975 BY 38th CAA, Made the declaration of emergency by the President non-justiciable. Made the promulgation of ordinances by the President, governors and administrators of Union territories non-justiciable.

  • therefore barred the Judicial review, In the Kesavananda Bharati judgement, 1973 it was observed that, “Our Constitution is federal in character and not unitary. In a federal structure the existence of both the Union and the States is indispensable and so is the power of judicial review”. “We are unable to see how the power of judicial review makes the judiciary supreme in any sense of the word. This power is of paramount importance in a federal Constitution. Indeed it has been said that the heart and core of a democracy lies in the judicial process”; (per Bose J., in Bidi Supply Co. v. The Union of India [1956] S.C.R.

18th December, 1976 BY 42nd CAA, it was made that, “No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article whether before or after the commencement of of Constitution (Forty-second Amendment) Act, 1976] shall be called in question in any court on any ground.

For the removal of doubts, it is hereby declared that there shall
be no limitation whatever on the constituent power of Parliament to
amend by way of addition, variation or repeal the provisions of this
Constitution under this article.”.

  • but, supreme court in Minerva Mills Ltd. & Ors vs Union Of India & Ors on 31 July, 1980. I would therefore declare Section 55 of the Constitution (Forty second Amendment) Act, 1976 which inserted sub-sections (4) and (5) in Article 368 as unconstitutional and void on the ground that it damages the basic structure of the Constitution and goes beyond the amending power of Parliament

so, basically in whatever possibility Indira Gandhi can, she has try to curb and snatch even the thinnest or slightest of freedom available to citizen during Emergencies

Do taken into consideration that according to Article 358 during emergencies, Article 19 is automatically suspended be it on any ground but, after 44th CAA, 1978 it was amended and the words “While a Proclamation of Emergency declaring that the security of India or any part of the territory thereof is treated by war or by external aggression is in operation” was added so now on two ground article 19 can be suspended. And Article 359, further empowers the President to suspend the right to move any court for the enforcement of the fundamental rights and can be done by an order of the President. He may mention in his order the right whose enforcement is to be suspended. The order of the President may extend to the whole or any part of the territory of India. But after 44th CAA, 1978 the word’s “except articles 20 and 21” in Article 359 was Inserted.

this means citizen can’t go to supreme court under article 32 because of Article 32(4) but can go to High court under Article 226.

even supreme court has denied citizen there right to use writ under Article 226, if we have to say then it was the Darkest hour of Indian judiciary as in ADM Jabalpur v. Shiv Kant Shukla, or the Habeas Corpus case as it came to be known, was a blot on the judiciary. No citizen had any right to move to the courts against any arbitrary action by the government, which resulted in the loss of his/her liberty or even life.

Justice A.N. Ray was appointed as the CJI on April 25, 1973, by superseding three senior-most judges. The supersession was made on the day following the Supreme Court’s judgment in the Kesavananda Bharati case. he beholden Shri Indira Gandhi.

source: Additional District Magistrate, … vs Shivakant Shukla on 28 April, 1976

so basically when Supreme court who is called as “sentinel qui vive”(which also In Padma v. Hiralal Motilal Desarda case of 2002, the Supreme Court had said that the courts exercising the power of judicial review both under articles 226, 32 and 136 of the constitution act as a sentinel on the qui vive.) does an act which curb, abridges or snatch the freedom of citizen, as you have see in ADM Jabalpur case, then who does the citizen of Indian will believe?

if we see, in the Sri Pankaj Panwar vs Lalit Kala Akademi & Ors on 7 July, 2014, IT WAS Observed that, refer below imageDecision In ADM, Jabalpur case CJI, M.N . Venkatachalia, observed that the same “should be confined to the dustbin of history.”

SOURCE: Sri Pankaj Panwar vs Lalit Kala Akademi & Ors on 7 July, 2014

Now let’s discuss few example of what a person can do if power run through there head or if we have to say let’s discuss Sign of Dictatorship

source:Shah-Commission-of-Inquiry-3rd-Final-Report.

False criminal cases by CBI on the instance of Smt Indira Gandhi, unlawful detention under MISA, Re- arrest of person released on bail or other wise by courts.

let’s see few facts regarding MAINTENANCE OF INTERNAL SECURITY ACT, 1971, abbreviated as MISA, on 30 June 1975 An ordinance is passed amending the Maintenance of Internal Security Act (MISA), under which it is no longer necessary to disclose the reasons for arrest to the persons taken into custody.

MISA was also inserted in the 9 schedule of the constitution by 39th CAA(9th schedule which was brought through 1st CAA by none other than Jawaharlal Nehru, it bars the judicial review of any law placed under him though after subsequent judgement it)

source: Shah-Commission-of-Inquiry-3rd-Final-Report

Power supply to the Media houses are disrupted

source: The Emergency: A Personal History
in 10 June 1976, George Fernandes is arrested in Calcutta

Now see what Mr. Arun Jaitley has to say, do refer below image

12 November 197, Jayaprakash Narayan released on parole and taken to hospital, he wrote this letter, refer below image, on December 5 1975 from the Jaslok Hospital in Bombay

if you go through the interview taken by Thames tv: Indira Gandhi Interview | TV Eye | 1978 :

i) Interviewer: Do you ever feel you have in any way abused the trust that the Indian people have forgotten you

ii)Indira Gandhi: certainly not

iii) Interviewer: obviously, because that’s the a question directed towards the state of emergency which you declared in 1975 when you gave yourself very great powers, And you explained if I’m right when you wrote to the president requiring the permission to carry out state of emergency, Information ahs reached us which Indicates that there is an imminent danger to the security of India, what was the precise nature of that danger

iv)Indira Gandhi : well? you can’t say anything with great precision

how can someone being on such a responsible and respected post can’t say with precision the nature of danger because of which India security is threatened? how ridiculous as you are imposing additional emergency, as the second emergency of 1971 was already continuing, on the ground Internal disturbance still can’t say with precision?

so, basically what my point to prove is that the Political developments during this period were all aimed in the direction of suppressing democracy and turning India into a totalitarian state. Fundamental rights under Articles 14, 19, 21 and 22 were suspended, as even there was no so called ‘Internal disturbance’ but, just to muzzle the freedom so that no one dare to question her, she just kept the democracy into peril.

Both, father and daughter has done thing’s by which citizen has to suffer By and large.

(Note: this is one of the blog I have written on another platform, here I have written it by doing some infinitesimal editing just for good start, from now on both platform work will going to be separate)

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