The Tale Of Two First Amendments

In a landmark judgement delivered on June 30, 1971, the US federal Supreme Court upheld the right of The New York Times (New York Times Co. v. United States) to publish articles based on the Pentagon Papers.  

In 1967, Secretary of Defence, Robert McNamara commissioned the preparation of a top secret report (the Pentagon Papers) on the USA’s political and military involvement in Vietnam since the end of World War II. The report drew its material from the archives of the State Department, Defence and the CIA during the reigns of Harry Truman, Dwight D. Eisenhower, John F. Kennedy and Lyndon B. Johnson. Daniel Ellsberg, a former US Marine Corps officer and a strategic affairs analyst at RAND Corporation, was a member of the team which prepared the 7000-page report. The report made clear that all the administrations misled the American public and contrary to the government’s pronouncements, intensive bombing of North Vietnam, did not break the will of the ‘enemy’. 

In the initial years, Ellsberg supported US involvement in Vietnam. But by the time the report was finalised in 1969, he came to the conclusion that there was no possibility of the USA winning the war. An estimated 500,000 American soldiers participated in the war and by the time it ended in a fiasco for the US in 1973, it consumed 58,000 lives. In view of the general concern about mounting casualties, Ellsberg felt that the contents of the report should be shared with the public. In March 1971, Ellsberg (by then working with MIT’s Center for International Studies) shared parts of the report with Neil Sheehan, a reporter of The New York Times. The paper began publishing a series of front-page articles based on the report, from June 13, 1971. Articles based on the report also appeared in The Washington Post and the Boston Globe. After the third instalment was published, the US Department of Justice obtained an order from a local court restraining the papers from continuing the series, arguing that the publication was harmful to national security. The New York Times and The Washington Post approached the federal Supreme Court against the order. In a 6-3 ruling the Supreme Court held that the government was unable to justify its claim of harm to national security, and under the protection of the First Amendment, the papers had a right to publish the articles. 

The First Amendment to the US Constitution adopted in 1791 protects freedom of speech, religion and the press: 

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” 

The protective umbrella of the First Amendment stood the test of time and helped citizens and the press in freely exercising their freedom of speech. While adjudicating matters related to freedom of speech, US courts generally upheld the right, with the exceptions of libel, obscenity and sedition. For example, in Schenck v. United States (1919), the Supreme Court upheld the conviction of Socialist Party activist Charles Schenck after he urged young men in a pamphlet to dodge conscription during World War I. 

While upholding the secular nature of the constitution guaranteed under the First Amendment, the courts however, generally made a distinction between religious beliefs and civic practices. In Reynolds v. United States (1878), the Supreme Court upheld a ban on polygamy. In Braunfeld v. Brown (1961) the Supreme Court upheld a Pennsylvania law requiring business establishments to close on Sundays, against the objection of orthodox Jews. In Lemon v. Kurtzman (1971) the Supreme Court struck down a Pennsylvania law that allowed the state to pay salaries of teachers in Catholic schools.   

A Texas court held that Gregory Lee Johnson, a young communist broke the law by burning a flag in a protest against the Ronald Regan administration in 1984. The Supreme Court upturned the judgement and held Johnson ‘not guilty’. The US Congress responded to the ruling by passing the Flag Protection Act (1989). In United States v. Eichman (1990), the Supreme Court decreed the Flag Protection Act was unconstitutional. While the rulings were generally welcomed as a benchmark of liberal jurisprudence, Robert H Bork, former judge, Solicitor General and professor of law at Yale Law School differed. He felt that the “Court’s majority failed to see that no idea was being suppressed but a particularly offensive mode of expression.” He rejected the idea that “desecrating the flag should constitute a protected form of expression.” (Batchis, Wayne. 2016. The Right’s First Amendment. Stanford University Press.p.1) 

There cannot be greater contrast between the First Amendment to the US Constitution and the first amendment to the Indian Constitution. While the US amendment explicitly protected the freedom of the press, the Indian amendment was enacted as a peevish reaction to criticisms in the press. The Indian amendment was aimed at ‘imposing reasonable restrictions on the right [to freedom of speech and expression]’. 

Strangely, it was both the left and the right press that angered the administration to rush in to enact the first amendment within fifteen months of adopting the Constitution. In 1949, Romesh Thapar’s left-leaning weekly Cross Roads was banned in the erstwhile state of Madras. What was the reason for the ban? The magazine criticised the policies of the central government, especially its foreign policy. The Supreme Court struck down the ban in Romesh Thapar vs The State of Madras (1950). Similarly in 1950, the government sought to censor the RSS weekly Organiser. What was the reason for the pre-censorship order? The magazine criticised the response of the central government to the refugee influx from East Pakistan. The Supreme Court struck down the censorship order in Brij Bhushan And Another vs The State Of Delhi (1950).  

This is a slightly modified version of the article originally published in The Time Of India Blogs 

Labels: Boston Globe, Braunfeld v. Brown (1961), Brij Bhushan And Another vs The State Of Delhi (1950), Cross Roads, Daniel Ellsberg, Dwight D. Eisenhower, First Amendment, Harry Truman, John F. Kennedy, Lemon v. Kurtzman (1971), Lyndon B. Johnson, New York Times Co. v. United States, Organiser, Pentagon Papers, Reynolds v. United States (1878), RAND Corporation, Robert H Bork, Robert McNamara, Romesh Thapar, Romesh Thapar vs The State of Madras (1950), Schenck v. United States (1919), The New York Times, “The Right’s First Amendment” (2016), The Washington Post, United States v. Eichman (1990), Wayne Batchis.

The Story Of The Liberation Of Hyderabad

On this day in 1948, Hyderabad was liberated and integrated with the Indian Union. Here is a brief account of the liberation excerpted from ‘Twisting Facts To Suit Theories’ And Other Selections From Voxindica (2016. Authors Press. New Delhi), pp. 309–318    

The erstwhile Hyderabad state is in the heart of India bridging the north and the south. Surrounded as it was on all sides by Indian territory, it was a landlocked state with no access to the sea. What were then known as the Central Provinces lay to its north, Bombay to the west and the Madras Presidency to the south and east. It was predominantly a Hindu state with Hindus comprising 85% of the population. However, under the Nizam’s rule the bulk of civil service, police and armed forces were almost monopolized by Muslims. In the 132-member state legislative assembly constituted in 1946, the Muslims had ten more seats than the Hindus, to ensure the Muslims a majority and ipso facto a veto power over all matters.

Rejecting the June 1947 British partition plan, the Nizam demanded the status of an independent domain and membership of the British Commonwealth. He did not send any representatives to the Constituent Assembly. We are unable to ascertain whether the Nizam was able to gauze the mood of the people aright, with winds of independence and democracy sweeping across the landscape. But he was constrained by two factors. One was that the bulk of his administration (civil, military and police) were made up of Muslims who feared they might lose their elite position in a democratic set up. The second was Kasim Razvi’s Muslim communal organization, the Ittehadul-Muslimeen (MIM): 

“The Ittehad-ul-Muslimeen was a Muslim communal organization. Its leader was one Kasim Razvi who combined fanaticism with charlatanry. He had organized a shock brigade called the Razakars. The organization aimed at creating a theocratic and totalitarian State. Militarist demonstrations were part of their routine.”¹² 

The accession and integration of Hyderabad was complicated by another factor, which the Nizam and his advisers exploited to almost scuttle the process: 

“Sardar and V. P. Menon were dealing with the situation through me [K. M. Munshi, the Agent General of the Government of India in Hyderabad] to secure the accession of the State on the same terms as the accession of other States. Lord Mountbatten, the Governor General, carried on negotiations with the Nizam’s Prime Minister, Laik Ali, supported by Sir Walter Monckton, and was prepared to concede substantial autonomy to Hyderabad if the Nizam only signed a document to come into the Union. [...] Jawaharlal Nehru was averse to the line followed by Sardar.”¹³ 

The Nizam warned of communal trouble and even bloodshed in Hyderabad, in the event of his state’s accession to the Indian Union. As negotiations between a delegation sent by the Nizam¹⁴ and the Indian government were going on, the state was clandestinely preparing to take on the Union. It had placed an order for arms and ammunition worth three million pounds sterling with Czechoslovakia. It had also been in contact with Pakistan for a possible accession. 

Earlier, the Nizam’s British legal adviser Walter Monckton (a friend of Mountbatten, whose services he secured for the Nizam) was in touch with British Conservative party leaders like Samuel Hoare to negotiate separate Commonwealth membership for Hyderabad. This was even before the process of transfer of power by the British and the dissolution of Paramountcy began. Monckton was mediating with the Portuguese for the acquisition of port facilities in Goa and laying a railway line to the port. He advised the Nizam to have an association (which could be annulled at any time) and not accession (which was of a permanent nature) with India. This was probably the reason why the Nizam was willing to arrive at an agreement with the Indian government for his state’s association but would not sign the ‘Instrument of Accession’. He had sent his own draft of the agreement which the government of India was not willing to entertain. 

It was the avowed policy of the government of India that there would be no variation in the terms and conditions offered by it to the princely states. The rulers had to sign the ‘Standstill Agreement’¹⁵ and the ‘Instrument of Accession’¹⁶ without variation and at the same time. Despite this, as time was running out and to avoid a possible communal conflagration in the state, the Indian government agreed to sign an ‘Agreement’ (it was called ‘Heads of Agreement’) with Hyderabad that combines the gist of the ‘Standstill Agreement’, incorporating in it important matters like ‘defence’ and ‘external affairs’ (from the ‘Instrument of Accession’) along with a collateral letter from the Nizam. The drafts were passed back and forth between Delhi and Hyderabad amended each time to accord additional concessions demanded by the Nizam’s negotiating committee. The Nizam’s Executive Council deliberated on the last draft for three days and decided to accept it. But the Nizam postponed signing it again and again. In hindsight one might wonder whether the Nizam postponed it long enough for the MIM to mobilise enough crowds to blockade the members of the negotiating committee—which was to leave for Delhi to submit the ‘Agreement’ for countersigning and ratification. 

In the early hours of October 27 a mob consisting of twenty five to thirty thousand cadres of the MIM surrounded the residences of Nawab of Chhatari, President of the Executive Council, Nawab Ali Yawar Jung, Sir Walter Monckton, which were all in the same locality. Its objective was to prevent the negotiating committee members to leave for Delhi for concluding the agreement. The Nizam reconvened the Executive Council meeting. It was here his character appeared dubious. While on the one hand condemning MIM for threatening the negotiating committee members and physically blocking their departure to Delhi, he invited MIM leader Kasim Razvi to the meeting! Razvi wanted the Nizam to reject the negotiated agreement and insist on the Indian government signing the original draft provided by the Nizam. He was sure the Indian government would not resort to any precipitate action as its army was tied up in Kashmir. Indian troops were moved to Kashmir to repel the (Pakistani) tribal invasion that began on October 23. 

As negotiations with the Indian government meandered on, Kasim Razvi and his MIM were firming their grip on the Nizam. The Nawab of Chhatari resigned as the President of the Nizam’s Executive Council. At Razvi’s instance the Nizam appointed Mir Laik Ali a prominent businessman and a former representative of Pakistan in the UNO as its President. At the same time the negotiating committee too was reconstituted. While Nawab Moin Nawaz Jung and Pingle Venkatarama Reddy were retained, significantly Abdur Rahim a hard-core, fanatical member of the MIM was included as the third member. The reconstitution of the Executive Council and the negotiating committee with MIM fanatics brought about a dramatic change in the Nizam’s approach to whole issue. In a fresh letter sent to the government of India the Nizam threatened that if negations broke down this time, he would immediately conclude an agreement with Pakistan. The Nizam, it appeared, was all along planning his moves in consultation with Pakistan. 

The Nizam finally signed the two documents, the ‘Standstill Agreement’ (or the renamed ‘Heads of Agreement’) and the collateral letter on November 29, 1947. The ‘Standstill Agreement’ was valid for one year, as agreed upon earlier. Indian leaders in Delhi had divergent views on the agreement. Nehru thought that at last peace was bought in the south. Mountbatten thought that he bought time to soften the Nizam and would be able to persuade him to sign the ‘Instrument of Accession’ eventually. Sardar with his uncanny vision was doubtful. He was right. Declassified secret documents relating to the liberation of Hyderabad bear this out. The Nizam had said that the signing of the agreement was just to ‘mark time.’ He was prepared to have a European Prime Minister, if it would help him avoid accession to India and get him membership of the Commonwealth. Intelligence reports of the time confirm secret gun running between Pakistan and India with planes carrying illegal arms landing in Bidar and Warangal.¹⁷ 

The administration in Hyderabad was waiting for the Indian army to be withdrawn and recoup its strength. Almost immediately after signing the agreement, which it had no intention of honouring, it started needling the Indian government. It issued two ordinances, one for banning export of precious metals from Hyderabad to India and the other rendering Indian currency invalid in Hyderabad. It appointed a Public Relations Officer in Karachi and advanced a loan of ₹20 Crore to the government of Pakistan without consulting the Indian government. It did its best (or worst) to make the functioning of K. M. Munshi (Government of India’s Agent General in Hyderabad), very difficult. His movements were restricted, so much so, he became a virtual prisoner in his own residence in Hyderabad. 

While the government of India was lulled by a false sense of achievement, the MIM in Hyderabad was up to its treasonable activities. Razvi began inciting Muslims and abusing Hindus in his rabble rousing speeches. The objective of the Razakars was to terrorise the Hindu population. Munshi kept filing reports and the government of India was waiting and watching. Neighbouring states like Bombay and the Madras Presidency were complaining about the attacks on their borders by the Razakars. In one such incident, the Madras-Bombay mail was waylaid in the Gangapur railway station in the Hyderbad state. Hooligans armed with daggers, hockey-sticks and lathis attacked the train from both sides, while policemen on the platform looked on. While the mob attacked the train, armed Razakars stood by on the platform. In the incident two men travelling in the train were killed, eleven seriously injured and thirteen were reported missing. The law and order situation in many parts of the state deteriorated. In Jalna, Aurangabad, Parbhani and Nanded districts looting, arson, murders, rapes and molestation of women were reported, in which surprisingly, police personnel joined the Razakars. In despair, Hindus sought shelter outside the state. J. V. Joshi a member of the Nizam’s Executive Council felt compelled to resign his position. In his resignation, he detailed the deteriorating law and order situation: 

“A complete reign of terror prevails in Parbhani and Nanded districts. I have seen in Loha a scene of devastation which brought tears to my eyes—Brahmins were killed and their eyes were taken out. Women had been raped; houses had been burnt down in large numbers. The most disconcerting news which reached us was that the Razakars had allied themselves with the Communists. In 1943 the Nizam had banned the Communist Party throughout the State. This ban was now lifted. Moreover, we came to know that the Communists were being supplied with arms.”¹⁸ (Italics added.) 

So much for the nationalism, patriotism and law–abiding nature of the communists! As the Government in Hyderabad continued to violate the ‘Agreement’, Mountbatten and Nehru continued to hope things would sort themselves out on their own. They gave more time and more concessions to appease an administration, which was quite apparently controlled by the MIM. Mountbatten was to retire on June 21 and would leave India for ever. He wanted a prize trophy to take home. Nehru indulged him. Patel willy-nilly went along, probably marking time till his departure. Another—futile—‘Heads of Agreement’ (with obviously more concessions, beyond which, even the pliant Nehru could not stretch) was broached, discussed, debated, and tossed back and forth between Hyderabad and Delhi. 

The view in Hyderabad, no doubt formulated by the MIM, was that no matter what the provocation, the Indian government would not dare send its troops into Hyderabad as it would anger the entire Muslim community in the country. A section of the political establishment in the government in Delhi was apprehensive of possible repercussions and hence wanted to avoid decisive action. In the third week of August, Laik Ali complained to the government of India about ‘flagrant violations’ of the ‘Standstill Agreement’. Even before receiving a reply, the Nizam administration addressed a letter to the president of the UNO. 

In the meantime the law and order situation deteriorated further. After careful consideration of the pros and cons, much against the wishes of Jawaharlal Nehru, the Home Ministry decided to move Indian troops to Hyderabad. The operation to liberate Hyderabad was codenamed ‘Operation Polo’. It was led by Maj. Gen. J. N. Chaudhuri. On September 13, the army marched into Hyderabad along two axes: Sholapur–Hyderabad and Bezawada–Hyderabad. There was some resistance on the first two days but it petered out after that. The Hyderabad army surrendered on September 17. According to Menon, the casualties on the Indian side were few but on the other side: 

“[..] owing to scrappy operations and lack of discipline, the Irregulars and the Razakars suffered comparatively more casualties. The number of dead was a little over 800. It is unfortunate that so many should have died in this action, though the number is insignificant when weighed against the killings, rape and loot inflicted by the Razakars on the Hindus of the State.”¹⁹ (Italics added.) 

Menon, as befits a former bureaucrat, gave a staid, straight forward account of the happenings leading to partition and the integration of states, without frills and embellishments. As it was a personal narrative there was perhaps a slight accent on ‘I’ but he steered clear of either eulogizing or criticizing the principal players, including Mountbatten. Therefore, there is no reason to doubt the casualty figures mentioned by him. Why bloated figures of huge numbers of casualties of the Razakars and the Muslims, propagated by Pakistani sources should be accepted in India as eternal truth and etched in popular perception is a mystery. 

Maj. Gen. Chaudhuri was appointed the Lt. Governor of Hyderabad on September 18. On September 23, the Nizam cabled the UNSC, withdrawing his earlier complaint. The integration of the state into the national mainstream took another three years. There is a footnote to the Hyderabad story told by K. M. Munshi: 

“If Jawaharlal had his way, Nizam’s Hyderabad would have remained unintegrated and would have become a second Pakistan in the ‘belly’ of India, an intensely hostile State separating the North and the South—although after the success of the police action Jawaharlal Nehru was the first to go to Hyderabad to receive an ovation as the liberator of Hyderabad. [...] As the Hyderabad situation was inexorably moving towards a climax, due to the intransigence of the Nizam and his advisers, Sardar considered it advisable to let the Nizam’s Government know clearly that the patience of the Government of India was fast getting exhausted. Accordingly a communication to that effect was sent from the States Ministry by V. P. Menon. [...] When Jawaharlal Nehru came to hear of this, he was extremely upset. A day before our army was scheduled to march into Hyderabad he called a special meeting of the Defence Committee of the Cabinet [...] flew into a rage and upbraided Sardar [...] He concluded his outburst with the remark that in future he would himself attend to all matters relating to Hyderabad. [...] The meeting [however] dispersed without transacting any business.”²⁰ 

………………………………… 

N. B.: End note numbers are as in original. 

¹² Menon, V. P. (1955). “The Story Of The Integration Of The Indian States”. Longmans Green & Co. London. p. 221. 

¹³ Munshi, K. M. (1967). “Indian Constitutional Documents: Volume 1. Pilgrimage to Freedom” Bharatiya Vidya Bhavan. p. 169. 

¹⁴ Nawab of Chhatari, President of the Executive Council, Nawab Ali Yawar Jung, Sir Walter Monckton, K.C., Abdur Rahim and Pingle Venkatarama Reddy. 

¹⁵ It is an agreement that assures continuance of any ‘existing agreements and administrative arrangements in the matters of common concern’ existing between the Indian state and the British government. It specifies eighteen administrative areas in the Schedule attached to the agreement. It also signifies the end of Paramountcy of the British government. 

¹⁶ It is an agreement signed by the ruler of the princely state and the dominion of India subjecting the princely state to the Government of India Act 1935. The Instrument of Accession binds the state to the jurisdiction of the Union government for making laws in the areas of Defence, External Affairs, Communications and some ancillary matters. 

¹⁷ Joseph, Josy. (2013). “Gandhi is an old fool and his character is doubtful, Nizam said”. The Times of India. August 1, 2013. See http://goo.gl/t22HZs 

¹⁸ Menon, 1955. Cited supra. p. 252-253. 

¹⁹ Menon, 1955. Cited supra. p. 256. 

²⁰ Munshi, 1967. Cited supra. p. 170