By Prof. K. V. RAO, M.A., M. Litt.
Five years form a very short period in the life of a nation, but that should not deter us from congratulating ourselves on the completion of the first quinquennium after the inauguration of the Constitution of India. Strangely enough, as in the case of the life of a child, the first five years reveal and determine so much of the future in the case of a Constitution, especially in a country that has borrowed so many institutions from the West. At the time of the making of the Constitution and even afterwards, many people were speculating, rather pessimistically, whether the whole edifice would not prove to be a house of cards. Of the many delicate features of the Constitution, one is the institution of ‘collective responsibility’ with a ‘nominal President’ at the head. Will the President remain meek and good; would there be fair elections, what about the nominated Governors, and so on. Five years of working of the Constitution have dispelled all the doubts, and laid the foundations of a solid Constitution for the country based on the British model. What a great achievement it is can be appreciated if only we compare the events of the period in many of the countries (outside the English-speaking regions), especially in Pakistan. With law and order well-preserved, with one writ running throughout the country, and the whole nation making rapid strides towards economic development and even a socialistic pattern of society, one is naturally tempted to turn back with a smile and congratulate himself and his nation. There is a feeling, as Nehru reported to the A.I.C.C., “of self-reliance which comes from great tasks undertaken and fulfilled, and faith in the future destiny of our country and people.”
To the stabilised foundations of the Constitution is added a new definiteness of our goal of the future society. The greatest contribution of this Avadi resolution is not that we will have a sort of Socialism in the future, but that it relieves us from all the previous confusion about the policy of the Government and the future of our society. From the Objectives Resolution of 1946 with ideas of a Sovereign Democratic Republic established for the ‘common man’, we have travelled a long way through the ‘Welfare State’ ingrained with ‘mixed economy’ based on the Directive Principles of State Policy, to arrive at this new definition of our goal. But is it new? There seems to be some confusion still in the minds of many whether this is a new definition or only presenting the old one with a new label. Pandit Nehru, speaking in London, said that there was nothing new in it but this has not ended the possibilities of speculation. The best definition of this new slogan has been given so far by Dr. Radhakrishnan. He said, speaking at the time of the opening of the Burmah-Shell Refinery at Bombay: “When we speak of a socialistic pattern of society, we do not wish to uproot every enterprise that exists and recreate the industrial world anew; we wish to lay stress on the social vision, the social approach. He also assured private industry that so long as they work ‘with honesty of purpose and a sense of social justice and contribute to a rapid improvement of the living conditions of the common man and larger employment”, they will have full scope for functioning in this country, a country, let us add, that has believed so firmly in the doctrine of ‘co-existence’ in the broader world. If this is all that is meant by the new goal, it is nothing but a mixture of the ‘common man of 1946’ and the ‘mixed economy’ of yesterday. Whatever it might be, one point is certain, that it is not pure Socialism that we wish to see here. For one thing, we do not know what that blessed word really means–it means different things to different people; and that is one of the reasons why we have to discard it here in this country. It is only a ‘socialistic pattern’, but not Socialism as it is understood in the West; for, has not Socialism in the West failed completely? Take for instance the ‘testimony of a great authority like G. D. H. Cole. Writing in the “New Statesman and Nation”, Prof. Cole has said that “in France, in Belgium, and in Holland, hardly anything of Socialism survives; for Socialist Parties, which are supported only by a fraction of the working-class and show no sign of increasing their influence, are clearly helpless in the matter of changing the basis of the social order.” That is the crucial point. Socialism in the West, is largely understood as a part of the class-struggle, whereas we want it to mean something more than, and distinct from, a mere class-struggle. It is a whole nation struggling within itself for a new social order. In a similar way ‘Co-operative Common wealth’ gives a particular narrow meaning to the West and that is why we avoid it. ‘Welfare State’ and ‘mixed economy’ are all right as far as they go, but they only describe one aspect of our ideal, namely the economic order, whereas we want to deal with all aspects of our life–on the social, economic and political planes. Then why not call it ‘Sarvodaya’? It is because ‘Sarvodaya’, which is doubtless our final goal, is, on the other hand, more comprehensive than what we contemplate for the present Sarvodaya wants a society based also on high moral values; it requires a change of all our values in a radical way, and that is not our immediate ambition now. So it is merely a ‘socialistic pattern of society’, where the social objectives of our Preamble to the Constitution will form the sheet-anchor. We want to do justice to all, giving everyone social justice and equality of opportunity, and we want to keep the dignity of the individual–read these noble words of the Preamble once again–and yet we want to emphasise that everything is for the society, and no individual interests would be protected against the general interests of the society. Every opportunity will be given to all individuals to develop themselves on their own initiative and express their personality, but nobody would be allowed to injure the society at large. Social interests therefore set the limit to all individual initiative and enterprise. That is the new socialistic pattern of society that we want to evolve in this country.
But the question is: who will set the limit and where? This is not a new question either to our age or to our country. The best and the most simple definition of politics is that it is a science dealing with the problem of the Individual versus the State. This question was thoroughly discussed at the time of making the Constitution, and our Fathers thought that they arrived at a happy compromise between the absolute supremacy of the Legislature as in England, and the absolute freedom of the individual as in the U.S.A. Happily in 1947, we had before us the examples of the working of fundamental rights and freedoms in various countries; and we found that parliamentary sovereignty might result in the ‘tyranny of the majority’ while an unqualified Bill of Rights might endanger the very life of a nation. If the individuals require protection from the Government, the nation as a whole also requires protection from individuals. It was this necessity that led the American Supreme Court to invent various doctrines like the Doctrine of Police Powers to allow the State more and more powers to protect itself. If such Police Powers are required in the working of a government, then why depend upon the Courts to come to the rescue of governments, thought our Fathers. Thus came about the incorporation of our peculiar Bill of Rights, which one member even then described as giving liberties with one hand and taking them away with many hands.
Our Constitution tried to incorporate in our Bill of Rights the essence of what they can police powers, instead of depending upon the Courts; but it does not mean, as many unnecessarily misapprehend, that they wanted to by-pass the Courts. For one thing, as Sri Munshi remarked then, it is difficult to avoid the Courts. He said: “Even if you use the words compensation shall not be questioned in Courts’, the Courts will have a right to adjudicate upon what is the meaning of ‘questioned in Courts’...unless you revert to tribal law...you cannot escape the tribe of lawyers.” Wise sage as he is, Sri Munshi also said that “the rule of the tribe of lawyers is any day better than the rule of the tribe of tyrants.” For another thing, even the greatest enthusiasts of parliamentary supremacy realised that there should be an independent and impartial agency to adjudicate between Parliament and individuals. Thus even Pandit Nehru, who always thought that our Parliament should have the final say, had to admit that ultimately the Courts should be given the right to adjudicate. He said: “Within limits no Judge and no Supreme Court can make itself a third chamber. No supreme Court and no Judiciary can stantd in judgment over the sovereign will of Parliament representing the will of the entire community.” And yet he added: “As wise people, their (the Courts’) duty it is to see that in a moment of passion, in a moment of excitement, even the representatives of the people do not go wrong; they might. In the detached atmosphere of the Courts, they shou1d see to it that nothing is done that may be against the Constitution, that may be against the good of the country, that may be against the community in the larger sense of the term.
Having thus agreed that the Constitution itself should define the role of Parliament as well as the role of the Judiciary in setting the limits of the State and individual spheres, the Fathers began incorporating ‘exceptions to fundamental rights’, and then ‘exceptions to exceptions’ as Jennings calls them. The most important consequence of the structure is that the State has been tied down to certain limits (e.g. Arts. 19, 21 and 31) and the Courts to certain limits, and none can go beyond them, so that unlike the Courts in the U.S.A., who can grant any amount of power to the State in the name of police and inherent powers, the Courts in India will have to see whether the exceptions in favour of the State have been utilised within the limits set by the Constitution itself. This is a serious limitation which makes our Judiciary entirely different from those of the U.S. or U.K., and much of the criticism of the role of the Judiciary in Parliament at the time of amending the Constitution on both the occasions, is due to an inability to understand this peculiar feature.
If Article 31 had to be amended twice withtin the first six years of the inauguration of the Constitution, the blame or the need for it should be laid not only at the door of the Judiciary, but also at other quarters. First of all we have to remember that the original Article 31 was the result of much discussion and debate, and finally it was a compromise between two extreme views within the Congress Party itself. Secondly the Article was an omnibus one trying to cover four different kinds of taking over of property by the State in one simple Article. Thirdly, its interpretation has been left to Courts brought up in the conceptions of British jurisprudence, with all its limitations.
Right to property is given in two places in the Constitution, in Art. 19 (1) and in Art. 31. In Art. 19, as was originally intended, the right was given only to preserve the factual unity of India but not to confer any right in property which was intended to be covered by Art. 31. In the case of the latter, the Article is made to cover four different kinds of encroachment–the ordinary exercise of Police Power; eminent domain; nationalisation; and lastly, land reforms–and all these are made to come under ‘public purposes’. It would have been far better if the Article had been split up into four Artieles, each to cover one aspect of the problem. But unfortunately it was not done.
Then comes the problem of judicial interpretation. With all respect to our Judiciary, it must be pointed out that they have been trained in the principles of a Jurisprudence where ‘judicial review’ is completely unknown, and thus the principles, for instance, developed in the U. K., either by the High Courts or by the Privy Council, cannot be applied and quoted while interpreting a Constitution where the Judiciary has been assigned a particular role in preserving constitutional principles. Nor can we safely rely upon the American decisions, because of the great difference in the nature of the Bill of Rights in the two countries. In America the Judiciary has assumed a very powerful position and it has the power to enlarge or restrict the sphere of the State, from time to time, according to its own will and philosophy, whereas such a scope has been deliberately made absent in our Constitution, as seen above, by defining the limits of the exceptions in the Articles themselves. Thus, while the Judiciary in the U.S.A. can allow any amount and kind of encroachment on freedom of speech in the name of Police Powers, the Courts have no such freedom here, because the Constitution itself says that freedom of speech can be curtailed only “in the interests of the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation, or incitement to an offence.” We cannot, again, try to understand the Constitution of India, made by Indians to suit Indian needs in the second half of the 20th century, in terms of American and British decisions given in different circumstances to suit different conditions. We have to develop our own way–an Indian way–of interpreting an understanding the Constitution. But the real source of mischief now is the omnibus nature of Art. 31. Knowing the limitations of lawyers in interpreting the Constitution in the light of decision given elsewhere–witness the legal commentaries on the Constitution of India now available in the market, which give under each Article almost all the decisions given in the British and America Courts irrespective of their context and relevancy–our Fathers especially the legal experts among them, ought to have put this under different categories of public regulation and acquisition of property. The Courts could not be and should not be blamed for inherent defects in the Constitution itself. What the Amendment now proposes is not anything new, but what the Fathers failed to incorporate then.
Another line of criticism against the amendment is the Parliament has no right to amend the Constitution without a reference to the people. Here again there is a fundamental misunderstanding of the Constitution. Our Constitution does not provide for such a reference to the people. The only difference which the Constitution makes between the Legislative Will and the Constituent Will is that, while the former may express itself by a bare majority of the members present at any meeting of Parliament, the latter requires special majorities in both the Houses. Parliament has the undoubted right to amend the Constitution.
But if we talk not about legal right but moral right, it is a different matter. It might, for instance, be suggested that every time the Constitution is amended, a mandate might be obtained from the people, either by a dissolution of the House of the People or keeping such proposed amendments pending till new elections take place. If such an extra-constitutional practice is established by convention, awkward situations would develop. Suppose a House is dissolved on a proposed amendment and a Party supporting it is returned with a large majority, but less than the required two-thirds. How can that amendment be passed? Again suppose the whole House is of that opinion, while the Council of States is opposed to it.’ The amendment could not be passed and the dissolution of the House is in vain. It might now be suggested that another convention be established–that, in such cases, the Council of States should not object, even though by a majority it is opposed to the amendment in principle. Such conventions, if adopted, would not be merely extra-constitutional, but actually unconstitutional, because the Constitution does not expect the Council to be a mere puppet, at least in constitutional matters. Again, if such a convention is established, it means placing the crown once again on the mere majority in the House, a position deliberately avoided by the Constitution in case of constitutional amendments.
In fact ours is one of the rigid Constitutions, and in future it would be very difficult to pass constitutional amendments, because it would be almost an impossible matter for any Party to get a two-thirds majority in both the Houses. For instance, the Congress Party could continue to occupy more than one-third of the seats in the Council, composed as it is, for at least ten years to come. It means that no constitutional amendments could be passed in future unless the same is beyond Party interests and could commend itself to other parties also, i.e., unless the matter is really in the interests of the nation; and that is what an ideal constitutional change should aim at. So we see that, in future, the Constitution would work very well, as far as changes in the Constitution are concerned, and we need not be afraid that every time the Party in power feels like it, it could amend the Constitution and get away with it. And therefore the suggestion of an extra-constitutional convention seems to be both mischievous and superfluous.