THE INDIAN SCENE

PROF. M. VENKATARANGAIYA

During the quarter July–September the two outstanding events in the national scene which attracted a large amount of public attention were the conclusion of the Indo-Soviet Treaty of Peace. Friendship and co-operation and the passing of the 24th amendment to the Constitution and the introduction into Parliament of the 25th amendment. It is necessary for us to understand the significance of these events and why they attracted so much of public attention.

I

The significance of the Treaty consists in its making a departure from the policy of non-alignment to which the country adhered since 1947. Although the Government of India has been saying that the Treaty does not mean any such departure and although Article IV of the Treaty declares: “The Union of Soviet Socialist Republic respects India’s policy of non-alignment,” no one really thinks that India can in future swear by the old policy. The Treaty is in fact and essence a military–and not a mere cultural–alliance between India and U.S.S.R. It is this that explains the almost universal welcome that was given to it by the public and the political parties in the country. The public recognise that there is nothing sacred about non-alignment which in truth lost all its importance with the thaw in the cold war between the two world powers–the United States and the U.S.S.R.–and it became meaningless after the Chinese aggression against India in 1962. There is no reason why we should not welcome the Treaty even if it goes against non-alignment, provided it serves a higher purpose like the guarantee of national security and the promotion of national interests. Where there is a conflict between non-alignment and the promotion of national security and interests, it is the latter that we should prefer and this is what we have done in the present case. Even our Prime Minister has told recently a big audience in Bombay (October 14) that we must be prepared to abandon non-alignment if it stands in the way of our national interest.

We now to ask ourselves in what way the Treaty is in the interests of our national security. As a result of the policy of non-alignment we have become practically isolated in the international world. There was no prospect of any important state coming to our rescue in case of any attack against us either by China or Pakistan. For the last three months and more Pakistan has been threatening us with such an attack. There was the danger that in such an attack China would give her all the help she would require and that we would be compelled to fight against both the countries at the same time. At the time of Chinese aggression in 1962 the United States came to our help but today there is no such prospect. The United States and China are coming closer together and President Nixon has given us a warning that in case of any war with China he would not come to our assistance. With a real threat from Pakistan because of developments in Bangla Desh and of our sympathy and support to the cause of the freedom of Bangla Desh and with the certainty that both China and the United States would help Pakistan in carrying out the threat, there was a genuine fear that single-handed we might not be able to meet it and this fear that induced the Government to conclude the Treaty with Soviet Russia.

As a result of the Treaty there is now a certainty that Soviet Russia will come to our help in the event of an attack directed against any third country. Article IX of the Treaty provides for this. It says: “Each high contracting party undertakes to abstain from providing any assistance to any third party that engages in armed conflict with the other party. In the event of either subjected to an attack or a threat thereof, the high contracting parties shall immediately enter into mutual consultations in order to remove such threat and to take appropriate effective ensure peace and the security of their countries.” Article X declares: “Each high contracting party solemnly declares that it shall not enter into any obligation, secret or public, with one or more states which is incompatible with this treaty. Each high contracting party further declares that no obligation exists, nor shall any obligation be entered into, between itself and any other state or states which cause military damage to the other party.” What this Article means is that Soviet Russia will stop giving any military aid to Pakistan as such aid will certainly cause military damage to India.

Because of these Articles the people in India got a welcome psychological relief. They felt that they would not be alone in a war with Pakistan and China and that a great power like Soviet Russia would come to their help.

The Treaty was concluded on August 9, 1971. It was then universally welcomed. Today, however, several sections of the people have begun to entertain misgivings about it. Whether they are justified in entertaining such misgivings is a different point. It is necessary to understand why they are doing so.

Government has told the public that negotiations for the Treaty have been going on for two years and that it is only a chance coincidence with developments in Bangla Desh that it is concluded now. But almost all sections of the public feel that the Treaty was really necessitated by the developments in Bangla Desh and several of them judge its value by the extent to which it helps India in realising her policy towards the freedom movement in Bangla Desh.

Until the conclusion of the Treaty it was quite clear that the Government of India was unambiguously in favour of an independent. Bangla Desh, a Bangla Desh outside the framework of Pakistan. Whatever might have been the policy of Awami League before March 25, 1971 the military crackdown which the Pakistan regime let loose from that day resulted in the League and its supporters–practically the whole population–opting once for all for an independent Bangla Desh. When our Parliament passed at the end of March a resolution giving its full sympathy and support to the freedom fighters the sympathy and support was for an independent Bangla Desh which meant the break up of Pakistan. When various parties in the country and most sections of the public demanded that the Government should recognise Bangla Desh it meant the recognition of an independent Bangla Desh. Government did not say that it would not recognise it but only stated that it would do so when the time was appropriate. The Indian public welcomed the Treaty as they felt that it would bring about a free Bangla Desh.

But there is now a change in the policy of the Government. At the Simla session of the A. I. C. C. (October 8) Sri Swaran Singh, the External Affairs Minister, stated that a political solution of the Bangla Desh issue, which India had been advocating, could take the form of a settlement within the frame-work of Pakistan or an Independent Bangla Desh or greater autonomy for the region. Now he put forward three alternatives in place of the only alternative which was all along advocated by the Government. This came as a shock and surprise not only to the spokesmen of the Government of Bangla Desh waging the war of freedom against the military regime of Yahya Khan but also to large sections of the public in the country. They have been asking themselves Why did the Government depart from its original stand and what will be its effects?

So far as the first question is concerned the answer is that the departure is the outcome of the pressure of the Soviet Government on India, a pressure inevitable after the conclusion of the Treaty. It has all along been the view of Soviet Russia that the integrity and unity of Pakistan should be maintained and any solution of the Bangla Desh issue should be subject to this essential requirement. There is nothing to indicate that this policy was abandoned after the conclusion of the Treaty, as is shown by the joint communique issued after the conclusion of the Treaty and after the visit of our Prime Minister to Moscow at the end of September. The policy was repeated quite frankly in the Soviet-Algerian communique issued after Kosygin’s visit to Algeria early in October, a few days before the statement of our External Affairs Minister. The communique stated that Kosygin assured the Algerian Government that the Soviet would stand by the territorial integrity of Pakistan. It is quite clear that either the Government of India was unable to bring about a change in Soviet stand or did not make clear to the Soviet Government its own stand at the time when the Treaty was concluded. Whatever it be, the Soviet Government has now succeeded in converting India to its point of view and the Government of India is now committed to a political settlement of the Bangla Desh issue within the framework of Pakistan. There is nothing surprising in this change in the policy of the Government of India. As between Soviet Russia and India which are the parties to the Treaty, the former is the stronger party and its views are bound to prevail. India is more in need of Soviet help than Soviet is in need of India’s help. It is, therefore, no exaggeration to say that India’s freedom of action in respect of Bangla Desh has been adversely affected by the Treaty.

We have now to consider what the consequences are likely to be if the political settlement of the Bangla Desh issue is to be within the framework of Pakistan. The first consequence will be that the nine million refugees–and the number is likely to rise to twelve millions in the next two or three months–will never go back to such a Pakistan. They cannot live there in safety and honour. The second consequence will be the growth of an anti-India attitude among the freedom-fighters themselves. They will certainly feel that they have been let down by the Government of India. They will look for help to other countries–perhaps even to China–and if ultimately they succeed in wresting independence, they will be quite hostile to India as hostile as West Pakistan is. Leadership of the freedom struggle will pass into the hands of extremists and they may not care to take back the refugees from India. There will be other consequences of a serious nature arising out of the continued presence of refugees, consequences which will affect the economy of India, her polity and her stability and security, especially in the Eastern region extending from West Bengal to Assam and Nefa.

If these consequences are to be averted, India should try to convert Soviet Russia to her point of view. She should also take some positive action to bring about the political settlement of Bangla Desh. She has all along been satisfied with diplomatic pressure on the international community. This, however, has not produced any results. She must be prepared to take some other action to compel Pakistan to enter into a political settlement with the Awami League including military intervention. Unless Yahya Khan is defeated in the battlefield no political settlement which will facilitate the return of refugees is likely. There is no instance in the history of the world of any colonial power having given up its hold over its colonies unless defeated in the battlefield. This is the lesson of history. The Dutch in the 16th and the 17th centuries, the Americans in the 18th century, and the Balkan States in the 19th got independence only by fighting. The statement that wars do not solve any question contains only a half-truth. The unification of Germany and Italy have been brought about by wars. But for the first and second world wars India and other countries of Asia and Africa could not have become independent. Political settlements are in almost all cases the outcome of wars and the settlement in Bangla Desh, if it is to be a real settlement resulting in its independence, cannot be otherwise. This is why the freedom-fighters are carrying on a war. India should help them actively so that they may achieve victory speedily.

A speedy victory is as important as an ultimate victory. Otherwise a prolonged guerilla war be inevitable which will adversely affect Eastern India. It will also make it difficult to send back the refugees. Their homes and lands would be occupied by others and it would be a difficult task to oust them. What is, therefore, urgently necessary is some effective positive action by the Government of India which would compel Yahya Khan to arrive at a political settlement with the Awami League. Government should once for all abandon its policy of inaction.

II

We will now consider the significance of the 24th amendment to the Constitution. The first point to be noticed in this connection is that a cardinal feature of our Constitution is that Part III of it guarantees to the people of the country and the minorities a certain number of fundamental rights relating to equality, freedom, property, religion, culture and language. It lays down in Article 13 (2), “The State shall not make any law which takes away or abridges the rights conferred by this Part, and any law made in contravention of this clause, shall, to the extent of the contravention, be void.” This is one safeguard against the Parliament or any State legislature encroaching on fundamental rights. The Constitution also provides another safeguard. In Article 32 it guarantees to everyone the right to move the Supreme Court by appropriate proceedings for the enforcement of fundamental rights and empowers the Court to issue directions or orders or writs for the enforcement of the rights. As a result of this Article the Court is empowered to declare any law made by Parliament or a State legislature invalid if it infringes the fundamental rights and it has done so on various occasions since 1950.

There is in this the possibility of confrontation between the Court on one side and Parliament on the other. But this provision has found a place not only in our Constitution but also in several others like that of the United States. The reason for this is the recognition that there should be some kind of effective restraint against hasty and ill-considered legislation in contravention of the rights of citizens. Even elected majorities are liable to abuse their power and make mistakes. This tendency to abuse power is inherent in all men in authority and all constitutional as distinct from arbitrary and despotic governments are based on the provision of checks against abuse of authority. History shows that it is not only monarchies and oligarchies that abuse power. Democracies also do the same. They are, therefore, as much in need of checks and restraints as other forms of government. Among such checks the power given to the highest court in the land to review the legislation it enacted by the legislature and to declare it invalid if it is in conflict with the provisions of the Constitution has been considered to be a highly effective one and this is the reason why it has been given a place in many democratic constitutions of modern times. The fathers of our Constitution also provided for it knowing that occasionally it may result in confrontation between the judiciary and the legislature. There is a tendency among certain political parties in our country to criticise the Supreme Court for invalidating the Acts made by Parliament but they forget that provision for judicial review is an integral part of our Constitution and it was deliberately made a pan of it by statesmen like Nehru, Sardar Patel and Rajendra Prasad in the light of historical experience.

A second preliminary point to be kept in mind before considering the importance of the 24th amendment is that no constitution or no list of fundamental rights is sacrosanct. A constitution should serve a social purpose and when the concept of the social purpose undergoes a change the constitution also has to undergo change. The same is the case with fundamental rights. They also need modification from time to time. This is why there is an Article in the Constitution–Article 368–which lays down a procedure for amending the Constitution. The power is conferred on the Parliament, subject to certain provisos, and in the exercise of this power it amended the Constitution 23 times so far. Among these amendments there are four relating to fundamental rights of equality, freedom and property. In their original form and as interpreted by the Supreme Court these were found to stand in the way of granting special concessions to backward classes so necessary in the interests of social justice and also in the way of promoting public policies aiming at a more equitable distribution of wealth and income through, for example, fixing ceilings on land holdings, tenancy legislation and nationalisation. As a result of the four amendments the right to equality and freedom and much more the right to property were considerably modified.

Till 1967 the Supreme Court accepted the validity of these amendments relating to fundamental rights. In some of the writ petitions the aggrieved parties raised the plea that a constitutional amendment abridging fundamental rights should be declared invalid on the ground that such an amendment was “law” and in accordance with Article 13 (2) to which a reference is made in para 1 of this section. But the Supreme Court did not accept the plea. It declared that the word “law” in that Article referred only to an ordinary law made by a simple majority of Parliament and not to a constitutional amendment made by a special majority. It drew a distinction between ordinary law and constitutional amendment and said that even if the latter abrogates or modifies a fundamental right it must be accepted as valid. It thus conceded to Parliament the power and authority to amend fundamental rights.

In 1967, in what is called the Golaknath case, it changed its earlier view and upheld the plea of Golaknath that even a constitutional amendment was law in the ordinary sense of the term and that Parliament had no power to pass amendments which affected the fundamental rights of citizens. This judgment, therefore, deprived Parliament of a power which it had all along been exercising since 1950. It was thus a revolutionary judgment. The Court adduced a number of highly technical legalistic arguments in support of its judgment (given by six judges as against five who dissented from it). Apart from the legalistic arguments, it stood for a kind of philosophy which made it think that if Parliament retained the Power to amend the Articles relating to fundamental rights–and especially the right to property–the result would be the complete erosion of fundamental rights in course of time and the substitution of a totalitarian rule for democracy.

The Court, however, did not mean that fundamental rights should not undergo a change under any circumstances. What it opined was that such changes should not be brought about by the brute majorities in Parliament resulting from a general election but by a Constituent Assembly elected for the purpose by the people of the country or through some kind of referendum. Consequently the Court struck down the Bank Nationalisation Act in its first form and the President’s ordinance depriving the Princes of the rights and privileges conferred on them by Article 362. Both of these dealt with the Right of Property.

This judgment created a dilemma to the Congress Government led by Srimathi Indira Gandhi. It was wedded to a policy of socialism which meant a more equitable distribution of wealth and income. There is no possibility of such a distribution being brought about unless a part of the property and income of the rich is taken away by the Government and utilised for the benefit of the low-income groups. If as the Supreme Court said that no property should be taken away unless adequate compensation was paid, socialism could never be achieved. I t would be beyond the means of any government in a poor country like ours to pay compensation at market rates and the payment of such compensation even if practicable would perpetuate inequalities. In the view of the Congress (R) Government it was only when the right to property is considerably modified through constitutional amendment that the realisation of socialism would be possible. If socialism is not realised the extreme forces of revolution would gain ground and there would be an end to democracy. If there is a conflict between the fundamental rights of individuals and the requirements of social justice the latter should have priority over the former. Such a modification of fundamental rights would be possible only if and when Parliament gets the power to modify them. The impasse created by the Supreme Court’s judgmen1 in the Golaknath case should be ended once for all.

Two additional arguments have been put forward in favour of Parliament getting back the power to amend the Articles relating to fundamental rights. One is that the alternative of convening a Constituent Assembly for the purpose is both undesirable and impracticable. Any Constituent Assembly would have to be elected by the same people who elect the Parliament. It cannot, therefore, have greater competence or legitimacy than the Parliament to amend the Constitution. Moreover it will not be practically to convene a separate Constituent Assembly whenever the need for an amendment arises. In a big country like ours even a referendum for the purpose will be difficult.

The other argument is that our Constitution contains not only Part III on Fundamental Rights but also Part IV on The Directive Principles of State policy. Both. parts are equally important. There ids is no justification for the view of the Supreme Court that Part III is more important and it should not be touched by Parliament even when the Articles it contains stand in the way of giving reality to Directive Principles. One of these principles (Article 39) lays down: “The State shall, in particular, direct its policy towards securing (a) that the citizens, men and women equally, have the right to an adequate means of livelihood; (b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good, and (c) the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment.” This is a call for the establishment of a socialistic order. How can the State answer this call if the right to property is regarded as sacrosanct and Parliament deprived of the power to modify that right?

What the 24th amendment does is to restore to Parliament the right to amend every part of the Constitution including the part dealing with fundamental rights. Under this amendment it is made clear that “Law” in Article 13 means only ordinary law and not a constitutional amendment. It lays down that Parliament has full and unfettered power to “amend by way of addition, variation, or repeal any provision of the Constitution in accordance with the procedure laid down in this Article” (Article 368). Any provision means a provision relating to fundamental rights also. A third part of the amendment says that the amendment passed in accordance with the procedure “shall be presented to the President who shall give his assent to the bill.” This means he cannot refuse his assent to a constitutional amendment. In the United States the President’s assent is not even necessary for a constitutional amendment.

The 24th amendment should be welcomed by all. It gives to our Constitution the flexibility which every constitution should have. There is, however, some danger of a party commanding a 2/3 majority in Lok Sabha hastily amending fundamental rights. Some safeguards are necessary to overcome such a danger. In most democratic states there is a powerful opposition and without its co-operation no amendment is possible. We do not have such an opposition and it does not look as if in the near future such an opposition can be built. The only other safeguard we can think of and which does not exist now is the inclusion of a new provision that no amendment to it should be enacted unless it receives the assent of a majority of states. At present such assent is required only in respect of certain Articles dealing with the federal aspects. The new provision should make the assent applicable to all Articles including those dealing with fundamental rights. This is one of the recommendations of the Rajamannar Committee on Centre-State Relations and it deserves to be given effect to.

The 24th amendment is now placed on the statute book. I is quite possible that some one will question its validity before the Supreme Court as it empowers Parliament to amend fundamental rights also. It remains to be seen whether the Court will adhere to its judgment in Golaknath case or reverse it. If it follows the former course the constitutional deadlock will become worse. The Court may be expected to take a less legalistic view of the matter and reverse its judgment in view of the strong public opinion in favour of the amendment. This is what is to be hoped for.

There is no space in this issue to discuss the implications of the 25th amendment. It has yet to be considered by Parliament and it is not known whether it will undergo any modifications. It deals with the Right to Property. In the form in which it has been introduced it abolishes the right to property for all practical purposes. Whether Parliament will accept such a drastic change of property right remains to be seen. This is an additional reason for reserving comments on it to the next issue.

Oct. 21, 1971

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