OUR SOCIALIST CONSTITUTION

K. TARANADH

Addl. Metropolitan Sessions Judge, Hyderabad

I

From 1950 to September 1976, we were citizens of a Sovereign Democratic Republic only and after the 42nd Amendment, ours has become a “Sovereign Socialist Secular Democratic Republic.” A notable feature of this 42nd Amendment was the introduction of the words “Socialist” and “Secular” in the preamble. By this time, everybody is well aware of the controversy about the preamble and its binding nature on the Constitution It is a matter of history that our Constituent Assembly took up for discussion this preamble on 17th October, 1949, and very many Amendments were moved and suggestions were made, but finally it was accepted as it was! As per our constitutional Pandits, like in the American Constitution, our preamble did not “walk before the Constitution.”

In 1960 our Supreme Court had an occasion to deal with this aspect in Berubari Reference. With regard to the East Bengal refugees, an agreement was entered into between Pandit Jawaharlal Nehru and Feroz Khan Noon in 1958 September, as per which the Berubari area of Jalpaiguri District was to be equally divided between India and Pakistan. But immediately after the conclusion of this agreement, in 1958 October itself, in Pakistan, there was a change in Government and military dictatorship assumed power. The first act of the military dictatorship was to cancel the 1958 Nebru-Liaqat Agreement. In spite of all these things, our Government did not like to resile from 1958 October agreement and decided to hand over half of the portion of Berubari to Pakistan. To put it otherwise, our Democratic Government wanted to hand over the citizens to a military dictatorship. There was an agitation in the country and finally the President of India made a reference to the Supreme Court for its opinion. The Presidents of Jana Sangh of seven places, the Secretary, Revolutionary Socialistic Party of Jalpaiguri, the Secretary of All India Forward Block, Calcutta and Nirmal Kumar of Jalpaiguri were the respondents.

The Supreme Court delivered its opinion in March 1960 and Justice Gajendragadkar, Justice Koka Subba Rao, Justice, Hidayatullah and Justice Shaw were amongst those eight judges. Justice Gajendragadkar, while delivering the opinion of the court observed as follows:

“There is no doubt that the declaration made by the people of India in exercise of their Sovereign will in the preamble to the Constitution is, in the words of Story, “a key to open the mind of makers” which may show the general purposes for which they made the several provisions in the Constitution, but nevertheless the preamble is not a part of the Constitution, and as Willoughby has observed about the preamble to the American Constitution, “It has never been regarded as the source of any substantive power conferred on the Government of the United States, or on any of its departments. Such powers embrace only those expressly granted in the body of the Constitution such as may be implied from those so granted.”

In 1973 also in the famous Kesavananda Bharati case, one judge Mr. Justice Jagan Mohan Reddy felt that in this Berubari affair we failed to recognise the opinion of Story properly. He observed as follows:

“In Berubari Union and Exchange of Enclaves Case, the court failed to refer to and consider the view of Story that the preamble can be resorted to, to expound the nature, the extent and the application of the powers or that the preamble can be resorted to, to prevent obvious absurdity or to a direct overthrow of the intention expressed therein.”

Thus if the opinion of Justice Gajendragadkar is the proper approach, then no purpose will be served by introducing “Secular” and “Socialist” simply in the preamble only as they will not find the other provisions and they cannot be treated as a source of anything.

In Kesavananda Bharati decision, the majority of the judges felt that our Constitution has got a basic structure. Many of the judges made a reference to the preamble. Four of the judges, namely Justices Sikri, Shelat, Grover and Jagan Mohan Reddy made a mention of the essentials of the Constitution. We should especially bear in mind in this context that though the word “Secular” was not found in these three words “Sovereign Democratic Republic”, every judge mentioned it as an essential feature of our constitution. But nobody mentioned that Socialism was an essential feature of our Constitution. It is evident that all words mentioned in our Constitution deserve serious consideration requiring deep and knowledgeable discussion. In Kesavananda Bharati Case (1973) Justice Sikri observed as follows:

“The basic structure may be said to consist of the following features:

1. Supremacy of the Constitution.

2. Republican and Democratic forms of Government.

3. Secular character of the Constitution.

4. Separation of powers between the Legislature, the Executive and the Judiciary.

5. Federal character of the Constitution.

303. The above structure is built on the basic foundation, i. e., the dignity and freedom of the individual. This is of supreme importance. This cannot by any form of amendment to be destroyed.

304. The above foundation and the above basic features are easily discernible not only from the preamble but the whole scheme of the Constitution, which I have already discussed.” (Pages, 1535-1536)

In the same decision Justice Shelat observed as follows:

“599. The basic structure of the Constitution is not a vague concept and the apprehensions expressed on behalf of the respondents that neither the citizen nor the Parliament would be able to understand it are unfounded. If the historical background, the preamble, the entire scheme of the Constitution, the relevant provisions thereof including Article 368 are kept in mind, there can be no difficulty in discerning that the following can be regarded as the basic elements of the constitutional structure. (These cannot be catalogued but

can only be illustrated.)”

1. The supremacy of the Constitution.

2. Republican and Democratic form of Government and sovereignty of the country.

3. Secular and Federal character of the Constitution.

4. Demarcation of power between the Legislature, the Executive and the Judiciary.

5. The dignity of the individual secured by the various freedoms and basic rights in Part III and the mandate to build a Welfare State contained in Part IV. (Page 1603)

In this case even the speeches of stalwarts like Nehru, Patel, Alladi Krishnaswamy, Ambedkar and Munshi in the Constituent assembly were also referred to and all the resolutions of the Indian National Congress were referred to. This article of mine is only an attempt in this background to analyse the word “Socialism.”

II

Though in the beginning, there was some doubt expressed about how far the Courts of Law can depend on the speeches made in the Constituent Assembly while interpreting the Constitution, that doubt was set at rest now. Justice Khanna stated categorically as follows:

“It can therefore be said that this court has now accepted the view in its decisions since Golaknath case that speeches made in the Constituent Assembly can be referred to while dealing with the provisions of the Constitution... The speech cannot, however, form the basis for construing the provisions of the Constitution. The task of interpreting the provisions of the Constitution has to be done independently and reference to the speeches in the Constituent Assembly does not absolve the court from performing that task.” (1841)

The democratic institutions are having a history of 200 or 300 years and in spite of all their defects, America and Britain are following these democratic principles. Moreover we also depended on the American Constitution to a major extent in framing our Constitution. For all the written Constitutions in the world, virtually the American Constitution is the model. Hence in the judgments of our High Courts as well as our Supreme Court, we find many references to the work of American Constitutional Lawyers and to the decision of American Courts and British Courts.

The countries that have declared that socialist society is their ideal are being popularly called as Communist countries. Russia and China are the leaders of that group and both these countries also are having written Constitutions. But the word “Socialism” used in these Constitutions has got a definite meaning.

Now the question is whether we also used the word “Socialism” is our Constitution in the same meaning or not. Let us probe into this aspect now.

The Constitution of Russia underwent many changes. The first Constitution was adopted in 1918, again in 1924 and then in 1936. The present one, namely the fourth one, was adopted in October, 1977. As per Art. 1, the USSR which is popularly called Russia is a “Socialist State of the whole people, expressing the will and interests of the workers, peasants and intelligentsia, the working people of all the nations and nationalities of the country.” The … … State is “Organised and functions on the principle of democratic centralism...” as per Art. 3.

The most important article is Art. 6 which reads as follows:

“The leading and guiding force of Soviet society and the nucleus of its political system, of all state organisations, is the Communist Party of the Soviet Union. The CPSU exists for the people and serves the people.

The Communist Party armed with Marxism-Leninism, determines the general perspectives of the development of society and the course of the home and foreign policy of the USSR, directs the great constructive work of the Soviet people, and imparts and planned, systematic and theoretically sustained character to their struggle for the victory of Communism. All party organisations shall function within the framework of the Constitutions of the USSR.”

Thus, it is evident that the guiding force of the society as well as the state is the Communist Party armed with Marxism - Leninism. Hence it automatically follows that there is no place for any other thought except Marxism – Leninism and no other party except the Communist Party. Thus the Constitution of Russia does not distinguish between state and the society and both are virtually one and the same, and also refuses to allow any other thought except Marxism - Leninism, to exist even.

The preface to this Constitution, running into two and half pages, will reveal that the Russians feel that they got a developed Socialist society already and they are treating that Socialist society as a stage on its road to Communism.

“Developed Socialist society is a natural, logical stage on the road to Communism, The supreme goal of the Soviet State is the building of a classless Communist society in which there will be public, Communist Self-government, The main aims of the People’s Socialist States are: to lay the material and technical foundation of Communism to perfect Socialist social relations and transform them into Communist relations, to raise the people’s living and cultural standards, to safeguard the country’s security, and to further the consolidation of peace and development of international co-operation”.*

The other Constitution that used the Word “Socialism” is the Constitution of People’s Republic of China, which is popularly called as China. China”s Constitution was adopted on 17th January, 1975, by the Fourth National People’s Congress of the People’s Republic of China at its session. As per Art. I, the People’s Republic of China is a “Socialist State of the dictatorship of the proletariat lead by the working class and based on the alliance of workers and peasants.“ As per Art. 2, “The Communist Party of China is the core of leadership of the whole of the Chinese people and Marxism-Leninism-Mao Tsetung thought is the theoretical basis guiding the thinking of our nation.”

As per Art 11, “State organisation and State personnel must earnestly study Marxism-Leninism-Mao TsetuDg thought……”

But when Sardar Swaran Singh’s Committee introduced the word “Socialism” in our Constitution, we do not know whether we wanted to introduce the word “Socialism” based on Marxism Leninism or Marxism.Leninism-Mao Tsetung thought or thinking of any different shade. The speech of Sardar Swaran Singh introducing the Amendment Bill in the Lok Sabha in September 1976, does not throw much light on this aspect. He simply observed as follows:

“It is, therefore, proposed to amend the Constitution to spell out expressly the high ideals of Socialism, Secularism and the integrity of the nation, to make the directive principles more comprehensive and give them precedence over those fundamental rights, etc.”

III

Our first Prime Minister, Pandit Jawaharlal Nehru, has got the privilege of carrying on a dialogue with Russia about this word “Socialism.” To put it straight, an attempt made by Nehru to define the word “Socialism” in an article written by him was unexpectedly replied by a Russian academician, Yudin. It was rather a hard-hitting reply though politely worded.

In the “Economic Review” of 15th August, 1958, the official organ of the All India Congress Committee, Pandit Nehru wrote an article. He observed:

“An old and valued colleague said that this is due to our not having a philosophy of life and indeed the world also is suffering from this lack of a philosophical approach. In our efforts to ensure the material prosperity of the country, we have not paid any attention to the spiritual element in human nature. Therefore, in order to give the individual and the nation a sense of purpose, something to live for and, if necessary, to die for, we have to revive some philosophy of life and give, in the wider sense of the word, a spiritual background to our thinking. We talk of a welfare state of democracy and socialism. They are good concepts but they hardly convey a clear and unambiguous meaning. This was the argument and then the question arose as to what our ultimate objective should be. Democracy and socialism are means to an end, not the end in itself. We talk of the good of society. Is this something apart from and transcending the good of the individuals comprising it? If the individual is ignored and sacrificed for what is considered the good of the society, is that the right objective to have?”

Then Pandit Nehru quoted the question posed by Dr Sampurnanand and tried to reply as follows:

“Socialism, of course, deliberately wants to interfere with the normal processes and thus not only adds to the productive force but lessen inequalities. But what is Socialism? It is difficult to give a precise answer and there are innumerable definitions of it. Some people probably think of Socialism vaguely just as something which does not take us very far. Socialism is basically a different approach from that of Capitalism, though I think it is true that the wide gap between them tends to lessen because many of the ideas of Socialism are gradually incorporated even in the capitalist structure, and life with a certain scientific approach to social and economic problems. If Socialism is introduced in a backward and under-developed country it does not suddenly make it any less backward. In fact we then have a backward and poverty-stricken Socialism.”

Panditji concluded his article as follows:

“In considering these economic aspects of our problems, we have always to remember the basic approach of peaceful means; and perhaps we might also keep in view the old Vedantic ideal of the life force which is the inner base of everything that exists.”

Unexpectedly the editorial board of the “World Marxist Review” referred this article of Panditji to academician Yudin and there was a strong reply to Nehru. Perhaps it was not expected by Nehru. Yudin contended as follows:

“...Mr. Nehru is quite right in saying that there are now two roads, the Capitalist and the Communist. But in his view neither is acceptable to India. And he looks for a third way, one in accord with the specific conditions of his country. And although it sounds paradoxical, Mr. Nehru plums for the Socialist road … …

“… … But at this point it becomes clear that Mr. Nehru’s concept of Socialism has little likeness to real Socialism...” “Since Mr. Nehru holds that India will take the Socialist road it might appear that he intends to take over its achievements from which a number of European and Asian countries have benefited. Such, however, is not the case. The Socialist system he visualises will differ from the Socialism that has scored a brilliant success in these countries.” – “In connection with Socialism, Mr. Nehru discusses human nature: the individual, he says, should not be sacrificed, real social progress will come only when the individual is given the opportunity to develop, etc. These and the other categories used by the author in expounding Socialism are so vague and in Hegelian terminology so void of content that they give no definite idea of the subject under discussion, so much so that it is difficult to say what Mr. Nehru really means by Socialism. Incidentally the author is aware of the difficulty. He writes: “But, what is Socialism? It is difficult to give a precise answer and there are innumerable definitions of it.” Now, this would have been said, say, forty years ago, when Socialism was still a matter of the future, though the immediate future. But even at that time, Marxism had a well-founded scientific definition of the concept. Today Socialism is no longer a theoretical prediction, it is a living system. Nearly 1000 million people are building Socialism. Some countries have made greater progress, others less, but on the whole the historical leap from Capitalism to Socialism had been mad In the Soviet Union, where Socialism has already triumphed, it is gradually evolving into Communism.” (Emphasis mine)

“……In presenting his “new concept” of Socialism he tries to discredit the real, living Socialism now being built in a number of European and Asian countries, big and small. For Mr. Nehru Marxist Socialism is Communism, and he attributes to it the two features: violence and lack individual freedom. Thus he separates Socialism from Communism, and then he villifies Communism by comparing it with Fascism.”

“… … Socialism is counter posed to Communism. Yet, according to Marxism-Leninism there is no hard and fast dividing line between the two. Communism has two phases of development, the lower and the higher, or the first and the second. Socialism is the lower, or the first phase of Communism; to assert anything different about them would signify ignoring objective processes, rejection of a scientific approach to the question. It is not our intention to impose Marxist scientific socialism on Mr. Nehru or on anybody else, otherwise we might be accused of resorting to compulsion at least in the matter of thinking. But we feel bound to say that an objective approach to the science one undertakes to criticise is elementary for any serious polemic.”

“……For this reason, we are unable to comprehend, despite our desire to do so, the essence of Mr. Nehru’s Socialism; It remains a “thing in itself.” But one thing is clear. Mr. Nehru’s Socialism should not be confused with real Socialism, the Socialism now being built in a number of countries and which is already a reality in others. We hope that on a future occasion Mr. Nehru will set forth his concept in greater detail...” **

By 1979 the circumstances have changed and now the heavily populated Socialist Country, namely China, is raising the slogan “Soviet-Socialist Imperialism.” Anyhow, today the countries that are pronouncing themselves to be Socialist and the people that are declaring that their ideal is Socialism and there is a Socialist society in their country–are using the word “Socialism” as a stepping-stone to a further ideal of Communism. The definition and the application of this concept of Communism must be only as per the Marxist-Leninist and if Possible Maoist analysis.

But now,” though we are also raising this slogan and amended our Constitution in 1976, is it correct to say that their Socialism, a stepping-stone to Communism, and our Socialism are one and the same. The only similarity between them and us appears to me, to be beginning and ending with the word “Socialism” that is all.

IV

Now we will try to follow the development of the concept of Socialism in our Country. The concept of Socialism and the history of the people calling themselves as ‘Socialists’ in our country got a chequered career. The group separated itself from the Indian National Congress and having come out, they became Socialists, again became Praja Socialists. With the adoption of “Socialistic pattern of society” as its ideal by the Indian National Congress, many of them joined the Congress again. But the rest steadfastly carried on their lone march. Their leader was Dr. Ramamanohar Lohia, who never joined the Congress in his lifetime again.

His life has got may facets. He was the founder of the Congress Socialist Party in 1934, took immense interest in international affairs, being a freedom-fighter and also the Secretary of the sub-committee of the Foreign Affairs Committee (formed by the A. I. C. C.) from 1933 to 1938 and also the Secretary of A. I. C. C. for sometime. All these details are being given here, only to point out that he was not a name-sake leader but one of the foundation-stones of the Indian National Congress. He also got his own peculiar personality and was not a man to bend his head before any single individual, whether it is Nehru or Gandhi. Perhaps in his later days, he refused to bend his head even before the so called majority decision. He went on and on fighting with the Indian National Congress even after independence with the same tenacity and purpose, as he fought with the British Government.

Though he declared himself to be a Socialist, he never simply believed others when they cried hoarse “Socialism” and that is why he did not join hands with Nehru though he declared he was a Socialist and though Congress adopted a resolution at Avadi. Though China and Russia are repeating the word “Socialism” he did not follow them blindly. In fact while the word “Socialism” was being incorporated in our Constitution his pronounced followers were behind the bars. Dr. Lohia did some thinking in this and tried to pen down his feelings, while Nehru did not do so, as he was overburdened with the administrative responsibilities.

In the opinion of Lohia “Communism is the latest weapon of Europe against Asia. For 300 years, Europe has been the prince among countries, and Liberalism, Christianity or Capitalism have admittedly served, each in its own way, Europe’s imperial purposes. Old weapons are blunted. It may well be that Europe’s undefeated intelligence is making use of yet another ideological weapon to retain its slipping hold over the world. Whether this latest weapon of Communism, like Liberalism or Christianity was ever intended by its makers to be used for such purposes, in other words, whether the original doctrine of Communism carried this inspiration or has later been distorted, is of course an important question...”

The only point to be considered is, if the preamble cannot be considered as a source of anything, will not the mere introduction of the word “Socialism” become simply ornamental and will be of no help to us?

The purpose of this entire essay is not to condemn any ideology but only to analyse the thinking of some of the Indian stalwarts like Lohia and Pandit Nehru and to point out that they are tempted to use the word “Socialism” definitely in a different way than the Marxist-Leninist-Maoist thinking. In this connection, we may also refer to the opinion of the Supreme Court which struck a different note with regard to the interpretation of the word “Socialism.”

If in Kesavananda Bharati case, the Supreme Court took into account the social and political philosophies of Grotius (1583-1645), Hobbes (1588-1679), Locke (1632-1704), Wolf (1679-1754) Rousseau (1712-1778), Blackstone (1723-1780), Kant (1724-1804), Bentham (1748-1832) and Hegel (1770-1831), and considered the writings of scholars like Granville Austin James Bryce, Charles Burdick, John W. Burgees, A. P. Canaway, Dr D. Conrad, Thomas M. Cooley, Edward S. Corwin, S. A. Desmith, De. Tocqueville, A. V. Diceym, Herman Finer, W. Friedman, Carl. J. Friedrich, Sir Ivor Jennings, Joseph Story and a host of others, is it not proper on our part not only to refer to the writings of Marx and Mao but also to the writings of Indians like Pandit Nehru, Jayaprakash Narayan, Lohia and into the writings of Mahatma Gandhi as the person who, at one time or other, during his lifetime, influenced the thinking of all the Indian leaders to some extent, for our proper understanding of the word “Socialism” and the context in which it was used in the Indian Constitution.

This delicate situation must be faced by the Supreme Court on one day. Let us wait and see how our Supreme Court is going to define the word “Socialism” and whether it is going to accept the Marxist-Leninist-Maoist definition or the Indian definition.

* “New Soviet Constitution–An Indian Assessment”

Introduction and Editing by Jitendra Sharma, Allied Publishers Private Ltd., Bombay, 1978.

** Mr. Nehu’s article and academician Yudin’s rejoinder was published as a booklet ‘On the basic approach by the Communism part Party of India in Decernber-1958.

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