THESE TWENTY YEARS
G. S. PATHAK
Vice-President of
It
need hardly be said that the statesmen who framed our Constitution were
inspired by high idealism. They were launching on a very big experiment
involving about one-seventh of the population of the world. The bulk of the
population was steeped in ignorance and illiteracy, but they were suddenly
woken up to a new consciousness. Our leaders were full of hopes and
expectations; they had, however, their fears also. While moving the draft
Constitution for adoption by the Constituent Assembly, Dr. Ambedkar recounted
the Indian History and expressed anxiety that “our old enemies in the form of
castes and creeds” might not assail us. Dr. Ambedkar queried: “Will Indians
place the country above their creed or will they place creed above country? I
do not know. But this much is certain that if the parties place creed above
country, our independence will be put in jeopardy a second time and probably be lost for ever. This eventuality we must all resolutely
guard against. We must be determined to defend our independence with the last
drop of our blood.”
On
the same occasion Dr. Rajendra Prasad also alluded to the difficulties inherent
in our problem. He said: “We have got many communities living in this country.
We have got many languages prevalent in different parts of it. We have got
other kinds of differences dividing the people in the different parts from one
another...The communal problem had been one of the knottiest problems which the
country has had before it for a pretty long time.” The insistence on obeying
the law also appeared in the writings of no less a person than Mahatma Gandhi.
He wrote in September 1947: “In democracy, the individual will is governed and
limited by the social will which is the State, which is governed by and for
democracy. If every individual takes the law into his own hands, there is no State, it becomes anarchy, i.e., absence of social law or
State. That way lies destruction of liberty.
Therefore, you should subdue your anger and let the State secure justice.” The
Constituent Assembly decided on adult franchise, not-withstanding the size of
the population and the prevalence of illiteracy. This led to some remarkable
results. The vote gave equality in politics, but in social and economic life
inequality existed.
It
became necessary to secure economic and social justice to the citizen so that
he may enjoy complete equality. Economic and social democracy were not
dissociable from political democracy. For this reason we find in Article 38 of
the Constitution a principle of policy directing the State to secure and
protect a social order in which justice, social, economic and political, shall
inform all the institutions of the national life. It is also worth remembering
that the Preamble to the Constitution sets out as one of the aims to be
achieved, fraternity assuring the dignity of the individual and the unity of
the nation.
In
the new society which the Constitution contemplated there would be equality of
status and opportunity and there would be no discrimination on the ground of
religion, race, caste, sex and place of birth. All citizens would enjoy the
seven freedoms enumerated in the Constitution. In the social order envisioned
therein the citizens, men and women equally, had the right to an adequate means
of livelihood; they had the right to work (which implied that there should be
no unemployment), the right to education and to public assistance in cases of
unemployment, old age, sickness and disablement and in other cases of
undeserved want. The level of nutrition and the standard of living had to be
raised. These are the salient features of the new society which was to emerge
after the Constitution came into force. All steps to be taken by the State
towards securing this social order had to be adopted through constitutional
means. In other words, legislation enacted for these purposes had to be
consistent with and not in contravention of the fundamental rights guaranteed
to the individuals, except to the extent permitted in the exceptions recognised by the Constitution itself. In case the proposed
steps imposed a restriction on the exercise of any fundamental right, the
legislature had to take care that the restriction was reasonable and was also
in the interests of the general public. If the judgement of the legislature was
assailed on this point the court was made, by the Constitution, the ultimate
judge of whether the case fell within the exception and in case the legislative
judgement was found to be wrong, it could be overturned by the court. This was
a very delicate and difficult task for the judiciary. I need not describe the
tests laid down by the judges for the decision of this difficult matter. The
task becomes still more complex when the court was required to decide in what circumstances a
prohibition becomes “a reasonable restriction” within the meaning of the
Constitution.
It
was recognised that it would not be possible for the
State to secure all the economic and social rights to the citizens immediately
on the coming into force of the
Constitution. This was a stupendous task and apart from other aspects, it had
large financial implications. At more than one place there is an indication in
the Constitution that the State’s inherent limitations were recognised.
For example, in Article 41 it is stated, “The State shall, within the limits of
its economic capacity and development, make effective provision. In Article 45
it is stated: “The State shall endeavour to provide,
within a period of ten years from the commencement of this Constitution, for
free and compulsory education for all children until they complete the age of
fourteen years.” I have mentioned this in order to show that the problems of
illiteracy and poverty, etc., could not be fully solved during these twenty
years. Poverty and illiteracy must go and as quickly as possible. But the
problems are also accentuated by the increase of about 13 million a year in the
population. It is true that
equality between man and man is meaningless
talk unless every citizen is
provided with adequate means of
livelihood and equal opportunities for education. Assistance from private agencies
should be forthcoming in an increasing measure so that this stupendous task may
be sooner completed.
Incidentally
I may allude to one argument that has been frequently advanced during recent
years. It has been said that our Constitution refers only to rights and not to
duties and that it would have been better if obligations of citizens were also
specified therein. To me it appears that the argument is not sustainable. It is
implied in the provisions of the Constitution themselves that for every right
given to a citizen, there is a corresponding obligation. When the people of
India declared that all citizens shall have the right to any freedom, say,
freedom of movement throughout the territory of India, is it not implied that
none of the citizens has got the right to interfere with the freedom of
movement of other citizens? When the mandate of the people is that each one of
A, B, C, D and E has got the right to freedom of movement, if A does not recognise B’s right he is disobeying the mandate of the
Constitution and preventing B from enjoying his guaranteed right. There should
be an implied obligation on the part of all those who are recipients of the
freedoms to obey the command of the Constitution in relation to other
individuals. It is a different question what remedies are available to a
citizen whose rights have been infringed by another citizen. That remedy may be
in penal law or in tort or may have yet to be provided. It is submitted,
however, that the Constitution does impose an obligation corresponding to every
right guaranteed thereby. It is true that Articles 32 and 226 make rights
enforceable only against the State. But that does not mean that as between
citizens they cannot be enforceable by resort to other remedies. It was
unnecessary to specifically enumerate the obligations of citizens flowing from
the rights guaranteed to them.
It
is a matter of gratification to observe that our judicial system has functioned
admirably and has maintained its traditions. The utility of a system depends
upon the extent to which it has subserved its
objectives. There cannot be any doubt that our courts command confidence and
wherever an independent judgement even outside the court work is required there
is always a clamour for the appointment of a judicial
commission. The greatest benefit which the Constitution has conferred upon the
citizen, I think, is the creation of writ jurisdiction in the Supreme Court and
the High Courts. With the exercise of this jurisdiction the citizen has by and
large received speedy and effective justice. The Supreme Court has decided that
it has no power to impose any condition on the right of the citizen to seek
remedy under Article 32 of the Constitution. In the year 1963 a very
interesting case arose in the Supreme Court with reference to Article 32. Under
the rules of the Supreme Court, the court was empowered in writ petitions under
that Article to require the petitioner to furnish security for the costs of the
respondent. The petitioner contended that the rule was invalid as it placed
obstruction on the fundamental right guaranteed under Article 32. The Supreme
Court struck down its own rule, holding that the right to move the Supreme
Court is an absolute right and the contents of this right cannot be
circumscribed or impaired on any ground. There may be cases where injustice may
be done to the respondents in the event of the petitioner not being able to pay
the costs and that an order for security might be just order. The Supreme Court
stated, however, that in considering the constitutionality of the order or the
rule which permits the order to be made, the fact that the object intended to
be achieved is good or unexceptionable would not be material. Although the
Supreme Court has got the power under Article 142 (i)
to pass any order as is necessary for doing complete justice in any case or
matter pending before it, no order could be passed under that Article which was
inconsistent with the fundamental rights guaranteed by the Constitution, nor
could a rule-making power conferred on the Supreme Court by Article 145 avail
against the fundamental right under Article 32. Thus, the original jurisdiction
of the Supreme Court can be invoked by the humblest and the poorest citizen. He
is not to pass through the gamut of the protracted litigation in the hierarchy
of courts. The remedy available to the citizen is prompt, cheap and expeditious
and directly available in the highest court. The question may be put. But what about counsel’s fee? In this particular case, the
petitioner had approached the Legal Aid Committee of the Supreme Court Bar,
which had assigned the brief for argument at this stage to a senior counsel, who
did not charge any fee. Jeremy Bentham’s maxim is
worth remembering. Law is not made by the judge alone, but by the “Judge and
Company” which specifically includes counsel.
It
is obvious and it has been repeatedly said that without the rule of law a democracy
cannot function, and that the judicial system is an indispensable instrument
for maintaining the rule of law in the country. The judicial system therefore
must be strengthened in every possible way so that the citizens and the State
may have the fullest benefit of an impartial and independent judiciary.
Although
there is no priority recognised by the Constitution
in the matter of freedoms guaranteed to the citizens, yet it must be stated
that the freedom of speech and expression occupies a place of its own in our
democratic set-up. It is well recognised that freedom
of speech and expression is the very foundation of a democratic Government.
Public education and discussion are the indispensable conditions of a free
Government and so is dissemination of information. In Ramesh
Thapar case the Supreme Court observed that the
freedom of people and of the Press lay at the foundation of all democratic organizations
and without free political discussion, no public education, so essential for
the proper functioning of the process of popular Government, is possible. The
Supreme Court has in a number of cases defined the contents of this freedom. I
shall mention one interesting case.
An
Act passed by Parliament known as the Newspaper (Price and Page) Act, 1956,
empowered the Central Government to regulate the prices of newspapers in
relation to their pages and sizes and to regulate the allocation of space for
advertising matter. The Government thereupon fixed the maximum number of pages
that might be published by a newspaper according to the price charged. The
Supreme Court struck down both the Act and the Order on the ground that for
propagating his ideas a citizen had the right to publish them, to disseminate
them and to circulate them either by word of mouth or by writing. This right
extended not merely to the matter which he was entitled to circulate but also
to the volume of circulation. The impugned Act and Order of the Government
placed restraint on the latter aspect of the right. As in its operation the Act
was directed against circulation, it interfered with the freedom of speech and
expression. The Government claimed that the restrictions imposed by the
provisions of the Act were necessary in the interests of the general public.
The
Supreme Court ruled that it is not open to the State to curtail or infringe the
freedom of speech of one for promoting the general welfare of a section or a
group of people. Under the Constitution, freedom of speech can be restricted
only in the interests of 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. It does not allow the freedom to be
curtailed in the interests of the general public. With the advance of
technology, the freedom of speech and expression will have a wider reach, as
the means of communication of ideas are expanding. The Press has no special
privileges apart from the freedom enjoyed by an individual in the matter of speech
and expression. It is a pleasing reflection that there is no other country in
the world in which the Press enjoys greater freedom than the Indian Press.
Our
Constitution denies special privileges by reason of birth, creed, religion,
race, caste, wealth or social status. In upholding the right of equality the
courts have played a very significant role. The courts have very jealously
guarded the citizen’s right to equality, e.g., the court set aside a provision
for separate electorate, it struck down a regulation
which requires higher qualifications for a Brahmin to secure admission into an
educational institution. The courts have frequently interfered to prevent
discrimination in service matters. Article 15 struck at provincialism in as much
as it prohibited the State from discriminating against any citizen on the
ground, among others, of place of birth. The prohibition contained in Article
15 (2) regarding access to shops, public restaurants, and places of public
entertainment and the use of wells, tanks, bathing ghats,
etc., is enforceable both against the State and private persons. Discriminations
are disappearing from social life if both by reason of the constitutional and
legal provisions as also as a result of education. It is regrettable, however,
to note that in spite of the Untouchability Offences Act passed by Parliament
in 1955, untouchability is still existing in the
country. This case is an illustration of the truth that laws by themselves
cannot achieve the desired ends, unless they are supported by public opinion.
Public opinion, in the matter of social reform, plays a very important part.
And this underscores the importance of educating public opinion without which a
change of heart comes, slowly. It would be interesting to study how far the
Prevention of Dowry Act has been able to achieve its purpose.
The
rights to freedom of conscience and religion are fully protected, and the
courts have intervened wherever these rights were infringed. No one in
The
Supreme Court said that the right contained in Article 30 was in terms
absolute. No doubt it was open to the Government to impose reasonable
regulations in the interests of efficiency of instruction, discipline, health
and sanitation and the like. But the Government could not otherwise interfere
with the administration of the institution. Although such interference could be
said to be in the interests of the public, the court struck down the Government
rule authorising the reservation of seats and the
direction given therein. The causes of communal riots are complex and do not
seem to be traceable to any interference with the right to profess, practise and propagate one’s faith or religion. I do not
wish to say anything more about this matter as it is under examination by a Commission presided over by an ex-judge of the
Supreme Court.
We
can claim to have made good progress in the economic field. Our big projects
and even small industries bear witness to the success we have achieved. They
also give an indication of the potential we possess in this sphere. Our exports
are also on the increase. In agriculture we can boast of distinct improvement.
If we succeed even to a partial extent in curbing the population growth, we
hope to be self-sufficient in food in a few years.
I
may perhaps say a word about the right to property. It is well known that in
the case of Bela Banerjee
decided in 1954, the Supreme Court held that the word ‘compensation’
in Article 31 (2) meant a just equivalent of what the owner had been deprived
of, and that the law which did not provide for compensation in this sense was
void. It is common experience that when property is acquired for public purpose
it is not possible for the State to give full value of the property in every
case. As a result of the Supreme Court decision in Bela
Banerjee’s case, the Parliament amended Article 31
(2) by the Constitution (Fourth Amendment) Act, 1955 which provided that no
such law shall be called in question in any court on the ground that the
compensation provided by that law is not adequate. In spite of this amendment
the Supreme Court made observations in some cases which did not give full
effect to the amendment. One is glad to note that that court in the recent case
of State of
There
are a number of problems confronting us. Of all the ills which bedevil our
national life, violence is the most vicious. While we have adopted the
democratic way of life and the parliamentary system of government which means
government by discussion and solution of problems by persuasion-violence is
resorted to as a means of protest or as a method of coercion. This is the very
negation of the Rule of Law.
Sometimes
public property, that is property belonging to the people, and private property
are destroyed; sometimes the lives of innocent private individuals are
involved; sometimes business suffers heavily. The well-being of the society
depends on respect for law and authority. When constitutional methods are
abandoned and violence is resorted to and the rule of the jungle tends to
replace the Rule of Law, it is a matter for deep anguish. These are dangerous
trends and must be checked. In this connection one is reminded of what an
American author said: “It is like the weather about which every one is talking
but no one does anything.” Callousness and lack of a sense of all distinction
between right and wrong, apart from constitutionality and legality, seems to characterise indulgence in violence.
Casteism and communalism are our old enemies and the
apprehensions of the framers of the Constitution have come out to be true. Then
there is regionalism and parochialism which vitiate our national life. We seem
to have forgotten that there is one citizenship
throughout
Unemployment
is another problem. It is not generally realised that
it is not merely the obligation of the Government to provide employment, it
should also be the duty of those who employ to co-operate with the Government
in the devising and implementation of schemes which may prevent and eliminate
unemployment. I hope assistance would be forthcoming from private individuals
and institutions to collaborate with the Government in the solution of
these problems.
How
to combat the maladies from which the nation is suffering is the most serious
problem facing us today. There is too much talk of our rights and too little
realisation of our obligations to the nation and the State and to our fellow
citizens. There is lack of adequate appreciation of the necessity of
collaboration with the Governments in the great task of nation-building and bringing
into existence the new society as envisioned by the Constitution.
The
study of the problems, analysis and investigation into contributing causes is
the first essential. Then what is needed is public education and development of
public opinion. Democracies are based on and derive their sustenance from
public opinion. In this, the Press plays a significant role. Then we must have
the will to act and the same idealism which inspired our statesmen who gave us
this Constitution.
(Annual Address of Dr C. P. Ramaswami Aiyar,
Foundation delivered at
on February 5, 1970)