The Indian Federalist

The Indian Federalist

The original will of India’s founding fathers

Sanjiv Agarwal

Notion Press

5 Muthu Kalathy Street, Triplicane,

Chennai - 600 005

First Published by Notion Press 2014

Copyright © Sanjiv Agarwal 2014

All Right Reserved.

ISBN: 978-93-83808-82-3

This book has been published in good faith that the work of the author is original. All efforts have been taken to make the material error-free. However, the author and the publisher disclaim the responsibility.

No part of this book may be used, reproduced in any manner whatsoever without written permission from the author, except in the case of brief quotations embodied in critical articles and reviews.

This book is dedicated to We, the People of India who should not forget the original will of their founding fathers

Acknowledgments

The author gratefully acknowledges his debt to the Constituent Assembly and the Parliament of India, for making available the debates in the public domain.

This work would not have been possible without the support of Fali Nariman who encouraged me to pursue the matter and represented me pro-bono, as well as Gopal Shankaranarayanan and Ninad Laud and Harish Salve who helped likewise.

Jill Cartwright and Mayuri Bhattacharjee who helped me in copy editing.

Preface

India has emerged as a robust, democratic nation – the largest in the world. Despite all contradictions, it has given rise to free and fair institutions, like an independent Judiciary, Election Commission, the Comptroller and Auditor General, and a remarkably free media. A good part of the credit must go to its constitution.

The Indian Constitution was drafted by a Constituent Assembly of great leaders, many of them educated abroad. They had the benefit of hindsight of other liberal constitutions working in various countries. With this advantage, they achieved something impossible, a working constitution for one of the most diverse countries in the world, inhabited by one-sixth of humanity.

An otherwise liberal constitution that has served well in establishing a pluralistic democracy has a major lacuna, however, that has crept in over time. In the 1970s India was declared officially a Socialist country and the Right to Property was removed as a Fundamental Right.

The Constituent Assembly had a vocal Socialist faction that tried its best to argue its case for independent India to emerge as a Socialist country with no private property rights. A compromise was achieved by a somewhat mellowed but powerful majority of liberals, led by the president, Rajendra Prasad, and the home minister, Vallabhbhai Patel, to discard the Socialist label and secure private property rights as fundamental rights – except in the case of zamindars (landlords) whose properties were to be compulsorily acquired for redistribution. The bargain included a few articles of Directive Principles without any legal recourse that asked future governments to follow a policy of egalitarian distribution of wealth so as to subserve common good.

The first prime minister of India, Pandit Jawaharlal Nehru, was a Social Democrat with a clear bias for the public sector. The subsequent governments of his daughter Indira Gandhi and later the Janata Party were even farther on the left. The government headed by Indira Gandhi officially declared India a Socialist country and appropriated unlimited power to amend the constitution, including the fundamental rights, in the 42nd Amendment. Emergency was declared, suspending all fundamental rights, and the privy purse allowances made to princely states so they would accede to the Indian union, were reneged. Several industries, including banks and mines, were nationalised by her government without being paid due compensation. It was left to the later Janata government to completely strike down the right to private property as a fundamental right.

The 44th Amendment moved by the Janata government repealed Articles 19(1)(f) and 31, taking away the Fundamental Right to Property, or whatever was left of it after a series of assaults by all previous governments that added proviso after proviso to water it down. At the time of the 44th Amendment, what remained of these provisions was only to protect the owners of small properties – the smallholder. After this amendment, all property holders, including the peasants, were permanently exposed to the danger of expropriation at the hands of the state. As per anecdotal accounts mentioned by Granville Austin in his seminal book, Working a Democratic Constitution, at least one of the leaders of the Janata government – Madhu Limaye – is said to have expressed reservation, saying the amendment could hit the smallholders one day. By another account in the same book, striking down the Right to Property was a deal cut by the Communists with the Janata Party in exchange for political support.

The following remarks of Dr. B. R. Ambedkar clearly show the nefarious design behind the above amendments:

The Socialists want two things. The first thing they want is that if they come in power, the constitution must give them the freedom to nationalise or socialise all private property without payment of compensation. The second thing the Socialists want is that the fundamental rights mentioned in the constitution must be absolute and without any limitations so that if their party fails to come into power, they would have the unfettered freedom not merely to criticise, but also to overthrow the state.

(While moving the motion to adopt the constitution, on November 26, 1949)

The present position:

The decades after the Socialist label was acquired and the fundamental freedoms and Right to Property were repealed, were a complete failure for the economy, leading the country to almost default in balance of payments. From the late ‘80s to present day, economic reforms have been carried out mainly to recover from the mess. Under prime ministers Rajiv Gandhi, Narsimha Rao, Atal Bihari Vajpayee and Manmohan Singh, the retrograde Socialist policies were abandoned, giving way for the private sector to lead the way in the economy.

While the economic reforms have been carried out at the policy level, constitutional amendments that led to the Socialist label and demise of private property rights have been left untouched. The state’s power to expropriate without limitation remains and is now used for supporting large urban-industrial projects in the private or public-private-partnership (PPP) sectors. As a result, the state can and does expropriate the property of private citizens – the farms, homes and huts of smallholders – without any constitutional bar to pay just compensation.

Small holdings, especially those on the outskirts of booming Indian cities, are routinely acquired forcibly using foul means, to expand the cities. Large tracts of land comprising several villages have been expropriated to make way for Chinese-style special economic zones (SEZs) and private towns. Homestead farmlands of adivasis (tribals) that were given special protection in the constitution are expropriated on a large scale by the government, for mining. Gradually, the entire land redistribution and nationalisation programme seems to have been turned on its head by the states. The ominous warnings of liberals in the Constituent Assembly seem to have come true. When Pandit Nehru moved an amendment to weaken the property rights of zamindars, Constituent Assembly member Kameshwar Singh of Darbhanga said, I would humbly entreat the supporters of the amendments not to introduce the vicious principle in the constitution. If they do so, what at present is misfortune for some of us, may be a misfortune for the country as a whole.

Acquiring smallholders’ homestead farms for a pittance and selling them for private businesses and middle-class housing at a premium has become the biggest political enterprise in the booming Indian economy and has led to large-scale protests by those who are expropriated. Not that expropriation of smallholders didn’t exist before the demise of private property rights – large tracts of land were cleared for building public sector steel plants, dams and cities. However, organised protests against such expropriations have reached a new level, not only due to a much larger number of instances now, but also because of the increasing private participation in the projects for which private lands are taken.

The government establishment and even the media have largely perceived these protests as retrograde and anti-development, many times branding them as treacherous Maoist insurgency. Indeed, there is a large faction of left-leaning activists and intellectuals who have thrown their weight behind the expropriated protesters. But there is hardly any liberal interpretation in terms of the expropriation being a clear violation of the original constitution and economic freedoms guaranteed in it.

At the time of this writing, the country is going to general elections, with opinion polls predicting win of the Bharatiya Janata Party (BJP) that seems to be decisively for free markets and private sector-led economy and rejects Socialism. However, officially it is supposed to be a Socialist party, having allegiance to the Indian Constitutions which describe India as a ‘Socialist’ country. However bizarre it may sound, the party had to sign under oath to the Election Commission of India that it believes in ‘Socialism’ (and ‘Secularism’), word(s) inserted by the 42nd amendment, to qualify as a party that could fight elections. Such is the hypocrisy the present and all future generations of Indians have to live with, as a result of this amendment. The refrain of Dr. B. R. Ambedkar, while rejecting the demand of certain members of the constituent assembly to declare India a Socialist state has been undone:

It cannot be laid down in the Constitution itself, because that is destroying democracy altogether. If you state in the Constitution that the social organization of the State shall take a particular form, you are, in my judgment, taking away the liberty of the people to decide what should be a social organization in which they wish to live. It is perfectly possible today, for the majority people to hold that the socialist organization of society is better than the capitalist organization of society. But it would be perfectly possible for thinking people to devise some other form of social organization that might be better than the socialist organization of today or tomorrow. I do not see, therefore, why the Constitution should tie down the people to live in a particular form and not leave it to the people themselves to decide it for themselves.

The ruling and opposition parties have heroically debated a revised Land Acquisition Act, first named the Land Acquisition and Rehabilitation & Resettlement (LARR) Bill 2011 and now fancily renamed and passed as the Right to Fair Compensation, Resettlement, Rehabilitation & Transparency in Land Acquisition Bill 2012. Each political party seems to be posturing to protect the poor landholder’s (read farmer’s) property from being taken away for urban and industrial development. The truth of the matter is that it is going to be a never-ending debate, until it can be established whether the state had the power to forcibly take away private property, to usher a market-based economic development model, without abuse and corruption inherent in such a power.

Incursions of Socialist creed and repeal of fundamental freedom and right to property rights seem to have been institutionalised, so much so that several of the large industrialists who otherwise have a good record of ethical business practices and philanthropy, as well as the crony capitalists that have emerged as a result of these policies, prefer the state’s right to expropriate with impunity, as long as it is smallholders’ land to be used for industry, mining or real estate. The near-absence of land markets, especially in the non-urban sectors, and as a result the governments playing the role of estate agents seems to have been accepted as a fait accompli by all, except the affected smallholders who are often left fighting street battles for protecting their smallholdings or pleading for being treated as owner of any other properties e.g. owner of an apartment in urban areas. The battles so far have lacked the legal or political arguments of constitutional rights and wrongs, though in West Bengal the issue of land acquisition became the focal point for electing a new government.

Many of the private industrial properties that were earlier nationalised after paying little or no compensation, for example the coal mines - are now being given away in dubious deals, as the national monopoly Coal India Ltd simply cannot run the expropriated mines. Likewise, most of the textile mills nationalised and merged into National Textiles Corporation are closed or sick and their land assets are being sold to private parties to be used for real estate. It is doubly ironical that had the erstwhile private owners had these mills, they would not have been so easily allowed to liquidate their land assets. It is bizarre that the industry owners who lost out earlier due to nationalisation now seem to be enjoying the states’ unfettered powers to acquire private properties. They often end up arguing, as if to lament India’s democratic constitution, that China’s economic growth is higher than India’s because of its dictatorial power to implement policies like land acquisition. What is missed out is that the same dictatorial powers puts at risk all private properties including industries, of expropriation and nationalisation in the hands of governments, without any recourse.

These instances put a question mark over the entire Socialist incursion into the Indian Constitution. The frequent amendments right after the constitution was adopted were mostly designed to attack the original framework of the constitution and to undermine the Supreme Court, which was bent on protecting the guarantees of economic freedoms and property rights.

All this to usher in a social revolution that was never to be achieved and which, in fact, backfired by putting citizens at risk to expropriation and the tyranny of an increasingly corrupt state.

It is against the above backdrop that this book seeks to prise open the treasure trove of the Constituent Assembly debates and to raise the questions: What was the original will of the founding fathers of India? And was it corrupted by later creatures of the constitution?

As a constitutional democracy, India has to address these questions head-on, rather than remain in a hubris that may lead to social unrest and disorder and eventually affect everyone. Violation of a basic human right on such a large scale may lead to unrest that can only put a spoke in the giant wheel of India, slowing it down, or even bringing it to a grinding halt. What, then, is the solution?

To re-emerge as a vibrant market economy, India needs to take a few steps back and undo what was done to the constitution during its Socialist fling. More specifically, it needs to restore the guaranteed Right to Property, a fundamental right that should not have been taken away in the first place, as the Constituent Assembly debates in the ensuing pages suggest.

Apart from the acquisition of the Socialist label and the demise of the Fundamental Right to Property, the related question of whether the parliament had the unfettered right to amend the constitution has been briefly covered in the following pages.

Though there is much scholarly and legal literature on the Constitution of India, there is little available to the ordinary citizen. Moreover, most of the great books, like those of Granville Austin, Seeravi, Basu, Palkhiwala and several other authors, are somewhat dated. This book builds on these great works, to interpret the latest happenings from a constitutional perspective. While doing so, it has relied and heavily quotes from the Constituent Assembly debates, in the belief that while interpreting the constitution with the present hindsight, nothing could be more interesting and illuminating than the extracts from the eloquent speeches of its members, who with unmatched eminence and expertise, articulated complex subjects in lucid prose.

This is perhaps the first attempt to extract important highlights from the Constituent Assembly debates, which comprise more than 2,000 pages fragmented into several volumes. As the stress is on brevity, this work claims neither to be comprehensive nor scholarly. Apart from a general overview and a very eloquent overview given by Dr. B. R. Ambedkar and Dr. Rajendra Prasad, only the most important and some of the most contentious portions relating to the debates on Socialism, Property Rights and parliament’s power to amend are covered.

The author is a citizen-pamphleteer who believes in what the great American jurist Joseph Story said in his Commentaries on the (American) Constitution, also quoted by the first chairman of the Constituent Assembly of India:

"If these Commentaries shall but inspire in the rising generation a more ardent love of their country, an unquenchable thirst for liberty, and a profound reverence for the constitution and the Union, then they will have accomplished all, that their author ought to desire. Let the American youth never forget, that they possess a noble inheritance, bought by the toils, and sufferings, and blood of their ancestors; and capable, if wisely improved, and faithfully guarded, of transmitting to their latest posterity all the substantial blessings of life, the peaceful enjoyment of liberty, property, religion, and independence. The structure has been erected by architects of consummate skill and fidelity; its foundations are solid; its compartments are beautiful, as well as useful; its arrangements are full of wisdom and order; and its defences are impregnable from without. It has been reared for immortality, if the work of man may justly aspire to such a title. It may, nevertheless, perish in an hour by the folly, or corruption, or negligence of its only keepers, THE PEOPLE. Republics are created by the virtue, public spirit, and intelligence of the citizens. They fall, when the wise are banished from the public councils, because they dare to be honest, and the profligate are rewarded, because they flatter the people, in order to betray them."

The same could be said about the Indian citizens particularly the youth, the India Union, its magnificent constitution, and this work.

Contents

Title

Copyright

Dedication

Acknowledgments

Preface

Introductory Note

1. What is a Constitution?

2. The Vision of the Indian Constitution and its Birth Pangs

3. The Draft Constitution: a Formidable Document

4. Discussion on the Draft Constitution

5. Fundamental Rights – the Bones of a Constitution

6. Draft Fundamental Rights

7. Right to Property – the Most Debated Clause in the Constitution

8. Directive Principles – the Great Balancing Act

9. Power to Amend – not a Power to Defile

10. The Grand Finale

Conclusion

Epilogue

Appendix I

Appendix II

Appendix III

Appendix IV

Appendix V

Appendix VI

Appendix VII

Introductory Note

In the following pages, you will find two types of text: extracts from the Constituent Assembly debates and commentaries from the authors and editors of this work.

The comments have been kept simple and short. Though sometimes the comments include examples, these are merely to explain and not to prove – it is well accepted these two things may not be same.

As the major part of the text is extracts from the Constituent Assembly debates, the name of speaker is given at the top of each extract.

The extracts are organised subject-wise and chronologically. A date reference is given at the end of each extracted series of debates that took place on a particular day. A corresponding volume reference is also given, in sync with the volume numbers in the full debates published on the official website.

To maintain the force of speeches and arguments, the originally documented form of the debates has been used while presenting the extracts, with minimal editing, if any, of obvious typographical mistakes only.

Annotations are rarely included, to avoid distraction in the flow of reading. It is believed that with computerised search capabilities, cross-references can easily be found by the discerning reader.

For the same reasons, the actual text of many articles is not mentioned, as it was not mentioned in the Constituent Assembly debates.

Emphasis has been added by italicising some of the passages.

It should be kept in mind that the final constitution was adopted after several readings, so the actual text of the articles and clauses and their numberings may be different in the actual Constitution of India, the full text of which is easily available online at many sources.

At some places, the related clauses and articles in the draft and final constitutions are referred to with a slash between the two,

e.g. Articles 304/368 refers to Article 304 in the draft constitution which was numbered Article 368 in the final constitution adopted. A list of article numbers in the final and the corresponding article numbers in the draft constitution discussed here is given in the appendix.

The ideas and opinions are entirely of the authors and editors. Some of these may be contentious but it is not meant to show any disrespect to any of the institutions, especially the Parliament and the Judiciary, which are believed to be like temples created by the constitution.

1

What is a Constitution?

Aconstitution is a written document that forms the basis of a governing body. In the case of a democratic constitution of a country, it is a master document that says how a government or governments will come into being and who in such a government will play what role and how, to conduct the business of governance.

At a very basic level, a constitution will always have a background perspective in terms of who are its authors and by what authority, and what are its aims and objectives in terms of what it seeks to achieve.

At a more detailed level, it will generally spell out whether it concerns a single unit, like a small city-state, or a federation of states. If it is federal, as is the Indian Constitution, it will spell out division of powers and responsibilities between a federal or central unit and various constituent states.

A modern democratic constitution is the property of its people – of, by and for the people. It invariably has certain protective features, such as a bill of rights or fundamental rights, beyond the reach of federal or state governments. To protect these rights – as rights would be useless without a recourse, there is a free and fair judicial mechanism, like impartial umpires in a good game who will call foul if any government officer tries to trespass into these rights by any of their actions or inactions. We may think of these rights as a gift that cannot be taken back, even if they can be borrowed momentarily by the state in an hour of emergency.

Then, a constitution will generally spell out how and to what extent it can be amended. This feature, too, is likely to have safeguards so that the rules of the game cannot be changed at the whim of its players, umpires and spectators.

In a nutshell, a federal constitution like ours binds all its units – the centre, the states and all its citizens – within its supreme authority, under the watchful eyes of the highest courts. These courts help protect and uphold the constitution like a good umpire does the rules of the game to ensure a good match.

To use another analogy, the constitution is like a master document of a house, comprising its architectural drawings and house rule manuals. In a house built according to this document, all inhabitants are supposed to be able to live in harmony, forever. Since it is built for such a long life, it has well-laid principles of how and to what extent it can be refurbished – a wall added here, an attic there, even a storey on top but not two, as the family grows. It also lays down how and to what extent house rules can be changed or new rules made – the elders or the juniors in the family may want that to make life better. But like any good house, it invariably has pillars and foundational rules that cannot be changed without destroying the house itself or making it uninhabitable. Call these fundamental rights or basic structure as you will, but bear in mind that if they are altered, the highest price will be paid by its only paymaster: the citizen.

To extend the analogy further, the house may have temples, like the Parliament and the Judiciary, in which elders live, but the paymasters would do well not to trade their reverence with freedom, as the price again is too high.

The following extracts from the first chairman of the Constituent Assembly inaugural address to the members is an authoritative account of what is a Constituent Assembly in an international context.

Dr. Sachchidananda Sinha

On this historic and memorable occasion, you will not grudge, I am sure, if I venture to address to you some observations on certain aspects of what is called a Constituent Assembly. This political method of devising a constitution for a country has not been known to our fellow-subjects in Britain, for the simple reason, that under the British Constitution, there is no such thing as a constituent law, it being a cherished privilege of the British Parliament, as the sole sovereign authority, to make and unmake all laws, including the constitutional law of the country. As such, we have to look to countries other than Britain to be able to form a correct estimate of the position of a Constituent Assembly.

The results achieved by the American Convention held at Philadelphia in 1787, had been accepted by the world as a model for framing independent federal constitutions for various countries. It is for these reasons that I have felt justified in inviting your attention to the American system of constituent and constitutional law as one – which should be carefully studied by you – not necessarily for wholesale adoption, but for the judicious adaptation of its provisions to the necessities and requirements of your own country, with such modifications as may be necessary or essential owing to the peculiar conditions of our social, economic and political life. I have done so as according to Munro – a standard authority on the subject – the American Constitution is based on a series of agreements as well as a series of compromises. I may venture to add, as a result of my long experience of public life for now nearly half a century, that reasonable agreements and judicious compromises are nowhere more called for than in framing a constitution for a country like India. In commending to you for your careful consideration and acceptance, with reasonable agreements and judicious compromises, the fundamental principles of the American system, I cannot do better than quote the striking observations on the subject of the greatest British authority namely Viscount Bryce, who in his monumental work, called The American Commonwealth, writes as follows, putting in a very few lines the substance of the fundamental principles of the American Constitution:- Its central or national government is not a mere league, for it does not wholly depend on the component communities which we call the States. It is itself a Commonwealth, as well as a union of Commonwealths, because it claims directly the obedience of every citizen, and acts immediately upon him through its courts and executive officers. Still less are the minor communities, the States, mere sub-divisions of the Union, mere creatures of the National Government, like the counties of England, or the Departments of France. They have over their citizens an authority which is their own, and not delegated by the Central Government.

The greatest American jurist, Joseph Story, in concluding his celebrated book, called Commentaries on the Constitution of the United States, he made certain striking and inspiring observations which I present to you as worthy of your attention. Said Story:-- "Let the American youth never forget, that they possess (in their Constitution) a noble inheritance, bought by the toils, and sufferings, and blood of their ancestors; and capable, if wisely improved, and faithfully-guarded, of transmitting to their latest posterity all the substantial blessings of life, the peaceful enjoyment of liberty, property, religion, and independence. The structure has been erected by architects of consummate skill and fidelity; its foundations are solid; its compartments are beautiful, as well as useful, its arrangements are full of wisdom and order; and its defences are impregnable from without. It has been reared for immortality if the work of man may justly aspire to such a title. It may, nevertheless, perish in an hour by the folly, or corruption, or negligence of its only keepers, THE PEOPLE. Republics are created - these are the words which I commend to you for your consideration - by the virtue, public spirit, and intelligence of the citizens. They fall, when the wise are banished from the public councils, because they dare to be honest, and the profligate are rewarded, because they flatter the people, in order to betray them.

To quote yet one more leading authority on the almost ideal Constitution of America, James (at one time Solicitor-General of the United States) says in his highly instructive book, called, The Constitution of the United States - Yesterday, Today, and Tomorrow- "Constitutions, as a governmental panacea,