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Issue No.: 573 | March 2015


Sanjiv Agarwal
THE INDIAN FEDERALIST – THE ORIGINAL WILL OF INDIA’S FOUNDING FATHERS by Sanjiv Agarwal * Notion Press, Chennai, 5 Muthu Kalathy Street, Triplicane, Chennai 600005 * 2014 * pp 259 * Rs. 425

Sanjiv Agarwal, an entrepreneur, inventor, founder of Good Governance India Foundation, and a "citizen-pamphleteer”, seeks to show through a reading of the debates of the Constituent Assembly, that the forty-second and forty-fourth amendments to our Constitution are against the spirit and intent of the Constitution’s founding fathers. While the former, authored by the Congress in 1976 added the words "socialist and secular” to the Preamble to our Constitution, it was the latter brought about by the Janata Government in 1978 which did away with property as a fundamental right by repealing Article 19(1)(f) ("all citizens shall have the right to acquire, hold and dispose of property”) and Article 31 (which had provided for fair compensation in the event of the property’s compulsory acquisition). 

Arguably, the word "socialist” is elastic in its meaning and interpretation (there are socialists and socialists) and we need not fear that a doctrinaire, rigid interpretation is the only one possible. At any rate, it did not prevent the introduction in 1991 of economic reforms which were anything but socialist nor reforms of a similar nature carried out since. However, this may only be because the constitutionality of such reform measures has not been tested in a court of law. Importantly, the forty-second amendment encourages and indeed demands intellectual dishonesty and deception, as any political party wishing to enter electoral politics must swear allegiance to the socialist character of the Constitution, whether or not it subscribes to it. 

In the debate in the Constituent Assembly on whether or not to characterise the fledgling republic as ‘socialist’, Nehru, of socialist leaning himself, chose not to insist on such a characterisation, saying "…..if, in accordance with my own desire, I had put in that we want a Socialist State, we would have put in something which…..may not be agreeable to some and we wanted this Resolution not to be controversial in such matters”. Even more to the point was Ambedkar: "what should be the policy of the State, how the society should be organised in its social and economic side are matters which must be decided by the people themselves according to time and circumstances. It cannot be laid down in the Constitution itself, because that is destroying democracy altogether”. The sense of the Assembly was that the Preamble ought not to include the word "socialist”. Yet in 1976, the Congress government led by Indira Gandhi had no qualms in bringing about the forty-second amendment.

The right to property and to fair compensation in the event of the property’s compulsory acquisition were both hotly debated in the Constituent Assembly. The discussion was informed and influenced by the abolition of the zamindari, to which most members were committed. Even so, many voices resolutely defended the right to property as a fundamental right. For example, Naziruddin Ahmad noted that "If we do not respect private property all talk of fundamental or constitutional rights will come to naught” and "...if we can confiscate zamindari property without sufficient compensation, we would also confiscate any business concern…” K.T.M Ahmed Ibrahim wanted fair and equitable compensation at market value to be paid for property acquisition by government and pointed out that nowhere is compensation awarded at the pleasure of the executive. 

The right to property and to fair compensation in the event of the property’s compulsory acquisition were both hotly debated in the Constituent Assembly. The discussion was informed and influenced by the abolition of the zamindari, to which most members were committed. Even so, many voices resolutely defended the right to property as a fundamental right. For example, Naziruddin Ahmad noted that "If we do not respect private property all talk of fundamental or constitutional rights will come to naught” and "...if we can confiscate zamindari property without sufficient compensation, we would also confiscate any business concern…” K.T.M Ahmed Ibrahim wanted fair and equitable compensation at market value to be paid for property acquisition by government and pointed out that nowhere is compensation awarded at the pleasure of the executive.

Syamanandan Sahaya pointed out the vital role that private property plays in incentivising people. In an impassioned address, he pointed out that the Congress manifesto of the day had declared that "the rights of the intermediaries should be acquired on payment of equitable compensation”, which position, he went on to add, had been emphatically reiterated by Prime Minister Nehru, not once but twice. Jagannath Baksh Singh rejected inadequate financial capacity of the State as reason for not paying or paying inadequate compensation. He noted that the "fundamental right to property…. is deemed sacred and guaranteed by almost every important constitution in the world”. Many members opposed Nehru’s views that the community is to be privileged over the individual and that the "legislature must be supreme and must not be interfered with by the courts of law in such measures of social reform”. Yet, despite these voices of reason, Article 31, as it finally emerged, failed to qualify "compensation” with "fair” or "just” or "equitable”.

As for the power to amend the Constitution, Ambedkar noted that "….the purpose of a Constitution is not merely to create the organs of State but to limit their authority”. In a masterly survey of the major Constitutions of the world, he pointed out how most of them required a majority vote in a referendum of the people for any constitutional amendment to take effect. 

Mr. Agarwal has been waging a legal battle to have the two amendments struck down. As pointed out, the forty-second is irksome for those who wish to offer an alternative political platform (say on "Swatantra” lines) in as much as it requires political parties to swear by socialism. As for the forty-fourth, the expansive reading given to "eminent domain” has come to mean that land can be acquired by government for just about any purpose, including for having it transferred to private business interests. In the absence of constitutional protection, it is the small landowner, the poor farmer and the tribal who suffer, especially when his land is taken away and used to build not schools, hospitals, roads or dams, which serve a public purpose, but shopping malls and factories run by businessmen or corporations. Such expropriation should be anathema to a liberal who believes in the sanctity of private treaty and abhors the heavy hand of government. As land taken away is more often than not agricultural and its future use industrial, there is the additional danger of the government privileging one sector over another. 

In his petition, Mr. Agarwal has pointed to the absurdity of changing the Preamble retrospectively and has cited the Privy Council’s observations in Bhola Prasad vs Emperor, AIR 1942 FC 17: "A legislature can always enact that the law is, and shall be deemed to have always been, such and such; but that is a wholly different thing from imputing to dead and gone legislators a particular intention...”

The author’s legal challenges have been unsuccessful so far. They were premised on the proposition that the said amendments violated the basic structure of the Constitution (a la Kesavananda and I. R. Coelho) and were therefore unconstitutional. The Supreme Court opined that the plea to strike down the forty-second amendment was "academic” although "important”, and left the question to be decided in the future, presumably because the challenge did not arise from a concrete set of circumstances. On the forty-fourth, it feared that striking it down would undo a raft of judicial verdicts and settled law relating to property rights. But Mr. Agarwal is nothing if not dogged. All liberals must support him in his fight to have the pernicious amendments rolled back.





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