The politics of the constitution

After a series of land grabs culminating in the tragedy called Singur, the Indian parliament has finally woken up and amended the Land Acquisition Act. While the government can still acquire anyone’s property without paying compensation, it can only acquire land for private purposes if the private party has acquired at least 70% of it on its own. The figure should have been 100%, but they probably thought it is not “practical”-

The proposed R&R and LA Act would state that government can acquire land for a private entity only after the latter had purchased 70% of the required land on its own. The provision was strongly opposed both by Left parties and a parliamentary standing committee earlier.

The R&R bill was dubbed a major `aam aadmi’ initiative and the proposed law gained a lot of publicity in the wake of agitations against displacement in Nandigram and Singur. The Centre said it was an attempt to give a good deal to displaced people while taking away arbitrary powers from government to uproot people in the name of “public purpose”.

The opposition from the communist party is not surprising. West Bengal, after all, wants to emulate China.

The sad truth is, all our rights were doomed the very first day the Constituent Assembly sat down for its debates. Their “Objectives Resolution” had this clause-

5.WHEREIN shall be guaranteed and secured to all the people of India justice, social economic and political: equality of status, of opportunity, and before the law; freedom of thought, expression, belief, faith, worship, vocation, association and action, subject to law and public morality;

They wrote the constitution, and subsequent governments made a joke out of it, amending it to scratch every itch. Some amendments are very interesting indeed.

Nehru had a problem with expansive fundamental rights; so he un-fundamentalized them. Further, to break the back of the feudal system, he put the laws that allowed the government to grab land under the Ninth Schedule – beyond the scrutiny of any courts. That was the first amendment that I wrote about yesterday, and the fourth

2. Recent decisions of the Supreme Court have given a very wide meaning to clauses (1) and (2) of article 31. Despite the difference in the wording of the two clauses, they are regarded as dealing with the same subject. The deprivation of property referred to in clause (1) is to be construed in the widest sense as including any curtailment of a right to property. Even where it is caused by a purely regulatory provision of law and is not accompanied by an acquisition or taking possession of that or any other property right by the State, the law, in order to be valid according to these decisions, has to provide for compensation under clause (2) of the article. It is considered necessary, therefore, to re-state more precisely the State’s power of compulsory acquisition and requisitioning of private property and distinguish it from cases where the operation of regulatory or prohibitory laws of the State results in “deprivation of property”. This is sought to be done in clause 2 of the Bill.

Of course, the courts were being too strict. How can snatching aways someone’s property be construed as an assault on the right to property? Those **** nitpicking judges!

Indira Gandhi enacted the twenty-fourth amendment

The Supreme Court in the well-known Golak Nath’s case [1967, 2 S.C.R.762] reversed, by a narrow majority, its own earlier decisions upholding the power of Parliament to amend all parts of the Constitution including Part III relating to fundamental rights. The result of the judgment is that Parliament is considered to have no power to take away or curtail any of the fundamental rights guaranteed by Part III of the Constitution even if it becomes necessary to do so for giving effect to the Directive Principles of State Policy and for the attainment of the objectives set out in the Preamble to the Constitution. It is, therefore, considered necessary to provide expressly that Parliament has power to amend any provision of the Constitution so as to include the provisions of Part III within the scope of the amending power.

and the twenty-fifth

Article 31 of the Constitution as it stands specifically provides that no law providing for the compulsory acquisition or requisitioning of property which either fixes the amount of compensation or specifies the principles on which and the manner in which the compensation is to be determined and given shall be called in question in any court on the ground that the compensation provided by that law is not adequate. In the Bank Nationalization case [1970, 3 S.C.R. 530), the Supreme Court has held that the Constitution guarantees right to compensation, that is, the equivalent in money of the property compulsorily acquired. Thus in effect the adequacy of compensation and the relevancy of the principles laid down by the Legislature for determining the amount of compensation have virtuality become justiciable inasmuch as the Court can go into the question whether the amount paid to the owner of the property is what may be regarded reasonably as compensation for loss of property. In the same case, the Court has also held that a law which seeks to acquire or requisition property for a public purpose should also satisfy the requirements of article 19 (1) (f).

2. The Bill seeks to surmount the difficulties placed in the way of giving effect to the Directive Principles of State Policy by the aforesaid interpretation. The word “compensation” is sought to be omitted from article 31(2) and replaced by the word “amount”. It is being clarified that the said amount may be given otherwise than in cash. It is also proposed to provide that article 19(1)(f) [right to property] shall not apply to any law relating to the acquisition or requisitioning of property for a public purpose.

3. The Bill further seeks to introduce a new article 31C which provides that if any law is passed to give effect to the Directive Principles contained in clauses (b) and (c) of article 39 and contains a declaration to that effect, such law shall not be deemed to be void on the ground that it takes away or abridges any of the rights contained in article 14, 19 or 31 and shall not be questioned on the ground that it does not give effect to those principles.

and, after she turned tyrant – the forty-second

A Constitution to be living must be growing. If the impediments to the growth of the Constitution are not removed, the Constitution will suffer a virtual atrophy. The question of amending the Constitution for removing the difficulties which have arisen in achieving the objective of socio-economic revolution, which would end poverty and ignorance and disease and inequality of opportunity, has been engaging the active attention of Government and the public for some years now.

2. The democratic institutions provided in the Constitution are basically sound and the path for progress does not lie in denigrating any of these institutions. However, there could be no denial that these institutions have been subjected to considerable stresses and strains and that vested interests have been trying to promote their selfish ends to the great detriment of public good.

3. 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 which have been allowed to be relied upon to frustrate socio-economic reforms for implementing the directive principles. It is also proposed to specify the fundamental duties of the citizens and make special provisions for dealing with anti-national activities, whether by individuals or associations.

4. Parliament and the State Legislatures embody the will of the people and the essence of democracy is that the will of the people should prevail.

So not only do some “directive principles” prevail over fundamental rights, but people are now slaves of the government thanks to “fundamental duties.” You don’t have any rights, but you do have many duties.

The Janata Government that was swept into power after the Emergency rolled back some of Gandhi’s tyrannical measures, but it too subscribed to the same egalitarian ideals that the Congress Party subscribed to; it didn’t think the right to property was a fundamental one. So, it enacted the forty-fourth amendment

Recent experience has shown that the fundamental rights, including those of life and liberty, granted to citizens by the Constitution are capable of being taken away by a transient majority. It is, therefore, necessary to provide adequate safeguards against the recurrence of such a contingency in the future and to ensure to the people themselves an effective voice in determining the form of government under which they are to live. This is one of the primary objects of this Bill.

2. It is, therefore, proposed to provide that certain changes in the Constitution which would have the effect of impairing its secular or democratic character, abridging or taking away fundamental rights prejudicing or impeding free and fair elections on the basis of adult suffrage and compromising the independence of judiciary, can be made only if they are approved by the people of India by a majority of votes at a referendum in which at least fifty-one per cent. of the electorate participate. Article 368 is being amended to ensure this.

3. In view of the special position sought to be given to fundamental rights, the right to property, which has been the occasion for more than one amendment of the Constitution, would cease to be a fundamental right and become only a legal right. Necessary amendments for this purpose are being made to article 19 and article 31 is being deleted. It would, however, be ensured that the removal of property from the list of fundamental rights would not affect the right of minorities to establish and administer educational institutions of their choice.

4. Similarly, the right of persons holding land for personal cultivation and within the ceiling limit to receive compensation at the market value would not be affected.

5. Property, while ceasing to be a fundamental right, would, however, be given express recognition as a legal right, provision being made that no person shall be deprived of his property save in accordance with law.

There may be a few more, but one thing is clear – we have no FUNDAMENTAL RIGHTS.

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