These Twenty Years

G. S. PATHAK
Vice-President of India

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 India could be compelled to accept or abandon any creed or belief; no particular religion receives any special patronage. It will be useful to examine how the Constitution accords protection to interests of minorities and how in practice the rights of minorities are protected. All ‘minorities’ having a distinct language, script or culture shall have the right to conserve them. All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice and the State is enjoined, in granting aid to educational institutions, not to discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language. One case may be mentioned to illustrate how Government interference with the cultural and educational rights of minorities was prevented by judicial intervention. A Christian Society was running a Training College for Teachers. On the ground that it was necessary to have a large number of trained teachers in District School Boards and Municipalities, the Government issued an order directing that 80 per cent of the seats in the Training College should be reserved for the nominees of the Government and threatened that disobedience of the order would involve the withdrawal of the grant and withdrawal of recognition to the Training College.
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 Gujarat vs. Shantilal Mangaldas ( A. I. R. 1969 Supreme Court, page 634) has clarified the position upsetting a prior decision of its own, and now it is absolutely clear that the question of inadequacy of compensation cannot be gone into by courts. In this way full effect has been given to the Constitution (Fourth Amendment) Act, 1955.

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 India and that every citizen has the right to free movement throughout its territories and freedom to reside anywhere in the country irrespective of the language he speaks, the religion he follows or the caste or creed to which he belongs. Place of birth is irrelevant for the enjoyment of many of our fundamental rights.

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 Madras
on February 5, 1970)