Legislature and Judiciary Lock Horns Democracy in Peril
Murshidabad Sandesh - A Journal Of History ,Vol-34 ,No-1 ,2007
About seventeen thousand members of Paschim Banga Bhumijibi Sangha, their lacs of family members and lacs of peasant families of West Bengal are seeing the specter - the specter of the Ninth Schedule of the Indian Constitution. To simplify the term Ninth Schedule it can be said that if the Constitution of India is a sovereign house, Ninth Schedule is a protected room outside the purview of the judiciary. Any dispute or problem regarding this schedule will be decided by the administration.
It was after 15 months from the implementation of the Indian Constitution that the then Prime Minister Jawaharlal Nehru realized that although some acts had been passed at the centre and different states within those 15 months for the common and underprivileged section of the Indian people, but they were not implemented for judicial activism. Therefore in the first amendment Bill of the Constitution on 10th May, 1951, the Right to Property was deleted from the ‘Fundamental Right’ section and Article 31A and 31B were added after the Article 31 at the same time to give protection to 11 central and state acts for the abolition of zamindari1. The ‘protected room’ Ninth Schedule was created in the article 31B. On 10th May 1951 Nehru mentioned in the parliament “ during the last fifteen months of the working of the Constitution, certain difficulties have been brought to light by judicial decisions and pronouncements specially in regard to the chapter on fundamental rights. The citizen’s right to freedom of speech and expression guaranteed by article 19(1) (a) has been held by some courts to be so comprehensive as not to render a person culpable even if he advocates murder and other crimes of violence. In other countries with written constitutions, freedom of speech and of press is not regarded as debarring the state from punishing or preventing abuse of this freedom. The citizen’s right to practice any profession or to carry on any occupation, trade or business conferred by article 19(1)(g) is subject to reasonable restrictions which the laws of the State may impose ‘in the interests of the general public.’ While the words cited are comprehensive enough to cover any scheme of nationalization which the State may undertake, it is desirable to place the matter beyond doubt by a clarification in addition to article 19(6). Another article in regard to which unanticipated difficulties have arisen is article 31. The validity of agrarian reform measures passed by the State Legislatures in the last three years has, in spite of the provisions of clauses (4) and (6) of article 31 formed the subject matter of dilatory litigation, as a result of which the implementation of these important measures, affecting large numbers of people, has been held up.” In the words of Nehru, “The main objects of this Bill are, accordingly, to amend article 19 for the purposes indicated above and to insert provisions fully securing the constitutional validity of zamindari abolition laws in general and certain specified State Acts in particular. The opportunity has been taken to propose a few minor amendments to other articles in order to remove difficulties that may arise.”
The question however remains that although the abolition of zamindari was a step forward to the establishment of capitalism by destroying feudalism and finally establishment of socialism, as is also evident from Nehru’s various speeches why the word socialism was not mentioned even once in the Constitution initially It is well known that it was in between 1917 Socialist Revolution of Russia and the Indian independence in 1947 the establishment of socialism in the countries like China, Czechoslovakia, Rumania and the world opinion in favour of socialism resulted in growing inclination of the freedom fighters for socialism. However the word socialism was not mentioned in the preamble of the Constitution.
The two components of a constitution are the objectives or preamble and the Articles. What is not written in the objectives should not be mentioned in the Articles. Accordingly the word socialism was not included in both the components. The two words ‘socialist’ and ‘secular’ were included in the preamble in the 42nd amendment; either probably as ‘after thought’ or ‘as condition required by the 1st amendment Bill of the Constitution of India’.
In the opinion of the political scientists it was a major mistake on the part of Nehru to give protection to the acts for zamindari abolition by the creation of Ninth Schedule as neither the word socialist was included in the preamble nor the spirit of the preamble does reflect so. The rectification was made 25 years later in 1976 through the 25th amendment when the words socialist and secular were included in the 25th amendment Act.
The Constitution of India was adopted on 26th November 1949. Within that period from the independence some zamindari abolition acts were passed, especially in two states. They were The Bombay Tenancy and Agricultural Lands Act, 1948 (Bombay Act LXVII of 1948), The Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948 (Madras Act XXVI of 1948). Apart from these the Maliki Tenure Abolition Act, The Bombay Taluqdari Tenure Abolition Act and the Mahelssi Tenure Abolition Acts were passed. In 1950 in Madhya Pradesh the Proprietary Rights Abolition Act and in Bombay the Kothi Abolition Acts were passed. In 1951 the Uttar Pradesh Zamindari Abolition and Land Reforms Act were passed. However these acts of zamindari abolition were challenged in the court of law. This became a problematic of Nehru. The Ninth Schedule was created and the said acts were given protection. It was seen however that the High Courts and the Supreme Court maintained impartiality in the mean time after independence. From the aforementioned words of Nehru it is clear that he wanted to give a place to the parliament above the judiciary. The seed of primacy of bureaucracy was sown.
It can be said that the author of ‘The discovery of India’, somewhat despaired, placed the Estate Acquisition Bill, while not conforming to the objective of the Constitution. However, the intention of the legislature while including the Ninth Schedule was to protect the acts related to zamindari abolition, the protection of rights of the minorities and underprivileged sections and some state acts. Although that bill went against the words and spirit of the Constitution.
The two main components of the constitution was the objectives or the Memorandum of Association and the rules or Article of Association. The constituent assembly prepared the objectives and the articles of the Indian Constitution. It can be mentioned that the rules are not written in contravention with the objectives. The rules can be amended as provided by the Constitution in its Articles but not the objectives. In case of change in the objectives the Constitution itself should be declared void and new Constitution should be adopted. At the time of preparing the Constitution the Constituent Assembly did not want to make India a Socialist Country. Moreover the Right to Property of the citizens was mentioned as the Fundamental Rights. The Preamble of the original Constitution reads: ‘ We THE PEOPLE OF INDIA, having solemnly resolved to constitute India in to a SOVEREIGN DEMOCRATIC REPUBLIC and to secure to all its citizens...’ As the word socialist was not included in the Preamble in original Book till to-day,3 any rule aiming at establishment of socialism was unconstitutional.
It has already been mentioned that at the time of preparation of the Indian Constitution the common peoples’ opinion world over favoured socialism. Starting with the October Revolution in Russia in 1917, one country after another China, Rumania, Bulgaria, Czechoslovakia etc. witnessed socialist movement. In such a situation and as the situation required leaders like Nehru propounded socialism through different activities but the word socialism was not included in the Preamble probably because in the traditional Indian society it could not be fitted.
Thus it was perhaps to avoid bloodshed and subsequent establishment of socialism in the country that Nehru wanted a peaceful democratic way to abolish zamindari and found socialist society. While imprisoned in Mandar in 1946 Nehru wrote ‘Discovery of India’. He examined the impact and significance of the Vedas, the Vedanta, the Mahabharata, the Gita etc. on the culture of Indian people. In this book Nehru depicted the Indian poverty under the British rule and wrote the resultant two chapters ‘The Frustration’ and ‘Growth is arrested’. It was probably the frustration on the one hand and the fear of armed revolutionary upheaval on the other that Nehru gave protection to the laws regarding the abolition of zamindari. He stated in the Bill which was placed in the parliament on 10th May, 1951, that, ‘.....the state should promote with special care the educational and economic interests of the weaker sections of the people and protect them from social injustice. In order that any special provision that the State may make for the educational, economic or social advancement of any backward class of citizens may not be challenged on the ground of being discriminatory, it is proposed that article 15(3) would be suitably amplified The Bill however was sent to the Select Committee. The Committee corrected some portions of the Bill and sent back to the Parliament. In that Bill, Nehru did not focus on the abolition of the Right to Property. But he mentioned, ‘ There are those laws of course, most of them finding its place in the proposed 9th Schedule.’ Question was raised regarding the annulment of some acts abolishing zamindari by the High Courts and the Supreme Court through the process of judicial review. Nehru wished, ‘We by this amendment to change that interpretation.’ Shyama Prasad Mukhopadhyay, the elected Member of Parliament from West Bengal supported Nehru.