6.

Freedom in Peril
Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it. LEARNED HAND

The myth has been sedulously propagated by wily politicians that it is the Constitution which stands in the way of the nations economic progress and the uplift of the masses. This is the greatest f raud ever perpetrated on the people. The truth of the matter is that it is the wooden-headed and disastrous economic policies of the Governments at the Centre and in the States which are truly responsible for our appalling poverty1. There is not a single sound economic policy or scheme for social uplift of the masses which is in the slightest degree hampered or hindered by any of provisions of the Constitution. Yet the miseries of the people, which are the consequence of the incompetence or corruption, or both, of politicians in power, are place at the door of the Constitution. This misrepresentation serves two purposes first, it is intended to afford an alibi for the wrongdoers and, secondly, it enables the Government to arrogate more and more powers to itself by advocating further curbs on the rights and liberties of citizens. The severe abridgment of our fundamental right has been perpetrated in the name of public welfare. During the last hundred years, there has never been a dictatorship, never a tyranny, never a ruthless suppression of human freedoms which has not proclaimed that it is for the benefit of the masses and designed to achieve their economic advance. After the recent constitutional amendments, the economic condition of the people has worsened alarmingly, exploding the falsehood that the fundamental rights had stood in the way of egalitarian progress2.

Poverty alleviation has been on the national policy agenda for more than 50 years. As early as 1938, the Indian National Congress constituted a National Planning Committee (NPC) headed by Jawaharlal Nehru, which had declared that the social objective should be "to ensure an adequate standard of living for the masses, in other words, to get rid of the appalling poverty of the people". The importance of reduction in poverty, provision of other basic needs and equitable development has been emphasised in all the five year plans since independence particularly since the 5th Five-Year Plan. The government has a two-pronged approach, viz, promoting economic growth and direct action towards poverty alleviation. (S.Mahendra Dev Chairman, CACP, And Government of India: Rural Poverty, Inequality and Social Exclusion: Dimensions, Processes and Policies) According to a new Oxford University study, 55 percent of Indias population of 1.1 billion, or 645 million people, are living in poverty. Using a newly-developed index, the study found that about one-third of the worlds poor live in India. The inflation policy giving raise to sharp increase of food prices, including an average 83 percent increase since 2008, have been devastating for the countrys poor. Their situation has be en further aggravated by recent fuel price hikes announced by the Indian government. The United Nations World Food Program (UNWFP) recently painted an alarming picture, reporting that nearly 350 million people roughly 35 percent of Indias population was food insecure and consumed less than 80 percent of their total energy requirements. (WSWS.org). These numbers on poverty indicate that the social objective declared by the NPC headed by Jawaharlal Nehru in 1938 is largely unaccomplished even after 62 years of independence. Pace of reduction in poverty has been, however, slow as compared to many other countries, particularly those of South-East and East Asia. This point out the failure of economic policies of the Central and state governments 2 Reservation policy was passed keeping in mind the interest of the public, uplifting backward classes and also to achieve true spirit of equality. Though it was a temporary measure, yet it has been highly successful enough to find its place in the Indian constitution, by imposing its horrific effects on the people and utterly working against the interest of the public. During the Constituent Assembly Debates, it was hoped, that after ten years, or so, there would be no need for Reservation.

In a brilliant address to the Fourth Commonwealth law Conference held at New Delhi on 7 January 1971, Lord Hailsham, the then lord Chancellor said: . . . . It is only in conditions produced by law that freedom can grow. It is only in conditions where freedom can grow that human dignity can be achieved. It is only free human beings who have attained human dignity who will be ultimately secure in the possession of food, homes and jobs, and security which goes to make the good life. This is the basic philosophy on which I build what I have to say about law and the common man. . . . . Constitutional liberties freedom of the person and of association, equality before the law and liberty of expression precede and are the conditions economic advance and social security, both of which are largely the result of constitutional freedoms and cannot be obtained without them. This is why those who throw away constitutional safeguards elected governments, freedom to oppose, independent courts in the name of economic advance, are ultimately betraying the common man, and depraving him of the chance of social progress and the very things they promise him in their party manifestoes. They are the real class traitors, because in the end they impose themselves as masters on those before whom they parade themselves as liberators. Such is the grave peril facing the freedom of the common man even in well-regulated democracies, that Lord Justice salmon, delivering the Haldane Memorial Lecture at the London University on 3 December 1970,advocated the enactment of a Bill of Rights to establish and preserve basic freedom in England. He envisaged the possibility of the tendency towards the monolithic State taking the form of law, years later, which would make it a criminal offence to criticize the Government in power. If such a law were passed, the judges would have no alternative other than to enforce it or resign, unless there was a Bill of Right which could guarantee the basic liberties of the citizen. Lord Justice Salmon further observed that liberty was threatened both by the unnecessary and increasing number of restriction on what a citizen could do, and by a minute minority showing a tendency towards anarchy, which was the death of freedom; and that judges were the last bulwark of individual liberty.

If this is the danger facing comparatively safe and secure democracies, one realises the desperate necessity for defending, preserving and fighting for the sanctity and integrity of our Constitution.

MV Kamath MV Kamath, on October 14, 1949, said, Members and even friends outside may dispute the wisdom of this course (Reservations for SC/ST). I only wish to express the hope that before ten years has expired from the commencement of the Constitution. there will be not merely no backward classes, socially and educationally backward classes left, but that all the classes will come up to a decent normal human level, and also that we shall do away with this stigma of any caste being, scheduled, this was the creation of British regime, which happily has passed away. We have taken many strides forward in removing or do away with the numerous evils that were associated with the British regime. This is one of the few that still remain. I hope that ere long, this stigma, too, will disappear from our body politics and we shall all stand before the world as one single community. (Constituent Assembly Debates, Vol. X, pp 242-43) Dr. Ambedkar on Reservations On August, 1949, while defending SC Reservation for ten years, Dr. Ambedkar also said, For the scheduled tribes, I am prepared to give far longer time, but all those, who have spoken about the Reservation to the SC or to the ST, have been so meticulous that the thing should end by ten years. (Id., p.697) Not only Nehru, but Ambedkar, the undisputed leader of untouchables and Doyen of contemporary Dalit Politics himself declared in a speech sometime before his death that the provision of Reservation in service should not extend beyond 1960/61. (Indian Express, Dated September 14, 1990.). Dr. Ambedkar later in life also believed that Policy of Reservation had Encouraged backwardness, inefficiency and lack of competitive merit among them barring a few stray cases. (Balraj Madhok, Aryan Heritage,May 1985)

370 million people3 out of our population of 580 million4 are illiterate, and the foremost duty of those who are blessed with the benefits of education is to ensure that the majority of our people who are not even aware of their fundamental rights are not deprived of them through the guiles of power-grasping politicians. It is in this respect that the educated illiterates and the inarticulate elite have wholly failed our people.
The real danger which India faces today is from the men who hunger and thirst for power and whom Milovan Djlas called The New Class. They have little respect, and less concern, for the basic human freedom of the citizen. Their irresponsible readiness to amend the Constitution with a view to constriction liberty is only tantamount to a confession of personal unfitness t work, what one Supreme Court judge aptly called, our sublime Constitution5. In India freedom is not more than one election away from extinction. When an attempt to uphold the rule of law is called manifestation of vested interests, and when preservation of the sanctity of the Constitution is called the handiwork of reactionary forces, it should be clear to any thinking mind tha t freedom is on peril. Paradoxical as it may seem, the wealthy and the influential have less to lose by abrogation of the constitutional rights that the common man, - they have more fundamental means of protecting themselves that the fundamental rights. Nor do ministers and other politicians need fundamental rights; they belong to the first of the two new castes- the rulers and the ruled. It is the ordinary citizens who have the most to lose by the erosion of freedom and of their basic liberties. Let it not be said that those who had the most to lose did the least to prevent it happening. Sachchidananda Sinha must have been in a prophetic mood when he delivered his Inaugural Address as the Provisional Chairman to the Constituent Assembly on 9 December 1946. He quoted the inspiring words of Joseph Story1, perhaps the greatest of American jurists, who said that the Constitution which was bought by the toils and sufferings and blood of the fighters for freedom, and was meant to endure through generations, might perish in an hour by the folly, corruption or negligence of its only keepers, the people.

It has been the sad destiny of India to prove the truth of those words. We have failed to guard our noble heritage. We tolerate the official enunciation of the astounding thesis that the judges must

468 Million, [Source: as per 2001 Census from the Office of the Registrar General and Census Commissioner, India]
4

1028.7 Million, [Source: as per 2001 Census from the Office of the Registrar General and Census Commissioner, India]
5

Through the Constitution (Thirty Ninth Amendment) Act, 1975, the supreme law of the land was amended, in the middle of the Emergency. The amendment added Article 329-A to the Constitution by which election disputes involving the Prime Minister and the Speaker were kept outside the scope of the courts to decide. It was intended to save Indira Gandhi, whose election from Rae Bareili was held null and void by the Allahabad High Court. The Constitution (Thirty Ninth Amendment) Act, 1975 was moved on August 6, 1975, the Bill was considered and voted in the Lok Sabha on August 7, 1975, in the Rajya Sabha on August 8, 1975 and endorsed by State Assemblies in special sessions convened on August 9, 1975 (though it happened to be a Saturday) and brought into effect on August 10, 1975 after obtaining assent the same day. A Constitution Bench of the Supreme Court was to take up the appeal by Indira Gandhi against the Allahabad High Court verdict on August 11, 1975! It is another matter that the Constitution Bench struck down the amendment. Changing the Supreme law in such a pace is an affront to the Constitution.

subscribe to the philosophy of the ruling party. 6 We take in our slumber Article 31C which virtually abrogated the most precious basic human rights.7 We nod while in some states men are detained, without trial, under the Maintenance of Internal Security Act8 only because they are political opponents of the party in power. We acquiesce in the Constitution being mocked by deviations which become more and more outrageous with the passage of years.9 Samuel Butler said that conscience is very well-bred and soon ceases to speak to those who will not listen to it. As with the conscience of individuals, so with the conscience of Governments. After it has gone on for years wholly impervious to rational public criticism, the Government reaches a stage when its conscience ceases to speak to it. That is the time when all standards of public decency get buried deeper than any plummet ever fathomed.

6 7

See A Judiciary made to measure, p.93. See Article 31C- an outrage on the Constitution, p.50 8 repealed by the Maintenance of Internal Security (Repeal) Act, 1978 (27 of 1978), S.2 (w.e.f 3-8-1978). Subsequently replaced by National Security Act, 1980 (w.e.f 27-12-1980) 9 See Deviations from the Constitution, p.71.