ARE WE REALLY FREE?

The Land Acquisition Bill whether the one brought by the Congress or now by Modi Govt in essence is warning to all of us that rights of our property will be solely decided by the will of Parliament or even by a state legislature.

The question that needs to be asked ARE WE REALLY FREE?

The Constitution of India is based on the Government of India Act, 1935 which contains right to property and its safeguards. After the Constitution of India came into force agrarian reforms were introduced as matter of commitment to meet the exigencies of Directive principles. Agrarian reforms is the root cause that opened the Pandora’s box.
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However state exercising the power to enforce Directive principles and its trouble over protecting fundamental rights, especially the fundamental right to property, led to a clash with the judiciary which continues to this day in one form or other. Therefore it removed fundamental right to property from the ambit of being an absolute right. The state turned totalitarian saying it has the power to acquire the land of anyone for a public purpose after paying compensation and no fool dare to question it. This arrogance seems to be stemming from the fact that state has the power to impose taxation on a person’s property the way it likes.

The question is whether these agrarian reforms introduced were within the said framework of the Constitution when the philosophy of fundamental rights were being completely subverted? Judiciary collided with Legislature and Nehru hit upon the idea of putting these controversial decisions in a BLACK HOLE called the Ninth Schedule, the invidious qutoas is one among them when they cross the 50 per cent limit. Jayalalithaa is a master of deception in using the Ninth Schedule to refurbish her image.

In India there is no democracy. Only totalitarianism of the Parliament or state legislatures prevails. This legislative manipulation brings misery to the common man who stands helpless against the political assault and he is not sure if the COURTS will favour him or not. Most often the courts don’t.

One of the major assaults on fundamental rights is the right to property which began with the First Amendment Act (FAA), 1951 when the legislature made laws offending fundamental rights and placing them in Ninth Schedule beyond any court’s reach.

Article 31-B which was part of FAA 1951 declared that none of the acts or regulations dumped into Ninth Schedule shall be deemed void by any courts. Legislative manipulation discloses a cynical attitude to the rule of law and the philosophy underlying our Constitution that the people are supreme and there has to be a consensual approach and due process of law before legislating anything that harms them. But this totalitarian ideology helps to add more and more laws into the Black Hole of Ninth Schedule.

When quotas began to be added to the Ninth Schedule – even KCR is planning to add new quotas for Muslims — for sheer political gains it was mockery of the Ninth Schedule itself. Nehru originally meant it, rightly or wrongly, to protect the land reform laws from being challenged in court and which could then drag on for years. He may have had the good intent but his approach was bad and harmful to India. He stupidly did the same with quotas asking Ambedkar to make it applicable for 10 years only which was as foolish as saying “a little rape is no rape at all.” Today quotas have grown into a banyan tree. Has anyone heard of any banyan tree being chopped down?

Supreme Court initially was against Article 31(1) that gave unrestricted power to the state to deprive a person of his property. While it conceded depriving a person of his property in exceptional cases subject to the condition that the said law should operate as reasonable restriction in public
interest and be justiciable. Obviously that was the correct interpretation of a philosophy called the Constitution.

Judiciary was alarmed that the legislature was violating constitutional provisions of right to property as the courts felt it was duty bound to uphold the sanctity of the Constitution. Then began the political mischief resorting to a no-holds barred fight leading to all sorts of legislative manipulation to checkmate the judiciary. The latest infamy is the formation of Telangana by a manipulative legislature and the Supreme Court left standing watching the mockery.

Article 13(2) of the Constitution says state shall not make any law harming fundamental rights and any law made in contravention of fundamental right shall to the extent of contravention, be void. How then does Parliament enact laws making mockery of the inalienable fundamental rights?

Can fundamental rights be amended? The Supreme Court in Shankari Prasad v Union of India had to decide on it. In this case the validity of the Constitution (1st Amendment) Act, 1951, which inserted inter alia Articles 31-A and 31-B of the Constitution) was challenged on the ground that it took away Fundamental rights. But the SC meekly said the power to amend the Constitution includes abridging or taking away any of the fundamental rights.

However in Golaknath vs State of Punjab the Supreme Court cried a halt to the continuous erosion by the legislature eroding fundamental rights. It held that that the Parliament has no power to amend the Constitution so as to take away or restrict fundamental rights. But it would not scrap any retrospective action but only the prospective ones to be made.

THE TWENTY-FOURTH AMENDMENT ACT, 1971

To destroy the Supreme Court judgment in Golaknath’s case, Parliament enacted (24th Amendment) Act to restore the amending power of the Parliament and “to amend by way of addition or variation or repeal any provision of this Constitution in accordance with the procedure laid down in this Article.” Which means Totalitarianism will be the hallmark of our wonderful democracy.

In essence what the Quotawallahs did to our Constitution by Article 31C was to expressly authorize outright confiscation of any property, large or small, belonging to anyone, poor or rich, citizen or non-citizen. Article 31C destroys various rights even when the issues were irrelevant to the Directive principles as it was originally visualised as a matter of state policy to bring welfare to all.

TODAY AS THINGS STAND your right and mine to equality before law, freedom of speech and expression, to assemble peacefully and without arms, to move freely throughout the territory of India, to reside and settle in any part of the territory of India, and to practice any profession or to carry out any occupation, trade or business etc etc can be violated under Article 31C under the garb of improving the “economic system.”

The right to move the Supreme Court when any of our fundamental rights are violated itself ought to be a fundamental right (Article 32) and is supposed to be a basic feature of the Constitution. Does this right exist when fundamental right has been made unenforceable against a law purporting to give effect to the directive principles and at the same time the court is precluded from considering whether the law is such that it can possibly secure any directive principle?

The basic structure of any Constitution would be that no state legislature can amend the fundamental rights. But Art 31C repudiates it by empowering even state legislatures to pass laws, which virtually involve a repeal of the fundamental rights. The Great Palkhivala had remarked “Hereafter liberty may survive in some states and not in others, depending on the complexion of the political party.”

See what Meghalaya has done. It has enacted a law prohibiting residents of other parts of India staying in Meghalaya for more than six months without permit.

Article 31C is an outrage on the Constitution. India is a Stalanist totalitarian state going in the garb of democracy where the state has the right to confiscate anyone’s property even if it glibly says it is being done in the name of development.

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One thought on “ARE WE REALLY FREE?

  1. Pingback: ARE WE REALLY FREE? | V.N. BALAKRISHNA

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