The musing shared below is a 1959 winning essay in a writing competition organised by the Forum of Free Enterprise. The essay, authored by J M Lobo Prabhu, MP Lok Sabha (Udupi) 67′ traces the development of the Indian constitution factoring in the various influences that have played a role in its making. It critically analyses the contradictions inherent in the Constitution and how it has played out in the working of the Indian democracy. The essay also emphasizes the excessive powers the Constitution has vested in the central government. It elucidates the role of Directive Principles in the Constitution and the implications of the socialist elements present in it. The essay argues that basic principles of democracy, such as the rule of law and sovereignty of the Parliament, are contradicted by elements in the Constitution itself. 

You can read the complete, unabridged version here Democracy In India

It is difficult to trace democracy in India until the British, to take the odour out of foreign rule, began, about sixty years ago, to vest power progressively in the people according to economic status in urban and rural areas. After independence, with juvenile enthusiasm, the Constituent Assembly raided every country for the latest and the best constitution. In the framework of the Act of 1935 and on the British principles of the Rule of Law and the Sovereignty of the Parliament, the equality of the people has been established in meticulous detail. Like all schemes of men and mice, the results have not followed the expectations. In the name of democracy, the country now lies bound with restrictions which even the British did not dare impose. At least five sets of causes have operated, first, the deficiencies of the Constitution, second, the growth of usages contrary to the Constitution, third, the quality of the legislative and executive parts of the Constitution, fourth, the weakness of the organs of freedom, and lastly, the ignorance and incapacity of the people.

Constitutions are based on the body of accepted social and economic principles. After considering the alternative of calling it the Socialist Republic, the Constituent Assembly declared India to be the Sovereign Democratic Republic. Nonetheless, at Avadi in 1955, the Congress decided to adopt the Socialist Pattern and have since imposed redistributive taxation and are determined to impose State trading and cooperative farming, the fundamentals of the Socialist Republic of the Soviets. The definite antithesis between socialism and democracy has not been appreciated. Socialism is based on the interests of the State, and democracy is on the interests of the individual. Democracy builds from below, and Socialism from the top. To the extent the State assumes ownership of the means of production, which is the basis of Socialism, the individuals become employees with little power to order their work or lives and less interest in their capacities or contributions. Where State ownership is complete, no competitive standards are left, where partial, the competition is unfair to private enterprise which has less authority and finance. The Avadi resolution*, therefore, affected the ethos of the Constitution, eviscerating it completely of its spirit and partly of its provisions. As a result, the people have steadily lost political power, which is being polarised in fewer and fewer individuals. This might be in accordance with the traditions of the people but not the principles of democracy on which it was sought to base the Constitution.

An examination of the Constitution shows that its contradictions are susceptible to the polarization which has taken place. The Constitution opens with a catalogue of Fundamental Rights, of which only two are parents of the others, Article 14 assures equality before the law irrespective of religion, race, sex and residence, and Article 17 assures freedom of opinion and action. The elaboration in other Articles is generally limiting basic rights. Thus under Article 13, the door is opened for subordinate legislation by the inclusion of “orders, rules, regulations and notifications” in the category of laws made by the legislature. Even as early as 1929, Lord Hewett, in his book New Despotism had castigated the bypassing of the legislature through official rule-making and administrative tribunals because it contravened the Rule of Law which, according to Dicey, means “equal subjection of all to the ordinary law of the land, administered by the ordinary law courts. Both in the Centre and the States, the rules made by Government in numerous Acts are more extensive than the laws made by the legislature. Similarly, decisions of Administrative Tribunals and Government are tending to outnumber those of the Courts. Article 16 limits equality by allowing preference in public employment to the backward classes. However desirable it may be to advance these classes, their employment in public services without reference to their merits must affect the quality of the administration on which the advancement of the whole country and the interests of individuals are dependent. Article 17, which assures seven freedoms, is restrictive of the Freedom of Speech, which can be placed out of the jurisdiction of Courts by the claim of the security of the State. This power can be exercised by local and other authorities. In USA and UK, the courts can examine the grounds of security and so ensure that the administration does not gag its opponents. In respect of all seven freedoms, the State can impose restrictions with reference to previous legislations and reasonable grounds. The exemption in favour of existing laws confirms the heritage of the laws of the preceding foreign rule and the laws hastily passed on promises made by the Congress Party before coming into power, like zamindari abolition. Particularly in respect of the right to property, the power of the State to impose restrictions in the interests of the general public, especially with reference to Article 39, is destructive of the freedom assured. It opens the door to expropriation on grounds that the courts may be competent to examine but unwilling to overlook according to the political atmosphere of the time. The right to trade and industry has been further curtailed by the First Amendment, which has enabled the State to place restrictions, which the courts cannot question if the purpose is of nationalisation. Few have realised the blow this has implied to democracy. The law is now ready-made for the communists to order the life and work of everyone to any degree and on any terms. No one can legally resist the communication of land, industry or trade, of units big or small. Even before the Avadi session and only one year after the Constitution, Congress had laid the foundations of the Socialist State by the First Amendment of the Constitution.

Article 22 enables the State to enforce preventive detention for three months and such further period as the Parliament may provide. Though the law of England allowed preventive detention during the period of the war, analogous provisions cannot be traced in the constitutions of other countries. No doubt, the person detained can obtain a Writ of Habeas Corpus from the High Courts, but they are not allowed to consider the facts but only the grounds of detention. Article 25, after reaffirming freedom of religion, proceeds to subject it to the laws already in existence and to grounds “economic, financial, political arid social welfare and reform”. There is no parallel to this in the constitutions of other countries, which have full freedom of religion subject only to the criminal laws of the country. However laudable it may be to make religion conform to current theories, there is first an unwarranted interference in what is personal and, second, scope for secularisation which under a communist government can mean atheism. Even the right to propagate religion which was conceded to Christians to give up their claims to separate representation has not prevented the banning of foreign missionaries, though other foreigners with worse intents are welcome. The provisions of the Article leave all religions at the mercy of the ideologies of the reigning government. The changes in the laws of marriage and succession and in the management of temples and endowment, however desirable, were for the Hindus themselves to make according to the pleasure or pressure of those concerned. What has been forced is generally resented and frequently evaded.

Article 30 assures minorities, whether based on language or religion, the right to establish and administer educational institutions of their choice without discrimination in respect of State aid. In Kerala, the Education Act can force teachers and books, which the minorities abhor, while even in the model State of Madras, grants are withheld from private schools which do not agree to give free primary education. Various experiments in the medium of instruction, the subjects of study, and the method of teaching, including the basic pattern, have been forced on schools destroying standards they had built up for years. The Article, therefore, is a dead letter because of the overwhelming power of the State and the helpless position of educational institutions.

Article 31 destroys the sanctity of private property because while all constitutions allow that land may be acquired only on payment of due compensation, it makes an exception to all expropriative laws passed eighteen months before the date of the constitution. The First Amendment overcame the legal defects in this provision, while the Fourth Amendment empowered the government to fix a scale of compensation which no court can question. The right to property, therefore, lies in ruins. Many serious consequences arise, first, the Constitution has become a tattered piece of paper, second, the door has been opened to communism, third, the bureaucracy has been further empowered, and fourth, a neurotic impulse has been imparted to the economy-making property a matter of hide and seek. Since democracy has been allowed to taste blood like this, the overwhelming majority of those without property will increasingly abort the Constitution and expropriate the rights of others. This will be more so if joint farming and State trading obliterate the rights of millions of small owners and dealers and throw them into the ranks of those who have no property. It will then be a short step for the State to assume ownership of all the means of production.

This raises the question of the necessity of free enterprise for the survival of democracy. State enterprise is both economically and politically restrictive. Economically State enterprise replaces the natural and widespread initiative and interest of individuals with the indifference and inexperience of officials. Whatever compulsions may be organized or compensations offered, the human spirit responds less to what it cannot directly own and enjoy. There is ample evidence of this in the existing State services and enterprises. In public offices, the officials think only of themselves and not of the public they should serve because even the best of them cannot connect what each does with what results in the intangible total. In public enterprises, this lack of personal interest is heightened because there is no equivalent to the control exercised in private enterprises by the shareholders who watch their dividends and by the consumers who watch the prices. Consequently, our State enterprises are commercial failures, the return, for instance, on investment of the Centre in 1958 being only 1 per cent. This means, first, that the loans taken by Government pay interest at least three times as much as they earn, second, that these loans are diversions from private enterprise, third, that to the extent State enterprise displaces private enterprise, it disengages private capital and employment, fourth, that taxes required to pay interest on loans and support party programmes like khadi, basic education, prohibition, co-operation cripple production and boost prices, and lastly, the increased national production on which economic democracy as a counterpart of political democracy depends is unnecessarily reduced. It is because no notice is taken of the disastrous results of existing nationalisation that the danger from more of it is not realised. Politically, State enterprise converts free men into employees of the State with no right to agitate against it. Already employment of the State has swallowed up so many men of the best quality that politics get mostly those who are disappointed. In total State ownership, individual freedom of opinion will be eliminated, and leadership being polarised to those who can command the experts in control. In any case, when men have no stake of their own, politics can have only academic interest. One of the causes for such polarisation of power, as has already taken place, is the elimination of political identity of the increasing numbers employed by the State.

In the face of this, Article 31, allowing the citizen to move the Supreme Court for prerogative writs, appears hollow. The Government is also learning to manoeuvre out of the reach of writs by legislation with retrospective effect. Further, the courts are being increasingly influenced by the various Directive Principles, which are being used to justify departure from the strict letter of the law.

Previous musing: Socialism or State Capitalism (1970)