India After Independence: 1947-2000 (9 page)

The Directive Principles, as stated earlier, have expressly been excluded from the purview of the courts. They are really in the nature of guidelines or instructions issued to future legislatures and executives. While the Constitution clearly intended Directive Principles and Fundamental Rights to be read together and did not envisage a conflict between the two, it is a fact that serious differences of interpretation have arisen many times
on this issue. It is generally agreed that till 1971 the courts gave greater importance to Fundamental Rights than to Directive Principles, but that the 25th and 42nd Amendments in 1971 and 1976 brought in by Indira Gandhi gave precedence to Directive Principles. In 1980, however, in the landmark judgement in Minerva Mills Limited vs. Union of India, the Supreme Court has held that both Fundamental Rights and Directive Principles are equally important and one cannot be sacrificed for the other (AIR 1980 SC 1789).

The essence of the Directive Principles is contained in Article 38 which lays down that ‘the State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic, and political, shall inform all the institutions of the national life.’ The state was thus to ensure that all citizens have adequate means of livelihood, that there is equitable distribution of material resources, and concentration of wealth and means of production is avoided. There is to be equal pay for equal work for men and women and the health of workers, children and pregnant women was to be protected. Workers should get a living wage and just and humane conditions of work. All citizens should have the right to work, to education and public assistance in case of unemployment, old age, sickness, etc. The Directive Principles expressed the hope that within ten years of the adoption of the Constitution, there would be compulsory primary education of children up to the age of fourteen years. The objective of a common civil code was also desired. The state was to take steps to organize village panchayats, to improve standards of living and nutrition, provide free legal aid, and promote educational and other interests of Scheduled Castes and Tribes and other weaker sections. It was to protect and improve the environment and safeguard the forests and wild life of the country. The state was also to promote international peace and security, maintain just and honourable relations between nations, inculcate respect for international law and treaty obligations and encourage settlement of international disputes by arbitration.

The Preamble, the Fundamental Rights and the Directive Principles read together make it clear that the Constitution aimed at creating conditions for the building of an egalitarian society in which individual freedoms were secure. It did not visualize abandonment of one ideal for the preservation of the other principle. At the same time, the relationship between individual liberty and social change was rightly envisaged as dynamic. To quote Nehru:
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The Directive Principles of State Policy represent a dynamic move towards a certain objective. The Fundamental Rights represent something static, to preserve certain rights which exist. Both again are right . . . Now it may be that in the process of dynamic movement certain existing relationships are altered, varied or affected. In fact, they are meant to affect those settled relationships and yet if you come back to the Fundamental Rights
they are meant to preserve, not indirectly, certain settled relationships. There is a certain conflict in the two approaches, not inherently, because that was not meant, I am quite sure.

Nonetheless, conflicts did emerge and a number of amendments to the Constitution had to be made in the fifties when the implementation of zamindari and jagirdari abolition legislation was blocked in the courts on the grounds of right to property, etc. During the process of the framing of the Constitution as well as after it came into force, the property provisions turned out to be the most controversial. Court cases challenging the agrarian reforms began to proliferate, and the 1st Amendment to the Constitution became necessary. Introduced in 1951 in the Provisional Parliament, this amendment inserted new articles 31A and 31B and the Ninth Schedule, thus securing the constitutional validity of zamindari abolition laws by among other things specifying that they could not be challenged on the grounds that they violated the Fundamental Rights.

There were other cases which showed that certain articles relating to Fundamental Rights were open to interpretation in a manner that was not envisaged by the Constitution framers. Accordingly, in 1951 itself, in the Provisional Parliament, the 1st Amendment was passed. This made some important changes in articles 15, 19 and 31, dealing with the Fundamental Rights of equality, freedom of expression, and of property. The amendments ensured that the zamindari abolition legislation could not be challenged, among other things, on the ground that the right to property was a fundamental right, that the reservation of seats in educational institutions and of government jobs could not be challenged on the ground that it denied the right to equality, and that the legislation which placed reasonable restrictions on freedom of speech, press, association, etc., could not be questioned on the ground that it violated the right to freedom of expression, etc. Further amendments had to be made in later years, as for example in 1955, in Articles 31 and 31A, to make the quantum of compensation paid for acquired property non-justiciable as well as introduce other changes. In subsequent years as well, many important Supreme Court judgements as well as constitutional amendments continued to define and redefine the relationship between individual rights and social good, between Fundamental Rights and Directive Principles. This changing relationship is perhaps to be welcomed since it is proof of the ability of the Constitution and of the other institutions it has helped flourish to adapt to the needs of new generations and to respond to the forces set in motion by the fast-changing world. It would perhaps be appropriate to conclude with Austin that the tension between the two sets of rights represents ‘the classic dilemma of how to preserve individual freedom while promoting public good.’
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The Constitution declares India to be a sovereign, socialist, secular and democratic republic. Even though the terms secular (and socialist) were
added only by the 42nd Amendment in 1976, the spirit embodying the Constitution was secular. In 1973 the Supreme Court held the secular character of the Constitution to be one of the basic features of the Constitution. Further, the Fundamental Rights include prohibition of discrimination on grounds of religion and right to freedom of religion including freedom of conscience and free profession, practice and propagation of religion, freedom to manage religious affairs, freedom to pay taxes for promotion of any particular religion and freedom on attendance at religious instruction or religious worship in certain educational institutions, cultural and educational rights including protection of interests of minorities and their right to establish and administer educational institutions.

The debate over the meaning of the term secular in the Indian context has been a heated one. Some people have argued that the western context from which the term secular is borrowed is a very different one. In the West, the outcome of the struggle between the Church and the state led to the separation of the two; the Church was allowed to decide on religious rituals, the state was to regulate secular affairs. In India, the concept of secularism evolved as part of the struggle of nationalist forces against communal forces that wanted to use religion for political purposes and divide the emerging nation on the basis of religion.

Nehru put it best:
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We call our State a secular one. The word ‘secular’, perhaps, is not a very happy one and yet for want of a better, we have used it. What exactly does it mean? It does not obviously mean a society where religion itself is discouraged. It means freedom of religion and conscience, including freedom for those who may have no religion. It means free play for all religions, subject only to their not interfering with each other or with the basic conceptions of our State.

Dr S. Radhakrishnan, the renowned scholar of Indian philosophy, who was President of India from 1962 to 1967, placed secularism within the Indian tradition:
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We hold that no religion should be given preferential status of unique distinction . . . No group of citizens shall arrogate to itself rights and privileges that it denies to others. No person should suffer any form of disability or discrimination because of his religion but all alike should be free to share to the fullest degree in the common life . . . Secularism as here defined is in accordance with the ancient religious tradition of India.

The Constitution is supposed to have a basic structure which cannot be altered. This was spelt out by the full bench of the Supreme Court in 1973 in the majority judgement in the Kesavananda Bharati case.
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In the words of D.D. Basu, the judgement laid down that ‘there are certain basic features of the Constitution of India, which cannot be altered in exercise of the power to amend it, under Article 368 If, therefore, a Constitution Amendment Act seeks to alter the basic structure or framework of the Constitution, the Court would be entitled to annul it on the ground of
ultra vires
, because the word “amend”, in Article 368, means only changes other than altering the very structure of the Constitution, which would be tantamount to making a new Constitution.’
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According to Justice S.M. Sikri, these basic features were the supremacy of the Constitution, the republican and democratic form of government, the secular character of the Constitution, the separation of powers between the legislature, executive and the judiciary and the federal structure. Some of the other features listed were the principles of free and fair elections,
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the rule of law, the objectives specified in the Preamble, judicial review, freedom and dignity of the individual, unity and integrity of the nation, the principle of equality, the concept of social and economic justice, the balance between Fundamental Rights and Directive Principles, the independence of judiciary, and effective access to justice.
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The 42nd Amendment (1976) made during the Emergency under Indira Gandhi declared that ‘there shall be no limitation’ on the amending powers of parliament, and that no constitution amendment act could be ‘called in question in any court on any ground.’ But the Supreme Court in Minerva Mills vs. Union of India
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reaffirmed the applicability of the doctrine of basic structure by holding that ‘judicial review’ is a basic feature which cannot be taken away even by amending the Constitution. The present position is that the Court can declare
ultra vires
any amendment to the Constitution if it believes that it would affect or alter any of the basic features of the Constitution. ‘Thus, substantive limitation
founded on the doctrine of “basic features” has been introduced into our Constitution by judicial innovation.’
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While there has been some difference of opinion among judges about the contents of the list of basic features, there is consensus on the doctrine of ‘basic features’ or ‘basic structure’, and it can be used to check any attempts to subvert the Constitution through parliamentary majorities.

The Indian Constitution does not fit into any rigid definition of federal or unitary. To quote Austin:
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The political structure of the Indian Constitution is so unusual that it is impossible to describe it briefly. Characterizations such as ‘quasi-federal’ and ‘statutory decentralization’ are interesting, but not particularly illuminating. The members of the Assembly themselves refused to adhere to any theory or dogma about federalism. India had unique problems, they believed, problems that had not ‘confronted other federations in history.’ These could not be solved by recourse to theory because federalism was ‘not a definite concept’ and lacked a ‘stable meaning’. Therefore, Assembly members, drawing on the experience of the great federations like the United States, Canada, Switzerland, and Australia, pursued ‘the policy of pick and choose to see (what) would suit (them) best, (what) would suit the genius of the nation best . . . This process produced . . . a new kind of federalism to meet India’s peculiar needs.’

The Assembly was perhaps the first constituent body to embrace from the start what A.M. Birch and others have called ‘cooperative federalism’. It is characterized by increasing interdependence of federal and regional governments without destroying the principle of federalism.
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(Interestingly, the concept of co-operative federalism was re-introduced into the political vocabulary by P. Chidambaram, when he was the Finance Minister in the United Front government in 1996-8.)

The decision of the Constituent Assembly to have a federal constitution with a strong Centre was occasioned also by the circumstances in which it was taken. A strong central government was necessary for handling the situation arising out of the communal riots that preceded and accompanied Partition, for meeting the food crisis, for settling the refugees, for maintaining national unity and for promoting social and economic development, which had been thwarted under colonial rule.

However, in the initial months of its existence, before Partition became an accepted fact, the Constituent Assembly did not express itself in favour of a strong central government. The Union Powers Committee of the Assembly, headed by Nehru, had in its first report provided for a very weak central government. But once the decision on Partition was
taken and announced on 3 June 1947, the Constituent Assembly considered itself free of the restraints imposed by the Cabinet Mission Plan of 1946, and moved quickly in the direction of a federation with a strong Centre.

Dr B.R. Ambedkar, while introducing the Draft Constitution, explained why the term ‘Union of States’ was preferred over ‘Federation of States’:
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The Drafting Committee wanted to make it clear that though India was to be a federation, the federation was not the result of an agreement by the States to join in a federation and that the federation not being the result of an agreement, no state has the right to secede from it. The federation is a Union because it is indestructible. Though the country and the people may be divided into different States for convenience of administration, the country is one integral whole, its people a single people living under a single imperium derived from a single source.

Indian federalism has certain distinctive features. For example, unlike the US, where a person is a citizen of the US, as well as of the state in which he or she resides, in India there is only Indian citizenship.

The Constitution has also tried to minimize conflict between the Union and the states by clearly specifying legislative powers of each. It contains three lists of subjects. The subjects listed in the Union List can only be legislated upon by the union parliament, the ones in the State List only by the state legislatures, and those in the Concurrent List come within the purview of both, but in case of conflict between Union and state legislation, the Union law will prevail.

While it is true that the overwhelming financial power of the Union and the dependence of the states upon the Union for grants-in-aid for discharging their functions places limits on federalism, nevertheless it would be an exaggeration to maintain, as some analysts do, that federalism has withered away in the actual working of the Constitution. The most conclusive evidence of the survival of the federal system perhaps is to be found in the coexistence of state governments with sharply divergent ideological complexions: Left Front and United Front governments in Kerala, West Bengal and Tripura, DMK and AIADMK in Tamil Nadu, Telugu Desam in Andhra Pradesh, Janata Dal governments in Gujarat and Karnataka, BJP in U.P., Madhya Pradesh, Rajasthan, Gujarat and Himachal, etc., with a Congress or Janata Dal or United Front or BJP government at the Centre. Agitations for formation of new states and demands, often successful, for more financial powers to the states, also testify that the federal impulse is alive. The Left Front government in West Bengal recently created history on 18 June 1998 by questioning the right of BJP-led government at the Centre to send a fact-finding team to assess the state’s law and order situation, citing that law and order is a State subject. The CPM-led government clearly found the federal principle a useful weapon of defence in the face of BJP’s attempt at applying political pressure in response to its ally, the Trinamul Congress. It also
demonstrates that constitutional arguments are often occasioned by political contests and not by constitutional anomalies and further that the balance between the federal and unitary features of the Constitution at every point in time is a function as much of the political balance of forces in the country as it is of constitutional developments, court judgements and the like.

It would then perhaps be fair to conclude with D.D. Basu, a leading authority on the Indian Constitution, that it introduces a system ‘which is to normally work as a federal system, but there are provisions to convert it into a unitary or quasi-federal system under specified exceptional circumstances.’
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It is perhaps this flexibility which is usually missing in purely federal constitutions that has enabled the constitutional framework to accommodate the wide variety of Centre-state relationships encountered in the fifty years since independence.

The executive power is vested by the Constitution in the President of India but in the words of Ambedkar, he is a constitutional head who ‘occupies the same position as the King under the English Constitution. He is the head of the State but not of the Executive. He represents the nation but does not rule the nation.’
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The head of the Executive is in fact the prime minister at the head of the Council of Ministers which is responsible to parliament. India’s parliamentary form of government bears the closest resemblance to the British system, with the difference of course that India has no hereditary monarchy but an elected President as its symbolic head of state.

The Indian Constitution thus formally confers an enormous range of powers on the President, but these are to be exercised in accordance with the advice of the Cabinet. But the President is by no means a figurehead and the political situation may provide many occasions for, an activist President. This tension, between his formal and real powers has been visible from the time of the first President, Dr Rajendra Prasad. Having serious reservations about the Hindu Code Bill he tried to argue in September 1951 that the President had a greater role to play. Nehru promptly sought the opinion of Alladi Krishnaswamy Ayyar, the constitutional expert, in Madras and M.C. Setalvad, the Attorney-General. Fortunately for Indian democracy, both the experts were categorical that acceptance of President Rajendra Prasad’s arguments would upset the whole constitutional structure and could lead to the President assuming dictatorial powers. Rajendra Prasad was thus persuaded to exercise a more limited role in keeping with his own earlier hope expressed in the Constituent Assembly debates that ‘the convention under which in England the King acts always on the advice of his Ministers will be established in this country also and the President . . . will become a constitutional President in all matters.’
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The danger of a President actually using his powers is least likely when a single party commands a clear majority. But the potential for presidential activism occurs in case of fractured electoral verdicts or splits in the ruling party, leading to unstable coalition governments. The first time this happened was in 1979 when the Janata government led by Morarji Desai fell because of a split in the ruling party. The President, Neelam Sanjiva Reddy used his discretion in refusing Morarji Desai’s request to form a new government, asking Charan Singh to prove his majority by seeking a vote of confidence by a fixed date and consulting other party leaders before accepting the new prime minister, Charan Singh’s advice to dissolve the Lok Sabha. The unstable situation created an opportunity for the President to exercise his discretion.

In recent years, these worries about the President’s role have intensified because of the fact that the last time any party secured a clear majority in the national elections was in 1984-5 when Rajiv Gandhi came to power after Indira Gandhi’s assassination. The elections of 1989, 1991, 1996 and 1998—all created ample opportunities and need for presidential intervention. For example, in March 1998, after the election results showed that when the BJP staked its claim to form the government on the ground that it was the single largest party and had enough support from other parties to win the confidence vote in the Lok Sabha, President Narayanan insisted that Atal Behari Vajpayee, the leader of the BJP, furnish proof in writing that his party did indeed enjoy the support of its allies. This resulted in an embarrassing wait of a few days for the prospective prime minister because one of his critical allies, J. Jayalalitha of the AIADMK (whose desertion finally led to the collapse of the BJP government in April 1999) had many second thoughts and drove hard bargains in well-advertised secret meetings before finally consenting to send the crucial missive extending the AIADMK’s support to the BJP. The President’s role was critical in the entire episode. He could have refused to wait endlessly for the letter of support and invited the leader of the next largest party or group, thus denying the BJP’s claims which were in any case based on a wafer-thin majority. It is evident then that unstable or ambiguous political situations provide room for exercise of presidential discretion and hence potential abuse or misuse of powers.

However, even in otherwise stable situations, it has happened that presidents have, on occasion, either because of personal ambition or out of a sense of duty to the Constitution, exercised discretionary power. The most vivid example is that of President Zail Singh, who was the first to use the President’s power to return a bill to parliament. He also wrote at the same time to the prime minister that he was not being kept informed of important developments and this was preventing him from performing his constitutional duty of ensuring that the government was being run in accordance with the letter and spirit of the Constitution. There was much speculation that he might actually dismiss the prime minister. Later in the same year, 1987, when the Bofors scandal about kickbacks in defence purchases broke, it seems that Zail Singh did actually discuss with political
leaders of many hues the possibility of dismissing Rajiv Gandhi as prime minister. In the end, none of it ensued, but it is clear that the potential for the President stepping outside the conventional limits of his powers exists even when a prime minister enjoys majority support in parliament. It is to be remembered that the Congress under Rajiv Gandhi had the largest majority ever in the Lok Sabha.