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Secularism, Federalism and Social Justice Have Always Been at the Heart of the Constitution

Menu हिंदी తెలుగు اردو Home Politics Economy World Security Law Science Society Culture Editor's Pick Opinion Support independent journalism. Donate Now Top Stories Secularism, Federalism and Social Justice Have Always Been at the Heart of the Constitution K. Chandru 8 minutes ago The need to safeguard these features is now more urgent than ever. Illustration: Pariplab Chakraborty. Real journalism holds power accountable Since 2015, The Wire has done just that. But we can continue only with your support. Contribute now The following is an edited version of a speech delivered by Justice K. Chandru, former judge of the Madras high court, at the 38th AKG Memorial Lecture. Comrade A.K. Gopalan was born on October 1, 1904 in Kerala's Kannur district. He took part in the Khilafat movement that prompted a marked change in his outlook, transforming him into a dedicated, full-time social and political worker. He was also involved in the Malabar revolution. In 1927, he joined the Indian National Congress and began playing an active role in the Khadi movement and the upliftment of the D alit community. Three years later, he was arrested for participating in the salt satyagraha in 1930. The caste system was strongest in the northern Kerala. People from backward caste communities were not allowed to walk on a public road in Payyanur. In 1930, people from lower castes were not allowed to walk in front of the Kondoth temple of the Thiyya castes at Kondoth in Kannur. A.K. Gopalan led a procession to grieve the Thiyyar leaders and women who witnessed the brutal beating of A.K.G. and member of the Dalit community. He led a hunger March from Malabar region to Madras in 1936 and the Malabar Jatha was in support of the movement. While in prison, he got acquainted with Communism and became a member of the Congress Socialist Party and later the Communist Party of India, when it finally took shape in Kerala in 1939. The outbreak of the Second World War in 1939 prompted an upsurge in activism against British domination and AKG was once again arrested. But in 1942, he escaped from prison and remained at large till the end of the war in 1945. He was arrested again shortly after the end of the war and was still behind bars when India became independent on August 15, 1947. While the government released several communist leaders who were in jail, AKG was kept in prison. AKG, in his biography wrote: – 'On August 14, 1947 I was in solitary confinement in the big Cannanore jail. There were no other detenue prisoners. There were many comrades there arrested under the Kavumpayi and Karivellore cases, some under trial and some awaiting trial. I could not sleep at night. Cries of 'Jai' issued from all four corners of the jail. The echoes of the slogans 'Mahatma Gandhi ki jai' and 'Bharat Matha ki jai' reverberated through the jail. The whole country was waiting for the celebration due after sun-rise. How many among them had waited for years for this and fought for it and sacrificed their all in the struggle. I nurtured feelings of joy and sorrow. I was glad that the goal for which I had sacrificed all my youth and for which I was still undergoing imprisonment had been realized. But I was even now a prisoner. I had been imprisoned by Indians – by the Congress Government, not by the British. Memories of the Congress from 1927 passed through my mind. I felt proud of the role I had played in the Congress movement in Kerala. A man who was Secretary of the Kerala Congress and its President for some time and member of the A.I.C.C for a long time was celebrating August 15 in jail! With these thoughts in my mind I placed to and fro in my cell.' 'I made the following statement to the court. 'I am proud that I am being tried for creating enmity against the legally constituted Emperor of British India. All freedom lovers in this country and the leaders of the freedom movement from its birth like Nehru, Gandhi and such leaders, have tried to create enmity against the Emperor's Government. Mahatma Gandhi has been proceeded against under Section 124-A IPC for working towards the same end. 'As a result of all this, His Majesty's Government and British India have ceased to exist today. Many of my colleagues who committed the same crime along with me have become Ministers and Governors. There is some incongruity in bringing me to trial at this time when on the face of it we have just achieved freedom. I am sorry that things should have come to such a pass.' He was released from prison a few days after independence. The Constituent Assembly was debating the draft of the Indian Constitution prepared by the Drafting Committee, with its chairman as Dr. B.R. Ambedkar. After more than two years of debate in the Constituent Assembly, the draft was finalised and it was presented before the House on November 26, 1949. As to the absence of the communists and the socialists in the Constituent Assembly, Ambedkar made the following reference in his speech: 'The condemnation of the Constitution largely comes from two quarters, the Communist Party and the Socialist Party. Why do they condemn the Constitution? Is it because it is really a bad Constitution? I venture to say no'. The Communist Party want a Constitution based upon the principle of the Dictatorship of the Proletariat. They condemn the Constitution because it is based upon parliamentary democracy. The Socialists want two things. The first thing they want is that if they come in power, the Constitution must give them the freedom to nationalize or socialize all private property without payment of compensation.' The draft was adopted and as per the Preamble of the Constitution, India became a sovereign democratic republic with effect from January 26, 1950. Ironically, even in the new republic in 1950, AKG was served with a detention order under Preventive Detention Act, 1950. The communists who were left out from the Constituent Assembly were mostly in jail in the late 1940s as communist party was proscribed even after independence. It was AKG who first challenged his detention before the Supreme Court, contending that fundamental rights – guaranteeing liberty under Article 21 and protection against arrest and detention under Article 22 – makes his detention illegal. This was the first constitutional case in India – Vs. State of Madras. The constitution bench rejected the arguments advanced on behalf of AKG and held that the detention laws do not violate the guaranteeing of liberty and no support can be drawn from other Articles of the Constitution. It held thus: 'Therefore, if the legislature prescribes a procedure by a validly enacted law and such procedure in the case of preventive detention does not come in conflict with the express provisions of Part III or article 22 (4) to (7), the Preventive Detention Act must be held valid notwithstanding that the Court may not fully approve of the procedure prescribed under such Act.' The second case under the Constitution was moved by another communist, V.G. Row, a leading barrister from Chennai. During the proscribed period of the communist party, Row's People's Education Society was declared as an 'unlawful association' under the notorious Criminal Law Amendment Act of 1908. This was challenged before the Madras high court successfully. The State of Madras moved the Supreme Court where a four-judge bench in March 1952 held that the law proscribing the society was violative of Article 19(1) (c) of the Constitution. A third question arose when the Madras High Court quashed the communal G.O. providing reservation based on caste from the 1920s. This was challenged in the case of Champakam Dorairajan, who argued that merit alone should be the criterion for medical college admission, not caste. The State of Madras took the matter to the Supreme Court, but the appeal was dismissed. The court held: 'If a citizen who seeks admission into any such educational institution has not the requisite academic qualifications and is denied admission on that ground, he certainly cannot be heard to, complain of an infraction of his fundamental right under this article…… The protection of backward classes of citizens may require appointment of members of backward classes in State services and the reason why power has been given to the State to provide for reservation of such appointments for backward classes may under those circumstances be understood. That consideration, however, was not obviously considered necessary in the case of admission into an educational institution and that may well be the reason for the omission from article 29 of a clause similar to clause (4) of article 16. ' (State of Madras Vs. ChampakamDorairajan,AIR 1951 SC 226) The quashing of reservation by a communal G.O. by the courts led to the protest by the people of the then Madras Presidency. As the agitation in the South India got intensified, Prime Minister Jawaharlal Nehru introduced a constitutional amendment to save the principle of reservation and care was taken that the reservation was not based on caste, but for Socially and Educationally Backward Classes (SEBC). A new sub-clause was introduced into Article 15 by introducing Article 15(4) by the first constitutional amendment which was brought into effect from 18.6.1951. The newly introduced Article 15(4) is as follows: – 'Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes'. Nearly 17 years later, a larger bench of the Supreme Court expressed their reservation in the conclusions arrived at in Champakam Dorairajan's case. The top court observed: 'To remove the effect of centuries of discriminatory treatment and to raise the down-trodden to an equal status cannot be regarded as discriminatory against any one. It is no doubt true that in State of Madras the reservation of seats for Backward Classes, Scheduled Castes and Tribes in public educational institutions was considered invalid. Articles 16(4) and 340 had already provided for special treatment for these backward ,classes and Art. 46 had provided that the State shall promote, with special care their educational and economic interests. With all due respects the question of discrimination hardly arose because in view of these provisions any reasonable attempt to raise the status of the backward classes could have been upheld on the principle of classification. In any event, the inclusion of this clause to Art. 16 does not abridge or take away any one's Fundamental Rights unless the view be taken that the backward classes for ever must remain backward.'( Vs. State of Punjab, AIR 1967 SC 1643) Likewise, the principles of the A.K. Gopalan case were nevertheless disapproved subsequently inthe Bank nationalisation case. The Supreme Court held: 'In our judgment, the assumption in A. K. Gopalan 's case that certain articles in the Constitution exclusively deal with specific matters and in determining whether there is infringement of the individual's guaranteed rights, the object and the form of the State action alone need be considered, and effect of the laws on fundamental rights of the individuals in general will be Ignored cannot be accepted as correct. We hold that the validity 'of law' which authorises deprivation of property and 'a law' which authorises compulsory acquisition of property for a public purpose must be adjudged by the application of the same tests.' ( Vs. Union of India, 1970 (1) SCC 248). Commenting on this judgment, Justice Krishna Iyer once jokingly remarked that the proletariat case had to be reversed in a proprietariat case. Thus, Ambedkar, who was the architect of the Constitution during his lifetime, saw three major challenges in the Supreme Court based on the constitutional guarantees provided therein. While the reservation case led to the first amendment to the Constitution, he unfortunately passed away in 1956. After Kerala was formed on November 1, 1956, the first state elections were held in February 1957. The Communist Party of India (United CPI) won 60 out of 126 seats. With the help of some independents, a United Front government was formed and E.M.S. Namboodiripad became the first chief minister on April 5, 1957. His government, which was the first elected government run by communists in the entire world, was dismissed on July 31, 1959. For the first time, the provisions of Article 356 of the Constitution was used to bring President's Rule by dismissing an elected government which enjoyed the confidence of the people. In order to create an atmosphere of strife and conflict, a Vimochana Samaram (Liberation Struggle) was stage managed by sending Indira Gandhi. The crime committed was that the first communist government, in order to regulate private educational institutions and provide statutory cover for teachers working in those institutions, enacted the Kerala Education Bill. The Congress engineered agitation objected to this. The validity of the law was sent for presidential opinion to be decided by the Supreme Court. Even before the Bill was given assent by the president, the government referred the matter for presidential opinion, marking a first in the constitutional history of India. The Supreme Court In Re: The Kerala Education Bill, 1959 1 SCR 995 gave its verdict. 'The right to administer cannot obviously include the right to maladminister,' the court said. While the constitutional validity of the Bill was upheld, the government did not last long enough to see the result as it was dismissed. The court cannot restore wrongful dismissal because the courts held that president rule was not subject to judicial review. It took 35 years for the court to hold that even a dissolution of elected assembly and imposition of president rule under Article 356 can be reviewed by the court vide Vs. Union of India reported in 1994(3) SCC 1. 'We find it difficult to agree with the reasoning in State of Rajasthan on this score, insofar as it runs contrary to our holding' Thus, what was not possible as a judicial review during the first dismissal of EMS government in 1958 became possible in 1994, where the judicial review in the exercise of power under Article 356 by dismissing state governments which are not to the liking of the Centre is now possible. When Comrade EMS Namboodiripad was elected chief minister for the second time, he addressed a press conference on November 9, 1967 at Thiruvananthapuram. 'Marx and Engels considered the judiciary as an instrument of oppression and even today when the State set up his (sic) not undergone any change it continues to be so, Mr. Nambudiripad told a news conference this morning. He further said that Judges are guided and dominated by class hatred, class interests and class prejudices and where the evidence is balanced between a well dressed pot-bellied rich man and a poor ill-dressed and illiterate person the judge instinctively favors the former, the Chief Minister alleged. The Chief Minister said that election of Judges would be a better arrangement, but unless the basic state set up is changed, it could not solve the problem.' 'His party had always taken the view, the Chief Minister said that judiciary is part of the class rule of the ruling classes. And there are limits to the sanctity of the judiciary. The judiciary is weighted peasants and other sections of the working classes and the law and the system-of judiciary essentially serve the exploiting classes. Even where the judiciary is separated from the executive it is still subject to the influence and pressure of the executive. To say this is not wrong.' A contempt petition was filed before the Kerala high court and EMS was fined Rs 1000 by Chief Justice Raman Nair and Justice Krishnamurthy Iyer gave the majority judgment. Justice K.K. Mathew gave a dissenting opinion. Later, EMS filed an appeal before the Supreme Court, and Menon appeared for him. The Supreme Court vide its judgment in EMS Namboodiripad Vs. Nambiar reported in 1970 (2) SCC 325 upheld the conviction and reduced the fine to Rs.50/ and recorded as follows: 'The ends of justice in this case are amply served by exposing the appellant's ignorance about the true teachings of Marx and Engels (behind whom he shelters) and by sentencing him to a nominal fine. We accordingly reduce the sentence of fine to Rs. 50/-.' It further held: 'All these writings there is not that mention of judges which the appellant has made. Either he does not know or has deliberately distorted the writings of Marx, Engels and Lenin for his own purpose. We do not know which will be the more charitable view to take. Marx and Engels knew that the administration of justice must change with laws and changes in society, there was thus no need to castigate the judges as such beyond saying that the judicial system is the prop of the state. No doubt the courts, while upholding the laws and enforcing them, do give support to the state but they do not do so out of any impure motives. They do not range themselves on the side of the exploiting classes and indeed resist them – when the law does not warrant an encroachment. To charge the judiciary as an instrument of oppression, the judge as-guided and dominated by class hatred, class interests and class prejudices, instinctively favoring the rich against the poor is to draw a very distorted and poor picture of the judiciary. It is clear that it is an attack upon judges. which is calculated to raise in the minds of the people a general dissatisfaction with, and distrust of all judicial decisions. It weakens the authority of law and law courts. But judges do not consciously take a view against the conscience or their oaths. What the appellant, wishes to say is that they do. In this he has been guilty, of a great calumny.' The judges had without any self-restraint held that EMS did not know Marxism and Leninism. Immediately after this judgment, an article was written in Peoples Democracy by Comrade M. Basavapunnaiah, analysing the understanding of Supreme Court judges on Marxist text. He wrote that it was the Supreme Court judges who had no elementary knowledge of Marxism. However, there was no one to take him to task. The Communist Party entered parliamentary democracy and the ban on it was lifted. AKG entered into the election fray in the first general elections held in 1952. From then onwards, he won five successive parliamentary elections till 1976 and was once a Leader of Opposition (LOP) in the Lok Sabha. During this period, several amendments to the Constitution were made to fulfil the aspirations of the people. In fact, AKG, along with another CPI(M) MP Dasarat Deb, moved a private member Bill to the Constitution, dated November 22, 1971. In that Bill, they proposed to curtail the power of the president and governors in withholding assent to the Bills passed by the respective legislatures. They also wanted the governors to be appointed from an electoral college comprising members of the legislative assembly and that the appointment of judges to have the approval of the majority of members of each House of parliament etc. If only these amendments had passed, we would not have faced a new breed of governors like Arif Mohammed Khan (Kerala), (Tamil Nadu) let loose on democratically elected governments. Two other CPI(M) MPs M/s. Saroj Mukherjee and Samar Mukherjee also moved another constitutional amendment bill dated November 22, 1971, proposing equal powers for the Council of States, real autonomy for the states and adult franchise at the age of 18 years and equal representation for all states in the House of states etc. This shows the serious concern taken by the party and the real issues faced by the people in the working of the Constitution. It was their proposal made in 1972 that subsequently became a reality by the 61st Constitution Amendment Act, 1988 which made 18 years as the voting age. The Preamble to the 24th Constitutional Amendment Bill moved by the Indira Gandhi government in 1971 said: 'The Supreme Court in the well-known Golak Nath's case 1967 (2) S.C.R. 762] reversed, by a narrow majority, its own earlier decisions upholding the power of Parliament to amend all parts of the Constitution including Part III relating to fundamental rights. The result of the judgment is that Parliament is considered to have no power to take away or curtail any of the fundamental rights guaranteed by Part III of the Constitution even if it becomes necessary to do so for giving effect to the Directive Principles of State Policy and for the attainment of the objectives set out in the Preamble to the Constitution. It is, therefore, considered necessary to provide expressly that Parliament has power to amend any provision of the Constitution so as to include the provisions of Part III within the scope of the amending power.' Similarly, when several social welfare schemes were sought to be nullified on the ground of the inadequate nature of the Constitution, and the nationalisation of 14 banks was struck down, it was felt necessary to amend the Constitution. The 25th Constitutional Amendment was brought in to insert Article 31C of the Constitution. The objects of the Bill were stated as follows: 'Article 31 of the Constitution as it stands specifically provides that no law providing for the compulsory acquisition or requisitioning of property which either fixes the amount of compensation or specifies the principles on which and the manner in which the compensation is to be determined and given shall be called in question in any court on the ground that the compensation provided by that law is not adequate. In the Bank Nationalization ( 1970 (1) SCC 248, the Supreme Court has held that the Constitution guarantees right to compensation, that is, the equivalent in money of the property compulsorily acquired. Thus in effect the adequacy of compensation and the relevancy of the principles laid down by the Legislature for determining the amount of compensation have virtuality become justiciable inasmuch as the Court can go into the question whether the amount paid to the owner of the property is what may be regarded reasonably as compensation for loss of property. In the same case, the Court has also held that a law which seeks to acquire or requisition property for a public purpose should also satisfy the requirements of article 19 (1) (f).' When both 24th and 25th amendments to the Constitution were brought at a time when the Congress party had split into two factions, Indira Gandhi, in order to bring in certain pro-socialist measures and also to get the support of the left parties, nationalized certain private banks and abolished privy purse given to the erstwhile princess. During the debate on these two amendments, the left parties led by AKG gave full support to these amendments and thus saved not only the nationalisation of private sector banks owned by Tatas and Birlas, but also several social welfare measures. But the danger to the democratic functioning came when Gandhi and the Congress party assumed extra constitutional powers after the imposition of national emergency (1975-77). Many opposition leaders were detained under the notorious Maintenance of Internal Security Act (MISA). The fundamental rights guaranteed under the Constitution were suspended by a presidential order. When the detention orders and the presidential orders suspending fundamental rights were challenged before the Supreme Court, the court did not take much time to reject all those petitions in its decision in the famous ADM Jabalpur vs. S. S. Shukla (1976 (2) SCC 521). Many jurists labeled that day as the darkest day in the history of the Supreme Court. It was long after that, in judgment in the Aadhar case, that the court opined that the ADM Jabalpur judgment was erroneous. Taking advantage of the emergency, rumours were spread saying that the Constitution needs extensive amendments and requires far reaching changes. Despite the fact that political leaders were under detention without trial under the notorious MISA, a two-day seminar was conducted on October 16 and 17 at New Delhi. In that Seminar, Comrades AKG and EMS, P. Ramamoorthy also participated on behalf of the CPI(M) Party. The consensus adopted in the seminar was: – 'This national seminar is of the considered opinion that enactment of the Constitution (44 th Amendment) Bill by the present Parliament should not be proceeded with on grounds both of procedure and substance. There is in the country, on account of the Emergency, a climate of oppression and fear in which no free and open debate is possible. Leaders of political parties and of public opinion are in jail, meetings have until recently been almost totally banned and are even now only allowed in restricted hall gatherings and Press has been effectively gagged. The denial of the fundamental freedom of expression and of association and the erosion of judicial processes have created a situation in which it is impossible for the people to know, discuss and understand the sweeping the drastic constitutional amendments being proposed in their name, but certainly not to their benefit although there is so alleged.' 'The ruling party sought to mandate in 1971 for the kind of changes now proposed, and statements to the contrary bear no relation to the fact. Furthermore, the fifth Lok Sabha concluded its normal five-year tenure last March and is now serving as extended term under Emergency decree. For it to consider the making of what would virtually be a new Constitution on the basis of 43 per cent votes cast under very different circumstances six years ago would be a fraudulent exercise of power. The honest and democratic alternative would be for the Government to face the people, whom it claims to serve, in fair and free election which are in any case long overdue. Not to do so, and to rush the 44 th amendment through what is a rump Parliament, in an atmosphere in which no free debate has been permitted or is indeed possible, would be institutionalize the Emergency with added powers and present the people with a fait accompli. 'According to the statement of objects and reasons appended to the Bill, the 44 th amendment is intended to remove the difficulties which have arisen in achieving the objective of socio-economic revolution 'which would end poverty, ignorance and disease and inequality of opportunity'. The assertion will not bear scrutiny. After the amendment to Article 31 the present Constitution has placed no impediment on genuine socio-economic reforms and the Government has failed to point out a single measure that it has brought forward during the past five years or would like to introduce in the future which could not or cannot be enacted and implemented given the political will. Nor is it true to say that the doctrine of the sanctity of the 'basic structure' of the Constitution propounded by the Supreme Court in the Keshavananda Bharati judgement has obstructed social and economic change. Indeed, the Supreme Court ruled in that case that the right to property is not a part of the basic structure of the Constitution. None of the provisions of the 44 th amendment, however, seeks to restrict the Constitutional right to property as such, it is quite clear that the objective of the Government are very different and the adoption of the 44 th amendment would in effect establish a constitutional dictatorship. It is pertinent to point out that the policies of the Government pursued so far have not helped the poor but the rich and led to concentration of wealth.' (Peoples Democracy dt. 24.10.1976) Notwithstanding all these exercises using the brutal majority and the incarceration of opposition leaders, the 42nd amendment act (originally labeled as 44th Amendment Bill) was passed and several of the amendments were brought into effect from January 1997. Though, following the defeat of the Congress, the Janata Party came to power with an assurance of restoring democracy, the 44th Amendment Act, 1978 was brought in, with some of its provisions effective from June 20, 1979. Fortunately, the 44th Amendment did not remove a crucial amendment made to the Preamble of the Constitution, wherein the words 'socialist' and 'secular' were introduced, thus making India a sovereign, socialist, secular, democratic republic. But curiously the present BJP government came out with a gazette notification declaring June 25 of every year to be observed as Samvidhan Hatya Diwas (Constitution Murder Day). The gazette notification went on to read 'Whereas, a proclamation of Emergency was made on 25th June, 1975, following which there was gross abuse of power by government of the day and people of India were subjected to excesses and atrocities. And whereas, people of India have abiding faith in the Constitution of India, and the power of India's resilient democracy…'Therefore, Government of India declares 25th June as 'Samvidhan Hatya Diwas' to pay tribute to all those who suffered and fought against the gross abuse of power during the period of Emergency and to recommit the people of India to not support in any manner such gross abuse of power, in future.' More than the rhetoric, it should be noted that it may open to a political party to observe various days on various themes, but it can certainly not be open to a government to disown certain executive actions, which were not disturbed by the courts, and call those actions 'murder'. Is the Modi government calling the actions of the then president declaring emergency a murder? If they are truly sincere to their words, then attempts should have been made either to challenge those actions before a competent court of law and get it declared as such or bring appropriate amendments to the Constitution annulling the dark acts done during the period. It may not be out of place to refer to the action of the then RSS which was proscribed during that period making open support to the 20-point program announced by Indira Gandhi's government, hoping that their gestures will remove the ban on them. The Preamble to the Constitution has been held to be a 'basic structure' of the constitution by the 13-Judge bench of the Supreme Court in Kesavananda Bharati Vs. State of Kerala, 1973 (4) SCC 225. The Preamble has been distributed in Kerala to all school children to make them aware of the significance of the preamble. Thus, the beginner's lessons in Constitution now start with the schools, thanks to the Left Front Govt. While the term secular was introduced into the Constitution in 1976, yet it is still writ large throughout the Constitution. Article 25 and 26 clearly spell out religious rights as a fundamental right to all. In describing the true nature of the term, Justice O Chinnappa Reddy in Bijoe Emmanuel &Ors vs State of Kerala &Ors, 1986 (3) SCC 615), said: 'We do endorse the view…that the question is not whether a particular religious belief or practice appeals to our reason or sentiment but whether the belief is genuinely and conscientiously held as part of the profession or practice of religion. Our personal views and reactions are irrelevant. If the belief is genuinely and conscientiously held it attracts the protection of Art. 25 but subject, of course, to the inhibitions contained therein.' A nine-judge bench of the Supreme Court also explained the term. In its decision in Vs. Union of India reported in 1994(3) SCC 1, the court held that secularism is the basic structure of the Constitution and if any state government does anything in violation, action under Article 356 can be invoked. It held: 'Secularism is a part of the basic structure of the Constitution. The acts of a State Government which are calculated to subvert or sabotage secularism as enshrined in our Constitution, can lawfully be deemed to give rise to a situation in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution. But to our dismay, in the Ram Mandir case, not only was the principle of secularism given up, but the Supreme Court also went on to decide the issue on the basis of majoritarian faith. While condemning the demolition of Babri Masjid as an egregious violation of rule of law, it gave the demolished structure to the majority to construct a Ram Mandir at the very site itself. The judgment is strange in many ways and defied all logical reasons. The judgment held as follows: 'The sequence of the events as noticed above clearly indicate that faith and belief of Hindus was that birth place of Lord Ram was in the three-dome structure Mosque which was constructed at the janamasthan. It was only during the British period that grilled wall was constructed dividing the walled premises of the Mosque into inner courtyard and outer courtyard. Grilled iron wall was constructed to keep Hindus outside the grilled iron wall in the outer courtyard. In view of the construction of the iron wall, the worship and puja started in Ram Chabutra in the outer courtyard. Suit of 1885 was filed seeking permission to construct temple on the said Chabutra where worship was permitted by the British Authority. Faith and belief of the Hindus as depicted by the evidence on record clearly establish that the Hindus belief that at the birth place of Lord Ram, the Mosque was constructed and three-dome structure is the birth place of Lord Ram. The fact that Hindus were by constructing iron wall, dividing Mosque premises, kept outside the three-dome structure cannot be said to alter their faith and belief regarding the birth place of Lord Ram. The worship on the Ram Chabutra in the outer courtyard was symbolic worship of Lord Ram who was believed to be born in the premises. It is thus concluded on the conclusion that faith and belief of Hindus since prior to construction of Mosque and subsequent thereto has always been that Janmaasthan of Lord Ram is the place where Babri Mosque has been constructed which faith and belief is proved by documentary and oral evidence discussed above. ' The meaning of the secular Preamble was not only departed from, but the term 'socialism' has also been watered down by the courts over the years, reminding us of the description given by EMS noted earlier. Why is there so much antagonism towards the term 'socialism' in the Constitution? When exactly was the concept sought to be discussed in the public sphere, and when were attempts made to explain it in order to achieve such a status in independent India? Perhaps when the Indian National Congress was founded in 1885, there was hardly any discussion about the party's economic policies. It was after the Congress party's radicalisation, the World War and the civil disobedience movement, that certain radicals within the Congress wanted to form a pressure group to force the Congress leadership to take a stand on the economic issue. The Congress at the time was strongly supported by the powerful trade union movement led by All India Trade Union Congress (AITUC). The socialists within the Congress made it possible to adopt the fundamental rights resolution in the Karachi Congress (1931) to agitate for raising the standard of living of the workers and peasants. An all India convention of the socialist was held in Patna in May 1934 to co-ordinate the working of the Congress Socialist party in various provinces. The Congress Socialist Party started functioning within the fold of Congress and became responsible for passing resolutions on radical economic transition of the economy. Many of the latter day communist leaders like EMS, A.K. Gopalan were all once members of the Congress Socialist Party. In 1936, Dr Ambedkar formed the Indian Labour Party (August 1936) in Mumbai with the object of advancing the welfare of labour classes and committed to supporting state ownership and management whenever necessary. He also participated in many labour disputes in the Bombay Presidency. However, when the Constituent Assembly was convened and he was appointed as a chairperson of the drafting committee, there were no representatives of either the socialists or the communists in that House. Being aware of such absence, when he finally presented the draft of the Constitution on November 26, 1949, he remarked about the absence of the communists and socialists in the House: 'The condemnation of the Constitution largely comes from two quarters, the Communist Party and the Socialist Party. Why do they condemn the Constitution? Is it because it is really a bad Constitution? I venture to say no'. The Communist Party want a Constitution based upon the principle of the Dictatorship of the Proletariat. They condemn the Constitution because it is based upon parliamentary democracy. The Socialists want two things. The first thing they want is that if they come in power, the Constitution must give them the freedom to nationalise or socialise all private property without payment of compensation.' To minimise the loss of their participation, Ambedkar did full justice to his economic philosophy which runs on socialist lines. Apart from equality in employment, abolition of untouchability, ban on forced labour and child labour as part of the fundamental rights, he wrote a full chapter on what came to be called as the directive principles of state policy. Though the provisions under Chapter IV are not enforceable by court, it provided for promotion of welfare of the people and a bundle of provisions providing for right to work, living wage and the ownership and control of material resources of the community. He also envisioned that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment (Article 39(b)). After 15 years of being in power and to avoid a sagging image, the Congress leadership headed by Nehru, passed a resolution in their Avadi Congress that the party will strive for a 'socialistic pattern of society'. When Indira Gandhi nationalised 14 private banks and the same was struck down by the Supreme Court, she promptly brought the 25th constitution amendment. In order to consolidate her position in the party as its sole leader and to isolate other reactionary sources within the party, she once again brought up the issue of socialism being the guiding principle of the Nation. Unable to contain further dissent within the party and mounting opposition, Gandhi declared a national emergency (1975–77). It was during this period that extensive amendments were proposed to the Constitution through the 42nd Amendment. As part of this process, the Preamble of the Constitution was amended to describe India as a Sovereign, Socialist, Secular, Democratic Republic. After the polls, when the congress lost and the coalition of parties formed Janata government, they wanted to undo the misdeeds of during the emergency including repeal of the amendments made by the 44th amendment act. However, the newly introduced words 'socialism' and 'secularism' were left untouched by them. When a challenge was made to the inclusion of the terms 'socialism' and 'secularism' in the Preamble to the Constitution by the 42nd amendment, the same was rejected by the Supreme Court recently. In Singh &Ors. Vs. Union of India &Ors., 2024 INSC 893, it held: 'The fact that the writ petitions were filed in 2020, forty-four years after the words 'socialist' and 'secular' became integral to the Preamble, makes the prayers particularly questionable. This stems from the fact that these terms have achieved widespread acceptance, with their meanings understood by 'We, the people of India' without any semblance of doubt. The additions to the Preamble have not restricted or impeded legislations or policies pursued by elected governments, provided such actions did not infringe upon fundamental and constitutional rights or the basic structure of the Constitution. Therefore, we do not find any legitimate cause or justification for challenging this constitutional amendment after nearly 44 years. The circumstances do not warrant this Court's exercise of discretion to undertake an exhaustive examination, as the constitutional position remains unambiguous, negating the need for a detailed academic pronouncement. This being the clear position, we do not find any justification or need to issue notice in the present writ petitions, and the same are accordingly dismissed.' Though the courts have blocked the effort to remove the words 'socialism' from the Constitution, one must see how the courts have understood or interpreted the word 'socialism' in their judgments all along. That will make it unnecessary for anyone to challenge the presence of that word in the Constitution. The polemics on socialism in the court halls have always seen two distinct trends and had two schools of thought. Right from the late 70s, a galaxy of judges like Krishna Iyer, Desai, Chinnappa Reddy, Y.V. Chandrachud, and finally K. Ramaswami interpreted the Constitution in favour of a socialist position. There was another school of thought taking a directly opposite stand. The provisions of Industrial Disputes Act was amended in 1976 making it mandatory for establishments to get prior approval for closure from the government, striking down Section 25-O of the Justice Untwalia observed: 'So long as the private ownership of an industry is recognised and governs an overwhelmingly large proportion of our economic structure, is it possible to say that principles of socialism and social justice can be pushed to such an extreme so as to ignore completely or to a very large extent the interests of another section of the public namely the private owners of the undertakings?' (Excel Wear Vs. Union of India, 1978 (4) SCC 224). However, subsequent constitution benches in Workmen of Meenakshi Mills Vs. Meenakshi Mills Ltd (1992 (3) SCC 336) and P apanasamLabour Union Vs. Madura Coats Ltd (1995 (1) SCC 501) upheld provisions relating to government's approval for retrenching and laying off workers. The very Section 25-O which requires permission to close down an establishment itself came to be upheld subsequently by the Supreme Court (after a small amendment) in Orissa Textile and Steel Ltd Vs. State of Orissa (2002 (2) SCC 578). The Supreme Court, while refusing to interfere in cases relating to disinvestment of public sector units observed that they are beyond judicial review. In one such case, to cap it all, Justice Lakshmanan went to an extreme and happily declared that socialism is beginning to wither away which is no longer valid in the light of liberalization, he observed: 'Socialism might have been a catchword from our history. It may be present in the Preamble of our Constitution. However, due to the liberalization policy adopted by the Central Government from the early nineties, this view that the Indian society is essentially wedded to socialism is definitely withering away.' (State Of Punjab Vs. Devans Modern Brewaries Ltd, 2004 (11) SCC 26) The Left Front government headed by chief minister V.S. Achuthanandan issued an ordinance to take over the land from the Tatas and formed a workmen cooperative to run the Kannan Devan Tea Ltd. This was stalled by a court order. Once again, when the Left Front headed by Pinarayi Vijayan wanted to take over and run the Thiruvananthapuram International Airport to avoid privatisation, the move was blocked by the Modi government which entrusted the airport to the Adanis. The challenge by the state government was rejected by the Supreme Court stating that they had filed the challenge after the tender had been finalised. Conscious of the presence of political freedom and the lack of socio-economic freedom, even in his address to the Constituent Assembly on the final day of the draft presentation, Dr Ambedkar warned: 'We must begin by acknowledging the fact that there is complete absence of two things in Indian Society. One of these is equality. On the social plane, we have in India a society based on the principle of graded inequality which we have a society in which there are some who have immense wealth as against many who live in abject poverty. On the 26th of January 1950, we are going to enter into a life of contradictions. In politics we will have equality and in social and economic life we will have inequality. In politics we will be recognizing the principle of one man one vote and one vote one value. In our social and economic life, we shall, by reason of our social and economic structure, continue to deny the principle of one man one value. How long shall we continue to live this life of contradictions? How long shall we continue to deny equality in our social and economic life? If we continue to deny it for long, we will do so only by putting our political democracy in peril. We must remove this contradiction at the earliest possible moment or else those who suffer from inequality will blow up the structure of political democracy which is Assembly has to laboriously built up.' Apart from incorporating the fundamental rights in Part III of the Constitution, various promises of the State to the citizen were set out in the directive principles of state policy as Part IV of the Constitution. Though they are not specifically enforceable they are nonetheless fundamental in the governance of the country. The need to have such assurances was explained by Dr. Ambedkar as follows: 'Constitutional lawyers assume that the enactment of Fundamental Rights is enough to safeguard their liberty and that nothing more is called for. They argue that where the State refrains from intervention in private affairs – economic and social – the residue is liberty. What is necessary is to make the residue as large as possible and State intervention as small as possible….[But one] more question remains to be answered. To whom and for whom is this liberty? Obviously, this liberty is liberty to the landlords to increase rents, for capitalists to increase hours of work and reduce the rate of wages….For in an economic system employing armies of workers, producing goods en masse at regular intervals someone must make rules so that workers will work and the wheels of industry run on. If the State does not do it the private employer will….In other words what is called liberty from the control of the State is another name for the dictatorship of the private employer.' ( 'States and Minorities', in Ambedkar: Writings and Speeches, ed. Vasant Moon, Ministry of Social Justice and Empowerment, 2019, Vol.I) Describing the Indian Constitution, the noted Jurist Granville Austin observed: 'The Indian Constitution is first and foremost a social document. The majority of its provisions are either directly aimed at furthering the goals of the social revolution or attempt to foster this revolution by establishing the conditions necessary for its achievement. Yet despite the permeation of the entire constitution by the aim of the national renaissance, the core of the commitment to the social revolution lies in Part III and Part IV, in the Fundamental Rights and in the Directive Principles of State Policy. These are the conscience of the Constitution.' Part IV of the Constitution, added as the Directive Principles of State Policy. Article 39(b) of the Constitution read as follows: Certain principles of policy to be followed by the State: The State shall, in particular, direct its policy towards securing— that the ownership and control of the material resources of the community are so distributed as best to sub serve the common good; While interpreting the said Article 39(b) and to decide as to whether it include private properties also for the purpose of serving common good, Justice V.R, Krishna Iyer expressed his opinion as follows: 'The key word' and the dissertation on 'the genius of the Article'. Shri Sen urged that if the word 'Distribute' was given its proper emphasis, it would inevitably follow that material resources must belong to the community as a whole, that is to say, to the State or the public, before they could be distributed as best to subserve the common good. Since those material resources which belonged to the State only could be distributed by the State, Shri Sen argued that material resources had first to be acquired by the State before they could be distributed. A law providing for acquisition was not a law for distribution. We are unable to appreciate the submission of Shri Sen. The expression 'material resources of the community' means all things which are capable of producing wealth for the community. There is no warrant for interpreting the expression in so narrow a fashion as suggested by Shri Sen and confine it to public- owned material resources, and exclude private-owned material resources. The expression involves no dichotomy. The words must be understood in the context of the Constitutional goal of establishing a sovereign, socialist, secular, democratic republic. Though the word 'socialist' was introduced into the Preamble by a late amendment of the Constitution, that socialism has always been the goal is evident from the Directive Principles of State Policy. The amendment was only to emphasise the urgency. Ownership, control and distribution of national productive wealth for the benefit and use of the community and the rejection of a system of misuse of its resources for selfish ends is what socialism is about and the words and thought of Art. 39 (b) but echo the familiar language and philosophy of socialism as expounded generally by all socialist writers. To quote a recent writer, 'Socialism is, first of all, a protest against the material and cultural poverty inflicted by capitalism on the mass of the people. It expresses a concern for the social welfare of the oppressed, the unfortunate and the disadvantaged. It affirms the values of equality, a classless society, freedom and democracy. It rejects the capitalist system and its competitive ethos as being inefficient in its use of resources–. They (Socialists) want a new system, whether by reform or revolution, in which productive wealth is owned and controlled by the community and used for communal ends '. (State of Karnataka Vs. Shri Ranganatha Reddy, 1977 (4) SCC 471) Justice Chinnappa never vacillated and was steadfast in his principles in his adherence to the core values of the Constitution. In the coking coal nationalisation case, he had exhorted the meaning behind Article 39(b) and (c) and also the concept of public ownership of the wealth of this nation. He said: 'The expression 'material resources of the community' means all things which are capable of producing wealth for the community. There is no warrant for interpreting the expression in so narrow a fashion as suggested by Shri Sen and confine it to public- owned material resources, and exclude private-owned material resources. The expression involves no dichotomy. The words must be understood in the context of the Constitutional goal of establishing a sovereign, socialist, secular, democratic republic. Though the word 'socialist' was introduced into the Preamble by a late amendment of the Constitution, that socialism has always been the goal is evident from the Directive Principles of State Policy. The amendment was only to emphasise the urgency. Ownership, control and distribution of national productive wealth for the benefit and use of the community and the rejection of a system of misuse of its resources for selfish ends is what socialism is about and the words and thought of Art.39(b) but echo the familiar language and philosophy of socialism as expounded generally by all socialist writers.' 'When Art. 39 (b) refers to material resources of the community it does not refer only to resources owned by the community as a whole but it refers also to resources owned by individual members of the community. Resources of the community do not mean public resources only but include private resources as well. Nor do we understand the word 'distribute' to be used in Art. 39 (b) in the limited sense in which Shri Sen wants us to say it is used, that is, in the sense only of retail distribution to individuals. It is used in a wider sense so as to take in all manner and method of distribution such as distribution between regions, distribution between industries, distribution between classes and distribution between public, private and joint sectors. The distribution envisaged by Art. 39(b) necessarily takes within its stride the transformation of wealth from private-ownership into public ownership and is not confined to that which is already public-owned.' (Sanjeev Coke Manufacturing Co. Vs. Bharat Coaking Coal Ltd, 1983(1) SCC 147) The meaning of the above article is very clear. Any English dictionary will give its true meaning. However, the interpretations placed by Justices Krishna Iyer and Chinnappa Reddy were referred to a larger bench consisting of nine judges headed by then Chief Justice of India Dhananjay Chandrachud. Even before the hearing of the case, he remarked: 'It (the bench) will not adhere to Justice V R Krishna Iyer's 1977 Marxian interpretation of Article 39(b) of the Constitution that a community's 'material resources' would include private properties for reallocation to subserve the common good' (The Times of India, 25.4.2024) In the final judgment, as expected the Chief Justice of India writing the majority opinion criticized Justice Krishna Iyer in his judgment as follows:- 'The doctrinal error in the Krishna Iyer approach was, postulating a rigid economic theory, which advocates for greater state control over private resources, as the exclusive basis for constitutional governance.' (The Times of India, 5.11.2024) However, a dissenting voice bravely put the issue on the right format. Justice Sudhanshu Dhulia, in his own way paid tributes to the two judges and also reminded all the judges of this country that the courts have a constituency which is the nation and that their manifesto should be the Constitution. He wrote: 'The Krishna Iyer Doctrine, or for that matter the O. Chinnappa Reddy Doctrine, is familiar to all who have anything to do with law or life. It is based on strong humanist principles of fairness and equity. It is a doctrine which has illuminated our path in dark times. The long body of their judgment is not just a reflection of their perspicacious intellect but more importantly of their empathy for the people, as human being was at the centre of their judicial philosophy. In the words of Justice Krishna Iyer himself: 'The Courts too have a constituency – the nation – and a manifesto – the Constitution'. (Property Owners Association vs State of Maharashtra, 2024 INSC 835) At the tail end of its tenure and in view of the impending 2019 election, the Modi government suddenly brought in the 103rd Amendment Act, bulldozing it through Parliament and got it passed in January, 2019. The introduction of a new category – the Economically Weaker Section (EWS) category – for the purpose of reservation had sent shockwaves among the people who were fighting for real social justice. The passing of 103rd amendment and a 10% quota for the EWS categories was not only considered illegal, but also a fraud on the Constitution. Instead of calling it EWS, the said category can be called the poorer section of the upper castes, since the other categories who were covered by the earlier provision of reservations were consciously excluded from this category. Unfortunately, with a minor dissent, the amendment was upheld by the Supreme Court.(Janhit Abhiyan Vs. Union of India (2023 (5) SCC 1) Thus, we have seen different trends of thought within the higher judiciary and diametrically opposite stands in matters of social justice, rights of workers and liberty etc. The working of the Constitution of India for the last 75 years has shown many twists and turns. The Marxists who were not part of its framing are the ones who came forward to uphold the Constitution and many times were victims of the executive excess of the government. They were also denied relief from courts. Nevertheless, they have understood the perspective of the Constitution as envisaged by Dr. Ambedkar and were at the forefront of defending the Constitution at all times. However, today we hear the talk of tinkering with the Constitution. The latest slogan is 'One Nation One Election' (ONOE) and a Bill is pending before the parliament. Though the BJ government is in minority in the Lok Sabha, still they may work overtime to pass the Bill. There can be nothing worse than allowing the said Bill to pass, which may pave way for an authoritarian rule. If you look at today's perspective of the Constitution, the essential principles of secularism, socialism, federalism and social justice are its essential features and the need to safeguard those features is now more urgent than ever. Though the starting point of the Ambedkarites and Marxists is different, today they stand on a focal point on how to defend the basic tenets of the Constitution and unite for its preservation and advancement. The author is a retired judge of the Madras high court. 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