There was a time when people went to jail to get freedom for themselves. I think we have reached a stage when people must be willing to go to jail to preserve their basic human freedom.
It is easier to throw off a foreign tyranny than the tyranny of your own elected representative. And to my mind, a law does not cease to be tyrannical because it is passed by the elected representatives of the people. In fact, you have sometimes a great emperor who, as a benevolent despot, may give a better administration than elected representatives. It all depends on the caliber, the vision, the degree of integrity of the people you return to office.
So, in a democracy, the price which you pay for being a citizen of a democracy is eternal vigilance. If you are not prepared to have eternal vigilance, you are unfit to be the citizen of a free democracy. Because freedom is not something you can inherit in the bloodstream. It’s not that your father enjoyed it, therefore my young friends here in the galleries would be able to enjoy it. No, you don’t inherit in the bloodstream. You have to fight for it, cherish it, preserve it all the time. Otherwise it just vanishes. It has already vanished this year, in 1971, in the form of the 24th Amendment.
But look at the extreme arrogance, and I use my word advisedly, arrogance of the people who have passed this 24th Amendment. They go on to say, “Once the President of India is presented with a bill, abridging any of the fundamental rights, he shall have no right to say, ‘I shall not ascend to the bill’.” In other words, if the President of India is shown a sugar control Act, he can say no, I am sorry, I think it is ridiculous, I won’t give my assent.
But if he is presented with a bill. which says the whole chapter on fundamental rights shall be abrogated, he must give his consent. Now, the law under our Constitution is this, under Article 211, that if the President refuses to give his assent, his only alternative is to present it again to Parliament for reconsideration. And if after reconsideration Parliament comes to the same conclusion, namely that the bill should be passed, then the President is bound to give his assent.
But our politicians in their arrogance don’t want the President even to ask them to reconsider a question dealing with fundamental rights. The poor President of India, all that he can do is tell the Parliament, as Cromwell told his Parliament, ‘Think, in the bowels of Christ, you might be mistaken.’ Our President can’t even tell the members of Parliament, ‘You want to take away all the fundamental rights, would you like to reconsider this matter?’ No, he can’t say that. He must give his assent immediately. I think, frankly, this is devaluing the office of the President, if ever there was a way of devaluing it. This is your 24th Amendment.
Now when the 24th Amendment is passed, what you have been told is, assurance in Parliament by high-ranking individuals, please rest assured, we will not tinker with your freedoms. In connection with that assurance, kindly consider two things. The princes were given an assurance in writing, which Rajaji signed as the Governor General of India, where he said that you are guaranteed this Privy Purse, and your descendants who occupy the ‘gaddi’ are guaranteed that.
Not only the Government of India is guaranteed under the signature of the Governor General, they put it in the Constitution. In Article 291 we said, the Privy Purse free of taxes is guaranteed and shall be paid out of the Consolidated Fund of India. It is the highest guarantee, the highest assurance, the greatest security known to our law. What has come to that security and assurance? The people who are alive today, who signed in 1947 this document as the other party to the government, they are today alive, many of them, and they will not get a pie.
I am not talking of those individuals. Those individuals are not worth saving, but the honour of India is undoubtedly worth saving. It is the honour of your country. People have laid down their lives for the honour of their country. What nonsense are we talking today about this being anachronism and the rest. What has become anachronistic is the sense of integrity, justice and fairness. That unfortunately has become anachronistic in our times today in India.
Now, if the greatest guarantee known to law enshrined in the Constitution is of no avail, what do you make of verbal assurances given by individuals? I mean, a man must be perfectly infantile in his outlook if he believes that this assurance has any effect whatsoever.
Consider, secondly, this. Is the assurance worth anything at all, assuming it is well intended and assuming it is really to be carried out by the elected representatives, what is this assurance? Every parliament changes every five years. Who knows who will be in power tomorrow? When the going is good, when the market is bullish, every speculator thinks it will go up and up. When it is down, everybody thinks it will still go down.
But nature has a way of working, which is very different from what we normal individuals with our limited intellects can perceive. There are ways and ways, as [Ralph Waldo] Emerson said, ‘I keep and pass and turn again,’—when he was talking of Brahma—‘if the red slayer think he slays, or if the slain thinks he is slain, he knows not well the subtle ways in which I keep and pass and turn again.’
25th Amendment
Now, if nature has a way of turning and turning a corner before you know where you are, you can rest assured that nothing is everlasting, no one’s power is everlasting. What is the assurance as to what the next parliament would do? But, in this case, it is something more grave than that. You don’t have to wait for the next parliament. This very parliament has told you, at the time when it passed the 24th Amendment, as to what it proposes to do once it is given the power to abridge fundamental rights under the 24th Amendment. And it has told you that, by introducing in parliament the 25th Amendment bill, which tells you quite frankly—I must give full marks for frankness to this parliament—it tells you quite frankly what it proposes to do once it has been given the power to abridge fundamental rights. It is like a cashier who comes for employment to you and who tells you that he would like to operate on your bank account and at the same time tells you that he proposes to build his own house out of your bank account.
What is this 25th Amendment? It is this. Let me tell you and ask you to consider whether it makes any sense to you. You may not know the law. You don’t have to know the law to understand the implications of the 25th Amendment. All that you have to do is to have some experience of human affairs and some common sense, which makes you understand what is good for you and what is not good for you and for your children.
This Constitution is not intended only for you and for me. It is intended to give such a momentum to the living principles of the rule of law that democracy and civil liberty may survive in India beyond our own times and in the days when our place will know us no more. This is the future, the unfolding future of our great Constitution.
Now what does the 25th Amendment propose to do with it? The 25th Amendment is the amendment parliament will pass after the 24th Amendment has become the law. In other words, after the 24th Amendment is ratified by the state legislatures.
The 25th Amendment is this. First, Article 31 of the Constitution will be amended. A man’s property can be taken away without payment of compensation. He has only to be paid an amount. Now do you realise the legal implications of this? I’ll tell you about the case later after I’ve completed what they want to do.
First, your property can be taken away without payment of compensation. And property doesn’t mean zamindaris, doesn’t mean palaces. Your little shop, your little dispensary, your father’s little workhouse, he may be repairing tires or he may be an artisan. Your own little home, your own one acre of land, anything can be taken away without payment of compensation. All that has to be paid to you is an amount. Now ‘amount’, as any dictionary will tell you, means a sum of money. It does not, a rupee is a sum of money, a hundred rupees is a sum of money. Your property may be worth one thousand, but it can be taken away for a hundred rupees.
Now the second thing is, and this again shows how completely ignorant, if you’ll pardon my saying so, our lawmakers are of what they are legislating about. The second provision is even more ridiculous. It says this, that before, if your property is acquired, the fundamental right under Article 19.1.f will not apply.
Now what is the effect of this fundamental right under 19.1.f as regards property? The right is this, suppose your property is acquired under Article 31, under today’s Constitution, under Article 31 you have to be given compensation. And according to the Supreme Court’s judgment in the bank nationalisation case, the concurrent Article which applies is Article 19.1.f, under which there can be only reasonable restrictions on your right to hold property and therefore before your property is acquired, you have a right to be heard. Because if you are not heard, it is not a reasonable restriction on your right to hold property.
So suppose you are a doctor and your dispensary is thought to be acquired by the government to start a ration shop. You are entitled to say, look Mr. Minister, why do you want to take this away? I’m treating so many poor people, I’m doing more public good than your ration shop ever will, and would you let me continue my practice? You have a right to be heard. Mostly you may be heard, you may be raising your voice in vain, but never mind. You have a right to be heard and you have the satisfaction at least that you have had your say, you have expressed your point of view, and if still somebody wants to do you injustice, well, it is compounding the injustice.
But after the amendment of the Constitution, proposed under the 25th Amendment, 19.1.f will not apply to any cases of acquisition and raising of property by the government. So if you are the thought of the people of the world, you cannot outlay the right to be heard. This is your self-democracy, and this is the reason why you may be able to talk to the people, because there are so many objectives that we all want, for all of whom you are paying a daily allowance, housing and the rest, in order that your basic rights may be taken away.
Frankly, I feel so strongly about it, and what distresses me knowing is that why is the elite of this country putting up with this kind of outrage on our basic democracy? Why should a man not be heard before his property is taken away? What is wrong with it? What is the social purpose served by not even hearing it? If you look at some of the cases which come to the high courts and the Supreme Court, you would be amazed how the power of acquisition can be abused. One case, which we argued before Mr. Justice Subbarao in 1964, came from Madras, where the government wanted to acquire a plot of land, and the very curious thing was that out of this whole area, certain plots belonging to certain individuals were not acquired, and the rest were all acquired. The Supreme Court struck it down on the ground that this is no real power of acquisition, it has been done in a manner not warranted by the Constitution.
These are the type of cases, and this is the mischief which the Constitution sought to prevent, but hereafter no compensation and no right to be heard.
But there is another provision which is even more vicious, and that is in the same 25th Amendment, which I wish was more widely known and widely debated, and that is the Article 31c of the Constitution. which they want to introduce for the first time. This Article wants to say this, and mind you it will become the law unless people are vigilant and are prepared to sacrifice even their personal liberty for the sake of upholding their Constitution.
This new provision is this, Article 31c. Let me put it to you in simple language so that everybody can understand, who may not be familiar with the technicalities of the Constitution. If any Act of parliament or any Act of the state legislature starts with the words that this Act is intended to give effect to the Directive Principles of State Policy under Article 39, that there should be no concentration of economic power.
If these are the opening words of the Act, whether passed by parliament or the state legislature, then no fundamental right will apply. And this, to my mind, is the utmost in utter contempt for the Constitution. There is no other word for it. It is the ultimate contempt for the Constitution. What does it mean? Without abridging any of the fundamental rights, without even letting the people know that fundamental rights are gone, any law has only to be passed with these opening words that this law is intended to give effect to the directive principle of the state policy regarding concentration of economic power. And what is the consequence? No fundamental right shall apply.
So suppose you are living in a house, your own house, which your father built with his life savings and the government wants to take it away. And next to you is a politician who out of means, not known, not disclosed, and not ascertainable, and not identifiable by any process of reasoning or known sources, has a very fine house which is ten times more palatial than yours. And if your house is taken away, and his house is really more suitable for the purposes which the government wants your house for, your right to equality before the law doesn’t apply. So you can’t say, look at my neighbour’s house, kindly take that, it is much more convenient. Nor can you say, why are you taking mine, what have I done, etc. No, none of the fundamental rights apply at all.
Therefore, any law can be passed by parliament or by the state legislature and no fundamental right, neither to equality before the law, nothing at all. And it has only to start with the words that this is meant to give effect to the directive principle of the state policy. Now the question arises, suppose a man were to go to a court of law and say, this particular law is not intended to give effect to the directive principle of the state policy. In fact, if it is implemented, it can never promote the state policy. Well, that is taken care of by the 25th Amendment. 25th Amendment says nobody shall raise any such question in a court of law.
In other words, you cannot go to a court of law and even argue that the law which is intended or purposed to give effect to the, not is intended, people know what the real intentions are, but what purpose to give effect to the directive principle of the state policy can never give effect to the directive principle. In fact, you may be able to prove logically and objectively that it would defeat the directive principle of the state policy. But you can’t raise any such point. No court shall go into the question as to whether the law which purposed to give effect to the directive principle of the state policy will in fact give effect to it or not. It’s not justiciable.
Well, ladies and gentlemen, if you live in a democracy where such a ridiculous proposition can be introduced in parliament with exclamations and people can take it lying down without a debate in the newspapers, without people even raising their voice in protest, frankly, your basic freedoms are not worth saving.
It means this, that hereafter no one is safe once this 25th Amendment is passed. And the same parliament which wants the right to take away your fundamental rights has told you, as I started by telling you, what it proposes to do as the very first step once you give it the power. And what it proposes to do is to do this for you. And this bill is already introduced in parliament. And this bill will not need any ratification by the state legislature. Because that idle ceremony will be over once for all.
Of the 24th Amendment being ratified, thereafter parliament can do what it likes. No ratification by any state legislature, even if the whole chapter on fundamental rights is removed. Nath Pai, who introduced first what has come to be known as the Nath Pai’s bill, after hearing evidence before the select committee, he himself realised the danger of giving this type of power to parliament.
So in the select committee, he himself introduced a safeguard that without the ratification of the states, no fundamental right can be taken away. This government has not accepted even that safeguard. And though the first bill, the 24th Amendment will have to be ratified, thereafter any amendment of any fundamental right will need no ratification by any state legislature.
Now this 31C, just consider the consequences of it. And think in times that you live, the type of regimentation you are under, the licenses, the permits which you have to seek from the government all the time, what kind of existence would it be? What kind of opportunity for our people to create national wealth and to eradicate poverty? How on earth can you do it? This is the 25th Amendment.
26th Amendment
The 26th Amendment proposes to abolish the Privy Purses. Frankly, believe me, I have no affection whatsoever. And if you’ll forgive my saying so, very little of respect for most of the recipients of the Privy Purses.
But to me, as to Rajaji, it is only a matter of principle. The real question is, is it worthwhile dragging in the mire that good name of your country for the sake of four and a half crores of rupees, which is a sum dwindling year after year as the Maharajas die. Now our Constitution makers were so vigilant about the integrity of India, the national honour of India, that they have a scheme in the Constitution which works this way.
If you have a claim for even 75 rupees against the government, state government or central government, you can get a decree against the government. Once you get a decree against the government, that decretal amount of 75 rupees becomes a charge on the consolidated fund of India. And no state legislature, no parliament has a right to vote on that. It must be paid to you as a matter of right. It is a charge on the consolidated fund. And no parliament can say that the money will not be paid to you, because it has become a charge on the consolidated fund of India under the Constitution itself.
Look at the degree of integrity and the sense of national honour which the Constitution makers had just 24 years ago. And the Privy Purse is supposed to be tabulated. With a mispronouncing any name, it can happen to the Maharajas today, it can happen to the Maharajas tomorrow, it can happen to the Maharajas today, it can happen to the Maharajas tomorrow.
A government servant’s salary and pension is charged on the consolidated fund of India. A high court judge’s salary and pension is charged on the consolidated fund of India. What is his security? What is the security of any individual today who puts in 30 years of service with the government, and then is told after 30 years that your provident fund comes to.
Take a general in the army. I asked a general who recently retired, what’s your provident fund? All told the retirement benefits come to one lakh and 75,000 rupees. If the government may well say, no, in a socialist country this is far too much, sorry, we can’t pay you that much sum of money, please take 65,000, for the rest take government bonds.
No, under the Constitution as it stands today, it has to be paid, but not after the Constitution is amended and the rights are gone. A civil servant today’s right is to approach the high court and the supreme court. How many have approached successfully and got their honour vindicated? Hereafter the right can be taken away, because your very right to move the court can be taken away.
The situation is fraught with such tremendous dangers that I think this country must have lost all intelligence if it is going to submit to this type of amendment of the Constitution in a placid, quiet manner. And make no mistake, do not think that this is an idle apprehension. Let me end with the words of Justice Salmon, a judge of the House of Lords in England, who recently delivered the Haldane Memorial Lecture before the London University, as recently as the 4th December 1970, that’s last year.
He said in England, with his 800 years of Parliament and before the Parliament, the Vichang, which corresponded in the Anglo-Saxon days to the present Parliament. He said, “I strongly advocate that in England we must have a Bill of Rights.” Now Bill of Rights means, as I have already told you, fundamental rights. And he gave his reasons. He said, “The way governments of the world, all over the world, are now going in a certain direction, there is more and more regimentation, less and less respect for the individual, for his dignity, his self-respect, his freedom of action. And a day may come,” I am quoting now his words, Lord Salmon, he is a sitting judge of the House of Lords in England. He says ‘a day may come within 30 years’—he says 30 to 40 years—‘when it may become a criminal offence to criticise the government in power. When such a law is passed, the judge will have only two options, either to resign and not administer such a law, or to convict the man who is brought before him for criticising the government.’ And he says in order that such a day may not come, let the people give themselves a Bill of Rights.
Now if in a democracy like Britain, where freedom is bred in the bones of the people, where love of liberty is the cherished possession of every individual, if there, a sitting judge of the highest judiciary thinks that fundamental rights are needed, what do you say to a democracy like ours, which has known democracy for exactly 24 years in its 5,000 years of history, 24 years, and which has got 65% illiterate, do you think we don’t need these fundamental rights? You have them already, and you have decided, through your elected representatives, that they can be taken away at the free will of the executive, virtually the executive for the time being in power. It is a sad year in India’s history, 1971.
There is still hope. The 25th Amendment is not yet passed. If we can arouse the national conscience, if we can charge the national conscience with some respect for the great minds which gave us this Constitution, and some gratitude for what the freedom fighters did for us, they went to jail, they languished in jail, they spent some of their best years in jail, for what? In order that one tyranny may be substituted by another? Well, frankly, I say these things strongly because I feel very strongly. And I think unless the people of this nation are vigilant, there will be no hope left for the survival of freedom in a few years’ time.
I say trust nobody. I don’t say merely don’t trust the executive. If I were a member of parliament, don’t trust me with the right to deal with your fundamental rights.
I am unfit for that job, I know it. I must not be given full power to deal with your fundamental rights and no other citizen of this country should be given that power. Let the Constitution remain sovereign and let the people retain their sovereignty by keeping these rights unto themselves.
If that happens, then alone you will find freedom will survive. And finally, may I say this, when I entered the hall, one citizen was kind enough to give me this note. He says, how do you think without amending the chapter on fundamental rights can the directive principles be ever implemented? My answer is, the directive principles have a better chance of being implemented with the fundamental rights than without them.
It only shows the power of words. Advertise a certain tonic widely, like tonobange in HG Wells’ novel of that name, Tonobange, which was really slightly injurious to health. And by selling this tonic, the manufacturer made a vast fortune.
You can easily, merely by putting a certain point of view to the people time and again and repeatedly, condition the human mind to think that yes, a certain thing is needed. Our human mind is today conditioned to think that unless the fundamental rights are amended, directive principles cannot be implemented. I ask one simple question, which scheme of economic reform, which is wisely conceived and honestly implemented, has ever been defeated by our fundamental rights? Point out to me one scheme of any state, any central, any state government or any central government, not one.
You will not find one scheme being defeated by the fundamental rights, not one. The fundamental rights are there as the iron framework within which your salvation can be reached and you can work out your great destiny. And finally, may I say this, that our Constitution as it stands today without the amendment will ensure that this great nation can have stability without stagnation and change without the destruction of human values.
Thank you.
This is part of ThePrint’s Great Speeches series. It features speeches and debates that shaped modern India.
Prescient.