8.

Deviations from the Constitution It depends upon the present age, whether the national constitution shall descend to our children in its masculine majesty, to protect and unite the country; or whether shorn of its strength, it shall become an idle mockery, and perish before the grave has closed upon the last of its illustrious founders.
JOSEPH STORY

The mauling of the Constitution in exercise of the amending power is not the only evil which is afflicted to our polity. There have been flagrant deviations from the constitutional scheme without formal amendments. In the actual working of the constitution the encroachments by the centre on the rights of the state, and the encroachments by both on the rights of the citizens, have grown in range and severity. In some vital aspects, constitutional principles and constitutional practices are now light-years apart. The emphasis in the Constitution is on the individual, the citizen, -and not on the State. The Constitution conceived of the State as existing for the citizen, and not the citizen for the State. However, over the years we have subordinated the individual to the State, so completely that, with some exceptions, the nation is now made up of one-dimensional men. In the words of John Stuart Mill: The worth of a State, in the long run, is the worth of the individuals composing it...a State which dwarfs its men, in order that they may be more docile instruments in its hands even for beneficial purposes- will find that with small men no great thing can really be accomplished; and that the perfection of machinery to which it has sacrificed everything will in the end avail it nothing... Article 19(1) (g) of the Constitution expressly confers upon all citizens the fundamental right to practice any profession, or to carry on any occupation, trade or business because (as pointed out in an earlier chapter) the conviction underlying our Constitution is that collective progress is the result of individual effort and that the way to enrich the country is to give freedom of enterprise to citizens subject to reasonable restrictions in the public interest. The continuation of poverty and economic stagnation are due mainly to the fact that we have deviated vastly from the constitutional mandate. The doctrinaire approach which regards private enterprise as entitled to exist only on the sufferance of the State is the very converse of the scheme of our Constitution. It is a fact not generally known that nationalization is not one of the directive principles of State policy. On the contrary, Article 39(b) of the Constitution provides that the State shall direct its policy towards securing, that the ownership and control of material resources of the community are to be distributed as best to sub serve the common good. Distribution of ownership and control of material resources must necessarily be among the people. It is exact opposite of nationalisation which involves centralisation of the ownership and control in the hands of the State1. These words of Article 39 (b) are taken from the
1

But to the contrary, the Supreme Court of India has held nationalization as one of the best means of achieving directive principle of Sate policy as envisaged under Art.39 (b) of the constitution of India in State Of Tamil Nadu Etc v. L. Abu Kavur Bai And Ors. Etc, (AIR 1984 SC 326), in the instant case, the State of Tamil Nadu nationalized the entire transport service as also a part of the entire assets of the units thereof. And the same was challenged as invalid. Rejecting the contention and upholding the validity of the Act, the court held that, as nationalization is a policy decision, an enquiry into the policy of the legislature or the considerations governing the same, cannot be made by the courts unless the policy is so absurd as to violate the provisions of the Constitution. In view of Art. 31C, the court cannot strike down the Act merely because the compensation for taking over the transport services or its units is no provided for. The reason for this is that Art. 31C was not merely a pragmatic approach to socialism but imbibed a theoretical aspect by which all means of production, key industries, mines, minerals, public supplies, utilities and services may be taken gradually under public ownership,

Constitution of the Irish Free State which is a Catholic country. The Roman Catholic Church does not

management and control. Art. 39 (b) does not mention either moveable or immovable property. The actual expression used is 'material resources of the community' "Material resources" are wide enough to cover not only natural physical resources but also moveable or immovable properties. Further it observed that it will not be correct to construe the word 'distribution' in a purely literal sense so as to mean only division of a particular kind or to particular persons. The words, apportionment, allotment allocation, classification, clearly fall within the broad sweep of the word 'distribution'. So construed, the word 'distribution' as used in the Art. 39 (b) will include various facets, aspects, methods and terminology of a broad-based concept of distribution. The word 'distribution' does not merely mean that property of one should be taken over and distributed to others like land reforms where the lands from the big landlords are taken away and given to landless laborers or for that matter the various urban and rural ceiling Acts. That is only one of the modes of distribution but not the only mode. Again in Sanjeev Coke manufacturing v. Bharat Coking Coal Ltd. AIR 1983 SC 239, where The Coking Coal Mines (Nationalization) Act 1972 was challenged as being volatile of Art. 14 of the Constitution. The court upholding the validity of nationalization Act said that , Nationalization Act is a legislation for giving effect to the policy of the State towards securing the principle specified in Article 39(b) of the Constitution and is, therefore, immune under Article 31-C from attack on the ground that it offends the fundamental right guaranteed by Article 14. The distribution between public, private and joint sectors and the extent and range of any scheme of nationalization are essentially matters of State policy which are inherently inappropriate subjects for judicial review. Scales of justice are just not designed to weigh competing social and economic factors. In such matters legislative wisdom must prevail and judicial review must abstain. It is quite interesting to note that the court even went to the extent of defending the nationalization process with the help of philosophy of socialism. For the same the court provided the following argument 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 emphasize 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" It is very pertinent here to quote the observations made by Krishna Iyer J. in State of Karnataka v. Ranganatha Reddy (AIR 1978 SC215), The key word is distributed and the genius of the article, if we may say so, cannot but be given fully play as it fulfills the basic purpose of re-structuring the economic order. Each word in the article has a strategic role and the whole article is a social mission. It embraces the entire material resources of the community. Its task is to distribute such resources. Its goal is so to undertake distribution as best to sub serve the common good. It re-organizes by such distribution the ownership and control. 'Resources' is a sweeping expression and covers not only cash resources but even ability to borrow (credit resources.)material resources of the community in the context of reordering the national economy embraces all the national wealth, not merely natural resources, all the private and public sources of meeting material needs, not merely public possessions. Everything of value or use in the material world is material resources and the individual being a member of the community his resources are part of those of the community. To exclude ownership of private resources from the coils of Article 39(b) is to ciphers its very purpose of redistribution the socialist way. A directive to the State with a deliberate design to dismantle feudal and capitalist citadels of property must be interpreted in that spirit and hostility to such a purpose alone can be hospitable to the meaning which excludes private means of production or goods produced from the instruments of production.

countenance nationalisation but it directs the State to have reasonable distribution of ownership and control of material resources and the means of production among citizens. It is an incredible constitutional distortion that various nationalisation laws of the Central and State Governments pretend to be passed in pursuance of the directive principle in Article (39) (b) which enjoins the very antithesis of nationalisation.2 We have permitted a clear fraud to be perpetrated upon the powers of the States under the Constitution. There are three significant entries in the State List: (a) industries, (b) trade and commerce, and (c) production, supply and distribution of goods. The Union list permits Parliament to legislate in respect of Industries, the control of which by the Union is declared by Parliament by law to be expedient in the public interest. 3 Thus, the basic scheme of the Constitution is that industries and commerce should remain State subjects and should be dealt with primarily by the States; and that it is only those industries the control of which by the Union is expedient in the public interest, that must be regulated by the Centre. Parliament passed the Industries (Development and Regulation) Act in 19514, specifying those industries
2

During the last forty-one years parliament and State legislatures have passed a number of laws for implementing the directive principles of state policy. Maximum of these are with reference to agrarian reforms. These laws abolished the class of hereditary landlords; made the tillers of the soil the proprietors and prevented the concentration of land holdings even among the tillers by laying down ceiling limits on holdings and provided against fragmentation of holdings. Many of these laws are included in the Ninth Schedule with a view to protect them from challenge in a court of law.(T.K Tope in his book the Constitutional Law of India) Simultaneously in the Tamil Nadu State Carriages and Contract Carriages (Acquisition) Act, 1973, nationalization was upheld as being in public interest. The term distribution has been interpreted by the Supreme Court as ....the word distribution does not merely mean that property of one should be taken over and distributed to others like land reforms where the lands from the big landlords are taken away and given to the landless labourers....that is only one of the modes of distribution but not the only mode.... The court has also held that nationalization is also a distributive process as it prevents concentration of wealth in the hands of few and, thus, benefits the society at large (State of Tamil Nadu v L. Abu Kavur Bai AIR 1984 SC 326) However, in Minerva Mills Case, Supreme Court held that Art. 39(b) of the Constitution states that, that the ownership and control of material resources of the community are to be distributed as best to sub serve the common good. Distribution of the ownership and control of material resources must necessarily among the people. It is the exact opposite of nationalism which involves centralization of the ownership and control in the hands of the State. Nationalisation is the act of taking an industry or assets into the public ownership of a national government or state. Article 39(b) and (c) are protected under Article 31 C of the Indian Constitution. The latter gives protection to a law if it has a real and substantial connection and a dominant object of giving effect of to the directive principles under Art. 39(b) and (c). Art 31C by prohibiting a challenge to laws made under directive principles, is constitutionally bad beyond issues of property, and the 42nd Amendment changes to the amending power, by making parliaments power boundless, overruled the courts decisions establishing the basic structure doctrine in the Kesavananda Bharti and Indira Gandhi election cases. These clauses are the impertinence of those in power and the philosophy underlying Art. 31C is the very quintessence of authoritarianism. Article 31C violates the preamble as well as the fundamental rights of the citizens.

3 4

Entries 24, 26 and 27 in the State List and entry 52 in the Union List in the Seventh Schedule to the Constitution. The Act was formulated for the purpose of development and regulation of industries in India by the Central Government. The main objectives of the Act is to empower the Government:- (i) to take necessary steps for the development of industries; (ii) to regulate the pattern and direction of industrial development; (iii) to control the activities, performance and results of industrial undertakings in the public interest. The Act applies to the 'Scheduled Industries' listed in the First Schedule of the Act. However, small scale industrial undertakings and ancillary units are exempted from the provisions of this Act. The Act is administered by the Ministry of

which in the public interest had to be controlled by the Centre. The Act as originally drafted was fair and reasonable and rightly gave control to the centre over those industries which were vital to national development. However, in course of time, more and more industries have been added in the Act 5; and the basic constitutional scheme has now been almost subverted. Without any amendment of the Constitution, industries has been virtually transformed from a State subject into a Union subject. The figures in the Annual survey of Industries show that as regards undertakings with fixed capital of Rs. 2.5 million and over, the Centre has now extended its control to as much as 93 percent of industries in terms of the value of their output. Even items like razor blades, paper, gum, shoes, match-boxes, household electrical appliances, cosmetics, soaps and other toilet requisites have all been brought under the dominion of the Centre. There can be no doubt that this is a violation of the constitutional mandate. It is imperative that the States should regain their legitimate powers over industries and commerce. The late Professor D.R. Gadgil, nearly fourteen years ago, pleaded for the States insisting on obtaining for itself greater measure of freedom and latitude of planning. He added, Present rigidities in this regard and the stranglehold, over all activity, of the Centre and its agencies and officials, make impossible any real progress. The normal processes of the Constitution have been contemptuously brushed aside and the abnormal has been foisted on the people as the normal. Under Article 352, the President can issue a proclamation of emergency if he is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or internal disturbance6 Under Article 358 the effect of the proclamation of emergency is to suspend the fundamental rights guaranteed by Article 19. Such remnants of freedom as remain are smothered by the continuation of the Proclamation in peace time like the present. 7 Again, the governments at the Centre and in the States bypass with

Industries & Commerce through its Department of Industrial Policy & Promotion (DIPP). The DIPP is responsible for formulation and implementation of promotional and developmental measures for growth of the industrial sector. It monitors the industrial growth and production, in general, and selected industrial sectors. For the same purpose class of industries are specified in the schedule, which are ought to be regulated by the Central Government in the interest of the public because of their nature and magnitude in the Indian economy. But the present list in the schedule includes all kinds of industries which are even of trivial importance to the central 5 Presently the First Schedule of the Act contains 38 industries over which the Centre has full control The list seems to be very exhaustive and also the articles specified under each of the headings Nos. 3, 4, 5, 6, 7, 8, 10, 11 and 13 shall include their component parts and accessories and makes the list more far-reaching by adding each and every component into it. Now the question is whether the industries specified in the schedule actually need a regulation by the central government in the public interest or it is an unchallenged attempt of the central to supersede the Sates powers resulting in more centralization and thus violating the constitutional prescription of federalism. Unfortunately the same issue has not been raised and contended by the states so far.
6

Armed rebellion-substituted by the Constitution (Forty Fourth Amendment) Act 1978, S 37, for internal disturbance. 7 The Article also states that while a proclamation of emergency declaring that the security of India or any part of the territory thereof is threatened by war or by external aggression is in operation, nothing in Article 19 shall restrict the power of the State...to make any law or to take any executive action... According to Article 358 as it existed prior to the year 1978 as soon as the proclamation of emergency was made under Article 352, Art. 19 was suspended. However, by virtue of the Forty Fourth Amendment, Article 19 is not suspended in case the proclamation of emergency has been issued on the ground of armed rebellion. Article 358 makes it clear that instances occurring, things done or not done during the period of emergency cannot be challenged even after emergency is over. The suspension of fundamental rights is complete during the period in question and legislative and executive actions which contravene Article 19 cannot be questioned. Furthermore Article 359 of the Constitution, as originally enacted, provided that when a Proclamation of Emergency was in operation, the enforcement of any fundamental right may be suspended by the issue of a Presidential Order.

impunity the legislature, and promulgate a spate of ordinances which are patently unconstitutional. Ordinances can be passed only when necessity compels immediate action while the legislature is not in session (Articles 123, 213 and 239B), where as ordinances are being regularly passed in India just before the session of the legislature is to begin so as to confront the legislature with an accomplished fact, or just after the session is over.8 All the schemes of nationalization of individual undertakings or entire industries
Regional and international instruments of human rights also reflect the same trend. For example, Article 15 of the European Convention on Human Rights (ECHR) permits the Contracting States to take measures derogating from their obligations under the Convention in respect of the guaranteed fundamental freedoms in time of war or other public emergency threatening the life of the nation." Article 4 of the International Covenant on Civil and Political Rights of 1966 (ICCPR) provides for suspension of the human rights guaranteed by the Government in time of public emergency, which threatens the life of the nation. There is a similar provision, Article 27, in the American Convention on Human Rights, 1969 (ACHR), which empowers suspension of human rights guaranteed by the Convention in time of war, public danger or other emergency that threatens the independence or security of a State Party. At the same time it is also recognized that there are certain basic human rights, which cannot be suspended during any kind of emergency, be it war or armed rebellion or civil insurrection. These rights are so basic that to suspend them destroys the basis of a civilised State and the Rule of Laws. Indeed, they are so fundamental to the human personality that without them human life is either not possible (e.g. protection of the right to life) or civilised life becomes impossible and meaningless (e.g. freedom from torture and cruel treatment, right to fair trial). These rights represent a core of essential human values. There is similarity between this thinking and the doctrine propounded by our Supreme Court that there are certain essential features of the Constitution, which from its core or basic structure and are unamendable. Furthermore, certain rights have no real nexus with the purpose of the emergency in the sense that their suspension does not facilitate or advance the achievement of the objective of the emergency and therefore their suspension is unnecessary. For example, for effective prosecution of war or for quelling an armed rebellion it is not necessary to suspend the guarantee of immunity from imprisonment for inability to fulfil contractual obligations. H.V. Kamath, the stormy petrel of the Constituent Assembly, urged that there are certain guaranteed fundamental rights which cannot be abrogated in any eventuality, not even in case of the gravest emergency. He gave the example of the provision abolishing untouchability and asked, Do you mean to say that when there is an emergency we can permit the observance of these taboos and will not take any action on those who enforce untouchability in any form on anyone else. After referring to cultural and educational rights, he was emphatic that there are certain rights which cannot be suspended in any case, however grave the state of emergency be. Shibban Lal Saxena vigorously supported this point of view, There are some articles in this Chapter that have nothing to do with emergency. Why should they be suspended? If this article comes into operation, discrimination can also be practiced. And that would go against the spirit of the Fundamental Rights. Mahavir Tyagis objection to the article enabling suspension of the right to move the Supreme Court for enforcement of fundamental rights was forceful and unequivocal, Even i f the whole house agrees to arm the government with such powers even in the case of an emergency, I for one wish to bring it on record that I am opposed to this, now and ever. I think the rights of an individual to move the judiciary should not be taken away in any circumstances. He was almost prophetic, many rich and precious lives, the lives of many a learned and the patriots will be danger if this pernicious article is allowed to creep into the Constitution. Unfortunately these far-sighted pleas did not prevail. Alladi Krishnaswami Ayyar, supporting the emergency provisions deftly blunted them by conceding that there are rights that do not need a suspension during the period of war. Such rights will not, and cannot, be suspended. He argued that instea d of singling out particular clauses, it is left to the President, who I have no doubt will act in a reasonable and proper manner, not in a spirit of vandalism against the fundamental rights guaranteed to the citizen in the Constitution.
8

In promulgating an ordinance, a government should have two prime considerations if it were to hold out an assurance to the people of its competence and capacity in the matter. The first of these is a Cabinet decision on any extraordinary situation that necessitates the use of the powers under the 'Legislative Power of the President' of Article 123 of the Constitution, and the second is the assured support of each House of Parliament for the promulgation of the ordinance and for the passage of any bill that would be introduced to replace it. The first

are invariably kept back while the legislature is in session and are promulgated only in the form of Ordinances. In several states, Ordinances are passed before the legislative session, are allowed to lapse during the session, and are promulgated again after the session. The Constitution contemplated that a judiciary invincible in independence would be the main safeguard of the people against the authoritarian and monolithic State. One of the most reprehensible deviations from the Constitution is the unabashed attempt to weaken that bulwark. The subject, being of immeasurable significance, is dealt with in a separate chapter.9

stage is a constitutional action, in which Parliament is not involved. The second stage arises when the ordinance is placed before Parliament, which has the power to control the action of the executive in issuing the ordinance and in enacting a law to replace it. (Perverting the Constitution An article by Era Sezhiyan, former M.P. ) An ordinance has the same force and effect as an Act of the legislature, it is meant to be used sparingly and only in an emergency and or when the legislature is not in session, However there have been occasions when the Executive has almost taken over the role of legislatures( Jain M.P, Indian Constitutional Law, 5 th Edition, LexisNexis Butterworths Wadhwa, Nagpur, 2008). Among one of the many cases, is the instance in which the Bihar Sugarcane (regulation of supply and purchase) Ordinance was kept in force for more than 13 years through the process of re-promulgation instead of seven and a half months as envisaged by the constitutional provisions. Many other ordinances were continued for years without ever being brought before the legislature for approval. The Constitution Bench headed by Chief Justice P.N. Bhagwati in D.C. Wadhwa v. State of Bihar (AIR 1987 SC 579) observed: "The power to promulgate an Ordinance is essentially a power to be used to meet an extraordinary situation and it cannot be allowed to be 'perverted to serve political ends' . It is contrary to all democratic norms that the Executive should have the power to make a law." The court also emphasized that under the Constitution, the primary law-making authority is the legislature and not the executive and the ordinance making power is in the nature of an emergency power. In the concluding paragraph of this judgment, the court made a strong indictment: "It is a settled law that a constitutional authority cannot do indirectly what it is not permitted to do directly. If there is a constitutional provision inhibiting the constitutional authority from doing an act, such provision cannot be allowed to be defeated by adoption of any subterfuge. This would clearly be a fraud on the constitutional provision."
9

See A Judiciary made to measure. p.93.