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Sunday, November 29, 2015




November 29, 2015

Intended neither as an exhaustive or authoritative or academic study,this  series is erected on the solid foundation of lifelong tracking of the events. It endeavors to guide the youth, particularly those competing for  the IAS etc., to grasp the the Rule of Law, as a concept and its complex operating system.

Machiavelli exhorted his Prince not to kidnap the defeated enemy’s wife and not to deprive him of his property, adding for good measure that murdering his father was in order! Such is the hold of property on one, instead of being the the other way about! It is legal to shoot a trespasser under U.S. Law, to this day; In the UK and in India, such extreme steps are illegal. 

Article 19 of our Constitution guaranteed, inter alia, to all citizens the right to acquire, hold and dispose of property.  Article 31 provided that "no person shall be deprived of his property save by authority of law." It also provided that compensation would be paid to a person whose property has been taken for public purposes. This did not augur well for the socialist ambitions of the newborn Union of India. Zamindari abolition topped the agenda.

The passage of the Resolution on Article 19 by Sardar Patel on Friday, the 2nd May, 1947 calls for reflection by each and every one of us for many reasons. It instructs; its foresight is commendable; no differences with Nehru is manifest. And, then, Independence was still on its way. The ruling party’s agenda was mounted with vigor and consensus.

Clause 19.-Miscellaneous Rights. 
The Hon'ble Sardar Vallabhbhai Patel (Bombay: General): I beg to move clause 19. 

The clause runs thus:
     "No property, movable or immovable, of any person or corporation including any interest in any commercial or industrial undertaking, shall be taken or acquired for public use unless the law provides for the payment of compensation for the property taken or acquired and specified the principles on which and the manner in which the compensation is to be determined."
     I do not expect any amendments to this motion, but if there are any, we shall consider them in time.”
(Amendments Nos. 86 and 87 were not moved.)

After much discussions, he replied to the discussions as under: 
The Hon'ble Sardar Vallabhbhai Patel: 
Sir, the discussion on this question has gone on a wrong track. An amendment was moved by somebody, which has been subsequently withdrawn, but those who took part in the debate assumed that this clause was intended for the purpose of acquiring Zamindaris. That is, to say the least, not understanding the real meaning of the clause. Land will be required for many public purposes, not only and but so many other things may have to be acquired And the State will acquire them after paying compensation and not expropriate them. That is the real meaning of the clause. But the Zamindars or some of their representatives thought that their interests must be safeguarded by moving an amendment or by making a speech here. But they are not going to safeguard these interests in this way. They must recognise the times and move with the times. This clause here will not become the law tomorrow or the day after; it will take at least a year more, and before that, most of the Zamindaris will be liquidated. Even under the present Acts or laws in the different provinces legislation is being brought in to liquidate Zamindaris either by paying just compensation or adequate compensation or whatever the legislatures there think fit. Therefore, it is wrong to think that this clause is Intended really for them. It is not so.The process of acquisition is already there and the legislatures are already taking steps to liquidate the Zamindaris. Therefore, we must not or need not go into the question whether the Zamindars have in the past been patriotic or a nuisance or anything of that kind. It is all irrelevant and we need not go into the past.”

Rather unhappy with the judicial interpretations that were not on all fours with the ambitions of the Executive, Prime Minister Jawahrlal Nehru moved the Constitution (First Amendment) Bill, 1951 on the 10th May, 1951. This was enacted as the Constitution (First Amendment) Act, 1951,  The Statement of Objects And Reasons behind that Bill is as under:

“During the last fifteen months of the working of the Constitution, certain difficulties have been brought to light by judicial decisions and pronouncements specially in regard to the chapter on fundamental rights. The citizen's right to freedom of speech and expression guaranteed by article 19(1)(a) has been held by some courts to be so comprehensive as not to render a person culpable even if he advocates murder and other crimes of violence. In other countries with written constitutions, freedom of speech and of the press is not regarded as debarring the State from punishing or preventing abuse of this freedom. The citizen's right to practise any profession or to carry on any occupation, trade or business conferred by article 19(1)(g) is subject to reasonable restrictions which the laws of the State may impose "in the interests of general public". While the words cited are comprehensive enough to cover any scheme of nationalisation which the State may undertake, it is desirable to place the matter beyond doubt by a clarificatory addition to article 19(6). Another article in regard to which unanticipated difficulties have arisen is article 31. The validity of agrarian reform measures passed by the State Legislatures in the last three years has, in spite of the provisions of clauses (4) and (6) of article 31, formed the subject-matter of dilatory litigation, as a result of which the implementation of these
important measures, affecting large numbers of people, has been held up.

The main objects of this Bill are, accordingly to amend article 19 for the purposes indicated above and to insert provisions fully securing the constitutional validity of zamindari abolition laws in general and certain specified State Acts in particular. the opportunity has been taken to propose a few minor amendments to other articles in order to remove difficulties that may arise.
It is laid down in article 46 as a directive principle of State policy that the State should promote with special care the educational and economic interests of the weaker sections of the people and protect them from social injustice. In order that any special provision that the State may make for the educational, economic or social advancement of any backward class of citizens may not be challenged on the ground of being discriminatory, it is proposed that article 15(3) should be suitably amplified. Certain amendments in respect of articles dealing with the convening and proroguing of the sessions of Parliament have been found necessary and are also incorporated in this Bill. So also a few minor amendments in respect of articles 341, 342, 372 and 376.”

The very first amendment stirred a hornets’ nest. It was shot down Shankari Prasad vs Union of India (AIR 1951 SC 455). Thereby hangs a tale!

Kesavananda Bharathi is the culmination of the first round of exploring the tweaking of our Constitution and was preceded by some interesting constitutional points that were first addressed in Shankari Prasad vs Union of India (AIR 1951 SC 455) and then by two other landmark judgements.