Monday, February 23, 2015

Preamble ad controversy — IT IS NO 'TREASON', MR SACHAR

Preamble ad controversy

By Amba Charan Vashishth

The veteran jurist and former chief justice of Delhi High Court, Mr. Rajinder Sachar has taken undue offence to the watermark of the Preamble to the Consitution in an advertisement appearing without the words "secular" and "socialist". In his article which appeared with the same caption , "This is treason, Mr Prime Minister" in the The Statesman on February 12, in the weekly Mainstream on February 14 and The Hindu as also in the Muslim Mirror. These words were inserted in 1976 Amendment to the Constitution while the ad was issued on the occasion of the 66th anniversary of India's Republic when these words did not form part of the Preamble. He dubs the action as "treason". This is not the case.

The line of argument taken by a person of the stature of Rajinder Sachar in his article, ”This is treason, Mr Prime Minister” published in various national newspapers and periodicals in February is appalling. One is surprised at his understanding and appreciation of the fact, law and the situation of an “unimaginable crisis…gripping our country”, something nowhere visible.
He takes offence to a government advertisement carrying the watermark of the Preamble to the Constitution on the occasion of the 66th anniversary of our Republic on January 26. How could the omission of the words “secularism” and “socialism” become a “devious interpolation” when these words were not there in the Preamble in 1950? Moreover, January 26 marked the 66th anniversary of the 1950 Preamble and not of the 42nd Amendment to the Constitution which “interpolated” the two words in 1976. In fact, it would have been insertion of these two words on the occasion of the 66th anniversary that would have constituted what he calls a "devious interpolation".
It has also been pointed out that a similar advertisement bearing the watermark of the 1950 Preamble too was published in 2012. But to Sachar, for reasons best known to him, it did not constitute “treason”. There is hardly any overt or covert reason for Sachar to jump to anticipate that the NDA government wishes to delete the words “secularism” and “socialism”. He quotes Union Minister Ravi Shankar Prasad expressing his opinion to “delete” secularism although nothing of the sort appeared in the media. Even if Sachar is rightly quoting Prasad, the latter had every right to exercise his constitutional right to personal opinion and expression. We also know that a single individual cannot amend the Constitution.
Sachar quotes the Keshvanand Bharati case to say that the Parliament has no right to change the basic structure of the Constitution. But this SC judgement applies as much to the 1976 amendment to the Constitution as to any a future government may think of. If that amendment did not change the basic structure of the Constitution by inserting the two words, how will any future amendment to remove these words do?  The present Parliament is as much representative and competent to amend the Constitution to delete the two words from the Preamble to the Constitution as was the then Parliament to insert these in 1976 during emergency.
The 1976 Amendment was in itself a political ploy in the guise of national interest. Sachar himself quotes Dr. B. R. Ambedkar stating in the Constituent Assembly: “If these directive principles to which I have drawn attention are not socialistic in their direction and in their content, I fail to understand what more socialism can be”. The Supreme Court alluded to the same impression: “Though the word “socialism” 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.”
Sachar claims that “Dr. Ambedkar refused to do so (incorporate the word “socialism” in the Preamble) for technical reasons”. He stands contradicted by the latter's speech in Constituent Assembly where he emphatically declared: “I don’t see why the Constitution should tie down the people to live in a particular form and not leave it to the people themselves to decide it for themselves”. Why should the future generations of Indians be perennially bound constitutionally to a particular way of live and live in a particular form of society and government?  Why should the people in a democracy be perpetually denied the right to choose or change the system of economy they likein changed circumstances?
Even without these two words the various Articles virtually make the Constitution "secular" and "socialist" because it prohibits discrimination on grounds of faith and provides for equal opportunities and rights to all irrespective of caste, creed, sex and region.
The Prime Minister and his cabinet did take oath that “they will bear true faith and alligience to the Constitution of India as by law established”. Nowhere have they implicitly or explicitly hinted their intention not to abide by their oath. Therefore, there is hardly any rationale to demand and the PM to oblige to reiterate their resolve just to satisfy the imaginary fears of some persons. If Sachar’s argument was stretched further, that would inversely mean that Parliament cannot amend the Constitution because the MPs had on oath declared to abide by the Constitution.
There  seems  to be a deliberate design in leaving the two words undefined to let different people and parties the unbridled liberty to interpret these differently in their own way to suit their political purpose at a particular point of time and place. It is because of this that every leader and political party enjoys the unrestrained freedom to claim to be 'secular' and to dub the opponent 'communal'. Even those political organizations whose membership is restricted to a single community claim themselves to be 'secular'.
Mentioning "secularism" is meaningless unless defined and codified. And when was the Hindu (Indian) society not secular?  No concept could be more secular than that of sarv dharma sambhav (every faith was equal).  The founding fathers of the Constitution had refrained from inserting the word “secular” only because they never doubted that Hindu society could ever be not secular.
The insertion of the word “socialist” without defining too is as much a misnomer as is “secular”. Socialism means different things to different people in different countries. USSR, now Russia, China, Cuba and many other countries are ‘socialist’ ones but socialism varies from country to country. Many of our political parties claim themselves ‘socialist’ but their concept of socialism is not one and the same. It changes with the person and the party. During last assembly elections Mamta Banerjee defeated CPM led left front government in West Bengal and replaced it with a TMC one.  But interpreting this change as defeat of communism-socialism and advent of a capist regime would be patently wrong. Therefore, calling the country a “socialist” republic is as vague and incomprehensible as “secular”. 
In reality the mere saying so in the Preamble does not make the Indian government, political parties and the people "secular" and "socialist". These two words are not a panacea for all the ills of secularism-communalism and poverty facing the country. Despite their being in the Preamble, neither has communal harmony become the order of the day, nor have the communal riots become a thing of the past nor is socialism ruling the roost. During the last about forty years of the country having been declared "socialist" constitutionally, poverty has just not vanished. The gap between the rich and the poor continues to widen. 
Going by the Sachar logic, exercising their fundamental right to opinion and to express it against the Amendments to the Constitution by individuals or parties or challenging these in courts amounts to "treason" in this "secular" and "socialist" Republic of India. But section 124A of the Indian Penal Code provides: "Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards… the Government estab­lished by law in India … shall be punished with im­prisonment for life…" How does the words and actions NDA government amount to "treason" only the jurist in Rajinder Sachar can explain.              ***

The writer is a Delhi-based political analyst.

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