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Revisiting the Constitution Part 1: Rule of Law, A Myth Among Unequals

This is part one of a four part series on the Indian Constitution.

“A constitution of myth and denials” is the phrase Sarat Chandra Bose has used to describe the Indian Constitution. The Constitution of India is a living, breathing document; meant to reflect the principal values of the Indian society. However, what does it say about our society, about our democracy, where dissent is curbed, and the law is exploitative? What does it reflect when in the name of development, Joshimath has to crack, and its people be displaced? Though the Preamble claims “We, the people”, where are the people in the siege of Silger? Where are the people of Kashmir, the journalists in Punjab, the countless others locked up under the draconian UAPA and NSA? If this Constitution is of the people that it claims to be, why is that the Indian democracy has scored as low as 46 as per the EIU’s 2021 Democracy Index? (Deccan Herald, 2021) If this Constitution is of the people, ask yourself which people is the Constitution for?

When the British came into India, it was in the form of East India Company with the purpose of trade. In a bid to expand trade, they conquered India till it was governed by the Crown as a British colony. Though the British have left, and the transfer of power is complete, India is not free- and therefore, neither is its constitution. The law must be understood in terms of the society it develops from for it to make sense. With caste-based land relations combined with an invasion of foreign capital, India is an economy which is semi-feudal and semi-colonial in nature. This system is maintained by Brahmanical Hindu fascism in India. Such is the nature of India’s Constitution itself, reflective of the society it embodies.

Mughlai artistic depiction of Indian servitude to the British East India Company

Equality Amongst “Unequals” is not Equality: The Farce of Rule of Law

To understand Indian society, we must go back to India in the 1940s. The purpose of the constitution has always been representative of the dominant political and economic interests of the ruling class. The Constituent Assembly’s members were not elected and were further restricted by a franchise of about 11.5% of people, chiefly owners of property (Ghosh, 2001). This shows how the Constitution is reflective of the interests of the landed, ruling class.

Meanwhile, Article 14 claims that the state will not deny anyone equality before the law or equal protection of the law. This may be curbed through “reasonable restrictions” and “public interest”. Really, equality as provided by the Indian constitution is a farce and “reasonable restrictions” an excuse to further the interest of imperialist-comprador nexus.

In India, bureaucratic capitalism, that is exploitation driven directly by the state bureaucracy in close alliance with the comprador big bourgeoisie at the service of imperial interests, is rampant. The public-private partnership mode of development is reflective of the same. In Lucknow’s Chaudhary Charan Singh International Airport, Adani is investing 1.2 billion USD in a project that requires a land expansion by more than 460 hectares. The expansion will be undertaken by the Indian state which will wrestle land using its legal capacity (Shri Rishi and Mukundan, 2023).

To refer to the India’s political economy of “violence, terror and illegality”, Baxi cites Marx when he called law the “the instrument of theft of the people’s land”. Baxi describes law as a resource of capitalist primitive accumulation, its absence is the enabler of private legislations whose purpose is to exploit, to extract surplus value. Such “bloody legislations” ordain use of physical force, collective atrocities, sexual exploitation, beggary, and other forms of servitude (Baxi, 2000). This violence is undertaken by the state, by the privatisation of labour and through the method of bureaucratic capitalism.

The capitalist exploitation of labour is replete in the labour law legislations governing India. Take the necessity of the 14-day notice period required to be given by trade unions in the event of a strike under Section 22(1) of the Industrial Disputes Act, 1947. Such a notice enables the employer, the capitalist, to suppress dissent due to which the strike may be rendered toothless.

Strike of the Maruti workers in Manesar against the repressive labour practices of Maruti Suzuki corporation

Right to Property is not a Fundamental Right: The 44th Constitutional Amendment

The Constitution of India used to have the “right to property” as part of its fundamental rights under Article 19, but through a series of cases, this fundamental right was removed from the constitution via the 44th Constitutional Amendment Act, 1978. Before, this amendment, Article 19(1)(f) guaranteed Indian citizens a right to acquire, hold and dispose of the property while Article 31 categorically said that no person shall be deprived of his property. However, this provision was proving to be cumbersome to the imperialist-comprador classes since it made land acquisition a difficult process.  In the removal of property as a fundamental right, the justification given was that the newly inserted Article 300A aimed to discourage the zamindari system and to redistribute land to the landless people of India.

The right to private property is something which is restricted by the doctrine of eminent domain which states that the state may take land for public purpose, provided that sufficient compensation is given to the landowner. In Bajranga v. State of Madhya Pradesh (2021), the Supreme Court ruled that deprivation of land can only be done in conformity with legal procedure. However, it must be noted that while formal procedure might exist in law, not all those governed by the law are equally subject to it.

Take the numerous times the Panchayat (Extension to Scheduled Areas) Act, 1996 has been bypassed. Read with the provisions of the Fifth Schedule, Article 244(1) provides that areas which are predominantly inhabited by Adivasis have been notified as “Scheduled Areas” due to which special rights are conferred on them. Through the 73rd and 74th Amendments, the creation of Panchayats, Nagar Panchayats and Municipalities read with Article 244(1) lead to the enactment of the Panchayats (Extension to the Scheduled Areas) Act of 1996 (PESA Act) which specifically empowers the Adivasi Gram Sabhas in the Scheduled Areas to have a say in decision making on all projects and activities in those areas. In both Chhattisgarh and Andhra Pradesh, there are extraneous pressures from mining companies, real estate developers and others to bypass the PESA and along with it, the authority of the Adivasi Gram Sabhas to promote their own interests (Sarma, 2022).

Similar violation of rights of oppressed sections and classes have occurred across India. In Jammu and Kashmir, cultivated land is being declared state land after 50-70 years of the passing of the Agricultural Lands Act, 1948. This is because the “Indian government is keen that more and more non-Kashmiris buy land, and to expedite that process, the government is trying to mark as much land as ‘state land’ and create a land bank” (Nabi, 2023).This is then being resold, but what is interesting to note is that compensation is given by invoking the obsolete State Land Acquisition Act, 1990 instead of The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act (Fair Compensation Act), 2019. This lapse by the authorities is leading to the denial of fair compensation and combined with the fact that J&K’s average land holding is much less than the national average (Bhat 2021), this paints a grim future for the local economy of Kashmir. Resultantly, there is exploitative suppression of the people of Jammu and Kashmir at the hands of the state.

Concluding Remarks

In conclusion, the nature of equality before the law is clear- the worker, the farmer and the oppressed sections are the ones to suffer while the ruling elite reap the benefits of the law. It is not equality which drives law, but class interest which mandates who deserves the right to equality before law.

by Val Varshri, student of law at O.P. Jindal Global University

Download PDF of this article here

References:

  1. Herald, Deccan “India’s score declined significantly in recent years in EIU Democracy Index” Deccan Herald 21st Feb 2022 https://www.deccanherald.com/national/indias-score-declined-significantly-in-recent-years-in-eiu-democracy-index-1080071.html
  2. Baxi, Upendra “Law and State Regulated Capitalism in India: Some Preliminary Reflections” in Capitalist Development Critical Essays Bombay Popular 1990
  3. Ghosh, Suniti Kumar. Indian Constitution and Its Review. Mumbai: Research Unit for Political Economy, 2001.
  4. Sarma, E.A.S. “Attempt to bypass PESA Act in Chattisgarh and Andhra Pradesh” Counter Currents (blog), 14th January 2022 https://countercurrents.org/2022/01/attempt-to-bypass-pesa-act-in-chattisgarh-and-andhra-pradesh/
  5.  Nabi, Daanish Bin “A State-sponsored land grab in Jammu and Kashmir” National Herald 11th February 2023 https://www.nationalheraldindia.com/opinion/jammu-and-kashmir-encroachment-drive-a-state-sponsored-land-grab
  6. Bhat, Raja Muzzafar (2021) https://www.newsclick.in/why-government-acquiring-land-under-repealed-statute-jammu-kashmir
  7. Rishi, Shri and Mukundan “Imperialism in the Air” Nazariya Magazine 17th January 2023  https://nazariyamagazine.in/2023/01/17/imperialism-in-the-air-political-economy-of-airports-in-india/

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  1. Krishna Kant

    There are factual mistakes in the article and analysis is based on preconceived notions, yet worth reading this article, which negates the constitution as the final salvation of the proletarian class and the oppressed people of India!

    Like

    1. NMAdmin

      Dear Krishna,

      Could you elaborate on the factual errors you mentioned here?

      Like

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