## Tuesday, January 15, 2008

### India - a socialist secular democratic republic'?

This blog entry is joint work with Kaushik Krishnan.

A fascinating episode is taking place in, what I hope, is the unfolding improvement of the Indian constitution.

### Background

In 1951, the Representation of the People Act' was enacted, which demands that any political party must state, in an affidavit, that they would adhere to the principles of the preamble to the constitution.

Then the Constitution was amended in 1976 by the Constitution (Forty-Second) Amendment to put the word socialist' into the preamble. Combining these two facts implies that today in India, every political party is forced to adhere to the precepts of socialism. Barun Mitra tells this story in Mint, and you might like to read my earlier blog post on the Emergency of 1976.

### Socialism?

(Image credit). What does the word socialism' mean? Here are some definitions from dictionary.com and Merriam-Webster online:

Dictionary.com Unabridged
1. a theory or system of social organization that advocates the vesting of the ownership and control of the means of production and distribution, of capital, land, etc., in the community as a whole. 2. procedure or practice in accordance with this theory. 3.(in Marxist theory) the stage following capitalism in the transition of a society to communism, characterized by the imperfect implementation of collectivist principles.
American Heritage Dictionary
1. Any of various theories or systems of social organization in which the means of producing and distributing goods is owned collectively or by a centralized government that often plans and controls the economy. 2. The stage in Marxist-Leninist theory intermediate between capitalism and communism, in which collective ownership of the economy under the dictatorship of the proletariat has not yet been successfully achieved.
Wordnet
a political theory advocating state ownership of industry 2. an economic system based on state ownership of capital
American Heritage New Dictionary of Cultural Literacy
An economic system in which the production and distribution of goods are controlled substantially by the government rather than by private enterprise, and in which cooperation rather than competition guides economic activity. There are many varieties of socialism. Some socialists tolerate capitalism, as long as the government maintains the dominant influence over the economy; others insist on an abolition of private enterprise.
Merriam-Webster
1: any of various economic and political theories advocating collective or governmental ownership and administration of the means of production and distribution of goods 2 a: a system of society or group living in which there is no private property b: a system or condition of society in which the means of production are owned and controlled by the state 3: a stage of society in Marxist theory transitional between capitalism and communism and distinguished by unequal distribution of goods and pay according to work done

None of this seems, to me, to be a part of the idea of India.

### Challenge at the Supreme Court

The Supreme Court was recently asked to think about this situation by the Good Governance India Foundation'. See:

Fali Nariman, arguing for the petitioners, said that changing a word in the preamble amounts to changing the basic structure of the constitution and requires scrutiny as with the basic structure' doctrine. But this is going to be a tough argument to pull off since the Supreme Court has said that the objectives specified in the Preamble (socialism being one of them) contain the basic structure (Kesavananda Bharati v. Union of India, Excel Wear v. Union of India). Aparently some time ago, an attempt to revive the Swatantra Party was blocked by the election commission because this party was not willing to say that it adhered to socialism.

The bench, headed by Chief Justice K. G. Balakrishnan, refused, saying:

Why do you define socialism in the narrower sense as the communists do? ... Why don't you go by the broader definition which mandates the state to ensure social welfare measures for all the citizens as a facet of democracy?

I'm pretty clear that the word democracy' and the words social welfare' are very different and do not have to go together. The former is unquestionably the core idea of the modern State worldwide; the latter is a controversial vision of the State that originated in Europe and has been having a lot of trouble the world over. Perhaps our Chief Justice should consult a dictionary to know what socialism' means. Did he just blow a chance to make it into the history books?

The story that seems to be at work is that the words in the Preamble are defined by the Supreme Court through its judgments; dictionary meanings do not matter. The Court seems to have always favored defining socialism in loose, vague and highly idealistic terms. Indian socialism'' is said to be about what the Constitution of India wants to have for the people of India. In the past the Supreme Court has said that socialism is about ending poverty, ignorance, disease and inequality of opportunity. This socialist concept ought to be implemented in the true spirit of the Constitution (G.B. Pant University of Agriculture and Technology v. State of Uttar Pradesh). The Court has also said that the basic framework of socialism is to provide a decent standard of life and security to the working people (D.S. Nakara v. Union of India). As recently as last year, it was held that socialism is one of the systematic and structural principles underlying the Constitution (M. Nagraj v. Union of India).

I find it very odd, that the Constitution of a country utilises a word that has a certain mainstream meaning in the dictionaries, but that word actually means something different - on the ground - as compared with what any citizen would think. What do we want every citizen of India to think about what the Constitution of India says? Should the Constitution - or atleast the preamble to it! - not be written in plain English?

There has been a recent trend in which the Supreme Court has, only slightly, been promoting liberal ideas (State of Punjab v. Modern Breweries, BALCO Employees Union v. Union of India). But in most of these cases, the Court cleverly skirts the issue of socialism'.

Legal experts say the Court will never say that socialism should be deleted, for two reasons. The first, a reason that isn't as relevant today as it was during Mrs. Gandhi's rule, was the fear that judges who spoke out against State Policy would be transferred or superceded. The second reason is that the judiciary is not the organ of the State that can change the Constitution. At most, it can make sure that the Legislature creates law within the framework that the Constitution allows. But it cannot create law. More importantly it cannot delete law. But all hope is not yet lost, while the PIL that sought to remove socialism from the Constitution was dismissed, the PIL that seeks to remove the socialist ideology as a necessary requirement of all political parties has been admitted.

In the US, the original drafting of the Constitution was a brilliant one, and in 1791 the First Amendment was put into place which upholds freedom of speech. It was only in the 20th century that a series of judgments fashioned the full implications of the First Amendment into the defence of freedom of speech as we understand it today. This required courageous judges, who interpreted the (brilliant) text as meaning that the government cannot ban offensive speech, except to prevent a threat of serious and imminent harm. We can yearn for such judges. But the courts can only follow up on sound drafting by seeing it through to the full consequences. The drafting has to first be sound. In India's case, we have had a weak starting point to start with, and a history of faulty amendments.

### Fixing the preamble vs. fixing the RPA

In the great two-part article by Shubhankar Dam mentioned above, he says:

Incidentally, a proposal to amend the RPA and delete the reference to socialism was introduced in the Parliament in 2005. In a remarkable speech in the Upper House of Parliament, MP Anantrao Joshi submitted eight arguments for amending the RPA and deleting the socialist pledge.

First, India's freedom struggle, Joshi said, did not have any significant connections with socialist ideology. Neither Gandhi nor Patel expressed any sympathies for socialism. Patel, on the contrary, he said, compared the socialist in India to a dog walking under the bullock cart, which thinks that it is driving the bullock cart. And while Nehru was personally committed to socialism, he acknowledged that the majority in the Congress party did not share his views.

And this opposition to socialism, he added, explains why the word was omitted from the Constitution in its original text. Socialism was inserted only in 1977 as an afterthought by some vested political interests.

Secondly, his opposition to socialism, Joshi said, was borne out of his belief in the right to dissent. I am not an anti-socialist, he declared. But it was only after visiting the erstwhile USSR that he came to realise the significance of his right to dissent, of protecting his right not to be a socialist. By necessarily requiring every political party to swear by socialism, the RPA, he said, did not allow space for disagreeing with socialism.

Thirdly, his opposition to socialism, he said, was borne out of personal experience. Based on his belief that state intervention in artificially controlling the prices of agricultural commodities was detrimental to the interests of farmers, he decided to form a political party to lobby for the interests of the farmers in India. But his application was rejected by the Election Commission because he refused to affirm his commitment to socialism. Swearing by socialism to gain the status of a political party would be rank dishonesty, he said, and he did not want to do that.

Fourthly, the RPA, he thought, promoted hypocrisy. There were many parties in India that did not believe in secularism. And similarly, there were many left-wing parties that did not believe in democracy. And yet the Election Commission was reluctant to act against them because they had, even if falsely, sworn to uphold secularism and democracy respectively. The law, he argued, should not reward (or tolerate) hypocrisy while penalising honesty.

Fifthly, a mere commitment to socialism meant nothing. The term, he thought, was incorrigibly vague and has been applied to a large spectrum of theories over the last two centuries. The term has been associated with a wide number of thinkers including Saint Simon, Robert Owen, GB Shaw, GDH Cole and John Keynes. However, when used without any qualifications, the term socialism, he added, is interpreted to refer to the system of thought propagated by Marx, Engels and supplemented by lesser prophets like Lenin, and Stalin.

And certain traits of mainstream theory of socialism, according to him, were clearly opposed, if not repugnant to the basic principles and structure of the Constitution of India: for example, class-contradiction, atheism, and dictatorship of the proletariat. In other words, socialism at best was too vague and at worst contradictory to the basic principles of the Indian Constitution.

Sixthly, the RPA, he argued, was violative of the right to equality. Individuals taking oath to hold public offices under the Constitution do not need to affirm their commitment to socialism: they merely affirm their true faith and allegiance to the Constitution. But political parties cannot be recognised unless they specifically affirm their commitment to socialism and this, he thought, was violative of the right to equality under Article 14.

Seventhly, the RPA, he argued was also discriminatory. Only parties had to affirm their belief in socialism. The RPA did not require individuals desiring to stand for elections to make any commitment to socialism. This differentiation, he thought, was wholly arbitrary and violative of the right to equality.

Finally, Joshi submitted that by tying all political parties to a particular economic ideology, the law denied the possibility of change by legal means. By appropriating the entire legal space for socialism, the RPA, he said, left no room for advocating change.

This meant that the RPA prevents committed and sincere non-socialists from agitating as an organised force and trying to get the Constitution modified in their favour by entering the Legislative State Assemblies as also the Parliament.

Not surprisingly, Joshi's arguments created a tumult in the Upper House: many staunchly opposed his amendment. EM Sudarsana and Jairam Ramesh reiterated the usual socialist banter about social and economic justice and riled against the exploitative nature of capitalism.

And with Anantrao Joshi refusing to withdraw the amendment, the proposal was put to vote. The motion was negatived: majority of the members voted against it (i.e., they voted in favour of retaining socialism in the RPA).

Why? As Indias foremost criminal lawyer, Ram Jethmalani, pointed out during the debates: To oppose socialism is a very unpopular thing. While in personal agreement with Joshi's argument, he advised his friend to withdraw the amendment: I want to tell my friend, he said he has no chance of getting this Bill through this Parliament.

But, he added, in the Supreme Court of India, [Joshi] is bound to succeed on the constitutionality of the provision. A conscientious NGO has finally brought the matter to the SC.

### A new liberal philosophy?

While one gets these disappointing statements from the Supreme Court, there are also some very interesting things going on. As an example, see Requiem for a principle by M. J. Antony in Business Standard which describes how the Supreme Court has nicely buried the notion that the State should enforce the notion that two people should get the same pay for the same work:

Though the Constitution asserts that the Directive Principles of State Policy listed in Part IV are not enforceable and are guiding principles in making laws, a zealous Supreme Court once tried to elevate one of them to the status of a fundamental right. In 1982, the Supreme Court ruled in the case of a bus driver of Delhi, that though the principle of equal pay for equal work is a directive principle, it could be considered as a fundamental right of the workers (Randhir Singh vs Union of India). It was the first and last time that a directive principle was anointed with the sanctity of a fundamental right. The experiment has failed, as recent judgements of the Supreme Court show.

The latest judgement delivered in the case of a tractor driver of Punjab (State of Punjab vs Surinder Singh) diluted the principle so much that it has been emptied of all practical utility. The court summed up the position thus: The principle of equal pay for equal work has undergone a sea change. Earlier the view of the Supreme Court was that if two persons are discharging the same functions, they will be entitled to the same wages. Subsequently this view has been changed and now the view of this court is that there should be complete and total identity between the two persons similarly situated so as to grant equal pay for equal work.

The court began having second thoughts on the application of its own principle in the nineties. In State of Haryana vs Jasmer Singh (1997), it observed that the principle was not easy to apply. There are inherent difficulties in comparing and evaluating the work of different persons in different organisations. Persons doing the same work may have different degrees of responsibilities, reliabilities and confidentialities, and this would be sufficient for a valid differentiation, the judgement explained. The court, therefore, left the decision to the administrative wisdom and bonafides of the employers, though it would be a value judgement.

This year saw further assaults on the principle. In the Indian Drugs & Pharmaceuticals case, the Supreme Court stated that granting pay scales is a purely executive function and the court should not interfere with it. It may have a cascading effect, creating all kinds of problems for the government and employers. In SC Chandra vs State of Jharkand, involving the staff of schools run by Hindustan Copper Corporation and Bharat Coking Coal Ltd, the court openly said that the principle was creating havoc. All over the country, different groups were claiming parity in pay with other groups.

The Supreme Court went so far as to say that if the court enforced the principle, it would violate the principle of separation of powers enshrined in the Constitution. Citing Madison, it said that all power was of an encroaching nature and judicial power is not immune to this human weakness. It must also guard against encroaching beyond its proper bounds, and not the less so since the only restraint upon it is self-restraint.

The court, therefore, recommends that the judiciary should keep out of the field. The equation of posts and salary is a complex matter which should be left to an expert body, it said in State of Haryana vs Secretariat Personal Staff Assn. The courts must realise that the job is both difficult and time-consuming which even experts having the assistance of staff with requisite expertise have found difficult to undertake.

Another area where a recent judgment suggests some new ideas are in the air was about women working in bars.

LaTeX mathematics works. This means that if you want to say $10 you have to say \$10.