Sanjay Raman Sinha: Just five days after proclamation of the Emergency, you as a JP movement student leader were the first person to be arrested under MISA (Maintenance of Internal Security Act). Thereafter, you were released on the basis of a historic decision of the Supreme Court rendered by stalwarts like Justice Bhagwati and Justice YV Chandrachud. (Ram Bahadur Rai vs The State Of Bihar, 1974). Taking that into account and also the fact that today when arrests under strict laws like UAPA, NSA are happening, it seems that bail is not a rule, but the exception. How do you see the promise/ guarantee of personal liberty of the Constitution and the role of the Judiciary in this regard? How much hope is there that if the system oppresses then the Constitution and the judiciary will help?
Ram Bahadur Rai: When the Constitution got written, basic rights, including freedom of expression were included. All the rights of citizens were covered by seven fundamental rights. However, a few months after Independence, Jawaharlal Nehru and some state governments started facing problems. Nehru was very agitated. It is borne out in his letters to the state governments. Then it was Nehru who moved an amendment at the provisional parliament proposing curtailment of freedom of citizens and the press.
On May 12, 1951, he placed an amendment in the provisional parliament. The Constituent Assembly had been converted into provisional parliament or Lok Sabha. Nehru placed his amendment proposal in this temporary parliament.
So, the first amendment in Indian constitution is that of curtailment of citizens’ rights. Due to this amendment, all the repressive sections of IPC were revived. The amendment gave undue powers to the police as they were now expected to bring protesters to jail. So, the repressive laws have continued from 1951.
However, now the question is not merely of citizens’ rights; issues of national security and conspiracy have also been taken into account. Threat is also from Pakistan supported modules operating on Indian soil.
So, police activity against anti-national elements and their arrest is on the rise. Since the police arrests the accused on prima facie basis, in the process innocents are also apprehended.
I think that the course correction initiated by Nehru in 1951 of curtailment of rights should be stopped. There should be no downsizing of citizens’ rights. There should be no curbs on the freedom of expression. A separate act should be made for control of anti-national acts and citizens’ rights shouldn’t be clubbed with it. The basic freedoms of citizens which have been enshrined in the Constitution should be preserved.
SRS: At the release function of your latest book Bharatiya Samvidhan: Ankahi Kahani (Indian Constitution: Untold Stories), Prime Minister Narendra Modi had said that synergy of rights and duties makes our Constitution so special. However, there are also the Directive Principles of State Policy which acts as “conscience of the Constitution”. At the operational level, is there a clash between all these basic elements of the Constitution?
RBR: There is no clash between Fundamental Rights and Directive Principles of State Policy in the Constitution. PM Modi said that Constitution awakens a sense of responsibility in the citizen towards his/her rights. There are three things in Constitution which can be construed as its soul. These are the Preamble, the Fundamental Rights and the Directive Principles of State Policy. The Preamble encapsulates values of our culture, life, philosophy, society and the political system, among other things. The whole Constitution should be guided by the Preamble. The Fundamental Rights are an extension of the Preamble. The vision, hopes and promises of our freedom fighters have been enshrined in the Fundamental Rights. The duties of the citizens to rebuild a new India is encoded in the Rights’ section. It is a later entry.
Dr Ambedkar in his address on November 25, 1949, said that the political democracy that we are going to establish will be enduring only when we will lay the foundation of an concomitant social democracy. To actualize this social democracy, the Directive Principles of State Policy have been conceptualized. When the Constitution draft was in the final stages, some persons close to Mahatma Gandhi pointed out that the Constitution is not reflecting the thoughts and values of Gandhi. Rajendra Prasad wrote to Sir Benegal Narsing Rau, who was an adviser to the Constituent Assembly, to include Gandhian values. Since most of the Constitution was already drafted, many concepts dear to Gandhi were included in the Directive Principles of State Policy. Ideas like gram swaraj, rural reconstruction and development, cow protection and uniform civil code thus found their place in the Directive Principles. The Directive Principles are a means to invoke the constitutional awareness in every citizen of the country.
SRS: Historically speaking, there were two instances in different points of time to rewrite or review the Constitution. One by the Congress and the other by the NDA. How do you see these two efforts retrospectively? Should the Constitution be rewritten, reviewed or just left to evolve on the basis of amendments?
RBR: There were two efforts aiming for different goals. The Sardar Swaran Singh Committee was set up by the Congress in 1976, and on the basis of its recommendation, the 42nd amendment was effected. During those times, Indira Gandhi’s “Garibi Hatao” slogan had failed miserably and she was in political trouble.
The Swaran Singh Committee was formed to give support to Indira Gandhi. The group close to her floated three ideas—committed bureaucracy, committed judiciary and committed political party. These ideas added up towards a dictatorial and totalitarian regime. The 42nd amendment is a crude rewriting of the Constitution.
The National Commission to review the working of the Constitution, also known as Venkatachaliah Commission, was set up by a resolution of the NDA government led by Atal Bihari Vajpayee on February 22, 2000. In fact, in 1997, Vajpayee had suggested that the Constitution should be reviewed. A decade after Independence, Jayaprakash Narayan had said that 10 years have passed since Independence and a review of the Constitution is due.
In 1959, the democratically-elected Left Front government in Kerala was dismissed by Indira Gandhi. This brought about the debate on centre-state relationship. Now, Vajpayee didn’t choose someone from his group or party to review the Constitution. He requested Justice MN Venkatachaliah, the 25th former chief justice of India, to head the Committee. Later, when it was alleged that this was an effort to dispossess the backward classes and castes of their rights, the government stated in Parliament that the exercise was aimed at reviewing the Constitution and was not intended at changing the basic structure of the Constitution. The report was submitted, but till now no action has been taken on it.
SRS: The Supreme Court has recently upheld the validity of the 10% reservation to the economically weaker section (EWS) under the 103rd Constitutional Amendment. However, the majority verdict opined that it is time to revisit reservation, it can’t be prolonged indefinitely. Now, there is a conflict between equality of opportunity and affirmative action in the form of reservation. The equation between caste, class and economic deprivation has also become intractable. How do you see the reservation situation?
RBR: This is a verdict of the Constitution bench. The lawmaking powers are with the Legislature, and it can make laws without any constraints. However, these laws can be judicially reviewed by the courts and the Judiciary has absolute freedom to review and approve or impugn the laws.
The Supreme Court is the guardian of the Constitution and I welcome the verdict. It is an accepted fact that caste-based economic backwardness exists. There is also another fact. Many from the upper castes also suffer from economic deprivation. They also need affirmative action to improve their lot. There should be no vested interest in reservation. People who have changed their religion from Hinduism to say Islam, Sikhism or Christianity shouldn’t get reservation benefits as there exists no caste discrimination in these non-Hindu religions. In fact, the Constituent Assembly had said that caste discrimination is a problem of Hinduism. This aspect needs to be added in the reservation policy. Of course, the Supreme Court has to look into this matter.