By G.B.Singh (An Essay in two parts)
1 The Setting
Many admirers of India often go out of the way to depict India as the “world’s largest democracy,” … “secular” in which the State through its Constitution guarantees the fundamental human rights to all Indians, the implication being that such given nights are in practice as a matter of daily routine, Yet, dismaying as it may seem, | have never Come across any piece of written information pursued as an analysis on the Indian constitution itself, let alone on those enshrined fundamental rights, Coupled with aggressive Soviet style “active measures” channeled by the Indian government, several intellectuals outside of India have fallen prey to the media blitz, Before analyzing the rights, a few words on the constitution would be helpful to the readers. Indian Constitution {promulgated in 1950) is the longest constitution ever written. As of September 1991, the Constitution of India comprised 395 Articles, 10 Schedules, four Appendices, and interspersed with constitutional amendments totaling more than 75 in number, Then there are amendments of previous amendments; often each amendment encompassing multiple smaller amendments within its charter. Safe to characterize, India’s constitution is the most complicated of all modem political documents available, High placed Indians with some insight into their constitution will often take delight in saying that their constitution is based on sound fundamental principles derived from the constitutions of no less than five great western democracies: Australia, Canada, England, Ireland, and of course, United States. It all sounds great. Even more impressive is when you hear that the Bill of Rights of the U.S. Constitution has made its way into the Indian constitution, This is always followed by a note of special thanks to the framers of India’s constitution paying particular tribute to the likes of Dr. Ambedkar (well-known leader of the Untouchables), who chaired the drafting committee that devised the constitution, Justifiably, a question should be asked. Are all those nice things said, as above, about the Indian constitution true? The answer should at the Ieast require: procure a hard copy of the updated currently available Indian constitution, read it, understand it if at all possible, and then present the facts as they stand. I did exactly that and that is why I am writing this article. I] think there is a revelation in store for you all.
I hope the reader is familiar with the first 10 Amendments (Bill of Rights) of the U.S. Constitution which were ratified in 1791, This information is important since these right is were imported into the Indian constitution, as they say it. For the exclusive purpose of this article, it will be worth the effort to reproduce the First Amendment of U.S. Constitution which states:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assembly, and to petition the Government for a redress of grievances. II The Substance
Part III of the Indian constitution (Article 12 thru Article 35) constitutes all the minutia on fundamental rights. Of these 24 articles, in total, on fundamental rights, Article 19 and Article 25 are the only ones that truly correspond to the First Amendment of U.S, Constitution, Allow me to reproduce Article 19 and Article 25 in its entirety:
- Protection of certain rights regarding freedom of speech, ete. (/)All citizens shall have the right (a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions:
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; land]
(g) to practice any profession, or to carry on any occupation, trade or business.
(2) Nothing in sub-clause (a) of the clause (7) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the Said sub-clause in the interests of the sovereignty and integrity of India, the security of the State friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an of fence.
(3) Nothing in sub-clause (b) of the said clause shall affect the operation of any existing law insofar as it imposes, or prevent the State from making any law imposing, in the interest of the sovereignty and integrity of India or public order, reasonable restrictions on the exercise of the right conferred by the Said sub-clause.
(4) Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law insofar as it imposes, or prevent the State from making any law imposing, in the interest of the sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause.
(5) Nothing in sub-clause (d) and (e) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of the right conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe.
(6) Nothing in sub-clause (2) of the said clause shall affect the operation of any existing law insofar G5 it imposes, or prevent the State from making any law imposing, in the interest, of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates ta, or prevent the State from making any law relating to,
(i) The professional or technical qualifications necessary for practicing any profession or carrying on any occupation, trade or business, or
(ii) The carrying on by the State or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise.
Granted much of the above narrative is redundant; nobody doubts the clarity of clause (1) of the Article 19. However, given the fact of what is written in clause (2) and onwards, everything changes. The fundamental rights given in clause (1) with such ease have been for all practical purposes, nibbled away one by one; thanks to clauses (2) to (6). The reader must have noticed sub-clause (f) which was to acquire, hold and dispose of property is missing. The 44th Amendment expunged that portion in 1978. Things do get even more complicated when you encounter Articles 352 thru 360 of the Indian constitution. These Articles essentially deliver the emergency provisions, Since numerous geographical areas of India frequently fall under these emergency provisions, the fundamental rights if at all they were guaranteed under Article 19 and others, show their true face when citizens at large are forced to live under the enacted draconian laws. What makes the fundamental rights problem even more tedious is that according to the 40th Amendment, the draconian laws may not be challenged before any court on the ground of violation of fundamental rights. If one or a group of people have suffered terribly from the repressive hands of State, the 4st Amendment nails you right back in your proper place. This amendment has provided that the President, Prime Minister and state Govemors are immune from criminal prosecution for life and from civil prosecution during their term of office. What about the Press in India? The exuberant Indian Press exercises its freedom of speech freely; the apologists will always remind you. But the facts are otherwise. Indian journalists have learned too well how to kowtow to the ruling Indian leaders.
- Freedom of conscience and (free profession, practice and propagation of religion
(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess. Practice and propagate religion.
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law
(a) regulating or restricting any economic, political or other secular activity which may be associated with religious practice;
(b) Providing for social welfare and reform or the throwing open of Hindu religious Institutions of a public character to all classes and sections of Hindus.
Explanation l-The wearing and carrying of kir pans shall be deemed to be included in the profession of the Sikh religion.
Explanation II-In sub Clause 1 of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.
In a historical sense, Article 25 is unique, Even though Hindu hands wrote it in 1950, the future Hindu hands have spared it so far from any further amendment. Those responsible for writing the Article 25 were cunning and deceptive; they knew how to shelter it behind the barrage of words nobody can understand. | have attempted to unravel the mystery of the Article 25 to the best of my abilities.
to be continued in the next issue.
Article extracted from this publication >> September 24, 1993
