- Our Constitutional Socialism: Its vectors and praxis


Our Constitutional Socialism: Its vectors and praxis

By Shiva Kant Jha

Ah! Don’t say you agree with me. When people agree with me
I always feel that I must be wrong

—Oscar Wilde, The Critic as Artist

Read not to contradict and confute, nor to believe and take for granted,
nor to find talk and discourse, but to weigh and consider.

Bacon, Essays ‘Of Studies’.

In nature there are neither rewards nor punishments … there are consequences.

R G Ingersoll in Lectures and Essays 



Segment ‘A’. Explores the Collective Consciousness of our Constituent Assembly as best as it can be done both on evidence and probability.

(1)The idea of the Welfare State
(2) Attitude towards Property
(3) Human nature and the Imperatives of polity and governance:
(4) The Standards Applicable in Decision-making:
(5) Constitution’s Basic Structure: Dharma of the Constitution
(6) The inexorable law of karma:

Segment ‘B’. Profile of our Constitutional Socialism.

(a) The Total Discipline On Public Power
(b) The Preamble
(c) Sovereign Socialist Secular Democratic Republic
(d ) Fundamental Rights

* Right to Equality: Art 14
* Right to Freedom : Art 19
* Right to Life and Personal Liberty: Art 21
*Right against Exploitation: Art. 23
*Right to Freedom of Religion: Art. 25
* Cultural and Educational Rights: Art. 29


The Vectors at work under our Constitution: SOCIALISM, our “Constitutional Socialism”

Never Build Sone-ki-Lanka: never make our Earth Ardana


(a) The Role of Judiciary under our Constitution
(b) The Limits of the Doctrine of Restraint
(c ) Judiciary’s Peril:Activism v. Inactivity
(d) A morbid controversy


The dimensions of our Constitutional Socialism


HOPE: it carries the ship of democracy through storms



Our Constitution expresses a vision for the people of India before the onset of the time when the calculators, sophisters, economists, and the Lucifers of neo-liberalism could overtake our polity, and develop a mesmerizing effect on us. There are good reasons to believe that the vital words in our Constitution are not ‘fixed factors’: or to say the same in the words of Dr. I.A. Richards (Philosophy of Rhetoric, p. 55): “what we call the “meanings” of the words “are resultants which we arrive at only through the interplay of the interpretative possibilities of the whole utterance.” “Inference and guesswork!” Richard exclaims, “What else is interpretation? How, apart from inference and skilled guesswork, can we be supposed ever to understand a writer’s or speaker’s thought?”

Justice Homes of the US Supreme Court observed in Lochner v. New York [198 U S, 45, 75-76 (1905)] that ‘The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics..’. The present Government, and the lobbies and the compradors, working for the Rule of Market [Pax Mercatus of the neo-liberalists] in our Republic, believe [and now try even to make our Supreme Court believe] that in our Constitution the framers of our Constitution had enacted the politico-economic doctrine of Friedrich von Hayek’s The Road to Serfdom, or of Milton Friedman’s Free to Choose, or of the IMF or the WTO, or of those of our country who have sipped their manna at the well-known institutions of the present day rogue financial system contrived as an integral part of the architecture of the Economic Globalization pursuing neo-liberal agenda crafted under an Opaque System, the early version of which is the ‘Washington Consensus’.

The quest to answer the points pertaining to the propriety of the insertion of the concept of ‘Socialism’ by the 42nd Constitutional Amendment requires a broad-spectrum consideration of ‘Socialism’ under the parameters of our Constitution. For the sake of convenience this seminal issue is examined under the following Segments:

Segment ‘A’. Explores the Collective Consciousness of our Constituent Assembly as best as it can be done both on evidence and probability.

Segment ‘B’. Profile of our Constitutional Socialism.



The collective consciousness of the Constituent Assembly

On the examination of the broad profile of our Constituent Assembly the following points emerge:

(i) The Constituent Assembly was virtually a microcosm of India. All the leading lights of our Freedom Movement were assembled there. They had in their marrow the fire that burnt throughout our Struggle for Freedom. They possessed what the Art 51A of our Constitution wants every citizen of this Republic to acquire: the ideal to “(b) cherish and follow the noble ideals which inspired our national struggle for freedom.” It was, as Granville Austen says a one-party body in essentially one-party country. The Assembly was the Congress and the Congress was India.” [1]

(ii) ‘The membership of the Congress in the Constituent Assembly and outside held social, economic, and political views ranging from the reactionary to the revolutionary.’ [2] Austin comments: “…because the Congress and its candidates covered a broad spectrum, those elected to the assemblies did represent the diverse viewpoints of voters and non-voters alike.”

(iii) The Constituent Assembly was never under the hangover of Karl Marx. Neither the Communist Party nor the Socialist Party had their representatives in the Constituent Assembly. Austin comments:

“The absence of a formal Socialist group meant little, however, for most members of the Assembly thought themselves as Socialists [3] , and with few exceptions the members believed that the best and perhaps only way to the social and economic goals that India sought was by the road of government initiative of industry and commerce.’ [4]

(iv) It had, as its members, some of the most distinguished capitalists who had shared the ethos which our Struggle for Freedom had created. One of them was Maharajadhiraj Dr. Sir Kameshwar Singh of Darbhanga, who as a member of the Constituent Assembly shared the common vision with others, though as a litigant he moved courts against his Rights to Prperty which led to the First Amendment to the Indian Constitution inserting Articles 31 A, 31 B and the Ninth Schedule to the Constitution. But he had celebrated the work of our Constituent Assembly even in England by hosting a celebrated party in London which was noticed and chronicled in the Romance of Savoy.

15. That Jawaharlal Nehru was decidedly at the most conscious point of the collective consciousness of the Constituent Assembly. His vision, which was largely shared by most of the members of the Constituent Assembly, has thus been summarized by Bipin Chandra & Ors with a remarkable perspicacity and insight (so remarkable that this humble self quotes them here to fully endorse what they have said): [5]

“Nehru rejected the capitalist developmental and civilisational perspective and, instead, worked for fundamental transformation of Indian society in a socialist direction. Clearly, he did not succeed in building a socialist society and there was a large gap between his precepts and practice. But he did, over the years, grapple with the problem of initiating socialism in an under-developed country with a democratic polity. It was Nehru, above all, who carried the socialist vision to millions and made socialism a part of their consciousness. Moreover, his ideas on socialism and his strategy for its establishment and development, as also his political practice, provided deep insights into the problem of socialist transformation in the modern world.

What did socialism mean to Nehru? In fact, Nehru never defined socialism in terms of a definite scheme or rigid general principles. To him, generally, socialism meant greater equality of opportunity, social justice, more equitable distribution of higher incomes generated through the application of modern science and technology to the processes of production, the end of the acute social and economic disparities generated by feudalism and capitalism, and the application of the scientific approach to the problems of society. Socialism also meant the eventual ending of the acquisitive mentality, the supremacy of the profit motive, and capitalist competitiveness and the promotion instead of the cooperative spirit. It also meant the gradual ending of class distinctions and class domination. Socialism also laid down on the large-scale social ownership or control over the principle means of production but Nehru insisted that, first of all, socialism concerned greater production, for there could be no equal distribution of poverty. In fact, to him socialism was equal to greater production plus equitable distribution.

In Indian conditions, Nehru regarded socialist transformation as a process and not as an event. Socialism was then not a clearly pre-defined, pre-laid-out scheme towards which the process of transformation moved. Instead socialism was expected to go on being defined, stage by stage, as the process advanced. There was to be no sudden break but gradual change. Socialist transformation was to be viewed in terms of a series of reforms which would occur within the orbit of the existing socio-economic structure, but which would, over time and in their totality, amount to a revolution or a structural social transformation. Nehru described these reforms as ‘surgical operations’. Socialist revolution would, thus, consist of a series of ‘surgical operations’ performed through the due process of law by a democratic legislature.

Nehru believed that democracy and civil liberties had to be basic constituents of socialism, and were inseparable from it.”

Pandit Nehru had noticed certain malignant features of the times against which he had cautioned his countrymen. In his Glimpses of the World History, (with which almost everyone in the Constituent Assembly was familiar), vital ideas had been set forth, with which most of the members must have been conversant. These ideas shaped our Constitution by being the vital inputs and vectors in the creative matrix of our Constituent Assembly. Hence some of his key ideas are culled from the book [6] . His prognosis was shared widely. It is a fact of which Judicial Notice must be taken. To quote a few scintillating ideas from the said book:

(i) “So, as a result of the Mechanical Revolution, capitalist civilization spread all over the world and Europe was dominant everywhere. And capitalism led to imperialism. So that the century might also be called the century of imperialism. But this new Imperial Age was very different from the old imperialisms of Rome and China and India and the Arabs and Mongols. There was a new type of empire, hungry for raw materials and markets. The new imperialism was the child of the new industrialism. “Trade follows the flag”, it was said, and often enough the flag followed the Bible.”(Page 399)

(ii) “But much of this wealth and the raising of the standard of living was at the expense of exploited people in Asia, Africa, and other non-industrialized areas. This exploitation and flow of wealth hid for a while the contradictions of the capitalist system. Even so, the difference between the rich and poor grew; the distance became greater. They were two different peoples, two separate nations. Benjamin Disraeli, a great English statesman of the nineteenth century, has described them :

(i) “Two nations; between whom there is no intercourse and no sympathy; who are as ignorant of each other’s habits, thoughts and feelings, as if they were dwellers in different zones, or inhabitants of different planets; who are formed by a different breeding, are not governed by same laws….the Rich and the Poor.” (Page 403)

(ii) “It becomes clearer and clearer that the government is definitely a class government, out to protect by all means the class it represents. Laws are also class laws.” (Page 404)

(iii) “Democracy dealt with the political aspect of liberty. It was a reaction against autocracy and other despotisms. It offered no special solution of the industrial problems that were arising, or of poverty, or of class conflict. It laid stress on a theoretical freedom of each individual to work according to his bent, in the hope that would he would try, from self-interest, to better himself in every way, and thus society would progress. This was the doctrine of laissez faire, about which I think I wrote to you in your previous letter. But the theory of individual freedom failed because he man who was compelled to work for a wage was far from free.”(Page 405)

(iv) “Both communism and fascism have opposed and criticized democracy, though each has dome so on entirely different grounds. Even in countries which are neither communists nor fascists, democracy is far less in favor than it used to be. Parliament has ceased to be what it was, and commands no great respect. Great powers are given to executive heads to do what they consider necessary without further reference to Parliament. Partly this is due to the critical times we live in, when swift action is necessary and representative assemblies cannot always act swiftly. Germany has recently thrown her Parliament overboard completely and is now exhibiting the worst type of fascist rule. The United States of America have always given a great deal of power to their President, and this has recently been increased. England and France are about the only two countries at present where Parliament still functions outwardly as in the old days; their fascist activities take place in their dependencies and colonies-in India we have British fascism at work, in Indo-China there is French fascism “pacifying” the country. But even in London and Paris, parliaments are becoming hollow shells. Only last month a leading English liberal said:

“Our representative Parliament is rapidly becoming merely the machinery of registration for the dictates of a governing caucus elected by an imperfect and badly working electoral machine.” (Page 823)

(v) “I have referred to democracy as “formal” in the preceding paragraph. The communists say that it was not real democracy; it was only a democratic shell to hide the fact that one class ruled over the others. According to them, democracy covered the dictatorship of the capitalist class. It was plutocracy, government by the wealthy. The much-paraded vote given to the masses gave them only a choice of saying once, in four or five years, whether a certain person, X, might rule over them and exploit them or another person, Y, should do so. In either event the masses were to be exploited by the ruling class. Real democracy can only come when this class rule and exploitation end and only one class exists. To bring about this socialist State, however, a period of the dictatorship of the proletariat is necessary so as to keep down all capitalist and bourgeois elements in the population and prevent them from intriguing against the workers’ State.”(Page 824)

(vi) “Democracy means equality, and democracy can only flourish in an equal society. It is obvious enough that the giving of votes to everybody does not result in producing an equal society. In spite of adult suffrage and the like, there is to-day tremendous inequality. Therefore, in order to give democracy a chance, an equal society must be created, and this reasoning leads them to various other ideals and methods. But all these people agree that present day parliaments are highly unsatisfactory.”(Page 825)

(vii) “To increase and strengthen this international business, English banks opened branches and agencies all over the world. The Governor of the Bank of England sometimes knew more about it than the government of that country. High Finance as this was called, was, and still is, one of the most effective of the methods of coercion of the imperialist Powers.” (p. 895).

(viii) “Men in authority-kings, statesmen, generals, and the like-are advertised and boomed up so much by the Press and otherwise that they often appear as giants of thought and action to the common people. A kind of halo seems to surround them, ad in our ignorance we attribute to them many qualities which they are far from possessing. But on the closer acquaintance they turn out to be very ordinary persons. A famous Austrian statesman once said that the world would be astounded if it knew with what little intelligence it is ruled. So these three, the “Big Three”, big as they seemed, were singularly limited in outlook and ignorant of international affairs, ignorant even of geography!” (Page 677)

The members of the Constituent Assembly were well versed in oriental cultural ideas, and most of them were distinguished masters in humanities and jurisprudence. On a close scanning of their career and thoughts, this humble self is driven to conclude that the Bhagavad-Gita had the greatest impact on their thought which shaped their ideas at work in the framing of our Constitution. It is really tragic to note that our jurists have never appreciated this fact because their western orientation never freed them from the blinkers forged out of the Western borrowings. This synoptic deduction is based on the principle of probability. J. Bronowski very aptly says:

“There are many gifts that are unique in man; but at the centre of them all, the root from which all knowledge grows, lies the ability to draw conclusions from what we see to what we do not see, to move our minds ``through space and time, to recognize ourselves in the past on the steps of the present.” [7]

(1) The idea of the Welfare State

The idea of the Welfare State was clear to all who had known the concept of lokasangrham explained in the Bhagavad-Gita: to cite one (Ch. III.20) of the many slokas:

Lokasamgraham eva pi
Sampasyan kartum arhasi

[“Thou shouldst do works also with a view to the maintenance of the world”]

Loka sangraham is explained by V.S.Apte, in his A Sanskrit-English Dictionary, to mean ‘the welfare of the world’, and for the ‘propitiation of mankind’. It is defined by Acharya Rama Chandra Verma in his Manaka Hindi Kosh thus: “1.Sab longo ko prassana rakhkar unhe apne sath milaye rakhna. 2. Sansar ke sabhi longo ka kalyan ya mangalka dhyan rakhna.” Swami Gambhrananda, in his annotation of Madhusudana Saraswati’s Bhagavad-Gita says: “Lokasangraha means making people understand their own duties and preventing them from taking the wrong path.” (at p.. 237).

(2) Our social vision, as expressed in our Constitution, is egalitarian, it harbours no ill-will against any section of people. Our polity is founded on universal franchise; and our Struggle of Freedom evidence involvement of the whole notion. This sort of universalism could be got only from the Bhagavad-Gita which thought of the weal of all, rather than of a lass, as did Karl Marx.

(2) Attitude towards Property:

The Oriental philosophy, whether Hindu, Muslim, or the pristine Christianity, never considered Property the fruit of an individual’s acquisitiveness. Social purpose was always most dominant, as the society looked down upon greed and selfishness. They considered that all property was God’s (or Nature’s) gift for the welfare of all. The whole story (in the Srimad Bhagavad Mahapurana) of Shyamantaka Mani (that most precious jewel which begot gold every day) is a powerful metaphoric presentation of the approved idea as to Property. Such a property could not be a matter of an individual’s greed. Krishna advised that such a property, irrespective of the fact who acquired, and how he acquired it, should go to the State for promoting public weal. And in the Bhagavad-Gita [8] Krishna expressed similar ideas:

Eating sacrificial remains,
The good are freed from all evils;
The wicked eat their own evil
Who cook food only for themselves. Chap. III.13

As the unwise ones act, attached,
O Descendant of Bharata,
So the wise should act, unattached,
For maintaining the world’s welfare. Chap. III.25

It is worthwhile to point out the ideas about Property which have come down us as part of our Consciousness. Our Society had never appreciated acquisitiveness. It can be illustrated by some apt references from the great books of our culture:

(a) The Srimad Bhagavad Purana tells the story of Dhenukasur who had asserted his monopoly over all the fruits and trees in the area he controlled. He prevented humans, birds and beasts alike from an access to the natural resources. Krishna fought with him, and destroyed him in order to make the social resources available for all.

(b) Krishna had resorted to a revolt, as Jesus had done against the Herodian establishment and the callous money-changers (the ancestors of the present-day bankers, the arch-priests of the neo-liberalism), against Indra and Kamsa who asserted their exploitative impeium over people.

(c) Krishna held in the Bhagavad-Gita that Property acquired merely for acquisitiveness and greed is clearly a sinister ‘THEFT’ (Chap. III.12). [It reminds us of the French anarchist Pierre-Joseph Proudhon who had said: “Property is theft.”]

(d) The characteristic approach of our great society was expressed by great poet Surdass who said:

“Hungry belly cannot pray” [bhukhe bhajan na hohi Gopala].

Even God cannot be worshipped by a hungry man.

(e) It is narrated in the Bhagavad Mahapurana (Canto V. Chap. 56) that Satrjit acquired a Shyamantak precious stone which could beget a good quantity of gold. Krishna advised him that such a property should go the State for the benefit of all. He, like the present-day rabid capitalists, refused and ridiculed Krishna. But he could not keep that wealth as it was snatched from his brother while he was roaming in a forest. A canard was spread against Krishna that he had got that person killed to snatch that precious stone. Krishna saw to it that the precious stone was traced out. It was brought to the King’s court, and Satrajit was called to face it. His soul was not so debased as of James Mill, so he was repentant. Krishna gave him back as a matter of trust for public weal. Perhaps, when Gandhi was asking the acquirers of property to treat Property a matter of public trust, he was stressing what Krisna had said. Property under trust is for the weal of all. The looters of public wealth are public enemies. Their greedy acquisitiveness would provide justification for people’s wrath ( recalling Krishna’s dharma-yudha, Mohammad’s resort to sword, Jesus’ wrath against the Herodian establishment and the exploitative pursuits of the money-changers of Jerusalem, and Mahatma’s stern warning to the neo-liberalists and others of the same feathers that if acquisitiveness and greed become the sole motivating force of the manipulators and the usurpers of Property, then “ignorant, famishing millions will plunge the country and which, not even the armed force, that a powerful Government can bring into play, can avert.” [9] )

3) Human nature and the Imperatives of polity and governance:

Why do we need government? This question has been answered in the West by Thomas Hobbes (1588 –1679), the author of Leviathan; John Locke, ( 16321704), the author of his two Treatises on Government; Rousseau (1712 –, 1778), the author of The Social Contract, and the authors of the American Declaration of Independence (1776), and now by the neo-liberalists like Hayek and Friedman. They are all rationalizers who advocated the cause dear to those who called their tunes. It is the evidence of the cultural poverty of the West that all its theorists have erected in their work their own ego in the service of the vested interests who befriended them for reasons needing no elaboration here.

The finest statement on the raison de ‘etre for a government yet made in the world is what Krishna said in the Bhagavadgita about the ways and the propensities of the demonic persons. The ‘demonic persons’ constitute one of the three categories of the humans categorized in the light of their gunas (traits?). Speaking of such beings Krishna says graphically thus in the Chapter XVI of the Gita:

“The universe is without truth,
Without a basis, without God,
Produced by mutual union,
With lust for cause–what else?” say they. (8)

Bound by a hundred ties of hope,
Given over to lust and wrath,
They strive to gain by unjust means
Wealth for sensual enjoyment. (12)

“This today has been gained by me;
And this desire I shall obtain;
All this is mine, and now this wealth
Also shall be mine in future. (13)

“I slew that enemy, and more
I shall slay. For I am the Lord,
I enjoy, I am successful,
Perfect, powerful, and happy. (14)

“I am rich and well-born,” they say,
“Who else is equal unto me?
……………………………… (15) [10]

Such ‘demonic persons’ are always available in plenty in every society. Hitler was one who made his demonic appeal to his “ divine mission”, President Bush is another whose acquisitiveness and lust for power the whole world knows (despite his most insincere ‘divine mission’ for democracy.)

It must be recognized that the law and the constitution are needed to discipline only the demonic people. Krishna explained the ways how the demonic people behave, and he instructed ways how they should be dealt with in order to protect society. He had no reasons to segregate his ideas from the spritio-temporal complex, but we can easily discern the norms governing that intersection which comes within the province of ‘polity’. Under such an intersection come the following problems needing solutions:

(a) how to tame Power so that none can ever turn a demigod;

(b) how to ensure Justice in all the spheres of social existence which come within the frontiers of polity and governance;

(c) what sort of philosophy should govern our relationship with the resources including Property, and how to control greed and lust so that public welfare is not frustrated;

(d) how to ensure Equality amongst the humans in all matters which come within the contemplation of a civil society for its security, survival, peace and justice;

(e) how to ensure Freedom from Fear; and so that the citizens of this great Republic can tell any demonic power: We share with Arjuna who had two resolutions: “neither servility to anyone, nor abdication of the role which we consider just” [11] . The wish for a life with dignity that we get in the Preamble to the Constitution reminds of what is said in the Veda: ‘We should love for 100years, but with Dignity” [12] ;

(f) how to create conditions under which all can perform their Kartavy-karma in to realize a just order.

Our Constitution-makers were the revolutionaries for whom the nation mattered most; they were not like the hacks who are engaged by vested interests to craft a constitution. They had in their consciousness issues as aforementioned. At the dawn of the new India they had in their mind not The Communist Manifesto or the Road to Serfdom but the Bhagavad-Gita (unless someone pleads that his mind was a tabula rasa on which the neo-liberalists can script their brief).

The Bhagavad-Gita rejects, so does our Constitution, ideas such as these:

(a) The Bhagavad-Gita and our Constitution contemplate no class conflict or class struggle. They do not recognize dialectics central to the thought of Hegel and Marx. Our Constitution commits our polity to social justice under a system in which all live and work without discrimination, and under conditions whereunder life is not a mere animal existence. We have rejected Marx’s dictum: "The [written] history of all hitherto existing society is the history of class struggle". Our society over centuries, except in the eras of servitude, has believed in co-existence and harmony. This approach alone has helped our culture and civilization to last when most others celebrated in the past are in the museum of the past. It is unique feature of our long history that organized government has been optional.

(b ) The driving force in the cosmic affairs for Hegel is Spirit. For Marx the driving force is Matter, which means that for him “the driving force is really man’s relations to matter, of which the most important part is the mode of production”, in effect, his ‘materialism, in practice, becomes economics.’ In the Bhagavad-Gita (and our Constitution) the driving force is lokmangal, welfare of all. Both these reject Hegelian and Marxist dichotomies reflected in their theories of dialectics. In the Gita the harmony is the natural consequence of the concept of Isvara over Prakrit and Purusha; under our Constitution it is brought about by the idea of everyone’s weal (which again is a rejection of the Utilarean ides of Bentham and Mill).

(c) The doctrine of Communism is based on the theory of the INEVTABILITY OF PROGRESS. It contemplates a Second Coming, something like the El Dorado of the Utopians, or the ‘Trickle-down theory of the neo-liberal economists triumphant in this present phase of Economic Globalization. Marx led us to a dream, Darwin made us to turn irresponsible as evolution is bound to take place anyway, and the neo-liberalists dangle before us a carrot they call ‘the Trickle-down theory’. Our Constitution does not ask the skeletons and the scarecrows, to sing a death-bed song in the glory of the plutocrats and their smoggy corporate oligarchy. Mahatma Gandhi’s talisman, which is the best guide for all decision-makers (executive, legislative and judicial) must not be allowed to be lost in the sleaze, or quoted at nil at our mercurial Stock-Market. Gandhi had said:

“I will give you a talisman. Whenever you are in doubt or when the self becomes too much with you, apply the following test:

Recall the face of the poorest and weakest man whom you have seen and ask yourself if the step you contemplate is going to be of any use to him. Will he gain anything by it? Will it restore him to control over his own life and destiny? In other words, will it lead to Swaraj for the hungry and spiritually starving millions? Then you will find your doubts and yourself melting away.” [13]

How close is Gandhi, how quintessentially exact is this barrister turned saint!

The Poor of this and many other lands, ask the Christian capitalists of the West why have they ignored Christ for Hayek-Milton-Thatcher-Bush conglomerate and others of the same feathers. What it is now the status of what Christ said:

“You can not serve God and Mammon.” Christ in Mathew 6.24

(d) The Bhagavad-Gita and our Constitution contemplate Rights and Duties for the development and happiness of all. The Utilitarians are satisfied with the happiness of a few, thereby facilitating the emergence of Capitalism, Fascism, and now neo-liberalism. Their arch-priest Bentham cared little for the liberty of all. He thought of the liberty only of a few. The rights of man, he said, are plain nonsense; the imprescriptible rights of man, nonsense on stilts. When the French revolutionaries made their ‘Declaration des droits de l’homme,’ Bentham called it ‘a meta-physical work—the ne plus ultra of metaphysics’. It was argued that the “articles could be divided into three classes: (1) Those that are unintelligible, (2) those that are false, (3) those that are both.” We have, as is evidenced under our Constitution, rejected such foolish ideas. Our Constitution posits an over-arching social vision for the Free India.

(e) Our Constitution, right from its inception, is cast to promote the welfare of all sections of our political community. On this point it differs from all other celebrated Constitutions, be of the USA, France, Russia, or even the U.K. In all these Constitutions, polity had been constructed for the delight of the affluent and dominant sections of people, and the commoners of the societies had to wait and struggle for even more than a century even to acquire the rights to universal suffrage. Our Constitution, like the Bhagavad-Gita, is universal and egalitarian: mandating a quest for universal weal. It is remarkable that even the members elected on a narrow franchise, [14] had an over-arching vision, which can best be called our ‘Constitutional Socialism’

(f) The Bhagavad-Gita is a Shastra, so is our Constitution. We obey our Constitution because we have learnt to obey Shastra (The Gita XVI.23). The obedience to our Constitution is thus a cultural imperative.

The real problem in framing a democratic constitution is how to tame Power and prevent its misuse through omissions or commission. Bertrand Russell has made the following perceptive comment in his Autobiography:

“My next piece of work was Power, a new social analysis. In this book I maintained that a sphere of freedom is still desirable even in a socialist state, but this sphere has to be defined afresh and not in liberal terms. This doctrine I still hold. The thesis of this book seems to me important, and hoped that it would attract more attention than it has done. It was intended as a refutation both of Marx and the classical economists, not on a point of detail, but on the fundamental assumption that they shared. I argued that power, rather than wealth, should be the basic concept in social theory, and that social justice should consist in equalization of power to the greatest practicable degree. It followed that State ownership of land and capital was no advance unless the State was democratic, and even then only if methods were devised for cutting the power of officials.” [15]

Our Constitution too recognizes Freedom within the discipline of ‘Constitutional Socialism’. It determines the reach of freedom recognizing the limits in the interest of others. Our Constitution’s fundamentals are pragmatic, and socialistic. It does not share the assumptions of Marx, or of the classical economists, or of the neo-liberal economists. Our Constitution tames power, and puts wealth under an egalitarian discipline. It is not difficult to see that wealth corrupts power, and power enjoys whoring with wealth. The correct perspective is to consider our problems under the discipline of our ‘Constitutional Socialism’. The ideal of ‘Social Justice’ is the very heart of the matter as without it polity and governance both are unjust intrusion. But this socialist pursuit would be wholly futile unless we have a substantial democracy for the benefit of all, rather than a device for some lost souls to capture power somehow. But a socialist democracy requires distribution of power, as the concentration of power always leads to tyranny. With this objective our Constitution provides a directive to the State (Art. 40):

“The State shall take steps to organize village panchyats and endow them with such powers and authority as my be necessary to enable them to function as units of self-government”

But what is most worrisome in this phase of neo-liberalism is a systematic evasion of Art 40 on account of the government’s lust for more and more power, which (and it is a devastating irony) is now being used for the promotion of the interests of the corporations and the High Net Worth Individuals.  (4) The Standards Applicable in Decision-making: 

The utilitarians of the West (like Bentham and Mill) pleaded that all decisions should promote the greatest good for the greatest number. In short such political scientists were the consequentialists. They measure the propriety of an action in the light of the possible or potential consequence of the act as seen in short range. They would say that Krishna shouldn’t have participated in the Mahabharat War because its objective consequences were good neither for the victors nor the vanquished. But the criticism is misconceived. What is important is the point of view and the reason leading to the act. The objective of an act is under our Constitution, as under the Bhagavad-Gita, is not “greatest good for the greatest number”; bur the welfare of all. This perspective is now being shared to some extent by the welfare economists like Dr Amartya Sen; yet the vision of welfare, as we get in the Gita and find in our Constitution, is most comprehensive and for the lokamangal of all. The great poet ‘Dinkar’ had felicitously described in his epic Kurukshetra:

Can’t there be peace, any peace ever,
Till people share not in equality what comes.
None should have much beyond needs,
And none should be destitute or famished.
Justice is the supreme trust for peace.
Till Justice comes not for all,
Howsoever the affairs be arranged,
The castle of peace cannot ever stand. [16]

The makers of our Constitution must have been aware of what was known as the Wallace Paradox. Alfred Russel Wallace in his The Wonderful Century: Its Successes and Failures (1898) had expressed his concern at: “The exponential growth of technology matched by the stagnant morality” which implied “ only more potential for instability and less capacity for reasonable prognostication.” The Wallace Paradox turned more confounding with the subsequent passing decades thereafter. And he graphically presented, in his Bad Times (1885), the picture of the economic management of the West in the 19th century seemingly so rich in achievements in science and technology, commerce and industry, pomp and power:

“We thus see that the evils under which we have suffered, and are still suffering, are due to no recondite causes, to no laws of inevitable fluctuation of trade, but wholly to our own acts and to those of other civilized nations. Whenever we depart from the great principles of truth and honesty, of equal freedom and justice to all men whether in our relations with other states, or in our dealings with our fellow-men, the evil that we do surely comes back to us, and the suffering and poverty and crime of which we are the direct or indirect causes, help to impoverish ourselves. It is, then, by applying the teachings of a higher morality to our commerce and manufactures, to our laws and customs, and to our dealings with all other nationalities, that we shall find the only effective and permanent remedy for Depression of Trade.”

Mahatma Gandhi pleaded for the Trusteeship concept underscoring what the Gita had said: ‘acquisitive pursuit for property without considering others’ demand is thieving only’ Our Constitution was made to escape what bedeviled the western constitutions because of the segmental view of those who dominated in the framing of such constitutions. It is a disaster to view our constitutional problems through the prism of the Western political thinking and jurisprudence. Our Constitution, when all is said, is sui generis, it is par excellence.

(5) Constitution’s Basic Structure: Dharma of the Constitution

The idea of the ‘Basic Structrure of our Constitution’ has not grown on the top of trees husbanded through the Monsonto-provided seeds. It follows from the concept of Dharma to which Gandhari refers without being bothered by the selfish idea that the triumph of Dharma would mean destruction all her sons. It is wonderfully exact that its triumph (yatoh Dharmastato jayah) is inscribed in the emblem of the Supreme Court telling the judges and the lawyers that they are themselves are on perpetual trial under the supreme constitution to which Gandhari referred.[17] [For a detailed exposition see the Introduction to PIL I on] The creation is ever in the flux, the Samsar (the world) is surpil (moving like a snake); only Dharma is all abiding (as when it goes nothing would survive). In the same way, if our Constitution’s Basic Structure goes, our dream would get shattered, causing consequences we shudder to contemplate. Yet, we have witnessed the studied attempts to dilute and narrow down the idea of the Basic Structure, but the conspirators have not yet succeeded. We hope they will not ever succeed.

Dharma is much much different from ‘religion’. Dharma is cosmic and egalitarian. Marx had said in the preface to “his 1843 Contribution to the Critique of Hegel's Philosophy of Right”:

“Religious suffering is, at one and the same time, the expression of real suffering and a protest against real suffering. Religion is the sigh of the oppressed creature, the heart of a heartless world, and the soul of soulless conditions. It is the opium of the people.”This humble self would endorse the first two sentences in the above quotation but would substantially qualify and modify the third. But Dharma is something different. It sustains all: whether a Christ or a Krishna; Gandhi or Godse; a Hitler or President Bush; the UNO or the WTO, as it is Dharma which alone judges them all without freer or favour. Religion is often works as a dose of opium, but Dharma judges the religious and irreligious alike. 

(6) The inexorable law of karma:

But we can forget only at our peril that in politics and economics, as in other spheres the law of karma operates. The neo-liberals, supply-siders, the votaries of the economic globalization, and the compradors of all the hues must note that we do not garner miracles, we reap only consequences. The Bhagavad-Gita sets forth the inexorable law:

Atmaiva hy atmano bandhur
Atmaiva ripur atmanah. [18]

We reap the consequences of our omissions or commissions; we are ourselves our friends, and we are ourselves our foes. The logic of karma is inexorable. If things have gone wrong we ourselves are to be blamed. Those who contribute to our degradation are surely to be blamed: but those who remain indifferent, or remain mere passive on-lookers are no less blameworthy. III  SegmentB’. Profile of our Constitutional Socialism

(a) The Total Discipline On Public Power

Noting that “the ultimate touchstone of constitutionality is the Constitution itself and not what we [court] have said about it” (per Frankfurter J quoted with approval in Bengal Immunity AIR1955 SC 661 at 671 para 13 ), it is submitted that our Constitution is the most structured constitution yet framed in the World, as the frontiers and functions of all the organs (including the Superior Judiciary) are established leaving absolutely no exit for self-assumed powers, or motivated derelictions. This is the effect of the conjoint reading of Articles 12, 13, 32, 53, 73, 245,372 and 375. It can be asserted that the ‘New Socio-Economic Order’, which the Preamble and the Parts III and IV of the Constitution envisage, is to be evolved in view of Articles 14, 15, 16, 21,23,24, 38, 39,40, 41, 42, 43, 43A, 46. The Supremacy of the Constitution has been judicially acknowledged. [19]

(b) The Preamble

The Preamble serves the following ends:

(i) The Preamble constitutes the Context for the exercise of powers and discharge of duties under our Constitution. Glanville Williams, explaining the concept of ‘context’, says:

“It is, nevertheless, difficult to reconcile the literal rule with the “context” rule. We understand the meaning of words from their context, and in ordinary life the context includes not only other words used at the same time but the whole human or social situation in which the words are used.” [20]

Even the vectors in the Collective Consciousness of the Constituent Assembly are relevant factors to be taken into account.

(ii). The Hon’ble Court has held in Keshavananda Bharati v State of Kerala (AIR 1973 SC 1789) that the Preamble to our Constitution contains the BASIC STRUCTURE of our Constitution which could not be amended. On close analysis it can be said, that it does contain ideas which, in synergy, express a vision which can be best considered ‘socialistic’, or to be more accurate and graphic ‘Constitutional Socialism’. The term ‘basic’ means ‘the root’ or what constitutes the foundation. If the root is destroyed, the whole tree collapses. If the cosmic tree, to which Krishna refers in the Bhagavad-Gita loses its root, everything in the universe would disintegrate in the void. It is agreed that if the ideals set forth in the Preamble are destroyed, our Constitution would be dead, except, perhaps, the structure of power that it sets up for the wielders of public power.

(iii). The Preamble to our Constitution is its prolegomena providing a summary of ideals; it also constitutes the deductions from the whole Constitution as it was enacted when the text of our Constitution had been finalized, and was wholly alive in the consciousness of the makers.

(iv) It has been repeated over years that the Preamble and the Directive Principles are not justiciable, whereas the Rights in the Part III of the Constitution are enforceable at law. This is admitted but with an important reservation that they do not cease to weave a web of duties and expectations which must be given effect if the provisions of Part II of the Constitution are to be meaningfully implemented. It is worth noting what Hegde J. had said in his Rau Lectures:

“….the view that the principles were not binding if they were not enforceable by law, originated with Austin, and Kelson propounded a similar view. However, Prof. Goodhart and Roscoe Pound took a different view. According to them, those who are entrusted with certain duties will fulfill them in good faith and according to the expectations of the community.” (Italics supplied)

The approach suggested by Hegde J. is most appropriate.

As the terms used in the Preamble flower into the provisions of the Fundamental Rights and the Directive Principles, they deserve a close consideration. The prime concepts used in the Preamble are metaphorical, and profoundly suggestive. The Preamble declares with candour our resolution to establish in our country a ‘Sovereign, Socialist, and Secular Democratic Republic’ to secure to all citizens:

“JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and opportunity
And to promote among them all
FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;”

The aforesaid objectives are to be achieved for all citizens, who enjoy universal franchise, and had struggled, as a fraternity, for the Independence of this country from foreign servitude. They had inherited common cultural tradition, and had a common dream, and nursed a collective longing so precisely and wistfully set forth in the 1958 movie, “Phir Subaha Hogi,” Mukesh singing with pathos, “woh subaha kabhi to ayegi” (That morning will surely come someday) when our country would have a just society wherein Gandhi’s “Last Person First” would be happy (“Jab ambar jhum ke nachega, Jab dharti naghme gayegi”: when the sky would dance with joy and the earth would sing songs), and when “Jab dukh ke badal pighlenge” (when the clouds of sorrow will melt), and WHEN “Insano ki izzat jab jhoote sikkon me na toli jayegi” (when people’s dignity would not be measured in terms of money).

The Constitution of India neither conceives nor contemplates Class struggle which was the very forte of Marxism, or of the doctrinal western Socialism. India believed in the fraternity of its citizenry, so it gave no weight to what Marx and Engels had said in the Commuist Manifesto: "The [written] history of all hitherto existing society is the history of class struggle". The ideals conceived under our Constitution were for the weal of the proletariat and the bourgeoisie alike, and also of the rest.

The locus of ‘JUSTICE, social, economic and political’ reveals its apex importance, as in it inheres all that follows thereafter in the Preamble (and without which nothing else can materialize). An unjust society can never create conditions whereunder Liberty, Equality, and Fraternity can be enjoyed by the citizenry. And if these are not there, the society can never be democratic, or secular, and socialist. John Rawls, aptly said "Justice is the first virtue of social institutions, as truth is of systems of thought."

But the concept of ‘Justice’ is being systematically denigrated these days by the neo-liberalists bringing to our mind that crook, Thrasymachus, in Plato’s Republic for whom justice was the interest of the strong only. John Stuart Mill, so dear to the neo-liberals of our day, slighted the more basic standard of rightness for Justice, and advocated, instead, the doctrine of consequentialism asserting that the right approach is to examine consequences measuring them by their efficacy to effect total or average welfare. This denigration of ‘Justice’ reached its climax in the neo-liberal capitalism of which the proponents were Regan, Thatcher, and Pinchet under the spell of the Chicago School of Economics following the intellectual lead of Hayek and Friedman. What they thought of ‘Social Justice’ is aptly thus summarized:

“Finally, and most controversially at the time, Hayek thought that the concept of ‘social justice’ was the most powerful threat to law ever conceived in recent years. Social justice, says Hayek, ‘attributes the character of justice or injustice to the whole pattern of social life, with all its components rewards and losses, rather than the conduct of its component individuals, and in doing this it inverts the original and authentic sense of liberty, in which it is properly attributed only to individual actions. In other words, the law must treat men anonymously in order to treat them truly equally; if they are not treated individually, serious inequities result.” [21]

Friedrich Hayek, the economist with enormous impact of late, said: "The phrase 'social justice' is ... simply 'a semantic fraud from the same stable as People's Democracy'." To the same effect is the view of Milton Friedman.

Of all the western jurists, it is John Rawls who, in his A Theory of Justice, approximated the concept of ‘Justice’ as it is articulated in our Constitution. He virtually took his position, which the Bhagavad-Gita adopts, rejecting the utilitarian argument of Mill. Keeping in mind the provisions of our Constitution, the following two principles set forth by Rawls can be considered relevant, though they deserve to be remoulded under our Constitution’s ethos so that they promote its world-view:

“1. Each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all.

2. Social and economic inequalities are to be arranged so that they are both

a) to the greatest benefit of the least advantaged, consistent with the just savings principle, and

b) attached to offices and positions open to all under conditions of fair equality of opportunity. [22]

“This imagined choice justifies these principles as the principles of justice for us, because we would agree to them in a fair decision procedure. Rawls’s theory distinguishes two kinds of (1) liberties and (2) social and economic goods, i.e. wealth, income and power – and a goods – applies different distributions to them – equality between citizens for (1), equality unless inequality improves the position of the worst off for (2).” [23] It is what our jurists call ‘Distributive Justice’ which is a cardinal principle of Socialism as conceived under our Constitution, which is called here, with a [24] fair measure of exactness, our ‘Constitutional Socialism’.

‘Justice’ is in effect nothing but ‘fair play’. It rejects a resort to deception and camouflage to promote greed in its variegated manifestations. The system is surely unfair if it facilities a segment to scale heights in wealth, but others to die as destitutes, or live on mango-kernels, or live life worse than that of the animals, or whose voice is not heard in the din and bustle of the high pressure advertisement and the craft of the murky strategists. Such a system must be undone: whether through creative destruction or destructive creation. It is for ‘We, the People’ alone to decide. Rawls in his Political Liberalism (1993) considered society’s merely “as a fair system of co-operation over time, from one generation to the next." This humble self would would make a fleeting reflection on the operative facts to ascertain how just the social system is in this era of ‘stagnant morality but fast changing technology and astronomical digital money. Long years back Reinhold Niebuhr had so aptly said: “Man’s capacity for justice makes democracy possible; but man’s inclination to injustice makes democracy necessary.”

Our Constitution effects a powerful synergy through the key revolutionary slogans of infinite potentialities, having rich and great historic associations. This aspect of the matter was noted by Dr Ambedkar who stated with remarkable precision in the Constituent Assembly:

“What we must do is not to be content with mere poetical democracy. We must make our political democracy a social democracy as well. Political democracy cannot last unless there lies at base of it a social democracy. What does social democracy mean? It means principles ---liberty equality and fraternity as the principles of life. These principles – liberty, equality and fraternity – are not to be treated as separate items in trinity. They form a union, a trinity in the sense that to divorce one from the other is to defeat the very purpose of democracy. Liberty cannot be divorced from equality, equality from cannot be divorced from liberty. Nor can liberty and equality be divorced from fraternity. Without equality, liberty would produce the supremacy of the few over many. Equality without liberty would kill individual initiative. Without fraternity, liberty and equality could not become a natural course of things.”

“Liberty”, as used in the Preamble, can never exist unless the conditions of an egalitarian society are created. Our Constitution does not approve the so-called ‘Individualist’ and ‘liberal’ conceptions of liberty, so dear to the proponents and the protégées of the Market Economy of the present-day Economic Globalization. For them ‘Liberty’ is freedom to build their Sone-ki Lanka, or their Castle-in the-Cloud where the breed of oligapolistic plutocrats can have the best of times. Our Constitution, in effect, approves a ‘Socialist Perspective’ which means:

“ A socialist perspective, on the other hand, associates liberty with equality in wealth. As such, a socialist connects liberty (i.e. freedom) to the equal distribution of wealth, arguing that liberty without equal ownership amounts to the domination by the wealthy. Thus, freedom and material equality are seen as intrinsically connected. On the other hand, the individualist argues that wealth cannot be evenly distributed without force being used against individuals which reduces individual liberty.” [25]

The concept of Liberty, as once conceive in common law, was widened to promote/protect the economic pursuits in the phase beginning with the Industrial Revolution in the West. “Kantian and Benthamite libertarianism had dominated thought for three-quarters of a century before the new meaning began to be instilled into the Fifth and the Fourteenth Amendment. As late as 1876 in Munn v. Illinois (94 U.S. 113) the Supreme Court declined to accede to arguments based on the extended meaning.” [26] It was this early phase of the industrial development gave to the discordance in the competing interests which is a staggering fact in our days, especially in the countries wedded to the neo-liberal philosophy. That development in the early phase had led, to quote Julius Stone, “to the meager beginnings of social and labour legislation, and on the other hand to the appearance of the great corporate interests who opposed such legislation.” [27]

Equality canbe enjoyed only when the State is Egalitarian. The term ‘Egalitarian’ is from French égal’ which means equal. Under our Constitution, this mission, set by the Preamble, is striven to be achieved through the provisions of Articles 14, 15, 16, 21, 38, 39, and 46, besides, through many other provisions which contribute to the realization of the said ideal. ‘Equality’ principle under our Constitution is not what the neo-liberalists and their compatriots believe. For them ‘Equality’ is the norm operating in the segments of the ‘Haves’ and the ‘Have-nots’ in different ways, thus creating wide and inhuman cleavage in the society of humans. The concept of ‘Socialism’ or our ‘Constitutional Socialism’ contemplates an inclusive society wherein humans constitute a fraternity of equals enjoying:

(a) Social equality mandating no discrimination vide Articles 14, 15, 16, 17, 18, 19, 21; and

(b) Economic equality stressing that the State should so manage its affairs that there be no concentration of wealth (as that sort of concentration is per se unwholesome), and there be fair and just distribution of wealth and opportunities. Whilst such objectives are implied in the Part II (the Fundamental Rights) also because no pauperized , traumatized, and anguished souls can ever meaningfully enjoy the Fundamental Rights, they are specifically set forth in the Directive Principles (Articles 38 and 39), so that the fundamental rights may not become metaphysical nonsense for many.

Nehru aptly saw the correlation between Democracy and Equality when he stated;

“Democracy means equality, and democracy can only flourish in an equal society. It is obvious enough that the giving of votes to everybody does not result in producing an equal society. In spite of adult suffrage and the like, there is to-day tremendous inequality. Therefore, in order to give democracy a chance, an equal society must be created, and this reasoning leads them to various other ideals and methods. But all these people agree that present day parliaments are highly unsatisfactory.” [28]

The Constitution of the Republic of Bangladesh not only mentions the term ‘Socialism’ in its Preamble, it very significantly defines it also:

“Pledging that the high ideals of absolute trust and faith in Almighty Allah, nationalism, democracy and socialism meaning economic and social justice, which inspired our heroic people to dedicate themselves to, and our brave martyrs to sacrifice their lives in the war for national independence, shall be fundamental principles of the Constitution;” (italics supplied)

But this vision which our Constitution presents is much different from the view crafted by the neo-liberals, and their lobbyists and advocates (the supply-siders, monetarists, and the hirelings of the Washington Consensus. Even in the realm of modern economics, led largely by predators of all sorts, there are a few who are worried at the economic management made fashionable these days:

“But many other economists were worried about economic inequality, the more so after John Rawls and Ronald Dworkin had written their books. The man who came to represent these economists was an Indian but Oxford-and-Cambridge-trained academic, Amartya Sen. In a prolific series of papers and books Sen, who later held joint appointments at Harvard and Cambridge, attempted to move economists away from what he saw as the narrow interests of the Friedmans and the monetarists. One area he promoted was ‘welfare economics,’ in effect economics that looked beyond the operation of the market to scrutinize the institution of poverty and the concept of ‘need.’.” [29]

In Sawhney v. Union of India AIR 200 SC 498 our Supreme Court has eloquently said (para 133):

“Part-III dealing with 'Fundamental Rights' and Part-IV dealing with 'Directive Principles of State Policy' which represent the core of the Indian Constitutional philosophy envisage the methodology for removal of historic injustice and inequalities - either inherited or artificially created - and social and economic disparity and ultimately for achieving an egalitarian society in terms of the basic structure of our Constitution as spelt out by the preamble.”

Now ‘Fraternity’. Our Constitution contemplates Fraternity. It can not countenance a society under which someone arrogates to himself power to tell the poor and the destitutes what a Governor in the France of Louis XVI had told the starving people at Dijon: ‘The grass has sprouted, go to the fields and browse on it!” Begging was the only option left for common people (the Third Estate). [Worse than this is happening in many parts of our country where the destitutes survive on grass and kernels, to make soon a goodbye to our great Republic, and its great Constitution they had once created with hope. Commenting on this situation, Pandit Nehru wrote; ‘How India comes inevitably to our minds when we think of its poverty and misery!” How can there be ‘Fraternity’ in the denizens of this Republic, if some Shah Jahans have no compunction in building, on the planet or the cyberspace, their Diwan-i-Ams and Diwan-i-Khases announcing shamelessly what the great Mughal had done by getting the following scripted at the ceiling of Diwan-i-Khas [30] :

Agar firdaus bar ru-yi zamin ast
Hamin ast, u hamin ast, u hamin ast.

[If there be on this earth an Eden of bliss,
It is this, and this alone];

His Taj Mahals rightly received pungent criticism from the great Hindi poet, Sumitranandan Pant:

Alas! this immortal worship of the dead and gone,
When the world around groaned under distress.

(translated from Hindi by this humble self)

When Shah Jahan was ruling from his silken realm, horrible famines devastated Gujarat in 1630-1632 about which ‘Abdul Hamid Lahori, the official historian of Shah Jahan, writes, “men began to devour each other, and the flesh of a son was preferred to his love.” These things happened when the privileged few had best of all times. [Let the econometrics of our MBAs and the economists measure how far many of our men are from that lurid scenario (when they die of starvation, or live on mango kernels, or when they turn into organ farms to make their kidneys and other organs trading wares), and how close they are to the morbid situation when they would be compelled (or deluded) to turn into meat for the waxing breed of cannibals. [Many MNCs would spring up to explore the commercial possibilities of this new stuff of trade under the WTO regime.]

It is felt on good grounds that it is this ‘democratic deficit’ revealed in the deprivation, for most of our people, of Liberty and Fraternity that has led to the formation of many anarchist outfits to make the Titanic of exploitation go down its watery grave some day, some way. This call to ensure ‘Fraternity’ under our Constitution brings to mind what had been said at the end of the Rg-Veda Samhita:

Samani va akulih samana hrdayani vah

Samanam astu vo mano yatha vah susahasatiyatha vah susahasati.

[“May your opinions be uniform; may your hearts be uniform, may you all be of the same mind; thereby you will acquire the strength of unity.”]

Our Constitution is a highly purposive document. The ideals are set to generate our collective endeavour at the development of human capabilities of our citizenry. Human development becomes the supreme end, which can be achieved by providing good education, proper health care, and conditions without which human life becomes mere wares to be used by others. Our Constitution does not prescribe a period of waiting for any section of people, whilst some grow on unjustly acquired resources. Our constitutional strategy is functional and pragmatic; and it never rides roughshod on common people’s view of Justice. It becomes the supreme duty of our people to see that our Constitution is not high jacked by the schemers and crooks of diverse hues. Our Constitution presents an alternative to the Western capitalism and socialism by providing a constitutional vision which advances public good for all without indulging in building a mirage of eldorado. But a great danger always goes with high idealism, or great ideology. Our citizenry should seek light from what was said centuries back in the Katha-Upanishad :

"The sharp edge of a razor is difficult to pass over; thus the wise say the path to Salvation is hard."

This idea is so enlightening that W. Somerset Maugham wrote it as an epigraph in his novel The Razor's Edge. John Philpot Curran had said in 1790: “The condition upon which God hath given liberty to man is eternal vigilance.” A government as a public purpose vehicle often goes wrong if it is not under the vigilant ken of critical and asserive public opinion. History has taught us this lession several times: it is for us to decide how many times more we want the lession repeated before our knowledge matures into wisdom, and wisdom gets translated in public action for public weal.

Sovereign Socialist Secular Democratic Republic

The concept of Sovereignty’ is no longer what James I thought of it, or what Hobbes said about it. It is now the protocol of power granted to the organs of the State by the constitution, any transgression whereof is ultra vires, and any evasion thereof deserves to be recognized as a public misdemeanour, if not a crime. This concept of Sovereignty is, as Oppenheim says, “ a matter of internal constitutional power” in the 20th century:

“Sovereignty was, in other words, primarily a matter of internal constitutional power and authority, conceived as the highest, underived power within the state with exclusive competence therein”

Even the U S Supreme Court has observed in Hamdan’s Case [Hamdan v. Rumsfeld, Secretary of Defense, et al decided by the U.S. Supreme Court on June 29, 2006] that ‘The Court's conclusion ultimately rests upon a single ground: Congress has not issued the Executive a "blank check. [Justice Breyer, with whom Justice Kennedy, Justice Souter, and Justice Ginsburg join, concurring.]

36. The concept of ‘Socialism’ is all clear to those who have no ulterior reasons to deface and defile our Constitution. But it is a metaphysical nonsense on the stilts for those who have some other agenda to promote. We know how the greedy detractors and hirelings had called even the ‘Declaration des droits de l’homme ‘a meta-physical work—the ne plus ultra of metaphysics’ whose articles were either unintelligible, or false, or both. It all depends with what conceived notions ‘Socialism’ is considered; more specifically how our ‘Constitutional Socialism’ is considered. Great hazards are posed by the propaganda techniques more sinister than to which the Nazi had once resorted to. ‘These techniques were based on resort to simple “symbols and slogans” with “tremendously reiterated impressions” that appeal to fear and other elementary emotions in the manner of commercial advertising, a contemporary review observes. “Goebbels conscripted most of the leading commercial advertising men in Germany for his propaganda ministry,” and boasted that “he would use American advertising methods” to “sell National Socialism” much as business seeks to sell “chocolate, toothpaste, and patent medicines.” These measures were frightfully successful in bringing about the sudden descent from decency to barbarism ….” [31] . The hirelings of the neo-liberalism have done worse wonders by their craft facilitated by our Government suffering from the syndrome of a Sponsored State wherein an Opaque System is built through words and deeds no less deceptive than that used by Mephistopheles to take Dr Faust’s soul in ransom (in Marlowe’s Dr Faustus, or Goethe’s Faust).

Persons far abler than this humble self has explained what ‘Socialism’ means. Nehru was admittedly at the most conscious point of the generation which framed our Constitution. “What did socialism mean to Nehru? In fact, Nehru never defined socialism in terms of a definite scheme or rigid general principles. To him, generally, socialism meant greater equality of opportunity, social justice, more equitable distribution of higher incomes generated through the application of modern science and technology to the processes of production, the end of the acute social and economic disparities generated by feudalism and capitalism, and the application of the scientific approach to the problems of society. Socialism also meant the eventual ending of the acquisitive mentality, the supremacy of the profit motive, and capitalist competitiveness and the promotion instead of the cooperative spirit. It also meant the gradual ending of class distinctions and class domination. Socialism also laid down on the large-scale social ownership or control over the principle means of production but Nehru insisted that, first of all, socialism concerned greater production, for there could be no equal distribution of poverty. In fact, to him socialism was equal to greater production plus equitable distribution.” [32]

But most graphic account of the fundamentals of our Constitutional Socialism is found in some of the celebrated decisions of our Supreme Court: to quote from two widely known judgments:

(a) Excel Wear v. Union of India (AIR 1983 SC 130 (para 33) the Hon’ble Supreme Court explained the concept of Socialism comprehensively. The following propositions emerge from the judicial observations:

(i) Concept of socialism or a socialist state has undergone changes from time to time, from country to country and from thinkers to thinkers. But some basic concept still holds the field.

(ii) The Court quoted Gajendragadkar J., from Akadasi Padhan v. State of Orissa AIR 1963 SC 1047, who drew distinction between the approaches of the socialist and the rationalist. “To the socialist, nationalization or State ownership is a matter of principle and its justification is the general notion of social welfare. To the rationalist, nationalization or State ownership is a matter of expediency dominated by considerations of economic efficiency and increased output of production. This latter view supported nationalization only when it appeared clear that State ownership would be more efficient, more economical and more productive. The former approach was not very much influenced by these considerations, and treated it a matter of principle that all important and nation-building industries should come under State control. The first approach is doctrinaire, while the second is pragmatic. The first proceeds on the general ground that all national wealth and means of producing it should come under national control, whilst the second supports nationalization only on grounds of efficiency and increased output."

(iii) The difference pointed out between the doctrinaire approach to the problem of socialism and the pragmatic one is very apt and may enable the courts to lean more and more in favour of nationalization and State ownership of an industry after the addition of the word 'Socialist' in the Preamble of the Constitution.

(iv) The Court considered the parameters under which private ownership is justified.

But the classic exposition of Socialism under our Constitution was made by Justice Chinnappa Reddy in a Constitution Bench decision in D. S. Nakara v. Union of India AIR 1983 S.C130: to quote in extensor--

“What does a Socialist Republic imply? Socialism is a much misunderstood word. Values determine contemporary socialism pure and simple. But it is not necessary at this stage to go into all its ramifications. The principal aim of a socialist State is to eliminate inequality in income and status and standards of life. The basic framework of socialism is to provide a decent standard of life to the working people and especially provide security from cradle to grave. This amongst others on economic side envisaged economic equality and equitable distribution of income. This is a blend of Marxism and Gandhism leaning heavily towards Gandhian socialism. During the formative years, socialism aims at providing all opportunities for pursuing the educational activity. For want of wherewithal or financial equipment the opportunity to be fully educated shall not be denied. Ordinarily, therefore, a socialist State provides for free education from primary to Ph. D. but the pursuit must be by those who have the necessary intelligent quotient and not as in our society where a brainy young man coming from a poor family will not be able to prosecute the education for want of wherewithal while the ill equipped son or daughter of a well to do father will enter the portals of higher education and contribute to national wastage. After the education is completed, socialism aims at equality in pursuit of excellence in the chosen avocation without let or hindrance of caste, colour, sex or religion and with full opportunity to reach the top not thwarted by any considerations of status, social or otherwise. But even here the less equipped person shall be assured a decent minimum standard of life and exploitation in any form shall be eschewed. There will be equitable distribution of national cake and the worst off shall be treated in such a manner as to push them up the ladder. Then comes the old age in the life of everyone, be he a monarch or a mahatma, a worker or a pariah. The old age overtakes each one, death being the fulfillment of life providing freedom. from bondage. But here socialism aims at providing an economic security to those who have rendered unto society what they were capable of doing when they were fully equipped with their mental and physical prowess. In the fall of life the State shall ensure to the citizens a reasonably decent standard of life, medical aid, freedom from want, freedom from fear and the enjoyable leisure, relieving the boredom and the humility of dependence in old age. This is what Article 41 aims when it enjoins the State to secure public assistance in old age, sickness and disablement. It was such a socialist State which the Preamble directs the centres of power Legislative, Executive and Judiciary to strive to set up. From a wholly feudal exploited slave society to a vibrant, throbbing socialist welfare society is a long march but during this journey to the fulfilment of goal every State action (illegible) taken must be directed, and must be so interpreted, as to take the society one step towards the goal.”

This humble self submits that:

(a) the Hon’ble Court would have done better if it would have examined some key constitutional provisions to hold what constitutes the profile of our Constitutional Socialism; but

(b) the Hon’ble Court touched the heart of the matter when it said: “This is a blend of Marxism and Gandhism leaning heavily towards Gandhian socialism.”

And the core expectation of the Father of the Nation was graphically described by Gandhi himself in these words, which can be forgotten only at our peril. He had said before the Second Round Table Conference:

“….I shall work for an India, in which the poorest shall feel that it is their country in whose making they have an effective voice; an India in which there shall be no high class and low class people; an India in which all communities shall live in perfect harmony. There can be no room in such an India for the curse of untouchability or the curse of intoxicating drinks and drugs. Women shall enjoy the same rights as men….”

The concept of ‘Secularism’, which was inserted in the Preamble to the Constitution by the 42nd Constitutional Amendment, is noticed here only for two material reasons:

(a) In S. R. Bommai v. Union of India Ahmadi, J. made out two very relevant points:

(i) Notwithstanding the fact that the words `Socialist' and `Secular' were added in the Preamble of the Constitution in 1976 by the 42nd Amendment, the concept of Secularism was very much embedded in our Constitutional philosophy.

(ii) The term `secular' has advisedly not been defined presumably because it is a very elastic term not capable of a precise definition and perhaps best left undefined. By this amendment what was implicit was made explicit.

This humble self is of the view that the above two reasons are equally relevant in the case of ‘Socialism’ too. The concept of Democracy, as conceived under our Constitution, is founded on the concept of ‘Social Justice’. ‘Democracy’ under our Constitution has its specific constitutional content. It differs from what its Neo-liberal re-iterators keep on Drumming into our ears. Its Neo-liberal version is what is said thus by Chomsky:

“As Ocampo observes, the neoliberal reforms are antithetical to promotion of democracy. They are not designed to shrink the state, as often asserted, but to strengthen state institutions to serve even more than before the needs of the substantial people. A dominant theme is to restrict the public arena and transfer decisions to the hands of unaccountable private tyrannies. One method is privatization, which removes the public from potential influence on policy. An extreme form of privatization of “services, “a category that encompasses just about anything of public concern: health, education, water and other resources, and so on. Once these are removed from the public arena by “trade in services,” formal democratic practices are largely reduced to a device for periodic mobilization of the public in the service of elite interests, and the “crisis of democracy” is substantially overcome.” [33]

Democracy, can never be imposed from outside [34] , choreographed by the syndicate of the global gladiators in the spheres of trade and manufacture. For them ‘democracy is good thing if and only if it is consistent with strategic and economic interests’

Under our Constitution, ‘Democracy’ is not a political strategy. It is essentially a socio-political mission to be achieved by the political participation by all for the welfare of all. Our Supreme Court has struck the heart of the matter when it said that the word ‘democratic’ under our Constitution envisages not merely political democracy but also social and economic democracy. In the present phase when the corporations virtually rule, and the looters loot adopting the strategy of stealth, the election is becoming a mere device to capture power by manipulating democratic institutions. Public Opinion gets misguided and bewildered by the decorated persuaders engineering their ideas in numerous ways, adroit and deceptive at the same time. ‘America’s leading twentieth-century social philosopher, John Dewey, concluded that “politics is the shadow cast on society by big business” and will remain so as long as power resides in “business for private profit through private control of banking, land, industry, reinforced by command of press, press agents and other means of publicity and propaganda” Accordingly, reforms will not suffice. Fundamental social change is necessary to bring about meaningful democracy.’ [35] ‘Of equal concern is what globalization does to democracy. Globalization, as it has been advocated, often seems to replace the old dictatorships of national elites with new dictatorships of international finance. Countries are effectively told that if they don’t follow certain conditions, the capital market of the IMF will refuse to lend them money. They are basically forced to give up part of their sovereignty, to let capricious capital markets, including the spectators whose only concerns are short-term rather than the long-term growth of the country and the improvement of living standards, “discipline” them, telling them what they should and should not do.’ [36]

Our egalitarian ‘Democracy’ cannot survive in fidelity with our Constitution if the country itself gets trapped in the capitalist philosophy the core of which had been stated by one of the founding fathers of the U S Constitution, James Madison. He said that Power should be in the hands of “the wealth of the nation…the more capable set of men.” ‘Warning his colleagues at the Constitutional Convention of the perils of democracy, Madison asks them to consider what would happen in England “if elections were open to all classes of people.” The population would then use its voting rights to distribute land more equitably.” [37] Our Constitution rejects such unjust parochial and anachronistic idea of the syndicate of the capitalists.

Our Constitution rejects the idea of the “trickle-down theory," as its usefulness is not proved despite the claim by John F. Kennedy's that “a rising tide floats all boats". This plea, (so dear to the disciples of the IMF, the World Bank, the WTO, and the believers in Reaganomics or supply-side economics), deserves to be rejected (as it is, to borrow the expression of John Kenneth Galbraith, just a "horse and sparrow theory": if you feed enough oats to the horse, some will pass through to feed the sparrows. The State, which we have organized under our Constitution to promote our ‘Constitutional Socialism’, is not a corporation. It is distressing to see that these days it is getting adroitly turned into a Corporation with all the ills of modern corporations. The plight is well portrayed by Gailbraith, which is this summarized by Peter Watson:

“One important result of this, says Galbraith, is that the shareholders nowadays have only nominal control over the company that, in theory, they own, and this has significant psychological consequences for democracy. Second, mature companies, mass-producing expensive and complex products, in fact have very little interest in risk or competition. On the contrary, they require political and economic stability so that demand and growth in demand, can (within certain limits) be predicted. The most important effect of this, Galbraith argued, is that mature corporations actually prefer planning in an economy. In traditional conservatism, planning smacks of socialism, Marxism, and worse, but in the modern world mature corporations, who operate in an oligopolistic situation, which to Galbraith is but a modified monopoly, cannot do without it.” [38] “Everything else in the new industrial state, says Galbraith, stems from these two facts. Demand is regulated, as Keynes showed, partly by the fiscal policy of governments-which presupposes a symbiotic relationship between the state and the corporation-and by devices such as advertising (which, Galbraith believes, has had an incalculably ‘dire’ effect on the truthfulness of modern society, to the point where we no longer notice how routinely dishonest we are). And additional characteristic of modern industrial society, Galbraith says, is that more and more important decisions depend on information possessed by more than one individual. Technology has a great deal to do with this. One consequence is new kind of specialism: people who have no special skills in the traditional sense but instead have a new skill-knowing how to evaluate in formation.” [39]

Our Constitution wants the State to work for people’s welfare. It rejects the duplicity of the neo-capitalism which wants the Government to roll back from people’s welfare activities, but requires it to keep a symbiotic relationship between the state and the corporations. This strategy, which made the government an instrument for the market, had been advocated by Bentham, James Mill, John Stuart Mill and T.H. Green in the 19th century; and it is now the nostrum prescribed by the neo-liberals. Their laissez-faire economics was basically elitist, and undemocratic. The tiny creative (?) minority of the corporate oligarchy and the syndicates of the nether-world power wielding vested interests are asserting shamelessly their power to make the political government dance to their tune. Our Constitution does not permit such subversion. But the point is what is to be done to preserve, protect and uphold it. We cannot forget what Whittier said in "Maud Muller":

For of all sad words of tongue or pen,
The saddest are these: "It might have been!


Fundamental Rights

*Fundamental Rights: Art 14

Art. 14, which has been held a Basic Feature of our Constitution in a number of recent decisions [40] of our Supreme Court, is, in effect, just a juristic version of the well-known Vedantic doctrine, expressed in the Bhagavad-Gita, and articulated in the suggestive expression: ‘Panditah samadarshin’ (Ch. IV. 18)

Art. 14 mandates the State:

(i) not to deny any person equality before law; or

(ii) not to deny the equal protection of laws,

Our Constitution is illustrating this egalitarian, and justice-oriented doctrine of ‘Panditah samadarshin’. It says “samadarshin”, not “samvartinah”. Samadarshin means ‘equality in perception’ (“samadarshin”), not ‘equality of treatment’. Different treatment is justified on fair appreciation of situational variables, but there should be no discrimination in factors governing perception and evaluation. Sloka 9 in Chapter VI illustrates this great principle of justice. [41] [Article 14 of our Constitution says precisely this, though not with that excellence in precision. Both the new doctrine (anything arbitrary and unreasonable is in breach of Art. 14) and the old doctrine (classification with reasonable differentia with a reasonable nexus with permissible objective) of Art. 14 are evident in it.] But the State under our Constitution is not a passive on-looker idling on the fence, or a sharp operator for the syndicate of vested interests promoting the neo-colonial or neo-liberalist ideas. It is an instrument for public weal, it is a vehicle for public purpose, it is an instrument to work for lokasamgraha. Our Constitution contemplates a dynamic society in which the grammar of karma and kartavya is inexorably at work. But the loadstone for all the organs of our society and polity under our Constitution is the welfare not of segments but of the whole. [The fact that the operative realities have shown deficits of the State can not disprove the point made. The deficits are the factors of pathology which should have been got rid of by our vigilant endeavours. If they still bedevil us, the faults are with us, neither with our stars, nor with our Constitution.]

It is evident from our jurisprudence that our Constitution has authorized the operation of the doctrine of classification based on an intelligible differentia with a reasonable nexus with the objective reasonably permitted to operate by the law. But this judicially evolved doctrine can never transgress the most fundamental principle under our constitutional governance, the Welfare of All (which we call Egalitarianism). We need this Constitution as an impregnable dyke against the anti-people act. This was the reason why the Case of the Five Knights was rejected by the framers of the U.S Constitution. The Executive cannot bid farewell to the Welfare State. The reality which is being generated under the directives of the aforesaid trinity has been portrayed in a modern allegory:

“The Cloud Minders, episode 74 of the popular science fiction television series Star Trk, took place on the planet Ardan. First aired on Feb. 28, 1969, it depicted a planet whose rulers devoted their lives to the arts in a beautiful and peaceful city, Stratos, suspended high above the panet’s desolate surface. Down below, the inhabitants of the planet’s surface, the Troglytes, worked in misery and violence in the planet’s mines to earn the interplanetary exchange credits used to import from other planets the luxuries the rulers enjoyed on Stratos.”

If the constitutional commitments were to be given up, the right course is to tell the people in clear terms. The Executive cannot bid farewell to the Welfare State by adopting the technique of stealth under an opaque system.

Our Supreme Court has generally promoted the Egalitarian Vision of our Constitution even in deciding cases where it applied the doctrine of Classification. But there are some perturbing instances where it could not maintain that level. Such judicial revisionism would delight those who are striving to make even Judiciary market-friendly. The neo-liberal think-tanks of Chicago and Yale, through the web of intellectuals overcast in the world these days, are motivating the political organs to subject our Constitution to neo-liberal interpretation even if that requires trashing the established principles of constitutional interpretation. Two such cases are these:

(a) The Bearer Bonds Case ( R.K. Garg v. Union) [42] : where a legislation ‘reeking with immorality’ which differentiated between the honest tax-payers and the tax-evaders was upheld, as the Court refused to subject the issue its critical gaze on the ground that it must show deference to the legislative judgment in the sphere of economic matters. This sort of approach elicited the following acid comments from one of the Hon’ble Judges: Gupta J. who said:

“To pass the test of reasonableness if it was enough that there should be a differentia which should have some connection with the object of the Act, then those observations made in Maneka Gandhi and Royappa would be so much wasted eloquence.”

(b) The Indo-Mauritius Tax-Treaty Case (Azadi Bachao & Anr. V. Union of India): where the loot and wrongful gains of the neo-liberal operators through the tax havens were considered justified when the bilateral tax treaty between India and Mauritius was accessed for wrongful gains (for tax savings, money-laundering, criminal layering of funds, strategy for the crooks and the criminals to transmit to India funds to subvert its polity, etc) by those not entitled under international law; and thus was a clear fraud on our Constitution. This was done on the sole ground to facilitate the inflow of foreign money irrespective its source, fair or foul.

Article 14 is to be read under the creative and ameliorative synergy of Articles 19, 21, 25, 29, 38, 39…... not in an atomistic way. They invigorate each other to achieve the socialist vision unfolded in our Constitution.

In in Ajay Hasia v. Khalid Mujib Sehravardi [43] , and in many other cases, the Hon’ble Court developed an activist dimension of Art. 14 of our Constitution. It said:

“ It was for the first time in E. P. Ayyappa v. State of Tamil Nadu, (1974) 2 SCR 348: (AIR 1974 SC 555), that this Court laid bare a new dimension of Article 14 and pointed out that that Article has highly activist magnitude and it embodies a guarantee against arbitrariness… From a positivistic point of view equality is antithetic to arbitrariness.’" …… “Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence.”

The points to be considered are;

(i) whether it is reasonable to allow two nations to emerge in our country, those who roll in wealth, and those who are bound on the wheel of fire of poverty, ignorance, and bad health;

(ii) whether is a fair and just that the wealth of the society gets concentrated in a few hands whose heart lay abroad, in tax havens, or other dark places on the earth;

(iii) whether it is reasonable to implement the fashionable neo-liberal ideology by ignoring the Constitution;

(iv) whether the State is allowed to ignore the duty of remembering the ideas and ideas of our Freedom Movement which the ordinary mortals are counseled to remember, and whereon to act, by the Fundamental Duties prescribed under the Constitution; or,

(v) whether it is fair to allow to get our constitutional egalitarianism, or our ‘Constitutional Socialism’ trounced on account of pressure from the votaries of the neo-liberalism, which is a mere corporate imperialism under the U S hegemony?

*Fundamental Rights: Art 19

Our ‘Socialist Democracy’ is premised on our people’s participation to achieve the constitutional goals set forth in the Preamble to the Constitution. This is made possible only when there is Right to Know. The fundamental right to “freedom of speech and expression” cannot be exercised properly unless the Right to Know is effectively recognized. Our Supreme Court has recognized the supreme importance of the Right to Know. In Reliance Petrochemicals Ltd. v. Proprietors of Indian Express Newspapers Bombay Pvt. Ltd [44] [followed in S.N. Hegde v. The Lokayukta, Banglore [45] .], this Hon’ble Court observed:

“We must remember that the people at large have a right to know in order to be able to take part in a participatory development in the industrial life and democracy. Right to know is a basic right which citizens of a free country aspire in the broaden horizon of the right to live in this age on our land under Art. 21 of our Constitution. That right has reached new dimensions and urgency. That right puts greater responsibility upon those, who take upon the responsibility to inform.”

* Art 21

It is honestly believed that our socio-economic realities continue to be the same which were graphically described by our Supreme Court in Olga Tellis v. Bombay Municipal Corporation [46] . That the concept of Right to Life as conceived under Art. 21 has been held to include:

(i) the right to live with human dignity;

(ii) the right to enjoy all aspects of life which go to make a man’s life meaningful, complete and worth living. The concept got an activist dimension under Maneka v. Union of India [47] ;

(iii) the Right to Know as “there is also a strong link between Art. 21 and the right to know…” [48] ;

(iv) The Right to Reputation [49]

(v) The right to health, life and livelihood [50] and education

A visit to the villages in Bihar, especially during the floods, would make those, who still have their souls not sold, feel that even Heidegger’s or Franz Kafka’s world is brighter and better laced with a faltering hope. In most parts of the country most people are , even after 50 years of India’s independence, bound on the wheel of fire. Starvation deaths are much more than what are reflected in the government’s statistics. In these locust-eaten years truthfulness is the first casualty in the realm of those who exploit and ignore the vast millions treating them as commodities to be used as wares in trade, or as organ farms. These morbid things are happening when nearly 380 million Indians live on less than a dollar a day. Our country’s $ 728 per capita GDP is just slightly higher than that of sub-Saharan Africa. An expert has drawn the following bleak picture [51] :

“Malnutrition affects half of all children in India, and there is little sign that they are being helped by the country’s market reforms, which have focused on creating private wealth rather than expanding access to health care and education. Despite the country’s growing economy, 2.5 million Indian children die annually, accounting for one out of every five child deaths worldwide; and facilities for primary education have collapsed in large parts of the country (the official literacy rate of 61 per cent includes many who can barely write their names). In the countryside, where 70 percent of India’s population lives, the government has reported that about 100,000 farmers committed suicide between 1993-2003.”

The plight of our common people, which P. Sainath had drawn up in Everybody Loves a Good Drought (p. 48), is still gruesome as it was just a few years back. [52]

The Republic of India has now turned out a country of two nations, one of 97% of the Indians surviving on the precipice, and the rest whose wealth is increasing in a crescendo. The impugned Instructions and the impugned Rules fail to protect the loot of our national resources by masqueraders and fraudsters depleting our national resources essential to enable us to enjoy “the right to life” which at present, stands denied to most of our common people even in such key-areas as education and health. It is high time to hold that the impugned Instruction and the impugned Rules promote an opaque system destructive of the Rule of Law and promotive of the possibilities of corruption and arbitrariness. Using the famous words of Lord Russell of Killowen CJ, it can be boldly asserted:

‘Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires’. [53]

Our ‘Constitutional Socialism’ does not conceive the sordid reality under which people become , what Alexander Milton called, “the great beast”, to flogged or led.

Our Hon’ble Supreme Court has illustrated the heart of our ‘Constitutional Socialism’ by treating Right to Livelihood an integral part of the Right to Life [ Narendra Kumar v. State of Haryana (1994) 4 SCC 460 ].This salutary judicial perception led our Supreme Court to apply the Doctrine of Public Trust in order to preserve ecology and environment [ M C Mehta v. Kamal Nath (1997) 1 SCC 338]. How close is this approach to our native egalitarian genius which got expression in the story of Kalya Nag in Canto X, Chap. 16 of the Srimad Bhagavad Mahapurana.This Kalya Nag had polluted the river Yamuna, and had spread its toxic effect all around which was destructive of the life of all other animate creatures. Krishna killed him as Social Justice demanded it. This sort of acquisitive perniciousness is neither appreciated in our culture, not countenanced under our Constitution. The cosmic oneness has been stressed by Krishna in the Bhagavad-Gita (Chap. 10), where he shows that the rivers, trees and other beings are all His embodiments. Let not any section of humans feels that the Nature, or other beings, exist for the greedy exploiters.

What our Hon’ble Supreme Court has done is simply to stress the need “to halt negative externalities ---actions by one party that adversely affect others ---and on the opportunity to promote, by acting together, the well-being of all through the provision of global public goods, the benefits of which are enjoyed around the world.” This requires to be stopped through State regulations and taxation. Negative Externalities must end. This duty is mandated under our Constitutional provision: it is one of the prime pursuits of all the organs created under the Constitution.

The Negative Externalities of this greedy Rule of Market (Pax Mercatus) has increased inequalities, and has made poverty more and unbearable both in absolute terms, as also because of the pangs bred by the horrendous contrast which has popped out because of the cleavage in the society. The Trickle down theorists may paint a rain- bow for amelioration at some future date, but this must be dismissed as it is no different from the dictators asking people to wait till a new dawn breaks (which never breaks). But, then, it surely leads to a situation about which an expert says:

“Insecurity was one of the major concerns of the poor; a sense of powerlessness was another. The poor have few opportunities to speak out. When they speak, no one listens; when someone listens, the reply is that nothing can be done. A remark in the World Bank report, from a young woman in Jamaica, captures the sense of powerlessness: “Poverty is like living in jail, living under bondage.”

* Right to Freedom of Religion

The Right to Freedom of Religion is one of those Fundamental Rights with a clear and vibrant socialistic mission. The following points deserve to be noted:

(i) As in the history of the world, the organized religion has always been either an imperium itself (as was the Christian Church during the Middle Ages), or the follower of the flag, or the leader of a flag (as during the era of the classical imperialism of the East, or the Turk-Afghan domination), or a vector in neo-imperialism ( as it is now under the capitalist regime). Our Constitution has shown Religion as a factor of no concern for polity, leaving it a pursuit in the private domain of the citizenry, of course under conditions of Freedom as our State has no axe to grind on this score.

(ii) Our Constitution does not consider religion an opium of the Society, but it does not consider it an elixir for invigoration. Scholars have been hired to produce literature of dubious worth. Francis Fukuyama in The End of History and the Last Man (1992) draws a panegyric of the free-market economy by singing the litany of liberal democracy dubbing it the ‘endpoint of mankind’s ideological evolution’. Knowing that ours is a profoundly scientific age, it is asserted that there is a universal evolution in the direction of capitalism. The idea of political liberation, which inspired our Constitution-makers, is sought to be replaced by deceptive notions of personal liberation. All institutions are engineered to become market-friendly. A new idealism of market forces has been created making our Constitution otiose and anachronistic. It is said that the civilization of India, Pakistan, Iran, Malaysia, and Indonesia is medieval and decaying. Arrogance reaches its nauseating height when it is shamelessly stated that Christianity is more “evolved” than other religions and philosophies.

(iii) The US Constitution (when read with the Declaration of Independence) recalls God even in staging a revolution against the imperial power; under the British Constitution King is itself the Vice-regent of God ever present in the court, and under the Islamic jurisprudence the instructions of Allah are supreme. Our Constitution believes in values, of its Constitutional Socialism. Our polity is unique.

* Our Cultural Rights

Never our culture was in peril worse than what it is now under the suffocating avalanche of high-pressure commercialism begotten by neo-colonialism. The corporate interest is to destroy our cultural tradition for reasons which include these:

(i) If our society is to be kept under the bondage of the western consumerist colonialism, we must be made to forget our glorious past so that we can be shepherded with ease. Such things had happened at the advent of the Middle Ages, and are fast happening now.

(ii) The Hindu and the Islamic societies have a life-style of moderation wherein values, viz. simple living, are considered important. But this approach to life does not promote the corporate agenda of promoting consumerism by creating wants and exposing us to needs of all sorts. The Bhagavad-Gita was all against consumerism (Chapt. VI. 16; Chap. XVI. 12): so was the great Koran, and the Holy Bible.

(iii) The days have gone when Bloomfield considered Panini the greatest monument of human intelligence, when Frederich Schlege marveled at Indian philosophy and Schopenhauer (1788-1860) preferred religions of India. Gone are days when Spangler and Toynbee saw great light in the East, when Aldus Huxley and Isherwood found in the Vedant the culmination of human thought, when T.S. Eliot and Somerset Maugham got most stimulating and illuminating thought in Indian Literature. Never our culture was in peril greater than what it is now under the suffocating avalanche of high-pressure commercialism begotten by neo-colonialism.

The situation wrought in these years of capitalist culture is subverting our whole value system, which sustains our culture. An expert has highlighted this cultural crisis thus:

““The elite sections are educated in the elitist western system and increasingly imbibing western values. The lower sections, for good jobs, are trying to imbibe similar values. Thus, the earlier system of values has rapidly broken down under the onslaught of the western domination and the penetration of markets into our consciousness. However, new values to replace them have not emerged. The checks and balances of the western systems have not evolved here and anyway that took them several centuries to put in place. Values are not created by the market since it is amoral and immoral and has no inherent values of its own. It is society which evolves values. However, since the copying of the western system has severely curtailed our dynamism it has also curtailed our ability to evolve the new value system suited to our requirements. We may be underdeveloped but we can be civilized if we try……All that can go wrong in society will do so since commercialization is disturbing the fine balance between the various facets of life evolved over time. After all, wrong is only a social category sustained by social mores and a conscience both of which are now severely degraded. Increasingly, nothing matters anymore but the market.” [54]

China is now one country with two systems, and there are good reasons to believe that bulk of the formal ‘communists’ have undergone a mutation to bourgeoisie. China is now a capitalist country. It is great that our Constitution permits no ding-dong between communism/socialism and capitalism. It develops through its provisions the egalitarian ideas which we call our ‘Constitutional Socialism.’ What is remarkable is that our Constitution creates a value system on our tradition’s altruistic and equitable ideas [ as the animal-specific traits of capitalism (its acquisitiveness and greed) could not be otherwise elevated to the level of cultural egalitarianism], which is an essential foil to our ‘Constitutional Socialism’.


Directive Principles of State Policy

The symbiosis between the Fundamental Rights and the Directive Principles has been often stressed by our Supreme Court [55] . “With the expanding horizons of socioeconomic justice, the Socialist Republic and Welfare State which the country endeavors to set up…. The thrust of Article 14 is that the citizen is entitled to equality before law and equal protection of laws. In the very nature of things the society being composed of unequals, a welfare State will have to strive by both executive and legislative action to help the less fortunate in society to ameliorate their condition so that the social and economic inequality in the society may be bridged.” [56] “The broad egalitarian principle of social and economic justice for all was implicit in every Directive Principle and, therefore, a law designed to promote a Directive Principle, even if it came into conflict with the formalistic and doctrinaire view of equality before the law, would most certainly advance the broader egalitarian principle and the desirable constitutional goal of social and economic justice for all. If the law was aimed at the broader egalitarianism of the Directive Principles….” [57] , “The Constitution envisages the establishment of a welfare state at the federal level as well as at the State level.” [58] In Kesavananda’s Case (AIR 1973 SC1461 at 1641) , Hegde and Mukherjea JJ. observed:

“The Fundamental Rights and Directive Principles constitute the “conscience of the Constitution…”. There is no antithesis between the Fundamental Rights and Directive Principles ….and one supplements the other.”

This symbiosis can be illustrated with reference to Articles 14 and 21. In Indra Sawheny v. UoI (AIR 1993 SC 447 para 4) the Hon’ble Supreme Court held that Art 14 is to be understood in the light of the Directive Principles. Art. 14 cannot triumph unless effective steps are taken to realize the objectives set forth under Articles 38 and 39, 39A, 41…. How can Art. 21 be really effective in our polity unless there is right to livelihood? In Narendra Kumar v. State of Haryana IT (1994) 2 SC 94 our Supreme Court observed that the right to livelihood is an integral facet of the right to life. In a number cases the activist dimensions of Art. 21 have been creatively explored.

Art. 37 make the Directive Principles non-enforceable by the court, “but the principles laid down are nevertheless fundamental in governance of the country and it shall be the duty of the State to apply these principles in making laws.” Jurisprudence recognizes rights some of which are enforceable whilst others are not. [59] In fact, our Hindu jurisprudence defines dharma as kartavya only [60] . Leon Duguit does not recognize rights: he recognizes duties only. [61] The Duty cast under Art 37 is cast on the State to be discharged for the benefit of ‘We, the People’ who have their interests protected by the Constitution. The State can take its time in view of scarce resources to fulfill its duties, but it would exceed its authority if it abrogates them, or frustrates them, or make their realization prima facie as remote as an Eldorado. Duguit’s oft-quoted view is, to quote Allen [62] :

‘In other words, the notion of public service replaces the conception of sovereignty as the foundation of public law.’

Under our polity both the Fundamental Rights and the Directive Principles protect people’s interests generating new facets of the Fundamental Rights, in close synergy with the Directive Principles to achieve for ‘We, the People’ an overarching objective of the welfare state. Welfare State in England was a policy decision of the Crown and the Parliament. In India, the Welfare State is the very mission of the Constitution which neither Parliament nor the Executive can ditch for any reason whatsoever. In India the radical transformation to the regime of Market can be done, if at all it can ever be done, it can be done only by ‘We, the People’.


Segment ‘C’:

Property & our Constitutional Socialism

At their heart, the neo-liberals believe what their eminent predecessor James Mill had said about Socialistic ideas of Owen and Hodgskin:

‘Their notions of property look ugly; . . . they seem to think that it should not exist, and that the existence of it is an evil to them. Rascals, I have no doubt, are at work among them. . . . The fools, not to see that what they madly desire would be such a calamity to them as no hands but their own could bring upon them.

Bertrand Russell aptly says that this “letter, written in 1831, may be taken as the beginning of the long war between Capitalism and Socialism. In a later letter, James Mill attributes the doctrine to the ‘mad nonsense’ of Hodgskin, and adds: ‘These opinions if they were to spread, would be the subversion of civilized society; worse than the overwhelming deluge of Huns and Tartars.’” The doctrine of Free Competition was developed under the impact of Darwinism, and unbridled individualism.

Marxism was an answer to such idiotic and greedy notions as to property. Pandit Nehru, who was a dynamic light in our Constituent Assembly, describes the Marxist approach in words which cannot be bettered:

“Marx also looked upon history as a record of struggles between different classes. “ The history of all human society, past and present, has been the history of class struggles.” The class which controls the means of production is dominant. It exploits the labour of other classes and profits by it. Those who labour do not get the full value of their labour. They just get a part of it for bare necessaries, the rest, the surplus, goes to the exploiting class. So the exploiting class gets wealthier from this surplus value. The State and the government are controlled by this class which controls production, and the first object of the State thus becomes one of protecting this governing class. “The State is an executive committee for managing the affairs of the governing class as a whole”, says Marx. Laws are made for this purpose, and people are led to believe by means of education, religion, and other methods, that the dominance of this class is just and natural. Every attempt is made to cover the class character of the government and the laws by these methods, so that the other classes that are being exploited may not find out the true state of affairs, and thus get dissatisfied. If any person does get dissatisfied and challenges this system, he is called an enemy of society and morality, and a subverter of old-established customs, and is crushed by the State.” [63]

The Right to Property, as originally granted under Art 31 of the Constitution, was one of the lapses to which our Constituent Assembly had succumbed. It was modeled on Articles 229 and 300 of the Government of India Act, 1935, which had an obvious interest in protecting the property rights of the Zamindars and the other acquires of wealth. As the First and the Second Estates never bothered about the Third Estate in the pre-revolutionary France, the framers of the Government of India Act, 1935 hardly had any sympathy and empathy for the common millions, the Third Estate of India. The folly was realized soon, and by several Constitutional Amendments, much was done to make the institution of Property socially accountable for public welfare. The crescendo of the corrective pursuit was reached when Art 31 was done away with by Constitution (44th Amendment), 1978, w.e.f. 20-6-9

It is to be noted that during the debate on the 44th Amendment Bill which became the 42nd Constitutional Bill, the Prime Minister Mrs. Gandhi explained that the insertion of ‘Socialist’ by the 42nd Constitutional Amendment was not to bring about or authorize ‘Collectivism’ or “State Socialism”, but only for granting Equal Opportunity, or Socio-Economic Reforms. [64] Nothing can be drawn to eclipse or dilute her view by banking on the fact that her Party opposed in the Rajya Sabha the Janta Government’s Amendment Bill to define ‘Socialism’: for reasons as these---

(1) First, the opposition was strategic for political reasons in the changed scenario.

(2) Second, as was said in Fundamental Rights Case (AIR 1973 SC at p. 1617): However, the rejection of an amendment does not always lead to the conclusion that the change proposed was negatived; it might be that the amendment was considered unnecessary. [65]

(3) The statement of the person who moves a Bill is to given due weight to comprehend the objective intended to be achieved. Navnit Lal C. Javeri v. K. K. Sen

The Art. 300A of our Constitution, inserted by the Constitution (44th Amendment ) Act, 1978, now puts the Right to Property in a new light in tune with the egalitarian social philosophy so dear to our Constitution-makers. Right to Property ceased to be Fundamental Right, is not a part of the basic structure of the Constitution [M.K. Kachar v. State of Gujarat JT (1994) 4 SC 473]. 61. It requires some explanation when an assertion is made that now the Right to Property is a human right, and also a constitutional right. Property is surely a human right, as if one has no property to survive with dignity, one tends to become the property of others. But this does not mean that the vast millions be pauperizes and uprooted to become commodities for others to use. Our Constitution can never countenance such servitude, such exploitation. In fact, even before the changes brought about by the 44th Const. Amendment ‘Property’ was not considered a basic feature of our Constitution thus it ranked very low in the list of desired things mellifluously set forth in the Preamble to our Constitution.

Art. 300A of our Constitution says:

“No person shall be deprived of his right to property save by he authority of law.”

The grammar and the discipline of the acquisition and distribution of wealth is prescribed in Art 39(b), and (c) of our Constitution, being a provision in Part IV, being the Directive Principles of State Policy. Our Supreme Court had stated in Bandhua Mukti Morcha, ‘that the right to live with human dignity enshrined in Art 21 derives its life breath from the Directive Principles.’ This illustrates a judicially perceived synergy between the Fundamental Rights and the Directive Principles of State Policy.

During the Ancien Régime (before the French Revolution) the estates of the realm were the nobility, the clergy, and the commoners , the first two estates were extractive and exploitative, and cornered all the resources leaving the third estate to maintain them and the King from whatever they could eke out in their struggle for existence. The neo-liberals want to bulid up a similar sratified society. Wiser as they are from the lessons of the past they subjugate the political realm by ensuring the emergence of an opaque system under which the suffering millions go unnoticed under the hope that they would perish in the end. The Third Estate wanted to be treated as humans [66] . Now under the new Economic Globalization the denizens of the Third Estate are spread over the whole world foreboding a comining cataclysm whatever be the strategy to arrest it. It is wished that our Constitutional Socialism would stand us in good stead through these dark times.

An overview of the history of the world would show some remarkable turning points on certain fundamental aspects of the Right to Property:

(i) In the State of Nature, at the dawn of history, Property was held in common by all, and for all. Later the peace of enjoyment was disturbed by the emergence an exploitative minority through devious stratagems.

(ii) In the period dating back to 5000 years, Shri Krishna asserted against the greedy acquisition of property by stressing that what is not needed by individuals for legitimate needs for existence must go the State for the welfare of humanity. Thus he justified the balancing of public and private interests under the aspects of Justice. Property acquired for selfishness alone was THEFT.

(iii) Jesus stood against the exploitation by the Herodian establishment, and the extractive investment by the money-changers of Jerusalem. Jesus told his disciplines that one could not serve God and Mammon at the same time. He carried on the tradition of renunciation which had got wide currency because of Buddha’s teachings to the same effect.

(iv) The Christian Church went against Jesus by acquiring wealth and power; and it established hegemony for sometime both in matters spiritual and temporal. With the rise of the State power, the Church yielded place to what can be called State capitalism, with the kings and emperors asserting that the sovereign was the supreme master of the realm. The days of Jesus had gone: these were the days about which Shakespeare said in his Measure for Measure: ‘Some rise by sin, and some by virtue fall’.

(v) With the emergence of mercantilist capitalism, a group of imperialists established exploitative capitalism through the studied craft of subservience to the sovereigns, but with de facto control on the political superior by providing resources to the sovereign and also by adding to the imperial glamour.

(vi) With the development of the Industrial Revolution and the classical imperialism, capitalism acquired power and majesty unknown thereto in history. Mammon was now becoming the Leviathan.

(vii) Karl Marx analyzed how excoriatingly bad the capitalist system had become, and how it was destined to be doomed someday under the inexorable dialectics of history. For him Property, as acquired under the capitalist mode, was THEFT. He showed a remarkable insight into the mode of production, and how it conditioned human psyche which determined the juridical, political, economic and cultural ideas.

(viii) Gandhi considered, as Krishna had done, Property as a matter of trust for the weal of people.

(ix) Under our Constitution there is a balance struck between the private and public interests, but dominance is granted to the aspect of public weal. Our Constitution permits neither State capitalism nor the supremacy of the Market. The State has a dominant role in the socio-economic engineering as it represents ‘the Janta Janardan’ (‘We, the People’). The value of the right equilibrium and balance had been taught to our countrymen by the Bhagavad-Gita itself about 5000 years back (Chap. VI. 16).

(x) The emergence of the neo-liberal philosophy which makes Market as the new ruthless Leviathan which works through a well-crafted structure of deception by turning the State into a Sponsored State, yet paying lip service to Democracy which is fast turning into a camouflage for corporatocracy and kleptocracy working together to bring about a plutocracy of the denizens of the Sone-ki-Lanka, ruthless and deceptive at the same time.


Segment ‘D’. The Vectors at work under our Constitution: SOCIALISM, our “Constitutional Socialism”

It is true that in the history of the world, ‘Socialism’ is a protean concept, though the variegated ideas in all the phases of history have some common golden thread. But this term, like any other terms of wide philosophic and pragmatic content, is to be understood in the context of our Constitution which must be paced under the wider context of our history and culture, and our conditions and aspirations. In short, it is Egalitarian and Welfare State.

It is not that the specific reference to ‘Socialism’ is only in the Preamble to our Constitution. In the Constitution of Bangladesh, which too proclaimed its Independence after a Struggle for Freedom, the Preamble states:

“…Pledging that the high ideals of absolute trust and faith in Almighty Allah, nationalism, democracy and socialism meaning economic and social justice, which inspired our heroic people to dedicate themselves to, and our brave martyrs to sacrifice their lives in the war for national independence, shall be fundamental principles of the Constitution;

Further pledging that it shall be a fundamental aim of the State to realize through the democratic process to socialist society, free from exploitation – a society in which the rule of law, fundamental human rights and freedom, equality and justice, political, economic and social, will be secured for all citizens;….”.

The French Constitution constitutes its State as “an indivisible, secular, democratic, and social Republic” ensuring the equality of all its citizens before the law, without distinction as to origin, race, or religion; and declares its motto “Liberty, Equality, and Fraternity”.

In the Constitution of Sri Lanka a republic has been established “to achieve the goals of a DEMOCRATIC SOCIALIST REPUBLIC,” with a resolution “to constitute SRI LANKA into a DEMOCRATIC SOCIALIST REPUBLIC, whilst ratifying the immutable republican principles of REPRESENTATIVE DEMOCRACY, and assuring to all people’s FREEDOM, EQUALITY, JUSTICE, FUNDAMENTAL HUMAN RIGHTS and the INDEPENDENCE OF THE JUDICIARY as the intangible heritage that guarantees the dignity and well-being of succeeding generations of the People.”

.The Constitution of Bangladesh virtually defines ‘Socialism’ when it says: ‘socialism’ means “economic and social justice.” It is this sense of the term which the makers of our Constitution had in their mind. Its content can be pragmatically and deductively drawn, as has been shown above, from our Constitutional provisions. It is true that there had been made an attempt [the Constitution (45th) Amendment Bill, 1978] to define ‘Secular’ and ‘Socialist’ by inserting definitions in Art 366 of our Constitution. The term ‘Socialism’ was defined to mean “freedom from all forms of exploitation, social, political, and economic”. The Amendment could not be carried through. It was rightly not enacted. In Bommai case, and other cases, our courts were at a loss to understand the term ‘Secular’. The term ‘Socialism’, thus sought to be defined, would have been very difficult to understand as the words defining it would require an elaborate gloss. The purpose of defining the term would have been lost in the mist.

It is unsound to think, as even H.M. Seervai has done, that the break-up of the USSR, the transmutation of China into a capitalist system, the emergence of certain ideology from the Chicago University, or the policy changes made by the government headed by Shri Rao, and his likes thereafter, prove any point contrary to the position here that this humble self has tried to make. The following propositions seem appropriate for the rebuttal of such notions:

(i) The USSR broke up, and China is changed as they implemented (or made to implement) their Socialism/Communism on under the capitalist mode, bereft of an egalitarian vision. Someone has aptly said:

“[T]he noble concept of socialism/communism seems to go against the human nature of selfishness. Its success relies on the assumption that human beings can be taught to be altruistic. May be so, but it must be a very hard task, as most people are selfish by nature most of the time.”

Even Marx’s Socialism was a high idealism: if he would have been under the oriental ethos he would have a rishi, and would not have ever believed:

(a) that the matter and the forces of production alone determine human destiny;

(b) that his Socialism/communism would adopt the course of an unilinear evolution of history;

(c) that dialectics, on which he erected his doctrine, was of any worth.

But he was the product of his times. Yet he was great, as he had the fire to do some good to the suffering humans of the world.

(i) But capitalism is not an ideology, as its traits are specific to the humans yet not freed from the animal-specific greed and acquisitiveness. The neo-liberals teach us to amass, eat, and conceal (even in places like the off-shore banks or tax havens, or…). This is capitalism, bereft of all studied embellishment, at work.

(ii) Our ‘Constitutional Socialism’ originated in the creative vision of those who had seen the West and its ways, and who had inherited our great egalitarian Socialism from our tradition. They effected a balancing of individuals’ rights so that their potentialities flower fully in the society protecting ameliorating the conditions of all. It is, in effect, this balancing to which our Supreme Court has referred in many of its decisions.

(iii) In fact, under our ‘Constitutional Socialism’, the asserted dichotomy between the interests of individuals and the society does not survive. And the ‘Government’? Our attitude to the very raison de ‘tre for Government is different from that of the West. Scanning the entire history of India, one universal proposition emerges that for our society, by and large, the GOVERNMENT HAS BEEN OPTIONAL [ vide C Rajagopalachari, Our Culture; N.A. Palhivala, India’s Priceless Heritage (Bhartiya Vidy Bhawan)].

It is submitted that the strategy of revisionism of our Constitution to distract it from its ‘Constitutional Socialism’ can succeed only in the three situations:

(a) If our Judiciary benedicts the neo-liberal approach; [67]

(b) If our Executive comes under the servitude of the corporate hegemony; and

(c) If our people become indifferent to the mission of our Constitution.

‘Constitutional Socialism’ as revealed in the Preamble, Fundamental Rights, and Directive Principles, in their inter-penetrative synergy, is the most basic of the Basic Features of our Constitution, which neither the Judiciary, on Parliament in its legislative or executive capacities can alter. The ultimate upholder of the Basic Structure of our Constitution are ‘We, the People’ alone. In a way our Supreme Court does recognized it. It said in the Bommai Case (AIR 1994 S. C. 1918):

“The fact that a party may be entitled to go to people seeking a mandate for a drastic amendment of the Constitution or its replacement by another Constitution is wholly irrelevant in the context. Constitution cannot be amended so as to remove secularism from the basic structure of the Constitution. Nor the present Constitution can be replaced by another; it is enough to say that the Constitution does not provide for such a course - that it does not provide for its own demise.”

Not to Build a Sone-ki-Lanka: not to be denizens of the city of Stratos

“The growth and the spread of knowledge, for which so many reformers and idealists prayed, appears to bring to its devotees ---and, by contagion, to many others ---a disillusionment which has almost broken the spirit of our race…….Democracy has degenerated into such corruption as only Milo’s Rome knew; and our youthful dreams of a socialist utopia disappear as we see, day after day, the inexhaustible acquisitiveness of men.” [68]

--Will Durant

“The growth and the spread of knowledge, for which so many reformers and idealists prayed, appears to bring to its devotees ---and, by contagion, to many others ---a disillusionment which has almost broken the spirit of our race…….Democracy has degenerated into such corruption as only Milo’s Rome knew; and our youthful dreams of a socialist utopia disappear as we see, day after day, the inexhaustible acquisitiveness of men.” [69]

--Will Durant

Raavana’s Lanka

In the great epic, the Ramayana, written by the immortal Valmiki, Hanuman sees Lanka, the capital of the majestic and hegemonial Raavana, as a city of gold floating on the clouds in the sky. The poet says [translation from Sanskrit by this humble self]:

Hanuman saw the beauteous and radiant Lanka on the peak of the mountain, as if it were a roaming city in the sky. [70] Hanuman saw that city built by Vishwakarma, and protected by Raavana, as if it were a floating city in the sky. [71]

Raavana’s imperial strategy and exploitative regime helped build this Sone-ki-Lanka wherein he debased himself to the point as to invite the instrument of Justice in the form of the valiant Hanuman to burn it to cinder, with all glamour gone, with survivals merely to rue those who could not see beyond their nose. How all this happened, and with what consequences, are beautifully set out in the immortal words of the great poet. What happened, in the end, to that great Lanka?

In a short while the great Lanka
Turned into a scorched corpse,
As if it were that scorched earth,
That marks the end of creation. [72]

Raavana’s extractive enterprises enriched the proverbial floating city: we do not know anything trickled down to the humblest of the humans.

The Cloud Minders

"The Cloud Minders" is the episode 76 of a popular science fiction television series Star Trk, which was broadcast on February 28, 1969. This is a wonderfully suggestive allegory pregnant with valuable suggestions. In his wonderful book, When Corporations Rule the World, David C. Korten announces the Chapter with these words of Spock in the “The Coud Minders”:

“The troubled planet is a place of the most violent contrasts. Those that receive the rewards are totally separated from those who shoulder the burdens. It is not wise leadership.”

Korten summarises the plot of the “The Cloud Minders” with telling effect thus:

[The Cloud Minders] “ took place on the planet Ardan., it depicted a planet whose rulers devoted their lives to the arts in a beautiful and peaceful city, Stratos, suspended high above the planet’s desolate surface. Down below, the inhabitants of the planet’s surface, the Troglytes, worked in misery and violence in the planet’s mines to earn the interplanetary exchange credits used to import from other planets the luxuries the rulers enjoyed on Stratos. In this modern allegory, an entire planet had been colonized by rulers who successfully detached and isolated themselves from the people and the localities of the planet’s surface on whose toil their luxuries depended.” [73]

And then he reflects on the imagery of this Star Trek episode: “How like our own world it is,…..”. Yes, how like our own world it is! Volumes would not say so much so powerfully as these 7 words in a short exclamatory sentence.

The allegory is apt and precise. The Troglytes were dull-witted, and were

retarded not because there was anything wrong with them. Nature never discriminates: Nature never learnt the text or the sub-text so dear to these architects and propagators of this new market-ruled Economic architecture. They were so because the fumes of zenite that emanated from the mines robbed of their vitals, and brought down (or never allowed to go up) their IQ. In short, they were the victims of exploitation: hence they had reasons to nurse serious grievance against their plight, and to be angry against all. Didn’t Shakespeare say [74] :

When law can do no right,
Let it be lawful that law bar no wrong.

The Troglytes must have been deceived by the "Trickle-down” economists painting the rain-bow of their economic amelioration of the common people resulting naturally and inevitably from the “trickle-down" effect from the wealty. The denizens of Stratos did not discover through their plight that the rising tide floats all boats. The economic growth did not flow down from the top to the bottom. The supply-side economics, (if at all there were then their erstaz version!), stood disproved. The denizens of Stratos, and their inter-planetary Business Managers and Invest Advisors isolated themselves from the toxic effect of the zenite mines to which the lower creatures were exposed, to amass wealth till their castle crumbled down the world of clouds. In our times, in our society the backwards and the have-nots are neither genetically nor congenitally less endowed; they are what they are because of the present unjust system which our Directive Principles wanted our State to set right.

Even this can be thought: macabre imagination at work

This is inevitable, says Erich Fromm in his The Sane Society, in the mass society which turns man into a commodity; ‘his value as a person lies in his saleability..’. This is also inevitable in capitalism as, says Tawney in his Acquisitive Society, capitalism is, at bottom, incompatible with democracy. This is also because of the compradors and the lobbyists, about whom Vance Packard wrote his trilogy: The Hidden Persuaders, The Status Seekers, The Waste Makers, rule the roost. This is also because the Rise of the Meritocracy, about which Michael Young has written a satire setting his account in 2034, ‘would be bound to lead to trends towards eugenic nonsense and monstrosities, that the new lower classes –by definition stupid --- would have no leadership worth the name , and that the new IQ-rich upper classes would soon devise ways to keep themselves in power.” [75]

But will that sort of social order be just?, will that ever be human-specific?, should that be ever allowed to last? Should we sit tight till that nonsense takes its toll?, should the wise remain silent till the Lucifers equip themselves to destroy the Kingdom of God?, should we chase mere illusions and get lost in the labyrinth of others’ deception?... Shouldn’t we drum into their ears that IQ may be lower because of malnutrition, and because of adverse environmental factors, and the staggering spectacle of more and more gnawing exploitation. Anything that promotes poverty, or obstructs its alleviation, is a crime against humanity.

Our Constitution: our shared vision

For us our Constitution is an instrument to realise our vision which we describe as our ‘Constitutional Socialism’. Our polity is not to equip an exploitative section to assume power in our polity. In India government had been over centuries really optional, often even a nuisance. Hence these precious nuggets of imperative thoughts in our Constitution, each expressing the poetry of its socialist vision:

Justice ……..

Equality ….

Dignity …

Rights ---

Socio-economic commitments (Articles 38 and 39)

The problem with our lawyers, by and large, is their intellectual servitude to the Western juristic traditions. They illustrate the Slave’s syndrome who starts loving his shackles most when his destiny has already freed him from slavery. We wish that our Constitution ceases to be read with the neo-liberal prism, and everyone who deals with it never forgets our national motto Satyameva Jayate (Truth Alone Triumphs) [76] , and the words of Gandhari (where there is Dharma, victory is there alone) which announces its presence on the emblem of our Supreme Court bidding all of our countrymen that they can forget them only at their peril.



In England Judiciary, in view of its status as a bye-product of long constitutional history, emerged on the side of Parliament till our locust-eaten these recent years of the neo-liberal hegemony when Great Britain herself a bleating little lamb tagging behind the U.S.A.: “the pathetic and supine Great Britain”. [77] Nothing, except good sense, prevents the British Parliament to do away with the Superior Judiciary. To some extent it has already clipped the wings of Judiciary making it more market friendly through the changes brought about in its organic law: the most illustrious being the Constitutional Reform Act 2005 (2005 c. 4) passed by the Parliament of the United Kingdom in 2005. [78] Under our Constitution Judiciary can decline only through a death-wish expressed in their deeds, or when we all go mad all go mad en masse.

In the United States, the British tradition continued subject to their Constitution. The Attorney-General, addressing the court in England, in the Five Knights’ Case ( one of the state trials of Stuart England ) for the Crown, had asked, “Shall any say, The King cannot do this? No, we may only say, He will not do this.” [79] It was precisely to ensure that in the American system one would be able to say, “The State cannot do this,” that the people in America enacted a written Constitution containing basic limitations upon the powers of government [80] . But even its Constitution did not make Judiciary as majestic and overarching its might to uphold the Constitution, and to protect people’s fundamental rights as we did in India through our Constitution. It is true that Chief Justice Marshall could hold in Marbury v. Madison [81] that the power ofJudicial Review emanates from the judicial oath itself taken under a written constitution with entrenched rights, but it was a week red to play on: often played with uncertain notes, often bleated with bravado. Quite often the chorus of judicial creativity is crippled or controlled by the corporate oligarchy under a Structure of Deception which can be erected even under Democracy. In 1897 Justice Holmes had said those who no longer hoped to control the legislatures, looked to the courts as expounders of the Constitution…. [82] . And with the passage of time the emerging corporate imperium bred rampant corruption, and begot pollutants of all sorts to have their sway. The people of the United States of America are either shocked to inactivity, or are under the spell of the country’s much advertised super-power status buttressed by Weapons of Mass Destruction. But all are on trial before the bar of history.

The framers of our Constitution knew the past, and could read the sub-text of the fast unfolding time, and had in their marrow the wisdom and light which our tradition handed down to them. They made our Judiciary an impregnable rampart to protect our Constitution which granted powers to its creatures under supreme trust, and abiding hope. If our Judiciary does not ever suffer from death-wish, our Parliament, whether as a legislative body or as the Constituent Body, can do nothing to drive it to servitude, or into the dustbin. In England, James I had bragged, in his “The Law of Free Monarchies”, that judicial and executive powers inhered in the King alone who was God’s vice-regent on the earth. This legal position still continues in England: “In the contemplation of the law the Sovereign is always present in the court….”. [83] In the USA, as John Dewey said, “politics is the shadow cast on society by big business” which is the natural result of the power residing in “business for private profit through private control of banking, land, industry, reinforced by command of press, press agents and other means of publicity and propaganda”, and this even sucks Judiciary into the creeping shadow of corporatocracy.

For us our Constitution is a Shastra which we obey as we must (The Bhagavad-Gita Chapt. XVI. 24) [84] . It is founded on that Grundnorm which we have called Dharma which simply means kartavya: duties [85] . The Preamble to our Constitution, and all the rest which promote the ideals set in there, are the duties the correlatives of which are the rights, whether perfect or imperfect, whether absolute or relative. Such ideas are specific to the oriental culture. The supremacy of Dharma, which should support the Basic Structure of our Constitution, was underscored in the Islamic jurisprudence not in much dissimilar way. [86]

The Article 32 of the Constitution of India is the command by ‘ We the people’ through their Constitution. Our fundamental rights are be enforced through the machinery of the Superior Courts to whom we have granted power of the widest amplitude to discharge its mandated duty ( right-duty are correlatives vide W. N. Hohfeld ) as it is owed to those who are entitled to the recognized rights. [87] In the U K the following observations have been made apropos certiorari.

Certiorari was historically linked with the King’s person as wel as with the King’s Bench; it was of high importance for the control of inferior tribunals, particularly with respect to the administration of criminal justice; it was a writ of course for the King but not for the subject”.

de Smith, Judicial Review 4th Ed p. 593

“In the eighteenth century it was settled that statutes taking away certiorari did not bind the Crown in the absence of express words to that effect, for “the King has ….an inherent common law right …. to have a certiorari.

R. v. Berkley and Bragge (1754) 1 Keny 80, 102 quoted by de Smith, Judicial Review p. 589

It deserves to be appreciated that the Sovereign power which resided in the ‘determinate superior, in England ( or which now inheres in a corporate creature we call Crown ), resides in the people, ‘We, the People’ speaking through the Constitution. Shorn of all legalese, it is the command of ‘We, the People’ which the organs under our Constitution carry out. Those who go to the gallows under a legal verdict, go that way because they have themselves, as the fraternity of ‘We, the People’, have consented to that sort of end if an organ they created decides x. In India, ‘We, the People’ constitute the real political Superior. After all, all the acts of the organs of the State are, in the end, done under our authority.

The Limits of the Doctrine of Restraints.

This humble self is sure that if Chief Justice Warren would have been at the helms of the affairs of the U.S. Supreme Court, he would have responded to the realities of this economic globalization by collapsing the distinction between the human rights situations and the economic situations. There was a phase when our Superior Courts were no less responsive and creative. The hydra of the economic globalization has so enmeshed us that our human rights are exposed to great jeopardy. Now it has become the greatest constitutional duty of our Superior Courts to see that our human rights, granted to us under envisaged in the Preamble, the Fundamental Rights, and the Directive Principles, are not lost on any specious pleading, for any reason whatever. In the U.S.A. the post-Warren Court has shown an evident streak of conservatism and a tilt towards the Market. Once upon a time our Supreme Court had shown even a bolder creative verve in its judicial approach. Recent judgments and casual dicta falling from the Benches show evident judicial recidivism and revisionism. It is surely a matter of concern. After the roll-back State, we, perish the thought, may witness a roll-back Judiciary. The concealed referents in the judicial consciousness determines judicial decision, unless one’s trained sense of sensibility is capable enough to get rid of pre-conceived notion, stock-responses, intellectual fixtures, and the corrupt motives in myriad manifestations. After all the judicial decisions provide “Solutions through insight”. [88]

It is widely, and rightly, recognized that law must respond creatively to changing human affairs. H.M. Seervai has aptly answered a question which he himself framed [89] :

“What is the agency for bringing about social and economic changes which would enable a welfare state to be created? The answer is, legislative and executive power controlled by constitutional limitations including fundamental rights.”

The Organs of the State are expressly bidden to frame policies and conduct administration without transgressing our ‘Constitutional Socialism.’ Acts to the prejudice to this constitutional mission and commitments would be culpable subversion of our Constitution. The plea of the neo-liberals that law must be subservient to the leading ideology of the day is pernicious. First, what is projected as the leading ideology is merely doctrine hoisted through propaganda and pressure by crafting consent through means fair or foul. Secondly, this plea defiles our Constitution by subjecting it to modifications and overridings not authorized by ‘We, the People’. Thirdly, a constitution is framed to function as a dyke against the strategy of what Krishna said “the demonic people”.

One fundamental point pertaining to the art and craft of Judicial Interpretation deserves a mention. Hume had said: “Beauty is no quality in things themselves: it exists merely in the mind which contemplates them.” He, thus, highlights how the state of mind works as the supreme determiner in understanding a provision or a situation, and in framing a response to the provisions and stimuli which work on the neurons. How the state of mind of the observers determines response gets illustrated in the finest way by recalling how Shri Krishna was seen in the Court of Kamsa where he Had been invited to become a victim of a plot against him. The Shrimad Bhagavad Mahapurana describes the diverse perception of different persons in the court (Canto X.:44.17) as conditioned by their personality, or as per response of their sensibility. We know how the armoury of interpretative tools help opposing counsels to come to diametrically opposite conclusions, and how Judges of same distinction fail in differentiating chalk from cheese, and come to conclusions so discordant that we wonder at them with flabbergast.

Judiciary’s Peril
Activism v. Inactivity

Edward F. Cummerford criticized Judicial Activism in the following words:

“No matter what euphemisms are employed to disguise its effects, careful reflection must lead to only one conclusion: Judicial activism is not merely inconsistent with the rule of law, it is the total negation of the rule of law. If cases are decided on the personal philosophies of judges , then in reality there is no law. If the Constitution has no objective meaning but means only what judges think it ought to mean, it is not a constitution at all but an empty symbol, a sort of national totem. History shows that vague laws, subjectively interpreted and arbitrarily applied, are the tools of tyrants. The equation is as old as the human race ---power minus responsibility equals despotism.” [90]

That might be right as no Judge can arrogate to himself the wisdom to subvert the Rule of Law for any reason whatever. Our Constitution does not permit narcissm, or any ideological errand on the anybody. But the Judges are bound to give effect to the constitutional provisions with full creativity so that our Constitution’s Socialist Mission is realized.

Without going into details , this humble self would illustrate with reference to one of many instances of (i) what the Judiciary should not have done, and (ii) what the Judiciary should have done.

(i) What the Judiciary should not have done:

The most notorious example of the judicial subservience to capitalism, market-forces, and the neo-liberal philosophy is the change in the courts’ attitudes towards corporations. Subservience or role-abdication is itself a version of activism: the point is in promoting whose case the institution is active through its actions or inactions. In the U.S.A. the rule of corporations grew through the following phases phases:

Phase I: The Phase of Corporate Dominance
Phase II: The Phase of Corporate Subjugation
Phase III: The Phase of Corporate Ascendancy
Phase IV: The Phase of Corporate Hegemony
Phase V: The Phase of Corporate Sovereignty: Pax Mercatus
Phase VI : Corporatocracy.

In India the phases of the emergence of the corporations have had the following phases:

Phase I: The Phase of Corporate Dominance
Phase II: The Phase of Corporate Accountability
but at times Hegemony made itself manifest
Phase III: The Phase of Corporate creeping Hegemony
Phase IV: The Phase of Corporate Sovereignty: Pax Mercatus
Phase V: Trending towards the Phase of Corporate Sovereignty: Pax Mercatus

In the U.S.A., as in India, in the First Phase corporations were the extension of the Crown’s powers, and subject to the Crown’s supervision. But even then the corporations had began to extract more and more concessions through deception, bribing, and terrorism including crypto-psychic pressure. The vested interests in the undemocratic British Parliament of the 17th and 18th centuries met with corporate demands. Later on the judicial attitudes in the U.K. and the U.S.A differed over years. In the U.K. the courts were always ready to break the shells to see the inner realities if a corporation indulged in fraud or collusion, or abused its commercial mission. Their approaches were functional. Dias in his Jurisprudence draws general juristic principles for exploring the inner realities of a corporation in these succinct words [91] :

“Public policy may make it necessary to look at the realities behind the corporate façade…….Courts are always vigilant to prevent fraud or evasion. Thus, they will not permit the evasion of statutory obligations. In Re FG(Films) Ltd., a film was made nominally by a British company, which had been formed for this purpose with 100 capital of which 90 were held by the director of an American company. The film was financed and produced by the American company, and it was held that the British company was not the maker of it within the meaning of the Cinematographic Films Act, 1948, SS 25(1)(a) and 44(1) but that it was purely the nominee of the American company. This case and others like it are example of the mask of corporate unity being lifted and account being taken of what lies behind in order to prevent fraud. The converse situation is also true, if a person finds it to his advantage to disregard corporate unity, he may discover to his discomfiture that the courts refuse to do so.Devlin J once said ‘the legislature can forge a sledge hammer capable of cracking open the corporate shell, and the legislature has done so in a variety of statutes, principally to prevent the evasion of tax and other forms of revenue.”

Not only the common law courts, even civil law courts cracked shell to see the inner operative realities if justice demanded that. The continental courts invoked several variants of the anti-abuse doctrine. The doctrine of the Lifting of Corporate Veil was held relevant even by the International Court of Justice in the famous the Barcelona Traction, Light and Power Company Ltd [92] . In the U.S.A. even in 1885 the Supreme Court held in Dodge v. Woolsy that the Constitution ‘conferred no inalienable rights on a corporation’. Things deteriorate for the civil society when the corporations stole to power during the U.S. Civil War (1861-65). Describing this situation then prevailing, Korten says [93] :

“Violent antidraft riots rocked the cities and left the political system in disarray. With huge profits pouring in from military procurement, contracts, industrial interests were able to take advantage of the disorder and rampant political corruption to virtuall buy legislation that gave them massive grants of money and land to expand the Western railway system. The greater its profits, the more tightly the emergent industrial class was able to solidify its hold on the government to obtain further benefits. Seeing what was unfolding, President Abraham Lincoln observed just before his death:

“Corruption has been enthroned… An era of corruption in higher places will follow and money power will endeavour to prolong its reign by working on the prejudice s of people…until wealth is aggregated in a few hands…and the Republic is destroyed.”

It reached a climax in the 1886 decision of the U.S. Supreme Court in Santa Clara County v. Southern Pacific Railroad holding a private corporation a natural person entitled to the protection of the Bill of Rights! And after this, this process went on to reach the present stage when dollars matter, not humans; and these artificial creatures work as invincible Trojan horses let loose through tax havens all over the world. They control Public Opinion, and cast their sinister shadow over the entire public life.

Our Supreme Court, it is respectfully submitted, did much to stick to its jurisprudence developed on the British principles above mentioned till Union of India & Anr. V. Azadi Bachao Andolan & Anr [94] when it showed its activism by adopting the American approach towards the capitalist and neo-liberal ends. The Division Bench of two Hon’ble Judges even thought it fit to criticize the decision of the Constitution Bench in McDowell and Co. Ltd. v. CTO [1985] 154 ITR 148 by providing an indecent coup de grace with pejoratives like “hiccup” and “temporary turbulence”: it had required to see the inner realities of corporations when anything fraudulent was suspected. The approach in McDowell was functional; approach in Azadi Bachao was analytical, It, in effect, narrowed its judicial role, which in effect turned out an activism in favour of corporations which pleaded that their shells were impregnable, and they could loot this country even as masqueraders in collusion with a tax haven by accessing to the benefits of Indo-Mauritius the Double Taxation Avoidance Convention. The narrow perception of judicial role was also a variant of judicial activism. The net effect was that the marauding corporations could go on indulging in frauds, and the common millions were mere onlookers to the rape of the nation.

(ii) What the Judiciary should have done:

Remedy under Article 32 was sought against a judicial decision which was criticized as done in utter breach of constitutional limitations, breach of fundamental rights and the Basic Features of our Constitution. The Hon’ble Court rejected the petition on the ground that the decision of the Supreme Court which has attained finality” cannot “be subjected to Judicial Review under Art. 32 of the Constitution at the instance of one of the parties to the decision. If the Court would have said that a given case does not deserve the remedy as no such breach was demonstrated, matter would haven been different; and we must have bowed down to that decision. But to say that no remedy can be granted under Art 32 even if there is a subversion of the Constitution in a judicial order, (done intuitionally or not), is entirely different.. To say in Rupa Ashok Hurra v. Ashok Hurra Rupa [95] , that “the superior Courts of justice do not also fall within the ambit of State or other authorities under Article 12 of the Constitution”, is mere ex cathedra ipse dixit at loggerheads with the scheme of our Constitution, its provisions, and our expectations. We expected judicial activism which would have made judiciary more accountable. That would have discouraged others from making pretends at self-exculpation.

A morbid controversy

Therefore judges must be kept mindful of their limitations and their ultimate public responsibility by vigorous stream of criticism expressed with candour however blunt.

Felix Frankfurter, Bridges v. California 314 U.S. 252, 289 (1941)

Whilst this humble self is writing all this, he cannot restrain himself from commenting on some unseemly comments by a Judge of the Supreme Court from the Bench of the Court. The Times of India (April 2, 2008) reports:

“In a strong in house dissent, Justice Markandey Katju of the Supreme Court …came out strongly against judicial activism saying it has achieved little except creating an illusion to the minds of people about the judiciary’s omnipotence.” (Italics supplied).

His comments are unfortunate and fortunate at the same time. The observations make a strange kaleidoscope. It is unfortunate as it smacks of a clear betrayal of our Constitution as it amounts to the abdication of the role as the Constitution’s upholder. It is fortunate as it destroys the illusion which most of us keep on nursing under an illusion. It is good if all illusions go, and all shackles break. When illusions stand ripped off, the suffering millions would realize that tears do not break shackles, sighs do not seize opportunities. This humble self does not know his learned brothers on the Benches would respond to Justice Katju’s view, but it should make us think, and act. The comment suggests that Freud and Marx were right when they had said:

(a) Freud: [96]

“There is something to be said, however, in criticism of his disappointment. Strictly speaking it is not justified, for it consists in the destruction of an illusion. We welcome illusions because they spare us un-pleasurable feelings, and enable us to enjoy satisfaction instead. We must not complain, then, if now and again they come into collusion with some portion of reality, and are shattered against it”. “In reality our fellow-citizens have not sunk so low as we feared, because they had never risen so high as we believed”.

(b) Marx: believed that justice does not speak in the same language in the modes of production as dissimilar as capitalism and communism. Judiciary is captive under its class consciousness. This point Marx made out in the preface to his Contribution to the Critique of Political Economy:

“The sum total of these relations of production constitutes the economic structure of society, the real foundation, on which rises a legal and political superstructure, and to which correspond definite forms of social consciousness. The mode of production in material life determines the general character of the social, political, and intellectual processes of life. It is not the consciousness of men which determines their existence; it is on the contrary their social existence which determines their consciousness.”

It is good that illusion is pricked so that people can forge their strategy with the same ruthlessness and clarity of vision with which the Third Estate had worked in pre-revolutionary France. It is for People to find the way to escape the looming doom at work to subvert our ‘Constitutional Socialism’.



[A] Philosophical dimension:

I. Driving force in human history is ‘Spirit’ according to Hegel, but it is ‘Matter’ according to Karl Marx, but for Marx ‘it is a matter …, not the wholly dehumanized matter of the atomists, hence, in effect, it turns out ‘ really man’s relation to matter, of which the most important part is his mode of production: in short economics. [97] This is the philosophical foundation of the Hegelian dialectics utilized my Marx to interpret history. Our Constitution commits our polity to an egalitarian vision for everyone’s welfare: it, thus, reflects our philosophical tradition. The seeming dichotomy of Prakriti and Purusha of the Samkhya system was synthesized by the Bhagavad-Geeta as the pervading unity. ‘It enunciates a third principle: Purusottam (the highest Being) or Isvara (God).’ [98] In short, our ‘Constitutional Socialism is unique; in fact our Constitution is sui generis on many points, the most important being its egalitarian vision..

II.Hegel, Darwin and Marx believed in the inevitability of progress as a universal law, which made them impervious to ethical considerations. The norms set forth in the Preamble, the Fundamental Rights and the Directive Principles stress on the karma and kartavya both of the individuals who happen to be the members of our political community, and of the State represented by the government of the day.

[B] Political Dimension

III. As our Constitution had not been framed to promote class interests, and as it granted universal suffrage from its commencement itself, it reflected the ethos of our Struggle for Freedom in which our nation participated as a whole: the sacrifice made by the poor was surely more than that of others who had reasons to calculate their profits. Democracy is not just a system to set up a political structure which can be allowed to be captured by vested interests through art or craft; it is, in fact, a system to provide a mechanism to realize the welfare of all, without riding roughshod over the fair and legitimate interests of individuals whatever be the segments to which they belong.

IV.The Political Realm is not to be made subservient to the Economic Realm, where the Rule of Corporations and the Market (Pax Mercatus) prevails. The State, under our Constitution, cannot roll back its activities as that would be gross constitutional dereliction. Even the policy changes must conform to the constitutional policies, and our Constitution’s principles and provisions

V.There must not be an opaque system, as darkness is never conducive to promote the ideas and the ideals of our Preamble, the Fundamental Right, and the Directive Principles.

VI.Our ‘Constitutional Socialism’ is founded on the fundamental principle of our Constitution’s supremacy, and subservience of all the organs of the State to the Constitution. This supremacy operates both in the domestic sphere, and at international plane.

[C] Social Dimension

VII. Our Constitution is committed to bring about a social revolution to change the unjust stratification of our society which trapped us over the centuries, but this objective cannot be realized if wealth and power get polarized in our country.

VIII. It is this over-arching egalitarian constitutional vision which conditions the content of such seminal concepts as ‘liberty, ‘equality’, ‘fraternity’, ‘dignity’ ‘unity’….. Liberty cannot be reduced to a mere license to exploit and loot; equality is not equality amongst the high net worth individuals, forgetting those who make virtually the Third Estate. Fraternity and dignity cannot be achieved in plutocratic and oligarchic tyrannies of the vested interests

IX. ‘Social Justice’ is the very purpose of our polity, and the very heart of our Constitution and this requires creation of conditions for all so that quality of life improves.

[D] Economic Dimension

X..The mission of our socio-economic management is the welfare of all under conditions of justice, social, economic, and political.

XI.Our constitutional socialism contemplates no class struggle: it believes in the welfare of all.

XII.Our constitutional socialism does not permit greedy acquisitiveness of capitalism, and believes in an equitable distribution of social resources so that even the so-called ‘last man’ is not without the basic amenities for existence, and is not excluded from the conditions needed for dignity, and for the fruition of his natural faculties.

XIII.The Government is a trustee to promote the welfare of the people by securing and protecting a social order “in which justice, social, economic and political, shall inform all institutions of national life”.

XIV.The State must ensure that the ownership and control of the material resources of the community are so distributed as best to subserve the common good. Concentration of wealth is immoral as it is so never without exploitation, and corruption.

XVI..The State must ensure that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment.

XVII.The natural resources should be managed wholly with egalitarian ideas to the exclusion of the commercial motives of the market economy.

XVIII.The species of property other than those mentioned at XII to XIV, which are primarily on account of individual inventiveness, should be under individual ownership as a reward for the inventor’s creative genius; but none can be allowed to adopt extractive technique.

XIX.The standard for decision-making in our public spheres should be judged on the talisman given by Mahatma Gandhi, so that justice is done even to our ‘last man’.

XX.The State must ensure that the integrity of our society is not subverted by consumerism, and the deceit of the vested interests. The State must preserve our value system, education and health so that they are not degraded, polluted, or subverted under this neo-liberal craze generated by the high pressure advertisement.

XXI.To ensure that we can build our socialist society under the aspect of justice, we must work for peace so that our limited resources are not wasted for the benefit of capitalists, who need wars to sell their armaments, protect their extractive wealth, and to distract people from their loot, and misdemeanour.

XXII. Consumerism is sin till the last man receives just treatment. Human beings must not be treated as commodities for trade.

XXIII.As planning and market help economic management, these tools be used, but under the critical gaze and supervision of the State ensuring public accountability. The real question pertains to what sort of Market, and what sort of State (or government): and what sort of relationship and inter-actions develop inter se diverse segments of people.

XXIV.The State preserves the sovereign space of socio-economic management free from the imperialistic, crypto-imperialistic, and the neo-liberal interveners. When all is said, such things would require continuous assertions of our rights so that the demonic persons are purged of their acquisitive greed.

XXV. The government, which is no more than people’s agent, must be under effective popular control and accountability; and the nation must not allow public opinion to be made captive, or to become the product of manufacture in anyone’s factory whether in our country or outside. There must be a system to enforce continuous accountability of all the organs of the State so that none forgets that people would prefer creative destruction to unjust existence as less than humans. In fact, the government loses its relevance or credentials if it departs from our Constitutional Socialism.

HOPE: it carries the ship of democracy through storms

Concluding his Modern Democracies (Vol II p. 670 ) Lord Bryce perceptively observed [99] :

“Hope, often disappointed but always renewed, is the anchor by which the ship that carries democracy and its fortunes will have to ride out this latest storm as it has ridden out many storms before.”

He was right. Our socialist vision which we expressed in our Constitution is yet to be realized. We have seen that the mission is betrayed even by those whose duty it was to realize it. The common people of our country seem to work day and night on a sort of Penelope’s web. Like her we weave our dreams and expectations, but like her too we have to unpick them. But this in itself is good that we still have our Constitution as a loom on which to set our warp to weave new patterns in new colours. Friedrich Nietzsche, in his Human, All Too Human, had said about Hope:

“Hope…. For he does not know that that jar which Pandora brought was the jar of evils, and he takes the remaining evil for the greatest worldly good--it is hope, for Zeus did not want man to throw his life away, no matter how much the other evils might torment him, but rather to go on letting himself be tormented anew. To that end, he gives man hope. In truth, it is the most evil of evils because it prolongs man's torment.”

But our Bhagavad-Gita has made us keep Hope alive: are not incorrigible optimists? How can we ever forget the assurance that the Koran and the Gita gives, which got most mellifluous expression from Faiz:

Jab zulm-o-sitam ke kohe-garaa
rui ki tarah ud jaayenge.

[when the fog and mist of injustice,
will go into wind tossing to wither
like the shreds of cotton wool]


This humble self concludes this exposition by this simple sentence: Our Constitution’s Socialism is an expanded metaphor, with an activist content, of Justice which exfoliates itself in the Preamble to the Constitution and in the harmony and synergy of the Fundamental Rights and the Directive Principles. It is appropriate to end this chapter with a quotation from the preface of his book Judicial Role in Globalised Economy:

‘“Throughout the book I have tried to tread on the straight-line which Ernest Barker described to Albert Einstein: “If at your command, the straight lines have been banished from the universe, there is yet one straight line that will always remain –the straight line of right and justice.” In 1915 Einstein wrote to Lorentz in Holland ‘those men always need some idiotic fiction in the name of which they can face one another. Once it was religion, now it is the State.” On scanning the present realities, shouldn’t we say :”Once it was religion, then it was the State, now it is the Market, Pax Mercatus”’

Under our ‘Constitutional Socialism’ the State has a positive role to play. It represents the people of the country. The problem is how best to shape it as an instrument to bring

about people’s welfare through the socialist mode. It raises the questions of proper governance, and fair relationship between the market and the State in the matrix to bring about welfare of people under the aspects of socio-economic justice. Our Constitution portrays a political society based on egalitarian justice. The neo-liberals should transform their ideas in the light of our Constitutional Socialism. If it refuses to do that, they should remember Paul Kennedy’s paraphrase [100] of Bernard Shaw’s quip; “Rome fell; Babylon fell; Scarsdale’s turn will come”. They should remember that great Egypt fell to the desert tribes; the great Greek civilization to the ill-equipped and much less civilized Romans, the great Roman Empire licked dust when the barbarians, Huns and the Mongols invaded or subverted it….. An unjust society is a conspiracy against time, which always ends in its unlamented doom. (This point would be developed in a subsequent Chapter of this book.). But none should ever forget what Ella Wheeler Wilcox said [101] :

“No question is ever settled
Until it is settled right”

In this Chapter this humble self has said what should be obvious to our countrymen: that our Constitution expresses quintessentially through its provisions the immanent vision at egalitarian justice which has had an abiding presence in our national psyche. This vision, and our quest for it, derive sustenance from our oriental culture, be that as expressed in the Bhagavadgita, or the Koran, and other synergetic and synchronistic ideas for human weal. What it aims at is ultimately not different from what many western thinkers have said [102] . What distinguishes our Constitution is the Middle Path that it follows ensuring that injustice never tramples any segment of people; and greed does not become the prime mover. Social Justice is the supreme catalytic agent: it is the very heart of Gandhi’s talisman to which a reference has already been made. It is true that our constitutional pursuits over these decades have left most of us in the lurch. We have legitimate reasons to feel frustrated and dismayed. But we know what brought about this sorry plight. It is surely not our Constitution. Our Constitution is languishing in a failure, is defaced and defiled, because we have not worked it fairly, we have failed in acting as its sentinel on the qui vive, because the organs we created to carry out its mission have not given good account of themselves, because our citizenry have abdicated their vigilant role by being busy in frittering their energies in inane and trivial distractions (virtually playing a sort of the game of chess when our country is being raped, and her values getting polluted). This humble self would revisit these points later in some chapter. Let us remember what Cassius had said in Shakespeare’s Julius Caesar:

Men at some time are masters of their fate;
The fault, dear Brutus, is not in our stars,
But in ourselves, that we are underlings.

For ‘Brutus’, read ‘Our countrymen’. How close this idea is to the Bhagavadgita VI. 5 already referred above. Let us be “masters of out fate”, before all is over.

Jai Hind

Letter soliciting opinion

[1] Granville Austin, The Indian Constitution: Cornerstone of a Nation p. 8 [Oxford University Press 1966]

[2] ibid 9

[3] “The Assembly’s belief in Parliamentary government was also strengthened in large measure by the intellectual or emotional commitment of many members to socialism. Although they ranged from Marxists through Gandhian socialists to conservative capitalists, each with his own definition of ‘socialism’, nearly everyone in the Assembly was Fabian and Laski-ite enough to believe that ‘socialism is everyday politics for social regeneration’, and that ‘democratic constitutions are …inseparably associated with the drive towards economic equality’. The Constituent Assembly in the Objectives Resolution and the debate on it established that the Constitution must be dedicated to some form of socialism and to the social regeneration of India, and none but Communists would have disagreed with the Congress Socialist Party’s resolution of 1947 stating that ‘there could be no Socialism without democracy’. That such should have been the intellectual atmosphere of the Indian Constituent Assembly is hardly surprising. By the time the Assembly had come into being, these ideas had gained almost world-wide social and political currency. They were, perhaps, even more a part of the Indian scene because of the county’s manifest social needs and because of Nehru’s influence on Indian social thought.

Nehru had been interested by Fabianism when at when at Cambridge and his studies of Marx and his trip to Europe-including Russia-during 1926 -27 had greatly influenced him. Mrs. Besant, one of the original Fabians, as well as a theosophist, had been a close friend of the Nehru family. Yet, over the years leading to the Constituent Assembly he changed from a Marxist to a Laski-style socialist to an empirical gradualist. This must not be taken to mean that Nehru had forsaken socialist ideals. It means that he strove after his ideals in a less doctrinaire, in a more empirical, fashion. By 1945, the real problems for Nehru were ‘problems of individual and social life’; he had no time for the fine points of doctrine. ‘Though he is a professed socialist’, wrote a close colleague of Nehru in 1946, ‘his activities are largely guided by ideals of democracy and economic betterment of the masses.’ This practical, secular approach to India’s social needs had become –perhaps without their knowing it --the attitude of many Indians. It was certainly true of the rank and file of Assembly members and, to a lesser extent, of the Oligarchy as well. Prasad, Patel and Azad --who was apparently less conservative than the other two--understood as well as did Nehru that India’s survival, depended on improving the lot of her people. And although Prasad and Patel had on occasion opposed Nehru on ‘socialist’ issues, both of them had won fame in the Congress by leading peasant satyagraha for better economic conditions --Prasad at Champaran and Patel at Bardoli.

One may speculate that it was principally Patel’s conservative influence that kept the Constitution from having a greater socialist content then it has; perhaps it was in deference to his wishes that Nehru omitted the word ‘socialism’ from the Objectives Resolution. Patel probably did have a moderating influence on Nehru, but we have very little evidence for it in the documents of the framing period. Nehru was equally aware of India’s social and political realities, and it is very doubtful whether he wanted the Constitution to commit India’s government --which he would head for an indeterminate period --irrevocably and in detail to any particular course. The difference between Nehru and the other three members of the Oligarchy was one of approach, not of basic belief. Nehru felt an emotional and intellectual obligation to attack India’s social problems. Patel, Prasad and Azad, somewhat more conservative than Nehru, were committed only to effective government. Yet the attitudes of all four were rooted in a humanitarian outlook. If the good of the many demanded the sacrifice of the few-as in zamindari-abolition –it would be done.

Therefore, rather than the common image of a realistic Patel holding back a rampant, ‘socialist’ Nehru, the Constituent Assembly more likely watched Nehru and Patel, in cooperation with other members with practical experience in government, dampening the zeal of the impetuous, very Laski-ite Assembly members who were more interested in state control and immediate, drastic reforms than in democratic processes and efficiency.

What was of greatest importance to most Assembly members, however, was not that socialism be embodied in the Constitution, but that a democratic Constitution with a socialist bias be framed so as to allow the nation in the future to become as socialist as its citizens desired or as its needs demanded. Being, in general, imbued with the goals, the humanitarian bases, and some of the techniques of social democratic thought, such was the type of Constitution that Constituent Assembly members created.”

Granville Austin, The Indian Constitution: Cornerstone of a Nation pp. 40-41[Oxford University Press 1966]

[4] ibid pp 14-15

[5] Bipin Chandra & Ors., India After Independence pp.177-174 [published in Viking by Penguin Books India 1999]

[6] all the extracts are from: Jawaharlal Nehru, Glimpses of World History 16th Impression 2001[Jawaharlal Nehru Memorial Fund/ Oxford University Press]

[7] J. Bronowski, The Ascent of Man Ch I [ 16th printing, Little, Brown and Company ]

[8] Swami Nirmalananda Giri

[9] “If only the capitalists class will read the signs of the times revise their notions of God-given right to all they possess, in an incredibly short space of time the seven hundred thousand dung-heaps which to-day pass muster as villages, can be turned into abodes of peace, health and comfort. I am convinced that the capitalist, if he follows the Samurai of Japan, has nothing really to lose and everything to gain. There is no other choice than between voluntary surrender on the part of the capitalist of the superficialities and consequent acquisition of real happiness of all on the one hand, and on the other the impending chaos into which, if the capitalist does not wake up betimes, awakened but ignorant, famishing millions will plunge the country and which, not even the armed force, that a powerful Government can bring into play, can avert.” Young India 5. 12. 1928 p. 396

[10] Swami Nirmalananda Giri

[11] The Mahabhatat

[12] Shukla Yajurveda (Madhyanandin Samhita 36/24)

[13] As displayed in Gandhi Smriti, Birla House, New Delhi quoted by Granville Austin, Working A Democratic Constitution (1999) [Oxford University Press].

[14] “The electoral process itself couldn’t have produced a representative body because it was based on the restricted franchise established by the Sixth Schedule of the 1936 Act, which excluded the mass of peasants, the majority of small shopkeepers and traders, and countless others from the rolls through tax, property, and educational qualifications. Only 28.5 per cent. of the adult population of the provinces could vote in the provincial assembly elections of early 1946. But because the Congress and its candidates covered a broad spectrum, those elected to the assemblies did represent the diverse viewpoints of voters and non-voters alike.”

[15] Bertrand Russell, Autobiography p. 432 [ 1991 Reprint by Routledge, London]

[16] Ramdhar Singh ‘Dinkar’, Kurukshetra (2004 edition) translated from Hindi by Shiva Kant Jha

[17] Yato Dharmahstato Jayah : the Mahabharata Stripurva Chapt. 14. slokas 1-13

[18] . The Bhagvad Gita VI. 5.

[19] The Hon’ble Supreme Ct has said in Raja Ram Pal vs. Hon'ble Speaker, Look Saba & Ors (Case No W. P. (civil) 1of 2006):

“The Constitution is the Supreme lex in this Country is beyond the pale of any controversy. All organs of the State derive their authority, jurisdiction and powers from the Constitution and owe allegiance to it. This includes this Court also which represents the judicial organ. In the celebrated case of Kesavananda Bharati v. State of Kerala [(1973) 4 SCC 225], this Court found certain basic features of the Constitution that include, besides supremacy of the Constitution, the republican and democratic form of Government, and the separation of powers between the Legislature, the Executive and the Judiciary. The principle of supremacy of the Constitution has been reiterated by this Court post Kesavananda Bharati …..”

[20] G. Williams, Learning Law 11th ed p 104 [The Hamlyn Lectures]

[21] Peter Watson, A Terrible Beauty p. 518 [Paperback edition published in 2001 by Phoenix Press]

[22] From Wikipedia

[23] From Wikipedia

[24] C.A.D dated 25. 11. 1949.quoted in Dr. D. D. Basu’s Commentary on the Constitution of India 7th ed Vol A/1 p.35

[25] From Wikipedia

[26] Julius Stone, Human Law and Human Justice p.91 [First Indian Reprint: Universal Law Publishing Co. Pvt. Ltd]

[27] ibid p. 91

[28] Nehru, Glimpses of the World History p.825

[29] P. Watson, A Terrible Beauty p.650

[30] R.C. Majumdar, H.C. Raychaudhuri & Kalikinkar Datta, An Advanced History of India p. 586 (4th ed 1978) [Macmillan India Limited]

[31] Noam Chomsky. Failed States p. 211 [First South Asian Edition 2007:Allen & Unwin]

[32] Bipin Chandra & Ors., India After Independence pp.177-174

[33] Noam Chomsky, Failed States p.219

[34] As the Regan believed, or George W. Bush administration believes: vide Noam Chomsky, Failed States p. 103

[35] Noam Chomsky, Failed States pp. 207-207

[36] Stiglitz, Globalization and Its Discontents: Page 247 [2002,Penguin Books]

[37] Noam Chomsky, Failed States p. 208)

[38] Watson, A Terrible Beauty p.590, 591

[39] ibid

[40] The principle of Equality, of which Art 16(1) is a facet, is a basic feature which cannot be breached by Legislature: Indira Sawhney v. Union of India AIR 200 SC 498; Raghunathrao v Union of India AIR 1993 SC 1267

[41] He attains eminence who looks
The same on well-wishers, friends, foes,
Neutral to enemies and kin,
The righteous and the unrighteous. Chapt VI.9 []

[42] AIR 1981 SC 2138

[43] AIR 1981 SC 487

[44] AIR 1989 SC 190 [ Coram : Sabyasachi Mukharji, and S. Ranganathan , JJ.

[45] AIR 2004 NOC 169 (KANT

[46] AIR 1986 SC 180

[47] AIR 1978 SC 597

[48] AIR 1989 SC190, 202

[49] AIR 2004 KANT 169 (NOC)

[50] Reliance Petrochemicals Ltd v Proprietors of Indian Express AIR 1989 SC 190. 202

[51] ‘Myth of the New India’ by Pankaj Mishra, The Hindustan Times, N.D., 9 July 2006.

[52] “…. every third human being in the world without safe and adequate water supply is an India. Every fourth child on the globe who dies of diarrhea is an Indian. Every third person in the world with leprosy is an Indian. Every fourth being on the planet dying of water-borne or water related diseases are an Indian. Of the over sixteen million tuberculosis cases that exist at any time world-wide, 12.7 million are in India. Tens of millions of Indians suffer from malnutrition. It lays their systems open to an array of fatal elements. Yet, official expenditure on nutrition is one per cent of GNP.” P. Sainath had drawn up in Everybody Loves a Good Drought (p. 24), (1996) [Penguin Books]

“More than 60 per cent of primary schools in India have only one teacher, or at best two, to take care of five classes (I-V). Most of these are in the rural areas. They lack even the minimal facilities it takes to run a school. The NCERT’s Fifth Survey found that of 5.29 lakh primary schools ,well over half had no drinking water facilities. Close to 85 per cent had no toilets. As many as 71,000 had no buildings at all, pucca or katcha. Many others had ‘buildings’ of abysmal quality.” “The first five year plan gave education 7.86 per cent of its total outlay. The second plan lowered it to 5.83 per cent. By the fifth plan, education was making do with 3.27 per cent of the outlay. In the seventh plan, the figure was 3.5 per cent. As the problems of her children‘s education grew more, India spent less and less on them.’” “Mass illiteracy and lack of education hurt in other ways too. They mean India’s most basic capabilities will remain stunted. So economic development will---has to ---suffer. No major reforms will last that do not go with basic change in this area.” “Who constitutes the nation? Only the elite? Or do the hundred millions of poor in India also make up the nation? Are their interests never identified with national interest? Or is there more than one nation?” P. Sainath had drawn up in Everybody Loves a Good Drought (p. 48)

[53] Kruse v. Johnson [1988] 2 QB 91 at 100

[54] Prof Arun Kumar of the JNU

[55] Per Majority, Bhagwati J. contra, in Minerva Mills Ltd. v. Union of India AIR 1980 SC1789: “Fundamental rights occupy a unique place in the lives of civilized societies and have been variously described in Judgments of the Supreme Court as "transcendental" 'inalienable' and "Primordial." …..The Indian Constitution is founded on the bed-rock of the balance between Parts III and IV. To give absolute primacy to one over the other is to disturb the harmony of the Constitution. This harmony and balance between fundamental rights and directive principles is an essential feature of the basic structure of the Constitution.’ the means provided for by Part III. It is in this sense that Parts III and IV together constitute the core of our Constitution and combine to form its conscience.

[56] D. S. Nakara v. Union of India AIR 1983 SC 130

[57] Sanjeev Coke Manufacturing Company v. M/s. Bharat Coking Coal Ltd. AIR 1983 SC 239

[58] Paschim Banga Khet Mazdoor Samity v. W.B. AIR 1996 SC 2426

[59] Allen, Law in the Making p. 40

[60] Mulla, Hindu Law. Introduction by Desai.

[61] Allen, Law in the Making p. 40

[62] Allen, Law in the Making p. 40

[63] Nehru, Glimpses of the World History p. 545

[64] The Statesman 31. 5. 1976 Referred by Dr D. D.Basu, Constitutional Law of India 7th ed p.3 fn 11

[65] Fundamental Rights Case AIR 1973 SC at p. 1617; H.M. Seervai , Const. Law 4th ed p.202

[66] 1st. What is the third estate? Everything.

2nd. What has it been heretofore in the political order? Nothing.

3rd. What does it demand? To become something herein.

Abbé Sieyès, "What is the Third Estate?" January 1789

[67] “But the reality of life is that the ‘invisible hand’ has all along been conspicuous by its absence. It is clear from the trends and tendencies of our day that Market is planting its kiss on all the institutions spawned by the political realm. It has enchanted the executive to become market-friendly. Its persuaders have not left outside their spell even Judiciary. Richard Posner speaks of the Constitution as an Economic document, and proposals have been made to refashion constitutional law to make it a comprehensive protection of free markets, whether through new interpretation or new amendment, such as a balanced-budget amendment. [67] We are bidden to take into account the impact of legal institutions and rules on markets, and to undertake an economic analysis of law. Even the role of the State is defined in terms of our deference to the market. The Chicago University and the Yale Law School are the centres for the study of law and economics wherein economics dominates legal discourse. Homo juridicus is becoming homo economicus. Public policy of the State is manipulated to come to terms with the ideas of the mainstream neoclassical economics. The triumphal march of the Market, taking all institutions for granted as its minions, has generated forces which are taking us fast towards the Sponsored State.”

Shiva Kant Jha, Judicial Role in Globalised Economy p. 2 (2005)

[68] Will Durant in his letter to Bertrand Russell ( Russell’s Autobiography ) p 444

[69] Will Durant in his letter to Bertrand Russell ( Russell’s Autobiography ) p 444

[70] Valmikya Ramayana , Sundarkanda, Canto II. sloka 19-20

[71] ibid

[72] Valmikiya Ramayana Yuddhakanda, Canto 75 sloka 30 [translation from Sanskrit by this humble self]

[73] David C. Korten, When the Corporations Rule the World p. 103 (1995) [Indian reprint in 1998 by The Other India Press]

[74] Shakespeare, King John Act III, Scene I, II 184-186

[75] Peter Watson, A Terrible Beauty p. 449

[76] It brings to mind the motto of the Czech Republic: Pravda vítězí ("Truth Prevails").

[77] Harold Pinter, 2005 Nobel Prize Winner for Literature, in his Nobel Lecture - 7 December 2005

[78] Its long title is much revealing: “An Act to make provision for modifying the office of Lord Chancellor, and to make provision relating to the functions of that office; to establish a Supreme Court of the United Kingdom, and to abolish the appellate jurisdiction of the House of Lords; to make provision about the jurisdiction of the Judicial Committee of the Privy Council and the judicial functions of the President of the Council; to make other provision about the judiciary, their appointment and discipline; and for connected purposes.”

[79] 3 Howell’s State Trials 45 (1627)

[80] Bernard Schwartz, Some Makers of American Law Tagore Law Lectures p. 37

[81] . (1803) 1 Cranch 137, 177-79, 2 L ed. 60.

[82] vide Julius Stone, Human Law and Human Justice p.92

[83] O. Hood Phillips’ Constitutional and Administrative Law 7th ed 371 (7th ed1987) [Sweet & Maxwell Ltd

[84] The scriptures should be your guide in
What should be done and what should not.
Knowing what the scriptures prescribe,
You should act here within the world. (

[85] Mulla, Hindu Law. Introduction by Desai.

[86] The Supreme Court of Pakistan had observed in Jilani v. Government of Punjab Pak LD (1972) SC 139 at 182. [ quoted by R.W.M. Dias, Jurisprudence 5th ed. at pp 92-93 [Adity Books/Butterworths ]

“Our Grundnorm is enshrined in our own doctrine that the legal sovereignty over the entire universe belongs to Almighty Allah alone, and the authority exercisable by the people within the limits prescribed by Him is a sacred trust. This is an immutable and unalterable norm (as embodied in the Qur’an) which was clearly accepted in the Objective Resolution passed by the Constituent Assembly of Pakistan on the 7th of March 1949…….It is this led Von Hammer, a renowned orientalist, to remark that under the Islamic system “the law rules through the utterance of Justice, and the power of the Governor carries out the utterance s of it.”

[87] C. K. Allen, Legal Duties, 183. Cf. G. Jellinek: ‘ a right is the will power of man applied to a utility or interest, recognized and protected by a legal system.’

[88] The New Encyclopedia Britannica Vol 28, 15th ed. p. 654

[89] H.M. Seervai, Constitutional Law of India p. 1932, 4th ed. (N.M. Triparthi Ltd/Sweet & Maxwell Ltd)

[90] Edward F. Cummerford, “Judicial Jumble”, The Wall Street Journal, April 22, 1968 p. 18, col.5.

[91] at p. 259

[92] [ 1970] International Court of Justice Reports Index p.4

[93] David C. Korten, When Corporations Rule the World pp. 57-58

[94] 2003-(263)-ITR -0706 -SC

[95] AIR 2002 SC 1771

[96] Freud’s Thoughts for the Times on War and Death, and Civilization and its Discontent.

[97] Bertrand Russell, History of Western Philosophy p. 750

[98] The Cultural Heritage of India Vol. II p. 186

[99] quoted by H.M. Seervai in the Supplement to the Third Ed. of his book Constitutional Law of India [Tripathi]

[100] Paul Kennedy, The Rise and Fall of the Great Powers p. 689 [(1989) [Fontana Press; An Imprint of HarperCollins Publishers]

[101] Ella Wheeler Wilcox (1855-1919), Settle the Questions Right.

[102] Lewis Mumford observed: “In the end, all our contrivances have but one object; the continued growth of human possibilities and the cultivation of the best life possible.” - Links on Shivakantjha - Links on Shivakantjha

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