Nani Palkhivala —Constitution and the Common Man (1971)

This article was published in the February 1971 issue of Freedom First and is an excerpt from a lecture delivered in Bombay. At the time, the right to property was still a fundamental right but was constantly being undermined by our legislators. An eminent jurist and economist, Palkhivala was one of the most fierce defenders of liberty and the rule of law. 

India has never known true democratic freedom in its entire history except during the last 23 years. If Plato’s dictum regarding political evolution is correct, our newly won freedom will have to be zealously guarded if it is not to be supplanted by dictatorship. In a nascent republic where freedom is not bred in the bones of the people, the danger of dictatorship is always vastly greater than in democracies which are centuries old.

In India freedom is not more than one election away from extinction. When an attempt to uphold the rule of law is called a manifestation of ‘vested interests’; and when the preservation of the sanctity of the constitution is called the handiwork of ‘reactionary forces’, it should be clear to any thinking mind that freedom is in peril.

Political freedom and civil liberty are the keystones of the Indian Constitution. Our constitution is primarily shaped and moulded for the common man. The only persons who would be disappointed with the constitution are those who believe in outdated ideologies which can only result in levelling down and not levelling up. The constitution believes in the distribution of wealth, and therefore it not only permits but encourages the creation of wealth by enterprising individuals who with their vision and expertise are prepared to take risks and develop their country. That is why our Constitution confers on all citizens the fundamental rights to acquire, hold and dispose of property and to carry on any trade, business and profession.

The great makers of our Constitution clearly intended that the integrity of the Constitution should be preserved against any hasty or ill-considered changes, ‘the fruits of passions or ignorance’. The essential purpose of our Constitution is to ensure freedom of the individual and the dignity of man, and to put basic human rights above the reach of the State and of transient politicians in power whose naked juvenile chatter is covered by the fig-leaf of demagogic claptrap.

With the growing powers of government all over the world, it is eminently desirable for any democracy to have fundamental rights which cannot be curtailed or abrogated. In the words of Mr. Justice Frankfurter, man being what he is cannot safely be trusted with complete power in depriving others of their rights. The protection of the citizen against all kinds of men in public affairs, none of whom can be trusted with unlimited power over others, lies not in their forbearance but in limitations on their power. At least such is the conviction underlying our Constitution.

With our varying and widely divergent creeds and ideologies, and a wide variety of religions and languages, our country is pre-eminently a country where inalienable fundamental rights are an absolute necessity. These rights have been called, not without justification, the ‘conscience of the Constitution’ or the ‘soul of the Constitution’. In material terms, they constitute the anchor of the Constitution and provide it with the dimension of permanence.

No time in India’s history would be more inopportune than the present for amending the Constitution and empowering Parliament to abridge or take away the Fundamental Rights. With the growing sense of insecurity in different States, when fanaticism of all sorts–regional, linguistic, communal and economic–is gathering momentum, it would be not merely a mistake but a betrayal of the fundamental freedoms to enable Parliament to trifle and tinker with them.

The right to property is often derided as the ‘least defensible’ right in a socialist democracy. Yet a little reflection should show that this right is of the essence of a sound body politic and of a democracy which aims at marching forward economically.

Any attempt to abrogate the Fundamental Right to property would be erroneous, because it would run counter to the eternal laws of human nature. Men will sooner, Machiavelli said, forgive the deaths of their relatives that the confiscation of their property. It is a sad reflection on human nature that, generally speaking, a man will work for himself and his family as he will work for no one else. However, until this law of human nature is changed, the abolition of the right to property can meet with nothing but disaster.

There is no democracy anywhere in the world where as a matter of law and of constitutional practise the right to property is not respected. The right to property is enshrined in the Constitution of the States where the rule of law prevails, as for example in the Magna Carta, in the American Declaration of independence, in the French declaration of the Rights of Man and in the German Constitution. Even in Communist countries like the USSR, the right to private property in the fruits of personal labour and the right to inherit such property are recognized.

Under our Constitution the right to property is elastic and flexible–the Legislatures and the Executive are entitled to subject it to all such reasonable restrictions as are in the public interest. The right to property cannot be invoked at all against laws relating to Zamindari and other estates in lands or against other laws relating to agrarian reforms. Sixty-four Acts passed by Parliament and the State Legislatures are constitutionally declared to be valid although they may directly infringe on the right to property. The adequacy of compensation cannot be challenged in our Courts of Law. Far from there being any need to abridge the Fundamental Right to property further, the truth is that perhaps in no free democracy of the world does the right to proper exist in such an abridged and attenuated form as it does in India.

Countries where freedom has become a way of life can do without the luxury of a constitutional right to property. But in India where economic fanaticism has become a way of political life, it is imperative to retain the right to property.

It would not be too much to say that the right property is, in a sense, the handmaid to the other fundamental rights. Of what avail is the fundamental right to the freedom of speech and expression to a newspaper if its property can be taken away without reasonable compensation; or the fundamental right to form associations or to religious minority is to be held on the sufferance of the party in power?

The myth has been sedulously propagated by wily politicians that it is the Constitution which stands in the way of the nation’s economic progress and the uplift of the masses. This is the greatest fraud ever perpetrated on the people. The truth of the matter is that it is the wooden-headed and disastrous economic policies of the Governments at the Centre and in several States which are truly responsible for the miseries of the seventeen million unemployed and the many more millions who, though employed, are still living below the minimum subsistence level due to the erosion in the value of the rupee. There is not a single sound economic policy or scheme for social development of the masses which is in the slightest degree hampered or hindered by any of the provisions of the Constitution.

There is no doubt that the overwhelming majority of thinking men strongly believe in the Fundamental Rights and are deeply concious of the outstanding role played by the Courts in preserving our cherished values. But unfortunately they constitute the silent majoirty. There are times in a country’s history when inaction and silence can be a culpable wrong, and we are living in such times. It is not enough that we believe in our national motto that truth with ultimately prevail. We must take active steps to see to it that falsehood does not have a very long innings before the ultimate moment of truth arrives.

You can read the original, unabridged version here. Visit indianliberals.in for more works by Indian Liberals dating back to the 19th Century.