Mockery of our Constitutional Principles...
The Preamble of our Constitution states that “We the people of India having solemnly resolved to constitute into a Sovereign Socialist Secular Democratic Republic and to secure to all its citizens, Justice, Social, Economic and Political; Liberty of thought, Expression, Belief, Faith and Worship; Equality of Status and of Opportunity; and to promote among them all; Fraternity assuring the dignity of the individual and the unity and integrity of the nation”.
A careful examination of the preamble suggests that the state should secure to every citizen ‘Justice’ which is in the nature of Social, Economic & Political without taking into consideration caste, creed, sex, place of birth of an individual and strive towards creating equal opportunity for everybody which in the long run results in social as well as economic equality. Our Preamble also remarkably enunciates that the nature of our state is Socialist, Democratic & Republic.
Let us examine the meaning of the term ‘Socialist’, the literary meaning of the word is, “a political and economic theory which holds that the country’s land, transport, natural resources and chief industries should be owned or controlled by the community as a whole”[1]. The same thought was propounded by the popular political thinker & economist Karl Marx, in his opinion the state should be the owner of the means of production so that there is no concentration of wealth in few hands and there would be proper allocation of resources among the people.
In the light of the above details can we indeed say that we have adopted our constitution in Toto? In my opinion, a strict NO, because in the present scenario “might has become the right”. If a person is economically well heeled, he can rule the roost and manipulate the working of the state machinery thus deriving the benefits as he desires. State, in the guise of liberalization and globalization, has issued license or lease to all those who are able to afford the exhorbitant license fees or lease amount and who may have also wield the political power. These licensees/lessees do not have an iota of national interest when it comes to exploiting the natural resources. When our non-renewable & exhaustible mining, crude oil and timber industries are monopolized by few individuals at the cost of the state, which are our natural resources and are allowed to be exploited only by few of them owing to their buying capacity in the form of licenses/lease, what makes us to be under the impression that the nature of our state is Socialism?
The state has seemed to have ignored the fact that ‘Natural assets are National assets’ and ‘whatever we cannot create; we have no right to destroy the same’. These industries are the backbone of any country and if the state does not deprivatise & nationalise these industries on the war footing, for the common good & in the true spirit of Socialism, we can foresee a situation wherein we will be compelled to read about our wealth of mines and forests & our natural resources only in the books to come. Today few hands who have wielded these industries owing to their political backing, are exploiting these resources without giving a thought for tomorrow, without preserving anything for tomorrow’s generation besides indulging in illegal mining and poaching and the irony is that whatever they are extracting is neither released into the domestic market nor made use of, to meet the dire needs of the fellow countrymen but exported at a meager price to enrich other countries, Alas! What committed legislators we have, who have shut all their faculties to these menace and pretending to be oblivious of all these realities and be in deep slumber. ‘Make hay while sun shines’, has seemed to be their mantra. In our quest for rapid industrial growth over the years, the environment has come to be subordinated to development. Without our knowledge, we are gradually heading towards the irreversible environmental damage which will sound a death knell for the entire humanity.
Article 39(b) requires the state to direct its policy towards ‘distribution of ownership and control of the material resources of the community to the common good’. Article 39 (c) mandates the state ‘to ensure that the economic system should not result in concentration of wealth and means of production to the common detriment’. The present reality is in stark contrast of these provisions, thus mocking at our constitutional principles.
As we are witnessing in our own State of Karnataka, mining for iron ore has been carried on for many years in Bellary district and the report in one of the leading daily news papers[2] suggests that about 40 million tons of iron ore is being extracted annually in Bellary and of this 60% is exported mainly to China, hardly 10to15% is released for the domestic usage as the industry leaders claim that there is no demand for the same and the rest of about 25% is exported to other countries. Every day 8000 truckloads of iron ore is being transported out of this district alone by various mining companies. Though the profit of iron ore has increased several folds from Rs50/ton to Rs 5000/ton, the royalty that is paid to the state remains less than 0.5% per ton, which goes to show that how much the state is losing and how much these mining companies are amassing. In fact the Karnataka state government has banned the export of iron ore from its state ports vide its government order dated July26 and has banned the issue of transport permits for export of iron ore by the government order dated July28. In spite of all these moves by the state government, it is business as usual for the mining companies. These government orders seem to have hardly any impact on the erring mining companies. These mining companies are transporting the iron ore to the ports of the neighbouring states and exporting from those ports, thus defying all orders passed by the government. In fact the mining companies have filed a writ petition before the honourable High court of Karnataka questioning the government order of banning the export of iron ore.
If one happens to visit this district, one can see vast stretches of land being covered with a thick smoke of dust, heaps of mounds of mud. The earth is being dug up and excavated, thus causing deep trenches and ravines, which has made the land unusable for any constructive purpose. The so called drinking water has turned muddy, thus making it unfit for human consumption. The atmosphere is filled with fine dust particles which repeatedly settles down on the trees and plants covering all the leaves with a thick coat of dust which ultimately prevents them from being exposed to sunrays and their photo synthesis is being impaired because of which the vegetation is dying a slow death which in turn results in decrease in the oxygen level. The water bodies in and around this place are infested with effluents of these mining activities, thus polluting the entire environment. In the backdrop of this hassled environment, it is anybody’s guess as to the plight of inhabitants and it is obvious that the Right to life and personal liberty of them as guaranteed by Article 21 of our Constitution is flagrantly violated which is another face of this crisis.
Article 21 of our constitution basically provides for “Protection of Life and Personal Liberty”. The Indian Constitution (Forty Second Amendment) Act 1976 has provided an impulse to the environment protection process in India. The 42nd amendment Act clearly spelt out the amendment to the preamble of the concept of ‘Socialism’. In the Socialistic pattern of societies the state pays more attention to the social problem than to any individual problem and pollution is one of them. The courts in India through various pronouncements from time to time have expanded the scope of Right to life and personal liberty guaranteed under Article 21 of the Indian Constitution. This right has been held much more than right to mere animal existence and its attributes is many folds as life itself.
In the present context we have to examine the decision given by a five judges bench of the Supreme Court in Sodan Singh Vs New Delhi Municipal Committee[3],- “the right to carry on any trade or business is not included in the concept of life and personal liberty”. Article 19(1) (g) of the Indian constitution confers Fundamental right on every citizen to practice any trade or profession or to carry on any occupation, trade or business. Article21 is not attracted in a case of trade and business. This fundamental right has been subjected to reasonable restrictions which may be placed in the interest of the general public. The period of carrying on the business should not be the relevant factor. If there is a clash between the environmental protection and Right to freedom of trade and occupation, the courts have to balance environmental interests with the fundamental rights to carry on any occupation, trade or business. Such a balance is required between the rights to carry on business against the danger to public health caused by discharge of effluents into the environment. Such balance has to be provided initially by the legislature and ultimately by the judiciary as the verdict of the legislature is not final. We are bound by the supremacy of the constitution and the judiciary and not by the supremacy of the legislature. Now that the legislature has failed, it is the judiciary which should step in and bring the situation under control.
In K.F. Hussain Vs Union of India[4], the right to clean water, the right to fresh air and the right to wholesome environment have been held to be the attributes of the right to life, as these are the basic elements which sustain life itself. In a land mark judgement in Intellectual Forum, Tirupati Vs Andhra Pradesh[5], the Supreme Court held that “under Article 21 and 48A and Article 51A, it is the constitutional obligation of the governments to protect and preserve the environment. ‘Sustainable development’ as defined in the World Commission on Environment and Development report, means development that meets the needs of the present without compromising the ability of future generations to meet their own needs”. In this case the court also recognized the doctrine of ‘public trust’, which means that the state in the character of sovereign is the trustee of public, of all the natural resources and the same can be disposed of by the state only in a manner that is consistent with nature of such trust.
The state has the Constitutional obligation to ensure compliance under Article 144 of the Constitution. Article144 provides that all authorities, civil and judicial in the territory of India shall act in aid of the Supreme Court. But the trend of non-compliance of the orders and directions even of the Apex Court order is a disturbing trend as it is one of the tests whether the Constitution is functioning or not & whether the orders of the courts are being carried out or not.
The enjoyment of life and its attainment and fulfillment guaranteed by Article 21 embraces the protection and preservation of nature’s gift without which life cannot be enjoyed. There can be no reason why practice of violent extinguishment of the life alone should be regarded as violative of Article21. The slow poisoning by the polluted atmosphere caused by environment pollution and spoliation should also be regarded as amounting to violation of Article 21 of the Constitution. The courts time and again in various judgements have stressed that Right to life includes right to enjoy pollution free atmosphere. In the light of the above judgements the need of the hour is to nationalise the natural resources of the country and use the same in a reasonable manner for the common good without polluting the environment.
At this juncture I, would like to adduce some of the important instances from the recent past, our late former Chief Minister of Karnataka, Sri Kengal Hanumanthiah was instrumental in taking over and nationalizing the KGF gold mines at Kolar in 1956 when he was the Chief Minister of erstwhile Mysore state. He realized the potentiality and importance of these mines and gauged the vulnerability of the same at the private hands as they were carrying on the mining activities as if there is no tomorrow. He got a resolution passed in the state assembly to nationalize the gold mines. He then approached the then Prime Minister of India Sri. Pandit Jawahar Lal Nehru and appraised him of the same and accordingly KGF Gold mines was nationalized.
Our late Prime Minister Smt Indira Gandhi whom I regard as a lone man in the Indian politics, nationalized the banking sector owing to the fact that there was too much unaccounted money floundering in this sector. The private individuals were playing ducks and drakes with other’s money and no common mechanism was in place to monitor the banking activity, she thought it necessary to nationalize the same though there was a lot of hue and cry being raised from all the directors of banking companies as they were also the share holders of those banking companies and their interests would also be hit by the nationalization. The prominent among them was Mr. R C Cooper who was one of the directors of a banking company, filed a Writ petition under Article 32 of our constitution in R C Cooper Vs Union of India[6], contending that this move of the government would be curtailing his rights under Articles 14, 19(1)(g) and 21 of our Constitution. But the same was struck down by our Apex court and 14 major commercial banks were nationalized by passing Banking Companies (Acquisition and Transfer of undertakings) Act 1969 and in 1980 on the same lines another set of 6 commercial banks were nationalised.
In the light of all this, today, how many politicians are willing to take up this onerous responsibility of shifting our natural resources from the private hands to the state- NONE, because it is a case of ‘the fence eating up the crops’ as these private individuals who have monopolized these highly volatile and exhaustible resources have themselves become the legislators & the law makers and when some of our legislators are hand in glove with these few individuals who will be financing all their political activities including the Elections- what more can we expect from them. But my earnest concern is what is the Judiciary doing, why is it not taking up the suomoto action against this peril, giving an extension to its own judicial activism? In this scenario of ‘who should bell the cat’, it is only the Judiciary which can be the lone savior thus bailing out the country’s natural resources. The situation in the country has attained the status of an Internal Emergency or a civil war but undeclared and if not checked and addressed immediately, we will be losing our battle hopelessly to some of the private individuals with vested interests and shortly we will be robbed of all our natural resources and we will be compelled to see only vast stretches of barren land in the time to come.
Our preamble also suggests that ours is a Democratic country.
The term ‘Democracy’ indicates that the constitution has established a form of government which gets its authority from the will of the majority people[7] and by the term ‘majority people’ our constitution framers meant not the majority of the people voting but they indicated ‘majority of the people residing in the country’. In this form of government the rulers are elected by the people and are responsible to them. All the adults who have completed 18years of age have the right to vote and give a mandate as to who should wield the power. The party which harnesses majority votes will come to power & get anointed, but our experiences in the recent past show that only 48% of the people turn up for voting in most of the places & the opinion of the majority of 52% people goes missing & unrepresented. This is the case mainly with the so called elite class living in the urban areas /constituencies than with the people living in rural India. The stark irony is that almost all the political parties are concentrating on further developing urban India which has remained indifferent to their basic duties and these political parties are not sparing even a thought to ameliorating the rural population which has played a pivotal role in the country’s election process and they are being relegated to the backdrop.
When this insalubrious fact is staring straight into our face, how do we account for the opinion of this majority of 52%people who have abstained from voting? How do we declare a person as the winner in the election who has garnered the support of the majority people out of the minority section of the people who have cast their vote, which will not stand the test of the definition of Democracy? How can we declare him, the leader of the majority people? When the mandate of the election does not represent the majority, can we indeed say that ours is a Democratic state, which declares to have gotten the mandate from the majority people? The reality contravenes the meaning of the term- Democracy, thus mocking at our constitution. In the present day context I, define Democracy as ‘Demonstration of hypocrisy’. People do not vote either because they suspect the integrity of the candidate for election or they have no faith in any of the political parties or they have remained indifferent to their own fundamental rights and duties, which is very deplorable.
At this juncture, I feel the need to have a legislation wherein voting is made compulsorily compulsory and those who do not exercise the same should be penalized by forfeiting all the privileges extended by the state, since a person who does not respect his constitutional duties has no right to claim fundamental rights & he has no right live in this country as well. I suggest the ballot paper should contain a separate column where the people can voice their opinion about the candidate. If the people are not convinced with the candidature of a particular candidate, let them go to their respective polling booths and make a note of the same than abstaining from voting. Such candidates should not be allowed to contest the election again which may also act as a deterrent on the political parties to pose unsuitable candidates in the future elections. This step may weed out and cleanse our political system of the pollutants to some extent.
A need is felt for another legislation which fixes the minimum votes to be bagged by every candidate depending on the size of population of the constituency from which he is contesting, to be declared as a winning candidate in the election in tune with the Democratic principle of ‘rule by the majority people’. If a particular candidate fails to secure the minimum number of votes thus fixed, then the election of that particular constituency should stand cancelled and re-elections should be ordered for. This creates fear psychosis in the minds of every candidate to the election thus prompting him to goad everyone to exercise their franchaise, as the reality depicts that some of the parties are successively banking on a particular section of the population and coming to power year after year.
In conclusion I, opine that the state and we the people of India should live up to the expectations of the constitutional framers in all our earnest to protect and preserve our constitutional principles. State should endeavour to take up the task of carrying out the mandate of the constitution in the true spirit as dreamt and fantasized by our constitutional makers, in order to achieve the values & principles as enshrined in the preamble of our constitution. The essence of our state is not the police state anymore but that of a welfare state, which should strive to achieve the overall well being & protection of everybody’s interests by fair means. All the citizens of the country should be sensitized to their fundamental duties, as all of us are deeply indebted to and owe a lot to our mother country which we can repay back only by being responsible citizens. I hereby urge mainly the youth population to awake & arise from the self imposed exile to play a major role in nation building by seizing the baton than being mute spectators, as “today’s youth are tomorrow’s torch bearers”.
Note: When this article was under publication, a Bangalore based advocate filed a writ petition before the Honourable High Court of Karnataka, seeking directions to nationalize the mineral wealth of the state. The petitioner has sought directions to quash the provisions of the Mines and Minerals Development and Regulation Act as it restricts the power of the state to regulate illegal mining and permits the plunder of the public assets by selected few individuals violating the fundamental rights of the people.
Sumithra.R. BA.L,LL.M. M.A.
Faculty member,
Bangalore-20.
