The BJP-led government's national agenda legally involves the implementation of the directive principles of the Constitution. This is legally correct since the Constitution under which its ministers have taken oath of office, requires that these principles be treated as fundamental in the governance of the country.Even otherwise it is in keeping with the latest Supreme Court trend of increasingly using the directive principles promising state action for the have-nots to justify the existence of fundamental rights of the haves.
This makes economic sense because unless the three-fourths Bharat of have-nots enters into the cycle of opportunities created by the Union Government, the one-fourth haves cannot get the consumers they need to enjoy their fundamental rights.
But this happy union of the shopkeeper's logic with the Constitution is now under question since the apex court has referred to a bench of five judges the issue of whether the laws of a Union Government for enforcing two key directiveprinciples can continue to claim immunity against certain fundamental rights by virtue of Article 31C of the Constitution.
Article 31C protects the laws of a Union or a state government by declaring that these are meant to implement the directive principles in Article 39(b) and (c) of the Constitution. Article 39(b) requires every ruling political party to direct its policy in particular towards securing that the ownership and control of the material resources of the community are so distributed as best to subserve the common good.
Article 39(c) requires that a government strive to secure that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment.
Both the principles are well recognised in capitalist developed economies with laws on disclosure and accountability giving teeth to laws ensuring these principles. Since these are the principles of an efficient economy, no national agenda talking of distribution of nationalresources like water or swadeshi can ignore them.
Accordingly, the protection given by Article 31C to laws made for implementing these principles from a challenge in the courts on specified grounds is critical for the BJP-led government.
The protection or immunity given to such laws is critical in terms of time. Article 31C gives immunity to laws made to implement Article 39(b) and (c) from a challenge on the ground that these laws violate the fundamental right to equality or the fundamental freedoms of free speech, peaceful assembly, forming associations, moving freely throughout India, residing in any part of India or carrying on any trade, business or profession.
If every law or administrative order of the BJP-led government for implementing the national agenda through Article 39(b) and (c) were to get snarled in continuous litigation, then it could say goodbye to the agenda today itself. This makes the composition of the BJP-led government's legal team in the apex court into a critical issue.
Themain ground on which the Supreme Court in the Maharashtra Property Owners case has referred the issue of whether Article 31C of the Constitution exists or not, relates back to 1973. In that year the Supreme Court knocked down the attempt of the Congress government at the Centre to shut out judicial review of laws claimed by ruling politicians to have been passed for implementing the directive principles in Articles 39(b) and (c).
The judiciary asserted its right to examine the genuineness of the political claim that the law was actually meant to implement these directive principles.
On May 15, 1978, a bill was introduced in Parliament to undo what had been done in the Kesvananda Bharati case. But the clause in the Bill to undo the apex court judgment was dropped. Now after about a decade and a half, the claim has been made that as a result of the 1973 judgment and the subsequent Parliamentary proceedings, Article 31C is dead since no law ever revived it after the judgment. Article 31C had been introducedby a constitutional amendment in 1971 and such amendments once struck down by the court cannot spring back automatically.
The United Front government opposed this by pointing out that in any event the apex court had proceeded in two constitution bench judgments, Minerva Mills and Waman Rao of 1980 as also the 1983 judgment in Sanjeev Coke, on the basis that Article 31C survived after the 1973 judgment in Kesvananda Bharati. But the apex court referred the matters to a five-judge bench and last week refused other parties, claiming to be affected by the issue, a hearing in the matter.
That leaves only the BJP-led government to defend the existence of Article 31C -- an issue which promises to revive the entire debate of the 1970s on fundamental rights, directive principles and the power of ruling politicians to amend the Constitution.
Copyright © 1998 Indian Express Newspapers (Bombay) Ltd.
