Undemocratic Amendments to the Constitution during the Emergency

Pic source: indiatoday.intoday.in

On 25th of June this year, the 40th year of the Union Government imposed state of emergency was remembered. There have been many discussions around the misdoings of the Union Government during the 21 months' long period of emergency. Several web portals ran stories highlighting what the citizens of present day India can learn from the period of emergency. What went missing in much of these articles/discussions were the changes to the constitution of India that were made during the emergency, and how these changes undermined the fabric of the constitution of India. Not only were the fundamental rights of the people compromised, powers of the states of the union were also taken away by moving some important subjects from the state list to the concurrent/union list. Education was one such major subject that was moved from the state list to the concurrent list, quite understandably without any debate. At Karnatique, we have always argued that education must be a state list, and in this article too a special emphasis has been laid to highlight the movement of education from state list to concurrent list.

Education in state list, as the constituent assembly had wanted
The constituent assembly chaired by B. R. Ambedkar had kept education in the state list. In the meetings of the constituent assembly, a member by name Purnima Banerjee had moved an amendment seeking to move education to the Union list. This move was supported by another member of the constituent assembly Brajeshwar Prasad. But, the move was countered strongly by another member by name Rohini Kumar Chaudhury. The move was finally not accepted by B. R. Ambedkar, and hence education remained in the state list. Rohini Kumar Chaudhury made a strong speech in the constituent assembly insisting that education be maintained in the state list, and a part of the same speech has been quoted below.

Sir, it seems to me to be an age since I spoke last. It is not that my tongue does not reach so long, but I loathe to speak in this House lest I impede the progress of the work here, but today the heart-throbbing speech of my honourable Friend Shrimati Purnima Banerji has aroused me from my slumbers. I come here not to appreciate the speech of my honourable Friend Shrimati Purnima Banerji but to oppose it with all the might that I posses. Sir, we have come nearly to the end of these Lists, I, II and III and what do we find ? What we find is that the position of the States are no longer States or Provinces, but they have been reduced to the position of municipal and other local bodies. All the powers have been taken away either in List I or List No. 3. It reminds me of the words in the Upanishad:

Poornasya Poornamadaya

Poornamevavasishyate. 

     After having taken out everything the same fullness remains : it is as if it is a full Moon. We are taking slices of the full Moon and yet the full Moon still continues as before. That is the position to which we have arrived after going through all these lists.' No power is left to the Provinces and the full Moon remains a full Moon as before.

The 42nd amendment
The 42nd amendment to the constitution of India was brought about during the days of the emergency. It is regarded as the most controversial of the amendments to the constitution, in India's history. Apart from editing the preamble of the constitution and attempting to reduce the powers of the Supreme court and the high courts of India, the 42nd amendment brought such sweeping changes to the constitution that many described the amendment as a mini-constitution. As part of this amendment, education was moved to concurrent list from the state list. It is nothing but a mockery of democracy that such sweeping amendments, ones that curtailed the powers of the courts and reduced the powers of the states, were made during the emergency period without any debate whatsoever among the representatives of the people of India.

The run up to the 42nd amendment
The constitution of India, as drafted by the members of the constituent assembly, had not let so much of power reside at the hands of one person. If the same form of the constitution had continued till 1975, the sweeping changes introduced as part of the 42nd amendment would have been impossible to make. The 24th amendment is what tilted the constitution from the original form towards the current form. If not for the changes made to the constitution as part of the 24th amendment, the 42nd amendment wouldn't have been possible, As part of the 24th amendment, the parliament was enabled to dilute the fundamental rights, yes, the fundamental rights of the people of India. Also, the courts were prevented from doing any review of the future amendments to the constitution that impact the fundamental rights of the people.
When the 24th amendment was made, those members of the constituent assembly who were alive at that time, came out and opposed the amendment. Several of the legal experts had called the 24th amendment as slaughter of the constitution.

Interestingly, both the 24th and the 48th amendments were made when the union of India was in a state of emergency. The 24th amendment was made in the year 1971, at a time when the Bangla Liberation War was going on and the relations between India and Pakistan were tense. The 48th amendment was introduced during the period of imposed emergency, in 1976.

There seems to be larger agreement that the imposition of 21 month long emergency, starting in the year 1975, was detrimental. There is also widespread disapproval of the 42nd amendment to the constitution. The present Union Government of India has made special efforts to highlight the excesses of the emergency period.

To undo the damages done to the constitution during the emergency, what remedial actions is the current Union Government planning, is not very clear. Honest attempts to correct those excesses will have to start from moving education back to the state list from the concurrent list. With that, all the centralization efforts in the field of education will also have to stop. The power to meddle with the fundamental rights of the people, needs to be taken away from the parliament. All the talk about emergency is good, but the remedial actions need to speak too.