Monday, July 19, 2010

We, of the Preamble

No one objects to socialism if it is about equity concerns. But, it makes sense to oppose it if it means public ownership of means of production. State and the public are not synonymous. Amending the constituion makes sense in certain circumstances, but not always. The insertion of the worsd Socialist is not an acasdemic question. Sharasd Joshi refused to register his political party as of the clause, writes Bibek Debroy in The Indian Express.


"If socialism is about equity concerns, no one will object, though there can be debates about whether that equity should be on inputs (access to health, education, credit and so on) or outcomes (incomes). But if socialism is interpreted as public ownership of means of production, as it often is, there is every reason to object. Economists typically classify means of production as land (natural resources is a broader concept), labour, capital and entrepreneurship. While there is no reason to equate public ownership with state ownership, de facto, that equation is the norm. Both theoretically and empirically, public ownership of means of production like land, labour and capital is inefficient, especially if combined with monopoly. And no one has yet figured out how the state can be entrepreneurial. "

"Today’s Constitution is not the one we inherited in 1950. The Constitution is a living document, there is no reason for it to be cast in stone. There is a process for amending the Constitution. But that doesn’t necessarily mean every amendment to the Constitution has been desirable. "

"The Preamble to the Constitution now makes India a sovereign, socialist, secular, democratic republic. That wasn’t the original Preamble. Socialist and secular were added through the 42nd Amendment in 1976. Let’s focus on the socialist part. First, every constitutional expert says since 1973 (Kesavananda Bharati case) the basic structure can’t be changed. But isn’t this a change in basic structure? Second, one might argue the Preamble isn’t really law, it isn’t enforceable in a court. Therefore, it doesn’t change the basic structure. However, that’s only half true. In that same case (Kesavananda Bharati), the Supreme Court held the Preamble is important in interpreting law. Third, if the Preamble was unimportant, what was the need to amend it? There are several other provisions in the Constitution (including Directive Principles) to drive goals of equity. "

"Fourth, it is not that framers of the Constitution were unfamiliar with the concept of “socialism”. It was consciously kept out, for very cogent reasons. In Constituent Assembly debates, Dr Ambedkar was prescient in opposing such an amendment (to the draft)"

"Fifth, from late-’60s to mid-’70s, several undesirable changes were introduced in economic policy and laws. The 42nd Amendment is part of that. If we are changing other elements, why not the Preamble?"

"But for the Preamble, we wouldn’t have had Section 29-A of Representation of the People Act, 1951, inserted in 1989, specifically Clause (5), requiring the political party to abide by “principles of socialism”. This would have been understandable in 1976. In 1989, the year in which the Berlin Wall collapsed (effectively, so did the Soviet system), this socialism bit in Clause (5) probably got inserted without a great deal of thought, because of the other elements of Section 29-A. Hence, a political party has to be “socialist” for it to be registered."

"The NGO Good Governance Foundation rightly challenged this — that is, challenged both amended Preamble and Section 29-A(5). In 2008, the Supreme Court ducked. It allowed the challenge to Section 29-A(5), but not the Preamble. Now, on the challenge to Section 29-A(5), the Supreme Court has ducked again, calling the issue “academic and hypothetical”. Why is it academic and hypothetical? Because no registered political party has refused to swear allegiance to socialism? And because the Election Commission (EC) hasn’t so far refused registration to a proposed political party on grounds of non-adherence to socialism. Let that situation crop up, and then we (the Supreme Court) shall see. "

"Sharad Joshi (Shetkari Sangathana) once told me he refused to register a proper political party because of this offensive clause. Therefore, we do have a problem."


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