Saturday, November 28, 2015

Jaitley accuses Congress of changing its position on right to property, from removing it as one of the fundamental rights in the 1970s and of defending right to property in the context of the land acquisition bill 40 years later


New Delhi
Union Finance Minister Arun Jaitley has literally stirred the hornet's nest while opening the debate on the Constitution to mark the 125th birth anniversary of Dr B.R.Ambedkar in the Rajya Sabha on Friday.
What drew the attention of everyone was his comparison of the imposition of the Emergency by using the constitutional provision of Article 352. And he was genuinely passionate about the Fundamental Rights being the soul of the Constitution. And his moral and juristic indignation about the suspension of fundamental rights, including the right to life enshrined in Article 21. The comparison with Hitler and Nazi Germany was trite and tiresome.
But the key observation he made and the critique he offered was the ideological biases that marked the changes made in the Constitution. He reminded that the right to property was a fundamental right, and it was removed from Part III which enumerated the fundamental rights.
The change was made in the 1970s when the flavour of the hour was socialism. The implication in Jaitley's argument should have been that in a post-socialist era of free markets, the Constitution needs to reflect the new ideological bias of plain capitalism where the right to property is as sacred as the right to life. This was the real gauntlet he threw down at the dithering Congress which swears by the dead socialism.
But Jaitley shies away from doing it. He is content to point out that the Congress has changed its position. It was half-hearted attack, meant to dent the Congress’ position rather than demolish it. While his defense of right to life under Article 21 is morally and legally impeccable, he dithers on the issue of the right to property after picking up the courage to raise it.
He said, “It was a Fundamental Right (the right to property). Since, we were then swayed by a different set of economic policies, there was a big campaign and the only Fundamental Right which has been repealed in India during the 1970s was the Right to Property, to own and acquire property. This was subsequently brought in as an ordinary Constitutional right under Article 300A. I am not advocating anything else. During the last few years, a debate over the Land Bill has taken place in this country. I would just urge all hon. Members and other thinkers in the Indian society to ponder over the fact, just as a part of transient economic thinking at any given point of time, that whether we should get so over-swayed and tinker with Fundamental Rights. I am just flagging this issue and since we are discussing the Constitution, which Dr. Ambedkar had drafted and he had put this as one of the rights, we thought it was progressive enough to repeal it and then forty years later, we came out with a contrarian argument in the Land Bill. I think it is about time that the last seventy-year debate on this issue, some of us must now try and revisit that shortsome vision in dealing with Constitutionalism which is not necessarily the correct perspective to have. “
Jaitley did not hint that he would bring an amendment to restore the right to property as the fundamental right. It is of course an impossible thing because the BJP does not enjoy the mandated two-thirds majority of those present and voting to push through the needed amendment.
The Congress and the Communists cannot go to town and call the BJP and Jaitley as the capitalist ogres. The mood now is such that everyone wants to own property and they want to be assured that no government can take it away.
The irony of course is that Jaitley will find himself in a soup because in the amended land acquisition bill, he favours the government's right to acquire property without too much fuss. In a way it negates his implied argument for the right to property. On the other hand, the populist Congress and the Communists are standing up for the inviolable right to property of the farmers by insisting that consent of farmers, apart from the compensation being paid to them, is the inherent right of the farmers. That is, farmers have a right to say no to government which wants to acquire land for public purposes.
The consent clause also implies that farmers can stand up to any big private sector payers who would want to buy out a farmer or a village community. It is of course another story that luddite socialists would try to brainwash farmers from selling land at any cost.
Jaitley's ploy, as well as that Urban Affairs Minister M. Venkaiah Naidu in the Lok Sabha, on the Directive Prnciples provisions with regard to uniform civil code and ban on cow slaughter was low politics, though absolutely legitimate. It was a case of embarrassing the right-wingers among the minorities, the Congress and the Communists.
As a matter of fact, Congress' J. Sheelam corrected Jaitley about the special provision provided under Article 15 and how it held good under Article 30 as well because a Dalit who becomes a Christian faces the same discrimination that he faced when he or she was a Hindu.
When Jaitley tried to peddle the majoritarian Hindutva argument through his lawyerly cunning, he was showing up the true right-wing authoritarian colours that the BJP is unable to shed.
Jaitley's only and true googly was the one about the right to property but it was also a no-ball given his position on the land acquisition bill.

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