LAOT is pleased to begin a new series, Books and Authors, with a focussed interview with the author about his or her recent book. V.Krishna Ananth, is Associate Professor and Head, Department of History, Sikkim University, Gangtok. His book, The Indian Constitution and Social Revolution: Right to Property since Independence, was published by Sage recently. The book is available for purchase online here. In this interview, Krishna answers a few questions on the book.
VV. To start with, can you tell us what prompted you to write this book? To put it differently, how do you think your book will make a difference to the plethora of books on the Indian Constitution and the case law?
KA: This is part of a study I had taken up during a fellowship at the Nehru Memorial Museum and Library, New Delhi on the “Retreat of the Nehruvian Socialist Project; A Study on the Political, Legislative and the Judicial Interventions”, in May 2009. I was drawn into this subject during my brief stint as a lawyer practicing at the Madras High Court; this was a time when I realized that the pro-poor tilt in the judiciary had begun to change. In other words, it was a sense of despair leading out of the shift away from a set of judgments during the 1970s and the 1980s that nudged me to study this subject. The book, however, is a small part of this larger project and I thought a systematic study on one aspect of our Constitution – the Right to Property – a fundamental Right until 1978 and a mere Constitutional Right since then was both following an argument as in existing works on the Constitution and yet distinct in that it focuses on one aspect of the Constitution. This is a more focused work on the concept of property and its evolution in the sixty years after the Constitution was adopted in November 1949. In this sense, it is different from the plethora of books on the Constitution in my opinion
VV: The words ‘social revolution’ in the title of the book echoes partly the title of your blog. What prompted you to choose this particular expression to convey the contents of your book.
KA: This phrase, in fact, was drawn out of Granville Austen’s works. He uses this in Chapter 7 of his 1966 publication (The Indian Constitution: Cornerstone of a Nation) as well as in Chapter 3 of his 1999 publication (Working a Democratic Constitution: A History of the Indian Experience). It struck me that though the subject matter of my study pertained to economic relations and more particularly to property relations, the larger objective and the implication of these legislative and judicial interventions had to do with bringing about a social transformation in the Indian society. The canker of caste, for instance, while manifesting as a social problem is the fallout, in my view, of the economic disparities; and discrimination insofar as access to economic resources, in our society is based on social injustice. It is hence that, I will argue, the Constitutional scheme in general (Justice, Social, Economic and Political as underscored in the Preamble in particular), underscores this strong inter-relationship between the economic and the social towards achieving political democracy. `Social Revolution’ was chosen for this reason. I must add that the title of my blog had not occurred to me when I formulated the title of the book. In any case, Permanent Revolution to me is drawn from the Gandhi; though it was Leon Trotsky who used this phrase elsewhere.
VV: The sub-title of the book conveys the impression that the book focuses on the right to property, which ceased to be a fundamental right in 1978 due to the 44th Amendment Act, although the book, in my view, raises larger philosophical questions. You have explained the circumstances in which the right was first guaranteed as a fundamental right, and later removed. Considering that the State today uses eminent domain to favour the private interests, would you now favour the restoration of right to property as a fundamental right?
KA: Well. This is certainly one of my arguments and I do hold that in times when we have had instances where activist lawyers taking up the cause of the oppressed (a feature of our democracy since the 1980s, also when the institution of PILs gained currency), Article 31 of the Constitution could have been used against land grabbing by the State. After all, we do notice that this Article, until it was deleted, came in handy to the propertied classes against the state attempts to realize the contents of Article 39 (b). This, however, is only an academic argument. The fact is that the neo-liberal era had witnessed the state swinging to the other end and turning the land grabber not in order to realize Article 39 (b) but to dispossess the peasantry. And I should hasten to add that even if Article 31 was not deleted in 1978, it would have been done a decade later to push the neo-liberal agenda. I will not even dream today of a Constitutional Amendment to restore the Right to Property as Fundamental Right now with the consensus among parties to enact land grab acts!!!
VV: One interesting aspect of the book is that it hints at the probable influence of John Rawls on the framers who unconsciously followed his theory of ‘veil of ignorance’ and on the Keshavananda Bench, which relies on Rawls intellectual mentor, Immanuel Kant. But as a reader, I was disappointed that you decided that this is not a focus of your book. In your view, the veil of ignorance applied to the members of the Constituent Assembly or We the People. And the contract you refer to – was it between the members of CA and the people or between the State and the people?
KA: I must agree with you that I have not made Rawls and his Theory of Justice the focus of my study. But then, we will agree that the Constituent Assembly debates preceded Rawls and even in case of the Keshavananda verdict (1973), though I find a huge influence of Rawls (and as you point out a reliance on Kant), there is no reference there to Rawls. I do see that the judges must have been privy to Rawls at the time of writing their judgments but do not make a direct reference there. As for the second leg of your question, I think the Constitution represented a contract between the state and the people and that probably is how we can see the Rawlsian framework.
VV: Can we say that the Indian Constitution rejects utilitarianism completely, and here the influence of Rawls is more than evident?
KA: I cannot agree with you more. But let me add that this was true in the Nehruvian era and I do see a shift towards utilitarianism in the neo-liberal era and an attempt to render the Constitutional philosophy into a utilitarian frame.
VV: Article 39(b) uses the expression ‘common good’. Should it be interpreted as the ‘greatest good of the greatest number’ as some courts including the Supreme Court have done in some cases? Has there been any case law on this issue?
KA: Well. Common Good cannot mean the greatest good of the greatest number unless we insist on a utilitarian framework; and I do not agree that our Constitution was conceived in that manner. Article 39 (b) is unambiguous here. It talks about achieving an egalitarian society in terms of ownership of the wealth. I see Keshavananda as a case in point to this and Justice H.R.Khanna’s verdict there that the Right to Property does not constitute the Basic Structure of the Constitution very significant in this regard. I will also read the decision in the Minerwa Mills case and in the Olga Tellis case as markers of this trajectory.
VV: You also suggest that Rawls may be inadequate to address the many aberrations which marred the strength of our institutions to promote the ‘original position’ (You may explain what is the original position, that you refer to in italics throughout), and that Amartya Sen’s war of positions may be the answer. But you did not elaborate this point further, perhaps due to the limitations of your book’s focus. Can you explain this point here for the sake of our readers?
KA: I must keep this for a larger project that I intend taking up to do this; incidentally, this is what I propose there. In that, I am considering to take up the shift in Rawls as well as the epistemological significance from A theory of Justice to An Idea of Justice; from law as given to aspirational law. I hope I will be able to do that soon. As for the use of Italics, it was more a matter of style and nothing more.
VV: UPA Government’s Land Acquisition law, LARR, gets a passing reference in your book, as it is not its focus. Can you explain your position on LARR and the Modi Government’s amendments to it which have become very controversial?
: I consider the 2013 Act (LARR) and the subsequent amendment by way of Ordinance by the Modi Government as belonging to the same league. I hold that the 2013 Act as well as the amendments attempted to that are the fallout of a shift from the Nehruvian ideals to the neo-liberal consensus and the treatment of land as commodity. I have dealt with this elaborately elsewhere in an academic paper for a forthcoming publication. A version of that is available on my blog here.
The argument here is that both the 2013 Act and the amendments attempted belong to a neo liberal era and driven by utilitarianism and thus a paradigm shift away from the theory of justice that guided our Constitutional scheme in the fifty years since 1949.
VV: Thank you Krishna, for finding the time to answer the questions for our readers and best wishes from LAOT for your next book.