[PDF]We The People Nani A Palkhivala

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Also by the same author

# 1 Bestseller

WE, THE NATION

The Lost Decades


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India, the sleeping giant of an economy—in the words of
Lee Kuan Yew—is, at last, slowly stirring from its long night of
slumber, drugged as it has been for decades with the opiate of
socialism. This amazing subcontinent with its mosaic of colours,
cultures, contrasts and maddening contradictions, always has,
thanks to vast quantities of its own indigenously manufactured red
tape and venal politicians, been held in thrall for so long. It is only
now, and that too hesitantly, that India is moving to take its rightful
place in the community of nations of the world.

What ails India, what its potential is, how magnificent its heritage
is, how richly endowed it is by both history and nature, are all
highlighted in this book.

The author brings a razor-sharp mind to bear on the myriad
subjects he touches, ranging from the noble Constitution of India,
the man-made malaise seizing India from time to time, eminent
personalities, to the daunting task of redesigning India for the 21 st
century. The convoluted problems that India is heir to, and
confronted with, are analyzed, and unlike most armchair critics
and analysts, solutions are suggested.

Each topic is illuminated with sensitivity and sunlight-clear
expositioa Public memories are irresponsibly short and selective, and
this book, spanning asitdoesthepanoramaofthelasttentumultuous
years,.becomes essential reading —the history that must be read so
that we are not condemned to repeating it

A book for all persons and all seasons indeed.



Some Reviews of

WE, THE NATION

Eminently readable and informative. It should be required for
everyone as part of our liberal education.

— The Hindu

Expresses the outrage of a civilised and humane man at the folly of
man in reducing his beloved country to its sorry state. Palkhivala's
feelings are expressed over a wide range of subjects.... The book
sparkles with aphorisms. It also reflects the incisive analysis, the
wide reading, the wealth of facts and figures, the apt comparisons.
A book well worth its price for those who would know why we are
in such a mess today... written with passion, trenchant in criticism,
mellow in reflection.

—Indian Review of Books
It is a cry from the heart of a fiercely patriotic and despairing soul
that is unable to cope with how a nation with a great heritage can
wantonly fritter itself away.

—Free Press Journal
0

A book worth reading for two reasons—on,e it contains the thoughts
of a man of high learning and, secondly, it shows the deliberate
neglect of these thoughts on the part of our rulers.

—Blitz

**************

NANI A. PALKHIVALA was born in January 1920. He was a
Professor of Law at the Government Law College, Bombay, and
was appointed the Tagore Professor of Law at the Calcutta
University. In 1975 he was elected an Honorary Member of The
Academy of Political Science, New York, and in 1977, he was
appointed Ambassador of India to the United States of America.

In June 1978 the Princeton University, New Jersey (USA),
conferred on him the Honorary Degree of Doctor of Laws,
describing him as "defender of constitutional liberties, champion of
human rights, teacher, author and economic developer." In April
1979 the Lawrence University, Wisconsin (USA), conferred on him
the Honorary Degree of Doctor of Laws.

Palkhivala has argued a number of historical cases in the courts
of India and abroad. He is also associated with several industrial
and business houses as Chairman, Vice-Chairman and Director.


We, the People

India — The Largest Democracy


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N. A. Palkhlvala



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First Published


by Strand Book Stall, Mumbai in 1984


© Sheherdeshir Charity Trust


Eleventh Reprint 1997
Twelfth Reprint 1997


All rights reserved. No part of this publication may be
reproduced or transmitted in any form or by any means,
electronic or mechanical, including photocopying, recording,
or any information 1 retrieval system.


without prior permissi



|tffig:from the publisher.


Cover Design: llaksha


Printed at Nutech Photolithographers, New Delhi, India.


TO MY COUNTRYMEN


who gave unto themselves the Constitution
but not the ability to keep it,

who inherited a resplendent heritage
but not the wisdom to cherish it,

who suffer and endure in patience

without the perception of their potential




j




If I were to look over the whole world to find out the
country most richly endowed with all the wealth, power, and
beauty that nature can bestow — ift some parts a very paradise
on earth — I should point to India. If I were asked under what
sky the human mind has most fully developed some of its
choicest gifts, has most deeply pondered on the greatest
problems of life, and has found solutions of some of them
which well deserve the attention even of those who have
studied Plato and Kant —I should point to India. And if I
were to ask myself from what literature we,, here in Europe,
we who have been nurtured almost exclusively on the thoughts
of Greeks and Romans, and of one Semitic race, the Jewish,
may draw that corrective which is most wanted in order to
make our inner life more perfect, more comprehensive, more
universal, in fact more truly human, a life, not for this life
only, but a transfigured and eternal life—again I should point
to India.

—Friedrich Max Muller


It is already becoming clear that a chapter which had a
Western beginning will have to have an Indian ending if it

is not to end in the self-destruction of the human race-

At this supremely dangerous moment in human history, the
only way of salvation for mankind is the Indian way—Emperor
Ashoka’s and Mahatma Gandhi’s principle of non-violence and
Sri Ramakrishna’s testimony to the harmony of religions. Here
we have an attitude and spirit that can make it possible for
the human race to grow together into a single family—and,
in the Atomic Age, this is the only alternative to destroying
ourselves.


—Dr. Arnold Toynbee




CONTENTS


Introduction — and a Personal Note ..


PARTI

EDUCATION, DEMOCRACY AND SOCIALISM

1. The Slate of the Nation

The four costly failures
The mess we are in

2. Convocation Addresses

The treason of the intellectual

Work —the prerogative of intelligence ...

Obedience to the unenforceable

3. The People — the Only Keepers of Freedom

True gains of the Emergency
The tasks before a free people
Has the Constitution failed?

The future of democracy in India

Indian democracy—its problems and prospects

Meeting the enemy . .. • • '

The citizen and the next election
Educating our masters

4. India — the Potential and the Reality

Economic growth with social justice
Socialism—its kernel and its shell
The two greatest economic power-houses
Politically impossible. . . ? ..

The tragedy of waste

The economic mandate of the Constitution ..





X


CONTENTS


The humanistic face of capitalism ..

71

India in the eighties

73

Thoughts on an Indian renewal

76

5. Lethal Controls on Cement


The Dark Age of the grey product ..

77

Building a new India

84

PART II


TAXATION


6. The Ideology of Taxation


'The fiscal stimulus

89

7. The Ideal Budget


• The Budget of my dreams ..

.. 101

What should the next budget be?

.. 112

If I were the Finance Minister

.. 118

8. Union Budgets since 1957


A supreme ironic procession

.. 122

PART III


CONSTITUTIONAL ISSUES



9. Attacks on the Constitution during the Emergency
Propositions filed in the Supreme Court against
the Government’s plea that Kesavananda’s


case should be overruled .. .. .. 183

Should we alter our Constitution? .. .. 190

Reshaping the Constitution .. .. 195

The light of the Constitution .. .. 199


CONTENTS


XI


10. Fundamental Rights

The priceless right to personal liberty . . 203

The Supreme Court’s judgment in the Minerva
Mills’ case .. .. • • • • 207

11. Premature Dissolution of Parliament .. 218

12. The Supreme Court’s Judgment in the Judges’ Case 221

13. Constitutional Changes and the Presidential System

Desirable changes in constitutional law .. 235

The presidential system .. .. .. 242

14. Centre-State Relations

Union Government, not Central Government.. 247

States are not vassals of the Union .. .. 248


PART IV

PERSONALITIES, DIPLOMACY AND THE LAW

15. The Great and the Eminent

The relevance of Sri Aurobindo’s philosophy


today .. .. . • • • . • • 261

India has lost her soul .. .. • • 267

The two dreams of Gandhiji .. .. 268

Do we deserve Gandhiji? .. .. • • 269

Mahatma—the pilgrim of eternity .. ..273

Rajaji—a man for all seasons .. •• 281

Sir Jamshedji B. Kanga .. ... • • 285

M. C. Chagla—a great judge .. .. 287

Roses in December .. .. • • 289

Chief Justice J. C. Shah .. .. • • 292

Salute to Justice Khanna .. .. • • 296

A remarkable school teacher .. • • 301




xii


CONTENTS


16. An Ambassador in Washington (1977-79)

The human cycle .. .. .. . • 304

A mistake of symbolic significance .. .. 305

Indo-U.S. relations .. .. .. • • 306

Galaxy of Indian talent in the United States .. 307

An appeal to Indians abroad .. .. 309

My experiences as an Ambassador .. .. 311

Nuclear proliferation -^horizontal and vertical .. 323

Disarming the unarmed .. .. .. 328

Apartheid in South Africa .. .. .. 336


17. The Law and Lawyers

Lawyers in the dock .. .. .. 340

Of lady advocates and Judges .. .. 343

Sentinels of democracy .. .. .. 346

Professionally speaking .. .. .. 348

Truth and service above all .. .. 350

Index :.. .. .. .. .. 357







Introduction — and a Personal Note


An Indian at 64 is, statistically speaking, living on borrowed
time. In the evening of life, one may be forgiven for desiring to
put within the covers of a volume some papers which are not
wholly fugitive and not altogether without a clue.

Here are extracts —slightly edited in some cases—from my
speeches and writings of over three decades. There is a unity
underlying them—they converge upon the subject which has
supplied the title of the book.

Basic thoughts and themes recur in the papers. In some
places they are in an anticipatory or embryonic form and are
developed elsewhere. I have allowed myself , to be persuaded
that such overlaps were not a fatal objection to their publication.

The pieces written during the Emergency have been
advisedly republished. No period in the history of our republic
is of more educative value than 1975 to 1977. George Santayana
said, “Progress, far from consisting in change, depends on
retentiveness... Those who cannot remember the past are
condemned to repeat it.” If our basic freedoms are to survive,
it is of vital importance that we remember the happenings
during the Emergency when the freedoms were suspended.
What has happened before can happen again.

The picture that emerges is that of a great country in a state
of moral decay. The immediate future seems to belong to the
doomsayers rather than to the cheermongers. We suffer from a
fatty degeneration of conscience, and the malady seems to be
not only persistent but prone to aggravation. The life style of
too many politicians and businessmen bears eloquent testimony
to the truth of the dictum that single-minded pursuit of money
impoverishes the mind, shrivels the imagination and desiccates
the heart. The tricolour fluttering all over the country is black,
red and scarlet—black money, red tape and scarlet corruption.

Man has been defined as a rational animal. But you cannot
live in India without being constantly reminded that this defini¬
tion was given to man by man-himself in a characteristic moment
of self-adulation.


XIV


INTRODUCTION-AND A PERSONAL NOTE


It has been said that Nature is a wonderful handicapper:
to some women it gives the beauty of Madonna and the brains
of a linnet. I am prepared to believe that this is not true of the
fair sex, but I am not prepared to believe that this is not true
of nations. To a country like Japan Nature gives the handicap
of almost total absence of natural resources but gives it a sense
of national devotion which enables the country to be one of
the most prosperous and powerful in the world. To some other
countries it gives the gift of oil but without upgraded human
resources. To India Nature has given immense intelligence and
skills but no sense of public duty, discipline or dedication.

Our besetting sin is secular Fundamentalism. Funda¬
mentalism is the triumph of the letter over the spirit. It spurns
the lesson taught two thousand years ago that the letter killeth
but the spirit giveth life. In our unwitting addiction to funda¬
mentalism we are fully supported by two defects in our national
character — lack of a sense of fairness, and lack of a sense of
moderation.

Constitutional fundamentalism has enabled the Union to rob
the States of their constitutional right to deal with industries,
by the simple expedient of Parliament irrationally declaring
that control over them by the Union is “expedient in the public
interest”. The letter of the Constitution is satisfied, while the
spirit of the Constitution is buried fifty fathoms deep.

Similarly, the governments at the Centre and in the States
bypass with impunity the legislature and promulgate a spate of
Ordinances which are patently unconstitutional. An Ordinance
can be promulgated only' when necessity compels immediate
action while the legislature is not in session (arts. 123, 213 and
239B), whereas Ordinances are being regularly promulgated
in India just before the session of the legislature is to begin so
as to confront the legislature with an accomplished fact, or just
after the session is over. All schemes of nationalization of
individual undertakings or entire industries are invariably kept
back while the legislature is in session and are promulgated only
in the form of Ordinances. The letter of the Constitution is
satisfied by the President or the Governor making a declaration
that while the legislature is not in session, “circumstances exist


INTRODUCTION - AND A PERSONAL NOTE


XV


which render it necessary for him to take immediate action”.
The President as well as Governors are bound to act on the
advice of the Council of Ministers who are jubilantly aware
that outraging the sanctity of the Constitution, however
shamelessly, is not a. punishable crime.

Again, an Ordinance which is intended to be a temporary law
to meet an urgent crisis ceases to operate at the expiry of six
weeks from the reassembly of the legislature. But by the plain
device of repromulgating Ordinances again and again, they
are kept indefinitely alive, while the assembly and prorogation
of the legislature are merely interludes in the Ordinance raj.
As Dr. D. C. Wadhwa has pointed out in his book* published
last year, in the Bihar State alone 256 Ordinances were kept
alive for periods ranging from one to fourteen years.

The Constitution is not a structure of fossils like a coral
reef and is not intended merely to enable politicians to play
their unending game of power. It is meant to hold the country
together when the raucous and fractious voices of today are
lost in the silence of the centuries.

In the field of economics we have the same phenomenon
of fundamentalism. The government respects the letter of
socialism—state control and state ownership—while the spirit
of social justice is left no chance of coming to life.

Our public administration has no conception of the value
of time. A recent study made by the Economic and Science
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