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Category: Swarna Bharat Party

Swarna Bharat Party will now launch a national movement since the PM is not interested in governance, says the party President, Sanjay Sonawani

Press release by SBP:

National Press Release – to be released across India [Word version]

27 September 2016 – for immediate release

Mr Sanjay Sonawani, President of Swarna Bharat Party, said that he wrote an Open Letter to Prime Minister Mr Modi on 26 August 2016 asking him to double funding for the police and ten times for the judiciary. SBP provided detailed reasons why this is necessary, as well as photographs of the deplorable conditions that our police and judicial systems face on the ground.

In its letter to PM, SBP also showed how these additional funds can be obtained, mainly by divesting public sector undertakings. SBP said that there is no reason for a government to operate businesses and run banks. But only recently we heard that ITDC has opened its 10th duty free shop. The Modi government is more interested in selling duty free liquor and cigarettes than in governing.

SBP had also asked the PM in its Open Letter to implement a range of essential reforms to ensure that India’s governance system and policies are consistent with liberty and world-best practice. That is the only way forward India to get out of its Third World corruption and poor performance. The results of India’s chronic misgovernance face us every day, at each step.

Essential governance reforms include state funding of elections on a per vote basis to allow honest people to contest elections, and elimination of the guarantee of tenure for senior bureaucrats. The government must be held to account for results. And we need to urgently strengthen India’s defence.

Mr Sonawani said that the party’s Open Letter was sent by courier to the PM. The letter gave the PM till 26 September 2016 to declare his agreement to implement all reforms listed in SBP’s manifesto.

The party keenly waited till yesterday but no response was received. In the letter we had written: “Should you choose not to implement these demands, we will infer that you have no intention to implement governance reforms and that you do not care about India’s development.”

It appears that the Modi government does not care about governance or development. With regret, the Party is now forced to launch a national movement for good governance from 2 October 2016. We will march at 2 pm from Raj Ghat to Delhi Police HQ. Well over a hundred people will participate. The Party has informed Delhi Police of this event and invites everyone to join. It also invites the media to cover this occasion.

Mr Sanjay Sonawani invited the people of India to demand these reforms from wherever they are located. There is no reason for government to run business. It should perform its core functions. And it should implement world-best reforms to India’s governance system, as listed in SBP’s manifesto.

End

Notes for Editors

SBP is India’s only liberal party, committed to defending liberty and promoting prosperity.

Contacts:

Sanjay Sonawani (Pune), National President, +91 9860991205

Alok Kumar (Ghaziabad), National Vice President and President UP State Unit, +91 9999755334

 

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The deprived sections of society will be the most to benefit from Swarna Bharat Party’s policies, says the party’s President Sanjay Sonawani

Copy of National Press Release by Swarna Bharat Party

13 September 2016 

The deprived sections of India’s society have long been misled by the empty slogans of the socialists. Only the policies of liberalism can break their bondage and provide the security and opportunity to lift them socially and economically. The liberal policies of Swarna Bharat Party will most benefit the poorest of the poor and the socially oppressed, said Mr. Sanjay Sonawani, President of SBP.

One of the greatest leaders India had in the past two thousand years was Dr. Ambedkar. If one word can be used to characterise Dr Ambedkar’s worldview, it would be that he was a liberal. During the drafting of India’s Constitution he vigorously fought against any dilution of liberal principles incorporated in it, including through his opposition to the incorporation of the word “socialist” in the Preamble.

That he cared deeply for liberalism is also clear from his 1943 lecture in which he regretted the demise of Ranade’s Liberal Party. “The collapse of the Liberal Party is a tragedy to the Liberals. But it is really a disaster to the country”, he said. And to his mind, democracy is “first, an attitude of mind, an attitude of respect and equality towards their fellows. The second is a social organization free from rigid social barriers”. These are the ideas a liberal believes in. These are the ideas that SBP, India’s only liberal party, stands for.

Mr Sonawani said that it is unfortunate that illiberal forces have attacked the spirit of liberalism in India and have increased pre-existing caste divisions in India for their political gain. Many liberal principles in the Constitution have been eroded or even removed, and laws made that violate the Constitution. Dr Ambedkar would have deeply regretted the way India has progressed since his death.

India needs a national liberal political party that stands for the principles Dr Ambedkar stood for. SBP believes in equality of all under the law. It has a vision and plan to ensure equality of opportunity for all. SBP offers specific governance reforms to ensure that governments ensure security and justice and deliver (not directly manage) world class education for the poorest of the poor.

SBP does not believe that the state should dabble in religious matters such as caste. However, we are supportive of evidence-based analysis that underpins the current transient Constitutional welfare provisions for the scheduled castes and tribes. But these provisions do not deal with the underlying causes, which can only be addressed by making available world-best education to the poorest of the poor. Only SBP knows how to do that. Thereafter they will compete in the free market and their shackles will fall apart.

Mr Sonawani invited the deprived and oppressed sections of India to understand SBP’s ideology, policies and manifesto and support the party, so that security, justice and equality of opportunity can be made a living reality for the socially deprived peoples of India.

End

Notes for Editors

SBP is India’s only liberal party, committed to defending liberty and promoting prosperity.

Contacts:

Sanjay Sonawani (Pune), National President, +91 9860991205

Alok Kumar Singh (Ghaziabad), National Joint Secretary and President, UP State unit, +91 9999755334

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Preliminary writ petition that demonstrates why the Atrocities Act must be replaced with constitutional penal provisions

I’ve knocked up a preliminary draft writ petition that will explain, to those interested, why  the Atrocities Act is unconstitutional and must be replaced with constitutional penal provisions. I invite thoughts, suggestions, etc. Write to me at sabhlok@gmail.com [Note: I’ve used material from here]

Download in Word.

==TEXT OF THE KEY CONTENTS==

  1. This writ petition challenges the constitutionality of the Scheduled Caste and the Scheduled Tribes (Prevention of Atrocities) Act 1989 (henceforth referred to as the Atrocities Act) since this Act does not derive its enabling source from Article 17 (read with Articles 15 and 35) of the Constitution and that, therefore, the Act violates fundamental rights of the bulk of Indian citizens through violations of Articles 13, 14, 15, 17, 19 and 368 of the Constitution.

FACTS

  1. The Petitioner is a registered political party vide No. 56/102/2013/PPS-1 dated xx. A copy of the registration letter is annexed hereto and marked as Annexure xx.
  2. The Petitioner is deeply concerned about ongoing atrocities against Dalits across India, nearly 70 years after independence. The caste system is alive and kicking across the length and breadth of India.
  3. The Petitioner attributes the main cause of ongoing failure to curb systematic violence against Dalits to the misallocation of resources and energy by the socialist governments of India, which are intent upon running hotels, airlines and banks, to the detriment of the core functions of government, which include adequately funding the police and judiciary and ensuring accountability in the system that delivers security and justice to the people of India.
  4. In response to ongoing failures from the government’s own inability to focus on its key functions, a knee-jerk response has been to create more and more laws, in the futile belief that adding new laws will somehow address the more fundamental failures of governance that the socialist model entails. Moreover, being hastily made and ill-thought out, some of these laws are impinging on basic fundamental rights of the citizens of India.
  5. The Atrocities Act has done nothing to address caste-based violence, but has divided the people of India into two categories on the basis of their caste (if any). The Petitioner is seeking to represent all citizens of India, including SC/ST and non-SC/ST, because the Petitioner believes that it is in no one’s interest to create the divide across India on matters so basic as criminal law.
  6. The Petitioner is of the view that any violence against the SC/ST community should be quickly investigated and quickly punished. However, this must to be done in a manner that is consistent with natural justice and the Constitutional rights of non-SC/ST persons.

FACTS

  1. The facts about a few key Articles of the Constitution of India that apply to this case are discussed below.

Article 35

  1. If the Respondent were to argue that the Atrocities Act is accesses protections from general fundamental rights, then the Respondent will need to demonstrate that its power derives from Article 35. Article 35 (a)(ii) empowers the Parliament to make laws “for prescribing punishment for those acts which are declared to be offences under this Part”.
  2. Article 35(a) also requires the Parliament to “as soon as may be after the commencement of this Constitution” to “make laws for prescribing punishment for the acts referred to in sub-clause (ii)”.

Article 17 and the Protection of Civil Rights Act 1955

  1. Article 17 states that “Untouchability” is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of “Untouchability” shall be an offence punishable in accordance with law. The Constitution thus discusses the general offence of untouchability, not untouchability only restricted to the SC/ST communities.
  2. While dealing with the draft Article 11 corresponding to Article 17 in the Constituent Assembly, the inclusion of SC and ST members as a separate class under the definition of “untouchability” was considered and expressly rejected by the Constituent Assembly.
  3. This demonstrates that the structure of Article 17 is based on deep consideration of the impacts of any special provisions on the overall equality-based structure of the Constitution. There is no authority for any future parliament to distort this detailed consideration by including a sub-category based on caste, into this definition.
  4. Further through Article 15(2)(a) and (b) of the Constitution, the Constituent specified the meaning of untouchability through a specific applications. There is no scope under any law to widen the application of interpretation of untouchability beyond these specified instances.

“No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to:

(a) access to shops, public restaurants, hotels and palaces of public entertainment; or

(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public”

  1. The Protection of Civil Rights Act 1955 (henceforth the PCR Act) was passed as soon as practicable after the commencement of the Constitution in the year 1955, to comply with Article 35 (b). The specific instances of untouchability in sections 3 to 7 of the PCR Act are in complete alignment with the specific instances of untouchability declared under Article 15(2) of the Constitution. The PCR Act does not contain any instance of untouchability that is alien to the instances specified in Article 15 (2).
  2. Most importantly, Articles 35 and 17 only yield an implied reference to an offence against members of the SC/ST community. Untouchability is addressed generally against all classes and castes. There was a clear understanding among the makers of the Constitution that untouchability may be practiced also in case of castes and classes outside or the SC/ST categories.
  3. Provisions of the PCR Act accordingly begin by stating: “whoever commits an act of untouchability against any person”. This further makes clear that there was never any intent in the Constitution to distinguish by caste or tribe among those who practice untouchability. The PCR Act is entirely consistent with the constitution.
  4. Moreover, the PCR Act does not involve draconian provisions like the unquestioned registration of complaints (as in the case of section 4 of the Atrocities Act), rejection of anticipatory bail, and other attacks on basic civil liberties and constitutional remedies. Even the maximum punishment under the PCR Act is limited to 6 months. The PCR Act is in conformity with the Constitution and due process of law. It is also the only law in India that has the clear protection of Article 17. The Petitioner is citing this Act as an example of how the makers of the Constitution visualised the rights of various members of the Indian people. In their mind, laws had to be general, and laws had to be consistent with natural justice and proportionality.
  5. It appears, however, that through its overriding effect, section 20 of the Atrocities Act has virtually made the PCR Act redundant.

Article 15

  1. Article 15(1) states: “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them”.
  2. The Respondent could potentially argue that Article 15(3) is a basis for the Atrocities Act. The Article states: “Nothing in this article shall prevent the State from making any special provision for women and children.” However, should the Respondent take this position, it will be seen to be patently untenable.
  3. During the Constituent Assembly debates the issue relating to prevention of untouchability was discussed under the draft Articles 9 and 11 which correspond to the present Articles 15 and 17. The Constituent Assembly detailed the specific instances of untouchability under draft Article 9, which enumerates the instances of untouchability on the ground of the matters provided under present Article 15(2)(a) and (b). When the discussion came for including SC/ST also under art 15(3) along with women and children, the proposed amendment was rejected by the Constituent Assembly.
  4. This further confirms that the overriding concern of the Constitution makers was to create only the most minimal deviations from the general fundamental rights.
  5. Two further clauses of Article 15 do apply specifically to the SC/ST but these apply solely for the advancement of these communities. No offence is specified or even implied. The relevant clauses are:

(4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.

(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.

  1. It is important to note that these clauses refer to social welfare, not criminal provisions. To that extent, these provisions are consistent with other transient provisions in the Constitution for the integration and advancement of members of the SC/ST community. Other such welfare provisions include Articles 16 (4)(a), 46, 330, 332, 334, and 335. All these provision have one common underlying theme: these are intended to bring these communities into the mainstream in all walks of life.
  2. For instance, Article 46 states that: “the State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation”. Provisions under Articles 330, 332 and 334 enable (in a transient manner) reservation in election to parliament and legislative assemblies.
  3. It is abundantly clear, therefore, that the framers of the Constitutional made specific (and except for Articles 15(4) and 16 (4)(a) mostly transient) provisions for the socio-economic upliftment of SC and ST communities but very categorically and deliberately refused to create crimes that are only applicable against SC/ST communities.
  4. The Atrocities Act is clearly outside the scope of the Constitution.

QUESTIONS OF LAW

  1. From the above facts, the following key questions of law emerge:

Atrocities Act is not made under the Article 35 powers

  1. Laws passed using powers under Article 35 of the Constitution must restrict their scope specifically to the words, terms and declarations of specific offences in Part III (such as Article 17 read with Article 15, in relation to instances of untouchability). Article 35 does not allow the Parliament to make laws beyond the scope of these the description of untouchability specified in Articles 17 and 15. The declaration of instances of untouchability is part of Constitution under Article 17 read with Article 15. It enables only the punishment for such specific, declared instances of untouchability.
  2. In addition, the Parliament is required to make these laws “as soon as may be after the commencement of the Constitution”. Such a law was made, being the Protection of Civil Rights Act 1955. There was no scope in the Constitution for the parliament to use grounds in Article 17 and 15 in 1989, nearly 40 years after the Constitution took effect.
  3. Only the PCR Act is protected under Article 17 of the Constitution. The Atrocities Act is well beyond the scope of Parliament in its ordinary law making capacity (i.e. with ordinary parliamentary majority).

Atrocities Act does not have any relationship to Article 17 of the Constitution

  1. The Constitution nowhere uses the term “atrocity” or suggest any relationship of this term with “untouchability”. If the makers of the Constitution had any intention to include such a term as an offence, they would have definitely and unambiguously made a specific clause to that effect in Article 15.
  2. It cannot be argued that atrocity is part of “untouchability”, since specific instances of untouchability have been clearly detailed in Article 15 of the Constitution. More specifically, the way the word “atrocity” is defined in the Atrocities Act it includes a range of acts that are already defined as crimes under the Indian Penal Code.
  3. It is therefore clear that Parliament must first invoke its constituent power under Article 368 and create a clause to the effect that atrocity (as precisely defined) is a sub-set of untouchability before it can then use powers under Article 35 to create a law on atrocities that is applicable to only one segment of the Indian population.

GROUNDS

  1. The Petitioner is filing the present writ petition to invoke the jurisdiction of this Hon’ble Court under Article 226 of the Constitution of India for enforcement of fundamental rights guaranteed under Part III of the Constitution of India, on the following amongst other grounds which are taken in the alternative and without prejudice to one another.
  2. That the Petitioner has not filed any other or similar Petition before this or any other court in respect of the issues raised in the present Writ Petition. The Petitioner states that his rights are protected under the Constitution of India and the Petitioner is entitled for the reliefs prayed herein. The Petitioner craves leave to add to, to alter, to amend, to delete, to vary any of the grounds urged hereinabove if necessity may demand or occasion may require.

Not an Act to support Article 17 or Article 15 of the Constitution

  1. As elaborated above, the Atrocities Act does not trace its power from Article 17 of the Constitution of India. No offence of “atrocity” has been declared under part III of the Constitution. The Atrocity Act does not derive in any way whatsoever from Articles 15 and 17.
  2. The Act is also clear enough, and does not cite Article 17. In its preamble states that “it is to prevent commission of offences of atrocity against the members of SC/ST and to provide special court for trial of such offences”. Instances of “atrocities” in section 3 of the Atrocities Act are not instances of untouchability. These offences are entirely unrelated to offences declared in Part III of the Constitution.
  3. The Atrocities Act neither has nexus to untouchability nor is it declared as an offence under part III of the Constitution. The Atrocities Act is therefore, unlike the PCR Act, not protected under Article 17. The Respondent cannot claim a Constitutional protection for the Act under Article 17 read with Article 35 of the Constitution.

Being an act under Article 246, all fundamental rights apply to the Atrocities Act

  1. The Atrocities Act is a routine parliamentary law passed under Article 246 read with Entry 1, list III. For all such laws, the full force of fundamental rights must necessarily apply. Such laws need to be of a general nature and apply to all.
  2. The Act is not permitted to violate the fundamental rights guaranteed under Articles 14, 15, 19 and 21 of the Constitution. However, the Parliament has significantly abridged numerous fundamental rights of the citizens of India through the Atrocities Act.
  3. The Atrocities Act is based on caste discrimination and infringes Article 15(1) and it is not saved under Article 15(4) of the Constitution. It also violates Article 15 (3), it being a special provision but such provisions can only be made for women and children.
  4. It fails the basic test of constitutionality under Article 13. It cannot eliminate the mandatory protections of citizens under Articles 14 and 21. The Act therefore cannot create legislation protecting one caste against all other castes. It is ultra vires all these and other fundamental rights.

Makes PCR redundant

  1. Section 20 of the Atrocities Act by providing overriding effect virtually made the PCR Act redundant, which alone has the protection under Article 17 of the Constitution. An ordinary criminal law cannot deprecate a law which is protected under the Constitution.

Burden placed on the accused

  1. Ordinance 1 of 2014 which came into effect from 4.3.2014 included a sub-clause (c) in Section 8 which reads as follows:
  2. c) the accused was having personal knowledge of the victim or his family, the court shall presume that the accused was aware of the caste or tribunal identity of the victim, unless the contrary is proved.
  3. This places the burden on the accused instead of the prosecution. This violates Article xxxx of the Constitution.

Slippery slope

  1. The Atrocities Act is a good example of a slippery slope and how easy for governments that operate solely for immediate political benefit to lose sight of basic principles that govern our country.
  2. The Preamble of India assures us “EQUALITY of status and of opportunity”. Article 14 assures us that “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”.
  3. And yet, just because there are transient reservations for the socio-economic upliftment of persons belonging to the SC/ST groups, it is commonly assumed by the intelligentsia that there is an automatic right to laws that authorise separate treatment of Indians based on their caste; that people can be investigated and punished differently for the same crime merely because of their caste.
  4. This loose thinking has ended up entrenching the caste system and dividing the country, instead of integrating all peoples of India under the same laws, which was the intent of the framers of the Constitution.

Atrocities Act is vague, poorly drafted, indiscriminate and schizophrenic

  1. The Act defines the term “atrocity” as an offence punishable under section 3. Section 3 speaks about punishment for atrocity and refers to “whoever not being member of the SC/ST” undertakes activities mentioned in sub clauses starting from 3(1)(a) to 3(1)(zc). None of the instances addressed by section 3 of atrocity are related to untouchability, and most are vague and hence widely misused.
  2. In 2014 the scope of section 3 was widened indiscriminately. This has created a further fear psychosis among those who don’t belong to the SC/ST communities.
  3. Under Section 4 of the Act, the officer who receives a complaint must register the complaint without looking into its merits and veracity. Public servants who are not from the SC/ST community tend to register cases under the Act for fear of facing punishment under Section 4 of the Atrocities Act. This section arbitrarily imposes punishments on non- SC/ST public servants administrating the Act.
  4. This leaves significant scope for false complaints. There are news reports of numerous false complaints being lodged every year to threaten non SC/ST individuals who face significant humiliation as a result of such false cases.
  5. The Act is schizophrenic in that it does not recognise as a crime any harassment suffered by SC/ ST persons in the hands of their own community/caste. In such cases, the aggrieved have to seek redress through the general law. This is a Kafkaesque and ill-considered division of the society into many parts, making it both unjust and unoperational.
  6. The Petitioner believes that given its Kafkaesque provisions, the Atrocity Act has become a tool of oppression in the hands of politicians and law enforcement agencies. For instance, the Act is often misused to book political opponents to subvert democracy.
  7. The Act is also used to harass intellectuals who harbour independent views, with a threat that the Act will be applied against them for discussing their views. It has acted as a dampener on free discussion and debate of issues affecting the Dalit community.
  8. In 2 April 2010, it was reported in Rediff.com that a Delhi court has expressed concern over rising incidents of misuse of the Atrocities Act to settle personal scores. The court’s observations came while discharging nine members of a family, including five women, from charges under the Act for allegedly using abusive words against their tenants who belonged to the Scheduled Caste category.
  9. “Unfortunately, one comes across growing instances of cases where the provisions of this Act have not so much been invoked for the betterment of those to whom it seeks to protect, than by those who want to settle personal scores by giving to an otherwise ordinary dispute, the colour of an alleged atrocity under the Act,” Additional Sessions Judge Kamini Lau said.
  10. In this case, the court noted that complainant, Kanaklata, 30, a Master of Philosophy from Delhi University, had changed her statement before the police on May 4, 2008 and invoked the provisions of the SC/ST Act against the family members of her landlord after talking to her lawyer.
  11. “I find that the present case is a glaring example of abuse of a Special Legislation with stringent provisions, which has been enacted to ameliorate the lot of the hitherto, under-privileged, deprived and marginalised section of the society,” ASJ Lau said.
  12. The court said that complainant Kanaklata had spared none as she had in her improved version of the complaint, roped in the entire family of Om Prakash Grover, a senior citizen, including all women members. She did not stop at this and further implicated the brother of the landlord Ved Prakash, his wife and his daughter -in-law who are not even residing in the same house and are resident of another property at Mukherjee Nagar in New Delhi, it added.
  13. That 85% of the complaints under the Atrocities Act end in acquittal demonstrates that the Act operates on threat, whimsy and subterfuge, not on natural justice.
  14. The Petitioner in the present writ petition challenges the Atrocities Act as ultra vires Articles 13, 14, 15, 17, 19 and 368 of the Constitution of India, and passed well in excess of powers of the Parliament under the Constitution of India. It is necessary to remake this law in a manner that the fundamental rights of all Indians are protected.
  15. The Act is poorly drafted and confusing, and requires to be immediately reviewed and re-structured to make its valid provisions consistent with the Constitution and the purpose of punishing atrocities against the Dalits.
  16. The Petitioner believes that instances under Section 3 should be transferred after a review to the Penal Code. This should be done in a manner that ensures that the fundamental rights of all citizens are protected, even as atrocities are severely punished.

PRAYER

  1. Under the above said circumstances it is most humbly prayed that this Hon’ble Court may be pleased to Issue a Writ of in the nature of Declaration or any other appropriate Writ, order or direction:
    1. declaring the provisions of the Scheduled Caste and the Scheduled Tribes (Prevention of Atrocities) Act 1989 ultra vires Articles 13, 14, 15, 17, 19 and 368 of the Constitution of India and passed in excess of the enabling power under Article 17 read with Article 35 of the Constitution of India;
    2. requiring the Respondent to undertake a review of the Atrocities Act from first principles, including an evaluation of its implementation, leading thereby to constitutionally valid provisions to ensure that all atrocities in the country, regardless of the perpetrator’s caste, are brought to an end; and
    3. requiring the Respondent to double funding for the police and increase it ten times for the judiciary to ensure that implementation of existing laws is undertaken; funding for such increases should be through any savings made from getting the government out of running hotels, airlines, banks and other public sector undertakings.
    4. to award costs of the petition; and and pass such further or other order as this Hon’ble Court may deem fit and proper in the circumstances of the case and thus render Justice.
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Draft Writ Petition to the Supreme Court of India against compulsion for political parties to swear by the “principles of socialism”

Based on info here, and preliminary comments from a few people, a draft petition has now been prepared to be lodged in the Supreme Court by any capable and interested person on behalf of Swarna Bharat Party, for issue of a writ by the Supreme  Court against a specific requirement in section 29A(5) of the Representation of People Act 1951,  for all political parties of India to swear allegiance to the “principles of socialism”.

I’m sharing this preliminary draft widely, to invite all those with an interest in the principles of liberty and with ability to view the issue from a stringent legal perspective, to (a) comment on this draft petition and to (b) consider taking this forward on behalf of SBP to the Supreme Court.

This is fairly urgent, since the party is trying to get its act together, and this is a key legal obstacle.

====

Download

the full petition here (in Word). Presented below is the key argument:

=BEGIN=

  1. This writ petition challenges the compulsion imposed upon Swarna Bharat Party by the Respondents through the Representation of People Act 1951 (“ROP Act”) to swear allegiance to “the principles of socialism”. The petitioner will demonstrate that either there are no “principles of socialism” and such affirmation is futile and violative of Article 14 of the Constitution; or that these are real ideological principles, and therefore such affirmation is violative of Article 19 of the Constitution.

FACTS

  1. The petitioner was registered by the Election Commission of India (henceforth referred to as the “Election Commission”) as a political party vide. No. 56/102/2013/PPS-1 dated xx. A copy of the registration letter is annexed hereto and marked as Annexure xx.
  2. The application form for a political party to be registered by the Election Commission requires that the objectives of the party should be in consonance with the Constitution of India. In addition, it requires a declaration to the effect that the party “shall bear true faith and allegiance to the Constitution of India as by law established, and to the principles of socialism, secularism and democracy and would uphold the sovereignty, unity and integrity of India”. A copy of the form for registration is annexed hereto and marked as Annexure xx. [http://eci.nic.in/eci_main/ElectoralLaws/guidelinesandformat.pdf]
  3. The Indira Gandhi government (through her Law Minister H.R. Gokhale) introduced the Constitution (42nd Amendment) Bill 1976 on 28 August 1976, during the Emergency. On 2 November 1976 the Constitution was duly amended. Section 2 of the Act inserted the words “socialist” and “secular” into the Preamble of the Constitution. A copy of the Constitution (42nd Amendment) Act 1976 is annexed hereto and marked as Annexure xx.
  4. Accordingly, the Preamble of the Constitution now commences with the assertion about “WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC”.
  5. It may be noted here that the words “socialist, secular” are explicitly excluded from the Constitution (Application to Jammu and Kashmir) Order, 1954.
  6. Perhaps consequentially but in a fundamentally different way, Section 6 of the Representation of the People (Amendment) Act 1989 (Act 1 of 1989) under the Rajiv Gandhi government inserted a Part IVA (which deals with the Registration of Political Parties) comprising Section 29A(5) in the Representation of the People Act 1951 (RPA). A copy of the Representation of the People (Amendment) Act 1989 is annexed hereto and marked as Annexure xx.
  7. Section 29A(5) reads as follows:

“(5) The application under sub-section (1) shall be accompanied by a copy of the memorandum or rules and regulations of the association or body, by whatever name called, and such memorandum or rules and regulations shall contain a specific provision that the association or body shall bear true faith and allegiance to the Constitution of India as by law established, and to the principles of socialism, secularism and democracy, and would uphold the sovereignty, unity and integrity of India.”

  1. Since mid-1994, every political party in India (including previously registered parties) has mandatorily been required by the Election Commission to swear allegiance to the “principles of socialism”. The Petitioner has no questions or dispute about the principles of secularism and democracy and therefore does not question the requirement in the registration form for political parties to swear allegiance to the “principles of secularism and democracy”.
  2. The Petitioner is, however, unclear about the “principles of socialism”. No explanation or details have been provided by the Election Commission in regard to these specific principles. Perhaps it is not the job of the Election Commission under India’s Constitution to define the principles of various economic ideologies.
  3. The Petitioner’s party remains committed, being a liberal party, to abolish the term “socialist” from the Preamble of the Constitution, through the democratic process. The Petitioner has a liberal agenda that needs to be canvassed with the people of India.
  4. The petitioner had no choice but to swear allegiance to the “principles of socialism” as a condition of registration, for it was impossible to operate as a functional organisation without such registration. The State Bank of India refused to open a bank account for the party unless it was registered. Further, registered political parties are allowed to offer an income tax exemption to their donors – not having registration would deprive the Petitioner of a significant proportion of donations that would otherwise be received. Without registration, the Swarna Bharat Party would have had no hope of even starting a bank account, leave alone soliciting donations.

Independent candidates not required to swear

  1. The Third Schedule to the Constitution, which contains the texts of oaths to be taken by candidates to the election of Lok Sabha and of the State legislatures has also not been modified following the amendment to the Preamble to the Constitution and the amendment to the ROP Act. The text of oaths required to be taken by individual candidates continue to be limited to swearing true faith and allegiance to the Constitution of India as by law established without any reference to the “principles of socialism”.
  2. The oath of allegiance to the principle of socialism is insisted upon only in cases of associations of persons wishing to be registered as a political party. The Petitioner further submits that the provisions of the ROP Act which deal with qualification and disqualification for membership to Legislature do not impose any such precondition. Nor do the provisions which lay down the requirement of a valid nomination lay down any such precondition.
  3. The effect of the relevant provisions of the ROP Act is that whereas individual candidates i.e. those not set up by a registered political party may contest elections without having to bear any allegiance to the (undefined) “principles of socialism”, parties which seek registration for the same purpose are required to do so.

Preamble as a derivative of the Constitution

  1. In the BeruBari vs Union case, the Supreme Court held that the Preamble is not a part of the Constitution. It is only “a key to open the mind of the makers” which may show the general purposes for which they made the several provisions in the Constitution; but nevertheless the Preamble is not a part of the Constitution, therefore:

“it has never been regarded as the source of any substantive power. Such powers embrace only those expressly granted in the body of the Constitution and such as may be implied from those so granted if necessary. However, if the terms used in any of the articles in the Constitution are ambiguous or are capable of two meanings, in interpreting them some assistance may be sought from the objectives enshrined in the preamble and construction which fits the Preamble may be preferred.”

  1. The Preamble notes that the Constitution refers to India being a “socialist republic”. It does not refer to any “principles of socialism”, nor require allegiance to any such principles anywhere in the body of the Constitution.
  2. The Petitioner bears unequivocal true faith and allegiance to the Constitution of India. By doing so, the Petitioner also swears allegiance to the power, through Article 368, to change the Constitution (including its Preamble) without altering its basic structure.
  3. There is, however, no obligation (in accordance with the BeruBari vs Union case) upon the Petitioner to bear true faith and allegiance to any specific elements of the Preamble which do not directly and precisely derive from the main body of the Constitution. In particular, the Petitioner rejects allegiance to India’s being a “socialist republic”. The insertion of “socialist republic” in the Preamble is irrelevant for purposes of this petition, as the Petitioner has never separately and specifically sworn allegiance to the Preamble.

Identifying the meaning of the “principles of socialism”

  1. Before attempting to understand the principles of something, one must first understand its meaning. The “principles of secularism” or of “democracy” are clear enough. It is also clear that India accepts the standard dictionary meaning for these words. However, it appears that India may not follow the dictionary meanings of socialism, which makes the need for a specific definition even more pressing.
  2. In the absence of any clear definition by the Respondent, the Petitioner has unilaterally searched for the meaning of “socialism”. The Petitioner finds that the term “socialism” has been applied to a large spectrum of theories over the last two centuries. The origin of the underlying political philosophy of socialism can be attributed to Rousseau, or even (in part) to Plato. However, the specific word “socialism” first appeared on 13 February 1832 in French newspaper Le Globe. In England, Robert Owen used the term “socialism” independently around the same time. A diverse array of doctrines and social experiments associated with Robert Owen, Charles Fourier, Pierre-Joseph Proudhon, Louis Blanc and Saint-Simon developed the ideas of socialism further. Key features included the reorganization of society along collectivist lines (mainly government ownership of the means of production).
  3. Marxian socialism with its theory of surplus value, Fabian socialism with its approach of Fabian deception, and guild socialism were among the many further developments of socialism. Socialism first shot into global prominence with Bolshevik scientific socialism and the violent creation of the USSR. Class conflict theories underpinned this form of socialism; its focus was on nationalization, central planning of the economy and dictatorship of the proletariat. There followed a few other versions, including Maoist and Guevarist, mostly on the same lines.
  4. Given this historic evolution of nearly 200 years, the word “socialism” is now widely understood (in the academic world of experts in political science and economics) to mean an economic system with a focus on equality of outcomes (not equality of opportunity), administered prices, minimal or non-existent property rights and significant (if not total) state control over the means of production.
  5. The following definitions of “socialism” illustrate the world-wide meaning of the word:
    1. social and economic doctrine that calls for public rather than private ownership or control of property and natural resources. [Source: Encyclopedia Britannica]
    2. a political and economic theory of social organization which advocates that the means of production, distribution and exchange should be owned or regulated by the community as a whole. [Source: Oxford Dictionary]
    3. political and economic theory of social organization which advocates that community as a whole should own and control the means of production, distribution and exchange; policy or practice based on this theory”. [The Concise Oxford Dictionary]
    4. a way of organizing a society in which major industries are owned and controlled by the government rather than by individual people and companies [Source: Merriam-Webster dictionary]
    5. “Under socialism all the means of production are the property of the community” – Ludwig von Mises, in Economic Calculation in the Socialist Commonwealth.
    6. “Central to the meaning of socialism is common ownership” – World Socialist Movement.
  6. In the Constituent Assembly, Dr. Ambedkar contrasted the socialist way of economic organisation with “the capitalist organisation of society”. This clearly indicated that he too, thought of socialism as an economic ideology which was the antonym of capitalism.
  7. In his presidential address to the Lucknow Congress in 1936, Nehru said that there was no way of ending the poverty and subjugation of the Indian people except through socialism. He was, he said, speaking of socialism not in a vague, humanitarian way, but in the ‘scientific, economic sense’, which would entail: “vast and revolutionary changes in political and social structure, the ending of vested interests in land and industry, as well as the feudal and autocratic Indian states system. That means the ending of private property, except in a restricted sense and the replacement of the present profit system by a higher ideal of cooperative service. It means ultimately a change in our instincts and habits and desires. In short, it means a new civilization, radically different from the present capitalist order.” [http://www.oxfordscholarship.com/view/10.1093/acprof:oso/9780195645866.001.0001/acprof-9780195645866-chapter-9]
  8. Nehru was particularly influenced by Harold Laski whose key theoretical contribution was an (unsuccessful) attempt to combine socialism with democracy. To that extent, upon becoming Prime Minister, Nehru attempted to restrict private property but within the framework of the Indian Constitution, which is predominantly a liberal document. An example of this ungainly and highly questionable approach was to shelter land ceiling laws under Schedule 9 of the Constitution.
  9. The Indira Gandhi government’s reasoning regarding the term “socialist” can be deduced from the Statement of Objects and Reasons of the Constitution (42nd Amendment) Bill 1976, which said, inter alia:

“The question of amending the Constitution for removing the difficulties which have arisen in achieving the objective of socio-economic revolution, which would end poverty and ignorance and disease and inequality of opportunity, has been engaging the active attention of Government and the public for some years now. It is, therefore, proposed to amend the Constitution to spell out expressly the high ideals of socialism, secularism and the integrity of the nation”. [http://www.constitution.org/cons/india/tamnd42.htm]

  1. Indira Gandhi’s “socialism” was therefore seemingly about (a) ending poverty and ignorance, and (b) ensuring equality of opportunity. This interpretation, as can be clearly seen, is entirely at odds with standard definitions of “socialism”. Such a definition would be far more appropriately attributable to “liberalism”, to which the Petitioner subscribes. In fact, if any word represents the political ideology underpinning the Indian Constitution, it is liberalism.
  2. In 2005, Mr Sharad Joshi, MP proposed a Private Members Bill in the Rajya Sabha to seek abolition of the requirement to swear to the “principles of socialism”. In speeches made after his speech, Mr Ram Jethmalani, MP recognised socialism as a specific economic doctrine:

“The strongest point that Mr. Joshi, has made is that socialism is one of the many economic doctrines that have arisen in this world throughout the core world’s economic history. To say that you are bound down to a particular economic doctrine, is to curtail the liberty of speech, and which is inconsistent with democracy.”

  1. Having recognised this, Mr Ram Jethmalani amazingly said: “Today, socialism and supporters of socialism are becoming unpopular. There are some political parties which bravely say that they do not believe in socialism. It is their right to say it and they should be allowed to exist. It is not a practical wisdom to pursue this Bill here.” It appears that the Parliament is being operated on the basis not of Constitutional protections but on the basis of “practical wisdom” and hypocrisy.
  2. This overview suggests that across the entire world, socialism refers to a particular economic ideology that involves reduced property rights, truncation of the market system, and greater control by the government of the means of production. The essential part of all brands of socialism is the notion of the paramountcy of society over an individual, and social decision-making over individual behaviour. In India, however, there appears to be at least some confusion about its stated meaning, although evidence shows that at least until 1991, Indian governments led by all parties did follow the doctrinaire meaning that the rest of the world understands.

Indian courts’ opinions

  1. It is the role of the Supreme Court to clarify and interpret laws for the people of India. Its interpretations are also expected to be consistent with commonly understood interpretations.
  2. In Excel Wear vs. Union of India, (1978) 4 SCC 224, the Court stated that the “Concept of socialism or socialistic state has undergone changes from time to time, from country to country and from thinkers to thinkers. But some basic concept still holds the field. In the case of Akadasi Padhan, the question for consideration was whether a law creating a state monopoly is valid under the latter part of Article 19(6). The Court pointed out the difference between the doctrinaire approach to the problem of socialism and the pragmatic one. But so long as the private ownership of an industry is recognised and governs an overwhelmingly large proportion of our economic structure, it is not possible to say that principles of socialism and social justice can be pushed to such an extreme so as to ignore completely (or to a very large extent) the interests of another section of the public – namely, the private owners of the undertakings. [1030 G-H. 1031 E-G]” [https://indiankanoon.org/doc/947038/]
  3. This suggested that a doctrinaire approach to socialism based merely on the Preamble was unlikely to be acceptable to the courts, given the overwhelmingly liberal nature of the Indian Constitution.
  4. In 2008, a Public Interest Litigation (PIL) was lodged in the Supreme Court seeking direction to delete the word “socialist” from the Preamble. While the petition was ultimately withdrawn, a bench comprising Chief Justice K G Balakrishnan, Justice R V Raveendran and Justice J M Panchal reportedly said, “Why do you (petitioner) take socialism in a narrow sense defined by (the) Communists. In broader sense, it means welfare measures for the citizens. It is a facet of democracy.” Further: “It hasn’t got any definite meaning. It gets different meaning in different times,” the bench observed. [Source: http://articles.economictimes.indiatimes.com/2008-01-09/news/27693385_1_word-socialist-pil-meaning]
  5. In 2013, a PIL was lodged by activist and trade union leader Subhash Sawant and businessman Ajay Mafatlal in the Bombay High Court to seek a precise definition of “socialism”. A division bench of Chief Justice Mohit Shah and Justice M S Sanklecha heard a petition. It was reported in the press that: “To give a precise definition of ‘socialism’ would be extremely difficult, said the Bombay High Court dismissing a PIL. … They said any endeavour to define socialism would bring to one’s mind celebrated words of eminent Fabian socialist, C E M Joad that “socialism was like a hat which had lost its shape because too many people had worn it”. [Source: http://timesofindia.indiatimes.com/city/mumbai/PIL-seeking-definition-of-socialism-quashed/articleshow/21889499.cms]
  6. The Courts therefore seem to think that socialism has no definite meaning; that giving a precise definition of socialism would be very difficult; or that it cannot be applied in any “doctrinaire” manner.
  7. It would be very hard for anyone to argue that “socialism” is meaningless. That would require showing that a government would deliberately undertake the effort to include a meaningless word into the Constitution.
  8. The only interest the Petitioner has at this stage in the word “socialism” is in the context of identifying the “principles of socialism” – to which political parties are asked to swear allegiance to by the ROP Act. If “socialism” has no meaning, then what do the “principles of socialism” mean? Or are these merely principles of convenience, like a joker in a pack of cards that can take any value or meaning?
  9. If the Election Commission considered verifying this party’s declaration of allegiance to the “principles of socialism”, it would first need to precisely define these principles. But since India does not have a legally valid understanding of “socialism”, the Election Commission would surely fail in this enterprise.

Rejection of the inclusion of “socialism” in the Constitution by the Constituent Assembly

  1. India’s Constituent Assembly, it appears, was far clearer about the meaning of the word “socialism”. And it did not think it fit to be included anywhere in the Constitution.
  2. On 15 November 1948, Prof. K T Shah proposed the following amendment: “India shall be a Secular, Federal, Socialist Union of States.” Shah made the following case for the inclusion of socialism. “By the term `socialist’ I may assure my friends here that what is implied or conveyed by this amendment is a state in which equal justice and equal opportunity for everybody is assured, in which everyone is expected to contribute by his labour, by his intelligence, and by his work all that he can to the maximum capacity, and every one would be assured of getting all that he needs and all that he wants for maintaining a decent civilised standard of existence,” said Prof. Shah.
  3. To this, Dr. Ambedkar responded: “Sir, I regret that I cannot accept the amendment of Prof. K T Shah. … [T]he Constitution … is merely a mechanism for the purpose of regulating the work of the various organs of the State. It is not a mechanism whereby particular members or particular parties are installed in office. What should be the policy of the State, how the Society should be organised in its social and economic side are matters which must be decided by the people themselves according to time and circumstances. It cannot be laid down in the Constitution itself, because that is destroying democracy altogether. If you state in the Constitution that the social organisation of the State shall take a particular form, you are, in my judgment, taking away the liberty of the people to decide what should be the social organisation in which they wish to live. It is perfectly possible today, for the majority of people to hold that the socialist organisation of society is better than the capitalist organisation of society. But it would be perfectly possible for thinking people to devise some other form of social organisation which might be better than the socialist organisation of today or of tomorrow. I do not see, therefore, why the Constitution should tie down the people to live in a particular form and not leave it to the people themselves to decide it for themselves.” [Source: http://parliamentofindia.nic.in/ls/debates/vol7p6.htm; CAD, Vol. VIII, pp.401-402
  4. Later, the Constituent Assembly considered the Preamble, after the debates on every other provision had been concluded. The sentiments reflected in the Constitution found voice in the carefully crafted Preamble.
  5. During this concluding process of Constitution making, a member – Shri Brajeshwar Prasad – moved an amendment seeking the inclusion of the establishment of a “Socialist Order” within the Preamble.
  6. This was rejected by the Constituent Assembly. This suggests that the Constituent Assembly did think that “socialism” was a specific economic ideology, and hence unsuitable for inclusion in the Constitution.

Socialism as a failed economic system

  1. By 1980, socialism was considered a ridiculous doctrine the world over. First, China switched from an extreme form of socialism to a far more market based economy in 1979 and is till today reaping the rewards of such a shift in economic policy; then, India was bankrupted by its socialist policies and forced to liberalise the economy. Finally, the USSR collapsed in December 1991 under the weight of its radically socialist policies. The historic fall of the Soviet Union put an end to the march of socialism.
  2. Socialistic economics has been found to be bad not only in theory but also in practice. Across the world, socialist countries have collapsed under the weight of their own non-viability. Even the Government of India admitted to the numerous errors of its socialist past and since 1991, moved onto an increasingly market-oriented path. Foreign Direct Investment in multi-brand retail, disinvestment of public enterprises (limited though they may be currently) and removal of unnecessary barriers on production: these are all signature policies of a liberal (or market-oriented) rather than a socialist economy. The fact that we have multiple providers of mobile phone services now (instead of only a government provider) is also a well-understood illustration of why India is less socialist even in the doctrinaire way.
  3. The Petitioner’s analysis shows that socialism is at the root of India’s poor economic performance over the past 65 years – relative to the performance of countries that were similarly placed to India but chose the policies of freedom and have performed 10 times better. The only real gains in India’s economic performance have come since 1991 from policy initiatives (commonly known as liberalisation) that removed the stranglehold of the government over the economic decisions of the people and hence moved away from socialism.
  4. It is now accepted almost universally that mankind has, to date, not invented anything better than the market mechanism for arriving at the best decisions and allocation of resources for a society. In the guise of socialism, decision-making for society was hijacked across the world by a few individuals for their self-advantage. Instead, it is individuals pursuing the fulfilment of their unique personality and goals, and freely interacting with each other in the marketplace, that tends to produce the most desirable results. There are no “Masters”, either spiritual or economic, in such a free society. That was also the instinct found in the Indian Constitution till the reference to socialism was introduced.
  5. To the extent various governments of India have moved away from socialist principles, they may now be in violation of the Preamble to the Constitution.

QUESTIONS OF LAW

  1. Given these facts, some questions of law arise.

Laws must be unambiguous

  1. The word “socialism” either has a doctrinaire/ ideological meaning, or – as some Indian Courts seem to suggest – no meaning at all. The Petitioner, upon reviewing the available information, has concluded that “socialism” does have a doctrinaire, ideological meaning. The petitioner’s worldview is diametrically opposed to the ideological interpretation associated with the term “socialist”.
  2. This would imply the existence of actionable “principles of socialism”, although there would potentially be a legitimate debate in the academia about the extent and relative priority of some of these principles. If “socialism” is “real”, then any compulsion to swear allegiance to it impacts upon the Petitioner’s fundamental right to thought and speech (Article 19).
  3. Should this Court confirm that the word “socialism” has no legal meaning, a question of law would arise regarding the ROP Act’s mandatory requirement being arbitrary, hence in violation of Article 14. A requirement to declare allegiance to a tenet that is shrouded in vagueness serves no possible purpose and is an unnecessary and arbitrary law.

Laws must be enforceable

  1. In the absence of any legally accepted definition of the “principles of socialism”, there is no possibility for the Election Commission to conduct any verification of the truth of any party’s oath to the “principles of socialism” in its memoranda or regulations; nor accordingly any instance of registration being denied to or withdrawn from any party on the basis of the proven falsehood of such an oath.
  2. This makes the imposition of such a law arbitrary and whimsical. There is no need of “make-believe” laws and “make work” forms.

GROUNDS

  • That, being aggrieved by the impugned actions of the Respondent 1 in enacting the ROP Act and of Respondent 2 in enforcing the requirement through a form which does not clarify the “principles of socialism”, thus violating either Article 14 or 19 of the Constitution, in addition to numerous other reductions in the basic rights, the Petitioner is constrained to invoke the jurisdiction of this Hon’ble Court under Article 32 of the Constitution of India on the following (amongst other) grounds which are taken in the alternative and without prejudice to one another.

a) If the word “socialism” has any actionable meaning

Violation of Article 19 (a) of the Constitution

  1. It is a first principle of democracy that social and economic policy must be determined by the people of each generation. The Constitution must prescribe the rules of the game, not the outcome.
  2. If the word “socialism” has an actionable meaning, then for the ROP Act to mandate all political parties to bear allegiance to the “principles of socialism” (yet to be defined) as a precondition of registration, violates the fundamental right of freedom of expression and thought.
  3. Section 29(A)(5) of the ROP Act, in as much as it compels an association or a political party to bear allegiance to the principle of socialism as a precondition to its applying for registration as a political party, has the effect of hindering and inhibiting the formation of a political party with full advantages of registration and its functioning in the political arena of the country, unless it conforms to a certain point of view. The said provision is not saved by sub-clauses 2 and 4 of article 19 in that it has no bearing on the sovereignty and integrity of India or public order.
  4. This constitutes an unreasonable and unjustified denial of the advantages of registration only because of the fact that, as an association, the said individuals are non-socialists.
  5. Forcing all Indian political parties to believe in socialism as the only valid system for the economic organisation of India is tantamount to forcing all Indians to believe in a particular view of the creation of humanity or a particular view about God.

Violation of Article 19 (c) of the Constitution

  1. That socialists have the possibility of organising themselves as political parties while those having problems of conscience in declaring adherence to socialism (assuming it has any actionable meaning) should be stopped from organising themselves in to a political party is wholly discriminatory, and hence, clearly in breach of the fundamental right of association (Article 19(c)). The right of a non-socialist citizen to hold his personal views and be entitled to all the privileges enjoyed by the socialist fellow-citizens cannot be denied. Compulsion makes it a moral dilemma for the petitioner. Should the party abide by the real meaning of socialism or the take shelter under the defence of the vagueness and meaningless of the word?

Different rules for different candidates is violation of Article 14 of the Constitution

  1. It is submitted that for the purposes of the said Act, namely to confer and regulate the right to contest election, there is no intelligible differential between political parties and individual candidates. There is no mention of political parties in the Constitution. The fact that the Government can create a separate law applicable to regulate political parties is not being questioned. The fact that candidates form political parties are held to a different standard than other candidates is an issue. The provision i.e. Section 29(A)(5) which only requires political parties to bear allegiance to the “principles of socialism” is wholly discriminatory and void being in violation of Article 14 of the Constitution of India.

Vagueness is a violation of Article 14

  1. Sections 29(A)(5) of the ROP Act suffers from the vice of vagueness in that it compels an association to swear allegiance to the “principles of socialism” without any attempt to define or even indicate the meaning of the term “socialism”. The Section is, therefore, illegal and unconstitutional being arbitrary and, therefore, violative of article 14 of the Constitution of India.

Violation of the basic intent and structure of the Constitution

  1. Democracy is a fundamental part of the basic structure of the Constitution. Democracy is about pluralism in opinion. Similarly, secularism is about pluralism in religious belief. However, the 42nd Amendment creates a particular ideological bias, which is against the principles of a multi-party democracy and affects its basic structure. The ROP Act compels all parties to follow a particular ideology, thus almost entirely sabotaging the possibility of any future amendment to the Preamble through the party’s access to the Legislature. It is not consistent with democracy (hence with the basic intent of the Constitution) to impose a specific Western idea (“principles socialism”) on all political parties of India.
  2. Further, the essence of democracy is that a citizen must have the right and the possibility (at par with any other citizen) to canvass – by constitutional means, such as by forming a political party – to change the dispositions of the Constitution in accordance with his inclinations, howsoever unreasonable they may look to others. Section 29(A)(5) of the ROP Act blocks committed non-socialists (such as the Petitioner) from agitating as an organised political party in favour of getting the Constitution modified in their favour by entering the Legislature. The restriction imposed by Section 29(A) has the effect of virtually denying the right to attempt an amendment of the political philosophy reflected in the Constitution of India.
  3. The right of a non-socialist citizen to hold his personal views and be entitled to all the privileges enjoyed by the socialist fellow-citizens cannot be denied. In particular, to access the legislative body as a party cannot be hindered by denying him the privileges of registration if he questions allegiance to the “principles of socialism”.
  4. It is not conceivable for India to call itself a democracy while at the same time forcing all its political parties into the straightjacket of socialism.

Oath of allegiance to the Constitution and to “principles of socialism” mutually contradictory

  1. The meaning of the word “socialism”, as commonly understood, is quite different to the system based on justice and liberty that is envisaged in the Constitution of India. Certain traits of socialism are repugnant (if not opposed) to the basic principles and structure of the Constitution of India; for example, dictatorship of the proletariat and even atheism. Despite significant truncation of property rights, for instance, there do continue to be a significant level of property rights and associated fundamental rights in the Constitution. Such rights do not exist in like measure in a socialist society.
  2. The idea of a socialist India is incompatible with its Constitution. It follows that oath of allegiance to both the Constitution of India and to the “principles of socialism” are in good part mutually contradictory.

Breach of the purpose of the ROP Act

  1. Section 29(A)(5) makes a hostile and invidious discrimination between political parties which bear allegiance to the principles of socialism, and those which do not.
  2. It is submitted that qua the election law, the differences in beliefs or political philosophies which parties may hold cannot become a ground for discriminating between them, so as to confer certain privileges only on parties holding one set of beliefs as long as the beliefs do not contradict or adversely affect the sovereignty and integrity of India or public order. Such a difference, as is sought to be emphasized by section 29(A)(5), is without any basis and has no nexus with the purpose of the Act, which is avowedly an Act which provides “for the conduct of elections to the Houses of Parliament and to the House or Houses of Legislature of each State, the qualifications and disqualifications for membership of those Houses, the corrupt practices and other offences at or in connection with such elections and the decisions of doubts and disputes arising out of or in connection with such elections”.

b) If the word “socialism” has no actionable meaning

  1. If the word “socialism” has no actionable content, why is it even present in the Indian Constitution and why does the ROP Act require allegiance to the “principles of nothingness”? In that case, the use of the words “principles of socialism” in the ROP Act is violative of Article 14 and must be expunged.

AVERMENT

  1. The petitioner avers that the proper meaning of the word “socialism” refers to a specific way of organising the economy. If that is true, then, as Dr. Ambedkar had clarified, it is not the business of a Constitution to prescribe the specific way by which an economy is to be organised. When Mrs Indira Gandhi introduced the word, “socialist” into the Preamble, she was responsible for effectively (in Dr. Ambedkar’s own words) “destroying democracy altogether”.
  2. The Petitioner seeks relief from being forced to reject his own analytically formed beliefs in order to exercise the basic democratic right of continuing as a registered political party in India.
  3. That the Petitioner has not filed any other or similar Petition before this or any other court in respect of the issues raised in the present Writ Petition.
  4. The Petitioner states that his rights are protected under the Constitution of India and the Petitioner is entitled for the reliefs prayed herein.
  5. The Petitioner craves leave to add to, to alter, to amend, to delete, to vary any of the grounds urged hereinabove if necessity may demand or occasion may require.

PRAYER

It is therefore prayed that this Hon’ble Court may be pleased:

  1. if it is determined that the word “socialism” has an actionable meaning, to issue a writ of mandamus, or a writ in the nature of mandamus or any other appropriate writ order or direction and thereby strike down Section 29(A)(5) of the Representation of the People Act 1951 to the extent that it mandates adherence to the “principles of socialism”, thus being a violation of Articles 14, 19(1)(a) and 19 (1)(c) of the Constitution, apart from being a violation of the basic intent of the Constitution.
  2. if it is determined that the word “socialism” has no actionable meaning, to issue a writ of mandamus, or a writ in the nature of mandamus or any other appropriate writ order or direction and thereby strike down Section 29(A)(5) of the Representation of the People Act 1951 to the extent that it mandates adherence to the “principles of socialism” as being arbitrary and unnecessary, thereby in violation of Article 14 of the Constitution.
  3. Pass such other and further orders as this Court may deem fit and proper in the facts and circumstances of this case.
  4. To award costs of the petition.
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