We, The People

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Nani A. Palkhivala's name is a byword in India's legal world. A man of many and varied parts, he has crossed with ease the law's narrow confines and has gone beyond into numerous other fields. His life's work, as evidenced by this volume, bears testimony to his passionate commitment to public causes. He has given generously and unsparingly of himself and his talents to the nation whenever the occasion demanded most particularly in defence of the rights and liberties of the common man, so that the well-springs of democracy may remain undefiled.

In a narrative which is both lucid and felicitous, Palkhivala discusses a wide range of subjects education and democracy; economic growth and social justice; socialism and taxation; crucial constitutional issues and memorable judgments; personalities and the law; nuclear proliferation and apartheid; and his experiences as the Ambassador of India to the U.S.A.

The author incisively analyses the public policies which have resulted in India — one of the most gifted nations in the world — remaining one of the poorest countries on earth.

Palkhivala's mordant wit runs like a silver thread through the book, making it compelling reading.

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 reientiveness... Those who cannot remember the past are condemned to repeat it." If our basic freedoms are to survive, it 1S 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 definition was given to man by man himself in a characteristic moment of self-adulation.

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. Fundamentalism 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 fundamentalism 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 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 Research Foundation showed that if there had been no delays in the implementation of Plans (a) the national income would have increased by Rs. 1,20,000 crores annually; (b) exports would have risen annually by Rs. 9,600 crores; (c) annual production of food grains would have been higher by 54 million tonnes; (d) 14.4 million more jobs would have been created; and (e) the per capita income would have increased threefold. It is significant that we are probably the only country in the world in whose national language the same word—kal—is used to denote both yesterday and tomorrow.

**Contents and Sample Pages**