The Outrageous 17th Amendment

There was an unprecedented gathering of Kisans from all parts of India, including the most distant regions, at the Ramlila grounds of Delhi on March 30, which recorded a protest against the Seventeenth Amendment and marched to Parliament in an orderly demonstration and presented to the Speaker, through the Swatantra Members of Parliament, their request for the withdrawal of the Amendment. Five thousand two hundred and forty-five Kisans participated in the Conference and the demonstration was composed as follows: Andhra 22, Bengal 10, Bihar 350, Delhi 200, Gujarat 140, Himachal Pradesh 32, Madhya Pradesh 20, Madras 21, Maharashtra 235, Mysore 25, Orissa 30, Punjab 600, Rajasthan 2,000, and Uttar Pradesh 1,560.

Anyone reading Article 31 of the Constitution will be struck by the single-minded purpose and elaborate care pervading that provision. There was no need to put in that Article the words contained in it, had it not been for a definite resolve to prevent, by a constitutional prohibition, any expropriatory legislation such as was threatened at the time in Fabian thought and literature.

A year later came up difficulties in respect of legislation in some States dealing with farmers of land revenue, who were called by different names, Rajas, Zamindars, Jaghirdars, etc. These were all big men to whom the Government had farmed outland tax due to the Government. They were not, in any sense, owners of land but were either in their own right as ancient rulers or as newly established agents and attorneys of the Government authorized to collect the tax on land, for which undertaking they got a share of it as commission and plenty of powers to facilitate their collection work. The resources were calculated roughly and they bound themselves to pay to the Government a fixed sum of money appropriating the balance to themselves. This system of farming the land tax was adopted by the East India Company Government because it appeared to them the easiest way to get the tax collected on an assured basis and also because it was a system under which a responsible per-son was placed in authority who would be interested in the extension of the area of cultivation. This was called the Permanent Settlement. Most parts of Northern India fell under this scheme of permanent settlement.

In certain areas the officials of the East India Company advised against this system of farming and succeeded in inducing the Company to adopt a system of direct collection of the land tax from the owners of the fields without any farmers of revenue in between. This was called the ryotwari settlement, i.e., settlement of tax dues individually with peasants. In this system, the amount of tax was to be revised once in a period of 30 years or so, in order to give a chance to Government to raise the amount on account of increased prices and other causes. In Madras and some other ‘presidencies’ (as they were then called), this ryotwari system prevailed either exclusively or along with the other system by which the Government collected land tax through the farmers of revenue whom they set up as intermediaries and asked these quasi-officials to collect the land tax from the peasants. Special laws were enacted to protect the peasants from illegal eviction and harassment in the latter system.

When the movement for abolition of zamindars and other farmers of land revenue started during the Provincial Autonomy period just before World War II, legislation was introduced in some provinces for the purpose. I believe I was the first to initiate it when I was in charge of the province of Madras. These Zamindari Abolition Acts were attacked in court as infringements of the guaranteed fundamental rights of the 1950 Constitution, and adverse decisions had to be faced by some Provincial Governments. Then came Articles 31-A and 31-B in order to remove difficulties raised by the interpretation of the Supreme Court that the rights of the zamindars and other farmers of land revenue were in the nature of prOprietOry rights and the legislation impugned was not consistent with the provisions of Article 31. Articles 31-A and 31-B were, therefore, drafted and piloted through Parliament by Dr. Ambedkar who gave a solemn assurance, on behalf of the Government, that these new Articles would never be extended to affect the rights of ryotwari owners of fields but would be used only to help the State Governments to get rid of the intermediaries. Here is what Dr. Ambedkar said while replying to the debate on these Articles on 1St June 1951:

I would like to say this, that there is no intention on the part of Government that the provisions contained in Article 31-A are to be employed for the purpose of dispossessing ryotwari tenants.

Proviso attached to Article 31-A… requires that every such Bill shall be reserved for the consideration of the President. I think he will see that there is a certain amount of safeguard in it... There is no such intention on the part of Government and I believe that whenever any such measure comes before the President for consideration, the undertaking given in this House would be binding upon the President in giving his sanction so far as any such measure is concerned. Therefore, I submit there is no ground for any fear of any such thing happening and I believe that there is also no justification for any kind of propaganda that may be carried on by interested parties that this Bill proposes to give power to Government to expropriate everybody including the ryotwari tenants. —Parliamentary Debates, Vol. XII (Part Il) (1st June 1951) cc. 9913-14.

Article 31-A laid down the limits of the relaxation that was made of Article 31. Reading it, one can easily see that it was never the intention of the law to permit any trespass by the State on the rights of the real owners of land, large or small. The object of the amendment was only to facilitate the removal of intermediaries. Ryotwari pattadars were owners, not tenants, although the latter term was often wrongly used.

Now a new levelling-down theory has been hatched by which every one who does not handle the plough himself and is not just a struggling small peasant is an “intermediary” and so all the bigger ryotwari owners, who are the best farmers in the land and who supply the markets of the industrial towns and cities, must be got rid of. It looks egalitarian but it is a delusion. It is a misguided movement which kills agriculture by withdrawing enterprise and capital from that basic industry.

The Seventeenth Amendment now proposed is an outrageous piece of legislation seeking to place the State in full power to liquidate not only intermediaries but all land ownership when and as it thinks fit. It is an immoral breach of the assurance given on behalf of the Government in 1951. The immorality of it is accentuated, when we remember that it is the very same Government that gave the assurance that is now seeking to tear it up.

Article 31-B adopted in 1951 was a particularization of the effects of Article 31-A giving a list of thirteen pieces of legislation saved from being impugned for any reasons that may be urged on the strength of the Articles relating to fundamental rights. They were all zamindari abolition laws. The present Seventeenth Amendment extends the Schedule to cover 124 Acts open to objection under Article 31 and other Articles in Part III of the Constitution. Article 31-B lays down that these Acts shall be in force notwithstanding anything contained in them contrary to any provision in Part III of the Constitution and notwithstanding any decree of court that was passed or which may hereafter be passed, thus saving them from attack under any of the fundamental rights guaranteed in the Constitution and denying the help of courts even to examine whether the compensation given is fair and adequate.

The first part of the Seventeenth Amendment proposes to enact that land of every kind shall be in the same precarious position as the rights of farmers of land revenue, viz., the zamindars. The second part gives a long tail of enactments protected against the Supreme Court. Apart from dissenting minutes, the Select Committee on the Seventeenth Amendment has recommended that in cases where the land is cultivated personally by the owner, just and full compensation should be given and that the long tail of the Ninth Schedule should be docked as most of the items in the tail are found to be really unnecessary. The second of the above recommendations is a matter of mere aesthetics. The first calls for examination. What is the rationale of recognizing proprietory rights, only when the owner personally handles the plough? The new laws of Hindu inheritance brought into being by the secular Congress Party have given equal rights of succession to female children. If a girl thus inheriting a small bit of land does not wish to give it up or take any risk of losing it when she marries and lives with her husband in another village, and so leases it out to her brother or cousin who owns another part of the same land or a neighbouring field, must she lose the benefit of the protection of Article 31 and be at the mercy of local intriguers who may plan to rob her of her property under cover of some scheme of collectivization or otherwise, getting encouragement from local political bosses? If a young peasant leaves his village and goes to work in a factory in Madras or elsewhere leaving his precious field in the hands of an uncle or cousin, who continues to live in the village, and exchanges lease documents in respect of the land, should he lose his land by reason of the new Amendment, because he is not an owner personally cultivating his field? Should he not get full compensation if his land is wanted for a collective organized by his rivals and enemies?

I have given only two instances of gross injustice. There are many other possibilities. Haphazard expropriation is not socialism. The improvements suggested by the Select Committee do not remove the defects of this outrageous Seventeenth Amendment which seeks to undermine the authority of the Constitution and puts State legislatures above the Constitution. The scheme of the Seventeenth Amendment is a sabotage of the Constitution and an affront to the Supreme Court and the High Courts of the land. It is not, in reality, meant to help land reform. Intermediary tax-gathering rights granted to so-called proprietors were abolished long ago. The present scheme is to strike at ownership of property, which the Constitution did not intend to permit and, as it is, does not permit. This Amendment is something that will tear up the whole of Part III of the Constitution which corresponds to the Bill of Rights in the free constitutions of the world, and does away with all the restraints and prohibitions inscribed in the Constitution against any trespass by the State on the rights and freedoms of citizens in respect of wealth inherited or earned by citizens and invested in land, big or small. As I told the great gathering of Kisans that met in Delhi on 30th March and marched to Parliament to present this protest, Parliament is now busy tearing up the Charter which was so carefully and laboriously drawn up and solemnly affirmed in November 1949. All the anxious care taken by Sardar Vallabhbhai Patel is being undone by an innocent looking new definition which nullifies the power of the Supreme Judiciary of the land and gives to the State Executives of the day all power to deprive Kisans, big and small, of their property, no authority being left to the courts to examine or rectify any injustice done in the process, or even to examine the question of the quantum of compensation. This outrage on the Constitution must be prevented.