November 26: Two Notable Features About The Constitution Day And The Massive Struggle by Workers And Farmers

By Ramakrishnan. Dated: 11/29/2020 6:27:55 PM

November 26 in India had two notable features: The rulers celebrated Constitution Day and people had a successful strike and protest by crores of workers and farmers across the country. In both, there is something notable but not much noted.
Prime Minister Narendra Modi on the Constitution Day, stressed: “Our Constitution has one very special feature …the importance given to Fundamental duties.” He wanted to give a new meaning to KYC used by bankers now, and he wanted to tell youth that KYC means Know Your Constitution. He invoked Ambedakar, called for a campaign to educate youth; explain to them in a simple (simplistic!) way. Last year the union HRD Ministry directed all educational institutions to introduce a pledge to abide by the duties.
Modi knows well who introduced the concept… Yes, the youth need to be told that this feature on Fundamental duties was introduced through 42nd Constitutional Amendment, and insertion of Article 51-A, by Indira Gandhi as part of her autocratic Emergency measures in 1975-76 period. Modi also invoked another Gandhi, the Mahatma, who he said was very keen on duties. “Once we perform our duties, rights will be safeguarded.” Mrs. Indira Gandhi did her duty by putting Modi, then a RSS cadre, in jail along with around one lakh political detenues. Now it is Modi’s turn, in the era of an undeclared emergency, with sedition cases and encounters aplenty without the need to imprison and feed so many in jails.
Last year also Modi cited and explained how MK Gandhi stressed: ‘by discharging one’s duties towards the nation and each other faithfully, a human being automatically ensures that the Fundamental Rights of others are secured.’ It is not the State that is bound to ensure the rights! It is we citizens who are bound by duties that would in turn ensure rights. Perhaps this is how Constitution is to be explained in a simplified manner as part of KYC campaign.
Soon after 2019 election, Modi had called for “a paradigm shift from centrality of rights to centrality of duties.”
Yesterday, Nov 26, he also reiterated his call for One nation-One Vote, and stressed how frequent elections impeded development. He indicated what is being contemplated: “It is not just a discussion, but the need of the nation.” We know he means business, and he has a Sardar Patel in Amit Shah to pursue. Few knew in advance that Kashmir Bill would come so soon and get passed after a debate within 24 hours. What could not be done in 70 years was done in no time, Amit shah asserted. Autocracy and fascism…one may shout, but it is with constitutional and parliamentary stamp of approval! That is what is special of democratic Republic of India, uniquely created in a non-violent manner, we are made to believe through our schools and syllabi. Now through the new KYC, youth given to fast food, would be told how simple democracy is as per new syllabus.
Modi was addressing a Conference on “harmonious co-ordination between legislature, executive and judiciary – key to vibrant democracy.” We are witnessing how already Modi’s India has a plenty of such harmony, aided by a pliant and compliant judiciary, like Indira’s committed judiciary. Only duties remain in a vibrant democracy. Every ‘right’ is at the mercy of the government… “reasonable restrictions” – reasonable in the eyes of the state – would be invoked. That is India’s rule of law.
Governments elected in the states are sometimes inconvenient to Modi’s India who wants cooperative federalism, which means a compliant federalism. One nation ruled by one and the same party at both centre and in states has been a campaign theme of Modi’s BJP. One nation-One Vote will make it easier to achieve that goal, BJP believes. And “it is not just a discussion, but the need of the nation.”
As per Constitution, President’s Rule can be imposed to negate governments elected in the states. With Bommai judgment, some hurdles were created, but now the Modi-Shah duo overcame that problem by appointing governors, improvising on what Mrs. Indira Gandhi did, who would be well-trained in political manipulations seeking to run a parallel government run from the centre. One nation-One Vote will further facilitate this.
Preventive Detention is part of Rule of Law
Respecting the flag, the Anthem, protecting the cow ( as part of directive principles) etc are all part of Fundamental duties, it is to be noted. Sedition cases, CAA, and Urban naxals in jail are all now part of rule of law. Same is the case with UAPA, now a Damocles’ sword, a derivative of preventive detention provided for in the Constitution itself. TADA for people and ESMA for workers, with PD provisions, were all part of that. We should note this on this occasion of Constitution day.
The special feature of the Indian Constitution, youth need to be told, KYC, is that it provides with one hand rights which are snatched away by the other hand. Finally, there is no real right as such. Youth need to be told that as per our of rule of law, people can be put behind the bar not only for crimes they committed, but are likely to commit, or for any apprehension on the part of the state that they may do so. All this in the interest of the nation, i.e., of those who loot and plunder, and those who serve them. See how PD is defended by the founding fathers of the constitution:
The Constitution provides for preventive detention (PD) which makes a laughing stock of all fundamental rights. Article 22 (3) explicitly says that protection from arrests is not available when arrest is made under PD laws. We had Sardar Patel under Nehru and now Amit Shah under Modi, who have sleepless nights to do the needful, to protect the country, i.e., the ruling classes and the ruling clique. The Constitution day, and Jan 26, 1950, began with PD:
“In 1950 itself, a Prevention Detention Act was piloted by Sardar Patel, who said that he had several “sleepless nights” before he could decide that it was necessary to introduce such a Bill. The first Preventive Detention Act was enacted by the Parliament on 26th February 1950. And in 1950, under this Act, ordinary disturbers of order and peace were not arrested, but a political leader (elected MP) of A.K. Gopalan’s eminence was arrested. Even from that initial action, it was evident that these Acts were meant to curb political dissent, and that legacy has been and is being followed.”
http://www.legalserviceindia.com/legal/article-751-preventive-detention.html
India’s leaders who had opposed the draconian and Colonial Rowlatt Act began their tenure with PD. India has the dubious distinction of having these extraordinary, mischievous and ‘unlawful’ laws throughout from Day 1 till today. The top courts upheld PD laws and detentions were thus very much legal.
Alladi Krishnaswamy Ayyar, a distinguished jurist and a member of Constitutional Drafting committee headed by BR Ambedkar, is typical: he described preventive detention a necessary evil because in his view, there were people determined to undermine the sanctity of the Constitution, the security of the State and even individual liberty.
Now India knows urban naxals including those above age 80 and wheel-chair bound handicapped persons, are everywhere! Let alone bail, when an old detenue (Stan Swamy, 83) asked for a drinking straw or sipper, a Special court had said it would hear the matter after 15 days.
On Nov 26, the Constitution Day, when it came up again, the NIA told the NIA court that the straw and the sipper were not among items seized from Swamy. The special NIA Court adjourned the matter, including request for a straw for the Parkinson’s patient aged 83, to December 4. We have such committed judges to defend the country, i.e., the State and the ruling clique. Such are our rule of law and our human rights, unlike in China, our youth need to be told.
Not only Ayyar, even BR Ambedkar in the related debate defended the preventive detention provision: “I think it has to be recognised that in the present circumstances…, it may be necessary for the Executive to detain a person who is tampering either with public order as mentioned in the Concurrent List or with the Defence Services of the country. In such a case, I do not think that the exigency of the liberty of the individual should be placed above the interests of the State…” he said.
There was a heated exchange in the House on the issue between Mahavir Tyagi and Ambedkar. Said Tyagi: “Sir, Dr Ambedkar will please pardon me when I express my fond wish that he and the other members of the Drafting Committee had had the experience of detention in jails before they became members of the Drafting Committee.” To which Ambedkar replied: “I shall try hereafter to acquire that experience.” (of course he had no such experience before he died. Modi had such experience and that did not deter him from making such laws and detentions.)
In closing the six-hour debate on this provision, however, Ambedkar expressed the hope that: “If all of us follow purely constitutional methods to achieve our objectives, I think the situation would be different and probably the necessity of having preventive detention might not be there at all.” (Cited in a recent article, Deccan Herald, Sep 20, 2020) (https://www.deccanherald.com/opinion/time-to-revisit-article-22-890125.html)
And what are deemed as purely constitutional methods? Ambedkar clarified:
“The first thing in my judgement we must do is to hold fast to constitutional methods of achieving our social and economic objectives. It means we must abandon the bloody methods of revolution. It means that we must abandon the method of civil disobedience, non-cooperation and satyagraha. When there was no way left for constitutional methods for achieving economic and social objectives, there was a great deal of justification for unconstitutional methods. But where constitutional methods are open, there can be no justification for these unconstitutional methods. These methods are nothing but the Grammar of Anarchy and the sooner they are abandoned, the better for us.” (Excerpts from the speech to the Constituent Assembly on November 25, 1949)
No wonder Modi, Amit shah, and even RSS Chief Mohan Bhagavat found it convenient to quote and invoke Ambedkar in support of their fascist repression. Now Modi called for “a paradigm shift from centrality of rights to centrality of duties.”
The Constitution formally provides the rights of speech, expression, assembly and organisation but they can all be tampered with, as is being now, by the governments in the name of “reasonable restrictions” sanctioned by the Constitution itself. Likewise, Emergency can be imposed constitutionally when all fundamental rights including those of life and liberty can be abrogated. But undeclared emergency is the new normal now.
Right to Strike: A legal mirage:
With regard to right to strike, it is a notable fact that it is not guaranteed under any provisions of the Constitution. There are laws like ESMA which can be used by the government to prohibit any strike and punish those who participate, even those who help to participate, in a strike so prohibited. The Existing Industrial Disputes Act,1947 is not conferring any right to strike on workers. It is only a deduced right. On the contrary it is containing clauses prohibiting strikes in “public utility services”, by way of prescribing certain conditions to go on a strike. The relevant section (22) of the Act is literally designated as “prohibition of strikes and lock-outs”. Another section 23 is designated as “General prohibition of strikes and lock-out”. According to these provisions workers shall not go on strike unless …they fulfill umpteen conditions.
Thus, it is like hurdles race for the worker, each of the conditions being a hurdle. Then, when can a worker go on a strike, it is anybody’s guess. This needs to be understood to shed any illusions about a constitutional and legal right to strike. But it is also to be noted that to go on a strike is the birth right of working class, law or no law. It was exercised long before the Constitution came into force.
With so many other provisions like the above, ours is a written Constitution of autocracy. It provides the basis to a host of autocratic laws including the notorious UAPA, the Damocles’ sword on every head. ESMA is reserved for the workers. Then there is the autocracy and undeclared Emergency in vogue which has nothing to do with Constitution and law. This is no more hard news for our media which has many other stories to narrate.
Despite all this in the Constitution and law, what then is new and vicious?
The reactionary policies of Modi regime are more brazen than ever, aided by a largely compliant and pliable media, and further beefed up by a police-military state. The judiciary is more pliable and more committed than ever: The regime is further curbing the rights of the states, spreading communal hatred, invoking national chauvinism and jingoism. It pursues a policy of undeclared emergency, routinely indulges in encounter killings, regularly invokes the draconian amended UAPA and the colonial sedition laws, brands anyone anti-national and indulges in stifling any dissent and democratic voices.
It is not enough to expose and oppose the anti-worker policies; one must note the autocratic ways of Modi regime. The sham nationalism and chauvinism clouding its fascist ways need to be exposed and opposed, without mincing words, by the working-class; the present bureaucratic TU leaderships, themselves a victim of such sham nationalism, are a hurdle in this task and need to be exposed and opposed, which calls for strengthening the correct working-class ideology, politics and organisation.
Massive strike Vs. a thick-skinned government
There is something of Modi’s wish in the current labor law reforms. One central message or the essence of the labor law reforms is that there would be no more enforceable rights for the workers. In all these reforms, the State (appropriate government) is vested with certain powers and responsibilities rather than conceding rights for workers. The state is the trustee, as Gandhi wished it, between the labor and capital.
Soon after 2019 election, Modi had called for “a paradigm shift from centrality of rights to centrality of duties.” This is part of the paradigm shift Modi envisaged also in the labor law. So, he often quotes Gandhi, as he did again on Nov 26 when India was caught up in a strike, without mentioning it at all. He quoted him on Rights vs. duties.
It was not merely political opponents of Modi regime who were for the November 26 strike. BJP’s ally Akali Dal quit the NDA and is leading the farmers’ protests in Punjab. Even the BMS, within the Sangh parivar, in an all India Conference in October, attended also by the RSS Chief Mohan Bhagavat, strongly opposed these labour law amendments terming them as “predatory” and “imported” to please “capitalists.” It detested the “ordinance raj” and “brutal way” of amending labour laws, and called for consultations by the Government with Unions and others. Normally opposed to strikes, it reportedly threatened to take up a continuous agitation including national level strikes. In a separate resolution, the BMS welcomed the Supreme Court decision of scrapping Gujarat labour reforms. (Hindustan Times, October 06, 2020). It reflects the justified nature of the protest and the strike. But the new Hindutva Moghuls of Delhi did not respond, even when a member of the Hindutva pariwar made an appeal. Such is the nature of fascism.
Evidently, Nov. 26 strike and protests were not part of “purely Constitutional method”. But the Indian state and Modi-led regime, thick-skinned as they are, remain unmoved. No consultations were held. Such is our biggest democracy.
Nor was the strike big news for the mainstream media. Large sections of big media, almost ignored the strike by crores of people across India. Soccer hero Maradona’s death was the main headline in many dailies. The media is no more a pillar of democracy, as it was being claimed, but is more an enterprise, commerce, infotainment, driven by Ads.
Since 1991 the central trade unions including INTUC and BMS, affiliated to two major ruling class parties, have been opposing these Labour law reforms and even observing “All India Strikes”. What could not be done for decades, it may be asserted, was done by Modi regime in labor law reforms.
Given the prolonged experience of the covid-induced lockdown, the striking capacity of Nov.26 is admittedly minimal. Such strikes have become more routine, token and symbolic than purposive and sustained. The working class and people in general need to appreciate the need for more intensive, more militant and sustained political movement than token actions.
Strikes in India have been fewer and fewer and far between: Annual man-days lost due to labour disputes in early 1990s averaged around 27 million. By 2010 the average dropped by about 30% despite an expanded labour force. In 2017, only 11.73 lakh mandays were lost due to strikes, despite low wages, and no security of service, with more and more of casualization of work force. With such a background, yet another one-day strike, even if by crores of people, will not be enough to force the rulers even to listen, let alone heed, the voice of protest.
Large sections of workers and employees in government and public sector participated in the strike. Though it was not a strike purely for pay and perks, but was against policies of the govt., there was no political thrust as such behind the strike; it was almost missing. Government employees in India, as in many so-called democracies around the world, are expressly prohibited from participation in any political activity. The unions, despite most of them being affiliated to political parties, almost de-politicised the workers and employees, as if complementing the government.
Indian Constitution does not mention political parties though the entire system runs around them. Rules prohibit the government employees from contesting elections to any Legislative or Local Authority. This is reiterated in a written reply to a question in Lok Sabha 04 DEC 2019. They must resign, and resignation needs to be accepted, before filing a nomination. Resignation could be insisted after getting elected, but that is not the case. …this provision adversely affects, particularly those of smaller parties who may not win but would like to contest to spread their policies. They cannot have politics and support a party in any manner, direct or indirect. They cannot even reveal whom they voted. They cannot make a representation on collective issues. That is how they are duty-bound by Service Rules. And Modi stresses duties. That is a subject by itself.
Government employees have no citizenship rights at all, so to say. That is our democracy. The wording in Service rules is quite sweeping and arbitrary. The feudal, patriarchal and autocratic nature of the system and its rules can be seen in a Rule that says that it is the duty of the Government employee to prevent even family members from such activity. In fact, as per Service rules, if they fail to prevent them, they have to do a little bit of police and intelligence work also by reporting it to the authority. Modi stresses duties, beware! They are not merely servants but slaves of the state.
Weaning away the working-class from the path of revolutionary struggles by way of encouraging economism, creating legal illusions and dividing the workers into number of categories and segments had been the common and key objective behind the legislation of all these Trade Union Acts. Now even these Acts are being nullified by the Modi regime’s new Labor code.
Hours of work is one of the important matters governed by the labor laws. Now in the new Code for all workers, only daily limit of 8 hours of work was prescribed. Draft rules in respect of this Code are just released wherein the weekly hours of work are fixed as 48 hours, but the maximum “spread over” of period of work in a day, including all rests and intervals, is increased to 12 hours. This “spread over” is already being misused by several employers, particularly in transport sector, increasing the actual hours of work up to 12 hours in a day instead of 8 hours. And they deny Over Time allowance of double wages. The IT and new commercial sectors made 12 hours almost as the norm, and they set the bench mark for others. Thus, the concept of 8-hours work day is being silently buried. This is a historic reversal that is being codified.
The working class of the so-called organised sector, itself a small segment of the toilers, remains divided into various unions at all India level and at factory level as well. Corrupt, bureaucratic and castiest elements and lackeys of ruling class parties hijacked the trade union movement dividing the workers and making workers subservient to the managements and indifferent to working-class politics. The trade unions of workers in organised sector became segregated and they are not uniting with the contract workers and unorganised workers, thus weakening both and further nullifying the striking capacity of the working class.
The need of the hour is to unite the working-class – the organized and the unorganized – from grass root level to all India level basing on correct working-class politics and to get rid of the corrupt and bureaucratic leaderships. It is not enough. Striving to forge a fighting and political unity between working-class and other toiling classes, particularly the peasantry and the rural poor, is much needed to bring out the working-class movement from the present state and to defeat the anti-worker and anti-people policies of the rulings classes and their parties and governments. Otherwise, the country-wide strikes, agitations etc., would remain token shows and could not be expected to bear fruits as experience shows.
(Articles by Ch SN Murthy published in countercurrents.org, on November 20 and 23, were liberally used for this article. Thanks to him and the editor for the same.)
(The writer was a mediaperson)

 

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