Constitutional Sovereignty and the Constitution of Contradiction Vis-a-Vis the affected Oriyas

Subhas Chandra Pattanayak

Chief Justice of India Sri Dipak Mishra is an Oriya by birth. So also Chief Minister of Orissa. They were the stars in the function that the All Odisha Lawyers’ Association organized on Dec 29, 2017 to observe its 46th foundation day. The proceedings went on in English, as if for the lawyers of Orissa speaking in Oriya even in their foundation day conference was illegal! The CJI was the only exception. But no sooner had he begun in Oriya than it occurred to him that, present also on the podium was Orissa’s Chief Minister Naveen Patnaik, whom his speech in Oriya would carry no meaning. He switched over to English to please the CM!

Such nasty has become this phase of our life that a Chief Justice of India is afraid of speaking in the mother tongue of the people, even when that is also his own mother tongue, lest the Chief Minister, a habitual offender of Orissa Official Language Act, whose notoriety against Oriya Language is as abundant as darkness in the night, takes it as a personal affront. Sad.

Where to put the day in the annals of time? In infamy? I agree.

We shall have to “surrender to constitutional supremacy”, the CJI said. It should have been better had he defined that supremacy instead of contributing to confusion. The Constitution of India has been amended 101 times and every amendment means the fellows that amend,“supremacy” of the Constitution is not absolute, but ad hoc. The Constitution itself never says that it is supreme. It is pregnant with provisions for amendment in the hands of politicians that are self-seekers and always ready to amend it as and when the greater gang so desires.

What sort of supremacy the Constitution has? It had the supremacy only till the first Parliament and the first Assemblies were formed under the universal franchise it had mandated. Thereafter it has no supremacy as it is susceptible to amendments by vested-interest political gangs having the majority in Legislative bodies.

While adopting the Constitution, the Constituent Assembly of India had heard members like Sri Brajeshwar Prasad describing it as “Rotten” and
the member-in-charge Dr. Ambedkar saying, “On 26th January 1950, we are going to enter into a life of contradiction. In politics, we will have equality and in social and economic rights we will have inequality. In politics we will be recognizing the principle of one man one vote, one value. In our social and economic rights we shall by reason of our social and economic structure, continue to deny one man one value” (CAD, Vol.XI,p.979).

Such a Constitution, of such huge, blatant and inborn contradiction, created by an Assembly under overwhelming influence of the rich Indians, absolutely oblivious of the working class that had made all the supreme sacrifices to bring us our independence, was equipped, deliberately, with artificial supremacy, in order to make perpetual and permanent the rule of the rich in India.

It had come as fountainhead of “contradiction” in the words Ambedkar, who had solemnly hoped that despite this defect, the equal voting right given to all Indians should bring the real representatives of the people into the Parliament and then, the first Parliament elected by the people, free as expectedly it should be from the overwhelming influence of the rich, it would remove the gap between the rich and the rest of Indians and make the dreams of the martyrs and freedom fighters come true.

To quote him,“We must remove the contradiction at the earliest possible moment or else those who suffer from inequality will blow up the structure of political democracy which this Assembly has so laboriously built up”(Ibid). It has not happened. Contradiction not and never removed,
Political democracy has been totally destroyed not by the “victims of inequality” as Ambedkar had feared, but by the ‘perpetrators of inequality’ that have changed India into plutocracy under the canopy of this Constitution. Hence, in the words of Prasad as quoted supra, it is a “Rotten Constitution”, the perception of the “supremacy” whereof is more harmful to the “victims of inequality”, the loyal Indians, than helpful to their emancipation.

Judiciary, executive and legislative – all the three load-bearing functionaries of democracy must have to work under “Constitutional Sovereignty” and surrender to “Constitutional Supremacy” , the CJI said.

People may look at Judiciary, their last hope, as the other two components have failed them, to know as to why after the Constitution was held as “supreme” , the Republic has failed to “remove the contradiction” that Dr. Ambedkar had been unable to deny.

The “Preamble of our Constitution” has assured us of Justice that is social, economic and political, he said. There is nothing new in it, because this is what our Constitution in reality stands for.

But has the Judiciary ever ventured to stand with it, when Legislative and Executive bosses dance to the tune of imperialistic designs?

The Government of India sabotaged the Preamble of our Constitution, not-amendable as it is, by piercing into it the knife of GATT and globalization and changed our country from committed socialism to clandestine capitalism, from communal harmony to communal hatred, with the Judiciary looking like a lifeless organ!

Is such a Constitution that allows its Preamble to be fractured beyond repair a fit Constitution to be honored as “supreme”? Our love and respect for Judiciary deserves to be reciprocated with enlightening answers to these paining questions.

The Official Language

In the matter of Official Language the Constitution is stripped of its supremacy by politicians in power as Judiciary has kept mum, its performances running in English, which is never the Language of India and has, therefore, not been placed in the 8th Schedule. Our State Orissa is the worst victim of this extra-constitutional language that has elbowed out our splendid mother tongue from administration.

We welcome any language as a medium of literature. But the State doesn’t run on literature. It runs on Official Language.

The Constitution had laid down that English Language shall continue to be used for those official purposes within a State for which it was being used immediately before the commencement of the Constitution, “UNTIL THE LEGISLATURE OF THE STATE OTHERWISE PROVIDES BY LAW” (Article 345).

The Legislature of Orissa framed the Orissa Official Language Act on 7.9.1954 and the State promulgated it on 14.10.1954. Under Section 1 (3) of this Act, it had “come into force at once.”

It enforced that, “Oriya shall be the Language to be used for all or any of the official purposes of the State of Orissa” (Section 2).

Hence, under Article 345 quoted above, English became extinct for “official use” in Orissa on the very day Orissa Official Language Act was promulgated, i.e. on 14th October, 1954.

Article 345 was neither amended nor the stipulation that English can only be in use “until a State legislature otherwise provides by Law” was repealed.

Hence, The Orissa Official Language (Amendment) Act, 1963 was blatantly illegal. It inserted a new Section (Sec.3-A) that says, “Notwithstanding the expiration of the period of fifteen years from the Commencement of of the Constitution of India, the English Language may, as from 26th day of January 1965, continue to be used, in addition to Oriya for the transaction of business in Legislature of the State of Orissa.” When the English Language, in the arena of Orissa’s governance, was extinct on 14.10.1954, wherefrom the 1963 amendment gathered legitimacy to say that English continue to be used in Orissa Legislative business even after 26.1.1965? How could an extinct Language continue? Was it, and is it not an affront to Constitutional Sovereignty?

This illegality continues. If the Constitution is really “supreme” and the CJI seriously speaks so, he should take up this issue judicially as the apex guardian of the Constitution of India and on judicial analysis, nullify the Orissa Official Language Act Amendment of 1963 with retrospective effect sans any delay.

Rape of Constitution by the then Chief Minister of Orissa Biju Patnaik has kept the Oriya Nation deprived of its fundamental right to have the State governed in Oriya for the purpose of which the Province was created in 1936.

People of Orissa have been agitating for provision of punishment against violation of Orissa Official Language Act, 1954.

Bhasha Andolan, which is spearheading this unique movement, has given birth to a new epoch, its most innovative and peaceful black-flag-campaign comprising a few persons – daily four persons in Bhubaneswar and a few more elsewhere – silently marching on the roads to make the people aware of the danger their mother tongue is facing, has exceeded 625 days, impossible for any Oriya to ignore. The CJI , by birth an Oriya, switching his speech over to English from Oriya, in order only not to make a habitual offender of Orissa’s Official Language Act feel affronted, is very difficult for us, under the circumstances elaborated, to view as in consonance with the concept of “Constitutional Sovereignty” and “Constitutional Supremacy”.

Biju Patnaik and his son Naveen Patnaik in their respective time have perpetrated affront to the supremacy of the Constitution. Can the Apex Judiciary intervene?

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