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Judiciary -Messiah In Residence

By Ashok Mitra

The Telegraph
22 August, 2003

An acquaintance with Victorian literature helps. The Charles Dickens
character had summed it up neatly: the law is "a ass". The much
discussed judgment of the nation's highest judiciary is
comprehensively asinine: it is awfully lacking in symmetry. Strikes,
it asserts, are morally, legally and constitutionally impermissible;
it does not however say the same thing about lock-outs and closures.
What is involved is not just one, but several, fundamental rights,
including the apparent infringement of Article 14 of the Indian
Constitution. The judgment betrays a reluctance to maintain a balance
between the rights and prerogatives of one group of citizens and
those of another.

Consider, for example, the predicament faced by a group of farm
workers, who are paid less than subsistent wages by their landlords:
according to the Supreme Court dictum, they do not have the right to
organize themselves into a union and go on strike demanding living
wages. The landlords will be justified, the judgment says, to dismiss
them. Once they are dismissed and circumstances are such that they
are unable to find alternative employment, they will perish. Here we,
however, run into the other fundamental right defined by Article 21:
"No person shall be deprived of his life or personal liberty except
according to procedure established by law." This is a tough nut to
crack but it can be cracked. The farm workers will be dismissed and
refused the right to live as per the judgment of the nation's highest
judiciary; therefore their deaths eventuate in a manner which
satisfies the proviso of Article 21: "according to procedure
established by law."

Unfortunately, a couple of years ago, the Supreme Court itself had
decided that saving the lives of starving villagers in Orissa was a
responsibility of the state: some irony, in this instance too, the
guiding principle must have been the fundamental right to live
spelled in the Constitution. Even a country lawyer with rubbishy
credentials will be entitled to approach the judiciary on behalf of
the dismissed agricultural workers and pray that the lordships might
kindly issue a directive to the authorities concerned so that their
clients are saved from starvation and death. He will cite the
precedent of the Orissa episode and seek equal treatment for the
dismissed strikers.

The implications are obvious: any band of workmen going on strike and
thereby forfeiting their livelihood will henceforth be the charge of
the state. But it will seem somewhat unfair for the judiciary not to
suggest how the wherewithal for feeding the huge army of dismissed
workers is to be raised. The judgment in regard to the Tamil Nadu
government employees, read together with the Orissa directive, should
mean that Madam Jayalalithaa will now have to feed indefinitely out
of state funds the dismissed employees whom she refuses to take back.

Also take into account another interesting issue. The workers are
prohibited to go on collective action to raise their wages. But those
whom journalists love to describe as India Incorporated will not be
prevented from taking a collective decision to raise their profits by
hiking prices. It is the liberal hour, and tenets of market economy
disapprove of any attempt to restrain the animal spirit of corporate
entreprenuers. The upshot will be a palpable lack of symmetry in the
system: the working class and the salariat will be deprived of the
right to agitate for higher wages and emoluments.

Prices will however be raised freely every now and then by landlords,
industrial employers and businessmen. Real wages will, as a result,
decline continuously and could even dip below the level of
subsistence for all and sundry. Given these developments, the
nation's highest judiciary will perhaps issue an order asking the
state to make arrangements so that the entire flock of all and sundry
are saved from starvation. It could then be an impossible situation:
having obeyed the injunction of the nation's highest judiciary, the
authorities might find themselves without sufficient funds to cover
George Fernandes's defence budget and Lal Krishna Advani's security
requirements.

The state will hence face the sternest choice: either deliver the
people from hunger, or protect the country against external threats
and internal subversions. For the government of the day, it will pose
a dilemma, compelling it to refer the matter once more to the Supreme
Court under Article 143 of the Constitution: let the judiciary decide
whether the nation should live while and the country is destroyed, or
is it to be this other way round.

One can express sympathy with the nation's highest judiciary which
lands itself in such a predicament. Give or take an interval of time,
the number of such predicaments can only multiply. They will multiply
not just for the judiciary, but for the nation's administration at
different levels. For instance, the bottling plant units set up by
Coca-Cola and Pepsi-Cola have been shut down in Mumbai by order of
the state government, which has not bothered to wait for the decision
of New Delhi; these bottling plants are however still functioning in
Calcutta, again as per decision of the state government. Whose lead
should the rest of the nation follow? Stalwarts of the Vishwa Hindu
Parishad are caught by the scruff of their necks and ejected from
Bihar; they are allowed to graze in the neighbouring states. A
reference could land very soon on the lap of the Supreme Court for
arbitrating on which state has been treading the straight and narrow
path.

Examples of lack of symmetry are strewn all over. The United
Liberation Front of Asom insurgents and other rebel groups have
allegedly established training camps in Bhutan as well as in
Bangladesh. The Union government, along with some state governments,
are vocal about the supposed lack of cooperation on the part of the
Bangladesh authorities in dismantling those camps. In contrast,
Bhutan, nominally an independent country but in effect little more
than New Delhi's vassal state, is equally remiss in the matter, but
hardly any admonitions have been addressed to it. Or take Kashmir; it
has been granted cellular telephones, but not civil liberties.

Read further on. From time to time, home ministry officials from New
Delhi travel south and travel east to advise the state governments on
how to crush the nefarious activities of neo-Maoist groups. No such
concerted action is noticeable, except on specific occasions, to nab
or restrain Comrade Veerappan, the noble ivory robber straddling the
Tamil Nadu-Karnataka border. Conceivably, at the root of the
differential treatment is the snare of an irresistible syllogism:
gentlemen prefer blondes; ivory is blond; gentlemen accordingly
nurture an affection for the ivory bandit.

The simpleminded may be befuddled by instances of such and similar
anomalies in the public domain. There is however little reason to
burden oneself with too much worrying. It is a divided system,
divided into classes, castes, clans, sects, ethnic factions,
linguistic groups - and groups divided by time-frames, some flaunting
the dazzle of the 21st century, some ensconced in the medieval age,
some others proud of their pre-puranic loyalties. It is a frightful
mess, and it can only get messier tomorrow and the day after. But
that is what the great democratic sovereign socialist republic of
India is all about. We all belong to it, we all rebel against it. The
nation's judiciary, the Messiah in residence, will be always at work,
and it will continue to wade in asymmetry.