Thursday, 4 August 2011

Supreme Court Hits Out On Neo-Liberal Policies

JAITELY v SC - Justice was Blind

The Supreme Court (SC) of India headed by Justice Reddy and Justice Nijjar recently handed down a landmark judgment quashing the appointment of Special Police Force (SPOs) better known as the State sponsored Salwa Judum in Chhattisgarh, which is run by the Right wing Bhartiya Janata Party (BJP dominate by Hinuds). SC declared it unconstitutional as it violates the Articles 14 and 21 of the Constitution. Mr Jaitely, a leader of opposition in Rajya Sabha, Upper House, believes that the decision of the SC will have wider ramification on the institution of SPOs in other parts of the country under similar conditions because it will cease to operate.

Mr Arun Jaitely, formerly a Law Minister in the United Front Govt (UF) in his article in The Hindustan Times, 11 July 2011 characterises the decision of the Supreme Court drive by ideology and not on the Indian Constitution.  In support of his argument he relies on the provisions in The Police Act, 1861, which was mainly enacted during the colonial era for enforcing the foreign rule rather than administration of Rule of Law in a democratic society. He also expresses concerns that the SC’s decision has created a crises situation in the states with growing Maoists influence. It is accepted in the Planning Commission Report that Maoist activities are increase due to mass poverty, unemployment, displacement of Adivasis by reclaiming land for mining and increasing disparities during the last two decades as a consequence of neo-liberal polices of market economy based on the principles of self interest. In nut shell, Mr Jaitely attacks the SC that, “the judges have entered the political thicket. They have chosen a preferred course of economic policy and substituted the wisdom of the executive for their own wisdom of how Maoism is to be tackled. Effectively, the judgement disregards the basic constitutional feature of separation of powers”.
Before we analyse Mr Jaitely argument, let us look at the legal philosophy underlying a western style democracy. Administration of justice has always been a controversial subject in democratic societies within an institutional framework of capitalism operating in India under the umbrella of neo-liberal polices of globalization. Criticism of democracy as an institution of governance ‘flourishing’ under the principle of one-dollar-one vote is quite well known despite claim of consumer sovereignty, free speech and fairness based on Hayekian lassie fair economy and Karl Popperian principles of refuting a conjecture. If the objectives of economic growth and social justice are in conflict in a capitalist democracy due to inadequacy of theory of distribution in Neo-Classical economics then the same conflict remains unresolved in administration of justice in legal system bequeathed by capitalism. In fact, Prof Loveland of City University in his book on Constitutional Law, Administrative Law and Human Rights stated as follows:
“There have been two current opinions as to how best to govern a capitalist society in the post war period”
The first theory might be called ‘market liberalism’, representing right wing political spectrum vigorously advocated by an English Jurist, Dicy and often called Dicy theory. Frederick Hayek, an Austrian economist and an exponent of orthodox Diceyan views, puts forward a most celebrated defence in support of ‘market liberalism’ in his book, The Road to Serfdom, 1944. For Hayek, the function of the rule of law is to ensure that the government in all its actions is bound by ex ante rules which have a high degree of foreseeability. In fact, his political and economic theories became driving force for Thatcher administration and had a profound impact on public policy during 1972-1990. Hayekians believes in lassie-fair economy, i.e., the society’ interests are better served by reducing the power and size of the government to bare minimum. In his scheme, the role of the government is limited to army to defend the country from foreign aggression, provide police force to maintain law and order and it should provide a judicial system to settle the dispute over crimes, contracts and property, i.e., protect the institution of private property.  The extreme form of this scenario is market liberalism that would mean that government should have no role at all in the provision of health services, education, housing, or social security.  Further, the rule of law, ‘has little to do with the question of whether all actions are of government are legal in the jurisdictional sense’; rather ‘it implies limits to the scope of legislation. Hayek denies that the legislature can perform a balancing act between economic equality and the rule of law; ‘any policy aiming directly at a substantive ideal of redistributive justice must lead to the destruction of the rule of law”.         
In the above backdrop in late 19th century, Gladstone and Disraeli introduced form of government placing limits on the use of child labour or preventing factories from emptying their effluent into rivers or the streets. The justification for such rules came mainly from three sources: (i) ‘just and fair’ insofar as it protects individuals from exploitation, (ii) poor health might adversely affect the productivity, and (iii) it would appear rational for society as a whole, for example the cost of ill health and death which might result from lack of control on pollution. By the 1930s, these  rationale underpinned an immense network of government activities; a national health service, millions of publicly owned houses, government control of coal, steel, water, gas, and electricity  industries; old age pensions, unemployment benefits; and free schooling for all children until the age of 15. In Hayekian words, this represents a ‘substantive ideal of redistributive justice’, The Rule of Law in a Welfare State.  In contrast to Hayek-Deceyan model without removing its basic feature. Hence, there are no fundamental differences between these two theories as both uphold the sovereignty and supremacy of the Parliament as it reflects the will of people.
The second theory, ‘social democracy’ emerged from the centre-left school of thought which is well explained by the American jurist Harry Jones in a seminal article in the Columbia Law Review, 1958.  However, social democracy is distinguished from the form of governments like socialism and communism which have their goal in establishing an egalitarian society. 
Although Indian democracy does not go as far as socialism or communism in the preamble of its Constitution it says as follows:
“WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:
JUSTICE, social, economic and political
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity; and to promote among them all
FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;
For avoidance of any doubts various terminologies have been explained in the Constitution. The word socialist was added to the Preamble by the Forty-second Amendment. It implies social and economic equality. Social equality in this context means the absence of discrimination on the grounds only of castecolourcreedsexreligion, or language. Under social equality, everyone has equal status and opportunities. Economic equality in this context means that the government will endeavour to make the distribution of wealth more equal and provide a decent standard of living for all. This is in effect emphasized a commitment towards the formation of a welfare state. India has adopted a socialistic and mixed economy and the government has framed many laws to achieve the aim, a theory or policy of social organisation which advocates the ownership and control of the means of production, capital, land, property, etc.
As originally enacted the preamble described the state as a ""sovereign democratic republic". In 1976 a the initiative of Mrs Indira Gandhi, then Prime Minister of India,  the Forty-second Amendment changed this to read "sovereign socialist secular democratic republic"
Seventh Schedule (Article 246)—The union (central government), state, and concurrent lists of responsibilities. Hence, article 246 must be read in conjunction with schedule 7.
The basic form of the Union Government envisaged in the Constitution is as follows,
A democratic executive must satisfy three conditions:
1. It must be a stable executive, and
. It must be a responsible executive.
3. It must be impartial to all religion, caste and community. Unfortunately, it has not been possible so far to devise a system which can ensure both conditions in equal degree. ..... .
Right to Constitutional Remedies
The Right to Constitutional Remedies empowers citizens to approach the Supreme Court of India to seek enforcement, or protection against infringement, of their Fundamental Rights. Article 32 provides a guaranteed remedy, in the form of a Fundamental Right itself, for enforcement of all the other Fundamental Rights, and the Supreme Court is designated as the protector of these rights by the Constitution. The Supreme Court has been empowered to issue writs, namely habeas corpusmandamusprohibitioncertiorari and quo warranto, for the enforcement of the Fundamental Rights, while the High Courts have been empowered under Article 226 – which is not a Fundamental Right in itself – to issue these prerogative writs even in cases not involving the violation of Fundamental Rights. The Supreme Court has the jurisdiction to enforce the Fundamental Rights even against private bodies, and in case of any violation, award compensation as well to the affected individual. Exercise of jurisdiction by the Supreme Court can also be suo motu or on the basis of a public interest litigation. This right cannot be suspended, except under the provisions of Article 359 when a state of emergency is declared.
The Fundamental Rights and Directive Principles have also been used together in forming the basis of legislation for social welfareThe Supreme Court, after the judgment in the Kesavananda Bharati case, has adopted the view of the Fundamental Rights and Directive Principles being complementary to each other, each supplementing the other's role in aiming at the same goal of establishing a welfare state by means of social revolution
Independence of Judiciary
The Judiciary of India is free of control from either the executive or the Parliament. The judiciary acts as an interpreter of the constitution, and as an intermediary in case of disputes between two States, or between a State and the Union. An act passed by the Parliament or a Legislative Assembly is subject to judicial review, and can be declared unconstitutional by the judiciary if it feels that the act violates the provisions of the Constitution.
To date, neither the right wing Hindu BJP nor did the so-called centrist Congress take any initiative to abandon the ideal of the Constitutions despite the fact they had supper majority to do so in 1977 and 1986 respectively.  It appears that Mr Jaitely has chosen to adopt the Diceyan-Hayekian theory of rule of law rather than theory based on the concept of a Welfare State. It is worth noting that Mr Arun Jaitely and Mr Abhishek Singhvi (big business agents) were employed by the successor company of the Union Carbide in Bhopal to argue against the liability although it automatically transfers to the successor. It appears that the Supreme Court in this instance has adopted the second theory of the rule of law. As you will see below from the objectives, the decision of the SC is not contrary to the Rule of Law or the spirit of the Constitution.
Mr Jaitely relies on the selective paragraphs from the SC decision and ignores the paragraphs in which the SC directed itself to various articles of the Constitution and directive principles of State policy. However, we confine ourselves to those paragraphs of the judgment to which Mr Jaitle refers in his article (Full decision: ):  
“The State of Chhattisgarh claims that it has a constitutional sanction to perpetrate, indefinitely, a regime of gross violation of human rights in the same manner and by the same mode as done by the Maoists,” it states, adding: “Set against the backdrop of resource rich darkness of the African tropical forests, the brutal ivory trade sought to be expanded by the imperialist-capitalist expansionary policy of European powers, Joseph Conrad describes the grisly and the macabre states of mind and justifications advanced by men, who secure and wield force without reason, sans humanity, and any sense of balance.”
“People do not take up arms, in an organised fashion, against the might of the State, or against human beings without rhyme or reason.  Guided by an instinct for survival and, according to Thomas Hobbes, a fear of lawlessness that is echoed in our conscience, we seek an order. However, when that order comes with the price of dehumanisation, of manifest injustices of all forms perpetrated against the weak, the poor and the deprived, people revolt.” (SC) 
The judgement approvingly quotes, The Dark Side of Globalisation: “Thus the same set of issues, particularly those related to land, continue to fuel protest politics, violent agitator politics, as well as armed rebellion… Are governments and political parties in India able to grasp the socio-economic dynamics encouraging these politics or are they struck with a security-oriented approach that further fuels them?”
The judgement also denounces a contrarian approach: “The culture of unrestrained selfishness and greed spawned by modern neo-liberal ideology, and the false promises of ever increasing spirals of consumption leading to economic growth that will lift everyone, under-gird this socially, politically and economically unsustainable set of circumstances in vast tracts of India in general and Chhattisgarh in particular.”
The law declared by the apex court binding on all subordinate authorities now is: “Predatory forms of capitalism supported and promoted by the State in direct contravention of constitutional norms and values, often take deep roots around the extractive industries.”
“It is held to be violating the Article 14 — equality before the law— as youngsters with little education background from among the tribals are being given these appointments, and violates Article 21 — the right to life and liberty — as SPOs have low educational qualification and can’t be expected to understand the danger of fighting Maoism. Hiring such SPOs would endanger their lives and the lives of others and, therefore, encouraging them is violating Article 21”.
“The payment of honorarium while performing the onerous task is yet another ground for quashing the appointment of SPOs”.
According to Mr Jaitely’s judicial philosophy: “Undoubtedly, the judges have entered the political thicket. They have chosen a preferred course of economic policy and substituted the wisdom of the executive for their own wisdom of how Maoism is to be tackled. Effectively, the judgement disregards the basic constitutional feature of separation of powers. He characterises the judges reasoning as an ideological discourse, and said that the court goes on to find faults with the deployment of SPOs even though the Centre and the state legislation specifically empower them.
As to the issue of honorarium, Mr Jaitely stated, “If the court found the honorarium inadequate it could always direct a more humane honorarium. If it found that educational qualifications for becoming SPOs were inadequate, it could always direct the state to formulate a policy so that persons with reasonable qualification are appointed as SPOs”. 
The judgment is unprecedented and itself makes an interesting reading as it correctly goes at the heart of the problems emanating from the socio-economic conditions in the creation of which poor people did not play any part. State’s actors from far right to centre, and the left, has failed to deal with the plight of poor people. In fact, pursuant of neo-liberal economic policies blindly has created two Indias: Rich and Poor.  Therefore, if Maoist influence grew fast in some states then the actors of the states themselves and no one else as they are the authors of their own misfortune. There is nothing ideological about in the SC’s decision as the Court is only discharging its functions by upholding not only the rule of law, but also keeping the spirit of the Constitution and not so doing in fact, would have done a great injustice and an error of law. Further, no matter how serious and unlawful the acts of Maoists’ are, everyone is entitled to life and liberty and a fair hearing under the Human Rights, even if they themselves have no regards for the same due to extenuating circumstances. Hence, there is no contradiction between analysing why the Maoists exist and fight for their causes and a denunciation of those who fight the Maoists. 
What is omitted from the SC Judgement is as follows: 
The problem rests in the amoral political economy that the State endorses, and the resultant revolutionary politics that it necessarily spawns. In a recent book titled “The Dark Side of Globalization” it has been observed that:  [Blind Justice]
“[T]he persistence of “Naxalism”, the Maoist revolutionary politics, in India after over six decades of parliamentary politics is a visible paradox in a democratic “socialist” India…. India has come into the twenty-first century with a decade of departure from the Nehruvian socialism to a free market, rapidly globalizing economy, which has created new dynamics (and pockets) of deprivation along with economic growth. Thus the same set of issues, particularly those related to land, continue to fuel protest politics, violent agitator politics, as well as armed rebellion…. Are governments and political parties in India able to grasp the socio-economic dynamics encouraging these politics or are they stuck with a security-oriented approach that further fuels them?”
6. That violent agitator politics, and armed rebellion in many pockets of India have intimate linkages to socio-economic circumstances, endemic inequalities, and a corrupt social and state order that preys on such inequalities has been well recognized. In fact the Union of India has been repeatedly warned of the linkages. In a recent report titled “Development Challenges in Extremist Affected Areas”2, an expert group constituted by the Planning Commission of India makes the following concluding observations:
The development paradigm pursued since independence has aggravated the prevailing discontent among the marginalized sections of the society…. The development paradigm as conceived by policy makers has always imposed on these communities….causing irreparable damage to these sections. The benefits of this paradigm have been disproportionately cornered by the dominant sections at the expense of the poor, who have borne most of the costs. Development which is insensitive to the needs of these communities has inevitably caused displacement and reduced them to a sub-human existence. In the case of tribes in particular it has ended up in destroying their social organization, cultural identity and resource base…. Which cumulatively makes them increasingly vulnerable to exploitation…. The pattern of development and its implementation has increased corrupt practices of a rent seeking bureaucracy and rapacious exploitation by the contractors, middlemen, traders and the greedy sections of the larger society intent on grabbing their resources and violating their dignity.” [paras 1.18.1 and 1.18.2, emphasis supplied]
[1. Ajay K. Mehra “Maoism in a globalizing India” in “The Dark Side of Globalization” eds. Jorge Heine & Ramesh Thakur (United Nations University Press, 2011, 2 Report of an Expert Group to Planning Commission, Government of India (New Delhi, April, 2008)]
7. It is also a well known fact that Government reports understate, in staid prose, the actuality of circumstances. That an expert body constituted by the Planning Commission of India, Government of India, uses the word “rapacious”, connoting predation for satisfaction of inordinate greed, and subsistence by capture of living prey, is revelatory of the degree of human suffering that is being visited on vast sections of our fellow citizens. It can only be concluded that the expert body, in characterizing the state of existence of large numbers of our fellow citizens, in large tracts of India, as “sub-human,” is clearly indicating that such an existence is not merely on account of pre-existing conditions of significant material deprivation, but also that significant facets that are essential to human dignity have been systematically denied by the forces and mechanisms of the developmental paradigm unleashed by the State. Equally poignantly, and indeed tragically because the State in India seems to repeatedly insist on paying scant attention to such advice, the Expert Group further continues and advises:
This concludes our brief review of various disturbing aspects of the socio-economic context that prevails in large parts of India today, and that may (and can) contribute to politics such as that of the Naxalite movement or erupt as other forms of violence. It should be recognized that there are different kinds of movements, and that calling and treating them generally as unrest, a disruption of law and order, is little more than a rationale for suppressing them by force. It is necessary to
contextualize the tensions in terms of social, economic and political background and bring back on the agenda the issues of the people – the right to livelihood, the right to life and a dignified and honourable existence. The State itself should feel committed to the democratic and human rights and humane objectives that are inscribed in the Preamble, the Fundamental Rights and Directive Principles of the Constitution. The State has to adhere strictly to the Rule of Law. Indeed, the State has no other authority to rule…. It is critical for the Government to recognize that dissent or expression of dissatisfaction is a positive feature of democracy, that unrest is often the only thing that actually puts pressure on the government to make things work and for the government to live up to its own promises. However, the right to protest, even peacefully, is often not recognized by the authorities, and even non-violent agitations are met with severe repression…. What is surprising
is not the fact of unrest, but the failure of the State to draw right conclusions from it. While the official policy documents recognize that there is a direct correlation between what is termed as extremism and poverty…. or point to the deep relationship between tribals and forests, or that the tribals suffer unduly from displacement, the governments have in practice treated unrest merely as a law and order problem. It is necessary to change this mindset and bring about congruence between policy and implementation. There will be peace, harmony and social progress only if there is equity, justice and dignity for everyone.” [paras 1.18.3 and 1.18.4, emphasis supplied]
8. Rather than heeding such advice, which echoes the wisdom of our Constitution, what we have witnessed in the instant proceedings have been repeated assertions of inevitability of muscular and violent statecraft. Such an approach, informing the decisions of the Government of Chattisgarh with respect to the situations in Dantewada, and its neighbouring districts, seemingly also blinds them to the fact that lawless violence, in response to violence by the Maoist/Naxalite insurgency, has not, and will not, solve the problems, and that instead it will only perpetuate the cycles of more violent, both intensive and extensive, insurgency and counter-insurgency. The death toll revealed by the Government of Chattisgarh is itself indicative of this. The fact that the cycles of violence and counter violence have now lasted nearly a decade ought to lead a reasonable person to conclude that the prognosis given by the expert committee of the Planning Commission to be correct.
9. The root cause of the problem, and hence its solution, lies elsewhere. The culture of unrestrained selfishness and greed spawned by modern neo-liberal economic ideology, and the false promises of ever increasing spirals of consumption leading to economic growth that will lift

everyone, under-gird this socially, politically and economically unsustainable set of circumstances in vast  tracts of India in general, and Chattisgarh in particular. It has been reported that:
“Among the rapidly growing urban middle class, the corporate world is in a hurry to expand its manufacturing capacity. That means more land for manufacturing and trading. The peasants and tribals are the natural victims of acquisitions and displacements. The expanded mining activities encroach upon the forest domain…. Infrastructure development needs more steel, cement and energy…. Lacking public sector capacities, the income-poor but resource-rich states of eastern India are awarding mining and land rights to Indian and multinational companies…. Most of these deposits lie in territory inhabited by poor tribals and that is where Naxals operate. Chattisgarh, a state of eastern India, has 23 per cent of India’s iron ore deposits and abundant coal. It has signed memoranda of understanding and other agreements worth billions with TataSteel and ArcelorMittal, De Beers Consolidated Mines, BHP Billion and Rio Tinto. Other states inviting big business and FDI have made similar deals…. The appearance of mining crews, construction workers and truckers in the forest has seriously alarmed the tribals who have lived in these regions from time immemorial.”1
10.The justification often advanced, by advocates of the neo-liberal development paradigm, as historically followed, or newly emerging, in a more rapacious form, in India, is that unless development occurs, via rapid and vast exploitation of natural resources, the country would not be able to either compete on the global scale, nor accumulate the wealth necessary to tackle endemic and seemingly intractable problems of poverty, illiteracy, hunger and squalor. Whether such exploitation is occurring in a manner that is sustainable, by the environment and the existing social structures, is an oft debated topic, and yet hurriedly buried. Neither the policy makers nor the elite in India, who turn a blind eye to the gross and inhuman suffering of the displaced and the dispossessed, provide any credible answers. Worse still, they ignore historical evidence which indicates that a development paradigm depending largely on the plunder and loot of the natural resources more often than not leads to failure of the State; and that on its way to such a fate, countless millions would have been condemned to lives of great misery and hopelessness.

The SC decision is commendable as it has uniquely applied the law and spirit of the Constitution by taking into account (i) the articles of the constitution as to duty and the responsibility of the state’s actors and the government, (ii) has incorporated the Human Rights in the decision (HR were adopted in UK in 1998), and (iii) it has applied  purposive approach in adopting the second theory of Rule of Law consistent with the Welfare State. 
Besides two theories we have discussed above there are other well known economics and legal theories to support this proposition. For example, Social Choice theory and the new theory of Industrial Organisation as applied to takeovers of corporations tell us how to kick out or discipline bad managers. The executive is an elected body of agents of the people of India (like managers in a corporation). If the executive failed to act in the best interest of its people (duty and responsibility), any pro-active citizen or the court on its own volition could seize of the situation to restore the civil liberties and the rule of law. The Judicial Activism tells us that if the situation compelling one can’t wait for the next elections for the States’ agents to change their behaviour which is unlikely given widespread corruption revealed by Mr Justice Hegde and outcry of the Civil Society to set up independent Lokpal led by Anna Hazare. Historically, enlightened members of the judiciary following their conscience have used a purposive approach.  For example, late Lord Justice Lord Denning, father of Judicial Reviews was opposed to strict interpretation of the Law and substituted a purposive approach or what is known as Orbiter Dicta. Notwithstanding English Revolution, since then there are a number of well known case laws of judicial review, in which Courts have interfered in which either there has been a subversion of individual liberty or involvement of interests of a large number of people.
Although judiciary in India has its own complacency and deep rooted corruption on the ground level, at least some present enlightened senior judges of the SC have risen above the self interests and forced the govt to face the moment of truth. In fact, SC’ recent judgments on appointment of SPOs, disclosure of names of corrupt culprits, illegal mining, land acquisition, and problems of pollution have been unprecedented at the time when both the opportunistic left and the reactionary right wing politicians have been colluding with the UPA govt to isolate Maoists so that when they are in power they did not have to address problems of common men either. It appears Marx's soul left the left leftists to take refuse in the Supreme Court. However, I have no illusion that the Courts could only provide a temporary respite to victims of neo-liberal polices under the umbrella of globalisation. Someone has to rise to the occasion to make a difference and reflect the will of people.  In this instance, the Supreme Court has done it all.


T. Krishna Kumar said...

10642It is an interesting analysis. It is knowledge enhancing for those who are either only economists or only legal scholars. I suggest that the pink colored highlighting be replaced by some other more readable color. Also the font size may be enlarged. If increasing the font size reduces the size of the content it may be split into parts such that the second and the third parts follow the first.

Rajneesh Luhani said...

I think the Supreme Court needs to clearly delineate matters that are in its ambit and those that are not. Over the last many years, when weak coalition governments were the norm, the court got into areas normally meant for the executive. Maybe, the executive was happy to leave difficult decisions to the court, possibly to escape political responsibility for the same. But there is now a government with the mandate and the numbers to take decisions. It is time the Supreme Court focused on what it has to do and let the government do what it has the mandate to do.