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VOL XLV No 01

Should Rule of Law Mean Rule of Flawed Laws?

Tuesday 24 April 2007, by Shree Shankar Sharan

A rule of law means law enforcement but does not mean enforcement of a flawed law. That is where Parliament has an advantage over the Supreme Court. In reviewing enforcement it also debates the adequacy or inadequacy of the law. The Supreme Court reviews with its hands tied, only the law as it exists. The law becomes a blinker outside of which it cannot see. The Supreme Court can protect a static society, not a dynamic and changing society. It can play no part in promoting and protecting social dynamics unless embodied in a law. But laws have been notoriously behind the pace of change.

An oversealous Supreme Court can become the enemy of change. It can begin to be seen as promoting a class interest if the law is loaded in favour of a class, often the elite class which has a voice, interests to protect, a powerful lobby in every political party and the bureaucracy, and the overriding argument in its favour of maintaing law and order instead of chaos and disorder. Every shift of power has an unavoidable ingredient of disorder which can be curbed or delayed in the name of order.

That is why those who protect the rule of law have a duty to take a broad view of the law and to see and judge it in the perspective of the Directive Principles and Fundamental Rights of the Constitution rather than a narrow literal perspective. What is the point of saving a law if it puts the Constitution in danger? Each time a court or the administration or the government sets about enforcing a truly unpopular law, it weakens the confidence of the people in the Constitution and thereby casts a shadow of doubt on it.

That is why it is the duty of the court to deliberate coolly on allegations of non-enforcement of the law or its breach and judge whether non-enforcement serves a wider purpose and provides relief to a large number of people in need of help, than enforcement does. In suitable cases a conscientious court could suspend hearing and ask the Attorney General to ask the government to find means to protect the interests of the larger number or the weaker sections by removing legal lacunae before resuming further hearing. Social change is very often promoted by ignoring the law of the moment, by the forbearance of the executive and the judiciary, till the change has occurred and been formalised. The courts must also avoid becoming votaries of the status quo.

The context for these views is the insistence on the enforcement of Delhi’s Master Plan in the teeth of strong opposition from a section of traders who have built or run shops in residential areas, which contravenes the Master Plan. We hold no brief for rich businessmen who had the means to locate themselves in a legally permissible area. But to apply it on small businessmen who work from their homes or establish themselves in an established market in a blanket manner does seem harsh. Besides, a vast army of workers who help the business on meagre wages do deserve a more compassionate and humane view and proper rehabilitation before being ordered out. This country does not have the means or the policy to offer jobs to all jobseekers officially and relies on the private sector to provide jobs or on self-employment. To uproot those who have found small jobs in terms of the country’s overall plan of employment suddenly without locating them at some other place is to throw the country’s plan of employment in jeopardy apart from inviting severe individual crises. There are multitudinous objectives we have to achieve but no objective can override the paramount objective to keep our people alive. The right to life and the Directive Principle that each man will have an employment to keep body and soul together should take precedence over other objectives of ensuring privacy or tranquillity to residents of residential areas under the Master Plan or to maintain the sanctity of the plan or planning integrity and purity.

There is a weightier reason for not taking a mechanistic view of the Master Plan. There is no place for the poor in the Master Plan. The poor like the outcastes of the Hindu society have been left to squeeze in an existence, somehow, on the margins of planned existence. On nullahs, on pavements, in shacks, roofed and walled with card-board, wood planks and plastic sheets, accept being driven about both by the harshness of nature and man. No residential area has an inch of land, which is within the means of the poor to buy by a long chalk.

In a country in which the poor exceed the rich and the middle classes by a wide margin a plan will enjoy moral legitimacy only if a part of it takes care of their needs, if it offers them land at affordable prices of, say, Rs 100 per square foot and cheap loans can be had for building their houses and marks out a space where they carry out a business which constitutes the backbone of the service sector.

Another point to consider will be that the space that is earmarked for the poor should be close to their market. We provide costly facilities like the SES and subsidise them heavily to attract business investment and promote exports either near the sources of raw materials or their potential market. The same understanding and accommodating attitude needs to be applied to the poor to keep them close to potential places of employment. We cannot push them to the margins of a city to make our cities tidy and pretty but render the poor unemployable.

In the new colonies which employ a large number of workmen, no provision has been made for the workers to build their homes. Right before our eyes and our palatial houses we let them live in tiny wretched hovels unfit for a pig. A housing plan must provide for decent temporary accommodation for our workers, like collapsible prefabricated cottages.

These workers come to our cities because we need their services and they need employment or jobs. There is an appalling pressure on land in our rural economy. There is no cottage industry worth the name left in rural areas to employ them because we have killed our cottage industries by our deliberate policy of modernisation. Even oxen have disappea-red from the rural scene because of our policy to license production of tractors and banking policy to finance them on easy terms. It is we who have forced the exodus from the rural areas to the urban by meddling in the rural economy all in the name of removing poverty. Having done so it is our duty to offer them decent homes and civic facilities in the cities. We have failed badly to treat our migrant rural workforce in a civilised manner. We only drive them from one illegal settlement to another and pat ourselves for these small mercies.

Our model of development is to promote growth through investment which, thanks to modern technology, is generally jobless, and spread more employment and wealth by the multiplier or trickle-down effect. The poor that we see migrate and works in the cities are part of the trickle-down effect for whatever it is worth. The trickle-down comes all over the place. It cannot be planned for because it cannot be estimated correctly beforehand. They have to be made to feel welcome wherever they have found a job and not uprooted from there. They have been uprooted already from their rural milieu and should not be uprooted time and again to suit the financial ideas of our planners to hide the reality in a smoke-screen of prosperity. We should not be ashamed that we are poor. Every country has been poor some time or the other but has grown out of it. So shall we, given time and humane policies and a reasonable rate of growth.

But if we put obstacles in growth, even though haphasard, by going with the priorities of the rich, we shall stifle growth. Patient as our people are, even they will not put up with too many denials of the opportunity to survive or submit to the restoration of the inspectors’ raj we had only recently partly come out of but vent their anger in acts of serious disorder not conducive to a democratic polity or good governance.

The primacy given to the Master Plan has too many pitfalls and socio-political dangers it will not be wise to ignore. We expect and demand of our Supreme Court we all respect, to heed these dangers before taking a position on the question. They should, on the other hand, guide our misguided government and misguided planners along more humane and realistic lines.

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