The Third Eye: Judicial push for the right to equality

New Delhi (The Uttam Hindu): In a judgement of extraordinary importance, the Supreme Court of India on November 25 quashed the Telangana state order facilitating preferential allotment of land to MPs, MLAs, bureaucrats, judges and journalists within Greater Hyderabad Municipal Corporation and using strong words described the distribution of state largesse as "capricious, irrational and arbitrary." It held that the action violated Article 14 of the Constitution.

Terming it as an "abuse of power" by the state government meant to cater to the affluent sections of society, the judgement clearly hinted that this was a corrupt practice. Upholding the public interest petition, the ruling declared that the policy of the state government ‘perpetuated inequality’ and undermined the principle of substantive equality enshrined in the Constitution.

In the words of the Supreme Court "When the government allocates land at discounted rates to the privileged few, it engenders a system of inequality conferring on them a material advantage that remains inaccessible to the common citizen. This preferential treatment conveys the message that certain individuals are entitled to more, not due to the necessities of their public office or the public good but simply because of their ‘status’."

The apex court pointed out that the policy gave preferential treatment to the higher echelons of all the three wings of the government-legislators, bureaucrats and members of the higher judiciary -- and reminded the journalists that as they represented the Fifth Pillar of democracy they were expected to provide checks on any arbitrary exercise of the state power-seeking, in this case, to allot land on the premise of benefitting "deserving sections of society."

The judgement of the Supreme Court has in a way questioned the traditional model of governance existing in this country for decades and seriously faulted it for defying the fundamental right to equality.

The civil appeal challenging the allotment of land parcels at Hyderabad has led to a total-looking judgement in as much as the Supreme Court passed an order of restitution directing that while the lease deeds executed by the State of Telangana in favour of the cooperative societies stood cancelled, the state would refund the entire amount deposited by a member including the stamp duty and registration fees along with interest as per prevailing RBI rate.

The court even prescribed how the development charges paid by the Societies would be paid back. The court reiterated that whereas the power to distribute and redistribute public assets fell within the State’s discretion, such discretion is not absolute being subject to Article 14 of the Constitution and the logic of equality.

The SC ruled that "It cannot be questioned that the state policy and executive action must satisfy the requirements of this article." There is a certain punch in this judgement that would deter the executive from exercising the state power arbitrarily and somewhere check the politician-bureaucratic nexus that has been a bane for democracy in India.

It is interesting that the Supreme Court gave another judgement touching on the philosophy of governance in democratic India -- again on November 25 --dismissing petitions that had pleaded for the removal of the words "secular" and "socialist" inserted in the Preamble of the Constitution by the 42nd Amendment made during the Emergency in 1976.

Those behind the petition saw a contradiction between the stipulation that the state would neither favour nor oppose any religion and the mention of constitutional protections for "minorities."

The original assumption of the makers of the Constitution was that by laying emphasis on equality before the law and equal treatment of all communities along with the grant of freedom of belief as a fundamental right, they had made India inherently secular.

The Supreme Court took the view that India had developed its own interpretation of secularism and evolved a tradition wherein the state neither supported any religion nor penalised the practice of any faith.

In any case, secularism was built into the democratic architecture of India because of "one man one vote," the absence of any denominational stamp on the government and a guarantee that policies will not serve the cause of any one community.

In its earlier pronouncements, the apex court had considered secularism as a basic feature of the Constitution equating it with the nation’s commitment to treating persons of all faiths equally and without discrimination.

The SC retained the word in the Preamble apparently accepting this simple non-ideological interpretation.

As regards the inclusion of the word "socialist" in the Preamble, it is said that the Constituent Assembly did not consider this necessary on the ground that future generations should not be tied down forever to a particular model of economy. The makers of the Constitution believed in the principle of economic justice.

In the November 25 judgement, the SC did not scrutinise the fact that the Preamble was amended during the Emergency but noted that the question had been settled in 1978 when the 44th Amendment was passed. It interpreted the adjective "socialist" as the indicator of a state dedicated to the welfare of the people.

The Constitution seeks to provide minimum facilities to all people to free them from poverty, hunger and unemployment and mandates the state to bridge the gap between the rich and the poor. The SC thus interpreted a ‘socialist state’ in the Indian context as being a ‘welfare state’-- nothing more -- as any regime in India was committed to establishing ‘social and economic justice’. Classical Socialism is an ideology of the state that believed in public ownership of all means of production.

Incidentally, the philosophy of Integral Humanism was propounded by the late Pt Deen Dayal Upadhyay opposed both Western capitalist individualism and Marxist Socialism- it seemingly accepted a middle ground rejecting the "excesses" of both sides. The Supreme Court as in the case of Secularism took a non-ideological view of the word Socialist figuring in the Preamble and legitimised its inclusion in the Preamble.

These two judgements of the Supreme Court bench were headed by the new Chief Justice -- have a special significance in as much as they touched on the very philosophy of the state on which Indian democracy was anchored. They emphasise that all citizens stood on the same footing in the eyes of the regime, that the basic structure of the Indian Constitution would remain unaltered, that India was wedded to the philosophy of improving a lot of its people, that the rulers might change but the system of rules must have continuity and that the country must remain vigilant against corruption at any level and in any sphere of governance.

In the case of allotment of land at Hyderabad, the CJI declared that "The benefits granted to the privileged and well-off classes come at a cost as they effectively deprive and deny the essentials to the marginalised and socially vulnerable populations."

The policy does not meet the fairness standards prescribed by the Constitution. The apex court in the Hyderabad case was in a way adjudicating on the Constitutional validity of decisions made by the democratic dispensation in the course of the day-to-day administration and setting the bar of ‘people’s interest’ for them.

It upheld the continuance of the words "secular" and "socialist" in the Preamble on the grounds that they were in tune with the ethos of the Indian Constitution and that the power to amend extended to the Preamble to the Constitution as well.

It also took an adverse view of the fact that the petitions were filed years after the amendments had been made. It implied that the policies of the Indian state would pass muster so long as they provided a "people-oriented" governance, regardless of how secularism and socialism were ideologically defined in various quarters.