Two cheers for fearless Supreme Court
Regular readers of EducationWorld must be well aware that India’s much-hyped independent judiciary and legal system which is often favourably compared with the obedient state-subjugated judicial systems of other developing countries, most notably China, doesn’t impress the editors of this publication. The law’s prohibitive expense (inflated by grossly unjust court fees), endemic delay, archaic procedures, crumbling infrastructure, amoral lawyers, persistent reports of judicial corruption, and total absence of a functional legal aid system have transformed post-independence India’s courts of law into veritable infernos of iniquity which lay citizens dread rather than respect as remedial forums for the dispensation of speedy, impartial justice. Nevertheless, notwithstanding its reclusive ivory tower characteristics, there is one distinguishing characteristic of the Indian legal system of which all citizens can be justifiably proud — the uncompromising courage and independence with which the Supreme Court asserts its constitutional right to overrule government laws and parliamentary legislation which alter or abridge the fundamental rights of citizens. The unanimous judgement delivered by a nine-judge bench in I.R. Coehlo’s Case on January 11 declaring the practice of legislative majorities placing controversial and questionable legislation beyond judicial purview through the simple expedient of consigning it to the Ninth Schedule ultra vires and unconstitutional, is yet another example of the courage and independence with which the Supreme Court discharges its obligation to interpret the Constitution.
To appreciate the significance of the highest court’s judgement in Coelho’s Case, it is necessary to grasp the history of the Ninth Schedule. Soon after this nation attained its independence from foreign rule in 1947, the first government of independent India enacted overdue land reform legislation which in effect abolished the inegalitarian zamindari system, transferring agricultural holdings to the tiller. To short circuit a rash of lawsuits from aggrieved estates and property owners, the Centre with the approval of Parliament and the tacit consent of the judiciary, accepted the proposition of appending the Ninth Schedule to the Constitution which would be a sanctuary for legislation so patently in the national interest.
However true to type, over the several decades since, populist and self-serving politicians of all political persuasions and complexions have misused the sanctuary of the Ninth Schedule to the extent that currently 284 Acts of Parliament and the state legislative assemblies have been insinuated into this schedule to place them beyond judicial scrutiny.
Quite clearly, politicians and others protesting the judgement are unaware of the philosophy of the separation of powers which requires the judiciary to arbitrate between the State and citizen. Therefore all legislation should be open to and pass judicial scrutiny. For upholding this basic principle of constitutional governance, the fearless justices of the apex court deserve the thanks of all citizens. But to receive pardon they need to be as zealous about cleaning up the rusty machinery of the legal system which is on the point of breakdown.
Taking the pain out of land acquisition
The recent stand-off between farmers in Singur and Nandigram and the state government in communist-ruled West Bengal over the acquisition of farm land for the purposes of establishing the Tata Motors small car manufacturing facility and a SEZ (special economic zone), is surely the first of many such confrontations between rural landowners and government, unless extant laws and rules relating to land acquisition are radically rewritten. In particular the role of government — Central and/ or state — needs to be reduced from principal protagonist to neutral umpire.
Under the influence of Soviet-inspired confiscatory communist/ socialist ideology which cribbed and confined the Indian economy for half a century, the acquisition of land for industry and/ or public purposes has been regarded a necessary misfortune, if not punishment, visited on oppressive kulaks and capitalists. Therefore there’s a delicious irony that the first major resistance to land acquisition for industry development purposes has pitted small farmers against the government of West Bengal dominated by the Communist Party of India (Marxist) which reaped huge political dividends by propagating this line of thinking.
With the benefit of hindsight, it is now quite clear that the fundamental flaw of land acquisition legislation and the Land Acquisition Act, 1894 in particular, is the lead protagonist’s role played by government. Under all existing legislation, the State is obliged to evaluate and acquire suitable land, often from farmers, for transfer to industry and corporates for greenfield projects. Theoretically this process should safeguard farmers’ interests and ensure they receive fair prices for their land. But as in all cases where governments represented by notoriously corrupt bureaucrats discharge an interventionist role, there is a huge shadow between theory and practice. In practice farmers and landowners in general are paid a fraction of the market value of their land, and instances of state governments selling acquired property to industry at several multiples of acquisition prices are de rigueuer.
Given that a paradigm shift from agriculture activity which employs over 60 percent of the working population is inevitable, and a greater proportion of agricultural land will need to be made over for industrial development purposes as the Indian economy modernises, it’s important that the protagonist’s role played by the State is reduced and landholdings owners are encouraged to interact directly with industry and corporates. The public interest would be better served if government restricted itself to playing the role of umpire, facilitating easy acquisition of land titles and papers to ensure a fair deal for farmers. Such a market driven process will enable those who surrender their traditional landholdings to reap a bonanza, rather than grudging ‘compensation’ as is the norm currently.
As is normative in mature democracies, there’s an urgent need to replace the Soviet-inspired confiscatory system to extinguish the anguish and heartburn associated with land acquisition for public purposes.