supreme court

I propose to deal with two entirely different issues under the same rubric,as one daily comes under an avalanche of news,a benumbing mixture of sheer frippery and disturbing political trends.Are we drifting towards a dangerous period of violent anarchy and brutal mind-boggling repression?

First the daily inflow of one more senior and influential leader of the main opposition party deserting the Congress.The early ideological and organisational unity of the so-called GOP inspired by charismatic leaders had given way in Rajiv Gandhi’s time to the benefits of power as a member of a power-elite that the ‘High Command’ could bestow.The leadership initially could bestow or withdraw such benefits as it was in a fair position to lay a claim to power.But for some time under continuous blitzcrieg of electoral losses and loss of such influence has led to severe erosion of that bond of unity and loyalty based on hope of patronage.Now there is the evidently better politically entrenched BJP that can hold out such baits resulting in wavering loyalty of quite a few Congress stalwarts.Some have their feet in both the camps bargaining for their loyalty.The leadership is no longer in a position to play off one regional faction against another.The scenario looks quite like absurd theatre to the uninvolved.

But the Congress leadership still seem to cherish the illusion that it can still bank on loyalty in exchange for promissory notes and playing on mutual hostility of different factions.The recent defeat of Ajay Maken in the Rajya Sabha elections is a sign of the times.The show-cause notice to disgruntled regional leader Bishnoi is at best a face-saving gesture.Such leaders ignore them blithely as there is already a more powerful bidder in the market.

The regional leaders also find the ground beneath their feet shaking.For increasing acrimonies among them have neither increased the party’s influence nor their own stature.In stead these have only weakened their stature.No wonder BJP agents are busy fuelling such disputes.

This is a side-issue,important but not vital.We next deal,with a lighter brush on a subject that obviously has plenty more competent people who can wield a stronger,more confident brush to sketch.We are broaching the subject of the higher judiciary’s handling of the idea of ‘public interest’. This is related to the doctrine of ‘basic structure’ of the state.

For the Constitution not only lays down the essential state-structure,but also the relationship of the elements constituting it.Besides there is the lengthy Chapter on ‘Directive Principles of State Policy’.While this chapter does not contain provisions that are justiciable,this is stated to be much more than a pious wish.

The ends towards which the state is directed to work as it is more than mere ordering of the choice of governments by the people and their peaceful democratic succession are outlined definitively by this chapter.If the judiciary is de jure obliged to maintain the basic structure of the Constitution under whirlwind changes in laws and rules under which government policy works then they ought at least to ensure that these policies do not constitute a threat to the basic structure.

Therefore this chapter most certainly upholds ‘public interest’ under such see-sawing changes in policies of successive governments.Of late new policy initiatives are being frequently challenged by PILs invoking ‘public interest’.And the courts have been busy dealing with such PILs and usually ruled in favour of the government on the ground that the government is in the best position to decide in such matters.

There is an implicit evasion of the stark fact that in many such matters the government and the public or ‘the people’ concerned are two opposing sides whose claims are to be balanced.Some decisions of High Courts in favour of the claims of ‘the people’ have been set aside by the Supreme Court on the ground that experts appointed by the government are most qualified to settle the question and courts have no business to intervene.This assumption is being undermined by increasing identification of the government with corporate interests.

Popular experience has been quite the contrary.Most of the time the government experts are bureaucrats who are wheedled by the government into giving an opinion in its favour.People of Assam had a taste of it when an eight-member committee of experts on the advisability of the building and commissioning the 2000 MW dam on lower reaches of the Subansiri river failed to reach a decision,being split vertically down the middle.The Union Government had unilaterally taken the decision to consider it to have been in favour of completing the project.In fact the dam,which has been built on a massive turbulent river that swells into a huge tide of rushing waters overflowing far into both sides,and in a region identified as in Zone 5 or the most dangerous of earthquake-prone zone the world over,is most likely to release tidal waves of water instantly flooding the countryside affecting lives and livelihoods of millions of people.Under such circumstances the government can hardly be expected to be the best judge of the ‘public interest’ in the dispute.It is an interested party with obvious ‘conflict of interest’.

The invasion of neo-liberal economic doctrines and the concrete pressure of global finance capital actually posed a serious threat to the Indian state,which has been long discounted.The question soon became whether the nation-state or global finance capital was the sovereign power in India.Apart from agreeing to lift vital restrictions on free market in force for public interest,political leaders brokering the new bonds agreed to give up longstanding rights of labour and also the beneficial product patent rights to reduce cost of medicines.The common people have come into desperate straits thanks to such practical surrender of sovereignty.True,bureaucratic and political malingering have already put such powers of the state under a cloud.But the neo-liberal cure cost the country much more.

Hence it was important to uphold the ‘public interest’ in the true sense of the term and prevent the tobogganing of the doctrine into social disaster of unparalleled dimensions.

Likewise the centre-state relations belonged undoubtedly to the ‘basic structure’ of the constitution.It is no secret that these have been grievously eroded by unilateral decisions of the Centre with automatic nod from Parliament.To maintain them is in public interest.But despite urgent pleas by injured states the SC seems to be deferring a decision on this vital issue for long.And it has now become clear that centralisation of power is solely in the interest of global finance and native corporate entities.

I had recently found in Google uploads on a decision by SC that the NHAI was the ‘most competent’ body to decide on questions of public interest in planning alignment of big national highways, which are currently posing the worst threat to the interests of the rural public.Agricultural and homestead land are being rapaciously gobbled up by such projects over protests by rural and tribal people concerned.Or the alignment in some way seriously damaged lives and livelihoods in some way.I tried hard to find in Google-search discussion of the scope of public consultation,but gave up after prolonged attempts to find it.I found only umpteen mentions of compensation and its rates.Even the original news on SC decision on settlement of ‘public interest’ was somehow hard to re-locate.I hope this was no insidious censorship,only an accident.

In the Dima Hasao district of Assam the railways undertook hectic and massive construction of a railway line deep into it on fragile territory,further weakened by reckless tree-felling and excavation.The result has been an enormous mudslide from naked slopes that engulfed Haflong town and left railway tracks in places hanging in the air.Government figures on casualties cannot be trusted.Actually the railways’ own safety commissioners had warned against such construction according to published records.It is glaringly evident that the railways are not the best judge of ‘public interest’.What guarantee is there that the NHAI will be the most qualified judge to decide that in its misadventures?

On the farmers’ movement against the arbitrary and deeply injurious farm bills the SC had appointed a committee to inquire into the rights of the parties.It is notorious that the committee recommended steps that the lakhs of agitating and aggrieved farmers found against their best interests.

Hence we hope and pray that the SC at least look seriously into this matter of utmost importance and clarify its stand beyond doubt.The SC will we hope uphold the constitution in letter and spirit.

Hiren Gohain is a political commentator


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