An acquaintance with Victorian literature helps. The Charles Dickens character had summed it up neatly: the law is ďa assĒ. The much discussed judgment of the nationís highest judiciary is comprehensively asinine: it is awfully lacking in symmetry. Strikes, it asserts, are morally, legally and constitutionally impermissible; it does not however say the same thing about lock-outs and closures. What is involved is not just one, but several, fundamental rights, including the apparent infringement of Article 14 of the Indian Constitution. The judgment betrays a reluctance to maintain a balance between the rights and prerogatives of one group of citizens and those of another.
Consider, for example, the predicament faced by a group of farm workers, who are paid less than subsistent wages by their landlords: according to the Supreme Court dictum, they do not have the right to organize themselves into a union and go on strike demanding living wages. The landlords will be justified, the judgment says, to dismiss them. Once they are dismissed and circumstances are such that they are unable to find alternative employment, they will perish. Here we, however, run into the other fundamental right defined by Article 21: ďNo person shall be deprived of his life or personal liberty except according to procedure established by law.Ē This is a tough nut to crack but it can be cracked. The farm workers will be dismissed and refused the right to live as per the judgment of the nationís highest judiciary; therefore their deaths eventuate in a manner which satisfies the proviso of Article 21: ďaccording to procedure established by law.Ē
Unfortunately, a couple of years ago, the Supreme Court itself had decided that saving the lives of starving villagers in Orissa was a responsibility of the state: some irony, in this instance too, the guiding principle must have been the fundamental right to live spelled in the Constitution. Even a country lawyer with rubbishy credentials will be entitled to approach the judiciary on behalf of the dismissed agricultural workers and pray that the lordships might kindly issue a directive to the authorities concerned so that their clients are saved from starvation and death. He will cite the precedent of the Orissa episode and seek equal treatment for the dismissed strikers.
The implications are obvious: any band of workmen going on strike and thereby forfeiting their livelihood will henceforth be the charge of the state. But it will seem somewhat unfair for the judiciary not to suggest how the wherewithal for feeding the huge army of dismissed workers is to be raised. The judgment in regard to the Tamil Nadu government employees, read together with the Orissa directive, should mean that Madam Jayalalithaa will now have to feed indefinitely out of state funds the dismissed employees whom she refuses to take back.
Also take into account another interesting issue. The workers are prohibited to go on collective action to raise their wages. But those whom journalists love to describe as India Incorporated will not be prevented from taking a collective decision to raise their profits by hiking prices. It is the liberal hour, and tenets of market economy disapprove of any attempt to restrain the animal spirit of corporate entreprenuers. The upshot will be a palpable lack of symmetry in the system: the working class and the salariat will be deprived of the right to agitate for higher wages and emoluments.
Prices will however be raised freely every now and then by landlords, industrial employers and businessmen. Real wages will, as a result, decline continuously and could even dip below the level of subsistence for all and sundry. Given these developments, the nationís highest judiciary will perhaps issue an order asking the state to make arrangements so that the entire flock of all and sundry are saved from starvation. It could then be an impossible situation: having obeyed the injunction of the nationís highest judiciary, the authorities might find themselves without sufficient funds to cover George Fernandesís defence budget and Lal Krishna Advaniís security requirements.
The state will hence face the sternest choice: either deliver the people from hunger, or protect the country against external threats and internal subversions. For the government of the day, it will pose a dilemma, compelling it to refer the matter once more to the Supreme Court under Article 143 of the Constitution: let the judiciary decide whether the nation should live while and the country is destroyed, or is it to be this other way round.
One can express sympathy with the nationís highest judiciary which lands itself in such a predicament. Give or take an interval of time, the number of such predicaments can only multiply. They will multiply not just for the judiciary, but for the nationís administration at different levels. For instance, the bottling plant units set up by Coca-Cola and Pepsi-Cola have been shut down in Mumbai by order of the state government, which has not bothered to wait for the decision of New Delhi; these bottling plants are however still functioning in Calcutta, again as per decision of the state government. Whose lead should the rest of the nation follow' Stalwarts of the Vishwa Hindu Parishad are caught by the scruff of their necks and ejected from Bihar; they are allowed to graze in the neighbouring states. A reference could land very soon on the lap of the Supreme Court for arbitrating on which state has been treading the straight and narrow path.
Examples of lack of symmetry are strewn all over. The United Liberation Front of Asom insurgents and other rebel groups have allegedly established training camps in Bhutan as well as in Bangladesh. The Union government, along with some state governments, are vocal about the supposed lack of cooperation on the part of the Bangladesh authorities in dismantling those camps. In contrast, Bhutan, nominally an independent country but in effect little more than New Delhiís vassal state, is equally remiss in the matter, but hardly any admonitions have been addressed to it. Or take Kashmir; it has been granted cellular telephones, but not civil liberties.
Read further on. From time to time, home ministry officials from New Delhi travel south and travel east to advise the state governments on how to crush the nefarious activities of neo-Maoist groups. No such concerted action is noticeable, except on specific occasions, to nab or restrain Comrade Veerappan, the noble ivory robber straddling the Tamil Nadu-Karnataka border. Conceivably, at the root of the differential treatment is the snare of an irresistible syllogism: gentlemen prefer blondes; ivory is blond; gentlemen accordingly nurture an affection for the ivory bandit.
The simpleminded may be befuddled by instances of such and similar anomalies in the public domain. There is however little reason to burden oneself with too much worrying. It is a divided system, divided into classes, castes, clans, sects, ethnic factions, linguistic groups ó and groups divided by time-frames, some flaunting the dazzle of the 21st century, some ensconced in the medieval age, some others proud of their pre-puranic loyalties. It is a frightful mess, and it can only get messier tomorrow and the day after. But that is what the great democratic sovereign socialist republic of India is all about. We all belong to it, we all rebel against it. The nationís judiciary, the Messiah in residence, will be always at work, and it will continue to wade in asymmetry.