T C A Srinivasa-Raghavan: Two sides of the same coin

LINE & LENGTH

Thursday's judgment means equity and justice are equally important. That is how politicians should view it.

The Supreme Court's judgment on the Ninth Schedule has put a major spanner in the works of politicians. They will respond aggressively because in an increasingly competitive political environment, the judgment more or less puts a complete stop to irresponsible populism. Why, even the Speaker""who interprets his title distressingly literally but is otherwise a sensible sort of man""appears incensed. How dare they, is the reaction.

But this is not a purely Indian reaction. The world over, and throughout history, at least in properly functioning democracies, the Courts who have to take the long view have come into conflict with the politicians, who are masters of the short term.

In the ensuing skirmishes, the honours have been evenly shared. Sometimes the pols have got their way and sometimes the Courts have prevailed.

The problem is inherent in the democratic condition. Politicians are concerned with equity, real or fake, because that remains the best way to get votes. The Courts, however, are concerned with justice because that is what they are supposed to deliver.

In India, thanks to Indira Gandhi's unprincipled brand of governance, parts of the Supreme Court unfortunately became involved in delivering social equity by interpreting justice in a completely one-sided manner. This should never have been their remit and that this has sometimes happened in the US as well is no justification.

Indira Gandhi made it clear that she wanted judges who would be committed to her and her cause. So an important criterion in the appointment of judges was loyalty and/or ideology. That led to all sorts of distortions in the delivery of justice, especially in regard to property rights, which began to be corrected systematically only after some of the most populist judges had retired.

But even when they were around, there were enough impartial and sensible judges to create doubts in the minds of the politicians. That was the main reason why the Ninth Schedule""which was inserted in an entirely just cause in 1951""became such an important device subsequently for appearing to act for equity even it meant denying justice. It has only one purpose: to prevent courts from challenging laws passed by the legislature.

That enabling provision was grossly misused. The Supreme Court, which is different now from what it used to be, has now made sure that this does not happen again.

The process of getting the Supreme Court out of the equity business started in the early 1990s and it has been going on apace since then. That is what is annoying the politicians so much. They had become used to "cooperative" courts.

In the final analysis, when the legal technicalities about Articles 14, 19 and 21, the basic structure, Keshavananda Bharati, Waman Rao, etc. are taken away, the purport of Thursday's judgment is simply this: we will not allow you, the politicians, to entirely discard justice in the name of equity.

The entire reservations issue is about this only. It pretends to deliver equity because only a few thousands of the creamy layer will benefit from the reservations while denying justice to millions from both the reserved and unreserved categories. The Supreme Court has seen through the game.

It is futile to imagine that our politicians will indulge in, or even pay heed to, some of the conceptual issues that surround the questions of equity and justice. But for what it is worth, let me make a suggestion.

They should not view the problem as an equity vs justice one because that will lead to needless ugliness between Parliament and the judiciary. Instead, they should see it in terms that they can easily comprehend, namely, as a problem of supply from which some of them at least can make money (as the politicians in the South have done in respect of medical and engineering colleges).

When Jawaharlal Nehru got the Ninth schedule introduced into the Constitution in 1951, he was, perhaps unintentionally, only trying to increase the supply of land available for redistribution. This is because the zamindars owned so much land. That is what zamindari abolition was eventually supposed to undo.

However, as P V Narasimha Rao points out in his brilliant political novel, The Insider, this meant injustice to the zamindars, and not just in legal terms. P Chidambaram got closest to what it meant when he said that land was sacred to farmers.

Anyway, back in 1950 the Courts said no, and this made Nehru bring in the Ninth Schedule and Article 31B. But there was a mitigating factor. The zamindars were not being asked to give up access to their land altogether, but only to about one-tenth of it. It was entirely right in those circumstances to say that the Courts were being difficult.

This is patently not the case with reservations. Millions of poor Indians are being asked to give up access altogether. That is why the answer lies in increasing supply, both of jobs and in education. The private sector is the only one that can do it. That will serve the cause of both justice and equity without making one come at the expense of the other.