Judges must not lose sleep over such matters

(First appeared in The Pioneer dated  September 19, 2012)

RAJESH SINGH

It is not often that the Chief Justice of India takes swipes at sitting judges of the Supreme Court over verdicts they have passed. So, when Chief Justice of India SH Kapadia remarked recently at a function that “judges must apply the principle of enforceability before propounding legal principles and passing orders”, the statement generated a great amount of buzz. He was referring to a ruling by Justice BS Chauhan that fundamental rights also included the ‘right to sleep’. Justice Chauhan and Justice Swatanter Kumar formed a two-judge bench which in its verdict on February 23 had slammed Delhi Police for its brutal midnight action against followers of Baba Ramdev who had gathered at Ramlila Maidan in Delhi. Justice Chauhan had said that a citizen had the right to sound sleep because sleep is fundamental to life.
While not criticising the judge’s interpretation that the right of a citizen to sleep is part of his fundamental rights, Chief Justice Kapadia nevertheless said, “Right to privacy had been made a fundamental right. Now we hear that right to sleep is also a fundamental right… If we lay down a policy and the Government says it cannot implement it, can we enforce it by resorting to contempt jurisdiction?” In making those remarks, the Chief Justice has re-opened a debate on the extent to which the scope of the ‘right to life’ and ‘personal liberty’ as enshrined in Article 21 of the Constitution can be expanded. The matter of enforceability flows from that widening canvas, because the larger and more broadbased the ‘right to life’ gets, the more difficult it can become for the new interpretations to be implemented effectively.
Interestingly, much the same apprehensions that Chief Justice Kapadia has expressed now were raised by former Union Minister, commentator and author Arun Shourie more than a decade ago in his book, Courts and their Judgments. In the chapter titled, From “life” to “life with dignity” to the pay if Imams, Mr Shourie writes, “…If orders are of such sweep that they cannot be implemented, or if no one seriously follows them up to ensure that they are implemented, the orders will boomerang on those who gave them.” It is almost as if the author is referring to the February 23, 2012, ruling on the ‘right to sleep’. In any case, his observations indeed were in the context of the growing ambit of the ‘right to life’.
It is true that the Supreme Court has been constantly expanding the reach of fundamental rights, but as Chief Justice Kapadia has pointed out, such expansion must always and necessarily connect to the core constitutional philosophy of Article 21. Any deviation from that principle is bound to result in verdicts that are not just non-enforceable but also legally suspect. In the present case, for instance, what about the right of the homeless to sleep on pavements or in public places? Justice Chauhan has said that such acts did not have the cover of the fundamental right to sleep. The question is: If indeed the ‘right to sleep’ is a fundamental right, why should the homeless — who deserve the right as much if not more than the better-off — be deprived of a sound sleep wherever they can afford to do so? Such tricky issues lay bare the difficulty of enforceability that both Chief Justice Kapadia and Mr Shourie have referred to.
Eight years ago, the Supreme Court ruled on the legal enforcement of the ‘right to food’ as a fundamental right under Article 21. In response to a petition by the People’s Union for Civil Liberties, the apex court in various interim orders on a host of public welfare schemes related to food such as the Mid-day Meals Scheme and the Antyodya Anna Yojana said that the ‘right to food’ and the ‘right to nutritious food’ are the fundamental rights of every citizen of the country. While there is nothing disputable about this contention, the fact of the matter is that the sweeping scope of this verdict, even if interim, has made it difficult for authorities to enforce this. This is despite the various panels that the apex court has set up to monitor the implementation of its elaborate orders.
The race to expand the meaning of Article 21 has its origin to a large extent in the Kharag Singh versus State of UP case. Mr Shourie quotes in his book from the ruling of the Supreme Court in that case to demonstrate how suddenly the meaning of life and personal liberty acquired larger and even larger proportions. To begin with, Article 21 says, “No person shall be deprived of his life and personal liberty except according to procedure established by law”. In the Kharag Singh case, Mr Shourie says, the judges held that personal liberty as in Article 21 is used as a “compendious term to include within itself all the varieties of rights which go to make up the personal liberties of man other than those within the several clauses of Article 19 (1).”
The author then goes on to say that soon after, ‘speedy trial of cases’ came to be added to the scope of Article 21. It did not end there; a succession of judgements — right to a protected (clean and eco-friendly) environment, right against solitary confinement, right against delayed execution, right against public hanging, and also the right to expeditious police investigation — emphatically enlarged and gave a brand new interpretation to the matter of fundamental rights as envisioned under Article 21.
But if we look back dispassionately and study the situation, very few of these rulings have been effective in practice. For example, speedy trials are still a chimera and delayed executions (especially of terrorists) are the norm.
Similarly, while dealing with the Unnikrishnan case of the early 1990s, the Supreme Court had opined, “Though right to education is not stated expressly as a Fundamental Right, it is implicit in and flows from the right to life guaranteed under Article 21…” This is yet another classic instance of a ruling that not only tested the flexibility of the scope of Article 21 but also came to be observed in breach more often than not. What else can explain the arrival, despite this verdict, of a special Act to serve the purpose — the Right of Children to Free and Compulsory Education Act, better known as the Right to Education Act — which came into force earlier this year? The Act in fact accords primary education a legal status which is on par with the right to life and personal liberty under Article 21.
Clearly, the Supreme Court has over the years come to conclude that it is not just the personal liberty and life that have cover under Article 21, but nearly everything else that is needed for these two to be effectively implemented. In other words, as Mr Shourie remarks in the book, the state has progressively come to be “under a constitutional mandate to provide facilities that are needed for citizens to be able to partake” the new expanded rights. Mr Shourie puts it succinctly when he comments, “From what was intended to protect persons against arbitrary arrest and restraint, against physical coercion by organs of the State, Article 21 has become the device… for requiring the state to provide in effect every thing that would make a person’s life a life of dignity and fulfillment… The point is about liability, about enforceability.” Precisely so.
Thus, we are back to square one. The ‘right to sleep’ is destined to turn out to be as uneforceable a ruling as the many others made by the Supreme Court in the preceding years to enlarge the scope of fundamental rights.

Crafting an alternative history

 

From the Ruins of Empire
By Pankaj Mishra


 RAJESH SINGH

Once in a while comes along a book with whose content you may thoroughly disagree but still relish reading, simply because it offers a compelling intellectual argument. This is one such book. Seventeen years ago, Pankaj Mishra took us on a roller-coaster ride with his delightful Butter Chicken in Ludhiana. If there could be a truly desi book written in English, it was this chronicle of travel in small town India. It had the feel and smell of the country and its people that only the legendary RK Narayan could bring out through his writings. At that point in time, few people would have realised that there lurked in Mishra’s mind an idea that covered a domain larger and more ambitious in scope than the mere idiosyncrasies of small town Indians. Perhaps it did not then, because Mishra went on to craft a novel titled The Romantics and then wrote some more travel pieces. But all of these writings, though vastly different from one another, had a common thread: The eagerness to explore the shifts and twists in the cultural history of people in the course of their socio-political journey. And, that desire has been given full expression in his latest offering.
The author’s determination to re-look at the history of the East by cleansing it of a Western perspective is admirable — though he does claim that his aim in the book is not to replace the “Euro-centric perspective with an equally problematic Asia-centric one”. To attain that he has deftly managed the travels and thoughts of two 19th century Eastern travellers-thinkers: The Persian Jamal-al-Din-al-Afghani and the Chinese Liang Qichao. Both these men of thought had been disillusioned by the imperial powers of that time which had been recklessly stripping countries they had colonised of their wealth. Worse, the imperialists had been rendering body blows to the cultural ethos of these unfortunate nations. The choice of these travellers is not accidental; Mishra has deliberately used them as sutradhars to pursue his belief that such thinkers, marginalised by the rulers and thereby projected as inconsequential, had in fact left a sustained impact on the people and even to some extent determined the course of events that unfolded in the decades to come.
Given the scale of the enterprise that the author has chosen to undertake and the scintillating manner in which he has achieved that, it would not be an exaggeration to say that From the Ruins of Empire is as important a book of our times as the recently published Why Nations Fail by Daron Acemoglu and James Robinson. If the latter takes us into the intricacies of how some countries have become rich while others have lagged behind, seeking pointers from ancient culture to history to governance for the phenomenon, Mishra’s work explores facets left unattended by historians and academics largely because it would be too much of a trouble to question those presumptions and develop cogent arguments against them.
In his many interviews in the wake of the book’s release, the author has emphasised that the time had come for all of us, especially in the East, to emerge from the stranglehold of the Western theory. In a conversation with Belen Fernandez, an author and columnist, Mishra stated that the West had seen Asia “through the narrow perspective of its own strategic and economic interests, leaving unexamined — and unimagined — the collective experiences and subjectivity of Asian peoples.”
Given his vehemence to revisit history in search of the ‘alternative truth’, it comes as a bit of surprise and significant disappointment that, when it comes to India, he should succumb to the very premise that he seeks to demolish. For instance, he deals with the 1857 mutiny in much the same manner that British historians and their Indian counterparts by and large have done. The author believes that the rebellion that almost succeeded had been an “eruption” of an “anti-West xenophobia, often accompanied by a desperate desire to resurrect a fading or lost socio-cultural order”. But surely the mutiny was more than just that; it was an expression of a larger desire among Indians to be masters of their homeland and their destiny. While it is true that the assorted rebels drawn from the west to north were not as well organised or equipped to take on the might of the British, it is also a fact that even with such handicaps they did manage to capture major towns and even Delhi where the Mughal ruler symbolically reigned and headed the revolt. If they could not hold on to those gains, it had to do with their failure to win support from a broader spectrum of the people and the intelligentsia of the time.
A more refreshing perspective, which Mishra would have done well to factor in his book, is offered in Operation Red Lotus. Written by Parag Tope, a descendent of the legendary Tatya Tope who played a stellar role in the mutiny, the book demolishes with new material many established beliefs about the uprising. It can be said that Parag Tope’s opinion is overly subjective, given his family connection. But then, it is no more subjective than those of al-Afghani and Qichao, who had their own reasons to be sore about imperial rule.
The other jarring point in the book is the short shrift that Mishra gives to ‘radical’ freedom-fighter Aurobindo Ghose, who later metamorphosed into a spiritual leader and came to be known as Sri Aurobindo. He does acknowledge Aurobindo’s eminence, but only just, picking some of his sundry quotes like, “Bengalis were drunk with the wine of European civilisation”. It is not a remark that must have made him popular in his home State, and perhaps explains why he has been gently set aside when the country’s history is discussed. Apparently, for the author — like for the British — Sri Aurobindo was a mere footnote in the pages of history, while the likes of Rabindranath Tagore were the central figures. It is true that Tagore influenced the country’s political philosophy immensely, but he had one ‘advantage’ which Sri Aurobindo lacked: A greater acceptability in the West following the Nobel Prize for literature that he won. Suddenly, he was an international figure and had a global platform to propagate his views. Still, it cannot be forgotten — and Mishra ought to have taken it into account — that Aurobindo’s contribution was not merely restricted to political awakening; he showed the path to ‘intellectual spiritualism’. That legacy still lives on in the Auroville Ashram in Puducherry.
Despite these warts, one has to heartily agree with Mishra’s concluding remarks in his book: “The hope that fuels the pursuit of endless economic growth — that billions of consumers in India and China will one day enjoy the lifestyles of Europeans and Americans — is as absurd and dangerous a fantasy as anything dreamt up by Al Qaeda.”