In June 1946, when the last Viceroy of India, Lord Mountbatten, announced the Partition Plan and disclosed a preliminary, district – based, division of Punjab and Bengal, Sir Evan Jenkins, the governor of Punjab, wrote to Mountbatten asking him in polite officialese whether the government had taken leave of its senses.
Making the Ravi river the dividing line between Pakistan and India, he pointed out, would divide the Sikhs almost exactly down the middle. This would unleash bloodshed, on a scale that would be impossible to control. Drawing the line along the Chenab, he urged, would put 95 per cent of the Sikhs in India, and avoid the blood bath.
Mountbatten understood the danger and later tried to minimise the damage. But as for redrawing the line itself, it was too late. The Raj, in its majesty, had taken a decision on the basis of an abstract principle - the separation of Muslim majority from non-majority areas - and no pragmatic second thoughts could be allowed to change its mind.
India and Pakistan are still paying the price for that monumental folly.
'What', my readers will wonder, 'does a 60-year old story have to do with what is happening today?' The answer is that exactly the same inhuman adherence to legal principle is threatening to plunge Delhi into another bloodbath . The culprit this time is the Supreme Court of India.
It gives me no pleasure to say this. For the Supreme Court has evolved over the last decade into the peoples' final defence against the sins of omission of an increasingly dispirited and paralysed administration. But no one is infallible. And on this occasion the court is making a huge mistake.
On November 6, the Supreme Court rode roughshod over the pleas of the Municipal Corporation of Delhi, the Delhi state government and the central government to suspend the sealing of commercial establishments in residential areas. Just how far it strayed from its constitutionally mandated job of interpreting and upholding the law can be judged from the reason it gave for doing so: "None can be permitted", said the court, " to place a dagger on the neck and seek relief. None can be permitted to hold the city, law and order and the law-abiding citizens to ransom and then ask for relief." It was referring to the bandhs that the Delhi traders had organised repeatedly since September.
What the court forgot was that Indians have been signalling the need for change in laws and institutions on the streets and, on occasion, with the gun, since the dawn of Independence. Beginning with the linguistic reorganisation of the Indian states in 1957, there is hardly a single important piece of legislation that has not been a response to public demand expressed through demonstrations or violence.
Deciding when to concede these demands and when to stand firm, falls entirely within the domain of Parliament and the executive. The judiciary has absolutely no business to intervene on any grounds whatever.
By citing the need to resist coercion by the public the Supreme Court has set a dangerous precedent. For example, were India and Pakistan to arrive at a settlement of the Kashmir dispute, it would be perfectly possible for someone to stall its implementation by moving the Court on the grounds that Pakistan had extracted concessions from India 'at the point of a dagger'. Or, to cite an argument that the court has already gotten away with, no state or municipal government would have the right to halt a slum clearance drive because 'no one has the right to force a government to flout its own laws by holding law abiding citizens to ransom'.
What the Supreme Court's narrow focus on law prevents it from understanding is that the relationship between state and society is an elastic and constantly evolving one. Laws reflect that evolution. That is why they have to be amended or annulled, and new ones written, with the passage of time.
This is particularly true of rapidly evolving societies in the throes of market-led development. Such societies spawn new winners and losers, and therefore new conflicts of interest, every year by the score. Even the most prescient government cannot hope to anticipate, and legislate for, all these changes ahead of time. So bribery and corruption (to bend the existing laws), and the eruption of conflict (to signal the need for new laws), are often the first indications of the need for change.
Of nothing is this more true than the Delhi master plan. The 1980 master plan was not finalised till 1996, and judging from the government's attempt to bring out the 2020 master plan in January, the 2000 master plan has been given up altogether. So the laws that the Supreme Court is insisting upon enforcing are based upon a plan drawn up when the Delhi Metropolitan area was a quarter of it's present size.
What is worse, the Supreme Court is not even permitting the Delhi government to update the master plan pending the passing of the 2020 master plan, for it has, in effect, struck down the September 7 notification with which it attempted to do so, and which would have regularised 45,000 establishments and saved up to a quarter of a million jobs, on the grounds that it was doing so under duress. While we can differ on its other forays into the executive domain, there can be no two opinions on this one, for it has placed itself above the Delhi state legislature and, by implication, Parliament as well.
By doing this it has endangered not only Indian democracy but the Indian state. It is time for all parties in Parliament to join hands and eliminate the silences in the Indian Constitution that have allowed it to do so.
* The author, a noted analyst and commentator, is a former editor of the Hindustan Times, The Economic Times and The Financial Express, and a former information adviser to the prime minister of India. He is the author of several books including, The Perilous Road to the Market: The Political Economy of Reform in Russia, India and China, and Kashmir 1947: The Origins of a Dispute, and a regular columnist with several leading publications.
(The author's articles can be read at www.premshankarjha.com)
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articles by Prem Shankar Jha