Law and Development Soviet & Indian Experience

At the outset I must express my pleasure in being invited by the Indian Association of Lawyers for participation in the Third Joint Indo-Soviet Law Seminar. Soviet Union occupies an eminent position in the comity of nations, and has been a valued friend of India. It has stood by us not only in the difficult stages of our national life, but has substantially contributed in the industrial development of the country. However, in spite of that, it is unfortunate that our knowledge of the law, its development and the administration of justice in Soviet Union is too scanty. In fact, we are mostly ignorant of the state of affairs in this regard there. I, therefore, have looked forward while participating in this Seminar for apprising myself of those states of affairs, and in what manner our comparative systems can be of mutual benefit to each other. Â India in its long history had to face a number of invasions from time to time. It had also to undergo subjugation by external powers, and systems alien to us were introduced, though not always hostile. That apart, there were instabilities, overthrowing of regimes and even separate States raising heads in different parts of the country. The result of all this has been that no continuity of coherent system which could be termed as entirely Indian and which could meet the developing problems and requirements of the people has evolved. At the same time, after the unsuccessful 1857 valorous attempt by certain forces in the country to overthrow the expanding power of British in India, and supersession of the British India Company by the British Crown, it became a matter of policy not to touch the personal laws governing the different religious communities of India. Ostensibly it appeared to be a welcome gesture of non-interference in those matters by the foreign power and leaving those personal laws undisturbed. However, this as well resulted in stalemate and the personal" laws becoming static and not responding to the changing times and the needs of the people. The position has substantially continued even after the attaining of the Independence in 1947. Thus although the Constitution of the country envisages that there should be a single civil Code for all the people residing in the country, we are nowhere near the same. The government too has not shown any inclination towards that, labouring as it is under, what I may with humility say, a misplaced conception of secularism. A viewpoint has come to stay that any steps in that direction would affect the rights of the minorities and unless they approve of the same, nothing should be imposed. That in fact amounts to surrendering before non-secular forces. In this process, it is ignored that some of the laws which are highly inequitable to the rights of the women, minors and weaker sections continue to subsist. The mass of people are still not capable of developing independent initiative or thinking, and free themselves from conservatism and religious dogmas under which they have lived and grown. The religious and sectarian leaders in their narrow and vested loyalties would also not allow them to free themselves and seek change. It may not be before a couple of generations that the conventionalism and orthodoxy in this regard gets shaken. Rather in some of the countries where fundamentalism has raised its head, the trend has turned out to be the other way. The effect of this misplaced approach of non-interfering in the personal laws has been that this country has not been able to provide reforms which several countries professing similar religions, have already allowed to their people. Again dowry system continues to remain rampant and has rather acquired far bigger and pernicious dimensions. Â The malady in this regard has not been confined to personal laws only. Indecision, stagnation and an attitude of laissez-faire glaringly subsist in other fields of law as well. The worst victims have been the economic laws. The vested interests here are no less entrenched and hostile to any progressive measures as are the religious dogmatics. The average man himself is too pre-occupied with his struggle for daily bread and butter and lacks initiative, education and foresight. The media would also not enlighten him where his good lies as it is primarily controlled by the vested interests themselves. Â With most of the people the first image that they can recall from childhood of "Law & Justice" is of a person with a bandage on his eyes, holding a balance in his hand in perfect equilibrium, that reflects an image which past thinkers and law givers have passed on to us of what law and justice represents. It is in affirmation of this high image that I propose to develop this paper. Â It is too primitive now to plead that law is primarily what transpires in our courts in the process of settlement of private disputes or bringing to book the law breakers. States and governments also do not exist simply for maintaining internal peace and the protection of borders. What, however, is amazing is that till late forties and beginning of fifties, the first introduction to law students used to be the treaties by Dicey on Jurisprudence and Constitutional Law enunciating inter alia that the primary functions of the State are waging of war and administration of justice. No wonder, therefore, the older generation still dominating the courts and law framers are imbued with that circumscribed facet of law. That is how sometimes it is said that law is a generation behind and some courts not un-often behind by two generations. Â Some of the laws like civil, criminal, revenue, and those on industrial and commercial side have taken rapid strides in recent times. They at the same time, to an extent, still operate in their specialised spheres, be they small or large. There is, however, one law which in many lands and with many people yet remains rudimentary and looked at occasionally with considerable hostility. That is the law of economics. It is the one which touches intimately most of the people and affects materially their very upbringing and life style. It is not of the category which a section of the people in particular avocation of life may like to invoke whenever any dispute or occasion arises. It in spite of that operates and constantly has bearing on the lives of all, right from birth till death. Yet for the betterment of the overwhelming multitude of people for whom it can work, it mostly is elusive and ineffective. They are unaware of its existence or desirability. They still in mute mysticism occasionally stare in awe and helplessness on the non-existence or distortion of it. They remain by-standers like pavement dwellers of a multi-storeyed posh building rising in front of them. They are told to admire them, accept them as normal feature of life and society, and resign to them as inescapable inevitabilities of fate and 'Karma'. Â That apart, there are others who are entrenched in power and vested interests to ensure that this law remains dormant and undeveloped. They are still interested in laissez-faire and let the sleeping dogs lie. For them, its exclusive domain is in market place, industrial growth, foreign exchanges and budgetary implications etc. They still seek to zealously preserve the so-called free economy in which those who have already taken a march far ahead of others do not want to be disturbed. For them the law of jungle, free for all and might is right still remain the rules of the game. What Saint Kabir said "Maya Ko Maya Mile", i.e. money begets money, is a legitimate system astutely to be protected. This is irrespective of whether the earlier accumulations were tainted, fraudulent, result of anti-social and anti-national activities. In our own country which unfortunately passed through enslavement and subjugation of foreign invaders for a considerable time, a large number perished or were rendered in penury because their character and nationalism did not fit in with the powers concerned. To many others who were ready to play the tune and subserve their national and social interests to those of foreign powers, special benefits, jagirs, trading facilities etc. were conferred. Collaborators were allowed to have hay time. The question is whether these ill-gotten and ill-conceived wealths should be allowed to be treated as the base and spring board for further exploits in the so-called free economy. Men born with silver spoons and accumulations of ill-gotten money are at premium. In this lopsided state of affairs they are sought to be equated with the persons having no start in life or base in this free economy. In our own budget of this year, the legislative wisdom has thought of completely abolishing estate duty. Would that not further feed the silver spoon psychosis? Would that not strike at the root of the progressive thinking that a man heed earn in his lifetime what he needs during that life and leave a limited estate for his children, and if he does have more, the same should enure for the society? Â The question is whether this system of allowing some to start the life with such advantage over the mass of people is fair and equitable by any economic laws? Can this be termed as just competition and freedom of trade? Does it answer the equilibrium aspect of laws and administration of justice? Â We talk of rule of law. It enjoins acting according to law and set rules. It as well entails equality before law and equal treatment to all, be they privileged or unprivileged, haves or have-not etc. Why then ignore and bye-pass this vital rule when it comes to economic laws? Why in their operation, unfettered freedom, imbalances and unbound privileges are permitted as legitimate? Why is it that here the best exponents of the rule of law flounder? Is it because it starts touching their pockets or they become timid to challenge the entrenched vested interests? The equilibrium aspect necessarily implies equal dispensation of economic resources and the start in life, and this is where the confrontation between law and unbridled capitalism comes. Economic disparities then start appearing as manifest violation of this vital tenet of economic laws. The equilibrium finds rudely shaken. The very confidence and belief of the common man in its justness then gets eroded and frustration and disillusionment descends. As Nehru said : "Rule and Law must run close to Rule of life, and it cannot remain divorced from socio-economic realities of the country. It must respond to just and egalitarian society." Â It is at this stage that the relevance of socialism emerges. It enters to restore the equilibrium, that equality before the law, and demands the observance of rule of law. It seeks fair distribution of wealth and resources. It strikes to pull down lop-sided imbalances. It restores to average mass of people, dignity of self and law which is so closely linked with freedom from want and hunger. It is as such that study of socialism becomes indispensable in economic laws, and once these economic laws are treated as vital part of the overall law, their study in legal jurisprudence cannot be avoided. Â So far as developed countries which have already taken a good march in economic and social fields, the average mass of people do not have to face that much lack of equilibrium. Fairly good opportunities get available for striding ahead, though vest disparities do stare there too. Capitalistic system has no doubt made mark in several fields. There is much to imbibe from them. However, for developing countries which have lagged behind for so long, collective utilisation of expertise and resources has acquired added significance. The mass of people who are still emerging from ignorance, acute poverty, over-population, lack of resources and absence of technical know-how have to be provided protection from economic imbalances. Â Before concluding, I may say that equilibrium in economic affairs is not a creed of foreign import so far as India is concerned. One of the foremost prayers in the Vedas is of 'Sarve Bhavantu Sukhina Sarve Santu Niramaya', seeking good and prosperity of all. A joint Hindu family was itself a mini socialism where earnings of members, small or large, were all accumulated and then utilised for the common benefit of all. It was in true sense from each according to his ability and to each according to his need. Â Â

Author Name: Hon’ble Justice D R Khanna