Socialism for the Superannuated : A Critique of Nakara

The year 1982 witnessed two valiant attempts by the Supreme Court of India to articulate a constitutional conception of 'socialism', now mandated, by the emergency amendment to the Preamble and the emergency elaboration of it in the three new Directive Principles of the State Policy — Articles 39A, 43A and 48A. In Ramkrishnan, the majority sought to give effect to worker participation in industry by giving workers a modest locus standi to be heard in a winding up proceeding (National Textile Worker's Union v. Ram Krishnan AIR 1983 SC 75). In the process, the Court articulated the conception of labour in a socialist constitutional setting (See U. Baxi, "Pre. Marxist Socialism and Supreme Court" in 1983 (2) SCC (Journal) forth-coming). In Nakara AIR 1983 SC 130 Five Justices, including the Chief Justice of India signed a unanimous opinion elucidating the notion of 'socialism' as the basis of their decision Nakara is probably the first decision of the Supreme Court expressing collective judicial exposition of what 'socialism' conveys to the Court, not just as a rhetorical framework but as the core basis for the decision itself. Those who criticize social action litigation before the supreme Court should realize yet once again — Nakara was a petition brought by the Common Cause, a Delhi-based social action group — the tremendously innovative constitutional jurisprudence which it is capable of creating1 Nakara not merely reiterates locus standi of "non-political, non-profit... voluntary organization" consisting of "public spirited citizen... ventilating legitimate public problem" (AIR 1983 SC 130 at p. 149), it also illustrates the fact that standing and justiciability are not always to be kept conceptually and operationally apart or distinct. In Nakara conferral of standing is enough to lead the Court to recognize and uphold the rights of millions of Indian Government pensioners, both in civil service and in the armed forces.  The decision is significant at the technical legal level as well for at. least three distinct but related reasons. First, it voids a part of the notification restricting enhanced pension benefits to those in service on 31 March 1979 and retiring on or after that date as violating Article 14 both as involving unreasonable classification and as being arbitrary regardless of the doctrine of classification. Second, it secures for pensions a constitutional basis, removing them from the area of executive largess. Third it sets at rest, and beyond all doubts, the argument that "severance always cuts down the scope, never enlarges it" (AIR 1983 SC 130 at p. 147). Charmingly, Justice D. A. Desai, who wrote the opinion of the Court disclaims that in doing all this the Court is "legislating". (Ibid) .  II From 1947 to 1979, members of the Union civil service and of the armed forces received pension at the rate calculated by the First Central Pay Commission: 1/80 of the emoluments for each year of service, subject to a limit of 35/80 with a ceiling of. Rs. 8100 per year, thus yielding a maximum pension of Rs. 675 per month. The Administrative Reforms Commission realized the inadequacy of this formulation in 1969 in view of the high cost of living and low rate of savings and recommended that the quantum of pension be raised to 3/6 of the emoluments of the last three years of service and the ceiling be raised to Rs. 1000 per month. It was only in May 1979 that the Government issued notifications amending the pension rates accordingly. But even then it restricted the benefits to those who were in service on March 31, 1979 or were to retire on or after that date. Apparently, the Government chose this date prospectively because it felt that any retrospective amendment going back to 1972 (the year of the Central Civil Service (Pensions) Rules) would involve costs to the order of Rs. 232 crores. The petitioners challenged only one element of executive legislation: the cut-off date for the operation of the liberalized pension rales. The Union argued that the cut-off date was an integral part of the legislation. If the petitioners were to succeed, there may not remain any liberalized pensions scheme at all.  It is astonishing but true that in devising this sort of scheme the bureaucracy was acting against its own "class" interests! If prospective liberalization of pension were to be accepted as a constitutionally permissible norm, those who drafted and approved the impugned rules were making it possible for the State in the future to deprive them, without principle, of just benefits arising from on revision of superannuation benefits. The bureaucrats, who shaped this executive legislation, also did not seem to realize the harsh fact that pension benefits were being revised almost after three and half decades! The bureaucratic behaviour is a little hard to understand, except on the strange notion that those who framed these rules had a spirit of self-sacrifice and socialism paramount in them!  Equally striking is the fact that the State which usually denounces the judi-ciary, and especially the Supreme Court for allegedly frustrating progressive measures directed to fulfil the Directive Principles, was here thwarting the letter and spirit of Article 41 which enjoins it to make "effective provision for securing... public assistance in ... old age, sickness and disablement, and in other cases of undeserved want". And it was left for a determined Division Bench to ensure that State did just that. Not merely did the Government try to defend the writ petition. When it failed, it filed a review petition which was summarily rejected. In other words, the State in this litigation adopted a purely utilitarian approach: it would not maximize general happiness to divert Rs. 232 crores (on its calculation: Justice Desai reduces it to Rs. 51 crores) to the benefit of those who had superannuated before 31st March 1979; the costs of so benefiting them would be higher than the social gains! Every relevant bit of the Constitution was sought to be laid aside by this ruthless utilitarian "logic" the word "socialism" in the Preamble, Article 41 and even Article 14!  Nakara is a reminder to such an executive that the letter and the spirit of the Constitution is to be taken seriously even in cases of old people who are scattered throughout the country, who lack muscle power, who lack also a 'political will' to fight injustices and many of whom are the guests of life and resigned to the hereafter. Nakara extends, through social action litigation, the constitutional karuna (compassion) so far extended to other vulnerable groups — women, children, prisoners, slaves (euphemistically still called 'bonded labour'), untouchables and adivasis, Nakara constitutes the very first Article in Constitutional Charter of Rights of the Aged. And the fact that it is written by Justices, all past the age of sixty, adds a peculiar poignancy to it all.  III The coup de grace in Nakara comes about by endowing pension benefits a distinct constitutioanl base. Although the Court in rejecting the notion that pension is a "bounty" or "a matter of grace" seems to impart to it a character of statutory vested right, arising from the 1972 Rules, the decision actually goes much further (AIR 1983 SC 130 at p. 138). It recognizes that pension is a payment for "services rendered (Ibid); and as such it is a "liability incurred and has to be provided in the budget" (AIR 1983 SC 130 at p. 143). The rationale for pension is much wider than provided by a statutory right or deferred wages. Pension is. in essence, a "social welfare measure" designed to do socio-economic, justice to those who in the hay day of their life ceaselessly toiled for the employer on an assurance that they in their old age would not be left in lurch" (AIR 1983 SC 130 at p. 138).  This "assurance" is not contractual in nature at all. Rather, it arises from the Constitution itself. Articles 38 (1), 39 (d), 39 (e), 41 and 43 (3) all enjoin entitlement to pensionary benefits. These Directive Principles provide the "touchstone" in assessing the validity of legislative and administrative action (AIR 1980 SC 130 at p, 140).  Not merely this. The Preamble which is "the floodlight illuminating the path to be pursued by the State" (AIR 1983 SC 130 at p. 139) now expresses the high ideal of socialism. And the "principal aim of socialist State is to eliminate inequality in income and status and standards of life" (Ibid). The "basic framework of socialism is to provide a decent standard Of life to the working people and especially economic security from the cradle to the grave" (Ibid).  Those towards the grave are the superannuated among others. For these people, socialism "aims at providing an economic security meaning a "reasonbly decent standard of life, medical aid, freedom from want, freedom from fear, and the enjoyable leisure, relieving the boredom and humility of dependence in old age" (Ibid), Justice Desai observes stirringly. ,  It was such a socialist State which the Preamble directs the centres of power Legislative, Executive and the Judiciary to set up, From a wholly feudal society to a vibrant throbbing socialist welfare society is a long march but during this long journey to the fulfilment of the goal every state action whenever taken must be directed, and must be so interpreted, as to take society one step towards the goal (Ibid). "Socio-economic justice" from now on takes a new colour: the colour of socialism, The new social morality, Informing socio-economic justice, expresses "abhorrence for economic exploitation" (AIR 1983 SC 130 at p. 142). Equality in status and income is coupled with an abhorrence for economic exploitation in the Supreme Court's conception of constitutional socialism.  The right to just pension thus inheres in the Constitution, although the Court does not categorically thus declare it It cannot be otherwise in a Constitution which declares itself socialistic in its Preamble, Gone, thank Almighty, (if there indeed be one.') are the days when the Preamble was to be looked at only if lawyers and judges agreed to resolve an ambiguity in the words and meanings of a statute or the Constitution, Nakara demonstrates that judicial reasoning must start with the Preamble ("the floodlight") and reinterpret even those words and concepts which have otherwise clear legal or constitutional meaning. After 1976, we are a socialist republic, and the Preamble explicitly tells us so. Whatever may have been the constitutional status of pensionary rights before 1976, they now stem from the Constitution and the new conception of socialism articulated in it.  It matters little how we describe this constitutional right to pension. To my mind, as expounded, it comes close to being a fundamental right; to others it may appear to be a constitutional right simpliciter. Either way it cannot be denied and as long as social action litigation is allowed to survive the writ process would remain available in either case to show violation.  The legalists amidst us may want to read the judgment as saying less than it actually says. They might wish to read it to say that the decision merely enlarges the notion of pension as a statutory vested right; pension is now construed as deferred wages as well as a social welfare and security measure. They would deny that the judgment goes any further to recognize or endow the superannuated masses with any constitutional right, fundamental or otherwise. Unfortunately for the legalists. Justice Desai takes good care (with his brethren actually signing the judgment without a demur) to make the Preamble "socialism" the very basis of the operative decision. Article 14 is violated, His Lordship insists, by the cut off date because of Sis arbitrariness; and the arbitrariness arises straight from the judicial acceptance of socialistic goals of the Constitution-economic equality and abhorrence for economic exploitation, Remove this plank and you may be able to justify prospective liberalization of pensionary benefits, even if this may savour of inequality and exploitation, The difficulty is that socialism is writ so large in the Constitution (and the judgment interpreting it afresh) that only official censorship, not private censorship of the legalists, can remove from view socialism as the operative basis of the decision itself, I hail this, unrhetorically, as a magnificent achievement and salute the Court.  IV The legalist may then fall back and say that the Court has in fact invoked the good old doctrine of unreasonable classification to void the cut-off data, The Court does, indeed, at the outlet formulate the issue in the 'classification' terms; it asks whether the date of retirement is a valid "criterion of classification and whether this "too microscopic" classification (since, logically, those who retire every month may form a class by themselves) is to be "upheld for any purpose"? (AIR 1983 SC 130 at p. 133)  Clearly, the liberalized pension scheme did not offer the "too microscopic" classification. All that it did was to classify pensioners into two classes; those eligible to it before the cut-off date and those eligible after the cut-off date. Both classes remained eligible for pension but at different rates. Two distinct schemes operated for the two different groups. Of course, such an approach to classification did carry the logical term of "too microscopic classification", of creating twelve different classes per each month among people who retired at the end of every month. But this situation was strictly not before the Court and could not ever come before it, unless the civil service unions or the Government itself were to go crazy.  The Court accepts the proposition that "whenever a date is chosen, or eligibility criteria which divides the class" are delineated, and the "purpose of choice" is related to the "objects sought to be achieved", it must be accepted as valid (AIR 1983 SC 130 at p. 146). What is more, it goes further to say that "even if no particular reason is forthcoming for the choice, unless it is shown to be capricious or whimsical the choice of the date may be accepted": caprice or whim would only arise if the petitioner could show, or if the Court is satisfied, that the choice of date is "wholly divorced from the object sought to be achieved by the impugned action" (Ibid).  The Nakara scheme had the object of liberalizing pensionary benefits. The cutoff date was designed to limit the financial burden of the State. The State obviously proceeded on the basis that India is too poor a country to provide its employees with a living wage. If so, how can it provide it upon retirement? (AIR 1983 SC 130 at p. 137. And note the numerous anecdotes disposing this judgment). Therefore, classification was reasonable. If it was held otherwise, the State seemed to suggest (or ought to have suggested, since the judgment laments repeatedly that no proper arguments were forthcoming on this score), the future liberalization of pensionary benefits would be impossible as it would make exorbitant demands on the State exchequer. The only rational basis for a State in a developing society was to resort to classification.  Why would such classification be ex facie capricious and whimsical? Although the Court says that it more or less, is, it in actual result accepts the classification on a reduced scale.' On the one hand, the Court insists that the classification is unreasonable because "a fortuitous circumstance of retiring a day earlier or a day later will permit totally unequal treatment" (AIR 1983 SC 130 at P. 142) in award of pensionary benefits: a "48 hours difference in matter of retirement would have a traumatic effect" [Ibid]. If liberalization of such benefits was to provide economic security "to those who have rendered unto society what they were capable of doing when they were fully equipped with their mental and physical process" (AIR 1983 SC 130 at p. 139), then the classification is surely unreasonable.  On the other hand, if the cut-off date is thus invalid it should be so for all practical purposes. Not so. The Court holds that the cut-off date holds valid in the sense that all those who retired before the date will be only prospectively eligible for the new benefits. Until March 31, 1979 or April 1, 1979 they will be paid pension according to old computation; from the cut-off date their pensions will be computed on new bases. No arrears are to be paid.  So, in the end. while it is not open to the State to fragment the "homogeneous" class of pensioners by fixing arbitrary dates, it is open to the Court to fragment it. The State's fragmentation results in an "artificial division" which "stares in the face" as unprincipled action (AIR 1983 SC 130 at p. 142); the Court's fragmentation does not! What the State did was to differentiate between two eligible classes for the granting of liberalized pensionary rights, one eligible for it and other ineligible. What the Court achieves is to treat the entire class of pensioners as eligible; but while one class is eligible for the full benefit of liberalized pension rights the other is less so eligible.  And the arguments by the Court here succumb, more or less, to the crass utilitarian logic of the State. The prospec-tivity for those old pensioners will not cost the exchequer too much: only Rupees 51/- crores as against the much apprehended Rs. 233/- crores. The Court also notes that since the emoluments of Central Government employees have not been revised since the Third Pay Commission, prospectivity will only marginally enhance the cost; moreover, the bulk of pensioners come from "lower echelons of services such as Peon, L. D. C., U. D C., Assistant etc". Neither are the statistics of costs thus involved "frightening" nor is the liability "staggering" (AIR 1983 SC 130 at p. 149). And, somewhat callously, the Court adds that even the figure of Rs. 51/- crores assumes that "every pensioner has survived till date and will continue to survive" [Ibid]. The time it took for the Court to render the judgment saw pensioners dead.  Given the socialist purpose of providing economic security to the superannuated, the cut-off date was either logically valid or void. Either all pensioners were eligible for revised liberal pension benefits or a sub-class only was so eligible. And if all were eligible, neither law, logic or socialist policy justified making some of the pensioners ineligible for retrospective benefits from 1973 to 1979.  Why then did the Court deviate from the consequences of its own reasoning on this vital aspect? One may infer, with respect, that had Justice Desai gone this far, the judgment may have been altogether different: while he would have had total support of Justice Chinnappa Reddy, neither Chief Justice Chandrachud nor Justice V. D. Tulzapurkur would have supported his position. In that event Justice Baharul Islam would have held a pivotal position. Even if he had agreed with Justice Desai, the majestic force of socialism rediscovered would have been reduced, in the face of cogently articulated dissent by Chief Justice Chandrachud and Justice Tulzapurkar. Such a judgment may also have been exposed to a review by a larger bench. Perhaps, good "logic" was thus surrendered in the march forward to constitutional socialism, though at the expense not just of principle but of people (pensioners). This constraint of collectivity may have been accompanied by an apprehension that giving full retrospectivity to the liberalized pension scheme may, in the future lead to a situation in which the State may refuse to increase pension benefits, on the ground that the Supreme Court stance made it financially prohibitive for it to do so. The apprehension could have been genuinely held. A curious situation but nevertheless not improbable where a legitimate socialist interpretation of the Constitution would have paved way for economic inequality and exploitation.' By limiting financial burden from the cut-off date, Justice Desai has made it difficult for the State to justify total exclusion of a sub-class of pensioners from liberalized pension schemes in the future. As His Lordship himself expresses it, Article 14 does not mandate a "take it or leave it" approach; it rather sanctions the removal of the "nefarious unconstitutional part" and retention of "beneficial portion" (AIR 1983 SC 130 at p. 144). And the Court here devises techniques of converting what is inherently "nefarious" into "beneficial".  The great aphorism by Justice Oliver Wendell Holmes that the life of law is not logic but experience2 thus comes alive in Nakara. In the Indian context, one needs to modify it but slightly: "The life of law is not good logic but bad experience". Or to put it another way, and in Justice Desai's own ringing words: "To be pragmatic is not to be unconstitutional"3.  V Nakara thus illustrates the pleasures and perils of doing socialistic justice through a Court not all of whose Justices fully appreciate the qualitative changes brought about in the constitutional conception of socialism by the Forty-Second Amendment. Step by step, judicial consensus on this conception, not as rhetoric but as in instrument of interpretative power has to be developed. A virile constitutional conception of socialism has to be thus developed within the bounds of a fragile judicial consensus.  This is perhaps the reason why both Justices Desai and Chinnappa Reddy proclaim the constitutional socialism of India to be a blend of "Marxism and Gandhism, leaning heavily towards Gandhian socialism" (AIR 1983 SC 130 at p. 139). As avowed socialists, one cannot imagine that either of these distinguished Justices seriously believe that there exists such a thing as a full-fledged Gandhian "socialism" or that if it exists it finds mention anywhere in the Constitution, excepting in Articles 17 and 23 which by abolishing untouchability and slavery at least seek ,to remove the most insidious forms of dehumanization characterizing the Indian society. Beyond this there is no trace whatever of the so-called Gandhian socialism in the text of the Constitution, There is, if it is to be regarded in the first place as being socialistic, no Directive Principle enjoining the State to endeavour to promote trusteeship or community ownership in decentralied political communities (the little Ram Rajjyas).  Indeed, if there is a corpus of thought justly called Gandhian socialism, it would be different from what these distinguished Justices say it is, Gandhi did not so much advocate "economic equality and equitable distribution of income" [Ibid]. He rejected the model of advanced industrial society which breeds consumerism, pollution and dehumaniza-tion through technology and market. He preached austerity and minimization of wants and needs. He advocated individual and collective self-reliance as economic and civic virtues and preferred a minimal state. He did not preach any "ism", even "socialism" (one would be tempted to say, least of all "socialism"4.  There is no trace, should we want to call it socialism, of any of these elements of Gandhian ideology in the text of the Constitution.  What one instead finds is a mature movement in the Constitutional conception of socialism from the Fabian to Marxist socialism. The rectification of the Preamble by the Forty-Second Amendment was accompanied by at least two genuinely socialist Directive Principles. Directive 39-A now requires that the State secure that the "operation of the legal system promotes justice, on a basis of equal opportunity" and Article 43-A enjoins the State to "secure participation of workers in management of undertakings, establishments or other organizations engaged in any industry".  Both these new Directives recognize that a higher phase of socialism is necessary than the one crystallized in parts III and IV of the Constitution. The original Article 39 (b) and (c) talked of redistribution of community resources so as to subserve the 'common good and avoid 'common detriment', both utilitarian conceptions.5  Nationalization of resources is clearly a first step towards socialism. But nationnalization without worker participation in management amounts merely to state capitalism. Marxist socialism prescribes not merely nationalization but socialization of the means of production (See N. Populantzas, State, Power, Socialism 174-176 (1978). It is this important next step which one finds in the new Directive 43-A.  Similarly, the formulation in Art. 38 (1) directing the state to promote a "social order in which justice, social, economic and political shall inform all the institutions of national life" merely provided a somewhat elaborate footnote to the Preamble. While that was a necessary aspirational proclamation, the new Directive now categorically concertizes the meaning of the Preamble and Article 38 (1) by requiring the State to "secure that the operation of the legal system promotes justice, on a basis of equal opportunity... and to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities". The meaning is clear enough. We have deliberately avoided mentioning the reference to legal aid in this Article, as we think that the Article is charged with more fundamental constitutional significance. This Article stipulates that the legal system shall from now on act, as and when necessary, in favour of the dominated classes and against dominating classes. A systematic class bias towards socialist justice is the. aspiration reflected in this provision.  Much the same could be said of the Fundamental Duties, also added by the Forty Second Amendment. It is possible, for example, to so Bead the history of our national struggle for independence as to cast on lawyers, legislators and judges the duty under Article 51-A (b) "to cherish and follow the noble ideals which inspired our national struggle for freedom" and to develop a truly socialistic jurisprudence, since the Marxian and non-marxian variant of socialism was clearly one of the "noble ideals" inscribed on this struggle.6  In other words, Nakara errs too much on the safe side when it rolls up Gandhian and Marxist socialism and accentuates the virtually non-existent Gandhian socialism elements in the Constitution. Not so much "economic equality and equitable distribution of income", important as these undoubtedly are, but rather abhorrence towards any form of exploitation should fashion the fighting faith of Indian socialist jurisprudence in its nascent stage. For, exploitation does involve inequalities but it involves more. It involves rapacious feudal loot and plunder and institutionalized capitalistic violence posing issues not just of equality in the narrow economic sense but of survival, dignity and liberty.7  The 'Founding Fathers'7 (This is a standard male Chauvanist expression; hence, the quotes) of the Constitution exposed to Marxist socialism gave way to socialism of Sidney and Beatrice Webb in the formulation of the Constitution — indeed to a point that Sir Ivor Jennings was justified in remarking that their ghosts stalk through Part IV of the Constitution (Sir I, Jennings, "some Characterstics of the Indian Constitution 31 (1953). Also see Austin and Baxi Supra Note 6). Nowhere excepting Article 23 does the conception of exploitation feature in the original text of the Constitution, nor that of worker participation. The Justices of the Supreme Court entrusted with the responsibility of making and remaking the Indian Constitution of the future (and I continue to believe that the Supreme Court has constituent power and has been rightly described as a "continuous Constituent Assembly in Session"8 have they need not be so eclectic, especially when the whole world has saluted Karl Marx this year as the authentic exponent of socialism at his death centenary. Even the socialism for the superannuated has to be explicitly informed by the profound Marxist vision and legacy. Â

Author Name: Upendra Baxi