Socio-Economic Justice Through Legal and Fiscal Measures And Social Control

At the outset, I must confess that I was indeed fascinated on receiving communication from the All India Indo-GDR Law Seminar, for writing a paper on Socio- Economic Justice Through Legal and Fiscal Measures & Social Control. Fond as I am of sports as well as the need for socio-economic justice and law, the very mention of the German Democratic Republic splashed the meteoric rise which this country has attained in the field of sports. It is too well known to require any detailed reference. Suffice it to say that it is sometimes well said that fulfilment of an individual does not as much depend upon the perfection with which he pursues and accomplishes his professional life, as the mode in which he spends his leisure hours and the extra bearings that he has in life. This is too well recognised with regard to institutions, and it is always taken that extra mural activities are as important as the academic, and both go a long way towards proper development of personality. The fact that the people of German Democratic Republic have become a top sports' nation, whose presence pervades in any Olympic or sports meet, speaks volumes of how the people at large have a contented life, and enough time, desire and facilities for devoting themselves to these pasttimes apart from their regular avocations of life. It also reflects how they are free from obsessions of search for food, shelter and job. To no less an extent it brings out that the people there, especially the youth, do not while away their time in frivolities, idleness or mutual strife, bickering and feuds.  It is indeed the equilibrium of mind and body in an individual which enables him to achieve perfection in any field, be that sports or otherwise. That so many individuals have such equilibrium abundantly reflects the equilibrium that must be there in the society at large in which they live.  It has not been without purpose that I have referred to the significance of equilibrium in the individual and society. Law which started taking its shape from times immemorial, had the primary purpose of bringing stability and equilibrium in society. The anarchical state of things, in which "might was right", and the bigger fish devoured the smaller, when deceit and treachery could be allowed to exist as forms of human ingenuity, there naturally had to develop systems which controlled and brought balance to those selfish and destructive pursuits. They started with the protection of individuals from invasion of their rights, both civil and criminal, and as the society developed and civilization progressed, the need for expansion and development in various fields arose. Natural resources of the earth which were available in abundance to the limited human population that existed in the past, were being overtaken by tine explosion of population all around. Those very resources started appearing limited so far as overwhelming part of the people were concerned. That apart, it had so transpired that large resources were monopolised by limited sections of societies. These were the results either of the old concept of "might is right", or that some by their shrewdness of appeasing the authorities that be, obtained favours and possessions. In our own country which unfortunately passed through for considerable time subjugation of foreign invaders and powers, quite 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 interest to those of the foreign powers, special benefits, jagirs, trading facilities etc. were conferred. Could this lop-sided possession of the national resources to the detriment of the people at large continue? The question arose, and does arise, can they be considered in consonance with fairness and reason, which are being now widely and progressively acclaimed as the basis for law?  The term "law" has not to be understood in the narrow technical meaning of what is contained in one enactment or the other. Rather law is symbolised in a person with a bandage on his eyes, holding a balance in perfect equilibrium. The bandage is to enable him to disregard the persons and the personalities who come before him seeking justice, while justice itself is reflected in the equilibrium of the scale. The main purpose of this paper is to lay emphasis on this equilibrium aspect.  The last two centuries have witnessed rapid industrialisation all over the world: In the last century it was termed as industrial revolution. Independence of contract and right to possess property and power, which were being in the past attached considerable sanctity, were found wanting in many respects in the developing needs of society. It could no longer be treated as legitimate that an employer could extract work for as many hours from his employees, and at whatever wages he could get settled. They were begun to be looked at as contracts between unequals. Limitations of minimum wages, specified hours, proper working conditions etc. were introduced. They were plainly inroads into the old concepts of mere contractual relationship or freedom to arrange the affairs. Nobody now questions the progress of law in this direction.  Similarly societies and States which did not consider that they had any obligation to the subject, city and the country were finding it difficult to allow themselves to remain in that indifference and inactivity. Multifarious development activities beneficial for the overall good of the people at large became indispensable for them. The question of resources then cropped up. It could be either by the Ruler or the power that be extracting as much from the subject, or by invasion of other territories and States, and thus filling up the coffers at the cost of others. Sometimes it was associated with the valient, powerful and ambitious character of the Emperor or Dictator, and sometimes attributed to the disarray and weakness of the others. They were also given glorified names, such as the white man's burden.  With the equilibrium gradually finding ground in national lives as well as in the international affairs, the rule of the jungle could no longer prevail, and each country had to look to its resources. Monarchies and despotisms were swept away, and people's democratic rules came in. Only those were entitled to remain in power who carried the confidence and approval of the people, and in this the rule and practice of loot could no longer survive. The system of taxation thus gradually developed and States started looking to them how best they could mobilise their resources.  This taxation in capitalistic system of societies has dual purpose. One as already pointed out, is the mobilisation of national resources of the State for meeting the ever-expanding development activities and the State assistance to the people at large in various fields such as education, medicine, law and order, communications etc. The other, often overlooked, is the removal of vast disparities in incomes and wealth amongst the people. Where means of production are not nationalised and private enterprise is allowed to play its part as well, the tendencies of rich growing richer is always there. One of our saintly poets "Kabir" in the past observed "MAYA KO MAYA MILE", which means that money begets money. How best, therefore, the affluence of some monopolising the national wealth to the detriment of the overwhelming populace can adequately be met without a violent upheaval, and with peaceful means, is by proper and judicious handling of the taxation system. This is one way where profits and wealths over and above those legitimately required, can be rendered ineffective, and the people made to realise that the sophisticated high pricing by the commercial world and disproportionate accumulations by others cannot be allowed to have their full sway. This may as well provide an answer to infectious inflation ruining the economies of most of the developing countries. These observations may appear misplaced as they ostensibly refer to State policies. However, it is in the context of giving effect to these measures where the Courts come in, and nowhere judicial systems fumble more than when it comes to fiscal legislations and economic offences. Not unoftens Judges chosen from affluent members of the Bar who have thrived on big money clientage carry softness towards white collar offences, and subtle lobbies are set into motion to have soft benches in this regard. Quite a number have looked to career posts for their kith and kin with industrial houses. Howsoever emphatic we be that our affairs are governed by law, the individual Judge, his outlook and upbringing no less play a role. It is not rare that occasionally some fall, prey to quest for popularity. A Judge presiding over a Criminal Court is not applauded by a certain sect of people appearing before him, unless he is lavish in bails and acquittals, not caring what repercussion this attitude may have on society at large, and the law and order position. Similarly a Judge on a tax Bench is an eye-sore unless he adopts a benevolent attitude and just smiles over tax evasions, notwithstanding the havoc it may play on the national economy. The barometer of popularity in such cases is confined to the limited circles appearing before him. The overwhelming of the population does not know of that. In Punjab, such a Judge is called "Motian Wala". In our land, there was a time when no immutability was attached to fundamental rights when it came to detentions without trial, for these mostly involved the agitating have-nots who raised stirs to change the status quo and entrenched setups. However, the moment the property rights were involved, and started touching individual pockets including those of Judges, there was an embargo imposed against their violation. Happily that chapter is over.  The pernicious character of parallel economy, with all its evils, political, social and economic are too well known to us. Can we legitimately say that the large untaxed incomes essentially go to industry and trade, and not in vulgar ostentations in marriages, personal lives, construction of houses etc., upsetting the balance in society and setting enviable wrong example to others? How far the palatial or multi-storeyed houses fit in with the multitude of masses living in "shanties”? While some can afford new year dinner spending around Rs. 500/- per head, there are so many others lying shivering on the pavements with hardly any money for the next day's meal. How far this can be tolerated by humane conscience? Can those who shout about human rights primarily as guise for protection of status quo and the propertied classes, have their humane conscience reconciled to this? In several other societies where religious revivalism has been sought to be enacted, (and one wonders if they are not prompted endeavours for reversion to mediaevalism to thwart the progress of "Godless" socialism), can it be said that these disparities fit in with the divine spiritualism that they purport to expound?  Law when grasped in its true equilibrium objective has to be understood in what manner it ensures elementary rights to the people at large. Those human rights, which may as well be termed as fundamental rights cannot be considered in the context of microscopic affluent people who may have already usurped the rights of many others in so far as national resources are concerned. They have not to be understood for maintenance of status quo or for protecting the disparities and inequilibrium which has come in the society by the age-old anarchical state of affairs. In fact, human rights and poverty are incompatible in themselves.  The foremost requirement of a man is to exist. For this existence, he needs food for his belly to be filled so that he can keep his body and soul together. While liberty to speak is no less important, certain priorities have to be maintained. For a poor man this liberty is no more than a cry for his empty stomach. Then comes the necessity for shelter. Still further, the rights for a job to earn livelihood, education and provision for health come. These are the basic human needs which must exist before we can proceed to attain the stage of providing other rights and benefits. In economic laws, there are three stages well recognised. One is of necessities, second of comforts and then of luxuries. The third can come only if the first two are fulfilled, and the second can similarly come when the first are provided for.  A phenomenon which is of quite recent growth and is being considerably noticed in the developing countries is of visits by foreign jurists. The same is certainly welcome and provides fresh winds and a sort of window to the outside world. The theme of some of their speeches is mostly to dilate upon the basic human rights and warning the people of assaults on them by the Governments. They are not sent to countries which are considered as favourable, even though there may be no democratic systems prevailing there and worst types of dictatorial rules or military takeovers exist. They are mostly sent to countries where democracies already exist, but the countries are not ready to play the tune to the powers that be. Recently a learned Judge of a country came and exalted the preservance of fundamental rights, but when questioned why they were not codified in his country, he was constrained to say that they were not wanted there. Another learned Jurist reminded us of striking off of any law which does not withstand the requirements of reason and fairness. A minority view of the Privy Council in an appeal from Malaysia was cited in which the learned Judge had considered the propriety of issuing a mandamus to the ministers to advise the crown to remove emergency or other drastic powers as they were against basic rights, or were not in consonance with reason, fairness and prevailing conditions. Indeed a silver-lining for countries where rule of law and human rights are trampled. However, one wonders if some decades earlier similar mandamus could be mooted to the ministers to advise the crown to free the colonies stretching over ¼th of the world on the ground that they violated human rights, reason and fairness. It was then proudly said that the sun never set on the Empire. My purpose of referring to this is not to minimise the importance of basic and fundamental rights, or ignore that in the developing countries there are sometimes tendencies to ignore or misuse them. It is, however, primarily in the context of the sudden fan-fare given to these rights in some quarters, and that too when it concerns countries or Governments which they consider are not favourably inclined to their interests. One does sincerely hope they are not even remotely meant to create wedge between the judiciary and the popularly elected Governments in those countries.  The subject of equilibrium in law and society is too vast to be dealt with in this short paper, and I have no desire to take more of your time in this regard. I have only highlighted some of the outlines and the basics thereof.

Author Name: Hon’ble Justice D R Khanna