Guide2Lawyers.
THE RULE OF LAW AND THE RULE OF 'GOOD' LAW
(Published in 2010 ALL INDIA LAW DIGEST PAGE 147)
“LAWS SHOULD BE LIKE CLOTHES. THEY SHOULD BE MADE TO FIT THE PEOPLE THEY SERVE”--- Clarence Darrow
“A law, to be valid, must be just, fair and reasonable” Supreme Court of India
The rule of law, also called supremacy of law, is a general legal maxim according to which decisions should be made by applying known principles of law without the intervention of discretion in their application. The rule of law, per se does not say anything about the justness of the law. It only deals with the enforcement of the law rather than the principles to be observed while making the law at the first instance.
During the heydays of socialism, laws were made abolishing privy purses, levying income tax at 97%, nationalizing banks and acquiring lands without providing compensation at market rates, prohibiting recovery of private debts, under the garb of rule of law. Whether such laws were just and reasonable or not is an altogether different question. “Property” has become a dirty word today; “liberty” will become a dirty word tomorrow was the prophecy of Nani Palkhivala, which became true during the Emergency. In the recent past though the West Bengal government run by the communist party, acquired lands by paying compensation which was more than the market value, to encourage industries, to generate employment and thereby serve public interest, the public found the law to be unjust, ultimately forcing the state government and Tata‘s NANO Unit to backtrack. However, under the land ceiling laws when land was taken away without paying compensation at market rate, when tenants were declared as owners, without compensating the original owners, there was no such effective protest, only because the landed gentry, who were robbed of the land, were numerically few. In this sense, whether a law is just or unjust, dharmic or otherwise depends upon popular notions, passions and prejudices of the public on the one hand and the law makers on the other, rather than any objectively valid considerations. Till the 1950s the law in India did not consider polygamy unjust or “a dharma”. Remarriage of widows was considered to be a dharma. Temple entry to every Hindu was also not approved by the cannons of dharma.
Mahatma Gandhi was of the opinion that just as there were bad men, there were also bad laws. The individual should have the courage to fight bad laws, he opined. He also made it clear that though his choice was non violence, even violent defiance was better than timid submission. Open defiance, whether violent or non violent, would be successful only if the majority, or the vociferous majority, share the sentiments fuelling defiance. If the need to oppose an unjust law is felt by a minority, as open defiance would not be feasible, they may find moral justification to evade such law, stealthily. Though they face the risk of being discovered, they can legitimately, though not legally, claim a moral correctness in their conduct. Galileo was legally forced to express repentance for his helicon- centric theory, though secretly he justified his stand, which was vindicated, by the Church formally expressing apology in the year 2000 for what it had done to Galileo centuries ago. The American Supreme Court upheld the law supporting slavery, plunging the nation into a civil war that led to the abolition of that practice. Now the Americans have elected a non-white man as their first citizen.
Irome Sharmila is reported to be observing fast for the last eleven years protesting against the Armed Forces (Special Protection Act) but there is no appreciable impact of her sacrifice on the general public or the government.
It is to be noticed that when a law is not in accordance with popular sentiment, though the objects of such law might be commendable from an idealistic view point, such law is usually not enforced but only cashed in. Some fitness experts tell us that if the heartbeat and respiration of a person could be slowed down, the fitness level of such person would increase. Instead of achieving such laudable objects by voluntary effort like yoga and meditation, if a law is made that henceforth no body’s heart should beat beyond a certain number of beats per minute and no body’s respiratory cycles should exceed a certain number per minute, such law will surely be not enforced and will equally be surely cashed in. The inspector appointed to enforce such a law, the prosecutor appointed to prosecute such offenders and the judge who is called upon to decide such cases also fail to comply with such law. The result is corruption. The failure to enforce total Prohibition of alcohol, the dowry prohibition laws and their eventual misuse and the taxation law which expects the ordinary self centered man to become a semi-saint and surrender substantial portion of his income to the society, provide some instances of the society trying to achieve laudable objects like helping the poor, through legislative coercion instead of through manipulation, supplemented by persuasion to make voluntary efforts to abolish such evils.
The violators (or victims?) of such bad or impractical laws develop a guilt complex that prevents them from exposing the misdeeds of corrupt officials and politicians, for fear of retribution by the latter, who promptly retort, “Are you perfect? Haven’t you violated so many laws? First set your house in order before you point your finger at others, or else we will let loose the law to take its course.” Perhaps, such impractical laws are enacted to serve as effective tools to the powerful, to ward off any legitimate criticism and exposure of their misdeeds by good people.
LAW SHOULD REGULATE AND NOT STRANGULATE.
The Law as an instrument of social change has its own limitations. Just as the policeman at the traffic signal merely regulates the natural flow of traffic instead of blocking it completely, a law, if it is good, should only regulate the natural impulses of man such as acquisitiveness, possessiveness, rivalry and love of power. If laws were made to strangulate such powerful impulses, the individual would find moral justifications to circumvent such laws either by stealth or through bribery and in extreme cases by open defiance. Communism failed as it hoped to strangulate and eliminate the first two natural impulses of man namely, acquisitiveness and possessiveness. Now even communist China is forced to amend its constitution to recognize the right to property. The communist countries also experimented with only communism of property and dared not experiment with communism of wives and husbands, suggested by Plato. Even the proletariat is possessive with regard to sexual morality. John Maynard Keynes who was opposed to the method of robbing Peter to pay Paul to build an egalitarian society, preferred the manipulative techniques, such as increasing government spending, if necessary by resorting to deficit finance,(printing money not backed by gold reserve) to achieve universal though not equal prosperity. His prescription was to make use of the aforesaid natural impulses of most men (acquisitiveness and possessiveness) to serve as motive force to achieve the desired social objectives, instead of vainly trying to thwart them. To quote Keynes, “For at least another hundred years we should pretend to ourselves and to this world that foul is fair and fair is foul for, foul is useful, fair is not. Avarice, usury and precaution must be our gods a little longer still.”
If the average man were to become so self less and evolved that he would identify every body’s prosperity with his own, he would cease to be a householder. The laws of economics would become inoperative.
Man conquered nature, not by trying to change the natural laws, but by correctly understanding them and cleverly manipulating them, while obeying them. The electric bulb, the air conditioner, the water heater, the motor car (once a wonder called horse less carriage), the aero plane, the cellular phone, the computer, the television, were made possible by clever manipulation of the natural laws of physics, electricity, thermodynamics, avionics etc. and not by moral preaching or wishful thinking to change them.
Man has a natural impulse to use force but ‘good law `only regulates it and confines it to self-defense of person and property. Man has a strong impulse to enjoy sex but the law regulates it by insisting upon free consent of the partner. Man has an impulse to acquire property but the law regulates the method of doing it by limiting it to purchase under a valid contract, gift, inheritance or adverse possession and absolutely prohibits the purchase of public roads, rivers, ancient monuments and the like in public interest. If the law were to completely block these impulses, it would have miserably failed. The experiment with state ownership of means of production, in practice became ownership by politicians and bureaucrats, resulting in misappropriation of the nation’s wealth, deprivation of incentive to the individual to perform and ultimately led to the fall of communism. Disinvestment by the State has now become the desirable goal. Lok Pal will help in reducing corruption to some extent. But to limit it to negligible levels, the state must privatize economic activities as much as possible. Instead of the government laying the roads, it is better to abolish road tax and invite private companies to lay the roads by investing their own money and permit them to collect tolls from the users to recover the cost and earn a profit so long as the roads are maintained well. By public auction, the company that proposes to charge the lowest rate of toll may be awarded the contract, instead of leaving it to the discretion of officials and politicians to choose the companies. We have all experienced how privatization of telephone services benefited the consumer from all angles. The 2 -G spectrum scam is a result of bad ways of privatizing and not privatization itself.
If the law prescribes severe penalty like death sentence or jail for minor offences like not wearing a helmet or seatbelt, it encourages corruption. (Mercifully there is no such law at present). The unduly severe punishment makes the offender feel that he is deprived of a second chance to reform himself and the society is vindictive. Again if the standard of proof required in a criminal case is low (like accepting the uncorroborated testimony of prosecutrix in a rape case even in the absence of injuries) the scope for either misuse and the resultant need for bribery are greater. When the law prescribes imprisonment and other harsh punishments for acts which do not have mensrea (guilty mind) as for instance, under the prevention of food adulteration act, the accused, who are not aware of the presence of any toxins in the food items ignorantly sold by them, claim a moral justification to bribe all the concerned officials to escape from such harsh punishments, which are prescribed as a public policy without bothering to verify the presence of the guilty mind and the bribe takers also can claim a moral justification for doing substantial justice, by extending the favor of ignoring or misinterpreting the law to save the really innocent. Similarly, when an innocent man is convicted and about to be jailed or hanged, he has a moral justification to bribe or escape from the jailor and save his precious life and liberty, though the law does not approve such conduct. Recently, Aundhati Roy rationalized the bribe paid by a hawker to the traffic constable as it benefited the hawker in making a living and the public in securing goods at lower price than in big shopping malls.
Keeping these broad principles in view let us scan the various laws that have accumulated over a period of time to see whether they should be suitably amended or repealed altogether.
INCOME TAX LAW
There are two kinds of black money. One is earned illegally and hidden from the government and the other is merely hidden from the government to evade income tax, claiming moral justification, though earned through legal means.
Earlier the highest rate of tax in India was ninety seven percent. Clearly, this attempted to thwart the impulse to possess what is lawfully earned. The subsequent reduction of the highest incidence of tax to 30 percent to ensure better compliance is an implied admission that the earlier law was bad and impractical. While the Indian Penal Code, which expressly contains provisions to protect possession and ownership of property did not require major amendments even a century after its enactment, the income tax law and law pertaining to stamp duty on instruments have been subjected to amendments almost every year, on account of their being opposed to natural human instincts. Even the present income tax rate of thirty percent cannot be justified. As Mr. Justice Markandey Katzu pointed out in a recent article published in the Hindu, a person who earns rs.five lakh per annum and a person who earns a hundred crore per annum, are both forced to pay at the same rate. In Singapore and Switzerland the highest income tax is twenty percent. The moral justifications of individuals to violate this law are many. Though the government requires money to maintain a standing army, the police and the judiciary, the individual feels that every citizen of this country enjoys the benefits while tax is extracted only from a few. The benefits of protection to life and property are also highly uncertain. For instance, when a person is murdered the government will not take the responsibility of maintaining his dependants. When property is destroyed, the government does not restore it to the deprived. (This is unlike in Britain where the Prime Minister recently promised to compensate the Asians who sustained loss of property during the recent attacks by the local population) Except government servants, no one else is sure of getting the same income till he dies. Film stars and sports idols enjoy good income only for a short duration. Other professionals and businessmen also work under constant fear of facing increased competition and a possible fall of income in future. The fear is further increased in a country like India where there is no social security like unemployment allowance. Income spent for such legitimate purposes as for constructing or buying even the first house or for repair and remodeling the existing house is not exempted from tax. Income spent for hostel and mess charges for children is not exempt. So also, income spent on Medicare or litigation. (Only the premium on medic aim policies is exempt. If additional expenditure is incurred for treatment above the insured level, no exemption is given). When there is all pervading corruption, there is no guarantee that the taxes realized would be put to proper use.
Utopian dream
Though this idea may appear to be farfetched, bordering on insanity, the aim should be to abolish all taxes, except on those types of expenditure, that the society aims to discourage, but cannot totally ban effectively, such as on tobacco, alcohol, etc The central government may get its income through the printing press method, as gold standard was abandoned long ago for good reasons. (Read the articles The Monetary Policy of the USA by Randall Raus last edited: Thursday, October 23, 2003, Printing money and its prices by PETER S. GOODMAN Published: December 27, 2008 in the New York Times. .Development with Dignity by Amit Bhaduri)The central government may give grants to the state governments, as they cannot be allowed to print money Money is at last recognized as only a lubricant to facilitate the movement of goods and services, as an antidote to the frictional resistance posed by the possessive clutches and inertia of the average man over goods and services... So long as the lubricant does not drown the rest of the machinery, its supply can be increased without any arbitrary limits like the gold standard. It may be relevant to mention here that Amarthya Sen., the Nobel laureate, has pointed out that famines have occurred during the last few decades, not due to a lack of food grains, but due to lack of purchasing power (the lubricant) for the hungry The fear of inflation needs to be addressed, by studying whether inflation depends more on the quantity of money or the velocity of its circulation. If it is established that runaway inflation will surely follow due to an increase in money supply, at least subsistence allowance may be assured to everyone before imposing income tax. (Give when you have and take when you have not- should be the approach- Milton Friedman, the economist and Nobel laureate, called this negative income tax) When the government withdraws from its direct role in economic affairs, its’ requirement for money also gets drastically reduced. The State should be like an umpire leaving the citizens free to play the game as per the rules .That umpire should be the judiciary and not the executive. The government should only provide a safety net like subsistence allowance and Medicare and legal aid to everyone whose income is below a certain level. Bertrand Russell had predicted long ago that with modern techniques of mass production, it is possible to provide basic needs to everyone freely. If such steps are taken, life ceases to be a struggle for existence, but continues, as it ought to, be a striving for excellence. The government should ensure economic survival of the poor through direct income transfer schemes, humorously called vagabonds` wage and not through nationalization of business enterprises and bring communism through the backdoor. The State should be a "helping hand" and not a "grabbing hand". These steps will also provide the moral justification for legal recognition of the right to private property. Otherwise, Nasalizes have a point when they rebel against this right. Why should a starving man respect the property laws when the society does not care to ensure his survival? Whether property is moveable or immoveable, its ultimate source is Nature, which does not endow anybody by birth like Karna who was endowed with natural armor (Kavacha)The trouble with right to property, unlike other rights, is that cannot be enjoyed by all equally. If the entire land is owned by half the population, it means that the other half does not own it and is at the mercy of the propertied class for its accessibility. Just as a bureaucrat or politician misuses his power to gain undue control over ordinary men, the propertied class can compel the have-nots to become their de facto slaves, unless proper checks and balances suggested above are put in place. The followers of Adam Smith argue that in the long run the market will find its own remedy, but Keynes countered saying, “In the long run, we are all dead”. This conflict is similar to Naturopathy, which disapproves use of medicines and surgery and allopathy which thrives on extensive use of both. How to strike a balance between the two is a challenge.
LABOUR LAWS
The Minimum Wages Act is intended to protect the unskilled workers whose bargaining power to secure a just wage is inadequate. This law attempts to strangulate the natural impulse of the employer to hire workers at the least possible cost. He will naturally try to circumvent the law by bribing the inspector and managing to get the consent of the worker to falsely state that he received the minimum wage. When the victim, namely, the worker and the aggressor cooperate, the inspector cannot do much except to collect his mamool. The honest employer who pays the minimum wage is pushed into a disadvantageous position as his cost of hiring Labour increases and his cunning competitor steals a march over him in competitiveness. It is interesting to note that even the Central Government is unable to pay the minimum wages through the Mahatma Gandhi Rural Employment Guarantee Act, resulting in litigation between the activists and the Government.
Instead of such coercive techniques, if manipulative techniques like the direct cash transfer scheme by the state to the needy are implemented, the minimum wages concept will get itself enforced automatically without the need of any inspector and prosecutor. The worker will refuse to work until a decent wage is offered by the employer. The tyranny of the employer becomes a thing of the past. So, Repeal the Minimum Wages Act...
The Factories Act
This act was rightly enacted to look after the safety of the workers. Some objectionable features are there. For instance, if the employer carries out any construction without prior approval of the authorities, even though the construction is made without violating any safety features, the law contemplates imposition of imprisonment or fine up to Rs1 lakh. Unfettered discretion given to the magistrates results in needless anxiety for the owner of the factory and gives scope for judges, lawyers and busy bodies to extract their pound of flesh to exercise the discretion in favor of the so-called offender.
S. 138 of the Negotiable Instruments Act
This provision, prescribing imprisonment if the amount covered by the cheque is not paid after demand notice following the bouncing of a cheque, virtually converted a mere breach of contract into a criminal offence. This is contrary to even the international covenant on human rights which provides that breach of contract should not be punished. This section should be scrapped. Even the Supreme Court expressed its displeasure at this law in a recent judgment. For more detailed treatment of the subject, please see www. Legal Articles Directory-business law-dishonor of cheques.
DOWRY PROHIBITION LAW
This problem of dowry is peculiar to India. It also depends partly on the population ratio. Earlier there was kanyasulkam which extracted a price from the groom to secure a bride. Nowadays it is the other way round. The anti-dowry legislation ignores the role played by the giver of dowry. After all, the giver also calculates the benefits his daughter would get by getting married to the most eligible bachelor. No dowry is given by a rich father to a poor and unemployed graduate though he might be of good character. Though the Dowry Prohibition Act formally declares that the giver also should be punished, this has rarely happened as the giver is sympathized with as a victim instead of a participant in the crime.
This law has always been misused. A mere allegation of harassment, allegedly for dowry, invites arrests, protracted trial and possible conviction, giving scope for the police, the prosecutor, the defense counsel and sometimes even the judge, opportunities to make money.
The remedy is to recognize that if dowry is given voluntarily, it would not be an offence, though it should be kept as a deposit for the benefit of the bride, unless she voluntarily consents, in writing, before the registrar of documents, that it may be invested in some business venture of the husband. A contract to pay dowry may be treated as void as being opposed to public policy, though not an offence. A mere verbal demand for dowry may be treated as mental cruelty, entitling the claim of maintenance and even divorce. It is only when physical torture, resulting in visible injuries, is alleged and proved, criminal liability must follow. If such changes are made, it becomes more difficult to make false allegations of dowry harassment with ulterior motives, while at the same time the society would enforce its revulsion to this practice. If manipulative techniques like providing subsistence allowance to everyone by the state are adopted, the imminent need to get a daughter married so as to transfer the burden of maintenance to the husband, will disappear and the evil of forced dowry extraction will vanish.
THE LAW PERTAINING TO PREVENTION OF ATROCITIES ON SCHEDULED CASTES AND TRIBES
The objectionable feature of this law is to treat a mere verbal abuse in the name of caste as an offence, attracting the provisions of immediate arrest and subsequent incarceration after protracted trial. The potential to misuse this law far outweighs the benefits if any. Creditors are misusing this law to realize their debts. Superior officers are afraid of taking action against their inefficient and corrupt subordinates fearing prosecution under this law. The punishment is disproportionate to the notional pain inflicted by the offender on the depressed classes.
The remedy is to provide only for monetary compensation of Rs 1000 for the first offence, Rs 2000 for the second and Rs 5000 for subsequent offences of this nature. The offense should be bailable and compoundable.
PREVENTION OF CORRUPTION ACT
The bribe giver should not be punished as he is a victim and not the aggressor. Moreover detection of the crime of corruption becomes very difficult when the bribe giver is also punished. The codified law appears to be vague about the liability of the bribe giver. There were conflicting decisions of various high Courts pertaining to this aspect under the Indian Penal Code. After the special act namely The Prevention of Corruption Act replaced the earlier law, the bribe taker and the person who helps in taking the bribe, namely, the middleman, come under the purview of the law. The recent judgment of the Supreme Court is to the effect that the bribe giver, a contractor, who was forced to pay bribe to get his bills sanctioned, could not be treated as an accomplice the bribe taker can compel the giver to offer the bribe while the bribe giver cannot compel the bribe taker to take against his will. At the most, the bribe taker might be tempted by the repeated offers made by the giver. Hence, a rebuttable presumption may be added in the Act, that bribe giver was compelled to give the bribe by the taker, either directly or through a middleman, unless the contrary is proved.
The AP Right to Education Act
This Act has made it mandatory for private schools to secure recognition from the government. It also prescribes minimum salaries to teachers which are far above the market rate (Rs.20, 000 per month) and has even prescribed impossible conditions like the requirement of a certain minimum area to be used as a playground, et cetera. This will give ample scope for inspectors to collect bribes regularly. The protest from the private schools against this law was so much that the government issued a notification postponing the strict implementation of the law for three years. If this law is strictly implemented, the fee to be charged from the parents could go up steeply and admissions to the schools could come down resulting in closure of the schools. As the well-known writer Guru Charan Das wrote, "Don’t treat them like illegal brothels but see them as heroic examples of people solving their own problems. Make them safe from rapacious inspectors. They are the symbols of India's unique economic model----of the nation rising despite the state."
The remedy is to provide for grading of schools depending upon the infrastructure provided by them while making registration of schools optional. This will give a choice to the parents to choose the best school that is within their reach.
Similarly, placing legal restrictions on fees and donations or capitation fee on professional colleges in fields like medicine and engineering, even though such colleges do not get any aid from the government is unrealistic and even counter-productive. This will only encourage the willing parents who are desperate to secure admission for their children, to pay the fee off the record and give them a guilt complex that after all, they are also dishonest. The hue and cry about "commercialization of education," doesn't stand to reason. Is commerce bad? Should hotels be banned as they offer food on commercial terms? Give and take is commerce. Are the colleges which offer degrees and doctorates in commerce immoral? If such artificial restrictions on fees are removed, in the long run, more private investment will pour into education, increasing competition and reducing the tuition fee and probably eliminate capitation fee. Our students are being offered the MBBS course in China and the Ukraine at just Rs.1 lakh per annum. Surely, such colleges must have been run on commercial lines and not with altruistic motive and at the same time have brought down the cost of education. The recent spurt in engineering colleges in Andhra Pradesh following liberalization of the conditions has created a surplus of seats thereby ensuring that everyone gets admission to such professional courses. To maintain the minimum standards, the examination may be conducted either by the government or its approved agencies, before awarding the degrees.
The prejudice against the so-called "donation colleges" is based on the assumption that only those who excel in examinations possess merit. Everyone knows that our examinations only test memory power. In government colleges and private colleges enjoying government support, when there is a shortage of seats, in the absence of better visible criteria to assess merit, marks obtained in qualifying examinations and entrance examinations, may legitimately become the sole criteria to grant admission. (Even this is not being followed on account of reservations based on caste and other criteria), but when the state does not give any aid and the parents of students are prepared to sacrifice their possessions to help their children in securing admission to coveted professional courses, why should the government (or the judiciary) impose needless restrictions on the colleges? After all, even the students admitted to donation colleges also have to face the same examination to earn their degrees as that faced by the so called merit students... Bertrand Russell had observed that the so-called dull students at the undergraduate level show a remarkable improvement in their performance after securing admission to medicine or law. This is because what they study in professional courses strikes them as important in their lives.
LAW PERTAINING TO ARREST
The recent amendments to the code of criminal procedure in India, prohibiting arrest in cases involving offences punishable with imprisonment up to seven years and below have substantially reduced the risk of misuse of the provision pertaining to arrest. Unfortunately, the amendments are not yet enforced. This law has virtually remained only on paper as arrests are continuing to be made in every case and a section of the legal profession has actually opposed these amendments as they would depress the income from bail application and the judiciary also has not bothered to enforce these amendments.
Corrupt judiciary
A judiciary that is slow, inefficient or corrupt will also encourage corruption in the executive. The bribe giver will conclude that he has a moral justification to get things done by bribing the executive instead of doing the same to get justice through the judiciary after decades of litigation. The remedy is to ensure that there is an efficient, quick and non-corrupt judiciary.
LOW SALARIES AND CORRUPTION
Whether inadequate salaries provide the moral justification for the officials to become corrupt is a debatable point. On the assumption that it does provide such legitimacy to corruption, if government reduces its direct role in the non-core fields of the people, it can afford to play decent salaries to small government machinery and deprive its employees of the moral justification to resort to bribe taking.
Conclusion
It should be borne in mind that officials and judges should learn the discipline of enforcing the law as it stands and not as it ought to be. This is required to maintain predictability in the administration and reduce the role of discretion. Otherwise, we will end up with the rule of the bureaucrat and the rule of the judge instead of the rule of law. (When Gandhiji was tried for sedition, the European Judge, who had great respect for Gandhiji, sentenced him to undergo jail sentence for six years, adding that he would be the happiest person if Her Majesty’s government thought it fit to reduce the sentence in future.) Care should be taken in making the laws by observing the aforesaid norms.
About the Author
G.V.DESAI., Advocate, Adoni Kurnool District Andhra Pradesh India. Cell.8801184446 email. desaiadvocate@yahoo.co.in.,
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