Prelude to an excision

The eventual logical outcome of the Supreme Court8217;s judgment on Ninth Schedule is clear

John Entick lived in the parish of St Dunstan, Stepney. On 11th November 1762, Nathan Carrington, James Watson, Thomas Ardran and Robert Blackmore broke forcibly into Entick8217;s house and seized his private papers. They were searching for evidence of sedition and were acting on the orders of the Secretary of State for the Northern Department, the 2nd Earl of Halifax. But there was no warrant and this led to the Entick v. Carrington case. The court ruled: 8220;The great end, for which men entered into society, was to secure their property. That right is preserved sacred and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole. By the laws of England, every invasion of private property, be it ever so minute, is a trespass.8221; Who invades or takes away private property for the 8220;good of the whole8221;? The state does, primarily through the executive and the legislature 8212; which is why constitutional and administrative law become important. As does judicial scrutiny of such state action.

In tort law, through civil action, as opposed to criminal law, one can claim compensation from another citizen. Constitutional tort, where one claims compensation from the state, has historically been difficult, especially if the state is supposedly engaged in its sovereign functions. However, it has evolved since the 1980s, particularly after the Nilabeti Behera judgement in 1993. But such claims are restricted to custodial deaths, police atrocities, encounter killings, illegal detentions, disappearances and culpable inaction. In jurisprudence, the entry of economic analysis of law is relatively late and has even now not been factored in. Richard Posner, Ronald Coase and others emphasise the efficiency aspect of law-making. Bad laws lead to inefficiencies. Forget the present high growth trajectory. Before the late 1970s, we grew at an average rate of 3.5 per cent. Since the late 1970s and through the late 1980s, a period when some reforms were introduced, we grew at an average rate of 5.5 per cent. We are told this happened, as did the 6.5 per cent of the 1990s, because of reforms. As a counter-factual, had reforms taken place in the 1960s, we should then logically have grown at 5.5 per cent or more from the 1960s onwards. Even though growth is also contingent on other factors.

Bad economic policies thus resulted in lost growth opportunities and this lost growth cannot have led to 8216;good of the whole8217;. There are several dimensions to bad economic policies, but one manifestation has been in statutes included in the Ninth Schedule. Did the Urban Land Ceiling and Regulation Act of 1976 ease urban land shortages or increase them? Did it lead to the public good or did it lead to prosperity in a few private pockets? Did the Contract Labour Regulation and Abolition Act of 1970 serve the broader interests of labour? Did the Monopolies and Restrictive Trade Practices Act of 1969 encourage competition or thwart it? Ditto for the Industries Development and Regulation Act of 1951. Didn8217;t the Essential Commodities Act of 1955 lead to further shortages? These are all instances of statutes from the Ninth Schedule that have nothing to do with land reform and agriculture. Even in the latter case, we only drove tenancy underground and prevented people from investing in land. The word 8216;law8217; is derived from the old English 8216;lagu8217;, meaning something that is laid down or fixed.

Unfortunately, the moment someone is placed in a policy-making position, that person thinks he or she knows the best and the rest of us aren8217;t in a position to decide. We have no minds of our own, or lack information. This paternalistic attitude leads to decisions being taken for Indian citizens. Big Brother will not only watch us, Big Brother will decide for us and watch over us. And since Parliament and legislative assemblies are there for the purpose of making laws, reflective of the mindset that for every problem there is a legislative solution, there will be laws on everything under the sun. For example, picking one8217;s nose in public. To get back to the question of tort, what remedy do citizens have against dysfunctional and disastrous laws that adversely affect all of us? There is the electoral system. But that is once in five years and there is no guarantee that the replacement government will exhibit a reduction in the control mindset. Will constitutional tort evolve so as to permit compensation claims against the state for bad economic policy-making? Given trends in a few limited consumer court cases, that may well happen. Twenty years down the line. For the moment, we only have judicial scrutiny on grounds of fundamental rights. And who knows? Some public-spirited citizen may argue that nose-picking is a fundamental right and invoke Article 32 or 226 and approach courts. Better to dump that nose-picking law into the Ninth Schedule.

In essence, it all boils down to a question of discretion, since discretion always has the potential of abuse. With Jawaharlal Nehru and even Lal Bahadur Shastri, the Ninth Schedule was fine, because their democratic intentions were never in doubt. However, once that discretion was in, there was no guarantee that successors including states wouldn8217;t abuse discretion. Remember Niren De8217;s response to Justice Khanna8217;s question on 14th December 1975? 8220;Even if life was taken away illegally, courts are helpless.8221; We have come a long way since then. And the eventual logical outcome of the Supreme Court8217;s judgment is clear. The Ninth Schedule has to be excised in its entirety.

The writer is an economist