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Though no one in India may claim to be a super-citizen, functional inequality may be justified under very special circumstances

Toll Plazas and Judges: For Whom the Bell Tolls?

 

~By Upendra Baxi

 

A bench comprising Justices Huluvadi G Ramesh and MV Muralidharan of the Madras High Court recently passed an order directing the National Highways Authority of India (NHAI) to issue a circular to all toll plazas to provide a separate lane so that vehicles of VIPs and sitting judges can pass through without hindrance. We do not know nationwide at what time vehicles of judges have to wait at toll gates—does it occur only sometimes (say, during monsoons or peak hours)? But their lordships are inconvenienced, according to a PTI report, by being “compelled to wait at toll plazas for about 10-15 minutes”.

According to Livemint, however, the Union of India (UoI) is likely to seek a review of the order on many grounds, as it is not implementable and the proposed VIP toll gates would be “severely underutilised”. Also at stake is the revival of the lalbatti culture which the UoI and the courts wish to remove as a feature of governance style.

The Court may, in review, be content with an alternative government proposal eliminating any inconvenience to justices, particularly by placing a sticker on their car travelling in a fast lane. It is noteworthy, in any case, that this order arose while the bench was seized of other more important issues such as demands for a separate pay commission for the judiciary and additional post-retirement benefits for justices.

Lost in view is the question of jurisdiction of High Courts to bind all other High Courts; in our constitutional scheme, only the Supreme Court has the  power to declare a law for all courts throughout the territory of India (Article 141). Such power is not explicitly vested in High Courts; but they may seek an India-wide norm only with creative ambivalence. No wonder, other High Courts may thus regard such an order at best as a persuasive precedent.

There are many ways of thinking about special privileges. One is status-based which justifies special facilities according to the position one occupies in the scheme of governance. Modern India has at least three kinds of VIPs: VIP 1 (Very Important Persons), VIP 2 (Important but also Not-so-Very Important Persons) and the populous VIP 3 (Very Insignificant Persons) who have no choice but to yield to the first two. Howsoever one may justify status inequality, ontological and positional superiority stand forbidden by the Constitution.

Second, one may variously think of functional justifications. Time matters for everyone, but certain citizens are bound by constitutional time. Justices having to wait for 10-15 minutes at toll gates is one example, but the category is not exhausted by them. Hence, the unfortunate reference to all VIPs (of course barring VIP3 whose time, according to the upper middle class, is of little consequence).

In any case, since the reference is to VIP1 and 2, NHAI will have to devise a list of precedence. This list varies as per the rules of protocol, and is further aggravated by the category of security risk. The situation is quite desperate and people meriting risk classification, even when kept under review, is substantial. Obviously, such people deserve maximal protective cover and the right of way over others. In such cases, the NHAI will have to be guided by the Union home ministry and NIA.

Third, special circumstances related to the nature of office may justify functional inequality. Justices have to decide cases brought before them and the guilt and punishment of the accused. And it can be argued that all judges face a security risk from an indeterminate class of disappointed and vengeful litigants. The recent sad incident of a retired police sub-inspector being lynched to death in full public view in Allahabad by goons who may have a criminal record could indicate that our judges face a lifelong risk, though fortunately such assaults have been very rare. Given the emergence of a lynch culture in contemporary times, one hopes that our intelligence agencies have ways to identify and deal with such potential assailants. How far such vulnerabilities attach to other constitutional authorities may also be appropriately kept under review.

The broad general point is simply that no one in India may claim to be a super-citizen, although functional inequality may be justified under very special circumstances.

Of course, the constitutional scheme must, in the long run, create a culture of fraternity/sorority, mandated by the very valued notion of a Republic. Talking about this reminds me of my sojourns in Hungary (before the socialist world in Europe disappeared). I was taken to the chambers of the president of the Hungarian Supreme Court where four senior justices sat in four corners with a thin partition! The Supreme Court then had 65 justices. I was taken by one of the (four) vice-presidents of the Court to a hearing of a final appeal from a Roma youth who was to be imprisoned for a few years for an attempt to rape. The vice-president, who knew English, translated whatever was happening in the Court. What astonished me were the speeches by the grandparents and parents on both sides, who were given full time to address the Court.

Displaying fully the virtues of socialist paternalism, the justices directly addressed the family of the young person and explained the nature of crime and punishment and ordered a probation hearing after three years provided that the young man rendered full apologies to the victim and the family and fully learnt the message of fraternity as a socialist virtue.

On the way back home in a tram, I found standing and clutching the bar, the parties and three justices who decided their case!

I have long hoped that our justices would experience such equality of esteem for fellow citizens. At long last, a glimmer of the fellowship of suffering was recently shown by Justices Kurian Joseph and KM Joseph when they sang publicly and movingly at a function organised for collection of relief material for flood-ravaged Kerala. Do we have to await another calamity before our citizen-justices become more sororal? 

—The author is an international law scholar, an acclaimed teacher and a well-known writer. He was recently felicitated by India Legal

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