By Prof Upendra Baxi
The fly-now, pay later paradigm [FNPLP] has colonized cultures of governance and administration for the past 75 years of constitutionalism in India and sound firmly installed for future itineraries. FNPLP is marked by an UNCTAD syndrome (identified by me) as here meaning ‘Under No Circumstances Take Any Decision’. A prime feature of the FNPLP, and the associated syndrome, is to pass on to the courts the burden of decision-making, which squarely vests in the executive/administration.
The constitutional courts in India recognize vast areas of the executive/ legislative power to make, unmake, and re-make policies and law. But they cannot, and ought not, recognize that these vast powers may exceed or override the limits imposed by, or flowing from, the Constitution of India which itself entrusts the constitutional courts to reiterate these limits to power. One of the reasons for FNPLP is that the individual actors, in bureaucracy or politics, are unwilling to take decisions when public finances are involved, lest they may later be hauled up for the lack of rectitude or responsibility, and even on charges of corruption. Hence, government litigation keeps growing, even as courts are reeling under the incorrigible weight of arrears.
I deal here only with the area of pension injustice. Incredibly, pension denialism behaviour by concerned authorities keeps on brutally manifesting itself in various individual cases. Matters concerning fixation, quantum, duration of pension constantly go before High Court, and reach even the Supreme Court of India, and, on a conservative estimate, consume at least a decade and half in which senior citizens grow even older, and deteriorate in health, and some may even suffer penury awaiting justice. One at least expects by the end of the constitutional time called Amrit Kaal (the next 25 years culminating with India’s 110th Independence Day anniversary) will see an end to this sorry state of affairs.
I have had my share of administration as a Vice-Chancellor of South Gujarat University, and Delhi University. Not that I could do much about it, but I was scandalised when a superannuated colleague of mine brought to my attention that his pension was unjustly delayed by the former and an appeal filed in the Supreme Court yielded positive results after about 12 years of waiting. He wrote a joyful letter of good tidings. At Delhi University, pension cases were routinely delayed; when my attention was drawn to it, I realized that the administration of the rules was a major hurdle. There was the entirely justified requirement that the pensioner would submit due clearance certificates from the library or laboratories. But delays occurred because the process of finalization of pensions began only after the certificates were submitted! I tweaked the procedure with the requirement that since the date of superannuation is always well-known, all processes save the certificates should be completed before that date.
This helped somewhat, but I later learnt that when the UGC or the Education Ministry had raised some objections, the pension process was stopped, and it was left to the pensioner to sort matters out! I also learnt that some universities stopped a just consideration of matters on the ground that the matter was sub judicie! Situations are not unknown when a university or college employee is paid due pension for a long number of years and reduced later by introducing a practice which retroactively results in a reduction in rank! Such retroactive demotion in rank is not permitted by the rules and the law, but the poor pensioner must continue to grow even older in seeking justice from the apex court. It is further known that even when former Vice-Chancellors respectfully write to their worthy successors concerning such egregious cases, their letters are not even accorded the courtesy of acknowledgement! Surely, one expects a much better, and a more just, response from educational leaders!
In this zodiac, it is very good to hear (on September 19, 2022) from Justice Indira Banerjee (and Justice JK Maheshwari) that: “Pension is a lifelong benefit.” And the denial of pension is “a continuing wrong.” The Court ruled that when the financial rules framed by the Government such as Pension Rules are capable of dual or multiple interpretations, “Courts should lean towards that interpretation which goes in favour of the employee.”
What is more, the learned justices declared that it is “to be presumed that prior permission had been taken unless the contrary could be established by the State”. In a situation where one “has retired after working for about 26 years”, it is “to be deemed that there has been disclosure of past service and the application has been made through proper channels by obtaining the requisite approvals”. How one wishes those who lead institutions will heed these words of law, justice, and wisdom.
It is important to note further that in considering a case of an 85-year-old Nagpur resident, who retired as an assistant foreman from Ordnance Factory, Bhandara in October 1994, the Nagpur Bench of the Bombay High Court, comprising Justice Ravi Deshpande and Justice NB Suryawanshi (on 21 August, 2020) ruled that: “Pension payable to employees upon superannuation is ‘property’ under Article 300-A of the Constitution of India and it constitutes a fundamental right to livelihood under Article 21 of the Constitution of India. The deprivation, even a part of this amount, cannot be accepted, except in accordance with and authority of law”. This far-reaching interpretation strengthens the fundamental right of senior citizens to live with dignity under Article 21, but also promotes the right to pension as property assured as a constitutional right by Article 300-A.
Also noteworthy is the Supreme Court’s direction (on 27 September, 2022), per Justices Aniruddha Bose and Sudhanshu Dhulia, that “schemes operating for the welfare of the elderly with respect of (i) pension for the elderly, (ii) old age homes in each district and (iii) geriatric care ought to be produced before us”. Such care of the elderly is commanded by the Constitution.
Pension justice is inscribed on normative jurisprudence of judicial interpretation, ever since the Court observed in Nakara that it is “imperative for the state to take care of the old and desolate to maintain the welfare approach of the state.” The Court further said that in a “Socialist Republic it is important to uphold the interest of the pensioners and safeguard their economic condition so that socio-economic justice prevails”. 1 The invocation, by a five-judge Bench, is important as now the doctrine of basic structure and essential features forbids practices and policies of ageism (discrimination on the ground of age) in form and substance and commands special solicitude—care and concern—for all the aged citizens and persons.
Nakara is also of wider import, as it holds that the “absence of precedent does not deter the court” because every “new norm of socio-economic justice, every new measure of social justice commenced for the first time at some point of time in history. If at that time it was rejected as being without precedent, law as an instrument of social engineering would have long since been dead…”2 This observation justifies not just pension activism, but a militant and human rights-based construction of constitutional provisions facilitating expeditious and equitable future of the Indian constitutional and democratic governance.
- D.S. Nakara vs Union of India, (1983) 1 SCC 3. This is a monumental judgment (per Chief Justice Yashwant Chandrachud, j), and Justices VD Tulzapurkar, D.A., Desai, O. Chinnappa Reddy, Baharullslam, with Justice Desai authoring the decision. See also, Deokinandan Prasad vs State of Bihar (1971) 2 SCC 330.
- See Nakara, at 23
—The author is an internationally-renowned law scholar, an acclaimed teacher and a well-known writer