Recently the Supreme Court recognized the fundamental right of all citizens to be free from adverse impacts of climate change (in a plea by environmentalists to protect the great Indian bustard from the encroachment of its natural habitat by companies building wind and solar farms for expanding India’s capacity for renewable energy). Meanwhile a political controversy has flared up on the question of whether a private property belongs only to its present owner and his inheritors or should return to the public with the demise of the owner. At the same time, a nine-bench of the Supreme Court is re-examining its interpretation in 1978 of Constitutional rights to private versus public property. Here too the question is about the fair redistribution of wealth in society.
The cases before the Court point to fundamental questions about the rule of law in a democracy. In a true democracy, every human being, whether she or he has a crore rupee or none, or a formal higher education or not, has an equal vote with others, and all voices must be heard while framing laws. In a good democracy, tribals who own no property, or even primary school education, must get justice when their rights, and the natural environment on which they depend for their livelihoods and lives, are trampled upon by corporations to improve economic efficiencies and increase the country’s GDP.
In capitalist governance, each dollar gives an additional vote. In a democracy, every citizen, millionaire or pauper, must have an equal vote. The conflict between capitalism and democracy is a conflict between two fundamental principles of governance: a conflict between property rights and human rights. The capitalist approach to PPPs (public-private partnerships) results in infrastructure which primarily serves the rich. It creates freeways, which common people riding on two-wheelers are forbidden to use and pedestrians cannot safely cross to make travel quicker for rich people. The rich resist tax increases to fund infrastructure for public use. They build gated communities for themselves, in which they pay for their own private services of security, and 24X7 power and water supply. They lose sight of the needs of people living outside their walls.
Privatization is driven by the notion of the “tragedy of the commons”, whereby forests and grazing lands, even lakes and waterfronts, must be managed by private owners to improve the efficiency of their utilization. Managers serving investors must be given the right to restrict public access to the property. Thus, corporations can exploit forests and mineral resources to make more profits for their investors. They also have freedom to exploit workers, hiring them with uncertain contracts and no social security, to make it easier to do business, while making the ease of living of common citizens, who have little bargaining power, much harder.
All countries have a sovereign right, enshrined in the UN charter, to choose how they will govern themselves. Justice is gravely distorted to serve only private interests when international arbitration tribunals are empowered to settle commercial disputes between investors and governments of sovereign nations. On one side maybe a corporation with only a few rich investors, or a publicly listed corporation with poor internal governance. On the other side is a government, like India’s, representing 1.4 billion citizens.
The Supreme Court must be guided by the country’s Constitution and must interpret it in a contemporary context. Abraham Lincoln said, in 1864, “We all declare for liberty; but in using the same word, we do not mean the same thing.” Concepts of “freedom”, “liberty”, and “human rights” are not cast in stone. Written constitutions, which guide courts record what the will of the people was at some previous time in their history. The people’s will changes with the evolution of concepts of human rights and liberties, socialism and secularism, and freedom and inequality. Arbitrations focused on commercial disputes can speed up resolution of those narrow disputes while blind to public interests. That’s why the Supreme Court has intervened in the Delhi Metro case, in a dispute between a private company and a public one, which had been settled by arbitration. It has put the ball back into the domain of public courts.
Good governance cannot be only a government of the people (elected by them), or for the people (providing them welfare). It must be by the people too. The rule of law and speedy justice make countries attractive for financial investors and for common citizens. However, investors and citizens have different needs, and therefore different interpretations of law. Good governance and justice for all requires those who govern to continuously listen to the people. Moreover, citizens with diverse needs must listen to each other to come to a consensus about the type of society they want to create for themselves. Courts and experts within their narrow specialisations cannot do this for them.
(Published in The Economic Times, April 26th 2024)