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    clash between Govt. jdiciary!!!!!!!!!!!

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    nu_lee2003

    Posts : 45

    clash between Govt. jdiciary!!!!!!!!!!!

    Post by nu_lee2003 on Sat Sep 25, 2010 9:11 am

    A burden of their professional obligations, legal practitioners have to acquire the acumen to walk up and down on both sides of the street, though not necessarily at the same time. The recent tiff between the Supreme Court and the government over the respective jurisdictions of the judiciary and the executive has provided an occasion for the display of two sets of legal argument directly opposed to each other. Both views appear to be equally weighty.

    One group of lawyers have little doubt that the directive of the nation’s highest judiciary directing the authorities to distribute free foodgrains to the poor and the starving was, howsoever well-intentioned, a gross encroachment on the government’s ambit of responsibilities as laid down in the Constitution. What policies and measures are to be adopted to provide food security to the nation are matters within the purview of administrative decision-making; these should be left to the exclusive care of the government, which represents the will of the people; the judiciary must not poach in the matter, it must rein in its ‘activist’ propensities.
    The other group of lawyers are strongly supportive of the Supreme Court’s observations. They fall back on certain provisions in the Constitution. True, the Constitution does not quite list among the fundamental rights of citizens the right to food; Article 21, however, concedes them the right to life. Since food is essential for living, and the judiciary has the prerogative to ensure that a citizen is not deprived of any of his fundamental rights, the Supreme Court, it is argued, is within its rights to ask the government to supply food, free of cost, to starving people who do not have the resources to buy food from the market.

    One of the directive principles of State policy embedded in the Constitution is also referred to in this connection. That particular directive expects the State to assure citizens the means of livelihood. Whether food, which is the most essential means for staying alive, is being reached to the starving, it can well be interpreted, is something which should very much be the concern of the judiciary; it is within its ambit of responsibilities to instruct the State to act in conformity with the directive principle.

    Should both the judiciary and the executive stick to their respective positions, the debate could be interminable. As far as the ground reality goes, the government, in any event, is bound to win out. If it chooses to ignore the directive of the Supreme Court — it has already expressed such an intention — the nation’s highest judiciary has no instrument at its disposal to discipline the authorities. It could, at best, declare the government to be guilty of contempt of court. So what? There is no way it could punish the government for the committed offence. A situation is conceivable where, snubbed in this manner, the judges constituting the Supreme Court resign en masse and create a national crisis. That is, however, a most remote possibility.

    There are, though, more things in the actual world than observance or non-observance of constitutional propriety. In the instance being referred to, it has suited the government to conceal some issues of grave import behind the smokescreen of the controversy over respective jurisdictions of the executive and the judiciary. What are being slurred over are the moral and humanitarian aspects of a circumstance in which, at one end, huge numbers of the country’s poor are starving and, at the other, substantial quantities of foodgrains available with the government are rapidly going to waste because these are lying in the open on account of a lack of warehousing facilities. The Food Corporation of India, an arm of the government, procures foodgrains, mostly wheat and rice, from farmers and traders by paying prices that are higher than the prevailing market prices. Foodgrains thus procured are distributed to consumers through the public distribution system.

    The FCI is, at the moment, carrying a total stock of grains exceeding 50 million tonnes, but storage space available to it can only accommodate 45 million tonnes. New warehouses are coming up and much scrounging is going on to rent extra space. Even so, the corporation has been compelled to keep a part of the procured grains in open space, exposed to the elements. A not-so-negligible amount of these grains lying under the naked sky is, on the government’s own admission, rotting at a very fast pace and will soon be unsuitable not only for human, but also for animal, consumption. Against this background, responding to a public interest litigation filed before it praying for supply of foodgrains to starving sections of the population, the Supreme Court thought it fit to ask the government to allot for free distribution to poor people some of the grains that are about to be totally spoiled.

    Let us assume that the quantum of grains dumped outside the godown and getting rotten is one million tonnes. The overall cost of procuring this quantity might be around Rs 1,000 crore. The government’s point of view can be summed up as follows: even if the grains go to total waste and Rs 1,000 crore of public money go down the drain, these grains could still not be supplied free of cost to any citizens, not even to the starving, the authorities have no alternative but to be stern and brush aside so-called humanistic considerations. They have based their decision, it is claimed, on solid economic grounds. Even grains soon bound to be totally wasted could not be supplied free to the poor, at zero price, for that would be horrendously bad economics. It would affect adversely the incentive for grain production and have a negative impact on its output in future, causing great harm to long-range national interests.

    The argument is based on the orthodoxy of what is known as neoclassical economics, which says that there must be no intervention from outside with the interplay of the forces of supply and demand in the market. If a government agency supplies free a certain quantity of foodgrains to a section of consumers, it will supposedly affect the demand side of the market and depress the market price, thus discouraging the producers. This point of view is regarded as holiest of the holy — the government would rather allow Rs 1,000 crore worth of foodgrains to go waste than utilize these to feed the hungry.

    The nation’s long-term interests, the argument runs, lie in a healthy rate of growth in agriculture, including foodgrain production; anything that could harm these interests must be abjured. The dictum to be followed is that there can be no free lunch, not even for the starving. The crucial importance of not deviating from this cardinal principle has been impressed upon the government by sponsors of the so-called Washington Consensus, whose writ is assumed to be as inviolable as the Ten Commandments.

    The authorities will not walk the morality ground — heartlessness is king. But it is not really necessary to bring in issues of either ethics or humanitarianism in the matter. The government can be rebutted even on its own chosen ground. Has not the FCI already bought that lot of one million tonnes of grains from farmers and traders by paying procurement prices that are, in fact, higher than the prices prevailing in the market? How, then, could there be any possibility of discouraging producers? Farmers have already sold the grains at prices that have satisfied them; whether the grains are fed to rats or dumped in the Arabian Sea or used to feed some hungry people would be of no concern to them.

    As long as the FCI continues to purchase at prices that are higher than going market prices, producers’ incentive will remain unaffected in future too. That apart, poor starving people have no purchasing power, they have therefore no role to play on the demand side of the market. That is to say, given their zero purchasing power, they are irrelevant for the market process. Irrespective of whether the poor and starving are supplied free grains or allowed to perish without food, they are, in either case, not going to participate in the market process. The economic reasoning that the authorities have advanced for ignoring the Supreme Court’s advice is, in sum, without basis. Not to mince words, it is comprehensibly bogus. It is a government’s prerogative to be inhuman. In a functioning democracy, the electorate can be exploited to deal with such an administration in due course. The deployment of spurious economic logic to cloak that inhumanity nonetheless deserves to be exposed.











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