- Address by Mr. S. K. Jha on release of Judicial Role in Globalised Economy

Address by Mr. Shiva Kant Jha

[On the release of his book Judicial Role in Globalised Economy
on 26 August 2005 at the India International Centre, New Delhi]

In 1930 T.S. Eliot in his Ash Wednesday made a cri de Coeur when he said:

I do not hope to know again
The infirm glory of the positive hour
His prognosis was simplistic:
“Teach us to sit still”

But it has become our destiny, in these locust-eaten years, to become most conscious of the ‘infirm glory’ of this ‘positive hour’. The World wherein miseries abound, the much-vaunted globalization must not be allowed to pull wool on our eyes. People’s vigilance is surely the price of liberty. It is the time to understand the raw realities of our world; it is the time not to ‘sit still’ but to act, remembering what Vidula had said, which my mother had cited to my father when my father was poised to decide, during the Quit India Movement whether to be or not to be in the Struggle for Freedom:

“ Muhurtam jvalitan sreyah, na tu dhumayitam ciram (Better to blaze for a moment than to smoke continuously).”

2. For me the writing of this book has been a most valuable cathartic experience. After writing it I acquired a mood of pensive serenity. I have borne the burden of sadness emanating from the knowledge of the raw realities of our day treating it as the wage of those who think of public good. The operative realities in this world of subverted institutions call to mind the fury of Einstein wrenched by the gross idiocy which the political leaders displayed during the interregnum between the two World Wars.

“They [the politicians and statesmen] have cheated us. They have fooled us. Hundred of millions of people in Europe and America, billions of men and women yet to be born, have been and are being cheated, traded and tricked out of their lives and health and well-being.”

Those who believe that they can afford to “sit still” believing the propaganda of all sorts that salus populi is assured in a distant future must never forget what Freud said in the phase of history when words had parted company with truth:

“There is something to be said, however, in criticism of his disappointment. Strictly speaking it is not justified, for it consists in the destruction of an illusion. We welcome illusions because they spare us unpleasurable feelings, and enable us to enjoy satisfaction instead. We must not complain, then, if now and again they come into collusion with some portion of reality, and are shattered against it”.

But we are most fortunate to get light from Krishna and Gandhi to help us get rid of our soka-samvigna-manasah (mind overwhelmed with grief) and to rise to a high level of creativity in which courage and imagination always go together.

3. After my retirement I never thought of becoming a God’s spy on the Kings and cabbages, but I surely thought of rendering some public service, which can make my soul dance with joy, which can help me throw out the iron, which often tormented my soul. An occasion which called a tune for the book came under some random moment, providing one more evidence that both in the life of nations and of man the play of the contingent and the expedient is often inexorable, often inexplicable. I have given a graphic account of these in the Introduction to the book now being placed in the public domain. I began my work on the five inches of ivory, which the misuse of the Indo-Mauritius DTAC provided to work on. But soon the exploration grew expansive to acquire an epic dimension. As an understanding of an atom can lead to the understanding of the whole universe, the comprehension of this misuse provided a vista to know the pathology of our governance. It was surely not a casement of delight: it miniatured the raw reality of the Globalised economy in which corporate imperium is being placated at all costs. My researches carried on in course of conducting a PIL before the Delhi High Court and the Supreme Court helped me acquire an Eyebright, which helped me see things, which I have tried to portray in this book. This study of the misuse of the tax treaty has provided me with an objective-correlative to express my feelings on things as they are shaping policies and conditioning actions in the myriad segments of our governance. By studying a part, the whole is sought to be understood. Understanding a petal of rose helps understand the universe. What is seminal is to discover and evaluate the prevailing observation-post, the point of view which colours and conditions decision-making. A democratic society, which learns to condone minor lapses in the system of its governance, invites serious lapses to over take it. Such a society suffers from a sure and certain death-wish. This book explores certain tax treaties at work highlighting the remissness which the citizenries of our Republic must take into account in undertaking an essential exercise to which J Bronowski refers so felicitously:

“There are many gifts that are unique in man; but at the centre of them all, the root from which all knowledge grows, lies the ability to draw conclusions from what we see to what we do not see.”

4. An effort has been made in this book to build the right observation post to view the operative realities of our day in this phase of economic globalization. As right observation-post is essential for right perception, this book may help not only the lawyers but all across the board: whether they are economists or social scientists. This intellectual odyssey is most needed, as opaqueness was never as dense as it is now in the system of governance. This author calls upon his readers to see for themselves the cleavage between words and deeds of those who matter.

5. The most important event in the history of modern times is the subjugation of the Political Realm by the Economic Realm which has altered the equations inter se different institutions at work in our society. This has resulted in a mismatch between the political and economic institutions facilitating the emergence of corporate imperium, the dominance of the economic gladiators and the prominence of the predatory international financiers with vast influence on the wielders of public power. We run into the “age of sophisters, economists, and calculators” in which democracy of people may get, to borrow Burke again, “extinguished for ever”[ Edmund Burke, Reflections on the Revolution in France]

6. The raw realities of our times illustrate the triumph of the free-market system which has acquired potency and has waxed massively in terms of its overweening impact to establish the Pax Mercatus which kisses almost all institutions causing consternation to common people who have reasons to apprehend the decay of democracy, the erosion of values we have set forth in our Constitution, and the sinister and collusive subversion of the idea of the Welfare State whose fundamentals are articulated in the fundamental rights and the directive principles of the State policy. Our system runs the risk of being highjacked by some distant rainbow or the silhouette of eldorado. It has been a strategy of all dictators, and imperialists of all hues. Richard Posner speaks of the Constitution as an Economic document, and proposals have been made in the United States to refashion constitutional law to make it a comprehensive protection of free markets, whether through new interpretation or new amendment, such as a balanced-budget amendment. Every effort is being made to make all institutions grossly market friendly. We must reject this mischievous strategy; our Judiciary must explore its jurisdiction to its ultimate confines, and must subject all organs of the State, including itself, to the rigorous discipline of our Constitution. Waves of market forces cannot be allowed to become a tsunami to turn our Constitution dead; nor can they be allowed to create stock-responses or inhibitions in our decision makers. ‘We, the People’ cannot allow the hidden forces to amend our Constitution through gloss to promote vested interests.

7. The whole fast emerging scenario is dexterously managed by the Pax Mercatus to create situations under which it can use to its benefit the economic and human resources of other countries by turning them into the Sponsored States. To support this world-view the world is flooded with propaganda carried to extreme annoyance by the print and electronic media. Scholars have been hired to produce literature of dubious worth. Francis Fukuyama in The End of History and the Last Man (1992) draws a panegyric of the free-market economy by singing the litany of liberal democracy dubbing it the ‘endpoint of mankind’s ideological evolution’. Knowing that ours is a profoundly scientific age, it is asserted that there is a universal evolution in the direction of capitalism. The idea of political liberation, which inspired our Constitution-makers, is sought to be replaced by deceptive notions of personal liberation. All institutions are engineered to become market-friendly. A new idealism of market forces has been created making our Constitution otiose and anachronistic. It is said that the civilization of India, Pakistan, Iran, Malaysia, and Indonesia is medieval and decaying. Arrogance reaches its nauseating height when it is shamelessly stated that Christianity is more “evolved” than other religions and philosophies. The days have gone when Bloomfield considered Panini the greatest monument of human intelligence, when Frederich Schlege marveled at Indian philosophy and Schopenhauer (1788-1860) preferred religions of India. Gone are days when Spangler and Toynbee saw great light in the East, when Aldus Huxley and Isherwood found in the Vedant the culmination of human thought, when T.S. Eliot and Somerset Maugham got most stimulating and illuminating thought in Indian Literature. To think of the breakup of the USSR as an evidence of the global triumph of free-market economy is flawed. Capitalism carries with itself forces of repulsion because of its acquisitiveness and power-hunger. God knows how much time people will take to understand that the break-up of the USSR was not on account of inherent flaw in socialism, but because the idealism foundered on account of the octopus-grip of corruption and self-deception. Pursuing any idealism is always treading on the razor’s edge, which Katha Upanishad described thus:

The sharp edge of a razor is difficult to pass over;
Thus the wise say the path of Salvation is hard.

Not to say of other institutions even, Judiciary, perish the thought, seem to fast totter on the edge of a precipice. The problem with the dictum of satyameva jayate and yatoh dharmahstato jayah is that we often tend to believe that what is happening is itself the evidence of their triumph! Never our culture was in peril greater than what it is now under the suffocating avalanche of high-pressure commercialism begotten by neo-colonialism about which the author has much to say in the first two Chapters of the book being released this evening. These thoughts are not exotic articulations of some amorphous realm, but are profoundly meaningful and greatly helpful in knowing why our government works the way it has worked. The people at large have a right to know in order to be able to take part in a participatory development in the industrial life and democracy.

8. Our profoundly scientific age has displayed vast possibilities, and has questioned our whole value system. But possibilities have been caught by forelock more by those for whom public weal goes by discount. We are in a phase of history in which worst problems have been created by a mismatch between high technology and low human morality, between useful fruits of science and the medieval mindset. Our technology has produced an Armageddon scenario of banking on the net creating a global financial architecture where MONEY IS DEAD as the virtual realities through the cyberspace makes it imperative for all the organs to relearn to respond to the new challenges. But we must believe, as Ernest Barker wanted Albert Einstein to believe, that even if all the straight lines are been banished from the universe, there is yet one straight line that always remains —-the straight line of right and justice. The following comment by Arnold J. Toynbee is most apt in the days we are living:

“Ever since Man’s passage from the Lower to the Upper Paleolithic stage of technological progress, the Human Race had been Lords of Creation on Earth………[N]othing on Earth, with one exception, could stand in Man’s way or bring Man to ruin; but that exception was a formidable one—namely, Man himself’.

9. All that I have said heretofore is an abstraction at high level from the research, which I carried out to write this book. Occasion for this reflection was provided to me by the misuse of tax treaties, which illustrate governmental complicity, Parliamentary indifference, judicial self-negation, institutional role-abdication, and public cynicism to just remain “stand still”. This study of tax treaties, especially the Indo-Mauritius Double Taxation Convention, led the author to examine several constitutional questions of greatest importance, the Government’s Treaty-making power at a time when treaties are playing role far more important than the Constitution, the strange syndrome of corporations becoming impervious coverlets of gross abuse, the nature of the Judicial role when there is an evident conspiracy to make even our Supreme Court a mere subsidiary court of residuary jurisdiction, the powers of an apex bureaucratic institution. This theme has been pursued with reference to a treaty in generic sense (the Uruguay Round Final Act), and a treaty in a specific sense the Indo-Mauritius DTAC. Serious and considered suggestions have been set forth to alter treaty-making procedure as nothing is more important in this phase of economic globalization than this. We have already had enough of what is the worst under the present procedure.

10. Tax law and constitutional issues relating to tax treaties have been critically studied in the context of a greatest PIL in revenue matters which this author had the good fortune of conducting before the Delhi High Court and the Supreme Court. The whole story turns out a metaphor of studied indifference to the cause of the common people of the Republic. There is a sturdy conviction that the administration of justice is an art both substantially intuitive and profoundly teleological. Public affairs are to be conducted for public weal. There is an inner conviction that though law and morality belong to different realms of discourse, they are never at loggerheads with each other. It is believed that in every decision-making, executive, legislative, or judicial, nothing should shock people’s sense of justice as democracy is never imperiled more than when under some abracadabra the weal of some gets masked as the weal of all. The Judges can ill afford not to realize, to quote Judge Manfred Lachs of the ICJ, that whenever law is confronted with facts of nature or technology, its solution must rely on criteria derived from them. “For law is intended to resolve problems posed by such facts and it is herein that the link between law and the realities of life is manifest.” Administration of law is an inveterate pursuit of justice, which must frustrate fraud, and promotes public weal, and maintain society’s value system. The misuse of the tax haven routes is a strategic fraud causing wrongful gains to some and wrongful loss to others. The problems are of added concern to our society in which millions and millions are bound upon the wheel of fire of poverty, inequity, and ignorance. Let there be light, so that transparency is ensured, so that none can say, as John Milton’s Comus said,:

‘’T is only daylight that makes sin.’

11. The ‘Conclusion’ of the book contains concrete and specific suggestions for everybody to think, and act. The story of two frogs is designed to jolt our low arousal people to action so that the wielders of political power show vigilance and responsibility in matters, which concern the common people of the Republic. As all public power is trust, we must keep it under constant scrutiny and continuous revaluation. If this book can spur some positive thinking in this positive hour of science and technology, we can be sure that its ‘infirm glory’ shall not bedevil our culture of which we are proud, and shall not take us towards a concealed plutocracy of smoggy corporate oligarchy. I end this address quoting Mahatma Gandhi’s talisman which is the best guide to all decision-makers (executive, legislative and judicial) if the world is to escape the tremors and quakes which are endemic in an unjust and unequal society.

“I will give you a talisman. Whenever you are in doubt or when the self becomes too much with you, apply the following test:

Recall the face of the poorest and weakest man whom you have seen and ask yourself if the step you contemplate is going to be of any use to him. Will he gain anything by it? Will it restore him to control over his own life and destiny? In other words, will it lead to Swaraj for the hungry and spiritually starving millions? Then you will find your doubts and yourself melting away.”

When all is said, the immortal words of Ella Wheeler Wilcox come to mind in a flash of delight, the words which announce the book.

“No question is ever settled
Until it is settled right”

Jai Hind


Footote: Edmund Burke, Reflections on the Revolution in France - Links on Shivakantjha - Links on Shivakantjha

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