The column below appears in today's edition of Herald -----------------------------------------------------------
The Heart of Justice .... by VIKRAM VARMA The Supreme Court’s judgement is based on a faulty, archaic legislation, which has rightly been amended, claims VIKRAM VARMA Every judge in a democratic country has seen moments when he is faced with the dilemma to choose between the letter of law and justice. I say this because the letter of law, though remaining supreme, often fails to deliver justice. With his spirit dedicated to justice, often a learned judge of the higher judiciary has to succumb to a perspective narrowed by an archaic legislation, which is inadequate or inappropriate to the needs of today. But the authority of creating or amending legislation remains with the people, which is executed through their elected representatives. Much has been written about the judgement of the Supreme Court in the matter of demolition of a part of Citade De Goa under the provisions of the Land Acquisition Act, 1894. Some of the Goan intelligentsia have perceived a finality in the Supreme Court’s judgement and demanded the proverbial pound of flesh in its execution. Such a perception is based on the well-established tenet of the ultimate authority of the Supreme Court. The authority of the Supreme Court of India is certainly unchallenged, but we cannot and must not hold the Supreme Court responsible for every failing in the legal system. Not a year has gone by when the Supreme Court has not expressed its frustration in the quality of legislation or the lack of it. No doubt we need to provide more energy into our legislation. Whenever the Supreme Court has taken a step beyond interpretation of legislation, it has been construed by some as judicial activism and a possible misadventure into the powers of the legislature. The portals of the Supreme Court have often been witness to some of the finest legal minds of the country bound by imperfect legislation. But then that is the fate of democracy. We rise and descend as a nation. The four pillars of modern democracy – the legislature, judiciary, executive and the media – are equally responsible for our failures and success. It is for the legislature to legislate and for the other three pillars to interpret and enforce the legislation. The media, the executive and the judiciary have to function within the confines of the letter of the law. Even the Supreme Court of India has to restrict itself to the letter of the law, unless it is in violation of the Constitution of India, which is the highest law of the country. The Constitution of India, again, though respected as the highest law and a creature of the finest legal minds of this country, is far from perfect and nearly a hundred amendments to its original form are ample evidence of its living and changing nature. The impression I get from the articles written by some excellent minds in the Goa print media, is that the Supreme Court Judgment and the subsequent ordinance of the Government of Goa is a battle between a Goan family and the highest judiciary of the country. Such a vision does not portray the true or complete picture. The battle here is not between Anju Timblo and the Supreme Court as is being made out in some sections of the media. The battle here is between the lives of 600 families and an archaic legislation that long needed to be amended. The Cidade de Goa matter was the triggering factor, which brought this piece of legislation on the table for a judicial scrutiny and appropriate amendment. The short deadline of the Supreme Court, affecting the lives of thousands of Goans, clearly demanded an urgency for this exercise. In the words of a Goan friend of mine, the bread and butter on the table of the Timblos would not be affected by the demolition of a part of their hotel. Their lives would carry on. But the lives of 600 Goan families would be devastated. He wondered why would the Timblos fight for these 600 families. In his earthy wisdom, he felt that they should comply with the Supreme Court orders and let these 600 families sort out their own problems. I have never met Anju Timblo, but I was pleasantly surprised to see the grit, courage and tenacity of this lady. She has stood fast and battled for these 600 families as if they were her own. She has faced a huge amount of flak from the media and some very respected activists, yet she has stood her ground. Perhaps she believes in the thread of humanity which binds all of us. If that is the case, we certainly need more captains of industry like her. People who have that spiritual balance between profit and a love for humanity. Fighting alone, Mrs Timblo lost the battle in the highest court of this country. A battle well fought, but lost on the letter of the law – or rather, an archaic and faulty piece of legislation which happened to be the law. But when the 600 affected families finally stood up for themselves and marched peacefully to the Chief Minister and the Governor, the Government of Goa stepped forward to amend that faulty legislation through an ordinance and ensured that the law, in all its majesty, serves the people and not lords over them. Among the after-effects of the colonial era is the average Indian’s distrust for the law, legislated by our colonial masters. It is justifiably ingrained in our minds that the law serves only our colonial masters, the wealthy and the powerful but not the people. That is no longer true and we do not have to go too far back in time to gather evidence. In 2006 the people of Goa had stepped forward and ensured that the Regional Plan 2011 was repealed with retrospective effect. In 2008 the people of Mumbai had stepped forward in a peaceful candle-lighting protest at the Gateway of India, which resulted in the resignation of a chief minister and a legislation to protect us against terrorism. In 2009 the 600 families of employees of Cidade De Goa have provided enough peaceful and positive energy to amend an archaic law. All these achievements ensured the principle that the law serves the people. These were not done on the strength of wealth or power, but by common people with vibrant minds and positive energy. The people are the sovereign in a democracy and nothing can change that. What is clear is that while one set of people wishes to build lives, there is another set which is focused on demolition. I do not see the logic in demolishing a building which provides employment to hundreds and food on the table for thousands, a building which has all the permissions and clearances required by law. The only error I found here is a single word on a foundation agreement which is based on a faulty archaic legislation. No doubt this legislation had the force of the letter of the law, but it completely failed a test in the spirit of the law, which remains the higher element. The fact is that in times of global recession, no argument to take away the livelihood of six hundred families is tenable. The government has been the saviour of these 600 families and the ordinance so passed has the sanctity of both the letter and the spirit of law. http://www.oheraldo.in/pagedetails.asp?nid=19070&cid=14