A few disgruntled soldiers are virtually camping in media studios to press for something which is not feasible, given the overall economic scenario and the competing demands of equally critical spheres like agriculture and rural development.

Every rupee diverted to non-developmental expenditure can only be at the cost of sorely-needed funds for, say, the farm sector, where it has been well-documented that out of sheer penury, almost one lakh farmers have committed suicide in three states in the last decade alone.

As it is, the armed forces are today the highest paid segment of the Government if the total package is taken into account, including the numerous perquisites enjoyed by the forces even after retirement. In consistently articulating such demands, the cash value of such perks is never taken into reckoning, and conveniently ignored. Another bonanza, which is already in place, is that such perks, mostly in kind are tax-free. The underpaid civilian counterparts have to purchase these essentials in the open market from their post-tax salaries and pensions.

There is another latent danger in under-worked and overpaid forces vis-à-vis under-paid and overworked civilians who are not given to exerting street pressure on a weak executive. The armed forces, in their day-to-day functioning, report to their civilian counterparts, and are accountable to them. Civilian control of the armed services is a basic norm in democracy. The civil-military equation is already skewed in favour of the forces, to the long-term detriment of democratic functioning.

The possible ramifications of the latest directive of the apex court on the para-military forces of the Union have perhaps not been taken into account by the judiciary. The para-military forces may be just waiting in the wings. As it is, they are acquiring more and more attributes of the armed forces like virtually free club culture, subsidized food and liquor etc. If the Government were to now succumb to pressure and concede another unjustified bonanza to the retired soldiers, and should a similar demand be raised by the para-military forces, the government&’s finances would go haywire.

The pay and pensions of various segments of government servants is an extremely complicated issue, involving inter-service parity and differentials based on the level of responsibility shouldered, qualifications and experience. It is also a basic question of civil-military equation, so critical for the survival of democracy itself. The recent experience of Latin America and nearer home in Bangladesh suggests that any ad hoc decision under street pressure could prove disastrous for our democracy.

Reverting to the CVC Act, a supreme irony in such judge-directed legislation is that it is also contrary to the basic norms of modern jurisprudence. Law, in the ultimate analysis, has been defined as a ‘negative command’. Should the citizen, or a public authority, deviate from his prescribed duty, he is bound to pay a penalty. A law like the CVC Act has done no such thing except put avoidable fetters on the executive even though it still remains fully accountable to Parliament. Accountability without full authority puts the elected Government in a very embarrassing position.

If such a state of affairs continues, it can only harm the cause of democracy in the long run. People begin to lose faith in the “system”. An argument is often made that if the executive fails, the judiciary must step in. This is a very dangerous argument to advance. Millions of cases are pending in the courts, while the judiciary is occupied in extending its jurisdiction to the executive domain, and sometimes into the domain of the legislature. By the same logic, if the judiciary fails, does it follow that the executive must step in?

The concentration of executive and judicial power is fraught with peril. In modern jurisprudence, ‘dictatorship’ is defined as a concentration of executive power with judicial power. It would be worth recalling that prior to Independence, the executive had some judicial powers too. It was a serious bone of contention between the leaders of the freedom movement and the British authorities. Indians were suffering because of this totally undemocratic dispensation, and the Congress party had resolved to undo the inequity.

The Founding Fathers took it up as an article of faith. When independent India&’s Constitution was drafted, a specific Article was enshrined in the Directive Principles “to separate the Judiciary from the Executive” (Article 50). It would be a tragic irony if having separated the Judiciary from the Executive, the judiciary were to now virtually subsume the executive. But there may be hope yet. In a landmark judgment, the Supreme Court itself has described the Article as “the conscience of the Constitution”.

There is no reason to believe that the anguish articulated by His Lordship in an open forum is not shared by other judges in the apex court. It is possible that the level of satisfaction may vary, not as low as 5 per cent. Another reason for the present state of affairs is the tendency to legislate in the guise of “creative interpretation”. It is creating endless problems for the executive, as pointed out by arguably one of India&’s top jurists, Arun Shourie.

The judicial entry into the legislative domain is exemplified by continually expanding the ambit of Fundamental Rights, without taking into account the financial capacity of the state to pay. Arun Shourie evocatively calls it “Rights mongering”. He has drawn attention to the collateral damage that is being inflicted on our body politic. The common man is losing faith in the ‘system’ –“See, even though the Supreme Court has said that such and such is our Fundamental Right, the Government is not providing it.”

As the problems are a result of what the former Prime Minister called an “overarching” role by the judiciary, the solutions necessarily must come from within. Arun Shourie has further drawn attention to a landmark ruling of the US Supreme Court — “Courts are not entitled to usurp legislative function under the disguise of interpretation.”

(Concluded)