The Times of India, 19 Nov 2003
The judiciary is blocking India's liberals. The Bombay high court has been sitting on a public interest litigation filed by the Indian Liberal Group for over five years.
ILG is appealing against the section in the Representation of THE People Act restricting electoral competition to socialist parties. So let us attack socialist jurisprudence, for we have the longest constitution in the world but little justice.
Obviously, there is something wrong with socialist law. An economist commenting on law what cheek, the legal community will cry. I must inform them that great economists have all written on law. Adam Smith's Lectures on Jurisprudence are a classic. Frederic Bastiat's slim volume The Law has been published in India. I guarantee that anyone who reads the book will be convinced that the Constitution of India is not quite all right. Friedrich Hayek wrote The Constitution of Liberty, a book Margaret Thatcher swore by; and there is Murray Rothbard's The Ethics of Liberty.
Let us begin by understanding the origin and purpose of law. It is because of property that law was necessary. That is, it is not because of law that property exists; it is because of property that there is law. The common law evolved to sort out disputes related to the natural right to property. Liberal judges take this as their guiding principle so let us apply it to important issues before our socialist judiciary and see what results we get.
Take, for instance, what a liberal judiciary would do if Parliament passed a law banning cow slaughter: It would simply tear up the law on the grounds that cows are private property. Each man must be free to do what he wants with his own cow and the state cannot interfere. Did any legal luminary speak this language? Now, apparently our rulers want to de-politicise Ayodhya and the issue is before the courts. What did the courts do? They asked the Archaeological Survey of India to dig up the disputed site and discover what lay underneath. Is this the application of our principle? If a temple is discovered under my house, can anyone lay claim to my property? Certainly not.
If liberal jurisprudence is applied to Ayodhya, the solution is clear and simple: There is no clear title to the site; there are various claimants, each possessed of little legitimacy; therefore, the site must be auctioned. Socialist jurisprudence is not justice. Socialists reject the natural law of property and believe that the purpose of the law (and the state) is to redistribute property. Theirs is a Robin Hood ideology but it is time we stopped looking at their legal plunder (what they call redistributive justice) as romantic.
Rent control, for example, is the only cause of slums. They have destroyed the market for cheap rentals. They do not like landlords so they created slumlords. And they did not settle disputes, the first purpose of law. Rather, they prolonged disputes. My uncle spent 20 years of his youth battling a rent control case. A long-term solution is to promote the teaching of law and economics. We have few economists in law schools all over the country. This must be tackled. As far as the short-term is concerned, there is no solution. We in India must face up squarely to the fact that the socialist state which we placed on the commanding heights is reporting symptoms of multi- organ failure. This is entirely because socia-lists apply completely wrong principles to government. Behind this multi-organ failure lies a far deeper knowledge failure. I can personally testify to the poor quality of teaching at the IAS Academy in Mussoorie. I went through my son's ICSE economics textbook and advised him to drop out of school.
I find it amazing that Amartya Sen is recommending mid-day meals in state schools: It is a prescription to assuage physical hunger while ignoring the mind. If, in the short-term, we wake up to the fact that we are faced with a powerful, centralised, nuclearised state that is reporting multi-organ failure, then the medium-term solution would be to challenge what is being taught in economics, political science (or civics), public administration and law. Let us include liberal jurisprudence in law schools. Let us have the political value of freedom included in civics textbooks. Let us teach students of economics how wealth is created, so they value freedom and understand markets. Let us make a bonfire out of Indian economics textbooks, a bonfire of the socialist central planners' vanities. The liberal only appeals to reason, and it is to reason that we must appeal, even if denied entry into the electoral fray.
In this way, liberalism will gain ground and someday soon we will have the critical mass necessary to re-invent every aspect of our government, including the law and the judiciary. A note of hope: We go through life, getting all our needs from the market, usually without recourse to either civil or criminal law. So we don't need courts that badly. Second, we have a proud history of private courts in the cities run by the East India Company. Sir Elijah Impey was a great EIC judge. With sound jurisprudence, simple law, and a short constitution, we can have freedom as well as justice.