Vikram Seth - A Suitable Boy

The Chief Justice was looking through his copy of the Constitution, and scanning for the fourth time the words of Articles 14 and 31.

The other judges (Mr Justice Maheshwari excepted) had been asking some questions of the Advocate-General which the Chief Justice had been following with only half an ear. The Raja of Marh, who seemed to enjoy the atmosphere of the courtroom, was listening with no ear at all. He was present in court, but once more not conscious of the fact. His son, the Rajkumar, did not dare to nudge him awake when he slumped forward.

The questions from the bench spread over the entire field of the immediate argument.

‘Mr Advocate-General, what is your response to the argument of Mr Bannerji that the purpose of the Zamindari Act is not a public purpose but the policy of the political party which for the time being is holding office in the state?’

‘Could you attempt, Mr Advocate-General, to reconcile these various American authorities? I mean, on the question of public purpose rather than the equal protection of the laws.’

‘Mr Advocate-General, are you seriously asking us to believe that “notwithstanding anything in this Constitution” are the controlling words of Article 31 Clause 4 and that any act under the aegis of that article is therefore unchallengable under Article 14 or any other article of that Constitution? Surely it only protects the act from challenge on grounds contained in Article 31 Clause 2.’

‘Mr Advocate-General, what about Yick Wo versus Hopkins with respect to Article 14? Or the passage in Willis approved by Justice Fazl Ali in a recent Supreme Court decision as being a correct exposition of the principles underlying Article 14?—“The guarantee of the equal protection of the laws means the protection of equal laws.” And so on. Learned counsel for the applicants made much of that, and I do not see how you can counter their contention.’

Several reporters and even lawyers in the courtroom had the strong sense that the case was beginning to go against the government.

The Advocate-General appeared unconscious of this. He continued, unexcitedly, to weigh his words, even his syllables, with such care that he emitted them at only about a third of the rate of G.N. Bannerji.

His answer to the first question was: ‘Di-rec-tive Prin-ci-ples, my Lords.’ There was a long pause, and then he listed the relevant articles one by one. This was followed by a shorter pause, then the statement: ‘Thus your Lordships see it is in Con-sti-tu-tion itself and not party policy merely.’

To the question about reconciling the various American authorities, he merely smiled and said: ‘No, my Lords.’ It was not for him to attempt to reconcile the irreconcilable, especially since it was not he who was leaning on the American cases for support. Indeed, had not even Dr Cooley said he was ‘somewhat at sea’ when attempting to determine the meaning of ‘public purpose’ in the light of conflicting judicial decisions? But why mention that? ‘No, my Lords’ was enough.

Non-geographically speaking, the Chief Justice had been somewhat on the sidelines during the last few minutes. Now he too entered the fray. Having looked once more at the crucial articles and having doodled a fish on the pad in front of him, he cocked his head to one side and said:

‘Now, Mr Advocate-General, I understand that the state contends that the two payments, the flat-scale compensation and the wealth-based, sliding-scale rehabilitation grant, are of an entirely different nature. One is compensation, the other not. Thus they cannot be lumped together, and it cannot be said that the compensation is on a graduated or sliding scale, and it cannot therefore be called discriminatory or unequal against large landlords.’

‘Yes, my Lord.’

The Chief Justice waited in vain for elaboration. After a pause he continued:

‘And it is further argued by the state that the two payments are different because, for example, different sections of the Zamindari Act relate to these two payments; because there are different officers in charge of their disbursement — Rehabilitation Grant Officers and Compensation Officers and so on.’

‘Yes, my Lord.’

‘Mr Bannerji’s contention for the applicants, on the other hand, was that this distinction is mere sleight of hand, especially since the compensation funds are only about a third of the rehabilitation funds.’

‘No, my Lord.’

‘No?’

‘Not sleight of hand, my Lord.’

‘And he says,’ continued the Chief Justice, ‘that since the distinction was not mentioned in the legislative debates until a late stage, it was introduced by the government after the adverse Patna High Court judgement as a way of fraudulently getting around the constitutional protections.’

‘The act is act, my Lord. Debates are debates.’

‘And what about the preamble to the act, Mr Advocate-General, which makes no mention of rehabilitation as an objective of the legislation?’

‘O-ver-sight, my Lord. The act is act.’

The Chief Justice leaned his head on his other arm. ‘Now suppose we were to accept your — that is, the state’s — contention that the so-called compensation is all there is by way of real compensation under Article 31 Clause 2, how would you then describe the so-called rehabilitation grant?’

‘Ex-gratia payment, my Lord, which state may freely make to anyone in any way it chooses.’

The Chief Justice now leaned his head on both his hands, and examined his prey.

‘Would the protection from judicial challenge that Article 32 Clause 4 provides to compensation extend to ex-gratia payments as well? Could the unequal terms — the sliding scale — of this ex-gratia payment not still be challenged under Article 14, which provides for the protection of equal laws?’

Firoz, who had been listening to the argument with the utmost attentiveness, looked at G.N. Bannerji. This was precisely the point he had been veering towards in the conference that evening. The distinguished lawyer had taken off his spectacles and was polishing them very slowly. Finally, he stopped polishing them altogether, and stood completely still, looking — like everyone else in court — at the Advocate-General.

There was silence for a good fifteen seconds.

‘Challenge to ex-gratia payment, my Lord?’ said Mr Shastri, appearing genially shocked.

‘Well,’ continued the Chief Justice, frowning, ‘it works on a sliding scale to the detriment of the larger zamindars. The smallest ones get ten times the computation based on rent and the largest ones get only one and a half times the computation. Different multiples, ergo unequal treatment, ergo unfair discrimination.’

‘My Lords,’ protested Mr Shastri, ‘ex-gratia payment confers no legal rights. It is pri-vi-lege conferred by the state. Therefore, it is not open to question on ground of un-fair dis-cri-mi-na-tion.’ But the Advocate-General was not smiling quite as broadly. This had become almost a one-to-one cross-examination. The other judges did not interpose any questions.

‘Now, Mr Advocate-General, in America it has been held by their Supreme Court that their fourteenth amendment — to which our Article 14 happens to correspond in language and spirit — applies not only to liabilities imposed but to privileges conferred as well. So would that not apply to ex-gratia payments?’

‘My Lords, American Constitution is short, so gaps are filled by in-ter-pre-ta-tion. Ours is long, so the need is less here.’

The Chief Justice smiled. He looked rather wily now: an old, wise, bald tortoise. The Advocate-General paused. But this time he knew he would have to put forth a less unconvincing and general argument. The two fourteens were too alike. He said: