M J Antony: Why pick me, M'lord?

One wrong does not justify another, says the Supreme Court

There was a time when statesmen were criticised for taking a holier-than-thou attitude. Nowadays, politicians involved in scams tell their opponents: why single me out, dirtier art thou!

This distorted version of equality is put forward in the courts also. The Supreme Court keeps hearing this defence from parties, who missed their chance when others got away with wrong orders from the government, or even the court.

The most recent such case was in Usha Mehta vs Government of Andhra Pradesh, decided two weeks ago. The Hyderabad municipal corporation refused to regularise the lease of a piece of land because it was earmarked for road, and the lease deed was forged by an officer, who was convicted for similar fabrication of documents.

Nevertheless, it was argued by the petitioner that even if the lease deed was a fake, the municipal corporation had regularised hundreds of similar cases, and refusal to do so – in her case – would be discrimination and violation of equality guaranteed in Article 14 of the Constitution.

The Supreme Court rejected this contention in strong words. “The concept of equality enshrined in Article 14 is a positive concept,” the judgment said. “The court can command the state to give equal treatment to similarly situated persons, but cannot issue a mandate that the state should commit illegality or pass a wrong order because in another case such an illegality has been committed or wrong order has been passed. If any illegality or irregularity has been committed in favour of an individual or a group of individuals, others cannot invoke the jurisdiction of the court and seek a direction that the same irregularity or illegality be committed in their favour by the state or its agencies/instrumentalities. In other words, Article 14 cannot be invoked for perpetuating irregularities or illegalities.”

But litigants with stains on their hands never cease raising this logic-chopping line of reasoning asserting equality. In the judgment in Chandigarh Administration vs Jagjit Singh (1995), the court said that “since we have come across many such instances, we think it necessary to deal with such pleas at a little length.” It went on to explain in detail the issue and said: “By refusing to direct the authority to repeat the illegality, the court is not condoning the earlier illegal act/order nor can such illegal order constitute the basis of a legitimate complaint of discrimination. Giving effect to such pleas would be prejudicial to the interest of law and will do incalculable mischief to public interest. It will be negation of law and rule of law.”

Most of these cases involve land allotments, award of contracts, tenders, trade tax, appointments and promotion of employees. The government and public authorities may have their own reasons for bending the rules, but the courts also are not infallible in this respect. There are several cases in which the courts have passed wrong orders, attracting several people to demand the same undeserved benefits.

In the case of Faridabad CT Scan Centre vs DG of Health Services (1997), the court passed wrong orders on the question of duty exemption for a diagnostic centre run by a private individual, purely on a commercial basis. One bench refused the request for that benefit. But another bench granted it to another party on the ground that “several other diagnostic centres had been granted the exemption and hence there should not be any discrimination.” The relief was granted entirely on the basis of the equality doctrine.

When the diverse rulings were referred to a larger bench, it said: “We fail to see how Article 14 can be attracted in cases where wrong orders are issued in favour of others. Wrong orders cannot be perpetuated with the help of Article 14 on the ground that such wrong orders were earlier passed in favour of some other persons and, therefore, there will be discrimination against them.” The judge who allowed the plea of the diagnostic centre himself had once said equality is not a negative concept and one wrong would not justify another (Union of India vs JV Subhaiah (1996)). So much for the infallibility and consistency in judicial pronouncements.

In the case, State of Haryana vs Ram Kumar, a small pox supervisor resigned to contest state elections. His resignation was accepted. When he lost at the hustings, he returned to claim the job. It was denied. He argued that several others who had submitted resignations in other circumstances had been taken back. The Supreme Court did not buy the argument based on equality.

Despite all these weighty pronouncements, “why pick me, M’lord?” is a question that is often heard in courtrooms — as much as in prayer halls, in the existential context. M’lords below have given clear answers in their judgments. But there is no voice from heaven.