A Case Study in Institutional Failure
The oppressive salt tax had been the inseparable ingredient of the British rule. The historic Salt Satyagraha saw the country rising in unison against the contrivance that kept the price of this item of daily requirement deceptively high to the great detriment of the common man. Keeping in with public sentiment, the salt tax was abolished in 1947.
More than the general public, the salt cultivatorshad suffered the brunt of the salt laws. These laws were stringent and any minor infringement or lapse meant fine and imprisonment, even the deprivation of the right for salt cultivation, the only source of livelihood for many among them. They could enter their salt work only during fixed hours and they could not sell their produce save with due permission.
However, the abolition of the salt tax brought no relief to the salt farmers. On the contrary, greater deprivations and harassments have been in store for them in our free and democratic polity, notwithstanding the inviolability fundamental and constitutional rights, benevolence of the welfare State and the solemnity of judicial review.This little known narrative tells much about institutional failure that has been our bane, post-independence.
Salt is produced in marshy lands unusable for any other cultivation. Salt making is very much a farming activity. The salt producing centres are mostly remote villages struggling for basic necessities of life. Majority of the cultivators are marginal farmers for whom salt making is the source of livelihood. The intricacies of the Government and its business are beyond their reach. The salt officers hold the last word in their struggles for livelihood.
The British Government, with all its viciousness in gathering the salt tax, had ensured that all their measures had the mandate of the law. It had been their watchword that rulesand bylaws infringing the ordinary rights of the individuals were to be construed strictly on what the legislature had intended; it was also the principle that no tax shall be levied or collected unless so authorized by law.Government had effectively interfered when salt officers over reached their mandate and had ensured the protection of laws to the salt cultivators.
The mandate of the salt officers was confined to collecting the salt tax and they had no powers or authority beyond that threshold. The pre-independence abolition of the tax had disabled the salt laws and the vicious licensing. The salt officers stood disenfranchised of their power and authority. Salt cultivation became free enterprise protected by the Law and Constitution. The salt makers stood freed of all the shackles.
But this forms only the theory. The salt cultivators have never enjoyed this freedom; in fact they have no knowledge of it. The salt officer is all the more powerful. He still collects many a tax and fee of various hues, but issues no receipt. He demands and obtains many a signature on blank paper under manya pretext. He can dispossess them of their occupied lands without any notice or intimation. Remedies are beyond the reach of the average cultivator.
This fairytale holds many a surprises. The British rulers, in spite of the rigours of the salt tax, had never put in bargain the landed rights of the cultivators. The salt laws in the both Madras and Bombay Presidencies had acknowledged the inviolable proprietary rights of the cultivators. In fact, their rights had been recognized more valuable than those of the ordinary ryots holding lands under grain cultivation because of the higher outlay in constructing the salt works and heavy recurring expenses in keeping the works in good repair. Cancellation or withdrawal of licence did not entail loss of possession of the lands; the farmers continued to be in occupation of the lands,utilizing for purposes other than salt manufacture. They could be dispossessed and their lands taken over only through the due process of law. The lands were liberally transferable and heritable.The salt cultivators had received proper compensation whenever the lands in their lands had been acquired for public purpose. Vast chunks of salt lands at within the city had been acquired for the Bombay Port Trust; the cultivators had received compensation at market value.
But things are different after our country’s independence. The salt makers are no longer the land holders. They are just the tenants who have access to their lands at the mercy of the salt officers. Their lands could be taken away without their knowledge. They can transfer or inherit the property only if the salt officers approve after a tortuous procedure, that too at a premium. They receive no or paltry compensation, if their lands are acquired for public purpose. They pay taxes and fees not sanctioned by law, but imposed by the executive.
Things are extra-legal. Rule of law entails that the public officials have the discretion and the powers to interfere with private rights only to the extent they are authorized under the law; they can levy no fees and taxes save with the authority of law. Once the salt tax was withdrawn, the salt officers were left with no powers or authority to regulate salt making and that should have ended their vice-like gripover the salt farmers.
However, the salt officers, addicted to the clout over their countrymen, could not reconcile themselves to the call of liberty and rule of law. The fascination for power compelled them to devise means to usurp what law in its wisdom had avoided.
Salt lands, like any other farm lands, have been liable payment of land revenue. This tax has been a sovereign levy of immemorial origin providing means for administration to the king or the rulers. This levy is a first charge on the land. Prior to constitution of the salt department to administer the licensing system and collect duty on salt, the salt farmer had been paying land assessment directly to the revenue establishment. After the advent of the salt department, this task also entrusted to the salt officers, as matter of mere convenience and the land revenue so collected used to be credited to the Land Revenue Department. This system of convenience had been in place for more than a century.
The revenue records reflected this arrangement. During that period, land records were much less than a record of right, but only signified the mode of collection of the land tax. Hence the salt lands came to be recorded as Mithagar (in Maharashtra and Gujarat), Uppalam( in Tamil Nadu), Salt Kottar, UppuGalli(in Andhra Pradesh) etc. without registering the name of the salt farmer holding the land.All those things had happened in the long past, during the period of 1850-1900, beyond the reach of living memory.
A century later, the apparent absenceof the names of the salt cultivators in the land records became handy for salt officers to launch a trial balloon that the salt lands belong to the Salt Department and the salt makers are mere licensees.The salt farmers were informed that their salt licences required to be renewed. This could be done only if they executed a lease deed with the department conceding their lands to be Government lands and agreed to pay assignment fee. The salt makers had protested that they had been absolute owners, but in vain. Faced with dispossession and devoid of the means or the resources to exert the rights, they yielded.
The lease deeds have provided the salt department with unbridled powers beyond the shadow of constitutional limitations. Right to occupation, business and trade is a fundamental right. So is right to life which includes right to livelihood. Restriction, if any, should be reasonable and lawful. No tax could be levied except with the sanction of law. No one could be deprived of their property except through the due process of law.
But the fictitious lease and the obtuse lease conditions circumvents the law and the constitution and have virtually disenfranchised the innocent citizens taking advantage of their ignorance and obedience to what they were made to understand was the public policy. The consequences have been disastrous. The Government and its instruments ordained to guard the life and property of the populace have metamorphosed into a vehicle for grabbing the property and depriving livelihood.
The lesson of this continuing saga is not just the havoc wrought out by a recklessinstitution; far more informative is the collective institutional failure. A peep into the past offers an enlightening narrative.
The system of salt officers collecting land revenue had its origin in the Bombay Presidency as far back in 1837. However, the Government had clarified as early as 1840thatthe levy of land assessment by the salt officers was a matter of mere convenience and that those officials possessed no powers to enforce the payment which only the revenue authorities were competent. The Government had issued the clarification at the instance of the District Collector who had taken exception to the salt officers issuing demand of the land tax.
Those were the times of Company. Not the Crown, but the East India Company was the ruler. However, the authorities and the Company administration were wide awake to the basic concept of governance that public officials cannot traverse the limits of authority while dealing with the common man.
In an equally instructive instance, the Advocate General had occasion to emphasize another essential of rule. During 1896, the Collector of Salt Revenue was reluctant to issue licence to the buyer of a salt work. The licence contained a condition that salt work shall not be transferred except without the permission of the Collector.Giving his opinion, the Advocate General had cautioned, “I think the condition preventing a man from selling, leasing or raising money upon his salt work is not such a condition: it is a condition which would prevent a man from doing what he ordinary law allows him to do, and all conditions, rules and bylaws encroaching the ordinary rights of individuals are considered strictly and unless it could be shown the legislature clearly intended such a condition could be imposed, it would be invalid.”
However in our Welfare State wedded to rule established by a Constitution, there has been no one to restrain the errant salt officers. Various State Governments and their Revenue authorities have accepted the tall claims without batting an eyelid, even though even a casual glance into their own records would have revealed different facts. The Law Officers and the Law Ministry have also been content to give tentative opinions on inchoate references.
The most abject has been the helplessness of the Judicial Forums. The salt officers, by their ingenuity have neutralised any effective judicial review through pleadings and evidence against their knowledge and integrity. It is an institutional tragedy that the rights of citizens, deprived of their fundamental and constitutional rights, for judicial remedy have been rendered illusory because of unconscionable false pleadings and erroneous legal submissions. Courts can do justice only if litigants are willing to place all the relevant facts before it. Judges can give the right decision only when ably assisted by the lawyers. The State is very much an organism; institutions are its body parts. It is the rule of law that provides the life force. It is an institutional malignancy if the organization turns false to law and its rule. The obvious fallout would be metastasis of the polity. The judiciary, whose functions have to be detached and objective, is the most vulnerable. Deprived of best evidence judiciary chokes and judgments go astray.
What is most galling is that the counsels who have been appearing in these matters have failed to live up to be professionals as the Officers of the Court. Spurious pleadings and misleading submissions have never been challenged. No attempts have been made been unraveling the historical truths or elucidating the correct law. The texts of the earlier and present judgments reveal them to be too obsessed with semantics and precedence than facts and law.
Manusmritilays down the dictum, ‘Litigants should not either enter the courts; or if they enter the courts they should only tell the truth. Those who remain silent when questioned and those who answer falsely are sinners. If litigants spoil justice through injustice and witnesses spoil truth through untruth even the audience becomes afflicted with sin. If dharma is ruined, dharma will ruin us.’
Certainly, false pleadings are unconscionable. It confounds the judicial system. Consequences are bound to be graver when public agencies play hide and seek with the judicial proceedings. Judiciary is the guardian of the Constitution and protector of the common man’s rights. The guardian having been marginalized, it has become an open field for the self-serving officials to champion public interest to be synonymous with their parasitical interest than of the citizens.
This deceptive adventure in governance has been making rapid progress by leaps and bounds for the past half a Century. The overreaching salt officers have not spared even the finest moment of our freedom struggle from their all-conquering mission. These salt works at Dharasana and Charwada villages in Valsad District in Gujarat were once Government salt works i.e. salt works owned by Government – originally constructed by Government and kept in good repair and maintenance by the Government at its expense. The agarias i.e. salt labourers produced the salt on account of Government. During the second phase of the Salt Satyagraha, the protestors tried to take possession of the salt works and the produce. In a clever move, the British Government abandoned the salt works and transferred all the rights to the tenant farmers. As the holdings were small, cooperative society had been formed to effect the sales. However, each holder had a separate licence. Perhaps, this may be first case where the Government had conceded the land to the tiller.
However, during 1973, the Salt Department compelled the Society to take out a single licence for the entire area and to execute a lease deed and to pay lease money, thus depriving individual farmers of their rights and interests. The exorbitant increase of lease money during 2005 has dented the functioning of the Society. The Society is under threat of dispossession against the mounting arrears of lease money. That may wipe out the living monument of the epoch making moment.
The writer is working as Assistant Salt Commissioner and is presently posted in Kakinada. The views expressed by him are personal.