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Wednesday, December 13, 2017

OROP – Constitutionally Speaking (A guest post by Akshat Agarwal)



Guest post by Akshat Agarwal, a budding lawyer

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In light of the recent controversy over the issue of One Rank One Pension (OROP), it may be pertinent to turn for guidance to the supreme law of the land, the Constitution of India. This document, drafted over thousands of hours of deliberation and discussion, provides the blueprint according to which the government of India is supposed to run the country. As such, the constitution lays down certain principles as inalienable and intrinsic to the very nature of India as envisioned by its writers, as well as by the millions of Indians they represented.
One of the most important philosophical foundations of our state and it’s polity is the idea of equality. In a country recently ravaged by colonialism, marked by racial discrimination and second class treatment of ‘natives’, we determined that the very foundation of our nation would rest on the idea of innate human worth, regardless of origin, sex, belief or any other such factor. This is manifested both in the preamble to the constitution, which guarantees ‘equality of status and opportunity’ and in Article 14, which goes on to cement equality as a fundamental right, guaranteed to be enforced and protected by the judiciary.
Article 14 essentially includes two promises: the first, equality before law and the second, equal protection of the law. The first promise implies that all individuals, regardless of any factors, are considered equal, with no particular privilege or disadvantage being attached because of caste, colour or creed. The second promise means that all individuals have the rights and privileges that the law guarantees to them, and no discrimination can be tolerated in the enforcement of the same.
As such, the basic premise of Article 14 is treating people placed in similar circumstances equally. Two individuals, as long as they are similarly placed, must receive equal treatment. Obviously, this idea of similar circumstances or status is important; no rational person would argue that the constitution directs, for instance, that everyone, regardless of profession or qualifications, be paid the same salary. Thus, our courts, in their task of interpreting the law, have come up with the idea of ‘intelligible differentia’. If an intelligible differentia can be shown between two people or groups, the law is justified in treating them differently. However, unless this can be proven, differential treatment within the same class of persons is arbitrary and unconstitutional on part of the government. Moreover, the intelligible differentia must be looked at in the particular context of the law in question and its objectives.
The OROP movement, if looked at from a constitutional lens, is essentially a struggle for equality, to ensure that the government keeps promises that have been made. Servicemen, while they might have retired at different times, cannot be seen as anything but one class of people. They go through the same hardships, are subject to the same rules and regulations, and undertake the same operations with the same dangers. They belong to the same occupational group. Thus, the discrepancies in pensions on the basis of retirement date is abhorrent to the very idea of equality as enshrined in the constitution.
Moreover, it must be noted that a pension is not charity. The government, were it to implement One Rank One Pension today, would not be doing the soldiers of this nation any favours. Rather, it would simply be paying its dues. A pension is part of an individual’s remuneration, and the rational objective of a government pension is to ensure that an individual who has given the majority of his or her life to the service of the nation should be allowed to live a comfortable life when he or she is old, infirm, and incapable of earning as well as before. It forms a part of one’s salary, and is something that the worker, or in this case, the soldier, is entitled to. As a pension is supposed to ease the individual’s life post-service, the rational conclusion is that two individuals who retired at the same rank at different times, but are alive and well at the same time in 2015, deserve the same pension. In addition to having faced similar ordeals and operations in service, both these individuals are subject to the same prices and demands in today’s inflationary world. It would be bizarre and absurd to suggest that an 80 year old veteran of the 1965 war requires much less to survive than someone who retired at the same rank last year. In actuality, the older man probably needs more money for healthcare in his advanced years.
Thus, the government’s reluctance to implement OROP besmirches the idea of equality as promised to each citizen of our nation. It represents a refusal to pay thousands of its own soldiers what is owed to them, and is tantamount to abandonment and betrayal. While arguments might be made by those who oppose OROP about the burden on the exchequer, it is vital to realise that this burden is nothing but the saved up pay of the men on our borders, promised to them once their watch is over, now refused by those in the highest offices of the country they fought, and very often, died to protect.

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