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JUSTICE P.K. GOSWAMI MEMORIAL LAW LECTURE ON COMMON MAN AND THE CONSTITUTION OF INDIA+
by Justice Shivaraj V. Patil++
Cite as : (2005) 2 SCC (Jour) 21
I am deeply delighted and feel honoured to deliver Justice P.K. Goswami Memorial Law Lecture at the invitation of Late Mr Justice P.K. Goswami Memorial Law Lecture Foundation Committee. A memorial lecture, while serving the purpose of remembering a great person with a view to draw inspiration from his life, should also contribute few thoughts for development of the society.
Persons like late Mr Justice P.K. Goswami are great asset not only to the profession but also to public life. As can be seen from the life of Justice P.K. Goswami, he has served the country in several capacities apart from rendering significant service as Chief Justice of the High Court of Gauhati and as a Judge of the Supreme Court of India. The law reports unfold many of his notable judgments dealing with the important questions of law. As I understand, he was a man of varied activities. I am told that his contribution as Chief Justice of Gauhati High Court was remarkable in the improvement of administration of justice; discipline was dear to him; his contribution was impressive as the Chairman of the Press Council. He was a sportsman and his performance was good in both the courts i.e. law court and tennis court. It is said:
"Good lawyers make good judges. Good judges make good judgments. The courts are decorated by good judges and good lawyers together, but not the other alone. By diamond, the bracelet gets decorated and by bracelet the diamond gets decorated. Diamond alone is not decorative. By diamond and bracelet the hands get decorated. There is no beauty of lotus without water and there is no dignity of water without lotus. With the water and lotus together, the entire lake gets decorated. Lawyers and judges together decorate courts. Thus, the Bar and the Bench are complementary to each other."
This way Justice Goswami decorated the Court. The topic chosen for this memorial lecture is: "Common Man and the Constitution of India".
The struggle for freedom was not only to demolish the foreign rule but it was also to build an egalitarian society to secure life of quality to the people with right to equality. The prevailing conditions before independence in this country were pathetic and miserable. People suffered with poverty, ignorance and illiteracy, want of food and shelter. Even basic human freedoms were not available. The plight of the women was that of a subjugated inferior being. These conditions motivated and made the people firm to fight for freedom so that the country could be free from the British rule and people of this country could live life of dignity with peace and happiness. With great courage and supreme sacrifice people of India fought a long and untiring battle finally securing freedom on 15th August, 1947. Political leaders of India in their struggle for freedom faced cruel resistance and harassment whenever and wherever they raised their voice for equality and freedom. Pandit Nehru said:
"The ambition of the greatest man of our generation has been to wipe every tear from every eye. That may be beyond us, but as long as there are tears and sufferings, so long our work will not be over."
We can see in these words the great dream of Gandhiji and vision of Pandit Nehru to work for the common man.
It is a matter of common experience that the prevailing conditions in a society and historical background mainly shape the Constitution of a country. At the time when we attained freedom and the Constitution was being drafted the prevailing social, economic and political state of affairs in which the people lived had great impact in framing the Constitution. It took 2 years, 11 months and 17 days to finalise the Draft Constitution. The Constitution in its preamble solemnly declares establishment of a sovereign, socialist, secular and democratic republic, promoting among its citizens, justice—social, economic and political. This promise is established in the fundamental rights and directive principles of State policy enshrined in Part III and Part IV of the Constitution. In other words, the preamble, the fundamental rights and the directive principles are all part of the same constitutional scheme and aim at the establishment of a free and a just social order based on the rule of law. They aim at the betterment of the individual as an integral component of the society. Our Founding Fathers did a commendable and remarkable job.
Building an egalitarian society was the pronounced concept of those who fought for freedom. Mahatma Gandhi wanted to wipe out every tear from every eye. In this backdrop, the great framers of the Constitution strongly and rightly felt that the necessary provisions must be made in the Constitution to enable the people to receive high priority for basic necessities of life. With this end in view, the Constitution was designed to bring happiness to the largest people. Part IV of the Constitution reflects this high ideal envisaging a society in which opportunities have been given for the pursuit of happiness without any discrimination of caste or sex or religion, etc., and there is equal opportunity to everyone and there is no concentration of power or wealth in the hands of few to the detriment of many. These assurances are to be turned into reality. The Constitution also provides fundamental rights to the people which include basic human rights. It is needless to state, however well thought and well drafted a Constitution is, it by itself will not serve the purpose; ultimately it is the people who work under a Constitution and their way of life, consistent with the spirit of the Constitution, that matters a lot. In this regard, it is useful to quote the words of wisdom and warning of Joseph Story:
"The structure has been erected by architects of consummate skill and fidelity; its foundations are solid; its compartments are beautiful as well as useful; its arrangements are full of wisdom and order; and its defences are impregnable from without.... It may, nevertheless, perish in an hour by the folly, or corruption, or negligence of its only keepers, THE PEOPLE."
Under the British rule, the fundamental rights and welfare of Indian subjects were not of much concern. During the freedom struggle the inner urge of the people to secure a life of quality coupled with right to equality came to the front. Equality is a fundamental premise of a democracy being an important ingredient of modern system of social values. "Right to equality" is one of the most imperative and important fundamental right in a democratic system. Article 13(2) of the Constitution of India declares that the State shall not make any law either to take away or abridge fundamental rights which include socio-economic rights guaranteed under Part III of the Constitution and if any law is made in contravention to that extent it shall be void. Quality, sustenance and success of democracy depend on political freedom, economic equality and social justice; political freedom shall be at peril and it may become meaningless without economic equality and social justice.
Our Constitution is not only a pragmatic result of the struggle for freedom, but it also reflects the aspirations and hope of the people. It was a pious wish of our founding fathers to give quality of life to their progeny. Hence, the Constitution cannot, shall not and has not remained a dormant instrument but it is seen as a living document to address the exigencies of contemporary life. The need for enforcing socio-economic rights is well pronounced in our Constitution having regard to ignorance of the masses regarding the rights that they are entitled to under the Constitution and also because of financial inabilities of a large section of them to take legal recourse in case of violations.
The cherished goals of the Indian Constitution are indicated in the preamble, which aspires for justice—social, economic and political; liberty of thought, expression, belief; freedom of worship; equality of status and opportunity and to promote fraternity assuring the dignity of the individual.
Our Constitution provides the following socio-economic rights:
* Right to equality before the law and equal protection of the laws.
* Prohibition of discrimination by State on grounds of religion, race, caste, sex and place of birth. Affirmative action by the State is allowed for the emancipation of women, children, socially and educationally backward classes of citizens, Scheduled Castes and Scheduled Tribes.
* Equality of opportunity in matters of public employment.
* Abolition of "untouchability" and making any enforcement of a disability arising out of untouchability a punishable offence.
* Right to freedom of speech and expression, to assemble peaceably and without arms, to form associations or unions, to move freely throughout the territory of India, to reside and settle in any part of India, and to practise any profession, or to carry on any occupation, trade, or business subject to reasonable restrictions.
* No person shall be deprived of his life or personal liberty except according to the procedure established by law.
* Exploitation by way of traffic in human beings, begar and other forms of forced labour are punishable in accordance with law.
* No child below the age of fourteen shall be employed to work in any factory or mine or engaged in any other hazardous employment.
* All persons are equally entitled to freedom of conscience and free profession, practice and propagation of religion, subject to public order, morality and health.
* Right of every religious denomination or any section thereof to establish and maintain institutions for religious and charitable purposes, to manage its own affairs in matters of religion, to own and acquire movable and immovable property and to administer such property in accordance with law.
* No person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated for the promotion or maintenance of any particular religion or religious denomination.
* No person is required to attend religious instructions in educational institutions recognised by the State or receiving aid out of State funds. No religious instruction shall be provided in educational institutions wholly maintained out of State funds.
* Any section of the citizens having a distinct language, script or culture of its own has the right to conserve the same.
* All minorities, whether based on religion or language, have the right to establish and administer educational institutions of their choice. In making any law providing for the compulsory acquisition of any property of such educational institution, the State shall ensure that the amount fixed by or determined under such law is such as would not restrict or abrogate the right guaranteed above.
* Any person can move the High Court or the Supreme Court for the enforcement of the abovementioned rights.
Life as a whole in a democratic society should include equality in all the aspects, social, economic, cultural and political. Pt. Jawahar Lal Nehru said: "Every man and woman must have the opportunity to develop to the best of his or her ability." Jai Prakash Narain's ideas of "total revolution" were nothing but complete socio-economic transformation of society so that all the Indians could lead a life of equality and brotherhood. Almost all written Constitutions of democratic States guarantee the opportunity to the individual to develop his potentialities to the maximum of his capability. In our Constitution such opportunities are provided even in the form of fundamental rights, which are enforceable by the courts of law.
Article 14 guarantees general right of equality but Article 15 provides the specific application of the general right of equality. This article contains the guarantee to the citizens of India against discrimination. No citizen can be discriminated on the grounds of only religion, race, sex, place of birth or any of them. Article 15 also states that nothing in the said article shall prevent the State from making special provisions for women and children. It also enables for making special provisions for backward classes for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes.
Without economic equality the success of democratic set-up cannot be assured or sustained. Mere removal of social distinctions of castes, religions and race is not enough. On the basis of economic security abiding peace not only in a particular country but all over the world is possible. For the many-sided development of human personality economic equality is a necessity. The following words of President Roosevelt of the United States, during the deliberations of framing the United Nations Charter, may be recalled:
"We have come to the clear realization of the fact that true individual freedom cannot exist without economic security and independence. Necessitous men are not free men. People who are out of a job are the stuff out of which dictators are made. In our day these economic truths have become accepted as self-evident."
Pt. Nehru the first Prime Minister of our country after independence said, "there could be no real freedom without economic freedom" and that "to call a starving man free is but to mock him". The concern of the common man principally is in security which includes livelihood and protection of life and liberty. The common man's appetite of the belly is satisfied when it is full but the appetite of collection of power and wealth is unquenchable. There is a need for reducing the gap between the haves and the have-nots to maintain stability and peace in the society.
Article 16 speaks of equality of opportunity in the matter of appointment and employment. It provides an equality of opportunity and definitely not any right to be appointed to the post for which one applies. This article also empowers the State to make provision for reservation in favour of any backward class of citizens in appointments which, in its opinion is not adequately represented in the services under the State. Discrimination in public employment is prohibited on the grounds of religion, race, castes, sex, etc., but not on the ground of wealth. The observations of Aristotle may be remembered that, "injustice arises not only when equals are treated unequally, but also when unequals are treated equally".
Article 17 has abolished untouchability, which is a landmark in the constitutional history of India, not merely because of abolition of untouchability but because it has endeavoured to change an age-old evil social system. From the days of Gautam Buddha right up to Dr. B.R. Ambedkar and Mahatma Gandhi tremendous efforts were made to do away with this social evil.
Under Articles 330 and 332 of the Constitution, seats are reserved for the Scheduled Castes and Scheduled Tribes in the Lok Sabha and State Vidhan Sabhas in proportion of their population.
In a developing country like India a social revolution means all-round development of human personality and availability of socio-economic justice to the citizens.
The preamble of the Constitution not only contains the spirit of the Constitution but also speaks of the desires and sentiments of the people of India for social equality. Social justice requires not only elimination of old social evils but also requires removal of all sorts of inequalities arising out of wealth and opportunity, race, caste, religion and title.
Part IV comprising of the directive principles of State policy is another important part of the Constitution. Though these principles are not enforceable by any court, they are nevertheless fundamental in the governance for realising the goals set in the Constitution. Their implementation is necessary to justify the socio-economic rights provided to the people. Guarantee of socio-economic rights and promise of socio-economic justice are well indicated in the various articles of the Constitution. Austin aptly stated that both "fundamental rights" and "directive principles" constitute "conscience of the Constitution". For a common man, directive principles are first, then the fundamental rights as he has to exist first to assert and enjoy the fundamental rights. Directive principles have set the goals and indicated the directions which all the three organs namely, executive, legislature and judiciary must meaningfully try to reach and follow. Socio-economic justice provides sustenance to the rule of law. The concept of socio-economic justice embodied in the form of directive principles in Part IV of the Constitution is the most dynamic, flexible and revolutionary concept aimed at removing inequalities among all the citizens. Although they are not justiciable and cannot be judicially enforced, yet they have their importance in providing guidelines to the Central and State Governments in formulating progressive policies to bring social and economic justice to the common man.
The present is an era of globalisation, privatisation, liberalisation and modernisation. The main focus, theme and goal of all these must lead to humanisation. Humanise the globe so that everywhere the human rights are respected and obeyed touching the lives of the people particularly of all those, the hungry, the excluded, the destitute, the voiceless, the persecuted, the sick, the suffering, the disabled, less fortunate and the unfortunate. Broadly speaking, human rights are those rights which every human being without any discrimination is entitled to enjoy. Basic human rights are recognised in Part III of the Constitution giving guarantee of fundamental rights to even common man.
The Constitution reflects the socio-economic philosophy of a true welfare State. It seeks to entrench social and economic rights of the people, which is evident from justiciable fundamental rights and non-justiciable directive principles of State policy.
The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life. It shall also strive to minimise inequalities in income amongst individuals and various groups of people. It shall strive towards securing adequate means of livelihood to the citizens, ensure that the operation of economic system does not result in the concentration of wealth, and that there is equal pay for equal work for both men and women. The State shall, within its economic capacity, make provisions for securing right to work, to education and to public assistance in case of unemployment, old age, sickness, and disablement. It shall take steps to secure participation of workers in the management of undertakings and establishments. It shall endeavour to provide early childhood care and education for all children until the age of six years. The State shall provide free legal aid to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. It shall promote with special care the educational and economic interests of the weaker sections of the people. It shall also regard the raising of level of nutrition and standard of living of its people and the improvement of public health as among its primary duties.
The Supreme Court has observed that all persons similarly circumstanced must be treated equally both in the privileges conferred and in the liabilities imposed by the laws. To quote the words of the former Chief Justice of India P.B. Gajendragadkar:
"Wherever social inequality exists or economic injustice is found, a democratic State enters the arena, and with the aid of law, establishes social equality and removes economic injustice."
According to the former Chief Justice of India, Subba Rao Article 14 is a necessary corollary to the high concept of the rule of law. Article 14 has provided an implied guarantee of equal access to the courts in order to maintain the sanctity of the doctrine of equal protection. The weakest and the poorest also have access to justice in our country. Necessary provisions are made in law in this regard.
The Supreme Court of India has been consistently and continuously trying to translate letters of the book viz. the Constitution into spirit of living by creative, progressive and meaningful interpretation, paramount consideration being welfare of the people consistent with values embodied in the fundamental rights and the directive principles of State policy.
The democratic institutions should work consistent within community values. The courts should strive to make judgments upholding the community values in conformity with the constitutional provisions so that the public will not loose confidence in the judicial system. Western Australia's Chief Justice David Malcolm said—"The judiciary must keep a weather eye on community values to retain the relevance of the decisions to that community." The Supreme Court in the country has become a shield to protect and enhance people's rights as well as to encourage a human right culture.
In pursuance of these directive principles, the legislature enacted a series of statutes like the Zamindari Abolition Act and various other State Acts for the purpose of land reforms. Concentration of land ownership was thus broken and land distributed to landless poor by way of land ceiling legislations. The apathy of workers was addressed through beneficial legislations.
Secularism is one of the well-cherished values of Indian Constitution having the background of great tradition, culture and heritage. Under the scheme of Constitution, every one is permitted to profess, practise and propagate his views so long as his conduct does not interfere with the equal liberty of others.
Our Constitution is consistent with a cardinal principle of a democratic country in which the State does not discriminate its citizens on the basis of their religion. In other words, religion is an individual affair in this country.
The Supreme Court reiterated that secularism is a part of the basic structure of the Constitution, which cannot be disturbed. The concept of secularism that it is one facet of the right to equality, has given a new thrust and a new dimension to secularism in India.
Our country became a republic on 26th January, 1950 with a written Constitution. A great jurist late Mr N.A. Palkhivala pointed out,
"we commenced with one priceless advantage, namely, 5000 years of civilization behind us, a civilization in the words of Ralph Waldo Emerson reached 'summit of human thoughts' ".
He said there are twelve great "living religions" in the world and all the twelve religions flourish in India. It is because the very ethos of India is tolerance. India has an unrivalled tradition of religious freedom and tolerance in the belief that truth can never be the monopoly of any one particular sect or creed. "Let noble thoughts come to us from every side", these are the famous words of Rig Veda.
It is wrong to think that if a person is a devout Hindu or a devout Muslim, he is not secular. Swami Vivekananda and Mahatma Gandhi were great Hindus, yet their entire life and teachings represent the essence of secularism. No true religion teaches to hate the other. Different religious communities are all part of one nation in strength and glory. Compassion, humanism and tolerance by and large were part of the social, cultural and intellectual ethos in ancient India.
Gandhiji's deep concern for secularism in letter and spirit is evidenced in these words:
"All those who are born in this country and claim her as their motherland, whether they be Hindu, Parsi, Christian, Jain or Sikh, are equally her children and are, therefore, brothers, united together with a bond stronger than that of blood."
With different faiths, languages, traditions, etc. the secular outlook in thoughts and secular approach in all actions are the necessary imperatives today. Dr. Radhakrishnan said:
"Any religion which divides man from man or supports privileges, exploitation, wars, cannot commend itself to us today."
By whatever name they are called, all religions demand the practice of love and compassion. Quintessences of all religions are truth, peace, love, righteousness and non-violence.
It is sad and bad that in spite of rich heritage from time immemorial, influence of great religious leaders and express provisions found in the Constitution, still some people have not come out of narrow brackets as they are seeing rituals and not the true spirit or essence of religion.
We should gratefully acknowledge and respect Bankim Chandra Chatterjee's "Vande mataram", Gurudev Tagore's "Jana gana mana" and Iqbal's "Sare jahan se achcha Hindustan hamara", which remind us of the spirit of secularism, unity and national intergration.
"A religion without compassion is like a flower without perfume." If every one understands the true spirit of religion, there will be respect for other religions and compassion for sufferings of the people, which can certainly plant smiles on all human faces, making secularism meaningful.
Basically the spirit of secularism should find deep and firm place in the hearts of people. Too much dependence upon the courts of law and the letter of the Constitution may not help in building and sustaining the edifice of secular polity. It is plain if the spirit of secularism vanishes, no law, no Constitution and no court would be able to do much. If the spirit of secularism is alive in the hearts of the people, in their outlook, in their every day living, in the society, in the state of harmony and mutual tolerance, there is not much to be done either by courts or by law or by Constitution.
"Love all, serve all, help ever hurt never" is a universal and soothing message of Bhagwan Sri Sathya Sai Baba. Let us do our bit and best to build bridges between man and man on the foundation of love, brotherhood and compassion, but not walls of hatred and distrust. People belonging to different faiths may live happily and harmoniously wedded with the spirit of secularism, patriotism and brotherhood on the lap of great mother—the motherland.
For the protection of the fundamental rights, the Constitution itself has vested the judiciary of India with wide powers to declare and strike down such law, which contravene the fundamental rights, as unconstitutional. The Indian judiciary enjoys a unique position under the Constitution. It is an independent organ of the Government having the power of judicial review of both legislative and executive acts.
In India the judiciary has been making endeavour and embarking on innovative methods to make the constitutional guarantee of socio-economic rights meaningful for the common man keeping in mind the socio-economic philosophy of a true welfare State, which is enshrined in the Constitution.
Perhaps the greatest contribution of the judiciary in India is to bring in a harmonious fusion between the fundamental rights on one hand and the directive principles on the other.
In Kesavananda Bharati v. State of Kerala1 the Supreme Court observed that "in building up a just social order it is sometimes imperative that the fundamental rights should be subordinated to directive principles" (SCC p. 879, para 1707).
In State of Kerala v. N.M. Thomas2, the Court held that both fundamental rights and directive principles were complementary, "neither part being superior to the other".
Earlier directive principles were considered as "pious wishes" but in the course of time, these directive principles assumed deeper dimensions and greater significance as is evident from the various decisions of the Supreme Court. Fundamental rights and directive principles are complementary and supplementary to each other and there is no conflict between them. Merely because directive principles are non-enforceable, their status is not inferior. If the "State" enacts any law contrary to the directive principles, the courts can declare such action, be of executive or legislature, as unconstitutional being violative of directive principles for a simple reason that no law or executive action can be contrary to the Constitution.
In the recent years, active judiciary dealing with the public interest litigations has provided impetus to the importance of directive principles. Legislations dealing with agrarian reforms aiming at socio-economic justice have been upheld by the judiciary. Adequate means of livelihood, ensuring minimum wage, protection of bonded labour from exploitation, their rehabilitation, equal pay for equal work and right to humane conditions of work have drawn the special attention of the judiciary. Interpreting Article 21 of the Constitution in the case of Unni Krishnan3, right to education is elevated to the status of fundamental right. This leads to realisation of the hope contained in Article 45 of the Constitution ensuring socio-economic justice to children. Having regard to the judgment of the Supreme Court in Indra Sawhney4, identification of socially and economically backward classes is to be done by excluding the "creamy layers" among them. The Constitution (Forty-second Amendment) Act of 1976 added provisions regarding environmental protection in the chapters dealing with directive principles and fundamental duties. The judiciary has treated right to live in healthy environment as implicit in the fundamental right to life.
Public interest litigation (PIL), as developed in recent years, marked a significant deviation from traditional or normal judicial proceedings. At the time the country got freedom procedure followed in courts was drawn from the Anglo-Saxon system of jurisprudence. But for this development, may be, the guarantees of fundamental rights and the assurances embodied in directive principles would not have been meaningful or effective to the large majority of illiterate and indigent citizens under the adversarial proceedings. Several distressing factors and sufferings of the people led to the development of PIL. In the beginning the approach of the Supreme Court in interpreting the role of judiciary was merely as determining the lis coming before it in accordance with the procedural rules, as is evident from the following passage:
"In India the position of the judiciary is somewhere in between the courts in England and the United States. ... But our Constitution, unlike the American Constitution, does not recognise the absolute supremacy of the court over the legislative authority in all respects, for outside the restricted field of constitutional limitations our Parliament and the State Legislatures are supreme in their respective legislative fields and in that wider field there is no scope for the court in India to play the role of the Supreme Court of the United States."5
About 17 years thereafter, there was change in the perception when Golak Nath case6 was decided by the Supreme Court. In the said case the Supreme Court held that the fundamental rights could not be derogated from even by an amendment to the Constitution. Six years later in Kesavananda Bharati case1, the Supreme Court evolved a unique and far-reaching doctrine, probably the first of its kind in the world, under which Parliament cannot amend the Constitution by violating or altering its "basic structure". The power of judicial review is identified as part of such "basic structure". It means the legislature cannot deprive power of judicial review even by a constitutional amendment. Earlier the Court took a restricted view in interpreting Article 21 of the Constitution looking to its wordings that taking away a person's liberty could not be challenged on the ground of violation of fundamental rights so long as there was some statute made by the legislature provided for it. In a significant judgment the Supreme Court in Maneka Gandhi v. Union of India7 held that the doctrine of substantive due process has been integral to the fundamental rights flowing from Articles 14, 19 and 21 of the Constitution. At several stages rights and liberties of citizens, including common man, are protected. In PIL the parties and their lawyers are expected to participate in resolving the public problems unlike in adversarial litigations. In this jurisdiction courts have made significant pronouncements relating to very wide range of matters such as prisons and prisoners, the police, the children, child labour, bonded labour, urban space, environment, consumer issues, education, politics and elections, public accountability, human rights, etc. In Hussainara Khatoon (I) v. Home Secy., State of Bihar8 when the attention of the court was drawn to grave and pathetic situation of undertrials in Bihar detained pending trial for a period more than the period for which they could be sentenced for the offences charged with, the Supreme Court not only proceeded to make the right to speedy trial but also directed by general order for release of all the undertrials who were already detained beyond such maximum period. In another landmark judgment in D.K. Basu v. State of W.B.9 acting on the letter by the Chairman of the Legal Aid Services, West Bengal relating to repeated instances of custodial deaths in West Bengal, the Supreme Court laid down the procedure to be followed on the arrest of a person observing thus: (SCC p. 433, para 28)
"Police is, no doubt, under a legal duty and has legitimate right to arrest a criminal and to interrogate him during the investigation of an offence but it must be remembered that the law does not permit use of third-degree methods or torture of accused in custody during interrogation and investigation with a view to solve the crime. End cannot justify the means. ... No society can permit it."
The victims of crime also received attention of the Court in Delhi Domestic Working Women's Forum v. Union of India10 and recognising the trauma of the rape victims, indicated the norms for providing legal assistance to such victims at various stages. In that case concerned with the rape of innocent tribal girls by army jawans in a moving train, the Supreme Court ordered an ex gratia payment of Rs 10,000 to each of the victims. By and large people have acknowledged significant and far-reaching judgments in cases like the Bhagalpur blindings, Bihar undertrials case and the mentally ill in jail. In these cases, while giving reliefs to desperately needed, there has been exposure to executive failings. PIL also has helped in the development of legal principles such as the "polluter-pays" principle, the "precautionary" principle and the principle of "award of compensation for constitutional wrongs". Thus, the judiciary has played a useful and significant role in safeguarding the interests of lives and liberties of the people, particularly, the common man consistent with the scheme and aim of the Constitution.
Lord Templeman, a Lord of Appeal in Ordinary in the House of Lords, has expressed thus:
"The Supreme Court has proved to be a steady and consistent upholder of the intentions of the Constituent Assembly expressing the ideals and beliefs of Jawaharlal Nehru and the other founders of independent India. The Court has been tireless in upholding fundamental rights which are the hallmark of a civilised society and in interpreting and enforcing those provisions of the Constitution which preserve a democratic society.
In 1947 India was torn apart and now the Republic of India is faced with the enmity of Pakistan, the malice of China, and the hostility of other countries where democracy and the rule of law has had no place. Federations throughout the world have been or are being broken up by groups and individuals preaching violence and exploiting ignorance. India with the burden of an expanding population, has inherited problems of poverty and illiteracy. The work of the Government of India for the improvement of economic and social standards and for the preservation of a democratic society deserves recognition and support by other democratic countries. The work of the Supreme Court of India in protecting the people of India from oppression and in upholding the rule of law demands respect and admiration."
Right to live is not confined to merely right to exist but it includes right to live with dignity and grace. Several rights included in the directive principles being non-justiciable in the beginning consequent upon interpretation of Article 21 have been elevated to be facets of right to life. Right to a healthy environment, right to speedy trial and free legal aid, right to free education up to 14 years of age, right to privacy, right to live with human dignity and many more have been declared as fundamental rights by purposeful and meaningful interpretation of Article 21 of the Constitution by the Supreme Court and the High Courts. The liberal approach and expanded scope in relation to public interest litigation (PIL) cases has enabled the public-spirited activists and NGOs to take up the cause of underprivileged and also of the common public. This is clear from the cases ranging from bonded labour to environmental pollution. Having regard to the misuse or abuse of this jurisdiction by some persons or organisations for considerations other than public interest, the courts have cautioned to deal with the matters appropriately in exercise of discretion in giving necessary directions. Many a times, issues are raised in the name of PIL to embarrass political opponents or to terrorise rival business houses or to earn media attention. In other words, the public interest litigation should not be encouraged where one seeks to serve a political interest or personal interest or publicity. The Supreme Court in Janata Dal v. H.S. Chowdhary11 observed thus: (SCC p. 349, para 110)
"The busybodies, meddlesome interlopers, wayfarers or officious interveners having absolutely no public interest except for personal gain or private profit either for themselves or as proxy of others or for any other extraneous motivation or for glare of publicity break the queue muffling their faces by wearing the mask of public interest litigation, and get into the courts by filing vexatious and frivolous petitions and thus criminally waste the valuable time of the courts...."
As long as the legislature and the executive fail to perform or act arbitrarily or unreasonably towards the millions of needy people, PIL would be a legitimate source of the common man in securing justice.
The mere existence of a piece of beneficial legislation is of no use to the society unless the law is interpreted and enforced meaningfully so that its benefit reaches the right quarters in time.
The Constitution of India is acknowledged as one of the best Constitutions of the world as the great vision and rich experience of great men and women of this country with patriotism, selfless service, sacrifice and concern for the people of this country are behind the making of it. Our Constitution is dynamic with the provision available for amendment to meet the changes, challenges and needs of the society from time to time. Of course, the basic structure of the Constitution cannot be amended. A good Constitution in a democratic set-up is important but much more important is the system it contemplates and the manner in which the system works. Further, realising the hopes and aspirations of the people as embodied in the Constitution largely and effectively depends upon the people in charge of governance which in turn depends on the character, the ability, the vision, the commitment and the concern of the people, who occupy various positions in governance of the country including the constitutional functionaries. It may be stated that the chair being the same occupant makes all the difference. Gandhiji said:
"There is no human institution which is without dangers. The greater the institution, the greater the chances of abuse. Democracy is a great institution and, therefore, it is liable to be greatly abused. The remedy, therefore, is not avoidance of democracy, but reduction of possibility of abuse to a minimum."
Churchill's words "the little man with a little pencil with little ballot vote" should not be forgotten. All rules of interpretation leading to the protection and enhancement of the dignity of individual should be preferred to other interpretations leading to contrary position.
The Constituent Assembly adopted the principle of adult franchise despite the ignorance and illiteracy of the large masses of the Indian people with great faith in the common man in the hope that the introduction of democratic government on the basis of adult suffrage will promote the well-being, the standard of life, the comfort and the decent living of the common man.
There are excellent provisions in the Constitution to provide life of quality and dignity to every citizen and to make life of common man happy and peaceful but in reality even after 54 years of adopting the Constitution, we have not been able to reach the goal set in the Constitution fully to meet the hopes and aspirations of the people. India has definitely made progress in the frontier areas of science and technology, education, manufacturing, trade and commerce so much so that the country has emerged as a strong nation capable of standing on its own strength. In food production, the country is self-sufficient but in relation to common man, many promises remain unfulfilled. Large number of people yet remain below the line of poverty. Many do not have even basic needs required to live appropriately. We cannot claim that we have succeeded substantially if not completely in relieving common people from ignorance, illiteracy, disease and poverty. Having strong political will and dedicated executive with true concern and commitment to improve the living standard of common men in the country so as to make them true partners in the democratic set-up, is imperative and urgent need of the hour. The number of persons with sterling character, sense of service and sacrifice, love for motherland and concern for the fellow-beings has been gradually reduced in comparison to people who participated in the freedom struggle. It is unfortunate that the three elements, namely, caste, corruption and crime have become cancerous to the health of the country. We are facing many problems. There are good people in all walks of life and there are large number of people who are good but their voices must be louder. Today there is a need for more and more people of competency with character and concern to participate in the governance of the country. The same Constitution can be worked well depending on the character of the people. If good men do not come forward in public life, bad men jump to occupy the vacant chairs, which shall not be in the interest of the society rather it would be disastrous. So long the people with competency, character and real concern for the common man do not come forward and occupy various positions provided under the Constitution to discharge respective functions in the interest of the people of the country, the plight of the common man may not improve much. The country has made progress in all fields. If only caste consideration, corruption and crime are eliminated from public life, the progress and all round development in the country within the available resources would be much more within a short period and the quality of the life of common man would be much better. In this process, largest good to the largest people can be done so that all, and more so, a common man in the country can feel himself happy and a proud citizen.
Late Mr N.A. Palkhivala in Bhai Parimanand Memorial Lecture delivered on November 27, 1979 at New Delhi on "The Future of Democracy in India", cautioned that
"The great French thinker, Montesquieu, said in the eighteenth century:
'The tyranny of a prince in an oligarchy is not so dangerous to the public welfare as the apathy of a citizen in a democracy.'
A bad Government is the inevitable consequence of an indifferent electorate. Politics will never be cleaner, and our economic future will never be brighter, unless and until our citizens are willing to give of themselves to the land which gave them birth."
Let us hope that the youth of this country will bear in mind the above words of Mr Palkhivala and also take proper lessons and derive inspiration from the lives of those who made sacrifices and served selflessly so that they can make dream of Mahatma Gandhi of wiping out every tear from every eye in this country a reality.
I profusely thank the Gauhati High Court Bar Association and Late Mr Justice P.K. Goswami Memorial Law Lecture Foundation Committee for giving me the opportunity of delivering this memorial lecture and meeting you all and sharing my few little thoughts, which I have done with great pleasure.
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+ Delivered on 3-4-2004 at Gauhati.
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++ Hon'ble Judge, Supreme Court of India.
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1 (1973) 4 SCC 225
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2 (1976) 2 SCC 310
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3 Unni Krishnan v. State of A.P., (1993) 1 SCC 645
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4 Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217
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5 See A.K. Gopalan v. State of Madras, 1950 SCR 88 at pp. 286-87.
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6 Golak Nath v. State of Punjab, (1967) 2 SCR 762
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7 (1978) 1 SCC 248
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8 (1980) 1 SCC 81
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9 (1997) 1 SCC 416
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10 (1995) 1 SCC 14
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11 (1992) 4 SCC 305
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