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Inaugural Address at the Second State Lawyers'
Conference, Andhra Pradesh at Rajahmundry *
by V.R. Krishna Iyer, Judge, Supreme Court of India,
New Delhi.
Cite as : (1976) 2 SCC (Jour) 1
Brothers and sisters of the Legal Fraternity,
I was hesitant, mildly resistant when your friends of the State Bar came months ago to invite me. My chief reason for reluctance was that I should not undertake to speak when I had nothing to tell and that silence must be observed when the soul was tongueless. Time was when militancy was the mannerism of my mind and loquacity had then an alibi. But today I live in yesterday, bereft of a companionship which fired my spirits once and whose earthly exit has left me in the snows of solitude. A pilgrim cannot be a preacher. Still, I am here and shall, however unhappily, fulfil the function of inauguration of this State Lawyers' Conference.
I regard this massive meet a good omen of far-reaching meaning, a seminal event of revolutionary portent when the inner republic of the Bar seeks to regain the Paradise Lost and consolidate the Republic's estate of responsible freedom and disciplined progress guided by the rule of law, which is at once a dyke against anarchy and tyranny and a steering-wheel to direct the course of the ship of State towards that socialist shore reaching which redeems our nation's tryst with destiny. A free people, their lot lost in socio-economic and, consequentially, spiritual backwardness, cannot become truly free with all their boasts of the past and hopes for the future—without the behavioural drill we call Law. A kinetic concept of law as an evolving process in the Indian context, guaranteeing individual good consistent with collective welfare—that is the new harmony, the mood music of a creative jurisprudence set in a challenging sociology which I beseech you to listen, learn and then lead. Judge, Lawyer and Jurist have a new profile in courage and capacity to project, a new know-how in people's prosperity to master, a new direction and dimension in social justice to impart. If you, rather we, fail now, the profession and the judicial process together will become a distant neighbour of the public, an alien instrumentality for the community. This shall not be. We must therefore strive for an era of forward-looking, democratic legality. Our Upanishadic doctrine which departs from Austinian theory, is, if I may quote Dr Radhakrishnan, that 'sovereignty implies subjection to law. No one is above the law, not even the sovereign'. Sri Gajendragadkar quoted the Upanishad to say1:
"Law is the king of kings, far more rigid and powerful than they; there is nothing higher than law; by its prowess, as by that of the highest monarch, the weak shall prevail over the strong."
And Indian dharma, remember, has asserted, long before the sociological school in the West, that law is the Social Engineering Service of society. True to the genius of our indigenous culture and in tune with the modern dynamics of the rule of law, we have to weave new developmental norms and social values which bind us together in free India and tear up the bygone legal order of the Imperial era which held us prisoner. It is an initiator, engineer and indicator of social change. Therefore, the law executives—by this expression I encompass Judges, lawyers, law teachers, law officers, legislators, draftsmen of Bills and enforcing agencies—the law executives must use the jural process for organising a new order embodying the radical promises of freedom. The functional transformation of the rule of law from being the keeper of the Queen's peace and the collector of the Crown's revenue to the activist supervisor of a socialistic order is the span between the Raj and the Republic. If I may anticipate, the burden of my lecture is that the rule of law should be the missionary-cum-midwife and vigilant guardian of the rising Dawn and that the legal agencies should shape the system, reflecting the emerging realities and developmental aspirations of the people. Speaking for the larger profession, I stress that social urgency is law's locomotive, national accountability its responsibility and development-oriented legislation its contribution. Certainly, civil liberties barricaded by the law, are the spiritual commitment of the Bench-Bar complex. In the final analysis, we are the slaves of the law so that we may be free.
A brief look-back :
An understanding of the British Indian days is proper to construct a project for Law and Society after Freedom and in current times. The roots of Now lie buried in Then and so it is that I wish to take a critical look-back at the days when we were ruled by Whitehall. The unpleasant, but inescapable, truth is that our institutions—legal, legislative and other—bear the birthmarks of British colonialism. Our economic goals are socialistic, our economic order is feudal-capitalist. Our solemn constitutional pledge is to secure justice—social, economic and political, but our judicature and legal profession, our legislative processes and administrative lifestyle, are a blurred carbon copy of the colonial set-up. The song of Free India remains unsung. The juridical task set out in the suprema lex is so to transform the legal culture and instrumentalities as to redeem that pledge of objectives made in the noble eloquence of Nehru:
"A moment comes, which comes but rarely in history, when we step out from the old to the new, when an age ends, and when the soul of a nation, long suppressed, finds utterance."
Why have we not wholly or in large measure stepped out from the old? Why this long, lingering, will-less clinging to the status quo ante ? And yet, between the slow gestation and pangs of parturition the struggle of the New Order to be born is going on. An insight into this resistance to radical humanism and the die-hard chemistry of elitism and popular alienation can be gained by a view in retrospect of the pre-Independence century.
Twenty-eight years ago India was the biggest colony of the British Empire, the Kohinoor on the British Crown. The subjects, as in other colonies of Asia and Africa, were given the blessings of the export-brand of British Legal Culture which fertilised the Indian legal elite and sterilised the spirit of the people. The Dual Mandate of the Imperial governance was the imposition of a foreign legal system which ignored or suppressed the bulk of the community and to so shape the laws of the land as to serve British commercial interests, of course, on principle, as John Bull always did, according to George Bernard Shaw. There was a half-fair judicial organ, a corpus juris, advocates and the legal process, imitative of the English system. The masters called it the Rule of Law and taught us the glory of Dicey and the justness of British Justice, subtly transmigrating into a colonial soul. The English law of the period was imported wholesale, together with the many doctrines peculiarly adapted to a monarchical system. Even where legislation was enacted in British India on various topics, it had the look of statutes made in Britain. A writer (Robert M. Seidman on the picture of the law of the African colonies prior to Independence, points to the creation of a legal environment favourable to private enterprise and the maintenance of law and order by the monopoly of violence embodied in the English Criminal Law with special emphasis on property offences. The laws and the legal institutions had not merely an exotic mien, but had the effect of extinguishing the flame of indigenous justice system. The greatest genetic trauma of colonialism is to deprive the people of the colony of the capacity for originality and initiative, including in the sphere of jurisprudence. The ethos of our British-Indian legal heritage has, therefore, been to bear true faith and allegiance to Westminster. Social and economic justice, development of the nation's natural resources, nationalisation of key industries, reform of the feudal land system, provision of rights to workers, status to women and protection to children, were not the serious concern of the foreign rulers. The law and the status quo ante became partners in a common enterprise. The lifestyle of the legal process—even its costume and manner of speech—bore the British imprint. In the fitness of things, the highest Court of Appeal, like the top political authority, belonged to Westminster.
Imperatives of Independence :
Then came Independence with new imperatives blown up by the winds of change. What were they? What were the rising revolutionary expectations and value acceptances? How did the jural postulates, by determining the legal ordering of society, respond to the challenge of change? What were the basics of the economic and political goals of post-independence India and what were the mandates of the Republic's Constitution? The heart of the law beats in unison with the interests of the dominant class for the time being. When Freedom at Midnight arrived, in whom did political power vest—the Classes or the Masses? What was the doctrinal basis of our politics—feudalism, capitalism, or demagogic drizzle of socialism? These determinants of the law-ways themselves underwent transformation as the decades passed and law, in turn, readjusted itself to pressures from the conscious masses. After all, law is not a cloistered courthall virtue and cannot be a Cinderella neglected by the political branch of the Government. It is a means to achieve an end. We today have therefore to analyse Law's social mission in conditions that currently prevail.
Cardozo in his "Nature of the Judicial Process" insightfully observed:
"Life casts the mould of conduct, which will some day become fixed as law."
"The force which in our day and generation is becoming the greatest of them all, the power of social justice which finds its outlet and expression in the method of sociology * * *."
"Fundamentally, the final cause of law is the welfare of society."
This ideological backdrop must inform the vascular system of the para-public profession of law. Equal justice under the law is not a distant ideal but an attainable reality. Freedom of speech and of conscience are not a cultural grace of the Constitution but an ubiquitous right of the people of all strata. Social and economic justice—now de facto denied to huge numbers of Indian humanity—is no longer a declaration of goals, but a priority item on the agenda for implementation now and here. The Directive Principles of State Policy which mandate the Administration to promote the welfare of the people by securing a progressive social order are no longer a pious-wish package but a programme of action. The technologists and tailors of the transmutation process are the lawyers whose sociological sights must be set high above professional chores and daily drudgeries.
But what are the naked realities around us? Our basis of legality remains British Jurisprudence (India Unlimited). Our Law Schools still teach the Austinian theory of law as command of the sovereign. Our law libraries are stuffed with Halsbury and Corpus Juris Secundum and a crowd of foreign legal literature. Our statutory construction, in spite of professed socialistic transformation through legislation, is guided by Maxwell and Crawford intended for a capitalist climate with weightage for vested rights, presumption against retrospective operation and a sound-proof system where the voice of the author, viz. legislature, is excluded on principle. Our love of swadeshi has not liberated juridical though and the legal mores.
Dr Tripathi in his book "Spotlights on Constitutional Interpretation" has expressed misgivings about the imposition of Western-style Constitutions, the work of small groups whose intellectual and political links are with the West rather than with the mass of their own people. Even the general law of the land suffers from this exotism and gentle bondage. The Supreme Court hinted at this point in two recent cases—tell-tale excerpts from which may be illustrative:
"What is this rule of common law? Counsel for the appellants inevitably relied on the tort of conspiracy and referred us to Moghul Steamship Co., 1892 AC 25; Allen v. Flood, 1898 AC 1; Quinn v. Leatham, 1901 AC 495 and Sorrel v. Smith, 1925 AC 700. These decisions of the English courts are a response to the societal requirements of the industrial civilisation of 19th Century England. Trade and Industry on the laissez-faire doctrine flourished and the law of torts was shaped to serve the economic interests of the trading and industrial community. Political philosophy and economic necessity of the dominant class animate legal theory. Naturally the British law in this area protected business from the operations of a combination of men, including workers, in certain circumstances. Whatever the merits of the norms, violation of which constituted 'conspiracy' in English law, it is a problem for creative Indian Jurisprudence to consider, detached from Anglophonic inclination, how far a mere combination of men working for furthering certain objectives can be prohibited as a tort, according to the Indian value-system. Our Constitution guarantees the right to form associations, not for gregarious pleasure but to fight effectively for the redressal of grievances. Our Constitution is sensitive to workers' rights. Our story of freedom and social emancipation led by the Father of the Nation, has employed, from the highest of motives, combined action to resist evil and to right wrong, even if it meant loss of business profits for the liquor-vendor, the brothel-keeper and the foreign cloth-dealer. Without expetiating on these seminal factors, we may observe that English history, political theory and life-style being different from Indian conditions replete with organised boycotts and mass satyagrahas, we cannot incorporate English torts without any adaptation into Indian law. A tort transplant into a social organism is as complex and careful an operation as a heart-transplant into an individual organism, law being life's instrumentality and rejection of exotics being a natural tendency. Here, Judges are sociological surgeons. . . ."2
Again in Rattan Lal3, the Court cautioned:
"We have to part company with the precedents of the British-Indian period tying our non-statutory areas of law to vintage English law christening it 'justice, equity and good conscience'. After all, conscience is the finer texture of norms woven from the ethos and life-style of a community and since British and Indian ways of life vary so much the validity of an Anglophilic bias in Bharat's justice, equity and good conscience is questionable today. The great values that bind law to life spell out the text of justice, equity and good conscience and Cardozo has crystallized the concept thus:
'Life casts the mould of conduct which will some day become fixed as law.'
Free India has to find its conscience in our rugged realities—and no more in alien legal thought. In a larger sense, the insignia of creativity in law, as in life, is freedom from subtle alien bondage, not a silent spring nor a hothouse flower."
Should not the brotherhood of law, ignoring the palate of the elegantia juris, strive for the Indianisation of the law?4
Any social realist will agree that law and the people are not on intimately talking terms and the ragtag democracy has been snobbishly refused admission ticket into the court system of jurisprudence.
The dictates congenial to foreign rule still reign as Indian rule of law. Our forensic and parliamentary way of life is still washed by the Thames and the Potomac and not the Yamuna, Godavari or Kaveri—certainly not the Moscova. I beseech you, in all humility, to begin, with conscious militancy, to initiate a renaissance movement for creative Indian jurisprudence, without journeying to the pilgrim centres of Oxford and the Inns of Court or Harvard and Yale as the hallmark of legal holiness. "This above all to thine ownself be true" is an advice the Indian law man has to learn from the advice of Polonius in Hamlet. May I sum up our task ahead as Operation LAW INDIA and state the philosophical foundation of this approach in Nehru's reflection of long ago?
"I am convinced that the only key to the solution of the world's problems and of India's problems lies in socialism, and when I use this word I do so, not in a vague humanitarian way but in the scientific economic sense. Socialism is, however, something even more than an economic doctrine, it is a philosophy of life and as such also it appeals to me. I see no way of ending the poverty, the vast unemployment, the degradation and the subjection of the Indian people except through Socialism."
Another component of our constitutional creed is liberty, the essence of the dignity of the human person. In the alleged alibi of economic reconstruction, if liberty is eclipsed we may unwittingly slip into a disaster for democracy some day, not a distant day. Learned Hand spoke for the ages when he said:
"I often wonder, whether we do not rest our hopes too much upon Constitution, upon laws and upon courts. These are false hopes, believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there no Constitution, no law, no court can save it; no Constitution, no law, no court can even do much to help it. While it lies there it needs no Constitution, no law, no court to save."
The Bench and the Bar together are thus the sentinels on the qui vive both of economic freedom for the masses and civil liberties for all. But never, I warn, can property be permitted to purchase the body or soul of another person.
These are wasted words if the lawyer is a legal carpenter or bricklayer. No, yours is a calling of excellence, justice and patriotism. The Supreme Court in J.A. Kadar5, while emphasising the traditions and canons of professional ethics and etiquette, underlined this distinction:
". . . the paramount consideration that the Bench and the Bar form a noble and dynamic partnership geared to the great social goal of administration of justice puts the lawyer appearing in the court in a class by himself and to compare him with an ordinary agent may be to lose sight of the lawyer as engineer of the rule of law in society."
May I remind you all of the sublime constructiveness of lawyer-power, directed towards national development expressed in the language of the Supreme Court thus in Bar Council of Maharashtra v. M.V. Dabholkar6:
"Let us get a glimpse of the great expectations about the legal profession in society. Long ago, De Tocqueville trenchantly remarked that the profession of law 'is the only aristocratic element which can be amalgamated without violence with natural elements of democracy, I cannot believe that a Republic could subsist if the influence of lawyers in public business did not increase in proportion to the power of the people'. He rightly stressed that 'lawyers belong to the people by birth and interest, to the aristocracy by habit and taste'.
Thus the profession is the connecting link between community and the administration, given an enlightened goal-oriented group outgrowing its elitist mores. India has a huge number of lawmen who can be a force. What Prof Brabanti observed about the Pakistan Bar has some, only some though, relevance to India, and I quote:
'The sheer size of the legal community, strongly organized into Bar Associations and closely allied with equally strong courts has not only been a major source for the diffusion and regeneration of norms generally, but by weight of numbers has enabled the courts to remain strong and has prevented the rise of administrative lawlessness. The legal community, while often antagonistic to Government and constraining executive action, is nevertheless closely identified normatively and culturally with the bureaucratic elite. . . . It derives popular support from its ostensible opposition to Government, and at the same time elicits bureaucratic support in the community at large. It has a network of relationships in rural areas and the cities. In short, the legal community is a force to be reckoned with. . . . On the contrary, it seems to us that this is the very genius of political development."
Again in the same case, in the second round7, the Court wrote:
"We wish to put beyond cavil the new call to the lawyer in the economic order. In the days ahead, legal aid to the poor and the weak, public interest litigation and other rule-of-law responsibilities will demand a whole new range of responses from the Bar or organised social groups with lawyer members. Indeed, the hope of democracy is the dynamism of the new frontiersmen of the law in this developing area and what we have observed against solicitation and alleged profit-making vices are distant from such free service to the community in the jural sector as part of the profession's tryst with the People of India."
At this stage, may I switch on to the subject of the integral yoga of law and development. The prime need of a developing country is Development and the first recognition must drawn on those drawing up plans of development that, in the final analysis, not the bureaucrat's pen but the legislator's tongue and the Bill that is legislated formulates the new norms for change. And then, the joint enterprise of Bench and Bar in interpreting the legislation! 'Words can always set limits. But within the limits . . . the Judge remains the legislator.' 'Counsel's skill and eloquence is a cumulative force which slowly hammers the law into forms desired. . . .' 'Thus court work means collaboration by the Bar, and under a benignant rule of law all regulations and controls promoting progress must be interpreted in tune with the social purpose. Law is the sine qua non of Development and Development in a poor society must have, as one of its major components, distributive justice. "Share the cake" is implicit in "we, the people" being the masters. Although law is a value-neutral tool of social ordering, the criteria for using law are solemnly set down in Part IV of the Constitution. These are, therefore, the essentials which advance the social mission of law in India.
Roscoe Pound is current coin among Indian jurists not lawyers and judges. At least sufficiently—when he hays that justice is "such an adjustment of relations and ordering of conduct as will make the good of existence. . . go round as far as possible with the least function and waste". Nehru, while inaugurating the Delhi Meet of the International Commission of Jurists, made the point that the rule of law must run close to the rule of life, which is abolition of poverty, assurance of social justice and national development liberating the human potential imprisoned by the feudal and capitalist economic structure. The Declaration of Delhi, in flaming phrases, defined the dynamic rule of law as concerned deeply with social, economic and cultural conditions necessary for fulfilment of the legitimate aspirations of the people. The fulfilment of these wider responsibilities demands of the lawman trans-legal equipment. Dean Pound's words are here relevant:
"Jurisprudence, ethics, economics, politics and sociology are distinct enough at the core, but shade out into each other. When we look at the core or chiefly at the core the analytical distinctions are sound enough. But we shall not understand even that core, and much less the delatable ground beyond, unless we are prepared to make continual deep incursions from each into each of the others. All the social sciences must be co-workers, and emphatically all must be co-workers with jurisprudence."8
Speaking on a lesser key and to illustrate my point today that sentencing art, so vital to criminal jurisprudence, both in its humanist, correctional wing and in its severe social defence sector, finds advocate and Magistrate comparative innocents. And so economic offenders get away with it. More than little litigative law, the spacious scholarship in social sciences is now needed to do justice to the professional demands. How can you prepare a Brandeis brief without broadening your social vision and deepening your multi-disciplinary skills? Do rise to these great heights, brother lawyers and Judges, to grace your social office!
It has now become second nature with me to speak, regardless of forum and context, of one spiritual facet of law: Legal Aid to the Weaker Segments of Society. May I rouse your attention to this subject, committing the same habitual offence?
The rule of law underlines our entire social, economic and governmental structure as well as constitutional order. The Indian way of life will lose its soul if social justice ceases to be the dharma holding us together as a nation. And so it is that we want legality not to be wet with the tears of poverty. For, surely, the law of life will outlaw lawyer's law unless the strategy of bringing law-in-action into rapport with the norms of justice is put into operation and the cost of the legal system is brought into fair concord with the economic conditions of the country. In this humanist perspective, our concern has to be to view the welfare-inspired legal services programme not as a professional gratuity but as a juridical arm of Garibi Hatao. For this reason, the scheme has to be given a social sweep which exceeds the courtroom, the lawyer's chambers, the traditional 'legal aid and advice' thinking techniques and machinery. In the present national context, a design and techniques for making over the wheels of the legal process to the weaker but vaster segment of Indian humanity, which has hitherto been economically out of bounds for forensic justice, has to be undertaken on a massive scale. Maybe, this stream of sociolegal service will gently promote that civil revolution whose awful antithesis and counter-productive negation may, in the long run, be the demolition of democracy. These generalities constituting the philosophy of free legal aid and advice must be worked out in multi-form ways and I commend for your consideration, at this or any other conference, the varied methodology of Juridicare to the handicapped and have-nots of India. Is it not wrong for lawyers and judges to run away from momentous issues concerning the Justice System? Therefore, I may as well emphasise the public obligation of the legal profession and related agencies by quoting from the Report on Processual Justice to the People:
"Indian law and its instrumentalities, thanks to some lingering colonial hangover, are accused of being out of step with social justice. Where the bulk of the people are of backward social and economic status but the national goal is social and economic justice, the rule of law, notwithstanding its mien of majestic equality, will fail in its mission in the absence of a scheme to bring the system of justice nearer the downtrodden. Therefore, it becomes a democratic obligation to make the legal process a surer means to social justice. The major strategy to end the estrangement between the law and the lowly is legal aid in its comprehensive coverage which is what we mean by the expressive, though newly-minted word 'Juridicare'.
The socio-legal landscape of India reveals large valleys of penury, illiteracy and social squalor over which presently blow strong winds of aspiration and change. A strong, though exaggerated criticism has been voiced in some quarters, that side by side, in uneasy coexistence, survives a law administration shaped by the British and enshrining values not wholly indigenous or agreeable to Indian conditions, scaring away or victimising the weak through slow-motion justice, high-priced legal service, long-distance delivery centres, mystiques of legalese and lacunose laws and a processual pyramid made up of teetering tiers and sophisticated rules and tools. Our Nation, with all its hopes and all its boasts, can never really be free and just till all its citizens, high and low, can claim equal justice through law-in-action."
I need hardly say, in the light of this comprehensive statement, that the spiritual essence of the legal aid movement consists in investing Law with a human soul. The political thrust of this movement is that if legality lets down the masses and barricades the classes anti-law will become a way of life of the poor many, who will seek in the streets justice which is denied to them by the law in the courts.
Any scheme of legal aid must summon the maximum technically competent and socially committed human resources. In this context, the Bar—and, to an extent, the Bench—must be activist in the Juridicare programme. The rainbow of free legal services must, undoubtedly, cover competent legal advice which will prevent litigation, for preventive law is as important as preventive medicine. Certainly, legal aid takes many forms. In the case of Harijans, we know that protective laws have failed in the field. We know that legislation for the betterment of the working class has, by the manner of enforcement, become a teasing illusion. We know that notwithstanding constitutional concern for women and children, law-in-action has left them in the cruel cold. In all these cases, legal aid may even take the form of special courts, like family courts and children's courts, mobile courts, Harijan courts, etc. Many other provisions, peculiarly suited to the category to be assisted may be needed. Lawyers know where the shoe pinches and, I am sure, the Bar as a class will rise to the progressive expectations of the common people of India.
I may add, in this context, that the ordinary Indian being below the poverty line is affected more by floor-level justice than by apex-point law. For him, panchayati justice and small claims courts are themselves a form of legal aid. An eminent proponent of small claims tribunals has observed:
"If a way can be found for administering justice in small causes, which is ideally prompt and inexpensive, we must adopt it or stand convicted as people who are less concerned with justice than with litigiousness."
Free legal aid to the parties, in some classes of cases does not, by itself, make justice cheap, and lawyers' presence may formalise and complicate rather than simplify and compose. A radically different non-judicialised forum for conciliation and adjudication involving little cost and less delay is the desideratum. Informal procedures satisfying natural justice are enough and the keyote is justice rather than law. I wonder why the Bar should not take up the cause of the little man in litigation. Way back, in 1959, the then Law Minister of India stated in Parliament:
"There is no doubt that the system of justice which obtains today is too expensive for the common man. The small disputes must necessarily be left to be decided by a system of panchayat justice—call it the peoples' court, call it a popular court, call it anything—but it would certainly be subject to such safeguards as we may devise—the only means by which for ordinary disputes in the village level the common man can be assured of a system of judicial administration which would not be too expensive for him and which would not be too dilatory for him."
The Study Team appointed to investigate into the organisation of nyaya panchayats in the country reported:
"The process of democratic decentralisation envisaged by Article 40 of the Constitution and already ushered in, to some extent, has resulted in the general awakening of the people in the village. Nyaya panchayats, wherever they are in existence, are serving a real felt need of the village by disposing of cases more expeditiously and with minimum of inconvenience and expense to parties. . . . To avoid the baneful effects of factions, unhealthy rivalries, a nyaya panchayat may be set up for a group of villages and the grouping may be made having regard to factors like area, population, contiguity, compactness, means of communication, etc."
The ideological foundation, viewed from another angle for the involvement of the rural folk in the justice system, is, in the words of Lenin, quoted by the Study Team:
"Every representative of the masses, every citizen must be placed in conditions which would enable him to participate in the discussion of the State laws, in the election of his representatives and in putting the State laws into practice.
The court is an instrumentality to attract every individual member of the poorest classes to State administration."
It is worthwhile to remember that Gandhiji stood for village self-government which embraces also village Justice. Abraham Lincoln told lawyers of his time:
"Discourage litigation, persuade your neighbours to compromise whenever you can, point out to them how the nominal winner is often the real loser—in fees, expense and waste of time."
I have touched upon only certain concrete aspects of processual justice to the lowly and lost. More remain.
In another aspect of the same subject affecting the legal profession and the lawcourts, we come upon the question of court-fees which, in our country, is unfortunately prohibitive. From the days of the Magna Carta, the sale of justice has been regarded by civilised societies as anathema. It is surprising that a welfare State with socialistic claims should bleed the litigant by an initial insistence of payment of more than a tithe of the very claim. There is no moral or social justification for such a heavy levy unknown in any other country.
An allied question relates to costs to be paid by the losing litigant. At least in the High Courts and the Supreme Court, there is a strong case for the creation of a suitor's fund, because, the benefit of the declaration of law by these superior courts goes to the entire community and not to the particular parties whose dispute led to the decision. Lord Reid referring to the House of Lords in the matter of costs, observed in Sunders v. Anglia Building Society9:
"I think we must consider separately costs in this House and costs in the Court of Appeal. Cases can only come before this House with leave, and leave is generally given because some general question of law is involved. In this case, it enabled the whole vexed matter of non est factum to be re-examined. This seems to me a typical case where the costs of the successful respondent should come out of public funds."
Our Supreme Court has referred, with approval, to these observations. Jackson in "The Machinery of Justice in England" stated at page 334:
"Many appeals are due to uncertainty in the law. The settling of some rules of common law, and the interpretation of some statutes, has cost litigants vast fortunes. Whenever a new trial or an appeal is due to error of a judge or uncertainty in the law, the litigant who suffers should not have to bear the cost."
Now, may I swerve into another neighbouring area which also is our professional business, mismanagement of which has brought on our heads a hornet's nest of half-merited criticism?
The problems, perspectives and prospects of the Justice System are a matter of common concern for the Bench and the Bar and affect the consumers, namely the community at large. It is, therefore, vital for the improvement and streamlining of legal services in the country that there should be an interchange of views, an assessment of the merits and reform of the whole process of Law and Justice vis-a-vis society in every State and, perhaps, in the whole country periodically. The leadership in these deliberations belongs, in this crisis age, to the twin limbs of the same fraternity. Politicians occupy the field because the lawmen show unconcern. I am glad that in this Conference important questions, which come within the broad framework I have just outlined, are being discussed. It is equally meaningful that Judges, lawyers and leaders of the public in Government and outside, are participating therein.
May I mention a few issues of great moment and imminence which demand our joint attention? Burying our heads as social ostriches in the sands of indifference to responsible people's criticisms of the legal system is unbecoming of a public profession and unavailing for survival in the long run. Basically, we are confronted with the obsolescence of our system. The President of India is recently reported to have suggested to the legal profession, while inaugurating the Delhi Bar Council Library, to consider the need to modify the style and the manner of law practice. Still more recently, a distinguished colleague of mine, speaking at a State Lawyers' meet has made a powerful plea for the State, at the Central and State levels, to set an example, by a socialistic touch, of not agreeing to pay fabulous fees for lawyers who are engaged to appear for them or for other public sector institutions. A country's economic level must have some correspondence to the State's outlay on litigation. It is jarring that there should be egalitarian professions and shedding of tears for the poor on the one side and paying of huge sums by way of lawyers' fees even when fighting the small citizen, on the other. The Nation and the Bar must consider whether it should not organise the lawyers' levels of remuneration in such manner that a reasonable income is assured for the young and astronomical incomes are inhibited for the top few. I am not presenting a turnkey project, but I am requesting the Bar in India to ponder how best to make the profession accountable to the country even in the matter of legal expenses in litigation and better distribution of incomes within the Bar. I may not be doing justice to the Bar if I do not wonder at our garib log governments for paying a few thousand rupees per day to retired Judges for arbitrations and adjudications. Blessed are the Judges who retired under such socialistic circumstances!
The Prime Minster declared, some time ago, that the reformation of the legal system should be on the national agenda: "We have to remedy this situation. Millions are waiting for social justice and for the law to be speedier and less expensive." From Nehru to Mrs Gandhi, national leaders have complained about the unfair battle between the weak and the strong and expensive slow motion as the besetting sin of the forensic apparatus. The noted economist Schumpeter pointed out tartly:
"A considerable part of total work done by lawyers goes into the struggle of business with the State and its organs . . . in socialist society there would be neither need nor room for this part of legal activity. The resulting saving is not satisfactorily measured by the fees of the lawyers who are thus engaged. That is inconsiderable. But not inconsiderable is the social loss from such unproductive employment of many of the best brains. Considering how terribly rare good brains are, their shifting to other employment might be of more than infinitesimal importance." (Capitalism, Socialism and Democracy)
A recent letter to the editor in a local daily of Delhi highlighted the need for para-legals as auxiliaries for the profession. The writer went to the extent of observing:
"I would even go ahead and make a plea that in keeping with the revolutionary socio-economic and juristic temper of the times we must be courageous to allow public-spirited citizens and social workers to plead the causes of their oppressed fellow citizens in the courts of law without formal degrees.
There is nothing very innovative or absurd in this suggestion. And it was a matter of common practical administrative device in the British regime to offer the posts of Collector or Judge to persons of lower qualifications to provide an opportunity of political education and even diplomas to practise were given without examination to persons possessing general knowledge.
This was the pre-eminent practice followed by Shahu Chatrapati, the progressive ruler of the erstwhile Kolhapur State in Maharashtra, who was a pioneer in the uplift of the untouchables and gave sanads to the befitting members of the untouchable community to practise as vakils."
The Report of the Committee to recommend the methods of reaching processual justice to the people, clearly points out that in many parts of our vast geography, where full-fledged lawyers are not available for love or money, such as the islands of Lakshadweep and Andamans and Nicobar and the mountain reaches of Himachal Pradesh, we may, perhaps, encourage training of ordinary persons in the rudiments of law and procedure so that the court process may work and people may become law-conscious, under adverse circumstances where they otherwise have to go without any legal service. The subject of para-legals has received serious consideration even in advanced countries like the United States of America. I wonder whether highbrows among the Indian Bar will cock a snook at this suggestion, or will, with a sense of immediacy, agree to adopt systemic changes in legal education to create semi-skilled technicians of the law serving the rural and urban poor in the day-to-day problems of law and life. Remember the dinner barristers of England and do understand that the great Abraham Lincoln, who commanded a good practice, had no law degree. Why, to be a Judge of the Supreme Court of the United States a law degree is not essential!
How about the docket explosion and heavy arrears in all the Indian courts, grinding justice to a halt? Why this spiral of appeals bankrupting, at the end, both winner and loser? Should not our time-consuming procedures and artificial rules of evidence be streamlined, simplified and adapted to our life? Many 'sacred cows' of our judicial process have no reason to block the road to quick, common-sense justice. My prayer to you is to take up these and kindred issues for unconventional, socially-beneficial study and exchange of views.
There is one sensitive platform suddenly electrified in the last few months—the amendatory exercises relating to restructuring our Constitution. The debate has largely been presumably excited by suggestions from responsible political quarters that after the silver jubilee of our Constitution the time has come for a critical reappraisal and recommendations for reforms in the light of experience and distortions in its working and democratic discipline to advance the supreme cause.
The Constitution is not a legal parchment but the testament of a generation hallowed by the sacrifices of a patriotic people, precursors of our time, who committed their all so that our country shall be free. The compulsions of changed times may demand amendments so that the vision of the founding fathers may be more truly fulfilled in the new context. It is not for me to examine the constitutional validity of amendments to the basic structure of what the 'basic structure', if any, is. This is for the Court when seised of it, assisted by eminent counsel, to say. That is too solemn and sacred to be profaned and paraded at legal melas by glib rhetoric. There must be concrete proposals and serious deliberations at national and sub-national levels by competent persons, foremost among whom must be jurists and lawyers, statesmen and thinkers and then press and the people. I hope the lawmen of your State will bestow all their creative brains and quickened conscience on this behalf instead of bandying about fancied ideas, listlessly listening to or joining the populist back for romantic notions and sweetly subversive programschrifts. Great things deserve great cogitation. The late Chief Justice Warren once said: "If lawyers are not to be the watchmen for the Constitution, on whom can we rely?" (Address to the American Law Institute: May 1973.)
The Prime Minister, in a message on the publication of the book, 'The Constitution and the Parliament in India' released on the completion of 25 years of the Republic, has, with clarity and sensibility, stated:
"In twenty-five years, our Constitution has given ample proof of its endurance. It derives its inner strength from the sacrifice which went into the winning of freedom and the wisdom that our founding fathers showed in evolving a document with flexibility to respond to the changing needs of our people.
Our Constitution has struck a fine balance between Centre and States and between State and citizen. Changes in the Constitution have been made only to enable it the better to fulfil its own purpose. The people have acquired a growing faith that purposive change can be brought about peacefully and democratically."
The great thought that must animate and restrain this process is that we must avoid opportunist adventurism, irresponsible extremism and liquidation of those lasting constitutional values like Republican Parliamentarianism and the supremacy of the court in the assigned sphere. Short of that, everything that is necessary to fulfil the great goals must be undertaken if found pragmatic.
Part IV of the Constitution, which constitutes its conscience, emphatically asserts that the State is obligated to prevent the operation of the economic system resulting in the concentration of wealth and means of production to common detriment. Distributive justice to subserve the common good is also a categorical imperative. The superior courts are battlegrounds, or, in a sense, the social laboratories, where the interpretation and implementation and even survival of legislation are fought out with heat and light. It is the duty of lawyers, in their collective wisdom, to be committed to the well-being of the community, not to thwart the benign purpose by cantankerous forensic acrobatics backed by quotational erudition and time-expired precedential profusion. What magnificent inconsequence masquerades as legal business in court and how horrendously time-consuming! And the Bar, I entreat, do check upon the Government's will to materialise the mandates of Part IV and post-audit their performance. There is a complaint that all the festschrift of socio-economic progressivism by political men is sound and fury signifying nothing. Election expenses and land reforms are inglorious instances, two among many. If there is truth in this charge, government has much to answer for. Lawmen may well draw the attention of the top echelons in authority to the failure or fulfilment of our social and economic goals and the flops and flaws in the laws in action. It is a public commitment of the Bar to do its duty in this behalf. You certainly know that the American Bar Association even gives evidence before the legislative bodies, carries on campaigns for Legal Aid and Law Reform and has a wing for Socio-Legal Research and Legal Education. Why should not the Indian war grow in stature and organise pioneering projects in these areas, and thus establish its substantial democratic credentials?
Let me conclude, with a prayer to be condoned for these confused hues of a sunset sky. Our militant interest is truly a trinity of commitments—faith in the people, the millions of our lowly countrymen who are the rightful and equal title-holders to the pursuit of happiness, hope that a big swell of social change will render life for the weaker segments worth living and—the touch-stone of our sincerity, promise that the New Order and Just Society will organise, in the years ahead, a humane legal process. This jural pledge, at once radical and spiritual, is the inspirational force for my arrival at your Conference.
It such be the sweep and sense of the Rule of Law, if such be the content and quality of this action-oriented profession of lawyers, it has a future; otherwise, this great gathering will soon dissolve as a glittering dream. Not in hubris but in a mood of heart-searching, I appeal to you to translate into law-in-action the broad spectrum of weary aspiration still flickering in the bosoms of millions across the country for whom the four freedoms are a tantalising candlelight. Today—not tomorrow—is their cry. The indignant mood of womankind for gender justice, the bugle for battle by the suppressed and exploited groups and the toiling masses' demand for their rights and the unspoken look of hunger of the have-nots inhabiting our grim geography—how do we solve them through sympathetic legal mechanics? Law and Developments, Justice and Jurisprudence, Humanism and the Robes, can no longer remain a Vedantic mystique draped in legalese. The Gitanjali goes home here:
"Leave this chanting and singing and telling of beads!
Whom dost thou worship in this lonely dark corner of a temple with doors all shut?
He is there where the tiller is tilling the hard ground and where the pathmaker is breaking stones.
Put off thy holy mantle and even like him come down on the dusty soil."
Currently, the court is on trial and the lawyer is argued against. The lawyer must function without any fear and in full freedom because he has to lead the campaign for human rights and protect, through varied forms of free legal service, public-interest litigation and poverty-law mechanism, the poor against the rich, the weak against the strong. This needs guts and ideals.
Law Day: India, may perhaps be an institutionalised way of lawyers talking on the state of the law and the health of the Constitution, not in the insular atmosphere of legal langour but in the mainstream of intellectual air and realities of life. Law and the profession have lived too long in the past; let us breathe a little of the fresh air of the future.
May I inaugurate your Conference—not formally, but with my dying fire, though realising that we live in times where inertness is an enemy and aware activism is the sole strategy, and between Court, the symbol of legality, and the Community, the consumer of justice, not alienation but integration must be the modus vivendi. The Bar is the mediator, the gospel of legal justice. May I switch on the Conference with the heartfelt words—'Lead kindly light amidst the encircling gloom!'
- The Indian Parliament and the Fundamental Rights, p. 202.
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- Rohtas Industries Ltd. v. Staff Union, (1976) 2 SCC 82, 93 (para 20).
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- Rattan Lal v. Vardesh Chander, (1976) 2 SCC 103, 114-115 (para 21).
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- See G.S. Sharma, Essays in Indian Jurisprudence, p. 18.
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- J.A. Kadar v. Shankarlal Gulabchand, (1975) 2 SCC 609, 614 (para 5).
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- (1975) 2 SCC 702, 717 (para 51).
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- Bar Council of Maharastra v. M.V. Dabholkar, (1976) 2 SCC 291, 301-302 (para 24.)
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- Pound: Law and Morals, p. 115, 2nd edition, 1926.
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- 1971 AC 1004.
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