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Law Day, 1989
Speech of Dr Y.S. Chitale,
President of the Supreme Court Bar Association
Cite as : (1989) 4 SCC (Jour) 25
My Lord the Chief Justice, my Lords and Friends.
As in the past this year also we continue our tradition of celebrating this 26th November as the Law Day. The Preamble to our Constitution clearly announces that we have given to ourselves this Constitution on November 26, 1949. This day, therefore, must necessarily have a great significance for all of us as the Constitution is the foundation of this court and the surest guideline for its functioning. Our Constitution, which is one of the longest in the world, provides for certain Fundamental Rights and also provides for the Directive Principles fundamental to the governance of the country. However, with the growth of time and the change in our living thoughts, the very concept of what are the contents of Fundamental Rights is also undergoing a certain metamorphosis. A large number of questions about the varied aspects of human life (a recent example of equal pay for equal work) now assume a great role which at one stage one could never think of as embodying any Fundamental Right. With the rapid growth in legislation, population and the diverse activities springing out of human intercourse, the interpretation of Article 21 is also undergoing a change. Liberty is now becoming a dynamic concept as large as the changing concept of a fuller life. The interpretation put by this court on Article 21 will in a sense comprise almost every aspect of our activity in some form or the other and if all these aspects were to be dealt with by this court, this court is almost certainly liable to groan under the burden. Today we witness how the workload of this court is steadily increasing making it imperative for the survival of this court and generally for the proper administration of justice that there should be some way of reducing the responsibilities of this court. We have been traditionally brought up in the English legal system where law is always administered by the general courts of civil or criminal law. However, in recent times you notice an increasing trend around you particularly on the continent of more and more tribunals dealing with various aspects of law now surfacing. This is as it should be. In our country also it is necessary that such tribunals should emerge in comparatively larger fields and these tribunals should have the status of a final decision-making body in their own sphere. It is very significant to note the French and the German systems being largely adapted to their own situations in many developing countries. This, in a sense, is inevitable because if all the burden is placed on one institution as it is today in this country, that institution will necessarily begin to totter. The remedy then is not in the curtailment of the jurisdiction of this court or in splitting up the High Courts and create a caste system therein. The remedy lies in development of national tribunals in the sphere of Labour Laws, Railway Accidents Laws, Family Laws, Educational Laws, Environmental Laws and generally tax laws also (and not only Income Tax). These tribunals must necessarily consist of an outstanding trained lawyer or judicial officer and other experts in the particular branch which the tribunal deals with. It is also necessary that the judgments of these tribunals should become final. These tribunals must not be treated by the Executive as job-providing avenues for favourites (mostly persons on the verge of retirement). Unless these tribunals have some stability in their composition and tenures, they will not be able to develop a sound legal system in the particular field. This is one of the ways of bringing the ultimate justice, which is what this Court represents, to the people at their door-steps. With the increase in these tribunals and with their centres being located at various places in this country, it would be possible in a sense to territorially distribute the seat of ultimate legal justice on many aspects of our life. With increase in legislation, greater and greater insistence on rights created by the legislation becomes important. At the same time it must be realized that as much important as the creation and recognition of the rights is the making of the remedies available for the enforcement of claims founded on those rights. What is of significance is not merely rights but remedies and we are greatly agitated with the question of remedies. In this country as Glanville Austin points out we look upon the Judiciary to give true force to rights. The recent developments in this country clearly establish that although judicial decisions are an important source of law, the increase in legislation more often than not, over-shadows that source. The law is thus to be found not only in law reports but also in various statutes. It has been said by one American political thinker Thomas Paine that the first principle of civilization is that the condition of every person born into this world ought in any period to be better than if he had been born before this period. This is the moral obligation of all civilized governments. In this connection it may be worth noting that the relationship of the administration of justice with the condition of our life is of special significance. In Germany, administration is not controlled by the civil courts but rather it is controlled by independent administrative courts. These administrative courts are fully separate from the administration. The judges are educated and appointed in the same manner as the judges in civil courts. In German law when one thinks of the courts, one thinks in the same way of these administrative tribunals as of the regular civil and criminal courts. Every jurisdiction in such a situation must be of the same value and rank. Of course, what is suggested here is not that the jurisdiction of the Supreme Court under Article 136, Article 32 or the High Court under Article 226 be curtailed, but that there should be self-imposed restraint by which the Supreme Court or the High Court leaves the decisions of these highest tribunals in various branches untouched. When that situation comes about, we will have a fair spread-over of the system of administration of justice. These administrative tribunals should also be regarded as guardians of rights of citizens; be an unpenetrable bulwark against every assumption of excessive power by the Executive. It is true that the final authority to interpret the Constitution must rest with the Supreme Court but the large number of legal questions emerging day to day may be resolved by these tribunals. Such a resolution would be of great value to the administration of justice. It may be that the proper way to give greater efficacy to the statutory tribunals will be for Parliament to enforce clause (3) of Article 32 which provides that Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2). If our Constitution is one of the longest, it is because our Constitution draws on the experience of a large number of other countries and seeks to establish a balance. Dr Ambedkar observed in the Constituent Assembly that it was impossible to frame a Constitution which was absolutely new or original. "The only new things," he said "if there be any, in a Constitution framed so late in the day are the variations made to remove the faults and to accommodate it to the day-to-day needs of the country." Our Constitution on which is founded the rule of law is special in a sense that it has within it the implicit scope for an opportunity both for change and continuity and this aspect will be jealously protected by the Judiciary in this country. With the qualitative and quantitative increase in the functions of the modern State one must inevitably stress the importance of elementary safeguards designed to prevent the State from becoming uncontrolled which is what the rule of law is and a fuller development of administrative justice has to be developed to give us what we eagerly look forward to, namely, a sense of security and equality.
Prof Cox points out of Ben Franklin that on September 17, 1787 when he was carried up the steps of Independence Hall for the last day of the Constitutional Convention, he wept as he signed. Sitting back while others signed his eyes fell on a painting and he noted the difficulty artists have in distinguishing between a rising and a setting sun. Franklin laboured unsuccessfully for a lifetime to bring North American colonists together. Each movement of Union had been followed by retreat. For four hot and humid months the Convention had been tottering on the brink but now at length, he said, I have the happiness to know that it is a rising and not a setting sun. I hope we share his happiness and know after nearly 40 years that despite the turbulence now witnessed what we see is the rising sun.
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