|
Law Day Speech on 24, November
by Justice Ranganath Misra
Cite as : (1991) 1 SCC (Jour) 1
My esteemed colleagues, Hon'ble Judges from the Delhi High Court, President and Members of the Supreme Court Bar Association, Ladies and Gentlemen,
Forty-one years back on this day the founding fathers set their hands to the Constitution of India the magnificent edifice which as the supreme law of the land has been providing the base and the source for the governance of this country for over forty years now. The three long years of deliberations in the Constituent Assembly demanded both craftsmanship and legal acumen in the matter of framing the fundamental law and the Constitution fathers have exhibited great candour, wisdom, pragmatism and deep understanding of India's multi-faceted problems in making the Constitution.
Though we have occasionally come under a common banner, history indicates that what is geographically known as India has often been divided into several independent States; yet the ethnic bond and cultural ties had grown up and held the States together beyond territorial frontiers. Therefore, notwithstanding the political divide, the ties of culture, religion and common pursuits had gradually generated a sense of oneness.
In the British period, apart from the Indian States the rest of the territories had come under a common administration. Within a short period following independence in 1947, the native States merged with India and excepting those areas which became parts of Pakistan, the rest of the country became a compact unit.
Our Constitution fathers took into account the historical past and accepted the Government of India Acts of 1919 and 1935 for the purpose of seeking a basic foundation for the new edifice. They also envisaged the evolution of a powerful Centre following the withdrawal of the Britishers and in the last phase of the independence struggle Parliamentary system of Government had been experimented in a limited way and was believed to have been successful. Democracy and federalism had come to stay. Therefore, no sudden switch-over from the system then prevailing was considered either necessary or useful.
The Constitution, for the first time, introduced universal adult suffrage which brought about a great change in citizen-participation in the democratic process. The struggle for independence which had lasted over a century had brought to the fore aspects and features which were dear to the people and for effectuating which expectations had grown. Gandhiji and Dr. Ambedkar had fought for years to elevate the lot of the downtrodden and particularly the untouchables. This warranted a social vindication of their status which could be possible only if untouchability was removed. The Constitution, therefore, abolished it.
British administration in this country though comparatively less oppressive than elsewhere had given rise to a demand for a Bill of Rights incorporating basic and fundamental guarantees to the citizens. During the deliberations the Constituent Assembly realised that in consideration of the prevailing conditions and the philosophical thrust Fundamental Rights and Directive Principles of State Policy should be separately dealt with. Articles 14-32 were devoted to guaranteeing certain rights as basic and fundamental and Articles 37-51 were intended to provide for the Directive Principles of State Policy. The difference between Part III and Part IV of the Constitution was that while the provisions of Part III were enforceable in Court, those contained in Articles 38-51 were not. Article 37 indicated that the provisions contained in Part IV would not be enforceable by any court though the principles therein laid down were fundamental in the governance of the country and it would be the duty of the States to apply them in making laws.
Two months after the adoption of the Constitution it was brought into force and we have been celebrating November 26 as the Law Day and January 26 as the Republic Day of India.
The Constitution envisaged a powerful Centre. Therefore, Article 248 of the Constitution vested the residuary power of legislation in Parliament. Unlike the Constitution of the United States which is of a centrifugal type, ours is centripetal.
Working under the aegis of the Constitution during the forty years several changes have been brought about in the various fields in the country. Perhaps many of these changes elsewhere would have required a revolution while in India the Constitution and the judicial process have helped these to be achieved in an evolutionary manner without shedding a drop of blood or disrupting society to any tangible extent.
The Constitution has undergone sixty-eight amendments in these forty years. Some have been brought about in view of the judgments of this Court; others have become necessary on account of experience gathered by functioning and yet others have come with a view to facilitating a functional switch-over and fulfilling the goal of the Constitution. In this process right to property which was once fundamental has lost its status and from the protective position in Part III it has been shifted to Article 300-A as a mere legal right. By the Constitutional process we have abolished the privy purses of the ex-rulers; banks have been nationalised. The guarantees in Part III of the Constitution by enforcement through Courts have become realities of life. In these forty years the Courts have tried to keep up the majesty of law by lifting the concept of rule of law above the canopy of controversy. People of India had suffered a brief period of emergency; India had been at war with Pakistan on two occasions but these have not been able to shake the foundation of the Constitution.
Consciousness about rights has grown while correspondingly executive dispensation of justice has been reduced. As a consequence of this, litigation has multiplied. The common law rule that every wrong has a remedy has led the courts to accept every cause based upon a grievance and relatable to a right to be adjudicated. Perhaps a little careful scrutiny in the lawyer's chamber would keep away some litigations from the Court. The influx has been so huge almost in every court throughout the country that backlog has been presenting a difficult and challenging problem to the judiciary to negotiate with. Professor Wade in his Administrative Law has stated:
"At every point the question is, how can the profession of the law contribute to the improvement of the technique of Government? It is because all the various topics offer scope for missionary spirit that they form a harmonious whole. Subject as it is to the vast empires of executive power that have been created, the public must be able to rely on the law to ensure that all this power may be used in a way conformable to its ideas of fair dealing and good administration. As liberty is subtracted, justice must be added. The more power the government wields, the more sensitive is public opinion to any kind of abuse or unfairness."
Attempts to tackle with the problem of backlog have been on in our country for over thirty years now. The Law Commission has been seriously considering this question and from time to time recommendations have been made for meeting the problem. One of these has been to limit the right of appeal in small matters to have no appeal and in others one appeal only. This aspect is no new thinking. In September, 1872, Lord Hobhouse in his minutes on the Bill to the Privy Council Appeal Act had noted:
"No man has a right to unlimited draughts on the time and money of the public in order to get his private affairs settled as he wishes. The State's duty is discharged when it has provided such a reasonable amount of attention and skill and honesty as will satisfy reasonable men that their cases have been decided, erroneously or otherwise, on the merits, and according to the best ability of the Judge, and so will prevent them from feeling that resentment of sheer injustice which drives people to take the law into their hands and wage private wars. Upon this principle all laws place some limits to litigation. And so have we placed limits to appealing."
Some steps have been taken in this direction but perhaps what has been done is not adequate and more measures are necessary.
Increase in the number of courts and Judges, change of laws or procedure and emphasis on conciliation have also been suggested to meet the evil of backlog. Increase in the number of courts or Judge strength commensurate with the size of litigation may not always be pragmatic and viable. The court as an institution has its own limits of expansion and inflating its size on a mathematical basis may bring about more problems than would bring about relief.
Lok Adalats have been operating almost throughout the country and sizeable work has been done in the past 3-4 years for bringing about settlement by conciliation. More than 25 lakh cases have been disposed of within this period and by resorting to conciliation at the pre-litigation stage about half a million potential litigations have been avoided. But these steps have not been able to make any visible impact on account of the tremendous volume of the backlog. There should be extension of conciliatory methods for settlement in view of the fact that settlement by conciliation not only decides the cases but brings about restoration of cordial relationship between the litigating parties and consequently reduces tension in social life. The Legal Services Authorities Act received the Presidential assent in 1987 but could not as yet be brought into force in view of the unanimous suggestion of the Chief Justices of the High Courts that some of its provisions should be altered prior to enforcement. The Bill for bringing about the requisite amendments has been on the legislative anvil for about two years. It is likely to get cleared soon. With the enforcement of the statute and more of powers provided to the system, it is expected that the volume of conciliatory activities would expand and more of pending cases would be handled by the Lok Adalats and by increase of pre-litigation conciliation the inflow of fresh litigation may also be reduced.
Failure of the judiciary to deliver justice within a time frame has brought about a sense of frustration among the litigants. The oft-quoted statement that 'Justice delayed is justice denied' is being pointed out from every nook and corner of this large country. Human hope has its limits and waiting too long in the current life style is not possible. Chief Justice Warren once very aptly said:
"Both the court and the law belong to the people to have it serve their needs; speak to them, to voice their aspirations."
Today the crises of confidence in human institutions has come to the forefront. The deficiency of every institution in tackling the growing and complicated social problems for monitoring which the institution exists has become a common feature to notice. Expectations have grown from every institution while there is no corresponding increase in the serviceability of such institution. On the other hand, perhaps the capacity to satisfy the demands is showing a reverse trend. The judicial process is no exception to this rule.
There is also a consistent attempt everywhere to browbeat authority. Society is not prepared to extend any accommodation; on the other hand, it exhibits an exacting attitude. The judiciary is called upon to handle current burning problems and, therefore, often faces embarrassing situations. The viability of the judicial institutions depends upon their acceptability by the people at least by those who want their disputes to be adjudicated. Though laws provide the forum and lay down the procedure, invoking the law for relief is the option of the citizen. One would come forward to approach the court only when there is confidence in the system and its efficacy. When the viability of the system gets into disrepute and ultimately becomes less and less useful to the community, anxiety to seek shelter within the corridors of the system dies out. This has perhaps happened to most of the social institutions and the judiciary is gradually getting drawn into that trap.
I am an optimist and do not share the impressions of my predecessors that the judicial system has either collapsed or is fast collapsing. I strongly believe and maintain that we have a time-tested system and there is no justification to discard it by giving it a bad name. The working efficiency of this institution depends upon the people who man it and on their capacity to generate the appropriate sense of confidence in the people who wait for receiving the service. Justice Cardozo in an address in 1921 in a different setting said:
"The courts are not helped as they could and ought to be in the adaptation of law to justice. The reason they are not helped is because there is no one whose business it is to give warning that help is needed .... We must have a courier who will carry the tidings of distress...."
Justice Cardozo had uttered these pregnant words with reference to the working of the courts and the legislature. Today perhaps the message of distress has to reach more places than one if the judicial system has to be kept viable, vibrant and virtuous.
In these forty years law has considerably progressed in many aspects. The bar of locus standi was liberalised as early as in 1981. Ever since then there has been a sizeable mould to the nature of litigation particularly in superior courts. In these 8-9 years public interest litigation has become popular and has served the cause of the community to a great extent. It is in this group of cases that the court has exhibited its competence of being a social auditor. The impact of the judicial process in social living has been clear and discernible; the common man has perhaps been able to see the benefit the judicial system is capable of bringing about.
Admirers and critics often indicate that for reasons which are more than one the judicial system has shown appearances of cracks and fatigue. It has, therefore, become necessary to deal with the situation both promptly as also dexterously. I have the confidence that the entire Bar of India would extend its unequivocal support to maintaining the majesty of the system and readily cooperate in drawing the judicial process out of the situation into which it has temporarily got into.
India is a great country with rich legacies and high traditions. Culturally, it had reached heights which mankind nowhere else ever did. Yet the Indian society today is at a very low key. What is needed today is statesmanship not only in the political field but perhaps in every social sphere. What is necessary is restoration of confidence in the living process. I look for bridges of understanding to be thrown all around in the community and also between the judicial system and society.
Legal education should be enriched by building into the curriculum a programme for exposing students to realistic working situations of lawyers. The scheme should be committed to a clinical programme drawing on field experience and simulated materials that provide an important variant to move in the right direction. I have already suggested to the Chairman of the Bar Council of India as also the government in the appropriate quarters that positive attention may be devoted to improving the quality of the legal education.
I am happy to indicate that Government of India have approved in principle the location of an all-India Judicial Training Institute at Delhi for providing training at the entry point into service in the different hierarchies in judicial service as also an in-service training during the period of work. I expect that this institute would be commissioned in course of the coming year. Such an institution would immediately contribute to improve the quality of performance.
The problem posed by lawyers resorting to strike and on that account the system not functioning for a substantial part of the working period has become a regular feature. That in fact is one of the most important reasons for accumulation of arrears. Equally that also counts for loss of public confidence in the system. We have to sensitize the Bar, the strength of which today is around 400,000 to rise to the occasion, understand the problems involved in the feature of strike and bring about an end of it. Lawyers are simultaneously officers of the court and agents of their clients. There can, therefore, be no justification for disturbing the continuity of service of the system to the society for reasons unconnected with the judicial functioning. The Bar Council of India, the State Bar Councils and Advocates' Associations have to take prompt steps in this regard.
Let us pay our homage on this day to the Constitution fathers but for whose labour this great edifice would not have come into existence. Let us remember their great capacities of appreciation, comprehension, sagacity and exposure. Let us draw inspiration from how they worked and what they ultimately said and let us try to put flesh and blood into the language of the Constitution to make it a social instrument in the service of the nation. Permit me to finish by quoting Dantible Webster from his funeral oration on Mr. Justice Story delivered some 45 years back:
"Justice, Sir, is the great interest of man on earth. It is the ligament which holds civilized beings and civilized nations together. Wherever her temple stands, and so long as it is duly honoured, there is a foundation for social security; general happiness and the improvement and progress of our race. And whoever labours on this edifice with usefulness and distinction, whoever clears its foundations, strenthens its pillars, adores its entablatures or contributes to raise its august dome, still higher in the skies, connects himself in name and fame and character with that which is and must be as durable as the freedom of human society."
I extend Webster's invitation to all of you.
| 
