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R.C. Ghiya Memorial Lecture*
The Constitutional Obligation of the Judiciary
by Delivered by Hon'ble Shri J.S. Verma,
Chief Justice of India
Cite as : (1997) 7 SCC (Jour) 1
Chief Justice of the Rajasthan High Court, Hon'ble Judges, past and present of the High Court, Mr Ranka and other office-bearers of the Rajasthan Tax Consultant Association and Tax Consultant Association, Jaipur, Mr Advocate General, Members of the legal fraternity, distinguished ladies and gentlemen.
I am indeed privileged to be invited to deliver the second R.C. Ghiya Memorial Lecture. I deem it a great privilege and honour to associate in paying homage to the memory of a great gentleman of the Bar. My recollection of Mr Ghiya is that of a serious-minded, sober and hard-working lawyer practising on the tax side who appeared before me on a few occasions when I was here. It so happened that when I came to Rajasthan I learned that the tax references, particularly the income tax references were pending in large numbers. The members of the Tax Bar and some others came to me and said that because of the pendency of these matters, there is almost a stalemate in the future assessments also and, therefore, it is very necessary that the tax references are heard and decided early. I enquired about the cause and I remember, Justice Vinod Shanker Dave, who is here, telling me that in spite of being the Standing Counsel of the Income Tax Department before his elevation, he had no occasion to argue any tax cases since for several years there was no Tax Bench. It is in this background that tax cases came to be listed before me. Since I was presiding over the Tax Bench I had the occasion to hear every tax lawyer who had cases in the High Court and that is how I had the occasion to see the performance of Mr Ghiya. He may not have been a very busy practitioner in the High Court, because his activity may have been more before the Tribunal and the Tax Authorities but he did appear before me on a few occasions. Every time he appeared I was impressed by his sobriety, dignified behaviour, industry and the entire bearing of a true professional. I am indeed happy that the Tax Association has recognised the worth of a man like him and decided to set up these lecture series. That is an additional reason for my pleasure in associating with this function.
So far as the tax laws are concerned, it is true that we in the High Court and the Supreme Court decide questions of law but many of us are not very conversant with the realities of the tax law. We are concerned more with interpretation of tax laws and at least I am not one of those who can claim to be an expert in the field. So, I don't think I am well equipped to say anything specific in the field of taxation which the first lecturer Dr Man Mohan Singh was well equipped to do. I would, therefore, confine myself basically to the aspects relating to the Justice Delivery System of which this branch forms a part and briefly touch on my view of the common man's perception of the tax laws and its needs. Tax laws have an impact on every citizen's life, who pays taxes or who does not even pay any direct taxes because indirect taxation affects the life of everyone. That is the significance of tax laws. Taxation is a power of the political superior and realisation of taxes is essential for meeting the State expenses which are meant for governance. The needs of governance in a police State are limited but that in a welfare State are far more and, therefore, the occasion for greater taxation in a welfare State is understandable. All the same if there is justification for greater taxation in a welfare State, the reason for it is that the State undertakes several obligations to justify it being called a welfare State which otherwise would be the personal responsibility of the citizen and, therefore, the justification for greater taxes in a welfare State is the reduction of the personal obligation of the citizens so that many personal obligations of the individual, should stand transferred to the State as its obligation. Such areas are, for example, health, education, etc. and, therefore, if in spite of larger taxation, the private burden does not get reduced then there is something wrong with the formulation of the economic policy of the country as well as its implementation. That is an area which requires serious reflection by everyone concerned with the framing of the tax laws and their implementation. It has been said, even in the ancient texts while describing the taxing power of the king, the political sovereign, that a good king is he who draws in the form of taxes from the subjects only as much as a bee draws honey from a flower so that the sustenance of the flower is not endangered. It is like the sun drawing vapour from the rivers, the water resources to return it back manifold to the earth itself. That is the ideal tax policy. I would urge all of you involved in this field of activity of formulation and implementation of the tax laws which is a branch of administration of justice to always bear this in mind and so utilise your talents that proper taxation is made and duly implemented. See that it does not have the effect of withering away the flower from which it is drawn. Assist tax planning but prevent tax evasion.
Coming now to the topic which has been indicated to me or the theme of the lecture - "The Constitutional Obligation of the Judiciary". The personality of Mr Ghiya which I just now mentioned is indicative of the kind of traits required in a member of the legal fraternity who is there to assist the courts in discharge of their function. Mr Ranka rightly said that we are two sides of the same coin and even if one of it gets defaced the coin goes out of circulation. It also indicates that like the two sides of the coin, they are inseparable and the utility of the coin is only so long as both coexist and support each other. Ultimately it is only from the Bar that the members of the Bench are drawn. As a matter of fact the upbringing of both is the same. They pass through the same route of legal education, entry into the Bar and thence onwards to the Bench and therefore, the requirements are common. I believe that the requirements of both are the same. Unless you are a good, honest, industrious and conscientious lawyer, you cannot be what is expected of you as a Judge. Identity in the requirements of both of us is the reason why each one of us is equally important for proper administration of justice.
To understand and appreciate fully the true constitutional obligations of the judiciary may I begin by mentioning the current perception in the society of the judiciary. It would be no exaggeration to say that our countrymen have placed us on the highest pedestal and they have really put us at a dizzy height which goes to show the manner in which the people of our country appreciate and praise what they consider to be good work done by anyone. I always say, why do we get so much acclaim, after all none of us is doing more than our duty, what else are we meant for? That is the beauty of this country, the people praise you and elevate you to dizzy heights merely for doing your duty. It should set us thinking, and it requires very great reflection. Are we giving them back which is their due? Is the return to them commensurate with what they are giving us?
There is an old saying, "It may be easy to get at the top but it is not easy to stay there." In the onward ascent to the summit, there may be several factors which may weigh. Maybe, the path which you tread to the summit at that time is not too arduous. Maybe, your competitors are not so skilful and, therefore, the competition is lesser to get to the top. But then, if you want to stay at the top, you have to justify being there by constantly improving your equipment so that even when the competition is tougher, you can withstand the same and continue to remain there. If you lose sight of this fact and such a constant awareness is not there and you are led away by the euphoria of the time, I have no doubt the success would be short-lived and then in the failure to be where you have been placed is not merely your personal failure but because of the nature of constitutional obligations entrusted to you, that would be the failure of the role assigned to you by the Constitution in the governance of the State. Therefore, it would be a failure of the constitutional obligation, the constitutional role entrusted to you.
Ultimately each one of us does that, which we are assigned as our role under the Constitution in the governance. In the discharge of this role, what is that, which must always be in front of us as the ideal to be achieved, as the target to be kept in view. I can do no better than to quote the great Roman statesman, Cicero who said - "The chief law is public good." These words summarise the entire reason for the entrustment of certain powers to each one of us in the three separate wings, so that in the discharge of our duty, we must always bear in mind that justice is to be administered according to law and the chief law is the public good. Therefore, for the purpose of proper implementation of the rule of law, the interpretation we make of the laws has to be keeping this uppermost in our minds as a basic postulate which must never be forgotten by the judiciary. Addison said - "Perfect justice is the attribute of the divine but to do so to the best of our ability is the glory of man." If we are given the power or the authority to sit in judgment over our fellowmen, we must remember that this is a divine function because no human being has the right to sit in judgment over his fellowmen. The Tudor kings came to believe in the "divine right of kingship" as a personal attribute and came to grief. History tells us that. They came to grief because they started thinking that they were themselves divine instead of remembering that this was a divine function entrusted to them for the welfare of their subjects. This is what we have to remember. Justice is a divine function. We are entrusted with the onerous task of dispensing justice. We discharge a divine function. None of us is divine and, therefore, perfect justice is something which is beyond us, but to administer justice to the best of our ability is all that we can do and that we must strive to achieve.
The question, therefore, is what is that which is required to be done for the purpose of justifying the position where we have been placed and to justify the entrustment of this divine function? Once this is clear in our mind, I do not think the problem would be as acute. Along with this, we have to remember something which Mr Ranka has also mentioned about continuing education. I was happy to hear that they are involved in the exercise of continuously updating their knowledge, so that they can improve their equipment and perform their task better. Law is a subject which is always advancing, it is growing. For our proper growth, we must remember that we are involved in the process of continuing education and the moment we think that we know enough law and we have nothing more to learn that would be the end of the process of growth and I may say so, with due respect, if unfortunately that incorrect or erroneous perception sets in, not only is it the end of our growth, that would also be the end of our utility in the Justice Delivery System.
Law has to be interpreted according to the current societal standards. The law when enacted, in spite of the best effort and capacity of the legislators cannot visualise all situations in future to which that law requires application. New situations develop and the law has got to be interpreted for the purpose of application to them, for the purpose of finding a solution to the new problems. That is how the law advances. That is the area or field of judicial creativity to fill in the gap between the existing law and the law as it ought to be. If you have proper perception and proper values, those will influence your thought process and the exercise which you perform in the form of judicial creativity would be tempered more by morality and ethics. After all justice cannot be alien to morality and ethics. Complete justice or true justice must encompass within it morality and ethics. Mathematically stated - "Abstract law plus morality or ethics is equal to justice." That is the task which we Judges are required to perform in the course of administration of justice. This is the kind of role which the judiciary has to perform and by judiciary I mean not merely judges but the lawyers as well because it is together we form the machinery for the administration of justice.
The interpretation of laws has to be purposive. When I say purposive, it means the interpretation has to be to subserve the object of the enactment of the law keeping in view the supreme law, the Constitution. Every law has to accord with the Constitution, otherwise it suffers the defect of invalidity or unconstitutionality and, therefore, even while construing statute law, one must always bear in mind the provisions of the Constitution and the constitutional goals, the constitutional purpose which is sought to be achieved.
I must say our Constitution is a beautifully drafted document. It is no doubt an elaborate document. If I were to be asked to say in a few words the sum and substance of the Constitution, or if someone has to read only a few provisions to understand the constitutional scheme, the constitutional goals what should be read? I would say read the Preamble to the Constitution and not the Fundamental Rights alone in Part III but the Fundamental Rights together with the Directive Principles of State Policy in Part IV plus Article 51-A in Part IV-A, the Fundamental Duties. The Directive Principles are the mandate to the State as to what is expected of it in the governance of the State for the purpose of achieving the constitutional goals indicated in the Preamble. Only a few words of the Preamble are alone sufficient to keep us on the right track to understand the role of the courts. The Preamble begins with the words, "We the People of India" which indicate the location of the political sovereignty. Then Justice of all kinds, Equality, Fraternity - Fraternity because there is a pluralistic society - and, of course, Liberty. In a pluralist society the concept of Fraternity is very essential because unity in diversity is really the beauty of the Indian ethos. If what is said in the Preamble, is kept in view along with the mandate to the State in the Directive Principles, I have no doubt the entire constitutional scheme would be clear. The remaining provisions are merely to enable the achievement of these constitutional goals.
The scheme of separation of powers requires conferment of the power of judicial review in the Judiciary. That is an acknowledged basic feature of the Constitution. Judicial review, as originally conceived is generally understood to emanate from the judgment of Chief Justice Marshall in Marbury v. Madison1 in the year 1803. It was strongly resented to by the other wings. But it is most often forgotten that two centuries before Chief Justice Marshall it was Lord Coke who had said the same thing in Dr Bonham case2. Now it is an acknowledged basic feature of the Constitution. That is the significance of the role of the Judiciary envisaged by our Constitution.
It is expected that Judiciary would keep everyone within the bounds indicated by the Constitution. But that does not mean we are left free to move wherever we like. The bounds are equally applicable to us and the Constitution has entrusted the additional task to not merely keep everyone else within bounds but also to remain within bounds ourselves. And that is something which is automatically taken care of if we remember that the final word in governance is not ours, but with the people and we discharge a delegated function. A delegate can never claim to be superior than the principal. That is the basic thing which is required to be remembered. One of the things, therefore, for the purpose of achieving the constitutional goals of ensuring socio-economic justice is proper access to the courts so that in case of need the courts can step in. The prime requirement is speedy justice, which is a facet of Article 21 itself. And, therefore, these are other factors to remind us constantly of the onerous duty entrusted to us.
The powers which are given to us are not provisions meant for personal aggrandisement. They are meant to subserve the constitutional purpose and they are meant for upholding the majesty of the law. True respect, lasting respect, and justification for being at the highest level we have been placed, has to be earned from the people. It is not to be extorted from them by the fear of the exercise of contempt power. It was said by Lord Denning long back in 1968 that the respect for the Judges must rest on surer foundations than mere exercise of the contempt power. The contempt power is there to keep in check the recalcitrant, to punish the incorrigible and the adamant but only for the purpose of upholding the majesty of the law and not for our personal majesty. This has to be borne in mind. It is this route which will ensure that we earn the respect of the people. Eloquent testimony is to be found from the status given to us now. The present respect for the judiciary is not because of the contempt power but because of our service to the nation. It is because the common perception is that we are exercising our power given by the Constitution to achieve the constitutional goals, we are exercising them for the benefit of the people. Equality is ensured by us. Socio-economic justice we tend to promote by our decisions. I would personally think this is the most eloquent proof of how desirable and sustainable respect for the Judiciary can be earned.
The most valuable asset of any nation is its human resource. Now, to achieve perfect socio-economic justice, therefore, increase in the worth of this greatest national wealth is essential. Everything which we can do in the sphere of governance as one of the three wings of the State for development of human resources, for increasing the worth of human beings is going to contribute towards the growth and development of the nation. Interpretation of Article 21 to mean life with dignity and not mere animal existence has the effect of increasing the worth of human beings. It enhances the human resource. The Judiciary can contribute to the growth of the national wealth to achieve the constitutional goals in this manner.
I may, while talking about access to justice, say something also about Public Interest Litigation which everyone is aware of these days. The liberalisation of the "standing rule" or "locus standi", which has facilitated public interest litigation is really a mode to achieve access to justice to all including the have-nots. Mere guarantee of Fundamental Rights in the Constitution for the benefit of the citizens of the country without also ensuring that they become a reality is meaningless. There are many people who are not even aware of their rights in spite of greater general awareness in recent times. To say that the guarantee of basic human rights in the Constitution is sufficient discharge of duty, is a great fallacy unless it is a reality for every citizen of the country. This is what requires the liberalisation of locus standi so that socially activist groups and other public-spirited individuals, not busybodies, in true public spirit could bring such matters to the court and the court could step in and grant relief to such people who are guaranteed the right but are not even aware of it and are being denied it constantly. There cannot be two opinions about the need and efficacy of the process. There may be some legitimate doubts about the manner of its performance in some cases. Merely because there may be some aberrations because of the misuse of the process on a few occasions, it does not mean the process is bad.
The need is to prevent misuse of PIL and not to criticise the process. And this is what the courts will have to do so that misuse of PIL is prevented and proper use of it has not to be blunted. Every innovation takes time to get into proper shape. Any attempt to curb it would be to throw the baby with the bathwater. It is primarily for the courts who devised this procedure to practise self-restraint and to also devise proper checks and balances to ensure that even persons who want to misuse it are not able to do so. The Supreme Court for some time has been doing this. Even though we have liberalised the standing rule, when a matter is brought to the Supreme Court in the form of PIL, it is examined whether the cause satisfies the test of public interest. If it is in public interest, it is treated as a representative action. The principle underlying Order 1 Rule 8 CPC is applied. It must be said to the credit of the Bar, and this I say from personal experience over the years, the most busy lawyers who charge large fees which I often openly criticise, if called upon to appear as "amicus curiae" in any such matter, leave every other work and without charging a single rupee put in their best effort in a PIL matter. That credit is due to the Bar. That is the beauty of the Justice Delivery System and that goes to show that the legal profession has not yet become wholly mercenary. Professionalism remains and professionalism is the essential trait of any such service-oriented enterprise.
Public Interest Litigation, therefore, needs to be handled with great care and caution. It is a very useful tool. It has been very effective in many ways. It has great educative value and improve future decision-making. That is the general perception but we have to ensure that its efficacy improves and does not wane.
One of the steps taken in the Supreme Court recently is the constitution of a committee headed by one of my colleagues to prepare a draft for revision of the Supreme Court Rules so that the revised rules provide for the current needs. I have requested that committee, to draft a separate chapter to be introduced in the Supreme Court Rules on Public Interest Litigation, which would contain general rules for guidance to maintain uniformity. Attempt would be made to ensure that only matters satisfying the test of Public Interest Litigation are treated as such.
For proper discharge of our functions, care in three areas is needed. First is the entry to legal education, then the Bar and then the Bench. If you take care of the first, to a great extent the second is taken care of. If you take care of the first and the second, the third would automatically be taken care of, because it comes at the end. I have never understood why there should be so little importance attached to legal education when it is far more for entry into other similar professions. At no time has it been suggested that the legal profession is any less serious or that it requires lesser equipment. All the same, there has been some kind of lethargy in planning it and then in implementing the correct scheme. Earlier the traditions of the Bar made up for this deficiency. The legal education may have been of the same kind but requirement of strict training with strict discipline made up the deficiency in legal education. Unfortunately, for reasons which it is not necessary to recall at this moment that has not been available in recent times and in those who have been able to imbibe the correct discipline, it is more the result of individual effort than the system. Now, if there is dilution, therefore, at the stage of the entry in the Bar itself and with the courts not having any control over the Bar because of the autonomy of the Bar Councils and proper enforcement of the requirements by the Bar Council being wanted there has been further dilution. At the end point the dilution is, therefore, no surprise.
Most often the question is asked, I have been asked even this morning by the Governor of the State as to how can the quality be improved so that quality of administration of justice would not suffer? The problem does not emanate from just one cause. The first is, too much money at the Bar because of which there is reluctance among the best now to come to the Bench. The result is that you have to go down the line. This itself dilutes the quality in the first place. You have to think of some other method to maintain the standard. One thing which I strongly feel is that any member of the Bar who the Chief Justice of the Court thinks ought to come to the Bench if asked more than once must accept the offer. I know I am sounding harsh but then ultimately individual interest must always be subordinated to public interest. This must be the obligation of every member of the profession. This may be harsh but then I think the time has come to do that. It is also necessary to increase the salary of the Judges to attract the best men. It must not be forgotten that appointment from the Bar to the High Courts and the Supreme Court is to be from lawyers of the front rank who have a large income. But then, that is matter for someone else to emphasise.
The other practical method is a long-term plan. I am not mentioning it only now. I had said it much earlier, probably in 1987 as Chief Justice of Rajasthan, when the proposal for an All India Judicial Service was mooted some ten years back or more and the matter came up for consideration in the Chief Justices' Conference also. At that time I was the Chief Justice of Rajasthan and the views of the High Courts were sought. By and large, all the High Courts opposed, my High Court also opposed. But personally I had thought even then that this is not correct, we ought to have an All India Judicial Service. Therefore, my separate opinion as an individual I had sent to the Central Government in which I had given my reasons why it should be constituted. What I said was, that there is greater difficulty in persuading the right kind of members of the Bar and deserving members of the Bar to come to the Bench and this difficulty is going to increase with the passage of time. Why don't we see that today also in many central services like the IAS etc. you still get quality stuff and some brilliant people. Have Indian Judicial Service on a par with these services so that the bright youngsters who may at that stage not be prepared for personal reasons or otherwise, to take the risk of uncertainty at the Bar may have the avenue of joining a service where unless they condemn themselves by their future misconduct they would be sure of becoming High Court Judges. The situation where ultimately you have to choose from the residue would be avoided and you would be choosing from some of the best. The quality of administration of justice would depend not merely on the quality of the members of the Bar but even more on the quality of the members of the Bench because ultimately the last word is that of the Judge. I am personally of the view that the formation of the Indian Judicial Service would be a very positive step in that direction.
Continuing education, I have already mentioned, awareness that we are students always has to be there so that merely being good at the entry point is not good enough. We have to continue to be good all the times.
Then, finally, I come to an aspect which I think is of great significance in this context and even more in the current times. No one doubts that Independence of Judiciary is a must. It is essential for proper administration of justice. Care has been taken in the Constitution to ensure Independence of Judiciary. As a matter of fact it is also treated as a basic feature of the Constitution which cannot be touched. But I am afraid, the full import or meaning of the expression "Independence of Judiciary" is not often realised. There are many facets to it. Independence of Judiciary does not mean merely independence from outside influences but also from those within. To my mind, dangers from within have much larger and greater potential for harm than dangers from outside. To protect us from dangers which emanate from sources outside there are many others who help. So far as the dangers from within are concerned, we are the one primarily responsible for them and we are the one primarily who can avoid them - at a time, when the need for Independence of Judiciary and its preservation is the greatest. It is greatest for the proper performance of the functions entrusted to us. It is the greatest need of the people of the country and it is also the greatest need for keeping us or maintaining us where we have been placed. It is necessary that we are fully alive to this danger.
How do we do that? In view of that which we in the judiciary often keep on saying and we are quoted to say that "be you ever so high the law is above you". We have to remember that when we say this it is not meant only for others. It applies equally to us. With the added responsibility which we have of implementing it even on us. For everyone else, we do it. For us, it will have to be done. There cannot be any doubt because no one can claim to be above law. If we are wise and we do it ourselves then there is no need for any outside agency to do it. If we don't do it, I am afraid to say, and would not be surprised if some outside agency does it and then we would only have ourselves to blame. That would be an erosion of the Independence of the Judiciary for which no one else can be blamed. Just as everyone else is accountable, we are also accountable; accountability to the same law, accountable to the same standards which we set up for others. What is Article 235 in the Constitution meant for the subordinate judiciary? That is a facet of Independence of Judiciary. It is not mere conferment of power on the High Courts, that provision has been enacted to ensure that the subordinate judiciary also is immune from executive influence and that is why the control over the subordinate judiciary is entrusted to the High Court and to no one else because the control remains within the judiciary itself and that is what ensures the maintenance of independence of the subordinate judiciary. There cannot be any doubt that the requirement of the standard of behaviour that is meant to ensure independence of the subordinate judiciary is controlled by the High Courts' exercise of the power of control under Article 235. There is no reason why there ought to be no mechanism and in-house procedure for us also. We cannot say that we will control everyone else but there need not be any control on us merely because we take the oath of office. It would be exhibiting the ostrich syndrome to say that there can be anyone who cannot be accountable to known standards. That is not the scheme of our Constitution. That is antithesis to basic democratic principles and, therefore, for the purpose of effective preservation of Independence of Judiciary, it is necessary that we ought to ensure proper judicial accountability. We must practise self-restraint. We must remember that all our powers are only for the purpose of subserving the constitutional purpose; and it is meant to be exercised only in public interest and not otherwise. Respect for judiciary has to be earned, and that can happen only if people believe that we deserve the respect that we are given. They respect us as upholders of the majesty of law. Personal respect is a corollary and incidental. I may sound a bit harsh, but I personally believe that when you have lot of power, you need to be more circumspect in its exercise. Today we are in that position. In the Second Judges' case3 this caution is mentioned in the majority opinion by quoting Shakespeare from "Measure for Measure". We have today been given a giant's strength. It would be tyrannous if we were to use it like a giant. I would end with this note of caution. The great strength of the judiciary must be utilised for public good and always in public interest, in the service of the people. That is the constitutional purpose for the conferment of these powers on us. We must preserve the independence of judiciary in all its facets to provide proper administration of justice. Then only we can justify the office we hold and the powers and privileges we enjoy. I end with this fervent hope.
Thank you very much.
- 5 US 137 : 2 L Ed 60 : 1 Cranch 137 (1803)
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- (1610) 8 Co Rep. 114a : 77 ER 646
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- Supreme Court Advocates-on-Record Assn. v. Union of India (1993) 4 SCC 441, 688
(para 437)
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