The impact of decision making process by Courts touches almost every aspect of human existence, social behaviour and States governance. From Presidents election to compassionate appointments, from international and inter state boundaries and water disputes to mutation and khatedari rights, from anti dumping and disinvestments to medical reimbursements and interest on pensions, from excesses by armies in foreign territories to anticipatory and cancellation of bails, from conviction of terrorists, murderers and child rapists to sexual harassment in office places, there are cases and there are judgements. Judges are different, lawyers and litigants are different, facts and faces are different, issues and laws are different, jurisdictions are different but there is always a litigation touching every facet of human co-existentialism and a judge delivering a judgement determining the cause. One party loosing, other party winning and every person who reads it commenting. No other authority in human civilization today wields this sort of diversity in exercise of powers vested in it.
From the moment a being is conceived in the womb till the issuance of succession certificate, first breath to the last, every human being has legal rights regulated by laws, whether he likes it or not, whether he is aware of them or not, whether he fights for them or not. Sooner or later every being gets involved in one way or other with assertion for access to truth and justice and gets or continues to wait for satyamev jaiyate (truth alone wins). This is common to all jurisprudence, uniform to all judicial systems and consistent for all persons associated with judiciary. Since truth and justice is common to all and the entire effort of every lawman is to enable the cosmic truth find itself in all laws and all litigation, it is time to appreciate the role and direction of judiciary, which alone has worked and can work as the redeemer of the world sought to be based on head counts and a government by the people, of the people and for the people running on checks and balances created by a written constitution.
The Supreme Court has always been the cynosure of attention and attraction for people and this interest has become stronger in the last decade, which is a very desirable phenomenon. It has played a very important role in the life of the people of India and is in fact playing the role played by the rishies in the ancient times i.e. giving direction in the matter of governance and keeping the administration on the right track on one hand and protecting the life, liberty and property of the people, on the other. Supreme Court has dealt with these issues when they were brought to them and the need so arose, with the ultimate aim of protection and development of we the people and provide the government all possible support to the extant possible to achieve its laudable objective of equality and justice for all.
In last almost sixty years 175 judges were elevated to the Supreme Court of India out of which 23 are presently sitting judges. During this period Supreme Court has dealt with more then two million petitions for Special Leave and Appeals and has delivered about 37,000 reportable and non-reportable judgements. Judgements are both causes and effects. Causes for the issues, which they raise and are dealt with at a latter stage and effects of social and political events that have followed them and the precedents that they attempt to synthesize in the new time, space and energy. Each judgement exhibits the expression of the judges background, understanding and analysis in the changing political and social milieu which in words of Justice O.W. Holmes Jr. is an inarticulate major premise and in the words of Chief Justice J.S. Verma judges perception, triggered with the right impulse when needed and developing during the judges lifetime.
The work of a judge is in one sense enduring and in another sense ephemeral. What is good in it endures. What is erroneous is pretty sure to perish. The good remains the foundation on which new structures will be built. The bad will be rejected and cast off in the laboratory of the years. It may be that at times the judges have committed serious errors but then the judges have themselves corrected themselves as they have moved along the time, re-appreciating the social dynamics and the direction. The sub-silentio principle has always been that to perpetuate an error is no heroism. To rectify it is the compulsion of the judicial conscience. In this, we derive comfort and strength from the wise and inspiring words of Justice Bronson in Pierce v. Delameter: a judge ought to be wise enough to know that he is fallible and, therefore, ever ready to learn: great and honest enough to discard all mere pride of opinion and follow truth wherever it may lead: and courageous enough to acknowledge his errors.
Every judge of Supreme Court, when his conscious is shaken and he feels that illegality, arbitrariness and exploitation is being perpetrated, puts his foot down to regulate it and has used judgments as a tool for social change. In the process of dialectics judges of Supreme Court have heard arguments for hours and days and have issued orders and delivered judgements. Academicians, jurists, Senior Advocates and others have at times severely criticized judges and their judgements but that is again their perception like the judges perception. Unlike U.S. Supreme Court where the maximum time for arguments is in minutes and the decisions are primarily based on written briefs, judges of Supreme Court of India hear arguments with greatest of attention, serenity and patience, which at times makes our head bow down with reverence.
The process of litigation is creative for the judges and advocates; decisive for the litigant; educative and informative for the people who wish to be aware of various dimensions of inter and intra-human expressions, interactions and relationships, their rights and duties; entertaining for the public in general; a source of plugging holes for the legislators and realisation of the errors committed by executive, deliberately or un intentionally. This activity also acts as a process of balancing powers as the real purpose continues to reach justice by the process of dialectics. In the judicial process we can see dialectics, live elimination of error by a process of bar bench legal reasoning, a note slowly rising to crescendo. No advocate can ever complain that the judges of Supreme Court have not given him a fair hearing. 13 (thirteen) judges of Supreme Court heard H.H. Kesavananda Bharati** for almost a term, several books and a large number of judgements were cited, Justice Chandrachud said:
We were invited to consider parallel clauses in the Constitution of 71 countries of the world spread far and wide, with conflicting social and political philosophies. We traveled thus to new lands like Bolivia, Costa Rica, El Salvador, Guatemala, Honduras, Liberia, Nicaragua, Paraguay, Uruguay and Venezuela. Constitutional sojourns to Australia, Canada, Ceylon, France, Germany, Ireland, Switzerland, U.S.S.R. and U.S.A. were of course of frequent occurrence. These excursions were interesting but not proportioned to their utility, for I believe there is no international yardstick with which to measure the width of an amending power
We were then taken through the writings of scores of scholars, some of whom have expressed their beliefs with dogmatism not open to a Judge. There was a faint controversy regarding the credentials of some of them, but I will mention the more-often quoted amongst them, in order to show what a wide and clashing variety of views was fed to us. They are : Granville Austin, James Bryce, Charles Burdick, John W. Burgess, A. P. Canaway, Dr. D. Conrad, Thomas M. Cooley, Edward S. Corwin, S. A. DeSmith, de Tocqueville, A. V. Dicey, Herman Finer, W. Friedmann, Carl, J. Friedrich, James W. Garner, Sir Ivor Jennings, Arthur Berriedale Keith, Leo Kohn, Harold J. Laski, Bora Laskin, A. H. F. Lefroy, William S. Livingston, William Marbury, C. M. Mcllwain, Charles E. Merriam, William B. Munro, Lester B. Orfield, Henry Rottschaeffer, George Skinner, Joseph Story, C. F. Strong, Andre Tunc, Samuel P. Weaver K. C. Wheare, Hugh E. Willis, Westel W. Willoughby, Woodrow Wilson, W. Anstay Wynes and Arnold Zurcher.
At one end is the view propounded by writers like James Garner ('Political Science and Government') and William B. Munro ('The Government of the United States') At the other end is the view expressed with equal faith and vigour by writers like Dr. Conrad ('Limitation of Amendment Procedures and the Constituent Power'), William Marbury ('The Limitations upon the Amending Power' - Harvard Law Review, Vol. XXXIII) and George Skinner ('Intrinsic Limitations on the Power of Constitutional Amendment' - Michigan Law Review, Vol. 18) I will therefore make a spare and studied use of the view of some of these men of learning. But I cannot restrain the reflection, in the strain of Dr. Conrad, that after going through all this erudition, one may well conclude this tour d' horizon with the opening quotation of Walter Bagehot's famous treatise : "On all great subject, says Mr. Mill, much remains to be said".
The Charter of United Nations, the Universal Declaration of Human Rights and the European Convention of 1950 were cited to show the significant change in the world thinking towards the rights of individuals Apart from whether the so-called intellectuals - the classe non classed' - believe in the communistic millennium of Marx or the individualistic Utopia of Bastiat, the answer to this question must depend upon the stark urgency for striking a balance between the rights of individuals and the general good of the society.
We were also invited to have a glimpse of the social and political philosophies of Grotius (1583 - 1645), Hobbes (1588 - 1679), Locke (1632 - 1704), Wolff (1679 - 1784), Rousseau (1712 - 1778), Blackstone (1723 - 1780), Kant (1724 - 1804), Bentham (1748 - 1832) and Hegel (1770 - 1831)
The debates of the Constituent Assembly and of the first Provisional Parliament on which none declined to rely furnished a lively experience. The speeches of Pandit Jawaharlal Nehru, Sardar Vallabhbhai Patel, Dr. Rajendra Prasad, Dr. S. Radhakrishnan, Dr. Ambedkar, Govind Ballabh Pant, Dr. K. M. Munshi, Alladi Krishnaswamy Ayyar, Dr. Shyama Prasad Mookherjee, Acharya Kripalani, Rev. Jerome D' Souza, K. Santhanam, Dr. Punjabrao Deshmukh, H. V. Kamath and others were read out to us
During the course of arguments, a catena of decisions of several courts were cited before us We were taken through an array of cases decided by the Privy Council, the Supreme Court of the United States of America, the Supreme Courts of American States, the High Court of Australia, the Supreme Court of Ireland, the High Court of Ireland, the Supreme Court of South Africa and of course our own Supreme Court, the Supreme Court and the High Courts.."
Supreme Court of India has played the exact role, required and expected from it in the best possible manner for a country with most ancient and deep rooted culture and heritage, which got its independence by basing the struggle movement on unheard and untested principles and a well debated powerful written constitution regulating a democratic set up, which is effectively able to deal with the paradigm shift. Supreme Court, with all dignity and aura at its command, has successfully carved out a role for itself, which was here-to-before, neither conceptualised nor contemplated by the constitutional makers or the people of Bharat, but the need of which has been found to be imminent in a democratic set up as Bharat has grown, as Bharat is maturing into a powerful economy.
The error is not in the action or the role, but in the concept of limitation of role, when applied to ground realities. The concept of checks and balances and empowerment of constitutional institution with definite limited jurisdictions and functions, works perfectly well to keep out concentration of power in hands of a tyrant or an institution becoming a tyrant. But when the contemporary institutions fail to carry out or perform their constitutional, social and moral functions, duties and obligations, it becomes incumbent on the judiciary to give necessary directions, without crossing the inherent restraints inbuilt in the every judges system. Supreme Court has time and again remanded the matters back to the executive to reconsider the decision and put its house in order instead of striking down every illegal action and granting restitution. The entire public interest litigation (PIL) is to help the executive to run the government according to the laws or to make the legislature aware of archaic or unenforceable existing laws and to make necessary amends.
The real ill lies in the fact that everybody is presumed to know law but when the legislations and delegated legislations are enacted every hour of the day it has become impossible for judges, advocates, executive and even the legislature to keep pace with the laws in force even in the information age. The real ill lies in the fact that that there are existing laws which are not enforceable. The real ill lies in the fact that there are laws which the executive does not have the will to execute. The real ill lies in the fact that that the executive does exactly contrary to what the law says because the law (according to it) does not say what is equitable, effective, and enforceable. The real ill lies in the fact that no law seems be fully implementable, there is always somebody who is able to break it with ease and get out of it without compensating the people who suffered the loss.
Time has established that there is always a vested interest while making every law and not a single law is framed, which can be successfully implemented to the hilt. There is not a single law framed by any legislature the violation of which has not to be tolerated by the executive. The real ill lies in the fact that most successful people today are not the law abiding citizens but are law violators and that is where the Supreme Court has made serious efforts to put its foot down, that is where justice and equity comes down to rescue the citizen and make the legislature and executive red faced. The real ill lies in the fact that there has never been serious legal auditing of the laws which are sought to be enforced. The real ill lies in the fact that several reports of law commissions are getting dust covers.
Directionless rhetoric by those who perpetrate beauty of form as contradistinguished from beauty of substance continue to cry hoarse on the magnificent role played by the Indian judiciary in last almost six decades. Civil right activists who fight for bonded labor, reservation for minority, environment protection on one side, also fight for abolition of death sentence, custodial rights, pavement dwellers on other. They have at times supported judicial activism to the hilt and at others called judicial activism euphoric. In one breath they limit the role of Supreme Court as interpretator of the Constitution and laws made by the legislature but feels uncomfortable when the Supreme Court empowers the executive to act in the most ruthless manner and on the other hand wish the courts to help reaching the Gandhi ideal of wiping out every tear from every eye.
Supreme Court has time and again restrained itself with great pain, even while feeling great inequity perpetrating. Supreme Court have at times requested the legislature-
Though we have abstained from striking down the legislation, yet, it appears to us that immediate steps are called for and are imperative to rationalise the levies. In doing so the States should realise the desirability of levying on the initial slab of the subject-matter -- say up to Rs. 15,000/- - a nominal court fees not exceeding 2 to 2-1/2% so that small claims are not priced out of Courts. "Those who have less in life" it is said "should have more in law". Claims in excess of Rs. 15,000/might admit of an ad valorem levy at rates which, preferably, should not exceed 7-1/2% subject further to an upper limit which, having regard to all circumstances, could be envisaged at Rs. 75,000/-. The upper limit even prior to 1974 under the ,Bombay Act, was Rs. 15,000/-and prior to 1961 under the ,Rajasthan Act at Rs. 7,500/-. Having regard to steep inflation over the two decades the upper limit could perhaps go up to Rs. 75,000/-. After that limit is reached, it is appropriate to impose on gradually increasing slabs of the value of the subject matter, progressively decreasing rates, say from 7-1/2% down to 1/2 % in graduated scales. The Governments concerned should bestow, attention on these matters and bring about rationalisation of the levies.*** However the Legislature has chose to remain silent for last almost two decades.
Our cultural mix in law had led us to adopt the legacy of the British Raj and the free spirit of America. Our courts have shown the greatest of judicious self-restrain at times but gave expressions and vent to the free human spirit at other, which to a stray observer looks to be seemingly contradictory. However as Walt Whitman says if it contradicts itself, well, then it contradicts itself for it is large and can contain multitudes or as Ralph Waldo Emerson wrote in Self Reliance A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines. With consistency a great soul has simply nothing to do. He may as well concern himself with his shadow on the wall. Speak what you think now in hard words and to-morrow speak what to-morrow thinks in hard words again, though it contradict every thing you said to-day-Ah, so you shall be misunderstood? Pythagoras was misunderstood, and Socrates, and Jesus, and Luther, and Copernicus, and Galileo, and Newton, and every pure and wise spirit that ever took flesh. To be great is to be misunderstood
The limited role assigned to the judiciary, of merely interpreting laws made by the legislature, has dramatically been correctly changed in the later half of the last century and in the game of actual balance power it now seems that the basis of that presumption does not fit in this new era of globalization. Judiciary does not remain to be the weakest limb of the government, it is the most powerful and potent limb of the government. Not only protecting, defending and shielding the truth and justice but convicting the corrupt and the guilty. It is time to recognize the power of integrity, thought and adherence to truth and justice, which power only the Courts can exercise for it is not charged by public passion and is substantially fearless, self reliant and independent. This is the reason that in all democracies, judiciary is playing a significant and effective role. As Einstein puts it it is a welcome symptom in a age which is commonly denounced as materialistic, that it makes heroes of men whose goals lie wholly in the intellectual and moral sphere.
Judges, ably aided by advocates and academicians will have to play a much larger and vital role in the governance of every country, be it US Supreme Court, High Court of Australia, House of Lords or Supreme Court of India, they are centers of power.
Supreme Court has time and again tested the validity of the laws on the touchstone of equality, which is primarily based on their experience of life and vision of direction of society and culture and also to supervise that the valid laws exist and the laws laid down are properly implemented and administered. The basic difficulty is not only in lying down the Fundamental Duties (Chapter IV A in the Constitution), Directive Principles of State Policy (Chapter III in the Constitution) but in translating them into an implementable legal frame work. The laws are framed to eliminate a mischief played by some mischief. But if manipulators are able to get the laws made and laws govern the people who wish to live without manipulation, the burden on Supreme Court becomes heavier.
During the course of judicial scrutiny judges sanction the policies and have determined their impact in the changing social milieu. Lawmen are man of word. Day in and day out they spend their time playing with words and word content and their meaning, with rights and duties, with liberty and exploitations and arrive at truth and justice, which every human beings seeks to achieve for himself. Judges have always thought for action on which great interests depends and thereby directed social changes in the right direction of what is reasonable, just and proper for the people. The Supreme Court has at several times indicated or even set the direction in which the nation has to move, but what will please people has moved the legislatures more than what will benefit people. And that seems to have brought about conflicts where the vote bank politics or inherent lack of confidence in, we the people or lack of self-reliance, have at times made the politicians take a contrary view which had dominated people passions at times.
Since human mind is capable of foreseeing its development and control its nature, in the words of Einstein universe is coherently constructed and meaningful work of art, gradually accessible to the exploring mind and, Bharat produces better beings, when the need so arise, who rise above vox populi and take reins in command, we have to have total confidence in our self, our constitutional structure and institutions. We must feel assured, also because Bharat has a long history of surviving onslaughts, continue its struggle for existence and has a great capacity to suffer and come out of it successfully. We do not have a 'mission impossible'; it may be a 'mission difficult'. It is fair to assume that most people of the world if they so choose can respond positively to the challenge of change and make an effective contribution. The Supreme Court is already developing an interest in technology, shrugging off its traditional and ideological prejudices without in any manner effecting its decorum and dignity. Synthesis is essential and crucial for each institution in its own way, at different moment of history, more particularly for a dynamic institution like Supreme Court where a dynamic role is assigned to it under a dynamic constitution to deal with a dynamic society bursting at is seams to forge ahead directionlessly. History continues to produce its list of winners and losers and if Supreme Court is able to understand the laws and forces of nature, it will emerge as a winner and will certainly be able to keep pace with the paradigm shift and the changing socio economic political structure brought about by the e-age.
The advent of e-age is reorienting the social structure with seemingly unrelated individual trends or events like cracking up of nucleus family, spread of cable TV and Internet mania, crashing of moral and value system, terrorism - both physical and cultural over population, energy crises, environment degradation, illegal migration, shrinking of natural sovereignty, political unheard coalitions without common ideologies but seemingly common objectives, taking place around us. In this seemingly existing chaos every individual as parent, child, professional, client, intellectual, artist, teacher, bureaucrat, and politician and even anti social element is trying to re-organise and reorient and design a coherent and effective response to it. If legal thinkers are able to understand the process of socio- economic transformation, which they will certainly do, they will be able to meet it well prepared. With the change of socio - economic structure, the nature of litigants and litigation has changed, the design of courts and law offices, even the 'munshi' has changed (from an old bespectacled man in the corner, to an aggressive smart looking cellular phone user) and the approach of judges and advocates is also changing, creating a more professional, effective and meaningful impact. The process of change and development is choiceless and irreversible. Either you move with the wave or you will be wiped off. The only choice is whether the change is forced upon or it is planned and that is the distinction between slavery and freedom, that is the distinction between an un-channelised power and channeled power, one can destroy an edifice, and the other can put it in the annals of history.
Issues of diverse nature have landed themselves in the Supreme Court and have been dealt with magnificently by it, chartering the course for the entire nation. The Supreme Court has dealt with these issues with great circumspection and have resolved them in an effort to bring about accord and harmony. One thing is clear and certain that every individual judge has contributed the very best in the interest of the nation, the institution and the common man. Abrasions are a part of our life process or institutions cyclic growth, which we try to negate and try to reduce to minimum. The judgements of Supreme Court assimilate the reflections and expressions of the reflective and pure minds, which after hearing the greatest intellectual of the time, on each and every social, economical and political facet, have acted in the most restrained manner and have played its role as a redeemer in the growth of a great nation.
Aruneshwar Gupta
Addl. Advocate General for Rajasthan
30.07.2007
*The Nature of the Judicial Process Benjamin N. Cardozo ** H.H.Kesavananda Bharati Vs. Union of India 1973 Supp. SCR 0001
*** (1988) Supp. (3) SCR 0155 at 0195 P.M.A.Setty Vs. State of Karnataka
**** My First Impression of the USA An interview of Albert Einstein for Nieuwe Rotterdamsche Courant, 1921. Appeared in Berliner Tageblatt, July 7, 1921.
