Mr. Justice V. R. KRISHNA IYER
Former Justice of the Supreme Court
When
Let us focus for the nonce on justice on
which is the core creed set high in the Preamble. Justice has a rainbow of colours but having regard to the dialectics of the Indian
situation, its thrust is on securing human rights to the human numbers, many
millions Strong. More than half
of the Indian people love below the
poverty line and are denied the comforts necessary to support life. The dignity
of the individual has important components, and subhuman conditions, which are
the lot of the lowly and the lost, are a negation of personhood. Life and
liberty are cherished values under Part III. The Directive Principles of State
Policy (Part IV) cast welfare obligations on the State towards the weaker
sections of Indians. They are fundamental in the governance of the State. In
short, there is a democracy of values enshrined in the suprema
lex. Most significantly, every citizen, be he the
lowest or the highest in social, political or economic station, is entitled to
all these rights. Our Constitution is not a book of rhetoric but is a Charter
of realisable rights. Its cornerstone is the socialistic
rule of law. When the millions are underprivileged and oppressed, the only way
social justice can be actualised by the humble
members of society is through an activist, sensitized, fearless and powerful
judicial instrumentality. Indeed, the founding-fathers envisioned our
judiciary as the legal arm of the constitutional revolution midwifing
a new social order where man–even the smallest man – matters.
The masses in their millions now emerge as
the cynosure of constitutional justice, but in victorian
vintage days, the classes, composed of millionaires, were the favourites of the forensic process This great concern for
the proletariat as against the proprietariat is a big
break from the past and demands institutional allegiance. Thus, the great challenge,
which the constellation of human values crystallised
in the Constitution activates, is a call to the court to update its commitment
to the people and mould its musty methodology to meet society’s nascent urges.
No revolution, including constitutionally
sanctioned revolutions, can succeed without revolutionary ideologies,
revolutionary cadres and revolutionary tools and techniques attuned to the
specific conditions of a given society. This diectical
approach which every social realist must apply gives us the new dimensions of a
radical judicial process needed by the people-oriented justice order.
What was our legal system like when the
Constitution saddled it with radical responsibilities? How far was it equipped,
in its personnel and processes, to be an effective agent of the dynamic dharma
of social justice? How could an instrument designed for imperialist
purposes be but a functional futility when the demands
upon the system were diametrically opposed to the designs of the
There is need for a new perspective, new
process and a new orientation realistically recognising
the fact that the final masters and the actual consumers of the justice service
are, “We, the people of India.”
Long years ago, Nehru in his autobiography
hit the nail on the head when he said:
“We must realise that the nineteenth century
system has passed away, and has no application to present-day needs. The
lawyer’s view so prevalent in India, of proceeding from precedent to precedent
is of little use when there are no precedents. We cannot put a bullock-cart on
rails and call it a railway train. It has to give way and be scrapped as obsolescent material”
It is a sad fact that the court pyramid in
the Socialist Rupublic of India has not given a fair
deal to the common people who largely remain “the eternal tenants of an
exploitative system,” to borrow Tagore’s tragic
expression, largely because Parliament has not been active enough to radicalise the forensic system, the top executive has not
been progressive enough to insist upon a socialist philosophy in the high
judicial cadres and the court itself has been by and large a prisoner of what
has been bequeathed by the British. In this context, the incisive observations
of a Judge, Jerome Frank of America, are of seminal relevance. He said:
“The robe as a symbol is out of date, an
anachronistic remnant of ceremonial government. Just as the robe conceals the
physical contours of the man, so it needlessly conceals from the public his
mental contours. When the human elements in the judging process are covered up,
justice operates darklingly. Now that the Supreme
Court has declared the Judiciary a part of candid democratic government, I
think that the cult of the robe should be discarded.”
If the Indian justice system is to claim
democratic credentials, the robed brethren must embrace the radicalism of the
Constitution. How can the Socialist Republic of India deliver justice to the crores of crawling slum-dwellers, pavement-dwellers,
hungry, agrestics and soshits
and dalits without the bulk of
judges sharing a socialist passion as articulated in the democratic mission of
the Constitution? How can a zamindar judge
fruitfully, interpret and implement drastic land reform measures or lucrative
industrialists’ legal consultant radicalise labour legislations? Jerome Frank, in his book “Courts on
Trial” quotes Frankfurter to say:
“The judge, ‘unconsciously’ plays an enormous
role in the exercise of the judicial process.”
Prof. Griffith made a powerful point when he
reminded the British public about the class character of the judiciary there:
“…..judges are the
product of a class and have the characteristics of that class.”
“Typically coming from middle-class
professional families, independent schools, they spend 20 to 25 years in
successful practice at the bar, earning very considerable incomes by the time
they reach their ’Forties. This is not the stuff of which reformers are made,
still less radicals.”
The conclusion is inevitable that the Indian
judiciary can meet the challenges of the times only if it is capable of
entering the spirit of the Secular Socialist Republic interpreting the corpus
juris of the country in the new light of radical
humanist jurisprudence and innovating a new judicial technology of affirmative
action and activist court methodology, discarding the dated British Indian
traditions and the deleterious adversary system.
I consider it very important that from the
Summit Court to the Midget Court, the judicial man-power must be asked to
subscribe in activist fashion to the secular, socialist ideology of the
Constitution. If they have reservations or antecedents militating against
secularism, socialism and people’s rights they must, in fairness, keep out. In
that event a people-oriented court will materialise,
public interest, litigation, rather proceedings where people’s interests come
within the safe-keeping of the court, will not then be ridiculed by the judges
themselves as they sometimes do now. The tyranny of technicality, the revelry
in the niceties and subtleties and sophistries of Anglo-American judiciary will
not then become sanctified in India where social conditions demand different
know-how, creative rules of construction and sensitive responses to the
distresses of the common people who have for long suffered injustice from the
elite Indian and alien.
Currently legal justice often abets economic
injustice. Does Anatole France’s tart words ring a
bell? He said: “To disarm the strong and arm the weak would be to change the
social order which it is my job to preserve. Justice is the means by which
established injustices are sanctioned.”
Let us never forget that we have a socialist
republic. Let us never forget that the right to property has ceased to be a fundamental right. Let us ever remember that
the court belongs to the people.
I know that the judiciary is under fire for a
number of reasons. Ideologues call it the conscience-keeper of the status
quo. The mounting arrears and archaic procedures, the endless appeals and
bench to bench uncertainties, the allergy to modern judicial management
technology and the hubristic unconcern for radical reform of the system – these and other indictments are part of the judicial medievalism
syndrome. There is the issue of judicial independence from executive pressures
and big business blandishments. There are the miseries of judicial
slum-dwellers at the base of the pyramid of whom no one speaks, all the elitist
debate being in favour of the higher echelons. The
challenges to the judiciary are part of the contemporary society’s ferment and
frustration. The perspective planning and five-year developmental plans of the
nation must apply to the justice system as well. I am clearly convinced that
the Chief Justices and the Justice Ministries of the country and the Planning
Commission must set up a Justice Planning Body, with the Law Commission, great
jurists and senior lawyers involved as consultants to prepare projects for
reform and monitoring of the system and its performance distortions. The
chaotic drift which is the current genius of the great institution, is bound to
bankrupt the people’s faith unless self-criticism, self. correction and planned
development become the programme for the future of Indian justice.
With all these bad omens there are hopeful,
even Monic, hues in the sky. There is a silent
revolution within the justice system.
Access to justice is everyone’s human right
now. The Supreme Court of India has, in a stunning succession of decisions,
broadened the concept of access to judicial justice, from precedent to
precedent. Likewise, the extensive and intricate formalities to reach the court
are being sloughed off. What has been described as epistolary jurisdiction has
come to stay, where the poor are involved, the prisoners seek redress or the
derelicts and jetsams seek justice. The Supreme Court
and the High Courts show a new empathy for Poverty Jurisprudence and do grant
relief. The petrified adversary process, operating unjustly against the weak,
is no longer a holy word. On the contrary, the court is becoming activist and a
remedial process is burgeoning whereby affirmative action and effective redressal, so necessary in a society of illiterate
indigents and backward-most humans, is gaining access. Free legal services to
the poor and the weak are slowly transforming the forensic scene. Judicial
statesmanship, informed by
social dynamics and aided by lawyers’ progressivism, is becoming a reality in
the sublime humanism of interpretation. Indeed, great strides in defence of human rights of the humble and the handicapped,
have been made by judges in recent decades. The finest hour of the legal
fraternity – the Bench and the Bar together – will arrive only when, “We, the people of India” are able to resist
wrongs and demand rights through the court which takes on the role not merely
of the sentinel but also of the Ombudsman. Then alone will history record–
“Never in the field of human conflict was so
much owed by so many to so few.”
The court hopefully is making history at last.