Challenges to the Judiciary –II

CHALLENGES TO THE JUDICIARY-II

Mr. Justice V. R. KRISHNA IYER
Former Justice of the Supreme Court

When India became politically free and Indians made a tryst with destiny, the socio-economic imperatives of Independence found crimson expression in our radical-humanist Constitution which highlighted the resolve of the nation to secure to every citizen the basic birthright of justice – social, economic and political – in the setting of our Sovereign, Secular, Socialist Democracy. Justice is a profound concept which enwombs the great values of liberty, equality and human dignity. From Raj to Swaraj meant a people-oriented transformation, a revolution of rising expectations and abolition, for the common millions, of the kismet of blood, toil, sweat and tears. The littlest Indian now has title to human rights, economic justice and emancipation from an exploitative order. For a stagnant country with chronic penury, feudal-colonial structure and plural problems of bigotry, wardness and divisive forces, operation, social transforma­tion, destination, material salvation for the masses, is a tremen­dous task to accomplish, for the legislative, executive and judicative instrumentalities.

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.

Our Legal System

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 Whitehall fabricators of the system? In short could and did the Indian. Court respond and readapt to India’s contemporary challenges, while, at the same time, paying homage to Westminster rulings? How can the law lords of England be the founders of Indian socialist justice?

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.”

Democratic Credentials

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 soshitsand dalitswithout 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.

Revolution

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 ward-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.