The burden of delivery of Rule of Law falls on the judges: Vice President
The burden of delivery of Rule of Law falls on the judges: Vice President
Addresses the Sesquicentennial Celebrations of the High Court of Judicature of Allahabad in Lucknow
Addresses the Sesquicentennial Celebrations of the High Court of Judicature of Allahabad in Lucknow
The Vice President of India, Shri M. Hamid Ansari
has said that the burden of delivery of Rule of Law falls on the judges. He was
addressing the Sesquicentennial Celebrations of the High Court of Judicature of
Allahabad, in Lucknow today. The Governor of Uttar Pradesh, Shri Ram Naik, the
Chief Justice of Allahabad High Court, Dr. Justice D.Y. Chandrachud and other
dignitaries were present on the occasion.
The Vice President said that the traditional public
esteem for the judiciary has been reinforced by its activism in contrast to the
failure of the executive to apply correctives on matters of concern and this is
particularly true of its good work in expanding the ambit of rights. The Vice
President, however, also cautioned that lack of access to justice, the high
cost of it, delays in the delivery of justice, lack of a mechanism for
accountability and allegations of corruption have, together, given rise to
doubts and added to the pervasive pessimism about the efficacy of institutions.
He further added that another area of concern is the excessive zeal reflected
at times in pronouncements of members of the judiciary.
Referring to Kautilya’s Arthashastra, the Vice
President said that judges shall discharge their duties objectively and
impartially and added that rectitude is thus a prime requirement in judiciary
as in all other walks of life and must be observed at all times and at all
levels.
The Vice President said that a changing world has
made globalization an unavoidable necessity and this, in the ultimate analysis,
cannot be restricted to economics and trade policy only and extends to global
standards in all fields including in the area of dispensation of justice; by
implication, the space for local peculiarities is shrinking. The sooner we
adjust to it, the better for all – litigants, lawyers, judges and the eventual
beneficiary would be public, he added.
Following is the text of the Vice
President’s address:
“Men
and women who wear judicial robes are not known to deviate into the unknown and
yet they seem to have embarked on a risky venture in inviting someone
unlettered in law to this landmark function today marking the sesquicentennial
of the High Court of Allahabad.
I thank Chief Justice Chandrachud and Mr. Justice
Husnain for this and I fervently pray that I would justify their gamble.
The Allahabad High Court of Judicature is one of the
oldest high courts in the country. Today, it is the biggest in terms of work
load, the number of judges and, regrettably, in terms of vacancies on the
bench. The Lucknow Bench of High Court itself has had a long and distinguished
history.
On my part, I candidly admit that the infrequent
opportunity of coming to one’s own state in the Union of India was temptation
enough, more so because I have vague memories of a few years of childhood spent
in this historic centre of culture and etiquette in the early 1940s. I
therefore take solace in the couplet:
Go wan nahin pa wan ke nikale huai
to hain
Kaabe se in butoen ko bhai nisbat
hai door ki
I have a subjective reason too for succumbing to the
temptation. A distant relation of mine on my mother’s side was the first Indian
Chief Justice of the Allahabad High Court. I refer to Sir Shah Mohammad
Sulaiman who presided over this Court from 1932 to 1937 before becoming a judge
of the Federal Court of India established under the Government of India Act,
1935. The eloquent tribute paid to him in Justice R.S. Pathak’s essay in the
centenary volume is testimony enough to his work.
It has been said often enough that fundamentals of
faith must be revisited in order to reinforce faith. One of our articles of
faith as citizens of the Republic of India is the Rule of Law. The term is a
part of our daily vocabulary. Its basic purpose is, as Montesquieu said a long
time back, is avoidance of tyrannical laws or their execution in a tyrannical
manner. Its classic enunciation is to be found in Albert Dicey, who needs no
introduction to this audience. To him, the essential ingredients of rule of law
were (a) the absolute supremacy of regular law (b) equality before the law (c)
access to justice and development of law by the judges on a case by case basis.
As the former Lord Chief Justice of England and Wales Lord Bingham put it, ‘it
makes the difference between Good and Bad Government.’
Over time and in different
societies, these principles have been challenged, amplified and modified.
Professor Upendra Baxi has sought to read the rule of law as going beyond a
mere division of functions in modes of governance; to him, it is the rule of
good law and is as such reflective of the struggle of a people ‘to make power
accountable, governance just, and state ethical’. Professor Baxi opines that
the Indian constitutional conception of the rule of law links its four core
notions: rights, development, governance and justice.
An interesting early example of
this approach is to be found in the Declaration of Delhi of January 1959 by the
International Congress of Jurists. It recognized the Rule of Law as:
‘a dynamic concept for
the expansion and fulfillment of which jurists are primarily responsible and
which should be employed not only to safeguard and advance civil and political
rights of individuals in a free society, but also to establish social,
economic, educational and cultural conditions under which his legitimate
aspirations and dignity may be realised’.
This approach has been upheld in
judicial pronouncements. Rule of Law, said the Supreme Court in Dalmia Cement
(Bharat) Ltd v Union of India (1996) ‘is a potent instrument of social justice
to bring about equality in result’.
In 2005, the International Bar
Association deplored in a Resolution the ‘increasing erosion around the world
of the Rule of Law and spelt out its ingredients:
‘An independent, impartial judiciary;
the presumption of innocence; the right to a fair and public trial without
undue delay; a rational and proportionate approach to punishment; a strong and
independent legal profession; strict protection of confidential communications
between lawyer and client; equality of all before the law; these are all
fundamental principles of the Rule of Law. Accordingly, arbitrary arrests;
secret trials; indefinite detention without trial; cruel or degrading treatment
or punishment; intimidation or corruption in the electoral process; are all
unacceptable.’
It is here that the burden of delivery falls on the
judges.
An eminent New Zealand judge, Lord Cooke of Thorndon
observed some years back, in relation to the Constitution of India, that ‘an
elaborate and high-sounding Constitution is at worst a camouflage and at best a
paper tiger without the judicial will and strength to enforce it.’
The traditional public esteem for
the judiciary has been reinforced by its activism in contrast to the failure of
the executive to apply correctives on matters of concern. This is particularly
true of its good work in expanding the ambit of rights. On the other hand, lack
of access to justice, the high cost of it, delays in the delivery of justice,
lack of a mechanism for accountability and allegations of corruption have,
together, given rise to doubts and added to the pervasive pessimism about the
efficacy of institutions. One law officer has also expressed concern over the
‘increasing disregard of the salutary doctrine of precedents’.
Another area of concern is the
excessive zeal reflected at times in pronouncements of members of the
judiciary. Some observers have asserted that ‘the Supreme Court has given up
any formal pretence to the doctrine of the separation of powers’. This is
perceived to upset, as a former Speaker of the Lok Sabha observed some years
back, ‘the fine constitutional balance and the democratic functioning of the
state as a whole’. The caution administered by Chief Justice Stone of the U.S.
Supreme Court, therefore, has relevance: ‘While unconstitutional exercise of
power by the executive and legislative members of the Government is subject to
judicial restraint, the only checks on our own exercise of power is our sense
of self-restraint.’
What then is the score on this
count?
Some years back the longest serving
Chief Justice of India dwelt on a few aspects of the matter on the eve of his
retirement. In response to a question about delay, he identified long
judgments, frequent adjournments, and lengthy oral arguments. Each of these,
let me add, is remediable and can be remedied given the will and the commitment
on the part of the judiciary and the fraternity of lawyers. Judgments in an
earlier generation were concise and cryptic and adjournments were allowed only
for good reason. As for long oral arguments, it is an Indian malaise; in the
Supreme Court of the United States, for instance, each side is allowed only 30
minutes for oral presentation. There is no reason why verbosity cannot be
restrained. The ‘desire for immortality through the pages of law reports’ can
be achieved better through sharp and succinct pronouncements, as was done in an
earlier period and has been done by great judges the world over.
Kautilya’s Arthashastra said
that judges shall discharge their duties objectively and impartially. This has
been the dictum down the ages in all lands and legal systems. Rectitude is thus
a prime requirement in judiciary as in all other walks of life and must be
observed at all times and at all levels. The judicial mind should be so
trained as to eliminate subconscious loyalties and, in the execution of justice
he or she should, in the words of the 17th century English judge Sir
Mathew Hale ‘lay aside (his) own passions and not to give way to them however
provoked.’
This brings us to the question of
social awareness particularly in a society like ours with all its complexities
and imperatives. The answer here would lie in the letter and spirit of
the Constitution and in the expectations and aspirations of the citizens and
their quest for justice, liberty, equality and fraternity.
An unavoidable consequence of this
is what has been termed ‘judicial activism.’ Even here, however, the
requirement of balance cannot be forsaken. The ambit of this was set many years
back by the most activist of Indian judges, Krishna Iyer, when he cited with
approval an American votary of civil liberties, the journalist Alan Barth:
A court which yields to
popular will thereby licenses itself to practice despotism for there can be no
assurance that it will not on another occasion indulge its own will. Courts can
fulfill their responsibility in a democratic society only to the extent they
succeed in shaping their judgment by rational standards, and rational standards
are both impersonal and communicable.
Here too, a judicious mix can bring
forth reasonably satisfactory results. Mr. Fali Nariman, with over six and a
half decades of experience at the bar, has suggested such a mix:
‘It has been said that
judges without a social agenda are not crusaders but only problem solvers, but
they too have their uses. I believe the ideal mix for a progressive higher
judiciary – which includes the high courts as well as the Supreme Court – is
three-quarter problem-solvers and one-quarter crusaders.’
This should throw up an enticing or
agonizing challenge to each judge: of locating himself or herself as the
upholder or transformer of established norms of interpretation or enforcement
of law.
I have one last point. A changing
world has made globalization an unavoidable necessity. This, in the ultimate
analysis, cannot be restricted to economics and trade policy only and extends
to global standards in all fields including in the area of dispensation of
justice; by implication, the space for local peculiarities is shrinking.
The sooner we adjust to it, the
better for all – litigants, lawyers, judges. The eventual beneficiary would be
public.
Thank you for giving me the
opportunity of sharing some thoughts with you today. I wish you all success in
the years to come.
Jai Hind.”
************
Vice President greets people on Ram Navmi
The Vice President of India, Shri M. Hamid Ansari has greeted the people
on the joyous occasion of Ram Navmi. He said that on this auspicious
occasion, let us commit ourselves for building a prosperous, peaceful
and harmonious society.
Following is the text of Vice President’s message:
“I extend my warm greetings and good wishes to the people of our country on the joyous occasion of ‘Ram Navmi’ which marks the birth of Lord Rama.
May the life of Lord Rama inspire us to uphold his noble ideals and high moral values.
On this auspicious occasion, let us commit ourselves for building a prosperous, peaceful and harmonious society.”
Following is the text of Vice President’s message:
“I extend my warm greetings and good wishes to the people of our country on the joyous occasion of ‘Ram Navmi’ which marks the birth of Lord Rama.
May the life of Lord Rama inspire us to uphold his noble ideals and high moral values.
On this auspicious occasion, let us commit ourselves for building a prosperous, peaceful and harmonious society.”
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