How to bring back old glory of Indian Judiciary ?

Law and Justice have been existing from the very inception of human civilisation. It is impossible to have a civilised society in the absence of law and justice.  Of course change is constant. So is the Law and Justice. They change with the change of society. In ancient era, there did exist law. But, those were only the principles of morality, which imposed obligations upon mankind. Even the Manusmriti, Arthashastra by Kautilya and the Ouran refer to the law, Judges, Courts and Advocates. Law has played an important role in the instory of development of human being and moral of society. However, the nature of it remains changing according to time, place and the requirements of people. But goal of Justice remains unchanged.  India currently faces a moral degradation, an ethical retreat, as spiritual decline and consumers culture has commenced the mankind including India as such it has effected every institution of society including judiciary, until and unless the old glory of Indian judiciary could be brought the Indian democracy will collapse and condition of Indians will become miserable.  Judiciary in India is one of the important limbs of the Government and as such an integral part of good governance. Indian Judicial system is coming down through the ages, and harnessing traditions and wisdom from generations to generations for the edification of the present and future ones. Judge, Advocates, Client and Counsellor their ways and their needs and their notions have been perceived and appraised world wide.  Mr. Nehru said on 15th August, 1947 The future beckons to us. Whether do we go and what shall be our endeavour ? To bring freedom and opportunity to the common man, to the peasants and workers of India, to fight and end poverty and ignorance and disease; to build up a prosperous democratic and progressive nation, and to create social, economic and political institution which will ensure justice and fullness of life to every man and woman.’  This could be fulfilled only by bringing back the old glory of Indian judiciary and progressive right minded humanist celebrated Judges like Mr. Justice M.C. Chagla, Mr. Justice P. N. Bhagwati and Mr. Justice V.R. Krishna Iyer and masterminded ideal lawyer like Mr. N. A. Palkhivala and Mr. M. C. Setalvad and Mr. H. M. Serrvai. The time has come when judiciary must find out its own device or method to wipe out the blackships in the judiciary otherwise the legislature will formulate some device due to public pressure to do it which will be very disgraceful for the judiciary and it will lead to total collapse of independence of judiciary.  Pandit Nehru once said, “I will not allow the Supreme Court to be the third House of the Parliament but he never tried to damage the independence of judiciary. He was brought up in England as such he knew that ultimately the independent judiciary will save the common Indian by ensuring them the proper dues which each man must get according to law.  It is very significant to mention here that to keep the standard of the judiciary and to make the bench rich, without taking consent from the leading counsel Mr. Hidayatullah his name was sent by the Hon’ble Chief Justice. I would like to quote one passage from the book “My Own Boswell” (Memoirs M. Hidayatullah).  “My appointment to the bench was a shock and surprise to me. One day I had a very difficult hearing before the Chief Justice. I was representing the Governor General-in-Council in a case reported in the Nagpur Law Reports (1946). Nothing I said was acceptable to him. He was also harsh in his remarks. Both Rao and Pendharkar, who were helping me, were surprised, as indeed I was, for Grille used to treat me differently. Rao’s diagnosis was that Grille was worried and perhaps his girl had jilted him. Next day, in the lunch recess, I was called to the Chief Justice ‘s chambers, Rao, who was with me, said, “So the argument is to continue. Don’t give in. Give it hot to him.”  I donned my gown and went. When I entered Grille said, “Why did you put your gown on?” he then personally took my gown off and draped it on a chair and propelled me to his own chair behind his table and himself sat on the edge of the table. These were very strange proceedings. Grille began, “I am sorry I have taken a liberty with you and I hope you will not let me down.” Thoughts flashed through my mind that, as he was chairman of a newly started dramatic club, called The Seven-thirty Players’ he must have put me down for a fat donation. I was wondering how fat my bank balance was, when he began again. “You see both Niyogi and Puranik are soon retiring within a few days of each other, and I have taken the liberty of recommending your name first for an acting chance and then a permanent appointment. His Majesty has accepted the nomination and I was informed yesterday. I did not consult you because both Niyogi and Bose said you would refuse. Now I am worried that if you say no, I shall be embarrassed. I request you not to let me down.” I was taken aback and said. “But this settles my future left for me. You ought to have asked me first.” He replied. “I know, but Spens was very keen that you should be made a Judge as early as possible. My colleagues and I are equally keen. Do say you won’t refuse. “He looked so pleadingly at me that I had not the heart to refuse his request. I replied, “What can I say, except yes, in the circumstances, although I have all my life before me and enjoy being a lawyer. “He replied, “Thank you very much. You will enjoy being a Judge. You will be welcomed by my collegues. You will sit on the opening day after the vacation, perhaps with Niyogi who will act as Chief Justice. Don’t mention it to anyone. “I said, “I shall have to mention this to my father. “He said, “No, not even to him. I do not want this to leak out. “and he extracted a second promise from me which I kept. So this was his worry the previous day.”  So now time has come when successful counsel aged between 45-47 with good moral must be requested or offered judgeship to them. They must be requested to accept leaving their lucrative practice. Unless Judges are receptive to new ideas and conception of law, legal acumen and developed sense of justice the Judiciary will become poor and the country will suffer.  Lawyers like Moti Lal Nehru, Bula Bhai Desai, Sardar Patel, C. R. Das left their lucrative practice in 1920-21 and joined freedom movement and were leaders of the Bar. Hon’ble Judges like Mr. Justice Shah Suleman, Mr. Justice M.C. Chagla are all time remembered as a great Judge.  Socrates has said about the quality of Judge :-  He should hear patiently Answer courteously Conceive easily Deliver quietly How difficult it is if the Judges are not learned, quick minded having command over the language.  Mr. Soli, J. Sorabjee has written about Mr. Justice V. R. Krishna Iyer, “But the one essential quality that distinguishes him from his brother and puts him in a class of his own is compassion, he took human suffering seriously and dispensed justice with compassion which he possessed in abundance.”  About celebrated lawyer Mr. N. A. Palkhiwala, it is said “Palkhiwala’s erudition was not limited to law and finance. He could quote from the Vedas or the teachings of Zarathusthra with as much ease as he could from the constitutional law and sub-clause from the Income Tax Act.” About all time great Judge Mr. M. C. Chagla, Mr. H. M. Seervai, the celebrated constitutional lawyer and Advocate General of Maharastra said : “I can best describe that impress by saying that you were determined to see that in the Court of which you were the Chief Justice, emphasis should be laid, not so much on the sternness and majesty of justice, as on its healing and protective power, for you felt that justice would be an unlovely figure if kindness and mercy did not go hand in hand with her.  Take the life of Sir Shah Mohd., Suleman. After graduation he obtained the mathematical tripos in 1909 and the law tripos in 1910. In 1909 he sat for Indian Civil Services examination, but was not amongst the selected candidates. His failure was a blessing in disguise. Sir Suleman did not make a second attempt and preferred to be called to the Bar. He was awarded LL.D. by the University of Dublin in 1910. He impressed Sir Hennery Richard and Sir Grimwood so favourably that he was offered a seat on the bench at the age of 34. At the age of 43 he became Chief Justice and five years later he was elevated to the Federal Court.  It is widely acknowledged fact that glory of judiciary has been eroding fast and it is the need of the hour to restore the glory of judiciary. A number of initiatives are being taken to revamp the judiciary under the title of “Judicial Reforms.” The various measures being adopted under “Judicial Reform” is laudable but equally important is to bring reform in thinking and perception of the stakeholders in the Justice Delivery System of this country.  To me Judicial Reform does not mean only the new techniques and tools to contain the Docket Explosion. Judicial Reform basically is to bring changes in administration of justice conducive to provide ‘Access to Justice’ to all i.e. to ensure Justice to each and every needy individual and further, to infuse among general masses with a sense of confidence and trust that Indian Judiciary is standing and keeping watch upon each of us against any kind of arbitrariness and dedicated to resolve conflicts between the parties.  The aforesaid object of Judicial Reform could be achieved by introducing new techniques and tools like Judicial Education and Training, Computerisation, Lok Adalat, Permanent Lok Adalat, Mediation and Conciliation, Plea Bargaining various kinds of Legal Services to the poor, needy and ignorant etc. by which a number of disputes are being resolved either at pre-litigation stage or post-litigation stage minimising the time consumed, and expenses incurred in delivery of Justice with all fairness. The three essentials of Justice :— speedy, cheap and fairness are to be ensured with all commitment and determination by each member of Judicial fraternity : Members of Bench, Bar and Justice Seekers. This is the time for self-introspection for all the stakeholders of Indian Justice Delivery system.  As we know that the history does reveal the past story and it surely shows the path illuminated with the virtues of legends who adopted and practiced successfully in their lifetime and put the Indian Judiciary exemplary for the world.  In this context I quote the extract of the speech by H. M. Serrvai on Feb. 11, 1981 delivered in full Court reference on the occasion of the sad demise of Chief Justice M. C. Chagla, Former Chief Justice of Bombay High Court :  “I said to him that in my 40 years experience I have known no other Court like his and I keep telling young men that his work as a Judge could not be fully appreciated till you saw the atmosphere of the Court, the bright face, the unflaging attention, the courtesy, the humour, the kindness, and towering above it all, the complete confidence that in his Court every nerve would be strained to see that right was not worsted and wrong did not triumph. He knew that what I had written was true, for he had bent all his great energies to make his Court a friendly place, a place where justice could be done. May I recall one instance which showed that not only did he show kindness, but he saw to it that a client, whose case was ill argued or badly argued, did not suffer. A counsel of some standing, in a Writ matter, talked on for 45 minutes. The Judges didn’t know what he was saying. I, who was against him, didn’t know what he was saying. With his ear on the argument and his eye in the file, at the end of 45 minutes, Chagla said : “Is this what you are saying?” to get a refreshingly can- did reply : “My Lord, I ought to have said it, but I am afraid I haven’t. It was Chagla who enabled the counsel and his client to win the case. That was his passion for justice, and my Lords, the ten years which have gone by since I wrote, have only deepened and confirmed my conviction that we have seen no other Judge like him.”  Further I also quote the extract of the speech by K. S. Cooper delivered on the occasion of the sad demise of Chief Justice M. C. Chagla -  “I call him Chief Justice Chagla, because to us who had the good fortune to practice in his Court, he always was and will always be the Chief Justice. The measure of a Judge’s greatness lies in the respect which he commands from his brother Judges, from the members of the Bar who practice before him, from the members of the public who look up to him to protect their rights, their properties and their liberties, and from the staff which works the machinery of the Court. His staff idolised him, his colleagues drew inspiration from him, the citizens considered him the bulwark of their rights and liberty, the guardian of their rights, the guardian of their properties, and we, the lawyers, not merely respected him, we revered him, we loved him.  I do not exaggerate, I have known pleaders writing from the mofussil to advocates engaged in this Court in their appeal — please try and see that our matter comes up before Chief Justice Chagla. We never used to say, when a Judge passed an order which we thought was wrong, which evoked strong criticism; “we’ll take it to the appeal Court” — we said “we’ll go to Chagla”. To us, he was the embodiment of justice. He was, and I agree with my learned friend, Mr. Seervai, in saying so, undoubtedly the greatest Chief Justice of this great Court, and speaking for myself and a great number of us, he was the greatest judge we ever appeared before.  It is pardonable on occasions like this to purvey a few hyperboles. I can only assert that in paying tributes to Chief Justice Chagla, we do not deal in hyperboles; we are only stating, at the highest, the unembellished truth. He had every conceivable quality that made him peerless amongst his peers; a broad vision of justice, untrammelled by frivolous technicalities, a grasp of law and facts which made the task of even the most inarticulate advocate an easy one in bis Court, an instinct for fundamentals which enabled him to swiftly separate the chaff from the grain, an innate dignity of bearing, combined with an unfailing courtesy and consideration, both for the lowliest litigant and for the junior-most lawyer, a facility for words and a felicity of expression, which are the hallmarks of every one of his judgments. These qualities made his Court a temple of justice for the litigant and an academy of legal education for the advocate.  But to say that he was a great Judge is to say very little about him. Everyone knows that Chief Justice Chagla was a great democrat, a great upholder of democratic values, but to me he was a much greater aristocrat. He belonged to that very select, and unfortunately dwindling, small minor section of aristocracy; the aristocracy of integrity, of character, of courage, of patriotism and of love for his fellow human being. You could see the stamp of this nobility on his face bright, frank, open, cheerful, confiding. You could hear the clear echoes in his words; lofty, witty, honest, inspiring and above all, you could see its reflection in every act of his fearless, dedicated, wise, life, rising above all petty and parochial considerations of caste, community, religion, colour or creed. He radiated warmth and we basked in that warmth. He displayed dauntless courage and that inspired and sometimes shamed us into standing up against tyranny and injustice. He instilled into us his undying conviction, hat freedom and liberty are the inalienable heritage of man, that freedom and liberty are worth fighting for and sacrificing for, and that freedom only dies when it dies in the hearts of men.”  Having gone through the aforesaid extracts one can firmly come to the conclusion that the qualities possessed by Chief Justice M. C. Chagla are immortal and every members of the legal fraternity should endeavour to develop that qualities and only then the Indian Judiciary can contribute effectively and efficiently in preserving the Indian democracy progressively. In fact we have a number of prominent Advocates and Judges including Mahatma Gandhi who did find a scope to serve the nation and society and put themselves not only as professionals of merit but true and genuine social and national leaders too. I have just cited a brief account of some of the legal luminaries who have put the Indian Judiciary in the cadre of absolutely noble one. We can unhesitantly say that the afore-cited legal personalities have jurisprudential and legal thinking accompanied by their morality must have helped them in achieving their credits.  Peace and Justice are the essence and necessity of every ideal society. It is the duty of each member of the legal fraternity either Judges or Advocate to safeguard law, assist justice and held prevail peace in the society, even at the cost of whatever the interest may be. The nobility of Indian Judiciary calls for setting the disputes and avoiding furtherance of these disputes by every possible means.  Here Mahatma Gandhi’s view may enlighten all persons related to legal profession:  “I had learnt the true practice of law. I had learnt to find out the better side of human nature and to enter man’s hearts. I realised that the true function of a lawyer was to unite parties risen as under. The lesson was so deeply burnt into me that a large part of time during the twenty years of my practice as a lawyer was occupied in bringing about private compromises of hundred of cases. I lost nothing thereby not even money. Certainly not my soul”.  As a matter of fact Bar is the mother of Bench. The popular version about the relationship of the Bar and the Bench is regarded as both are the “wheels of the chariot of justice”. Unless both function in harmony, the cause of justice cannot be advanced. The Bar and the Bench both cannot afford to talk in terms of “I and You”. Both we have to talk in terms of “We”. Then and only then we can say that we can think of providing justice for the teeming millions of the nation. It should be our constant endeavour to see that our relationship is strengthened day in and day out.  It is pertinent to cite an highly relevant and beautiful extract from the autobiography of Chief Justice M. C. Chagla named “Roses in December” who is the legend in the arena of Law.  Law is a great discipline for the mind. It teaches you how to think clearly, precisely and accurately. Every word has its definite meaning, and must find its proper place in its own context. Verbosity and diffuseness are foreign to a well trained legal mind. Such a mind is essentially logical, and has the courage to face the results of its own mental process, and not to hide them under a cloud of rhetoric and declamation. There are many people who confess that they cannot understand how advocates defend bad causes. There is also a belief that an advocate’s function consists for the most part in showing white as black and black as white. The only answer that one can give to this popular misconception is the famous answer that Johnson gave to Boswell, when he was asked what he thought of an advocate supporting a cause which he knew to be bad. Johnson’s answer was that the advocate did not know it to be good or bad till the Judge determined it for him and for others. Therefore, the duty of the advocate is to do his best for his client. He is after all the client’s mouthpiece, and he must put before the Court all aspects of the case which are favourable to his client. But he must do so fairly, without misleading the Court, and without concealing from it anything that it is his duty to divulge. But he is not concerned with the final result. that rests with the Judge, and it is ultimately for the Judge to decide which side is right, and how justice should prevail.”  “The judicial process, as we understand it, would be impossible unless the truth were elicited by two opposing sides putting before the Court different facets of the truth. There is nothing more difficult in the world than to discover the truth, because truth is not something simple, something which is apparent, something which can be discovered by merely looking at one side of it. It has so many facets, so many contradictions and inconsistencies, that it requires two trained minds to put all aspects of it before the Court, and a third expert mind to come to a conclusion — a conclusion which is the nearest one can reach in the discovery of the ultimate truth, and thus administer justice according to law. Lord Macmillan once said that the best advocacy was to help the Judge to write his judgment. This does not mean that the advocate must submit to every suggestion that falls from the bench. He should be fearless, and refuse to accept any proposition which seems to him to be fallacious or erroneous that may emanate from the judicial authority presiding over the Court, however eminent such an authority may be, great advocacy must be both fearless and fair. The administration of justice is made possible not only by a fair and impartial Judge, but also by a courageous and upright advocate.”  It is undisputed fact that the standard of legal education has been in a shattered state till the commencement of National Schools of Law under which 5 years integrated Course of Law has been introduced. National Law School are producing good professionals which will enrich the legal profession and develop their qualities to world class. However, these Bench and Bar should be more lucrative so that the new entrants are enthused to join this profession. When a lawyer joins the legal profession, he should always remember the basic quality of fairness which is the core principle in the Administration of Justice. The fundamental postulate of legal profession is not to defend the case of the client only but also to assist in the administration of justice for which the entire system exists.  Chief Justice Chagla has written precious words to be followed by the young Advocates when he or she joins the Bar.  “No one can assure success at the Bar to any young man who is entering the advocate’s profession. Success must ultimately depend upon the man himself. There is no other profession which demands such patience and perseverance because, as Lord Hewart once said, life at the Bar is never a bed of roses. It is either all bed and no roses, or all roses and no bed. The most difficult time in an advocate’s life is when it is all bed and no roses. It is when he is passing through such a situation that he must maintain a stout heart; it is then that he must work and slave in a spirit of single mindedness. It is also the time to learn all that there is to learn about the art of advocacy.  I am, moreover, convinced that success would come to every young man who has faith in himself. He must enter the profession with the zeal of a crusader. For years there may be no work; he may even be faced with prospect of starvation. He may come to feel that his talents are not being used. He may see undeserving men flourish in the profession. But opportunity comes to everyone, and when the opportunity comes no young man should be found wanting. It is then that he must put into practice all that he has learnt in the long years of waiting; and there is no success like the success in the profession of law. Whereas a successful doctor or a successful engineer can only do his own specialised work, there are few subjects and matters that a successful lawyer cannot tackle.”  I have always viewed that Justice Delivery System is a joint effort, an effort in which both the Judge and the lawyer must act in concert with one another. The role of Bench and Bar has been expressed in a very lucid language by the Chief Justice M. C. Chagla as under :  “The duty of an Advocate is not to convert the Judge to his point of view, his duty is to see that the Judge has understood and appreciated his side of the case and his arguments. By the same token, it is not the duty of the Judge to convert the lawyer, because the lawyer is paid not to be converted.”  Time has come when we have to bring back those old glories by strengthening the co-ordination and harmonization between the stakeholders of the Justice Delivery System of our country with the help of harnessing our extraordinary ability by adopting and practicing in day-to-day life the attributes possessed in our legal heritage.

Author Name: Hon’ble Justice M. Y. Eqbal