Law and Justice

Let me at the very outset express my deep sense of gratitude to the organisers for having invited me to address this Federation. Ever since the reorganisation of the States I have been hearing a good deal about District Bar Federations but never had I had the occasion to attend them. It is indeed a matter of genuine pleasure for me to see this assembly of lawyers, discussing the problems and difficulties and finding out ways and means to make a distinctive contribution to the cause of efficient administration of law and justice in the country.

Friends—This is not the first occasion for me to visit this district. Some four years ago I had the privilege of unveiling the portrait of a distinguished lawyer, a great leader and an eminent personality, the late Shri T. Prakasam who dedicated his life to the cause of the country.

One remarkable feature of this land, sanctified and enriched as it is by the great river Godavari which I particularly noticed is that it has produce goliaths of wit and wisdom in every walk of life political, social, economical and spiritual. By this. land I mean the Godavari district without any distinction of East and West, You need not revel only on the legendary glory of the past which would ever endure. You have even now great persons, and your land will continue to produce persons of extraordinary merit ennobled by spirit of liberty, consecrated by the genius of self-sacrifice and consolidated by fervent loyalty and zeal for broad-based nationalism and fellow service. From your rank and file have risen persons who at present not only adore the Bench of the High Court but also the Supreme Court. Our Chief Justice who is now in our midst was born, brought up and educated in the Godavari District. It is gratifying to note that through sheer innate brilliance of intellect, industry, learning and culture he has been able to make rapid strides in his march for success. He has made a name in his line. Not only he has attained high positions but also by God's grace much is still in store for him. It is a matter of genuine pleasure for us to note that he ranks high among the jurists of eminence in this country. His great qualities of head and heart have earned for him a prominent place in the delegation of eminent jurists sent to the Soviet Russia. It is a rare honour and a great compliment not only for the district in which he was born but also for the High Court and the State to which he belongs. Let us congratulate him on recognition of his merits, his marvellous success and high attainments. This and several other instances demonstrably lead to the conclusion that the sons of this soil are bubbling with vast potentialities which may not require much time for their expression.

Now conning to the subject, my address as a Judge, to you, as the lawyers, may not cover your entire sphere of activities for according to the common notions you are pleaders in the Court and leaders outside. Never have I had the privilege of being a practising lawyer. It will be presumptuous on my part to venture to advise you on matters of which I have no direct experiences. My law degree may mislead you. That I got after entering into civil service and only after I was allotted to the Judicial department. However, my experience of the last three decades both in the erstwhile Hyderabad State and in the territory formerly known as the British India and further in the Andhra Pradesh must have inculcated in me some ideas which I may not hesitate to place before you. The duty of the Judge is no doubt confined to the Court records and what transpires in the Court hall; but that is not to say that a Judge can afford to blindfold himself to the current of various aspects of life of the nation, social, political, ethical and economical and also the Governmental set-up which has taken on itself the duty of promoting the development of these aspects. In fact to a Sovereign Democratic Republic constituted by the People with the avowed object of securing justice, social, economical and political, the laws made are to be construed, the discretion allowed to Courts has to be exercised and justice administered taking necessarily into account the needs of life, the beliefs and aspirations of the nation as a whole which it seeks to define, and fulfil. Detached from this, law would be a hollow unreality and justice a mockery which can scarcely aspire to create that confidence of the Public in the administration of justice which is so essential for successful working of democracy.

This aspect, thought-provoking enough, necessarily takes me to the concept of law and justice with all its implications. In this short address it is not possible for me nor do I propose to make an attempt to enter into a detailed discussion on this wide subject. Suffice it for me to refer to some broad outlines of this concept, its component elements and the end and aim thereof. In this attempt I may have to briefly refer to certain fundamental positions in regard to philosophy of law with which the legal profession is most concerned. The philosophical conception of Vedic '"Rita" as the organised principle of Universe and also the divine ordering of earthly life forms the central idea from which flowed the Roman and Greek conception of "Ratum", "Ratio" and "Naturalis Ratio". Augustine characterised "Vedic Rita" as that which brings peace, the blissful and sacred order. The Vedic Rishis did not consider man apart from society or as a whole in himself. Further when they spoke of human society they did not forget its relation to the Universe. In their view of human society they were fully cognisant of the law affiliated with human purpose and human benefit which we now call material content of law. It was "Rita" as ordering principle of earthly life which according to them regulated human purpose and human benefit. It was of course divine in origin but was not a product of divine will; rather it flowed from divine reason and hence neither arbitrary nor inscrutable and perfectly within the ken and application of human comprehension. It is a phenominal reality and as conceived by them was evolved before there could be any society or social ideality. So then they said that conditions of life must harmonise with it and be regulated by it and must fit with the natural sequence of rise and growth of universal order. The Sages of Upanishads also conceived of "Rita" as of divine origin. But they were disposed to think that it originated after diversity and was created with a certain end to hold fast the diverse elements and to ensure security of the whole, and when it was felt that the 'people, wisdom, nourisher and mights were not sufficient for the end, the more excellent law was then created. “तत श्रयो रूपमत्य सृजात धर्म ” (Tat Shrey Rupa Matya Srujata Dharma). According to them this creation of law helped the complete realisation of the end. As a result thereof even a weak man rules a stronger with the help of the law.' “अथे अबलियन बलिअनि समा संसते धर्मेण ” (Athe Abaliyan Baliani Sama-samsate Dharmena). There was nothing higher than law. All were equally subject to rule or law. "Law" proclaims Brhadaranyakopanishad "is the King of Kings for more powerful and rigid than they. Nothing can be mightier than law by whose aid as by that of the highest monarch even the weak may prevail over the strong. Such was the law of the precepts of universal application according to Vedic and Vedantie conception. This was the legal order of human society, intended to run in tune with the growth and development of the Universe or universal order. The basic character of this inner ordering is well established by continuity of society even in breakdowns of politically organised and kin organised social order.

Friends, everything in nature is in a flux and nothing is static in this universe. All creation is subject to the inexorable law of change; though the order which is the universal bond may hold the universe together. Human society is no exception to the law of change. But the legal order which assigns place to all created things which is the directive and distributive justice keeps it together and makes it with requisite adjustments run in tune with the universal order. Though the basic principles for maintenance of legal order may survive the severest shocks having regard to their innate strength, the requisite adjustment must necessarily be effectually made with the change of times and with inevitable great revolution in social order to keep pace with the universal order. That is how the legal order has to be necessarily both stable and flexible. The chief problem before the legal thinkers, therefore, has always been how to unify and reconclie stability and change and how to make legal order something fixed and settled beyond question while at the same time capable of adaptation to the exigencies of infinite and variable human demands. In Vedic Rita or Upanishadic law we certainly find the basic immutable principles on which legal order may be established for indeed it recognises that human society is no a mechanism but an organism and that life and vigour which must grow with times require adjustments at every stage. It provides for the growth of the society in unison with universal order. It aims at and promotes legal order which takes into account the elements of justice, moral and security. It vouchsafes equality before law and proclaims rule of law. These are the basic principles which governed the entire legal order. The working of the details in furtherance of the basic notions which becomes essential with the change in times and place was entrusted to the good sense, discretion and conscience of administrators of justice i. e., in other words to the technique of judicial process. Modern trends of law do not radically differ from the basic notions of that antique law which ensures peace, prosperity to the human society in the world.

The term 'law' in juristic writing means the aggregate of laws or the entire body of legal principles which are obtained in a given politically organised society an 1 in accordance with which justice is administered by the authority of the State. Law thus is broader than the terms 'laws' or 'a law." In that sense it must represent the legal order, for it must postulate not only authoritative material by which controversies are decided but also the manner in which the legal order is mintained by administration of justice. It therefore follows that not only the precepts but also the technique which developes these precepts and the traditional ideals in the light of which these precepts are developed must be included in this term. This function of development, of course, is noticed in judicial process and perhaps to certain extent in administrative process also. The traditional ideals are a solid body of authoritative ideals forming the backbone for interpretation and application of legal precepts and often have more significance in the administration of justice according to law. Thus the legal order rests on a body of precepts, technique and ideals. In the modern complex society or the social order, the healthy co-ordination of these three elements in the administration of justice cannot be overemphasised.

So far with regard to the concept of law; but my discussion in this behalf would be incomplete if I do not impress upon you the importance of maintaining perfect balance in justice, morale and security in the administration of justice, whether it is in making the rules of law, finding grounds for decision, in applying authoritative rules and grounds of decision and in exercise of discretion whether in judicial or administrative processes. These, indeed, are the various tasks of administration of justice. The exact import of these vital elements also must always be borne in mind. Justice means the ideal relation between men. It includes equity and both have to be regulated according to good conscience of the administering authority. Morals mean the ideal development of individual character. Morals which give up ideals and morality in which justice and moral are reflected in time and place must needs be taken into account.

The modern society and social order has created various complex problems which the State has necessarily to tackle with. Whereas in other countries the nations had to face at different periods intellectual renaissance, the industrial revolution, the political struggle for freedom and religious reformation, In Ha had been confronted with all these problems simultaneously and each of these problems was magnified by the large area and large population. After political emancipation the democracy i. e., the role of the people, for the people, by the people, is now faced with great task of all round development of the nation in all walks of life. The Indian Constitution which has for its objects liberty of thought, expression, belief, faith and worship, equality of status and of opportunity, fraternity assuring the dignity of the individuals and the unity of the nation and justice, social, economic and political has taken upon itself the duty of establishing Welfare State.

The idea of Welfare State has added to the duties of the State and has further widened the field of administration of justice. The Welfare State is in essence a service State which undertakes to redeem mankind from hunger, ignorance, and misery and from all economic and social ills not to mention of its duty of safeguarding its various freedoms and to provide all men with just tern of leisure etc. A Welfare State is one of the objectives of our Constitution whereunder every man is to be given his due not only in the matter of security of freedom and liberty but also in social and economic security.

Gentlemen — I do not wish to dwell any further on this subject. I doubt whether I should have gone even so far in incidental discussion of the concept of law and justice. However I thought it my duty to vivify the memories of the vast expanse of administration of justice which should engage your attention in this meeting for I am of the view that success of peoples Democratic Republic which is intent on creating a Welfare State depends substantially, if not wholly, on the success of the rule of law.

Let me also at this very stage refer you to the democratic set-up of our Indian Republic. The entire edifice of Internal administration in this democratic Republic of India stands on three strong pillars, the Legislature, the Executive and the Judiciary. The Legislature provides a legal basis for carrying the administration in the country. The Executive carried out the will of i he people as formulated by the Legislature. The duty of the Judiciary apart from determining disputes emerging from variety of controversies is to interpret, expound and enforce the law as indicated by the legislature. Thus all the three branches though in a sense interdependent are intrinsically separate and each is able to function in its sphere without the interference of the other. So then, the growth and development of the democratic State depends on the wisdom and foresight of its legislature, the efficiency and incorruptibility of its Executive and the integrity, and impartiality and independence of its judiciary. It may further be borne in mind that the Constitution has vouchsafed fundamental rights to every citizen of India and made these rights justiciable. These rights therefore of necessity come within the pronouncement of the judiciary and to that extent the Legislative Acts are subject to the scrutiny by the judiciary. The laws passed by the Legislature will be valid only to the extent they are found to be consistent with the fundamental rights and they are deemed to be consistent only to the ex. tent they are held by the judiciary to be so. The judiciary is thus the arbiter of the rights on which the new order depends. In this way the Judiciary must do more than dispensing justice it cases and controversies. It not only decides disputes between citizens and citizens but also hears complaints made by the citizens against the State in respect of legislative enactments and legislative orders. It has to hold the scales of justice evenly between all these parties. Further the Writ jurisdiction has subjected to judicial review the quasi judicial acts of he inferior tribunals and also of the Government. We have a Written Constitution which we have taken a vow to uphold. Obviously enough it is the substance thereof and not the gloss put thereon that should be upheld and defended. An important duty therefore has devolved on the judiciary to construe it truly and fully to meet the problems raised by the evergrowing complex of democratic set.up. It is its duty to keep the charter of the Government current with the times and in tune with the needs of the day and so far as it is legitimately possible to prevent it from becoming archaic. Owing to these great duties it may justifiably be said that a strong and independent judiciary is the backbone of good government.

Friends, I have referred to the above duties and responsibilities of judiciary only with a view to emphasise on you the great obligations the legal profession has to discharge while making its valuable contribution to the efficient functioning of judicial administration. To my mind both the bar and the bench are complementry to each other and in fact the strength of the one is also the strength of the other. A Judiciary with a weak and ailing bar may be compared to a bird with a broken wing. However efficient the functioning of the other wing may be the handicap is bound to make all the difference. It is often said that as between the bar and the bench there is only division of functions. There is much truth in this saying. While it is the duty of the advocate to make the best of the cause that he upholds conforming to the rules in the game laid down by the traditions inspired by love of fair play and deep sense of duty of profession to assist in the administration of justice, it is the province of the Court to weigh the contentions in the balance and determine on which side the right lies. We are thus indeed engaged in the discovery of truth. We are not only finding where the truth lies but also are giving effect thereto. Our avowed purpose is to see that Dharma prevails and Adharma is extirpated root and branch. The primary function of the Bar being to aid in the administration of justice, the Bar will be duly discharging its duty if by its able and efficient aid it ensures that the law is being administered properly, efficiently and impartially and that it has successfully accounted for the protection of individual life, liberty and other interests guaranteed by the Constitution againt onslaughts of lawless elements or arbitrary action of the executive etc. It is only then that the Judicial Administration can win the unbounded confidence of the public.

The Judiciary is the guardian of the conscience of the people as well as the law of the land. It has no army to carry out its mandates. It does not hold the strings of the purse. These lie with the other wings of the Government. Its strength lies essentially in the command it has over the minds and hearts of men. The respect and prestige that it may win grows from its just mandates in the shape of judgments and decrees. Of course these elements do not develop all at once. They must of necessity be the products of time and experience. They are sure to develop and flourish when there is strong and independent bench backed up by an able and fearless bar. I do not wish to expatiate further on the mutual relation between the bar and the bench or the functions they have to perform. Suffice it to say that in their efforts for creating a juster order both the bar and the bench are engaged in a noble mission of life. The nobility and greatness of the legal profession can better be described by referring to a passage of Fransis Lynde Stetson in praise thereof. He said:

''A man could be of greater service to his country and his race in the foremost ranks of the Bar than anywhere else. To be a priest and possibly a high priest, in the temple of justice, to serve at her altar, and aid in the administration, to maintain and defend those inalienable rights of life, liberty and property, upon which the safety at society depends, to succour the oppressed, and to defend the innocent, to maintain constitutional rights against all violations, whether by the executives, by the Legislature, by the resistless power of the press, or worst of all, by the ruthless rapacity of an unbridled majority, to rescue the scape goat and restore him to his proper place in the world—all these seem to me to furnish a field worthy of any man's ambition".

A profession so noble, so all-absorbing must naturally demand from its votary exacting standards of knowledge and ability, high degree or ethical and moral accomplishments, industry, integrity and sincerity of purpose. It is for you gentle-man to take steps to ensure that all these find in large measures in your rank and file" You have now the statutory independence to deal with the situation and your deliberations in this meeting must cover this aspect as well.

It is vain to think that graduation by itself will equip the votary with the requisite qualities for success in the profession. Graduation is just a milestone in life's journey. As Sri S. Radhakrishnan has put it in a very real sense, it is the commencement time the beginning of a new journey which will test the toughness of the mental and moral fibre and the efficiency of university training. University education does not mean merely learning. It must include that training which would bring out all the best in man for his future journey. It must develop in him the technique of fundamental thinking and the ability to come to independent decision. It must promote in him good culture. Culture means understanding of life. It implies sanity of outlook and sweetness of temper. It in fact is the habit of mind which must grow with him and never leave him, till he dies. It manifests in him fellow feeling and love for service. Culture so developed must be broadbased on Indian foundation and not on any particular community, sect or religion. It is only then he can have a wider outlook and give the best of what he can in the spirit of the Indian Constitution.

The Junior lawyers who are on the threshold of their career have to apply themselves seriously to the study of law. The time given to scientific study of law is never thrown away. It is said that Law is a jealous mistress and exacts from its votaries hard and single mined devotion to it. Infinite industry is a sine-qua non for success in this profession. By mere intellect without industry it is not possible to hope for success. On the other hand, lack of learning and intellect can be supplied by great industry. Gentlemen, time does not permit me to deal elaborately with the duties of a lawyer while working at his cases. I propose to rest content by placing before you some axiomatic truths which cover almost this entire sphere. The first precept shall be:

1. "that whatever causes a lawyer undertakes to plead, he must acquire a minute and thorough knowledge of them".
2. "He must not merely look to principles, but must have them in readiness to act upon them; not as if they had been taught him, but as if they had been born in him".
3. "An advocate is expected to come prepared with a knowledge of all the rules and principles of evidence."
4. "The reckless asking of number of questions on the off chance of getting at something is too often a plan adopted by unskilful advocates".
5. "Discretion shall preserve thee, understanding shall keep thee" is the proverb which must always be kept in view by the lawyer dealing with cases."
6. "The counsel whose duty it is to make the opening for his side of the case should have a clear theory of that case; a theory around which he should group all the facts which he admits as established for the other side and those which he relies on as proved by his own".
7. "What front must that advocate have who dares to appear in causes of such a nature without any knowledge of that law'. Remember that no man can be a great advocate who is no lawyer''.
8. "A case ought to be opened leaf by leaf, as a rose unfolds".
9. "In the argument of the cases, precision of language, especially in the statement of legal propositions, is of far more importance than beautiful figures of speech, and is to be cultivated rather than a showy style. 'A legal point well stated is half argued' ".
10. "And the power of clear statement is the great power at the bar."
11. "An Advocate who would obtain a reputation for truth with the judge should never advance an important fact without proof in hand; for should the adverse party contest it, he will find himself engaged in a perilous struggle, unless he has acquired a sufficient authority at court to inspire belief with the judges, a young advocate should never risk it.

Apart from industry and constant study of law, and mastery over art of advocacy, a lawyer has to be equipped with certain other qualities also. Sri Ram Keshav Ranade in his Presidential address at Aurangabad has brought them under five groups as the Panch Sheel of the Bar. They are:

1. Honesty,
2. Industry
3. Justice;
4. Service and
5. Philosophy. Legal profession is not a trade. It is not something in the nature of trade either. It is not certainly a commercial venture to attract commercial methods for attracting business. It is a profession, a philosophy of life where money is not its main object. Money certainly is not the be all and end all so as to be acquired by means fair or foul. It has got its own ethics of a high order. Honesty is its prime requisite and essential quality of a lawyer. In the memorable voids of Daniel Webster "legal profession is good if practised in the spirit of it; it is damnable fraud and iniquity when its true spirit is supplied by a spirit of mischief making and money getting". The watch word of a lawyer must be truth and justice. He should advocate truth and assist the judge in arriving at truth. He is an officer of the Court and as such has a duty to the Court. He shall make correct statement of law and facts without misleading the court in any manner. A lawyer must be impelled by the duty of service. His field of service extends to the humanity at large. It is not limited to his client or to the court, but extends to his colleagues, to his community and to the genuine public. If he has to take his place in society he has to realise his duty to the society and equip himself for the purpose and make his contribution to the social and economic welfare of the society. Indeed a lawyer owes a heavy duty to the society in which he lives. He should further be philosophical in his attitude towards life without which his fellow service would never become a reality. This in short is his Pancha Sheela.

No v after a brief reference to the requisite qualifications for the profession, the qualities of a lawyer and his multifarious duties to the nation at large, I would like to refer briefly to certain problems which are now staring the legal profession in the face. These problems are of two kinds. One concerned with the administration of justice; and the other relating to the amelioration of the conditions of the members specially of the junior members of the Bar.

The question of delays in justice has more or less become the burning topic of the day. It cannot be denied that the complaint as to delays of justice is not ill-founded. It is natural for a litigant who has come to court paying heavy court fee and incurring expenditure to expect justice within his reach within a reasonable time. But in a large number of cases we find this just expectation of the litigant is not fulfilled. It may be due to some procedural difficulties which may further be complicated by the dilatory tactics of any ingenious party which may try to gain time by his own defaults or otherwise or it may be due to some other causes. Procedure is after all the hand-maid of justice. It should help the Court to render a speedy and true justice. Justice may always be cheap, expeditious and incorruptible and within the reach of every one. It is therefore now left for you to consider the various aspects of this case in your deliberations in this meeting and take appropriate steps. Delays may be in the original proceedings or miscellaneous proceedings or even in execution proceedings. Remember Justice delayed is justice denied is the popular adage.

The next problem that must concern you is that during the course of past few years most of the work of legislation in various directions has gone apace. Much of the work of logislation was done hurriedly resulting occasionally not only in ill-drafting, but also conflicts and incongruity with the existing laws. Of course, legislation is primarily the work of the Legislative Assembly. But the laws should be artistically drafted so as to fully reflect the mind and true wishes of the Legislature. Conflict of laws accounts for uncertainty also. Of course law commissions have been set up in various States and they are doing their best by examining the working of laws and making suggestions as to what provisions in the statutes have to be made However, it is the duty of the lawyers to consider what assistance they can render in this behalf.

The concept of Welfare State has tended to develop the idea of investing the administrator in certain cases with almost unlimited discretion to fulfil the social needs through the accomplishment of legislative policies by the method of trial and error. Conferment of powers on the executive without limit of clear rules of procedure sometimes is likely to lead to arbitrariness. That is the reason why certain safeguards have been made in other countries. So then if any such complications have arisen on account of the administrative process, it is now for the members of the bar to consider and find out a solution therefor. I need not say the role of lawyers in whatever tasks of administration of justice, be that in judicial process or administrative process, is only to aid and assist. It is from that view, that I have referred to these problems.

So far as the amelioration of the conditions of junior members is concerned I need not say that it is a problem which must come up for serious consideration. Whereas there are certain limitations on admission to technical colleges, the doors of law colleges are open to all. That is the reason why there is growing number of law graduates coming out successful every year. Law is a subject which should concern every individual and must therefore necessarily be studied and understood. There is no harm if the doors of the law colleges are flung open to one and all who fulfil the requisite conditions for admission. But it should not be for every one to take law as a career. Since the legal profession has become overcrowded, the theory of supply and demand has created a problem. It is not as though litigation has suffered serious set back. Nor is it due to the fact that avenues for legal profession have come down in number. On the other hand, legal practitioners have now various avenues open to them on account of a net of legislative enactments and constitution of several tribunals. The real problem is that the influx of law graduates into the profession has not kept pace with the growth of litigation or increased channels of work for the members of the bar, but has out reached them. Further Legal profession being a technical profession requiring sufficient seasoning, every junior cannot legitimately hope to get briefs as soon as he gets a degree. He has to wait for certain years, to gather experience and to inspire confidence as to his capabilities. Opportunities one would certainly have, but they should be turned to good account. There are tides in their affairs of junior lawyers as well which taken at the ebb are sure to lead on to fortune. But unfortunately the time is the main factor. The result is that a large mass of juniors is seething with discontent. The discontent in the legal profession, be it noted, is a serious thing. It is likely to affect the fair name of judiciary. The juniors cannot wait longer as their feet are planted on earth and unless they can make both ends meet concentration and devotion to work is not possible. It is therefore the duty of the senior lawyers to help them by extending helping hands and giving briefs to them so that they may make their respective contributions and by slow degrees rise to their full stature. Juniors be it remembered require helping hand only in the beginning. When they once get on going nothing will stop them. They will not only rise above wants, but would be in a position to extend their help to the needy. The duty lies therefore on the seniors for this rehabilitation work. Of course the juniors can get some help from the courts also, but that may not be appreciable enough. There may be some other avenues open for junior lawyers, in view of the fact that tribunals are being constituted at various levels. They may as well engage them- selves in research work in their spare hours and thus make their contribution in that behalf. It is left to the Federation to tackle with this problem as best as it may.

Then there is a question of legal aid to the poor and needy. The lawyers as I have said are great social workers, and potential nation builders. The problems concerning the public therefore must engage your minds.

For the present I do not think of any other problems which I can suggest for your deliberations. All that I want to stress upon is that you should try to devise ways and means to make your profession grow from strength to strength and make its maximum contribution to the cause of judicial administration and national development safeguarding the life liberty and individual freedom of the public at large. May I appeal to you that yon should concentrate all your efforts by a spirit of patriotic devotion and take all the measures to perfect the destiny of the emancipated people of this young democratic Republic of India. May God give you speed and success and enable you to arrive at just and correct solution of the many problems which may arise in your deliberations.

Author Name: Hon’ble Mr Justice N Kumarayya