The Changing Patterns of Law, Laws, Law Courts & Lawyers

The world of law is passing through radical and revolutionary changes. These changes are the result of multiple forces, some of which are obvious and others insidious.  The modern climate after the two World Wars has produced widespread sense of insecurity in all levels of individual, communal, social and political existence. Supremacy of law can only be built on security. To-day all the world over there is no security of ideals. There is no security of practice. There is no security of conventions. There is no security of values. Much of the grandeur and authority of law was based on Hobbesian and Austinian theories. To-day Hobbes and Austin are dismissed as primitive and unsuited for modern concepts of State and its law and order. Law has come down, from its high pedestal. It is no longer a command of a political superior. It has reduced itself to a kind of public appeal whose sources are multi-form and therefore weak. Being in the nature of an appeal it changes its course and direction at every turn, so that amendments are more than the laws themselves. Modern States are fast becoming pluralistic. Law in a pluralistic State is always weak, insecure and uncertain.  The great political revolutions in Asia and Africa in this century have posed the challenge, how far law is a handicap or a hindrance to underdeveloped countries. New nations have arisen in Asia and Africa after centuries of exploitation and subjugation. They are racing against time, in their attempt to make good their backwardness by rapid and fast moving experiments in economic, social and organisational living. In that context an attitude has grown that law and conformity to law are regarded as hindrance. The modern temper is one of impatience. Man cannot wait. Nations cannot wait. Impatience is not a congenial soil for the growth of law and the spirit of obedience to law.  This psychological change in the pattern and outlook of human mind has a decisive effect on law and its administration. It is engendered to-day by the passion for speed. High speed living does not always agree with law. In this atomic age time and space are continually under challenge. No one seems to have time for anything. No space is too remote. Law requires both time and space. It requires time not only because it involves considerations of both temporary and permanent values of life but also because it is a discipline which can only be learnt in the school of time. Law requires also spaciousness. Respect for law depends on its breadth of vision and its capacity to contain contending varieties and differences. This is not the only effect of the challenge of science to law in the modern age. The more serious effect is that science is making man mechanical. It encourages mechanical living. A mechanical man living a mechanical life is not a sound and effective material for law and its development. Law is essentially human. Its patterns and its forms are human. The soul of its administration is human. It demands at every turn independent thinking and original application of the mind to individual instances. No two cases are alike as no two fingerprints are alike. It demands at every moment a live appreciation of the richness and variety of the problems presented before it. It seeks no rigid formula but has to rest on the general and universal formula of life itself. That is why, that great American Judge, Holmes said that the life of law was not logic but experience. Law is not dead syllogism but is instinct with life.  This age is an age of experiments. The modern man is always engaged in some experiment or other. The experiments are in quick succession. These experiments in political science and political philosophy with the changing concepts of State have a revolutionary effect on law. The laws of a Police State represent a pattern. The laws of a Tax-collecting State are different. The laws of a social welfare State again are different. The laws of capitalism, socialism, communism may be very divergent even when they may have common features.  Rise of new politically independent nations in Asia and Africa as well as the resurgence of nations in Europe devastated by the last World War have produced almost an epidemic of written Constitutions. These written Constitutions, are as a general rule longer and more complex than what they used to be when Dicey was discussing the merits and demerits of written Constitution and Bryce was extolling the virtues and analysing the forces of democracy. Written words are a snare under a glamour. Search for the written word and the desire to sanctify it is very often a proof of man’s losing faith in the verbal words, in conduct and convention, in experience and tradition. It is not realised that just as the Constitution of a man cannot be written in a book but only in life, so the Constitution of a nation cannot be written down in printed words. The paradox begins after the Constitution is written down. That paradox is in full swing in the new Constitutions after the Second World War. They are being continuously changed, altered and modified, no doubt on apparently cogent pleas of changing circumstances, unprecedented events and for serving the dictates of economics, sociology or political philosophy of one brand or another. The result is that in one breath we seek sanctity by a written Constitution and in the other breath we desecrate it by treating it as an ordinary statute for the purpose of amendments. When Constitutions are treated as ordinary statutes or Acts, law becomes uncertain and disregard for laws grows.  As our ideas get more confused the law gets more complex. To-day the laws follow no pattern. All laws appear to be ad hoc. Man is supposed to have left the jungle, because at least according to Hobbes the life there was nasty, brutish and short and therefore he is supposed to have entered the world of laws as a step in civilisation. But the modern world of laws has itself turned into a veritable jungle. In that modern jungle, you have the big Oak, Mohogini, Deodar, Redwood, and the Banyan in the shape of Constitutions and major Acts and statutes of crime, property, and civil dealings. Then you have in this forest pungent trees of sturdy growth of Taxing Statutes of every variety and the fiscal laws which always fail to produce enough revenue, food and clothes for deficit States. To complete the picture of the jungle of laws you have the deep dense undergrowth, shrubs and plants in the shape of Ordinances, Rules and Regulations, whose very prolixity demands the intervention of the State Family Planning Board to reduce their ever increasing families! To-day the picture is so complex and is so over-written that it is impossible for any one man or any one department or any one institution to have a complete legal picture of the world of laws. The Parliamentarians and Legislators are not aware how many and what laws are there and how they mutually react on one another. The administrators are not aware of the infinite Rules and Regulations. The people are not aware of the laws of Government. The fathers cannot keep the track of their miscellaneous progeny. To-day therefore it is not perhaps possible for any man, whoever he may be, to claim with certainty that he has not committed breach of some law or regulation or other.  With this change in the nature, character and purpose of law, the language and spirit of law also have changed. The language of law has also become uncertain. It has no longer that clarity, that precision and that brevity which used to be the pride of legal language.  With this change of laws has come the change in the patterns of law Courts. Federalism and written Constitution have amply justified Dicey’s 19th century prediction that they would produce legalism and litigation. Modern Courts are flooded with every conceivable kind of litigation. The constitutional cases with the rights and the Writs given by the Constitution are producing almost unmanageable number and variety of cases. Their number and variety continue to multiply. A politically conscious democracy in a written Constitution with marked features of federalism as in India is exuberantly trying to carry on Government by litigation and through the Courts. Indian Courts are to-day running factories and workshops, government departments, reconciling and breaking homes, taking custody of children and lunatics, awarding degrees of universities, managing companies and corporations, employing and dismissing people from every conceivable kind of public and private service and not to speak of validating and invalidating the laws of the country. They have imposed a serious strain and burden on the Law Courts. They have also led to administrative bottleneck and confusion. The variety, complexity and the multiplicity of the fiscal and revenue laws are producing an unprecedented volume of litigation. Social welfare legislation revolutionalising marriage laws, social relationship, inheritance, compulsory acquisition of properties, nationalisation of land and their distribution among the tillers are daily posing innumerable problems of litigation for the Courts. The quiet atmosphere in which Law Courts could function dissecting, analysing and judging disputes between private individuals and private disputes has been completely destroyed by public controversies, political, social and economic, brought before the Courts. The stress is enhanced by the overt and covert conflicts that are raising their heads in the different organs of the State, the legislative, the executive and the judiciary. Administration is proliferating bringing insoluble problems of coordination, adjustment and integration. Administrative Law and Administrative Tribunals are ruling the day.  Search for solutions in this difficult field has led to multiplication of Judges, Tribunals and adjudicating forums. The clear-cut division between Law Courts and other agencies, that used to prevail before, is to-day blurred by competing platforms of adjudication of different kinds. The Company Tribunals, the Income-Tax Tribunals, the Labour Tribunals, the Special Tribunals of every kind to-day form the perplexing patterns of Law Courts. The fact remains that neither the increase of the number of Judges nor the increase of the number and variety of the Tribunals has succeeded in solving the great problem of quick disposal of cases. A new kind of Parkinson’s law appears to operate and that law is, the more the Judges the more the arrears, the more the Tribunals the more the cases, the more the laws the more the litigation. Naturally, the greater the number the lesser is the quality. There is a growing and alarming decline in standards today. It is caused by both intrinsic and extrinsic causes. The conditions of service have pitifully deteriorated so that they no longer attract the best talents of the country. The Anglo-Saxon type of Courts, whose model we have followed in India, is accusatorial. Some person has to come with a charge or with a complaint or with a grievance. The other is to answer that charge or complaint. The Court hears both sides, balances the points on either and comes to a decision. This system to-day is being slowly eroded by the inquisitorial pattern which is foreign to the genius and tradition of the system so far followed. This trend will be dangerous unless checked in time;  This great revolution in the world of law has not left the lawyers untouched. The modern age is an age of specialists. To-day instead of general lawyers having a general practice in every branch of the law we have the spectacle of specialist lawyers, such as, the tax lawyers, the labour lawyers, the commercial lawyers, the trademark lawyers, the company lawyers, the constitutional lawyers, the civil lawyers, the criminal lawyers. In addition, we have a large body of legal practitioners before numerous Tribunals and administrative agencies. Every branch of the law is becoming so specialised, that practitioners of one branch can afford little time to acquire knowledge of other branches. This has led to divisions and groups among lawyers and that general unity of the Bar which used to prevail is lacking to-day. It has affected the practical brotherhood in the profession. It has affected also the capacity to take a general view of the legal profession as a whole. It has also affected general educational and mental outlook among the practitioners. The type of advocacy is also changing. The hardhitting, and the broad-batting lawyer is missing. He is replaced by the more practical lawyer concerned with and very often lost in the details of facts and figures. The result is that the type of argument is also changing. The passionate appeal, the idealism of law, the search for justice, no longer mark and inspire arguments as they used to do before. In their turn, arguments to-day have reduced themselves to mutual round table discussion of the pros and cons nearer to an office atmosphere than to the atmosphere of a Court of law. With the gradual disappearance of the jury system the jury advocates are Becoming rare. It is only rarely and sometimes in the Criminal Session of the High Court that one can still hear the brilliant and magnificent appeals to the jury by the lawyers. It is also there, equally rare, that one is privileged to listen to the brilliant summing-up by the Judges while charging the jury. The multiplicity of Judges, Courts and Lawyers is responsible for losing the intimacy of understanding between the Bench and the Bar. A healthy understanding between the Bench and the Bar is the very foundation of a sound administration of justice. Nothing should be allowed to cause an estrangement between the two. For, then, the whole edifice will fall. Justice is a joint venture of both the Bench and the Bar. One is as much interested in it as the other. Both have equal stake in justice. To maintain that relationship must be the constant endeavour of the Bench and the legal profession. Tolerance on the one hand and deference on the other are basic for the mutual respect and understanding between Judges’ and lawyers. In the changing context of the legal profession one also misses that fine relationship between the junior and the senior, between the leader and “devil”. Legal profession will lose much of its glory and effectiveness if this relationship disappears. It is the responsibility of the leaders to teach the coming generation both the idealism and the practice of law. It is equally the duty of the junior to learn them with loyalty and devotion. Devilling has almost disappeared in modern times. Easy money at too early a stage does not make a sound lawyer. Impatient junior lawyers and busy senior practitioners both seem to miss how great is the value of the junior-senior relationship. It is basic for legal education. It is fundamental for a sound legal training for any practitioner. A junior lawyer learns more in his senior’s chamber about law and practice than he would do by merely studying the books.  Law is a noble profession. It is a learned profession where both scholarship and personality have to combine. The lawyers are the natural custodians of the rights and liberties of the people. In an independent democracy they are the natural champions for justice and rightful rebels against oppression and unfairness. The unity of the Bar therefore is fundamental to-day to discharge these great responsibilities. Roscoe Pound described law in modern civilisation as a kind of social engineering. I would therefore say the lawyers are the social engineers to build roads to life, its rights and responsibilities where there are none, to build bridges, to rule, unify and control the unruly waters of organisational and individual lives and above all to build the magnificent temple of justice, which can stand four square to all the raging winds and surging waves of conflict and struggles. Justice is the first and the last thing that a man demands from civilisation. To that end the independence of the Judges, and their fearlessness and their security must be maintained. The independence of the judiciary is the only bulwork against tyranny. It is a great part of the duty of the lawyers to maintain and uphold the dignity and the independence of the judiciary. There can be no independence of the judiciary without the independence of the lawyers. The independent Judge and the independent lawyer are the two sides of the same shield of justice.  Let this then be your dominating thoughts at this Annual Conference, the unity of the Bar, the independence of the Bench and the purity and simplicity of laws. Our laws are too many and speak with different voices. Our Courts and tribunals are too many and speak with many voices, not all very coherent. Let not the lawyers speak with many voices to make this Babel of tongues more confused. Let laws, lawyers and Judges serve the common end of justice. I have every hope that you will pass successfully these testing times if you keep constantly in view these three major objectives. May wisdom and responsibility guide your deliberations.

Author Name: Hon’ble Justice P B Mukharji