The Constitution the Court and the Human Rights
Text of the Sri K. T. Vetrivelu Mudliar Memorial Endowment Lecture delivered at Coimbatore.
I am grateful to the Coimbatore Bar Association for inviting me to deliver the Sri K. T. Vetrivelu Mudliar Memorial Endowment Lecture. Why? Because this gives me an occasion to dwell on a great man and hang an indifferent lecture on the peg of a sublime name — that of the late Sri K. T. Vetrivelu Mudaliar. He was a model advocate, a great humanist, a Gandhi disciple, an erudite literate and above all, a patriot of the first order. Of him, one may aptly say, 'his life was gentle, and the elements so mixed in him that Nature might stand up and say to all the world. This was a man'. At a time when the legal profession is facing a crisis of many dimensions, Mudaliar was an exemplar, a summit presence to follow whose foot-steps is an educative experience for the current midget generation. He sums up in his nationalist personality all that we cherish as the values the bar must possess if it is to command the confidence of the com-munity as the catalyst of the court process. Mudliar was not merely a doyen of the Coimbatore Bar, but practised in life the great qualities that Gandhiji set before himself and the country. These days many lawyers manage to become phenomenal successes without investment in industry and library. Here was Vetrivelu Mudaliar who had large library of law and literature and made them available to the large number of unlearned juniors. The ethics of the profession which he translated into his legal life were strictly Gandhian. Not to foster disputes but to promote just settlement was his flair; not to launch on arguments of learned length and thundering sound but to be terse, precise, clear and brilliant was his genius. Never to mislead the Judge even if it paid dividends in the short run, never to harass witnesses with vexatious (questions) but to cross-examine them with subtle brevity, was his forte. Not to confine himself to the cloistered life of a busy lawyer, but to serve society in diverse fields of welfare, was his commitment to the country. He was an educationist, a cooperator, an Harijan Welfare Leader and an affectionate friend. Of course, he had opposition from the conservative sections of society, especially because his battles were waged at a time when the proprietariat was powerful and philistines plentiful. Nevertheless, he had in his armoury fearlessness and unsullied character — trace elements missing in many topnotchers of to-day, — and pushed forward undaunted to leave an indelible imprint of his versatile personality as a guide-star for others to follow:
"A man's calibre may be measured by the amount of opposition it takes to discourage him"
(Anon)
Mudaliar rose to lofty heights at the bar not easy to attain, especially when we remember that he started his career as a trial lawyer in a munsiff's court where little pettifoggers see no great avenues and feel depressed with the limited prospects because in such a perspective, litigation is merely a means of hard living rather than a happy opportunity for bringing social justice to the common people. Mudaliar was a different mould:
"A positive-minded man expects an opportunity in every calamity but a negative-minded man expects a calamity in every opportunity".
(Anon)
There was a time when the lawyer was a leader in society but they are bygone days. There was a time when great men like Vetrivelu Mudaliar would finish their cross-examination and arguments with perfect artistry and exceeding brevity. Today, by contrast, lawyers — leaders and juniors alike — are condemned by many enlightened citizens as merchants of justice at extortionate price, making the maximum profit. Likewise, prolix cross-examination has become a kind of forensic terrorism and arguments addressed to the Judge degenerate into unbecoming bouts at the Bar and gallop tiresomely into month-long loquacity — a malady matched only by judicial mediocrity and laxity resulting in long gestations after conclusions of arguments for the robed brethren to deliver judgments of endless length, sometimes more than a year after the decretal part has been pronounced. Of course, the higher courts of the land have set this bad example with the result they have forfeited the moral authority to tell the robes and gowns at the lesser levels to be short in submissions and prompt in disposals, to be concise in reasoning and to forbid the judicial process being converted into a boxing competition with bleeding noses for both sides and verdicts varying from deck to deck. A critical evaluation, from the functional angle, of the judicative instrument may demand that the chaos within the justicing cosmos is altogether hostile to the fulfilment of justice, social, economic and political, guaranteed under the preambular Pledge. At a time when human rights form the basis structure of judicial jurisprudence, at a time when law in its tyranny of literality is an enemy of the community's hunger for justice; at a time when the constitutional imperatives entitle every citizen, high or low, bhangi or brahmin, to actualise his rights and remedy wrongs, men like the great Mudaliar are our beacon-lights. If people lose faith in the bench and the bar, they will easily take to remedies in the streets. This inevitably leads to the downfall of democracy and the impotency of the courts.
"Justice without power is inefficient; power without justice is tyranny. Justice without power is opposed, because there are always wicked men. Power without justice is soon questioned. Justice and power must therefore be brought together so that whatever is just may be powerful, and whatever is powerful may be just".
(Blaise Pascal: Pensees)
It should be our endeavour to implement Article 39-A so that the operation of the legal system promotes justice, on a basis of equal opportunity, early finality and intelligent impartiality. Justice with power is relevant only if the little Indian, large in numbers, can enforce his rights with the least expense and delay. Remedial jurisprudence is the cutting edge of Law and democracy or judicial remedies is the desideratum of the Justice System.
The title of my lecture is 'The Constitution; The Court and Human Rights. Lawyer power geared to the cause of justice to the common man must catalyse all these three components of the administration of Justice into activist functionalism. Rampnal, Secretary General of the Common Wealth, Admonished the legal profession.
"If we rest our faith on a smug belief that our societies cannot go without us, We may face a rude awakening to the reality of redundancy".
(Page 1461 Commonwealth Law Bulletin Vol. 6 Number 4 Oct. 1980)
The time has come for us, of the legal fraternity, to train our thoughts and change our goals so that, lawyers and the legal process may become pivotal to the constitutional revolution. Unfortunately, we seek to govern through voices from the grave and practice as a legal technology which is medieval and counter productive and never designed to ensure human rights to 700 million people, whatever jural eggheads may swear to the contrary. That makes us irrelevant and our 'struggle' as men of the law must be so geared to radicalise the humanism of the law as to make the lawyer indispensable. The lawyers and Judges of India are an insignificant number when we consider the immense totality of conflicts among people. If only our methodology were modern out commitment were to the masses, our target social justice and our process easy and equal, it may well be said of those who still wear antique robes and odd gowns that:
"Never in the field of human conflict was so much owed by so many to so few"
(Winstone Churchill)
Ramphal, Commonwealth Secretary General, once said addressing a Lawyers' Conference:
"As Regis Debray once counselled us;
We are never completely contemporaneous with our present, History advances in disguises; it appears on stage wearing the mask of the preceding scene, and we tend to lose the meaning of the play. Each time the curtain rises, continuity has to be re-established. The blame, of course, is not history's but lies in our vision encumbered with memory and images learned in the past. We see the past superimposed on the present even when the present is a revolution.
Debray's wisdom and imagery have meaning for all our generation; but they have a special relevance, for lawyers, who, immured in the status quo, can so easily miss the meaning of the play within our own societies as the scene changes quickly over the succeeding years. We must not let our failure to discern the reality of change make the law "the government of the living by the dead.”
The law has a greater, more positive, more exciting role in discerning change and legitimising progress. It is a role played consistently over the ages as the law fulfilled its noblest purposes with consummate discretion in such areas as human bondage, the right of dissent, desegregation and women's rights. There will assuredly be other roles ahead for which you will need wisdom, perception and courage — but most of all a vision of change and sensitivity to its arrival. Only thus will you secure, you to validity and fulfil your deepest duty in our changing world".
((1980) 6 C. L. B. 1461/1462)
'We the people of India', embracing the entire Indian humanity' the bulk of whom are below the poverty line, are the sovereign with decisive voice in shaping the constitutional justice of our country. This great imperative of Indian Independence compels, through the constiutional mandate, State action to reach human justice through human law to every member of the Indian Republic. From this perspective," the Constitution, the Court and Human Rights become central to the entire political system. This desideratum implies a court revolution which makes distributive justice and remedial jurisprudence the felt necessity of our time whatever the Ayatollahs of British Indian Law, the hard boiled legal eggheads of the conservative judiciary, the un-socialist social justice dispensers from the Bench and the Bar might claim. Radical humanism is the signature tune of the Constitution, and the new constituency of the Indian Bench and the Bar is Indian humanity at large. We, law persons, are therefore accountable to our constituency and the measure of our success consists in evolving a people oriented jurisprudence based on the tryst with destiny made when, India become Independent. This was eloquently articulated by Jawaharlal Nehru;
"Long years ago we made a tryst with destiny and now the time comes when we shall redeem our pledge, not wholly or in full measure, but every substantially. At the stroke of the midnight hour when the world sleeps, India will awake to life and freedom. A moment comes which comes but rarely in history, when we step out from the old to the new, when an age ends, and when the soul of a nation, long suppressed, finds utterance.
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 prosperious 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 promise is not lachrymal fraud, but socialist jurisprudence. Law is what law does. However, such a new legal system, enshrining the revolution of values in the substantive and processual corpus juris, remains a distant dream because we are in the grip of Anglo-Saxon legalisms. Currently, Judicial redicalism, a command of the Constitution, is blurred, blinkered or blinded by the learned darkness of legal erudition. Great expectations and bright patches apart, judicial feudalism, forensic colonialism and 'robed populism push back justice humanism and passion for egalitarianism. We have white revolution, green revolution, dubious brown revolution and the like which have left the poor untouched. We need a court revolution which will put distributive justice as central to the rule of law and of life. Then we will have a justice system where man, every man, matters.
Who makes the bulk of the law? The legislator. The politician lays down the policy of the law and the draftsman gives it textual shape. Watch Parliament, observe the law-making operations of the members on either side. Precious little for the little Indian the oozing leper, the weeping mother the orphaned child slaving for survival, the millinons strong pavement pariah and village destitute. The zero hour in Parliament is a profoundly symbolic expression of unlaw in the law-makers House. Small wonder, five-star hotels and A. C. theatres get priority for cement and steel but not poor people's housing schemes. Who are the poor to dusturb the solemn exercises of procedural sound and fury in legislative houses where bourgeois power politics is the first charge! O Lord, how long! how long! Not so long! is the echo from the whispering gallery of history. Before long, is the warning.
Our confused, anti-people Legislative draftsmanship is best described in an English jingle:
"I'm the parliamentary draftsman I compose the country's laws And of half the litigation I am undoubtedly the cause."
And the anti-people factor in the legal system is best spelt out by an anonymous poet:
"The law locks up both man and woman who steals the goose from off the common. But lets the greater felon loose who steals the common from the goose."
All this means that we need a legal profession — the Bench and the Bar together — committed to the people and a legal system which provides dynamic equality, free legal aid and at least opportunities for securing justice without the hurdles of economic or Other disabilities. For these reasons, legislative reform and judicial reform are highest on the agenda of the nation's consideration. If we fail in changing the system of law and perpetuate the administration of injustice, we may legitimately be the victims of the sarcasm of Anatole France;
"To disarm the strong and arm the weak would be to change the social order which it's my job to preserve. Justice is the means by which established injustices are sanctioned."
"The majestic egalitarianism of the law, forbids the rich and poor alike to sleep under bridges, to beg in the streets, and to steal bread."
(Anatole France)
We live in an era of human rights explosion co-existing peacefully with national and transnational exploitation. This paradox must be resolved and social justice for the people, the masses of the people, must become our great concern as Judges and lawyers. Our fundamental rights and directive principles are not verbal bombast but a solemn compact between the Constitution and the community. The Universal Declaration of Human Rights, in its widest amplitude, must be read into our Fundamental Rights Part in its activist symbiosis with the Directive Principles of State policy. The Supreme Court has categorically held that Part-Ill is not superior to Part IV — a myth that dies hard because of the propaganda power of the proprietariat over the proletariat. The right to dynamic equality is much broader than the narrow 'equality among equals, a distortion which has the half-hearted blessing of the highest court. The dynamics of the equality' guarantee involves the process of equalisation and levelling up of the weaker sections. The lamb and the lion are not equal and it is folly to speak of equality as among lions qua lions and equality as among lambs qua lambs. The imperative of the Constitution is that there will be a strategy of equalisation whereby poverty will be abolished, lands will be distributed, concentration of wealth to the detriment of the community inhibited and fair distribution of the resources of the nation ensured through a remedial jurisprudence.
Our Constitution guarantees great rights, but the Judges must enter into the spirit of the Socialist Republic. To interpret the articles of a socialist constitution in a capitalist perspective is not merely extra-constitutional, but contra-constitutional. We are governed not by the judges, but by the Constitution and so a powerful movement for judicial reform in many dimensions, including interpretational jurisprudence, is necessary if there is to be harmony between the Constitution and the Court vis a vis the human rights of the weaker millions.
The democracy of judicial remedies has a high place in the new scheme that I envision as a constitutional order charged with human rights passion. The Court in our country has a special role under the Constitution, almost unique in the judicial universe. It is an ombudsman of the nation, a sentinel on the qui vive, and actualises human rights of humble people and operates as a controllerate of the Administration. So the judges have a functional role, far greater and more sensitive than in trans atlantic jurisdictions. Even in America, the warren era revolutionised the law and made the judges participants in the living stream of national life. When people complain of pervasive corruption, nepotism, favouritism or oblique use of power it is a demand to activise the conscience of the court arid sensitize it into effective relief.
Rovert Siedmann, a specialist of African Law made certain observations which I quoted in the Fertiliser Corporation Case:
"If the tone of public life is sufficiently honest and fair minded, formal norms are relatively unneeded. That is not the position in Africa: on the contrary, there is a notable lack of restraints upon the exercise of State power. This betrays itself most blatantly in. the widespread corruption that seems to exist, especially in West Africa. When corruption permeates the entire fabric of government, legality is the first sufferer, for State power is exercised on grounds unrelated to its nominal purposes.
In English speaking Africa, the devices for the enforcement of the few standards of administrative probity that exist are in the common-law tradition. In some cases there are internal administrative appeals. Resort to the courts for relief is theoretically available if an ascertainable norm has been violated. Relief can be sought in a civil action brought by the extrme cases, in a criminal action brought by the director of public prosecutions.
The civil remedies for administrative wrongdoing thus depend upon the action of individual citizens. In such an action, the individual is pitted against the state always an unequal contest. The individual does not have even the few procedural divices that the common law imports into criminal actions to try to redress the balance. At his own expenses, he must challenge the vast panoply of State power, with all its resources in personnel, money, and legal talent, by a civil action for a declaratory judgment or for mandamus, or writ of prohibition. Aside from the manifold technical insufficiencies of these forms of action, the financial impediments to such an action are staggering. As a result of these impediments, in the United States, where almost the sole institutional protection against administrative error or arbitrariness is such an action, usually only great corporations or individuals who are supported by large voluntary associations have been able to carry through litigation. To rely upon such individual actions as the primary means of policing administrative action in Africa is to rely upon what is nonexistent".
(1981) 1 SCC 568 at pp. 583-584: AIR 1981 SC 344 at p. 353.
In some measure, the Asian Drama tells us the same story. Individual action is the vanishing point of remedial jurisprudence. We thus realize the absolute necessity for transformation of law of India. The Supreme Court's challenging vision of the role of the judicature has midwifed Public Interest Litigation as a powerful instrument for democratisation of justice and broadening of locus standi. We have no doubt that having regard to the conditions in Third World countries, Cappelletti is right in his stress on the importance of access:
"The right of effective access to justice has emerged with the new social rights. Indeed, it is of paramount importance among these new rights since clearly, the enjoyment of 'traditional as well as new social rights presupposes mechanisms for their effective protection. Such protection, moreover, is best assured by a workable remedy within the framework of the judicial system. Effective access to justice can thus be seen as the most basic requirement — the most basic "human right'' — of a system which purports to guarantee legal rights."
(M. Cappelletti Rabels z (1976), pp. 669, 672)
The need for a redical approach has been underscored in New Zealand by Black:
".........today it is unreal to suggest that a person looks to the law solely to protect his interests in a narrow sense. It is necessary to do no more than read the newspapers to see the breadth of the interests that today's citizen expects the law to protect — and he expects the court where necessary to provide that protection. He is interested in results, not procedural niceties."
Black; The Right to be Heard, New Zealand LJ, No. 4, 1977 p. 66
A bench of the Supreme Court in Municipal Council, Ratlam, observed;
"It is procedural rules', as this appeal proves, 'which infuse life into substantive rights, which activate them to make them effective'............
The truth is that a few profound issues of processual jurisprudence of great strategic significance to our legal system face us and we must zero in on them as they involve problems of access to justice for the people beyond the blinkered rules of 'standing of British — Indian vintage. If the centre of gravity of justice is to shift, as the preamble to the Constitution mandates, from the traditional individualism' of locus standi to the community orientation of public interest litigation, these issues must be considered. In that sense, the case before us between the Ratlam Municipality and the citizens of a ward, is a pathfinder in the field of people's involvement in the justicing process, sans which as Professor Sikes points............ the system may 'crumble under the burden of its own in sensitivity!...
Our judicial system has been aptly described as follows:
Admirable though it may be, (it) is at once slow and costly. It is a finished product of great beauty, but entails an immense sacrifice of time, money and talent. This 'beautiful' system is frequently a luxury; it tends to give a high quality of justice only when, for one reason or another, parties can surmount the substantial barriers which it erects to most people and to many types of claims.
Why drive common people to public interest litigation? Where directive principles have found statutory expression in Do's and Dont's the court will not sit idle by..................."
(1980) 4 SCC 162, 163 and 174: 1980 Cri LJ 1075 at pp. 1076 and 1084:
Let me conclude by an appeal to the Bench and the Bar in the name of Sri Vetrivelu Mudaliar to lay down broad parameters in the dispensation of justice so that the common man may not regard the court as untouchable and unapproachable. Art. 39A is radicle provision capable of generating a socialist judicial process. We need a 'human rights consciousness in constitutional interpretation as has been creatively demonstrated in Maneka Gandhi. In re Hoskot, Sunil Batra and the like. The expansive semantics and radicle dynamics implicit in Articles. 14 and 21 and the general ethos of the Socialist Republic cast a heavy onus on the legal profession to evolve a Third World jurisprudence. The Constitution, the Court and Human Rights are an integral whole. The warp and woof of this great garment is justice to the common roan through judicial remedies accessible to every man.
If our jurists and judges conscientize themselves into a burst of creative corpus juris, many new streams of legal thought will start, tuned to the socialist justice spelt out on the preamble. A burgeoning tribal jurisprudence, harijan jurisprudence, poverty jurisprudence, processual justice to the people and so on are on the jural agenda of the nation. We can thus — only thus— integrate the Constitution, Courts and Human Rights.
Let me conclude with a quote:
"It was the boast of Augustus that he found Rome of brick and left it of marble. But how much nobler will be the sovereign's boast when he shall have it to say that he found law dear and left it cheap; found it a sealed book and left it a living letter; found it the patrimony of the rich and left it the inheritance of the poor, found it the two-edged sword of craft and oppression and left it the staff of honesty and the shield of innocence."
(Henry Peter Brougham: Nieman Reports, April .1956)
Let us, without boast, add a people's dimensions to the justice system.
THANK YOU.
Author Name: Hon'ble Mr. Justice V. R. Krishna Iyer
