Trials and tribulations of the Judiciary

I came to the Bar in the forties as you have been told. I have been now in law for almost four decades. The changes which I have seen are simply staggering. But. then, this is the result of a wholly changed society. Since the Second World War, the world has changed and changed dramatically beyond all recognition. An old order has passed away and a new order which is to take its place, has not yet fully emerged; it is still being hammered and fashioned. The old set of values has disappeared and a new set of values with well-defined contours has not yet taken its place. We live in an age of change, an age of experiments. There is nothing in life that has not been the subject-matter of this compulsive experimentation, neither Government, nor administration, nor family life, nor education nor litigation. And, above all, we find that everyone is in a great hurry. Everyone wants a shortcut to everything — to knowledge, to culture, and to success. We have, therefore, in this age of inventions, substituted computerised data for knowledge, capsuled information for culture, and so far as success is concerned, to climb to the top of the ladder of success, rung by rung appears to us to be too slow and laborious a process. We, therefore, want to get there in a helicopter.  In our present-day society, new ideologies are competing with the old. The State has also changed its role. It has assumed a new role in place of its traditional one of preservation of law and order, collection of revenue, and defence which has always unfortunately included aggression and acquisition of new territories. In most parts of the world the States have set themselves up as Welfare States founded on socio-economic reforms. There are only two ways of bringing about reforms. One is revolution and the other is legislation. Most people prefer legislation to revolution. Side by side with this world of change, we live in an age of proliferation. In everything we have grown, in everything we have proliferated. There is proliferation in population growth, in environmental pollution, in crime, in the construction of 'Zopadpattis' and hutments, in strikes, in 'Morchas', in legislation, and, above all, in litigation. The modern society has been characterized by one writer as a litigious society. But, this itself is the result of the concept of the Welfare State. When people come to know that the Government is out to do something for their betterment, to bring about a better mode of living, better living conditions, better opportunities of livelihood, of work and of advancement into their lives, and when they find that they are either obstructed in this, or what the Government has promised, is not being fulfilled, they rush to the Courts of law. Growing literacy, proliferation of newspapers, dailies and weeklies, proliferation particularly in India of all public speechifying, has made people conscious of their rights, sometimes real, sometimes imaginary and fancied; but, nonetheless, it is to the Courts they look to for the vindication of their rights and it is to the Courts that they flock.  Today, there is an alarming increase in the quantum of litigation. We read in newspapers about arrears mounting and piling up in each and every Court. Just as we were leaving the Inspection Bungalow, our District and Sessions Judge told me that in the supplement to one of the local dailies there is an article on arrears in Court and whether he could tell me on the way what the article contained. I replied that he need not bother for I knew what the article must be saying for it was bound to be a repetition of what I had read a thousand times. You must, however, bear in mind that the fault lies not with the Courts, but it lies with the pace at which modern life and society have outgrown our system of administration. In a society, which has become so complex, with laws so complicated, as they are bound to be when you seek to achieve so many things, and the people so litigious minded, it is obvious that unless the entire administration is streamlined and made to fit in somehow or other with the speed of the jet age, the administrative measures cannot keep pace with the changing world. The real fault, therefore, lies in the paucity of Courts and Judges, and, naturally, of Court Houses for the Courts to be housed in and the Judges to sit in and administer justice, and also of the staff to attend to the administrative side of the Court. Had more Court Houses been constructed, more Courts created, More Judges appointed and the staff augmented as and when the need first came to be felt, we would not have been reading today about arrears in Court. I must, however, say to the credit of the Government of Maharashtra that at least it has now become acutely conscious of the need for more Court Houses and Court Buildings, and everywhere some endeavour or the other is being made in this respect. For instance, from last June to this January, I have myself inaugurated two new Court Buildings, laid the foundation stone of two others and have to go for similar ceremonies in three other cases. But somehow or other, while providing for new Court Houses and even " administrative buildings one thing is overlooked, namely, that the Judges, the Administrative Officers and members of their staff are discriminated against, because, they are not considered on a par with the labouring class. Whenever, the Government gives a licence or premission to construct a mill or a factory, the first condition Imposed is that a workers' colony must first be provided before starting the mill or the factory. Unfortunately, So far as the judiciary is concerned, the rule is reversed, and when I see the hardships which my Judicial Officers suffer when they are transferred in finding the barest, smallest accommodation to live in, my heart really burns. What is, therefore, necessary, before new Court Buildings are constructed, is that there must be quarters for Judges and rooms and chambers for Advocates and a library. Only then can a Court effectively function.  I also notice one other shortcoming in the construction of the new Court buildings. I have seen some Court buildings constructed just a few years ago, may be only half a decade back, but, when I have visited them now. I found that they have totally outgrown the needs for which they were constructed. When I contrast them with the High Court building in Bombay, I stand amazed. That building was constructed over a hundred years ago for just six Judges. Today, it seats more than four times the number of Judges, houses offices, libraries for Judges and Advocates and Bar Rooms and tea rooms for Advocates. We must, therefore, have an equally wider vision. We must realize that the world is growing at a geometrical pace, I would rather say at an astronomical pace, and we must, therefore, provide not only for the needs of four or five years to come, but for the needs of number of decades to come. True, funds are necessary for this and funds can only be obtained by taxing the citizens, for more taxes alone would bring in revenue that is necessary. Such revenue if so utilized would be money well spent.  Talking of the High Court building reminds me of what I have read about the inauguration of the High Court. I am generally reminded of it whenever I attend this kind of functions. The High Court was inaugurated on August 14, 1862. Before that, there were two sets of Courts in the Bombay Presidency. There was the Supreme Court of Bombay having jurisdiction over the Fort and Island of Bombay, and in the districts there were two Courts which were the final Courts of Appeal for those districts for civil and criminal matters, called the Adalats. The Sadar Diwani Adalat and the Sadar Fauzdari Adalat. When the High Court Act, better known as Charter Act, was passed in 1861 for the three Presidencies, those of Bengal, Bombay and Madras, a High Court for each of them was established. That is why these three High Courts are known as Chartered High Courts, because, under the Act, the Queen had to give a Charter and Letters Patent for establishing the High Courts. The Bombay High Court when it came into being combined in it not only the jurisdiction possessed by the Supreme Court of Bombay, but also the two Sadar Adalats. All that, however, happened on that historic day of August 14, 1862 was that when the Judges took their seats, they declared that thereafter they would be sitting not as Judges of the Supreme Court, but as Judges of the Bombay High Court. A large number of people had gathered in the Court building, thinking that there would be some ceremony and hoping that the Charter granted by Queen Victoria, which is still with the High Court, would be read out by some officer or the other publicly. Nothing of the sort happened. Perhaps, that was due to the temperament of the first Chief Justice of the Bombay High Court, Sir Mathew Richard Sausse. He was a morose reserved and taciturn man. He never went anywhere, never went to a club, never attended a party, even at the Government House, and he was reputed never to read a newspaper lest his mind got prejudiced while deciding a case with what he had read. His only recreation was said to be taking a ride all by himself on the beach early each morning, and, since he was a Roman Catholic, attending the Mass every Sunday. No wonder, he was known as "Sausse the Silent", and I do not think that he ever went about making public speeches. I happen to be the twenty-first Chief Justice of Bombay, and the way I am compelled to go about making speeches, I hope, in contrast to the first Chief Justice, who was called "Sausse the Silent", the twenty-first Chief Justice should not go down in the history of Bombay High Court as "Madon the Talkative".  I was very happy to hear our District and Sessions Judge say that there is complete harmony and cordiality between the Bar and the Bench in Jalgaon. This, in my opinion, is very necessary and very essential for effective administration of justice. We must all remember, whether Advocates or Judges, that we are partners in this great adventure, the adventure of administering justice. In fact, I have always considered the Bar and the Bench to be like husband and wife indissolubly linked by a marriage tie which can never be severed as long as our present legal system lasts. Both Advocates and Judges are really trustees for the litigants who come to the Courts either for vindication of their constitutional rights, private rights or civil rights, and we must approach our task with deep consciousness of this fact and with a sense of responsibility, There must be mutual trust and confidence between the Bar and the Bench, and unless this exists, there would be no satisfactory discharge of our duty. The profession of law is a very noble profession. You will find in books, passages after passages about the noble role of advocates and Judges, The only unfortunate thing about these passages and books is that when we scrutinize them a little closely, we find that most of them are written by advocates and Judges themselves. Unfortunately, so far as the general public is concerned, the profession of law stands on a very different footing from the other professions. You may go to a doctor, and even if he succeeds in curing you at least in part, you feel satisfied. Where two parties go to the Court of law, one must however, go away disappointed. Both cannot win, and, therefore, the disappointed party is not likely to feel very happy with the Judge, nor can he have a very high opinion of his advocate, unless he is honest enough to think that he had no case, and I have not found any such honesty among the litigants. In the past there used to be hardly any complaints against Judges and advocates by the litigants who lost their cases. Today, however, such complaints are very common and we find allegations galore being made about corrupt Judges and dishonest advocates. I often find that these allegations are made by litigants who have lost and in many cases taken the matter right up to the Supreme Court and have throughout lost. One can understand the feelings of a disappointed litigant and this is the reason why throughout the ages lawyers and Judges have been figures of satire and earicature at the hands of various authors right from the ancient days. In the Roman times the poet Martial described lawyers as "men who hire out their words and anger". Coming to the Middle Ages, Chaucer in his prologue to the Canterbury Tales poked sly fun at the Man of Laws. Then we come to the mostquoted description of lawyers by Dean Swift in his Gulliver's Travels in which lawyers are described as "a society of men among us, bred up from the youth, in the art of proving by words multiplied for that purpose that white is black and black is white, according as they are paid." Now, I am afraid, that all my quotations are about lawyers and someone from amongst you is bound to say, "This is not an impartial Judge. Why only Lawyers? What about Judges?" And that man would be right if I did not mention what people have said about Judges. Let me then tell you that there is a merciless caricature of a Judge in Rabelais's Gargantua and Pantagruel in the person of justice Briddlegoose and in our own days the American humorist H. L. Mencken described a Judge as "a law student who sets and marks his own examination papers" and, I suppose, gives himself First Class.  Today, in this world the task of Judges and lawyers has become very different from what it was in the earlier days, because, in earlier days, the emphasis was on private rights. Today, in our Changed society, the emphasis is on constitutional rights, on public rights, on rights which have been conferred upon the weaker and disadvantaged sections Of the society, and, what was taught to us during my College days has today become almost obsolete so far as the practice of law is concerned. It is, therefore, very necessary that a Judge and a lawyer should not function merely within the wordings of a Statute or Act, but must understand and appreciate how different legal concepts have developed and given rise to new legislations. It is essential for any good Judge and lawyer to know legal history. By legal history, I do not only mean how different Courts were set up, what were their jurisdictions and how the jurisdiction was exercised. This is not real legal history. By legal history, I mean studying the growth and development of different legal concepts. Law must keep pace and has kept pace throughout the ages with changing needs of the society, and it is useful both for a lawyer, who presents his client's case, as also for a Judge who decides that case, to know how legal concepts have grown, how they have been shaped, how they have changed, and how old concepts have given place to new. Speaking on this topic reminds me of what a great American Judge of the Supreme Court, Mr. Justice Felix Frankfurter, has stated. A young school boy named M. Paul Clausen, about 12 years old, living in the city of Alexandria opposite to Washington D. C. where the Supreme Court of the United States is situated on the other bank of the river Potomac, wrote to Justice Frankfurter that he had a great desire to go in for law and sought his advice how he should prepare and equip himself for the study of law. Justice Frankfurter replied :  "My dear Paul,  No one can be a truly competent lawyer unless he is a truly cultivated man. If I were you, I would forget all about any technical preparation for the law. The best way to prepare for the law is to come to the study of the law as a well-read person. Thus alone can one acquire the capacity to use the English language on paper and in speech and with the habits of clear thinking which only a truly liberal education can give. No less important for a lawyer is the cultivation of the imaginative faculties by reading poetry, seeing great paintings, in the original or in easily available reproductions, and listening to great music. Stock your mind with the deposit of much good reading and widen and deepen your feelings by experiencing vicariously as much as possible the wonderful mysteries of the universe, and forget all about your future career.  With good wishes,  Sincerely yours,  Felix Frankfurter."  Justice Frankfurter wrote several decades ago. Today what he said is not sufficient to make a really good Judge. In today's society what is much even more necessary for the making of a competent lawyer or a competent Judge is knowledge of business, commerce and international trade. You must know something of economics, of socio-economic problems, of political philosophies. You must have knowledge of book-keeping and of accounts. You must be acquainted with various activities of life which, some day or the other, would come to a Court of law, because, today, legislation regulates almost every branch and activity of life, and where there is legislation, there must generally be litigation.  It has been a great pleasure for me to be here with you this morning. For personal reasons, I am actually very happy that I had this opportunity to come to Jalgaon. My last visit I do not consider as a happy one, not that I was not well looked after then. That was not a happy occasion in the light of what I had to do and in view of the nature of the evidence that I had to record and the things I had to hear and read. That was an inquiry which concerned communal disturbances in three districts of this State, Thana, Colaba and Jalgaon. When I hear and read about communal disturbances, when I hear and read about caste and communal discrimination, I feel very sad indeed. This is something which I for one have not been able to understand. When young we thought in terms of the independence of India. We did not think of independence of the city of Bombay or independence of the province of Bombay or the Province of Madras or of any particular Province. We thought of India as a whole. Today, when I find that people are not thinking or speaking about themselves as Indians, I feel alarmed and perturbed. The whole of this land is our country and it is one country. I have never thought of myself as belonging to any State or city or town. I have always thought that I belong to India and I am a citizen of India and the religion which I profess is just my personal and private affair and no one else's. In fact, I have never understood religious and caste hatred. When I read the Sacred Books of various religions, I find that they all teach just one thing, they all aspire to only one goal—the search for God and the achievement of internal peace. I believe that all men, whatever may be the colour of their skin and to whatever religion they belong, are all brothers under their skins and that we all belong to just one family the Family of Man. It makes me infinitely sad to find so much religious and caste hatred which is casting a shadow on the path of our country's onward march of progress. When I find the poison of casteism, communalism and parochialism being daily distilled, I can only hope with Robert Burns :  "Then let us pray that come it may  (As come it will for a that).  That Sense and Worth o'er a' the earth  Shall bear the gree and a' that,  For a' that, an' a' that,  It's coming yet for a', that,  That Man to Man, to world over,  Shall brothers be for a' that".  We are, however, here this morning for a somewhat more limited purpose than achieving national integration. We are here for the purpose of laying the foundation-stone of a new Court building Let us pray that in the Temple of Justice, which will be constructed on this spot, the people, who will enter, will leave it with a deep sense of satisfaction that justice was done.

Author Name: Hon’ble Justice D. P. Madon