The Seven Ages of the Law
by K. Venkoba Rao, Advocate
Cite as : (1969) 2 SCC (Jour) 1
Head of the Department of Law, Khalli Kote College, Berhampur
Shakespeare has vividly portrayed the seven ages of manthe mewling infant, the schoolboy with his satchel creeping like snail unwillingly to school, the judge full of wise saws and modern instances, and last of all, sans teeth, sans eyes, etc. The law also has passed through such human stages and it is my purpose here to analyse the function of law in modern societies, to estimate how far it has fulfilled such functions, and to pinpoint deficiencies. It is all very well to sing the praises of the rule of law, liberty, etc. But it has to be remembered that no satisfactory definition of "rule of law" has yet been evolved, in spite of the mighty efforts of jurists of several countries. The latest being at Delhi in 1959. The test of any sound legal system is : how much benefit percolates down to the unprivileged and under-privileged person under it?
What is law? Law is a vague concept in which are rolled up a number of principles like those of rule of law, liberty, democracy, natural justice, etc. Again formulation, interpretation, enforcement of law as also the gap between law and social opinion and the sea change it suffers while passing through the legislative factory, also form some of its ingredients. The original concept of law was a police concept, the setting up of a strong authority to put down private vengeance and the rule of "an eye for an eye and a tooth for a tooth". It was a somewhat negative concept, namely, to eradicate the law of the jungle. At a later stage, it became a war-cry, a protective slogan against the tyranny of monarchs, invented by the leaders of the British, French and American revolutions. After the shock of the two World Wars a new ingredient was added to lawan economic ingredient, that the State should see to it that no citizen was in want and was guaranteed employment, food, clothing, medical care and security in old age. This has been aptly called "social engineering" by Professor Roscol Pound. But unfortunately, social engineering and Parkinson's 'Law' have a tendency to get mixed up.
Rule of Law? As already pointed out, rule of law is not a clear cut concept. It is a moot question whether under our written Constitution there are residuary freedoms beyond those put down in black and white in Part III of the Constitution. Each fundamental right is riddled with so many exceptions and so many judicial interpretations of the same that one cannot definitely postulate, at any given time, what is the exact content of such a right. Such a task might perhaps baffle even Constitutional experts. Again, when there is a proposal to confer a fundamental right to amend a fundamental right (whether the latter remains still fundamental is not quite clear), the narrow compass of the rule of law clearly reveals itself. Also, there is a difference between preventive rule of law and curative rule of law. The former is to be preferred but is elusive. For example, in State X, political party Y is in power and party Z is in opposition. A member of party Z is beaten up by some minion of the law and the police merely looks on. No doubt the victim can approach the courts and get relief. But this is an uphill task and a gamble and to get evidence to prove charges against Government officials, who are powerful and who have backing, is somewhat difficult. Thus, in a country like India which is vote-obsessed, preventive rule of law is a mirage. Civil servants and law and order should be withdrawn from popular control and placed in the hands of an all India body consisting of ex-Chief Justices of India, ex-premiers, etc. One has only to try this experiment for a short time to gather in the rich harvest it is likely to produce.
Freedom of Speech? There is a hiatus between the declaration as to free speech contained in the Constitution and its operation in daily life. If all civil servants, businessmen etc., freely spoke out their minds, there would be many dismissals, termination of contracts, etc. A person who has a stake will keep mum. Only a person with no stake will be inclined to rant and rave and his ranting and raving can have no tangible effect, perhaps. Since in a multiparty State elections are decided by the floating vote, the effect of freedom of speech on the electoral results can, at best, be marginal. It will thus be seen at close inspection that freedom of speech is not, after all such a wonderful gift as it is painted to be. Even free speech containing an incitement to violence is permitted, provided it does not overthrow the State. By exercising this privilege a number of times and at a number of places, surely, the State can be overthrown. In the case of an infant democracy, any disrespect shown to the law, however slight, by young or old, should be severely dealt with and one should not wait for the State to be overthrown ultimately. Jail sentences have lost their deterrent effect what with the amenities provided in jails, and heavy fines, confiscation of property, disqualification of the criminal and his dependents from entry into public service should be imposed with more severe penalties where the offenders are youths or politicians. The civil service should be slimmed because a sprawling civil service breeds political germs. Another anomaly is that some laws prohibit freedom of speech to protect their beneficiaries. An intelligent boy belonging to a high caste may be discriminated against and to state this fact is stiring up communal feelings. Communal feeling is created by law first by meaningless preferences and the victims are supposed to keep mum and to thank their oppressors!
Judicial Precedent? The prevalence of a number of High Courts in India with co-ordinate authority poses a big problem as to the certainty of the law. On a particular point there might be as many views as there are High Courts. This is not desirable and makes the law a gamble, so to say. A judgment of one High Court should be made binding on all sister High Courts. The Supreme Court should also prepare an Encyclopaedia of Current Case Law, weeding out overruled, obsolete, etc. cases (issuing periodical supplements to keep it up-to-date), which will be a useful book of reference to the subordinate courts. In exercising its power of superintendence over the subordinate courts, the High Court should find out whether these courts have followed applicable decisions. If not, an explanation should be called for. Farfetched distinguishing of cases should be frowned upon. The Supreme Court should frame a Guide for Courts on such matters. Such a Guide can also include a section on costs in civil proceedings and bail and other discretionary matters so as to reduce judicial discretion to the minimum. A few text-books on law of reputed authority can also be chosen and adherence to the views contained therein may be made obligatory. By such means the law can be made more certain and of greater practical benefit.
Process of Legislation? The present legislative process by which each law baby is practically delivered by a Minister is quite unsuitable and should be changed. It has only resulted in over-taxation, over-legislation and bad legislation. There should be Law Revision Committees in the States and the Centre to conceive and draft suitable laws. These Committees should consist of expert lawyers, financiers, etc. They should be continually in session. The drafts of legislation prepared by these Committees will be submitted to the scrutiny of National Committees consisting of ex-Chief Justices of India, ex-Prime Ministers of India and persons who have distinguished themselves in the professions (State Committees should be modelled on similar principles). The Committee may hear any Minister if he wishes to make any representation. (The Swiss Executive is irremovable by the Legislature and is not affected by the fate of legislation initiated by it under the scheme proposed the executive does not even initiate the legislation). The Committee submits its draft to Parliament direct where it can be moved and seconded by any member. Rules should also be enacted through the same procedure and further such rules should be placed before Committees of Parliament, etc. for their approval. A quasiGovernment printing and publishing authority should be set up whose duty it will be to publish all laws in all languages and make these available quickly to the public at a reasonable cost or else, more facilities should be given to private publishers. It should also stock old laws. It should be possible to obtain a law passed this years, fifty year hence.
Business and the Law? Whether, as has been said in USA "that the Judiciary has tended to become a third chamber of the Legislature", this is true or not, in many countries, the business-lobby has become so, in substance. They exercise considerable influence over the Government through contributions to the party chests, etc. The banning of these contributions means only that the visible portion of this iceberg has been tackled. Much more remains to be done. The existence of such a lobby or pressure group tends to make many of the economic laws meaningless.
Administrative Law?- The justification for administrative tribunals is that there are some problems which are so technical in nature that they can be handled better by Ministers or civil servants than by Judges. These tribunals have grown phenominally in UK. From the tribunal, there is an appeal to the courts in some cases. However cogent reasons may exist to justify these tribunals, one cannot get over the fact that every citizen is entitled to get his rights adjudicated by the ordinary courts, through the ordinary procedure. If the number of courts is inadequate, more should be appointed; if technical matters are involved, the court should have the power to call in expert assessors. This is the remedy for the problem and not the multiplication of administrative tribunals. From the decisions of the courts, an appeal should lie only on a matter of law, and with the certificate of the trial judge. Such a system is bound to work wonderfully in India and is worth a trial.