E-mail this
Print Article

Law and Men of Law*
by H.R. Khanna, Judge, Supreme Court of India

Cite as : (1976) 4 SCC (Jour) 17

I deem it a great honour and privilege to have been asked to be present at this function to commemorate the birth centenary of a great son of India. The first half of this century witnessed the emergence on the national scene of a galaxy of distinguished lawyers. Some excelled in the field of law. Some made their mark in public life. Some believed in other refinements of life. Scintillating amongst them like a bright star was Sir Tej Bahadur Sapru who synthesised in his personality all these qualities. His was a life enriched with many-coloured splendour.

It was perhaps in the fitness of things that he selected Allahabad as the main centre of his activities, even though many of such activities had an all-India impact. The synthesis of various qualities in the personality of Sir Tej was perhaps in tune with the sangam of the holiest rivers of India for which your great city is so well known. A few days back on my way to Badrinath I passed through Dev Prayag where there is the confluence of Bhagirathi and Alaknanda, the co-mingling in a mighty embrace of their waters to form the great Ganga—serene, majestic, deep and beautiful. There was likewise in Sir Tej the confluence of great human traits and cultural values which enrich life, give it a sense of fulfilment and create a composite and complete personality.

As a lawyer Sir Tej Bahadur Sapru was supreme in the profession. Master of civil law, Sir Tej represented one party or the other in most of the important civil cases throughout the country for over two decades. No less significant was Sir Tej's contribution in the field of Constitutional Law. In public life he avoided the extremes and belonged to what was called liberal or moderate school of thought. Moderates have an important role to play in every society and though they are often assailed by the extremists on both sides, the moderates do commendable work in eliminating friction, providing smoothness to the public life and in finding a way out of an impasse. The moderates also set up a rapport between the conflicting groups and provide a bridge of understanding and conciliation. True to the tradition of the moderates, Sir Tej often acted as an intermediary for the opening of dialogue between the nationalists led by Mahatma Gandhi and the alien rulers represented by the Viceroy. The Gandhi-Irwin Pact was the result of the sustained efforts of Sir Tej and Mr Jayakar.

Important though they may be, life is more than mere mastery of abstract principles of law and their application to facts of individual cases. Life, likewise, cannot be confined to mundane affairs of politics and other such public activities. Life also is not an essay in dialectics or prolonged intellectual exercise. If human life is not to suffer from incompleteness and imperfection, it has to seek satisfaction of those inner yearnings, deep and dormant, which manifest themselves in emotions and feelings, the craving in the human heart for things of beauty and art, things which put us in tune with the still sad music of humanity and the melody born out of the pain and joy of life. The atmosphere in the then United Provinces (now Uttar Pradesh) in cities like Lucknow and Allahabad was congenial and propitious for the efflorescence of those faculties. It is, therefore, no wonder that Sir Tej's activities were confined not merely to law and public affairs, he also believed in refinements which enrich life and go to make a polished and cultivated person. Sir Tej was a votary of arts, poetry and other types of literature, and it is said that the evening gatherings at his residence provided a rare treat to all those who gathered there.

The birth centenary of Sir Tej is not only an occasion to pay tribute to the memory of that gifted son of the motherland, it is also an occasion for those of us in the world of law for introspection. Introspection must induce us to have a close look at our judicial system. Some of the questions which face us are: Does our judicial system satisfy the demand for justice? Does it fulfil the expectations of the people? Are courts of law looked upon as temples of justice, where it is administered without fear or favour, oblivious of the personality of the litigants and without regard to their big purses or high status? Does the common man have an abiding and unshaken faith in the process of justice as administered by the courts? It is upon the answer to these questions that our judicial system would ultimately be judged. The image of the courts depends not upon the architectural beauty and the spaciousness of the court buildings. It also does not depend upon the finely cut robes of the members of the Bench and Bar nor upon the other trappings of the courts. Likewise, the image of the courts does not depend upon the long arguments, the number of authorities cited and the erudition displayed in judgments, important though they are. It depends essentially upon the way the cases are handled, upon the extent of confidence the courts inspire in the parties to the cases before them, upon the promptness or absence of delay in the disposal of cases, upon the approximation of the judicial finding of fact with the realities of the matter. Like all human institutions the courts must earn reverence through the test of truth. We must remember that in the final analysis the people are the judge of the judges and that every judicial trial is a trial of our judicial system. Its strength and weakness, its success and failure, its utility and credibility as a necessary organ of the State in a civilised society, the respect it would evoke and the confidence it would inspire would depend ultimately upon the way it satisfies the hopes and aspirations of the people, of the common man, in the quest for justice, in keeping the scales even, in any legal combat between the rich and the poor, between the mighty and the weak, without fear or favour.

None of us can be oblivious of some of the drawbacks and the infirmities which have crept into the judicial system, especially in the matter of delay and the high cost of litigation. Every effort should be made to rectify the drawbacks and set right the infirmities. At the same time we must beware of underestimating the importance of the judicial system or of detracting from its contribution towards an orderly society. The rule of law is essentially linked with the judicial system. It has been said that despite its inconsistencies, its crudities its delays and its weaknesses, law still embodies so much of the results of that disposition as we can collectively impose. Without it we cannot live; only with it can we insure the future which by right is ours. The best of man's hopes are enmeshed in its process; when it fails they must fail; the measure in which it can reconcile our passions, our wills, our conflicts, is the measure of our opportunity to find ourselves. According to Roscoe Pound, "looked at functionally the law is an attempt to satisfy, to reconcile, to harmonize, to adjust these overlapping and often conflicting claims and demands. . .so as to give effect to the greatest total of interests or to the interests that weigh most in our civilization, with the least sacrifice of the scheme of interests as a whole". Man may be a little lower than the angels, but he has not yet shaken off the brute and the brute within is apt to break loose on occasions. To curb and control that brute and to prevent the degeneration of society into a state of tooth and claw, we need the rule of law. We also need the rule of law for punishing all deviations and lapses from the code of conduct and standards of behaviour which the community speaking through its representatives has prescribed as the laws of land. Being human, disputes are bound to arise amongst us. For the settlement of those disputes, we need guidelines in the form of laws, forums to redress the wrongs in the form of courts and advisers who could guide us in the affairs of law, who could represent us in the courts of law and in whom we could repose our confidence. The last but not the least is the role of the members of the Bar. If there are indeed three indispensable requisites for the rule of law, they are an independent judiciary, a strong and vigilant Bar and an enlightened public opinion. There cannot be a worse indication of the decay of the rule of law than a subservient judiciary, a docile Bar and a society with a coarsened conscience. It is a mistake to suppose that the rule of law can be ensured by drafting well-worded codes. It would depend in the long run upon the way those codes are worked and more essentially upon the general attitude of the people and the personality of those who are concerned with the administration and enforcement of the rule of law. In the context of the rule of law, I cannot help referring to the words of Learned Hand that it is not in books that the law can live, but in the consciousness of the profession as a whole. Judges, dressed with their brief authority, may seem to speak more finally, but it is only for the moment. In the end they take their cues from the Bar and the legal institutions which slowly form the moulds. It is the Bar which makes the statutes and fabricates the adjustments they express. The quality of the judgments delivered by the judges in a great measure reflects the industry and erudition of the counsel who argue the cases in which those judgments are delivered. I wonder sometimes as to whether we really accord proper recognition and express our due gratitude to the members of the Bar for what we owe to them in important decisions. Although we all remember Chief Justice Marshall for his classic opinions and the new ground he broke, we seldom remember the great counsel like Daniel Webster who appeared before him and contributed towards the moulding of those opinions. The same can be said of some of the memorable decisions handed down by the Supreme Court and the High Courts in our country. Powerful counsel have no doubt impact upon the strongest courts. At the same time, it may be pointed out, as observed by Frankfurter, that not the least distinction of a great judge is his capacity to assimilate, to modify or to reject the discursive and inevitably partisan argument of even the most persuasive counsel and to transform the raw material into a judicial judgment. Judges have indeed to be on the guard lest a vastly superior advocate overpowers his opponent and makes the worse policy alternative appear to be the better one. The effort should be to reduce to the minimum the imbalance resulting from inequality of legal representation in the adversary system.

The rendering of a judicial decision is not always an easy matter. Chief Justice Hughes once said that when we deal with questions relating to principles of law and their application, we do not suddenly rise into a stratosphere of icy certainty. It would not be difficult to decide a case if only a single principle were involved. The difficulty, however, arises when the facts of the case reveal that it is in the neighbourhood of different principles. It is then that the painful process begins through self-searching of making a choice or of accommodating two or more principles. This for any conscientious judge is the agony of his duty.

Judges, it has been said, are men, not disembodied spirits, they respond to human emotions. The great tides and currents which engulf the rest of mankind, in the words of Cardozo, do not turn aside in their course and pass the judges idly by. Yet, notwithstanding the human factor, the courts operate in a setting that forces responsibility upon them. Judges are bound within walls, lines, and limits that are often unseen by the layman—walls, lines, and limits built from the heritage of the law; the impact of the cases as they have come down through the years; the regard for precedent; the self-imposed practice of judicial restraint; in brief, the tradition of the law. It is also an essential requisite for a judge to acquire a certain detachment and discernment, so that he is not carried away by popular catchwords and shibboleths. Generalities can sometimes be traps for error and rhetoric as the enemy of wisdom. In modern times there is high-power salesmanship in ideas. The science of propaganda by no means had its origin in the Second World War, but that gave it a greater impetus than before. If we look at the history of fifty years, we would find that some of the ideas which got currency and spread like wildfire at one time had only ephemeral existence and thereafter nothing could revive them. Indeed, looking in retrospect and examining the matter with detachment and in an atmosphere free from the frenzy of the moment, we often wonder as to how certain ideas could have such a sway over the minds of people. This only shows that man is a gregarious animal. It is at moments like these that we need the sentinels to make us aware of the danger which underlies the disposition to take the immediate for the eternal, the transitory for the permanent and the ephemeral for the timeless. This necessarily calls for a determined resistance to the hypothecation of the thinking process. It also postulates a free trade in ideas. It has been the tradition of the Bar to make a vital and significant contribution in the carrying on of this trade. No one can underrate the importance of this trade for the health and growth of the society. To put it in the words of a great master, when men have realised that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment. Catholicity of outlook, freedom of thought and a broad spirit of tolerance has been the tradition of India since ancient times. In few other countries has there been such fusion of different schools of thought, religious beliefs and cultural streams.

So far as the judges of the higher courts are concerned, their office demands that they be historian and prophet rolled into one, for law is not only as the past has shaped it in judgments already rendered but as the future ought to shape it in cases yet to come. The thoughts of great men of law are not windfall of inspiration, they are the product of the long brooding over the past, the contemplation of the present and the trembling hope and anticipation of the future. Law necessarily has to carry within it the impress of the past traditions, the capacity to respond to the needs of the present and enough resilience to cope with the demands of the future. A code of law, especially in the social fields, is not a document for fastidious dialectics; properly drafted and rightly implemented it can be the means of the ordering of the life of a people. "The life of the law," the words of Holmes, "has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellowmen, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become. We must alternately consult history and existing theories of legislation. But the most difficult labour will be to understand the combination of the two into new products at every stage."

One of the great questions with which we are concerned is as to how far we can harmonise the urge for change with the rule of law. Although it is essential that some of the iniquities and drawbacks which have manifested themselves in our social system should be weeded out or rectified, we must also bear in mind that every change is not always and necessarily for the better or symbolic of progress. History records about as many social changes for the worse as for the better. It is, however, the law of nature that human society keeps changing. There is also the change in values and the change in ideas. With that new needs emerge, first vaguely felt and unexpressed, imperceptibly gathering strength, steadily gaining momentum and becoming more and more exigent till they reach a stage that unless there be adequate response, they would burst the social barriers and carry everything in a deluge. Impelled by sociological wisdom the art of free society, it has been said, consists firstly in the maintenance of the symbolic code, and secondly in fearlessness of revision, to secure that the code serves those purposes which satisfy an enlightened reason. The history of the common law reveals a constant process of give and take between consolidation and progress, between the legal technicians and the creative jurists. With the rising tempo of social change law cannot be a backwater removed from urgent social and economic problems. What could once be regarded as lawyers' law, may today be a matter of urgent economic and social policy. Rule of law is not the enemy of progress nor an ally of moribund past or a handmaid of reaction. Its object is to prevent upheavals and eliminate jolts in the onward march of society. Rule of law seeks to harmonise change with continuity, to synthesize it with stability, to set up rapport between the past and the present and to project such rapport into the future. Rule of law can make a significant contribution to the peaceful evolution of society for it ensures smooth transition from the old to the new. According to Professor H.W. Jones, what law does—or can do when the legislators, judges and practising lawyers are socially aware and professionally resourceful—is to provide institutions and procedures for the channelling of inevitable social change in ways that make sought reforms effective with the minimum possible impairment of law's other ends-in-view: the public peace, just dispute-settlement, reasonable security of expectations and tolerable adjustment of conflicting social interest. Law's principles, institutions and procedures are there to be drawn on for the social task at hand, but they have to be used. The channelling of social change can be accomplished only through continuing acts of creative and informed intuition by men and women who combine genuine mastery of legal techniques with equally profound understanding of social forces. The relation between law and social change is reciprocal for law in its turn can have a moulding effect on social development. Professor Jones accordingly states:

"More often than not, a legal principle, if soundly conceived and resolutely enforced, becomes a kind of self-fulfilling prophecy and creates the social climate necessary for its acceptance. When wisely and imaginatively employed, law is far more than an instrument of command; it is organized society's principal resource for the engineering of that widespread and supportive public assent—the true consent of the governed—without which great social initiatives never really get off the ground."

Friends, today we stand on the crossroads of history. Compared to the little done, there is vast yet to be done. We have grand visions of the future and great aims to make those visions a reality. We have many a mile to travel, many a task to accomplish. For that we need a spirit of dedication, clear thinking, resolute hearts and strong will-power. Fearlessness has been the outstanding tradition of the Bar. Where fear is, justice cannot be. The victims of an atmosphere of fear are a Bruno, a Galileo or a Dreyfus. It has been said that the members of the Bar are the soldiers in the cause of justice upon earth. Others have described it as a great ancient myth. Whatever might be the truth, I am tempted, before concluding, to recall the words of Cardoso in an address to the members of the Bar:

"We are fallen upon days that are spoken of by many as cynical and sordid. The profession is given over, we are told, to the pursuit of power and pelf. Let us beware of underrating the springs of altruism and energy that lie ready to be released at the call of a great example, the summons of an urgent need. With all our cynicism and sordidnes, how our pulses quicken even now at the tale of those of our comrades—our comrades dead and living—who have felt the magic of the ancient myth and, yielding to its glamour, have flung base things away.

It has been given to you and me to be partakers of these blessed memories. It has been given to you and me to prove in our own lives that the truth is in the myth and not in the sordid appearances, at times misnamed reality, which hide what is within."

Once again, I thank the organizers of the function for giving me an opportunity to be present here.

* Speech delivered on October 16, 1976 at the Birth Centenary Celebrations of Sir Tej Bahadur Sapru, organized by the Allahabad High Court Bar Association. Return to Text

Search On Page:

Enter Search Word:

  Search Archives
  Search Case-Law
  Search Bookstore
  Search All

Archives of SCC Articles
  Subjectwise Listing of Articles
  Chronological Listing of Articles
  Articles Exclusively on the Internet
  More Articles...

Most Accessed Articles
Recent Articles