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Speech Law Day 1996 - On Monday, the 26th November, 1996 in the Supreme Court Premises
by Ashok H. Desai, Attorney General of India

Cite as : (1997) 2 SCC (Jour) 8

My Lord Chief Justice Ahmadi, Shri Ramakant Khalap, the Law Minister, Shri R.K. Jain, President of the Supreme Court Bar Association, Mr Rajiv Dutta, Vice-President, Mr Kailash Vasdev, Hony. Secretary, My Lords the Hon'ble Judges of the Supreme Court and Chief Justice and Justices the High Court, Ladies and Gentlemen,

We have gathered once again to mark the anniversary of a memorable day, the day on which the Constituent Assembly of India adopted the motion "that Constitution as settled by the Assembly be passed". The voting on the third reading of the draft Constitution was preceded by a final reply by Dr Ambedkar on 25-11-1949 in a speech which may well supply the theme for today. The Constituent Assembly first met even before independence on 9-12-1946. The draft Constitution placed before the Constituent Assembly contains many proposals like communal reservations which would now be totally unacceptable in our secular republic. It was during its labours which lasted two years, eleven months and eighteen days that India attained its independence on 15-8-1947 and formulated the structure for a sovereign democratic republic by 26-11-1949.

The Constitution with its detailed provisions conferred the task of interpreting it and sustaining the rule of law on an independent judiciary, especially the Supreme Court. This is a perpetual task. The interpretation of the Constitution is never final because society like life itself is in constant flux. The Constitution is a living document and has to be interpreted according to the changing needs of the time. Dr Ambedkar emphasised this by drawing on Jefferson who said:

"We may consider each generation as a distinct nation, with a right, by the will of the majority, to bind themselves, but none to bind the succeeding generation, more than the inhabitants of another country. ... The idea that institutions established for the use of the nation cannot be touched or modified, even to make them answer their end, because of rights gratuitously supposed in those employed to manage them in the trust for the public, may perhaps be a salutary provision against the abuses of a monarch, but is most absurd against the nation itself. Yet our lawyers and priests generally inculcate this doctrine, and suppose that preceding generations held the earth more freely than we do; had a right to impose laws on us, unalterable by ourselves, and that we, in the like manner, can make laws and impose burdens on future generations, which they will have no right to alter; in fine, that the earth belongs to the dead and not the living:"

The interpretation of the Constitution under the two different doctrines of original intendment and changing needs has been a remarkable exercise. We shall soon meet again on the 9th of December to celebrate the 50th anniversary of the first session of the Constituent Assembly. That would perhaps be a more appropriate occasion to reflect on the strengths and weaknesses of our Constitution.

Our annual meetings on the Law Day give us an opportunity to have a look at the achievements and inadequacies in the working of the judicial system, especially in the highest court. In his speech on the Law Day in 1985, Chief Justice Bhagwati gave the dire warning that: "I am pained to observe that the judicial system in the country is almost on the verge of collapse. These are strong words I am using but it is with considerable anguish that I say so. Our judicial system is creeking under the weight of arrears." Although the problem of arrears is still a serious blemish on our system, there has been a remarkable change in the disposal of matters in the Supreme Court. I find that whereas 34,075 admissions were pending at the end of 31-10-1994, the arrears were brought down to 6171 admissions at the end of 31-5-1996. Since one must reckon with new matters for admission, this meant the disposal of as many as 83,519 admission matters from 1-11-1994 to 31-5-1996. Even so far as regular matters were concerned, the arrears as on 31-10-1994 were 20,918. They were brought down to 18,950 on 31-5-1996, with a disposal of 23,523 matters. What is most heartening is that disposals are significantly more than the filings during the year. And the trend continues. There is a clear turn of the tide. In fact, at this rate, the arrears are well within what is manageable in one year.

In some measure, this is due to better court management, including by the use of computers. But I would like to acknowledge publicly that the real tribute for this disposal most go to the dedicated and extremely hard work put in by our Judges. It is ironical that under our system the burden that a Judge has to carry goes on increasing in proportion to his elevation. The Supreme Court Judges are amongst perhaps the hardest working of any Judges. I was quite taken aback to learn that the briefs for the next day, specially on the admission days, have to be delivered to them in a commercial vehicle or a tempo. Chief Justice Venkatachaliah used to quote the complaint of his colleague that until elevated to the Supreme Court, he thought that bonded labour was abolished. In fact, it is the occasional complaint of the Bar that the Judges are ready in a manner which is alarmingly disconcerting to the counsel who is less prepared. I often try to guess while hearing submissions in the Court whether the Judge is better prepared than the lawyer briefed to argue the case. And the answer is not very flattering to the Bar. I should not be understood to say that the Judges are always right. The point is that they have put in such hard work that it is time for the Bar to ask the question whether we have done enough to reciprocate this great effort put in by the Judges?

The very fact that one is appearing in the highest court of the land must be regarded as a privilege and an honour which must elicit the best in the lawyer in the preparation of his facts, in the research in law and in presentation of his arguments. I am not at all certain that I can claim for the Bar that we have achieved this exacting standard. The law laid down by the Court is the final word. It governs the whole complex system of rights and obligations throughout this vast land of ours. It is absolutely essential that the Bar should present a case after full deliberation lest the judgment miss a relevant point. In order to assist the Court properly I strongly suggest that we should adopt the system prevalent in many appellate jurisdictions throughout the world that at least some days before the case is heard, a note of arguments should be submitted by the contending parties. The submissions have to be short and to the point. This can be enforced by the rule that it should not exceed say three pages of standard size. Like some American courts, the Registry should be told to delete all pages after the third. This discipline of advance submission of arguments would give a direction to the arguments and surely curtail their length.

I can well use this opportunity to draw attention to two areas which may be matters of concern or interest in the coming years. These are matters which affect the whole legal family of the Bar and the Bench. Today I can do no more than touch on them broadly. One issue which is going to be increasingly important in the coming years is the media coverage of the cases. It is heartening that the media, particularly the electronic media are interested in the judicial system. But it is somewhat troublesome that matters are discussed not in terms of principles but on the course of pending cases. It is no doubt true that a lawyer may want to participate in legal discussion and advance legal literacy. But I am not at all certain if this should extend to commenting from day-to-day on pending cases. One is particularly worried because even though the Judges by training decide a case strictly on merit, the sheer publicity given to a case or the views expressed on a pending case would not be without its influence. The eddies and currents which sweep other mortal men do not altogether bypass the Judges. Perhaps, we shall have to develop a code of conduct to restrain the irresistible impulse to go to the media immediately after the hearing is over and to comment on not only what has happened but what ought to happen. In a recent case a senior colleague who was arguing against me when the Court rose for lunch recess, continued to speak on the pending case on the Television camera and then continued his arguments after lunch. A code of conduct cannot be a matter of law. It has to be clearly based on our concern for a fair trial. Free and fair trial surely is as important as the freedom of expression and the latter should not overwhelm the former.

Another equally important issue on which discussion has already started is what is perhaps unhappily termed as judicial activism or judicial expansionism. These two phrases are a little rhetorical because they provide their own answer and become slogans rather than matter of serious discussion. The real issue surely is of separation of power, a concept that all exercise of power needs checks and balances and that each organ of the Government must confine itself to its own field. This is a serious jurisprudential question. I can do no better than cite again the speech made by Dr Ambedkar on 25-1-1949 on the final reading of the Constitution. He said:

"Courts may modify, they cannot replace. They can revise earlier interpretations as new arguments, new points of view are presented. They can shift the dividing line in marginal cases, but there are barriers they cannot pass, definite assignments of power they cannot reallocate. They can give a broadening construction of existing powers, but they cannot assign to one authority powers explicitly granted to another."

The Supreme Court has recognised this and cited with approval the words of Prof Archibold Cox who said:

"Ability to rationalise a constitutional judgment in terms of principles referable to accepted sources of law is an essential, major element of constitutional adjudication. It is one of the ultimate sources of the power of the Court - including the power to gain acceptance for the occasional great leaps forward which lack such justification. Constitutional Government must operate by consent of the governed. Court decrees draw no authority from the participation of the people. Their power to command consent depends upon more than habit or even the deserved prestige of the justices. It comes, to an important degree, from the continuing force of the rule of law - from the belief that the major influence in judicial decisions is not fiat but principles which bind the Judges as well as the litigants and which apply consistently among all men today, and also yesterday and tomorrow."

I have little doubt that the issue will require a serious and unemotional debate. I would suggest that the Supreme Court Bar Association might take a lead on organising a seminar on the subject in which members of the Bar, the Bench and other public figures can participate.

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