Inaugural address of Hon'ble Dr. Justice A.S. Anand, Chief Justice of India at the golden celebrations of the Rajasthan High Court*
Cite as : (1999) 7 SCC (Jour) 1
My esteemed colleague, Mr Justice Bharucha, Hon'ble Chief Minister, Mr Ashok Gahlot, Hon'ble Chief Justice of the High Court of Rajasthan, Mr Justice S.V. Patil, Hon'ble Judges of the High Court of Rajasthan, past and present, Hon'ble former Judges of the Supreme Court of India, Chairman, Rajasthan Bar Council, Presidents of various Bar Associations, distinguished invitees, members of the legal fraternity, ladies and gentlemen:
It is with the greatest pleasure that I participate in the Golden Jubilee Celebrations of the Rajasthan High Court. May I, at the outset, extend my warm felicitations to the Rajasthan High Court and to the people of Rajasthan on this crowning moment in the history of the Rajasthan High Court. This occasion is a landmark in the evolution of a judicial system as it marks half a century of the working of a carefully wrought legal-constitutional system.
The celebrations of the Golden Jubilee of any institution, big or small, is a great event in the history of that institution, but the celebration of the Golden Jubilee of a High Court is an event of a greater public importance and rejoicing. While completion of 50 years by the Rajasthan High Court in the service of the cause of law and justice is, indeed, a matter which calls for rejoicing and celebration, it also calls for retrospection.
It was on 29th August, 1949 when the High Court of Rajasthan was inaugurated in the Sun city by Maharaja Sawai Mansinghji, the Raj Pramukh of the State of Rajasthan. Maharaja Sawai Mansinghji concluded his inaugural address in the following words:
"I would ask one and all to join with me in invoking the blessings of the Almighty on this great institution which is being inaugurated today; and it is our prayer that for all time to come in this Temple of Justice truth and righteousness shall prevail, that justice be done between man and man and dispensed without fear, or favour, and that freedom be maintained and defended."
The prayers have been answered to a great extent.
The inauguration of the High Court in 1949 was marked by Mr Justice Kamala Kant Verma, taking oath as Chief Justice and eleven other Judges taking oath as Judges of the High Court. The Principal seat of the High Court was kept at Jodhpur. On the coming into force of the Constitution of India in 1950, the strength of the Judges in the High Court was, however, reduced to six. As the volume of work increased, the strength was raised to eight and, at present, the strength of the Judges of this High Court is thirty-two inclusive of the Chief Justice. Since the time of its inauguration, this High Court has passed from one stage of evolution to another carving out a place of distinction for itself not only in the judicial history of the State but in its public life as well.
This High Court has the proud distinction of having contributed as many as six distinguished Judges to the Supreme Court of India, viz., Mr Justice (late) K.N. Wanchoo, Mr Justice (late) P.N. Shinghal, Mr Justice A.P. Sen, Mr Justice J.S. Verma, Mr Justice N.M. Kasliwal and Mr Justice S.C. Agrawal. Out of six Judges, Mr Justice K.N. Wanchoo and Mr Justice J.S. Verma, who had been elevated to the Rajasthan High Court as Chief Justice from the Allahabad High Court and the Madhya Pradesh High Court respectively, adorned the office of the Chief Justice of India with distinction. Besides this, the High Court has also produced some very distinguished Judges. My thoughts in that connection go particularly to Mr Justice I.N. Modi, Mr Justice D.M. Bhandari and Mr Justice D.S. Dave and many others, who have rendered meritorious services to the cause of law and justice. Their noteworthy and valuable contribution in the development of law in the State of Rajasthan deserves special notice and admiration. They laid great traditions and sound foundations.
The Rajasthan High Court also has the distinction of producing a galaxy of eminent lawyers, some of them being late Shri Pandit Mukat Behari Lal Bhargava, late Shri Chiranjilal Agarwal, late Shri Radha Krishan Rastogi, late Shri Sumer Chand Bhandari, late Shri Makhtoor Mal Singhvi, late Shri Gulab Chand Kasliwal and late Shri Prem Nath Dutt. I pay my tribute to them.
I would be failing in my duty if I do not pay a special tribute to my friend, late Dr Nagendra Singh, who held the distinction of first being a Judge and then President of the World Court. Judge Nagendra Singh made significant contribution to enrich the jurisprudence of that Court particularly in his opinion in the case concerning military and paramilitary activities in and against Nicaragua (Nicaragua v. United States of America).
This High Court has produced diplomats, eminent jurists and eminent Judges, who are at present serving in different High Courts as Judges, Chief Justice or otherwise and I am deliberately omitting their names because I do not wish to embarrass them by pointing out their contribution in the development of law or in public life. The Bench and the Bar of the High Court of Rajasthan has a legitimate reason to feel proud of its achievements and rejoice on this momentous occasion.
When we enter the 21st century, in the not too distant future, the first thing we in the judiciary shall have to take care of is to see that the arrears of court cases which have mounted up till now get eradicated at the earliest. This cannot be possible without the full and unstinted cooperation of the members of the Bar and the presiding Judges as partners in the great task of administration of justice. Human hope has its limits and waiting endlessly is not possible in the current lifestyle. The consumer of justice wants unpolluted, expeditious and inexpensive justice. In the absence of it, instead of taking recourse to law, he may be tempted to take the law in his own hands. This is what the judicial system shall have to guard against so that people do not take recourse to extra-judicial methods to settle scores and seek redress of their grievance. If this tendency proliferates it would be a sad day for the constitutional democracy to which we are all wedded. The lack of a speedy dispute resolution mechanism has a direct impact on the level of lawlessness in our society. A peaceful society is a necessary precondition for any kind of development. Let me, however, hasten to add that the overflowing dockets of the courts all over the country should not be taken as a sign of failure of the system but as a sign of faith in the administration of justice by those who are involved in litigation. Public resort to the court to suppress public mischief is a tribute to the justice delivery system. Though it is a fact that arrears have mounted up and the judiciary cannot escape criticism but the executive is also partly responsible therefor. Besides taking their own time to fill up the vacancies, the executive has invariably failed to provide the necessary infrastructure to enable the judiciary to function normally. The financial control being with the executive, many a court has to function without the requisite furniture or library, apart from the insufficiency of the staff. In spite of all odds against us, we are functioning to the satisfaction of the majority of the people.
One of the causes for delay in the disposal of cases is also "Judge-made". Lack of punctuality, laxity, lack of control over the case file and court proceedings contributes in no small measure to the delay in disposal of cases. The grant of unnecessary adjournments on the mere asking or on account of "strike call" add to the problem. Court time is sacrosanct and no Judge or the member of the Bar has any right to waste it. The Judges at all levels must always respect the court time and remain punctual. No laxity in that behalf is permissible. Not adhering strictly to court timings is a serious aberration. It must be avoided at all costs. The delay in pronouncing judgments is yet another aspect on which we the Judges at all levels must address ourselves. It causes anguish to the litigant and can become a cause of "suspicion". The inordinate delay in delivering judgments is almost inexcusable. Let us on this auspicious day resolve not to become parties to slow motion justice.
The first Chief Justice of the High Court of Rajasthan, Justice Shri Kamala Kant Verma in the course of his speech at the time of inauguration of this High Court on August 29, 1949, while emphasising the importance of a competent, independent and an impartial judiciary, explained the import of independence of judiciary, thus:
"... Put very briefly, it means that the Judges, in the performance of their duties, should not be amenable to extraneous influences of any kind, whether those influences emanate from the Government, the people or any other quarter. The vow which a Judge takes and which we have all taken today is that he will administer justice without fear or favour. He ought not to be swayed by a desire for popular applause, or by any expectation of favours from, or by the fear of the frowns of Government, or by the desire to please or oblige anybody else...."
I cannot but fully associate myself with the sentiments expressed by Justice Kamala Kant Verma. I have always maintained that an independent judiciary is a national asset.
It is well known that the rule of law sustains democracy and it is equally true that to a bold and independent judiciary is assigned the task of maintaining the rule of law. The impartiality and independence of the judiciary, however, depends on the high standards of conduct followed by Judges. Only if the highest possible standards are adhered to, can the faith of the common man in the judiciary be maintained. The judiciary cannot afford to adopt an uncritical attitude towards itself. We Judges, at all levels, must make ourselves accountable and ensure that our actions are transparent and are within the parameters set by the Constitution. The judiciary must follow the standards of morality and behaviour which it sets for others, and as a matter of fact before laying down standards of behaviour for others the judiciary must demonstrate that the same standards apply to it and are being followed by it. Constant evaluation of the functioning of the institution needs, therefore, to be encouraged. The greatest threat to the independence of the judiciary is the erosion of credibility of the judiciary in the mind of public, for whatever reasons. Lord Denning once said:
"Justice is rooted in confidence, and confidence is destroyed when right-minded go away thinking that 'the Judge is biased'."
If a Judge decides wrongly out of motives of self-promotion he is no less corrupt than a Judge who decides wrongly out of motives of financial gain. In either case the incumbent of the office cannot be said to be worthy of being a Judge. His conduct effects the credibility of the institution. Eternal vigilance by the Judges is, therefore, necessary. There must be proper balancing of judicial independence on the one hand and the behaviour and conduct of Judges who operate the justice delivery system on the other. "Cerberus must not be seduced from vigilance by a sop." The Bar must cooperate with the Bench to maintain the credibility of the institution. The greatest asset and the strongest weapon in the armoury of the judiciary, said Justice H.R. Khanna in his Tagore Law Lectures in 1985 is "the confidence it commands and the faith it inspires in the minds of the people in its capacity to do even-handed justice and keep the scales in balance in any dispute". By and large the Indian judiciary has enjoyed immense public confidence. The common man considers the judiciary as "the ultimate guardian of his rights and liberties". This institution has stood the test of time and we owe it to the great institution to which we belong that we maintain the confidence of the common man in the judiciary by giving even-handed justice in all cases. No institution can take for granted the respect of the community. It has high expectations and constantly demands proof of its utility.
One of the essential features of the democratic republic established under our Constitution is the division of powers between the three important wings of the State: Parliament and the State Legislatures, the Executive and the Judiciary. These three wings have to operate in their respective clearly earmarked fields so that the democratic Governments both at the Centre and the States may function for the welfare of the citizens of this country. There is indeed an absence of specific provisions in the Constitution exclusively vesting legislative powers in the legislature and judicial powers in the judiciary, but the "essence" of the doctrine of separation of powers and of constitutional limitation is a feature of the basic structure of the Constitution. For the progress of the nation, however, it is imperative that all the three wings of the State function in complete harmony.
In his Inaugural Address in 1949, Maharaja Sawai Mansinghji touched upon the essential features of a democratic Government. He said:
"Modern democratic Government rests mainly on three pillars - the Executive, the Legislature and an independent Judiciary. In making of India's new Constitution much serious thought has been given by the leaders of our country to make these three pillars strong and to clothe them with the necessary prestige and authority so as to ensure full democratic freedom. In the light of the working of democratic Governments in the free countries of the world, we have come to realise that these three stays, on which modern Governments rest, are not mutually exclusive in their functions and authority; rather they are complementary to one another, though they have certain clearly defined functions in their respective fields."
The Constitution divides power between different organs and prescribes limitations on the powers of Parliament, the State Legislatures and the Executive. It also provides for an impartial umpire in the shape of an independent judiciary to resolve the inevitable disputes over the boundaries of constitutional power which arise in the process of government. The founding fathers entrusted this power of judicial review exclusively to the judiciary. This jurisdiction of the judiciary has quite often been resented not only in this country but elsewhere also.
When the British judiciary struck down certain ministerial decisions taking recourse to judicial review, it caused flutters in the House of Lords in 1986, and someone went on to the extent of putting the judicial review itself into question. Prof. Seaborne Devies went to the extent of saying:
"Let us ask a very simple question: who, besides themselves, has conferred upon the Judge this title under which they claim to be custodian of our morals? Who has said that the Lords Judicial of this realm are also its Lords Spiritual or Lords Political? I object to this arbitrary doctrine, because it carries the most distinct possibility of an abuse at some moments of deep crisis which will violently weaken the respect for the Bench of a large section of the reasonable opinion of the nation."
Commenting upon the debate both in the House of Lords and outside, Anthony Lewis in an article titled "Judges in Britain Create a Flutter", which was published in The Times of India, Bombay Edition of 7-11-1995, said that the change towards judicial activism in British courts was on account of the outlook of Judges and the functions they perform. The reason given by him in the analysis made in the article are interesting. They are:
"(1) the Judges realise that there is a vacuum since Parliament is virtually under the total control of the executive when it was supposed to correct any Government injustice to individual;
(2) the modern legislation is loosely drafted and delegates large powers to the Government which tends often to be arbitrary in its exercise;
(3) the new generation of Judges think of law not as fixed rules but as a set of values designed above all to protect democracy and human rights; and
(4) the new judicial generation is more outward-looking and is influenced by the courts in Commonwealth countries, for example, India in the rigorous enforcement of individual rights."
The article ends thus:
"The politicians, or many of them, will resist judicial review. But my guess is that the British public likes it when Judges stand up for them against the State - and that the public will demand more of the new constitutionalism, not less."
Even in 1803 in the United States, when the American democracy was too young, a charge was made against its Chief Justice John Marshall when he, in Marbury v. Madison1 invalidated the legislation enacted by the American Congress. The American Judges had also attracted the ire of their Presidents including Nixon, Ford and Reagan, when some of the American Supreme Court Judges including Chief Justice Warren passed judgments which were not liked, and dubbed them as "adventurists". Yet the American Supreme Court proceeded to interpret the American Constitution in regard to a number of subjects, viz., school desegregation, reapportion of unequal Congressional electorates, prohibition of school prayers, aid to parochial schools and restraints on police invasions of individual's civil liberties.
In his 1998 Hamlyn Lectures (50th Series) titled "Freedom, Law & Justice", Lord Justice Stephen Sedley said:
"... From Chief Justice Coke's invigilation of monopolies of labour to modern public law's invigilation of the propriety of acts of executive government, the common law has made it its business to respond to those of society's perceived needs which it considers justiciable...."
He went on to say:
"... [T]he courts have also from time to time stood up for individuals against the abuse of State or private power. What earns the courts far less public approbation, though it is what they do far more often, is their upholding as rational and fair of a variety of governmental initiatives which are almost daily challenged in the High Court. It is sometimes forgotten by aspiring village Hampdens that the protection of good Government is as much the High Court's job as the castigation of misgovernment. Here, in fact, as much as in the criminal process, is where the communitarian dimension of law is displayed."
It is not generally appreciated that when a court invalidates legislation, it neither approves nor condemns any legislative policy, nor is it concerned with its wisdom or expediency. Its concern is merely to determine whether the legislation is in conformity with or contrary to the provisions of the Constitution. It often includes consideration of the rationality of the statute. Similarly, where the court strikes down an executive order, it does so not in a spirit of confrontation or to assert its superiority but in discharge of its constitutional duties and the majesty of the law. In all those cases, the court discharges its duty as a judicial sentinel.
Today, the judiciary is being increasingly called upon to enforce the basic human rights of the poor and the deprived ones and this new development is making the judiciary a dynamic and important institution of the State. The critics have given to this expanded role of the judiciary the title of "Judicial Activism". The main thrust of the criticism is that an unelected judiciary by its directives to the administration is usurping the functions of the legislatures and of the executive and is running the country. What these critics of the judiciary overlook is that the founding fathers of the Constitution vested the power of judicial review exclusively in the judiciary, unelected and independent. Let us not forget that the necessity for judicial intervention arises when the citizen complains about unfair treatment or violation of his rights at the hands of the executive or the legislature. In cases where the executive refuses to carry out the legislative will or ignores or thwarts the legislative will, it is surely legitimate for courts to step in and ensure compliance with the legislative mandate. It must be remembered that the judiciary is always moved by an aggrieved person after traditional routes have failed to redress his grievance. When the court is apprised of and is satisfied about gross violations of basic human rights, it cannot fold its hands in despair and look the other way. It cannot become a passive onlooker. It cannot shut its eyes and plug its ears for fear of criticism. It MUST respond to the knock of the oppressed and the downtrodden for justice with a positive response by adopting certain operational principles within the parameters of the Constitution and pass appropriate directions in order to render full and effective relief. In my opinion, judicial activism reinforces the strength of democracy and reaffirms the faith of the public in the rule of law. If the judiciary was also to shut its door to the citizen who finds the legislature as not responding and the executive indifferent, the citizen would take to the streets and that would be bad both for the rule of law and the democratic functioning of the State.
It is, however, necessary to remember that judicial activism and judicial restraint are two sides of the same coin. Judicial restraint in the exercise of its functions is of great importance for the judiciary while discharging its judicial obligations under the Constitution. With a view to see that judicial activism does not become "judicial adventurism" and lead a Judge going in pursuits of his own notions of justice, ignoring the limits of law, the bounds of his jurisdiction and the binding precedents, the courts must act with proper restraint and self-discipline. The danger of the judiciary creating a multiplicity of rights without possibility of adequate enforcement is a real one. It must be guarded against. The judiciary should not become a institution of mere form bereft of substance. There are real limits to what the judicial process should attempt to accomplish and the judiciary should resist the temptation to cross those limits. The decisions of the courts should be within the zone of juridical legitimacy.
The judiciary has to be conscious of the limits of its jurisdiction. We have to remember that our role is to uphold the majesty of the rule of law and this power is meant to be harnessed in public interest. There are certain tasks which it is not possible for the judiciary to perform. Complex problems of policy cannot be resolved with the limited data available within the confines of the judicial process. These kinds of problems are incapable of resolution by "judicially manageable standards" and the courts must tread carefully when confronted by them. It is the duty of the courts to ensure that while exercising their powers, they do not overstep their permissible limits and act within the bounds of the Constitution and the law. Greater the power - greater is the need for restraint. No civilised system of justice can permit judicial authoritarianism and, therefore, the Judges at all levels, are expected to be circumspect and self-disciplined in the discharge of their judicial functions. Ego has no place in discharge of judicial functions. Where ego takes over, rationality and logic, as also rules of constitutionalism, suffer. The Judges must guard against such pitfalls while defending the values of the Constitution and the rights of the citizens. The courts cannot run the Government nor the administration indulge in abuse of or non-use of power and get away with it.
Even in this short span of 50 years in the service of the cause of justice, the Rajasthan High Court has built up high traditions worthy of emulation. In order to be successful in the mission of the judiciary to enforce constitutional guarantees and protect and preserve basic human rights of the people and reach social justice to the common man, it is absolutely necessary and essential that the two wings of the administration of justice, namely, the Bench and the Bar, must coordinate and cooperate with each other. Unless the Bar extends its helping hand, the Bench cannot achieve anything single-handed but together they can meet every challenge including threat to its independence from within. Let me remind you of a story in the Mahabharata. Duryodhana was arrested by the Gandharvas and was being taken away. Yudhishthira told his two brothers, Bhima and Arjuna, to fight against the Gandharvas and get Duryodhana released. When they expressed their unwillingness to do so, Yudhishthira pointed out that differences and quarrels among the Kauravas on the one hand and the Pandavas on the other were differences among the members of the same family and as regards such differences and quarrels, they were 100 versus 5, but, "if a stranger intervenes, as against him, we are 100 plus 5. We shall not allow anyone to overcome any one of us, whether Pandava or Kaurava". It is in this spirit that the Bench and the Bar have to remain together to protect the independence of the judiciary, for after all as I said earlier an independent judiciary is a national asset.
Lawyers see law in action as perhaps no one else does and without their assistance it is impossible to make law an instrument of social justice. Law - said Jeremy Bentham, is not made by Judges alone but by "Judge and Company". "Lawyers are the most important shareholders of that Company." A vigilant Bar is a great asset of the judiciary. Every lawyer must be prepared to meet the new challenges in the 21st Century particularly those arising out of globalised economic structure. I am, as usual, optimistic that the Bar would rise to the occasion and equip itself in the quickest possible time to meet all situations in the coming years and cooperate with the Bench. To succeed in their endeavour, the lawyers must ensure that professional standards are maintained and legal ethics do not take a back seat. It is, thus, the duty and obligation of the senior members of the Bar to train the junior members so as to equip and prepare them to meet the future challenges. They are the hope of our tomorrow. I am sure that the new entrants to the Bar in due course will rise in stature and standard so high as to emulate the seniors of the past. To the younger members of the Bar, I would suggest work hard and treat your seniors with respect and regard. Treat them as your "Guru" so that you receive the best from them and are able to realise your dreams.
Ladies and gentlemen, I thank you for your patience. I have great pleasure in inaugurating the Golden Jubilee Celebrations of the High Court of Rajasthan. I pray to the Lord to shower His choicest blessings on the legal fraternity of Rajasthan. Wish you all good luck and Godspeed.
Thank you, Jai Hind.
- 1 Cranch 137 : 2 L Ed 60 (1803) Return to Text