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B.N. Datar Centenary Endowment Lecture New Dimensions of Justice
by Justice J.S. Verma*
Cite as : (1997) 3 SCC (Jour) 3
B.N. Datar belonged to the generation of lawyers in the pre-Independence era to whom participation in the freedom struggle came naturally. After Independence was attained, he was actively engaged in the public service of building a Free India. He was a Minister in the Nehru Cabinet. His interests were varied and his contribution was significant in the field of education, and other fields of public service. To perpetuate his faith and commitment to the Rule of Law, his family has thoughtfully created an endowment for the purpose of promoting the legal culture in free India. I feel honoured to be invited to speak on this occasion.
Oliver Wendell Holmes Jr. once said:
"This is a court of law, young man, not a court of justice."
The underlying sarcasm in the barb of Holmes generates and fuels the impulse of law courts to endeavour to become courts of justice.
In the words of Addison:
"To be perfectly just is an attribute of the divine nature; to be so to the utmost of our abilities is the glory of man."
It is this spirit which motivates the judiciary to strive to realise its full potential and convert it into kinetic energy.
Law, Justice and Morality
Justice is the ideal to be achieved by Law. Justice is the goal of law. Law is a set of general rules applied in the administration of Justice. Justice is in a cause and depends on application of law to a particular case. Jurisprudence is the philosophy of law. Jurisprudence and Law have ultimately to be tested on the anvil of administration of justice. "Law as it is" may fall short of "Law as it ought to be" for doing complete justice in a cause. The gap between the two may be described as the field covered by Morality. There is no doubt that the development of the law is influenced by morals. The infusion of morality for reshaping the law is influenced by the principles of Equity and Natural Justice, as effective agencies of growth. The ideal state is when the rules of law satisfy the requirements of justice and the gap between the two is bridged.
It is this attempt to bridge the gap which occasions the development of New Jurisprudence.
Existing Gaps
The existence of some gap between law and justice is recognised by the existing law itself. This is the reason for the recognition of inherent powers of the court by express provision made in the Code of Civil Procedure and the Code of Criminal Procedure. The Constitution of India by Article 142 expressly confers on the Supreme Court plenary powers for doing complete justice in any cause or matter before it. Such power in the court of last resort is recognition of the principle that in the justice delivery system, at the end point attempt must be made to do complete justice in every cause, if that result cannot be achieved by provisions of the enacted law. These powers are in addition to the discretionary powers of courts in certain areas where rigidity is considered inappropriate, e.g., equitable reliefs and Article 226 of the Constitution.
The attempt of the courts to bridge the gap between the provisions of existing law and the requirements of justice is the occasion for the development of New Dimensions of Justice by evolving juristic principles within the framework of law for doing complete justice according to the current needs of the society. It is the quest for justice in the process of administration of justice which occasions the evolution of the New Dimensions of Justice.
What is a New Dimension of Justice ?
To qualify as a New Dimension of Justice, the decision in which it is contained must provide the bedrock of a new juristic principle for application in all similar situations while applying the same in the cause at hand. It follows that it must not be a mere ad hoc decision - a rail road ticket valid only for a single journey. A New Dimension of Justice based conceptually on a new juristic principle promotes the growth of law while an ad hoc decision creates uncertainty and renders the law vague on the point leading to inconsistent decisions in similar situations. The acceptance of a new dimension is based on recognition of the fact that it promotes justice by evolving a new principle of law and thereby bridges the existing gap between law and justice. It enriches the existing law and advances it towards the goal of "law as it ought to be". It has, therefore, a lasting impact and contributes to the progression of law towards justice.
Different Facets
Interpretation of Statutes
The judicial process which evolves new dimensions of justice has several facets. The first method available to the courts is the route of purposive construction of the existing law. A principle of statutory interpretation is the presumption that an updating construction is to be given to a statutory provision. In construing an ongoing statute it is to be presumed that the legislature intended the act to be applied at any future time in such a way as to give effect to the original intention. In doing so allowance is made for the relevant changes that have occurred in the society since the enactment of the law. It is this principle of construction which enabled the reading of the word "telegraph" to include "telephone" within the meaning of that word in the Acts of 1863 and 1869 when telephone was not invented, and therefore, could not be expressly mentioned in the statute. For the same reason, recently the meaning of the word "handwriting" in Section 45 of the Indian Evidence Act, 1872 was construed to include "typewriting" because the typewriters became available for common use much after 1872.1 It is also a rule of interpretation that a word with more than one meaning must be construed to promote the object of the enactment. In short, the interpretative process enables the court to give a meaning to the existing law which approximates law to justice.
Interpretation of Constitution
The Constitution is to be interpreted as a living and vibrant organism to provide for the current societal needs. Constitution is to be construed as enacting concepts. In construing a provision of the Constitution, the constitutional purpose it is meant to subserve has to be borne in mind. The general scheme of the Constitution and its basic features have also to be kept in view to ensure that the interpretation made is in consonance therewith. Thus the attempt has to be to give meaning and content to the enacted provisions as live concepts providing for all situations and the interpretation made to promote the cause of justice and to subserve the common good.
Guidelines for exercise of discretion
Another method to achieve this object is to evolve principles to regulate the exercise of judicial discretion given by the law itself to eliminate uncertainty and arbitrariness to the extent practicable. The evolution of guidelines for general application to regulate exercise of discretion reduces to the minimum the area of individual discretion. The underlying principle in the guidelines is based on a juristic concept. This is true also for the sphere of inherent powers of the Court. Framing of guidelines to regulate exercise of executive discretion to reduce possibility of arbitrariness has also gained roots in the system. These are some obvious methods for the progression of law towards justice by the judicial process.
Constitution and Public Law
The maximum scope for the development of new dimensions of justice is in the field of Constitutional Law and Public Law. The Constitution is the "Suprema Lex". In the words of Cicero: "The good of the people is the chief law." The legal maxim "Salus Populi Suprema Lex" comprehends that regard for public welfare is the highest law. This is the predominant constitutional purpose. Every constitutional provision is to be interpreted as a concept bearing in mind that the ultimate sovereignty in a democracy vests in the people.
Conventions
Even in a written Constitution express provision is not found for every conceivable situation. Dr Rajendra Prasad said in the Constituent Assembly at the time of moving the resolution for the adoption of the Constitution that certain gaps were to be found in the Constitution which must be filled by developing proper conventions in due course in the working of the Constitution. England does not have a written Constitution and the entire field of the constitutional law is covered by conventions. It should not be too difficult in India to fill merely the gaps with proper conventions. The established conventions and requirements of propriety provide the index to fill the constitutional gaps.
Silence of the Constitution
The "Silence of the Constitution" in some areas is deliberate for the reason indicated by Dr Rajendra Prasad. It is a constitutional device forming part of an advanced constitutional culture. Michael Foley in "The Silence of Constitutions" said:
"... Abeyances are, in effect, compulsive hedges against the possibility of that which is unresolved being exploited and given meanings almost guaranteed to generate profound division and disillusionment. Abeyances are important, therefore, because of their capacity to deter the formation of conflicting positions in just those areas where the potential for conflict is most acute....
Far from being a sign of decay, therefore, the presence of abeyances can denote the existence of an advanced constitutional culture, adept at assimilating diverse and even conflicting principles of government within a political solidarity geared to manageable constitutional ambiguity. If a constitution does not have the means to subdue conflict by these means, moreover, it will be a weaker and less adaptable constitution for that deficiency."
Interpretation of the Constitution and the other enacted laws in this manner creates New Dimensions of Justice.
The judicial process in this manner promotes justice; and the exercise advances law towards the cherished goal of justice. However, proper performance of this task requires imbibing advance judicial culture with creativity and perception of legal philosophy. Nurture of these traits and development of the proper judicial culture should be a continuous process. Capacity to develop law in a changing society requires the craftsman to possess this skill. Dexterity of a skilled surgeon is necessary for use of the scalpel of New Jurisprudence. Full ramifications of a new dimension must be visualised and care taken to ensure that it is in consonance with the basic principles of jurisprudence. Before embarking on such a venture, it must be ensured that the existing dimensions of law are deficient for meeting the felt need. There is no scope for this exercise in the abstract or when it is not a felt need.
This phenomenon is not peculiar to India alone. This is the experience in other similar jurisdictions, e.g., England, Canada, Australia and some African and European countries. The High Court of Australia, in the absence of a Bill of Rights, has implied the concept of "freedom of communication" from the Constitution's provisions providing for representative Government. The rationale is that for a representative Government in a democracy it is necessary that the people make an informed decision in making the choice of their representatives; and for this, it is necessary that they must have full information of the diverse opinions, which can be achieved only through the freedom of communication. This concept germinated in 1992 and took firm root in 1994 in some decisions which held unconstitutional certain restrictions imposed on media reports during elections: Australian Capital Television Pty. Ltd. v. Commonwealth2, Nationwide News Pty. Ltd. v. Wills3 and Theophanous v. Herald & Weekly Times Ltd.4
Some Areas of Development
In India the development in the field of constitutional law has been considerable. This has been achieved by giving wide meaning to the guarantee of fundamental rights, particularly, the rights of equality in Article 14 and of life and liberty in Article 21. Some directive principles of State policy, though not justiciable have been relied on for enlarging the scope and meaning of the fundamental rights. In this manner some directive principles have indirectly become justiciable. This is a significant new dimension evolved for achieving the ideal of justice. The concept of legal aid to ensure equal justice, public interest litigation - as a class action, liberalisation of locus standi for justice to the have-nots and the disadvantaged suffering from disability of any kind are some such new dimensions. Liberalisation of locus in matters of public interest is supported by the principle of representative action contained in Order 1 Rule 8 and Order 32, CPC. Access to courts for all needy persons is provided by these means.
Some other significant new dimensions need mention. Activating the administrative machinery in case of failure in performance of their obligation can be achieved through the judicial process. Judicial process achieves not merely initiation of action where there is inaction but also may monitor and channelise action in the proper direction when necessary. This is achieved within the framework of law by tailoring the procedure and remedies available in law to cater to the current needs. Judicial process is initiated through the medium of a lis brought by a person with proper standing in a court of law. The novelty may appear because of the nature of the lis and the tailoring of the remedy suitable in a particular lis; but the foundation lies within the framework of law. It is, therefore, a legitimate part of the judicial process. Tailoring the remedy and the mode of the exercise to cater to the felt need creates a New Dimension of Justice. To dispel any doubt it is necessary to spell out clearly the juristic principle which governs the exercise. That also regulates the exercise by keeping it within the legitimate bounds of the judicial process.
A proper appreciation of the exercise in this manner assures its legitimacy and public acceptance as a New Dimension of Justice and a part of the new jurisprudence.
History
The phenomenon of development of new dimensions of justice is not of recent origin confined only to the modern times. Judicial review from which it emanates was itself a New Dimension of Justice when it was first envisaged. It is commonly believed that Chief Justice Marshall of U.S. Supreme Court evolved the doctrine in 1803 in Marbury v. Madison5. However, Lord Coke in Bonham's case6 was the first to propound this principle. He said:
"When an Act of Parliament is against right and reason, or repugnant, or impossible to be performed, the common law will control it and adjudge that Act to be void."
Thus judicial review itself was a new dimension when propounded. It has been for long an essential part of the judicial process. It is also a basic feature of the Indian Constitution. It is really the exercise of the power of judicial review in the course of administration of justice that occasions the evolution of new dimensions of justice to cater to the needs of the time.
Indian Heritage
Lest we are misled into the belief that the present generation is the pioneer in the field, we must recall our rich heritage and remember that the current phase is merely the continuation of an earlier beginning. Ours is only a participatory role in an ongoing judicial process. The theme of the Tagore Law Lectures delivered by Justice P.B. Mukharji in 1970 was "The New Jurisprudence". The lectures deal extensively with the concept of new dimensions and thereby the growth of the new jurisprudence. Law in a changing society has been a subject of study by academicians for long.
We must recognise the contribution of some eminent Indian Judges in the past who possessed extraordinary vision and creativity even without the aid of constitutional guarantees now available to do justice. In 1893 Justice Mahmood enunciated the essentials of natural justice and the consequence of its non-compliance. In a dissenting opinion he held that a criminal appeal against conviction could not be decided without hearing the imprisoned accused personally, if he was unrepresented by a lawyer; because without that requirement the appeal could not be treated as heard. This was long before the decision in Ridge v. Baldwin7 in 1964 and the later Indian decisions pertaining to the content and significance of natural justice. Justice Vivian Bose held in 1949 that the doctrine of sovereign immunity did not extend to protect the State from vicarious liability for a tort committed by a forest officer because the activity of the forest department is commercial in nature. In 1952, Bose, J. construed Article 14 to contain the requirement of a State action being "reasonable, just and fair": (State of W.B. v. Anwar Ali Sarkar8). These examples show that the current judicial process in the country is merely a continuation of the kind of justice delivery system which was always prevalent in the country. It is of ancient vintage and not imported from abroad.
True Impact
It is necessary to dispel the misconception voiced by a few that the activist role of the judiciary is detrimental to reduction of the backlog in courts. This is not the reality. Such an impression results from a lack of proper perception of the exercise and its true impact. A class action, in one lis grants relief to many without requiring each individual, similarly situate, to bring a separate cause. It also has an educative value and improves future decision making by preventing the repetition of some errors. It is not merely curative but also preventive in nature. It controls the future docket and promotes public confidence in the rule of law. It has become a global phenomenon for implementation of the rule of law which is the assurance of its need and efficacy.
Backlog
The comparative figures of the backlog in Supreme Court in recent years is sufficient to dispel the impression that the process is detrimental to the course of administration of justice. There has been considerable reduction in the backlog with the aid of better court management techniques and advanced technology.
In Supreme Court, the total pendency as on 1-1-1992 was 1,04,936 and on 1-1-1993 was 97,536 according to the hyphenated numbers in vogue till then. This came down to 58,794 as on 1-1-1994 with introduction of system of statistics according to actual cases. Computerisation was also introduced with clubbing of similar cases. The figure of pendency was further reduced to 54,993 as on 1-11-1994 as a result of improved court management techniques introduced by then. As on 1-1-1995 it was reduced to 52,950 and on 1-1-1996 it was 37,168. The figure of pendency as on 6-9-1996 is only 26,673 out of which admission matters are 8569 and regular matters are 18,104. This reduction has been made in spite of the total institutions in 1994 being 42,046 and in 1995 being 51,443 which is nearly twice the average annual institution in the preceding years.
If a similar beneficial result has not been achieved in any other court, the blame cannot be on the process. May be, the fault lies in its exercise. Proper function of the PIL Cell in the court and listing only of genuine cases according to directions of the Chief Justice of the Court is the need to rationalise and channelise the process. Streamlining the procedure to ensure proper function is imperative.
Rule of law in developing countries with new political philosophy in a welfare State is significant to influence the trend of modern jurisprudence. Judiciary's role in giving expression to the Constitution and the laws for doing justice in the cause is instrumental in the development of new dimensions of justice. Judicial process as a mission seeks justice and tries to do justice. It is a function of balancing interests.
Not only modern constitutional law has enlarged the scope of judicial power beyond its orthodox limits, but modern legislation also in economic, industrial, technological and administrative areas has added new dimensions of judicial power. The development of New Dimension of Justice must be appreciated in this background.
Role of the Judiciary
Legal fraternity has a great responsibility to ensure the proper functioning of the judicial process to achieve the true object of justice for all. The legal profession has to be rationalised and channelised to harness the forces for which end it has a changing role to meet the current societal needs. The Judges have a duty to perform which is even more onerous to keep the judicial ship afloat on even keel. It must avoid making any ad hoc decision without the foundation of a juristic principle, particularly, when the decision appears to break new grounds. The judgments must be logical, precise, clear, sober and rendered with restraint in speech avoiding to say more than that which is necessary in the case. It must always be remembered that a step taken in a new direction is fraught with the danger of being a likely step in a wrong direction. In order to be a path-breaking trend it must be a sure step in the right direction. Any step satisfying these requirements and setting a new trend to achieve justice can alone be a New Dimension of Justice and a true contribution to the growth and development of law meant to achieve the ideal of justice.
The Bar has a significant role to assist the courts. The Bangalore Bar has produced many legal luminaries who have shone at the national level - Hegde, Venkataramiah, Shetty, Venkatachaliah, Venkatachala and Malimath. I have no doubt this tradition will be continued by the present and future generations of this Bar. That would be a continuation of the spirit of public service for which Shri B.N. Datar is known. It would be a true homage to his memory.
This is how a New Dimension of Justice must be evolved and appreciated.
- State v. S.J. Chaudhary, (1996) 2 SCC 428
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- 108 ALR 577
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- 108 ALR 681
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- (1994) 68 ALJ 713
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- 2 L Ed 60 : 1 Cranch 137 (1803)
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- (1608) 8 Co Rep 113b : 77 ER 646
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- (1963) 2 All ER 66 : (1963) 2 WLR 935 : 1964 AC 40 (HL)
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- AIR 1952 SC 75 : 1952 SCR 284
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