Once up on a time there was a kingdom ruled by a generous and kind king. As he was always thought of welfare of his citizen, so he decided to gather ideas from his locality. The king proclaims by beating drum and asks for the suggestions of the complete welfare of his people. People of that kingdom has then constitute assembly of learned and wise intellectuals by way of voting and these assembly has after tireless efforts collected ideas from all over world and erect an ultimate formula for established welfare state in which rule of law and supremacy of Judiciary is heart and lungs of that code of conduct.
The generous king then pronounced that now my kingdom shall be governed by this code of conducts. Further he declares that, code of conduct is now onwards considered supreme which has been derived by my people for themselves. He formed jury for establish rule of law. That jury started its work and controlled overpower of law makers and executives as well in the king’s kingdom. King was pleased and died with great satisfaction that code of conduct which he has formed is best and it will work.
But, after his death and after some decades instead rule of law in favor of welfare of people, all three limbs of power started playing dirty game to give check mate to each other and forget the pious function to protection of the rule of law, in the anticipation of ultimate welfare of the people of that country. This situation leads the whole country in worst condition than that of in the rule of king. Jury of that kingdom eventually started to believe that they are supreme power. They are formed and born to rule. They started to believe that they are out of the purview of code of conduct. Moreover if any citizen made up his mind to complaint against jury, such complaint also been entertained by themselves which obviously results in favour of them only. And, so the great dream of kind hearted king was rubbed. And power again centered in the hands of few intellectual giants ruling as either jury, law makers or executive in that state. All who are wise can easily understand moral of this story and also understand that story talking about which country.
In this article I want to discuss one of most important limb of our democracy that is INDIAN JUDICIARY. When we think of our country, we should note that it consists of main three limbs functioning.
1) Legislature, 2) Executives and 3) Judiciary.
Judiciary is very important limb of Indian democratic system which is suggested to be separated from executives by our constitution Part-4 article-50. If we ask what is judiciary?
It answered that, there is one Supreme Court for country, one high court for each state, one District court for each district and numbers of other courts either of senior division or junior division. In the complete judicial structure all are included right from our Constitutional head to the patavari who is calling out the names of litigants in the court of law. Situation is at some extends as like above mentioned story.
Though we have great constitution, great history and law abiding community in the country, something is lacking. And we shall be tried to find out that lacuna in order to establish welfare state in its real meaning. We should derive basic quality or minimum level of understanding. What is we are actually doing is million dollar question. What should be the basic qualification of person who is participating in the judicial system by performing any roll i.e. employee, advocate, prosecutor, judge etc.? What actual aspect of rule of Law? Is it merely verbal interpretation of Acts or sections of statute book without considering prime aspect of our constitution i.e. welfare of society?
Every Judge is a respected in our society. People believe them and prey them as their lord. People still believe that function of judge is to deliver justice and member of judiciary have enough sympathy and sensitivity to understand and appreciate problem of public. People believe that they living in the democratic society and all laws are meant for the protection and upliftment of the society. People seriously hopeful that, judges while rendering justice definitely interpret with the spirit to do welfare of people. But if judiciary introspect themselves is it really true that while they render justice consider the vital aspects of our constitution?
Our Constitution in its PART-III enshrined fundamental rights which has not been copied from anywhere by the constituent assembly, nor it was there in earlier statute i.e India Independence Act 1935. These rights really known as Megna Carta of India. Article 13 entrusted and assured to the people against encroachment by the executive, legislature. I would like to extract as it is.
Laws inconsistent with or in derogation of the fundamental rights
(1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are Inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.
(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.
(3) In this article, unless the context otherwise requires,-
(a) "law" includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law:
(b) "laws in force" includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.
6 [(4) Nothing in this article shall apply to any amendment of this Constitution made under article 368 .]” The doctrine of basic Structure which has been established by Hon’ble Apex court in wel known judgment of His holyness Kesavanandbharati’s Case in 1973 which is reiterated and confirmed time and again. Apparently, in this decision Apex court established the supremacy of constitution and peramountacy of fundamental rights enshrined in part-III to the people of India. It inherently means even judiciary should not act or behave in a manner which takes away or abridge any of right conferred in part III. In I.R.Coelho (Dead) By Lrs. Vs.State Of Tamil Nadu, 2007-GLH-1-501 bench of nine Judges in confirmation of these doctrine held that; “It is duty of this Court to uphold the constitutional values and enforce constitutional limitations as the ultimate interpreter of the Constitution.” (Para 42) “Equality, rule of law, judicial review and separation of powers form parts of the basic structure of the Constitution. Each of these concepts are intimately connected.
There can be no rule of law, if there is no equality before the law. These would be meaningless if the violation was not subject to the judicial review. All these would be redundant if the legislative, executive and judicial powers are vested in one organ. Therefore, the duty to decide whether the limits have been transgressed has been placed on the judiciary.” (Para 130) “Realising that it is necessary to secure the enforcement of the Fundamental Rights, power for such enforcement has been vested by the Constitution in the Supreme Court and the High Courts. Judicial Review is an essential feature of the Constitution. It gives practical content to the objectives of the Constitution embodied in Part III and other parts of the Constitution....” (Para 131)
“The role of the judiciary is to protect fundamental rights. A modern democracy is based on the twin principles of majority rule and the need to protect fundamental rights. According to Lord Styen, it is job of the judiciary to balance the principles ensuring that the Government on the basis of number does not override fundamental rights.” (Para 137) So, In our country role of judiciary is something more important than other limbs of polity. Judiciary is a protector of fundamental rights. Sometimes we experienced while dealing in lower courts when someone raise his voice of fundamental rights, in the hierarchy of court of justice it is often answers that only Highcourt or Supreme Court is authorized to entertain writs regarding any breach of fundamental rights consists in part-III and so lower judiciary is not authorized. Certainly it is true, but it doesn’t mean that lower judiciary can ignore such abrogation or inconsistency of fundamental rights during their proceeding. Even it should also recognize that Judiciary as an elder to legislature and executive responsible for implementation of fundamental rights. So judiciary itself should not exclude themselves from enforce and protect fundamental rights of people. Member of judiciary is more responsible while he is enforcing law for the betterment of society. In order to create law abiding society all who is concern with court of justice should perform their duty in the ever lighting canon of fundamental rights.
We experience abrogation or encroachment by the judiciary of the fundamental rights of people by means of Currupt practice, moral less life, deliberate delay in rendering justice, lack of basic knowledge of law, abuse of process of law, autocratic behavior, proudly arrogant and self-conceited nature, lack of sympathy and sensitivity, lenient view towards police atrocity… These are only few examples of the lacunas leads judiciary towards breach of fundamental rights of the people while people interact with them. By reading this immediate question arise in our mind that why it happens so. What are the reasons of this epidemic seriously harms this pious and responsible institution of Indian democracy..? The simple answer is lack of noble motive in performance of the duty. We shall try to understand this thought with simple logics. If someone ask to Judge that, why you have choose this service? His answer would be for attractive salary and perks, honor or power. If we ask to lawyer why you have choose this profession? His probable answer would be prosperity, probability to earn more money, independence. So, it is very much clear that motive of the members of judiciary is either money or name and fame or power and prosperity. So if their motive would not survive in performance of their duty they can opt for other available options.
No one has select this profession to serve the society or to protect the democracy. In our system when any limb of democracy misbehaves, judiciary is there to protect people and controlled and punished them; but if judiciary misbehaves who else will control..? and How..? In Gujarati language very relevant idiom says “વાડ ચીંભડા ગળે તો કોને કહેવા જવું”. Certainly there is also provision in the constitution for impeachment of Highcourt or Supreme Court Judge but needless to say anything about its effects. If the head of family is habitual of smoking or drink it is not possible for any member of the family for his bad habits. If father himself done injustice, how and where son can complain? I can’t prevent myself to reiterate welknown lines of Hindi movie ‘AmarPrem’ composed by Anand Baxi which is relevnt to the present scenario ‘चिंगारी कोई भड़के, तो सावन उसे बुझाये, सावन जो अगन लगाये, उसे कौन बुझाये, ओ... उसे कौन बुझाये’’. The people of India and the democratic edifice is sustained on single pillar and if these pillar loose its strength we can presume the probable result. So, unless they imposed strict and intact discipline for themselves according to constitution, no positive result can be achieved. It is well known for all of us that, ‘intention’ or ‘motive’ is a mental status and cannot be perfectly defined or decide by any overt act of mankind. And therefore it is very difficult to examine such virtues in the candidate who wanted to enter in judicial service. Further, it is our misfortune that in the process of selecting judges for lower judiciary or at the time of introducing law graduates at Bar such qualities cannot be considered except knowledge of law.
But, I would like to suggest that it is not difficult for our country to generate or implement noble Sanksara i.e purification and polishing of mind and intellect by way of education of grate culture in the study of law. It must be learned to us that honor, prosperity and respect given to judiciary is for their dedication and sacrifice for society. We learn all foreign philosophers in the study of jurisprudence. But unfortunately avoid Manu, Yagnavalkya, Atri and Chanakya who contributed in civilization of India and who formulate rules of laws. We even neglected muslim jurisprudence and its scholar Muhammad ibn Idris ash-Shafi`i for the reason best known to all acadamicians. To cultivate Sanskara it is eminent to give ideals to the learner of law.
Unfortunately our academy of law fails to provide such ideals like Rama, Krishna Or Mohammad Paygamber I have intentionally mentioned this names because apart from their assumption of manifestation of God, they are proved jurist and law-man. They have lived life to enlighten and guide generations to come. Further, in addition to Sanskara ‘Sense of Secrifice’ is also very important virtue necessary to qualify intellect of judiciary. It is said that, normally every living creature is self-centered.
It is normal for every man works or acts for himself. When any person surrenders his own self to family his self interest expands. When he extend his interests for his village or his society he then performs his duty or leave his own interest for that society or village and similarly in performance of this duty he surrender his family or self interest in order to achieve his society’s good. extreme of this surrender is extension of ‘I’ for Nation, for Humanity and ultimately for Universe. This sense of sacrifice for nation or humanity is essential for every member of judiciary. If we assume our position in the Democratic system, Judiciary is though entertains more power and supremacy, it could not exists independently. If our suppose that, This nation is a body, Judiciary is a head of the body who gets honors, posses brain which commends all organs but separated head exists no-more without hands and legs, heart and lungs. Similarly ‘Executives’ is a hands and legs of democracy while ‘legislature’ is its heart and lungs. If judiciary intend to continue its own existence coordination of other limbs is essential. To maintain doctrine of basic structure it is essential for judiciary to strictly follow this virtue of purification and sacrifice as a self imposed discipline. The Lawyer practices the law either as Defense counsel or as prosecutor and the judge who deliver judgment either in form of decree or a judgment; He is actually serving the society and not ruling.
This is the only institute which has provided numerous patriotic leaders like Ambedkarji, Gandhiji, Sardar, Nehru to this nation. This institute has provides dominant jurists like Hon’ble Mohammad Karim Chagala, A.M ahemadi, V.R.Krishna Iyer, advocate Nani Palkhicala who served our nation. We must remember the contribution of our ancestors towards the nation. We should by making serious efforts maintain that heritage. It is the time requirement to learn and exercise sincerity, sensitivity, morality and simplicity by judicial system. May the goddess of justice adored this important limb of democratic structure of nation with all blessings and draw the bright path towards welfare of people of India through their dedications.
Dharmendrasinh G. Rana
Assistant Public Prosecutor
GOVERNMENT OF GUJARAT