Exclusive: Role of Judiciary and Bar in making a just and inclusive Society : Chief Justice TS Thakur [Nalsar Convocation Speech]
This is the Full Text of Nalsar University of Law Convocation Speech delivered by Chief Justice of India Justice TS Thakur on 6th August 2016
Shri Ramesh Ranganathan, Acting Chief Justice of High Court of Judicature at Hyderabad and the Chancellor. Prof. Faizan Mustafa, the Vice Chancellor. Esteemed Members of the Governing Bodies of the University, Eminent Faculty, Dear Guests, Parents and Graduating Students.
I am extremely happy to have been invited to deliver the Fourteenth Annual Convocation Address of the NALSAR University of Law, Hyderabad. Convocations are solemn occasions for the University and the graduating students alike. It is an occasion which is celebrated by the teachers and the taught as much as by the University and the parents. I would add a special word of congratulation to those who have been adjudged worthy of receiving awards and medals for their outstanding performance. I would also take this opportunity to extend my greetings to the proud parents who treasure the memories of this day.
A Convocation Address on an occasion like this is often used to reflect on some subtle thought or higher value of life that is driving force for the success of an individual or society. I propose to talk to you about the constitutional vision of an ‘Inclusive India’ and our efforts to architect a just and inclusive society, which ensures an equal participation of all sections and groups in the governance of our economy and polity and in the fruits of social and economic development in the country.
As India attained freedom, the framers of the Constitution sought to unite the vast country with its great diversity of languages and creeds within a common bond of constitutional justice based on the great ideals of liberty, equality, fraternity and justice. Speaking of the imperatives of inclusive democracy, Dr. Ambedkar said:
“It was, indeed, a way of life, which recognizes liberty, equality and fraternity as the principles of life and which cannot be divorced from each other: liberty cannot be divorced from equality; equality cannot be divorced from liberty. Nor can liberty and equality be divorced from fraternity. Without equality, liberty would produce the supremacy of the few over the many. Equality without liberty would kill individual initiative. Without fraternity, liberty and equality could not become a natural course of things.”
Indian Constitution which enshrines the values of liberty, equality and fraternity is thus a unique testament that recognises the above values avowed objective placed at the top of the normative pyramid. It determines its commitments and orientations. It echoes the past, lays the foundation for the present and determines how the future will look. It is philosophy, politics, society, and law combined together for making a just and inclusive society.
The world Summit for Social Development (March 1995), established the concept of social integration to create an inclusive society, “a society for all” as one of the key goals of social development. Following this, significant policy commitments were made in the Millennium Declaration (2000) which subsumes social integration in its synthesis of peace, security, development, human rights and further embodies social inclusion principles as well as the objectives and goals set out by international community in previous UN Conferences.
How to make the concept of a just and inclusive society operational, in the face of resistance to change is the question. It is a formidable challenge for policy makers and social scientists to find ways and means to promote an inspirational yet realistic set of policy measures geared towards a “society for all”. This requires a paradigm shift so as to recognize the dignity, value and importance of each individual, not only as a moral imperative, but also as a legal principle, a societal goal and eventually, a practice. No human being should be fated to undergo a miserable life as a result of his or her class, country, religious affiliation, ethnic background or gender. Protection in terms of upholding human rights, and accountability in terms of upholding the rule of law are conditions precedent for a just and inclusive society. These projected goals entail a legislative frameworks-backed by international law standards and informed by public engagement; competent, inclusive, accountable and transparent institutions to implement the laws; accessible, fair and transparent dispute-resolution mechanisms and vigilant and empowered civil society to claim its rights to resources and services and to demand accountability of those responsible for the execution.
Making Just and Inclusive Society: The Role of Judiciary
Amongst all the stakeholders of legal system, Judiciary, being the guardian of fundamental rights, has internalized its obligation and has played a prodigious role in ensuring just and inclusive society—whether it be—human rights which include right to shelter, social security, right to adequate nutrition, clothing; gender justice; education, protection of minorities and more prominently limits on the powers of the Parliament and governments to meddle with the basic tenets of the Constitution. Justices may occasionally fail to do so but failing systematically to translate high judicial power into a fiduciary power (as a form of social trust), would fade the very idea of constitutional India.
Creation of Epistolary Jurisdiction
The Supreme Court has issued a range of commands for law enforcement agencies in order to develop a social trust in society. The Court designed a new epistolary jurisdiction (a process where citizens may write letters to apex court which stand treated as writ petitions for the enforcement of fundamental rights). The seeds of this jurisdiction were initially sown by Krishna Iyer J., in Mumbai Kamgar Sabha vs. Abdul Thai (AIR 1976 SC 1455) followed in Akhil Bharatiya Shoshit Karmachari Sangh v. Union of India (AIR 1981 SC 298), wherein an unregistered association of workers was permitted to institute a writ petition under Art. 32 of the Constitution for the redressal of common grievances. Krishna lyer J., articulated the reasons for relaxing of the rule of Locus Standi in Fertilizer Corporation Kamgar Union v. Union of India (AIR 1981 SC 344) and finally this concept was formally engrained in S.P. Gupta v. Union of India, (AIR 1982 SC 149) where this court observed:
‘‘Where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right . . . and such person or determinate class of persons is by reasons of poverty, helplessness, or disability or socially or economically disadvantaged position, unable to approach the Court for any relief, any member of the public can maintain an application for an appropriate direction, order or writ.’’
The Supreme Court not merely liberalized the concept of standing but drastically democratized it. No longer is it important to show that one’s fundamental rights are affected to move the Supreme Court or the High Courts, but it remains adequate to show that one argues for the violations of the worst-off Indian citizens and persons within India’s jurisdiction. Concern for human rights has provoked a creative partnership between active citizens and the judiciary.
Constitutionalizing Social and Economic Rights
In the debate over bundling of rights into Part III (civil and political rights) and Part IV (the social and economic rights called Directive Principles), the framers of the Constitution battled enormously to endorse a wish list for Part IV rights, leading T.T. Krishnamachari to caution the Constituent Assembly not to convert the Indian ‘social revolution into a dustbin’ (See Austin, 1966; Baxi, 1967). The judicial contribution towards synthesis and integration of the Fundamental Rights and Directive Principles in the process of “constitutionalizing social and economic rights” has been vital to the comprehension of Directive Principles not only as a means to effectuate Fundamental Rights but also as a source of laws for a welfare state. Right to livelihood in Olga Tellis, right to live with human dignity in PUDR v. Union of India, right to a balanced and sustainable economic development in Banwansi Sewa Ashram v. State of U.P.; right to health in Vincent v India, right to education in Mohini Jain and Unni Krishnan, and right to food in P.U.C.L. v. Union of India shall always be cherished. While upholding the importance of right to decent environment and a reasonable accommodation, this court in Shantistar Builders v. Narayan Khimalal Totame AIR 1990 SC 630 held that:
“The right to life would take within its sweep the right to food, the right to clothing, the right to decent environment and a reasonable accommodation to live in. The difference between the need of an animal and a human being for shelter has to be kept in view. For the animal it is the bare protection of the body, for a human being it has to be a suitable accommodation which would allow him to grow in every aspect – physical, mental and intellectual. The Constitution aims at ensuring fuller development of every child. That would be possible only if the child is in a proper home. It is not necessary that every citizen must be ensured of living in a well-built comfortable house but a reasonable home particularly for people in India can even be mud-built thatched house or a mud-built fireproof accommodation.”
Constitutional Secularism and Protection of Minorities
The constitution was written proximate to the holocaust of the Partition. No wonder that a Judiciary that serves a pluralistic society has broadened the horizons of rights of cultural, religious and educational minorities wherein rights have now acquired the visage of near-absolute rights. Secularism was declared as one of the basic features of the constitution in famous S. R. Bommai Case where this Court stated that India has always been a land of many faiths, castes and cultures, which have existed together due to a tradition of “tolerance and fraternity. Fraternity is thus prior in point of time and evolution than secularism but secularism is the “bastion to build fraternity” for the achievement of national fidelity and progress within the constitutional framework which seeks to accomplish the dignity of individuals along with the amity of groups. Fraternity is basic to national integration and rule of law is the preferred device of resolving diverse conflicts and social problems and fostering fraternity while “transcending social, religious, linguistic or regional barriers.”
Constitutional secularism provides to all citizens an equal right to freedom of religious belief and practice. Indian judiciary over the years, has construed non-discrimination on the grounds of ‘untouchability’ as inclusive of right to access to the sanctum sanctorum in places of worship. Having said that we cannot forget that India had an acrimonious historical past as far as its marginalized classes are concerned. The SCs, STs or OBCs are not able to get out of the manacles of the past. In furtherance of constitutional vision of equality before law compatible with equal opportunity of access and outcome, the judiciary in India has contributed evocatively to ensure that the imperceptible marginalized classes of our society are included in the ornate landscape of the mainstream socio-political matrix of the country. While upholding the protective discrimination constitutionally valid, this court fixed the numerical quotas for access to education and state employment, not just for the SCs, STs and but also for socially and educationally backward classes and ‘other backward classes.’ The Supreme Court has also found it essential both to limit the overall quotas to no more than 50% and to gradually eliminate the creamy layers in order to sustain the efficiency of administration.
Protection of Life and Liberty of Non-Citizens
Indian judiciary has not confined its shielding umbrella to its citizens only but it has extended constitutional protection of life and liberty to non-citizens as well. The Supreme Court in State of Arunachal Pradesh v. Khudiram Chakma [1994 Supp. (1) SCC 615] held that protection of Art. 14 and Art. 21 encompasses extra-terrestrials too within its purview. This Court restrained the forcible expulsion of Chakma refugees from the state and directed the state government to ensure that the Chakmas situated in its territory are not ousted by any coercive action that is not in accordance with the law. And any attempt to forcibly evict or drive them out of the state by organized groups should be repelled by using paramilitary or police force. This decision of Supreme Court is noteworthy considering the fact that India is not a party to International Convention on the Status of Refugees.
Making of Just and Inclusive Society: Role of Indian Bar
The Bar and Bench constitutes the two wheels of the chariot of justice. The success of the judicial process often depends on the dynamic relationship of co-operation between the two. As rightly observed by Lord Denning:
“It is a mistake to suppose that he is the mouth piece of his client so say what he wants, or his tool to do what he directs. He is none of these things. He owes allegiance to a higher cause. It is the cause of truth and justice.”
While judiciary has played a pivotal role in building a society for all, Indian Bar too has a glorious history in this regard. As integral part of justice delivery system, lawyers in our country have historically and generously contributed to cause of justice -- whether it was the struggle for Independence, the framing of our Constitution or governance. The Bar Associations of country has a larger objective beyond the furtherance of professional interests. It aims at promoting public and national welfare in manifold directions and upholding the constitution and rule of law. The Supreme Court in All India Judges Association v. Union of India observed that the administration of justice and the part played by the advocates in the system must be looked into from the point of view of litigant public; the right to life and personal liberty (guaranteed under Article 21) and right to grant legal aid (as contemplated under Art. 39A of the Constitution). The facet of an advocate’s role as a public servant is meticulously tied to the key role he plays in the developmental and dispute resolution process and above all “in the building up of a just society and constitutional order.”
I am glad to learn that NALSAR University is under the dynamic leadership of its spirited Vice-Chancellor, Prof. Faizan Mustafa, making efforts to diversify the curriculum by offering more electives which allow students to delve deep into specialized topics with faculty members who are at the forefront of innovation in their fields. NALSAR’s innovative MBA programmes in Court Management and Sustainability Management and post-graduate degrees in Aviation and Telecommunication Laws will be a motivation for other law universities to make similar innovations. I congratulate the Vice-Chancellor and all the eminent faculty members for their commitment and hard work.
Finally, I would like to advice all graduating students before you leave this prestigious institution that, legal profession is indisputably great but not swift. The Gandhian dream of Self- Rule and Antyodaya can be attained only when the life of the last person in the society is also touched. The Father of the Nation, used to say in his morning prayer: 'O God! Enable me in taking first step in right direction, the rest will follow.
My dear students, it is a collective duty of all the stake holders of legal system including all of you to capture this dream of the Father of the nation. I am sure that each one of you would glow and will serve the humanity in a best possible way. My best wishes to all graduating students. I would like to conclude my address with the inspiring lines of Rabindranath Tagore's Geetanjali:
"Where the mind is led forward by thee;
Into ever widening thought and action.
Into that heaven of freedom, my father,
Let my country awake..."