'Law Must Not Only Be Validly Framed, It Must Have The Moral Authority To Rule': Tripura HC Chief Justice Akil Kureshi

Speaking on the influence of Gandhian principles in law, Justice Akil Kureshi, Chief Justice of the Tripura High Court stated on Saturday, "Law must not only be validly framed but must also be a just law. The very concept of justness is inbuilt in every sphere of law." Justice Kureshi was speaking in a webinar on 'Gandhian Influence on Law' – organised by the Delhi High Court Women Lawyers' Forum in association with LiveLaw on the occasion of Gandhi Jayanti. Narrating how Mahatma Gandhi had pleaded guilty of sedition charges in 1922, Justice Kureshi said, "Gandhiji challenged the might of the empire only through one principle, that law itself is not enough. It must have the moral authority to rule." He further stated that one of the two contemporary examples of this idea of law that has been imbibed in our legal system is the evolution of the principle of 'manifest arbitrariness' by former Supreme Court judge, Justice Rohinton Nariman as the third element of challenge to the constitutionality of a legislation. Before 2017, there were only two qualifications for laws to pass the constitutionality test- whether the Parliament has the legislative competence to enact such a law and whether the law violates any of the fundamental rights or any other constitutional provision. However, a third i.e. whether the law is manifestly arbitrary was added in 2017. The principle of 'manifest arbitrariness' was first used by Justice Nariman in 2017 to strike down the practice of triple talaq. Consequently, the principle has been used consistently by the Supreme Court. For instance, homosexuality as well as adultery were both decriminalised for being manifestly arbitrary. Another example of Gandhian influence on the legal system is former American Supreme Court Justice Benjamin Cardozo's advocacy of the pragmatic approach to law. "He always advocated the pragmatic approach to judging, do not just go by the letter of the law. The final cause of law's very existence is the well-being of the society", Justice Kureshi said referring to Justice Cardozo. Lessons to be learnt from Gandhiji's practice as a lawyer Speaking on the lessons that can be imbibed by emulating Mahatma Gandhi's practice as a lawyer, Justice Kureshi stated, "At all stages he realized that he did not have enough knowledge or experience. When he came back from England and started his practice as a lawyer, he had no idea of Indian laws. He realized that cross examination of witnesses is the most important skill that a trial lawyer must have." Justice Kureshi further pointed out that Gandhiji always empahsised on the importance of facts in any case in order to truly honour the delivery of justice. "He was of the opinion that facts cannot be divested from law in any case. Every case rests on its perspective and as he pointed out he always put enormous importance on facts. In one case he said, that equity is in favour of his client, the law is against him. He paid homage to all facts until he brought about a convergence between justice and law", he stated. Opining on Gandhiji's belief in the power of persuasion and negotiation, Justice Kureshi stated that for Gandhiji both in his capacity as a freedom fighter or as a lawyer, any form of combat was always the last resort. "For him, either as a lawyer or as a freedom fighter, taking up a fight or a battle was always a matter of last resort. He continuously tried negotiation, persuasion, conciliation on and off the record till all doors were shut, he only then went for a fight and a battle", he opined. The other important virtue that Gandhiji practiced even as a lawyer was an adherence to human values. "He was truthful to his client, when he did not know the law, he always came clean. He never held an inconvenient fact back from the Court. He was fair to his opponents and above all he was always truthful..", Justice Kureshi enumerated further. He further remarked that over time, Gandhiji's belief in law as a tool to bring about social change started to wane. Gandhiji realized that law was being used as a 'tool' to subjugate the Indian population both in South Africa as well as in India. Thereafter, the principle of Satyagraha or peaceful resistance was embraced by Gandhiji. Great Trial of 1922- An insight into Gandhiji's philosophyJustice Kureshi made a reference to the sedition proceedings that were initiated against Mahatma Gandhi and Shankarlal Ghelabhai Banker (publisher) under Section 124A of the Indian Penal Code for their articles in Young India in the wake of the Chauri Chaura incident and the Jallianwala Bagh massacre. The trial which lasted for only a day had taken place on March 18, 1922 before C. N. Broomfield, District and Sessions Judge, Ahmedabad, Referring to the speech of Mahatma Gandhi, Justice Kureshi pointed out that the speech was completely extempore and is one of the greatest speeches of a century. He then proceeded to read certain excerpts from the...

'Law Must Not Only Be Validly Framed, It Must Have The Moral Authority To Rule': Tripura HC Chief Justice Akil Kureshi

Aaratrika Bhaumik

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