Law: Fulcrum of Change?

Justice D.M. Dharmadhikari

Every family for maintaining harmonious relationship amongst its members makes efforts and even sacrifices by conducting their life in a regulated way. In Indian culture we lay emphasis on the need of nurturing from childhood “Sanskars”. Similarly every society for harmonious and peaceful existence needs socially acceptable moral Code of Conduct. The history of human civilization shows that the society was initially regulated by self-made morals and in course of time, by religious preaching of Saints and Rishis which are recorded in our religious books. In ancient India there was no written law to bind the members of the society and regulate human relationship. It is only when the society came to be ruled by Monarchs or elected governments that necessity arose of written laws. Even in some of the monarchies like Britain, government functions more on traditions and precedents. In Britain there is no Written Constitution to regulate governmental affairs. Law, therefore, cannot be considered to be a compulsion for a civil society. If members of a society have “Sanskars” nurtured and followed by its members, traditions and customs of the society partake the character of laws. Even written laws of today only incorporate socially acceptable traditions, customs and Moral Code of conduct. To combat deviation from the acceptable social norms, laws are required to take corrective, remedial and if necessary punitive measures. Law is a mirror to society and its ideals. Famous American Judge “Benjamin N Cardozo” describes law thus: “Law is, indeed, an historical growth, for it is an expression of customary morality which develops silently and unconsciously from one age to another………… Law is also a conscious or purposed growth…….”

If the written laws are highly idealistic and do not match the realities of the society, (then) successful implementation of such laws, becomes an onerous task. Sometimes the situation of conflict arises between people and government and the judiciary has to tone down the law. Law, thus, is only to help the society to chalk out its path of progress. Law in itself has no potentiality to change the society. If we import laws from outside India and try to implement them, Indian people may not accept and obey such laws. Law can become a Fulcrum of Change only when the members of the society, for whom it is meant, are willing to accept and obey the law. Today, India has host of laws but its very little implementation. There are agencies and professions to find out ways and means to avoid the law-nay- break it. A culture of disrespect and defiance towards law is growing in our society. The law must keep pace with the society and should be such as to command respect. If the law is over-idealistic and the society has not come up to the laws’ expectations, situation of intermittent conflicts would continue to afflict the society.

Majority of Nations in the world are democratic and all of them claim that they are governed by Rule of Law. In major democracies in the world, governmental power and relationship of individuals with government are regulated by written constitution of that country which is considered as supreme law of that land. The difference between a constitutional democracy and any other form of democracy is that in the former, the Constitution is the supreme law and all laws made by the legislature of that country have to conform to the Constitution. The judiciary of that country is empowered to declare the laws invalid to the extent they are in conflict with the Constitution of that country. The other characteristic of Constitutional Democracy is that no governmental organ (legislature, executive and judiciary) can claim superiority over the other. The three organs of the government have separate constitutional duties allotted to them respectively of making laws, implementing them and delivering justice. If any of the organs fails to discharge its allotted duties or deviates or infringes the rights of citizens, the judiciary, as the third organ, has been assigned the power to control the other organs. The renowned Jurist “Montesquieu” has recommended clear “Separation of Power” between the three organs but American Legal Theory of “Checks and Balances” has been found more suited to the Indian Constitutional structure. We have, therefore, in our Constitution, given power to the judiciary to protect fundamental rights of the citizens, to declare laws, not in conformity with the constitution, as illegal and invalid and where there is found to be a gap or void in law on issues concerning fundamental freedoms, to itself become a source of law in the interregnum till the legislature makes a law on the subject to fully or partially cover the legislative field.

India is committed by its constitution to provide to its people, Constitutional Justice. “Constitutional Justice” means governmental power is limited by constitutional norms and that procedures are designed and institutions are created to enforce such limitations.

In the recent past, there has been so much of criticism on the alleged over-reach or over-activism of the judiciary. The criticism definitely gives a warning to the judiciary not to over-step in the constitutional field of other two organs and enter into areas of policy of governance. Nonetheless, on the theory of ‘Checks and Balances’, elected body “Legislature’ and appointed body ‘Executive’ need to be controlled, based on constitutional norms, by a non-elected and non-political body like the Judiciary which comprise selected men well-versed in law and Constitution. The constitution is basic law and “has to be shielded from the whims of passing majority”. An effective control of the political branches must be a controll from out-side and it must be entrusted to persons and agencies sufficiently independent from those to be controlled.

The eminent Jurist and expert on ‘Comparative Judicial Process in his well-known book on the subject opines:

“Infallibility of Parliamentary law is an illusion for even the legislature not only the administrative branch, might abuse its power- the legislature might be made subservient to uncontrolled political power; the legislature and most majoritarian tyrannies can be no-less oppressive than executive tyranny.”

“In our age of statutes, the control by an independent judiciary of a more and more pervasive Legislature, whose role in the modern state has grown to unprecedented dimension, is a valuable safeguard; indeed such control is a necessary “crowning” of the Rule of law. True, the legislature in the democratic society is the representative of and accountable to the people, where as it belongs to the very nature of the judicial function that judge shall not be so accountable. The paradox entrusting non-accountability judge with the function of controlling accountable legislature is merely apparent. In our society, judges are not accountable only in the sense that they are not and shall not be held answerable to the other branches or to the people for their individual decisions and philosophy. Their non-accountability however holds only in the short and medium term. There are many ties which, in the long term, at least connect them with their time and society. In the modern society, the roles of political branches have grown into so many areas of our life, as is indeed inevitable. The scrutiny of a more “detached” though not literally “separated” judiciary can be of most salutary. Values which are more enduring can be better preserved: individuals and groups that would be otherwise emarginated or oppressed can be better protected; and more generally the fairness and the permanent representativeness of the political process itself can be better assured. The democratic principle requires that everyone have a voice in the political process and that it be possible for minority of today to become majority of tomorrow. If the basic rights such as the freedom of speech, of opinion, of association could be limited, without due process, by the majority of today, the very democratic principle would be impaired, and this is no-less true for the new rights of a social and economic nature, for their rationale is to make effective, the most basic of all democratic entitlements- the right of access to legal and political system. Thus, constitutional justice far from being inherently anti-democratic and anti-majoritarian emerges as a pivotal instrument for shielding the democratic and majoritarian principles from the risk of corruption. Our democratic ideal, at any rate is not one in which majoritarian will is omnipotent and our philosophy life is not one in which everything can be bargained.”

In a constitutional democracy judiciary has a primary role to control the functions of other two organs of the government. In addition, the internationally acclaimed and enforceable human rights are now required to be upheld and enforced as supplemental inherent human rights and part of the fundamental rights guaranteed by the constitution. The judiciary of today, therefore, has a transnational character in protecting human rights of all individuals including the citizens of the country. The unprecedented expansion of judicial control of the political branches is the primary facet of this human right revolution. “The International Human Society now requires tolerance and mutual respect. A human right philosophy will alone enable us to make decent use of the tremendous material power that we have acquired. Human values are such which cannot be compromised and it requires constitutional force and transnational adjudicator to incorporate and sort out those basic human values. In the absence of judicial control, the political power is more easily exposed to the risk of perversion. The judicial control, of course, is no infallible remedy because sometimes it is proved to be too weak to resist tyranny (as was the experience of India during emergency) but if not, an invincible bulwark however it may at least act as a warning and a restraint. There is always, even above the constitutional law or a written transnational law, an immutable unwritten higher law rooted in nature or reason which is more precious and deserves to be zealously guarded against a passing law written by a particular legislature at a given time. The law, therefore, should reinforce the freedom of the citizens and if it does so, it will reinforce the democracy as well.” – (Judicial Process in Comparative Perspective by Mauro Cappelletti pages 208-211)

In the back ground of the above basic legal philosophy, we have to judge whether the laws of this country have been able to uphold basic human values and human freedoms of the citizens and non-citizens in this country. The country is currently passing through turmoil. Those in power are accused of corruption. There are scams and corruption scandals over which there are uproars in the parliament. No effective legal structure to combat corruption has yet been set in place for action.

At a time when country attained independence it had before it two major problems of integration of Kashmir and North-East States. Those problems continue to dodge us and are sources of continuous social conflicts. There are no signs of their solution in the near future regardless of the color of political party which might come to power. The security of nation is threatened by Terrorism and Naxalism. The human rights of people are violated by these violent activities and people need protection. They have assumed status of international issues and yet remain unresolved. The conviction and sentences of death imposed on terrorists by the highest court of the country remain unexecuted for unknown reasons. Rule of Law is not respected.

The Indian Constitution has kept an ideal before the nation to work towards formation of a casteless and classless society on the principle of equality between citizens regarding their rights and obligations. The policy of reservation, initially to remain in force for 10 years, could not be discontinued even after 65 years and it is now being extended to promotions. No effective efforts have been made to uplift the quality of life of SCs/STs and OBCs. Perpetual continuance of reservation policy is a great hurdle in the march towards the goal of formation of a classless and casteless society. In fact it shows a contradiction in constitutional philosophy and legislative action. It is breeding ill-will and conflict between members of various sections of the Indian Society.

Constitution recommends a Uniform Civil Code to govern all citizens of the country regardless of their differences of religion, caste and community. No effort has been made in the direction of even creating a climate for uniform Civil Code. Disparities in personal laws exist to the extent that members of various sections of multi-religious society, particularly women and children are deprived of basic human rights.

Instead of encouraging Hindi, recognized in the Constitution as a national language, States have been formed on linguistic basis. Even today after 65 years of independence, India is unable to function officially and unofficially without the use of English Language.

The Constitution does not recognize necessity of political parties for democratic governance. There is no mention of political party in the Constitution. Political parties are only recognized and mentioned in the Election Law. The Constitution envisages that elections can take place and governments can be formed at the State and National level even if the candidates at the elections do not belong to any political party. Culture of mixed party or coalition government has started long back in which some-times on the basis of sheer number game, a political party backed by handful of elected candidate, obtains balancing power to wield pressure and dominates the entire governmental policy. This is a perversion of democratic process, because in coalition government, even a party which does not represent majority of people, gets chance to exercise decisive power in chalking out the policy of the government. In mixed governments, sometimes laws are made only to suit a particular party in the coalition. People feel helpless. It is high time that Constitution be suitably amended to empower the President, in the event of no party gaining absolute majority, to form a National Government on the basis of nominations from amongst elected candidates of each of the political parties.

The present scenario of democracy however is not completely pessimistic. Despite all odds, the people of India cherish and realize the value of fundamental freedoms and for that purpose necessity of maintaining a constitutional democracy. India is also witnessing more and more participation in the political process and policy making of civil society and intellectuals. The public participation and proactive role of non-governmental organizations is a ray of hope that people of this country would in no case tolerate despotism and tyranny. It is through the democratic process, that people of India can struggle and protect their fundamental freedoms. The people of this country have also realized that Constitution and Laws howsoever perfect and ideal, are not enough to preserve democracy and human rights of the people. It is necessary to inculcate moral and human values by building national character for sustaining democratic institutions.

(Author is Former Judge, Supreme Court of India)
[Excerpts of Speech presented on the inauguration of THINK INDIA SUMMIT 'Law;Fulcrum of Change?' in NITTTR Bhopal Campus on 6 & 7 October 2012]