JUSTICE
J.K.MATHUR MEMORAIL LECTURE BY
JUSTICE ALTAMAS KABIR
Chief Justice CK Prasadji , Justice
Kant, Mr Alok Mathur , Vice Chancellor
of this law school and university the members of the judiciary both sitting
Judges as well as Judges from the past the lovely ladies students and dear
friends coming here for this particular occasion by the sentiments which had
developed when Justice JK Mathur in whose memory this memorial lecture is to be
held was in Calcutta briefly, I come from Calcutta and was judge of Calcutta
High Court at that point of time when Justice Mathur came to Calcutta, that was
in 1994 and when his son Mr Alok Mathur asked me to come that particular
sentiment and association prevailed and I could not say no apart from the fact
that Lucknow is a city that has always been
interest to me. Before going to the topic of the lecture just let us
think over a few minutes about Justice Mathur’s life and achievements. My
memories of him go back to about 15 years, had been a judge for about four years.
I did not know that one day I would be here in Lucknow to address a memorial
lecture in his memory. Excellent gentlemen very unassuming but within that one
year he won the hearts of all of as there in Calcutta because of his simplicity and
the way in which he would conduct himself. We all knew about
his abilities as a jurist, we all knew that he was an author we all knew that
he had written a number of books and at that point of time possibly he was
editing the book on criminal law of P. Ramanatha Aiyar and we came to know him
with that respect. I am told that he joined the judicial service some time in
1959 and thereafter he was into various activities and various things but
basically academic in nature he was in the prestigious Administration College at
Mussoorie, then he became a judge of the High Court in 1990 , I too was
elevated in the same year and then he came to Calcutta and retired in 1995 and
came back here and then we heard about his death in February 2000.It was with
mixed feelings that we received the information about the news about his
passing.
As I said yesterday at another kind of
a memorial service you could say, a man's greatness can be measured not only by
what he does in his lifetime what all achievements he may have had while he is
actually doing something while in office it is more in the memory of a person
after he pass after he goes, and nine years is a long time after a person goes,
and for nine years his memories has been kept alive and there are people who
remember him with fondness. All I can say is that I am extremely grateful to
J.K.Mathur Trust to have invited me this afternoon to address you on a topic on
which I am certain would also have been dear to Justice Mathur ‘s heart, the
type of
man that he was as I remember him.
Today I stand in from a few not as a
judge of the Supreme Court I stand in front of you as a citizen of this country
looking at the Constitution which was adopted as far back as the on 26th of
November 1949 he became effective on 26th January, 1950. The Constitution was
adopted by we the people
of India on the 26th of November 1949 and with what aspirations and with what
dreams and the people of India the people of India adopt the Constitution of
India. The preamble says it all Had a
Chief Justice CK Prasadji Justice Kant Mr Alok Mathur Vice Chancellor of this
law school and university the members of the judiciary both sitting Judges as
well as Judges from the past the lovely ladies students and dear friends coming
here for this particular occasion by the sentiments which had developed when
Justice JK Mathur in whose memory this memorial lecture is to be held was in
Calcutta briefly, I come from Calcutta and was judge of Calcutta High Court at
that point of time when Justice Mathur came to Calcutta, that was in 1994 and
when his son Mr Alok Mathur asked me to come that particular sentiment and
association prevailed and I could not say no apart from the fact that Lucknow
is a city that has always been interest
to me. Before going to the topic of the lecture just let us think over a few
minutes about Justice Mathur's life and achievements. My memories of him go
back to about 15 years, had been a judge for about four years. I did not know
that one day I would be here in Lucknow to address a memorial lecture in his
memory. Excellent gentlemen very unassuming but within that one year he won the
hearts of all of as there in Calcutta because of his simplicity and the way
in which he would conduct himself. We all knew about
his abilities as a jurist, we all knew that he was an author we all knew that
he had written a number of books and at that point of time possibly he was
editing the book on criminal law of P. Ramanatha Aiyar and we came to know him
with that respect. I am told that he joined the judicial service of sometime in
1959 and thereafter he was into various activities and various things but
basically academic in nature he was in the prestigious Administration College
at Mussoorie, then he became a judge of the High Court in 1990, I too was
elevated in the same year and then he came to Calcutta and retired in 1995 and
came back here and then we heard about his death in February 2000. It was with
mixed feelings that we received the information about the news about his
passing.
As I said yesterday at another kind of
a memorial service you could say, a man's greatness can be measured not only by
what he does in his lifetime what all achievements he may have had while he is
actually doing something while in office it is more in the memory of a person after
he pass after he goes, and nine years is a long time after a person goes, and
for nine years his memories has been kept alive and there are people who
remember him with fondness. All I can say is that I am extremely grateful to
J.K.Mathur trusts to have invited me this afternoon to address you on a topic
on which I am certain would also have been dear to Justice Mathur 's heart the
type of man that he was as I remember
him.
Today I stand in from a few not as a
judge of the Supreme Court I stand in front of you as a citizen of this country
looking at the Constitution which was adopted as far back as the on 26th of
November 1949 he became effective on 26th January, 1950. The Constitution was
adopted by we the people
of India on the 26th of November 1949 and with what aspirations and with what
dreams and the people of India the people of India adopt the Constitution of
India. The preamble says it all sees it all but at least tried to say it all
until it required an amendment and certain expressions were introduced into the
preamble by the 42nd amendment. If the
just briefly I have brought a copy of the Constitution with me because
sometimes we tend to forget what exactly is the preamble. Because the preamble
according to me is the soul of the Constitution itself it tells us what exactly
the Constitution was meant to be what it meant to achieve what are its
objects. Initially it read” we the
people of India having solemnly resolved to constitute India into a sovereign
democratic Republic and to secure to it all its citizens Justice, and what kind
of justice social economic and political, it is a wide term in which everything
was sought to be included liberty of thought ,expression ,belief ,faith and
worship. The equality of status and of opportunity and to promote among them
all fraternity ensuring the dignity of individual and unity and integrity of
the nation the latter part unity and integrity of the nation came later by the
42nd amendment. Now we the people the citizens
of the country gave to ourselves this Constitution. Today what is the position
with regard to
Justice social economic and political what is the position today of liberty of
thought in expression and belief faith and worship the equality of status and
of opportunity Justice Pradeep Kant in fact if he had an opportunity possibly
be would have got into the matter in greater detail but he did touch upon
almost all aspects of what a citizen had aspired for and what in reality we
have with us today after 60 years. Of
course it has also been said by the Chief Justice that 60 years in a man's life
is a long time but in the life of a nation 60 years is not much maybe that is
correct and maybe it is a kind of relative way of thinking, but 60 years is
also a long time to see that at least some of these goals are achieved have
been gone forward of the gone backward are we in a state of the status quo are
we in a state of limbo. It is a time for
introspection. All of us are aware of
what is happening around the country today.
This country was meant to be a federal institution with unity of states
and union of states in spite of this have we really achieved, what we wanted to
achieved in the country what are the state of affairs Justice Kant very briefly
touched upon it the freedom of movement he spoke of the fundamental right which
is guaranteed but have we been able to implement it. A person has freedom of
right to go or move
anywhere but there are a situation prevailing all around the country where that
fundamental right is not being allowed to lay its hands on is that going
forward a moving backwards where are we?
What are we doing about it? I talk as a citizen of India and not as a
judge of Supreme Court of India.
As the framers of the Constitution led
by Dr Ambedkar very wisely did the largest written constitution of world and
covered almost all aspects of governance of even day to day living and almost
everything is covered and yet today we are in a state where we seem to be
floundering and wandering around not knowing where to turn. The rights are there
fundamental rights,
human rights and basic rights. During this period after India became
independent and the adoption of the constitution one other very important event
which today has great impact all over the world. On 10th of Dec 1948
the United Nations at its general assembly meeting in Paris adopted the
universal declaration of human rights. I don’t know how many of you are aware
of all the articles contained in the declaration, as judges most of us are. The
first article deals with equality. The first article deals with the fact that
all men are born equal. What is the first effective fundamental right in our
constitution in part three?
Article 14 i.e. equality.
How far have we been able to achieve
this equality? These are the little thought provoking things that a citizen has
to think about. Even today the family and the social structure is such that we
have not been able to achieve that goal. We have pronounced judgments on the
aspects of this article 14; article 16; but in reality I think it is still a
very far cry. All of you are aware of article 15, 16, 19 and 21 which again was
touch upon, on which I was come back later but the fathers of our constitution
divided part three and part four knowingly. The reason being as far as I can
say is that certain rights are fundamental, that means the citizen has the
right to do certain things but there are certain rights which are basic in
nature, certain rights which are natural rights and those rights have been
included not as rights but as guidance given to the governments to frame laws
to implement those human rights. A man cannot live without food, can he? Food
it cannot be exactly a fundamental right, it is a basic human right and in
order to live he needs food. Fresh air to breathe in; these are basic human
rights. Now these have been included in part four as directive principles of
state policy and that has been done only with this idea in mind that it may not
always be possible to turn these into fundamental rights which are guaranteed and
which the state has to provide. Chief justice just now pointed out that our
constitution is rather one of the exceptional constitutions of the world where
right to enforce a Fundamental Right is itself a Fundamental Right. Article 32
of the constitution is a right guaranteed to a citizen to see that his
fundamental rights are enforced. That is of course restricted to Supreme Court
and only for the purpose of enforcing fundamental rights. The High Courts have
much wider powers under article 226 and these are the powers which today make
the Indian judiciary the strongest and most independent judiciary of the world.
It is not the power that the judiciary has taken upon itself. It is the power
which has been vested in them by “we the people” who adopted the constitution
on 26th Nov 1949, which means that the people of India felt that if
anybody who is there to guard against excessive arbitrariness, it is the
judiciary. It trusted the judiciary and it trusted the judiciary in specific
which the people herein do today. I for one, I am an optimist and I don’t look
pessimistically the things which have
been said about the judiciary and off late various things have been magnified.
People, there are lobbies and sections which have some interest in doing what
they are doing but it being one the three pillars of the constitution the faith
of we the citizens, the common man, is still there I would say almost to
hundred percent on the judiciary. Who else can they turn to, if they have to
face problem, who else can they turn to, but the judiciary. The faith of the
common man in this institution, the day it goes I think it will be a sorry day
for this democracy. Why am I saying all this? I am saying all this because now
I switch roles and I come back to the role of Jude. As judges and those who are
at the opposite side of the fence, the advocates, all of us have the equal
responsibility to see that the trust which have been vested in us is not
reduced and we can live up to the trust. In any organization there are black sheeps
but that does not mean that the entire organization is to be seen in the same
light. What are basic needs, what are the fundamental rights, what are the
things that a common citizen wants as a right, even if it is not a right he
wants food, he wants shelter, he wants clothing, he wants proper drinking
water, he wants proper education for his children. What is that which a human
being normally requires? This my personal view; I don’t whether you would agree
with me, we have progressed basically in the economic sphere, in the socio
economic sphere in a very strange manner, where about seventy percent of the
people of this country live a life of almost of poverty where they are unable
scrape two meals a day, in some cases not even one meal a day. In the same
country we talk about and we think about how many of our Indians are there in
the first ten persons of the Forbes list. Some of us talk about who are the
wealthiest people in the world, we Indians, two of us are there and we feel
very proud. Is that a thing to be proud about? Yes, certainly there are
avenues; there are ways in which people have to develop and once we take pride
in what we have achieved economically, industrially we have to be one of the
foremost industrial countries in the world but at the same time we cannot shut
our eyes for the rest of the 70 percent people of the country and if we do so,
then we are failing the people of the country. Going to the moon is all right,
nobody takes away the achievements of the scientists in doing so but at the
same time providing food to all is equally important, now I talk again as a
citizen. Have we been able to provide? Is this what we have wanted? These are
some of the basic problem that we face and these are some of the problems which
I would say require thinking by those who are in a position to influence
things.
Another thing which was spoken about
by Justice Kant was accumulation of large number of changes. This accumulation
of changes has to be made. It is not something which we can avoid but then we
get hope and confidence that the alternate mechanisms have been found and we
have to try and explore further. A common man wants his case to be heard as
quickly as possible. A citizen does not want to have the burden to come to
court over and over again. If things could be worked off quickly the citizen
would be the happiest. Apart from the fact that a lot of debate takes place,
time is spent; there is also a question of money involved. There is a saying; I
don’t know whether it is common all over India but in Bengal from where I come
there is a saying that by the time a person finishes with the…….
what he had wanted in
fact he had sold that also. There is nothing left, so what is the purpose. We
have been trying to encourage alternate dispute resolution mechanism such as
Lok Adalats. Lok Adalats were being held without any statutory sanction but
that was revoked in 1987 with the enactment of Legal Services and Authorities
Act, where the Lok Adalats and their orders were made equal to the decrees of
the civil court. A common citizen would prefer to have his case settled that
way; go there have the matter disposed with compromise if possible, either
negative or positive and that is the end of the matter. So pressure on the
appellate court is released. There are cases pending because of the provisions
of different articles. As a result of which there is a crisis of confidence but
we will have to handle these things in such a way so that we can lessen them.
You will be surprised and I think most of us know this that the no. of cases in
the trial court by the formation of tribunals have come down. It is more or
less in the higher court that this problem has arisen because of the pendency
of the matter. Various matter which were filed in front of civil court are now
being placed before various tribunals but coming back to the citizen and the
common man and what has been achieved by the constitution, what has been
achieved by the people who are there, who are responsible for giving effect to
the provisions of the constitutions. Not that there haven’t been developments,
there have been developments, one of the most important developments again as
talked by Justice Kant is the right to education. Right to education was never
a right as such except that there was one of the articles (article 45) which
said that the state was bound to provide free education up to the age of 16 but
that was amended and as far as I remember it was made 8 year or so. This lead
to the decision of the famous case in 1993, article 21(a) was thereafter
introduced to the constitution with 86th amendment. Unfortunately,
that amendment could not be enforced because there were no enactments made on
that basis and the enactment was made 16 years later when the education act got
a lot of fame but that act was introduced only after 16 years to make it a
fundamental right in reality. Now, education which the very basis of
development is fundamental right today and is to be enforced through the
enactment. Though it is a fundamental right how many people have actually
improved? People in the cities especially in the metro cities you will find the
little children at the traffic intersections running around trying to sell this
and that. Trying to juggle and show that art. Supreme Court thinks of taking
them and putting them into the school but in reality what do you do with these
people? These are things to think about. Why is it that the children are
running around at the roads and not in the schools? Why is it happening? It is
happening because of the family economic conditions. They are nothing but bread
earners. One of the justifications of having large families for the poor is
that each time born he or she became a potential bread earner. Are we willing
to take those children off the roads, resettle them and put them into schools?
What happens to those who are dependent on their income? Do we have schemes in
place to make things happen?
You talk about providing aid to old
people, old parents; just imagine the society where a law has to enacted where
a parent can demand maintenance from the children. We have amended our laws and
we have that law in place that a father or a mother can come forward and make
an application under the relevant provisions and call for maintenance from
their children, we needed a law for that.
Where is that attitude? The most important thing in my view is that in
order to the constitution work there has to more practical thinking, more
visionary thinking as to how to make things work. Simply passing laws is of no
use. I don’t know if any of have been to the tribes, I have had the good
fortune. I was briefly in Jharkhad for six months as a chief justice and I
don’t why I have this peculiar habit of wanting to meet people to know about
their problem, to try and find out what is causing problem to them so that we
could try and solve things in a way knowing what the other person wants.
Sitting in court and delivering judgments is good. We are required to do that
but as many people have said many times that a sensitive judge is a judge that
doesn’t stick to the particular seat. I have been to tribal areas. Out of the
24 districts of the tribal areas of Jharkhand at that time, now they have been
increased. I visited 20 of them. One of the main problems is the lack of
opportunities and there is no education as such. Today there are forest laws.
You remove something from the forest, you are charged under forest law. These
people have been living in forest all along. Now, we have laws which require
the forest to be protected but what about the people who are living of the
forest? You have dams coming up but people are going to be displaced. It is a
necessity for the purpose of irrigation, for the purpose of electricity and
hydro power all this is very necessary very important but what about the
importance of that common citizen who has been displaced. Judgments have been
delivered to this effect by the Supreme Court. It is not a matter of law; it is
a matter of social justice.
Let me just recall the small incident
which took place which doesn’t throw a very good light of neither of the
judiciary nor of the administration. A small incident when I was there in
Jharkhand. I say this only not to blame anybody but to make ourselves aware
that what can happen if you forget that there is somebody there forced to take
that attention. Just a small little example, I had happened to go to Hazaribagh
in connection with a Lok Adalat which was being held there, and with me was one
of very sensitive Judges, I wonder if you have heard of him Gentelman, Justice M.Y.Iqbal
whom I found to be a very sensitive Judge. He was with me. We went to Lok
Adalat moving on to different tables seeing what was happening .Suddenly while
going to one table we saw a little girl hardly about 12 or 13 years old
standing there, so we just stopped and asked “what has happened? Why are you
here?” she looked down and she was just at a foot. Her right foot was missing
and she had an Jaipur foot put up and the artificial foot was an odd site
because it must have been fixed at a point of time when she was at least four
or five years younger, and we asked her why you are here, she said my father is
behind me, then the father came forward and the told that his daughter had an
accident and we had filed a MACT case and it is going on and on and when we
heard about the Lok Adalat we have come here to see what is to be done. So we
asked what is happening here. He said our case is not being taken up today. I
said where do you come from? He said they came from a place called Ramghadh
which is in between Ranchi and Hazaribagh so I asked the person on the table
that was doing this case that MACT, why this little girl’s is not being taken
up? This why I talk about sensitivity,
they said they have not filed the memo of appearance in the correct form so a
child who is disabled had come all the way from 40 or 50 kilometers and their
case was being not taken up because they had not filed the memo in the correct
form. So, then we instantly called for her case and took it up. The insurance
people were there and we immediately decided whereby she would be given 5 Lac
rupees and we told the father that 4.5 Lac rupees will be kept as a fixed
deposit later when she grows up and has to get married this money would have
grown by that time and use Rs 50,000/- for her education. This is what we did.
That I girl I think was in class 8th or 9th, just for the
sake I asked “what would you like to be?” she said “I want to be a doctor.”
Just the other day she phoned up, about a month ago to say that she has got
admission in a medical school and that she had got 93% in the examinations
while she passed her school examination. I was so thrilled; I don’t know
something thrilled like an electric current. I was so happy that by her
determination she achieved it but what is important is that if we hadn’t been
there at that point of time the child would not have got the relief. Now, I
would point out that the person at the table who refused the application that
person should have been more sensitive. This is what sensitivity means. In
2000, as we all a committee was set up under the chairmanship of Chief Justice
Venkatchilliah to overview the working of the constitution. These were the
problems that they came up with. These were the very same problem that they
took up one by one and made suggestions. The suggestion is there, the system is
there but the question is how many of these are actually being practiced? We
are privileged people; now I can talk as a judge; we have the advantage of
going to the best of the hospitals for medical care, we are the privileged
people we have the advantage of our medical expenses being looked after but
what about the citizen, the common man? I don’t know how many of you have been
to a government hospital. I was in AIIMS for a couple of weeks and it takes up
all the medical sanctions in Delhi. In the morning I use to see from my window,
the night before people use to be lying on the pavement men, women, and
children. I was asking why? They were lying in order of like a serial so that
the following morning when the counter opens they will be able to get in that
same manner to get a card to visit the doctor. Now, this is in one of the most
premier institutions of this country. What are we doing for health care
facilities? I am not trying to find solutions as such, what I am trying to do
is to analyze what you have done or what has benefitted the citizen of the
country after sixty years of the constitution.
Another aspect which was touched upon
by Justice Kant, as I said he touched upon about everything, there is nothing
which he did not touch upon and that was a very touchy subject of public
interest litigation. The man who started it all in India was Justice Bhagwati.
Getting into social problems has today become an instrument which can be used
at the higher court level by the High Court and the Supreme Court in exercise
of its powers. Under article 226 wide powers are given and under article 32 and
article 142 the Supreme Court has wide powers. If somebody in authority does
not give effect to what is there in the declared policy, what do the courts do,
sit and watch. The court is the guardian of all the citizens of this country.
The courts are normally taken as the guardians of the minors. Minors are called
the wards of court, why not the citizens of the country? Without giving
directions by way of mandamus what else can the court do to make the machinery
work? People say that you are treading on the toes of the others who have
jurisdiction to pass the orders, those who make laws but what is it which the
judiciary should do? Stare abjectly. I am not saying that we do it all the time
in correct situations. I am trying to say that we do it for valid reasons. At
the same time the Supreme Court has even gone to the extent in the famous
Auditor Comptroller General’s case, where the Supreme Court directed certain
things to be done. If you have not given the appointment, give the appointment!
And the explanation was that if you are going to sit idle, we won’t! Now they
might call that stepping on toes but the basic concept is that we are there to
do justice. That is what the citizen wants, not only food, not only shelter,
not only clothing but even the justice delivery system is prominent. There are
certain states; forgive me for saying so; where nothing moves, nobody takes the
responsibility until and unless mandamus orders are passed, then only the
machinery starts working. What is being referred to the larger bench,
constitutional bench is a question. I should not be commenting upon it as the
matter is subjudice, but the question is whether the Supreme Court can
legislate? Nobody said or there is no part in constitution in this regard but
look at the situation where there is no legislation on a particular subject,
then what happens? There are certain areas which are grey, certain areas where
the law does not provide certain things. There are cases like the famous
Vishakha case where there is no law as to how women at work places were to be
protected against the harassment of all kinds including sexual harassment. So
the Supreme Court laid down certain guidelines. If I remember correctly it was
Justice J. S. Verma who pronounced that judgment. Certain regulations in manner
of guidelines were to be laid down and this judgment has been used all over the
world as a path breaking judgment. What was the Supreme Court doing?
Legislating? It was filling in the gap. It was filling in the lacuna which was
there unfortunately was uncovered and I think women in India and as this
judgment is cited all over the world are benefitted. That is the role sometimes
is called proactive, sometimes is called treading on toes but sometimes it is
extremely necessary. If the administration remains lethargic there is nothing
much which the court can do than to come forward in this kind of manner in such
a direction. I don’t know how many people have tried to ponder over these
things. These are things that one has to address and I am addressing it not
only those of us who are present but these are things one has to address to the
whole country. Everything is in place. We have a constitution which is in
place. All that we need is the will and the integrity to make it work.
I once again thank the trustees of the
J.K. Mathur Memorial Trust for having giving me this opportunity express my
opinions and to talk to you the way I feel about. Gandhi Ji had spoken about
trying to wipe the tears from every citizen’s eyes. That is the path on which
one can still try and make an attempt. Gandhi Ji believed and spoke about a
number of things; one of them was religious tolerance that you should respect
everybody else’s religion; one of them was dignity of labour. These are those
values that one has to inculcate. These are values which should guide our lives
but then if this country has to survive then all these negative tendencies, the
colloquial tendencies have to be shunned or they have to be avoided or if there
people who take recourse to all this they should be dealt with appropriately.
I’ll just end with the very famous lines of Robert Frost with
which most of who are present
here will definitely be familiar:
“The
woods are lovely, dark and deep,
But
I have promises to keep,
And
miles to go before I sleep,
And
Miles to go before I sleep.”
Thank
you!
Justice
Kabir’s Speech
Chief Justice CK Prasadji , Justice
Kant, Mr Alok Mathur , Vice Chancellor
of this law school and university the members of the judiciary both sitting
Judges as well as Judges from the past the lovely ladies students and dear
friends coming here for this particular occasion by the sentiments which had
developed when Justice JK Mathur in whose memory this memorial lecture is to be
held was in Calcutta briefly, I come from Calcutta and was judge of Calcutta
High Court at that point of time when Justice Mathur came to Calcutta, that was
in 1994 and when his son Mr Alok Mathur asked me to come that particular
sentiment and association prevailed and I could not say no apart from the fact
that Lucknow is a city that has always been
interest to me. Before going to the topic of the lecture just let us
think over a few minutes about Justice Mathur’s life and achievements. My
memories of him go back to about 15 years, had been a judge for about four
years. I did not know that one day I would be here in Lucknow to address a
memorial lecture in his memory. Excellent gentlemen very unassuming but within
that one year he won the hearts of all of as there in Calcutta because of his
simplicity and the way in which he
would conduct himself. We all knew about
his abilities as a jurist, we all knew that he was an author we all knew that
he had written a number of books and at that point of time possibly he was
editing the book on criminal law of P. Ramanatha Aiyar and we came to know him
with that respect. I am told that he joined the judicial service some time in
1959 and thereafter he was into various activities and various things but
basically academic in nature he was in the prestigious Administration College at
Mussoorie, then he became a Judge of the High Court in 1990 , I too was
elevated in the same year and then he came to Calcutta and retired in 1995 and
came back here and then we heard about his death in February 2000.It was with
mixed feelings that we received the information about the news about his
passing.
As I said yesterday at another kind of
a memorial service you could say, a man's greatness can be measured not only by
what he does in his lifetime what all achievements he may have had while he is
actually doing something while in office it is more in the memory of a person
after he pass after he goes, and nine years is a long time after a person goes,
and for nine years his memories has been kept alive and there are people who
remember him with fondness. All I can say is that I am extremely grateful to
J.K.Mathur Trust to have invited me this afternoon to address you on a topic on
which I am certain would also have been dear to Justice Mathur ‘s heart, the
type of
man that he was as I remember him.
Today I stand in from a few not as a
judge of the Supreme Court I stand in front of you as a citizen of this country
looking at the Constitution which was adopted as far back as the on 26th of
November 1949 he became effective on 26th January, 1950. The Constitution was
adopted by we the people
of India on the 26th of November 1949 and with what aspirations and with what
dreams and the people of India the people of India adopt the Constitution of
India. The preamble says it all Had a
Chief Justice CK Prasadji Justice Kant, Mr Alok Mathur Vice Chancellor of this
law school and university the members of the judiciary both sitting Judges as
well as Judges from the past the lovely ladies students and dear friends coming
here for this particular occasion by the sentiments which had developed when
Justice JK Mathur in whose memory this memorial lecture is to be held was in
Calcutta briefly, I come from Calcutta and was judge of Calcutta High Court at
that point of time when Justice Mathur came to Calcutta, that was in 1994 and
when his son Mr Alok Mathur asked me to come that particular sentiment and
association prevailed and I could not say no apart from the fact that Lucknow
is a city that has always been interest
to me. Before going to the topic of the lecture just let us think over a few
minutes about Justice Mathur's life and achievements. My memories of him go
back to about 15 years, had been a judge for about four years. I did not know
that one day I would be here in Lucknow to address a memorial lecture in his
memory. Excellent gentlemen very unassuming but within that one year he won the
hearts of all of as there in Calcutta because of his simplicity and the way
in which he would conduct himself. We all knew about
his abilities as a jurist, we all knew that he was an author we all knew that
he had written a number of books and at that point of time possibly he was
editing the book on criminal law of P. Ramanatha Aiyar and we came to know him
with that respect. I am told that he joined the judicial service of sometime in
1959 and thereafter he was into various activities and various things but
basically academic in nature he was in the prestigious Administration College
at Mussoorie, then he became a judge of the High Court in 1990, I too was
elevated in the same year and then he came to Calcutta and retired in 1995 and
came back here and then we heard about his death in February 2000. It was with
mixed feelings that we received the information about the news about his
passing.
As I said yesterday at another kind of
a memorial service you could say, a man's greatness can be measured not only by
what he does in his lifetime what all achievements he may have had while he is
actually doing something while in office it is more in the memory of a person
after he pass after he goes, and nine years is a long time after a person goes,
and for nine years his memories has been kept alive and there are people who
remember him with fondness. All I can say is that I am extremely grateful to
J.K.Mathur trusts to have invited me this afternoon to address you on a topic
on which I am certain would also have been dear to Justice Mathur 's heart the
type of man that he was as I remember
him.
Today I stand in from a few not as a
judge of the Supreme Court I stand in front of you as a citizen of this country
looking at the Constitution which was adopted as far back as the on 26th of
November 1949 he became effective on 26th January, 1950. The Constitution was
adopted by we the people
of India on the 26th of November 1949 and with what aspirations and with what
dreams and the people of India the people of India adopt the Constitution of
India. The preamble says it all sees it all but at least tried to say it all
until it required an amendment and certain expressions were introduced into the
preamble by the 42nd amendment. If the
just briefly I have brought a copy of the Constitution with me because
sometimes we tend to forget what exactly is the preamble. Because the preamble
according to me is the soul of the Constitution itself it tells us what exactly
the Constitution was meant to be what it meant to achieve what are its
objects. Initially it read” we the
people of India having solemnly resolved to constitute India into a sovereign
democratic Republic and to secure to it all its citizens Justice, and what kind
of justice social economic and political, it is a wide term in which everything
was sought to be included liberty of thought ,expression ,belief ,faith and
worship. The equality of status and of opportunity and to promote among them
all fraternity ensuring the dignity of individual and unity and integrity of
the nation the latter part unity and integrity of the nation came later by the
42nd amendment. Now we the people the
citizens of the country gave to ourselves this Constitution. Today what is the
position with regard to
Justice social economic and political what is the position today of liberty of
thought in expression and belief faith and worship the equality of status and
of opportunity Justice Pradeep Kant in fact if he had an opportunity possibly
be would have got into the matter in greater detail but he did touch upon
almost all aspects of what a citizen had aspired for and what in reality we
have with us today after 60 years. Of
course it has also been said by the Chief Justice that 60 years in a man's life
is a long time but in the life of a nation 60 years is not much maybe that is
correct and maybe it is a kind of relative way of thinking, but 60 years is
also a long time to see that at least some of these goals are achieved have
been gone forward of the gone backward are we in a state of the status quo are
we in a state of limbo. It is a time for
introspection. All of us are aware of
what is happening around the country today.
This country was meant to be a federal institution with unity of states
and union of states in spite of this have we really achieved, what we wanted to
achieved in the country what are the state of affairs Justice Kant very briefly
touched upon it the freedom of movement he spoke of the fundamental right which
is guaranteed but have we been able to implement it. A person has freedom of
right to go or move
anywhere but there are a situation prevailing all around the country where that
fundamental right is not being allowed to lay its hands on is that going
forward a moving backwards where are we?
What are we doing about it? I talk as a citizen of India and not as a
judge of Supreme Court of India.
As the framers of the Constitution led
by Dr Ambedkar very wisely did the largest written constitution of world and
covered almost all aspects of governance of even day to day living and almost
everything is covered and yet today we are in a state where we seem to be
floundering and wandering around not knowing where to turn. The rights are there
fundamental rights human
rights and basic rights. During this period after India became independent and
the adoption of the constitution one other very important event took place
which today has great impact all over the world. On 10th of Dec 1948
the United Nations at its general assembly meeting in Paris adopted the
universal declaration of human rights. I don’t know how many of you are aware
of all the articles contained in the declaration, as judges most of us are. The
first article deals with equality. The first article deals with the fact that
all men are born equal. What is the first effective fundamental right in our
constitution in part three?
Article 14 i.e. equality.
How far have we been able to achieve
this equality? These are the little thought provoking things that a citizen has
to think about. Even today the family and the social structure is such that we
have not been able to achieve that goal. We have pronounced judgments umpteen
judgments on these aspects of this article 14; article 16; but in reality I
think it is still a very far cry. All of you are aware of article 15, 16, 19
and 21 which again was touched upon, on which I was come back later but the
fathers of our constitution divided part three and part four knowingly. The
reason being as far as I can say is that certain rights are fundamental, that
means the citizen has the right to do certain things but there are certain
rights which are basic in nature, certain rights which are natural rights and
those rights have been included not as rights but as guidance given to the
governments to frame laws to implement those human rights. A man cannot live
without food, can he? Food it cannot be exactly a fundamental right, it is a
basic human right and in order to live he needs food. Fresh air to breathe in;
these are basic human rights; right to shelter. Now these have been included in
part four as directive principles of state policy and that has been done only
with this idea in mind that it may not always be possible to turn these into
fundamental rights which are guaranteed and which the state has to provide. Chief
justice just now pointed out that our constitution is rather one of those
exceptional constitutions where right to enforce a Fundamental Right is itself
a Fundamental Right. Article 32 of the constitution is a right guaranteed to a
citizen to see that his fundamental rights are enforced. That is of course
limited to Supreme Court and only for the purpose of enforcing fundamental
rights. The High Courts have much wider powers under article 226 and these are
the powers which today make the Indian judiciary, I would not be hesitant to
say; the strongest and most independent judiciary of the world. It is not the
power that the judiciary has…..to
itself. It is not the power that the judiciary has taken upon itself. It is the
power which has been vested in them by “we the people” who adopted the
constitution on 26th Nov 1949, which means that the people of India
felt that if anybody who is there to guard against excessive arbitrariness, it
is the judiciary. It trusted the judiciary and it trusted the judiciary in
specific which the people herein do today. I for one, I am an optimist and I
don’t look pessimistically the things which have been said about the judiciary
and off late various things have been magnified. People, there are lobbies and
sections which may have some interest in doing what it is doing but as being
one the three pillars of the constitution the faith of we the citizens, the
common man, is still there I would say almost to hundred percent on the
judiciary. Who else can they turn to, if they have to face problem, who else
can they turn to, but the judiciary. The faith of the common man in this
institution, the day it goes I think it will be a sorry day for this democracy.
Why am I saying all this? I am saying all this because; now I switch roles and
I come back to the role of Judge. As judges and those who are at the other side
of the fence, the advocates, all of us have the equal responsibility to see
that the trust which have been vested in us is not jeopardized, is not reduced
and we can live up to the trust. In any organization there are black sheeps but
that does not mean that the entire organization is to be torched in the same
light. What are basic needs, what are the fundamental rights, what are the
things that a common citizen wants as a right, even if it is not a right he
wants food, he wants shelter, he wants clothing, he wants proper drinking
water, he wants proper education for his children. What is that which a human
being normally requires? Now, there are some who can….from
one house to make one to own 10
houses, that is a different thing all together. We have a kind of; this my
personal view; I don’t whether you would agree with me, we have progressed in a
manner basically in the economic sphere, in the socio economic sphere in a very……manner, where about
seventy percent of the people of this country live a life of almost of poverty
where they are able scrape two meals a day, in some cases not even one meal a
day. In the same country we talk about and we think about how many of our Indians
are there in the first ten persons of the Forbes list. Some of us talk about
who are the wealthiest people in the world, we Indians, two of us are there and
we feel very proud. Is that a thing to be proud about? Yes, certainly there are
avenues; there are ways in which people have to develop and once we take pride
in what we have achieved economically, industrially we have to be one of the
foremost industrial countries in the world but at the same time we just cannot
shut our eyes to those 70 percent and if we do so, then we are failing the
people of the country. Going to the moon is all right, nobody takes away the
achievements of the scientists in doing so but at the same time providing food
to all is equally important, now I talk again as a citizen. Have we been able
to provide? Is this what we have wanted? These are some of the basic problem
that we face and these are some of the problems which I would say require
thinking by those who are in a position to influence things….
Another thing which was spoken about
by Justice Kant; as I told you more or less covered everything in a nutshell
was this accumulation of large number of changes. This accumulation of changes
has to be made. It is not something which we can avoid but then we get hope and
confidence. The alternate mechanisms have been found…..have
to be found and plus these are the
things that we also have to try and explore further. A common man wants his
case to be heard as quickly as possible. A citizen does not want to have the
burden of having to come to court over and over again. If things could be
worked off quickly the citizen would be the happiest. Apart from the fact that
a lot of debate takes place, time is spent; there is also a question of money
involved. There is a saying; I don’t know whether it is common all over India
but in Bengal from where I come there is a saying that by the time a person
finishes with the…….
what he had wanted in fact he had sold that also. There is nothing left, so
what is the purpose. We have been trying to encourage alternate dispute
resolution mechanism such as Lok Adlats. Lok Adalats were being held without
any statutory sanction but that was revoked in 1987 with the enactment of Legal
Services and Authorities Act, where the Lok Adalats and their orders were made
equal to the decrees of the civil court. A common citizen would prefer to have
his case settled that way; go there have the matter disposed with compromise if
possible, either negative or positive and that is the end of the matter there
is no…..So the
appellate jurisdiction which is no trustful, that is relieved. The pressure on
the appellate court is released. There are cases pending, suits pending, triple
proceedings pending because of bails granted by the different articles…..
As a result of which
there is……there has
to be a crisis of confidence which gradually….but we
will have to handle these things in such
a way so that we can lessen them. You will be surprised and I think most of us
know this that the no. of cases in the trial court are not very high…..
by the formation of
alternate bodies like tribunals. The no. of cases filing has come down
tremendously in the lower courts. It is more or less in the higher court that
this problem has arisen because of the pendency of these matters in revision or
in appeal. Various matter which were filed in front of civil court are now
being placed before various tribunals but in coming back to the citizen and the
common man and what has been achieved by the constitution, what has been
achieved by the people who are there, who are responsible for giving effect to
the provisions of the constitutions. Not that there haven’t been developments,
there have been developments, one of the most important developments again as
talked by Justice Kant is the right to education. Right to education was never
a right as such except that there was one of the articles (article 45) which
said that the state was bound to provide free education up to the age of 16
years but that was amended and as far as I remember it was made 8 year or so.
This lead to the decision of the famous case in 1993, article 21(a) was
thereafter introduced to the constitution with 86th amendment.
Unfortunately, that amendment could not be enforced because there were no
enactments made on that basis and the enactment was made 16 years later when
the education act got a lot of fame but that act was introduced only after 16
years to make it a fundamental right in reality but it has helped. Now,
education which the very basis of development; today is fundamental right to be
enforced through the enactment. But again, it is a fundamental right, how many
people but then are seeing that it is being enforced? People in the cities
especially in the metro cities you will find the little children at the traffic
intersections running around trying to sell this or that. Trying to juggle and
show that art. Supreme Court thinks of taking them and putting them into the
school but in reality what do you do with these people? These are things to
think about. Why is it that the children are running around at the roads and
not in the schools? Why is it happening? It is happening because of the family
conditions. They are nothing but bread earners. One of the justifications of
having large families amongst the poor people is that each time born he or she
became a potential bread earner. Are we willing to take those children off the
roads, resettle them and put them into schools? What happens to those who are
dependent on their income? Do we have schemes in place to make things happen in
a real way?
You talk about providing aid to old
people, old parents; just imagine the society where a law has to enacted where
a parent can demand maintenance from the children. We have amended our laws and
we have that law in place that a father or a mother can come forward and make
an application under the relevant provisions and call for maintenance from
their children, we needed a law for that.
Where is that attitude? The most important thing in my view is that in
order to the constitution work there has to more practical thinking, more
visionary thinking as to how to make things work. Simply passing laws is of no
use. I don’t know if any of have been to areas where tribes reside, I have had
the good fortune. Chief Justice C.K. Prasad has that experience. He comes from
a state where there are numerous tribes all over, particularly where it was
undivided. I was briefly in Jharkhad for six months. I was there as a chief
justice and I don’t why I have this peculiar habit of wanting to meet people to
know about their problem, to try and find out what is causing problem to them
so that we could try and solve things in a way knowing what the other person
wants. Sitting in court and delivering judgments is good, very good certainly;
we are required to do that but as many people have said many times that a
sensitive judge is I think a judge that doesn’t stick to that particular seat.
I have been to tribal areas. Out of the 24 districts of the tribal areas of
Jharkhand at that time, now they have been increased. I visited 20 of them
during my short spell there. I’ve been with the tribes. One of the main
problems is the lack of
opportunities and there is no education as such, they are used to living of the
land of the forest. Today there are forest laws. You remove something from the
forest, you are charged under forest law. These people have been living in
forest all along. Now, we have laws which require the forest to be protected
but what about the people who are living of the forest? You have….
dams come up on your
belt but people are going to be displaced. It is a necessity for the purpose of
irrigation, for the purpose of electricity and hydro power all this is very
necessary very important but what about the importance of that common citizen
who has been displaced. Judgments have been delivered to this effect by the
Supreme Court that they have to rehabilitate. It is not a matter of law; it is
a matter of social justice.
Let me just recall the small incident
which took place which doesn’t throw a very good light of neither of the
judiciary nor of the administration. A small incident when I was there in
Jharkhand. I say this only not to blame anybody but to make ourselves aware
that what can happen if you forget that there is somebody there forced to take that
attention. Just a small little example, I had happened to go to Hazaribagh in
connection with a Lok Adalat which was being held and with me was one of those
very sensitive judges I don’t know whether there is such other gentlemen;
Justice M.Y. Iqbal, whom I found a very sensitive judge; yes he was with me. We
went to Lok Adalat moving on to different tables seeing what was happening
suddenly while going to a table we saw a little hardly around 12 or 13 years
old standing there, so we just stopped and asked “what has happened? Why are
you here?” she looked down and she was just at a foot. Her right foot was
missing and she had an artificial foot put up and the artificial foot was an
odd site because it must have been fixed at a point of time when she was at
least four or five years younger and we asked her “why are you here”. She said
my father behind me then the father came forward and the told that his daughter
had an accident and we had filed a MSET case and it is going on and on and when
we heard about the Lok Adalat we have come here to see what is to be done. So
we asked what is happening to your case. He said our case is not being taken up
today. I said where do you come from? He said they came from a place called
Ramghadh which is in between Ranchi and Hazaribag so I asked the person on the
table that was doing this case that why this little girl’s is not being taken
up? This is why I talk about
sensitivity, they said they have not filed the memo of appearance in the
correct form so a child who is disabled had come all the way from 40 or 50
kilometers from Hazaribagh and their case was being not taken up because they
had not filed the memo in the correct form. So, then we instantly called for
her case and took it up. The insurance people were there and we immediately
decided whereby she would be given 5 Lac rupees and we told the father that 4.5
Lac rupees will be kept as a fixed deposit later when she grows up and has to
get married this money will have grown by that time and use Rs 50,000/- for her
education that also is going to the fixed deposit and use the whatever interest
comes in and see that she gets a proper artificial foot not knowing that at
point of time government has the policy in place for providing the artificial
foot for free. This is what we did. Today that girl I girl I think was in class
8th or 9th at
that time; just for the sake I asked “what
would you like to be when you grow up?” she said “I want to be a doctor.” Just
the other day she phoned up, about a month ago to say that she has got
admission in a medical school and that she had got 93% in her examination;
school passing off examination. I was so thrilled; I don’t know something flew
like an electric current. I was so happy that by her determination she achieved
it but what is important is that if we hadn’t been there at that point of time
it was some kind of a peculiar situation, a coincidence and the child got that
relief. Now, what I am trying to point out is that the person at the table who
refused the application that person should have been more sensitive. This is
what sensitivity means. In 2000, as we all a committee was set up under the
chairmanship of Chief Justice Venkatachiliah to open up or rather overview the
working of the constitution. These were the problems that they came up with.
These were the very same problem that they took up one by one and made
suggestions. The suggestion is there, the system is there but the question is
how many of these are actually being practiced?...........................................medical
care medical welfare. We are privileged people; now I can talk as a judge; we
have the advantage of going to the best of the hospitals for medical care, we
are the privileged people we have the advantage of our medical expenses being
looked after but what about the citizen, the common man? I don’t know how many
of you have been to a government hospital. I was in AIIMS for a couple of weeks
and it takes up all the medical sanctions in Delhi. In the morning I use to see
from my window, the night before people use to be lying on the pavement men,
women, and children. I was asking why? They were lying in order of like a
serial so that the following morning when the counter opens they will be able
to get in that same manner to get a card to visit the doctor. Now, this is in
one of the most premier institutions of this country. What are we doing for
health care facilities? I am not trying to find solutions as such, what I am
trying to do is to analyze what you have done or what has benefitted the citizen
of the country after sixty years of the constitution. Solutions have to be
found and we as judiciary have to find our solutions.
Another aspect which was touched upon
by Justice Kant, as I said he touched upon about everything, there is nothing
which he did not touch upon and that was a very touchy subject of public
interest litigation. The man who started it all was…………….
Justice Bhagwati. Getting into
social problems has today become an instrument which can be used at the higher
court level by the High Court and the Supreme Court in exercise of its powers.
Under article 226 wide powers are given and under article 32 and article 142
the Supreme Court has wide powers. If somebody in authority does not give
effect to what is there in the declared policy, what do the courts do, sit and
watch. The court is the guardian of all the citizens of this country. The
courts are normally taken as the guardians of the minors. Minors are called the
wards of court, why not the citizens of the country? There without giving
directions by way of mandamus what else can the court do to make the machinery
work? People say that you are treading on the toes of the others who have
jurisdiction to pass the orders, those who make laws but what is it which the
judiciary should do? Stare abjectly. I am not saying that we do it all the time
in correct situations. I am trying to mean that we do it for valid reasons. At
the same time the Supreme Court has even gone to the extent in the famous
Auditor Comptroller General’s case, where the Supreme Court directed certain
things to be done. If you have not given the appointment, give the appointment!
And the explanation was that if you are going to sit idle, we won’t! Now they
might call that stepping on toes, one they call that over reaching, one they
refer matter to the larger bench but the basic concept is that we are there to
do justice. That is what the citizen wants, not only food, not only shelter,
not only clothing but even the justice delivery system is prominent. There are
certain states; forgive me for saying so; where nothing moves, nobody takes the
responsibility until and unless mandamus orders are passed, then only the
machinery starts working. this is happening you can’t really help it. What is
being referred to the larger bench or constitutional bench is a question which
really I should not be commenting upon it as the matter is subjudice, but the
question is whether the Supreme Court can legislate? Nobody said or there is no
part in constitution in this regard but look at the situation where there is no
legislation on a particular subject, then what happens? There are certain areas
which are grey, certain areas where the law does not provide certain things.
There are cases like the famous Vishakha case where there is no law as to how
women at work places were to be protected against the harassment of all kinds
including sexual harassment. So the Supreme Court laid down certain guidelines.
If I remember correctly it was Justice J. S. Verma who pronounced that
judgment. Certain regulations in manner of guidelines were to be laid down and
this judgment has been used all over the world as a path breaking judgment.
What was the Supreme Court doing? Legislating? It was filling in the gap. It
was filling in the lacuna which was there unfortunately it had not been covered
and I think women in India and as this judgment is cited all over the world are
benefitted. That is the role sometimes is called proactive, sometimes is called
treading on toes but sometimes it is extremely necessary. If the administration
remains lethargic there is nothing much which the court can do than to come
forward in this kind of manner in such a direction. I don’t know how many
people have tried to ponder over these things that whether the person living in
village has sufficient and pure drinking water. We are told in certain areas
water is carried at times for two three kilometers. They get up in the morning
and they have to go all the way two three kilometers away to get water. These
are things that one has to address and I am addressing it not only those of us
who are present but these are things one has to address to the…...
Everything is in
place. We have a constitution which is in place. All that we need is the will
and the integrity to make it work.
I once again thank the trustees of the
J.K. Mathur Memorial Trust for having giving me this opportunity express my
opinions and to talk to you the way I feel about. Gandhi Ji had spoken about
trying to wipe the tears from every citizen’s eyes. That is the path on which
one can still try and make an attempt. Gandhi Ji believed and spoke about a
number of things; one of them was religious tolerance that you should respect
everybody else’s religion; one of them was dignity of labour. These are those
values that one has to inculcate. These are values which should guide our lives
but then if this country has to survive then all these negative tendencies, the
colloquial tendencies have to be shunned or they have to be avoided or if there
people who take recourse to all this they should be dealt with appropriately.
I’ll just end with those very famous lines of Robert Frost with
which you may be familiar:
“The
woods are lovely, dark and deep,
But
I have promises to keep,
And
miles to go before I sleep,
And
miles to go before I sleep.”
Thank
you!
