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Hon’ble Mr. Justice Umesh Chandra Banerjee, Judge Supreme Court of India, Hon’ble Mr. Justice Shyamal Kumar Sen,
Chief Justice Allahabad High Court, Hon’ble Mr. Justice S.B. Sinha, ladies and gentlemen.
I take it as an honour and privilege to be here and participating in the first Justice J.K. Mathur Memorial Lecture. Justice
J.K. Mathur was elevated to the Bench of the Allahabad High Court in the year 1990 and he remained almost confined to Lucknow.
I as an advocate, had an opportunity to appear before him very frequently and today I have no hesitation in saying that I
was one of those lawyers who had the blessings of Justice Mathur throughout, that is till he remained in Lucknow and afterwards
when he was transferred to Calcutta.
If I can quote the words of Justice Holmes, who said that there are three stages in the life of a Judge. Number one, when
he is elevated he is always anxious to impart justice, to do justice for which he works hard and he is always careful in passing
orders that no injustice should be done and there should always be justice. There is the second stage, that is, in the middle
of the tenure of the judgeship, when he says whatever orders are passed by him that is justice. And then there is the last
phase of his tenure when the judge says he is not bothered as to what is justice and what is not justice. Justice J. K. Mathur
adhered to the first principle and remained as a Judge throughout, of the first category.
On the eve of my elevation, I went to him for having his blessings and since speaking before a distinguished gathering of
learned people is a virtue not of all but that of a few, so I asked him to let me have some speech so that I may speak at
the time of my elevation because previously it used be the practice at out Allahabad High Court that on the day of elevation,
after the oath ceremony, the Judge, who was administered the oath, was required to say a few words to the Bar. But for certain
reasons, which I am not suppose to disclose over here, this practice has been stopped at Allahabad but it fortunately continues
at Lucknow. It gives an opportunity to the people to know as to who has been elevated, what background he is having, what
is his choice in the field of law and what is expected of him during his tenure of judgeship. So as Webster has said, as all
of you know when he was asked that if you were to keep any one of your valuable assets or possessions and leave all others,
then what will you prefer? He answered. ‘The power of speech, because by virtue of my power of speech, I will be able
to regain all my lost assets and, therefore, that is one asset which I would never like to loose.’ So I was very conscious
about my speech. Justice Mathur smiled and said: Alright, I will give you some hints, but it is the speech, which comes from
the heart appeals most to all the people; therefore, don’t plan any speech for such a function, you go and speak whatever
feel like speaking, it will come from your heart and it will be appreciated. Today again, an occasion has come, rather an
opportunity has come, where I have been asked by the organisers to this function to say a few words and express myself in
the memory of Justice Mathur, though I was not a listed speaker today. I remember him and I find that his advice has once
again proved true. Whatever I am saying I am saying from my heart, it is not a prepared speech, it is a speech which reflects
how Justice Mathur was endeared to all us and how he endeared himself to everyone during his short tenure of judgeship at
Lucknow.
Since we have been deliberating upon human rights and its violations, protection and enforcement for couple of days, I have
been given a second opportunity to come before you and say what was left earlier by me.
Justice V. R. Krishna Iyer in the preface of his book ‘Human Rights and Inhuman Wrongs’ while echoing the voice
of Mahatma Gandhi who said: “I feel myself related to every other individual in this world and realise that I cannot
be happy until the smallest of them is happy”, wrote that human rights must triumph over inhuman wrongs but without
struggle injustices cannot be wished away where comes the need for ‘operation sensitization’. Human rights are
natural rights, which are inalienable. All humans are having uninterrupted right of water, air, sunshine, food, shelter and
clothing, which are basic human rights. These rights which are not exhaustive but only illustrative do constitute right to
life. Right to life is not a mere animal existence but means a dignified and healthy life. The quality of life thus is the
essential human right, which includes the right of livelihood.
Human rights broadly can be categorised in two heads, namely, human rights as against individual and as against the State.
To say it conversely, all human rights which are violated against an individual and violation of human rights by the State
or its machinery.
In everyday life we find gross violation of human rights for example, in the dispensaries and hospitals run by the State,
either the Doctors are not posted or if posted, they are not available for various reasons and besides this the medicines
and other infrastructure is missing. The result is that all those persons who are in the need of medical treatment and care
have to wait and run, here and there and sometimes it becomes too late so as to save the life of an ailing person. It is for
the State to see that this is clear violation of human rights, as right to help and to lead a healthy life is a recognized
fundamental right and stringent action should be taken against the erring doctors or other personnel who are responsible for
not maintaining the dispensaries and hospitals and for not running them properly.
Taking the note of errant attitude of medical practitioners in not providing prompt medical aid to the injured, the Supreme
Court directed that all doctors including private doctors are obliged to render immediate medical aid in injury cases. The
cases of death in police custody and custodial torture, third degree method being adopted during interrogation and handcuffing
and parading of under trial prisoners and right of speedy trial are such rights which constitute right to live with human
dignity and have been the subject matter of consideration in one or the other case by the Supreme Court.
The post retiral dues including pension, gratuity and provident fund etc. is not paid within time or say within reasonable
time to the employees who retire despite clear instructions that such dues should be paid immediately without any delay, the
employees are compelled to rush to the Courts for getting their lawful dues realized and after years of patience even in such
matters, the matters are not taken up for years together because of rush of work in the Courts. It is no doubt true that the
court dealing with such matters should be fast in disposing of the matters but at the same time the accountability should
be fixed on the erring officers/officials because of whose negligence or deliberate inaction or for any other extraneous reasons,
the lawful dues are not paid to such employees unless the Court intervenes. Imagine a situation where an employee has put
in with entire life into service with the hope that on attaining the age of superannuation he would meet his requirements
with the amount of his post retiral dues including the pension but such dues are not paid for years together and in some cases
for no rhyme or reason, paved the way for starvation of such employees and their families. This is again violation of human
rights as retired persons are totally deprived of their livelihood and are left in state of lurch and despair to be burdened
upon their friends or relatives for such time the dues are paid.
FIRs are not being lodged in the Police Stations despite repeated request and approach and at times the Courts have to order
for lodging the FIR. There can be innumerable examples in our day–to-day life where there is constant violation of human
rights and deprivation of fundamental rights and it is a matter of distress and concern that even after 50 years of independence
we have not been able to provide even clean drinking water in various parts of the State. News articles of the like nature
can be seen in the newspapers where sometimes toxicated, obnoxious and dirty water is supplied resulting in epidemic and some
times the grievance is raised in the Courts that the locality is having no water pipe line for drinking water. In all these
matters, why one has to go to the Courts when it is the obligation of the State to provide clean water to every person.
One more aspect of the violation of human rights is the deliberately attempt of the State and its officers of flouting the
court’s orders and not obeying the same and in most of the cases, for no valid reason. This has resulted in compilation
of a large number of contempt matters in the High Court and the experience tells that a litigant has to first approach the
Court for getting an order in his favour and thereafter has to approach again for getting the order enforced by moving a contempt
application. The contempt proceedings, it is said, cannot be taken as a substitute for execution or implementation of the
order passed but so far as the writ jurisdiction is concerned, there is no alternative, for getting the orders implemented.
It is no doubt true that contempt proceedings cannot be initiated for arm twisting but in the absence of any enforcement mechanism
for implementing the order passed by the High Court, a person is left with no other option but to move for the contempt of
the Court under the small hope that under the fear of contempt perhaps the order would be complied with. This is a matter
which requires consideration by all concerned and particularly by the State Government or the Central Government, as the case
may be, who should see that the orders passed by the Court are complied with promptly without requiring every person to approach
the Court in contempt proceedings. The deliberate non compliance of the orders passed by the Courts by the State machinery
results in piling of cases under the Contempt of Courts Act, which not only deprives a person of his just right which has
been upheld by the Court but also in violation of human rights, in so far as it negates the very purpose of rule of law.
In the present situation, almost every time when an order is passed by the High Court, the natural offshoot is that contempt
proceedings are initiated, adding one more case to the pendency of the litigations in the High Court. For getting the Court’s
orders enforced with desired promptness, the State Government and the Central Government, would be well advised to include
specifically, the deliberate disobedience, violation and contempt of the court’s orders as ‘misconduct’
under relevant service rule, so that guilty or an errant officer may be punished accordingly, looking to the gravity of the
misconduct committed by him. All departments and Public Sector Undertakings should also get their service rules amended likewise.
I would also like to say one thing that we had been discussing human rights throughout and Hon’ble Justice, Justice
U.C. Banerjee, Justice Shyamal Sen and Justice Sinha and all others who have participated, including myself, have been emphasizing
throughout that there must be an awakening in the masses an education in the masses, particularly the weak, the down-trodden
and those suffering from monetary compulsions and so many such factors, so that they may vindicate their rights. We have been
saying that Non-Governmental Organisations should come forward, the courts should be vigilant in enforcing fundamental rights
as human rights, but what is the reason that the State is not being named as one major wing which is responsible for the violation
of human rights? Why the State should be spared and why an appeal should not be made to the State that it should wake up,
it should understand the mandate of the Constitution, the necessity of following the human rights, the necessity of following
the fundamental rights, the necessity of providing these rights to the common people. Is it necessary that the State should
be permitted to violate these fundamental rights, these human rights? And there should be an agency like the NGOs or public
spirited persons should be there, or the courts should take suo motu action for goading the State to do a thing which is right,
i.e. to follow the Act, to follow the mandate? It is not necessary in a civilised country to say so. We are in a civilized
world, we are the largest democracy in the world. We are having a written constitution, we are having so many Acts, so many
rules which touch almost each and every aspect of human life. Why is it not being implemented by the State? Why an FIR is
not lodged by the police officer unless the court issues a direction? Why are patients not being attended to in the primary
health centres and district hospitals? Why the medicines are not available in the jails? Why are the jail officials are not
looking after the prisoners in according with the jail manual or the law declared by the Supreme Court? Does this require
that there should always be a court to implement these things? And they are to be implemented by the State only if the orders
are passed by the Supreme Court or the High Court?
In my view, the greatest violator of human rights is the State machinery. And I will suggest that the media has a very important
role to play. A very cautious role lies with the media. It should not think that only selling products should be mentioned
in the media; it should be conscious enough to put things in a manner which not only enlightens the conscience of every human
being but also being into notice as to what is wrong and what is right, and where is the failure. It is not that you should
glorify the criminal and sell your paper. It is again a violation of human rights. I will give you only one example of the
apathy of the State machinery. A case came to my court soon after my elevation. The male member of a family had gone in search
of a job to Saudi Arabia. Unfortunately within a year or so, he died. His employer in Saudi Arabia sent whatever were his
legal dues in terms of his services amounting to ten thousand and a few hundred rupees. They were not even eleven thousand.
This happened in 1984 or 1985. The Saudi Arabia sent a draft of Rs. 11000/- in terms of Indian rupees to the District Magistrate
of the concerned district, saying that this amount should be given to his legal heirs, his wife or anyone who is surviving.
An enquiry was made and it was found that his wife had applied for that money. That draft had not been given to her till 1994.
A petition was filed in the High Court and for various reasons it could not be taken up. But the moment I was elevated, that
matter came up before me in 1999, I looked into the file and I found a short affidavit filed by the Tehsildar saying that
the draft had been lost and we had written to the Riyadh Embassy to send a duplicate and the moment it comes, the amount will
be paid. This affidavit was filed long back. So the court issued an order, that the District Magistrate who was presently
posted over there must file his personal affidavit, indicating as to when this fact came to the knowledge of the district
authorities that the draft had been lost, what actions had been taken by the District Magistrate till date and who was responsible
for the loss of the draft? The District Magistrate, I am sorry to say, a very responsible officer of the District filed an
affidavit, giving an incorrect date of the loss. The court cautioned the District Magistrate and said that the District Magistrate
was not even careful in looking into the records of the petition wherein long before in the earlier correspondence with the
then District Magistrate, the Riyadh Embassy had taken the stand that if you have lost the draft, we are not going to make
available another draft to you, you pay it from your own pocket alongwith interest to the surviving heir but this was not
done. Then the High Court passed an order that the State Government shall make that payment with certain interest and a compensation
of Rs. 30,000/- or Rs. 40,000/-, as was possible to bring it to the maximum under the law and with a direction that it should
be paid within two months and responsibility can be fixed and it can be recovered from the erring employee. I don’t
know whether it has been implemented or not. Such is the type of apathy by the State Government, because that amount in lieu
of the services was required by the family for immediate respite, on the sudden demise of the bread earner, but that was not
done.
The role of judiciary is thus, most important in respect of protection and enforcement of human rights. In a democratic polity
like ours, independence of judiciary is the backbone of our Constitution. The independence of judiciary is the inviolable
basic structure of the Constitution. A strong judiciary with independent Judges can only save the weaker sections of the society
from tyranny of the mighty ones, may be individuals or the State or its officers.
An independent and strong judiciary will mean a judiciary which works not under the pressure or terror of the State or under
political influence, imparts justice as per rule of law but not as a stone faced idol, with no heart and soul but as dynamic,
sensitized and delivers humanitarian justice within the bounds of law. Men are not made for law but the laws are made for
men. The laws have to take in their ambit, the prevailing system in the society, the malaise in the society, hardship and
tyranny which is being faced in the society and the Judge has to be alive to the State of affairs prevalent in the society
and cannot be oblivious to such factors, while upholding the fundamental rights and the rule of law.
I would, therefore, conclude by saying that time has come that the State and its officers should do their duty with utmost
sincerity, honesty and integrity and should not shirk in protecting and enforcing the human rights and other rights of the
individuals or group of persons and that time has also come that every one of all of us must keep a constant vigil upon our
neighbour and extend our help in getting his right protected and making his life decent and if necessary, by advising to take
proper course and vindicate his grievance in the proper forum.
I once again thank all of you for giving a patient hearing in the memory of Justice Mathur.
Thank you.
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