"Human Rights and Social Justice"

VIII Justice J.K.Mathur Memorial Lecture by Mr Justice S.H.Kapadia
Article: TERRORISM: Justice S.B.Sinha, Judge Supreme Court of India
Lecture by Justice Pradeep Kant on Human Rights
IIIrd Memorial Lecture By Justice M.N.Venkatchalia

by Hon'ble Mr Justice S.H.Kapadia, Judge Supreme Court of India on 13.12.2008 at Lucknow 


Chief Justice Hemant Gokhale, Justice Eswaraiah, Judge of the Andhra Pradesh High Court (my special thanks to him for coming all away from Andhra Pradesh); Justice Pradeep Kant and Shri Alok Mathur my friend who has specifically invited me to speak on this auspicious occasion.

It is indeed a great privilege for me to deliver the speech in memory of a great jurist Justice J.K.Mathur.

What we need today in India as far as the Judges are concerned is a scholastic living. As far as the life of Justice J.K. Mathur is concerned I can sum up in a sentence by quoting Albert Einstein, the famous scientist who said once, after he got the Nobel Prize, that I would prefer to be a man of value than a man of success. This tribute I would like to give to Justice J.K. Mathur because ultimately value is character.

We often speak about the Constitution of India. Constitution as a document is static. But the constitutionalism is a “Living Tree. It is about morality. If a judge has a narrow vision of life and if he is carried away by caste, religion etc. I am sorry to say that the people's faith in the Institution will not be there in the near future. Supreme Court of India has very good reputation because of the trust it enjoys but we have to maintain the people's trust in the institution and for that I would say that these types of lectures which are initiated by the Trusts are very important and the reason being today we are living in the world of globalization. I am not referring to economic or financial globalization. I am referring to legal globalization. Once upon a time judges were of the view that we are not required to go into Economics, Science and any other such subject. Those were the traditional judges of the Supreme Court between 1950-60/65 but later on with the expanse and development of law, particularly in Human Rights Jurisprudence, things have changed and I shall demonstrate how the Supreme Court under Article 142 has been taking steps in that direction. If a Judge does not know the concept of “convergence” which is taking place today between Constitutional concepts, Economic concepts, Corporate concepts and Taxing concepts we will not be able to do Justice.

Friends let me tell you the remarkable achievement in England which has taken place in 1998 when the UK Human Rights Act 1998 came to be enacted. Prior to 1998 in England and even today there is this concept of sovereignty”. Sovereignty as emphasized in England prior to 1998 stated that Parliament can enact a law even contrary to the fundamental rights or basic rights. This concept prevailed right up to 1998 in a parliamentary democracy of 500 years why? Because the Parliament dare not act contrary to the basic rights. It is the awareness of the people of England which retained concept of sovereignty of Parliament because they always believed that the rule of law meant that the first law is to obey all laws. In our country one rarely observes even the traffic regulations. We do not have the discipline and that has created large number of problems. What we need is a complete change of mindset, particularly if you want to have a just society which is the object of the Universal Declaration of Human Rights (UDHR).

I would again emphasize that the Judges should know conceptually various basic concepts in other fields and only then the Highest Court in the land and some of the Judges of the High Court aspiring to come to the Supreme Court can do justice in this rapid developing world.

What was the change which was brought in English Constitution after 1998. After 1998 the concept of sovereignty is not dead in England but it is downgraded and the priority is now given to rights. Earlier there was a concept of ultra vires. Now we have the concept of “modern ultra vires”. Prior to 1998 if the Act was challenged, the basic concept which the British Courts applied was what was is the intention of the Parliament. After 1998 the entire concept has undergone a change. Now the British Courts are required to find out whether the impugned law is compatible with European convention of Human Rights. Therefore the status of Human rights have been enhanced even above parliamentary sovereignty. In other words, after 1998 we have “rights” based interpretation. Today many of us are saying that the Parliament is sovereign, but they have not realised the change that has taken place pursuant to the UK Human Rights Act 1998. Friends you may ask me a question what has that to do with our Constitution, Firstly, as I said, we are living in the age of legal globalization, but the more important point is that with the enactment of Human Rights Act 1998 the concept of compatibility has come into force. The concept of deference has come into force. These concepts are required to be applied when the Supreme Court decides cases under Article 21 of the Constitution which deals with basically right to life. We all know that these words “Right to Life” covers several aspects including human dignity and if we are to interpret this right in future to include inclusive growth then we should know the new concepts which are emerging on account of the growing Human Rights jurisprudence. This is the reason for my emphasising that the knowledge of various subjects and the concepts should be known to a judge particularly in the highest court of the land.

Friends the business of theory is over. We have attended hundreds of lectures. We have given thousands of speeches. Today we are in the business of solution. This is the doctrine of “Constitutional Pragmatism”. We must solve the problems which the society is facing . But the Judges and the lawyers can do so only if they are well equipped with the knowledge of Development in Socio-Economic and Legal fields. Friends I am sorry to say in India we do not have contributions from lawyers and judges in the context of development of law. I'm very happy to attend the Institute today. I have seen the library. I would request the management of the Institute to subscribe to journals like Stanford Law Review, Public law, Harvard Law Review so that the Judges and the lawyers and professors can apply those concepts and develop it in the Indian context. I am fascinated to say that the concepts which have now emerged in England like compatibility are there under the Indian constitution which was inspired by the Universal Declaration of Human Rights. If I may invite your attention to the words in the Preamble of the Constitution of India, they are “equality of opportunity and status. Friends I am proud to be an Indian because I am a judge of the Supreme Court because I got the opportunity from non Zoroastrian friends in Bombay. I started my career as a Grade IV employee at a meager salary (including my college fees) and today I am proud to say to the young people sitting here that you can make best use of that opportunity in our country if you believe that in the first instance we are Indians, we are neither Hindu, Muslim, Zoroastrian, Christian etc. Please apply that philosophy and I will assure you that with hard work you shall succeed. To the young people here, I would like to say that there is an English quotation if you want to succeed as a judge/lawyer in our profession and that quotation is:

Work like a horse and live like a hermit”.


If you apply these standards in your daily lives you will be fulfilling the constitutional dharma and if each one of you live by the constitutional dhrama our society shall be free of discrimination and each one of you will be the role model for others and all these religious and caste conflicts will end.

Why did the constitution makers emphasize equality of opportunity and status. Many of us have forgotten to emphasise “equality of status”. The word status was brought in by the constitution makers because they realised that one section of the people were regarded as untouchables” in the Hindu Religion. Therefore, the constitution framers decided that there should be the concept of equality of status” under the constitution. Equality can be achieved if you negate certain vices from the concept of untouchability. Untouchability was the vice which needed to be eliminated from the concept “equality” which has positive and negative aspects. How was that achieved by the Constitution framers? It was achieved by enacting Article 17 which abolishes “untouchability”. Why? Because it gave status to the deprived class of being equal in the human society. Why did it provide for Article 15(4) which inter alia provides access to education. Article 15(4) provides for “affirmative action by the State as the Constitution framers thought that you may remove untouchability but still people may remain backward in the field of “education”. Therefore give them education as a matter of affirmative action”. But that was not enough. The Constitution framers further realized that notwithstanding the education, backwardness can still continue if they are not given jobs in the Government service. Therefore the Constitution framers introduced Article 16(4). These are the concepts which each Judge needs to look into. Therefore, I have emphasized scholastic approach to be adopted by the Judges. If one analyses our Constitution it becomes clear that the Human Rights Act, 1998 and our Constitution have been inspired to a great extent by Universal Declaration of Human Rights 1948.

Many judges and lawyers are not aware of the scope of Article 301 which refers to freedom of movement of trade and commerce. If you read this article 301 it says in the matter of taxation when the goods enter from one state into the other there shall be no discrimination in the levy of tax and the concept of compatibility which UK is now recognizing the 1998 Human Rights, is well recognized by our Supreme Court in 1961 in Atiabaris case when Justice Gajendragadkar said that if the impugned law is not compatible with freedom of movement of goods from one state to the other the law is bad. Kindly turn to Article 302. Article 302 says that in the matter of tax, Parliament can impose restrictions but Article 304(a) says that the State can impose reasonable restrictions. There is a big debate going on why the word reasonable is not there in Article in 302 and why is it there in Article 304. Similarly, all of us know the judgment in Kesavananda Bhartis case. Concept of “Basic Structure” is brought in by judicial review. The said doctrine of “basic structure” has today become a maxim after the judgment in Kesavananda Bhartis case. Even the Parliament cannot abolish the judicial review”. Again I am referring to Atiabaris judgment in which Justice Gajendragadkar has observed that the word “reasonable restriction” in Article 19(6) and in Article 304 empowers the Court with “judicial review”. Therefore, unless we are clear about these concepts, I am afraid we shall not be fulfilling the object for which judicial institutions are constituted.

Having said this friends let me give you a few examples on how the Supreme Court has implemented some of these concepts . Every Friday we have what is called a Special Bench in the Supreme Court. We call it the Forest Bench. It is no more a Forest Bench it covers a large number of issues, particularly socio economic issues. I will give a simple example of what we have done in recent times and for that I would like to emphasise that if a judge has got some concept of economics, accountancy along with Constitutional law, we can serve the society. A below poverty line pensioner came to the Supreme Court. He came for Rs. 75/- not paid to him. Is it not a shame? A citizen of the country who is living below poverty line has come to the Supreme Court for Rs.75/- pension per month. State says no we dont have funds. I do not want to name that particular State. It is not the State of U.P.. But I called upon the State, please submit your financial status. I went to the web site. You will be surprised friends Centre has contributed towards the Below Poverty Line pension in crores, but you go to the web site you will not get the answer. We were surprised and ultimately we called the Chief secretary that if the Centre has devolved these funds why should the citizen not to get even rupees 75/- per month, and ultimately under threat of contempt that citizen got Rs.75/- and he continues to get. We were able to monitor because we knew what to ask. If the judge does not know the basic concepts of accountancy or finance or economics what question is he going to ask while exercising his jurisdiction under article 142. I give you one more illustration friends. In Orissa there are tribes which are living on grass. A company wanted to carry out mining operations. Today mining operation means lot of money. In most of these PILs we are required to balance the conflicting interests. On one hand, you have un-employment and starvation, on the other hand, you have the environmental concerns. There were no jobs, hospitals, schools etc. To balance these claims the Court examined the accounts of the company to find out whether the company was in the position to set aside a percentage of profits to be utilized for the welfare of the tribals. Applying the test of Segment Reporting we were able to detect the profit of about Rs. 500 cr. But for the above Standard of Accounting the profit(s) reflected would be Rs. 15 cr. A Judge sitting in tax matters knows the Accounting Standards. It helps us to decide matters in the context of socio-economic justice enshrined in the Constitution. Recently, I had to deal with the challenge to an Accounting Standard. This is where I emphasise the knowledge of the basic concepts. We have heard the name of Amartya Sen, an economist who has won Nobel Prize. In his thesis he has given example of famine that took place in East Bengal now Bangladesh. He says that famine was not on account of food shortage but on account of poor purchasing power with the people to buy. If today you really want to meet the challenge posed by terrorism, please do not go for politicization, please stand united and evolve a long term strategy to meet this monster. What breeds this monster? We all know it but I may like to emphasize that it is poverty and lack of qualitative education, which is the cause. When I say qualitative, I mean these concepts of secularism, federalism etc. are not taught to all our children. I partly blame the citizens. If 3% of our population is going to pay taxes out of which 2% are compelled to pay income tax and that too because they are salaried class then I am sorry you cannot be in a position to give best equipment to the police. You will not be in a position to provide infrastructure. We are all talking about upgrading police reforms etc. But have you ever thought what is the salary of the police constable, particularly in the States and with that salary do you expect a competent man to come and join the police force? So let us friends not only blame the government. Let us answer the root problem. If all these problems are answered then you can at least take preventive measure to stop terrorism. That is why in England and in America investigation is top class. Competent people are recruited in all these forces. They are paid well. So friends let us take the pragmatic view of the Constitution. And when you take the pragmatic view, it would be better because we would be trying to find out the solutions to the problems with which we are faced.

One aspect I would like to further emphasise. Today, under Article 21 we need to introduce the concept of inclusive growth. You may say that this is the concept of pure economics. It is an economic concept. How does it come in the ambit of human rights? Inclusive growth means that our economy is growing at GDP at the rate of 8% or 7%. 300 million people are benefited, 700 million people are not given the access to this benefit. This is where “empowerment” comes in. For that the people have to work. Today there is no free lunch in the society. No politician will today say that we need to control our population. But to my mind, with these poor resources if Government is required to look after such huge population, the problems are going to remain. Recently, I came across an article in Stanford Law Review which says “is the right to procreate a Human Right”. This article works on the said right as a part of Human Rights Jurisprudence. If a family which is not able to feed more than 2 children produces 6 or 7 children and if you allow that to happen are you not violating human rights? I ask a question to myself are you not obstructing the society from becoming just? Are you not creating a problem in the society? Can you achieve a just society if you are not bothered about what your children do in future or what they will face. Friends under Article 21 we have developed a concept of sustainable growth. What is sustainable growth in context of Forest environment etc. That concept says that if development meets the need of the present without compromising the ability of the future generations to meet their need it is sustainable growth. This is the concept of intergenerational equity. You have a problem of Global warming. Environment is a national asset we need to protect it. We need to take steps to protect environment as a national asset. Why? Intergenerational equity means what this generation gives to the next generation . If we are going to destroy our forests, we are going to give our next generation dry lands with shortage of water and higher sea levels. Therefore, is it not necessary for us to protect our forests? This is where the Supreme Court has laid down the concept of sustainable development. But how many of us are aware of it. That is where I would request all of you to examine all these concepts and apply them in your daily lives.

Even in the context of terrorism, it is International Response which needs to come in. Today this generation is facing the said problem. We have the best younger generation in the world. Please do something to protect their interests and only if you do all that we will be able to achieve a just society which is the foundation of Article 21.

Friends let me point out one aspect. Universal Declaration of Human Rights came about in 1948. During the cold war it partly failed. Russia took the view that human rights are individualistic and against socio-economic rights. Capitalist countries took the view that political and civil rights are human rights. So the tension came about during the cold war. What was that tension. It was the conflict between the individualistic rights like civil and political rights on one hand which was emphasized by the capitalist society and socio-economic rights which was emphasized by USSR. This led to tension. Ultimately, that system needed change. Globalization came. When globalization came we all know today financial crisis has come about . But see the difference . When it comes to financial crisis the world has to a large extent united, but when it come to terrorism I am sorry to say it has not. Europe is not contributing today towards counter terrorism measures, America may be, England Yes, not Europe . What is the cause, what is the reason and I am telling you that there is no blame game here. Western society has a western model of human rights whereas countries like Saudi Arabia, Iran etc. have their own model and the grievance is please do not impose your western model on us because our traditions are different, our way of life is different , our society is different. And friends I may tell you I am not getting an answer how to solve this difference which is known as the concept of cultural relativism. Cultural Relativism is a challenge. The only way out is that the people should know that unless they stand united we cannot defeat this ugly monster. Again I repeat that international politics should not take over and stand divided on this issue otherwise we will fail to achieve a just society, which is the object of universal Declaration of Human rights. In the context of “Terrorism” I would like to say that Human Rights cannot be enjoyed posthumously”. If one wants a just society then treat people like human beings and you will get human beings.

With these words I conclude my speech paying my tribute to Justice J.K. Mathur.

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