On the eve of independence in 1947, Jawaharlal Nehru had observed that “long years ago we had made a tryst with destiny, and now the time comes when we shall redeem our pledge…..” It is nearly six decades since this solemn declaration was made. In retrospect, do you think the nation has redeemed its pledge?
We have to take a holistic view of all the events that have taken place since then. Yes, we have taken long strides in becoming self-sufficient in agriculture; it is a real achievement. In industry too, the progress has been heartening. But when it comes to the question of dealing with poverty, illiteracy and equality of opportunity to all regardless of caste, creed or religion, I am afraid we have not been able to reach the destination or the goal. I do understand that the terrain is difficult, but all the same, on account of one constraint or another, we have been unable to reach the goal.
We have seen that, in the field of education, Article 21 (A) of the Constitution has made free and compulsory education a fundamental right. This is why I say that the Directive Principles of State Policy are essentially ‘deferred Fundamental Rights’, if I may so use the expression. The moment they are achieved, they go into the block of Fundamental Rights through a constitutional amendment.
Look at our literacy rates. Just because a person is able to write his or her name--instead of using the thumb impression--does not mean that he or she is literate. I do not think that is literacy. We have a long distance to cover before the nation can be really literate. A similar situation prevails in respect of poverty. Nearly 35-40% of our people are living below the poverty line. Can we say that the resources of the State have been equitably distributed for the larger public good? When we read the Directive Principles in the Constitution, they clearly state that the State shall endeavour to ensure that there is no concentration of wealth in the hands of a few. Is that happening? Similarly, a substantial section of the population in the country carries a stigma on account of its caste background. Though Article 17 abolishes untouchability, it has not disappeared from society.
Social reality is different from legal norms. You can make different provisions in the Constitution, but this does not ensure that they will translate society’s ideals into reality. Pandit Nehru’s dream and the dream of the framers of the Constitution, of making the Constitutional provisions a reality for the country’s population, still remain unfulfilled.
You will recall that a few years ago, the central government headed by a right-wing political party had initiated a highly controversial move to tamper with the fundamental structure of the Constitution for ideological and political purposes. The then President, Dr K. R. Narayanan, had cautioned the government against such a move and had sagaciously observed, “It is not the Constitution that has failed us, but we who have failed the Constitution.” In retrospect, how do you look back at the whole controversy and the dangerous implications of such a move?
I agree with what our President Dr K. R. Narayanan had said; it is certainly we who have failed the Constitution and not the Constitution that has failed us. No one can honestly differ with what he had said. During my years in the judiciary, I used to often say that it is not the civil procedure code or the criminal procedure code that has failed us, but it is we who have failed these codes.
The problem is that instead of implementing the Constitution we are trying to tinker with it. There was an attempt at tinkering with the Constitution in the recent past. I know that a Constitution Review Committee was appointed at a point of time. I did raise my voice to say that no single party can review the Constitution. Such a committee has to be appointed by the Parliament and must reflect the views of all political parties.
Secularism is a cardinal principle of our Constitution. Is there a difference between our concept of secularism and that of Western countries, such as Britain, which have established religions? Do you think India has made a significant contribution to the reconceptualisation of secularism?
When the Constitution of India was being framed, the Constituent Assembly drew heavily on the Government of India Act 1935. The framers of the Constitution also drew upon the experiences of countries like the United States and the United Kingdom. They learnt, from the experiences of these countries, that the interference of the Church in the affairs of the government tended to create problems. In the framework of the Constitution, secularism means that the State has no religion, that it is neutral vis-a-vis all religions, and that it does not compromise its neutrality in any way.
Let me cite an early incident which has a significant bearing on the concept of secularism in the Indian. When the first President of India, Dr. Rajendra Prasad, intended to visit Gujarat to inaugurate the reconstructed Somnath temple, Prime Minister Nehru raised an objection. Dr. Rajendra Prasad said that he would visit the temple not as the President of India but in his personal capacity, as a private citizen.
The framers of the Constitution never used the expressions ‘secularism’ or ‘socialism’ in the Constitution. It was in only 1976, with the 42nd Amendment, that the concepts of secularism and socialism were incorporated in the Preamble of the Constitution.
With the passage of time, prime ministers and other senior functionaries of the State started visiting temples and now we find photographs and images of gods and goddesses even in government institutions and offices, which was not the case in earlier times. As judges we never attended religious functions nor did we inaugurate any thing that had religious overtones. We simply went for a ribbon-cutting ceremony or something like that. Over a period of time, the concept of secularism has become diluted. I feel that this dilution has adversely affected our governance as well.
According to the Constitution, the rule of law is one of the defining features of our democratic polity. Unfortunately, one notices an increasing disregard for the rule of law across large parts of the country. In fact, in some instances the state administration has brazenly—and with impunity—flouted and subverted constitutional norms. What would you suggest, in the light of your experiences and reflections, to make the rule of law an inviolable and enforceable principle in the country?
The rule of law is undoubtedly one of the corner-stones of the democratic system. In recent times, we have noticed that the rule of law is being flouted by certain individuals and groups. They are sanguine because the authorities fail to enforce the rule of law. This would never happen if those who are guilty of violating the rule of law fear that they would be hauled up by the authorities.
How do you deal with such a situation? Here the question arises as to what the Constitution provides in this context. I believe that firm action by the Union government—such as invoking Article 355 of the Constitution—will send a message to the state government to mend their ways, failing which they will be liable to punitive action according to the provisions of the Constitution.
When the constitutional machinery fails due to the violation of the Constitution by the state government or because of the reluctance on the part of the Union government to take appropriate action, two or three things can be done. In situations where the violation of human rights is involved, the National Human Rights Commission can take appropriate action. And if the Commission finds that the state government is not responsive and human rights violations are of a serious nature, it has the power, under the Human Rights Act, to move the Supreme Court for appropriate direction. We have seen that this has happened in the Best Bakery case and the Bilkis Bano case.
How do you look at the performance and track record of the judiciary in safeguarding the fundamental rights of individuals, groups and institutions?
By and large, the judiciary has acquitted itself quite well in discharging its duties in respect of the dispensation of justice and in safeguarding people’s fundamental rights. When it comes to the breaches of the fundamental rights of individuals, the judiciary has taken very strong action. However, when it comes to the violation of the rights of groups of individuals, if I may say so, then I feel that the judiciary still has to warm up. It has to play a very significant role (in this connection) because if a section of people feel that they are not likely to get their fundamental rights implemented, then that section will carry a different perception of the judicial setup. That should not happen and that is why I feel that the judiciary needs to warm up to the fundamental rights of people who are depressed, or of the minorities or of those groups whose educational institutions have to be protected under Article 30 of the Constitution. Therefore, the judiciary, even at the highest level, needs to warm up.
Judicial activism has become a site of controversy and contestation in recent times. You have made a pioneering contribution to the discourse and practice of judicial activism in the country. What is your current thinking on the issue, especially in the context of present times?
The concept of judicial activism developed in 1970s because it was felt that the fundamental rights of large numbers of people are being violated and yet they are in no position to lodge a complaint about it. The concept of locus--you must have a locus to come to the court or must be an aggrieved party to seek judicial redress--was a stumbling block. They did not have the finance, the wherewithal or the awareness to approach the courts. That is where the concept of Public Interest Litigation and the waiver of the locus standi stipulation came into being. It was felt that anybody could bring an issue, which affects a large number of people, before the court. So that is how it started.
I will mention a personal example in this connection. When I was a judge in the Gujarat High Court, we received a letter regarding migrant labourers who were coming to work in the sugar-belt in the border areas of Gujarat and Maharashtra. It was revealed that the labourers were being paid a pittance for the hard job of sugar-cane harvesting: barely Rs 2 for an adult male or female, along with one kilogram of jowar. They were not being paid the minimum wage of Rs 22 per person. Now how do you expect such people to approach the court?
In a situation like that some judicial innovation had become an imperative necessity. While we passed the judicial orders, we knew that its implementation was fraught with difficulty. Barely 13 days were left before the migrant labourers headed back to their native villages. The Gujarat Labour Department had to be pushed to act in accordance with the order to pay them the minimum wages. We knew that they would go slow because on some of the boards of the sugar-mills even the chief minister was involved. So we mobilized young lawyers and legal aid groups to make sure that this judicial order was implemented by the 10th day itself. That was the first time I realized what could be achieved and how the exploitation of labour could be brought to an end. By an interim order of the court, migrant labourers were paid Rs 29 per adult male.
Some critics of judicial activism—though I am not happy with the phrase—speak of ‘judicial overreach.’ When you analyze the situation (where public interest litigations have become increasingly common), you find that the legislature and the bureaucracy are also responsible for it, for they have never taken immediate action. This is where you yield space to the judiciary. And having yielded space to the judiciary over a period of time, it is too late in the day to make noises about it.
I often cite the example of a person who wants to build a house for himself, but has to wait for two or three years just to get the necessary approval and clearance from the local authorities. Under such circumstances, he has no option but to approach the court. If the local authorities were to be responsive to his needs and if they could provide him with the necessary clearance within a reasonable period of time, such litigations can surely be avoided.
Of late, Public Interest Litigations have changed their complexion. Ultimately, the question arises whether PIL is a necessity. I think it is a necessity and must stay. I had written in 1996 that PIL is ultimately a matter of judicial discipline and restraint. I still hold that view.
Initially public interest litigation was restricted only to the Supreme Court and the High Courts. Here the judges are experienced and have sufficient maturity. But it cannot be allowed to be exercised by the subordinate judiciary or the civil and lower courts. It is after all a Constitutional function and it has to be derived from the judicial review powers and provisions laid down in the Constitution. Article 142, for example, states that you can do whatever you think is needed if the issue concerns a vast majority of people. The Supreme Court’s power is wider than that of the High Courts. Even in the High Courts, only experienced judges should be handling it. Restraint and discipline are the two norms that should determine the course of action in respect of PIL.
The print and electronic media seem to play an important role in projecting and highlighting public interest litigations. What, in your opinion, should be the linkage between the media and the judiciary?
The media, like the judiciary, enjoy autonomy and independence in our country. In fact, the judiciary has always respected the independence of the media and has contributed to a large extent to its independence. In the context of public interest litigations, I think the media has a very important role to play. It can render a valuable service by disseminating information about legal provisions. It can also help the courts by exposing and curtailing frivolous types of PIL. I had on one occasion imposed a cost of Rs. 10,000 on somebody who was repeatedly playing the same tape in the court. Like the judiciary, the media has to exercise restraint and self-discipline.
Generally speaking, people have lost faith in the institutions of the State, except in the country’s armed forces and the judiciary, especially at the higher level. However, their faith in the judiciary is eroding due to incredible delays in the judicial process. This is generating a great deal of despair and disillusionment among large sections of people. What, in your opinion, is the way out?
Many factors are responsible for the delays in the judicial process, which occur not only in the trial courts but also in the High Courts and even in the Supreme Court. I tried to wipe out the delays in the Supreme Court and I was successful to a large extent. But I am told that today the files are again piling up.
I would like to pinpoint two factors which cause delays in the trial courts. First, there is the issue of linking the salaries of the subordinate judges with those of revenue officials, what is generally known as equivalent rank. Because of this linkage, judges and revenue officials have been put on a par right up to the level of the High Courts and even the level of the Supreme Court. I have been a trial judge myself and I know how trial judges feel about it. It is basically a question of their dignity. After all, revenue officials enjoy several other benefits which are not available to judges. Incidentally, I may mention that in 1947, after Independence, the salary of a High Court judge was Rs. 4000. Till 1974, these salaries remained stagnant. When salaries are not adequate, you tend to often recruit inexperienced and immature judicial officers at the entry point and you expect quick disposals from them.
When I was the Chief Justice, I ensured, for the first time in the country, that a separate pay commission for judicial personnel was set up. Unfortunately, some of the states have still not implemented the report of the commission. The pay rise, as recommended by the commission, was not very high, but the salaries of judicial officials were delinked from those of revenue officials.
The second point is about the total number of judges in the country. If my memory serves me right, there are 12500 to 13000 judges in the whole country, which works out to be just 10-12 judges per million people. In the United States, on the other hand, the ratio is 100-125 judges per million people. In our country, almost 75% of cases go on trial, while in the United States just about five percent of cases go on trial. All this exerts an enormous amount of pressure on the judiciary.
What is required is systemic change. Today, with the help of technological innovations, it has become much less difficult to introduce systemic changes. Cases, for example, can be computerized and classified, as we did in the Supreme Court.