March 14, 2011

On Constitutional Morality - Chief Justice S H Kapadia

Last week, Chief Justice S H Kapadia was in Ahmedabad to deliver a public lecture on “Constitutional Morality” in Tagore hall. The function was organized under Justice P.D.Desai memorial lecture series.

Not surprisingly, media coverage was lukewarm. Communist controlled media - NDTV, Hindu did not report it. CON party controlled, IBN, Indian Express coverage were superficial at best. Rest of the media too did not do justice to the subject, considering its importance and relevance. Tweeple @deshgujarat was among the very few that adequately covered Justice SH Kapadia's lecture. This lecture comes in at an important moment in national life.

India is facing a governance deficit and people empowerment deficit. These deficits are not mere accidents. Deliberate efforts are made to subvert the checks and balances system to help certain agendas. This has been achieved through two means - appoint spineless and/or pliant people in key positions, lower the moral fiber of the people using mass communication and indoctrination tools. Big businessmen and sickulars governing India have colluded in this subversion.

If one looks at the ground facts rather than motivated propaganda, India teethers closely on becoming a Banana republic. Rhetoric calls the shots. Power w.o adequate responsibility and scrutiny is the norm in highest levels of corporate and political governance. Being ethically challenged has been made a qualification for key positions. Berlusconi Model of governance is being reproduced in India. Berlusconi among others has showed that trash, celebration of trash, force multiplying it through control of mass media, placing pliant people in key positions using money power reaps in political rewards. Apathy, ignorance, inertia get nurtured. It is not a coincidence that more the corruption by big business and ruling party congress gets exposed, the coverage in NDTV tends to focus more on cricket/bollywood page 3 and rhetoric on India's beaches.

Lowering of nation's moral fibre is a pervasive reality. Sickulars - CON party and communists have been most responsible for undermining Dharma - moral fiber of India. BJP too has not been immune to the appeal of sickular and corrupt polity. Those who propagate that west style conservative polity would fix India's rot are barking at the wrong tree. As Shri SH Kapadia highlights here it is only the truth, character and upliftment of ethical standards that can help build and nurture institutions. It is resustication of Dharma alone in the national narrative which can stem the sickular rot and help empower Indians.

Shri S H Kapadia makes several important points. He highlights, why being straight rather than crooked leads to long term happiness. He refers to importance of truth as a virtue, importance of judges to be objective, importance of courage, importance of ethics, understanding of concepts and nuances, balancing of equities, property rights etc. Rough transcript of Chief Justice Kapadia's observations and speech is produced below. Listening to the Audio rather than reading the transcript alone will do better justice to the subtlities in Shri Kapadia's important and timely lecture.

SPEECH

I would like to share that I am a believer in God. I owe it to God, my family and certain great people including Shri PD Desai for what I am today.

There are students here to attend the lecture. I have a message for students coming from poor families - “Do not be disheartened. India is a great country. It can make as Chief Justice someone who started his career as a peon, as class four employee, in a small trust office; in this land of opportunity you can make it”. The trust where I was employed worked with Gagrat and Company. In the evenings and weekends, I used to work there and read references when time permitted. One day all of a sudden, Mr. Gagrat Swamy enquired who was I, and he stood by me. He promised me that the day, I promised the profession, he will give me the brief. And mind you, I have no family background in Law. Suddenly a man comes and offers me an opportunity and that is how I joined the profession.

Same thing happened again. I was in practice. Justice PD Desai came to Bombay from Calcutta where he was the Chief Justice. He called me to his chamber. Justice SC Pratap introduced me to him. I did not know him before.

Point I am making is have faith in God, in destiny. Contribute by your hard-work what god wills. This was my introduction.

Now coming to Justice PD Desai, there is a quote – “imitation is the best form of flattery”. I have imbibed good values from Justice PD Desai. He had great qualities - he was truly independent. He had nothing to fear. He had no personal agenda.This is very important in judicial career.

If Chief Justices both in the center and states have no personal agenda, path is very smooth. I always claim that the path of righteousness is easier than the path of deviousness. Further as far as Justice PD Desai is concerned, he was an excellent administrator - Meticulous on rules, reports. To this day Justice PD Desai's work has helped his successors to successfully govern the High Court which subsequent chief justices like Justice CK Takkar appreciate.

Justice PD Desai stood by the dignity of his office. He led all the Judges in integrity, in intellect. He led a systemic life. Sir Walter Scotts quote applies to the situation– Without courage there can not be truth. Without truth there can be no other virtue. These apply to life and character of Justice PD Desai. His advice to me in particular when I joined the Bombay high court was on clarity of thought.

Judges should focus on structure of Judgments and clarity of thought. In the judgments, we do not want high sounding phrases that dont make sense. High sounding phrases can cloud principles that we are supposed to describe in Higher Courts. One thing, I would like to clarify is that higher courts are forums of principle, not forums of approach – Clarity therefore is important.

When a Judge speaks in symposium or in public, his communication should be to be point, clear and well structured. He should frame Rules and Judgments very carefully.

He had this simple advice for judges – which I noted in my diary: “Please know what to omit rather than what to include. He always used to tell me whenever u sit in judgments on PIL matters, economic matters, always have the consequences in mind. It should not have an impact that may have adverse effect on larger public interest. This, I keep in mind and I meticulously follow even today. It has helped me in my work as CJI. That is the greatest advice he gave me.

His beliefs were even at that time towards charity, social good. He implemented that in action setting up trusts including this one. He told me never compromise your strengths and honor. He gave me number of examples where he did not compromise. He stood on his principles of strength and honor. He had respect for his work.

I would like to quote a French author who said “I should follow a straight route because it has been found by experience that straight road in the end is the happiest and most useful track. This is an advice I would like to share with younger people who are likely to join bar in future.

Justice PD Desai’s contribution was also appointment of great judges. He appointed Justice Ruma Pal, one of the finest lady judges of this country; I was lucky to work with her, She is a straight needle like person. Learnt so much from her when I sat with her in SC. Justice Kabir, my brother judge in SC was elevated in Calcutta by him. And so also Justice Sirpurkar.

His worked without remuneration as Chairperson for grievance Redressal Authority for Sardar Sarovar was service to nation. He worked day and night. Even there he maintained dignity of his office. He guides me even today. I consider myself lucky to be born in this country in time and age when he was born.

Today’s topic - Constitutional Morality - touches different sections of society. I would like to advice as elder brother of family. I do not believe in the classification – subordinate judge/higher judge etc. I prefer to address everyone as brother/ sister judges.

Let us remember Mahatma Gandhi - 'performance is my message’. Let us now move away from rhetoric to reality. Let us do our duty in silent way. Let work speak for ourselves. Let not individual glory guide us. Let us work for institution, manifest commitment for institutions. Thru the institutions serve the country.

Most important things I want to mention to Judges are on clarity and objectivity. What do I mean by objectivity? Courts - particularly higher courts - HC/SC they are courts of principles. Judges should not speak anything beyond principles of the case. No moralizing lectures.

In constitution, we have principle of separation of powers - Judiciary, Executive, and Legislature. Judges when they decide maters should decide it on objectivity. Some times, we judges impose our own likes/dislikes on society. 'Due process doctrine' is not applicable to India. Judges can not judge wisdom of Legislature. We have to work on constitution principles. I have no right on what others should do. I will work on basis of constitution principles. Now why I am stressing this. Senior lawyers today are not contributing enough to the development of law. Today in Supreme Court - people come only for interesting cases. More and more lawyers are not coming for understanding procedures. I am not forwarding criticism here. What I am trying to say is that there are nuances in law students should appreciate.

Take the ‘Doctrine of Reasonableness’. Many of the judges/lawyers/students argue abut reasonable-ness of law, Reasonableness of Legislative measures. There is nothing like reasonableness of doctrine of legislative measures. In articles 92, 96, reasonable-ness doctrine in legislative measures is unknown to Constitution. Please tell me how many can sincerely draw the distinction between reasonableness in article 90, and in article 14. These principles actually are very well settled between 1955-65 Judgments. Today we all are quick to use internet and download information/judgments. You won’t get nuances in such information downloaded from internet. How many are reading constitution by eminent works - such as HM Seervai’s work. Please work hard on certain concepts I am highlighting like the ‘Doctrine of Reasonableness’. Please try and understand how it applies in the context of article 90, article 14.article 265, inter-state trade and commerce. Understanding will help one succeed. It is hard work.

I have learnt this from my predecessors. It is humility that comes from learning; and it helps learn more. Money won’t make you happy. It is learning in life that will make you happy.

Most difficult issue in courts today is how to ‘balance the equities’. Balancing equities is again a legal concept. You should know the problems. There are eminent lawyers like Dushyant Dave. He makes our task tough. We have to answer queries lawyers raise. Let me give u some examples on debates. I am not commenting on decisions. Most of these examples pertain to balancing of rights and equities and conflicting interests. Take the case of interests of weaker sections versus interests of environment or interests of development versus interest of environment. These are most difficult exercises.

Can you totally rule out development in the interest of environment; the answer is no. Similarly can you rule out environment in the interest of development; the answer is again no.

Article 21 says, you shall not be deprive right without due authority of law. And it is not just human right. SC has read even plant right to article 21. Without that we can’t provide good healthy life for next generation. It is in law now. Inter generational equity has to be provided for.

There are some cases from Orissa/Chattisgarh. There are tribals there living on grass. I have seen it with my eyes. Can anyone say there should be no development in that area. The answer is no. How to provide user agencies - people that use forest for non-forest purpose? Should we make user agency pay for it - give education, give hospital, give school. Supreme Court has to balance environment/development.

We have been using ‘Discrimination, equality very loosely for last 60 yrs. Does equality mean should we give each person food grains free? No. Equality does not mean that. And then there is difference between discrimination and deprivation.

If the Govt says - food shall be given as free/subsidized to BPL families; it is a case of deprivation, not discrimination. It must be understood that equality is not a stand alone item. It has to be seen in context.

Another case. As opposed to food security for needy, someone says I am an HIB patient. And this person is not poor. He says HIB Second line treatment is expensive; And the Govt says we have no money, this man is not poor. Answer to Govt position is no. Article 21 cites Right to Life. You can not allow a citizen to die for want of funds in that particular case. It also is a case of deprivation not a case of equality. Look at the nuances – as the semantics change from equal access to deprivation whole issue changes.

One has to understand the nuances on equality, deprivation etc to be effective. My advice for students remains ‘Apply your mind to concepts. Whole game is about concepts. Constitutional Law is about concepts.

Similarly in Administrative law, if you read Supreme Court Judgment on Mcdonald's case – it brings out the distinction between administrative law (how the decision making process can be challenged) vis-à-vis constitutionality of a provision. Law made by legislature can be struck down by SC only on two principle grounds - one, violation of fundamental rights, and secondly excessive delegation/repugnancy/ultra vires. There is no third ground. In administrative law you have irrationality, proportionality etc. How many know about all this. We mix up concepts and go on arguing.

Please do not bring subjectivity. Objectivity is touchstone of judicious decision; objectivity is the touchstone of rule of law. When the Judge lays out the law, it must indicate objectivity. Justice MB Shah has brought out distinction between asset and consideration before the asset/requirement before the asset. If judge is clear headed he can bring out the difference between non-justicability of an asset of precedent and justicability/judicial review of a condition precedent of asset. Today’s students need to understand these if they want to succeed.

Today we are flooded with commercial matters. Students are interested in joining MNCs with big fat salary. People are talking but not many people are interested in making sacrifices for institution and national interest. I am not blaming them. It is reality of life.

Now take the balancing part. Which is more important in appointment to higher offices - - presumption of innocence or presumption of integrity or presumption of institutional integrity/competence etc. All these have to be weighed in the context of act placed before courts.

Similarly in criminal matters - decide by evidence, not by personal likes/dislikes. I am of the view that if courts decide on matters in principles, many of the controversies will be obliterated.

I would request my brother Judges when they attend seminars, Please share experiences with brother Judges so that they remain motivated. I visit high courts and lower courts. This helps understand among other things that infrastructure for courts matters. I interact with district Judges, students. I have learnt through interaction with juniors on several occasions. This is how humility and learning helps us.

We have made progress in infrastructure. Cleared projects - got support from states. In Bombay, one lady district judge, working in Naxal area, please make note - she did not have a bathroom (restroom) for 3 years. In such situations, where basic amenities are lacking why would people join. Fortunately, Govt has taken note of it and things have been moving. I want subsequent generation of judges to be comfortable. Every Judge should do his bit for infrastructure - fans, space etc. Rule of law requires infrastructure on ground. You can’t have courts in sheds, under staircases. So please think about infrastructure/basic comfort for others. When you think of others, God will help you and integrity will guide you. Whatever be the criticism, you manifest courage.

Constitutional morality can not be separated from ethical morality. Ethical morality is equally important. Judge should be ethically moral. Intellectualism alone won’t suffice. We do not need exceptional people. We want ethical people that understand nuances. That is enough for us. That will give credibility to the institution.

One more example for students - Right to Property was deleted from Constitution - article 19-1(f), articles 31-1, 31-2 deleted. But Article 300(A) which says no-one will be deprived of his property without process of law is intact. How many people know what the rule of law is on 300 (A). Whether compensation, Right to acquire does it still remain in 300(A) – there is big debate going on. Different nuances are there - Seervai, MP Singh commentary takes some positions - contrary view is presented in Durgadas Vats Commentary. We must go into this. This helps students to grow, contribute to law.

Even tension between executive/legislature if it is constructive is to be appreciated; as it contributes to the development of law. We need to be focused for success. And please remember that ability may take u to the top. But you shall need character to stay at the top.