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IN QUEST OF A SOURCE FOR RIGHTEOUS INSPIRATION AND DIRECTION

It might be worthwhile, for one and all concerned, to take a conscious note of and try and be guided by what a renowned legal legend, also a widely acknowledged outstanding humanitarian, of our own times, backed up by his lifelong wisdom and expertise, said:

•         The moment of truth has arrived.  The era of chicanery and disingenuousness, of obfuscation and slogan-mongering, is over.  Reality has at last overtaken us, shattering our illusions, exposing our outdated ideologies and leaving us with no option but to tread the path of pragmatism, in retreat from populism.

•         Time and again the Government has to make those hard decisions which are essential for the maintenance of order.  The making of such decisions cannot be avoided by shifting the responsibility to the judiciary.

•         The Supreme Court as well as the High Courts of India are vested with the widest possible powers. I am not aware of any constitution of the world which confers wider powers on its higher judiciary.) But the courts can decide only questions of fact or of law.  They cannot decide, and should never be called upon to decide, questions of opinion or belief or political wisdom.  It is not the court’s role to be an extended arm of the executive.  Public opinion or public beliefs may weight with the executive in shaping governmental policies.  But it is not for the court to decide whether there are cogent grounds for opinions or beliefs which the people may choose to entertain.

It is true that many questions which arise before a court can, in a sense, be regarded as political questions or questions of policy. But this is where perception and clarity of mind should come into play.  Diamonds are nothing but carbon, but on that account those who deal in diamonds are not called carbon merchants.

•        ‘Constitutional Morality’

When laws offend constitutional limitations, they can be invalidated by the Courts.  But when they offend against the basic notions of justice and proceed upon a total disregard of constitutional morality, in many cases they can be rectified only by a strong, mobilized public opinion. There are several amendments of law resorted to with a marked regularity which have no truck with constitutional morality.

•        The balance between the conflicting claims of public interest represented by officialdom and the public interest flowing from the administration of justice often calls for a delicate assessment into which perforce must enter considerations vital to the operations of Government on the one hand and the demands of adjudication on the other.  The responsibility fixed on the Court is a serious one, and there is no need to warn that this power which now vests in the Court can have grave consequences if he content of its potential is not truly appreciated and realized by those who wield it.  Whenever a Court breaks new ground, the development and recognition of new rights is often accompanied by the birth of problems surfacing also for the first time.  New doctrines must be cautiously applied and no Court can shirk its duty if it finds that the power has been rightly invoked.

•        Referring to a certain statute, Lord Reid said that he found it impossible ‘to discover or even surmise what the draftsman can have had in mind’. Commenting on the language in which different Acts or Parliament were couched, various authorities have expressed their deep dissatisfaction. “Laxity or ambiguity of expressions…’ was the verdict of the Statute Law Commissioners in 1835. ‘There is at least on passage in it which is absolute nonsense,’ observed Vice-Chancellor Kindersley in 1854. “Verbose and tautologous,” was the comment of the Master of the Rolls in 1834. “That chaos of verbal darkness,” was how Lord Justice McKinnon described a British statute in 1944. “Absurd,.. “ said justice Harman about another law in 1958.

•        The administration of justice has become so obsolescent that most people regard the law as an enemy rather than as a friend. The law may not be an ass but it is certainly a snail: the operation of our legal system is not merely slow but is susceptible to the most shameless delaying tactics, and resort to the courts has become a costly lottery which takes years in the drawing.

•       The Ideal of Excellence:

Lord Devlin pointed to three major defects in the present legal system in Britain: the availability of legal services depends upon wealth rather than need, mitigated only marginally by legal aid, which rightly has a low priority among the social services: justice is defined by an adversary system which is costly and primarily protects only the better-offs; and the focus of the system on protecting property tends to obliterate the social responsibility of lawyers. Those words apply equally to the situation in India. Though the problem of the administration of justice is so vast and so urgent, we have not even started nibbling at it.

•         There can be no excellence in the law without excellence in lawyers.

•        ‘Professionally speaking’

The legal profession at the highest level develops absorptive and analytic capacities of the human mind and offers great intellectual stimulus. It is no small service to be called upon to defend life, liberty and the other fundamental rights.

But a large degree of equipment is needed to discharge such duties properly. A lawyer with a well- furnished mind alone can be truly a counsellor at law; he alone can, not merely look up precedents, but guide his client along the path of wisdom, even of generosities which may appear irrelevancies to the preoccupied client. in the hands of such a lawyer, the law represents the application of reason to noble and purposeful ends.

(Above are memorable excerpts, making for a delightful and enlightening reading; hence randomly selected from the popular published speeches and articles of N A Palkhivala- Source: Books – WE, THE PEOPLE and We, the Nation THE LOST DECADES.)