Delivering the 17th Justice P D Desai Memorial Trust lecture, CJI Ramana also spoke about how the rule of law would become 'illusory' if controlled by the legislature or the executive.

New Delhi: Chief Justice of India N.V. Ramana Wednesday said the right of people to change those in office through elections was no “guarantee against tyranny” of the elected and argued that democracy and its benefits could only be ensured by giving space to both “reasoned and unreasonable” public discourse.

Delivering the ’17th Justice P D Desai Memorial Trust’ lecture virtually, CJI Ramana also spoke about why the judiciary cannot be controlled, directly or indirectly, by the legislature or the executive, or else the rule of law would become illusory.

Ramana also mentioned how social media trends can affect the functioning of the judiciary. But he also underlined that judges cannot stay “in ivory castles”, and “have to be mindful of the fact that the noise” amplified on social media “is not necessarily reflective of what is right and what the majority believes in”. (The Print)

FULL TEXT OF 17TH P D DESAI MEMORIAL LECTURE DELIVERED BY
HON’BLE THE CHIEF JUSTICE OF INDIA JUSTICE N V RAMANA

1. It is a great pleasure for me to be delivering the 17th Justice P. D. Desai
Memorial Lecture. Justice Desai’s distinguished judicial career spanned
over two decades, during which he established himself to be a fiercely
independent judge and an exceptional administrator. He always believed
that law and justice are essential agents for initiating social change. His
desire to build a better tomorrow can be witnessed from his humanitarian
actions. The creation of “Praleen Trust” and its noble actions symbolize his
belief that the law must have a human face.
2. ‘Rule of Law’ is the topic that I am going to speak on today. Irrespective of
what era we are living in, who the rulers are, what the mode of governance
is, this is one topic which is never going to lose its sheen and relevance.
Because, the story of ‘Rule of Law’ is nothing but the story of civilisation of
humans.
3. When talking about ‘Rule of Law’, it is necessary to first understand what
the law is. Law, in its most general sense, is a tool of social control which
is backed by the sovereign. However, is this definition complete in itself? I
would think not. Such a definition of law makes it a double edged sword.
It can be used not only to render justice, it can also be used to justify
oppression.
4. Renowned scholars have therefore argued that a law cannot really be
classified as a “law” unless it imbibes within itself the ideals of justice and
equity. An “unjust law” might not have the same moral legitimacy as a
“just law”, but it might still command the obedience of some sections of
the society to the detriment of others.
5. What is clear is that both these thoughts highlight certain facets of what
is meant by the term “law”. I think that any law backed by a sovereign,
must be tempered by certain ideals or tenets of justice. Only a State that
is governed by such law, can be said to have the “Rule of Law”.
6. The legal history of pre-Independence India gives us a clear picture of this.
The British colonial power enacted various laws to further their economic
and political interests, at the cost of the colonised. The British used the
law as a tool of political repression, enforcing it unequally on the parties,
with a different set of rules for the British and for the Indians. It was an
enterprise famous for “Rule by Law”, rather than “Rule of Law” as it aimed
at controlling the Indian subjects. Judicial remedies lost their significance,
as they were administered keeping in view the best interests of the colonial
power, rather than what was just or legal.
7. The historical trial of Raja Nand Kumar in 1775, a case famously
recounted as the “Judicial Murder of Raja Nand Kumar” amply
demonstrates this. Raja Nand Kumar had accused the then Governor
General Warren Hastings of receiving bribe. Shortly after this incident,
charges of forgery were preferred against Raja Nand Kumar. On 15th June,
1775, Raja Nand Kumar was found guilty of the charges and was awarded
the capital punishment by Chief Justice Impey, a close aide of Warren
Hastings. The trial had many peculiarities: such as instead of being tried
before the local Court by local men he was tried by a British judge and
jury, who arguably did not have jurisdiction. Historians have later stated
that Raja Nanda Kumar paid the price for daring to accuse the Governor
General Warren Hastings.
8. Around 150 years later, there was a growing consciousness about the
values of liberty, equality, justice and fraternity. As part of persistent and
organised campaign for the freedom, the Indian masses were increasingly
made aware of how unjust and oppressive the discriminatory laws of the
colonisers are. In 1922, during his famous trial, Mahatma Gandhi
captured the imagination of the nation with the following words:
“Little do they realize that the Government established
by law in British India is carried on for this exploitation
of the masses... In ninety-nine cases out of hundred,
justice has been denied to Indians as against Europeans
in the courts of India.”
9. He thus concluded, “In my opinion, the administration of the law is thus
prostituted, consciously or unconsciously, for the benefit of the exploiter.”
10. Our struggle for independence, thus marked our journey towards
establishment of a state defined by the “Rule of Law”. The move from a
colonial past to the present required a shift from the colonial idea of laws
imposed by foreign rulers for their benefit, to laws given by our people to
govern themselves, laws which are not merely commands but are also
embodied by a sense of justice. There was a need to give guarantee for the
laws to be framed with human face for the benefit of the masses. A
framework was needed to ensure this. The framework that which forms
the binding link between law and justice in this country. That is what “We
the people” gave to ourselves in the form of the Constitution.
11. When the framers set out to draft the Constitution, the existing social
conditions played a crucial role. The newborn country was faced with
enormous challenges such as illiteracy, poverty, immense religious,
ethnic, linguistic, and social diversity. The framers envisaged a document
which not only took care of the prevailing conditions but would also continue
and be relevant for all times to come. It is therefore, conceived as a living
document whose contents evolve over the years, as the Courts deal with
new situations and question and interpret the Constitution in the light of
the same.
12. The Constitution embodies within itself the concept of Rule of Law and the
same can be witnessed from our Preamble, the Fundamental Rights, the
Directive Principles of State Policy, the Separation of Powers, etc. By
situating the concept of Rule of Law at the confluence of three important
values – human dignity, democracy and justice, our founding fathers
showed the path for the rest of the world too.
13. In its 1955 “Act of Athens”, the International Commission of Jurists
explicitly stated the “state” has to be subject to the law. Subsequently in
the year 1959, under the support of the same Commission, International
Congress of Jurists – consisting of 185 judges, practicing lawyers and
teachers of law from 53 countries - convened in New Delhi and issued the
“Declaration of Delhi”, which is one of the seminal documents on rule of
law. After reaffirming the “Act of Athens” and particularly the need for a
completely independent judiciary, the International Congress of Jurists
declared that the rule of law “is a dynamic concept which must be employed
to safeguard and advance the civil and political rights of individual in a free
society.”
14. Now, more than 70 years down the line, the entire world is facing an
unprecedented crisis in the form of Covid-19. At this juncture, we
necessarily have to pause and ask ourselves as to what extent we have
used the Rule of Law to ensure protection to, and, welfare of all of our
people. I do not intend to provide an evaluation of the same. Both my office
and my temperament prevent me from doing so. But I began to feel that
this pandemic might yet be a mere curtain raiser to much larger crises in
the decades to come. Surely we must at least begin the process of
analysing what we did right and where we went wrong.
15. Coming back to the topic, from within the perspective of legal positivism,
many conceptions of Rule of Law have emerged. From Dicey to Lord
Bingham, different formulations of principles informing the concept of rule
of law have been made. It would be impossible to adequately address the
rich tapestry woven by human intellect in this area in the course of a
speech. However, I thought it would be relevant to emphasise 4 principles,
given the current events across the globe.
16. The first principle is that ‘laws must be clear and accessible’. This is
the fundamental point that when laws are expected to be obeyed, the
people at least ought to know what the laws are. There cannot therefore
be secretive laws, as laws are for the society. Another implication of this
principle is that they should be worded in simple, unambiguous language.
In furtherance of the above principle, in India we are constantly striving to
make legislations and judgements accessible to general public by
translating them in to various Indian languages.
17. The second principle relates to the idea of “equality before the law”.
Laws are to be applied on an equal basis in a non-arbitrary fashion. This
is, of course, an important fundamental right promised under the Indian
Constitution.
18. An important aspect of “equality before law” is having equal “access to
justice”. I must emphasize that, in a democratic country like ours, access
to justice forms the bedrock of the “Rule of Law”. However, this guarantee
of equal justice will be rendered meaningless if the vulnerable sections are
unable to enjoy their rights because of their poverty or illiteracy or any
other kind of weakness. In India, the Legal Aid Authority is estimated to
serve more than 70% of the population who are entitled for free legal aid,
making the Indian Legal Aid system one of the largest in the world.
19. Another aspect I want to highlight over here, which might be a bit of a
tangent but is certainly very important, is the issue of ‘gender equality’.
Traditional roles are changing within the family, as is the structure of the
family itself. Most nations have recognized equality and dignity of women,
either constitutionally or statutorily.
20. The legal empowerment of women not only enables them to advocate for
their rights and needs in society, but it also increases their visibility in the
legal reform process and allows their participation in it.
21. Bias and prejudice necessarily lead to injustice, particularly when it
relates to the minorities. Consequently, the application of the principles of
Rule of Law in respect of vulnerable sections has to necessarily be more
inclusive of their social conditions that hinder their progress.

22. This leads me to the third principle, which is that members of society
have the “right to participate in the creation and refinement of laws”
that regulate their behaviours. We live in a democracy. The very essence
of a democracy is that its citizenry has a role to play, whether directly or
indirectly, in the laws that govern them. In India, it is done through
elections, where the people get to exercise their universal adult franchise
to elect the people who form part of the Parliament which enacts laws.
Incidentally, we, the Indian people gave ourselves the Universal Adult
Franchise from day one of the coming into existence of our Republic,
unlike some of the ‘advanced democracies’.

23. In the seventeen national general elections held so far, the people have
changed the ruling party or combination of parties eight times, which
accounts for nearly 50 percent of number of general elections. In spite of
large scale inequalities, illiteracy, backwardness, poverty and the alleged
ignorance, the people of independent India have proved themselves to be
intelligent and up to the task. The masses have performed their duties
reasonably well. Now, it is the turn of those who are manning the key
organs of the State to ponder if they are living up to the Constitutional
mandate.

24. It has always been well recognized that the mere right to change the ruler,
once every few years, by itself need not be a guarantee against tyranny.
The idea that people are the ultimate sovereign is also to be found in
notions of human dignity and autonomy. A public discourse, that is both
reasoned and reasonable, is to be seen as an inherent aspect of human
dignity and hence essential to a properly functioning democracy. As
Professor Julius Stone observed in his book “The Province of Law”,
elections, day to day political discourses, criticisms and voicing of protests
is integral to the democratic process.

25. The idea of the judiciary, as a “guardian of the Constitution, brings me to
the fourth and final principle- the presence of a “strong independent
judiciary”.

26. The judiciary is the primary organ which is tasked with ensuring that the
laws which are enacted are in line with the Constitution. This is one of the
main functions of the judiciary, that of judicial review of laws. The
Supreme Court has held this function to be a part of the basic structure
of the Constitution, which means that the Parliament cannot curtail the
same.

27. But the importance of the judiciary should not blind us to the fact that the
responsibility of safeguarding constitutionalism, lies not just on the
Courts. All the three organs of the State, i.e., the executive, legislature and
the judiciary, are equal repositories of Constitutional trust. The role of the
judiciary and scope of judicial action is limited, as it only pertains to facts
placed before it. This limitation calls for other organs to assume
responsibilities of upholding Constitutional values and ensuring justice in
the first place, with the judiciary acting as an important check.

28. For the judiciary to apply checks on governmental power and action, it has
to have complete freedom. The judiciary cannot be controlled, directly or
indirectly, by the legislature or the executive, or else the Rule of Law would
become illusory. At the same time, judges should not be swayed by the
emotional pitch of public opinion either, which is getting amplified through
social media platforms. Judges have to be mindful of the fact that the noise
thus amplified is not necessarily reflective of what is right and what
majority believes in. The new media tools that have enormous amplifying
ability are incapable of distinguishing between right and wrong, good and
bad and the real and fake. Therefore, media trials cannot be a guiding
factor in deciding cases. It is therefore extremely vital to function
independently and withstand all external aids and pressures. While
there is a lot discussion about the pressure from the executive, it is
also imperative to start a discourse as to how social media trends can
affect the institutions.

29. The above, however, should not be understood as meaning that judges and
the judiciary need to completely disassociate from what is going on. Judges
cannot stay in “ivory castles” and decide questions which pertain to social
issues.

30. The oath we took, to perform our duties ‘without fear or favour, affection or
ill-will’, applies equally to governmental and non-governmental entities.
The ultimate responsibility of a judge is, after all, to uphold the
Constitution and the laws. Reason, reasonableness and protection of
human dignity are the values that will serve us well.

31. I would now like to speak on the role of lawyers in upholding the “Rule of
Law”. It demands expertise, experience and commitment. Lawyers have an
obligation to perform their duties with integrity and diligence, with full
respect for the Court, opposing counsel, clients, victims, witnesses and
persons involved in proceedings. We need social-virtue rather than
economically self-interested behaviour.

32. Historically, lawyers have a rich tradition of social activism demonstrated
by the number of lawyers who participated in the Indian freedom struggle.
In part, this civic virtue stems from their having had a public-minded
clientele. We need now to rebuild and recreate a tradition of civic
professionalism. We need a professional ideology about social
responsibility. Here, I would urge both young and senior counsels to
extend a helping hand to those in need of justice. Extending ease of access
to justice is no less a social justice. Let economy, gender, class or caste
never be a hinderance in the path to secure justice.

33. Undoubtedly, reverence for the “Rule of Law” is our best hope for survival
as a free society. In order to advance the “Rule of Law” we primarily need
to create a society where “Rule of Law” is respected and cherished. Only
when the citizens believe that they have fair and equal access to justice,
can we have sustainable, just, inclusive and peaceful societies. Citizens
can strengthen the “Rule of Law” by being knowledgeable about it and by
applying it to their daily conduct and pushing for justice when needed.

34. I am taking the liberty to quote in Telugu, Maha Kavi Gurajada Appa Rao,
a great poet and reformist of 19th / 20th Century. He said, and I quote :
“Desamamte Matti Kadoi, Desamamte ManushulOi” (unquote). Gurajada
gave a universal definition to the concept of nation. He said “a nation is
not merely a territory. A nation is essentially its people. Only when its
people progress, the Nation progresses”.

35. You are the stewards of this nation and custodians of a very rich tradition.
I hope that you contribute by way of giving back something to this society,
to this great nation which has bestowed you with so many privileges. I
must lastly state that the work of ensuring complete justice as aspired to,
under the Constitution can never be said to be completed. The mandate of
our Constitution is to work tirelessly to surpass our own expectations, to
make India a country wherein rights are cherished, and which sets an
example for other countries to follow. There is no better way to end this
speech on “Rule of Law” than reciting a poem by Kaviguru Ravindranath
Tagore,

“Where the mind is without fear and the head is held high
Where knowledge is free
Where the world has not been broken up into fragments
By narrow domestic walls
Where words come out from the depth of truth
Where tireless striving stretches its arms towards perfection
Where the clear stream of reason has not lost its way
Into the dreary desert sand of dead habit
Where the mind is led forward by thee
Into ever-widening thought and action
Into that heaven of freedom, my Father, let my country awake.”
Thank you.