The complications:
Indian Judiciary is being criticized by all in the recent past. The media can criticize the judiciary and make it a news item using the general anger of the people on the Justice Delivery Mechanism in this country. But, in my opinion, many legal professionals, respected citizens and the respected judges too criticize the judiciary as it will cause a serious damage to the society if the judiciary and especially Higher Judiciary are not functioning as expected or as functioned in the past. The fact remains that Indian Judiciary has done a great job and we have seen land-mark judgments in the past while interpreting Part-III and Part-IV of the Indian Constitution. The Indian Judiciary has taken a serious notice of omissions and commissions on the part of the executive and the interference is resulted in some public good. The judiciary has certain limitations and it is the responsibility of the Judiciary to make law and the Courts can only interpret law. Despite the fact that the Courts can only interpret law ascertaining the legislative intention, the laudable interpretation of Part-III and Part-IV of the Constitution paved the way to look into the public interest and public cause; and today judiciary, at times, continue looking even into the omissions and commissions on the part of the executive based on the precedents given the limitations. It’s a very complicated job and Judiciary in India has done it well while exercising the Writ Jurisdiction conferred on the High Courts under Article 226 of the Constitution of India and exercised by the Supreme Court under Article 32 of the Constitution of India. We have environmental pollution laws, but, we know as to how those are being implemented and the political influence in the course. It is the court which can insist upon on the concerned officials of the Government to follow the environmental pollution laws and who will rescue the precious rights of the people in the absence of judiciary? If we look at the petitions pending before various courts alleging environmental pollution and the violation of environmental pollution laws, the same be a testimony to the fact as to how the Government and the Government officials are functioning in this country. I do have the privilege of looking into one complicated environmental matter and the Judiciary could move industry to prevent the pollution after a marathon proceeding and many hearings and finally, the Chief Justice of a High Court has passed an elaborate judgment and the Supreme Court too affirmed the same. Despite having a clear judgment which becomes law of the land, the Government is slow in implementing the judgment. This is only one example as to the complicated and commendable job being done by the Indian Judiciary protecting the precious fundamental rights of the people of this great country.
I can certainly list-out many judgments of the Supreme Court and followed by many High Courts till day and those judgments are meant for the public good and executive could not have thought of those issues if the Judiciary is silent and exercised judicial restraint. Despite my criticism at times on some of the issue of judiciary, I feel very proud to remember the discharge of responsibility of our Constitutional Courts in the past and the criticism is being made with the fear that the track record of Indian Judiciary may get affected with certain issues. The pendency of cases before lower courts, the corruption, the technicalities etc. is a bigger issue and the Judiciary alone can not look into those issues unless the State Government and the Central Government is committed to reform the entire system. But, everyone who has the basic understanding of the limitations of Indian Judiciary and who knows the land-mark judgments of the Supreme Court forcing the executive to look at those issues is worried only about the standards of the judges of constitutional courts today, the appointments, the established tradition, the dignity, independence, impartiality and the accountability.
Apex Court on Education to all:
Education is important and should be available to every citizen in this country and only education can lead to overall development. The Indian Government or various State Governments have done well in the past in providing education to every citizen, but, with the privatization the situation has completely changed and we have seen players who treat education as a trade and business. Many great people in this country today have studied only in Government Schools and they feel happy to remember experience as a student pursuing elementary and primary education in Government Schools. Even I have studied in a Government school few years back, but, now, when I look at my school today, nobody is coming to that school despite having teachers and the entire infrastructure. Various State Governments are interested in framing the policies aiming to get votes and they do very rarely talk about imparting quality education using public funds. In this scenario, and where the influential people thought that imparting education could be a good trade and where the politicians or the people connected to politicians own private educational institutions, the Supreme Court has stepped-in dealing with various important issues touching the people of this country and especially the talented and poor people. I am aware of the complications surrounding the issue and the Supreme Court in T.M.A.Pai Foundation vs. State of Karnataka (2002) 8 SCC 481, has wonderfully dealt with the issue making it very clear that education is not a trade and the merit should never be disregarded. It is a wonderful judgment dealing with an important and complicated issue in my opinion. The Supreme Court again had to clarify certain issues pursuant to the T.M.A.Pai’s judgment in Islamic Academy of Education & Anr. vs. State of Karnataka & Ors. (2003) 6 SCC 697. Pursuant to the above referred two judgments of the Supreme Court, now we know the machinery in many States in this country with the spirit of ensuring that the education is not imparted purely as a trade. Supreme Court again has taken-up many issues surrounding education, imparting education, right to establish educational institution and the issue of autonomy in P.A.INAMDAR & Ors. vs. State of Maharashtra & Ors. (2005) 6 SCC 537. I would like to extract certain observations of the Supreme Court in P.A.INAMDAR & Ors. vs. State of Maharashtra & Ors. (2005) 6 SCC 537 as follows:
In P.A.INAMDAR & Ors. vs. State of Maharashtra & Ors. (2005) 6 SCC 537, before looking into the issues in detail, observed as follows:
“A Few Preliminary observations Before we embark upon dealing with the issues posed before us for resolution, we would like to make a few preliminary observations as a preface to our judgment inasmuch as that would outline the scope of the controversy with which we are actually dealing here. At the very outset, we may state that our task is not to pronounce our own independent opinion on the several issues which arose for consideration in Pai Foundation. Even if we are inclined to disagree with any of the findings amounting to declaration of law by the majority in Pai Foundation, we cannot; that being a pronouncement by 11- Judge Bench, we are bound by it. We cannot express a dissent or disagreement howsoever we may be inclined to do so on any of the issues. The real task before us is to cull out the ratio decidendi of Pai Foundation and to examine if the explanation or clarification given in Islamic Academy runs counter to Pai Foundation and if so, to what extent. If we find anything said or held in Islamic Academy in conflict with Pai Foundation, we shall say so as being a departure from the law laid down by Pai Foundation and on the principle of binding efficacy of precedents, over-rule to that extent the opinion of the Constitution Bench in Islamic Academy.”
The above extract in the Judgment makes it clear at the tradition in courts and the all courts in this country should adhere to the judicial tradition and discipline. I have seen some instances. When we quote the judgment of the Supreme Court before High Court on certain points or issues, there are judges who can say simply that the judgment is not applicable to the facts of the case. I have seen a District Judge referring to the judgment of the High Court on a point without any seriousness. The established tradition is being eroded and it’s a serious issue. Every citizen in this country may not afford to take-up the case to the Supreme Court when he is clear as to the law and law laid down by the Apex Court.
Again, the referene in the P.A.InamDar & Ors case dealing with the issue of education and concepts is as follows:
“89. There are a few concepts which should be very clear in our minds at the very outset, as these are the concepts which flow as undercurrents in the sea of issues surfacing for resolution in all educational cases. These concepts are referable to : (i) What is ‘education’? (ii) What is the inter-relationship of Articles 19(1)(g), 29 and 30 of the Constitution? (iii) In the context of minority educational institutions, what difference does it make if they are aided or unaided or if they seek recognition or affiliation or do not do so? (iv) Would it make any difference if the instructions imparted in such educational institutions relate to professional or non-professional courses of study? Education ‘Education’ according to Chambers Dictionary is “bringing up or training; strengthening of the powers of body or mind; culture.”
90. In Advanced Law Lexicon (P. Ramanatha Aiyar, 3rd Edition, 2005, Vol.2) ‘education’ is defined in very wide terms. It is stated : “Education is the bringing up; the process of developing and training the powers and capabilities of human beings. In its broadest sense the word comprehends not merely the instruction received at school, or college but the whole course of training moral, intellectual and physical; is not limited to the ordinary instruction of the child in the pursuits of literature. It also comprehends a proper attention to the moral and religious sentiments of the child. And it is sometimes used as synonymous with ‘learning’.”
91. In The Sole Trustee, Lok Shikshana Trust v. C.I.T., (1976) 1 SCC 254, the term ‘education’ was held to mean – “the systematic instruction, schooling or training given to the young in preparation for the work of life. It also connotes the whole course of scholastic instruction which a person has received. What education connotes is the process of training and developing the knowledge, skill, mind and character of students by formal schooling.”
92. In ‘India – Vision 2020’ published by Planning Commission of India, it is stated (at p.250) – “Education is an important input both for the growth of the society as well as for the individual. Properly planned educational input can contribute to increase in the Gross National Products, cultural richness, build positive attitude towards technology and increase efficiency and effectiveness of the governance. Education opens new horizons for an individual, provides new aspirations and develops new values. It strengthens competencies and develops commitment. Education generates in an individual a critical outlook on social and political realities and sharpens the ability to self- examination, self-monitoring and self-criticism.”
93. “The term ‘Knowledge Society’, ‘Information Society’ and ‘Learning Society’ have now become familiar expressions in the educational parlance, communicating emerging global trends with far-reaching implications for growth and development of any society. These are not to be seen as mere clichi or fads but words that are pregnant with unimaginable potentialities. Information revolution, information technologies and knowledge industries, constitute important dimensions of an information society and contribute effectively to the growth of a knowledge society.” (ibid, p.246)
94. “Alvin Toffler (1980) has advanced the idea that power at the dawn of civilization resided in the ‘muscle’. Power then got associated with money and in 20th century it shifted its focus to ‘mind’. Thus the shift from physical power to wealth power to mind power is an evolution in the shifting foundations of economy. This shift supports the observation of Francis Bacon who said ‘knowledge itself is power’; stressing the same point and upholding the supremacy of mind power, in his characteristic expression, Winston Churchill said, “the Empires of the future shall be empires of the mind”. Thus, he corroborated Bacon and professed the emergence of the knowledge society.” (ibid, p.247)
Quadri, J. has well put it in his opinion in Pai Foundation (para 287) – “Education plays a cardinal role in transforming a society into a civilised nation. It accelerates the progress of the country in every sphere of national activity. No section of the citizens can be ignored or left behind because it would hamper the progress of the country as a whole. It is the duty of the State to do all it could, to educate every section of citizens who need a helping hand in marching ahead along with others”.
95. According to Dr. Zakir Hussain, a great statesman with democratic credentials, a secularist and an educationist, a true democracy is one where each and every citizen is involved in the democratic process and this end cannot be achieved unless we remove the prevailing large-scale illiteracy in our country. Unless universal education is achieved which allows every citizen to participate actively in the processes of democracy, we can never claim to be a true democracy. Dr. Zakir Hussain sought to ensure that the seeds of knowledge were germinated in the minds of as many citizens as possible, with a view to enabling them to perform their assigned roles on the stage of democracy. [Dr. Zakir Hussain, as quoted by Justice A.M. Ahmadi, the then Chief Justice of India, (1996) 2 SCC (J) 1, at 2-3.]
96. Under Article 41 of the Constitution, right to education, amongst others, is obligated to be secured by the State by making effective provision therefor. Fundamental duties recognized by Article 51A include, amongst others, (i) to develop the scientific temper, humanism and the spirit of inquiry and reform; and (ii) to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement. None can be achieved or ensured except by means of education. It is well accepted by the thinkers, philosophers and academicians that if JUSTICE, LIBERTY, EQUALITY and FRATERNITY, including social, economic and political justice, the golden goals set out in the Preamble to the Constitution of India are to be achieved, the Indian polity has to be educated and educated with excellence. Education is a national wealth which must be distributed equally and widely, as far as possible, in the interest of creating an egalitarian society, to enable the country to rise high and face global competition. ‘Tireless striving stretching its arms towards perfection’ (to borrow the expression from Rabindranath Tagore) would not be successful unless strengthened by education.
97. Education is “-continual growth of personality, steady development of character, and the qualitative improvement of life. A trained mind has the capacity to draw spiritual nourishment from every experience, be it defeat or victory, sorrow or joy. Education is training the mind and not stuffing the brain.” (See Eternal Values for A Changing Society, Vol. III Education for Human Excellence, published by Bharatiya Vidya Bhavan, Bombay, at p. 19)
“We want that education by which character is formed, strength of mind is increased, the intellect is expanded, and by which one can stand on one’s own feet.” “The end of all education, all training, should be man-making. The end and aim of all training is to make the man grow. The training by which the current and expression of will are brought under control and become fruitful is called education.” (Swami Vivekanand as quoted in ibid, at p.20)
98. Education, accepted as a useful activity, whether for charity or for profit, is an occupation. Nevertheless, it does not cease to be a service to the society. And even though an occupation, it cannot be equated to a trade or a business.
99. In short, education is national wealth essential for the nation’s progress and prosperity.”
While dealing with an important, sensitive and complicated subject, the Apex Court in the judgment has further opined as follows:
“It is for the Central Government, or for the State Governments, in the absence of a Central legislation, to come out with a detailed well thought out legislation on the subject. Such legislation is long awaited. States must act towards this direction. Judicial wing of the State is called upon to act when the other two wings, the Legislature and the Executive, do not act. Earlier the Union of India and the State Governments act, the better it would be. The Committees regulating admission procedure and fee structure shall continue to exist, but only as a temporary measure and an inevitable passing phase until the Central Government or the State Governments are able to devise a suitable mechanism and appoint competent authority in consonance with the observations made hereinabove.”
The above reference makes it very clear that the Court is aware of its limitations, but, it is compelled to step-in for public good at times and the public at large appreciates this.
While making it clear that it is for the State Government and the Central Government to deal with the issue, the Apex Court has also reminded the fact that any decision or the law made by the Government is subject to judicial review and the relevant extract of the judgment is as follows:
“Central or the State Governments shall be open to judicial review in accordance with the settled parameters for the exercise of such jurisdiction.”
Why to criticize Higher Judiciary today:
Many acknowledge the fact that the Higher Judiciary in India has discharged its complicated and constitutional responsibilities well given the limitations. But, good work will not justify any wrong doing and that is why the Higher Judiciary today is being criticized on certain issues.
It is known that Hon’ble Justice V.R.Krishna Iyer has been expressing his opinion and criticizing certain issues in the Judiciary. I have read an article written by Justice V.R.Krishna Iyer in Universal’s magazine for Legal professionals “LAWYERS” recently titled “Who will judge the judges?”. His opinion on Indian Judiciary and the praise is as follows:
“Let us not permit forensic fascism. By and large, India’s judges are of high standards. But, few foul the Bench and shake the faith of the people in the system.”
Dealing with the system of collegium and its impact, Hon’ble Justice V.R.Krishna Iyer, in the Article, has opined as follows:
“Judges with a class bias are misfits in a socialist republic. Some judges with a communal bend of mind are on the Bench. The regionalism and communalism of this body called collegium has brought down the greatness of India’s fine judiciary”.
Dealing with as to whose responsibility it is to correct the system, Justice V.R.Krishna Iyer has appealed to the parliamentarians in this country as follows:
“My appeal to parliamentarians is to wake-up and implement glasnost and perestroika in the judiciary. They control the executive and strike down laws you make. Who controls them? In the name of independence you can not have judicial absolutism and tyranny.”.
Concluding the topic and dealing with the responsibility of the Parliament and Parliamentarians in this country, Hon’ble Justice V.R.Krishna Iyer, has opined as follows:
“The executive is weak and tends to treat this country as a dollar colony. The judiciary is British-oriented and precedent-board. Parliament at least must be supreme, activist, sovereign, democratic, socialist and, secular. If you fail, India dies. Never. You are the voice of swaraj, the victory of a do-or-die struggle. Your Constituency is the people of India.”
Note: the views expressed are my personal, views are expressed with the intention of public and have no intention to insult any institution.
Author:
V.DURGA RAO, Advocate, Madras High Court.
Email: vdrao_attorney@yahoo.co.in
