In view of challenges of a changing society
August 10, 2014 was the 83rd birth anniversary of the late Ranjit Mahanty, one of the stalwarts and a doyen of the Bar of the Orissa High Court, who went on to become the Chairman of the Bar Council of India after Mr Ram Jethmalani. Mention was made of many pioneering ventures undertaken by Mr Mahanty for a more efficient functioning of the judiciary. An important historic event deserved to be highlighted but was by oversight left out. The silent march of the members of the Orissa High Court Bar Association from the High Court to the Gopabandhu Bag in Cuttack in protest against the suspension of Fundamental Rights pursuant to the promulgation of Emergency was led by him. The Orissa HC Bar Association was the first one in India to express its resentment against the denial (though temporarily) of Fundamental Rights in a dignified Gandhian manner.
On the occasion of Mr Mahanty’s birthday, Chief Justice of Orissa High Court Mr Amitava Roy raised many pertinent issues relating to the role of judiciary in the contemporary scenario. In a very befitting and touching manner, he described himself as the head of the State’s “judicial family”. He spoke on issues that matter to all of us in the profession and the society at large. In a very articulated speech, ending with a very apt quotation from Rabindranath Tagore, he made the audience aware of the responsibilities and receptivity of a responsive judiciary in our democracy with its inherent inequalities and imbalances. The Chief Justice brought to the fore the role of judiciary as an active institution to fulfil the socioeconomic and egalitarian goals of the Constitution of India. He rightly emphasised the need and significance of “institutional integrity”, a current issue of public concern. There was also a very relevant reference to a more efficient, meaningful and purposive justice delivery system. The Bar and the Bench, as often said, are two sides of a coin and are two wheels of the “juggernaut” of justice. Harmony and reciprocity between the two are conditions for ensuring an effective justice delivery system.
Fortunately, when the head of the “judicial family” expressed his views in unambiguous terms, Chief Minister Naveen Patnaik was also present. The State of Odisha and the Union of India are the biggest litigants before the High Court. The performance of Odisha in its sincerity and diligence in ensuring a positively participatory role in the justice delivery system calls for a substantial improvement.
In a State like ours, where a majority of the citizens are poor, a handful are fortunate enough to be rich and affluent, and the hiatus between the richest and the poorest is very wide. Cases involving denial of justice or exploitations in contravention of legal entitlements deserve to be looked into with the required quantum of diligence and indulgence by the Court. Art.226 of the Constitution confers wide plenary powers on the High Court, and such powers are to be utilised to wipe out the injustices without fear or favour, especially in a poverty-ridden society such as ours. Maladministration and bad governance calls for a purposive and meaningful exercise of this power emanating from the Constitution.
In an earlier article in the context of the chit fund scandal being handed over to the CBI, I had quoted from a judgment of the High Court of 1993. Chief Justice Bl Hansaria, in the Cuttack liquor tragedy case (in which I had the privilege of appearing pro bono for a lawyer-petitioner), commenced the judgment with the words: “The mighty says to the meek that you cannot command me to act; I shall act if I like; I shall not act if I choose not to act. The meek says that I possess the strength of law to give you the command; the law, which is no respector of person and which does not allow anybody to rise so high as to be above it.” The attitude of the State persists to be such that the above observations are relevant even to date.
Odisha is still a conservative and feudal society. It is through the initiative of social activists-lawyers and through pursuant judicial actions, we can bring about some tangible alterations in the existing anachronistic structure which is preventing the progress and growth of the society in the right direction. The present-day Odisha is plagued with litigations of different types, some involving conflicting personal interests and some others involving larger and genuine public interests. A heavy duty is cast on the Bar to marshal these causes in an appropriate manner so as to meet the requirements of a society in transition. This, in turn, casts an onerous duty on the Judges to deliver judgments through innovative moulding of reliefs that eventually remedy the socio-legal maladies and maladministration involved in many of these litigations. Any laxity on the part of the judicial process in this regard is likely to provide incentives to the executive to function in the manner it so pleases by exercising what it calls “absolute discretion”. It is forgotten that law has advanced enough not to countenance any unfettered discretion in the public law domain. Every public power is coupled with a public duty and has to subserve the social objects for which such a power is conferred. The recent revelations relating to allotment of land and houses by the State Government and its instrumentalities amply demonstrated this. lord Denning meaningfully holds: The Hon’ble Judge has every right to “iron out the creases” without materially altering the basic fabric.
The mechanics of law have to be calibrated to the changing requirements of time so that after “ironing out the creases” relating to the contents of a statute, the remedies are also to be so moulded and designed as to meet the real ends of justice. To revert to the words of lord Denning (who as my guru and moulded my mind to be in the profession of law): “I cannot refrain from referring to a few words I said in 1949 at the end of my Hamlyn lecture, Freedom under the law (1949) page 126: Just as the pick and shovel is no longer suitable for the winning of coal, so also the procedure of mandamus, certiorari, and actions on the case are not suitable for the winning of freedom in the new age. They must be replaced by new and up-to-date machinery, by declarations, injunctions, and actions for negligence …… We have in our time to deal with changes which are of equal constitutional significance to those which took place 300 years ago. let us prove ourselves equal to the challenge.”
The need of the hour is to have responsive and creative judges and equally competent and involved lawyers to assist and cooperate in the vital social service of improving and reorienting the justice delivery system. A little bit of introspection would reveal that we are often conditioned by pedantic and close-minded attitude.
This results in the tyranny of status quo and halts the march towards the necessary structural changes in our moribund social framework. Under such unfortunate circumstances, law ceases to be an instrument of social change and perpetuates the inequalities that it ought to wipe out for a better tomorrow. This is an ominous sign not conducive to the future growth of a welfare society. And this concerns us all.
(The writer, a Senior Advocate, is a former All India Service officer, a former diplomat, a former editor, a former President of Orissa High Court Bar Association and a former Advocate General of Odisha. jayantdas@hotmail.com)