The law should always march parallel to the aspirations of the people. When the law is unable to keep pace with the nation, it is time to resort to amendment of law — be it constitutional law or ordinary law, explains RC AGGARWAl
Poverty is the worst of crimes,” said GB Shaw. Indian poverty is appalling and mainly accounts for disputes between the poor and the rich. This poverty litigation is at the lower courts. The legal profession is not oriented to settlement of disputes because they themselves are poor and there is no orientation for settlement of cases when a litigant comes to a lawyer with a dispute.
Necessary changes in the Advocate’s Act should be made to make it obligatory in the ethics of legal profession that the lawyer’s first priority should be to settle cases than to initiate litigation. In India, litigation arrears are so terrible that justice in the Indian courts with its slow processes and appeals, revisions, and reviews make justice, justices and justicing an interminable phenomenon. If the patriotic legislature has any concern for social and economic justice, it should take away too many appeals and revisions, one appeal being sufficient; this will reduce the pendency in Indian courts considerably.
The Constitution of India is a collective declaration of the determination of the people of a nation to live in an orderly fashion for the common good and well-being of the whole nation. The Constitution should be alive and responding document to meet the needs, necessities and exigencies of the changing socio-economic, cultural and political environment, not only of the nation but of the entire globe. If the Constitution does not admit the changing concepts of human ecological conditions, it shall not only retard the march of the nation towards its logical goal, but also generate socio-economic-political tension and which shall eventually pave the way for the undoing of the Constitution.
The higher judiciary of our land, which is entrusted with the onerous task of protecting, preserving and enforcing the Constitution, cannot and should not be unaware of and unmindful of the marching trends of human aspirations and the fallouts of conflicting rights and equalities. The success of the Constitution also rests with the Bar and the judiciary in a very large measure. Wooden interpretation and technical enforcement of the Constitution just by its words and not by spirit shall prove to be destructive of the Constitution.
The law should march in a parallel line with the aspirations of the people of the nation. The march of law is largely controlled by the judiciary. When the law is unable to keep pace with the march of the nation, resort to amendment of law, be it constitutional law or ordinary law. It is true that the courts interpret the law as it is and the legislature amends the law as it ought to be. The evils of casteism, communalism, criminalisation, and corruption have stood in our way to progress and development. It is time to garner strength, both moral and intellectual, to combat them. To achieve the lofty ideals enshrined in our Constitution, we cannot adopt a process involving violence and bloodshed, but a gentle process, not of revolution, but of reformation. To emphasise, some of our greatest fighters for Independence were legal luminaries. Hence, the members of the legal fraternity should come forward and fight the divisive forces and work for the preservation of the fundamental values upheld by the Constitution.
In the words of Chief Justice Earl Warren of the Supreme Court of America, “The preservation of a democratic society needs a militant Bar, for there can be no compromise or surrender where the basic rights of a citizen are in jeopardy.” The Constitution of India is a remarkable document and it stands as a lasting monument to the wisdom of our founding fathers. It is the Constitution which ensures the unity, integrity and progress of our country.
A striking feature of our country is its tremendous diversity — so many religions, castes, ethnic groups, cultures etc. The only policy which can keep our country together and lead it to progress is the policy of secularism and equal respect for all. These were the ideals which great emperors Ashoka and Akbar taught us.
Article 301 of the Constitution enshrines the principle of economic unity of our country. By providing that trade and commerce shall be free throughout the territory of India, it establishes that India is one economic unit, and not that each State is a separate economic unit.
As the guardians of law, let us resolve to re-dedicate ourselves to preserve and protect the Constitution and its institutions from the onslaught of individual and group misdemeanors, so that we may live in a civilised state of democracy. The Constitution of India is neither reflective of the native genius of our great and youthful nation nor is it suitable for our country. India needs a clear, lean and cost-effective system of governance with in-built apparatus for quick and enforceable accountability. The preamble of the Constitution provides the ingredients of human rights which are on par with the fundamental rights.
Firstly, justice — social, economic and political. Secondly, liberty of thought, expression, belief, faith and worship. Thirdly, equality of status and of opportunity, and fourthly, fraternity assuring the dignity of the individual and the unity and integrity of the nation. The aforesaid being the preamble of the Constitution shows that each part ie justice, liberty, equality, and dignity being the prime object of our Constitution, the same has been elaborated in various articles ie Article 14, which refers to equality, and Article 15, which refers to religious freedom, and Article 21 to personal liberty.
The writer is an Advocate, Supreme Court of India. Excerpt taken from his book, Constitution of India and Pendency of Court Cases