Personally speaking I was always a fan of what the famous Justice Cardozo wrote in his inseminable work ‘The Growth of Law’. He was quick to acknowledge what lawyers have always maintained, the so-called ‘precedents’ are always available for both sides of the bar and it is the personal apathy or empathy of the judge and his inclination to rule on one side of the debate which is the deciding factor. And while carrying out this role of providing a legal rationale (i.e. judicial reasoning) that the judge often carries out an legislative exercise or rewriting the law itself.
One might argue in support or against, but the fact remains that the judges in declaring out the law often decide what the law is where the statute books are silent. Thus they fill in the vacuum which has been left by the legislature by interposing their thoughts into the bare law. While ‘originalists’ would frown at these assertions (have a look at the profile of the one of the most respected and vociferous proponent of the originalist doctrine, Justice Antonin Scalia), in so far as the constitutional history of India is concerned, the jurisprudence is rich with examples of the judges reading into the constitutional principles which the constitution itself does not state. The doctrine of basic structure; collegium system for appointment of judges; concept of constitutional torts; wide ambit of right to life under Article 21; are certain prominent illustrations of what may be called as usurpation of power by some and judicial review by others.
But how does this fit in with legal redundancy? Well, on a macro level it does. Laws are framed by the Parliament in a given social context and towards attainment of a particular end. These contexts and ends in turn also dictate the life of the law. The law remains useful so long as it continues to provide for the useful purpose it is enacted to fulfill. This may continue to remain true for a decade or a century, depending upon the law. However at a point of time the law outlives the purpose for which it is enacted and like dead lumber creates an obstacle in the path of societal growth and even leads to travesty of justice. Let us illustrate the monologue for the sheer sake of better appreciation.
The criminal law currently in vogue in India owes its origin in most parts to Lord Macaulay of England and the Code propagated in 1860 continues to govern the societal relationships in India. Be it a case of rape or murder or adultery, the provisions of the 1860 Code govern the field and determine the punitive aspects which follow criminal trails. Section 377 of Code criminalized homosexuality in as much as it punished “carnal intercourse against the order of nature”. The provision well served its time and was adhered to until a group of so-called liberal minded folks decided that it interfered with their personal liberty and thus the challenge to its validity. The High Court of Delhi held in their favour (click here to read full decision) and held that the provision indeed came in the way of personal freedom and conclusion reached by the judges merits pondering. They held;
CONCLUSIONThus, in their opinion, the judges safeguarded the personal liberties on the face of law which made a different context could not continue to operate in the changed times without crying foul of discriminating against those with different value systems. While scholars may advice against relying on the decision, the fate of which is pending before the Supreme Court, but it is a quintessential illustration of how judges vouchsafe against legal redundancy.
129. The notion of equality in the Indian Constitution flows from the ‘Objective Resolution’ moved by Pandit Jawaharlal Nehru on December 13, 1946. Nehru, in his speech, moving this Resolution wished that the House should consider the Resolution not in a spirit of narrow legal wording, but rather look at the spirit behind that Resolution. He said,
“Words are magic things often enough, but even the magic of words sometimes cannot convey the magic of the human spirit and of a Nation’s passion…….. (The Resolution) seeks very feebly to tell the world of what we have thought or dreamt of so long, and what we now hope to achieve in the near future.” [Constituent Assembly Debates: Lok Sabha Secretariat, New Delhi: 1999, Vol. I, pages 57-65].
130. If there is one constitutional tenet that can be said to be underlying theme of the Indian Constitution, it is that of 'inclusiveness'. This Court believes that Indian Constitution reflects this value deeply ingrained in Indian society, nurtured over several generations. The inclusiveness that Indian society traditionally displayed, literally in every aspect of life, is manifest in recognising a role in society for everyone. Those perceived by the majority as “deviants' or 'different' are not on that score excluded or ostracised.
131. Where society can display inclusiveness and understanding, such persons can be assured of a life of dignity and nondiscrimination. This was the 'spirit behind the Resolution' of which Nehru spoke so passionately. In our view, Indian Constitutional law does not permit the statutory criminal law to be held captive by the popular misconceptions of who the LGBTs are. It cannot be forgotten that discrimination is antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual.
132. We declare that Section 377 IPC, insofar it criminalizes consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution.
Most often, however, it is the legislature which is incumbent upon examining the scope and application of the existing laws and to ensure that they keep pace with the advancement of society. The ‘Right to Information Act’ can be put in here as an illustration to point out the movement towards making the governance more democratic in as much as the information is shared with the citizens towards empowering them to participate in the governance process and also allowing access to them to solicit information best known to the bureaucracy. The recent decision of the Delhi High Court in the litigation at the behest of the Supreme Court against declaration of information vested with the Chief Justice of India only reaffirms this outlook. Thus in as much as an attempt was made to subvert the substantive mandate of the enactment, the challenge has been ruled down, holding transparency and accountability as the key norms. [Have a look at the beautifully written decision] On a macro scale, the decision can be viewed as an attempt to ward-off redundancy of law. Had the challenge been sustained, it would have amounted to restricting the operation of the law on the grounds to which the law itself specifically provided to the converse.
On these lines the decision of the Supreme Court in R.K. Anand’s case is also worth noting. The much-hyped case (with the sting-operation of a news channel) of the defense and prosecution lawyers enticing the witness to change the stand towards securing the release of the accused was met with harsh criticism of the Supreme Court, not to speak of the plights of criminal justice system facing the country today, as noted in the decision. [Click here to have a look at the decision] And on the aspect of redundancy, the Court took note of the fact that the existing rules governing the legal profession are not diligently enforced to ensure professional conduct on the part of the legal fraternity. (see paragraph 203 of the decision). Thus the Court was pointing at the redundancy of the rules governing the legal profession in as much as high standards of professional conduct are expected.
Another significant event on this issue is the recent report of the Law Commission of India on ‘Reforms in Judiciary’ wherein recommendations have been made by the Commission to carry out changes (of massive magnitude and ramifications) in the judicial system so as to ensure that not only the constitutional deals of justice are met but also the expectation of the ever-growing population to get speedy and effacious remedies from courts are realized. [Click here to have a look at the report].
And then the most potent signs of change, the Direct Tax Code was released by the Finance Minister recently, proposing the replace the existing net of direct taxes with a simpler, single code. While the analysis of the exact changes proposed is already subject to intense scrutiny by the stake-holders, the intent is indeed welcome. Reform the legal arena (and what better than to start from the complex tax legislations) such that the common folks are able to understand what governs them. On the indirect side as well ‘Goods and Service Tax’ is expected to be unveiled soon and assuming political will to this effect, from the next financial year onwards one can only expect to realize the full potential of the economy in the liberalized and uncomplicated era of tax regimes. It is also heard in the corridors that the accounting standards are also up for a change with a transition (or may be even alignment) to the international standards. Add a new company law to this set and the trio hints at an unparallel exercise in the judicial history of India to speak of a fundamental change at such a vast level.
Indeed the country is indulging in some self-improvement exercises as far as the reform of the legal system in concerned. Perhaps that’s the mandate of the rule of law and also of the changing times.
Keeping the fingers crossed …