Monday, June 30, 2008

How far have we come?

In the summer of 2006, I had studied a lot of AIR manuals spanning the second half of the last century and carried out a review of the history of the broad direction of the legal system of this country through the reading of a number of publications which found their way into the markets and libraries at the turn of the new millenium.

Nothing can be more frustrating for an individual than the inefficiency of a redressal forum or system and the legal system of this country bestows just this helplessness on its subjects. The following contains one of the most comprehensive and insightful readings I had come across in the course of the two months of my brief tryst with the fundamentals of law in this country. The incredible feature of this reading, apart from its quality is the time of its composition. Drafted and published at a time very close to the formation of the constitution, it exhibits a rare clarity defining the purpose and the requisite fundamentals behind the execution of law. As one progresses through the script, one realises its ever growing relevance in modern day life in this country and makes one wonder just how far have we come in the last 60 odd years?

Excerpts from the speech delivered at the inaugural meeting of the Legal Study Circle of the Calcutta Small Causes COURT Club on the 10th of march, 1951 under the presidentship of Sir Arthur Trevor Harries, Chief Justice of the Calcutta High Court and in the presence of H. E. Dr. Kailash nath Katju, Governor of W. Bengal:

The March of Statutory Laws in IndiaThe law dominates the whole of life. Every activity is subject to legal regulation, from personal habits to the ways of earning one’s living. The humblest man cannot pass through life without coming into contact with the machinery of the law. Whether you are a businessman, a labourer, an agriculturist, a landlord or a tenant you are coming up against the law at every turn. The enormous strides in statutory laws today are not necessarily an indication in the stride of national development. India with her teeming millions most of whom are illiterate and disorganized, presents a problem which raises the fundamental issue how far legislation and statute can be made the foundation and basis of nation building.

The ideal is and the practice should be the less the laws the better for the country and its citizens. The reason for this is that if you make the laws too numerous and too complex touching men’s life at every conceivable point, there are bound to be in the very nature of things many breaches of such laws both conscious and unconscious and such breaches are apt to be too frequent.

Life is greater than law. Life will express itself through laws if possible, but without laws if compliance with them is made impossible. That is a truth very often ignored. Also numerous and frequent breaches of law which are difficult to comply with have the tendency to convert the state into a punitive institution. The ideal of a welfare state legislating for the good of its citizens in every sphere of life has to steer carefully enough to avoid the Scylla of public disrespect and the Charybdis of punitive tyranny.

Legislation like any other human act and perhaps more than any other requires thoughtful planning. The legislatures must have in view sufficiently clear in their minds the objective that they intend to reach. Each and every legislation that they put on the statute book must then be so directed as to be in aid of that main objective. Random legislation will always defeat its own purpose. Also, legislation is not like the clothes to be put on casually and taken off equally casually but is intended to be the very sinews and arteries of orderly life and existence. It is not a practical proposition for any country through means of legislation to achieve at the same time all and every conceivable reform-industrial reform, labour reform, social reform, political reform, religious reform, and moral reform. A nation cannot be reformed by laws. The reform must well from within and must be part of the life of people.

Laws today passed by the legislatures are frittered away in conflicting tendencies. The present spectacle is like that of a high powered motor car whose gear is on the neutral but whose accelerator is being pressed hard in every manner so that the engine is constantly running out but there is no movement. Legislation is not normally an instrument for reform but is only one for registering a certain stage of public opinion already reached. If the vacuum between public opinion and legislation is great then the laws and the people do not react on one another.

Democracy is said to be the government of the common man but it is not recognized that legislation is not the job of the amateur politician. Legislation has always been a very skilled and technical work and more so in the growing complexities of modern life. Constant amendments raise difficult and sometimes impossible problems of construction where justice is defeated and adjudication becomes a farce. The sine qua non of good sound legislation is good careful draftsmanship. The existing system and principle in drafting statutes require radical improvement. Statute drafting in India should be the care and job of individuals specially trained for the work.

Federal democracy under the written constitution like any other form of democracy depends for its very existence on the rule of law. The rule of law must be clear and well defined. A nation that does not know how to respect the rule of law and the judiciary as its final interpreter is a nation that is not fit for the democratic way of life.

- delivered by Mr. Justice P B Mukharji of the Calcutta High Court.

No comments: