“ There is no conception here, as you see of doing anything administratively. I have expressed my own hope in connection with the Federal and Supreme Court. To me the Federal Court is the Supreme Court; it is the final court of Appeal beyond which there would be no appeal whatsoever; it is my Privy Council and it is the palladium of liberty. It is the court to which every person who is at all aggrieved can go. A great Jurist in the Transvaal – and the Transvaal and South Africa generally have undoubtedly produced very great Jurists – once said to me, in regard to a very difficult case, “Though there may be no hope just now, I tell you that I have guided myself by one thing, or else I should not be a lawyer: the law teaches us lawyers that there is absolutely no wrong for which there is no remedy to be found in the court of law, and if judges says there is no remedy, then those judges should be immediately unseated”. I say that with all deference to you, Lord Chancellor.
I, therefore, think that our European friends may rest assured that the future Federal Court will not send them away empty-handed, as we expect to go away empty-handed, if we do not have the favour of the Ministers, who are the present advisers of His Majesty. I am still hoping that we shall have their ear and get round their better side, and then we may hope to go away with something substantial in our pockets; but whether we go away with anything substantial in our pockets or not, I hope that if the Federal Court of my dreams comes into being then the Europeans and everybody – all the minorities – may rest assured that that Court will not fail them though a puny individual like myself may fail them. ”
The above are the words of Mahatma Gandhi pleading with the British Lord Chancellors in 1930’s while pleading for a Supreme Court for independent India from British colonial rule.
Mahatma Gandhi ’s dreams of Supreme Court and other courts did not come into being even after more than six decades of India’s becoming a republic with its own written constitution.
Primary duty of a nation/state, including the smallest village republic, is granting justice. Policing is a part of delivery of justice – pro-activism against injustices. In the modern state, be it India or the older so called democracies like United States of America and Great Britain, this primary duty gets neglected. Citizens paid tax to the state, primarily for administering justice.
Modern nation / state roles got widened. With the advent of the so called modern education, the so called development of science and technology including information technology, this primary function of a nation / state got more complicated, time consuming and expensive. Nation/state’s role too got widened beyond granting justice.
If one may carefully look at it now, the nation/state caused injustices are more. Legal profession has become a vested interest in itself. Those who get into the judiciary, including the highest judiciary, have all the weaknesses and shortcomings of a common man but consider themselves as infallible.
The manner in which Iraqi President Saddam Hussein was out-seated, tried in a special court, the questionable way of trial, sentencing him to death and the expeditious speed in which the death penalty was executed is a clear indication to which direction Judiciary, Laws and the institution of granting justice is going reckless. This has to change. This absolutism cannot last long as it is in itself its on instability.
As a hapless insignificant Indian citizen and a humble student of law, this writer strongly believes that Indian Judiciary is betraying Indian people than anyone / anything else. This is something which each one has to personally experience to believe it. Indian Judiciary’s artificial pride and the strong arm of using “defamation” clause against anyone at anytime, is their un-natural protective device. Can a real fame be ever defamed? Never….never….never. Only artificial fames get defamed. In fact such artificial fames are just like water bubbles and they get deflated on its own within a short while or by a simple finger touch by anyone. It is high time, the defamation clause is removed from the statutes. Respect is something to be commanded and not demanded.
Indian Judicial System must change. It must change itself for the better and not bitter for the people.
I am reminded here of what M. K. Gandhi, who himself was a lawyer, who later became a Mahatma and Father of Indian Nation, wrote in 1908 in his book titled “HIND SWARAJ OR INDIAN HOME RULE”. He writes: “Railways, lawyers and doctors have impoverished the country so much so that, if we do not wake up in time, we shall be ruined.”
M.K.Gandhi wrote: “My firm opinion is that the lawyers have enslaved India, have accentuated Hindu-Mohammedan dissensions and have confirmed English authority.” This continues to be so even after more than six decades of India’s becoming a republic. Look at the very functioning of the courts, the type of dresses both the judges and lawyers wear ignoring the Indian climatic conditions.
Gandhiji continued: “Do you think that it would be possible for the English to carry on their Government without law courts? It is wrong to consider that courts are established for the benefit of the people. Those who want to perpetuate their power do so through the courts. If people were to settle their own quarrels, a third party would not be able to exercise any authority over them. Truly, men were less unmanly when they settled their disputes either by fighting or by asking their relatives to decide for them. They became more unmanly and cowardly when they resorted to the courts of law. It was certainly a sign of savagery when they settled their dispute by fighting. Is it any the less so, if I ask a third party to decide between you and me? Surely, the decision of a third party is not always right. The parties alone know who is right. We, in our simplicity and ignorance, imagine that a stranger, by taking our money, gives us justice.
The chief thing, however, to be remembered is that without lawyers courts could not have been established or conducted and without the latter the English could not rule. Supposing that there were only English judges. English pleaders and English police, they could only rule over the English. The English could not do without Indian judges and Indian pleaders. How the pleaders were made in the first instance and how they were favored you should understand well. Then you will have the same abhorrence for the profession that I have. If pleaders were to abandon their profession and consider it just as degrading as prostitution, English rule would break up in a day. They have been instrumental in having the charge laid against us that we love quarrels and courts as fish love water. What I have said with reference to the pleaders necessarily applies to the judges; they are first cousins; and the one gives strength to the other . ”
The above are more relevant today in India more than ever before. British quit India more than six decades back but the British system is stronger than ever before through Indian lawyers and judiciary. This is something to be personally experienced to believe it.
In India, especially for the ruling elite including the lawyers and judges there are more rights than duties. They serve more the rich, the urban, the social elite and less the rural people and the hapless villagers. Majority of Indian people who live in villages, toil hard and produce food and fiber for all cannot afford our judicial system. They silently suffer and silently pray and seek justice from the Supreme Judge and Creator the God Almighty.
To become a lawyer or judge is to forget one’s own culture, civilization and the path through which he/she reached the present position. This is equally true with other professions too.