The Leaflet

| @theleaflet_in | February 22,2020

[dropcap]T[/dropcap]HE Chief Justice of India (CJI) S A Bobde in his inaugural speech at First International Judicial Conference 2020 organized by the Supreme Court of India, said at the heart of the Constitution was the individual and the rights of individuals were recognized as ‘fundamental’.

“These rights have been beautifully balanced with the demands of public order, morality and health”, he added.

“Amongst the dominant thoughts when the constitution was being drafted was what Swami Vivekananda aptly said, “Liberty of thought and action is the only condition of life, of growth and well-being. Where it does not exist, the man, the race, the nation, or institution which bars the power of free thought and action of an individual – even so long as that power does not injure others- it is devilish and must go down”, said CJI Bobde.

CJI Bobde also said “a feature often neglected is a chapter on fundamental duties imposing on every citizen the duties to abide by the constitution, the whole of it and respect its ideals and institution. (I believe there are more than 50 countries in the world having specific provisions in regard to fundamental duties in their constitutions)”.

According to CJI Bobde, Mahatma Gandhi, once said “the exercise of right depends on one’s sense of duty. This follows from what he had written in Hindi swaraj, where he argued: “real rights are a result of the performance of duty”.

CJI asserted that probably the most fundamental feature of most modern constitutions is the idea of the rule of law. That is certainly the motto of the Indian Supreme Court which says that where there is adherence to law there is victory i.e. “Ya toh dharmast tatoh Jaya”

Here is the full text of CJI’s speech:

 

“It is my proud privilege to welcome you all to the first-ever international conference hosted by India under the aegis of the Supreme court of India. I extend my gratitude to Prime Minister Narendra Modi for having accepted our invitation to grace this event.

 I am delighted with the response that my brethren in robes have shown in attending this international dialogue about Judiciary and the Changing World.

The Zeitgeist of our times has been incredible technological advancement. The entire world today is interconnected like the world wide web itself, and a small change in one corner of the world can result in changes in different parts of the world. Judiciaries all over the world are dealing with this kind of change- what might be called a rights revolution, a technological revolution and a demographic revolution. Our decisions no longer impact only those who live in our jurisdiction but also those who live in other jurisdictions- some far away.

 A conference like this offers opportunities for dialogue between the Judges from various jurisdictions in the world to exchange ideas and gain knowledge from each other on many aspects of gender justice, right to privacy, populism, environment and sustainable development.

That India is a melting pot of myriad cultures and traditions is well known. This is equally true of its judicial system and institutions. We have assimilated legal cultures of all the civilisations who have come to our shores- the Mughals, the Portuguese, the French, the Dutch and finally the English. Right from conventional court systems to customary methods of adjudication and rules of evidence our systems of adjudication have been a diverse mixture of traditions of the past infused with the present, looking towards the changing times. For instance the Chicken liver test – in the absence of any direct evidence, the priest selects a small chick, cuts it’s neck, removes its liver, examines it and hands it over to the other members of the panchayat for examination. The panel then decides collectively on whether the accused is guilty post the examination of the liver. Similarly, there is also a practice such of administering oath by holding the tooth of a tiger.

 Before these cultures reached our shores, India had a well-established system of courts. The rules were all contained in the scriptures which prescribed a mandatory open hearing in courts, in the presence of officers of the court. For example- The Vyasa smriti provides the various stages of a valid decision. They are these – the plaint, written statement, issues, evidence, it’s analysis, argument of the lawyer, provisions of law and that the decision should be decided by the members of the bench. The judgment should have a royal seal on it. Interestingly even the definition of definition is prescribed in the smriti. It says the definition should be precise, unequivocal, having universal meaning, it should not be plagiarized and not prohibited from being spoken or said.

 I recall these ancient traditions only to emphasise that a well-structured judicial system is more than two thousand years old in this country and has always been at the bedrock of India’s legal history. Our Constitution is magnificent not just for its detail but also for the international inspiration that it drew and it continues to draw. The constitution makers embraced a famous saying in the Rig Veda-

“आ नो भद्राः क्रतवो यन्तु विश्वतः|”

“Let noble thoughts come to me from all directions.”

The founding fathers of this post-colonial country studied various models of Constitutions from all directions: There were former dominions of the British Empire such as Ireland and Australia, where the British system of governance was adopted in the form of a constitution; There was Japan, where after the World War, a Constitution was given to them by the victors of the War; There was the United States of America, where individual rights formed the very basis of their Constitution; There were many constitutions of France, most of which embodied the principles of Justice, Liberty and Equality.

The Constitution of India therefore, synthesized the perfect blend of all that came before it and tailored it to fit this country’s diversity and thought. At the heart of the Constitution was the individual and the rights of individual were recognized as ‘fundamental’. These rights have been beautifully balanced with the demands of public order, morality and health. Amongst the dominant thoughts when the constitution was being drafted was what Swami Vivekananda aptly said, “Liberty of thought and action is the only condition of life, of growth and well-being. Where it does not exist, the man, the race, the nation, or institution which bars the power of free thought and action of an individual – even so long as that power does not injure others- it is devilish and must go down.”

A feature often neglected is a chapter on fundamental duties imposing on every citizen the duties to abide by the constitution, the whole of it and respect its ideals and institution. (I believe there are more than 50 countries in the world having specific provisions in regard to fundamental duties in their constitutions). In this regard Mahatma Gandhi once said “the exercise of right depends on ones sense of duty. This follows from what he had written in Hindi swaraj, where he argued that “real rights are a result of performance of duty”.

Chapter IV A thus expresses what in law is often implicit- that legal rights have correlatives of legal duties. The Constitution also created a strong and independent judiciary, which was separated from the executive and the legislature. We have strived at every turn, not just as a judicial institution but also as a citizenry to keep these basic ideals intact. Probably the most fundamental feature of most modern constitutions is the idea of the rule of law. That is certainly the motto of the Indian Supreme Court which says that where there is adherence to law there is victory

                      “Ya toh dharmast tatoh Jaya”

After we gave the Constitution to ourselves, it fell upon this Judiciary to interpret it. The Judiciary, right from 1950, looked for inspiration from across the globe to find creative solutions to constitutional problems. In the first important case on fundamental rights, (A K Gopalan v. State of Madras), the Supreme Court quoted law from the American, Japanese, Irish, Canadian, Australian and English courts. Ever since, we have not shied away from looking for inspiration, wherever possible.

Conferences such as these in a sense celebrate this universality and seek a better expression through the challenges that the judiciaries of the world face. Undoubtedly, the success of the rule of law in our countries depends on how the judiciaries respond to such challenges and how they emerge. I do hope that at the end of the Conference all of us would be benefited by learning from each other and have a clearer definition of the roles of the judiciary in the changing world.

In this spirit, I warmly welcome you all to this conference.

Thank you. Jai Hind”

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