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Breaking Silence between ‘Majesty of Law’ and ‘Travesty of Poor’

To be Bhagwati is to suffer unlimited pain of an unlimited number of poor, weak, marginalized and explored. To describe persona of Justice P.N. Bhagwati is an herculean and almost an impossible task. He represented many things at the same time. He was an institution, a school of thought and a philosophy. To put simply he was one of the tallest Judge and Chief Justice of India, was a jurist, a philosopher whose heart laid in miseries of poor and needy, a statesman and a thinker and above all a fine human soul whose mission was to wipe ‘every tear from every eye’. Justice Bhagwati’s contribution to the growth and development of law and constitutional jurisprudence has remained unparalleled and has led the processes and institutions including the state not to deviate from the course of rule of law and be transparent and accountable to the constitution and to the resource of constitutionally determined goals. The jurisprudence Justice Bhagwati propounded provided formidable and useful armoury in the hands of social organization, activists and academics to argue their case demanding better implementation and enforcement of laws and making demands for legal and justice system to ensure that the national policy-making adopts a more sensitive and inclusive approach. As already said, describing Justice Bhagwati and his approach is near impossible, however, in our view a closer look at some of the attributes of him as mentioned below world help one to acquire better insights into his persona.

The first and an important attribute of Justice Bhagwati’s persona as a Judge was that he took ‘law’ and ‘judging’ not as a vocation or profession but more as a mission dedicated to securing justice especially to the poor and weak. To him ‘law’ was simply a tool, a technique and an instrument to be applied primarily for serving values constitutionalised by the Founding Parents of the Constitution. He believed that the real heart and soul of India’s Constitution lay in the quadrangle comprising its Preamble, parts containing Directive Principles of State Policy, Fundamental Rights and Fundamental Duties. In his views rest of the Constitution and various laws enacted from time to time and other components of Indian legal regime including various institutions, authorities and process the regime comprises are there only as footnote and are obligated to facilitate and participate in the preservation, realization, provision and evolution of above constitutional quadrangle and the constitutional morality. Justice Bhagwati forcefully asserted and suggested that parts of the Constitution devoted to Fundamental Rights and Directive Principles alongwith the Preamble from a composite trinity and generally speaking cannot be fully understood and comprehended in exclusion to each other, one has to be read drawing light from the others and vice-a-versa. Going further and overruling the existing precedent the Court had laid down in earlier decisions he firmly stated in the famous Maneka Gandhi’s passport case (Maneka Sanjay Gandhi v. Union of India, AIR 1978 SC 597) that provisions in the Constitution guaranteeing different fundamental rights may not be read isolation from each other and provisions dealing with one may be read into the provisions dealing with the other right. Sticking to this attribute of his approach he in Maneka’s case read provisions of Articles 21 (guaranteeing right to life and personal liberty could be deprived only in accordance to procedure established by law) and Articles 14, 15 and 16 (guaranteeing right to equality, non-arbitrariness and fairness) in conjunction with each other and laid the firm foundation for a new revolutionary constitutional jurisprudence reading due process clause of US Constitution in Indian Constitutional Scheme.

The approach Justice Bhagwati adopted in Maneka’s case infact went beyond and sowed the seeds for reading substantive due process as well while giving expansive interpretation to existing rights and creating new privileges especially for deprived. The attribute of his approach just discussed not only provides a strong testimony of the clarity of his understanding of Constitution’s sensitive and complex nuances he possessed but also his judicial creativity and futuristic approach in translating those nuances and complexities to evolve Indian constitutional jurisprudence to higher levels. It is this attribute of his judicial persona that made him a tall judge amongst the legal fraternity and made him darling of poor and weak for whom law and Courts were game of rich and repeat players and not for them who were poor, weak and marginalised.

The second important attribute of Justice Bhagwati’s judicial persona was rooted in his firm belief that every shade of power the judiciary is bestowed with, be it the power of interpretation of laws and declaring the finality of law or be it the power of judicial review of the legislative and executive actions or in other words reviewing the exercise of legislative or executive power – is to be exercised not as power simplicitor but as power that is necessary and is co-related to discharging corresponding obligation and duty that has been cast on the judiciary. To him the duty for which the judicial power exists is to protect, preserve, enforce, realize and promote the purposes, values and goals determined in the Constitution.

The next attribute of Justice Bhagwati’s persona is that he rejects and rejects in wholesale and calling it a myth which many of his colleagues held according to which judges only find the law and judicial law-making is out of their province. Justice Bhagwati was more upset with those who would hide or conceal even when they have indulged into law-making using the garb of “finding out of law.” He called such an approach as a ‘phoney’ and suicidal approach. He believed and advocated conscious law-making in the hands of judiciary not only to fill the gaps or for removing gaps and inconsistencies but also for purposive application, interpretation and evolution of laws and legal doctrines so long as it remains informed and guided by the Constitutional philosophy and is in furtherance to that. Also it emerges that Justice Bhagwati did not believe in piece-meal approach to judicial legislation or judicial creativity as in his views piece-meal approach remains vulnerable to subjectivity and predilections of individual judges. Justice Bhagwati advocated adopting an institutional approach to judicial creativity in the process of interpretation of laws by linking it to the purposive and social activism rather leaving it undefined. As already seen in his views the purpose for which creativity is legitimate is the purpose of serving, securing and promoting Constitutional values and goals Constitution has determined. Thus he gave very clearly defined culture of judicial activism and creativity which is rooted deeply in Constitution and Constitutionalism. In short the activism Justice Bhagwati pleaded was not like an unruly horse on which the judge is residing rather what he pleaded was clearly enunciated and judicially crafted judicial activism. We hope in today’s context when there is big debate between judicial activism v. judicial excessivism or judicial usurpation of power of others justice Bhagwati’s approach to judicial activism sounds as the only way to be followed if rule of law, separation of power and human justice as constitutionalised has to be respected and uncalled for tension between branches of government has to be avoided.

As lot has already been written on the subject of PIL we do not consider it needed for the present purpose to replicate the same except emphasizing that in today’s context it has become imperative to once again underscore what conditions and limitations Justice Bhagwati had prescribed while enunciating concept of PIL in the famous case of [Asiad Workers (PUDR) v. Union of India, (1982) 3 SCC 235] for the Court to follow while entertaining a PIL. He had laid down two important conditions for waving reuirement of standing: First, only a public spirited person who has no vested or personal interest and who is not a member of busy body can approach the Court on behalf of poor, weak and other such sections of society who are not in a position to approach the Court. Second, such person can move the Court only when the fundamental rights or Constitutional rights of those poor and weak he/she is representing are alleged to have been violated or under threat of notation. Unfortunately as the time passed the judiciary, the lawyers, and those who wish to come to the Court have violated or ignored these conditions with impunity and massively. The recent growing criticism about the misuse and abuse of the PIL jurisdiction in certain quarters is largely the result of not taking seriously the too conditions that were enunciated in Asia’s Workers case by Justice Bhagwati. Justice Bhagwati in later days on many occasions had expressed his unhappiness and concern about ignoring the conditions he had laid down and thus rising abuse of PIL jurisdiction. Getting frustrated at the rising misuse of the PIL strategy to either serve the private and vested interests or filing of frivolous petition in the name of public interest or filing petition for seeking media attention that the Apex Court has recently imposed fines and issued warning to such petitioners Not only issues like that of poverty, marginalization and exploitation of poor and weak or of misuse and abuse of power by the executive or of complacence on part of policy-makers which became focus of Justice Bhagwati’s approach but it is of significance to note that hardly there was any aspect of importance of national life – whether of economic nature like that of taxation and customs or whether it related to the policies and process of development or whether it related to protection of environment or natural resources – which did not get his judicial attention. His judicial creativity and craftsperson skill can be noticed on each of these and other such issues of importance.

However, what is of greater importance is to note as to how and with what future vision Justice Bhagwati exercised judicial power to create altogether a new doctrine of ‘absolute liability’ in ‘tort jurisprudence’ in popularly known case of Oleum Gas leak (M.C. Mehta v. Union of india, AIR 1987 SC 695). Justice Bhagwati travelled much further from the existing principle of ‘no fault liability’ and invented ‘absolute liability’ doctrine which in his own words is “a new principle of liability which English courts have not done”.
It is of interest to note that Justice Bhagwati’s concern to dedicate judicial power for the protection and preservation of environment through his creative and futuristic approach becomes writ large when one finds how he laid down the foundation of what has now become an important and integral part of emerging environmental jurisprudence, namely, the establishment National Green Tribunal. It is Justice Bhagwati who for the first time in one of his judgment in Oleum Gas Leak case highlighted the need to establish Environment Courts in different parts of the country with one at the national level and thus sowing the seeds for creation of the NGT.

While mentioning about his concern to keep law abreast with fast changing social aspiration and need for economic development clubbed with heavy industrialization it is important as to what he had said in Oleum Gas Leak case about the scope and encompass of provisions of Article 32 of the Constitution that conferred extraordinary power to the judiciary to issue any writ or any other order to check violation or to enforce the fundamental rights of the citizen – an extraordinary characteristic of India’s Constitution. What Justice Bhagwati had said sounds so prophetic in today’s time when sustained higher of economic growth and hold of businesses and corporations including on the State is undeniable and correspondingly their impact on citizen’s lives has also increased.

Above views were expressed by Justice Bhagwati as a member of the Bench dealing with Oleum Gas Leak matter and did not form part of the ratio of the case and were thus not taken so seriously. Many disagreed while many others treated these observations as an easy in academic exercise. But seen in today’s context when State has ceased to be all pervasive and is withdrawing creating space for private business and corporations and when the global economic power is increasingly shifting to the Multinationals his views appear so apat. To keep these new centres of power who are as powerful as the State rather more in many respects out of Article 32’s jurisdiction enhances the vulnerability of citizens fundamental rights much more than in the case of State.

The idea of ours in mentioning above was not just to emphasize that judicial creativity and his futuristic vision were the hallmark of Justice Bhagwati’s understanding about the nature and scope of judicial power, but to highlight his deep thinking that was rooted in Constitution’s philosophy not caged in any personal prediction and highest order of his commitment to ensure that silence between the ‘majesty of law’ and ‘travesty of poor’ is broken. He believed and lived true to his belief that law retains its legitimacy so long as it remains in the service of poor, weak and marginalized. A perfect social engineering, a superb judicial architecture, a fine and sensitive legal acquireman and above all a great human soul – that was Justice P.N. Bhagwati: I as one who was associated with him as Joint Registrar (Research) in the Supreme Court when he was the Chief Justice of India and later in his other engagements feel so privileged and fortunate to have been immensely benefited from frequent and long conversations we had about challenges the country and the judiciary is confronted with.

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