`The hall of justice'
THE IVORY TOWER: V.K.S. Chaudhary, Universal Law Publishing Co. Pvt. Ltd., C-FF-1A, Ansal's Dilkush Industrial Estate, G.T. Karnal Road, Delhi-110033. Rs. 350.
IVORY TOWERS, as the title to a book on judicial power is a wee bit pejorative since the court deals daily with democratic issues with people crowding the halls of justice to argue public interest litigation, not merely tycoons' disputes and proprietariat interests.
However, the author has done well in discussing half a century of the Supreme Court's achievements and failures shedding original light and launching fearless criticisms. I like the book and commend it to lawyers and non-professionals so that the purpose of the book which is "to give rise to a debate in the intellectual and legal circles on the ideas and doubts expressed" by him, is served.
The Supreme Court is the functional focus of the book but its bulk is because of additional chapters and a considerable number of appendices presented as Part II. The last chapter of Part I is grandiloquently titled "Some reflections about jurisprudence". It is out of place in a study of the Supreme Court and oddly blends ancient and modern theories of law.
Part II is a miscellany with many "musings" and reflections, which are not germane to the principal subject the Supreme Court. There are some new thoughts suggestive of an alternative judicial system, which claim moderate appreciation from me. The time has come for evolving a far more serious of alternative to the current judicial system, which, in large measure, stands self-condemned. I have no serious comments on the "musings" nor on the discussion about the Presidential versus Parliamentary form: and a third way. The last appendix, of indifferent value, is "From Manu to modern times."
There is much interesting material in various chapters. What makes the book fascinating are two chapters viz., seven and 15. The former deals with "Contempt jurisdiction" and the latter is a useful exploration of the "Expanding universe". The author draws attention to the crucial dimensions of contempt of court and reasonable restriction on freedom of expression.
I agree with the author who says "There is no reason why we should be tied to the apron strings of the so-called `common law of England' evolved in a different clime, environment and social conditions. The reasonableness of a restriction has to be judged in the context of Indian society and culture, so as not to reduce or whittle down the content of the guaranteed freedom of speech and expression, to more than absolutely necessary."
No restriction on freedom of speech is reasonable in a quasi criminal proceeding if mens rea or motive is not considered. It is unfortunate that today the court in India, in the field of contempt jurisdiction, suffers from the syndrome of "a too exuberant vindication of offended dignity" exaggerated personal vanity which is a colonial quality. On the whole, the chapter on contempt jurisdiction deserves study. Judges must realise that "it is not the function of the court to act as `thought police' an aspect sometimes forgotten in such cases".
The chapter, "Expanding universe" deals with the extravagant jurisdiction exercised by the Supreme Court under guise of interpretation of Article 142 "doing complete justice" assuming plenary powers to pass any decree or order for doing what they think is "complete justice" without reference to any law. The author is right when he "wonders what practically remains out of jurisdiction or reach of that court". It is therefore, imperative to lay down its own limits for exercise of its jurisdiction. The court realised the error of expansionism in the Supreme Court Bar Association case where it observed: "The power under article 142, even with the width of its amplitude, cannot be used to build a new edifice where none existed earlier, by ignoring express statutory provisions". Further it held that the "Supreme Court in exercise of jurisdiction under Article 129 could not take over the jurisdiction of the disciplinary committee of the Bar Council to punish by suspension of advocate's licence."
Public interest litigation (PIL) is anathematic to the author. The whole jurisprudence of public interest litigation is so vital to our democracy that globally this radical development has been welcomed as a great contribution to the legal system.
The adversarial praxis needs reform although natural justice must still be conformed to so that violence may not be done to basic principles. He is fancifully carried away by newspaper reports which he extracts to support his view: "A High Court Judge, passing through a village on a highway, found a `dharna' of villagers blocking the road as a protest about something. The newspaper report says the learned Judge, held his Court on the road, heard the grievances of the villagers and issued an order that they be redressed within 24 hours, or else cause be shown. Another learned Judge (newspaper reports say) held his Court on the railway station platform and summoned the station master, as to why a coupe in the air-conditioned first class had not been reserved for him. All these are allegedly cases of suo motu action or cognizance. One of the foremost principle of law is that in case of suo motu action, it was incumbent on the judge to inform the person summoned that he is entitled to be tried or matter determined by another Judge. Not all such cases can be designated by the dignified appellation of `Public interest litigation'. One hopes these newspaper reports were wrong." The author prudently adds: "This is not to decry all such litigation. It is only to sound a note of warning. If such litigation has to stay, proper rules have to be framed and parameters laid. The object of this innovation and the purpose it serves should be expressly stated? However, some attempt has been made now to formulate its contours."
The author cannot accept the court as a messiah for all earthly ills. I agree with him since judicialese cannot run riot and be the Executive. A Third Chamber or perennial sentinel over the all said and done, call it Ivory Tower or functional interloper, the court from its commanding heights placed the controllerate over the democratic governance of the nation with due restraint.
On the whole the book is a good mix of radical views and reactionary thoughts. It is worth reading.
V. R. KRISHNA IYER
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