Hon’ble Justice Shri S.H.Kapadia

Hon’ble Justice Shri S.H.Kapadia

Justice Mukhopadhya, Chief Justice of the Gujarat High Court, Mr. Suresh Shelat, Senior Advocate and Chairman of today’s meeting, Mr.Kamal Trivedi, Advocate General, Gujarat, who is also the member of theTrust, Mr. Bhaskar Tanna, Senior Advocate, Nirupam Nanavaty, my friend Dushyant Dave, Justice M.B. Shah, former Judge of the Supreme Court, Justice Nanavati, former Judge of the Supreme Court, Justice C.K. Thakkar, former Judge of the Supreme Court, Justice Trivedi, my colleague in the Bombay High Court, Justice Mehta, former Judge of the Gujarat High Court, the Sitting Judges of the Gujarat High Court, Senior Advocates practicing in the Gujarat High Court, ladies and gentlemen and students in particular.

Let me make one correction in the beginning. The Advocate General in his speech mentioned that I was working in Gagrat & Company, that’s not correct. I would like to make one clarification there. First of all, before I introduce the great man Justice P.D. Desai, I would like to share that I am a believer in God and I owe to God, to my family and to certain people in life including P.D. Desai. I started my career and I want to inform the students, particularly coming from poor family, that don’t be disheartened. This country is a great country. If it can give opportunity to a person who started his career as a peon, as a Class-IV employee, in a small Trust office, I am quite sure, in this land of opportunity, you can make it. I was working in a small Parsi Trust office. They had huge lands in Bombay, they were the clients of Gagrat & Company. It is in the evening and on Saturday, Sunday I used to work in Gagrat & Company just to go through the references, books, conveyances and there all of a sudden Mr. Gagrat saw me, one day he called me. He inquired who was I, how I came to Gagrat & Company and he stood by me till the end. He promised me that the day I joined the profession he will give me the brief and mind you I had no family background as far as law is concerned. Suddenly the man comes, he offers me an opportunity in life and that’s how I joined the profession. The same thing happened, I was in practice, Justice P.D. Desai came to Bombay I think from Calcutta as the former Chief Justice. Something happened, he called me in his Chamber, I was introduced to him by Justice S.C. Pratap and my name got cleared. I did not know Justice P.D. Desai prior in point of time. The point which I am making is have faith in God, have faith in destiny and you will contribute by the hard work towards what the God wills. This is my introduction.

Now coming to the great man Justice P.D. Desai, friends! let me start by saying there is an English quotation which says “imitation is the best form of flattery”. I am proud to say that I have imbibed the good values which inspired me and which I learned in my judicial career from Justice P.D. Desai. What were his great qualities? He was truly an independent Judge. He had nothing to fear. He had no personal agenda. This point is very important in a judicial career. If the Chief Justice of the High Court or if the Chief Justice of India has no personal agenda, the path is very smooth. I always say that the path of righteousness is more easier than path of deviousness. concerned, he was an Further, as far as Justice P.D. Desai is excellent-par excellence-administrator. I remember he used to streamline the rules; he used to meticulously work on the rules and he would call administrative meetings, he would work on it and he has brought in such reforms on the administrative side in the Bombay High Court which has helped his successors to govern the Court successfully with smoothness, which I am quite sure Justice M.B. Shah, Justice C.K. Thakkar would appreciate. Further, he had a high respect for his own office. As the Chief Justice or as the Judge of the High Court he always believed that it was one of the highest offices in the country and he stood by the dignity of that office. Justice P.D. Desai was a steel-through and a blade straight person. He led us all the Judges. He led us in integrity. He led us in intellect. He led a systematic life and I would like to quote Sir Walter Scott whose quotation aptly applies to Justice P.D. Desai. Mr. Walter Scott has stated “without courage there cannot be truth and without truth there can be no other virtue”. These are the words which squarely apply to the life and the character of Justice P.D. Desai. His advice to me in particular when I became the Judge of the Bombay High Court was “clarity in work”. Today, as far as my Judges are concerned, I would request them that whenever they dictate judgements there should be clarity. The structure of the judgement should be very clear. We don’t want high sounding phrases which would not make any sense because it would certainly cloud the principles which we are required to decide in higher forums. One thing I would like to clarify that the higher Courts are forums of principles, not forums of approach and therefore clarity in the judgement is very important. I also believe that when a Judge speaks in public, in symposium, his speech should be to the point, clear and well structured.

With this I learnt all these from the great man Justice P.D. Desai. He would structure his judgements very carefully. He would structure the rules very carefully and he always told me one very simple advice, particularly for the Judges to remember. Please note his advice. I have written down in the diary when he told me. He told me “please know what to omit rather than what to include”. This is very important. What to omit is more important than what to include because he always told me brother whenever you sit in PIL matters, whenever you sit in matters of economic interest always keep the consequence in mind of your judgement. It should not have an effect which may have an adverse effect on the larger public interest. And this advice I have kept in mind and I meticulously follow even today. And it has helped me in my work as a Chief Justice of India. So that is the greatest advice he gave me and his beliefs were even at that time “charity and social good”. He has implemented that advice; I have not to say anything in the formation of this Trust. He told me “never compromise your strength and honour”. He gave me number of examples where he did not compromise. He had to suffer in life. I don’t want to go into those details but he stood by his principles of strength and honour and he had as I said respect for his work and there I would like to quote a French author who has said “were I not to follow the straight road for straightness, I should follow it for having found by experience that in the end, the straight road is the happiest and the most useful track”. This is the advice which I would like to convey to the younger people who are in the Bar or who are likely to join the Bar in future.

His contribution was appointment of great Judges Justice Ruma Pal, one of the finest Lady Judge’s of the country. I was very lucky to have worked with her one of the straight needle like person and even today I am grateful to Justice Ruma Pal for having learnt so much from her when I sat with her in the Supreme Court. Justice Kabir, my brother Judge in the Supreme Court was also elevated in Calcutta at the behest of Justice P.D. Desai so also Justice Sirpurkar. His work without remuneration as the Chairperson of Grievances Redressal Authority for Sardar Sarovar Project affected person was equally a great hallmark and service to the nation above all. He worked day and night and I am told without charging remuneration. dignity of his office. But even there he maintained the His blessings, his advice guides me today and I consider my self very lucky at least to be born in a country, in an age, in the work where I had an opportunity to work with such a great person like Justice P.D. Desai.

Now coming to today’s theme of the lecture, friends! I selected this topic for a different reason. Constitutional Morality is a subject which touches upon several sections of the society. To begin with the judiciary itself, I would like to advice as an elder brother of the family I always believed that there is nothing like higher and subordinate judiciary. Even today when I interact with my subordinate Judges, I am using the word subordinate only to explain even when I interact with District Judges or a Junior Division Judge I address him as brother and sister Judges, I never use the word subordinate, higher, Chief Justice. Therefore, my first advice to my Judges is to remember the words of Mahatma Gandhi – a very simple sentence of Mahatma Gandhi – “Performance is my message”. Let us now move away from rhetoric to reality. Let us do our work, our duty in a silent manner. Let our performance speak for ourselves. Let our individual glory or glorification not be there. Work for the institution, commitment to the institution and all that comes at the end of the day, not the individuals, it is the institution and through the institution, you have to serve this country. The most important thing which I would like to emphasize is on Constitutional Morality as far as the Judges is concerned is two things, clarity and objectivity. What do I mean by objectivity? As I said earlier, Courts, particularly High Courts and Supreme Court, they are Courts of principles. The Judges should not speak anything beyond the principles involved in the case. Let us not give lectures to others. We must remember that in the Constitution, we have a principle of separation of powers. Judiciary, Executive and the Legislature. And when the Judges decide matters they must decide the matters on objectivity. The problem is, that sometimes, we Judges impose our own values, our own likes, our own dislikes on the society. In India, under the Constitution, as all of you may be aware, the due process doctrine is not applicable to India. The Judges should keep in mind that we cannot judge the wisdom of the Legislature. We have to work on those Constitutional principles. I have no right to say what others should do. I will do my duty on the basis of the Constitutional principles. Why am I emphasizing this topic? The reason is that today in our country senior lawyers are not contributing to the development of law. Even in Courts, when I was young we used to visit the Courts and we used to learn from the advocates’ arguments which were advanced in interesting matters. Today in the Supreme Court, I don’t find students attending the Courts. Even if they come if some interesting difficult matter is going on, nobody sits there, within five minutes they disappear and more and more students are today more interested in transactional matters rather than Court proceedings. criticism which I am advancing here. Now, it’s not a matter of But the point is that there are nuances in law which people should appreciate, which students should appreciate.

Take the case of doctrine of reasonableness. Many of the Judges, many of the lawyers, many of the students simply argue about reasonableness of law, reasonableness of Legislative measures. There is nothing like reasonableness of Legislative measures. Reasonable doctrine is there in Article 19(2), 19(6) but it is well settled that reasonableness of a Legislative measure is unknown to the Constitution. Now all these are nuances, please tell me how many of us sincerely can draw this distinction between reasonableness in Article 19 and reasonableness in Article 14. All these principles are very well settled between 1955 and 1965 judgements. Today we are all interested in going quick to the internet, whatever the information is given on the internet we take it down, we download it, but you will not get these nuances on the internet. How many of us are reading the Constitution of India by eminent authors like Mr. H.M. Seervai? I want the students please don’t go by guides; please don’t go by only the information given by internet. Please work hard on certain concepts which I am enumerating and one such concept is the doctrine of reasonableness. Please make a research on this. Please find out to what extent the doctrine applies in the context of Article 19? See to what extent it applies in the context of Article 14? See to what extent it applies in the context of Article 265? See to what extent it applies in Part-XIII of the Constitution which deals with inter State trade and commerce? This is what the lawyers have to learn, to make research if they want to be successful in the legal profession. It is hard work, hard work and hard work. This is what I have learnt from my peers, my predecessors, some of them here today and I am proud and privileged to have learnt so many things from them because I always remember that it is the humility which comes from learning which helps us to learn more. Money will not make you happy. It is the learning in life which will make you happy.

The most difficult concept today in the Court is how to balance the equities. Now this is again a legal concept. But you should know what are the problems we are facing. Dushyant Dave. We have eminent lawyers like Mr. He makes our task little difficult. answer the queries which the lawyers raise. But we have to So let me give a few examples of what is being argued today, not that I am commenting on any decision because decision has not yet come but lets see what are the debates going on and you will find that all these controversies today are relating to balancing of rights, balancing of equities, balancing of interests conflicting interests in the society.

Take the case of interest of a weaker section versus interest of environment or interest or you can say development versus environment. These are most difficult exercises. Can you rule out totally development in the interest of environment? Answer is no. Can you lean totally in favour of development and rule out environment? Answer is no. Because Article 21 says that you shall not be deprived of life without due authority of law. Please don’t restrict life only to human life. Time has come and Supreme Court has now read even plant life into Article 21 because without life, without plant life, without forests, we in the present generation will not be able to provide a good healthy life for our children, for our next generation and that is called in law and please remember these words this concept is called as “intergenerational equity”. Inter- generational equity means this generation must give some legacy, some protection, good environment to its next generation. We owe our duty to that and the Courts must accordingly lay down the principles by which inter-generational equity can be promoted. These are difficult exercises. I remember in some of the cases from Orissa, Chhatisgarh etc. the other side of the coin, people are living on grass. The tribal are living on grass. I have seen it with my own eyes when I went to Orissa. Now can you say that there should be no development in that area? Answer is no. So how do we balance it? Should we provide that user agencies, user agencies means agencies who want to use the forest for non forest purpose? Should we give schools, education, hospitals, etc? Should we make the user agencies pay for it? This is what the Supreme Court has to do when balancing environment as against development.

Take the case of discrimination. Now I will give you another example. All these 60 years we have been using this word discrimination and equality very loosely, very loosely. Now take the case of food security. Can anyone say in India that Sir equality means that each and every person should be given food grains without charging a penny or they should be given free because it is a right of equality? Answer is no. Equal access does not mean each and every person should get in India food free of cost because there is a difference between discrimination and deprivation. You shift the paradigm from discrimination to deprivation and you shall get an answer. How is that answer coming? Answer is very simple. If the government says food shall be given free of cost or at minimum cost to a marginal section of the society, namely those who are living below poverty line. It is a case of deprivation not discrimination. You cannot expect the government to give food everyone free because of equality. So equality is not a standalone item. It has to be seen in the context.

Take the another case. We had a recent matter in Supreme Court. Now as opposed to food security a person comes to the Supreme Court and says I am an HIV patient. Now that HIV patient, mind you, is not coming from a poor family but the second line of HIV treatment is so costly that he couldn’t afford it. Now the government said we have no money to fund because he is not a poor person. The answer is no, because right to life is there in Article 21. You cannot allow the citizen to die for want of funds in that particular case. Why, because it is a case of deprivation, not a case of equal access or equality. See how one nuance just a shift of words from equal access or equality to deprivation. The whole concept will change. So the students! my whole point is particularly to the students when you study the law apply your mind to the concepts. The whole game is on concepts. The entire Constitutional Law is about concepts and if you keep these concepts in mind and this is also meant for Judges, our duty ends.

Similarly in Administrative Law if you read the judgement of the Supreme Court in McDowell’s case they have brought out the distinction between Administrative Laws, what are the grounds on which a decision could be challenged? How a decision framing process is wrong could be judged by the Court vis-à-vis the Constitutionality of a provision. Broadly a law made by the Legislature can be struck down by the Supreme Court only on two principle grounds, namely violation of fundamental rights and secondly excessive delegation, repugnancy, ultra vires. There is no third ground broadly. In Administrative Law you have the other grounds like irrationality, proportionality all those things will apply. But how many of us know about all this? We just mix up all the concepts and go on arguing. So my point is that if the Courts work on these principles we need not go into what happens otherwise approach etc. Please don’t bring your personal knowledge and put it in the matter. As far as possible, objectivity is the touch stone of the judicial decision. Objectivity is the touch stone of the rule of law. Hence when the Judge lays down the law it must indicate objectivity. I can tell you one thing. When Kaiser-I-Hind’s judgement was delivered by Justice M.B. Shah, I realized the nuance there. He has brought out the distinction between assent and the consideration before the assent, the requirement before the assent. Now all this comes in and if the Judge is clear headed he will be able to bring out the difference between non-justiciability of an assent of President and the justiciability or judicial review of the condition preceded the assent. This makes all the difference. In the first case you give a writ of quo warranto, in the second case you give a writ of declaration. Now all these concepts today I find that the students are not aware of. Please go into these concepts if you want to be successful in the profession. Today, we are flooded with commercial matters. Nothing wrong about it. But students are more interested in multinational than rather than joining the judiciary. Nobody is prepared to make any sacrifices, people are talking, but when it comes to sacrifice, when it comes to institution, when it comes to national interest, people will say no. I am more happy joining some multinational and earning a big fat salary. I don’t blame them, please don’t misunderstand. But this is the reality of life.

Now take the case of balancing part which is more important in the case of appointment to the higher offices. Presumption of innocence or presumption of integrity or presumption of institutional integrity, competence etc. All this is required to be weighed in the context of the Act which is placed before the Court. Similarly in criminal matters, matters have to be decided on the basis of the evidence before the Court. Not by the personal knowledge, not by our likes and dislikes to be placed on anyone. So I am of the view that if the Courts decide matters on principles many of the controversies today and many of the things which are being said will be obliterated. And I would request all my brother Judges whenever they attend any seminar, please attend the seminar, please share your experience with the students, please share your experiences with the subordinate Judges, please motivate them and see that they learn the correct principles and in the process.

Now I will give you one example. Every month in infrastructure matters I visit the High Courts but there I interact with District Judges, I interact with students, I interact with Junior Division Judges and on several occasions, I am learning from them. This is how humility and learning helps us in our job because we must know what they are going through and I am telling you I have got a very good response in infrastructure matters. We have cleared hundreds of projects which were not cleared earlier. We have got from the States huge amounts which are helping the subordinate judiciary. I remembered when I went to Bombay, please make a note of it, one Lady District Judge, who is working in Naxal area she did not have a bathroom for three years. If this is the way the country has to work, this is the way the judiciary is treated, how do you expect the young lawyers to come and join the judiciary? Fortunately, the government has taken note of it, the governments are responding well, I have no regrets about it but the things have started moving. Because I believe I will be going next year or after two years but I want the subsequent generation of Judges to be well placed, to be comfortable and I would request each and every High Court Judge also to see to it that their subordinate Judges, their District Judges are well provided for in terms of infrastructure. You cannot have Courts in cowsheds under the staircase. Can you have the Courts like that? Can you have Courts without fans in certain areas of the country? Answer is no. And if you talk about rule of law then rule of law requires a proper infrastructure for the Judges not of the High Court, not of the Supreme Court but those who are working on the ground level – at the ground level. Because it is they who interact with the people. So these are the points with which basically today we have to work on it. Please don’t think only in terms of your interest, your amenity, your perquisites, your benefits. Please think about others and when you think about others things will find place. They will be placed in order. God will help you, integrity will guide you and you have nothing to fear. Let whatever be the criticism. You go on your own way. So that is Constitutional Morality which again I am saying cannot be separated from ethical morality. Ethical morality is equally important. The person who sits in the chair of a Judge should beethically moral also not only legally intellect. We need those Judges. I don’t want exceptional people. Let there be a man of integrity who can understand the nuances of law that is enough for us and that will give a good shape to the credibility of the Institution.

Friends let me give you one more example because the students are here. Right to property was deleted from the Constitution, 19(1)(f) was deleted, Article 31 was deleted, 31(1) was deleted, 31(2) was deleted. But Article 300(A) which says that no person shall be deprived of his property without rule of law was intact. It was introduced. How many people know what is the rule of law under Article 300(A)? The argument before the Court and it is very interesting which is going on. Whether compensation, whether right to acquire still remains under Article 300(A). There is a big debate in Mr. Seervai’s commentary, Mr. M.P. Singh’s commentary, as against that you have the conflicting view of Durga Das Basu. We must go into this. It is this discussion which helps the students to grow. It is this discussion which helps and contributes to the development of law. I always believe that even tension between Executive and Legislature, if it is constructive. It is to be appreciated because it contributes to the development of law. So let us be focused on the agenda before us, on the topic before us and then you will succeed in life.

To the students, this is in final conclusion I would like to say, please remember one thing “ability in life may take you to the top, but you shall need character to stay at the top”.