by Mr. Pravin H. Parekh,
President, Supreme Court Bar Association
on the Occasion of 65th Independence Day of India
at the Supreme Court Lawn
on 15th August, 2011.
Hon’ble Mr. Justice S.H. Kapadia, the Chief Justice of India, Mr. Salman Khurshid, Hon’ble Law Minister, Hon’ble Judges of the Supreme Court, Hon’ble former Judges of the Supreme Court, Hon’ble Judges of the High Court, Mr. Rohinton Nariman, Learned Solicitor General of India, Ms. Charu Walikhana, Member of National Women’s Commission Mr. Rakesh Khanna, Vice President and Mr. K.C. Kaushik, Hony. Secretary, other office bearers and senior members and other members of the Executive Committee of the Supreme Court Bar Association, former presidents of SCBA, Presidents, Vice Presidents, Secretaries & Members of the Executive Committee of Bar Associations present here, secretary and members of Bar Council of Delhi, my colleagues at the bar, distinguished guests, representatives of media, ladies and gentlemen.
Today is an auspicious day for all of us as we enter the 65th year of our Independence. It is a day for celebration, introspection, to look back as well as to look forward, a day to make new resolution, to remember those who gave up their lives to make us independent from the British rule, to remember founding fathers of our Constitution, to salute our motherland, to remind ourselves that “united we stand and divided we fall”, to salute the headquarter of Judiciary of this great nation, to salute “we, the people of India” who gave the Constitution of India to ourselves and above all to salute our ‘Tiranga’. My greetings to you all on this day of national celebration on behalf of legal fraternity, on behalf of Supreme Court Bar Association and on my behalf.
We are proud to be Indians. The remarkable feature of India is ‘unity in diversity’ and the feeling of oneness amongst all. Difference in language, religion, caste and creed, colour, etc. have not been able to wedge a divide among the people, and from Kashmir to Kanyakumari, the country speaks in one voice. The most important binding factor is our National Tricolour which symbolises all that our society stands for. Even after more than 6 decades of independence we celebrate the day with utmost sanctity and commitment because we know the struggle and sacrifices our fore-fathers did to gain independence for our mother India.
There are many problems we are facing today. But they are not insurmountable. Name and fame of India has been growing up in international community. We have achieved independence with sacrifices and bloodshed of our great patriots. Sacrificed lives gave us independence. We must resolve to sacrifice all that we can so that we become the greatest on the world. That will be the best tribute we can pay today to our freedom fighters who came from all parts of the country, belonging to every financial or social strata.
In their memories, I want to quote one old song;
“Kar Chale Ham Fida, Jan-o-tan Saathiyon,
Ab Tumhare Hawale, Watan Saathiyon”.
Our three pillars of Government– Legislature, Executive and the Judiciary, which includes the Bar and the Bench together, have done well. Our fourth estate, the media, has done very well. Right to Information Act, 2005, has helped us a lot, and combination of R.T.I. Act and the media has exposed many weaknesses of our system. The lack of integrity in different branches of the State and the society, has posed a very serious problem. But we are capable of overcoming our problems and difficulties. Our army has never cultivated the ambition to take over the power from elected representatives.
DEMOCRACY AND FAIR ELECTION PROCEDURE:
Decision of our forefathers to support adult suffrage has been successful. Indians from all walks of life, whether literate or illiterate, be it rich or poor, know how to exercise his ‘Right to Vote’. Our Election Commision has done wonderfully well in conducting free and fair elections. It is not an easy task considering the enormous geographical dimension and the massive population of our country. Reduction in minimum age of voting from 21 to 18 from 1989, has been very successful.
One of the most important features of a democratic polity is elections at regular intervals. Elections constitute the signpost of democracy. These are the medium through which the attitudes, values and beliefs of the people towards their political environment are reflected. Elections grant people a government and the government has constitutional mandate to work for those who elect it. Elections are the central democratic procedure for selecting and controlling leaders. Elections provide an opportunity to the people to express their faith in the government from time to time and change it when the need arises. Elections symbolise the sovereignty of the people and provide legitimacy to the authority of the government. Thus, free and fair elections are indispensable for the success of democracy.
On a number of occasions, the Hon’ble Supreme Court has reiterated the importance of ‘free and fair elections’. ‘Free and fair elections’ have been held to be a part of the ‘Basic Structure of the Constitution.’ The Election Commission (EC) has played a wonderful role in achieving ‘free and fair elections.’ The reported instances of violence at the polling booth, booth-capturing, fraudulent voting, etc. have become lesser with each passing year. A number of suitable measures have been taken by the EC from time to time like imposition of a model code of conduct, ensuring adequate security during polling.
There can be no democracy without political parties, and no political party without politicians. The Indian voter has become far more mature in the last two decades. The prime focus of a young voter is on the levels of effective governance and development, being represented in the policies that each party promises. The present generation is no longer fooled by false promises in election manifestos by unscrupulous elements. Over the last few years, it has been widely acknowledged that even the rural populace have enlightened and have not hesitated to kick out candidates who are prone to grave corruption.
The voter turn-outs at the elections, both at the State and the National level, have been steadily rising. Earlier, it was said that in India, only the poor and the down-trodden cast their vote. Present day scenario is different. Youngsters from all parts of the country, come out in large numbers to cast their vote. The total number of persons casting their votes in the recent elections is much higher in number than what was witnessed earlier. More importantly, the middle class is majorly represented, which was not the case earlier. A young, educated and a vibrant generation is ready to toil in the heat and rain, to cast their vote.
This remarkable trend has been brought about by the influx of education, economic progress, development in all facets of the country. Globalisation and large-scale settlement of Indians in foreign countries has forged a link between the model ideas of successful democracies and the citizens of the country. These trends are visible in every sphere of life, and India has been unravelled as a global superpower before the world. People have eschewed narrow minded ideologies propagated by vested interests. This newfound enlightenment is most welcome, and I sincerely hope that in the times to come, we shall become a stronger and vibrant democracy.
Sadly, most of the neighbouring countries have been left behind us. They have been volatile, violent, observing usurpations at power at various levels. Democracies have been often overthrown with scant regard for rule of law. It is in the best interest of India to help such countries transform to able democracies, where the rule of law prevails, and dictatorial despots are no longer entertained. Progress of neighbouring countries will ensure that the scourge of terrorism, black money, illegal migration, etc. becomes a thing of the past.
INDIAN DEMOCRACY AND ROLE OF THE MEDIA:
The Media is rightly referred to as the ‘Fourth Estate’. It is the watchdog of the democracy, and its role is as important as the three other organs of the State. In democracies, Media plays the role of an encyclopaedia, informing people of the latest happenings and also moulds public opinion, helping them make informed choices.
The Right of a Free Press is found under the ‘Freedom of Speech and Expression’ under the Indian Constitution. Media has been entrusted a sacred role in a democracy. It is my privilege to say that this sacred task has been very effectively carried out by the print and the electronic media. Though there have been stray instances of abuse and malafides, largely it has played a very positive role. One of the major factors of India’s progress in the last two decades has been the ‘investigative journalism’. Though even earlier, this kind of journalism was there, it has grown by leaps and bounds with each passing year. With the advent of such journalism, corruption, social evils, glaring instances of abuse of power, has toned down.
The role and contribution of the media has not been unnoticed by the Courts. In a number of judgements, the Supreme Court has held that the media enjoys a pivotal role, and it must act with lot of responsibility. Former President Dr. A.P.J. Abdul Kalam, had said that the print media was more responsible than the electronic media. Justice J.S. Verma, former CJI, had also said that judiciary and media were two emerging powerhouses, and it was incumbent upon them to act with the highest regard for fairness.
However, these observations have come on the heels of all sections of the society (including both of them) lauding the media for their unique role. Indian media has definitely been conforming to all ethical and reasonable practices. It has found adulation from their foreign counterparts. I hope that this is just an ongoing process, and media reaches greater heights in all their endeavours.
CONTRIBUTION OF LAWYERS IN THE FREEDOM MOVEMENT:
We should pay homage and express gratitude to the millions of men and women, who had participated in the freedom movement and also those under whose inspiring leadership the dream became true.
A very important role has been played by the lawyers in the freedom struggle of our country. With the selfless guidance and statesmanship of the legal profession, the Indian national movement gained its momentum and the cravings and yearnings of Indian people after a two hundred year struggle of freedom materialized into the achievement of our independence.
After the First war of Independence in 1857 and its aftermath, the formation of Indian National Congress in 1885 marked the beginning of a new era in the national movement. The era was of moderates like Dadabhai Naoroji and Surendranath Bannerjee while Madan Mohan Malviya and Motilal Nehru, amongst others, were important moderate leaders who were lawyers by profession. The moderates believed in the system of constitutionalism. They functioned as a representative society that passed numerous resolutions on issues such as civil rights or opportunities in government which were submitted to the Viceroy’s government and occasionally to the British Parliament.
Then came the era of extremists. Lokmanya Tilak gave a new direction to Indian freedom struggle. Tilak began a new phase of more radical thought within the organization. He put forth new ideas and methods of opposing the imperialist rule and advocated stronger actions like the boycott of foreign goods and the policy of swadeshi (self reliance). He did not believe that the British rule was beneficial and instead felt that their rule was extremely harmful. He introduced the idea of Swaraj (complete independence) way back in 1897 with his famous statement, “Swaraj is my birthright and I shall have it”.
Here we should also remeber Bankim Chandra Chattopadhyaya a famous writer, poet and journalist. He was a Magistrate from Bengal. He was the composer of India’s national song Vande Mataram, originally a Sanskrit stotra personifying India as a mother goddess. It had an inspiring effect on the activists during the Indian Freedom Movement. When Bipin Chandra Pal decided to start a patriotic journal in August 1906, he named it Bande Mataram. Lala Lajpat Rai also published a journal of the same name.
Other eminent lawyers who supported the extremist ideology were C. Rajagopalachari and Lala Lajpat Rai. Lala Lajpat Rai was popularly known as the Punjab Kesari and Sher-e-Punjab. Lala Lajpat Rai was influenced by Hinduism and Manusmriti and created a career of reforming Indian policy through politics and writing. He formed the extremist faction of the congress along with Lokmanya Tilak and Bipin Chndra Pal, the trio was popularly called “Lal-Bal-Pal”. Later, Lajpat Rai presided over the first session of the All India Trade Union Congress in 1920. He also went to Geneva to attend the eighth International Labour Conference in 1926 as a representative of India. His journals ‘Vande Mataram’ and ‘People’, contained his inspiring speeches to end oppression by the foreign rulers. In 1928, Lajpat Rai led a procession with Pandit Madan Mohan Malaviya to demonstrate against the Simon Commission. When the commission visited Lahore on 30 October 1928, Lala Lajpat Rai led the protest against Simon Commission in a silent non-violent march, but the police responded with violence. Lala Lajpat Rai was beaten with lathis at the chest and later succumbed to his injuries.
A cycle of violence and repression had ensued in some parts of the country as a result of the partition of Bengal, and Alipore Bomb Case was a famous controversy which arose at that time. Aurobindo Ghosh and 37 other revolutionaries were suspected to have been engaged in illegal activities and sedition and were arrested. However, the eminent lawyer Chittaranjan Das came to the rescue, who through his brilliant handling of the case got Aurobindo and many others acquitted. This case brought Das to the forefront professionally and politically. He is generally referred to by the honorific ‘Desh Bandhu’ meaning "friend of the nation". He used his legal knowledge to save many other nationalists and revolutionaries from the clutches of the British. He was the defence counsel in the Dacca Conspiracy Case (1910-11) as well and was famed for his handling of both civil and criminal law. Mahatma Gandhi remembered him as, “Deshbandhu was one of the greatest of men. He dreamed and talked of freedom of India and of nothing else. His heart knew no difference between Hindus and Mussalmans and I should like to tell Englishmen, too, that he bore no ill-will to them”.
To add to the already growing discontent among the people, Rowlatt Act was passed in 1919, which empowered the Government to put people in jail without trial. This caused widespread indignation, led to massive demonstration and hartals.
Lawyer cum nationalist, Saifuddin Kitchlew was one of the leaders who protested against this legislation. Kithclew was also a founding leader of the Naujawan Bharat Sabha (Indian Youth Congress), which rallied hundreds of thousands of students and young Indians to nationalist causes. He was also among the principal founders of Jamia Millia Islamia.
This also marked the entrance of Mahatma Gandhi in the mainstream Indian politics. Gandhiji who was also a lawyer by profession, had just returned from South Africa, where he had carried out a successful Satyagraha against the racial discrimination and for civil liberties of the people. Meanwhile, Gandhiji had made his mark in India already by his success in Champaran and Kheda Satyagraha. Gandhiji led organized protests and strikes against the landlords who, with the guidance of the British government, signed an agreement granting the poor farmers of the region more compensation and control over farming, and cancellation of revenue hikes and its collection until the famine ended. In Kheda, Sardar Patel, a lawyer by profession, represented the farmers in negotiations with the British, who suspended revenue collection and released all the prisoners.
Patel subsequently organised the peasants of Kheda, Borsad, and Bardoli in Gujarat in non-violent civil disobedience against oppressive policies imposed by the British Raj; in this role, he became one of the most influential leaders in Gujarat.
Rajendra Prasad, an eminent lawyer and the first President of India, was also involved with Gandhi in the Champaran movement. Bhulabhai Desai, another lawyer and a politician, represented the farmers of Gujarat in the inquiry by the British Government following the Bardoli Satyagraha in 1928. Bhulabhai formidably represented the farmers’ case, and was important to the eventual success of the struggle.
Most lawyers gave their time freely, at the cost of their own legal practice, to the defense of scores of helpless victims of Martial Law implemented by the British, who had been condemned to the gallows or sentenced to long terms of imprisonment. There was a shift in ideology as well, from moderate to a more radical one.
Non cooperation Movement also saw the involvement of Jawaharlal Nehru who plunged himself into the Indian freedom struggle during this time. A London educated lawyer, Nehru had spent his time touring the nation and spreading Gandhian ideas and making himself acquainted with the problems of the common people.
Vallabhbhai Patel was employed in successful practice as a lawyer when he was first inspired by the work and philosophy of Mahatma Gandhi. Sardar Patel toured the state to recruit more than 300,000 members and raise over Rs. 1.5 million in funds for the non cooperation movement and helped organise bonfires of British goods in Ahmedabad and Gujarat. He also supported Gandhi’s controversial suspension of resistance in wake of the Chauri Chaura incident. He worked extensively in the following years in Gujarat against alcoholism, untouchability and caste discrimination, as well as for the empowerment of women.
After the Simon Commission and the violence in its aftermath, an All-Parties Conference was convened by Dr. Ansari, the Congress President, and a Committee, including Tej Bahadur Sapru, an eminent lawyer and headed by Motital Nehru, was appointed to determine the principles of a constitution for free India.
PROBLEMS BEING FACED BY THE NATION TODAY:
During the last 60 years we have strayed from the Gandhian philosophy and his path of development. Corruption, bribery, violence and disrespect to moral values are all pervasive. But on a brighter side, we are rebellious towards the vices of the modern society and polity and strive to achieve freedom from the same.
Growing Faster, Improving Stability, Progressing on Structural Challenge, the Indian economy this year (2010-11) has been characterized by robust economic growth and steady fiscal consolidation.
The economy has emerged with remarkable rapidity from the slowdown caused by the global crisis, with growth of 8.6 percent (advance estimate) in 2010-11 and an expected 9 percent next year. This growth is also broader: agriculture is rebounding, manufacturing continues its momentum, and private services is picking up. Fundamentals are also stronger: savings and investment are up, exports are rising rapidly, and inflation is falling, after a prolonged hiatus.
Inflation, especially of food was very high in February 2010 (at 20.22 percent), declined steadily, with a small spurt in November and December and now stands at 9.3 per cent. This is a vast improvement but still a matter of concern.
SOCIAL AND ECONOMIC WELFARE:
Social protection has taken a massive jump with the expansion of the National Rural Employment Guarantee Act. Progress on the National Rural Employment Guarantee Act, Sarva Shiksha Abhiyaan and others continue to evolve for the betterment of the rural India.
On climate change, similarly, the Government is engaged more intensively, with expanded financing of programs, better policies, and accelerated engagement with the global community.
The urgency of securing socio-economic justice was pointed out by Chandrachud, C.J. when he said:
The promise of better tomorrow must be fulfilled today, day after tomorrow it runs the risk of being conveniently forgotten. Indeed, so many tomorrows have come and gone without a leaf turning that today there is a lurking danger that people will work out their destiny through the compelled cult of their own 'dirty hands'. Words bandied about in marbled halls say much but fail to achieve as much.
Both in the sphere of political rights and also of economic and social rights the activist Judges evolved a new Indian jurisprudence. Credit of this development goes primarily to activist Judges like P.N. Bhagwati, Krishna lyer, D.A. Desai, Chinnappa Reddy, JJ. Their attitude was influenced by radicalism and insurgency.
Courts with the aid and assistance of members of the Bar have guarded the political liberties as well as socio-economic rights of the citizens, particularly of the unprivileged and the downtrodden people. It is time now for the government alongside the flourishing private sector to exert the power that they have gained over the years by finally delivering on the policies that they have promised to those suffering so that we can soon become a developed nation.
If the government can play the foundational role of ensuring equitable access to such basic entitlements, then the resourcefulness of citizens themselves will lead them to personal and collective empowerment. This might be a simple idea to communicate but is indeed the existential question for examining our approaches to governance. The legal system must also contribute to the vital agenda of improving the capabilities of citizens. This places a special duty on both judges and lawyers who are often called upon to play central roles in resolving disputes about resource allocation. Whether it relates to questions about admissions to educational institutions, the provision of job opportunities or even the delivery of social welfare schemes designed to ensure better access to food and healthcare, it is imperative for the courts to give priority to concerns of distributive justice rather than those of benefits to private parties. In some cases, judges and lawyers have been confronted with underlying tensions between the competing notions of ‘justice for the masses’ and the ‘rights of a few’. These tensions have become prominent on account of increasing competition for resources such as land, employment and investment opportunities. In a gradually liberalizing economy, we need to be vigilant about the widening of existing socio-economic inequalities. Judicial interventions have been the instruments of distributive justice in the past and even more difficult questions will be brought before the courts in the future.
The government of India has also taken various steps towards the social development. It is our ardent desire that not even a single citizen of India should ever go hungry. This is the reason why the new food security law under which every family living below the poverty line will get a fixed amount of food grains every month at concessional rates, has been enacted. It has also been resolved to root out malnutrition from our country. In this effort, special care will be taken of the needs of women and children.
We know that good education is not only desirable in itself but is also essential for the empowerment of our people. The Right to Education Act has been enacted which provides to each child of our country the right to elementary education. Special attention would be given to the needs of disabled children. As a result of these efforts in the last few years, we can now hope that almost every child in our country will have access to primary education today.
New schemes have been started to help students from economically weaker sections of society by way of reduced interest rate on their education loans which have already benefited lakhs of students in getting technical and professional education.
India completes her 64th year as a free nation today.
In achievements, we have been able to preserve own democracy and democratic value. During the last 64 years we have made tremendous progress in various facets of life. We have produced world-class professionals in different spheres be it legislature, executive or judiciary; be it media, science and technology, medicine, infrastructure, space research, rocket science and many other challenging fields. They have glorified our nation in all parts of the world.
India is recognised as a global player, and its importance is recognised at all levels – strategic, economic, etc. Immense prosperity has been reflected in the development that took place. A number of foreign states have collaborated in different ventures. Foreign business entities are exploring avenues in India in a big way, with considerable profits. There has been all-round progress and achievement.
We have developed our infrastructural strength and economic nuances and side by side have gifted our treasure of Indian heritage, spirituality, culture, simplicity of life and similar virtues to the whole world.
Social welfare programmes initiated by different governments have also yielded considerable results. Social welfare has to be accorded even higher levels of importance. More needs to done to combat poverty, which has been rightly described as the worst form of human rights. While we feel happy over our achievements in the past six decades, we must look towards the future also. Indian independence is not a closed chapter. However, each citizen of the nation must strive to fulfil his duties. While undertaking our professional and marital obligations, one must not forget the duty towards the society and the nation. Justice V.R. Krishna Iyer, has rightly pointed out that India must become a land of constitutional values. Each one of us needs to pledge to work for the nation.
Ladies and Gentleman, we have marvellous achievements to our credits for the last 64 years but let us make a resolution to rededicate ourselves and our commitments to uphold the ideals enshrined in the Constitution of India because we know we have miles to go.
I want to quote here a few lines of one very famous old song:-
“Aye watan aye watan humko teri kasam
teri raahon pe jaan tak luta jayenge.”