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The 21st Dr Kailashnath Katju Memorial Annual Lecture

It is given to very few to distinguish themselves in various fields of creative endeavor and leave their indelible impress on contemporary life and times.  Dr. Kailash Nath Katju is one such rare pilgrim. Born in 1887, he obtained the Degree of Doctor of Laws of the Allahabad  Universty in 1919. Basically and essentially a lawyer Dr Katju was a multifaceted personality whose interests and abilities traveled far beyond the law. An erudite lawyer and a skilful advocate, he commanded a huge practice at Allahabad. He was known to argue first appeals with voluminous paper books just for 15minutes on the point he was certain about and sit down, confident of success in spite of hours of arguing by the opposite counsel. As an extraordinary gifted advocate he picked up the essentials of the case and kept the non- essentials in their proper place. It is a mark of the most distinguished talent born out of supreme self confidence. 

His forensic abilities were also utilized in the famous INA trial where he along with Bhulabhai Desai, Tej Bahadur Sapru and Jawaharlal Nehru amongst others defended the INA heroes.

After the general elections  under the  Government of India Act, 1935 he  became a Minister in the U.P. Provincial Government headed by  Pandit Govind Allah Pant. It is said that on his first day as Minister the ICS Secretaries suspicious and skeptical about the abilities of the Indians and wanting to test and tease the new  minister left a bundle of files on his table without any notings on them. They were to be seen and ordered by the Minister. But they did not realize that Dr Katju was a busy and experienced Advocate for whom it was not a big task to wade through a bunch of appeal papers running to hundreds of papers overnight and successfully argue the matter the next day. Dr Katju went through the files placed before him , made his notings and passed clear and precise orders on each of them. They were all returned the same afternoon much to the astonishment of the Officers who felt ashamed.

Such  was the measure of the man who thereafter was a member of the Constituent Assembly, Governor of Orissa and West Bengal, Union Law Minister and  then Union Home  Minister succeeding Sardar Patel and Rajaji and thereafter Defence Minister. From 1957 to 1962 he was the Chief Minister of Madhya Pradesh. In all these positions he acquitted himself creditably. Lawyer, freedom fighter, administrator, statesman Katju"s place amongst the first rankers is secure. Many hands have toiled in building the edifice of  free India. Dr. K.N.Katju"s contribution to this has been substantial and significant.

There have been and still are many political personalities Of high calibre and character. But then, the general run of the quality of   human material in India"s public life is greatly disappointing.  It is perhaps unfair to these lesser mortals to be held up to a comparison with great ones like Dr Katju After the death of  Abraham Lincoln, a political commentator remarked "The era of giants is over.  The political scene is peopled with Charlatans, quick-buck artistes and from the muddled mediocre to the dangerously deranged" to the contemporary scene in Indian public life apart from honorable exceptions, much different?

I am indeed privileged to be here today to deliver the "Dr Kailash Nath Katju  Memorial  Lecture", and  share with you some thoughts on the Constitutional underpinnings of a Concordial Society and the great principle of fraternity enshrined in the preamble to the constitution.

II Constitution : Vehicle of  Nation"s Progress          

The Constitution of a country is its supreme law and is regarded as the vehicle of a nation"s progress. The purpose of good government is to bring about the security, welfare and happiness of the people. Plato asks:  "What do men organize themselves into society for?" and he answers: "To give the  members of the society , all the members ,and the best chance of realizing their best selves." It is the very purpose of social organization. All " human beings incomplete in themselves seek their ordainment of fulfillment and destiny in the enriching human company and that institutions of democracy provides the richest and the most profound opportunities of that mutual enrichment". When the Constitution makers, the leadership of Nehru, made Republicanism as one of the basic principles, it was described as the "biggest gamble in history".  In the fifties of the last Century western-press was greatly skeptical of India"s experiment with universal adult-franchise and of the survival of Indian democracy.  But the American TIME (13th August 2007) on the occasion of 60 years of Indian Independence, saluted Indian democracy though it was described as the biggest and rowdiest .  Someone else had described it as "Robust" though "Chaotic". 

The product of the vision of the makers of the constitution represents a high watermark of consensus in our history. Consensus and accommodation form a significant and integral part of Indian culture and cornerstone of our constitutional democracy.

"Values" said Learned Hand "are ultimate; they admit of no reduction below themselves".  So too are certain irreducible constitutional values which underpin the survival and success of constitutional order and a concordial society. What are these values? What are the tools for effectuating them? The  basic values of the Constitution are reflected in the Preamble,

The Fundamental Rights and the Directive Principles which along with the Charter of Fundamental Duties may be said to constitute the conscience of the Constitution." The Preamble to the Constitution is a declaration of our faith and belief in certain fundamentals of national life, a standard from which we must not Depart and a resolve which must not be shaken." The emotive words "Justice, Liberty, Equality ,Fraternity" open up a vast music of hope. They are words of passion and power and  may be said to be  the spiritual pillars  of the constitution. These concepts along with Constitutionalism, Democracy and the Rule of Law are the bedrock  on which a conflict free society rests. Peace is the fruit of .

Justice; Justice is the greatest interest of man on earth- it is what cements the fabric of a secure society. 

III Fraternity

Democracy may be defined as the dwelling place which man has built  for the spirit of liberty. Democracy has wider moral implications than mere majoritarianism. Democratic polity  must have the architecture of an inclusive society. Democracy involves  hardship and unceasing responsibility of every citizen without whose participation and contribution there can be no democracy in  any meaningful sense.

Pluralist societies are the result of irreversible movements of History Pluralism is not a mere transient vestige of a  historical Condition  but a permanent feature of the public culture of modern democracies. India, in particular, is such a typical pluralist society-a Model of unity in the mosaic of diversities. Law is perhaps the great integrating force and respects for law and its institutions the only Assurance that can  hold a pluralist nation together. The function of Law and the choice of legal  policies in a pluralist society are by far The most fascinating challenges to our civilization. These challenges Appeal to the immutable values of a high social order. Man"s capacity for a human law and human justice is put to its ultimate test. The question is whether civilizations on earth have the moral maturity to accept the human person as the unit and measure of all things.

As the Supreme Court said quoting Dr. Ambedkar in the Constituent Assembly. "Fraternity means a sense of common brotherhood of all Indians. In a country like ours with so many disruptive forces of regionalism, linguism and communalism, it is necessary to emphasize and re- emphasize that the unity and integrity of India can be preserved only by a spirit of brotherhood. India has one common citizenship and every citizen should feel that he is Indian first irrespective of other basis."

It is this spirit of brotherhood that the Preamble refers to and its awareness and  practice so very essential today.   Art 1 of the Universal Declaration of Human Rights, 1948 says : "All human beings are born free and equal in dignity and rights. They are endowed  with reason and conscience and should act towards one another in a spirit  of brotherhood."

Fraternity is a political and social and even more a moral objective . Fraternity  is not expressly  reflected in any Article of the Constitution and indeed no constitutional and legal provision can generate any brotherly feeling. The spirit of fraternity or concord is something that has to be generated by men-by  their attitude and behavior towards one another and  in their social concerns. Provisions of law, however can  and do help foster such feeling. 

IV Constitutional underpinnings of  Fraternity

There are constitutional under pinnings that foster a concordial society. The purpose of law in plural societies, as Lord Scarman said, is not the progressive assimilation of the minorities in the majoritarian milieu; it is not to extinguish the different groups but to devise means ? political, social and legal of preventing them from falling apart. A true democracy is surely one in which the existence of the power of the many is conditional on upon for the rights of the few.

India is intended to be an indestructible union with the units having no power of secession The constitutional document is formidable with an internal architecture of its own. 

V Dilemma of  Democracy 

Dr. Konrad Adenauer, the former Chancellor of West Germany, remarked that in creating man, God had hit upon a very poor  compromise. If he had made man more intelligent, he would have known how to behave; if he had made man less intelligent, he would have been easier to govern. This remark neatly sums up the dilemma of democracy.  "Brothers Karmazov" speaks of this dilemma. Whether to give people freedom and risk revolt and  rebellion or gave them opiate of  entertainment , circus and fun. Democracy has enriched our lives as no other political  philosophy to done; but we have taken this great miracle for granted. 

No virtue is absolute. De Tocqueville made the profound observation that liberty cannot stand alone but must be paired with a companion virtue: liberty and morality; liberty and law; liberty and justice; liberty and common good; liberty and civic responsibility.

As Acharya Kripalani said in the Constituent Assembly "What we have stated in this Preamble are not legal and political principles only. They are also great moral and spiritual principles  and if I may say so, they are my mystic principles. In fact these were not first legal and constitutional principles, instead they were really spiritual and moral principles. If we look at history, we shall find that because the lawyers and politicians made their principles into legal and constitutional form, their life and vitality was lost and is being lost even today."

"If we want to use democracy as only a legal, constitutional and formal advice, we shall fail. The whole country should understand the moral, the spiritual and the mystic implications of the word "democracy"."                                                  

It is apposite to recall Dr. Ambedkar"s concluding speech in the Constituent Assembly......

"What does social democracy mean? It means a way of life which recognizes liberty, equality and fraternity as the principles of life. These principles ?liberty, equality and fraternity- are not to be treated as separate items in a trinity. They form a union, a trinity in the sense that to divorce one from the other is to defeat the very purpose of democracy. Liberty cannot be divorced from equality; equality cannot be divorced from liberty. Nor can liberty and equality be divorced from fraternity. Without equality, liberty would produce the supremacy of the few over the many. Equality without liberty would kill individual initiative. Without fraternity, liberty and equality could not become a natural course of things."

VI Need for the spirit of  National Oneness 

The greatest need of the hour is to generate and sustain a sense of national identity. We have innumerable northerners and southerners, Tamilians and Bengalis, Punjabis and Marathis, but very few Indians. It is imperative that we think and act as Indians first. All differences have to be resolved within the framework of one nation and one country.

Our greatest problem today is fundamentalism which is the triumph of the letter over the spirit. Human personality can bloom fully and humanism can take deep roots and have its efflorescence only in a climate where all display an attitude of tolerance and a spirit of moderation which Learned Hand defined as " the temper which does not press a partisan advantage to its bitter end; it can understand and appreciate the other side and feels an unity between all citizens." This is in contradistinction to the spirit of fanaticism which, according to George Santayana consists in "redoubling your effort when you have forgotten your aim." The survival of the Rule of Law and an egalitarian society  depends upon habits of consent and compromise which are attributes of a cultivated political society.

The essence of all religions is Humanism and advancement of human welfare.. From the dawn of civilization India has been home to a variety of faiths and philosophies all of which have co-existed. 

We have an unrivalled tradition of religious freedom and tolerance.. The view was also echoed by Dr Arnold Toynbee who felt that the harmony of all religions is the only way to our growth and the alternative to destroying ourselves. India taught the world tolerance and sheltered the persecuted and the refugees of all religions and all nations. The world has to remember and learn this lesson and practice it to ensure our survival. John Staurt Mill in his "Liberty" refers to the way the Parsees were welcomed to the Indian shore.  However today parochial tendencies and  narrow fanaticism based on region and language as also communal passions of religion and caste, all motivated dominated by short term politics gains are cropping up. This is a very alarming and situation and can be a  sure recipe for chaos and national disintegration. Sardar Patel had opined in 1948 that history had taught the hard lesson that regional and linguistic separation imperiled national solidarity and unity.

VII Fostering Fraternity : Provisions in the Constitution

Dr There are express provisions in the Constitution which are designed to promote fraternity. India is an indestructible union of States. It is a federation with a distinct unitary flavor which has been described by political scientists and constitutionalists in different ways.

Ambedkar highlighted in  the Constituent Assembly the significance of the expression "Union." " What is important is that the use of the word "Union" is deliberate. The Drafting Committee wanted to make it clear that though India was to be a federation , the federation was not the result of an agreement by the States to join in a federation. Not being the result of an agreement ,no State has the right to secede from it. The Federation is a Union because it is indestructible. Though the country and the people may be divided into different States for convenience of administration, the country is one integral whole, its people a single people living under a single emporium derived from a single source."

Towards this end there is only a single common citizenship(Art 5) unlike other federal Constitutions like the U.S.A which provide  for dual citizenship. The  question was  whether there can be a domicile in a State  or only one domicile in the territory of India. In D.P. Joshi vs. M.B(AIR1955SC334)the majority held that in India there can be "a domicile in a State" for purposes other than citizenship. This was in the context of the rules for admission exempting bonfire residents from payment of capitation fee.  But the  pronouncement of the Supreme Court in Pradeep Jain vs. Union of India(AIR 1984 SC 1420) takes the view that there is only one domicile, viz. the domicile of the territory of India and there is no separate domicile for a State. While Seervai supports the judgment in Joshi"s case and is critical of the judgment in Pradeep Jain , Basu, however says that the heresy of regional domicile as enunciated in Joshi"s case  has been rightly demolished in Pradeep Jain which, according to him, reflects the correct position in law.

Further every citizen has the right to move freely throughout the territory of India, to reside and settle in any part of the country , to own property and to carry on any trade or business or occupation.(cf Art19). There is no express provision conferring such rights in the American Courts. But these are read  into and sought to be secured by  the 14th Amendment.  The Universal Declaration of Human Rights also expressly recognizes and provides for such rights. Art 301 of the constitution provides for free trade , commerce and intercourse throughout the country. Moreover while the State has no religion, liberty of thought , expression , faith, belief and worship is guaranteed and is effectuated by the provisions of Arts 25- 29.

All these provisions seek to remove barriers amongst people of different regions, religious cultures and languages and to foster a spirit of fraternity which alone can ensure a conflict free society. These are all facets of the inalienable human rights which are incorporated in various historical documents like The United Nations Charter, 1945;The Universal Declaration of Human Rights ,1948; The European Convention for the Protection of  Human Rights and Fundamental Freedoms , 1950; The International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights, 1966;  The American Convention on Human Rights , 1969, to which the  States of  South America are signatories.

Freedom of thought and expression and dissent which are all provided for in Art 19(1) (a)is again an important constitutional value which underpins a free and harmonious society . It helps to cultivate the virtue of tolerance. Justice Cardozo observed that  the freedom of speech  is the matrix, the  indispensable condition of nearly every other form of  freedom. It is the wellspring of civilization and without it liberty of thought would shrivel.

Constitution 16th Amendment, 1963 is effective from 6.10.1963 in point. It   introduced various constitutional provisions like the ground of "sovereignty and integrity of  India" in the reasonable restriction clause and the duty to uphold sovereignty and integrity of India in the oath of office to be made and subscribed  to various constitutional functionaries. This was pursuant to the recommendation   of the Committee set up by the National Integration Council and chaired by Sir C.P. Ramaswamy Iyer in the wake of   divisive and secessionist tendencies and activities in some parts of the country. It is also significant to mention that after this Constitution Amendment the DMK Party gave up its ideology of   secession in the amended its party constitution. DMK leader Dr.C.N.Annadurai displayed great statesmanship when he unequivocally declared that the DMK once and for all gave up the demand for Dravidanadu and henceforth solidly and sincerely stood for the sovereignty and unity of India.  By the Constitution 42nd Amendment the words "unity and integrity" of the nation were introduced in the Preamble. It is necessary that all political parties and organizations incorporate in their respective constitutions and manifestos that they would uphold and foster fraternity among all people. 

"Fraternity" was added in the Preamble because it was even then  felt " that   the need for fraternal concord and goodwill in India was never greater than now and that the particular aim of the Constitution should be emphasized by specific reference in the Preamble." The relevance is far greater now.    There is also the prime need for maintaining the unity and integrity of the country without which individual liberty and human dignity may not be of much avail. And unity can be achieved only if there is a spirit of brotherhood among various sections of the people. All these objectives are therefore inter related and inter dependent and help promote and foster one another. Economic and social inequalities rupture the fabric of evil society.  Public goods such as education, health-care, human-security are not the rewards of economic development.  They are not social gains of economic reforms; but are indeed economic gains of social reform.  Fraternity makes economic good-sense too.  This is true insurance for the good health of free-market-economy. 

Tolerance of the beliefs , views and practices of others is imperative for a harmonious living and a concordial society. Be it a religious procession or the screening of a film or the expression of a view point in speech or writing must all have some space in our society. Nothing can be put in straight-jacket or dictated. 

"The best test of truth is the power of thought to get itself accepted in the competition of the market." This freedom includes not only freedom for the thought we like but also freedom for the thought we hate. It is only thus can a people grow and a society be cordial and conflict free. It is said that to doubt one"s own first principles is the hall mark of a civilized man. 

Intolerance, however, has not been wanting here or in other parts of the world and it takes various forms. Religious persecution has not been uncommon. There was no separation between the Church and the State. Scientists were condemned and punished by the Church for asserting that the earth goes round the sun. There were times in which  Europe indulged in religious massacres e.g. The St. Bartholomew Day massacre in 1572 of Protestants, (called Huguenots) in France by the Catholics, the burning at the stake of Protestants, the massacre by the for their resistance to Rome and the burning at the stake of Jews during the Spanish Inquisition. We may also mention the days of Cromwell, and the mutual massacre of Catholics and Protestants in Germany during the thirty year war from   1618 to 1648. Reference may also be made to the strict observance of the Sabath by the Puritans in the 17th century and intolerance of anything inconsistent  with such observance. The contrasting tones of tolerance is reflected , for instance, in the Firman issued by Akbar notifying 12 days of the month of Badharva including 8 days of the Paryushan as the period  of abstinence during which no living creature would be slaughtered. Jawaharlal Nehru in "Discovery of India" says "Akbar"s success is astonishing  for he created a sense of oneness among the diverse elements 

We must also take note of the secularization of law and politics. It must be stated that the movement of political institutions and the legal systems has been from the religious to the  secular and in that course it has absorbed goods things from outside. The separation of the Church from the State was achieved earlier in Europe and in the US later. In 1844 the US supreme Court declared that   Christian religion is part of the common law and in 1892 the Court said that the USA is a Christian nation. The case State vs. John T.Scope in the 1920s severed the link between law and Christianity of Hindu personal law especially in the mid 20th century has indeed been an amazing feet of reform. Personal law of the Hindu showed the resistance of transformation from the dogmatic to the retread.

The Indian tradition of tolerance has been adverted to in various judgments. To quote Chief Justice  S.R. Das in Re: the Kerala    Education Bill : "....Throughout the ages, endless inundations of men of diverse creeds, cultures and races " Aryans and non Aryans, Dravidians , Chinese, Scythians, Huns, Pathans and Mughals have come to this ancient land from distant regions and climes. India has welcomed them all. They have met and gathered, given and taken and got  mingled, merged and lost in one body. India"s tradition has thus been epitomized in the following noble lines:

"None shall be turned away From the shore of this vast sea of humanity That is India." Further in 1986 the Supreme Court said: "Our tradition teaches tolerance; our philosophy preaches tolerance; let us not dilute it".

To quote Granville Austin: A Constitution , however living is inert . It does not work. It is worked- worked by human beings whose conduct it may shape whose energies it may canalize, but whose character it cannot improve  and whose tasks it cannot perform.

The Supreme Court"s observations in its recent judgement in the case of Himsa Virodhak Sangh( JT 2008(3) SC 421):" These days unfortunately some people seem to be perpetually on a short fuse, and are willing to protest often violently, about anything under the sun on the ground that a book or painting or film etc. has "hurt the sentiments" of their community. These are dangerous tendencies and must be curbed. We are one nation and must respect each other and should have tolerance". 

VIII Human Rights: The New civilization

Human Rights, Democracy, Rule of Law, Pluralism are indivisible. These are the common heritage of mankind. The issue of individual rights which was basically a question between the inhabitants of a nation State and that State is now a concern of a citizen of the world against all arbitrary  authority to be dealt with in the light of international charters. So is the concept and concern of democracy and its institutions which go beyond national boundaries. "Right knows no boundaries, and justice no frontiers; the brotherhood of man is not a domestic institution."

Accommodation is an attitude which has been described as the: "...most notable characteristic in every field of Indian activity the constant attempt to reconcile conflicting views or actions, to discover a workable compromise, to avoid seeing the human situation in terms of all black or all white.....As India"s philosopher President Sarvapalli Radhakrishnan has put it :Why look at things in terms of this or that? Why not try to have both this and that?"

Amartya Sen in his "Argumentative Indian" speaks of the large tradition of heterodoxy in India.  He says, heterodoxy "has a bearing  not only on the development and survival of democracy in India, it has also richly contributed, I would argue, to the emergence of secularism in India, and even to the form that Indian secularism takes, which is not exactly the same as the way secularism is defined in parts of the West".  "Dissent and heterodoxy" he observes "run through out the early documents, and even the ancient epic Ramayana, which contains dissenting characters".

IX Role of Judiciary : Foundations of Judicial Review

In a constitutional democracy wedded to and governed by the rule of law, responsibilities of the judiciary  arouse great expectations. Justice Frankfurter remarked: "It is not a printed finality, but a dynamic process. Its applications to the actualities of Government is not a  mechanical exercise, but a high function of statecraft."

The constitutional adjudications have the urgent task of defining or redefining from time to time the basic constitutional concepts in a changing and disparate world. Judicial policy is directed to the management within the constitutional parameters of the apparent conflicts in society. The exercise of democratic power on the one hand and legal control of government  on the other, pose seemingly irreconcilable positions.

It is said that an unfailing index to the maturity of a democracy is the degree of its respect for the unwritten conventions. The silences of a constitution are eloquent and they are constitutional device forming part of an advanced constitutional culture.

The measure of success in achieving all this may be regarded as the measure of success of the working of the Constitution and in promoting and sustaining constitutionalism. The role of the judiciary in protecting individual rights and freedoms and promoting constitutional values is not discretionary but obligatory.

Judicial Review essentially has its  foundations in common law. The earliest echoes of the power of judicial review can be heard in the judgement of Chief Justice Coke in Dr. Bonham"s case ( 1610) wherein he said  that the common law would control Acts of Parliament and a Court could declare an Act of Parliament void if it was against "common right and reason." Edwin Corwin in his paper "The Higher Law Background of American Constitutional Law"       Harvard Law Review, XLII(1928-29) 149 explains the great contribution of the common law tradition to the ultimate development of judicial review in America. The dictum in  Bonham"s case   became in Corwin"s words, "the most important single source of  the notion of judicial review." The principle is that all laws are to be tested on the touchstone of a higher law which in earlier terms was the Natural Law and the Common Law and whose role is today ordinarily filled by a constitutional document. The idea of judicial review is anterior to the nation of a  written Constitution.

In 1798 in Calder v Bull , Justice Samuel Chase drew support from the principles of higher law and judicial review to enforce extra constitutional limitations on legislative power. And then in Marbury v.Madison, Chief Justice Marshall said: It is the duty of courts when confronted with a conflict between an act (i.e., a statute) of the mere agents of the people(i.e. of the ordinary legislature) and the act of the people themselves ( to wit, the Constitution), to prefer the latter.

Today in countries with a written Constitution and an entrenched Bill of Rights what obtains is Constitutional supremacy - a government of enumerated powers with the judiciary constituted as the guardian of the Constitution and the arbiter of the function of all organs as grantees under the Constitution.  It is for the Court to uphold the constitutional values and enforce the constitutional limitations. To ensure constitutional governance is of when executive power is part , therefore , part of the duty and function of the judiciary. In that sense judicial activism properly understood  is a duty, not an intrusion. The responsibility of accomplishing the salutary  goal of translating the constitutional promise into reality in many spheres can not be outside the court"s purview as long as it does not degenerate with private benevolence and an amorphous general super vision of the executive government.

A recent , interesting and incisive discussion  a Judicial Activism in the House of Lords : a Composite Constitutionalist Approach by Margit  Cohn (2007)

P.L.95. measures judicial activism  against the backdrop of different functions of the judiciary and it is argued that activism should be traced  to the institutional role of the judicial branch. Constitutionalists value judicial participation as an essential   component of a full blown constitutional democracy. There is a matrix of social and political forces that influence both the making of a judicial decision and its actual impact and effect on society. As the courts are entrusted with the role of protection of essential  constitutional values , activism is assessed against the value the courts are deemed to protect. When core values are endangered judicial protection of these values is an exercise of the legitimate and essential role entrusted to the judiciary.

There is the criticism that judicial activism is a slippery slope and may mean the Court"s propensity to intervene in the governing process. However Dean Eugene Rostow says:" When the judges are carrying out the function of judicial review the final responsibility of the people is appropriately guaranteed by the provisions for amendment of the constitution itself and the benign influence of time which changes the personnel of the Court. Given the possibility of Constitutional amendments there is nothing undemocratic in having responsible and independent judges act as important Constitutional mediators."

(The Democratic Character of Judicial Review,(1952) 66 Harvard Law Review, 193)

It is inevitable that the legislatures tend primarily to reflect immediate interests. But it is important and essential that long term interests and values  be given due consideration. Until the legislatures do so, the judiciary seem to inherit the assignment by default; and if the assignment is judiciously performed in the manner indicated by great judges, " The Court can be regarded ,"  to quote Robert McCloseky, "not as an adversary, but as an auxiliary to democracy." Or as Justice Mathew put it, paradoxical though it might appear , the judiciary is both an ally of majoritarianism and its critic and censor.

"Far from being antithetical, judicial review is essential to the promise and performance of free government."

Upholding constitutional principles and enforcing fundamental freedoms requires a robust activist approach. But it is important that in this exercise a judge"s personal predilections and prejudices are not erected into constitutional principles. Judicial restraint is compelled not because of the lack of power but more because of want of judicially manageable standards and relative institutional competence. The expanding horizons of judicial review call for judicial statesmanship and a fine balance between activism and legitimacy.  The " principal source of legitimacy of the judicial process said Archbold Cox is the all important but fragile faith that courts apply to current legal problems and constitutional controversies a continuing body of law". A judge"s decision must bear out that  "he began from recognized legal principles and reasoned in an intellectually coherent and politically neutral way to his result."

The decision of a court must be a principled one, the court cannot be functioning as a naked power organ. A principled decision is one which  "rests on reasons with respect to all the issues in the case, reasons that in their generality and neutrality transcend any immediate result that is involved. When no sufficient reasons of this kind are forthcoming for overturning the value choices of the other branches of government or State , their value choices must survive."

(vide Herbert Weschsler: Towards Neutral Principles of Constitutional Law (1959)73 Harvard Law Review 1).

Judicial review is a potent weapon but the judge should know his own limitations and the limitations of the judicial process and that the law cannot offer relief from the " heartache and thousand natural shocks that flesh is heir to."

As Chief Justice Aharon Barak said : "Protecting the constitution requires balancing the different values..... It requires balancing between the principle of majority rule and values which even the majority may not undermine; between the needs of the collective and individual rights; between the rights of one individual and those of another. A Judge must protect and maintain this delicate balance, something which requires some measure of activism and some measure of self-restraint"

A passage from Basu"s Tagore Law Lectures appears apposite in the context

" powerful and, therefore, onerous is the engine of Judicial Review at the hands of Judges of superior Courts and what depth of knowledge and faith in Constitutionalism is indispensable for working that engine... it would be profitable for all of us to recollect what Blackstone, himself a Judge of the superior Court, said over 200 years ago, "Should a judge in the most subordinate jurisdiction be deficient in the knowledge of the law, it would reflect infinite contempt upon himself and disgrace upon those who employ him .And  yet the consequence of his ignorance is very trifling and small: his judgement may be examined, and his errors rectified by other courts. But how much more serious and affecting is the case of a superior judge , if without any skill in the laws he will boldly venture to decide a question upon which the welfare and subsistence may depend.... where, if he chances to judge wrong, he does an injury of the most alarming nature, an injury without possibility of redress." It may be added that in the sphere of Constitutional Law uninitiated decisions are likely... to bring ...loss of confidence in Judicial Review, nay, in the Constitution itself , upon which rests the life and breath of the Nation."


Learned Hand says that it is difficult to answer how the spirit of moderation and tolerance and faith in the sacredness of the individual are bred and fostered. They are the last flowers of civilization, delicate and easily overrun by the weeds of our sinful human nature.... They must have the vigour to withstand the winds and weather of an indifferent and ruthless world; and that it is idle  to seek shelter for them in a court room. Men must take that temper and  that faith with them into the field, into the market place, into the factory, into the council room, into their  homes; they cannot be imposed, they must be lived.They are the fruit of the wisdom that comes of trial and  a pure heart. 

Equally telling are the wise words of Justice Frankfurter: 

"....The tendency of focusing on constitutionality is to make constitutionality synonymous  with wisdom... Such an attitude is a great enemy of liberalism. Particularly in legislation affecting freedom of thought and freedom of speech, much which will offend a free- spirited society is constitutional. Reliance for the most precious interests of civilization, therefore, must be found outside of them vindication in courts of law. Only a persistent positive translation of the faith of a free society into the convictions and habits and action of  a community is the ultimate reliance against unabated temptations to fetter the human spirit..... such temptations will have their way , if fear and hatred are not exercised... Without open minds there can be no open society. And if society be not open the spirit of man is mutilated and becomes enslaved."

As Seervai says - a fair and even handed executive administration can do more to promote fraternity than any constitutional or legal provision.

Governance is the key mechanism for translation of constitutional expectation into reality. A "sick administration" which suffers "organizational dropsy" will be a poor vehicle for translating human rights phrase into reality. Democratic   governance and human development have an intimate inter relationship. Good governance is the largest input in the fight poverty. Participatory decisions are at the heart of human development.

The idea of India comprises many facets  . Indian civilization is underpinned by certain eternal and enduring verities. India must believe in herself and set a trail blazing humanism in development pattern. The single most important legacy of ancient India is the tradition of tolerance, respect for diversities, accommodation of pluralism and reverence of life. This is our lesson of humanism which should continue to be real and achieved through the medium of constitutionalism.

Einstein once said  : "The world is a dangerous place not because of those who do evil but because of those who look on and do nothing," The alternative to tolerance and peaceful co existence is chaos and catastrophe. It is a lesson that mankind has not yet learnt but which it cannot afford to forget. There is no doubt that a race weary of its own bloodshed and divisiveness will ultimately have to grope its way to a system which offers the only chance for happy survival and that surely is the confluence of constitutionalism and humanism- to endeavor to usher in a freer and fairer world, a lasting foundation for any constitutional order.

These are issues and concerns that call for an active debate and discourse by the people at large. That would be a fitting tribute to the life and work of men like Dr K.N. Katju.

"When in any field of human observation, two truths appear to conflict, it is wiser to assume that neither is exclusive and that their contradiction, though hard to bear, is part of the mystery of things."(Literature and Dogma, Times Literary Supplement( London) Jan 22 1954, 51).

Thank you for Patience