Duty of District Judiciary to protect Constitutional Rights of citizens."
Speech by Hon'ble Mr.Justice C.K.Thakker,Judge,Supreme Court of India.

NJA Regional Programme on Techniques and Tools for Enhancing Timely Justice,7th September-9th September,2007,West Zone(Ahmedabad)

For about 3 days you had extensive discussion on delays, measures, reasons, remedies. So far as you are concerned infact you are at the grassroot level from the day one till the final relief is received by the litigant you are incharge of the proceedings. Say by example in a celings suit, the day the suit is instituted by presentation of plea say section 26 A, you are incharge of the matter - issue of summons, filing of written statement, issues, reading of evidences, judgment- you are incharge of the proceedings. No doubt about it that the court has made several provisions, several provisions have been even amended but you must implement them in letter and spirit so that there is expeditious disposal of cases. Yesterday also as Justice Sinha has said there is sometimes I am not saying that always but sometimes there is a some misunderstanding that lower judiciary is not concerned with constitutional matters or constitutional issues for interpretation of statute. This is not correct, but some part may not be within your domain. For example deciding whether a particular statute is constitutional or unconstitutional. But barring these few limitations you are incharge of your court dealing with all matters including constitutional issues. For instance, take Part III and IV of the Constitution. Can you say that I will ignore Articles 14, 19, 21? You can not even ignore directive principles of the state policy.

Suppose you have jurisdiction and service matter comes to you. If you are not expressly or impliedly barred, can you say that you will not look at Article 311? You cannot, you are here to interpret these provisions of law also. Sometimes you will come across a case where there are two non-obstante clauses or even one non-obstante clause- something which may not be reconciled. For example, in one leading judgement of the Supreme Court, concerning a matter from Surat, notwithstanding anything contained herein, a person is entitled with decree and other provision section 25 says that a residential quarter cannot be converted into nonresidential and Trustee had said that alright we are committing breach, we will be sent to jail but we will be granted decree in our favour. It was granted by Civil Court, it was granted by District Court, it was granted by High Court also. Infact in the High Court this was referred to a Division bench considering the importance of the matter and division bench said that this non-obstante clause is there.

Infact, it was referred and ultimately Supreme Court said No, we are here to harmonize this two interpretations, these two provisions. If you say, yes that on the one hand we will grant relief in your favour, but as soon as you execute it we will send you to jail. Now this is something that cannot be tolerated. This cannot be said looking to the intention of the legislature. Several pressures will come to you. Infact when I was the President of Judicial Academy, I was told at three conferences which I had attended, that sometimes there are contradictory decisions also. At least two decision were pointed out to me. One was regarding Section 156 (3). You are aware that before taking cognizance of the case sometimes the order is passed that let it be enquired into by police authority. One judgment of Gujarat High Court was that reasons are required to be recorded, another judgement was no, it cannot be recorded. The reason is that you are not taking cognizance of the matter. They asked me what shall we do? Take another instance. SC & ST Protection Against Atrocities Act. Now there is a provision that no anticipatory bail is granted. A single judge took the decision that it cannot be granted. Of course finally it was concluded by Supreme Court also. However, at that time this judgment was not there. The second judgment was that it is inherently improbable (or something like correlating to proceeding) that you can grant anticipatory bail also. They told that what we have to do? I said it is not only your difficulty sometimes it is a difficulty on our part also. Generally two decisions of the Supreme Court or of the High Courts are called upon. Infact before me at a Division bench, I was a member of the Division Bench, Mohd. Ramzan Khan was cited before us, wherein it was stated that there was no contrary decision. Infact there was a decision and before the division bench we were told there are two decisions. Earlier it was not pointed out and nothing was stated. Now what is to be done? Now therefore we have to consider all these provisions.

Even with regard to PIL, it was stated that though strictly PIL will not come to you, but what is Section 133? Yesterday we have considered Ratlam Municipality. What is Order I Rule 1-A? What provisions are Section 91 & 92. All these provisions are virtually PIL, atleast it is one instance which I am aware of, in order 21 rule 72 there is a provision that if the decree holder himself wants to purchase the property, he will have to take leave of the court because without taking leave of the court he cannot participate in the bidding process. In 1976 Amendment there is addition of rule 72 (A). 72 (A) deals with sale of property, but by mortgagee. Now it is seen that provisions states that if mortgagee is also a decree holder wants to bid then he will have to take leave. And then the provision also says that ordinarily, except where the court otherwise directs the upset price should be less than the amount of the mortgage alongwith cost, interest, and expenses. Now that provision if you go to legislative history and law commission's report it was said that that provision was a result of a letter written by a subordinate judge of the Maharashtra a lower judicial officer written a letter to administrative side of the high court those days before more than 50 years that "Sir this is the practice here that the mortgagee in possession is a decree holder and he wants to purchase the property then ordinarily upset price should not be less than everything so that suppose the property is sold and he is not able to pay anything. So it is not that you cannot do anything. Infact 133 - Ratlam Municipality - itself is an order passed by at the grassroot level.

So in my opinion you are really the foundation stone and you can certainly do your best and I have no doubt that during these 3 days discussions you have arrived at certain conclusions which Dr.Mohan Gopal will also tell us, but you will certainly do everything and you can.