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.

- JUSTICE B.D. AGARWAL

Gauhati High Court

A country is known, respected and recognised globally if its economy is strong, democracy has deep roots in society, has good governance and a well-established rule of law.

Of equal importance and also of the same relevance in this regard is the existence of progressive legislation and a strong and independent judiciary, with sovereign power to undertake judicial review of the constitutional validity of legislation.

As a matter of fact, a vibrant and non-pliable judiciary is one of the parameters for recognition of a country as a developed nation and a sine qua non for determining its comparative status among nations.

Thus, a strong and independent judiciary, capable of handling challenges, not only thrown by enlightened citizens but also by its legislature is what goes into the making of a progressive and well developed nation.

A judiciary of such stature which commands respect and contributes towards wining such status for a country calls for not only morally strong and legally sound judges but also requires such judges to be well trained, well equipped and well informed in their sphere of work. This is where continued legal education assumes importance.

The justice delivery system basically involved judges, lawyers, police officials, forensic experts and also executive officers of other wings. In other words, the judicial systems and the administrative systems of justice involve almost all the organs of the government machinery. It is the teamwork that ultimately contributes towards resolution of disputes between parties.

It is said justice should not only be done, it must also be ensured. Such a standard of perfection can be achieved only if all the organs involved in justice delivery system are well equipped with infrastructure, tools and legal and scientific literature.

In this regard, it would be better to bear in mind that such tools of performance, including the literature, undergo changes and even become outdated with the passage of time and need refinement, updating and replacement from time to time. As a consequence, persons operating those tools and manning the different offices connected with the system also need regular updating of their knowledge to keep pace with new emerging laws, changes in society, innovations in science and technologies and so on. Hence, the need for continued legal education for the different functionaries concerned with administration of justice.

It is very often said that sharing of knowledge is also gaining knowledge. However, in practice it is seen that persons who possess certain special knowledge in a particular professional field are reluctant to share their skill gratuitously, based on a wrong notion that by doing so they will create their own competitors.

Interestingly, on the other hand, instances are not lacking where even persons who stand to gain by such sharing of knowledge have reservations about availing of such advantage. For instance, the concept of training was not received well initially in any part of the world. Many members of the judiciary did not welcome proposals initiated in England and Australia in the late 1970’s for training of magistrates, tribunal personnel and judges.

The concept of institutionalised legal and judicial education even in the developed countries of the world is not too old. Training in the judicial field was first initiated and accepted in France in 1958. This was followed by the US establishing the National Judicial College in 1963. United Kingdom followed suit by establishing the Judicial Studies Board in 1979.

However, formal training for judicial officers began in 1987 after a long debate. The Canadian Judicial Council conducted its first training session in 1972, but its Judicial Training Institute started operation only in 1988. Australia also adopted an identical training scheme in 1975.

Back home, though state-level training institutes had already been functioning in some states, the first national centre for judicial training and education in India — the National Judicial Academy at Bhopal, Madhya Pradesh — came up only in 2005.

Thus, the concept of continued judicial education for the judicial officers through induction training and in-service training is a recent phenomenon in our country.

It is, however, regrettable that judicial officers themselves are prejudiced towards undergoing training. They think it will undermine their authority in courts and in public, and such training is likely to give a message in society that judges are under-qualified and not properly informed in law as they still need further and full education.

They feel that the very term “training” gives rise to perceptions that litigants are not getting proper justice at the hands of under-qualified and incompetent persons, which results in lowering their image and authority in the eye of their own staff and public in general. The judicial officers also entertain a view that training may bring stereotyped judicial decisions.

Amidst these myths and wrong perceptions the judicial officers opt for training courses reluctantly or under compulsion from superior authority.

The judicial officers, lawyers and all other officers who are involved in the justice delivery system are oblivious of the merits, benefits and advantages of training courses, a few salient beneficial features of which are noted below:

• Judicial education makes judicial officers professionals. It helps render justice faster

• The training increases the confidence and authority level of judges. It also enhances rationality in judicial interpretation of laws, which helps in rendering bold judgments, quite oblivious to political repercussions. This leads to judicial independence

• It enhances judicial approach, which results in the improved service in the delivery system

• It gives opportunity to officers to overcome individual biases. In judicial colloquia, seminars, workshops, among others, the officers can express their hidden prejudices

• It helps remove potential inconsistencies and conflicts in judicial decisions

• Legal literacy helps the officers in acquainting themselves with the changes in law

• It offers the opportunity to find grey areas where the existing laws need modification and/or to interpret the laws in accordance with new international treaties and covenants

• Training helps in use of science and new technology, which may increase perfection in judicial decisions

It is difficult to prepare a complete chart of benefits of training.

Only a handful examples of advantages of judicial workshops have been set out above, which can be termed snapshots of training merits.

As a whole, merit of continued judicial education/training far outweighs the apprehended demerits

Tax planning may be legitimate provided it is within the framework of law. Colourable devices cannot be part of tax planning and it is wrong to encourage or entertain the belief that it is honourable to avoid the payment of tax by resorting to dubious methods. It is the obligation of every citizen to pay the taxes honestly without resorting to subterfuges.
27. On this aspect one of us, Chinnappa Reddy, J., has proposed a separate and detailed opinion with which we agree.
I quote with gratitude.

Further-
43. I have referred to the English cases, at some length, only to show that in the very country of its birth, the principle of Westminster has been given a decent burial and in that very country where the phrase 'tax avoidance' originated the judicial attitude towards tax avoidance has changed and the smile, cynical or even affectionate though it might have been at one time, has now frozen into a deep frown. The Courts are now concerning themselves not merely with the genuineness of a transaction, but with the intended effect of it for fiscal purposes. No one can now get away with a tax avoidance project with the mere statement that there is nothing illegal about it.
Further-

46. We think that time has come for us to depart from the Westminster principle as emphatically as the British Courts have done and to dissociate ourselves from the observations of Shah, J. and similar observations made elsewhere. The evil consequences of tax avoidance are manifold. First there is substantial loss of much needed public revenue, particularly in a welfare State like ours. Next there is the serious" disturbance caused to the economy of the country by the piling up of mountains of black money, directly causing inflation. Then there is "the large hidden loss" to the community (as pointed out by Master Sheatcroft in 18 Modern Law Review 209) by some of the best brains in the country being involved in the perpetual war waged between the tax-avoider and his expert team of advisers, lawyers and accountants on one side and the tax-gatherer and his perhaps not so skillful advisers on the other side. Then again there is the 'sense of injustice and inequality which tax avoidance arouses in the breasts of those who are unwilling or unable to profit by it'. Last but not the least is the ethics (to be precise, the lack of it) of transferring the burden of tax liability to the shoulders of the guileless good citizens from those of the 'artful dodgers'. It may, indeed, be difficult for lesser mortals to attain the state of mind of Mr. Justice Holmes, who said, "Taxes are what we pay for civilized society. I like to pay taxes. With them I buy civilization." But, surely, it is high time for the judiciary in India too to part its ways from the principle of Westminster and the alluring logic of tax avoidance, we now live in a welfare State whose financial needs, if backed by the law, have to be respected and met. We must recognise that there is behind taxation laws as much moral sanction as behind any other welfare legislation and it is a pretence to say that avoidance of taxation is not unethical and that it stands on no less moral plane than honest payment of taxation. In our view, the proper way to construe a taxing statute, while considering a device to avoid tax, is not to ask whether the provisions should be construed literally or liberally, nor whether the transaction is not unreal and not prohibited by the statute, but whether the transaction is a device to avoid tax, and whether the transaction is such that the judicial process may accord its approval to it. A hint of this approach is to be found in the judgment of Desai, J. in Wood Polymer Ltd. and Bengal Hotels Limited (1977) 47 Com Cas 597 (Guj) where the learned Judge refused to accord sanction to the amalgamation of companies as it would lead to avoidance of tax.
47. It is neither fair not desirable to expect the legislature to intervene and take care of every device and scheme to avoid taxation. It is up to the Court to take stock to determine the nature of the new and sophisticated legal devices to avoid tax and consider whether the situation created by the devices could be related to the existing legislation with the aid of 'emerging' techniques of interpretation was done in Ramsay (1982 AC 300), Burma Oil (1982 STC 30) and Dawson (1984-1 All ER 530), to expose the devices for what they really are and to refuse to give judicial benediction.
48. I agree with Ranganath Misra, J. that the appeal should be dismissed.

Live with system- they are real beauty

Nature is beautiful nut that is not the end of beauty. Systems intelligently developed and are working.  Systems are serving. Systems have utility. Utility is beauty. That which serves is beauty. Every system has numerous beautiful threads.Systems are interwoven fabrics of beautiful utility threads that has been working beautifully delivering beauty at every step beautifully. This world is beautiful due to system that is beautiful. Systems are rhythms dancing and working beautifully.
Every system has those beautiful threads- in and out.

Why there are not many autobiographies of Judges?
Why judges do not come forward with their personal experiences as a judge?
Judges must have experienced jumps, jerks, jolts. They must have faced stumbling blocks. Several grey areas of law and judiciary might have been revealed to them. Judging is an art. Judges must have faced difficult,charming, thrilling moments during the course of their job and duty of judging. They might have seen the limits of human intellect, wisdom and system. Judges must have felt different moods of social psychology and individual reflex and compulsive behaviours of persons, groups. All these if shared by judges may be great Judicial literature.

रास्ते खड़े नहीं रहते,
न वे ठहरते है
मंजिलों की बाट जोहते
रास्ते कभी रूका नहीं करते।
मंजिले न भी हो तो
रास्ते होश नहीं खोते
पस्त नहीं पड़ते
सुस्त होना रास्तों की फितरत नही।
नदी, नाले या पहाड़
रास्ते को रोक नहीं पाते
रास्तों को नहीं चाहिये
खास किस्म की मट्टी
या कि खास तरह का मौसम
रास्ते तो पैदा हो जाते हैं
समुद्र की छाती पर।
गहराइयों में भी रास्ते बने मिलते है
शुन्य से व्योम तक
नभ से अवनी तक
पहाड़ से पाताल तक
प्रकाश से अन्धकार तक
ये रास्ते आज के नहीं है
मंजिले बनाये जाने के बहुत पहले ही
रास्ते बने बनाये थे
रास्ते अनन्त है
रास्ते  रूप लिये तो हैं ही
रास्ते अरुप भी है
रास्ते विचार भी है
रास्ते यात्रा है
रास्ते कल्पना ही नहीं
यथार्थ भी है
रास्ते केवल मंजिलों के लिये नहीं होते
रास्ते रास्तों के लिये भी होते हैं
रास्ते वहाँ भी होते हैं
जाँ रास्ते नहीं होते
रास्ते अन्धेरे रास्तों से भी होते हैं
रास्तैबंद रास्तों के बाद भी होते हैं
रास्ते आकाश, पाताल-
या कि आग औ पानी
घड़ी, साईत -संजोग
झंझावात या आघात
नरम हो या गरम
से डरा नही करते
रास्ते मंजिलों के लिये
न रुकते हैं
न झुकते है
मंजिले खुद चल कर आती है
रास्तों के पास
रास्ता ही तो मंजिल का अस्तित्व है
रास्ता ही तत्व है
रासते पर चलना ही धर्म है
पथिक का धर्म
मंजिल का मर्म्
रास्ता ही तो है

अभी अभी खबर आई है,, मैं जो भी हूँ तुम्हीं से हूँ

देखा है मैंने चाँद को कहते, हर रात चाँदनी से-
चली आओ चाँदनौ तुम, मैं जो भी हूँ तुम्हीं से हूँ।

बगीचे में घूमते मैंने देखा है,हर फूल को कहते-
चली आऔ सुगन्ध तुम, मैं जो भी हूँ तुम्हीं से हूँ।

चाँदनी को चलते चाँद की ओर देखा है मैंने अभी
सुगन्ध चले जा रही थी फूलों कीओर अभी-अभी।

समुद्र की हर लहर पुकारती थी, चली जा रही थी
देखा है जाते समुद्र को नदियो की ओर अभी अभी।